.-^ KP ft3 mft of IE. 3- MarabaU. 51.2:. 1. 1H94 CORNELL UNIVERSITY LIBRARY 3 1924 08U64J02 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084264302 THE STATUTES, GENEEAL ORDERS, AND REGULATIONS BELAIINQ TO THE PRACTICE, PLEADING, AND JUEISDICTION OE THE COURT OE CHANCERY ; COPIOUS NOTES. FOURTH EDITION, CAREFULLY REVISED AND CONSIDERABLY ENLARGED. By GEORGE OSBORNE MORGAN, M.A., OF LINCOUT'S INH, BARRISTER'AT-XJ.'W, late STOWELL fellow of UNIVEHSITY COLLEGE, AND ELDON LAW SCHOLAR IN THE UNIVERSITY OF OXFORD ; AND CHALONER W. CHUTE, M.A., OF THE MIDDLE TEMPLE, BARRISTER- AT- LAW, FELLOW OF MAGDALEN COLLEGE, OXFORD. LONDON : STEVENS AND SONS, 26, BELL YARD, LINCOLN'S INN, ilaiv ISooftsellerg anir ^u&Itsi{)ete. 1868. 1343^-5^ LONDON : BRADBUKY, EVAHB, A.ND CO., PBINTERS, WHITEFKIARS. TO SIR ROUNDELS PALMEE, M.P., Q.C., * THE FOTHITH EDITION OF THIS WOSK IS BY PERMISSION EESPECTFXTLLT INSCRIBED. PREFACE TO THE FOURTH EDITION. Since the last Edition of this volume was published, several important Acts within the scope of the work have been passed, and numerous cases bearing upon them, as well as upon the Statutes and Orders embodied in previous editions, have been decided. In the present Edition the Acts alluded to — ^including Sir John Holt's Act, the Transfer of Land and Declaration of Titles Acts, the Railway Companies Act, 1867, and the recent Acts giving equitable jurisdiction to the County Courts — have been incorporated, and the cases applicable to the subject of the work have been brought down to the present time. In addi- tion to this, several parts of the book, particularly those rela- ting to the new rales of evidence, the Revivor of suits, the practice in the Judges' Chambers, and the jurisdiction as to damages under Lord Cairns' Act (21 & 22 Vict. c. 27), have been entirely re-written. The increase in the bulk of the volume has, however, been in a great measure saved by omitting every portion of the last Edition which was not required for purposes of practical utility; so that, notwithstanding the insertion of nearly 170 VI PREFACE TO THE FOURTH EDITION. pages of new matter, this Edition only contains 37 pages more than the preceding one. The advantage thus gained will be appreciated by those who consider "that one of the greatest merits of a book of reference is compendiousness. By the late Chancery (Ireland) Act (30 & 31 Vict. c. 44), the principal portions of Sir G. Turner's Act, the Master in Chancery Abolition Act, the Chancery Improvement Act, 1852, the Oaths in Chancery Act, and the Order of 5th February, 1861, as to evidence, have been with certain modifications made applicable to Ireland. A tabular analysis of the Act in ques- tion, with references to the corresponding English Acts and Orders, and to the pages of the present work, in which they are set out, will be found immediately before the Table of Cases. In this Edition, the General Orders issued subsequently to February 15, 1860, foUow immediately after the Consolidated Orders ; and the Schedules to the Consolidated Orders, together with the Regulations as to Fees, and the Judges' and Regis- trars' Regulations as to business, have been transferred to the Appendix. The two Acts conferring equitable jurisdiction on the County Courts, and the Orders and Forms relating thereto, are printed at the end of the Appendix. Lincoln's Inn, Nov., 1867. PKEFACE TO THE SECOND EDITION. The extremely flattering reception which the First Edition of this work obtained both from the Profession and the Press, has encouraged the Author to re-issue it in a more compre- hensive shape, and uj^on a plan more in unison with the improvements recently introduced into the practice. The Consolidation of the General Orders of the Court of Chancery, though executed with admirable care and ability, has been felt to be practically incomplete, for want of a digest of the nume- rous decisions upon their construction, which have become as much a part of the practice as the Orders themselves. The most inattentive reader of the Authorised Edition of those Orders must have long since discovered, that their smooth pages preserve intact a variety of controverted questions, which the light of nature wiU hardly enable him to solve. With the view of supplying, however imperfectly, this admitted want, the Author has, in conformity with the original plan of the work, given under the rules of each Order, as well as under the sections of each Act, a summary of all the cases, nearly three thousand in number, decided thereon, so as to show the prac- titioner at once what they do and what they do not authorise him to attempt. The first part of the work, too, containing the Statutes relating to the practice and jurisdiction of the Court, has been considerably altered and enlarged. The sections of the Acts which relate to the salaries and pensions of the Judges and Officers of the Court and other matters of purely personal interest, as well as the now obsolete 17 & 18 Vict. c. 100, have been omitted ; and in their place the important sections of the Attornies and Solicitors Act, providing for the delivery and payment of bills of costs ; those of the Lands Clauses Consolidation Act, relating to the purchase of lands belonging VIU PREFACE TO THE SECOND EDITION. to persons having limited interests, and the costs occasioned thereby; Sir Hugh Cairns' Chancery Amendment Act (21 & 22 Vict. c. 27) ; and Lord St. Leonards' Act for the further relief of Trustees (22 & 23 Vict. c. 35), with several other less important Acts, have been added to this Edition ; v^hich, in its present shape, contains all the Statutes of Victoria within the scope of the work. The earlier Statutes, such as the 1 Wm. 4, c. 36, relating to the practice, though not printed at length, have been cited and commented upon whenever occa- sion required. An elaborate Index to the whole work, constituting, in fact, an alphabetically arranged analysis of the practice, has been prepared for the Author by Mr. C. Austen Leigh, of the Chancery Bar. These observations will suffice to show that the present Edition is in reality a new work. As the scope of the book has been extended, the difficulties of compilation have greatly increased. Omissions, inexcusable when the results of six or eight years had to be collected, become unavoidable when the search has to be earned back for two hundred. Still no eifort has been spared to make the present Edition a complete com- pendium of the whole lex scripta of Chancery practice, founded partly upon positive enactment, and partly upon judicial inter- pretation. The absolute necessity for some such work, in the present state of the practice, none will deny. When the rules of the Court had to be extracted from the tomes of Vernon or the manuscript notes of Lord Nottingham, such text books as Maddock, and the older editions of Daniell, were not only useful, but indispensable. But now that, thanks to the energy of the Legislature and the Judges, nine-tenths of the whole practice can be summed up in six hundred small octavo pages, it may not unreasonably be hoped that the method adopted in this volume possesses, at least, as much to recommend it as that of the more elaborate but more cumbrous treatises of former days. G. O. M. 22, Old BniLDisas, Lihooin's Inn, April, 1860. TABLE , OF CONTENTS. PART I.— STATUTES REGULATIKG THE PRACTICE AND JURISDIC- TION OF THE COURT OF CHANCERY. PAGB JtJDGMEin's Act (1 & 2 Vict. c. HO), Judgment to operate a^ charge on real estate (s. 13) . . . . l Stock, &.C., to be charged by order of judge (ss. 14 — 16), judgment debts to carry interest (s. 17), decrees in equity to have effect of iudements (s. 18) ■ . . .... 3-6 Custody of Infants Act (2 & 3 Vict. u. 54), Judges in equity may make orders for access of mothers to infant children (ss, 1 — 3), or may refuse to interfere (s. 4) . . . . . 7 Perpetuation of Testimony Act (6 &■ 6 Vict. c. 69) 10 Atto^nies and Solicitous' Act (6 & 7 Vict. c. 73), No axtipn for fees until, a month after delivery. Applications for taaxi- , tion bpfore twelve months, arc of course ; after twelve months, only under special circumstances ; Court may order solicitor to deliver bill and papers (s. 37) ll — 20 Taxation by third party (if liable), or cestui que trust (ss. 38—40) . 21 Taxation (i/i!^jjay»i«ji< under special circumstances (a. 41); process of taxation (S5. 42, 3) 23 — 26 (22 & 23 Vict. c. 127) interest on costs (s. 27), solicitor's lien on pro- perty preserved (s. 28), costs of deceased lunatic (s. 29) . . 28 — 30 Lands Clauses Consolidation Act, 1845 (8 Vict. c. 18), Interpretation and short title clauses (ss. 1 — 4) .... 31 Purchase Tnoney to be paid jnto court, if £200 or more (s. 69), and in- vested (s. 70). If from £20 to £200, to he paid to trustees (s. 71), \1 ■a.-aH&v £W io he paid to parties {a. 12) 34 — 39 Sums payable for injury (s. 73) .40 Sums payable in respect of leases or reversions (s. 74) . . . . 41 Laud taken frojn owner not showing title or refusing (ss. 75 — 9) . . 42 Costs payable by company in case of compulsory pwrchase (s. 80) . . 46 Conveyanpe by contract, and costs (ss. 81 — 3) 63 Deposit on entry before purchase (ss. 85, 86), to be returned on pay- ment of compensation (s. 87) . . * 55 Parliamentary Deposit Act (9 Vict. c. 20) 69 Trustee Belief Act (10 & 11 Vict. c. 96) 64 Teustbb Rbljef Amenpment Acy (l2 ^ 13 Vict. c. 74) ... 74 Trustee Act, 1850 (13 & 14 Vict. c. 60), Repeal and interpretation clause (ss. 1, 2) 76 Vesting orders vrhere trustees, &c. of lands (ss. 3, 4), or stock (ss. 6, 6), are hmatic; where trustees, &c. of land (ss. 7, 8), or stock (note {a) ) are infant ; where trustees, &c. of land (ss. 9 — 12) or stock (note (e)) are ovi o/iAeyMn'sdicWore/ where trustees, &e. of land (ss. 13 — 21), or stock (s. 22), are vmcertain, &c. . . . . 82 — 86 Power to appoint person, to coMt'cy (s. 20) 89 Orders \fhere trustees of land or stock (s. 23 — 6) refuse to convey . . 91 'Meet oi vesting orders of stock, &c. (s. 2,6, 1) 93 Vesting orders of copj/^Zds (s. 28) 94 OtAets in pursuance of decrees (ss. W, Zd) 95 b* Directions as to transfer of stock (s. 31) TABLE OF CONTENTS. PAGE . 97 . . 98 . 102 . . 106 . 107 court . . 107 . 108 108, 109 . 110 Appointment of new trustees by Court (ss. 32 — 6) . Mode of application under the Act (ss. 37 — 44) ■ 'New trasteca oi charity property (a. i5) .... No escheat of trust property (ss. 46, 7) . • • . - . Money of infants and persons of unsound mind to be paid into (s. 48) Decree made in absence of trustees (s. 49) . Costs under the Act (s. 51) Commission or suit directed (ss. 52, 3), . . . . Extension to colonies, short title, &c. (ss. 54 — 9) . . . 110 — 111 Tktjstke Extension Act, 1852 (15 & 16 Vict. c. 55) Ill Sir Gboege Turnek's Act (13 & 14 Vict. c. 35), Special cases (ss. 1—18) 117—125 Executors' summons for accot*n< of & to (ss. 19 — 25) . . 125 — 129 Affidavits admitted at hearing of cause (s. 28) 130 Orders-of course, appeals from (s. 29) 131 CouBT OP Appeal Act (14 & 15 Vict. c. 83), Lords Justices' appointment and jurisdiction (ss. 1 — 9), assistance of Common Law judges (s. 8), appeal to jffmtse of Lords (s. 10) . 136 — 142 Master in Chancery Abolition Act (15&16 Vict. o. 80), Judges to sit at chambers (ss. 1 — 15) 142 — 145 Business to be disposed of at chambers (s. 26) . . . . 145 — 148 Mode of proceeding at chambers {aa. 27 — 31) .... 148 — 152 Chief clerk's certificate {aa. 32—34) 153 Oonveyamcvng Counsel, &c. (ss. 40 — 43) 159 Judgments of retiring Lord Chancellors (s. 60) 160 Improvement of Jurisdiction of Equity Act (15 & 16 Vict. c. 86), Printed and written bills (ss. 1 — 10), swnction of next friend or relation (s. 11), interrogatories to original and amended bill (s. 12) . 161 — 167 Answer (ss. 13, 14) 168 Motion for decree (ss. 15, 16) 169 Costs of impertinent matter (a. 17) 171 Summons .for ^rorfMcfe'ore of doc/um^nts {s. 18): defendant's concise stoie- m^nt and interrogatories or summons for documents (ss. 19, 20) 171 — 179 Commissions dispensed with (s. 21), mode of swearing affidavits, an- swers, &c. (ss. 22—25). ' 179 JUplication may be filed (s. 26), escwmimation on interrogatories (s. 28) 182, 183 Examination before ejcaminer (ss. 31— 35), time for closing evidence (s. 38), Court's power to order oral examination (s. 39), subpcena for witnesses (s. 40), evidence after the hearing (a. 41) . . 184 — 194 Representative parties suing on behalf of themselves and others (s. 42), personal representative dispensed with (s. 44) . , 195 — 201 Administration summons against executor (ss. 45 — 48) . . . 202 Court may direct sale instead of foreclosure (s. 48) 205 Misjoinder (s. 49), dxcUwatory decree (s. 50), Court may ifec?rf« between some paHies, without making others interested parties to the suit (s. 61) 207—209 Bemivor (s. 52), amendment (s. 53) 210 — 217 Special directions as to accounts (s. 54), Court may order real estate to be sold (ss. 65, 56), or direct allowam£e of income pending a suit (s. 57) 218—220 Common and special injunctions ; answer to be an affidavit (as. 68, 69) 221 Questions of law to be decided by Court (s. 61) 223, 224 Suitors in Chancery Eblief Act (16 & 16 Vict. o. 87), Power to make rules as to copies and stamps (ss. 5 — 7), jurisdiction in hmacy (ss. 14, 15), deposit on appeal (s. 41) . . . 226 — 229 Oaths in Chancery Act (16 & 17 Vict. c. 78), Commissioners to administer oaths m London . .... 230 Infants'' Settlement Act (18 & 19 Vict. c. 48) . . . . . 233 TABLE OF CONTENTS. XI FAGH Act for Despatch of Business, 1855 (18 & 19 Vict. c. 134), Power to make rules as to business in chambers (s. 16) ... 235 Leases and Sales of Settled Estates Act (19 & 20 Vict. c. 120), Interpretation of settled estate (s. 1), power to authorise leases (ss. 2 — 10), or saZcs, dedication of roads, &c. (ss. 11— 15) . . . . 236 — 242 Who must apply and consent (ss. 16 — 19), advertisements, &c. (ss. 20 — 22), application of purchase-money or rent (ss. 23—25) . 244 — 247 Powers not to be exercised if acpressly negatived (ss. 26, 27), title of purchaser, &o. under Act (s. 28), costs, rules and orders (ss. 29 — 31) 248, 249 Powers of tenant for life (ss. 32—36) 250 Applications by infants, &c., and married women (ss. 36 — 39), rights of incumbrances, &c., saved (ss. 41 — 46) .... 261—254 Settled Estates Amendment Act (21 & 22 Vict. c. 77) ... 255 Settled Estates Fotither Amendment Act (27 & 28 Vict. c. 45) . . 267 CONFIBMATION OF SALES AcT (25 & 26 Viot. c. 108), Court may sanction sale of la8d and minerals separately . . .269 Chanoeey Amendment Act (21 & 22 Vict. o. 27), Power to award damages (s. 2), to assess damages, and try questions of fact (s. 3), with or without^/itrj/ (ss. 4—6) .... 261—266 Party may be called on to admit documents (s. 7) 267 Chancery Eegttlation Act (25 & 26 Vict. c. 42), Trial of questions of law or fact 270 Pkopekty and Tbustbes Relief Amendment Act (Lord St. Leonards, . 1859, 22 & 23 Vict. c. 35), . Lessor and lessee : effect of waiver (ss. 1 — 10) 273 Judgment how affected by release of part of land (s. 11) . . . 275 ^ctecutionof powers of appointment {a. 12) . . . . . . 276 Sale not avoided by mistaket payment to tenant for life (s. 13) . . 276 Vo'weTS of devisee in trust for sale &ni. execiitors {as. li — 18) . . . 276 Assignment of personalty (s. 21) 278 Trustee's receipts (s. 23), indemnity of trustees and executors in respect of powers of attorney (s. 26), rents and covenants (ss. 27, 28), cre- ditors, after notice of distribution (s. 29) . . . . 278, 279 Trustee may apply to Cowrtfor advice (s. 30) 282 Investments by .trustees, when not forbidden (s. 32) .... 286 Law of Property Further Amendment Act (Lord St. Leonards, 1860, 23 & 24 Vict. c. 38), Eegistration of judgments (ss. 1, 2) 286, 287 Executors protected against xmre^teiei. judgments (s. 3) . . . 287 Investment of cash wmder control of Court (s. 10), and by trustees (s. 11) 289-291 Chancery Evidence Commission Act (23 & 24 Vict. c. 128), Power to make rules as to evidence 293 Trustees and Mortgagees Act (Lord Cranworth, 23 & 24 Vict. c. 145), Powers of trustees for sale to sell in lots by private contract, &c., and to apply purchase-money (ss. 1 — 7) .... 296 — 298 Powers of trustees of renewable leaseholds (ss. 8 — 10) . ... 298—300 Powers for mortg'OS'ee to «eK, insure, &c. (ss. 11 — 16), or appoint receiver (ss. 17 — 21), duties of mortgagee's receiver (ss. 22 — 24) . 300, 301 Powers of trustees to invest and apply income for maintenance (ss. 25, 26) 302 Provisions for appointment of new trustees (ss. 27, 28) . . 803, 304 Trustees' receipts to be discharges (s. 29) 304 Poivers of executors ^ compoxmd, &o. (s. 30) 304 Tenants for life, &c., may execate-povrera notwithsta/ndifig incumbrances (s. 81) . . .' 305 Act for Belief of Prisoners in Contempt (23 & 24 Vict, o, 149) . 306 Transfer of Land Act (25 & 56 Vict. o. 53), Registration of landwith indefeasible title, &c. (ss. 1 — 39) . . . 310 Applications to Court of Chancery for sale of land with indefeasible title, &c. (ss. 40—62) 322 6* 2 XU TABLE OF CONTENTS. Practice in Eegistrar's office, Icmd certificate, &c. (ss. 62 — 88), registra- . tipn sulgect to incimibrances, or other restrictions (ss, 89 — 94) . 328 Vesting orders of Court of Chancery (s. 95) 330 Cwoeat or injunction against safe of registered land (ss. 96 — 104), penalty on fraud, &c. (ss. 105—113) 830—332 Application, &o. by crown, married women, &c. (ss. 114 — 116), general provisions, oaths, fees, &c. (ss. 117 — 133) . . . 332 — 338 Procedure by summons, forms, &c. (ss. 134 —140) .... 338 Declaration of Title Act (25 & 26 Vict. c. 67), Application for declaration of title as indefeasible, &c. (ss. 1 — 20), title declared under the Act may be registered under Transfer of Land Act (s. 21), certificate of title (ss. 22—30) .... 342—346 Petition to revoke, &c., declaration, &c. (ss. 31—35), provisions as to married women, &o. (ss. 36, 37), proceedings not tn abate by death, Slc. {a. 38), register of estates and titles Ifi, S9) . . . 348 — 351 Judgment Act, 1864 (27 & 28 Vict. c. 112), Judgments not to affect land till delivered in execution (ss. 1 — 3) . 355 Sale on application of judgment creditor (ss. 4 — 7) .... 366 CouET OF Appeal Amendment Act (30 & 31 Vict. c. 44), Separate sittings of Lords Justices 358 PART II.— CONSOLIDATED AND GENERAL ORDERS. Preliminaky Order 360 Order I. (Officers op the Court), Accountant-General ; Payment out to wom^n who marry, to personal representatives, &c. (rr. 1 — 16) 365 Registrars ; drawing up of decrees (rr. 17 — S3) 373 Duties of Record and Writ Clerks (rr. 35—53) . . . 378—382 Order II. (Conveyancing counsel of the court) .... 383 Order III. (Solicitors and parties acting in person). Duties of solicitors, address for service (rr. 1, 2), order for cJiange of solicitor (r. 3), service on solicitor or personal (rr. 4 — 8), notice of proceedings (rr. 9, 10), solicitor's agreements as to causes (r. 11) 384—390 Order IV. (Commissioners to administer oaths) . .. . 390 Order V. (Official attendance and vacations) 391 Order VI. (Selection of court) Marking of causes {t. 1—9) 392 Applications to discharge orders ofcowrse (r. 10, 11), for stay of proceed- ings pending appeal, &o. (rr. 12, 13) ■. 397 Order VII. (Parties ; persons under disability ; paupers), .Seirnot necessary ^flwi^ (r. 1) 398 Parties jointly liable not necessary parties (r. 2) 399 Guardians ad litem of infants, &o. (rr. 3 — 7) 400 Pleading m/ormS^aitpem (rr. 8— 11) 403 Order VIII. (Pleadings), Pleadings to be signed and perused by counsel smi filed (rr. 1 — 4) , 407 Order IX. (Bills), Subject matter of suits must be of £10 value (r. 1) . . . . 408 Indorsement and printing of bills, and defendant's copies (rr. 2 — 6) . 408 Bills to perpetuate testimony (rr. 6, 7) 409 Amendment of bills ; order of course for, hefore answer (r. 8), clerical errors (r. 9), one order of course for, after sufficient answer {rr. 10 — ■13), fecial orders for (rr. 14 — 16), time allowed for, and m^de of ameTtdinghiRivi. 17—19), service of amended bill (rr. 19—24) 410—416 ' Order X. (Service op copy bill, and appearance). Ordinary service (r. 1), substituted service (r. 2) . . . 417—419 Appeafram.ce of defendant within jurisdiction (r. 3), entering appearance. for defendant, &c. (rr. 4, 5), iox abscovdimg.defenjdard (r. 6) , 421, 422 TABLE OF CONTENTS. XUl PAO Service out of jurisdiction (r. 7), affidavit of service (r. 8) . . .423 Appearance of defendant after entry of appearance ty plaintiff (r. 9), no attachment for want of appearance (r. 10) 42B Service of bill on absent parties to bind them (rr. 11 — 18) . . . 427 Obdeb XI. (Intbrkogatories), Filing (rr. 1-^3), and delivery of interrogatories to defendant appearing- or not appearing in time (rr. 4, 5) 431 Order XII. (Process for want of answer), Defendantattached may be Mftprisomefi (rr. 1 — 5), defendant not attached, sequestration on mesne process (r. 6), resuming process of contempt (r. 7) 433 Order XIII. (Traversing note), Time for (rr. 1 — 4), service and effect of traversing note (rr. 5 — 7) . . 438 Osder XIV. (Demurrers and pleas). Demurrer ore tenus (r. 1), pleas on oath and signed (rr. 2, Z), of out- lawry or former suit (rr. 4 — 7) 440 — 444 Accidental irregularities in (rr. 8, 9), setting down (rr. 10 — 13), and costs of demurrers andphas (rr. 14 — 18) 446, 447 Order XV. (Answers), Form of answer (rr. 1 — 3), demurrer to particular discovery in (r. 4), signed and swam to (rr. 6, 6) 450 — 454 Order XVI. (Exceitions to answer). Form (rr. 1, 2), and filing of exceptions (rr. 3 — 7), submission (8, 9), setting down (10—13) . . . . . . . . . 455 Further answer (r. 14), when deemed sufficient or insufficient (15 — 19), scandal (rr. 20, 21) . . 459-461 Order XVII. (Replication), Joining issue where no answer is put in (r. 1), form of, and evidence on replication (r. 2) 461 Order XVIII. (Affidavits) 463 Order XIX. (Evidence generally). Hearing on Mil and answer (rr. 1, 2) " . 465 Decrees made and depositions taken on other causes (rr. 4, 5), answer to cross bill (r^ 6) 466 Evidence taken after hearing (rr. 10, 11) 467 Using depositions taken before issue joined (r. 12) 468 Order XX. (Preliminary accounts and inquiries) .... 468 Order XXI. (Setting down and hearing), Subpana to hear judgment how to be issued (rr. 1 — 5), advancing fore- closure causes (r. 6) . ' 470 Striking out abated causes, &c. (rr. 7, 8) 471 Causes set down oti further consideration (rr. 9, 10), solicitors \si attend heaxxag- (tt. 11, 12), stand-Mg over (t. 13) .... 472—474 Order XXII. (Taking bills pro oonfesso). Taking bill pro eonfesso after taking defendant upon altachmemi (r. 1), when defendant aiscoracfa (r. 2), when defendant appears (r. 8), or has appearance entered for him (r. 4), or submits (r. 5) . 474 — 476 Process of taking biU pro eonfesso, sequestrating, &c. (rr. 6 — 16) . . 479 Order XXIII. (Decrees and orders). Form of decree (rr. 1 — 10), saving rights of absent parties (r. 11) 484-490 Defendant not appearing (r. 12), or plaintiff dismissing bill (r. 13) . . 490 Inquiries in decree, just allowances, &c. (rr. 14— 16) .... 491 Orders onpetitiou of course (r. 17) 492 Binding absent persons by notice of decree (rr. 18 — 20) . . .492 Clerical mistakes (r. 21) 493 Conditional decrees (r. 22) 494 Filing original petitions, administrations, &o. (r. 23) . . . . 494 Inrolling decrees (rr. 24 — 26), caveat against inrohnent (r. 27), and inrolment after five years (rr. 28, 29) 495—498 Order XXIV. (Eeceivebs), Recognizances (r. 1), passing receiver's accounts (rr. 2 — 4) . . . 498 XIV TABLE OF CONTENTS. PAGB Obdbk XXV. (Injunotions) 503 Oedbk XXVI. (Stop okders) ... 506 Order XXVII. (Distringas) 508 Order XXVIII, (Subp(enas) 510 Order XXIX. (Process to enforce decrees and oedbks), ■Decrees enforced against persons parties or not parties (rr. 1, 2), attach- ment, and sequestration (rr. 3, 4), writ of assistance (r. 5), fieri facias, elegit, and venditioni exponas, &c. (rr. 6 — 13) . . • 513 Order XXX. (Process generally). Serjeant-at-arms, habeas corpus, &o, (rr. 1 — 5) 519 Order XXXI. (Proceedings to reyerse, alter, ok explain decrees AND orders), Time for rehearing (r. 1), staying proceedings pending appeal (r. 2), petition of appeal and deposit (rr. 3 —8) .... 520 — ^§23 BiU of review (r. 9), supplemental bill in nature of (rr. 10, 11), deposit, &c., on bill of review (rr. 12— U) 524—526 Order XXXII. (Revivor and sitpplbment) 626 Order XXXIII. (Motions), Form and service of motions (rr. 1 — 3) 528 Motions for deoree (rr. 4 — 9) 533 Motiotis to dismiss bills (r. JO), time for (rr. 11 — 13) .... 534 Order XXXIV. (Petitions), Service of petitions (rr. 1, 2), affidavit of no incumbrances (r. 3) 539 — 543 Order XXXVT (Proceedings in Chambers), BtMsiness in chambers (r. 1), summons (rr. 2 — 8), appearance (rr. 9 — 11) 543—546 Claimants not coming in under advertisement (r. 12) .... 547 Conduct of sale in chambers under decree (r. 13), further consideration in chambers (r. 14), sumtnons to proceed under deoree (rr. 15, 16), settling deed where parties differ (r. 17), serving summons to pro- ceed (r. 18), further accounts or inquiries ordered (r. 1 9) . 547 — 650 Solicitor appearing for a class in chambers (rr. 20, 21) . . . 551 Time for prosecuting proceedings in chambers (rr. 22, 23), summons and appointment book (rr. 24, 25), furnishing copies (r. 26) . . 652 Evidence in chambers (r. 27, 28), mtnesses (rr. 29 — 31) . . . 554 Filing and entering orders (r. 32), accounis (r. 33), sarchairgimg account- ing party (r. 34) 656 Advertising for claimants under decree (rr. 35—44), apportionment of interest, &c. (r. 45) 556 — 558 Certificate, contents and form (rr. 46—48), rqeeted or adopted by- judge (rr. 49—51), varied (r. 62), signed and filed (rr. 53—56) . 559 Register of proceedings (r. 67), vacation business (rr. 58, 69), scamdal (r. 60), powers of judges (r. 61), as*o tmme, (r. 62) . . 661, 562 Order XXXVI. (Copies), Office copies (rr. 1, 2), copies of biUs of costs, affidavits, &c., by solici- tors and parties (rr. 3 — 13) 663 Order XXXVII. (Time), Time for service (n-. 1, 2), demurrer (r. 3), answer (r. 4), voluntary answer (r. 5), answer to amendments and exceptions (r. 6), volun- tary answer to amendments (r. 7), extended time (r. 8) , . 566 — 569 Time computed hydays (r. 9), months (r. 10),. weeks (r. 11), when offices closed (r. 12), vacation (r. 13) 569 Time does not run where security for costs is not given (r. 14), or in long vacation (r. 16), or in case of default (r. 16), power to enlarge time (r. 17) . . . . . . ' . . . . 570—672 Order XXXVIII. (Solicitor's fees) 572 Order XXXIX. (Court fees) ^ 673 Order XL. (Costs, charges, and expenses generally). Taxing masters ,,,........ 575 Taxing masters' powers, &c. (rr. 1 —3) .'.'.! .' 575—577 Costs of guardian ad litem (r. 4), pauper (r. 5) . . . 577 579 TABLE OF CONTENTS. XV Security for costs (r. 6) 57^ 5gQ Costs of amendments, unnecessary pleadings, &c., in court or in chambers, impertiuent matter (rr. 7—11), of separate answers, &c., by same solicitor (r. 12) 681—583 Costs of exceptions submitted to (r. IS), cross bill (r. li), of appear- ance entered for defendant (r. 15), appearance oi formal party (r. n J-^K- • , • ,. 583—585 Costs of counsel settling affidavits (r. 17), Of written bill (r. 18) Of copies ofbiU(r. 19) . , 585 Costs of two or more counsel (r. 20) ' '. 535 Cost of cause struck out (r. 21), costs of day (r. 22), abandoned tnotion ^ — 1—4 — VI. — 1—3 392—395 — — 6 — 5 — XIV. — 10 447 — — 5 — 6 — VI. — 4 395 — — 5 — 9, 12 — VI. — 5 395 — — 5 — 14 — VI. — 9 397 — — 5 — 15 — VI. — 11 397 — — 5 — 16 — VI. - 6 396 1838 — 12 — — IX. — 19 416 1839 — 9 — 4 — XXI. — 6 472 — — 9 — 5 — XX. 468 — — 10 — 1 — XXIX. 6 516 — — 10 — 2—5 — XXIX. — 7-10 516, 517 — Dee. 7 — — XXIII. — 4 486 1841 Apr. 3 — — XXVI. — 1, 2 506, 507 — Aug. 26 — 6 — XXX. — 5 520 — — 26 — 7 — X. — 10 426 — — 26 — 9 — XII. 6 437 — — 26 — 10 — XXX. — 4 520 — — 26 — 13 — XXIX. — 6 515 — — 26 — 15 — XXIX. — 2 513 — — 26 — 16 — XV. — 3 453 — — 26 — 23—27 — X. — 11-15 427-429 — — 26 — 29 — XL. 16 584 — — 26 — 31—32 — VIL — 1, 2 398, 399 — — 26 — 36,37 — XIV. - 8,9 446 INCORPORATED ORDERS AND REGULATIONS. XXI Orders Abrogated. Incorporated into Pages of Text. 1841 Aug. 26 Order 38 Order XV. Rule 4 453 - 26 — 40 — XXIII. — 11 490 — 26 — 42 — XIX. — 6 467 — 26 — 44, 45 — XXIII. — 12, 14 490, 491 , — 26 — 46 — XUI. — 10 612 — 26 — 47 — XL. — 24 588 — 26 — 49 — XXXII. 3 627 — 26 — 60 — XXXI. — 3 523 Nov. 11 — 2 — VI. — 2 395 , — 11 — 5,6 VI. - 6,6 395, 396 — 11 - 7 VI. — 8 397 — 17 — 1-4 XXVII. — 1—4 508—510 Deo. 10 — XXVII. — 2 609 1842 April 11 — 3 — III. — 8 389 - 11 — 6 — XXX, — 4 520 __ — 11 — 6 — XL. — 24 588 __ — 11 — 11 — XXIX. — 3 613 — 11 — 12 — XXIII. — 10 489 „ Aug. 5 — VI. — 11 397 Oct. . 26 — 1 — I. — 40 380 — 26 — 3,4 — I. — 35-37 378, 379 — 26 — 5 — XVI. — 8 486 — 26 — 6 — I. — 38, 39 380 ^__ — 26 — 7 — XV. — 6 454 — 26 — 8 I. — 43 380 — 26 — 9 XL. - 1,2 575, 576 — 26 — 12—14 — XL. — 25-27 588, 589 — 26 — 15 — XL. - 3 577 — 26 — 16—21 — III. — 1—6 384-388 • — 26 — 23 — III. — 9 389 — 26 — 24 — XVI. — 3 456 — 26 — .25 — III. — 10 389 — 26 ~ — 26 — XIX. — 7 467 — 26 — 28 — XL. — 4 677 — 26 — 30 — I. — 52 382 1843 Mar. 17 — XXIII. — 24 495 1844 Dec. 6 — XII. — 6 436 1845 May 8 — 5 — V. — 1-6 390—392 — 8 — 11 — XXXVIT. — 9—14 569, 570 - 8 — 16 XXXVII. — 1 506 — 8 Ord. 16, Art. 1 XXVIII. — 9 612 — 8 — 16, — 2 X. - 17 430 — 8 — 16, — 3 X. — 3 420 — 8 — 16, - 5 — X. — 16 430 — 8 — 16, — 10 XXXVII. — 3 666 — 8 — 16, — 15 XXXVII. — 6 667 — 8 — 16, — 17, 18, 19 XIV. — 14-17 448, 449 — .8 — 16, —21 — XLII. — 6 611 — 8 — 16, — 32, — 33 — IX. — 10, 11 412 — 8 — 16, — 34 — XXXIII. — 11 637 — 8 — 16, — 34 — IX. — 17 416 — 8 — 16, - 37 — XXXIII. — 10 634 — 8 — 16, — 38 — XXXVII. - 7 568 — 8 — 16, — 39, 40, 41 — XXXIII. — 12 637 XXll TABLE OF ABROGATED AND Orders Abrogated. Incorpotated into Pages of Text. 1845 May 8 Ord. 16, Art. 45 Order XXI. Rule 1 470 — 8 — 16, — 45 — XXXIII. — 10 534 — — 8 — 16, — 46 — XXT. — 5 471 — — 8 — 16, — 47 — XXXIII. — 2 632 — — 8 — 16, - 47 — XXXIV. — 2 642 — — 8 — 16, — 48 — VII. — 3 400 — — 8 — 16, — 48 — . XXXTII. — 3 532 — — 8 — 16, — 49 XXII. — 1 474 — — 8 Order 18 — XXXVII. — 8 608 — — 8 — 20, 21 — XXXVII. — 17, 18 572 — — 8 — 24 — I. — 37 379 — — 8 — 24 — XXVIII. — 2 511 — — 8 — 25 — XXVIII. — 5 611 — — 8 — 26 — IX. — . 21 416 — — 8 — 26 — XXXIII. — 7 634 — — 8 — 27 — XVI. — 15 459 — — 8 — 28 X. 18 430 — — 8 — 29—31 X. 4, 6 421, 422 — — 8 — 32 VII. __ 3 400 — — 8 — 33, 34 — X. — • 7,8 423 — — 8 — 34 — XXVIII. — 8 512 — — 8 — 36 — XL. 15 584 — — 8 — • 86 — X. — 9 426 — — 8 — 87 — X. — 16 430 — — 8 — 44 — XIV. — 12-18 447—449 — -^ 8 — 61 — XLII. — 6 611 — — 8 — 61 — XLII. — 8 612 — • — 8 — 52—58 — XIII. — 1—7 438-440 — — 8 — 63 — XXTI. — 4 477 — — 6 ■ — 64, 65 — . IX. — 8, 9 410-412 — — 8 — 66—69 — IX. — 13-16 413-415 — — 8 — 70 — IX. — 24 417 — ■ — 8 — 70 — XXXIII. — 11 837 — — 8 — 72-75 — XII. — 1—4 433—436 — — 8 — 76—92 — XXII. — 1—17 474—483 — — 8 — 93 — XVII. 2 462 — — 8 — 110 Regulations as to fees I. xxxiii — — 8 — 114, 115 Order XXXIII. Rule 10-12 489, 490 — — 8 — 116 — XXI. 1 470 — — 8 — 117 — XXIII. 13 491 — ■ — 8 — 119 — XXIII. 22 494 — — 8 — 120 — XL. — 32 690 — — 8 — 122 — XL. , 9 581 — — 8 — 123-124 — XL. 37-38 594 — — 8 — 125 — XL. 14 584 — — 8 — 126 — XVIII. — 1 463 — — 8 — 128 — XVIII. 2 464 1846 Jan, 31 — XXX. 3 520 1847 ■ April 13 — IX. 12 418 1848 June 10 — 1—8 XLI. 1—9 695—597 1849 Deo. 10 — XL. 5 578 1850 Feb. 23 — — XXI. 2 470 — — 23 • — ■ — XXI. 9 472 — June 3 — 1 — XXXV. 22 552 — — 3 — 2 — XXXV. 20 661 — — 3 — 6 — XXXV. 10 647 *"" — 3 - 7,8 — XL. — 31 690 INCORPORATED ORDERS AND REGULATIONS. XXUl Orders Abrogated. Incorporated into Pages of Text. 1850 June 3 ■ Order 9 Order XL. Eule 10 682 3 — 14 — I. — 83 377 July 4 — — I. — 17 373 Nov. 2 — 4 — xxxvn. — 13 570 . , _ 2 — 6 — XVI. — 5 486 2 — 7 — XLII. — 5 611 , 2 — 8 — XVI. — 6 456 2 — 9, 10 — XVI. — 8—9 457 2 — 11 — XVI. — 11 458 2 — 12 XVI. — 10 457 2 — 13 XLII. — 6 611 ■ 2 — 14—20 . XVI. — 12-18 468—460 2 — • 21 — XVI. — 14 459 2 — 22 — XVI. — 19 460 2 — 23 — XVI. — 2 456 __ 2 — 24, 25 — XVI. — 20-21 461 __ 2 — 26 — . VI. — 10 397 2 — 27 — VI. — 6 396 1851 Oct. 29 — 1 — VI. — 1 393 29 — 7 — VI. — 5—6 396-396 1852 May 4 — I. _ 11 370 7 — XLI. — 3 696 July 28 — I. — 4 368 Aug. 7 IstSet. Ord. 1 — • IX. — 3 409 7 _ _ 2 XL. — 18 585 7 — — 3 — , IX. — 4 409 __ 7 — — 5 — , XL. — 19 585 7 — — 6 — ^ IX. — 5 409 — — 7 — — 7 — — 9- 12 — IX. — 18 415 ~ ~ 7 _ IX. 20-23 416—417 7 — — 13 XXVIII. 10 512 7 — — 14 — IX. — 2 408 „ 7 — — 16 — XL — 1 431 7 — — 16 . — XI. — 2 431 7 — — 17 — XL — 4,5 432 7 — — 19 XXXVII. — 4 567 7 — — 19 XXXVII. — 8 568 7 — — 20 XL — 3 432 7 — — 21 XV. — 1 450 7 — — 22- 27 XXXIIL — 4—9 633, 534 7 — — 28 XVII. — 1 461 7 — — 29 XXXIIL — 13 538 7 — — 30 XL. 11 683 7 — — 34 XIX. — 9 467 -.. 7 — — 35 XIX. — 8 467 7 :- — 36 XIX. — 9 467 7 - — 37 XIX. — 9 467 7 — — 38 XIX. — 10 467 _ 7 — — 40, • 41 XXIII. — 18, 19 492, 493 7 — — 42 XXXV. 3 646 7 — — 43 XXII. — 1,2 526, 627 7 — — 45 XXV. — 503 7 — — 46 — XXXVII. — 17 672 — 7 2d Set. Ord.l — XXXI. — 1 520 XXIV TABLE OF ABROGATED AND Orders Abrogated. Incorporated into Pages of Text. 1862 Aug. 7 2ndSet.Ord.2-6 Order XXIII. Rule 25-28 495- 497 Sept. 7 — — 6 - XXXI. — 1 520 . - 7 Schedule XXXIX. — 3, 4 673, 674 . — 7 Schedule Regulations as to fees K — Oct. 16 Order 1 Order XXXV. Rule 2 646 : — 16 — 2—7 - XXXV. - 4-9 545—547 „ . — 16 — 8 - XXni. — 15 491 — 16 — 9 — XXXV. — 12 547 — 16 — 10 — XLII. — 9 612 — 16 — 11 — XLII. - 11 613 - — 16 — 12 - XXXV. — 13 647 — 16 — 13 — XXIV. — 1 498 — 16 — 15 — XLII. — 13 613 — 16 — 16-20 — XXXV. — 14-19 548— .550 — 16 — 21—24 - XXXV. - 24-27 654 — 16 — 26 — XIX. — 11 467 — 16 — 26 — XXXV. — 30-34 566, 556 — 16 — 31 — XXTV. — 3 502 — 16 — 32 — XXIV. — 4 502 — 16 — 33—49 — XXXV. — 35-51 556—560 — 16 - 50 - I. — 44 331 — 16 — 50 — XXXV. — 55 560 — 16 — 61 — XXXV. — 62 560 — 16 — 62 — XXXV. — 56 561 — 16 — 63 ■ — XXXV. — 54 560 . — 16 — 64 — XXXV. — 67 561 -^ 16 — 56—56 — XL. — 28-29 589, 590 — 16 — 57 XLII. — 3 610 — 16 — 58, 59 -^ XXXV. — 61, 62 562 — 25 Ord. 1, Art. 2-4 — XXXVI. - 1-6 662—564 ^_ — 25 — 1, — 5 Regulations as to fees XXXV — 25 — 1, — 6-9 Order XXXVl. Rule 7-10 664, 665 — 25 Order 2 — XX XVI. - 1 562 — 25 - 2,3 — XXXVL — 11, 12 565 __ — 25 — 4 — XXXVIL — 16 571 — 25 — 5 — XXXVL — 13 665 — 25 — 6 — XXXIX. — 3-5 573, 574 — 25 - 7 — XXXIX. — 8 675 — — 25 Shed. I. Pt. 2 Regulations as to fees xlix Nov. 9 Order 2 Order I. Rule 18 373 Deo. 3 — 1 — XXXIX. — 3—5 573, 674 — 3 Sched. I. Pt. 2 Regulations as to fees li Dec. 4 Order 1 — 1 — — 4 — 2 Order XXXIX. Rule 3 573, 674 Deo. 10 — 1 — XXXI. — 5 623 — 16 — 1 — n. — 1-6 383, 384 1853 Mar. 4 — 4 — XXI. — 10 472 — AprU 12 — 6 — XXIII. — 2 485 — June 3 - L - 12 370 — July 26 XXXV. — 69 561 — Kov. 29 ■ Regulations as to fees li — Deo. 9 Order XLI. — 10-13 698 — — 9 Sched. I. Pt. 1. — XLI. — 11 598 1854 Mar. 9 — XXIII. — 9 488 — June 1 Order 1 — XXXVIL — 15 571 — — 1 — 2 — XXXV. — 58 661 -^ — 1 — 3 - XLII. - 4 610 INCOEPORATED ORDERS AND REGULATIONS. XXV Orders Abrogated, Incorporated into Pages of Text. 1854 June 1 Order 4 Order XXXY. Rule 53 560 — 1 — 5-7 — VII. — 5-7 403 — 1 8 — XXTII. — 20 493 — 1 9, 10 Regulations as to fees Tiirxvi — 1 11 Order XL. Rule 17 585 - 1 12—15 — XL. — 33-36 592-694 — — 21 1 Regulations as to fees XXX vi — — 21 — 2 — — li 1855 Jan. 13 4 Order XIX. Rule 3 466 — 13 5 — XIX. — 13 468 — 13 5 — XXXVII. — 15 571 — 13 6 — XIX. — 12 468 — 13 '8—10 — XVIII. — 3, 4 620 Feb. 2 Regulations as to fees xliii July 26 Order XXXIX. Rule 3, 4 573, 574 - 26 — XXXIX. — 4 574 — 26 Regulations as to fees. li Nov. 30 Order 1 Order I. Rule 48 382 — 30 — 2 — I. — 49 382 — 30 — 3 — I. — 50 382 — 30 — 4 — I. — 51 382 1856 Aug. 1 2 - XXXIX. — 6 576 - 1 3 — XXXIX. — 7 675 Nov. 12 — XXXV. — 1 543 Not. 15 1—12 — XLI. — 14-25 599-601 1857 Jan. 30 1 — XXXVIII., XXXIX. 572, 573 — 30 — 1 Regulations as to fees xxxiv — — 30 — 2 — — xxxiv - 30 3 — — xxxiv - 30 4 Order XXXVIII., XXXIX. 572, 573 - 30 Sched . I. Regulations as to fees xxxvii — 30 II. - - IIL xlvii — 30 ID. — — IV. xlvii Feb. 2 Order XXXVII. Rule 2 566 Feb. 26 Regulations as to fees xlvii July 18 Order 1 RiUe XXIII. Rule 10 489 — 18 1 — XXIX. — 3 613 — 18 2—4 — XXIX. — 11-13 518, 519 — — 18 — 5 Regulations as to fees xliv, xlv, xlix 1858 — 12 Order XXXI. Rule 8 524 1859 Mar. 30 — 2—15 — I. — 20-32 374—376 — 30 16 — XXXIV. — 1 539 — 30 17 — XXIX. — 1 613 Apr. 4 1—27 — XLI. — 26-52 602—609 Aug. 22 2—4 — L — 14-16 371, 372 — 22 5—10 — I. — 4-10 368—370 — 22 . 11 — XXIIl. — 8 488 — 22 . 12 XXIII. - 3 485 — 22 13 — XL. — 40 595 — 22 14 — I. — 13 371 — 22 15 — XXIII. — 7 487 — 22 16 — XXIIL — 16 492 — 22 17 — XLII. — 14 613 — 22 18 — XXIII. — 1 484 — — 22 — 19 — XXI. — 8 471 XXVI TABULAR ANALYSIS OP Stat. SO & 31 Vict. c. ii, THE CHANCEEY (lEELAND) ACT, 1867, (with References to corresponding English Acts and Orders printed in the text). SBOTtONS COKKBSPONDING SECTIONS PAGE OF OF lEISH KELATING TO OE RULES. TEXT. ACT. 1—51 New Vioe-Chancellor, &c. 62-65 Bills, interrogatories, and 15 & 16 Vict. 0. 86, ss. 161-169 answers 1—14 66 Eepresentative parties 15 & 16 Vict. c. 86, ss. 42 15 & 16 Vict. 0. 68, s. 43 195-199 66 Proceeding wittout represen- 199—202 ta.tiTe of deceased person 68—69 Motion for decree 15 & 16 Vict. 0. 86, ss. 15, 16 169—171 70 Exceptions to answer 13 & 14 Vict. c. 85, s. 27 130 15 & 16 Vict. c. 86, s. 17 171 71 Production of documents 15 & 16 Vict. c. 86, s. by defendant 18 171-177 72—73 Defendant's concise state- 15&16Viot. c. 86, ss. 19, 177—179 ment and summons to 20 produce documents 74—84 Commissioners of oatJis, mode of swearing an- rl5&16 Vict. 0. 86, s. 21 16 & 17 Vict. c. 78, ss. -! 1-5 15 & 16 Vict. c. 86, ss. 179 230—232 swers, affidavits, &c. 179—182 L 22-25 85 Eeplioation, joining issue 15 & 16 Vict. c. 86, s. 26 182 86 Dismissal for -want of pro- . secution 15 & 16 Viot. c. 86, s. 27 182 87 Interrogatories for exami- nation of witnesses 15 & 16 Vict. c. 86, s. 28 182 88—90 Evidence where issue joined Ord. 5th Feb. 1861, rr. 3,4,9 15 & 16 Vict. c. 86, s. 40 620—623 91 Suiptena for witness on 193 motion, 4c. 92 Ex parte examination on issue joined Ord. 5th Feb. 1861, r. 6 622 93 Production of witnesses for cross-examination Ord. 5th Feb. 1861, r. 19 626 94 Cross-examination before Court on issue joined Ord. 5th Feb. 1861, i. 7 622 95—98 Except in specified cases Ord. 5th Feb. 1861, rr. 10, 11, 16 623-625 99—103 Practice before the exa- 15 & 16 Vict. c. 86, ss. 184—189 miner 81—35 104 Form of affidavit 15 & 16 Vict. u. 86, s. 37 190 105 Time for closing evidence 15 & 16 Vict. c. 86, s. 38 190 106 Court may require oral evi- 16 & 16 Vict. c. 86, s. 39 192 dence at hearing TABULAR ANALYSIS. XXVll SECTIONS OF IKISH KELATING TO COREESPONDING SECTIONS OK RULES. PAGE OF TEXT. ACT. 107 Evidence subsequent to hearing What affidavits may be re- (new) — 108 13 & 14 Viot. c. 35, s. 28 130 ceived at hearing 109 Production of deeds re- ferred to in pleadings (new) — 110 Proceeding in absence of personal representative 15 & 16 Tict. c. 86, s. 44 199 111—128 Special cases 13 & 14 Vict. c. 35, ss. 1—18 15 & 16 Vict. t. 80, ss. 117—125 129—144 Practice in chambers 143—156 11—37 _ 145—150 Administration summons 13 & 14 Vict. c. 35, ss. 126—129 by executors 19—25 151—153 Administration summons 15 & 16 Vict. c. 86, ss. 202—204 against executors 45—47 154 Misjoinder 15 & 16 Vict. c. 86, s. 49 207 155 Declaratory decree 15 & 16 Vict. c. 86, s. 50 208 156 Decree not affecting absent parties Revivor 15 & 16 Vict. c. 86, s. 51 209 157 15 & 16 Vict. c. 86, s. 52 210-216 158 Amendment of bill 15 & 16 Viot. c. 86, s. 53 216 159 Special directions as to accounts 15 & 16 Vict. 0. 86, s. 64 218 160 ARowance pendente lite 15 & 16 Viot. c. 86, s. 57 220 161 Answer to be only an affi- davit on motion for in- junction. Assistance of accoimtants, 15 & 16 Vict. c. 86, s. 59 223 162—163 15 & 16 Vict. c. 80, ss. 42, 159 &c. 43 164 Accidental informality 15 & 16 Vict. C. 86, s. 60 223 165—169 Taxation of costs notwith- (new) standing abatement 170-174 Distringas Ord. XXVII 508 - 510 175—177 Power to make general or- ders (special) — 178—190 Fees and stamps (special) — 191—195 Salaries, suitors' fund, &c. (special) — c»2 XXVIU TABLE OF CASES. A. Ab^sou v. Abadom, 194, 223 Abbott, In re {i L. T. N. S. 576), 16, 22 (18 Beav. 393), 25 Aberdeen «. CHtty, 499 AbergaTenny (Barl), Ex parte, (19 Beav. 153), 37 ■ (6 N. E. 334), 530 Abingdon (Lord) v. ThornMU, 164 Abram v. Ward, 427, 585 Abrey v, Newman, 201 Acaster v. Anderson, 203 Accidental, &c. Insurance Co., In re, 580 &o. Marine Insurance Co. v. Mercati, 680 Acker, In re, 47 Acland v. Gravener, 499 Acomb V. Landed Estates Co., 172 Aeraman v. Bristol Dock Co., 505 Adam, In re, 600 Adams v. Paynter, 428 Adamson, In re, 17 V. Wilson, 505 Adderly v. Smith, 579 Addie's Charity, Ex parte, 54 Adkins v. Bliss, 516 Agricultural Cattle Insurance Co., In re, (3 D. F. J. 194), 144, 150, 162, 154 (11 W. B. 330, 386), .149, 151 Ainslie v. Sims, (17 Beav. 57), 579 ■». (17 Beav. 174), 411 Ainsjrorth v. Alman, 118 Alcan, In re, 425 Alcook, In re, 24 Aldridge v. Westbrook, 453, 552 Alexander v. Osborne, 475 Allan V. Allan, 103 V. Houlden, 400 Allard v. Jones, 505 AUen, In're, (Kay, App. 51), 70 (2 W. N. 11), 47 V, Aldridge, 19 1!. Loder, 423 V. McPherson, 403 V. Williams, 518 Allfrey V. AUfrey (10 Beav. 353), 219 (12 Beav. 620), 460 Alsager (Incumbent of). Ex parte, 54 Alsop V. Bell, 211 ■;;. Oxford (Lord), 593 Alston, In re, 45 Altree v. Horden, 535 V. Sherwiu, 183 Ambrose v. Nott, 611 Ames V. Ames, 533 Amyot, Ex parte, 509 Andenshaw School, In re, 48 Anderson v. Noble, 221 V. Stamp (34 L. J. Ch; 230), 167 . „. (2 H. & M. 576), 529 V. Stather (9 Jur. 1-085), '464 «. (H Jur. 96), 402, . 425 Anderton v. Tates, 191 Andrews, Ex parte (13 L. J. Ch. 222), 25 In re (17 Beav. 510), 17, 19 B. Lockwood, 215 V. Walton (1 M & Cr. 860), 495 — (1 M. & G. 380), 610 Angelo, In re, 79, 96 Angerstein v. Hunt, 506 Anglg-Austrian Bank, In re, 172 Danubiau Co. v. Kogersou (4 L, E. Eq. 3), 263, 611 V. N. S. 87), 505 Annesley v. Simeon, 579 Anning v. Lavers, 206 Anon. (3 Atk. 409), 446 (3 Atk. 690), 475 (9 Hare, xxvii.), 401 (9 Hare, Ixxxiii.), 409 (10 Jur. (3 Ves. 515), 500 (16 Ves. 174), 536 (1 Ves. Jun. 93), 521 (2 Ves. Jun. 832), 435 (2 H. & M. 124), 209 (1 W. E. 115), 420 (1 W. E. 186), 181 In re (8 W. E. 333), 283, 284 TABLE OF CASES. XXIX Anon, (10 W. R. 617), 456 . -.(11 Jnr. 28), 426 (18 Jut. 770), 402 • (1 Jur. N. S. 974), 66 ■ (3 Jur. N. S. 839), 367 — ■ — (5 Jur. N. S. 1124), 366 (18 L. J. Ch. 229), 426 ^ (23 L. J. Ch. 24), 195 (25 L. T. 61), 167, 216 Ex parte (6 N. E. 230), 339 7 V. Bridgewater Canal Co., 505 V. ChristopheT, 464 V. Davis, 444 V. Jolland, 600 ■^ — V. Shaw, 418 Ansdell v. Whitfield, 427 Anstey v. Hohson, 477 Anthony V. Cooper, 476 Archer v. Hudson, 522 Armitage v. Askham, 64 Armitstead v. Durham, 415 Armston's Trusts,' In re, 67 Armstrong, Ex parte, 92 V. Armstrong, 267 • V, Stockham, 181 Arnold V. Arnold (9 Beav. 206), 397 V. (1 Ph. 806), 413 V. Thompson, 636 Arrowsmith, Ex parte (13 Ves. 125), 16 ■ Irire (6 W. K.), 80, 83 (4 Jur. N. S. 1123), 81 Ashmall v. Wood (3 Jur. K. S. 232), 170 V. (4 W. K. 60, 110), 201, 202 Asiatic Banking Co. v. Anderson, 419 Askew V. Millington, 640 ■». Peddle, 494 Askham School (Qovemors of), Ex parte, 48 Aston's Case, 189 Atkins V. Cook (6 W. B,. 381), 678 V. (3 Drew. 694), 680 V. Cooke, 579 Afkinson, In re, 17, 576 V. Parker, 213 Attorney-General v. Alford (4 D. M. &. 843), 68 ■;;. (2 Sm. & GifF. 488), 69 - — . V. Boyle, 266 V. Brandreth, 366 V. Brown, 444 V. Carrington, 436, 591 V. (Lord),591, 693 V. Christchnrch, Oxford, 241, 247 V. Clapham, 179 V. Conservators of the Thames, 497 Attorney-General v. Cooper (3 M. & Cr. 268), 414 — V. (8 Hare, 166), 447 V. (low. B,. 31), 98 V. Cradook, 444 — : V. Donnington Hospital, 428, 451, 465 V. Drapers' Co., 586, 591 0. East Dereham Corn Exchange Co., 172 e. Edmunds, 614 D. Etheridge, 615, 618 V, Exeter (Corporation of), 137 V. Fellowes, 408, 410 V. Fishmongers' Co., 414 ». Foster, 582 — V. Gee, 500 V. Greenhill, 493 V. Haberdashers' Co., 528 V. Hill, 586 V. Hudson, or Hender- son, 465 V. Jackson, 441 V. Knight, 580 V. Leathersellers' Co., 610 V. Leicester (Corporation of), 399 V, Lewis, 465 V. London (Corporation of), 415, 454 V. Marsh, 411 V. Mercers' Co.,cl72 V. Munro, 586 V. Murdoch, 109 i/. Murray, 166 I/. Nethercoat, 413 a. Netheroote, 6 ■„. Mchol, 504 0. Pearson, _399 V. Portreeve of Avon, 217 '■ — V. Bay, 380 V. Kees, 453 V. Bochester (Mayor of), 49, 680 V. Shield, 441 V. Skinners' Co., 680 V. Stamford (Earl of), 418 V. Vig'ro, 500 V. Vint, 866 V. Wakeman, 415 V. Ward, 98 V. Worcester (Corporation of), 451 V. Wright, 530 V. Wyvill, 661 XXX TABLE OF CASES. Attwood V. Banks, S04 Aubrey's Estates, In re, 40 Austin V. Austin, 9 Aveling v. Martin, 434 Ayles V. Cox, 95, 103, 109 B. Back, Expwrte, 88 Backhouse v. Wyld, 496 Badoock, In re, 97, 102 Baddeley v. Curwen, 454 V. Harding, 579 Bagot, In re, 36, 47, 60, 52 Bagshawe, In re, 1 8 Bailey, In re (34 Beav. 392), 15, 26 (3 W. B.), -'s Settlement, In re, 461 - V. Birchall, 30 - V. CoUett, 124 ■ V. Dunkerley, 179, 459 • V. Oundry, 580 Baillie v. Blanchet, 424 V. Jackson, 180 Baily v, Eenrick, 451 Bainbrigge v. Baddeley, 415, 417 V. Blair, 501 — V. Moss, 449, 678 V. Orton, ii. Baines v, Sidge, 162 Baker, In re (32 Beav. 526), 22 (11 W. R. 1127), 194 V. Deao, 431, 478 ». Holmes, 402 V. Mellish (11 Ves. 68), 442, 566 ®. Sowter, 648 47 Baldwin v. Darner, 536 Balfour v. Farqubarson, 460 Balguy V. Chorley, 496 Ballard v. Catting, 405 Ballinrose Workhouse, In re, Bampton v. Birchall, 443 Bancroft v. Wardour, 442 Band v. Sandle, 201 Banks V. Banks, 500 V. Cartwright, 219 Barber, In re (14 M. & W. 720), 21 (1 Sm. & G. 118), 72 (9 Jur. N. S. 1098), 68 — ■- -d. Barber, 441, 442 ■ V. Walker, 212 Barclay v. Eussell, 435 Bardin's Will, In re, 237 Barham v. Longman, 410 Barker, In re, VJ .— V. Peile (2 Dr. & Sm. 340), 69 V. (11 W. E,. 668), 420 V. (12 W. E. 460), 536 Barkley v. Reay (Lord), 428 Barlow ». Gains, 499 V. McMurray, 217 V. Simcock, 483 Barnard, Ex parte, 71, 72 In re (2 D. M. G. 369), 18 (6 Ir. Ch. B. 133), 65 i>. Hunter, 172 Barned's Banking Co., In re, 172 Barnps, In re (Seton, 807), 100 (10 W. E.-464), 404 (5 L. T. N. S. 587), 463 V. Ridgway, 162, 317, 412 V. Taylor, 441 V. Tweedale, 511 V. Wilson, 496 Barnford v. Wates, 531 Baton, In re, 499 Barrett, Ex parte (3 D. & Oh. 731), (15 Jur. 3), 86 (21 L. J. Ch. 20 416), V. Buck, 469 V. White, 213 Barrington, In re (1 J. & H. 142), 283 (27 Beav. 272), 401 Barrow, In re, 21, 25 Barrs v. Fewkes, 522 Barry v. Cane, 436 V. Croskey, 162, 165, 172, 421 Bartholomew, In re, 68 Bartlett, Ex parte, 9 V. Bartlett, 88 V. Harton, 530, 536 Bartley v. Bartley, 101 Barton, Ex parte, 25 V. Barton, 208, 491 «. Chambers, 532 V. Whitcombe, 420 V. Whitcome, 423 Bartrum, In re, 18 Barwell «. Bavwell, 26 Basham v. Smith, 162 Bate V. Bate, 45S Bateman's Settled In re, 599 39, V. Cook, 180 V. Cooke, 197 V. Margerison(6Hare,496),399, 428 ». (2 W. R. 607), 131 Bates V. Christ's College, Cambridge (Mas- ter of), 176, 454 V. Frost, 434 Bath River Co. v. Willis, 43 Bathnrst, In re, 100, 304 Battersby's Trust, In re, 101 Bauer v. Mitford, 522 Bangham, Ex parte, 73, 420 Baum'an v. Matthews, 262 Baxendale v. W. Midland Rly. Co., 223 TABLE OF CASES. XXXI Baiter's Will, In re, 92 Bajley, In re, 25, 26 V. Bayley, 436 ' V. Cass, 174, 191 Saylies v. Baylies, sOO Bayly v. Bayly, 404 Beale v. Symonds, 84 Beaman v. Bodd, 366 Bean v. Griffith, 398 Bear v. Smith, 131 Beardshall v. Oheetham, 20 Beardmore r. Gregory, 208, 214, 217 Beauohamp (Barl) v. Winn, 214, 215 Beauclerk, In re, 73 Beaufort (Duke of) v. Ashburnham (Lord), 692 Beaufoy, In re, 42 Eeavan, In re, 20 V. Burgess, 378 ■ V. Carpenter, 410 V. Mornington, 498 Becke, In re, 18, 21 Beckitt V. Bilbrough, 408 Beddoes, £x parte, 49 Bedford, In re, 73 V. Bedford, 214 (Duke of) 1). Marquis of Abercorn, 239 Bedminster Charities, In re, 582 Bedson, In re, 19 Bedwell v. Prudence, 627 Beeehing v. Lloyd, 208 Beleher v. Belcher (2 Dr. & Sm. 144), 147, 393 - ■». (13 W. R. 913), 393 - V. Whitemore, 469 Bell, In re, 17, 397 ». Cade (2 J. & H. 123), 118, 124 V. (10 W. E. 38), 208 V. Hastings, 430 V. Hornby, 491 V. Johnson, 187 Bellamy v. Cookie, 207 Bellehamber v. Giani, 687 Belsham v. Perceval, 212 Belton, Ex parte, 387, 613 Benbow v. Da vies, 481 Bendyshe, In re, 68, 72, 193, 253, 541 Bennett, Ex parte (15 Jur. 213), 66 In re (8 Beav. 467), 25 — (18 Jur. 33), 150, 158 V. Baxter, 554 V. Biddies, 542 V. Hill, 18 V. Honeywood, 414 V. Lytton, 272, 280 V. Powell, 423 Benson v. Hadfield, 448 Bentley v. Bentley, 150 V. Craven, 221 V. Mercer, 539 Bentley v. Bobinson, 401, 402 Benyon, In re, 48, 50 Bernard, Ex parte, 426 Berndston v. Churchill, 491 Berry, In re, 70 Bertie v, Abingdon (Lord), 502 Bertolacci v. Johnstone, 413, 414 Berwick (Mayor of) v. Murray, 400 Besemeres v. Besemeres, 194 Besley, Ex parte, 521 Bessant v. Noble, 201 Betagh v, Concannon, 215 Bethole v. Casson, 173, 174, 175 Betts V. Clifford, 506, 531, 536, 586 V. De VitrS, 361, 608 V. Menzies, 176 Bevan, In re, 18 Bicester (Churchwardens of). Ex pa/rte, 37, 38 Bickford«. Chalker, 148 Skewes, 426 Bicknell v. Bicknell, 217 Biddulph V. Lord Camoys (7 Beav. 580), 425 V. (9 Beav. 548), 401 „. (9 Beav. 155), 456 V. Dayrell, 401 Bierten Charity Land, In re, 98 . Bigg, In re, 66 Biggs V. Penn, 399 Bignold, /» re, 17, 22, 24 V. Cobbold, 515 Billing, In re, 26 V. Coppock, 16, 19 BUston Curacy, In re, 396 Bingham v. Hallam, 17 Bingley, In re, 104 V. Marshall (6 L. T. N. S. 682), 1 94 (11 W. E. 1018), 505 Binns v. Heys, 26 Binn's Executors v. Hey, 18 Birch, In re (2 K. & J. 369), 73 (10 Jur. N. S. 673), 41 Birch's Legacy, In re, 67, 542 V, Cropper, 100 Bird V. Heath, 494 v. Hustler, 412 Birkenhead Dock (Trustees of) v, Chester and Shrewsbury Ely. Co., 164 Birkenhead Dock (Trustees of) v. Laird, 209, 265 Birmingham Blue Coat School, In re, 290 , Wolverhampton, and Dudley Co. , In re, 57 Birtle's Settled Estates, In, re, 237 Bishop V. Bishop, 290 Bishop's Waltham Ely. Co., In re, 857 Blackmore, In re, 23 V, Glamorganshire Canal Co., 464 XXXll TABLE OF CASES. Blackmore v. Howett, 402 Blagrare v. Routh, 19, 26 Blake's Settled Estates, In re, 246, 600 V. Blake, 395 Blakely v. Blakly, 203 Elakeney v, Dufanr, 579 Blakesley, In re, 19 Blanchard, In re (3 D. P. J. 131), 104 (9 W. R. 647), 99 Bland v. Davidson, 21 1 V. Davison, 211 V. Lamb, 404 BlaDdy v. De Burgh, 15 Blann v. Bell, 137 Blanshard v. Drew, 536 Blaxland v. Blaxland, 158 Blenkinsop «. Blenkinsop, 425, 426 Bligh V. Tredgett, 166 Blinston v. Warbnrton, 133 Bliss V. Putman, 201 Bloomar, In re, 84, 97 Bloxham v. Whipham, 155 Bloxsome v. Ohichester, 615 Bloye, In re, 68 Bloye's Trust, In re, 70 Bluck V. Colnaghi, 536 Blunt, In re, 71, 73, 507 V. Clitberce, 600 . 1). Heslop, 15, 26 Boddington ■». Woodley (5 Beav. 555), 403 -^ V. (9 Sim. 380), 411 V. (12 L. J. Oh. 15), 464 Boden's Mortgage Trust, In re, 88 Bodger v. Bodger, 170, 622 Boebm v. Wood, 500 Boger, In re, 163 Bogg V. Midland Ely. Co., 209 Boldero v. Saunders, 451, 453 Bolton V. Corporation of Liverpool, 176 V. Eidsdale, 216 ■ V. Stannard, 198 Bond V. Barnes, 394, 395 Bones v, Angier, 163, 419 Bonfield v. Grant, 402 Bonnardet v. Taylor, 173 Bonser v. Bradshaw, 30 Bonsor v. Bradshaw, 267 Booth V. Booth (2 Atk. 343), 611- V. (1 Beav. 130), 692 V. Leycester, 446 Bootle V. Blundell, 267 Boreham v. Bignall, 430 Borough V. Whlohoote, 466 Borrodaile v. Nelson, 593 Bothomly v. Squire, 441 Bothomley v. Squire (7 D. M. G. 246), 539, 670 V. (1 Jur. N. S. 694), 448 Boncioault d. Delafield (12 W. K. ' 8), 212 V. (12 W. R. 1025), 215 Boufil V. Purchas, 215 Boughton, In re, 245 Bonrdillon v. Boaddeley, 627 Bourke, In re, 103 Bourne ». Buckton, 522 Bousfield V. Mould, 462 Boutcher v. Branscombe, iv. Bouverie, Ex parte, 37, 52 Bovill V. Cowan, l75 V. Goodier, 265 V. Smith, 453 Bowen, In re, 20, 513 V. Pearson, 175 V. Price, 432 Bower v. Cooper, 515 Bowes, In re (12 W. R. 569), 366 (12 W. R. 929), 50 V. Fernie, 174 ■ V. Cooper, 581 Bowman v. Bell, 499 Bowmar, In re, 100 Bowra v. Wright, 97 Bowser v. Maclean, 441 Bowyer v. Beamish, 215 Box, In re, 283, 284 Boyce, In re (12 W. R. 359), 81, 83 (15 W. R. 827), 290 Boycott, In re, 100 Boyd V. Heinzelman, 611 V. Moyle, 428 Boydell v. Mahby, 207 Boyle, In re (5 D. M. G, 540), 25 Boyse v. Cockell, 179, 458 V. Colclough, 191 Bozanquet v. Marsham, 446 Bozom V. Bollaud, 336 Brace v. Taylor, 408, 442 Bracey, In re, 17, 22 Bradberry v. Brooke, 404 Bradish v. Ellames (3 W. E. 632), 311 V. (16 W. R. 380), 323 V. (10 Jut. N. S. 251), 322 Bradley v, Bevington, 267 V. Munton, 109 •». Stelfox, 393 Bradshaw, Exparte (16 Sim. 174), 47 (2 D. M. G. 900), 80, 91 V. Fane, 50 Bradstock v. Whatley (6 Beav. 61), 465, 456 V. (7 Beav. 346), 421 Brady, In re, 25 Brain v. Brain, 1 62, 574 Bvaithwaite, Ex pwrie, 49 V. Kearns, 194 TABLE OF CASES. XXXlll Brancker, In re, 97 BraQoker v. Carne, 178 Brandon, In re, 50, 52 V. Brandon (1 Dr. & Sm. 16), 500 V. — (2 Dr. & Sm. 305), 41, 46 (7D.M.e.365),497 (7 W. R. 250), 501 (3 N. K. 287), 213 ■ V. V. Branmer, In re, 48, 601 Branson, In re, 17 , Brasher's Trnsts, In re, 37 Brass's Trusts, In re, 91 Brattla v. Waterman, 414 Bray v. Ackers, 435 V. Woodran, 470 Braye (Baroness of), Ex parte (9 ^(u^e, -vii. ), 543 (11 W. E. 338), 48, 50, 51 Breadalbane (Marqnis of) v. Marquis of Chandos, 446 Brealy's Settled Estates, In re, 253 Bredicot (Vicar of), £x parte, 39 Breed v. Caffoll, 99 Breeze v. English, 469 Brendlyn v. Ord. 446 Brennan v. Preston, 185, 186 Brent, In re, 72, 366 Brewster v. Thorp, 402 Biiant v, Dennett, 542 Brickwood v. Harvey, 475 Bridger v. Penfold, 156 Bridget v. Hames, 197 Bridgewater v. De Winton, 176, 452 Bridgman, In re, 98, 99 Brierly v. Ward (15 Jur. 277), 480 (20 L. J. Ch. 46), 481 Briggs V. Beale (4 N. B. 261), 413 V. (12 W. R. 934), 539 Bright V. Legerton, 171, 485 Brignall ». Whitehead, 215 Brigtocke v. Eoch, 410 Briscoe, In re (2 D. J. S. 249), 50 (2 Dru. &. War. 501), 541 (4 W. R. 311), 290 Bristow V. Whitmore, 209 Bristowe V. Needham (2 Ph. 190), 500 V. (11 W. E. 926), 500 British Empire Shipping Co. v. Somes, 223 Britten v. Britten, 367 Broad wood. In re, 75. Brooas v. Lloyd (21 Beav. 520), 185 V. (23 Beav. 129), 186 Brocklesby, In re, 68 Brodie v. Johnson, 264 Broke (Lord), Ex parte, 49 Bromley, In re, 18 V. Williams (32 Beav. 177), 197 V. (1 N. R. 413), 198 Bromley v. Bank of England, 418 Brook V. Biddall, 611 V. Brook, 100 Brooke, In re, 51 V. Brooke, 212 V. Lord Mostyn, 521 V. Morrison, 425 V. Todd, 472 Brooker v. Brooker, 204, 499 V. Smith, 419 Brookfieldu Bradley, 494 Brookman, In re, 641 * Brooks V. Brooks, 17 V. Levey, 180 V. Jobling, 402 Brookbank v. Higginbotham, 393 Broughton v. Lashmar, 491 Brown, In re (6 Ely. Ca. 733), 37 (29Beav.401), 118, 210, 211 r- (11 W. R. 19), 260 ■ V. Dawson, 406 V. De Tastet, 492 V. Downes, 444 V. Fenwick, 50 . V. GeUatly, 583 V. Home (8 Beav. 607), 475, 479 V. (10 Beav. 400), 482 V. Keating, 455 V. Lee, 569 V. Robertson, 529 V. Eutter, 538 7- V. Stanton, 426 Browne, In re, 25, 26 V. Loekhart, 471 V. Smith, 491 Brownsword v. Edwards, 441 Browse, In re, 393, 396 Bruce v. Willis, 43 Brniton v. Birch, 200 Bnimpfit V. Hart, 194 Brunswick (Duke of) v. Cambridge (Duke of), 452 Bryan v. Mansion, 489 V. Wastell, 414 Bryson v. Warwick and Birmingham Canal Co., 189 and Napton Canal Co., Buck, Ex parte, 54 Buckeridge v. Whalley (6 W. E. 180), 153 .0, (10 W. R. 613), 523 V. (2 N. R. 404), 498, 521 Buckley, In re (17 Beav. 110), 66 (Joh. 700), 70 V. Cooke, 188, 189 V. Powell, 242 Bucks Rly. Co., In re, 49 Buckmaster v. Buckmaster, xlviii. Budge V. Budge, 535 TABLE OP CASES. Bugden v, Soutli, 176 Bulkeley v. Eglintdn (Earl of), 100, 110 V. Hope, 120 BuU V. Falkner, 436 V. Withey, 435 Bullin V. Arnold, 148 Bunbury's Settled Estates, In Re, 60 Bunbury v. Bunbury, 44.6 Bunn, Ex parte, 160, 152 V. Bunn, 176 . Bunting v. Marriott, 281 Bunyan v. Mortimer, 435 fiurbridge v, Robinson, 174 Buroli V. C(?ney, 399 «. j,ich, 407 Barohall v. Giles, 681, 582 Burden, In, re, 249 Burke, In re (1 Ball & B. 74), 602, 530 , ■' (9 Jnr. N. S. 717), 70 ■ V. Hutchinson, 680 Bumell's Estate, In re, 51 Burnell V. Martin, 611 Biirnie v. Getting, 67 Burnside o. Mayne, 475 Burrett, In re, 641 Burry Port Co. ■». Bowser, 403 Burt, In re, 97, 110 V. Sturt, 124, 133, 208 Burton i>. Robertson, 167 . 1). Shaw, 418 ®. Tebbutt, 422 Bush, In re, 15, 16 V. Watkins, 131 Butchard v. Dresser, 496 Bute V. Eden, 485 Bute's (Marquis of) Will, In re, 85 Butter V. Gardner, 403, 531 V. Matthews, 431, 462, 475, 476 Butterfield, In re, 62 Bntterworth v. Bailey, 217 Byam v. Byam, 101, 209 V. Sutton, 200 Byde v. Masterman, 582 Byng V. Clark, 569 3yroh, In re, 17 Byrom, In re (5 Jnr. N. S. 261), 48 (7 W. a. 367), 48 Byron, In re, 48 Caddiok, In re (9 Hare, ix.), 147 In re (7 W. R. 334), 252 ■ V. Cook, 210, 587 Caillard v. Caillard, 499 Caldicott V. Baker, 166 Callow V. Howie, 171 Calvert v. Godfrey, 550 Cambottie v. Inngate, 679 Cameron's Coalbrook Ely. Co., In re, 174, 176 Cameron v. Cameron, 424 Campbell, In re (3D. M. G. 585), 15, 27 (18 L. T. 202), 80 's Trusts, In re, 100 V. Andrews, 579 ■ V. Attorney-General, 186 V. Beaafoy, 443 V. Maokay, 441 V. Moxhay, 206 V. Joyce, 449 Cane v. Martin, 20, 386, 387 Canharai). Neale, 503 Cann's Estate, In re, 37 Canning v. Bell, 582 Cant, Mx parte, 109 Cant's Estates, In re, 51 Canterbury (Archbishop of), Ex pavte, 38 Carden, Ex parte, 104 Carew, In re, 17, 21 V. Cooper, 521 V. Davis,. 172 Carlisle (Mayor of). Ex parte, 48 &o., Railway Co., In re, 48 Ex Carmarthen and Cardigan Rly. Co, parte, 57 Carpenter, In re, 96 Carpmael v. Profitt (17 Jnr. 875), 48 V. (23 L. J. Ch. 166), 62 Carr's Settled Estates, In re, 239 Carriok v. Young, 611 Carrington v. Cantillon, 420 Carnack, 466 Carter, In re, 68 V. Barnard, 586 V. Carter, 29 V. Saunders, 208 Sebright, 109 Carthew v. Barclay, 471 Cartwright, Ex parte (3 De G. & Sm. 648\ 109 In re (8 W. R. 492), 166, 541 V. Shepherd, 212 Carven, In re, 18, 19 Carvick v. Young, 471, 511 Carwardine v. Wesklade, 420 Cast V, Peyser, 194 Catholic Publishing Co. v. Wyman (11 W. R. 339), 194 V. (1 N. R. 512), 194 V. (1 N. R. 49), 485 Catlin, In re (18 Beay. 508), 387, 593 (18 Beav. 519), 19, 149, 576, 591, 592, xxxvii. (23 Beav. 412), 26 Catling, In re, 126 Caton V. Lewis, 174 Cator V. Croydon Canal Co., 41 V. Reeves (9 Hare, liii.), 206 V. (16 Jur. 1004), 207 Cattliu, In re, 17 Catton V. Wyld, 261, 262, 263 TABLE OF CASES. XXXV Canty v. Holditch, 194 Oawdross (Lord), ExpaHe, 16 Cawthorne, In re, 68 Cazneau, In re, 68, 72 Chaflfers v. Baker (5 D. M. G. 482), 402, 478 V. (5 W. K. S15), 469 1). Headlam, 201, 202 V. Woolmer, 172 Chalk V. Eaine, 466 ChalUe V. Gwynne, 535 Chalmers V. Laurie, 197 Chamberlain, In re (22 Beav. 285), 72, 366 (10 Sol. Jour. 910), 41 Chamberlain's Charity Estates, In re, 147 V, Chamberlain, 158 Chambers' Settled Estates, In re, (28 Beav. 655), 241, 243 , • (34 Beav. 177), 19 V. White, 36 Champ V. Stokes, IS, 16 Champernowne v. Brooke, 494 Champneys v. Bucban, 415, 417 Chancellor v. Morecraft, 399 Chaplin, In re, 69, 393 Chapman v. Brown, 496 Chappell v. Davidson, 505 V. Gregory, 521 Charlton v. Alien, 491 • V. Coombes, 176 V. Blchmond, 448 V. West, 401 Chatfield v. Berchtold, 162 Chauncey, In re, 81 Chauntler v. Bobinson, 44 Cheeseborough v. Wright, 412, 477, 566, 568 Chelsea Waterworks Co. , In re, 36 Cherry's Estates, In re, 47 Cheshunt College, In re (18 Beav. 608), 65 (3W.R. 638), 36 Chetwynd v. Linden, 446 Chichester v. Chichester, 192, 622 ChifFeriel, Ex parte, 420 Cbilders v. Childers, 217 Chilton V. Campbell, 222 Chinnock v. Ely (Marehioness of), 264 Cholmondeley (Lord) v. Lord Clinton, 217 Chowick V. Dimes, 528 Christ's Hospital v. Grajnger, 415 Christ's Hospital (Qovemois), Ex parte, 48, 49 Christchurch (Dean), Ex parte (23 L. J. Ch. 149), 42 (9 W. K. 474), 48, 642 Christian v. Taylor, 451 Christie v. Cameron (3W. E. 146), 420 V. (4 W. K. 589), 402, 418 Christmas, In re, 21, 375 Christopher v. Cleghorn, 427 Christy, Ex parte, 20 Chubb V. Carter, 221 Chuck V. Cremer, 395 Church V. Marsh, 529 Churchm V. CoUer, 268 Churton v. Frewin(2 Dr. & Sm. 394), 175, 177 V. . (1 L. E. Eq. 238), . 451 V. (15 W. E. 599), 592 Clark, Ex parte (6 N. E.'355), 357 In re (13 Beav.), 20 (1 L. E. Ch. 292), 236, 237 V. Clark (4 Beav. 497)„455 V. (1 Ph. 116), 476 V. (14 W. E. 449), 580 V. FergusBOn, 579 V. GiU, 186, 189, 193 V. Malpas (4 Beav. 554), 492 V. (31 Beav. 554), 591, 692 V. (10 W. E. 613), 462, 671 V. Phillips, 651 — V. Ward, 544 V. Waters, 402 V. Woodward, 367 Clarke, In re (1 D. M. G. 43), 138 (6 W. R. 812), 38 (13 W. E. 401), 37 V. Clark (1 L. E. Ch. 16) 262, 504 V. (13 W. E. 133), 411 ^ V. Clarke (9 Hare, xiii.), 493 V. (1 W. E. 48), 197 V. Derby (Mayor of), 415, 417 V. Dunn and Phelps, 470 V. Jacques, 631 ^ V. Laurie, 223 V. Law, 194 V. Ormond (Earl of), 603 Clarkson v. Barber, 16 • V. Edge, 265 V. Eldridge, 421 Clayton v. Clarke, 166 V. Gh-aham, 367 V. Meadows, 576 V. Eenton, Izxxiv, CIegg». Edmondson, 175, 176 V. Eowland, 126, 199, 218, 647 Clement v. Griffith, 465 Clements v. Beresford, 502 V. Bowes, 208 V. Clifford, 491 282, Cleveland's (Duke of) Harte Estates, In re (1 Dr. & Sm. 46), 51, 401, 507 (1 Dr. & Sm. 481), 246, 248 Cliffe V. Wilkinson, 578 Clifton V. Bentall, 461 Clinch V. Financial Corporation, 175 XXXVl TABLE OF CASES. Clinton, In re, 39 Cliveu. Carew, 171 Glutton, Expwrte, 100 Cochrane t). Fearon, 679 V. Phillipps, 212 Cookturn v. Peel, 290 . V. Raphael, 501 Cookell V. Bacon, 611 Cockerell v. (Jholmeley, 276 Cocks ». Stanley (4 Jnr. N. S. 492), 168 V. (6 W. E. 45), 411 Coe, In re, 69 Cofield, Expwrte, 38 Cohen v. Waley, 290 Coke V. Fountain, 466 Colby V. Hairkins, 400 Cole, /»re, 20 ■ V. Burgess, 503 Colebrook v. Jones, 579 Oolegrave v. Mauley, 386 Coleman v. MeUersh, 219 V. West Hartlepool Harbour Co., 177, 504 Coles V. Gumey, 420 V. Morris (2 W. B,. 237), 170 • V. (15 W. K. 828), 170 CoUard v. Cooper, 505 V. Koe (4 De G. & J. 525), 80 0. — (1 Giff. 311), 212 V. Bo-vre, 521 Collett V. Maule, 366 V. Preston, 413 CoUingwood, In re, 95, 97 Collins, JExpartx, 61 Charity, In re, 39, 366 0. Brotm, 427 V. Collyer (Cr. &Ph. 262), 434 V. (3 Beav. 600), 475 u Cfreaves, 636 V. Nicholson, 17 V. Stutely, 262 CoUinsoni). Collinson, 106, 110 V. Iiister, 212 V. Ballard, 469 Colman ». Northcote, 401 V. Sarell, 494 Colquhoun, In re, 20, 578, 583, 593 Colson, In re, 73, 197 Colyer v. Colyer (1 L. E. Ch. 482), 214 V. (9 W. E. 452), .174 V. (11 W. R. 356), 197 V. (10 W. E. 748), 150, 622 V. Finch, 622 Commerall v. Poynton, 386 Commerell v. Hall, 216, 217, 218 Compton Smith, In re, 587 Congreve, In re, 593 Const V. Barr, 515 Conybeare's Settlement, Ex parte, 100 Conyer's Grammar School, In re (10 Hare, App. T.), 98 : (22 L. J. Ch. 707), 485 Cook V. Broomhead, 474 V. Cholmondeley, 206 V. Earl of EoBslyn, 25 1). Gillard, 16 1). Hall, 184 V. Wood, 425 Cooke, Ex pwrte, 47 V. Cooke, 446 V. Turner, 686 V. Westall, 444, 451 Cookes V. Cookes (2 D. J. S. 526), 150 V. (12 Jur. 294), 521 V. (11 W. E. 871), 219 Cookney ». Anderson, 424 Cookson V. Bingham, 133 V. Lee (16 Sim. 302), 402 V. (1 W. E. 509), 497 Coope V. Carter, 204 Cooper's Settlement, In re, 100, 401 Cooper V. Everitt, 164 V. Ewart, 576 V. Hubbuck, 504 V. Jones, 95 V. Knox, 397 V. Macdonald, 100 V. Powis (Earl), 442, 444 V. PurtOn (1 N. E. 468), 578 V. (8 W. E. 702), 581 W.Taylor, 497 V. Uttoxeter Burial Board, 451 V. Wood, 420 Coorg (Kajah of), i;. Eastlndia Co., 175 Coppard v. Allen, 399 Cope V. Parry, 444, 451 V. Eussell, 423 Copley, Expwrte, 52 Coppeardi). Mayhew, 121, 162, 407 Corbetfc v. Corbett, 406 Cormack v. Beisley, 387 Corry v. Curlewis, 536 Corsellis v. Corsellis, 8 V. Patman, 207 Corser v. Jones, 393 Cory V. Thames Iron Co., 262, 263 Coulson's Trusts, In re, 67 Ooulsting V. Coulsting, 404 Courage v. Wardell, 475 Course v. Humphrey, 651 Courtney v. Stock, 474 Ceurtois v. Vincent, 8 Will, In re, 72, 582 Cousins V. Smith, 506 V. Yasej, 169, 170 Ooveny v. Athill, 410 CoTentry (Justices of). In re, 73, 542 Covington, In re, 68 Cowdell I). Neale, 15, 17 Oowdrayi;. Cross, 614 TABLE OF CASES. XXXVll Cowgill V. Rhodes, 267 Cox V. Bannister, 420 V. Cox, 66 « « V. Foley, 408 V. Slater, Izxziz. V. Stephens (11 W. R. 929), 185, 200, 201, 627 ». (2 N. R. 596), 400 V. Taylor, 201 V. Toole, 296 Coyle V. Alleyne (14 Beav. 171), 458 V. (16 Beav. 568), 457 • Crabtree, In re, 109 Cradook v. Owen, 498, 155, 156 Cr^g, Ex parte, 119, 121, 122 Cramer, £x parte, 200 V. Cramer, 91, 113 Cranse ». Cooper, 67 Creech St. Michael (Ticar of), Sx parte, 51 Cresswell v. Bateman, 213 V. Byron, 386 V. Jackson, 625 Cresyw. Bevan, 447 Crichton's Trusts, In re, 72 Cridland v. Lord de Mauley, 415 Crofts V. Middleton, 186 Crompton v. Huher, 155 Cropper*. MeUersh, 198 Croskey v. European Steamboat Co., 213 V. and American Steam Shipping Co., 152, 223 Cross, In re, 510 Charity, In re, 239 V. Cross, 528 ■ V. Maltby, 155, 156 V. Thomas, 216 Crosse v. Crosse, 423 CroBsley v. Doming, 414, 417 V. Stewart (1 N. R. 426), 176 V. (2 N. R. 67), 455 Crouch V. Waller, 404, 540 Crowder v. Shee, 16 Crowfoot V. Muuder, 211 Cuddon V. Tite, 441 Cuddick V. Cook, 199 Cuff V. Platell, 207 Ctmdee's Estates, In re, 253 Curd V. Card, 469 Curlewis v. Carter, 265 Curlewis v. Whidbome, 395 Currie, In re, 24, 25 Curriers' Co. v. Corbet (2 Dr. & Sm. 356), 261 V. (13 W. R. 1066), 262 Curtis, In re, 8, 9 . V. Piatt, 267 Curzon v. De la Zouch, 440 Cost V. Middleton (3 D. F. J. 33), 239 V. ^9 W. R. 242), 96 Custv. Southee, ii. Cutler, In re, 366 Cutter, In re, 77 D. D'Adhbmab (Viscountess) t>. Bertrand (35 Bear. 19), ,100, 105 Daintree v. Haines, 405 Dakius V. Qarrett, 432 Dalby, In re, 17 Dale V. Atkinson, 122 V. Hamilton, 548 V. Hayes, 366 Dally p. Worham, 456 Dalton, In re (3 Sm. & GifF., 331), 7, 233 (1 D. M. G. 265), 71 Danford v. Cameron, 419, 512 Dangar v. Stewart, 213 Daniell v. Daniell, 545 Darby v. Darby, 118 V. Whittaker, 262 Dare v. Robinson, 19 Darlow v- Simcook, 476, 480 Daruley (Lord) v, London, Chatham, and Dover Rly. Co., 217 Dash wood. Ex parte, 48 Daubney v. Leake, 551 Daubnz v. Peel, 490 , Davenant's Charity, In re, 38 Davenport's Charity, In re, 106 V. Davenport, 505 V. Goldberg, 186, 265, 267 V. Jepson, 605 V. Phillips, 267 V. Rylands, 262, 263, 264 D. Stafford, 373, 485. Daventry Hospital, In re, 630 Davey v. Bennett, 578 V. Durramt, 186, 152, 191 V. Miller, 83 David V. Prowd, S47 Davidson, In re, 81 V. Leslie, 386 — V. Marchioness of Hastings, 418 i>. Mason, 612 Davie, In re, 25 Davies, Ex pa/rte (16 Jur. 822), 109, 677 In re (3 Mac. & G. 278), 110 (9 W. R. 134), 284 Davies v. Bluck, 526 V. Boulcott, 201, 202 V. Combermere, 542 V. Davies, 641 ■;;. Marshall, 504, 506, 685, 591, 692 V. Otty, 194 V. Prout, 470 V. Whitehead, 166 V. Williams, 441 Davis, In re, 36 XXXVIU TABLE OF CASES. Davis V. Barrett (7 Beav. 171), 530 V. (13 L. J. Oh. 304), 600 V. Chanter (2 Ph. 545), 199 (6 W. K. 415), 99 — V. Combermere, 613 — V. Cripps, 582 ■ — V. Dale, 187 — o. Davis, 427 — V. Earl of Dyeart, 19, 686, 591 — V. Hammond, 437 • V. Hole, 426 V. Marlborough (Duke of), 500 V. Nixon, 403, S15 ■». Prout, 428 V. South Eastern Ely, Co., 587 V. ToUemaohe, 433, 569 Davison v. Robinson (4 K. & J. 754), 496 V, . (3 Jur. N. S. 791, 793), 192 Daw V. Eley, 176 Dawkins v. Mortan (1 J. &, H. 339), 170, 194 V. (10 W. B. 339), 155 Dawson, In re (28 Beav. 606), 23, 25 (8 W. R. 564), 26 t (3 N. R.), 98, 100, 101 ■ — V. Jay, 531 V. Newsome, 540 V. Baynes, 501 Das«. Croft (2 Beav. 488), 501 V. (19 Beav. 518), 542 - V. Day, 124 Dean v. Allen, 280 V. Lethbridge, 386 V. Thwaite, 219 Dearden, Jn re (9 Exoh. 210), 26, 593 (8 M. & K. 508), 88 Deavman v. Wyeh, 497 Deaville v. Deaville, 192 De Balinhard v. Bullock, 197 , De Beauvoir v. De Benyon, 50 V. Benyon, 523 Deeks v. Stanhope (1 Jur. 413), 211, 216 V. (2 W. E. 651), 462 Deerhurst v. Jones, 138 Defries v. Creed, 501 De la Rue v. Dickinson, 176, 450 De la Torre v. Bernales, 412 Delavante v. Childe, 203, 204, 560 DeU V. Barlow, 523 V. Hale, 446 Dempsey v. Dempsey, 548 Dendy, In re, 21, 28 V. Dendey, 214 Dennis v. Rochusson, 432 Denning v. Henderson, 543 Dennison v. Curtis, 217 Dennis, In re (12 W. R. 675), 99, 100 (5 Jur. N. S. 1388), 283 Densem v. EI worthy, 198 Dent V. Basbam, 20 V. Dent, 172 Dent V. Turpin, 441 Deprez v. Mitchell, 579 Derbishire v. Homer, 469 Desborough v. Harris, 66 Davaynes v. Robinson, 398, 200, 399 Devey v. Thornton, 131 Devonsher v. Newenham, 442 Devonshire, In re, 495 Devoy v. Devoy, 110, 113 De Winton v. Brecon (Mayor of) (26 Beav. 633), 500 (6 Jur. N. S. 1046), 500 Dick V. Munden, 680 Dicken v. Hamer, 149 Dicker v. Clarke, 419, 421, 423 Dickins v. Woolcott, 20 Dickinson, In re, 100 Dickson, In re (8 D. M. Q. 655), 23, 24, 25 26 (1 Sim. N. S. 47), 67, 68 (3 Jur. N. S. 29), 192 Dillon V. Ashwin, 407 Dimes v. Wright, 16 Dinning v. Henderson, 50 Dipper v. Durant, 412 Dipple V. Corles, 150 Disney, In re, 71 Divers, Ex parte, 47 In re, 36 Estate, In re, 54 Dixie V. Wright, 36 Dixon V. Jackson, 36 V. Fraser, 453 V. Wilkinson, 500 V. Wyatt, 654 Dobede v. Edwards, 537 Dobson V. Faithwaite (30 Beav. 228), 214 V. (10 W. R. 29), 312 Dodd, In re, 231 V. Webber, 424 Dodson V. Sammell (8 W. R. 252), 280, 494 V. (9 W. R. 887), 280 Dodsworth, In re, 70 Doe d. Hutchinson v. Manchester, Bury, and Rosendale Rly. Co., 44 Dolder v. Bank of England, 451 Dolly V. ChaUin, 412 Dolman, In re, 16 Dominicetti v. Latti, 481 Domville v. Lamb, 118. 121 Donald v. Bather, 200 ' Done V, Read, 451 Donelan v. Johnson, 542 Doody t). Higgins, 197, 199, 210 Dorning's Settled Estates, In re, 241 Douglas V. Archbutt, 191 ■ V. London and North Western Rly. Co., 44 Dowden ». Hook, 404 Dowling V. Hudson, 499 TABLE OF CASES. XXXIX Cownes, In re, 23, 24, 26 V. Jackson, 425 Downing College Case, 586 Downshire (Marquis of) v. Lady Sandys, 242 Dowson t>. Solomon, 470 Dowthwaite v. Spensley, 155 Drake, In re (22 Beav. 438), 23, 24, 25 (8 Beav. 123), 25 V. Drake (2 Hare, 647), 454 V. (3 Hare, 528), 522 ■». (25 Beav. 641), 485 V. Symes, (2 D. F. J. 81), 167, 168, 452, 459 e. ■ (3 D. F. J. 491), 217 V. (Johns. 547), 451 Draper, In re (2 W. R. 440), 101 (9 W. R. 805), 98, 110 V. Manchester, &o. Rly. Co., 173 Drennan v. Andrew, 404 Dresser t. Morten, 403, 482 Drever v. Maudsley, 501 Drevon v. Drevon, 180 Drew, In re (10 Beav. 368), 25 ^"a Estate, In re (1 L. R. Ch. 126), 311, 315 V. Clifford, 16 • ■— V. Drew, 443 Drewery, In re, 70 Drewry v. Thaoker, 503 Drinan v. Manmx, 571, 581 Drummoud v. Dmmmond, 361, 424, 425 Dryden «. Foster, 394 V. Frost, 464 Dubois V. Hole, 418 Duckworth v. Trafford, 499 Dafaur, In re, 387, 420 V. Sigel, 224 Duffield V. Elwes, 490 V. Sturgis, 169 Duffort V. Arrowsmith, 394 Dummer'a Will, In re, 36 Dunbar v. Boldero, 541 Duncan, In re, 540 ». M'Galmont, 504 Duncombe v. Davis, 457, 459 0. Levy, 427 tf. Lewis, 413 Dunn V. Dunn, 173 ». Hales, 15 Dunne v. Doyle, 211 Dunraven Estates, In re, 38, 52, 545 Dunt V. Dunt, 25 Darell V. Pritohard, 262, 263 Durham (Earl) ». Legar4 214 Dnrant •». Moore, 506 Dnrrant v. Durrant, 407 Dyer v. Kearsley, 503 Dyke v. Taylor, 504 Dyler, In re, 49 E. Eadh v. Lingood, 466 Eaden v. Firth, 265, 267 Eagles V. Le Breton,-411 Earl, In re, 180, 181 Earp V. Lloyd, 452, 453, 455 East, In re, 51 East Anglian Rly. Co. ■!>, Goodwin, 188, 192, 193 - — ^Lancashire Ely. Co. v. Hattersley, 465 India Co, i>. Sir Thomas Rumbold, 418 Pant Du Mining Co. v. Merry- weather, 408 of England Bank, In re (2 Dr. & Sm. 284), 514 -. -(6 N. R. 31), 503 Eastern Counties Rly. Co., JEs parte, 57 Eastwood V. Lever, 262 Ebrington v. Ebriagton, 366 Eccles V. Liverpool Borough Bank, 587 Ecclesiastical Commissioners, Hx pc^te, 47, 49 Edent). Thompson, 50 Edge V. Duke, 414 Edgecombe v. Carpenter, 499, 503 Edgson », Edgson, 418 Edmonds v. Foley, 174 V. NieoU, 421 Edmonson v. Harrison, 507 Edmunds, Ex parte, 49 V. Brougham, 267 Edsall V. Buchanan, 441 Edwardes v. Burke, 679 Edwards, In re, 67 V. Batley, 212 V. Edwards, 539 V. Srove, 507 — ». Lawless, 15 V. McLeay, 451 V. Milbank, 124 - V. Spaight, 186, 533, 627 EggingtonD. Cambeledge, 15 EgUnton (Lord) v. Lamb, 174 Egraonti). Darell, 267 Egremont, In re, 39 V. Cowell, 447 V. Egremont, 401 Electric Telegraph Co. v. Nott, 465 Elibank (Lady) v. Montolieu, 366 Ellames, In re, 323 Ellerthorpe, In re, 83 EUerton v. Thirsk, 506 Ellice V. Goodson, 447 V. Roupell (32 Beav. 299), 410, 446, 447 Elliott V. Ince, 166 V. Merriman, 276 Ellis, In re, 80, 102 xl TABLE OF CASES. Ellis V. Guitton, 119 Ellison, In re (8 D. M. G. 62), 47 _ (2 Jur. N. S. 62), 100, 102 V. Oookson, 245 V. Sharpe, 216 - V. Thomas, 197, 521 Elliston V. Sheldrake, 402 Elmore, In re, 284 Elmslie, In re, 17, 24 Elsey V.' Adams (4 Giff. 898), 465 0. (2 D. J. S. 147), 491 Elston V. Elston, 470 Elt V. Burial Board of Islington, 164 Eltoft V. Brown, 475 Elwes, In re, 284 Ely (Dean of) v. Gayford, 200, 202 v. Edwards, 212 V. Hensley, 216 Emerson v. Emerson, 637 Emery «. Newson, 438 Emmett v. Clarke, 100 Emmott V. Mitchell, 447 Empringham v. Short, 612 ^mpson V. Rowley, 432 England v. Tredegar (Lord), 280 Engleheart v. Moore, 15 English, In re, 51 - V. Hayman, 211 ■ Joint Stock Bank, In re, 152 Enthoven, v. Cobb, 175 Entwisle v. Cannon, 118 Equitable Reversionary Interest Society v. Fuller, 290, 291 Ernest v. Partridge (1 N. R. 425), 441 V. (11 W. R. 715), 591 V. Weiss, 466 Esdaile v. Molyneux (2 Coll. 636), 447 V. (1 De G. & S. 218), 465 — V (2 Coll. 641), 457 Esgair Mwyn Mining Co., 162 Estcourt v. Ewington, 436 Eton College, Ex parte (Z'BXj. Ca. 271), 52 (16 Jur. 45), 62 (7 W. R. 710), 62 European Banking Co., In re, 551 Evans, In re, 284 V. Brembridge, 223 V. Coventry (3 Drew. 75), 208 41. (27 L. T. 39), 192 V. Evans, 133 V. Hughes, 413 V. Lewis, 131 ■». Portreeve of Avon, 441 V. Saunders, 124 0. Williams (6 Beav. 118), 440 V. (2 Dr. & Sm. 324), 287 Evelyn v. Chippendale, 579 Everett, In re, 66 V. Prytheryoh, 461, 609 Everson v. Matthews, 404 Ewart ». Williams, 218, 219 Ewing V. Waite, 156 Eyles V. Ward, 529 Byre, In re (10 Beav. 509), 18 (4 K. & J. 268), 158 V. Barrow, 610 V. Brett, 214 V. Saunders, 244, 245 V. Shaftesbury (Countess of), 7 F. Fago, In re, 69 Fairthorne •■». Weston, 454 Palkner v. Gfraoe, 138 FaU V. Elkins, 499 Fallows ... Lord DiUon (1 W. R. 106), 499 t,. (2W. R. 507), 131 Fane v. Richards, 212 Parebrother v, Welohman, 223 Farington, In re, 17, 682 Farmer v. Curtis, 587 Farndell, In re, 7 Farquharson v. Pitcher, 688 V. Seton, 446 Farr v. Sheriffe, 652 Farrall v. Davenport (3 L. R. Eq. 473), 215 (5 L. T. N. S. 436), 192 Farrant, In re, 104 Farrow v. Rees, 592 V. White, 420 Faulkner v. Daniel, 490, 500 V. Llewellyn, 611 Paversham Charities, In re, 39 Peame v. Wilson, 19 Fearon v. Desbrisay, 493 Peaver v. Williams, 176 Pelkin v. Lord Herbert (1 Dr. & Sm. 608), 422 (9 W. E. 756), 176 Fellows, In re, 103, 104, 149 V. Barratt, 166 v. Deere, 217, 678, 579 Peltham, In re, 68, 69 Felthouse v. Bailey, 189 Fennel v. Brown, 464 Pennings v. Humphreys, 895, 611 Fenton v. Clayton, 428, 431 V. Criokett, 593 V. Hawkins, 215 ' Fergusons. Wilson (2 L. R. Ch. 77), 262 V. (15W.R. 27)192, 193 V. Tadman, 366 Fernandez, In re, 189 V. Corbin, 512 Pernie v. Young, 266, 267, 608 TABLE OF OASES. xli Ferrand v. Bradford (Corporation of), 164, 361 Ferrier v. Atwood, 176 Field, In re (16 Beav. 593), 18 (1 T. & 0. C. C. 1), 508 (11 W. E. 297), 464 Fielden v. Northern Ely. of Buenos Ayres Co. 513 Fieske v. Bnller, 425 Filkin». HilJ, 217 Financial Corporation v. Bristol, &c. . Ely. Co., 452 Finch, In re, 50 Finden v. Stevens, 443 V. Stephens, 536 Finney, In re, 83 Fiott V. Mnllins, 193 Firth V. Bush, 419 Fisher, In re (18 Beav.), 18, 26 (1 W. B. 505), 85 r. Baldwin, 222 ■ V. Bunhuiy, 579 — V. Coffey, 463 ■ V. Price, 464 Fishmongers' Co., Ex parte, 52 Fitch V. Ectchfort, 505 Fitton V. Macclesfield, 404 Fitzgerald v. Butt, 221, 222 Fitzmaurice v. Sadlier, 215 Flack, In re, 72 Flamauk, Ex parte, 37, 45 Flattery v. Anderson, 404 Fleetwood, Ex parte, 17 Fleming v. East, 155 V. Fleming, 521 Fletcher, Ex parte, 73 V. Dodd, 502 V. Moore, 411 V. Eogers, 208 Flintoffi;. Haynes, 588, 613 Flitchcroft, In, re, 95 Floekton v. Peake, 172, 586, 592, xxxiv. V. Slee, 212 Flower, Ex parte, 47 V. Newton, 15 Flowers v. Bright, 392, 570 Fluker, Jn re, 16, 17 Foley, Expwrte (11 Beav. 456), 16 (8 Sim. 395), 90 V. Smith, 26 1). Maillaidet, 424 Foligno, In re, 68 V. Martin, 529 Foljambe, In re, 26 Folland v. Lamotte, 530 Footner v. Sturgis, 205 Forbes, In re, 180 V. Preston, 538 V. Stephens (10 h. T. N. S. 491), 218 (4 N. K. 386), 414 . V. Tanner, 172, 176 Ford, Ex parte, 16 Ford V. Dolphin, 174 V. De Pontes, 175 V. Tennant (32 Beav. 162), ] 76 V. (11 W. E. 275), 622 V. Wastell, 496 Forman v. Gray, 413 Forster's Settled Estates, In re, 253 's Trusts, In re, 185, 186 V. Davies (32 Beav. 624), 591 V. (11 W. E. 813), 686 V. Menzies, 215, 216 Forsyth, In re, 16, 18, 22 V. Manton, 640 Fortescue v. Hallett, 436 Fosbrooke v. Woodcock, 505 Foster, In re {2 D.F. J. 105), 16, 24, 26 (18 Beav. 525), 404 — V. Bonner, 213 — V. Cautley, 401 — V. Dawler, 100, 102 — V. Harvey, 206, 231 V. Menzies, 420 Foulds V. Midgeley, 410 Fowler v. Bayldon, 197, 198, 200 V. Davies, 404 V. Fowler, 612 V. Eeynal, 399 V. Eeynell, 131 Eoberts, 503 Fox V. Blew, 578 — r. Charlton, 29, 496 — V. Hill, 222 — V. Yates, 443, 444, 451 Foxen v. Foxen, 562 Foxlowe V. Amcoats, 469 Foxwell V. Bradbury, 496 V. 'Webster, 266, 394, 450 Fozard, In re, 71, 73 Frampton v. Webb, 401, 677 Francis v. Brown, 391, 398 Franco v. Mayer, 536 Francome v. Francome, 464 Franklin, In re, 245 Featherstonhaugh, 19 PrankUske v. Ball, 263 Franklyn, Ex parte, 38 Fray v. Drew, 496 Frazer v. Thompson (4 De G. & J. 659), 577 (1 Giff. 337), 678 Freeman v. Butter, 176 1^. Fairlie, 174 V. Pennington, 213, 214 Freeston v. Claydon, 536 French v. Dear, 407 Friend v. Solly, 586, 691, 692, 593 Frost, In re, 101 V, Hamilton, 469 V. Ward, 393 Frowd V. Lawrence, 503 V. Stillard, 16 Fry V. Ernest, 609 - V. Mautell, 451 xlh TABLE OF CASES. Fry V. Eiohardson, 4i9 Fryer, In re, 203 V. Davis, 498 Fulham, In re, 109 Fuller's Settlement, In re, 234 V. Ingrain, 222 V. Eedman, 288 V. Taylor, 505 FuUertoa v. Martin, 213 Fulton V. Clark, 490 Fui-ze V. Hennett, 394 V. Sharwood, 586 Fussell V. Elwin, 399 Futvoye v. Kennard (2 Giff. 110), 609 V. (2 Giff. 633), 636 Fyfe V. Arbuthnot, 208 Fyler v. Fyler, 494 Fynn, In re, 8 Fyaon, In re, 21 G. GiiTSKiLi, In re, 17 Gale V. Abbot, 604 Galloway v. Corporation of London, 18 V. London (Mayor of), 622 Gaudee v. Stansfield, 176 Garcias v. Kicardo, 522 Gardiner v. Cacher Co., Ixxxix. Gardners;. Garrett, 204, 503 r. London, Chatham, and Dover Rly. Co., 357, 500 V. Marshall, 531 V. Eose, 514 Garey v. Whittingham (1 S. & S. 163), 435 V. 642 V. (5 Beav. 268), 552 Garland v. Garland,. 500 V. Eiordan, 164 Garle v. Eohinson, 222 Garlick v. Lawson, 124, 208 Garrard v. Dinorben (Lord), 613 Garrett v. Lancefield, 213 Garrod v. Holden, 406 Garth v. Cotton, 504 Qartside, In re, 99 Garty, In re, 99, 100 Garwood v, Curteis, 178 Gascoigne v. Chandler, 462 Gaskell v. Chamhers, 420 Gates V. Buckland, 464 Gatheroote v. Wilkinson, 418 Gaunt V. Taylor, 551 Gedye, In re (14 Beav. 56), 16, 18 (15 Beav. 254), 18 V. Montrose (Duke of), (26 Beav. 45), 261 „. (5 1(7. E. 527) 61X Gee V. Cottle, 418, 435, 475 V. Gee, 402 - ». Gumey, 485 Gennys, Ex parte, 99 George v. Whitmore, 267 Gibbons v. Kibbey, 37 V. Kelly, 366 Gibbs V. Daniel, 622 V. Gibbs, xxxiv. V. PHllipson, 610 Gibraltar and Malta Bank, In re, 465 Gibson v. Haines, 428 V. Ingo (5 Hare, 156), 217 V. (2 Phil. 402), 386 V. Whiteacre, 444 — V. Whitehead, 443 V. Wills, 200 V. WoUard, 168 Giddings v, Giddings, 678 GUbert, In re, 243 V. Lewis, 441 Gill V. Gillard, 379 V. Eayner, 411, 539 Gillespie v. Alexander, 650 Gillon V. Eotch, 213 Gillow V. Eider, 18 Gilpin V, Southampton (Lady), 603 Giraud, In re (32 Beav. 386), 76, 101 (11 W. E. 607), 530 Girdleston v. Lavender, 206 Gladstown v, Ottoman Bank, 448 Gladwin v. Gladwin, 220 Glasoott V. Lang, £04 Glassington v. Thwaites, 452 Glazbrook v. Gillatt (9 Beav. 611), 508 V. (9 Beav. 492), 541 Glenham v. Stutwell, 215 Gloucester Charities, In re, 98 (Dean of), £x parte, 42 Glover v. Cockerell, 428 1!. Daubney, 192, 521 Goddard v. Haslam, 200 V. Parr (24 L.J. Ch. 783), 461 V. (3 W. E. 633), 464 Godday v. Sleigh, 491 Godfrey's Trust, In re, 66 V. Tucker, 217 Godson V. Cook, 425, 475 I). Hall, 687 Godwin v. Coulson, 162 Goe, In re, 48 Golden v. Newton, 481 Golder v. Golder, 393 Goldsmid v. Stonehewer, 198 Goldsmith v. Goldsmith (5 Hare, 123), 405 V. (10 Jur. 561), 437 Gompertz v. Pooley, 223 Goooh V. Marshal], 490, 506 Good V. Blewitt, 547 Goodall V. Qawthorue, 188 V. Skerratt, 215 Goodass V. Williams, 198 Goode V. West, 69, 71 Goodfellow, In re, 119 Good Intent Benefit Society, In re, 81 Goodwin's Settled Estates, In re, 237 TABLE OF CASES. xliii Qoodvin v. Archer, 579 V. Bell, 428 Gterdon v. Jesson, 212, 215 Gorely v. Qorely, 587 Gosling V. Gosling, 124, 203 Gossin, In re, 180 Gossip V. Wright, 218 Goncfier v. Clayton, 513 Gould, In re, 52 V, Dmmmett, xliii. V. Tanored, 525 Goulder v. Camm, 490 Goyer v. Stilwell, 69 Gowram v. Bennett, 580 Graham v. Fitch, 435 V. Graham, 150 V. Wickham, 576 Grane v. Cooper, 172 Grange, Ex parte, 37 Grant, In re, 109 V. Grant, 411 Graver v. Templer, 476 Gray «. Campbell, 438 Great Luxemburg Ely. Co. i'. Magnay, 450 Northern Ely. Co., Sx parte, 67 ■ Western Ely. Co., Ex parte, 55 Greaves, In re, 401 V. Greaves, 479 Green, In re (2 D. F. J. 121), 280 (8 W. E. ;403), 246, 284, 542 V. Briggs, 586, 591 V. Chamocb, 579, 580 V. Crockett, 540 V. Harrison, 475 V, Law, 633 V. Jenkins, 525 V. Meares, 587 V. Measures, 197, 421 V. Pledger, 389, 424, 425 V. Snead, 168 Greene, In re, 237 Greenhalgh v. Enmney, 214 Greening v. Beckford, 507 V. Greening, 434, 436 Greenwood v. ChnrchiU, 593 V. Greenwood, 174 V. Sutherland, 124, 208 Gregg, In re, 19 V. Taylor, 17 Gregory v. Spencer, 536 Gregson, In re (2 H. & M. 604), 52 (26 Beav. 87), 174 Greig v. SomerviUe, 547 Gresley v. Mousley, 175, 176 GrevUle v. Grreville, 150 Grey Coat Hospital v. Westminster, &o. Commissioners, 419, 628 Grey v. Haig, 267 V. Jenkins, 245, 248 Gridley v. Austen, 15, 16 Grierson v. Astle, 109 Griffith V. Eioketts (7 Hare, 301), 174 | Griffith V. Eicbetts (3 Hare, 476), 527 Griffiths V. Cooper, 419 V. Griffiths, 387 — V, Hughes, 6 — V. Tannei-, 265 V. Wood, 451 Grimes v. Harrison, xxxiv. Grimsby v. Webster, 507 Grimston v. Oxley, 216 Grim wood v. Shave, 404, 623 Groom, In re (7 Hare, 38), 8 (11 L. T. N. S. ( V. Att.-Gen., 435 1), 110 ■ V. Stinton, 497 Grove, In re, 71 ■!!. Bastard, 208 r. Samson, 17 Qrover v. Baker, 475 Groves V, Groves (Kay, xix.), 173 „. (2 W. E. 86), 172 '■ — V. Levi or Lane, 199, 200 Grundy v. Buckeridge, 101 Griining v. Prioleau, 426, 566 Guibert, In re, 99, 100 GuUden Sutton (Incumbent), Ex parte, 49 Gurney ;;. Gurney, 209 Gwyer v. Peterson, 394 Gwynne v. Watney, 188 Gwjon V. Gwyon, 169 H. Haokwood v. Lookerby, 420, 427 Haddon v. Pegler, 536, 539 Hadfield, In re, 51, 52 Hadley, In re, 98 Hagell V. Currie, 529 Haggitt V. Iniff, 181 Haig V. Grey, 400 Haigh V. Dixon, 428 V. Oassey, 16 Hair, In re (10 Beav. 187), 16, 17 (11 Beav. 96), 18, 20 (8 Scott, N. K. 232), 27 Haire v. Levitt, 48, 60, 51, 52 Hakewell, Ex parte, 8, 404 V. Webber, 491 Hakewill, Ex parte, 404 Haldane v. Eckford, 217 Hall's Policy, In re, 66 Hall V. Austen, 399 V. Clive, 212, 213 11. Hoddesden, 410 V. Eatcliffe, 216 Hallett, In re, 23 Hallewell v. Phillipps, 242 Halliday v. Temple, 179 Halliley D. Henderson, 154, 558 Halsall, In re, 16 Ham's Trust, In re, 69 Hambroot v. Smith, 167, 465 d 2» xliv TABLE OF CASES. Hamilton r. Board, 505 Hampson v, Hampson, 175 Hanbury v. Ward, 216 Hancock v, Hancock, 97 V. EoUinson, 536 Hancox v. Spittle, 83, 90, 102 Hand-B. King, 536 Handfield v. Wilde, 437 V. Wooley, 415 Handley v. Davies (5 Jur. N. S. 190), 66, 67 V. (28 L. J. Ch. 873), 67 Hankey v. Morley, 67, 71 Hanman t'. Eiley, 198 Hannah v, Hodgson, 452 Hansard v. Hardy, 491 Hansford, In re, 69, 73 Hanslip «•. Kitton (1 D. J. S. 440), 1 72, 173 V. (8 Jur. N, S. 835), 582 Hanson, In re, 147 Harborough (Earl of). Ex parte, 49 ■ V. Shardlow, 43 ■ (Lord) V. Wartnaby, 532 Harding, In re, 25 V. Tingey (12 W. K. 703), 411 V. (12 W. E. 817), 432 Hardman, Hx parte, 1 04 ■!>. Bllames, 443 Hardwick v. Wright (13 W. E. -806), 179 V. {15 W. E. 953), 218, 219 Hardwicke (Earl of), Bx parte, 36, 49 Hardy, In re, 53 Harford v. Lloyd, 461 Hargrave, In re (7 W. E, 156), 252 (15 W. E. 54), 243 V. Hargrave, 377, 496 V. Wriglit, 84, 87, 97 Harper, In re, 24, 26 V. Pole, Ixxxix. Harries, In re, 24 Harris, In re (2 W. E. 442), 71 ■ ■ (7 Jur. N. S. 166), 463 V. CoUett, 221, 222 V. Gandy, 393, 394 V. Hamlyn, 677 V. Harris, 99 1). James, 451 V. Lightfoot, 393, 394 V. Sturt, 17 Harrison, In re (Setcn, 811), 79 (22 L. J. 60), 98, 100 V. Bailey, 475 V. Barwell, 461 v. Boydell, 502 V. Delmont, 407 V, Lane, 540 ». Southampton (Mayor of) (2 W. fi. 183), 496 ; (2 Juv. N.S. 435), 187; (29L.T. 61), 150 — V. Southcote, 443 r. StewardsoD, 477 Harrop, In re, 36, 45 Hart V. Montefiore, 179 V. Eoberts, 470 V. Talk, 215, 377, 499, 505, 532, 578 Hartford, In re, 541 Hartley, In re (2 Jur. N. S. 448), 20 (30 Beav. 620), 21, 22 Hartnall, In re, 80, 82, 91 HaiTey, In re, 79 Harvey's Settlement, In re, 577 V. Bradley, 526, 614 V. Brooke, 158 V. Clarke, 234, 244 V. Mayhew, 19 Haslnck v. Stewart, 425 Hastings (Lord) v. Eeavan, 3 Hatch V. Searles, 150 Havelock's Trusts, In re, 541 Haw V. Viokers, 201 Hawes v. Bamford, 463 Hawke v. Kemp, 630 Hawkes, In re, 72 Hawkesley v. Gowan, 607 Hawkins v. Crook, 475 r. Gathercole, 518 V. Hall, 612, 594, 609 Hay V. Willoughby, 138 Hayber's Trusts, In re, 396 Hayes, In re, 37 1). Brierly, 480 Haynes v. Ball, 434, 436, 480 V. Barton, 50 V. Cooper, 30 Hays V. Trotter, 19 Hayward v. Hayward, 144, 152, 461 V. Stephens, 180 Haywarden v. Dunlop, 425 Hazeldiue, In re, 101 Head v. Godlee, 621 Headdeu v. Emmott, 200 Headington, In re, 68 Heald v. Hay, 419 Heard v. Cuthbert, 109 Heath, In re, 99 V. Chapman, 218 V. Lewis (18 Beav. 527), 218 r. (17 Jur. 1090), 169, 438 «. (2 W. E. 69), 182 „. (2 -w. E. 488), 425, 475 V. (2 W. E. 641), 217 V. Wallingford, 19 Heathcote v. Edwards, 529 Hedges v. Clarke, 367 Hele V. Baxfty (Lord), 202 V. Ogle, 476 Homing, In re, 68 Hemingway, In re, 241 V. Fernandez, 411 Hemming, Ex parte, 24, 25, 26 V. Liefchild, 593 Hemmings v. Wilton, 19 Henderson r. Atkins, 571 TABLE OF CASES. xlv Henderson v. Oook, 442, 525 V. Henderson (3 Hare, 160), 446 . .- — . V. (3 Hare, 118), 446 V. Maggs, 475 • V. PhilipsoD, 186 Heneage v. Aikin, 531 Henley v. Abraham, 536 V. Stone, 443 Hennikeri;. Chafy, 50, 51 Hereford, &o. Ely. Co., In re, 52 Herefordshire Banking Co., In re, 612 Herez v. Biera, 443 Herman v. Sanhar, 542 Herring!). Clobery, 522 Herritt v. Reynolds, 610 Hertford (Marquis of), In re, 509 ». Suisse (7 Beav. 160), 39f (13 Sim. 489), 417, 421 Heslop V. Metcalfe, 20, 387 Heward v. Wheatley, 138 Hewetson v. Todhunter (2 Sm. & G}. ii. ), 464 V. — (22 L. J. Ch. 76), 201, 202 Hewitt, In re (27 L. J. Ch. 302), 88 (6 W. R. 537), 110 V. Hewitt, 442 V. Nanson, 206, 207, 548 V. White, 493 Hextall V. Cheatle, 153, 183 Hey's Will, In re, 95 Hiohen, In re, 36, 37 Hitchens v. Congreave, 217 Hicks V. Hicks, 502 - — .— 1>. Keat, 489 V, Baincock, 446 ». Shells, 469 Higgins V. Shaw, 211 Higginson v. Blockley (1 Jur. W. S. 1104), 167 V. (4 W. B. 60), 455 V. Wilson, 443 Hiles V. Moore, 499 Hill V. Bonner, 202 V. Curtis, 496 V. Great Northern Rly. Co., iii. V. Gaunt, 528 V. Hoare, 506 V. King 154 V. Beardon, 442 a. Bimell, 505, 532 V. South Staffordshire Rly. Co., 496, 497 Hillary, In re, 7 Hills V. M'Eae, 400 Hilton, In re, 37, 242 _ V. GranTiUe(Lord)(4BeaT. 130),505 V. (5 Beav. 263), 579 Hind 17. Whitmore (2 K. & J. 458), 166 V. (2 J. & H, 562), 580 Hinde v. Blake, 426, 516 Hinde v. Morton, 212, 528 V. Whitmore, 404 Hindle v. Taylor, 133 Hindley v. Emery, 262, 263 * Hindsou v. Weatherill, 192 Hinton, In re, 17 Hiorns v. Holtom, 205 Hipkins v. Hipkins, 516 Hirst, Ex parte, 52 Hitch V. Wells, 402 Hitchcock V, Jacques, 414 Hitchiu V. Hughes, 570 Hitchins v. Tate, 1 5 Hoare, In re (4 Giff. 254), 71 (11 W. B. 181), 234 ■ V. Wilson, 173 Hobhouse v. Courtney, 420 Hobler, In re, 495 Hobson V. Neale, 224 V. Seawood, 214 Hoby V. Hitchcock, 679 Hodge, Sx parte (16 Sim. 509), 48 In re (3 K. & J. 213), 7 Hodges, In re (4 D. M. G. 491), 72 (6 W. R. 487), 73 Hodgson, In re (18 Jur. 786), 68 (2 Eq. Bep. 1083), 73 V, Batterfield, 455 V. Druce, 223 . V. Hodgson, 515, 516 Hodson, In re, 98 V. Ball, 204 Hoffman v. Duncan, 500 Hoflioh V. Reynolds, 411, 448 Hoflick V. Reynolds, 537 Hoghton V. Hoghton, 131 Holbrook's Will, In re, 105, 114 Holcombe v. Trotter, 418 Holden, In re (1 H. & M. 445), 37 (1 Jur. N. S. 995), 47 Holden v. Holden, 192 V. Waterloo, 505 Holdemess v, Bankin, 451 Holding V. Barton, 168 Hole V. Dubois, 435 V. Pearse, 611 Holland, In re, 18 V. Gwynne, 17 V. Prior, 399 Hollick, Ex parte, 37 Hollingsworth v. Shekerhoft, 4J2 HoUoway v. Phillips, 398 Holme V. Brown, 222 Holmes v. Magrath, 16 V. Waring, 442 Holyoake u. Shrewsbury & Birmingham Rly. Co., 604 Holywell, Rector of. Ex parte, 49, 52 Home Counties Life Assurance Co., In re, 144, 151, 152 V. Patrick, 435 Hood V. Cooper, 494 xlvi TABLE OF CASES. Hook, In re, 25 Hoole V. Eoterts, 507 Hooper, Tn re, (29 Beav. 667), 284 — -i- (11 W, E. 130), 127, 265 (9 Jur. N. g. 570), 155 Ex parte (1 Dr. 264), 51 ■ V. Campbell, 194 ■ V. Gomm, 172, 175 ■ V. Paver, 396, 397 Hope V. Carnegie, 419 V. Hope (4 D. M. G. 328), 209 V. (19 Beav. 237), 419 V. LiddeU (7 D. M. Q. 331), 174 v.- (20 Bear. 438), 192, 511 V. Threlfall (1 Sm. & G. xxi.), 191 V. (23 L. J. Oh. 631), 192 Hopkin V. HopkiD, 231 Hopkins V. Hopkins, 253 Hopkinson v. Lord Bnrleigb, 175 Hordem, Ex parte, 48 Here's Estate, In re, 50 Hore V. Smith, 50 Horlock V. Smith, 24, 25 V. Wilson, 420 Home V. Barton, 521 Horrell v. Waldron, 504 Horry v. Calder, 430 Horsleyy. Fawcett, 414 Horton v. Brocklehurst, 217, 415, 462 Horton's Settled Estate, In re, 600 Horwood, In re, 37 Hosking v. Terry, 525 Hoskins, In re, 104, 542 V. Campbell, 394 Hoslook V. Wilson, 438 Hough V. Eyley, 366 Houston V. Briscoe, 214 How, In re, 72 Howard, In re (8 Beav. 424), 17 (5 De G. & Sm. 435), 83 (3 W. R. 606), 95 V. Chaffers, 131, 655 ■ V, Prince, 540 • ». Robinson, 176, 187 • V. Sewell, 195 Howe V. Grey, 536 ». Hunt, 263 Howell V. Evans, 497 . ti. Kightly, 165 ■ -v. Tyler, 592 Howes V. M'Kernan, 176, 450 Howkins, In re, 129 V. Bennett, 419 Hewlett V. Wilbraham, 402 Hoyle's Settled Estates, In re, 241 Hubbard, In re (15 Beav. 261), 25 (23 Beav. 481), 593 V. Hubbard, 97, 148 V. Leatham, 651 Hudson V. Carmichael, 150, 155 V. Dungworth, 428 V. Grenfell, 167 Hue, In re, 68 Huggins V. York Building Co., 446 Hughes, In re, 102 I}. Chester and Holyhead Rly. 138 V. Jones (26 Beav. 24), 491, 494 V. (1 N. B. 124), 267 V. Lewis, 536 V. Lipscombe, 438, iv. V. Murray, 25 V. Spittal, 627 11. Wells, 97 Hulkes V. Day, 507 Hull & Hornsea Ely. Co., In re, 357 & Selby Rly. Co., In re, 50 Humber Iron Works Co., In -re, 551 Hume V. Pocock, 218 V. Richardson, 285, 291 Humphreys v. Humphreys, 505 V. Pensam, 466 Hungate v. Gascoigne, 525 Hungerford, In re, 38, 51 Hunt V. Elmes, 176 . V. Lever, 419 V. Niblett, 420 V. Penrice, 443 V. PuUan, 627 Hunter v. Anon., 612 V, Ayre, 445 ■ V. Daniel, 215 V. Nockolds (6 Hare, 459), 445 (12 Jur. 149), 569 - V. Stewart, 446 Huntingtower (Lord) v. Sherborn, 611, 512 Hurle'sSettled Estates, In re, 248, 246, 248 Hurst, In re, 95 V. Hurst (16 Beav. 375), 205 V. (1 De G. it Sm. 694), 419 Husband, In re, 464 Hutcheon v. Mannington, 181 Hutchinson, In re (1 Dr. & Sm. 27), 68, 72 (14 W. E. 473), 245 -s Trusts, In re, 72 - V, Massarene, 500 ■V. Swift, 150, 580 Hattou V. Hepworth, 532 — V. Mansell, 548 V. Sealey, 206 ». Smith, 162 Hyde, Ex parte, 48 V. Edwards, 52 Hyder v. Colman, 582 Hythe (Corporation of) v. East, 261, 263 I. IiDERTOif, In re, 17 Imperial Mercantile Credit Association v. Witham, 178 Bank of Chica v. Bank of Hin- dostan, 678 Inchley v. Allsop, 211 TABLE OF CASES. xlvii Ingilby v. Shafto, 176 Ingle> In re, 18 «. Partridge, 536 Inglis V. CampbeU (2 W. R. 386), 483 V. (2 W. R. 667), 512 Ingram', In re, 291 V. Stiff, 506 Inman v. Whitley, 453 Innes v. Mitchell, 425 Irby, In re (17 Beav. S34), 70, 81 Irish Land Improvement Society, Inre, 404 Isaudiand, Ex parte, 45 Isenberg i: ijast India House Estate Co., 263 Isle of Wight Ferry Co., In re, 355 J. Jaokson i: Cassidy, 465 1'. Craig, 133 V. Davenport, 216, 579, 581 V. Haworth, 435, 567 V. Ivimey, 537 • V. Leaf, 393 V. Milfield, 96 1). Newcastle (Duke of), 263 — V. N. Wales Rly. Co., 441, 442 — V. Riga Ely. Co., 212 — V. Shanks, 420 — V. Turnley, 209 ®. Ward, 215 Jacob, In re (29 Beav. 402), 284 (9 W. R. 474), 283 V. Hall, 412 V. Richards, 452 Jacobs V. Hooper, 449, 450 James v. Aston, 200 V. Charlemont, 411 V. Creswicke, 476 V. Gwynne, 553 V. Eice^ 481, 482 Jampier v. Ingle, 415 Jaqnetv. Jaquet, 149, 156, 531 Jardine v. Bright, 408, 529 Jarvis' Charity, In re, 65, 98 V. Shand, 476 Jebb V. Tugwell, 213 Jefferson v. Warrington, 16 Jefferys v. Smith, 494 Jeffreyes v. Connor, 41 V. Drysdale, 81, 105 V. Evans, 15 Jemmings v. Rigby, 355 Jenkins, In re (3 N. R. 408), 67 - (10 Jur. N. S. 832), 69 Bryant, 612 Jenkyn v. Vaughan (3 Drew. 20), 420 V. (4 W. E. 214), 469 „. (3 W. R. 151), 470 Jenkyns v. Bushby, 175, 176 Jenner v. Jenner, 265 Jenner v. Morris (1 L. R. Ch. 603), 521 V. (10 W. R. 640), 152, 5.55, 627 — »— V. (11 W. R. 948), 29 Jennings v. Devey, 389 V. Merton College, 461 V. Rigby, 288 Jenour v. Jenour, 215 Jephson, Inre, 67, 69, 72 Jersey's (Earl of) Settled Estates, In re, 241 Jervis v. White, 380 Jervoise v. Clark, 213 Jesse V. Bennett, 197, 198 Jessop, In re, 21, 22 Jewitt, In re, 610 Joad V. Ripley, 544, 545 Job, In re, 490, 512 Jodrell V. Jodrell, 461 John V. John, 222 V. Lloyd, 416 Johnson, In re (1 L. R. Ch. 325), 500 (3 N. R. 655), 404 V. Barnes, 511 V. Peck, 215 V. Tucker (15 Sim. 599), 389 ■ V. (15 Sim. 485), 427 ■ V. Wyatt, 262 Joint Stock Discount Co., In re, 173 JoUiffe, Ex parte, 48, 62 Jones, In re (8 Beav. 479), 19, 21 (3 Drew. 679), 68, 69 (2 D. P. J. 554), 109 (6 "W. R. 276), 200 (7 W. R. 171), 158 (8 W. R. 56), 155 (4 Jur. N. S. 581), 47 V. Anon., 465 V. Batten (9 Hare, Ivii.), 164, 574 V. (10 Hare, xi.), 531 v. Beach, 138 ■». Brandon (2 Jur. F. S. 437), 420 V. (3 Jur. N. S. 1146), 478 - — - V. Cargill, 420 V. Charlemont (Lord), 413 V. Davids, 442 ■ V. Davis, 475 V. Foulkes, 200 V. Geddes, 425 *. Gregory (2 D. J. S. 83), 265 V. Gregory (12 W. R. 92), 523 V. Griffith, 466 V. Howell, 169 V. James, 103, 197 V. Jones (Kay, vi.), 176 ». (15 Sim. 678), 503 V. (3 W. R. 638), 389, 536 V. (10 Jur. N. S. 1167), 536 - — V. Lewis (2 M. & G. 163), 52 V. (1 De G. & Sm. 245), 540 V. Morgan, 536 V. Morrell, 203 xlviii TABLE OF CASES. Jones V. Powys, 26 V. Eolerts (8 Sim. 397), 19 — - V. (12 Sim. 180), 530 V. Shepherd, 504 V. Smith, 301 -. — V. TurnbuU, 464 V. Wattier, 449 V. Woods, 211 Jopp V. Wood (2 D. J. S. 323), 521 V.' (33 Beay. 372), 621 Jopp's Case, 522 Joseph's Will, In re, 66 & Webster, In re, 531 . V. Doubleday, 506 V. Tuekey, 444 V. Tyndall, 425 Joyce, In re, 80, 99 V. Eawlins, 212 Judd V, Plum, ixxiv. Jnpp V, Greening, 215 Eat v. Hafgreaves, 176 — V. Marshall, 443 — V. Smith, 496 Kaye, In re, 9 V. Wall, 454, 459 Keeler, Jm re, 80, 88 Keen, In re, 541 Keene v, Warde, 16 Kelk V. Arthur, 393 Kellaway v. Johnson, 399 Kelly V. Hutton, 522 Kelson v. Kelson, 149, 550 Kemp V. Latter, 481 V. Makrell, 215 Kenah, In re, 180 Kendal v. Baron, 514 Kennard, In re, 311 Kennaway v. Tripp, 479 Kennedy v. Edwardes, 536 V. George, 665 i. Lewis, 411, 415 Kent Coast Kailway, In re, 36 Kentish Town Estate, In re, 600 Ker, In re, 20 Kemiok v. Kemiek, 464 Kerr v. Gillespie, 579 Kershaw v. Kalow, 162 Keymer v. Pering, 611 Kidd V. Cheyne, 197, 621 Kidderminster, (Vicar of), Ex parte, 48 Kidger v. Worswiok, 167 KUligrew v. Killigrew, 445 Kimber v. Ensworth, 490 Kimpton ■». Eve, 506 Kinoald's Trusts, In re, 366 Kincaird, In re, 71 Kinder v. Forbes, 420 King's College, Ex parte, 48 King, In re, 80 V. Bryant (3 M. & Cr. 191), 481, 609 V. (6 L. J. Cb. N. S. 151), 476 V. King, 68, 109 V. Savery, 159, 576 ■ V. Smith, 109 Kingford v. Swinford, 223 Kingham v, Maisey, 503 Kinneir, In re, 24 Kinshela v. Lee, 469 Kinsey, In re, 37, 52 V. Kinsey, 446 Kirkley v. Burton, 407 Kirkman v. Andrews, 443, 444 Kirwan v. Danniell, 441 Kitchen v. Himble, 212, 214 Knierim v. Sehmauss, 550 Knight, In re, 68 «. Cawthorne, 427 V. Cory, 580 V. De'Blaquifere, 579 V. Knight (16 Bear. 358), 221 V. (14L.T.N.S.161),113 V. Marjoribanks, 448 V. Plymouth (Lord), 601 V. Pocoek, 197, 428 Knott V. Cottee (16 Beav. 77), 67 V. (19 Beav. 470), 615 V. (27 Beav. 33), 548 Knowles v. Grreenhill, 523 V. Ehydyfeded Colliery (Johns. 514),. 445, (Johns. 630), 536 Knox V. Brown, 491 V. Gye, 217 L. Ladbooee v. Bleaden, 394 Lafone v. Falkland Islands Co. (27 L. J. Ch. 25), 174 V (2 K. & J. 276), 179, 569 V. (3 K. & J. 267), 451 Co. Laing's Settled Estates, In re, 237 Lainsou v. Lainson, 612, 613 Lake v. De Lambert, 100 V. Eastern Counties Ely. Co. 64, 55 V. Peisley, 466 Lamb v. Danby, 380 V. Orton, 174 Lambe v. Orton, 155 Lambert v. Hill, 529 ■». Lomas, 164, 167 Lambeth (Vicar x)f), Ex parte, 42 Lambert v. Turner, 402 Lambie v. Lambie, 366 La Mert v. Stanhope, 636 Lancashire v. Lancashire, 531 Lancaster, In re, 72, 404 TABLE OF CASKS. xlix Lancaster Chau-ities, In re, 98 V. De Trafford, 262 V. Lancaster, ilO Land Credit Society, In re, 176 Land's Trust, In re, 47 Lander v. Parr, 579 Lane, In re, 68 V. Debenham, 120 V. Glenny, 15 V. Hardwick, 402 ■ V. OliTer, 27 V. Sterne, 501 Langdale (Lady) v. Briggs, 208 V. GiU, 218 Langford, In re, 290, 291 V. May (16 Beav. 32), 222 V. — (1 W. B. 484), 192, 193 V. — (22 L. J. Ch. 94i, 193 V. Nott, 21 Langham v. Great Northern Ely. Co., 505 Langhorn v. Langhorn, 83 Langley v. Ksher, 470 V. Wait?, 455 Lanham v. Pirie, 210, 425 Lankester v. Wood, 394 Largan v, Bowen, 500 Larmntli v. Simmons, 222 Lash V. Miller, 212 Lashley v. Hogg, 550 Laslett V. CUffe, 206 Latham v. Hyde, 19 Lathropp's Charity, In re, 36, 49 Laurie v. Bum, 438 —V. Crash, 214 LantoTir v. Holcomhe, 578 Law«. London Indisputable Policy Co., 172 , In re (30 L. J. Ch. 512), 70 (7 Jur. N. S. 511), 242 Lawrence, In re, 73 • V. Campbell, 175 ■ •;;. Galsworthy, 80 V. Manle(4 Drew. 472), 183, 466 • V. (3 N. E. 239), 214 Lawson v. Eieketts, 502 V. Stoddart, 549 Lawton v. Lawton, 503 Lay V. Prinsep, 429 Layton v. Mortimore, 307, 436 Lazarus, In re, 68, 72 V. Moseley, 173, 174, 175 Lea's Trusts, In re, 88 Leake, In re, 68 Leaman v. Brown, 425, 432 Leate v. Jenkins, 521, 523 Leather Cloth Co., Limited, v. Hurschfield, 188, 264 Lechmere v. Clamp, 84, 96, 420, 478 Lee V. Angas, 193 — V. Dawson, 616 — V. Hammerton, 175 — V, Head, 120 — V. Lee (1 Hare, 617), 528 Lee V. Le« (9 Hare, xoi.), 218 — V. Eyder, 401 — V. Shaw, 469 Leeds v. Lewis, 144, 149 V. Banking Co., In re, 516 Leeming, In re, 499 Lees, In re, 15, 19, 21, 24 Leese v. Knight, 401, 422 Legg V. Mackrell, 98, 109, 110 Legge, In re (8 W. E. 559), 50 (6 W. E. 220), 245 Leicester, Hx parte, 465 Leigh V. Turner, 156 Leite v. Vieini, 480, 481 Lenaghan v. Smith (2 Phil. 301), 399 V. (2 Phil. 537), 435 Leslie v. Thompson, 124 Lester v. Archdale, 536 V. Bond, 425 V. Lazarus, 15 Lett, In re (31 Bear. 488), 17, 24 (10 W. E. 6), 17, 593 V. Eandall, 480 Lever v. Heritage, 536 Levett, In re, 72 Leyitt v. Levitt, 180 Lewers v. Shaftesbury (Earl of), 262 Lewes, In re, 109 V. Morgan, 506 Lewin, In re, 16 1: Moline, 471 Lewis V. Allen, 399 V. Armstrong, 687 V. Baldwin, 425 V. Clowes, 197, 429 V. Cooper, 411 V. Evans, 434 V. Hillm.in, 70, 71, 72 V. Kennett, 406 V. Primrose, 16 V. South Wales Ely. Co., 36 Ley V. Ley, 150, 499 Leycesfer v. Morris, 212 Leyland v. Leyland, 217, 490 Lichfield (Earl of) v. Bond, 455 Liddell -v. Norton, 175 Lidbetter v. Long, 442 Light V. Light, 70 Like V. Beresford, 529 Lilley, In re, 48 LilUe V. Legh, 261 Lincoln (Mayor of). Ex parte, 51 V. Wright, 168 Lind V. Isle of Wight Ferry Co. (8 W. R. 540), 176 ; (1 N. E. 13), 441 Lindsay v. Tyrrell (2 De G. & J. 7), 404 V. (24 Beav. 124), 404 Linford v. Cooke, 529 Lingren v. Lingren, 402 Lingwood v. Stowmarket Co., 504 Lister's Hospital, In re, 65 V. Bell, 150 TABLE OF CASES. Lister ». Leather (1 De Or. & J. 361), 491 V. (3 Jur. N. S. 433), 192 V. Tidd, 507 Little Steeping (Rector of), Ex parte, 41 Littlewood v. Collins, 393 Liverpool (Corporation of), £x parte, 36 Docks Act, In re, 37 Ely. Co., In re, 52 Lloyd, In re (10 Beav. 451), 490 ■ -; (2 W. E.), 67, 71 ■ "v. Adams, 221 ij. Attwood, 202 V. Cocker, 133 V. Clarke, 457 V. Johnes, 214 1/. Lloyd, 427 V. Smith, 400 17. Solicitors and General Life Assur- ance Co., 182, 389 V. Whittey, 206 V. Whitty, 194 Look V. Bagley, 217 Lookett V. Carey, 174 Lockey, In re, 501 Lookhart v. Hardy (4 Beav. 224), 16 V. (9 Beav. 349), 611 Lookwood, Ex parte, 36, 41 Lodge V. Pritohard, 218, 219 Logan V. Eaines, 469 .V. Grant, 475 Login V. Coorg (Princess of), 264 Loinsworth v, Bowley, 633 Lomaz, In re, 52 London (Bishop of), Ex parte (2 D. F. J. 14), 37, 48, 51 -(8W. E. 46.5), 47 - (City of) V. Perkins, 4 - (Mayor of) v. Levy, 441 - and Brighton Ely. Co., In re, 48, 49, 51 -, Birmingham, and Bucks Ely. Co., Inre, 141, 152, 159, 187,!592, 593 - and Blaokwall Ely. Co. v. Lime- bouse Board of Works, 587, 694 - and Brighton Ely. Co. v. Shropshire Eailway, 48 ■ , Chatham, and Cover Ely. Co., Ex parte, 57 - and Connty Assurance Co., In re, 144, 152 V. Lan- cashire and Yorkshire Ely. Co. 604 and North Western Ely. Co. v. Cor- poration of Lancaster, 36 and South Western EJailway Act, In re, 49, 50 , Tilbury, and Southend Ely. Co.. Ex parte, 36 and Westminster Wine Co., In re. 420 Londonderry (Lady) v. Baker, 443 Londonderry v. Bramwell, 533 Long, In re, 49, 50 V. Storie, 200, 201 V. Tottenham, 679 Longstaffe's Settled Estates, Inre, 252, liii. Longworth, In re, 51 Lonsdale, In re, 99 (Earl of) V. Church, 501 Lopes V. De Tastet, 449 Lord, In re, 194, 152, 556 V. Colvin (3 Drew.), 171, 186, 187 1>. (1 Dr. & Sm. 24), 264 V. ~ (1 Dr. & Sm. 475), 522 D. (2 W. E. 134), 186 Lorenz, In re, 283, 284 Lorimer, In re, 68 Lorton v. Kingston, 427 Loughborough, In re, 17, 25 Loughton (Eector of), Ex parte, 52 Loveband, In re, 48 Lovell V. Galloway (1 W. E. 118), 222 V. — (17 Beav. 3), 221 V. (19 Beav. 643), 222 Lowe V. Watson, 213 V. WUliams (12 Beav. 432), 389, 456 Lowes V. Lowes, 211 Lowndes if. Garnett and Moseley Gold Mining Co. Limited, 447 V. Eobertson, 678 Lowry v. Fulton, 586 Lowton V. Colchester (Mayor of), 215 Loyd V. Loyd, 480 Lubier v. ^oss, 525 Lucas V. Peacock, 507, 586, 591 V. Roberts, 16 Ludgater v. Cfaaunell, 500 Lumley v. Hughes, 580 Lund V. Blanchard, 399 Lush, Inre, 83 'b Estate, In re, 83 Lynch v. Leoesne, 4S2 M. MAOAriiAT, Ex parte, 37 McOormick v. Garnett, 264 Macdonald, In re, 52 V. Macfarlane, 212 Maofarlane, In re, 70 M'Gachen v. Dew, 399 M'Gregor v. Keiley, 15 M'Intoshi;. G.W. Ely. Co. (4D. M. G. 544), 171, 174, 193 V. (1 D. J. S. 443), 164 v. (3Sm.&G.146), 169 V. (13 W. E. 1029), 622 V. (20 L. J. Ch. 550), 412 TABLE OF CASES. MacTntyre v. Connell, 400 M'Kay, In re, 18 Mackenzie v. Glariclge, 449 . V. Mackenzie (5 De G. & S. 338), 92, 463 V. (Seton, 810), 105 Mackerell v. Fisher, 411 M'Kerrakin v. Cort, 401 McLacUan «. Lord, 191 Mackworth v. Penrose, 466 Maelaren v. Staintou, 418, 503 Maclean v. Dawson, 199, 200, 425 McLeod V. Annesley, 197, 198 ■ V. Buchanan, 507 McMahon v. Barchell, 485 M'Neill V. Acton, 186 Macrae v. Ellison, 206 V. Smith, 172, 394 . M'Yeagh, In re (1 D. J. S. 399), 150, 172 . (Seton, 773), 284 Macyntire v. Connell, 444 Maddeford v, Anstwick, 15 Maddisou v. Skein, 119 Magan v. Magan, 397 Magnay v. Davidson, 201 V. The Mines Royal Co. (3 Drew. 130), 222 — r. The Mines Koyal Co. (25 L. J. Ch. 413), 223 Mahon, In re, 1 80 (Lord) ■». Lord Stanhope, 242 Mainwaring, In re, 102 Mais, In re, 99 Maitland v. Rodger, 434, 479 Major V. Amott, ii. V. Major, 531 Makepeace v. Haythorne, 207 V. Rogers, 172 V. Romienz, 461 Malcolm v. O'Callaghan, 501 Malet, In re, 71 Malins v. Greenway, 215 V. Price, 592 Malin's Settled Estates, In re, 242, 600 Mallock V. Still, 214 Mallorie, In re, 541 Man V. Ricketts (1 Ph. 617), 212, 497 V. (9 Beav. 4), 398 Manby v. Bewicke (8 D. M. G. 468), 174, 580 .V. (3 Jnr. N. S. 685), 485 V. (27 L. T. 55), 173 Manchester and Southport Rly. Co., In re, 36 , &c., Rly. Co. V. Worksop Board of Health, 460, 569 and Leeds Rly. Co., In re, 582 Mandeno v. Mandeno, 220 Maniere v. Leicester, 169, 440 Manners v. Farze, 501 Manning, In re, 83 Manning v. Glyn, 16 Mansel v. Feeny, 176 Mansell, Bx parte, 501 v. Feeny, 443, 447 Mant V. Smith, 15, 16 Mapp V. Elcock, 532 Marasco v. Borton, 505 Marfill V. Rndge, 548 Marke v. Locke, 428 Mark-wick v. Pawson, 491 Marlborough's (Duke of) Estates, In re, 41 Mamer, In re, 69, 249 Marriage, In re, 45 Marriott v. Kirkham (3 Qiff. 536), 198 (10 W. It. 340), 206 V. Anchor, &c. Co., 175 Marrow, In re, 54l Marsdenv. Blundell, 512 Marsh v. Attorney-General, 283 V. Keith, 167, 176, 208, 454, 456 Marshall, Ex parte (1 Pbill. 560), 47 (2DeG. &Sm. 670), 104 Marshall v. Grime, 133 Martin, In re {17 Jar. 30), 37 . (22 L. J. Ch. 248), 159, 384 V. Frost, 411 V. Hadlow (9 Hare, lii. ), 215 ». (1 W. R. 101), 220 V. Headon, 263 — V. Norman, 440 V. Purnell, 216, 452 V. Pycroft (22 L. J. Ch. 94), 193 V. ■ (5 W. R. 464), 419 Maryport Railway, In re, 48, 49 Mash, In re, 24, 25, 27 Mason v. Franklin, 587 V. Wakeman, 453, 464 Masselin, In re, 72 Massey, In re (8 Beav. 458), 26 (34 Beav. 463), 22, 23 V. Massie, 204 Massie v. Drake, 24 Mastei'man If. Midland, &c,, Co. of Ireland, 412 Masters v. Barnes, 899 Mather v. Skelmerdine, 405 Mathew, In re, 79 Matson v. Swift, 541 Matthews, In re (26 Beav. 463), 98, 99 (2 W. R. 85), 97, 104 V. .Chichester (30 Beav. 185), 578 V. (31 Beav. 135), 578 '— V. ■ (11 Jur. 49), 389, 448 - 11. Palmer, 394 Maude v. Copland, 428 V. Maude, 541 Maunder, In re, 16 Mavor v. Dry, 217, 681 Mawe «. Heaviside, 366 Maxwell v. Wightwick, 535 May, In re, 648 Hi TABLE OF CASES. May V. Biggenden (24 Beav. 207), 20 V. (1 Sm. & G. 133), 192 V. Prinsep, 463 V. Selby, 490 Maybery v. Brooking, 197, 490, 521 Mayer v. Spenoe, 194 Mayes v. Mayes, 191 Mayhew v. Maxwell, 504 Maynard, In re (16 Jur. 1084), 104 (9 "W. B. 330), 148 Mayne v. Batter, 180 Mayor v. Spence, 504 Mead v. Lord Orrery, 501 Meals V. Meals, 504 Mears v. Best, 2G5 Medow, Tn re, 541 Meek v. Ward, 425, 533 Micklem v. Campbell, 425 Meaden v. Sealey, 499 MeinerUbagen v. Davis (1 Coll. 355), 304 V. — (10 Sim. 289), 469 Mellingo. Bird, 50 Mellor V. Hall, 440, 442 Mendes v. Guedalla (2 J. & H. 259), 217 V. (10 W. K. 485), 202 V. (5 L. T., S. S. 308), 633 Mendizabel v. Hullett, 412 Mennard v. Welford, 99, 304 Mercbant Banking Co. v. Maud, .394 Merchant Taylors' Co. , In, re, 50, 52 Merriman v. Goodman, 423 Merry, In re (14 W, E. 307), 600 Merry's Settled Estates (15 W. R. 665), 245 Mortens v. Haigb (Joins. 735), 172, 173 V. (1 J. & H. 231), 178 r. (2 W. B. 198), 411 V. (11 W. K 792), 174 Merton College, In re, 48 Messor v. Boyle, 206 Metcalfe, In re (30 Beav. 406), 19 (3 N. K. 657), 68 Metford, In re, 47 Meux t). Watkins, 615 Meymott v. Meymott, 159 Meyrick's Estate, In re, 88 Michel, In re, Wi Mick V. Ward, 464 Mioklethwaite v. Miekletbwaite, 242 Middle Level Commissioners, In re, 51 Middleton v, Chichester, 425 ■». Greenwood, 262 V. Magnay, 262 Midland Ely. Co., In re, 51 V, Oswin, 36 Mildmay v. Methuen, 159 Miles, In re, 283 Millar, In re, 71 V. Craig, 219 V. Elwin, 478 Miller, In re, 507 V. Elwin, 420 Miller v. Prlddon, 469 Milligan v. Mitchell, 415 Mills V. Badgeon, 528 Milne, In re, 543 Miltown (Lord) v. Stewart, 465 Minohin's Estate, In re, 88 Minter, In re, 21, 489 Mitchell, Ex parte, 498 V. Bailey, 587 V. Cobb, 69 V. Newell, 47 Mobbs, Ex parte, 16 Mockett, In re, 283, 284 Moffatt v. Bumie, 221 Mold V. Wheatoroft, 264 Molesworth v. Howard, 454 MoUett V. Enequist (25 Beav. 609), 222 V. (26 Beav. 466), 217 Moloney, In re, 368 Molyneux, In re, 97 Money, In re (2 Dr. & Sm. 94), 41 (13 Beav. 109), 72, 404 Moneypenny v. Anon., 411 V. Bering, 498 Monkton Farleigh Estate, In re, 600 Montefiore v. Brown, 550 • V. Guedalla, 213 Montellano (Duke of) v. Christian, 579 Monypenny v. Monypenny, 522 Moody V. Hebberd, 532 Moore, In re, 126 V. Harper, 466 V. Platel, 401 V. Smith, 582 V. Walter, 494 V. Welsh Copper Co., 446 Moravian Society, In re, 99 Morey v. Vanderburg, 1 91 Morgan, In re (2 W. E. 439), 72 ^Seton, 825), 113 Jones, In re, 49, 590 ■ V. Davey, 20, 215 ■ V. Fuller, 266, 451 ■ V. Gt. Eastern Ely. Co., 460 — v. Hatchell, 154 — V. Higgins, 15, 219 — V. Jones, 418 — V. Morgan, 401 - V. Scudamore, 215 Morison i\ Morison, 522 Morley v. Morley, 194 Momington (Duchess of), Ex parte, 96 V. Keaue, 578 V. Momington, 176 • (Earl) V. Smith, 536 Morrell v. Pritchard, 526 Morris v. Honeycomb, 614 V. Morris, 409 V. Owen, 413 Morrison v. Arnold, 410 • -v. Barrow, 267 V. Morrison, 609 TABLE OF CASES. liii Morrit V. Walton, 420 Morritt V. Watson, 215 Morse, In re, 71 Morshead v. Beynolds, 588 Mortimer v. Fraser, 444 V. Hartley, 441 V. Mortimer, 201 ■». Picton, 290 Mortimore v. Mortimore, 122, 133 Moseley, In re, 20 V. Moseley, 503, 530 Moss, In re (17 Bear." 59), 18 ' (17 Beav. 340), 22 V. Anglo-Egyptian Co., 446 V. Buckley, 438 V. Donlop, 366 V. Syers, 164 Mossell V. Morgan, 373 Mostyn v. Emmanuel, 212 Mounsey v. Bumham, 581 Moontain v. Young, 67 Monntford r. Cooper, 471 Monrilyan, In re, 420 Muckleston v. Brown, 167 Mnggeridge, In re, 283, 284 Mulligan v. Mitehell, 217 Mnllins v. Hussey, 567 Mundell, In re (8 W. R. 683), 79, 99 (2 L. T., N. S. 653), 100 Munro v. Wivenhoe, &c., Ely. Co., 465 Murray «. Barlee, 16 V. Vipart, 420 Murrell v. Clapham, 166 Marrow w. Wilson, 16, 581 Musgrave, In re, 47 Mutlow*. Mutlow, 68 Mutters. Hudson, 203, 550 Muttlebury v. Hayward, 386 Mylessi v. Spartali, 451 Mynn v. Hart, 579 N. Nadih, Ex parte, 41 Nairne v. Featherstone, 477 Napton (Overseers of), In re, 16 Sash, In re, 51 Nason v. Clamp, 194 Naylor V. Wright, 416 Neate, In re, 25 V. Pink (15 Sim. 450), 489 • V. (3 M. & Q. 476), 500 Neave v. Douglas, xlriii. Neck V. Gains, 411, 412, 450 Nedby ». Nedby, 566 Needham v. Needham, 490 ». Oxley, 261 .». Smith, 402 Nelson v. Booth, 204, 219, 550 r. Bridges, 261 V. Seaman, 586 Nelthorpe v. Wright, 437 Nesbitt V. Berridge, 442 Neve V. Pennell, 185 Nevil 1/. Johnson, 466 Neville v. Fitzgerald, 466 Newall V. Telegraph Co., 174 Newbery, In re (1 L. E. Eq. 431), 9 (10 W. K. 378), 203 Newberry v. Benson, 219 Newbury v. Marten, 97, 677 Newby v. Harrison, 605 Newen v. Wetten, 219 Newenham v. Pemberton, 418 Newland v. Steere, 193 Newman, In re (30 Beav. 196), 18 (15 W. R. 630), 24, 25 • • V. Selfe (33 Beav. 522), 206 , V. (11 W. K. 764), 401 V. Warner, 101 V. White, 569 Newport, &c.,Ely., In re, 45 Newton, Ex parte (4 Y. & Coll. 518), 37, 48 In re (2 D. F. J. 3), 464 In re (10 W. E, 547), 139 V. Boodle, 25, 593 V. Carr, 477 V. Dimes (30 L. T. 30), 453 V. (3 Jur. N. S. 583), 455 V. Earl of Egmout, 444 V. Eioketts (11 Beav. 67), 16, 609 V. (9 H. L. Ca. 373), 67 V. Thompson (16 Jur. 1008), 387 V. (22 L. J. Ch. 10),i387 Nicklin v. Patten, 457 NichoU V. Jones (13 W. E. 451), 173, 174 V. (14 W. E. 79), 537 NiohoUs V. Haslam, 591 Nichols V. Ibbetson, 192 V. Ward, 435 Nicholson, In re (29 Beav. 665), 17, 211 (3D. F. J. 93, 100), 18, 19 (14 W. E. 475), £0 V. Gibb, 217 V. Jeyes, 590 V. Peile, 415 V. Squire, 540, 609 Nicoll V. Jones, 175 Noble V. Stow (30 Beav. 512), 211, V. (7 W. K. 709), 625 Noel V. Noel, 174 Nokes V. Gibbon, 186 V. Warton, 25 Norman, In re, 578 V. Johnson, 209 Mitchell, 138 215 Normanville v. Stanning, 194 Norris v. Jackson, 262 V. Wright, 302, 399 North ?;. Huber, 174, 175 North London Ely. Co., 46 Wheal Exmouth Mining Co., In re, 623 liv TABLE OF CASES. Northwiok, Ex parte, 36 Norton v. Fisk, 421 V. Hepworth, 215, 419 ■ V. Steinkopf, 169 V. White, 628, 536 Norwalli). PaSooe, 147 Norway v. Norway, 110 V. Eowe, 451, 682 Notley ■«. Palmer (1 L. K. Eq. 241), 37 ; (3 W. B. 201), 213 Noweil, In re, 507 V. Andover Kly. Co., 442 V. Whittakcr, 405 Noye's Settled Estates, In re, 263 Nugent V. Vetzara, 9 . Nunes' Settled Estates, In re, 599 Nutter V. Harrison, 621 Oats v. Chapman, 448 O'Brien v. Lewis, 15 V. Maitland, 402 O'Connor v. Sierra Nevada Co. (23 Bear. 608), 580 ; (24 Bear. 435), 678 Oddie V. Woodford, 622 Offen V. Harman, 300 Official laquidators of Southampton Steam- boat Company v. Eawlins, 167 Manager of National, &o., Associa- tion V. Carstairs, 194, 424 Ogden V. Battams, 219 ■y. Lowry, 205 Ogilby V. Gregory, 185 Oglander v. Oglander, 101 Oldfield V. Cobbett (12 Beav. 91), 511, 587 ^(20 Beav. 663), £28 (1 Ph. 613), 404 Olding V. Poulter, 476 Olive, In re, 234 Oliver, In re, 19 '■ V. Burt, 529 V. Wright, 192 Ommaney, Ex parte, 109 Oodeen v. Oakley, 222, 504 Ord, In re, 83 Orger v. Sparke, 97 Oriental Navigation Co. v. Briggs, 442 Ormerod, In re, 81, 90 Ormes v. Beadel, 451 Ormesby, In re, 501 Osbaldiston, ex parte, 48 ■ • V. Crowther, 401 Osborne, In re, 17, 19 V. Bright, 639 V. Foreman, 156 V. Harvey, 499 V. Jullion, 441, 442, 446, 451, 666 Otte V. Castle, 72 Overington v. Ward, 500 Overman r. Overman, 213 Ovey V. Leighton, 465 Oxford, &c. Ely. Co., In re, 49 ■'s (Earl of) cSse, 504 Owen V. Homan, 600 P. Page, In re, 19 «. Bennett, 273 V. Page, 404 Paine v. Edwardes, 206 Painter, Ex parte, 109 Palairet v. Carew, 109 Palk V. Clinton, 217 Palmer, Ex parte, 50, 51, 52 V. Hendric, 611 V. Symonds, 122 Palmerston (Lord), Ex parte, 43 Panton v. Labertouche, 678 Paradise v. Sheppard, 404 Paragon and Spero Mining Co., In re, 419 Parby, In re, 98, 249 Pare r. Clegg (29 Beav. 589), 198 V. (9 W. E. 216), 499 Parke's Trust, In re, 101 Parkes v. Nickson, 217 Parker, Inre (32 Beav. 580), 81, 100 (2 W. E. 139), 70 „. Morrell, 486 Parkinson v. Chambers (1 'K. & J. 72), 172 V. (3W.E.343),404 u. Hanbury (4 D. M. G. 608), 406, 406 V. (13 W. K. 191), 523 f. (13 W. E. 1056), 691 I'. Lucas, 553 Parmiter v. Parmiter, 521 ParneU v. Kingston, 100, 210 Parri!. Lovegrove, 154 Parrott v. Pawlett, 408 Parry, In re (6 Hare, 306), 67, 68 (34 Beav. 462), 245 (12 Jur. 615), 542 Parsons v. Groome, 508 V. Hardy, 462 Partington, In re, 36 V. Reynolds (4 Drew. 253), 203, 204, 626, 550 V. — (6 W. E. 307), ■ 579, 680 Partridge*. TTsbome, 446 Pasmore, Inre, 16, 678 Patch V. Ward, 175, 176 Paterson v. Paterson (2 L. E. Eq. 31), 95 V. (10 L. T., N. S. 183), 50 Patrick V. Blackwell, 451, 452 PauU V. Von Melle, 504 Payne v. Little (16 Beav. 563), 578 TABLE OF CASES. Iv Payne v. Little (21 Eeay. 65), 186 V. (19 L. J. Ch. 458), 41d ». Parker, 198 Peach, In re, 19 Peachy v. Somerset (Duke of), 273 Peacock v. Lowe, 172 's Settled Estates, In re, 242, 248 Pearce, In re, 366 V. Lindsay (1 D. F. J. 573), 586 V. (4 De G. & J. 211), 496, 497 V. Wrigton, 535 PearetU v. Marriott, 234 V. Peareth, 386 Pearse v. Cole, 530 i\ Dovinson, 446 Pearson •;;. Wilcox, 463 Pedder v. Pedder, 213 Pedley's Estate, In re, 38 Peers, In re, 20 Pegg V. Wisden, 158 Peile, In re, 20 V. Stoddart (1 M. & G. 192), 176 - — V. (11 Beav. 591), 412, 413 Peillau V. Brooking, 619 Peilldw v. Brookings, 290 Pellatt V. Nichols, 170 Pemberton, Sx parte, 26 Pender, In re (7 Beav. 487), 17 (8 Beav. 290), 16, 20 (10 Bear. 390), 16, 685, 591 592 Penfold V. Kelly, 428, 431 Peninsular Bank v. Sarthez, 221 Penkethman v. White, 175 Penn v. Bibbey (1 L. E. Eq. 548), 451 V. (3 L. K. Eq. 308), 522 V. Jack, 267 Pennell v. Davison, 186 ■». Milkr, 155, 156, 494 Penney v. Francis, 393 V. Goode, 174 Pennington v. Alvin, 166 Penny v. Penny, 399 Pensfold v. Bamsbottom, 442 Perez v. Pinto, 213 Perks, In re, 46 V. Stothert (11 W. E. 586), 631 V. — (11 W. R. 1016), 521 V. Stottart (1 N. E. 563), 185 V. Wycombe Ely. Co., 521 Perkins, In re, 16 Perry's or Sterry's Estate, In re, 45 V. Gibson, 187 V. Knott, 399 V. PheUps, 525 V. Tnrpin, 167, 172 ,;. Walker (4 Beav. 452), 406 V. (1 Coll. 229), 404, 405 V. (1 T. & Coll. C. 0. 676), 405, 504 r. Weller, 505 Peto V. Attorney-General, 475 Petroleum Co., In re, 420 Peyton, Sx parte (2 Jur. N. S, 1013), 51 In re (25 Beav. 317), 82 (10 W. E. 515), 284 V. Ayliffe, 445 Phelps V. Prothero, 451 V. Sproule (1 M. & K. 231), 443 V. (4 Sim. 319), 527 Philby V. Hazle, 18 Philips V. Gibbons, 485, 569 Phillips V. Goding, 414 V. Holmer, 176 r. Phillips (3 Giff. 200), 168 V. (8 Jur. N. S. 145), 404 V. Warde, 191 • — V. Prentice, 464 Phillipson v. Gatty, 399 Philpotts, In re, 24 Phippen v. Brown, 213, 215 Phipps V. Daubney, 15, 16 Picard v. Miehell, 50 Pick, In re, 48, 50 Pickanoe's Trust, In re, 104, 464 Pickett V. Loggan, 535 Pickford v. Brown, 213 v. Hunter, 446 Pidducke v. Boultbie, 530 Pierson v. Barclay, 400 Pieters v. Thompson, 393 Piffard v. Beeby (1 h. E. Eq. 623), 172 V. (1 L. E. Eq. 948), 148 V. Vanrenan, 394 Piggott V. Garraway, 486 Pigott V. Pigott, 199 V. Young, 205, 393 Pillan V. Thompson, 185, 186 Pince V. Seattle, 18 Pincke, Ex parte, 600 Piper, Ex parte, 541 Pitt, In re (27 Beav. 576), 283, 284 (1 Jur. N. S. 1155), 98 V. Bonner, 502, 530 V. Brewster, 399 V. Pitt, 404 Piatt V. Halldare, 164 V. Walker, 394 Pledge!;. Buss, 581 Plenty v. West, 100 Plestow V. Johnson, 578 Plomer v. Macdouough, 610 Plumbe V. Plumbe, 441 Plyer's Trust, In re, 85> Pole V. Joel, 192 V. Pole, 40 Pollard V. Doyle, 530, 536 Ponsardin v. Stear, 536 Ponsford v. Swayne, 176 Poole V. Gordon, 584 Portarlingtou v. Darner (2 Phill. 262), 393 - (11W.E.869),522 Porter, In re (3 W. E, 683), 83 Ivi TABLE OF CASES. Porter, In re (2 Jar. N. S. 349), 99, 100 Postlethwaite v. Travers, i78 Potts, In re, 245 V. Leighton, 601 . • V. ■Whitmore (8 Bear. 317), 434 V. ■ 10 Beav. 177), 415 Poulterers' Co. v. Askew, 466 Powell, In re (4 K. & J. 338), 83 ■■ (10 Hare, 134), 612 (1 N. R. 461), 515 V. Calloway, 471 V. Coekerell, 427, 429 V. Corfield, 448 V. Heather, 212 V. Martin, 511 V. Matthews, 84 V. Oakley (34 Beav. 575), 234 V. (6 N. K. 375), 234 Pownend v. Toker, 214 Powys V, BlagrOTe (Kay, 495), 186 „. (18 Jur. 462), 500 Pratt V. Walker, 531, 532 Prentice v. Prentice, 210 Prescott, In re, 104 Preston v. CoUett, 412, 537 V. Dickinson, 426, 426 Price V. Berrington, 687, 628 ■ ■ V. Dewhurst, 523 V. Gardner, 398 V. Salisbury (32 Beav. 446), 415 V. (11 W. K. 1014), 522 V. ■Wehb (2 Hare, 511), 388, 411, 413, 426 Prideaux, Ex parte, 15 Primrose, In re, 109 Prince Albert v. Strange, 405 Prince of Wales, &c. Co. v. Palmer, 202 V. Cooper, 220 -I). Hiue, 551 V. Howard, 494 Priolean v. United States, 178 Procter's Settled Estates, In re, 241 Prothero v. Phelps, 223, 261, 611 V. Thomas, 19 Pryse v. Cambrian, Ely. Co. , 529 Pudge V. Pitt, 523 Pngh, In re (17 Beav. 338), 16 (32 Beav. ; 1 D. J. S. 673), 18, 24 • (32 Beav. ; 11 W. B. 762), 26 Pulteney v. Shelton, 506 Pumfrey, In re, 63 Purcell V. Manning, 155 Q. QnAEMAN V. Williams, 508 Qnarrell v. Beckford, 19 Queen Camel (Vicar of). In re, 36 's College, Ex parte, 73, 542 Quilter, Expwrte, 19 Quin V. Eatclifie, 173, 176 Quinlan, In re, 88 E. Raebeih v. Squire, 451 Radford v. Roberts, 422 Eadley v. Meek, 192 Eailston, Ex parte, 47 Eaistrioh v. Elsworth, 538 Ralli V. Universal Marine Assurance Co., 622 Ramshay, In re, 80 Ranee, In re, 24 Randall, In re, 91 Eandfield v. Bandfield, 501 Ranger v. Great Western Rly. Co., 172 Ransom, In re, 18 Rashleigh v. Dayman, 471 Eateliffe, v. Winch, 503 Rattenbury v. Pinton, 523 Rattray v. Bishop, 506 Rawlings v. Lambert, 442 Rawlins, In re, 239 0. Wickham, 186 fflcMahon, 200 Rawlinson v. Moss, 387, 692 Raworth v. Parker, 170, 192 Raymond v. Brown, 192 Eayner v. Julian, 441 Read v. Barton, 419, 452, 465, 629 V. Smith, 588 Reade v. Bentley, xxxiv. ■ V. Woodroffe, 452, 456 Reading v. Hamilton, 49, 52 Record and Writ Clerks, In re, 231 Reece, In re, xxxiv. Eeedo. Prest (Kay, xiv.), 185, 186 V. (1 E. & J. 183), 198 V. Don Pedro Mining Co., 469 Kees, In re, 26 Reeve v. Attorney- General, 366 V. Hodgson, 378 Reeves v. Baker, 628 V. Hodgson, 184 Reg. V. Boyes, 189 — V. Eastwood, 20 Regatta (thp). In re, 503 Regent's Cainal Co. v. Warde, 47 Eehden v. Wesley, 170, 194, 228 Reid V. Langlois, 176 Reilly v. Reilly, 280 Eemnant, In re, 19 V. Hood, 562 Renard v. Levinstein, 455 Rendle v. Metropolitan Bank, 170, 188 Eenshaw v. Bean, 504 Eevel V, Hussey, 629 Eeveley, In re, 239 Reynault, In re, 100 TABLE OF CASES. Ivii EejnolJs, In re, 27 V. Caswell, 16 V. Godlee, 175, 176 Rhodes, In re, 15, 54, 65 V. Ibbetson, 151 - — - — V. Rhodes, 151 Richards, Hx parte (1 J. & W. 164), 109 In re (5 De G. & Sm. 636), 104 V. Curlewis, 191 • V. Plate!, 523 V. Scarborough Market Co., 386 Richardson v. De Held, 435, 530 V. Eyton, 540 ■ ■ V. Hastings (7 Beav. 58), 442 V. (7 Beav. 301), 399 r. (7 Beav. 354), 175 r V. Ward, 502 Riokards v. Rickards, 14S , Rickcord v. NedrifF, 420 Rieketts, In re, 67 ■». Martin, 497 Rider v. Kidder, 420 Ridgway v. Newstead, 150 Ridley v. Ridley, 194 V. Sutton, 592 V. Tiplady, 553 Eigby V. Rigby, 438 • V. Strangways, 430 Bigg, In re, 144 ■ — - V. Wall, 470, 491, 511 Rimell v, Simpson, 66 Rippin V. Dolman, 555 Risca Coal Co., In re, 484 Riskton v. Gressel, 452 Ritchie v. Humberstone, 393 Roberts, In re, 37, 100 V. BaU (3 Sm."& G. 168), 515 V. (3 W. E. 466), 66, 73, 542 . V. Collett, 366 V. Jones, 450 V. Kerslake, 267 v. Lucas, 16 Roberts v. Price, 205 Robertson, In re (23 Beav. 433), 47 (6 W. R. 405), 69 V. Norris, 154 . V. Southgate, 17, 215 Robey v. Whitewood, 577 Robins r. Mills, 17 Robinson's Trust, In re, 67 r. Anderson, 457 r. Aston, 577 ,-. Hadley, 499 r. Harrison, 674 V. Hewetson, 541 r. Rokeby (Lord), 418 V. Wall, 584 Robson V. Earl of Devon, 477 V. Flight, 176, 450 V. Whittinghapa, 263 Roby r. Scholea, 420, 490 Rochdale Co, v. King, 172, 179 Roche, In re, 99 Rogers v. Challis, 262 V. Fryer, 168, 412 V. Hooper (2 Drew. 97), 462 X'. (1 W. E. 474^, 404 c. (2 W. E. 679), 186 ('. Jones, 201 V. Kirkpatrick, 475 V. Mort, 152, 153, 188 Eolles' Charity, In re, 98 Eomilly v. Grint, 405 Romney, In re, 50 Eooke V. Kensington (Lord), 209 Rooper v. Harrison, 431, 462 Roper, In re, 242 Rose V. Rolls, 367 Ross, In re, 68 V. Ross, 103 Eotherham v. Batteson, 155 Rouse V. Jones, 503 Routhv. Tomlinson, 183, 163 Eowe V. Tonkin,. 167 Rowlands ». Evans, 202 Rowland v. Sturgis, 466 Eowlatt V. Cattell, 530 Rowley v. Adams (14 Beav. 130), 103 V. (16 Beav. 132), 542 ■ V. Burgess, 221 ■ V. Eccles, 442, 443, ii Euberv v. Morris, 578 Rucker v. Scholefield, 202, 212 Radge v. Weedon (4 De G. & J. 216), 212 V. (7 W. R. 819), 73 Rudyerd's Estate, In re, 36 Rnmbold ». Forteath (3 K. & J. 44), 150, 173, 174, 176 r. (4 Jur. N. S. 608\ 531, 536 Rump V. Qreenhill, 393, 422 Rumsay ». Rumsay, 590 Rushout V. Turner, 171 Russell, In re (12 Jur. N. S. 224), 97 (1 Sim. N. S. 404), 92 V. Lond., C. & D. Rly. Co., 503 V, Lucy, 490 . -v. Nicholls (15 Sim. 151), 150 (9 Jur. 613), 552 V. Shenton, 44 Rutter V. Marriott, 648 Ryales v. Reg., 15 Eyan's Settlements, In re, 91 Rye, /»u-e(3 W. R. 198), 544 (1 Jur. N. S. 222), 146 S, Sabin v. Heape, 138 St. Bartholomew's Hospital (Trustees of), Ex parte, 52 St. Catherine's Dock Co., In re, 47 St. Giles's Volunteer Corps, In re, 65 Iviii TABLE OF CASES St. Katherine's Dock Co., In re, 52 St. Panoras Burial Ground, In re, 45 St. Paul's (Precentor of), Ex parte, 42 St. Sepulchre's (Vicar of). Ex parte, 47 St. Thomas' Hospital, Ex parte (7 W. E. 425), 48 In re (11 "W. K. 1018), 36 St. Victor V. Devereux, 397, 404, 405 Saleu. Kitson, 198 Salmon v. Dean, 443 Salvidge v. Hyde, 441 Salomon v. Stalman, 463, 530, 532 Salter v. Tiddesley, 393 Salway v. Salway, 501 gamble i!. Wilson, 205 Sampson, In re, 203 Samuda v. Lawford, 262 V. Fartado, 443 Sanders v. Benson, 444 • V. Homer, 113 Sanderson v. Walker, 495 . Sandford v. Ballard, 499 V. Sandford, 402 Saner v. Deavin (14 Beav. 646), 471 V. (16 Beav. 30), 528 Sansom v. Boon, 17 Sargent v. Gannon, 16 SauU, In re, 27 Saumarez, In re (4 W. E. 668), 81 (25 L. J. Ch. 575), 104 Saunders v. Druoe, 443, 151 V. Richardson, 522 «. Walter (9 Hare, v.), 144 • — V. (2 H. & T. 199), 402 Sauston (Vioar of). Ex parte, 37, 49 Savage v. Hutchinson, 379 Savile v. Bruce, 239 Sayer v. Bush, 17 v.Wagstaff, 18, 24, 25, 26 Sayrei;. Cramp, 264 Schneider v. Llzardi, 442, 448, 605 V. Shruhsole, 267 Sohofield, In re, 110 Sohotsman's v, Lancashire and Yorkshire Ely. Co., 263 Schroder v. Schroder, 124 Scott V. Liverpool (Mayor of), 191 • v.- Meanock, 178 V. Scott, 54 V. Stanford, 504 V. Stone, 394 V. Wheeler, 215, 419, 420 Scottish Union Insurance Co. v. Steele, 582 Scotto V. Heritage, Izzxix. Sealey v. Gaston, 166 Seaton v. Grant, 450 Seidler, Ex parte, 679 Seilaz v. Hanson, 579 Seixoi). Provezende, 504 Senhouse v. Earl, 446 Senior v. Pritchard, 221 Senior r. Pawson, 262, 263 Sergison ti. Beavan' (9 Hare, xxix.), 419 (16 Jur. 1111), 222 Severn v. Fletcher, 217 Sewell V. Ashley, 203 V. Godden, 421 Sewing Machine Co. v. Millard, 475 Sexton Barn's Settled Estates, In re, 247, 248 Shaken, Ex parte, 24 Shakels v. Richardson, 399 Sharp V. Wright, 565, 583 Sharpe, In re, 69, 71, 72 V. Blondeau, 162 Sharpley's Trusts, In re, 73 Sharshaw v. Gibbs, 71, 208 Shaw, Ex parte, 36 , 7mi-e(llSim. 182), 8 (20 L. J. Q. B. 280), 20 V. Forest, 531, 542 V. Hardingham, 198 V. Johnson, 551 • V. Neale, 6 V. Rhodes, 501 Sheffield (Corporation), Ex pwrte, 36, 49 (Town Trustees of), Ex parte, 49 V. Lord Coventry, 137 Waterworks Act, In re, 593 Sheldrake v. EUiston, 418 Shepherd, In re, 103 V. Churchill, 90, 97 V. Jones, 504 Sheppard v. Harris, 401 V. Sheppard, 550 Sherratt v. Bentley, 110 Sherwin v. Shakespeare, 496 Sherwood v. Beveridge, 485 V. Rivers, 429 ,■«. Vincent, 183 Shillito V. CoUett, 8, 9 Shipbrooke (Lord) v. Hinchinbrook (Lord), 529, 540 Shipton V. Rawlins, 399 Short «. Eoberts, 225, 637, 646 Shrewsbury (Earl) v. Trappes, 395, 398, 522, 592 &o., Ely. Co. V. Stour Valley Ely. Co., 265 School, In re, 542 Shrimpton v. Saight, 504 Shrine v. Powell, 410 Shuttleworth, In re, 47 Sibbaldo. Lowrie, 178,179 Sibson V. Edgeworth, 441, 442 Sidebotham v. Watson, 123 Sidebottom v. Atkins, 432 r. Sidebottom, 394 Sidefield v. Thacker, 540 Sidney v. Wilmer, 60 Siffken v. Davis, 198, 205 Silver v. Stein, 200 Simmonds v. Pallts, 480 TABLE OF CASES. lix Simmons v. Wood, 434, 435, 440 I'. Heaviside, 606 Simpson u. Brown, 175 V. London and N. W. Ely., 213 V. HoUiday, 267 Simson, In re, 283 Singer Sewing Machine Co. v. Wilson, 627 Singleton's Estate, In n, 52 Singleton v. Hopkins, 84 Skarf V. Sonlby, 469 Skeats v. Hurst., 631 Skegg, In re, 36, 523 V. Simpson, 420 Skey V. Garlike, 447 Skidmore, In re, 582 Skitter, In re, 80, 88, 97 Skynner r. Peliehet, 105, 314 Sladden, In re, 25 Slattery v. Axton, cxiv. Sleight V. Lawson, 219 Sloggett V. Tiant, 580 Sloper, In re, 104 Smallwood v. Butter, 68 Smith, Ex parte, (6 By. Ca., 150), 51 In re, (4 Beav. 309), 16 (9 W. B. 396), 387 (14 W. E. 218), 51 ^(14 W. E. 949), 543 .(3 Jul-. N. S. 659)," 73 V. Acton, 375 V. Andrews, 198 V. Armstrong, 156 ■ V. Baker, 170, 361 • i;. Barnes, 176 V. Boucher, 84 V. Comfort, 580 V. Dimes, 19 1).- Dixon, 411, 587 • — V. Edwardes, 192 V. Effingham (Earl), 586, 591, 592 V. Etches, 166, 203, 579 V. Groves, 428 11. Guy, 554 V. Hammond, 579 V. Harwood, 495 v. HorsfaU, 212, 214 ■ V. Kay, 441 V. Leathart, 131 V. Marshall, 418 — - — v. Nelson, 643 V. Pawson, 405 v. Eobinson, 206 ■». Smith (3 Drew. 72), 85 V. (1 Dr. & Sm. 334), 280 • V. (Kay, xxii.), ii. B. Spilsbury, 204 — V. Stuart, 133 V. Swansea Dock Co., 192, 465 V. Wells, 470 Smith V. Whitmore, 496 Smyth, In re (2 De G. & S. 781), 104 (11 W. E. 860), 66 's Settlement, In re, 115 Snowdon v. Metropolitan Ely., 150 Soames v. Edge, 262 Southampton, &c. Steamhoat Co. v. Baw- lins, 470, 572 South Eastern Ely. Co., In re, 37 South Eastern Ely. Co. v. Suhmarine Telegraph Co. (23 L. J. Ch. 183), 539 V. • ■ (2 W. R. 31), iii. South Wales Ely. Co., In re, 54, 57 Southwood V. Tayler, 505 Sowry V. Sowry, 37 Spain (King of) v. Machado, 207 ». Hullett, 413 Sparling v. Brereton (2 L. E. Eq. 148 V. -^ (14 W. E. 515), 420 Sparrow v. Ewing, 216 Spawforth, In re, 91 SpeidaU v. Jervis, 480 Spencer v. Allen, 516 B. Bryant, 403 V. Mostyn (Lord), 540 Spioer v. Dawson, 611, 627 Spiller, In re, 283 Spire V. Bernard, 16 Spires v. Sewell, 636 Spooner, In re, 61, 56, 591 V. Payne, 476 64), Sporle V. Whayman, 206 Sprye v. Reinsell, 413 Stacey v. Southey, 221 Stafford V. Buckley, 300 Staggall, In re, 211 Stahlschmidt v. Lett, 679 Staines v. Eudlin (9 Hare, liii.), 206 V. (16 Jur. 966), 207 Stainton v. Carron Co. 219 V. Chadwick, 454 Stamford (Earl of) v. Dawson, xxxit. Stanes v. Parker, 25, 26 Stanford v. Lloyd, 180 Stanley v. Bond, 480 V. Eobinson, 461 StansBeld v. Hobson, 198 Stanton v. Perceval, 462 Staples, Ex parte, 60 Stapleton v. Stapleton, 121, 162 Starr v. Newberry, 119 Stebbing v. Atlee, 152, 153 Steedmau v. Poole, 630 Steel V. Cobb, 401 V. Gordon, 420 Steele, Ex parte (16 Ves. 166), 15 In re (20 L. J. Ch. 56), 24 V. Plomer, 418, 421, 425 V. Stewart (1 Ph. 471), 175 . „. (1 H. & M. 793), 425 Ix TABLE OF CASES. Stent V. 'Wickena, 455 Stephen, J% re, 16, 22, 25 Stephens V. Heathcote, 170 v. Newborough (Lord) (10 Beav. 403), 691 V. ■ (11 Beav. ' 403), 586, £92 V. Wanklin, 189 V. Workman, 606 Stephenaon v. Biney, 466 Stevens, Ex parte (2 Ph. 772), 57, 512 (15 Jur. 243), 62 ■ V. Guppy, 497 - V. Keating, 536 Stevenson v. Abington, 551 Steward, In re, 42 Stewart, In re (1 Sm. & G. 32), 36 (4 De G. & J. 317), 109 (9 Hare, xlvii.), 200 (8 W. E. 297)-, 81, 99 (8 W. K. 425), 82 V. G. W. R. Co. (2 D. J. S. 319), 223; (6N. K. 325), 223 .^. Stewart, 579, 680 Stinton v. Taylor, 413, 462, 570 Stobart v. Todd, 188 Stock, Ex parte, 72 Stockbridge Kly. Bill, Ex parte, 64 Stokes V. City Offices Co., 159 V. Trumper, 17, 19 Stone V. Davies, 416 V. WlBhart, 500 Stones V. Rowton, 304 Storre v. Benbow, 498 Story, In re, 23 V. Official Manager of the National Insurance Co., 413, 536 Stott V. Meanock, 164 Stour V. Great Western Ely. Co., 437 Straford, In re, 22, 23 Stratford v. Baker, 211 Streeten v. Whitmore, 516 Strickland v. Strickland, 681 Strong, In re, 7, 234 V. Moore, 197 ■ V. Strong (18 Beav. 408), 399 0. (6 W. E. 455), 73 Strother, In re (3 K. & J. 518), 17, 18, 26 V. Button, 469 Stroud V. Norman, 71 Stroughill V. Gulliver, 150 Stuart V. Ansel), 606 V. Bute (Marquis of), 7 V. Greenall, 592 V. Lloyd, 414 V. Sturges, 475 Stubbs V. Sargon, 631 Studdert, Ex parte, 36 Stuparti). Arrowsmith, 208 Sturch V. Young, 499, 531 Sturge, In re, 70 Sturge V. Dimsdale, 586, 593 Sturgis V. More, 691 — v. Morse, 186 ^— V. Paley, 641 Stutely, Ex parte, 73 Styan, Ex parte, 62 Sudlow, In re, 17 Suffield (Lord) v. Bond, 456 Summerfield v. Pritohard, 173 Sunderland (Freemen and Stallingers of). Ex parte, 44, 45 Surr V. Walmesley, 188, 622 Sutherland v. De Virenne, 201, 202 Sutton V. Jones, 500 Swabey v. Sutton, 450 Swaby v. Dickon, 500 Swaine v. G. N. Ely. Co., 262, 265 Swale V. Swale, 394 Swallow V. Binns, 118, 200, 201, 202, 210 Swan, In re, 68 0. Webb, 220 Swansea Tale Ely. Co. v. Budd, 173 Swanzy v. Swanzy, 579, 581 Swayne v. Swayne, 507 Swift V. Swift, 7 Sykes, In re, 194, 627 — v, Hastings, 500 Tabiei's (Lord de). Settled Estates, In re, 246, 253 Talbot V. Hope Scott, 499 V. Marshfield (1 L. E. Eq. 6), 177 V. (13 W. R. 885), 176 V. (Ayckb. 319), 637 Tampier v. Ingle, 637 Tanfield v, Irvine, 499 Tanner v. Strutton, 460 Tanswell v. Scurrah, 194 Taprell v. Taylor, 403 Tarbuok v. Tarbuck (4 Beav. 149), 19 V. — ■ (9 Beav. 134), 641 V. Woodcock, 583 Tardrew v. Howell, 30 Tarrett v. Lloyd, 201 Tassell v. Smith, 122 Tate V. Hitohens, 16 V. Leithead, 213 Taylor, Ex parte (1 Y. & Coll. 229), 62 In re (10 Sim. 291), 8 (11 Sim. 178), 8, 9 (16 Beav. 146), 17 (18 Beav. 165), 21 ■ (1 Mac. & G. 210), 50 (2 D. J. S. 249), 60 V. Anstey, 402 V, Brown, 267 V. Hodgson, 16 i>. Midland Rly. Co., 522 V. Milner, 485, 569 TABLE OF CASES. Ixi Taylor t-. Parker, 437 V. £uudell, 175 • V. Salmon, 437, 438 ». Taylor, 504, 526 r. Wrench, 459 Teague, In re, 20 V. Eioliardsi 469 Teed v. Beere, 155 Telford v. Enskin, 451 Tempest, In re, 100 V. Ord, 500 Temple ». Holland, 638 Templeman, In re, 387 Templer, litre, 85 Tench v. Cheese, 582 Terrell v. Higgs, 223 Tetley, Ex parte, 48 Teynham, In re, 111 Thatcher v. Lambert, 451 Third Burnt Tree Building Society, In re, 92, 542 Thistlethwaite v. Gfarnier, 118, 121 Thomas, In re (11 W. R. 276), 73 (12 W. B. 546), 51 (22 L. J, Ch. 858), 109 V. Cross, 15 V. Bernard, 171 V. Earl of Jersey, 418 V. Griffiths, 155, 547 V. Bawling, 455 V. Eawlings (27 Beav. 140), 175 0. (34 Beav. 50), 525 V. Selby, 418, 427 — V. Thomas, 401 V. Walker, 109 Thompson's Settled Estates, In re (Johns. 413), 244, 248, 249, 599 , In re (8 Beav. 237), 25 (25 Beav. 245), 408 (13 L. T. N. S. 746), 23 (14 L. T. N. S. 6), 18 . — Ex parte (3 L. T. N. S.), 30 V. Jones, 402, 412 v. Knight, 529, 540 V. Partridge, 191 • — V. Smith, 629 V. Thompson, 393 V. Tomlins, 69 Thomson, In re, 387 Thornhill v. Copleston, 119 V. Manning, 496 v. Milbank, 643 r. ThornhUl, 500 Thornton, In re, 72, 98, 113 V. Finch, 355 • V. McKewan, 223 Thorp V. Owen, 150 r. Thorp, 71 Thorpe v. Jackson, 400 V. Macarty, 442 Thring v. Edgar, 443 Thurgood, In re, 18 Thurgood v. Kane, 481 Thurlow V. Treehy, 423 Tiohborne v. Tiohborne, 610 Tiokner v. Smith, 204 Tidd V. Lister, 507 Tiel, In re, 494, 521 Tiffin «. Parker, 396 Tilleard, In re, 19 Tillett V. Charing Cross Bridge Co., 262, 263 Tinstone's Trusts, In re, 66 Tipping V. Clarke, 454 V. Eckersley, 604 Tiverton Market Co., In re, 47 Tobin V. The Queen, 633 Todd V. Wilson, 25, 26 Toft, In re, 47 ToghiU V. Grant, 20 Tollett V. Tollett, 275 Tolson f. Jervis, 373 V. Lord Eitzwilliam, 442 Tomliuson, In re, 8 Tommey v. White, 525 Tooke V. Clavt, 475 Tookey, In re, 61 Topham v. Portland (EarJ of), 522 Topping V. Searson, 148, 386 ToiT V. Torr, 478» 479, 480 Tottenham, &c. Ely. Co., In re, 57 Totty V. Ingleby, 421 Tousnay, Ex parte, 67 Towle, In re, 25 Towne v. Bonnin, 440 Townend v. Wilson, 504 Townley v. Deare, 504 V. Deere, 498 Townsend, In re (2 Ph. 348), 109 (1 M. & G. 686), 109 V. Williams, 186 Towsey v. Groves, 156 Tracy v. Smith, 425 Trafford, Ex parte, 49 Travers v. lUingworth, 100 TrodwelU. Byroh, 580 Trevelyan v. Charter, 494 Trevillian v. Knight, 139 Treweck v. Turner, 438 Trezevant v. Broughton, 212 Trilly v. Keefe, 483 Trinity House(Corporation of), Expwrte, 49 Troup V. Eicardo, 407 Trower, In re (14 Jur. 54), 68 ■ (1 L. T. N. S. 154), 71 Truck V. Lamprell, 170 Trulock V. Eobey, 525 Tryon v. Westminster Improvement Com- missioners, 442 Tuck V. Silver, 505 Tucker ». Hemaman, 160, 687 V. Wilkins, 215 Tuckley v. Thompson, 206 Tudor V. Morris, 198 Ixii TABLE OF CASES. Tugwelli;. Hooper, 430 Q^uUett V. Armstrong, 529 TuUooh V. TuUoch, 220, 39i Tunstall, In re, 100, 101 Turbutt's Settled Estates, In re, 245, 253 Turner, Sx parte (5 D. M. G. 540), 24 (9 W. R. 223), 31 In re (4 W. R. 805), 26 (10 W. E. 128), 48 V. Burkenshaw, 176 V. Burkinshaw, 179 V. Hand, 26 V. Hodson, 494 ' V. Molineux, 109 V. Sampson, 449 V. Sowden, 402 V. Speakman, 83 V. Turner (4 Sim. 49), 412 V. (30 Beav. 414), 148 V. (6 W. E. 95), 253 V. : (7 W. R. 573), 186, 576, 593 . V. (15 Jur. 1166), 587 V. Wright, 504 Turuey v. Bayley, 176 Turnley, In re, 69 Tweedy, In re, 109, 542 Twyford «. Traill, 154 Tylee v. Tylee, 501 Tyler, In re (5 De Q. & S. 56), 101 (8 W. R. 540), 37 V. Bell, 442 Tynte «. Hodge (2 J. & H. 692), 148, 578, 580, 584 V. (2 H. & M. 287), 526 Tyrone (Earl) v. Marquis Wateiford, 124 U. Umpheley v. Waveney Valley Rly. Co. 6, 215 Underwood, In re, 80, 84 ■— V. Jee, 393 V. Secretary for India, 174 Ungless V. Tuff, 148, 291 United Kingdom Life Assurance Co., In re, 66, 67 United States of America v. Wagner (3 L. R. Eq. 724), 178 V. (16 W. E. 1027), 178 Unity, &o. Association, In re, 420 UpfuU, In re, 70 Upjolm V. Upjohn, 469 Ure V. Lord, 212 Urlin V, Anon,, 444 Usticke V. Peters, 133 V. Vaot v. Vaoy, 202 Vale of Neath Rly. Act, In re, 543 Vallanoe, In re, 27 Vanderwell v. Vanderwell, 554 VanSandau, Ex parte, 609 V. Rose, 506 Vardy, In re, 21, 22 Varley, In re, 464 Varteg Iron Works Chapel, In re, 463 Vanghan v. Fitzgerald, 410 V. Rogers, 481 Vawdry, In re, 53 Veal V. Veal, 367 Veitch V. Irving, 578 Ventilation and Sanitary Improvement Co. V. Edelston, 491 Ventnor Harbour Co., In re, 357 Vernon ». Vernon, 441 Vidler v. Parrott, 291 Vigers v. Lord Audley, 441 Vincent v. Hunter, 580 V. Venner, 21 V. Watts, 428 Vines, In re, 19 Viney v. Chaplin, 493 Vorley v. Jerram, 191, 192 V. Richardson, 118 Vorneig v. Barweiss, 379 W. Waddilote-». Taylor, 386, 507 Wade V. Ward, 109 Wadham v. Rigg, 203 Wagner v. Mears, 405 Wake V. Wake (1 W. R..283), 87 V. ■ (17 Jur. 545), 112 Wakefield v. Buccleugh (Duke of), 505 Waloot 4>. Walcot, 428 Waldo V. Caley, 622 Walker, Ex parte (19 L. J. Bankruptcy, 3), 99 In re (C. & Ph. 147), 80 (7 Rly. Gas. 129), 50 (16 Jur. 1154), 71, 208 v. Easterby, 579 V. Fletcher, 464 Walker v. Hurst, 422 V. Kennedy, 179 V. Mioklethwaite, 223, 503 V. Ware, &c., Rly. Co., 56 Wall V. Hall, 247, 290 V. Stubbs, 444 Wallisj). Bastard, 149 V. Darby, 420 V. Sarel, 469 V. Vigors, 162 Walmsley v. Foxhall, 498 TABLE OF CASES. Ixiii Walrond v. Parker, 512 Walsh, In re, 25, 27 Walsham v. Stainton, 175 Waltham v. Goodyear, 425 Walton, In re (i K. & J. 78), 15, 387 Wand V. Woodcock, 308 Warburton v. Hill, 507 Ward, Ex parte, (2 D. G. & Sm. i), 41 • In, re (2 Giff. 123), 401 (2 W, E. 406), 70 (14 W. E. 96), 283 V. Cartwriglit, 216 ■ V. Higgs, 265 V. Shakeshaft, 212 V. Swift, 386, 502 Warde, In re, 285 r. Claxton, 530 V. Dixon, 171 V. Warde, 8 Warden v. Feddington, 174 Ware v. Watson, 155, 156, 570 Waring, In re, 66, 68, 69 V. Manchester, SheflSeld, and Lan- cashire Ely. Co., 531 ■ V. Williams, 19 Warner v. Armstrong, 587 Warwick, dec. Ely. Co., In re, 525 ■ Charities, In re, 98 ■ ■». Queen's College, 176 Washoe Mining Co. v. Fergnson, 580, 581 Wason V. Westminster Improvement Com- missioners, 525 Wastell V. Leslie (14 Sim. 84), 586 V. (4 D. M. G. 818), xlviii. Waterhouse v. Wilkinson, 156 Waters v. Chambers, 444 • V. Mayhew, '444 ■ V. Shaftesbury (Earl) (2 L. E. Ch. 231), 146 . V, (14 W. E. 25«), 176 V. Taylor, 25 V. Thome, 539 Waterton v. Croft, 419 Watkins v. Atchison, 410 V. Parker, 406 Wallington's Trusts, In re, 66 Watson V. Cleaver, 191, 466 V. Parker, 485 Watt V. Watt, 614 Watteau v. BiUam, 580 Watts, Ex parte (2 Mont. & A. 621), 20 Watts' Charities, /»« (30 Beav. 404), 396 Settlements, In re (9 Hare, 106), 85, 99, 304 Watts V. Hughes, 419 V. Hyde, 217 V. Kelly, 580, ii. V. Manning, 581 V. Watts, 214 Waugh, In re (2 J). M. G. 279), 81, 116 — (15 Beav. 508), 16 Waugh, In re (29 Beav. 665), 17, 211 V. Waddell, 15, 16 Wavell, In re, 17, 18 Wawhood v. Labouchere, 428 Way's Settlement, In re, 71 Waybank, In re, 360 Wayu V. Lewis, 206 Weatherhead v. Blackburn, 446 Webb's Policy, In re, 66 V. Byng, 208 V. London and Portsmouth Ely. Co., 496 V. England, 442 • V, Grace, 17 V. Salomon, 420 ■ V. Wardle, 217 Webster, In re, 51 V. he Hunt, 386, 387 V. Taylor, 515 V. WoodfaU, 407 Wedderburn v. Thomas, 477 — - — ■ V. Wedderburn, 446, 611 Wedderburue v. Llewellyn, 687 Wedgwood v. Eoch, 410 Wedmore v. Bristol (Oorpoiation), 262, 263 Weeding, In re, 96] V. Weeding, 540 Weeks v. Evans, 399 V. Hewart, 537 V. Stonrton, 176 Weguelin v. Lawson, 425 Weightman v. Powell, 411, 412, 477 Welch i;. Welch, 429 Welchman, In re, 25 Weld V. Crawford, 17 Wellesley v. Beaufort (Duke of), 8 V. Mornington (5 W. E. 393), 186 V. (11 W. E. 17) 507 V. (18 Jur. 552), 404 1: (22 L. T. 233), 496 V. Wellesley (16 Sim. 1), 404 V. (4ffl. & Cr. 554), 441, 442 .(DeG. &J. 164), 498 Wells, In re, 19, 21, 25 • V. Maldon, 68 ■ ■ V. Wells, xlviii. Welsh V. Silwell, 15 Wentworth v. Lloyd (2 L. 607), 608), V. V, West V. Laine, 203 V. Smith, 529 E. Eq. 686, 592 (3 L. E. Bq. 591 (34 Beav. 455), 591 (13 W. E. 146), 139, 513 Ixiv TABLE OF CASES. Westbyi). Westby, 516 Western Bank of Scotland, In re, 495 Western Benefit Building Society, In re, 464 Westfield v. Skipwith, 584 Westhead v. Sale, 108 Westminster (Dean of), In re, i2. , &c., RIy. Co. V. Cilayton, 174 Weston V. Filer, 95 V. Joy, 460 Wcstwood, In re, 113 Weymonth v. Lambert, 420 Whale V. Griffiths, 614 Whalley, In re (20 Beav. 573), 17, 19, 593 ». Whalley, 386 V. Williamson, 20 Wharton v. Swann, 412 Wheat V. Grahame, 459, 569 Wheeler, In re,. 103, 109 Whicher, In re, 26 Whistler «. Aylward, 490 White V. Baugh, 501 V. Cohen, 504 V. Johnson, 394 V. Lyon, 394 ■!>. Phippa, 516 V. Steiuwacks, 506 ■ V. Williams, 45 Whiteaves v. MelviUe, 201 -Whiteheads. Lynes (34 Bear. 166), 264, 500, 613 . v.- (12 L. T. N. S. 332), 622 ■». North, 494 Whitfield (Incumbent of). In re, 51 V. Lequetre, 476 V. Roberts (7 W. R. 216), 206, 207 V. (9 W. R. 844), 29 Whitley, In re, 109 Whitling, In re, 69, 73 Whitmore v. Ryan, 425, 426 V. Sloane, 456 , ». Tnrquand, 629 Whittington v. Edwardes, 203, 393 11. Gooding, 202 Whitworth v. Whyddon, 155 Whopham v. Wingfield, 66 Wickenden v. Rayson, 206, 496 Wickham v. Nicholson, 206 Wieks V. Hunt, 261 Wigan Glebe Act, In re, 86 ». Rowland, 170 Wigginton v. Pateman, 491 Wigham v. Measor, 205, 206 Wightman v. Wheelton, 194, 223 Wilcox V. Marshall, Ixxxix. Wilooxon V. "VTOkins, 421 Wild V. Gladstone, 444 V. Murray, 680 Wilde V. Wilde, 491 Wildeman v. Lade, 496 Wilding V. Bolder, 100 Wiles V. Cooper, 562 V. Gresham, 302 Wilhelm v. Reynolds, 170 Wilkin V. Nainaby, 477 Wilkins v. Hogg (SO L. J. Ch. 492), 431 — V. (4 L. T. N. S. 12), 462, 475, 478 V. (9 W. R. 688), 475 V. Reeves, 198 • «.' Stevens, 395 Wilkinson, Ex parte (3 De G. & S. 633), 38, 41 (2 Deao. 151), 100 /rare (12 W. R. 622), 76, 97, 244 V. Belsher, 403, 405 V. Foulkes, 214 V. Lewis, 580 V. Stringer, 192 r. Turner, 476 Wilks V. Groom, 80 Willan, In re, 109, 401 Willey V. South Eastern RIy. Co., 56 Williams, Ex parte, 136 , , In re (15 Beav. 417), 18 (28 Beav. 465), 20, 387 (5 De G. & S. 515), 96, 648 (4 K. & J. 87), 68, 69 (11 Sim. 54), 96 (7 Jur. N. S. 323), 176 (8 W. R. 678), 234 V. Allen (29 Beav. 2S2), 399 V. (32 Beav. 656), 200 V. (10 W. R. 512), 201 V. Glenton, 140 V. Griffiths, 15 V. Jackson, 211 • V. Jones, 427 V. Newton, 434 i>. Page (24 Beav. 490), 536 V. (24 Beav. 669), 208 ■ ». (27 Beav. 373), 202 V. (28 Beav. 148), 490 „. (1 De G. & J. 561), 496 o. Prince of Wales Assurance Co. 173, 175 r. Roberta, 504, 611 ■ ». Roker, 84 V. Rowland, 535 —■ V. Rowlands, 200 r. Williams (17 Beav. 156), 194 ». (33 Beav. 306), 267 V. (10 Hare, xlv.),186 V. .- (2 W. K. 205), 166 V. (9 W. B. 226), 214 '•. (9 W. R. 888), 244 ». (12 W. R. 663), 466 Williamson v. Jeffreys (9 Hare, Ivi.), 144 TABLE OF GASES. , Ixv Williamson v. Jefeys (12 W. E. 403), 213 Willimott V. Ogilby, 212 Willis V. Childe, 455 ■ V. Parkinson, 494 Williway, In re, 260 Willoughby's Charity, In re, 389 Wills, In re, 401, 682 Willyams v. Hodge, 401 Wilson's Estate, In re, 246 V. Applegartli, 469 V. Auohterlony, 214 1). Bates, 609 V. Bennett, 124 I. BroughtOD, 587 V. Emmett, 20, 387 V. Foster, 50, 51 ii. Goodman, 400 V. Gray, 394, 395 • V. Gutteridge, 17 V. Moore, 264 V. Round, 30 V. West Hartlepool Ely. Co., 522 ■». Whateley, 118, 211 V. Wilson, 501 Wilten V. Bumbell, 430 Wilton, In re, 26 V. Clifton, 454 V. Hill, 166 V. Jones, 198 Wilts, &e. Ely. Co., In re, 7 Wiltshire's Estate, In re, 204 V. Marshall, 185 Winchester (Bishop), Sx parte, 42 V. Bowker, 174, 176 College (Warden), Sx parte, 543 Windsor, Staines, and South Western Ely. Act, 48 Wing V. Harvey (1 Sm. & G. x.), 174, 193 •;;. (17 Jur. 481), 152 Winkworth v. Winkworth, 645 Winnell ti. Featherstonhaugh, 414 Winscom, In re, 9 Winter v. Jones, 540 V. Paine, 17 V. Stahle, 214 Winterbotham, In re, 18 Winteringham's Trusts, In re, 83, 104 Winthrop v. Elderton (15 Jur. 1028), 445 V. (1 W. R. 318), 627 V. Murray, 537 V. Eoyal Exchange Assurance Co., 679 V. Winthrop, 540 Wintle V. Bristol Ely. Co., 504, 505 Wise, In re, 109 Wisewold, In re, 387, 490 Witham v. Salvin, 412, 428 Withey v. Haigh, 587 Withington v. Withington, 99, 304 Wood, In re (15 Sim. 469), 72 (3 D. K. J. 126), 80 (7 Jur. N. S. 323), 81 Wood V. Beadel, 503 1). Beetlestone, 95, 105 V. Farthing, 522 V. Harper, 231 V. Hitchiugs, 456 V. Midgeley, 441 V. Scarth, 186 Wood V. Vincent, 508 Woodburn, In re (1 De G. & J. 333), 67, 63 (13 L. T. N. S. 237), 62, 64 (26 L. J. Ch. 622), 66 ■ — V. Grant, 170 Woodcock V. Oxford, Worcester, and Wol- verhampton Rly. Co., 688, Woodgate, In re, 100 Woodhatch v. Freeland, 174, 628 Woodroffe v. Daniell, 465 Woods V. Woods, 682 Woodward v. Conebear, 434, 435 V. Lincoln (Earl of), 506 WooUams v. Baker, 475 WooUard, In re, 71, 72 WooUett, In re, 19 WooUey, In re, 63 Wordsworth v. Parkins, 214 Wormald v. De Lisle, 441 WormslOy v. Sturt, 152, 556 Worrall v. White, 580 Worth V, Mackenzie, 401 Worthington, In re, 37 Wragg, In re, 103 V. Wragg, 191 Wren v. Kirton, 501 Wright, In re (3 E. & J. 419), 68, 69 (1 Sm.& G. v.), 72, 366 (15 Beav. 367), 67 (6 W. R. 718), 36 ■ V. Angle, 389 V. Atkyns, 503 V. Edwards, 171 • — V. Green, 437 V. Irving, 396 ■». King (9 Beav. 161), 386, 387 V. (18 Beav. 461), 208, 209 V. Tatham, 410, 53!) Wright V. Taylor, 515 V. Wilkin (4 Jur. N. S. 627), 188 V. (6 W. E. 643), 187, 188 V. (11 W. R. 253), 614 V. (11 W. R. 851), 212 1'. Woodham, 121 Wroe V. Clayton, 514 Wrottesley v. Bendish, 402 Wroughton v. Colquboun, 150 Wycherley v. Barnard, 156, 646 Wylde, In re, 104, 542 Wyllie, In re, 68 V. EUioe (6 Hare, 506), 447 i>. . (11 Beav. 99), 581 Wynch, Ex parte, 300 Wyndham v. Cooper, 5 Ixvi TABLE OF CASES. Wynne v. Humberston, 176, 179 V. Hughes, 393, 425 Taknell v. Rose, iiS Tate V. Lighthead, 162 TateB, In re, 23 i V. Jack, 504 V. Plumbe, 158 Yearsley v. Budgett, 476 ■ ■». Yearsley, 396, 686 Teates, In re, 49, 61 Yeatman v. Mousley, 162 V. Read, 376 Yeoman v. Haynes, 150 Yetts, In re, 17 York and North Midland Ely. Co. v. Hud- eon, 151, 569 Young, JEx parte (4 W. E. 127), 8 In re (5 W. R. 406), 73 V. Goodson, 418 «.. Keighly, 525 V. Quineey, 536 ' V. Ward, 197 I V. White, 443 Z. Zhlijeta v. Vinent (15 Bear. 273), 476, 514 V. (15 Beav. 575), 222 ' V. (3 M. & G. 246), 417, 421 EDITIONS OF BOOKS REFERRED TO. TITLE OB BOOK. EDITION. Ayokboum'a Chancery Practice 8th Chitty's Statutes 3rd Daniell's Chancery Practice 4th Lewin's Trustees 6th Mitford (Lord B«desdale) on Pleadings 4th Morgan & Davey on Costs 1st Pemberton on Revivor 1st Seton on Decrees 3rd Shelford's Real Property Statutes 7th Sugden (Lord St. Leonards) Vendors 14th Real Property Statutes ... 2nd White & Tudor' s Leading Cases 3rd Williams on Executors 6th DATE. 1866 1865 1865-1867 1867 1847 1865 1867 1862 1863 1862 1862 1867 1867 EEEATA AND ADDENDA. Page 22, line last of note (v)*add " See, too, Be Newman, 36 L. J. Oh. 843 ; but compare £e Brown, ibid., 842, and note (z) to next section." ,, 23, ,, laM Ivi one oi note (z), add " Be Brown, Z5 li. 3 . Gh. M2." ,, 81, lines 21 to 23, are incorrect, and should be read, " The order need not now be made in Chancery as well as Lunacy, where it is desired to appoint a new trustee. See sect. 10 of the Extension Act, p. 116, post; but see Be Boyce,'" &c. ,, 175, line 2, add " A party need not produce documents relating to the compromise of a dispute between hims»lf and a person no party to the suit, Wa/rwich v. Queen's College, Oxford, 4 L. K. Eq. 254." ,, 181, „ lastoinote(i), add "Sei,iao, Ferguson ■ir.Bemyon,W^.'&. 70 (decided under the Ireland (Chancery) Act)." ,, 191, ,, 2of«oie(»), add "As to waiver by the witness of irregularity in the notice to attend the examiner, see Lawton t. Price, 16 W. R. 73." „ 209, „ 3, Bogg v. Midland Baibuay Co. is reported 4 L. E. Eq. 311. ,, 211, ,, last, Stratford r. Baker is reported 4 L. K. Eq. 256. „ 237, „ 16, /or "p. 254," read "p. 259." ,, 580, ,, last, add " See, also, Macann v. BorradaUe, 16 W. R. 74." ,, 683, ,, lastoi note (m), for "note («), p. 533," read "note (x), p. 551." 614. ,, last of note (a), add "But see Sovihall t. James, 2 W. N. (1867), 268." xxzir., ,, 2 oinote (6), Earl of Stamford v. Dawson is now reported 4 L. E. Eq. 352. ,, li., ,, 13 from bottom, add (in the margin) "In the office of the Accountant-General." PAET THE FIRST. STATUTES DELATING TO THE PEACTICE AND JUEISDIOTION OF THE COUET OF CHANCEKY. JUDGMENTS ACT. 1 & 2 VICT. Cap. 110. An Act for aholishing Arrest on Mesne Process in Oivil Actions, except in certain Cases ; for extending the Remedies of Creditors against the Property of Debtors ; and for amending the Laws for the Relief of Insolvent Debtors in England. [16th August, 1838. ss. xiir,— xviir. XIII. And be it enacted, that a judgment already 1 & 2 Vict. entered up or to be hereafter entered up against any per- . c. 110. son in any of her Maiesty's superior courts at "West- •^"'^sment to •' J ./ X operate as a mister shall operate as a charge upon all lands, tenements, charge on real rectories, advowsons, tithes, rents, and hereditaments (in- ^^ * ^' eluding lands and hereditaments of copyhold or customary tenure) of or to which such person shall at the time of entering up such judgment, or at any time afterwards, be seised, possessed, or entitled for any estate or interest whatever, at law or in equity, whether in possession, reversion, remainder, or expectancy, or over which such person shall at the time of entering up such judgment, or at any time afterwards, have any disposing power which a JUDGMENTS ACT. 1 & 2 Vict, he might without the assent of any other person exercise "• ^^°- for his own benefit, and shall be binding as against the person against whom judgment shall be so entered up, and against all persons claiming under him after such judgment, and shaU also be binding as against the issue of his body and»all other persons whom he might without the assent of any other person cut off and debar from any remainder, reversion, or other interest in or out of any of the said lands, tenements, rectories, advowsons, tithes, rents, and hereditaments ; and that every judgment creditor shall have such and the same remedies in a Court of Equity against the hereditaments, so charged by virtue of this Act, or any part thereof, as he would be entitled to in case the person against whom such judgment shall have been so entered up had power to charge the same heredi- taments, and had by writing under his hand agreed to charge the same with the amount of such judgment debt Charge not and interest thereon : provided that no judgment creditor to be enforced ghall be entitled to proceed in equity to obtain the benefit expiration of a of such charge until after the expiration of one year from y^*'^' the time of entering up such judgment, or in cases of judgments already entered up, or to be entered up before the time appointed for the commencement of this Act, until after the expiration of one year from the time appointed for the commencement of this Act, nor shall such charge operate to give the judgment creditor any preference in case of the bankruptcy of the person against whom judgment shall have been entered up unless such judgment shall have been entered up one year at least Proviso as to I'^fo'"® the bankruptcy: provided also, that as regards purchasers, &o. purchasers, mortgagees, or creditors, who shall have become such before the time appointed for the commence- ment of this Act, such judgment shall not affect lands, tenements, or hereditaments, otherwise than as the same woul4 have been affected by such judgment if this Act had pot pfissed ■ provided also, that nothing herein con- tained shall be deemed or taken to alter or affect any doc- trine of Courts of Equity whereby protection is given to purchasers for valuable consideration without notice (a). JUDGMENTS ACT, 3 (a) Deeiees and orclei'a of Courts of Eqwity havg t]ie effeoii of juclgments 1^2 Tift, (see sect. 18, infra), but as to judgments enterpd up since July 29, 1864, it ''■ ^■'■"' is nowenaoteij by.a? & 28 Vict. o. 112, s. 1 (past), tliat P9 Ja,nii shslj he Sale under 27 affected by them until it baa been delivered in e:fepntipn by a wit of ehgit ov jj gg yiot u otherwise. This having been done, the judgment creditor mw »QW phtiviR an ix2, ' ' order for sale pf the lands by seetion 4 of the same Act (poat). As to registration pf a Us pendens, see Oaniell, 864. XIV. And be it enacterl, that if any persQu againgt ^^°* ^"'^ whoni any juflginent gliall haye been entered wp in any of lie fan4? and her Majesty's superior courts at Westminster (fc) shall have ^^^^^""p^g. finy government ptocli;, funds, qr ftnimities, ox finy atocli i°g *« the or sharps of or in any public company in England standing in his (whether incorporated pr not), standing in his name in his ?^"J'*™5 ?° own right, or in the najjie of any person (c) in trust for him, order of a it shall be lawful for a judge of one of the superior courts (fi),''" ^' on the ftpplicfttion of any judgment creditor, tp ordpr that such stock, funds, annuities, ov shares, or spch pf them or such part thereof respectively as he shall think fit, shall stand ehsfg^d with the payment of tlie amount for which judgment shall have been so recovered, and interest thej-'eou, apd Puch order shaU entitle the judgment Predi- tor to all such remedies as he woul^ have been entitled to if such charge had been made in his favour by the judgment debtor; provided that no proceedings shall be taken to hg,ve the benefit of such charge until after the expiration pf six palendav months fron; the date of such prdgr, (5) Charging orders in aid of decrees in equity may hg m*de hy the Ppijrt Charging pr- of Chancery, and need not be necessarily made by the judge to whose court ders in aid of the cause is attached, Lord Hastings x. Benvan, 10 W. 11. 306 ; see Petpn, decrees in 955 ; Daniell, 935. equity. (e) Stock, &c., standing in the name of the Acoountant-Seneral may be Charging or- pharged by a judge's order under 3 & 4 Vict, p, 82, s. 1, ^lijoh is as fpljows : — ders on stock, "Whereas by an Act passed in the second year of the reign of her Majesty, &c. standing in intituled ' An Act for abolishing arrest on mesne process in ciTil actions, name of Ac- except in certain eases ; for extending the remediea of preditprs against the countant- property of debtors ; and for amending the laws for the relief of insolvent Greneral. debtors in England,' it was amongst other things enacted, that if ftny person against whom any judgment should haye been entered up in any of her Majesty's superior courts at Westminster should have any government stock, funds, • or annuities, or any stock or shares pf or in any public company in BBgl3.n,d (whether incorporated or not), standing in his name in his own right, or in the name of any person in trust for him, it should be lawful for a judge of onP of the superior courts, on the application of any judgment creditor, to order 3 & 4 Vict, c. that such stock, funds, annijities, or shares, or spch of them, or such part 82, ». 1. thereof respectively, as he should think fit, should stand charged with the payment of the amount for which judgmept phould haye been so recovered, and interest thereon, and such order should entitle the judgment creditor to all such remedies as he would have been entitled to if such charge had been B 2 JUDGMENTS ACT. 1 & 2 Vict. 0. 110. Provisions of 1 & 2 Vict. 0. 110, as to property of judgment debtors ex- tended to stock in name of Aooountant- General. Stop order also necessary. made in his favour by the judgment debtor ; provided that no proceedings should be taken to have the benefit of such charge until after the expiration of six calendar months from the date of such order : And whereas doubts have been entertained whether the said provisions extend to th& cases hereinafter men- tioned : Now therefore be it declared and enacted by the Queen's most Ex- cellent Majesty, by and with the advice and consent of the Lords, Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same. That the aforesaid provisions of the said Act shall be deemed and taken to extend to the. interest of any judgment debtor, whether in possession, remainder, or reversion, and whether vested or contingent as well in any such stocks, funds, annuities, or shares as aforesaid as also in the dividends, interest, or annual produce of any such stock, funds, annuities or shares ; and whenever any such judgment debtor shall have any estate, light, title or interest, vested or contingent, in possession, remainder, or reversion, in, to, or out of any such stocks, funds, annuities or shares as aforesaid, which now are, or shall hereafter, be standing in the name of the Accountant- General of the Court of Chancery, or the Accountant-General of the Court of Exchequer, or in, to, or out of the dividends, interest, or annual produce thereof, it shall be lawful for such judge to make any order as to such stock, funds, annuities, or shares, or the interest, dividends, or annual produce thereof, in the same way as if the same had been standing in the name of a trustee of such judgment debtor : Provided always, that no order of any judge as to any stock, funds, annuities, nr shares standing in the name of the Accountant-General of the Court of Chancery or the Accountant-General of the Court of Exchequer, or as to the interest, dividends, or annual produce thereof, shall prevent the Governor and Company of the Bank of England, or any public company, from permitting any transfer of such stocks, funds, annuities, or shares, or payment of the interest, dividends, or annual produce thereof, in such manner as the Court of Chancery or the Court of Exchequer respectively may direct, or shall have any greater effect than if such debtor had c,harged such stock, funds, annuities or shares, or the interest, dividends, or annual produce thereof, in favour of the judgment creditor, with the amount of the sum to be mentioned in any such order." As to stop orders being necessary where the fund is in Court, see Ord. XXVI. , post. - operate as a distringas, Order of judge XV. And in order to prevent any person against whom to be made in iudsment shall have been obtained from transferring, the first m- "^ . . ... ° stance CTparie, receiving, or disposing of any stock, funds, annuities, or to thTbank or ^^^^®^ hereby authorised to be charged for the benefit of company to the judgment creditor under an order of a judge, be it further enacted, that every order of a judge charging any government stock, funds, or annuities, or any stock or shares in any public company, under this Act, shall be made in the first instance ex parte, and without any notice to the judgment debtor, and shall be an order to show cause only; and such order, if any government stock, funds, or annuities standing in the name of the judgment debtor in his own right, or in the name of any person in trust for him, is to be affected by such order, shall restrain the Governor and Company of the Bank of England from permitting a transfer of such stock in the meantime and until such order shall be made absolute or discharged ((i) ; JUDGMENTS ACT. 5 and if any stock or shares of or in any public company, 1*2 Viot. standing in the name of the judgment debtor in his own — '■ '- — right, or in the name of any person in trust for him, is or are to be affected by any such order, shall in like manner restrain such public company from permitting a transfer thereof; and that if, after notice of such order to the per- son or persons to be restrained thereby, or in case of . corporations to any authorised agent of such corporation, and before the same order shall be discharged or made absolute, such corporation or person or persons shall permit any such transfer to be made, then and in such case the corporation or person or persons so permitting such transfer shall be liable to the judgment creditor for -the value or amount of the property so charged and so transferred, or such part thereof as may be sufficient to satisfy his judgment; and that no disposition of the judgment debtor in the meantime shall be valid or effectual as against the judgment creditor ; and further, that, unless the judgment debtor shall within a time to be mentioned in such order show to a judge of one of the said superior courts sufficient cause to the contrary, the said order shall, after proof of notice thereof to the judg- ment debtor, his attorney or agent, be made absolute : provided that any such judge shall, upon the application of the judgment debtor, or any person interested, have full power to discharge or vary such order, and to award such costs upon such application as he may think fit. (d) See as to distringas, Ord. XXVIL, post. XVI. And be it enacted; that if any judgment creditor, Securities not who under the powers of this Act shall have obtained any relinquished charge or be entitled to the benefit of any security what- '^ *'■« p^''^"" ,,, . , ,,p , taken lu execu- soever, shall afterwards, and beiore the property so tiou. charged or secured shall have been converted into money, or realised, and the produce thereof applied towards pay- ment of the judgment debt, cause the person of the judg- ment debtor to be taken or charged in execution upon such judgment, then and in such case such judgment creditor shall be deemed and taken to have relinquished all right JUDGMENtS ACT. 1 ife 2 Vict. 0. 110; Judgment debts to carry interest. What are judg- ment debts within the sec- tion. Decrees and orders of Courts of ■ Equity, &c., to hare effect of judgments. What are judg- ments in equity within the Act. and title to the benefit of such charge or security, and shall forfeit the same accordingly. XVII. And be it enacted, that every judgment debt (e) shall carry interest at the rate of four pounds per centum per annum from the time of entering up the judgment, or from thfe time of the commencement of this Act in cases of judgment then entered up and not carrying interest, u.ntil the Sflme shall be satisfied, and such interest may be levied under a Writ of execution on such judgmten!;. (e) Under this section it was held that interest was not recoverable on costs direeted Hot to be paid by any person but to be raised out of an estate, Att.-Gen. V. Nethercote, 11 Sim. 529, and see next note. See now as to interest on costs, ^i & 24 Vict. c. lair, s. 27, post, pp. 28, 29, and as to interest On debts and legacies established uiider a decree, see Ord. XLII. 9 — 11, and note. XVIII. And be it eUacted, that all decrees and ordei'S of courts of eig[uity, and all rules of courts of common law, and all orders of the Letd Chancellor or of the Court of Review in lilatters of bankruptcy, and all ordei's of the Lord Ch^iioellor in lilatters of lunacy^ whereby any sum of mblieyi or any costs, charges, or expenses, shall be pay- ilble to any person, shall have the efi'ect of judgments (/) in the Superior courts of commoti law, and the persons to whom any such mollies or costs, charges, or expenses shall' be payable, shftU be deemed judgment creditors within the meaning of this Act ; and all powers hereby given to the judges of the superior courts of common law with respect to matters depending in the same courts shall and may be exercised by Courts of Equity with respect to matters therein depending, and by the Lord Chancellor and the Court of Eeview in matters of bankruptcy, and by the Lord Chanfiellor in matters of lunacy; and all remedies hereby given to judgment creditoi's are in like manner given to persons to whom any monies, or costs, charges, or expenses, are by such orders or rules respectively directed to be paid. (/) The decree must be for payment of a definite sum to a definite person, or it will hot be a Chai'ge within the section-. Thus a rule for taxation of costs, and the Master's aUocaiur-ox allowance, were held no charge, but the order for payment of the taxed costs wotild be ohe, Shaw t. Neale, 20 Beav. 157 ; 6 H. Li 681 ; Oviffiths t. Eiu/liei, 16 M. & W. 809 ; TJmipmy v. Wmm&y Vallep Railway Company, 4 J. & H. 254 ; and see last note, and 1 Chitty's Statutes, 895 ; Daniel!, 93l ; Aybb. 205. CUSTODY OF INFANTS ACT. 7 CUSTODY OF INFANTS ACT. 2 & 3 YICT. Cap. S4. An Act to amend the Law relating to the Custody of Infants {a). [nth August, 1839. Wheeeas it is expedient to amend the law relating to 2 & 3 vict. the custody of infants (6) : Be it therefore enacted by the °" ^^' Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and. by the authority of the same, that after the passing of this Act it shall be lawful for the Lord Chancellor and the Judges in Master of the Eolls [b) in England, and for the Lord SfoS, on Chancellor and the Master of the Eolls in Ireland, re- petition, for spectively, upon hearing the petition (c) of the mother of mothers to any infant or infants being in the sole custody or control ^^Ya "'*^''* of the father thereof {d), or of any person by his authority, if such children or of any guardian after the death of the father, if he ^^ '"l**^" *''^ ■^ *-• ' age 01 seven shall see fit, to make order for the access of the petitioner yeais, for the to such infant or infants, at such times and subject to them^o their such regulations as he shall deem convenient and just; •^"^'P'ly""*'' and if such infant or infants shall be within the age of age. seven years, to mate order that such infant or infants shall be delivered to and remain in the custody of the petitioner until attaining such age, subject to such regula- tions as he shall deem convenient and just (e). (a) As to the right of a father to the custody of his children, and his cor- Father's riglit I'esponding obligations, and the jurisdiction of the Court to remove the to custody. ohildi-en from his care if he neglects his duties, or in consequence of his profligacy and immorality, see note to Eyre v. Countess of Shaftesbm-y, in 2 W. & T., Leading Cases, 613, 625, 651 ; Swift v. Swift, 34 Beav. 266. An infant becomes a ward of Court, with respect to whom a petition is presented Wards of for the appointment of a guardian, Stuart v. Marquis of Bute, 9H. h.iiO ; or Court, under the Infent Settlement Act, 18 & 19 Vict. o. 43 ; Re Strong, 26 L. J. Ch. 64 ; and see Ee Dallon, 3 Sm. & GifF. 331 ; or frith respect to whom an order is made under the Trustee Relief Act, Re Hodge, 3 K. & J. 213, 218 ; but the mere payment into Court under other Acts, e.g. the Land^ Clauses A ct, or the Legacy Duty Act, of money belonging to an infant, does not con- stitute such infent a ward of Court, Re JUillary, 2 Ur. & Sm. 461 ; Re Wilts, ttc. Railway Company, ibid, 652 ; and see Re Pa/rndell, cited in Seton,. 722, (6) "The object of the Act, and of the promoters of it, and that which I Gfenei'al ob- think appears upon the face of the Act itself, was, to protect mothers from jects of Act. CUSTODY OF INFANTS ACT. 2 & 3 Viot. u. 5i. Legal defences and rights. Form and mode of appli- cation. Where chil- dren are al- ready in cus- tody of mother Pendency of suit for resti- tution of con- jugal rights. AfBdavits to he received the tyranny of those husbands who ill-used them. Unfortunately, as the law- stood before, however much a woman might have been injured, she was pre- cluded from receiving justice from her husband by the terror of that power which the law gave to him, of taking her children from her. That was felt to to be BO great a hardship and injustice, that Parliament thought the mother ought to have the protection of the law with respect to her children up to a certain age, and that she should he at liberty to assert her rights as a wife, without the risk of any injuiy being done to her feelings as a mother. That was the object with which the Act was introduced, and that is_ the construction to be put upon it. It gives the Court the power of interfering : and when the Court sees that the maternal feelings are tortured for the pur- pose of obtaining anything like an unjust advantage over the mother, that is precisely the case in which it would be called upon, and ought, to inter- fere. When the parties, therefore, are considering the suggestion which I have thrown out, I wish them to bear in mind that this is not, as was the case in WeUesley v. The Dwie of BeaufoH (2 Kuss. 1), a question merely as to the general jurisdiction of this Court to interfere with the legal rights of the father ; but that I have now an absolute authority ov^r the children under seven years of age, and a larger power than the Court then had with regard to children above that age." — Per Lord Cotteuham in Warde v. Warde, 2 Ph. 787. The Act gives the Court an absolute discretion against the father and testamentary guardian, ShUlito v. CoUett, 8 W. R. 683, 696. For cases in which the Court will not interfere under the Act, see note to sect. 4, infra. As to the right of the mother of illegitimate children to have access to them, see Cowlois v. Vincent, 3s.a. 268. The Act does not enable the wife to make a legal defence to the application of the husband to have the children delivered up to him : per Lord St. Leonards, when Lord Chancellor of Ireland, in Oorsellis v. Corsellis, 1 Dr. 6 War. 235 : i.e. it does not interfere with the legal right of the father to have the custody of the children where no petition has been presented {Ex parte Toimg, i W. K. 127). But see post, note {d). The jurisdiction of the Court as to infants is not affected by sect. 35 of 21 & 22 "Viot. c. 85, the Divorce and Matrimonial Act, which gives a similar power to Courts of Common Law; see 22 & 23 Yict. c. 61, s. 4 (Be Curtis, 7 W. R. 474 ; 5 Jur. N. S. 1147). (6) These words include the Vioe-Chaucellors (Ee Taylor, 10 Sim. 291). (c) For form of petition, see Daniell, vol. III., 1860. A married woman may petition under this statute without a next friend (Re Groom, 7 Hare, 38), and in formd pauperis (Ex parte Hahewell, 3 D. M. G. 116). It seems that the order may he made eon parte if the exigencies of the case require it (Re Taylor, 11 Sim. 178). (d) It would appear from the observations of V.-C. Knight Bruce, \u Re Fyrm (2 De G. & Sm. 457, 475), that the Act does not apply where the chil- dren are not in the custody of the father. But in a later case (Re Tomlinson, 3 De Gr. & Sm. 371, 372) the same learned judge expressed an opinion that although the child might be, at the time of the presentation and hearing of the petition in the custody of the mother, the Court had, "within tile equity of the Act," jurisdiction to interfere. It seems, therefore, that where the mother is living apart from the father (but see Re Taylor, 11 Sim. 178, ante), and has the custody of the children, the Court may, under the Act, make an order continuing such custody to her (ibid.). See Corsellis v. Cor- sellis, 1 Dr. & War. 235, cited above, and Daniell, 1862. (e) The fact that a suit for the restitution of conjugal rights is pending, which, if successful, would have the same effect as the order prayed for, on petition under this Act, mil be sufficient to prevent the Court from interfering (Re Taylor, 11 Sim. 178 ; and see Re Shaw, referred to in 11 Sim. 182) For form of order, see Seton, 713 ; and Re Fynn, 2 D. & Sm. 482. II. And be it enacted, that on all complaints made under this Act, it shall be lawful for the Lord Chancellor CUSTODY OF INFANTS ACT. ! or the Master of the EoUs (/) in England, and for the 2 & 3 Viot. Lord Chancellor or the Master of the Rolls in Ireland, and parties to receive affidavits sworn before any Master in ordinary deposing or Master extraordinary of the Court of Chancery ; and falsely therein that any person who shall depose falsely and corruptly in of perjury. any affidavit so sworn shall be deemed guilty of perjury, and incur the penalties thereof. (/) See ante, note (i). III. And be it enacted, that aU orders which shall be Orders may be 6u forced bv made by virtue of this Act by the Lord Chancellor or the piocess of Master of the Rolls in England, and by the Lord Chan- contempt, cellor or the Master of the Rolls in Ireland, shall be enforced by process of contempt of the High Court of Chancery in England and Ireland respectively {g). (s) See post. Cons. Ord. XXIX. IV. Provided always, and be it enacted, that no order Nomotlier shall be made by virtue of this Act whereby any mother adaUery\a3 against whom adultery shall be established, by iudement l^^^nesta- . . ,. . . , • n • ^ n blished en- m an action for crimmal conversation at the suit oi her utied to benefit husband, or by the sentence of an ecclesiastical court, °^^'='' shall have the custody of any infant, or access to any infant, 'anything herein contained to the contrary not- withstanding (/i). (A) Where a husband had filed a petition in the Divorce Court for dissolution Where the of marriage on the ground of alleged adultery of his wife, and the judge, holding Court refuses that though guilty of great misconduct, she had not committed adultery, dis- to interfere missed the petition, the Court, in the exercise of its discretion, refused to under the Act. grant her application for access to her child, who was being educated abroad, as she was living separate from her husband, who was honestly exercising his legal prerogative. Me Winscom, 2 H. & M. 6il. And generally, if the wife has deserted her husband without justifiable cause, the Court will not interfere un- der this Act (-Re Taylor, 11 Sim. 178). But it is not necessary that she should have obtained, or be entitled to obtain, a divorce A mensd et thoro (Ex parte Bartlett, 2 Coll. 661. See, too, Re Curtis, 7 W. R, 474 ; 5 Jur. N. S. 1147). Where the mother, although not guilty of any moral delinquency, had con- tracted extravagant habits, and was without the means of contributing to the children's support, and had also married a second time, concealing that fact from the children's guardian, the Court refused to make an order for the delivery of the children to her (per V.-C. Kindersley in Shillito v. Oollett, 8 W. K. 683). For other cases where the Court refuses to interfere, see note (e), supra. See generally for the principles of the Court as to guardianship and religious Education of education of infants, Austin v. Austin, 34 Beav, 257, on app. 13 W. K. 761 ; infants. Re Newbery, 1 L. R. Eq. 431 ; 1 L. R. Ch. 263 ; Nugent v. Vetzera, 2 L. E. Eq. 704; Re Kaye, 1 1. R. Ch. 387. 10 JUDGMENTS ACT. 3 & * Vict. JUDGMENTS ACT. c. 82i B. 3. 3 & 4 VICT. Cap, 82, Sec. 1. [See ante, note to 1 & 3 Vict. u. HO, s. 14, p. 3.] c. PERPETUATING TESTIMONY ACT. 5 & 6 ViCT. Gap. 69. An Act for perpetuating Testimony in certain Cases. [80th Jnly, 1842. 5 & 6 Vict. («) "Whereas it is expedient to extend the means of _ perpetuating testimony in certain cases : Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and CommonS) in this present Parliament assembled, and by the authority of the same, that any person who would, under the circumstances alleged by him to exist, become Bills in Chan- entitled, upon the happening of any future event, to any eery to yer- ijgnour, title, dignity, or office, or to any estate or interest mony may be in any pfopefty, real or personal, the right or claim to sons oiaimng which cannot by him be brought to trial before the honours, titles, happening of such event, shall be entitled, from and after on future the passing of this Act, to file a bill in the High Court events. ^f Chancery to perpetuate any testimony which may be material for establishing such claim or right ; and that all laws, rules, and regulations not contrary to the pro- visions of this Act, now in force or in use in suits to perpetuate testimony, or respecting depositions taken in such suits, or the punishment of perjury committed in making such depositions, shall be in force and used and applied in all suits to be instituted under the authority of this Abt, and in respect to depositions taken on such suits. (a) For the practice as to bills to pferpetliate testimofiv, see Botes to Otd. IX. 0,7. 21 & 22 Vict. Petitions can now be presetttfed in a ComHion Law Court to establish legiti- 0. 93. macy, or a right to be deemed natural-born subjects, 21 & 22 Vict; c. 93. PERPETUATING TESTIMONY AGT. 11 II. And be it furthei* enacted, that -in ail suits which 5 *^ 6 Vict. c 69 may be so instituted under the authority of this Act, touching any honour, title, dignity, or office, or any other Qe*°e™Uo be matter or thing, in which her Majesty, her heirs, or sue- party defen- cessors, may have any estate or interest, it shall be such suits in lawful to make the Attorney-General for the time being !''"'* ^^^ •' . ° Queen may a party defendant thereto ; and that in all proceedings in have any estate which the depositions taken in any such suit in which °^ i°*^''*^ • the Attorney-General for the time being Avas so made a defendant may be offered in evidence, such depositions may be admissible notwithstanding any objection to such depositions upon the ground that her Majesty, her heirs or successors, were not parties to the suit in which such depositions were taken. ATTOENIES AND SOLICITORS ACT. 6 & 7 TICT. Cap. 73. An Act for consolidating and amending several of the Laics relating to Atiornies and Solicitors practising in England and Wales. [22nd August, 1843. SS. XXXVII.— XLIII. ; XLVIII. XXXVII. ia) And be it enacted, that from and after 6 & 7 Vict. . -73 the passing of this Act no attorney or solicitor, nor any !;: — ! executor, administrator, or assignee (6) of any attorney ^"Xranrtto or solicitor, shall commence or maintain any action or commence an suit (c) for the recovery of any fees, charges, or disburse- tin o^e month ments for any business done by such attorney or soli- »['" ^^^l7fJ^ . „ 1 , ■. \ 1 of 'I'S^r bills, citor {dy, until the expiration of one month (e) after such attorney or solicitor, or executor, administrator, or assignee of such attorney or solicitor, shall have delivered (/) unto the party to be charged therewith, or sent by the post to or left(^) for him at his couuting-house, office of business, dwelling-house, or last known place of abode, a bill {h) of such fees, charges, and disbursements, and which bill shall either be subscribed («') with tlie proper 12 ATTOENIES AND SOLICITOES ACT. c%^J%\ liand of such attorney or solicitor (or, in the case of a partnership, by any of the partners, either with his own name or with the name or style of such partnership), or of the executor, administrator, or assignee of such attorney or solicitor, or be enclosed in or accompanied by a letter subscribed in like manner referring to such bill ; and upon Eeference of ^i^q application of the party chargeable (k) by such bill relating to within such month it shall be lawful, in case the business SaTn Court contained in such bill or any part thereof shall have been or not, for tax- transacted in the High Court of Chancery, or in any other Court of Equity, or in any matter of bankruptcy or lunacy, or in case no part of such business shall have been transacted in any Court of Law or Equity {1} for the Lord High Chancellor or the Master of the Rolls (J), and in case any part of such business shall have been transacted in any other court, for the Courts of Queen's Bench, Common Pleas, Exchequer, Court of Common Pleas at Lancaster, or Court of Pleas at Durham (Z), or any judge of either of them, and they are hereby respectively required to refer (m) such bill, and the demand of such attorney or solicitor, executor, administrator, or assignee, thereupon to be taxed and settled {n) by the proper officer of the court in which such reference shall be made with- out any money being brought into court ; and the Court or judge making such reference shall restrain such attorney or solicitor, or executor, administrator, or assignee of such attorney or solicitor, from commencing any action or suit touching such demand pending such reference; Taxation after and in case no such application as aforesaid shall be one mon . jjjade within such month as aforesaid, then it shall be lawful for such reference to be made as aforesaid, either upon the application of the attorney or solicitor; or the executor, administrator, or assignee of the attorney or solicitor, whose bill may have been so as aforesaid deli- vered, sent, or left, or upon the application of the party chargeable by such bill, with such directions and subject to such conditions as the Court or judge making such reference shall think proper (o); and such Court or judge may restrain such attorney or solicitor, or the executor, ATTORNIES AND SOLICITORS ACT. 13 administrator, or assignee of such attorney or solicitor, 6&7Vict. from commencing or prosecuting any action or suit — — L touching such demand pending such reference, upon such terms as shall be thought proper (p) : Provided always, Taxation after that no such reference as aforesaid shall he directed ^ny/gpeolai^' upon an application made by the party chargeable with circumstances, such bill after a verdict shall have been obtained or a writ of inquiry executed in any action {q) for the recovery of the demand of such attorney or solicitor, or executor, administrator, or assignee of such attorney or solicitor, or after the expiration of twelve months after such bill shall have been delivered, sent, or left as aforesaid, except under special circumstances (r), to be proved to the satis- faction of the Court or judge to whom the application for such reference shall be made ; and upon every such reference, if either the attorney or solicitor, or executor, administrator, or assignee of the attorney or solicitor, whose biU shall have been delivered, sent, or left, or the pai-ty chargeable with such bill, having due notice (s) shall refuse or neglect to attend such taxation, the officer to whom such reference shall be made may pro- ceed to tax and settle such bill and demand ex parte ; and in case any such reference as aforesaid shall be made Payment of upon the application of the party chargeable with such =?^^^^ °^ ^^''^^ bUl, or upon the application of such attorney or solicitor, or the executor, administratbr, or assignee of such at- torney or solicitor, and the party 'chargeable with such bill shall attend upon such taxation, the costs of such reference shall, except as hereinafter provided for, be paid accordmg to the event of such taxation ; that is to say, if such bill when taxed be less by a sixth part than the bill delivered, sent, or left, then such attorney or solicitor, or executor, administrator, or assignee of such attorney or solicitor, shall pay such costs; and if such bill when taxed shall not be less by a sixth part than the bill delivered, sent, or left, then the party chargeable with such bill, making such application or so attending, ' shall pay such costs {t) ; and every order to be made for such reference as aforesaid shall direct the officer to 14 ATTOBNIES AND SOLICITORS AOT. fi 73^ ^'37 ■whom such reference shall be made to tax such costs of such reference to be so paid as aforesaid, and to certify what, upon such reference, shall be found to be due to or , from such attorney or solicitor, or executor, administrator, or assignee of such attorney or solicitor, in respect of such bill and demand, and of the costs of such reference, if payable : Provided also, that such officer shall in all cases be at liberty to certify specially any circumstances relating to such bill er taxation, and the Court or judge shall be at liberty to make thereupon any such order as such Court or judge may think right respecting the pay» ment of the costs of such taxation : Provided also, that where such reference as aforesaid shall be made when the same is not authorised to be made except under special circumstances, as hereinbefore provided, then the said Court or judge shall be at liberty, if it shall be thought fit, to give any special directions relative to the Courts may costs of such reference: Provided also, that it shall be order attorney lawful for the Said respective Courts and iudges, in the 01- solicitor to . , . , , . , , . , deliver his bill, same cases in which they are respectively authorised to uMeed^s^'fto! ^®^^^ ^ ^^'^ wHch has been so as aforesaid delivered, sent or left, to make such order for the delivery (m) by any attorney or solicitor, or the e'xecutor, administrator, or assignee of any attorney or solicitor, of such bill as afore- said, and for the delivery (u) up of deeds, documents, or papers in his possession, custody, or power, or otherwise touching the same, in the same manner as has heretofore been done as regards such attorney or solicitor, by such Courts or judges respectively, where any such business had been transacted in the Court in which such order was Evidence of de- made (v) ; Provided also, that it shall not in any case be livery of Ml. necessary in the first instance for such attorney or soli- citor, or the executor, administrator, or assignee of such attorney or solicitor, in proving a compliance with this Act, to prove the contents of the bill he may have delivered, sent, or left, but it shall be sufficient to prove that a bill of fees, charges, or disbursements, subscribed in the manner aforesaid, or enclosed in or accompanied by such letter as aforesaid, was delivered, sent, or left in ATTORNJES 4ND SOLICITOBS ACT. 15 manner aforesaid ; but nevertheless it shall be competent s & 7 Vict. for the other party to show that the bill so delivered, gent, "' ^^' °' ^^' or left, was not such a bill as constituted a bond flde compliance with this Act ; Provided also, that it shall be Power to judge lawful foy any jijdge of the Superior Courts of Law or fotbattre Equity to authorise an attorney or solicitor to commence expiration of an action or suit for the recovery of his fees, charges, or disbursements against the party chargeable therewith, although one month shall not have eicpired from the delivery of a bill as aforesaid, on proof to the satisfaction of the said judge that there is probable cause for believing that such party is about to quit England. (o) Orders of course to tax are obtained by motion, in any branoli of the Court, Orders to tax, see note (I), p. 17 ; or by petition at the Rolls, Panieil, 1711. Special orders, how obtained, see note (m), infrtt, by summons in chambers, Ord, 2 Aug. 1864, r. 1, As to the mode of enforcing orders, seg note (jj), p, 20, and note (f), p. 27, As to whether Conrts pf Equity have, indepeiidently of statute, juriadietioii General juris- to order taxation of bills of costs, see Cawdell y. Necde, 1 0. B. N. S. 332 ; diction to tax. Ex parte Lord Oawdross, 5 M. & ^, 545; Efc parte ArrommMh, 13 Ves. 125 ; Re Forsyth, 34 Beav. 140; on appeal, 13 W. B,. 932; and see Daniell, 1693. The Act should be oonstrijed liberally for the client {Engleheart r. Moor^, 15 M. & W. 548 ; Maddeford v. Antmigh § M. & Or. 433 ; WilUami v. QHMM 10 M. & W. Ig5). The sections set out in this work are retrospective with respect to bills Sections retro- unpaid when this Act passed (Be I^es,.5 Beav. 410; ^e Rhodes, 8 Beav, 224). spective. (5) An assignee in bankruptcy is within the Act, Re Walton, 4 K. & J. 78. (c) As to pleading non-delivery at law, see Lome v. Olenny, 7 Ad. & Ell. S3 ; Non delivery. ffichins V. Tate, 7 G. B. 873 ; Flower v. Newton, 11 Jur. 875. An attorney may set off a bill before delivery, iester v. Lazarus, 2 C. M. & B. Eemedies of 665 ; or prove in bankruptcy^ Ex parte Prideawc, 1 01. & Jam, 28; Ex parte attorney, Steele, 16 Yes. 166 ; or sue on a promissory note or other eQll(Ueiral (see note (p) infra) agreement, Jeffryes v. Evans, 14 M. & W. 210 ; Thomas v. Gross, 13 W. B. 166 ; in which case Wmni v. Wqddell, 16 Beav. 621, (where it was held that pending a reference, a soUoitgr cannot enforce his lieu) is commented on. Nor does the summary jurisdiction exclude the right of a client to file a bill and client in- against his solicitor for an account, Morgan v. Eiggins, 5 Jur. N. S. 236 j dependency of O'Brien v. Leurs, 9 Jur, N. S. 321 ; or to enforce an agreement for delivery by Act. petition. Re Bailey, 34 Beav. 392. After taxation, an action by the solicitor on bis bill is a contempt, Re Oatnp^ Ml, 3 D. M. 0. 585. (d) These words only include business done in the character of solicitor, see "Business." note («), infra, p. 19. (e) A calendar month is meant (s. 48 of the Act) (Ryalls v. Meg., 12 Jur. "Month.'' 458). It is to be calculated exclusively of the days on which the bill is de- livered and the action brought {Blwnt v. Heslop, 8 Ad. & Ell. 577). (/) As to what constitutes deliyery, see Eggmgton v. Camheledge, 11 Jur. what is "deli- 932 ; Welsh v. Silwell, 11 Jur. 571 ; Bla/ndy v. De Bwgh, 6 0. B. 633 ; Dunn very " V. Hales, 1 F. & F. 174; Phipps v. Dwubneij, 16 Q. B. 514 ; Oridley v. Austen, 1 6 Q. B. 604 ; Spyer v. Bernard, 8 L. T. N. S. 396 ; Flower v. Newton, 1 1 Jur. 875 ; and in the case of a public officer, see Champ y. Stokes, 6 H. & N. 633; and in that of the committee of a public company, Edwards v. Lawless, 6 Ely. Oa. 357 ; Mant V. Smith, 4 H. & N. Exoh. 324 ; Blandy v. Be Bwgh, Phipps v. Dauhney, ubi sup. Delivery to a duly authorised agent of the client is sufficient {Re Bush, 8 Beav. 66), or, semble, to his seiTant {M'Gregor v. KeUey, 3 Excb. 16 ATTOENIES AND SOLICITORS ACT. 6 & 7 Vict. 794): But a delivery to his solicitor is not enough, nor to a friend or relation 0. 73, o. 37. {Gfridley v. Austen, 16 Q. B. 504, 611; He Abbott, 4 L. T. N. S. 676). _ It may be sent by post {Boberts v. Lucas, 11 Exch. 41), and in such a case it is enough if the envelope and a signed letter accompanying it be addressed to the party chargeable (ibid., and Taylor v. Hodgson, 3 Dowl. & Low. 115; and see Manning v. Glyn, Jones, Ir. Exch. Kep, 613). When the action -was brought against the executors of the client, a delivery to the client himself in his life was held enough (Reynolds v. Caswell, 4 Taunt. 193, under the 2 Geo. 2, c. 23 ; see, too, Tate v. EitcUns, 7 0. B. 876). Where clients were liable on a joint contract, delivery of the bill to one of them was held sufficient (Mant v. Smith, supra). For a form of order for delivery and taxation, see Seton, 831; and as to the mode of enforcing the order, see note (u), imfra. "Delivery." (g) The bill must he left, not merely shown, Phipps v. Sauiney, 16 Q. B. 614; Crowder v. Shee, 1 Camp. 437. Form of bill. (h) The bill, or some accompanying document (Taylor v. Hodgson, 3 Dowl. &Low.. 115; Lucas v. Roberts, 11 Exch. 41), must specify the persons to be charged (Gridley v. Austen, 16 Q. B. 504; Champ v. StoJces, 6 H. & N. 683), the Court in which the business was done (Lewis v. Primrose, 6 Q. B. 265 ; Dimes v. WrigJit, 8 C. B. 831), the name of the cause (Keene v. Ward, 13 Q. B. 615), and the particular items charged for (Drew v. Clifford, 2 Car. & P. 69 ; Re Smith, 4 Beav. 309 ; Re Pender, 10 Beav. 390), and as to specifying the number of folios in deeds, see Re Foster, 2 D. F. J. 105. As a general rule, it is sufficient if the bill gives such information as will enable the client to obtain advice as to the taxation (Saigh v. Oasey, 7 Ell. & Bl. 578; Cook v. Gillard, 1 Ell. & Bl. 26; Frowd v. StiUard, 4 C. & P. 51 ; Sargent v. Oanmon, 7 C. B. 742) ; and it need not be drawn in the technical form of a debtor and creditor account), Holmes \. Magrath, 5 Ir. Law Eep. 376). Unsigned bill. (*) ■A>n unsigned bill accompanied by a signed letter referring to the bills is sufficient (Re Bush, 8 Beav. 66). An unsigned bill of costs may be referred to Client may taxation by the party chargeable if he chooses to waive the irregularity (Re waive irregu- Pender, 8 Beav. 290; on appeal, 2 Phil. 69; Re Qedye, 14 Beav. 56; Re larity Foster, 2 D. F. J. 114) ; but he is not bound to do so (BiUimg v. Coppoch, . 1 Exch. 14). Who, as party W A married woman having separate estate, which she has by agreement chargeable, made '&!ib\e (Waughy. Waddell, 16 Beav. 521; and see Re Pugh, 17 Beav. may apply for 338, and Mv/rray v. Ba/rlee, 3 M. & E. 209) ; the next friend of an Infant taxation. (Re Fluker, 20 Beav. 143) ; the executors (Jefferson v. Warrington, 7 M. & W. 137), or assignees in bankruptcy (Clarkson v. Barber, 7 Dowl. 87,) of the party originally liable, are parties chargeable within the Act; but an insolvent is not (Re Halsall, 11 Beav. 163); nor an outlaw (Re Maunder, 6 Q. B. 867). A parly in contempt is not incapacitated from applying (Newtony. Ricketts, 11 Beav, 67). A married woman should apply by her next friend (Re Wangh, 15 Beav. 508). Where several persons are jointly chargeable, they should concur in the application (Re Lewin, 16 Beav. 608 ; Bx parte Mobbs, 8 Beav. 499 ; Re Perkins, 8 Beav. 241) ; and an order obtained by one of them alone on an allegation that he alone employed the solicitor, will be discharged as irregular (ihid.). But it seems that if one of the parties so liable refuses to concur, the order may be obtained by the other (Lockhart v. ffardy, i Beav. 224; Be Hair, 10 Beav. 187, 11 Jur. 139). In Fx parte Ford, 23 L. J. Ch. 515, taxation was ordered on the application of one party, the retainer having been separate. See, too, Re Hair, 1. o. ; Re Security for Stephen, 2 Ph. 562. As to the cases in which security for costs will be required costs of taxa- from the person applying, see Re Pasmore, 1 Beav. 94; Re Dolman, 11 Jur. tion. 1095; Ex parte Foley, 11 Beav. 456; Murrow v. Wilson, 12 Beav. 497; Re Waugh, 1. c. ; Seton, 835. Who must Overseers of the poor are bound to have an attorney's bill taxed before they apply. pay it; and in case of neglect the payment may be disallowed (Re Overseers of Naptcm, Warwickshire, 27 L. T. 124). Where bills (I) The following descriptions of charges have been held to be for business are taxable. done in no Court and therefore taxable in Chancery. Charges for Parliamentary business (the equitable jurisdiction not being taken ATTORNIES AND SOLICITORS ACT. 17 away by the Acts of 10 & 11 Vict. e. 69, or 12 & 13 Vict. e. 78, Tte Slroiher, 6 & 7 Vict. 3 K. & J. 518; He Sudlow, 11 Bear. 400; Re Osborne, i Jur. N. S. 296), c. 73, a. 37. for obtaining an order at chambers for leave to enter up satisfaction on a bond - given to the Crown {Re Qaitskell, 1 Ph. 576. See Ex parte Fleetwood, 4 Business tax- Man. & Gr. 640 ; WijUeo- v. Paine, 6 D. & E. 645) ; for obtaining a married a'^'^ •" Clian- woman's acknowledgment (iJe Branson, 4 Scott, 639) ; for business done in ^'T. the court of a revising barrister {Re Andrews, 17 Beav. 510) ; for' taking preliminary steps to proceedings in Court ( Wilson v. Gutteridge, 3 B. & C. 157; Weldv. Crawford, 2 Stark. 538; Re Barker, 6 Sim. 476; Collins v. Nicholson, 2 Taunt. 321) ; and for other incidental business (see Brooks v. Brooks, 6 L. J. C. P. 243 ; Sansom v. Boon, 4 Campb. 68). Where the solicitor retained his bill and refused to produce it, it was assumed that the Couit had jurisdiction, Re Loughborough, 23 Bear. 439. The fact that an action is pending for the amount of the bill, does not give though action the common law judges jurisdiction to tax the bill, Cowdell v. Neale, 1 C. B. pending, N. S. 332 ; Sayer v. Bush, 1 Man. & Qr. 1027. The section provides that wh*re the business was done entirely in a Court of equity, or entirely out of court, the Lord Chancellor or Master of the Rolls (which words include the Vice-Chancellors, Re Carew, 8 Beav. 128 ; Re Ifoioard, ibid. 424) have sole jurisdiction ; and though, in general, the appli- Application for cation need not be to that branch of the Com-t which heard the suit, Robins v. taxation may Mills, 1 Beav. 227 ; Re Elmslie, 12 Beav. 638 ; Bingham v. Hallam, 9 L. J. be in any Ch. 104, it is otherwise when the merits of the case enter into the question, branch of the Webb V. Grace, 12 Beav. 489. Court. Where an order of course, made at the Bolls for taxation of a solicitor's bill for business done in a suit depending in another branch of the court, is not made in the suit, bat under the Act, an application to discharge the same should be made at the Rolls, Re Bell, 2 H. & M 501. (m) As to the mode of applying for the common order, see note (a), supra. Order before and for forms of order to refer bills for taxation, see Seton, 828, 830. In the twelve months alsenee of special cu-cumstances the order may be obtained ex parte, and as ex parte &ai of of course before twelve months have elapsed from delivery. Re Pender, 7 course. Beav. 487; Holland r. Gwynne, 8 Beav. 184; Seton, 835; Daniell, 17U ; and see as to costs of a special application where an ex parte application would have been sufficient. Re Bignold, 9 Beav. 269 ; Re Atkinson, 26 Beav. 151 ; Re Adamson, 18 Beav. 4B0 ; Re Lett, 31 Beav. 488 ; Re Catilin, 8 Beav. 121 ; Re Braceij, ibid. 338. If the taxation abates by death of solicitor or client, or both, an order to Revivor of revive the reference as between the respective representatives may be obtained, reference. Be WhaCley, 20 Beav. 576, and where the solicitor died the order to revive was ex parte, Re Nicholson, 29 Beav. 666 ; Re Wav^h, ibid. 666 ; and see Robertson v. Southgate, 7 Hare, 109, and form of order, Seton, 852. An order of course, though right on the merits, is dismissed if obtained in Special appH- a case where a special application was necessary, Harris v. Sturt, 4 M. & cation C. 261 ; Grove v. Samson, 1 Beav. 297 ; Gregg v. Tayler, 1 Beav. 123. In a doubtful case the client should apply to the solicitor for his consent to an order of course. Re Taylor, 15 Beav. 145. A special application is not necessary, merely because the solicitor has com- js not neoes- menced an action for his costs, see Seton, 841; Re Fa/rington, 33 Beav. 347, sary though (though after final judgment given in an action, the Court has no jurisdiction action pending: note (2), infra). So where a client bad, in an action at law, not resisted a claim for costs, which were not taxable at law, and which the solicitor had set up in defence to the action, this was no reason for requiring a special application in Chancery for taxation. Re Lett, 10 W. B. 6. A special application is necessary under the following circumstances — is necessary, (1) If the application is to tax only part of the bill claimed by the solicitor, (1) If part of {Re Telts, 33 Beav. 412 ; Re Byrch, 8 Beav. 124 ; Re Balby, ibid. 469 ; Re a bill only is to Wavell, 22 Beav. 634; Stokes v. Truwper, 2 K. & J. 232; but see iJe be taxed. Fluker, 20 Beav. 143 ; Re Hinton, 15 Beav. 192,) or the application is made by some only of several parties jointly liable, Re Ilderton, 33 Beav. 201. Secus, where they are severally liable, Re Hair, 10 Beav. 187. 18 ATTOKNIES AND SOLICITORS ACT. is a special agreement, 6 & 7 Vict. (2) Where there is a special agreement as to retainer, Re Thwgood, 19 e. 73, s. 37. Beav. 541, and see GiUow v. Eider, 15 C. B. 729 ; or where there is a special ,„. ~, ~ — agreement as to the costs, e. g., to refer them to arbitration, Ee Winter- i« i ™i ® Gotham, 15 Beav. 80, or to give the soUcitor a lien, Re Moss, 17 Beav. 69, and see Ee Rxmaom, 18 Beav. 220; Re Fisher, 18 Beav. 123; but see Seton, 836; Daniell, 1714. A special agreement, respecting some part of the costs, unless it goes to the whole bill, is not held now to be ne- cessarily a bar to an order for taxation, though it was formerly considered to be so, Re Eyre, 10 Beav. 569 ; 2 Ph. 367 ; and see Re Forsyth, 34 Beav. 140 ; Re Thompson, 14 L. T. N. S. 6 ; but there must be no suppression of the fact of such an agreement, or the order will be discharged. Re Ingle, 21 Beav. 275 ; Re Garven, 8 Beav. 436 ; Re Holland, 19 Beav. 314. An agree- ment to charge a fixed sum in lieu of costs hereafter to be incurred is void, see Re Newman, 30 Beav.. 196 ; Pince v. Bealtie, 11 W. E. 979 ; Philhj v. Hade, 7 Jur. N. S. 125. ; but see as to an agreement to pay a solicitor a fixed salary, Qalloway v. Corporation of London, 4 L. K. Eq. 90. Any irregularity in obtaining the order may be waived by the solicitor, Re Field, 16 Beav. 593 ; Re Wavell, 22 Beav. 634 ; Re Hair, 11 Beav. 96 ; Re JBevcm, 12 W. R. 196 ; ReRartrum, ibid. 660. For cases where a bill must be filed, see Ee Forsyth, 34 Beav. 140. (n) As to the taxing-master's powers under the common reference for taxation, see note to Ord. XL, 1, ; and as to reviewal of taxation, see Ord. XL. 35, and for the mode of enforcing orders under the section, see note (u), infra. (o) This application may be made «a:fiortc. See note (m). Porforms of order under this clause, see Seton, 829 ; Ee Bromley, 7 Beav. 488 ; note. Be Becke, 5 Beav. 406 ; Ee Field, 16 Beav. 593. (p) See note (c), sjjpra. (?) See Ee Barnard (2 D. M. G. 359). It has been held that where judg- ment at law has gone against the client hy defamlt, but no writ of inquiry to assess the damages has, been executed, this is not a final judgment so as to prevent taxation in equity, Ee Gedye, 15 Beav. 254. ()•) Special applications are now made by summons in chambers, Ord. 2 Aug. 1864, r. 1, post. Twelve months after delivery, even an unsigned bill can only be taxed under special circumstances, Re Gedye, 14 Beav. 56 ; so that to entitle a client to taxation after twelve months he must show either (1), "pressure accompanied by some overcharge," or (2), "gross overcharge, amounting to fraud," Re Strother, 3 E. & J. 528, Re M'Kay, 15 L. T. N. S. 101). As to what circumstances constitute such pressure or fraudulent overcharge, see the note to sect. 41 , infra, on ' ' application to tax after payment " on which applications the question more frequently arises, Re Williams, 15 Beav 417. But the Court may order taxation under this clause on some grounds which Irregularity in order waived. Taking mas- ter's powers. Application after one month. Verdict at law a bar to taxa- tion. Special appli- cation after twelve months. Special circum- stances. Pressure and overcharge. Other grounds accounting for could not arise in the case of an application to tax after payment. Thus a the delay. dispute and correspondence as to alleged omissions in the bill were held to be a sufficient apology for the lateness of the application in Re Bagshawe, 2 De Gr. & Sm. 205, and see Binn' s Executors v. Hey, 1 D. & L. 661 ; but the circum- stance that the solicitor was suing at law for his fees was not a sufficient apology, Bermett v. Mil, 21 L. T. 101, and see note (m), supra. Where the relationship 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. F. J. 93, 100 ; but the solicitor's possession of the papers in the suit was not. Re Gedye, 14 Beav. 66, and see Sayer v. Wagstaf, 5 Beav. 415, Re Punk, 32 Beav. 273, 1 D. J. S. 673. ■^ So where a client has not had proper opportunity to examine the bill, taxa- tion after twelve months has been allowed, Re Williams, 15 Beav. 417 (where opportunity to the bill was delivered just as the client was going abroad) ; but the client must examine. show that there has been no undue laches or acquiescence on his part, that the Laches and ac- special circumstances are such as he could not with reason have availed himself quiescence. "^ sooner, Re Barnard, 2 D. M. G. 359 ; but see Ee Strother, 3 K. & J Where client has not had ATTOENIES AND SOLICITORS ACT. 19 51 S. For eases whev& lapse of time and laches has been a bar to taxation, 6 & 7 Vict, sea Se Vines, 2 D. M. G. 812 ; Blagrave v. Rovih, 8 D. M. G. 620 (where o. 73, s. 37. the application was by bill). And see note (g), p. 26, post. In ordering taxation after twelve months the Court will, if necessary, restrict Limits of taxa- the taxation within certain limits, Re Nicholson, 3 D. F. J. 93. tion. (s) It is important with reference to the costs of taxation to consider what ^|,g^(. Hi,^s items included by the solicitor in his bill will be allowed him on a reference ,„„„ v,„ ;„ > _ . iiliiV UC 111- for taxation. „ ^ . .. ^. ^ . . v ,. eluded in the Only those p-ayments are allowed on taxation which are made by the soli- yujo betaxcil. citor in his professional capacity ; see the certificate of the taxing-masters in Re Remnant, 11 Beav. 603 ; and for the taxing-master's discretion as to the amount, see Re Page, 32 Beav. 487. Other disbursements should be included in a separate account; but see Waring v. Williatns, 2 Beav. 1. Tayments made to counsel for business have been held professional disburse- Disbui'sements. ments, Franklin v. Feathcrstonhaugh, 1 Ad. & Ell. 478, unless the client appropriated a special sum for such payment, leaving the solicitor no dis- cretion, Re Bedson^ 9 Beav. 5 ; but see Re Metcalfe, 30 Beav. 406 ; Daniell, 1724. Cash payments made by.-the solicitor in proceedings where he was not professionally concerned are not allowed to be included, Semmings v. WiUon, 4 C. & P. 318; Prothero v. Thomas, 6 Taunt. 196; Re Lees, 5 Beav. 410 ; and see Latham v. Hyde, 1 0. & M. 128 ; Feame v. Wilson, 6 B. & Cr. 86. Thus the fees of a solicitor acting as steward to a manor, are not professional disbursements, Allen v. Aldi-idge, 5 Beav. 401 ; but business done by a solicitor "retained to act as electioneering agent, and to advise and assist the committee," may be included, Re Osborne, 4 Jur. N. S. 296. Compare Re Oliver, 15 W. R. 331. A solicitor may apply for taxation of his agent's bill of costs, and though Taxation of agency business includes many transactions, it may be taxed in one bill, gene- ajs^^y bills, rally on the terms of the applicant paying a sum of money into Court, Billing V. Coppock, 1 Exoh. 14 ; Smith Y. Dimes, 4 Exoh. 32; Re Smith, 9 Beav. 342 ; Jones v. Roberts, 8 Sim. 397 ; Earcey v. Mayhew, 2 W. K. 128 ; and see ijare v. Robinson, 7 Hare, 228, Seton, 1716. An order directing costs of a suit to be taxed warrants taxation up to the Items to date date of the taxing-master's report, Quarrell v. Bechford, 1 Mad. 285, and of report, see 2 Daniell, 1084. Where a solicitor has been retained for a particular business, his bill of What oonsti- costs for carrying it through, constitutes one bill, Stokes v. Trumper, 2 K. tutes one bill. & J. 232, and see Re Peach, 2 D. & L. 33. After the bill has been referred for taxation under this statute (see No alteration Davis V. Earl of Dysart, 21 Beav. 124), no alteration can be made in it (Hays after reference V. Trotter, 5 B. & Ad. 1106 ; Re Wells, 8 Beav. 416 ; Re Catlin, 18 Beav. to master, 519 ; Davis f. Earl of Dysart, ibid. 124, 8 D. M. G. 33), except by con- sent, or on a special application for leave to amend. Re Andrews, 17 Beav. 510, 514. Thus leave was given to amend by inserting omitted items, and except by increasing undercharges (see, however. Re Tilleard, 32 Beav. 476) ; but not leave of Court, to decrease overcharges. Re Whalley, 20 Beav. 676 ; nor to withdraw items improperly inserted, Re Carven, 8 Beav. 436; Re Jones, ibid. 479 ; Re Blakesly, 32 Beav. 379. So a solicitor whose bill was referred for taxation, was not allowed to have a Insertion of previous bill against the same client, which he had retained, included in the additional taxation, for the purpose of saving costs of taxation. Re Qregg, 30 Beav. 269 ; items, but it has been doubted whether under an order for a general taxation, a soli- citor can have items included which have been taxed and paid under a previous particular taxation, Tarbuch v. Tarbuch, 4 Beav. 149 ; and see Ex parte Quilter, 4 De G. & Sm. 183. Where a solicitor has delivered his bill, he is bound by it to this extent, Alteration that he cannot substitute a second bill for it, even before notice of an order after delivery. to tax is sei-ved on him, without paying all the costs incurred by the client up to the date of the obtaining such order, Re Chambers, 34 Beav. 177. (t) The rule as to one-sixth is imperative in an ordinary reference to taxation, Eule as to ono Re Woolleit, 15 M. & W. 504. Where the reference is special that rule does sixth, not apply, and the costs of the reference are in the discretion of the judge; 2 20 ATTORNIES AND SOLICITORS ACT. 6 & 7 Viet. c. 73, s. 37. Bnle as to one Bixtb. Where soKcitor is bankrupt. Calculation of one-sixtb. Where client pays costs. Security for costs. Delivery of bill how enforced. Delivery of papers to client. Where solicitor is discharged. and see Dichim v. Woolcot, 8 B. & N. 589 ; Toghill r. Gr 1 spect of leases tor a life or lives or years, or for a lite or lives and years, g\. reversions or any estate in lands less than the whole fee simple ^^.*^^y ™*y thereof, or of any reversion dependent on any such lease or estate, it shall be lawful for the Court of Chancery in England or the Court of Exchequer in Ireland, on the petition of any party interested in such money, to order that the same shall be laid out, invested, accumulated, and paid in such manner as the said Court may consider will give to the parties interested in such money the same benefit therefrom as they might lawfully have had from the lease, estate, or reversion in respect of which such money shall have been paid, or as near thereto as may he(q). (q) "Lease" includes an a^eement for a lease (sect. 3). Apportion- As to apportionment between lessor and lessee, where there is a doubt on ment — the title of either, see Brandon v. Brandon, cited in note to sect. 79, post, p. 46. m\ ^g between A yearly tenant holding over after notice to quit, can claim no compensation, igggor and Ex parte Nadin, 17 L. J. Ch. 421. Lessors and lessees should deal separately jgggjg. with the company in respect of their interests, for the Court has no jurisdiction to apportion the capital of the purchase-money between them, Ex parte Ward, 2 De G. & S. 4. , When property held under a lease is taken, so that the present income l^-^' ■"■^ ueiween of the purchase-money is less than the annual profits of the land, it often successive becomes a question between a tenant for life and remainderman how the owners, purchase-money is to be divided. The tenant for life was allowed the full (a) Where the income he received before the sale in Jeffreyes v. Connor, 28 Bear. 328, property taken and the same was held with respect to an annuitant in Ex parte Wilkinson, was hdd on 3 De &. & M. 633; but see Re Birch, 10 Jur. N. S. 673. In Re Money, icuse.and there- 2 Dr. & Sm. 94, the entire purchase-money was divided by the number of fore of perish- years the lease had to run, and a portion paid each year to the tenant for able nature, life ; but this case was disapproved of, and the proportions referred to au actuary, in Re Chamberlain, 10 Sol. Jour. 910. On the other hand, where property lot on a lease at a low rent renewable (|8) where it on fines is takeDj the present income of the purchase-money will far exceed the was let on '*2 LANDS CLAUSES CONSOLIDATION ACT. 8 Viet. 0. 18, rent reserved, and in such cases, where the land taken belongs to eccle- "• 7^- siastical corporations, the Court generally allows the persons entitled in , , possession so much of the dividends of the purchase-money as corresponds lenewaoie on ^^^-^ ^j^^ amount they -n-ould have received if the land were_ unconverted, ^^' and directs the surplus to be accumulated and invested, with liberty to •n„.i.„-„-i. , apply at the periods when the leases would be renewable and the fints wTu! payable, Bx parte Dean of C/Joueester, 19 L. J. Ch. inquisition, are in court under the Act, the Court may entertain applications as (fi) of lunatics to such monies in its ordinary jurisdiction, Se Macfarlane, 2 J. & H. 675 ; and persons of ZAgJU v. Zight, 25 Beav. 252, overruling Ee Irby, 27 Beav. 334 ; and see Re unsound mind. Law, 30 L. J. Ch. 512 ; Re Berry, 13 Beav. 465, and even where the pro- perty belonged to a lunatic, the Court has paid it out (under the authority of special enabling statutes, see Seton, 1109) to the Poor Law Guardians, Re Upfull, 3 M. & G. 281 ; Re Pa/rher, 2 W. E. 139; Re Wd/rd, ibid. 406; Re Brewery, ibid. 436 ; Re Bucldey, Johnson, 700 ; and see Re Stwge, 5 Jur. N. S. 423 ; Re Bwrke, 6 Jur. N. S. 717 ; Re Dodsworth, 10 Hare, 16. Jurisdiction to A case of considerable importance (Re Bhy^i Trusts, 1 M. & G. 488), as to the decide ques- jurisdiction of the Court under this Act, was decided by Lord Cottenham, shortly tions as in a aftei- it came into operation. In that case the solicitors conducting the sale of suit. TRUSTEE RELIEF ACT. 71 a reversionary trust fund, laving purchased the property on their own account, 10 & 11 Vict, presented a petition for payment of the fund, which had suhsequently to the c. 96, s. 2. sale heen paid into court by the trustee under the provisions of this Act. A question arose as to the propriety of the purchase hy the solicitors, and the Re*Bloye's adequacy of the consideration, and a case of fraud and deception on the part Trusts, of the solicitors was alleged. The Lord Chancellor, although evidently of opinion that the matter would have been better disposed of in a suit, upon the parties agreeing that it should be treated as if the respondents had presented a cross petition, praying for the payment of the fund to them, reversed the decision of the Yice-Chancellor of England, ordering payment to the actual petitioners, and made an order to bring the fund back into court, accompanied by a declaration negativing the title of the petitioners to whom it had been paid. See the case generally as to the scope and object of the Act, and particularly pp. 499, ei sej. of 1 M. & G. This case subsequently went to the House of Lords {sub nom. Lewis v. HUlman, 3 H. L. Ca. 607), where Lord Cottenham's decision was upheld, their Lordships being of opinion that the Court had the same jurisdictiouupou a petition as upon a bill, and that, where cross petitions were presented by the adverse claimants, or where, by consent, the case was treated as if such cross petitions had been presented, the Court had full power to declare the validity or invalidity of any deed on which the claim was rested. The tendency of later decisions has been to extend the applicability of the Jurisdiction Act. Thus, it has been held that, when money is paid in under its provisions, under Act to the Court has jurisdiction to decide all questions arising concerning it, just as decide ques- weU as in a suit, and may, if it thinks fit, direct an issue to try the sanity of tions a testator, or for any other similar purpose (JRe A lien, Kay, App. 51) ; and makeabindingdeclarationof right under 15 & 16 Vict. c. 86, s. 50, post, p. 208 {He Walker, 16 Jur. 1154 ; but see Sharshaw v. Gibbs, Kay, 333), and may, of course, decide as to the construction of a settlement {Re Dalton, 1 D. M. Q. 265), or give efiect to a married woman's equity to a settlement, by of married wo- ordering such settlement out of the fund in court, either on her petition {Re man's equity Disney, 2 Jur. N. S. 206), or on that of another person {Be Cutter, 14 Beav. to settlement, 220; Re Kimcaird, 1 Drew. 326 ; Re Grove, 3 Giff. 575), and may even order payment to a person not petitioning {Re Woollwrd, 18 Jur. 1012, post, p. 72) ; and the mere fact that pedigrees, deaths, &c., have to be proved, which on a of pedigrees, bill and answer might be admitted, will be no ground for directing a bill to be &e., filed {Re Harris, 2 W. B. 442, following Goode v. West, 9 Hare, 378) ; and see Ex parte Barnard, 6 Ir. Ch. Kep. 133 (decided on the Irish Act, 11 & 12 Vict. c. 68), where it was doubted whether the Court had jurisdiction on a petition under the Act to decide a question of election, p. 142 (as to this point, see of election, Stroud V. Norman, Kay, 313, 326), and where there are creditors or unascer- tained claims, a bill may be necessary {Re Allen, Kay, App. 51) : but compare Hankey v. Mmley, 4 Jur. N. S. 234, andiiie Trarnr, 1 L. T N. S. 154, where money paid in was ordered to be distributed as in an administration suit, proper inquiries being directed. As to a general administration being made of general art- necessary by generality in the title of the affidavit, see note (/), supra. But a ministration, deed cannot be reformed on petition under the Act, Re Malet, 10 W. K. 332, But not to oveiTuling Re Morse, 21 Beav. 174; but see Re Hoa/re, 4 Giff. 254; nor im- reform a deed, peached. Re Way's Settlement, 10 Jur. N. S. 1166 (but see Lewis v. HUlman, 3 H. L. Ca. 607); nor a breach of trust remedied (see Re Lloyd, 2 W. R. 271, nor remedy a and ante, note (I)), and if a question of adverse title has to be decided, a suit breacbot tiust. may be directed. Re Fozard, 24 L. J. Ch. 441 ; see Daniell, 1760 ; and the Leave given to cestuis que trusts may file a bill to have their rights declared, Thorp v. Thorp, file bill. 1 K. & J. 438, and see Re Sharpe, 15 Sim. 470. Where a fund is paid in under the Act, an assignee should obtain a stop Stop order order. Re Millar, 6 W. R. 238. Where a stop order was applied for by a granted with- creditor of a person interested in the fund in court, and the creditor served out prejudice the trustees who claimed a lien for costs against the same person, the Court to conflicting would not determine the question of lien, but granted the stop order without claims, prejudice to that question, and gave the trustees their costs, see note (r), p. 73, against the applicant. Re Blunt, 10 W. R. 379 ; see note {a) to Ord. XXVI. Though the jurisdiction of the Court is properly confined to the trust money Prospective 72 TRUSTEE RELIEF ACT. 10 & 11 Viet. 0. 96, jj. 2. order for » payment of future instal- nients and income. Application by petition or summons. Cross petitions when there are counter claims. Form of peti- tion. Who may peti- tion. Only persons named in the affidavit! Infant and curator. Evidence and inquiries. already paid in, yet a trustee who had paid a portion of trust money into Court under the Act, was ordered, on the petition of the cesiid que trust, whose title was clear, to pay to him the future instalments of the fund as they were received {Re Wright, 1 Sm. & G. App. v.). And, in a later case. Lord Romilly, M. E.., made a prospective order for payment by the Accountant-Gleneral to a tenant for life of the income of any future fund paid to the same account {Re Ohamherlain, 22 Beav, 285, and see note to the case ; and Be Thotmton, 9 W. K. 475, cited in note to Trustee Act, 1850, s. 31, p. 98). So an order may be made for payment of dividends to successive tenants for life {Re How, 15 Jur. 266) ; and in Re Brent, 8 "W. R. 270, an order was made under the Act for payment of the dividends of a fund in court to one tenant for life, and on proof of his death to a second tenant for life, without further order, and see Lewih, 741, note (a). (p) The application must he by pc^tfe'oTO (i2e JfosseKM, 15 Jur. 1073; Ex parte Stock, 5 Ir. Ch. Kep. 341) ; except where the trust fund does not exceed 300?., in which case, it must be by summons in chambers, under Ord. XXXT. 1. See note to 16 & 16 Viet. c. 80, s. 26, post. And it seems that where the fund is over 3002., a petition is necessary, even though a cause be pending in which a decree is made' on further directions (Otte v. Castle, 1 W. R. 64). When, however, an order has been made on petition, further proceedings upon it may be taken by summons in chambers, Re Bodges, 4 D. M. G. 491. See forms of summons, post, App. xxx. xxxi. Where the claim is disputed, cross petitions should be presented {Lewis v. Hillman, 3 H. L. Ca. 607) ; but, by consent, the case may be treated as if a cross petition had been presented (ibid.). See last note, and Daniell, 1758. And in one case the Court, to save expense, made an order for payment of thefuud to the respondents, although they had not presented a petition (Re WooUa/rd^s Trusts, 18 Jur. 1012). The prayer of the petition and notice thereof should specify the exact Older sought for, and the precise portions of the fund which are to be transferred to the several parties entitled to it {Ex parte Barna/rd, 6 Ir. Ch. Rep. 133, under the Irish Act, 11 & 12 Vict. c. 68, the provisions of which are similar to those of this Act). As to the form of the prayer where one of several persons interested applies, see Re Hawtces, 18 Jur. 33, where it was said that the petition should ask that the shares of the other persons should be carried to separate accounts. The petition should set out the effect of the affidavit upon which the money is paid in (Re Levett, 5 De G. & Sm. 619; Re Flack, 10 Hare, App. xxx.), but it need not, eicept in special cases, set out the whole affidavit (Re Gourtois's Will, 10 Hare, App. Ixv.). For a form of petition under the Act, see Daniell, iii. 1757. (q) A petitioner may apply in foi-md pauperis (Re Money, 13 Beav. 109; ■cf. Be Lancaster, 18 Jur. 229). As to who may apply, see Ord. XLL 6. The trustees are not the proper persons to present the petition, though the Court will make the order on their petition (Re Hutchinson's Trusts, 1 Drew. & Sm. 27, where V.-C. Kindersley, following the decision in i?e Cazneau, cited ante, p. 68, allowed the trustees only respondent's costs, and gave the car- riage of the order to the cestuis que trusts) ; and the request of one of the cestwis que- trusts that they should present the petition is not sufficient to justify them in doing so. See further, as to the costs of trustees, ante, p. 68. A person not mentioned in the trustee's affidavit cannot, it seems, apply (Re Jephson, 1 L. T. N. S. 5). On the application of an infant domiciled in Scotland {who was above the age of puberty), and her curator properly appointed, a fund which had been brought into court under this Act was ordered to be transferred into the joint names of the infant and her curator (Re Crichton's Vrusts, 24 L. T. 267.) The petition must be supported by proper evidence of the title of the appli- cant, and, if necessary, inquiries will be directed (Re Wood, 15 Sim. 469 ; Re Sharpe, ibid. 470 ; Be Barber, 1 Sm. & G. 118 ; Re Morgan, 2 W. R. 439). And a person making an affidavit may be cross-examined under 15 & 16 Vict, c. 86, s. 40, p. 193, post (Re Bendyshe, 5 W. R. 816). As to trustees taking copies of the affidavits, see Re Lazarus, cited p. 68, ante. For the practice as to payment out of court, see ante, note (A), p. 37. TRUSTEE RELIEF ACT. 73 (r) The following rule as to service is laid down by Ord. XLI. 6, 7 :—(!), 10 & 11 Viot. that the trustees are to be served with notice of applications by persons interested c. 96, s. 2. in the fund ; (2), the persons interested are to be served with notice of applioa- ; tions by the trustees. Eu18b as to (1.) Trustees, &c., paying money into court, have their costs of appearing service^- as^ respondents to a petition for a stop order, Se Blunt, 10 W. K. 379, or (except Of trustees ; in cases of vexatious conduct), to a petition for payment out, note (i), ante. Where a trustee avoided 'service, the order was made upon service at the place mentioned in his affidavit, Ex parte Maugham, 16 Jur. 325, but see JRe Lawrence, 14 W. R. 93, and compare cases on substituted service in note to Ord. X. 2. Service on a trustee may be dispensed with in a clear case, lie Towng, S W. R. 400 ; Be Beauclerk, 11 W. R. 203 ; Be Thomas, ibid., 276. (2. ) As to dispensing with service on the ground that the party to be served of oesluia que is abroad and cannot be heard of, see Be Hansford, 7 W. R. 199, where notice trusts ■ of the payment in was dispensed with, quoted note (m), ante, p. 69. Parties served, who claim no interest, should not appear, and if they do, will get no costs. Be Smith, Z Jur. N. S. 659 ; Be Birch, 2 K. & J. 369 ; -Re Justices of Coventry, 19 Bear. 158 (but see, contra. Ex parte Queen's College, 6 W. R. 9 ; Budge v. Weedon, 11 W. R. 819). A fortiori incumbrancers appearing on a petition by a prior incumbrancer, where debt exhausted the fund in court, in spite of a notice by the petitioner's solicitor that if they appeared the pay- ment of their costs would be resisted, were held disentitled to costs, Bohertsv. Ball, 24 L. J. Ch. 471, and compare cases cited ante, p. 51, as to appearances of incumbrancers under the Lands Clauses Act. Where a tenant for life petitions for payment of income, remaindermen need of remainder- not be served, Be Whitling, 9 W. R. 830, compare cases cited amte, p. 50, ad men ; fin. So, where the petitioner prayed that th e dividends might be paid to several tenants for life, and the several shares of the corpus carried over to the accounts of numerous remaindermen. Be Hodges, 6 W. E. 487, and see Expwrte Fletcher, 12 Jur. 619 ; Strong v. Strong, 6 W. R. 455 ; and in such cases it seems that leave may be given to serve some of the parties interested on behalf of the class, Be Colson, 2W. R. 46. See 15 & 16 Vict. >;. 86, b. 42, p. 196, post. Where a fund has been carried over to a separate account, the parties inte- of persons in- rested in the other shares need not be served (vid. Be Hodgson, 2 Eq. Rep. terested in * 1083 ; Be Hawhes, 18 Jur. 33) ; so a mortgaged share of funds paid into court other shares ' under the Act, may be paid to parties clearly entitled, in the absence of the parties interested in the other shares (Be Bedford, 21 L. T. 164 ; and see, 15 & 1 6 Viot. c. 86, s. 51 ; and Be Shwrpley's Trusts, 1 W. R. 217, where it was held that this section applied to proceedings under the Trustee Act, 1850). By analogy it would probably be held to apply to proceedings under this Act. A married woman, having a power of appointment over a reversionary trust of persons who fund, appointed it by way of mortgage, with a power of sale, under which it may claim was afterwards sold. Her husband became bankrupt, and, after the determi- adversely, nation of the life estate, the trustees paid the fund into court under this Act, The purchasers thereuppn presented a petition for a transfer of the fund to them, which was served upon the trustees only. The Court made the order, subject to a direction that it should not be drawn up for a fortnight, and that the husband's assignees should be served with notice that the fund would be paid out if no objections were taken {Ex parte Stuteley, 1 De Gt. & Sm. 703). On a reasonable application, in writing, by parties residing abroad, and Partiesreslding served with notice of a petition under the Act, the Court may postpone the abroad, order for payment out of court (Be Hodgson's Will, 22 L. J. Ou. 1066) ; but see as to service out of the jurisdiction, note (a), supra. (s) See Be Fozard, cited p. 71, supra, as to cases where a bill may be directed to be filed. III. Provided always, and be it enacted, that the addi- Regulating tional remuneration which the said Accountant-Geueral count. -General. may receive in consequence of the operation of this Act shall not have the effect of giving to him any claim for a 74 ■ TRUSTEE RELIEF ACT. ^0 *6^^ ^3 *' ^^''S®^ income by way of salary or otherwise, in the event '- '— of the said office of Accountant-General being hereafter regulated by competent authority, than would have been assigned to him if this Act had not been passed. Lord Chancel- IV. And be it enacted, that the Lord Chancellor, with ter of the Rolls, the assistance of the Master of the Eolls, or of one of General 0™*"^^ *^® Vice-Chancellors, shall have power, and is hereby ders. authorised, to make such orders as front time to time shall seem necessary for better carrying the provisions of this Act into effect (t). (i!) See Ord. XLI. 1—9. Construction of V. And be it enacted, that in the construction of this "Lord Chan- -A-Ct the expression "the Lord Chancellor" shall mean oellor." a^jj^ include the Lord Chancellor, Lord Keeper, and Lords Commissioners for the custody of the Great Seal of Great Britain for the time being. 12 & 13 YICT. Cap. 74. An Act for the further Relief of Trustees. [28tA July, 1849. 12 & 13 Vict. Wheeeas difficulties have arisen in the transfer of "- ^^- securities vested in trustees in certain cases under the provisions of an Act passed in the session of Parliament holden in the 10th and 11th years of the reign of her present Majesty, intituled " An Act for better securing trust funds, and for the relief of trustees," and it is expedient to make a further provision for carrying into effect the objects of the said recited Act : be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that if upon any petition presented to the Lord Chancellor or Master of the Eolls in the matter of the said Act it shall appear to the judge of the Court of Chancery before whom such petition shall be heard that any monies, annuities, stocks, TRUSTEE RELIEF ACT. 75 or securities, are vested in any persons as trustees, exe- 12 & 13 Viot. cutors, or administrators, or otherwise, upon trusts within the meaning of the said recited Act, and that the major part of such persons are desirous of transferring, paying, or delivering the same to the Accountant-General of the High Court of Chancery under the provisions of the Court of Chan- said recited Act, hut that for any reason the concurrence ap'pliSon b™ of the other or others of them cannot be had, it shall be majority of lawful for such judge as aforesaid to order and direct such order payment transfer, payment, or delivery to be made by the major °^ *™°*^nies^ part of such persons without the concurrence of the stocks, or secu- other or others of them ; and where any such monies or courVof Chan- Government or Parliamentary securities shall be deposited eery. with any banker, broker, or other depositary, it shall be lawful for such judge as aforesaid to make such order for the payment or delivery of such monies. Government or Parliamentary securities, to the major part of such trustees, executors, administrators, or other persons as aforesaid, for the purpose of being paid or delivered to the said Accountant-General as to the said judge shall seem meet ; and every transfer of any annuities, stocks, or securities, and every payment of money, or delivery of securities, in pursuance of any such order, shall be as valid and effectual as if the same had been made on the authority or by the act of all the persons entitled to the annuities, stocks, or securities so transferred, or the monies or securities so paid or delivered respectively, and shall fully protect and indemnify the Governor and Company of the Bank of England, the East India Company, and the South Sea Company, and aU other persons acting under or in pursuance of such order {a). (a) An order was made under this Act in He Broadwood, 8 L. T. N. S. 632. AN ACT TO DIMINISH DELAY IN CHANCEKY. 13 & 14 YIOT. Cap. 35. [See this Act, commonly called Sir G. Turner's Act, page 117, poit.l 76 TRUSTEE ACT, 1850. TRUSTEE ACT, 1850. 13 & 14 VICT. Cap. 60. An Act to consolidate and amend the Laws relating to the Conveyance and Transfer of Real and Personal Property vested in Mortgagees and Trustees (a). [5th August, 1850. 13 & 14 Vict. Wheebas an Act was passed in the first year of the "• ^^- reign of his late Majesty King William the Fourth, w '^^1' *^n ^^t^t^l®*^ "-^^ -^ct for amending the laws respecting con- veyances and transfers of estates and funds vested in trustees and mortgagees, and for enabling Courts of equity to give effect to their decrees and orders in certain cases :" and whereas an Act was passed in the fifth year of the reign of his late Majesty King William the Fourth, 4 & 5 Wm. 4, intituled " An Act for the amendment of the law relative "■ to the escheat and forfeiture of real and personal property holden in trust : " and whereas an Act was passed in the second year of the reign of her present Majesty, intituled 1 & 2 Vict. " An Act to remove doubts respecting conveyances of estates vested in heirs and devisees of mortgagees:" and whereas it is expedient that the provisions of the said Acts should be consolidated and enlarged : Be it there- fore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that all pro- ceedings under the said ■ Acts or any of them commenced before the passing of this Act may be proceeded with under the said recited Acts, or according to the provisions of this Act, as shall be thought expedient, and, subject as aforesaid, that the said recited Acts shall be and the same are hereby repealed : Provided always that the several Acts repealed by the said recited Acts shall not be revived, and that such repeal shall be only on and after this Act coming into operation. Orders under (a) The Court will not without the Crown's consent make orders under this Act interfering ■*"' interfering with the Crown's rights to escheats, &o., see note (m) to sect, with escheats. ^^> P- 88, post, and Se Oiravd, cited in note (p), p. 100 ; but see Re Wilhin- son's Trusts, cited p. 97. TRUSTEE ACT, 1850. 77 The Court will not, under this Act, decide a dfsputed question of title, see 13 & 14 Vict, notes (h) to sect. 30 and (m) to sect, 32 ; and compare cases cited under the o. 60, s. 1. Trustee Belief Act, ante, p. 71, and note (p) to sect. 3, infra. As to appeals from orders made under the Act, see note (/), p. Ill, II. And whereas it is expedient to define the meaning Interpretatiou in which certain words are hereafter used : it is declared ° ^™^' that the several words hereinafter named are herein used and applied in the manner following respectively: (that is to say,) The word " lands" shall extend to and include manors, messuages, tenements, and hereditaments, corporeal and incorporeal, of every tenure or description, what- ever may be the estate or interest therein (6) : The word "stock" (c) shall mean any fund, annuity, or security transferable in books kept by any company or society established or to be established, or transfer- able by deed alone, or by deed accompanied by other formalities, and any share or interest therein : The word " seised " {d) shall be applicable to any vested estate for life or of a greater description, and shall extend to estates at law and in equity, in posses- sion or in futurity, in any lands : The word " possessed " shall be applicable to any vested estate less than a life estate, at law or in equity (e), in possession or in expectancy, in any lands : The words " contingent right," as applied to lands, shall mean a contingent and executory interest, a possibility coupled with an interest, whether the object of the gift or limitation of such interest or possibihty be or be not ascertained ; also a right of entry, whether immediate or future, and whether vested or contingent : The words "convey" and "conveyance," (/) applied to any person shall mean the execution by such person of every necessary or suitable assurance for conveying or disposing to another lands whereof such person is seised or entitled to a contingent right, either for the whole estate of the person conveying or disposing, or for any less estate, together with the performance of all formalities required by law to the validity of 18 TRUSTEE ACT, 1850. 13 ^ 1^ ^i"*- such conveyance, including the acts to be performed — '- — ' by married women and tenants in tail in accordance with the provisions of an Act passed in the fourth year of the reign of his late Majesty King William 3&^4Wm.4, ^j^g Fourth, intituled "An Act for the abolition of fines and recoveries, and the substitution of more simple modes of assurance" (/), and including also surrenders and other acts which a tenant of customary or copyhold lands can himself perform preparatory to or in aid of a complete assurance of such customary or copyhold land {g) : The words " assign " and " assignment '' shall mean the execution and performance by a person of every necessary or suitable deed or act for assigning, sur- rendering, or otherwise transferring lands of which such person is possessed, either for the whole estate of the person so possessed or for any less estate : The word "transfer" shall mean the execution and performance of every deed and act by which a person entitled to stock can transfer such stock from himsell to another : The words " Lord Chancellor " shall mean as well the Lord Chancellor of Great Britain as any Lord Keeper or Lords Commissioners of the Great Seal for the time being (h) : The words " Lord Chancellor of Ireland " shall mean as well the Lord Chancellor of Ireland as any Keeper or Lords Commissioners of the Great Seal of Ireland for the time being : The word " trust " shall not mean the duties incident to an estate conveyed by way of mortgage («) ; but, with this exception, the words "trust" and "trustee" (/c) shall extend to and include implied and constructive trusts (Z), and shall extend to and include cases where the trustee has some beneficial estate or interest in the subject of the trust, and shaU extend to and include the duties incident to the oflSce of personal representatives of a deceased person : The word "lunatic" shall mean any person who shall TRUSTEE ACT, 1850. 79 have been found to be a lunatic upon a commission of ^^ ^ ^^ ^''''■ c 60 s 2. inquiry in the nature of a writ De lunatico inquirendo : — '■ — ' ' The expression " person of unsound mind " shall mean any person, not an infant, who, not having been found to be a lunatic, shall be incapable from infirmity of mind to manage his own affairs (m) : The word " devisee " shaU, in addition to its ordinary signification, mean the heir of a devisee and the devisee of an heir, and generally any person claiming an interest in the lands of a deceased person, not as heir of such deceased person, hut by a title dependent solely upon the operation of the laws concerning devise and descent : The word " mortgage " shall be applicable to every estate, interest, or property in lands or personal estate, which would in a Court of equity be deemed merely a security for money (w) : The word " person " used and referred to in the mascu- line gender shall include a female as well as a male, and shall include a body corporate : And generally, unless the contrary shall appear from the context, every word importing the singular number only shall extend to several persons or things (o), and every word importing the plural number shall apply to one person or thing, and every word importing the masculine gender only shall extend to a female. (6) As to "lands" including "rents charge," see He Harrison, cited "Lands." Seton, 811. "Lands" do not include leaseholds in sect. 15, where the word " seised" is used, Be Earvey, Seton, 819 ; Re Miimdel, 8 W. R. 683 ; but in Re Mundel a Testing order was made under sect. 32 (see note (m), p. 98), in which sect, the word "lands" includes leaseholds, Re Maihew, 2 W. R. 85. (c) The word " stock " includes shares in a, joint-stock banking company, "Stock." Re Angela, 5 De G. & S. 278, andshares in ships registered under the Merchant Shipping Act, 1854. 18 & 19 Vict. c. 91, s. 10. As to the powers of the Court to Test the right of transferring stock, or to Orders vesting vest the right to stock itself, see note {v) to sect. 5. stock. (d) See Re Mundel, cited in note (5). "Seised." (e) As to the necessity of Testing orders where a decree has been made Equitable in- binding equitable interests, see note (h) p. 96. terests. (/) See as to the effect of a Testing order under the Act generally, and Yesting orders, especially as to its operating as a conveyance under these words to bar an nf land en- entail, notes (y) and (s) to sect. 7, infra, p. 83. ^.^^^^^ (^) See as to vesting orders of copyhold^ sect. 28, and note, p. 95, mfra. „, ' u i j (A) See notes to sect. 3, as to the jurisdiction OTor lunatics. copybolds. ^ ' Lunacy juris- diction. 80 TRUSTEE ACT, 1850. 13 & 14 Vict. u. 60, s. 2. Mortgagee not trustee within Act. "Solo trustee.'' Who ia trus- tee. Hustand. Executrix. Heir. Heir of mort- gagee. gnee la bankruptcy. Trustee for sale. Dower trustee. Constructwe trustee. "Unsound mind." (i) Therefore a mortgagor cannot obtain an order for reeonveyance under the Act, without suit, under sections which relate only to trustees, e. g. sect. 9, and see note (h) to sect. 30. Seou,g, where land was conveyed, not strictly by way of mortgage, but by way of trust for sale in default of payment of money borrowed, see Re Underwood, 3 K. & J. 745. (i) As to the interpretation put on the words "sole trustee" see note to sect. 22, p. 91, post. The foUowinfi; persons have been held to be trustees within the Act : — The husband of a feme covert trustee (under sect. 5), Re Wood, 3 D. F. J. 126 ; and of an executrix (under sect. 22), Ex parte Bradshaw, 2 D. M. G. 900. The executrix of a surviving trustee (under sect. 4 of the Extension Act), Re Ellis, 24 Beav. 426. An heir on whom trust estates descended by reason of the disclaimer of devisees in trust (under sect. 9), Wilhs v. Groom, 6 D. M. G. 205. The heir at law of a deceased mortgagee (under sects. 9 and 15), in cases not •within the 19th section ; Re Skitter, 4 W. R. 791 ; Re Underwood, 3 K. & J. 745 ; Re Keeler, 11 W. E. 62, Lewin, 760, note (a). An assignee of a bankrupt (under sect. 9), Re Joyce, 2 L. R. Eq. 676. As to the Act applying to a trustee with a mere power of sale, see note (y), page 83, on vesting orders. As to a mere dower trustee being a trustee within the Act, see Collwrd v. Roe, 4 De G. & J. 525, whence it seema that his interest might have been bound by a decree without any order under this Act. (I) On the question whether a suit for specific performance, foreclosure, &c. , is necessary before a mortgagor, or contracting party can be declared a construc- tive trustee, see note (K) to sect. 30, post, pp. 96, 97. (m) See note ( p) to sect. 3, as to persons of unsound mind. («) See Re Underwood, cited in note (i), supra ; Lawrence v. Galsworthy, 3 Jur. N. S. 1049; Re King, 16 Jur. 1153. (o; See Re Hartnall, eitei. in note (u) to sect. 22. Lord Chancel- III. And be it enacted, that when any lunatic or person estMeloTu-^^ of unsound mind (f ) shall be seised or possessed of any natic trustees lands upon any trust or by way of mortgage, it shall be gees [in iands], lawful for the Lord Chancellor (g), intrusted by virtue of the Queen's Sign Manual with the care of the persons and estates of lunatics, to make an order that such lands be vested (r) in such person or persons in such manner and for such estate as he shall direct ; and the order shall have the same effect as if the trustee or mortgagee had been sane, and had duly executed a conveyance or assignment of the lands in the same manner for the same estate (s). Lunacy and unsound mind where dis- puted. Where lunatic is infant. (p) The Court, under the old practice, refused to declare a trustee to be a person of unsound mind, without the usual reference to the Master (Re Ram- shay, 15 Jur. 69) ; and it has been held that the section would not apply, where the alleged lunatic has not been so found by inquisition, and the fact of the lunacy is contested (Re Campbell, 18 L. T. 202, and Re Walker, C. & Ph. 147, decided under the 5th sect, of the 1 Wm. 4, c. 60 ; see, however, the 52nd sect, of this Act. Where an infant trustee is also of unsound mind, the case falls within thi ordinary jurisdiction of the Court, Re Arrowsmitk, 6 W. R. 742, Seton, 814^ TRUSTEE ACT, 1850. 81 (j) It was held under this section that the -words "the Lord Chancellor" 13 & 14 Vict, included the Lords Justices acting in lunacy, Se Waugh, 2 D. M. G. 279, and u. 60, h. 3. this is now expressly enacted by 15 & 16 Vict. c. 87, s. 15 post, p. 228, and see Tmstee Extension Act, s. 10, p. 116, post, and Re ArrowsmUh, i Jur. N. S. 1123. Lunatic Trus- Whenever the trustee or mortgagee, being under no other incapacity, is of t^^s. unsound mind, even though not found a lunatic by inquisition, the application Application to under these Acts must be made to the Lord Chancellor or Lords Justices, even be made in though the fund is already standing to the credit of a cause (see note to sect. 43) ; lunacy, for the jurisdiction in such cases belongs not to the Court of Chancery, but to the Lord Chancellor in Lunacy, unless the trustee is also an infant (see last note). Re Oood Intent Benefit Society, 2 W. R. 671 ; Re Davidson, 20 L. J. Ch. 644 ; Re Chauncy,, 14 W. R. 849 ; and comp. Re Irhy, 17 Beav. 386, and the cases cited by Lord Justice Turner, in Re Ormerod, 3 De G. & J. 249 ; where it was held that the ¥.-C. of the Duchy of Lancaster has no power under the 17 & 18 Vict, c 82, to appoint a new trustee in the place of a trustee of unsound mind, not found so by inquisition ; see, however, cases cited note (o) p. 70, under the Trustee Relief Act. As to the mode of applying Transfer from where a fund standing in the name of a lunatic trustee is desired to be trans- lunatic trustee ferred to the credit of a cause, see Re Dawson, 6 N. R. 346, where Jeffryes to credit of a T. Drysdale, 9 W. R. 428, is remarked upon. cause. The order ought to be made in Chancery as well as lunacy in all cases where ,^^ ^ ^^^ ^j.^^, it is desired to appoint a new trustee, as the power in lunacy is restricted to . mating a vesting order, Re Boyce, 12 W. R. 359, and in iJe Stewart, 8 W. R. 297, the Lords Justices, under one petition presented in Chancery and Lunacy, ap- pointed new trustees in the place of one trustee of unsound mind, not found so by inquisition, one resident abroad, and one who was dead. The committee ought to be served, Re Saumarez, 4 W. R. 658 ; Re Wood, 7 Service on Jur. N. S. 323 ; and see Re Parser's Trusts, 11 W. R. 655 ; 32 Beav. 580. committee. See, as to the costs of a petition for reconveyance when rendered necessary Costs, by the lunacy of a mortgagee, note to sect. 61, p. 109. (r) See the cases on resting orders under the Act in notes (y) and {z) to sect. 7, infra, p. 83. IV. And be it enacted, that when any lunatic or May convey person of nnsound mind shall be entitled to any contin- ^^^^^'^ gent right in any lands upon any trust or by way of ivMaticiixia- mortgage, it shall be lawful for the Lord Chancellor, gagees in intrusted as aforesaid, to make an order wholly releasing '""■'''■] such lands from such contingent right, or disposing of the same to such person or persons as the said Lord Chancellor shall dii-ect; and the order shall have the same effect as if the trustee or mortgagee had been sane, and had duly executed a deed so releasing or dis- posing of the contingent right (s). (s) See notes to preceding section as to the jurisdiction in lunacy, and notes (_y) and (z) to sect. 7, as to vesting orders. V. And be it enacted, that when any lunatic (i) or person Lord Chancel- of unsound mind shall be solely entitled to any stock or ^ZTInlZZ to any chose in action upon any trust or by way of ^^^*'^' ^''°/ mortgage, it shall be lawful for the Lord Chancellor, ™" ^''^^°^' intrusted as aforesaid (m) to make an order vesting in 82 TEUSTEE ACT, 1850. 13 & 14 Viet, any person or persons the right to transfer such stock, or — — ' to receive the dividends or inconae thereof {v) or to sue for and recover such chose in action, or any interest in respect thereof; and when any person or persons shall be entitled jointly with any lunatic or person of unsound mind to any stock or chose in action upon any trust or by way of mortgage, it shall be lawful for the said Lord Chancellor to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, either in such person or persons so jointly entitled as aforesaid, or in such last- mentioned person or persons together with any other person or persons the said Lord Chancellor may appoint. Who is trastee. (f) Or hushand of a female lunatic trustee, see note (h) to sect. 2. Iiunacy juris- (») As to lunatic trustees, see note (}) to sect. 3. diction. (") These words only authorised the Court to Test in persons the right to Effeot of order *''*°^^8'" stock to themselves, and not to other persons ; but this defect was sup- ij . j^ plied by sect. 6 of the Extension Act, p. 114, poat. riaht to trans- ^'^^ vesting order binds the Bank (sect. 26, and see note (p), page 90 ;) fer stock ^°* ^^^ Bank appealed successfully against an order vesting the right to * transfer a fraetional part of a dividend of stock, and the new trustees in that Form of order ^.^^^ ^g^g consequently enabled to receive the arrears of the dividends on the to transfer whole sum, and directed to retain only such part as was subject to the trust, stock. -jle SfmaH, 8 W. E. 425. Nor will the Court generally vest the right to receive or transfer futv/re dividends of stock in a person in whose name the stock is not standing, see Be Hartnall, 1 De 6. & Sm. Ill, and even where an order was made (under sect, 22) vesting the right to receive " dividends now due or hereafter to accrue due," in three out of four trustees, one being out of the jurisdiction, this order was, on the appeal of the Bank, varied by limiting the right of the three trustees to receive the dividends to their joint lives, i?e Peylit I H ^^^^ ^^'^' (^.Z^'")' discharging an estate from contingent rights of unborn rights o*"'™ tenants in tail, and appointing a person to convey in place of an infant tenant under sect. 16. jn t^il, Hwrgreaves r. Wright, cited in note to sect. 16. Cowtmgeru VIII. And be it enacted, that where any infant shall be rights of mfant ,.,, , . ■ , ■ ■, ^ trustees and entitled to any contingent right m any lands upon fin"?a»ir° any trust or by way of mortgage, it shall be lawful for the Court of Chancery to make an order wholly releasing such lands from such contingent right, or disposing of the same to such person or persons as the said Court shall direct ; and the order shall have the same effect as if the infant had been twenty-one years of age, and had duly executed a deed so releasing or disposing of the contingent right {a). (a) See last note, and as to contingent rights of unborn persons, see sect. 16. [StocJe of in- [The case of an infant trustee of stock is provided for by sect. 3 of the Exten- fant trustees.] sion Act.] Court of Chan- IX. And be it enacted, that when any person solely ve^the*esto°e Seised or possessed of any lands upon any trust (6) shall of a trustee out be out of the jurisdiction of the Court of Chancery, or Hon ot the cannot be found, it shall be lawful for the said Court to Court [in land], jjiake an order vesting such lands in such person or persons in such manner and for such estate as the said Court shall direct ; and the order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands in the same manner and for the same estate (c). (6) As to who is a trustee, see note (h) to sect. 2. Mortgagor out (c) An absconding mortgagor was declared a trustee for the mortgagee after of jurisdiction a decree for foreclosure upon motion under this section, Lechmere v. Clamp, declared trus- 31 Beav. 578 ; see 30 Beav. 218; but such a declaration could only be obtained tee under sec- on a separate application {Smith v. Boucher, 1 Sm. & G. 72 ; see the 30th tion. section, and note (h) thereto, and JRe Underwood, 3 E. & J. 745, cited in note (j), page 80, supra). Trustee out of For cases where the trustee being out of the jurisdiction it has been held jurisdiction. expedient to appoint a new trustee, see note to sect. 32, p. 99. Court may X. And be it enacted, that when any person or persons make order m ■■ ,, , . , , ■ , , / ,v . . , cases where stiaH be seised or possessed of any lands [d] jointly with TRUSTEE ACT, 1850. 85 a person out of the jurisdiction of the Court of Chan- ^^ ^ ^^ "^i"'- eery, or who cannot be found, it shall he lawful for the — — ^-^^ — '- said Court to make an order vesting the lands in the ScTof^Wa person or persons so jointly seised or possessed, or in 30'°% ^ifi ,,, ,•■, ,,, ., parties out of such last-mentioned person or persons together with any jurisdiction of other person or persons, in such manner and for such *^°"'*'' *"• estate as the said Court shall direct ; and the order shall have the same effect as if the trustee out of the juris- diction, or who cannot be found, had duly executed a conveyance or assignment of the lands in the same manner for the same estate. {d) The words " upon any trust" seem to have been accidentally omitted. Estate vested When one of several trustees is out of the jurisdiction, and a new trustee is in continuing appointed in his place, the Court will vest the outstanding legal estate in the and new trus- continuing and new trustee as joint tenants {Smith v. Smith, 3 Drew. 72; He tees as joint Fisher, 1 W. B. 505, overruling Re Watts' s ■ Settlement, 9 Hare, 106 ; Be tenants. Flyer's Trust, 9 Hare, 220), even though the new trustee is not appointed by the Court, Re Marquis of Bute's Will, Johns. 15. This section was held to apply where a trust descended upon co-parceners of whom one was out of juris- diction, Re Templei; 4 N. E. 494. XI. And be it enacted, that when any person solely Contingent entitled to a contingent right in any lands upon any "^^'*°^'^^" trust shall be out of the jurisdiction of the Court o{ jurisdiction in Chancery, or cannot be found, it shall be lawful for the ^°"^^" said Court to make an order wholly releasing such lands from such contingent right, or disposing of the same to such person or persons as the said Court shall direct ; and the order shall have the same effect as if the trustee had duly executed a conveyance so releasing or disposing of the contingent right. XII. And be it enacted, that when any person jointly Court may entitled with any other person or persons to a contingent ^ggj^^^ere ™ right in any lands upon any trust shall be out of the persons are jurisdiction of the Court of Chancery, or cannot be found, ^.^i^ others out it shall be lawful for the said Court to make an order <>/ i!Ae/«™ti»c- disposing of the contingent right of the person out of the Court to a con- jurisdiction, or who cannot be found, to the person or ^^j ' '''^^' '" persons so jointly entitled as aforesaid, or to such last- mentioned person or persons together with any other person or persons ; and the order shall have the same effect as if the trustee out of the jurisdiction, or who 86 TRUSTEE ACT, 1850. 13 & u Vict, cannot be found, had duly executed a conveyance so -^^^ — ~ — L releasing or disposing of the contingent right. When it is un- XIII. And he it enacted, that where there shall have ccrtom which of , , ■•,■,•■,/ \ j jt sereral trustees heen two or more persons jointly seised (e) or possessea oi was the sur- ^nv lands upon any trust (e), and it shall be uncertain which mvor [lands •' ■' ■' . .in-Lijrii? may be Tested], of such trustees was the survivor, it shall be lawiul tor the Court of Chancery to make an order vesting (e) such lands in such person or persons in such manner and for such estate as the said Court shall direct ; and the order shall have the same effect as if the survivor of such trustees had duly executed a conveyance or assignment of the lands in the same manner for the same estate. [Stoch of trus- («) [The case of stoch being vested in trustees out of the jurisdietion, or uneer- tees out of ja- tainly known, is provided for by sect. 22, p. 90.] risdiction, &c.] Land in this and the two next sections does not include leaseholds, see note (S), p. 79, ante. As to the persons included under the word trustee, see note (k), p. 80. When it is un- XIV. And be it enacted, that where any one or more the'iMt^trultee P^^^""^ °^ persons shall have been seised (/) or possessed of be living or any lands upon any trust (/), and it shall not be known, as may be vested]. *o ^^ trustee last known to have been seised or possessed, whether he be living or dead, it shall be lawful for the Court of Chancery to make an order vesting (/) such lands in such person or persons in such manner and for such estate as the said Court shall direct ; and the order shall have the same effect as if the last trustee had duly exe- cuted a conveyance or assignment of the Iqnds in the same manner for the same estate. (/) See notes to sect. 13. When trustee XV. And be it enacted, that when any person seised [g) hZ S& "" of ^y l^^'ls "PO'^ ^^y t^i^st ig) shall have died intestate as may be vested], to such lands without an heir, or shall have died and it shall not be known who is his heir or devisee, it shall be lawful for the Court of Chancery to make an order vesting {g) such lands in such person or persons in such manner and for such estate as the said Court shall direct ; and the order shall have the same effect as if the heir or devisee of such trustee had duly executed a conveyance of the lands in the same manner for the same estate. (g) See notes to sect. 13. TRUSTEE ACT, 1850. 87 XVI. And be it enacted, that when any lands are 13 & 14 Viot. subject to a contingent right in an unborn person or class Ji L°" ' of unborn persons who upon coming into existence would ^"^/^f^'jo^^ in respect thereof become seised or possessed of such trustee [in lands upon any trust, it shall be lawful for the Court "" *^" of Chancery to make an order which shall wholly release and discharge such lands from such contingent right in such unborn person or class of unborn persons, or to make an order which shall vest in any person or persons the estate or estates which such unborn person or class of unborn persons would upon coming into existence be seised or possessed of in such lands (%). (A) On a bill filed by purchasers &om a fatber and son baying a joint power Biscbarge of of appointment under a settlement, against the infant beir in tail of tbe son, contingent ■who bad died before tbe completion of the purchase, the Court made au order rights in suit, discharging the estate from tbe contingent rights of the unborn claimants under tbe settlement, and appointing a person to convey in the place of tbe infant {ffargreaves Y. Wright, 1 W. E. 408 ; cf. Wahev. Wake, ibid., 283). [The 17th and 18th sections of this Act are repealed by the "Trustee Bxten- Sects. 17 & 18. sion Act, 1852," s. 2, post, p. 112.] XIX. And be it enacted, that when any person to Power to oon- whom any lands have been conveyed by way of mortgage pj'^g ™mort" shall have died without having entered into the possession gagee. or into the receipt of the rents and profits thereof (i), and the money due (k) in respect of such mortgage shall have been paid to a person entitled to receive the same, or such last-mentioned person shall consent to an order for the reconveyance of such lands (l), then in any of the following cases it shall be lawful for the Court of Chan- cery to make an order vesting such lands in such person or persons in such manner and for such estate as the said Court shall direct ; (that is to say), "When an heir or devisee of such mortgagee shall be [Out ofjurii- out of the jurisdiction of the Court of Chancery, or *" *°"'-' cannot be found : When an heir or devisee of such mortgagee shall upon [Refming to a demand by a person entitled to require a convey- """^^J'-l ance of such lands, or a duly authorised agent of such last-mentioned person, have stated in writing that he wUl not convey the same, or shall not convey the same for the space of twenty-eight days next 88 TRUSTEE ACT, 1850. 13 & 14 Tiot. e. 60, o. 19. [Uncertain.'] [Intestate and ir.] after a proper deed for conveying such lands shall have been tendered to him by a person entitled as aforesaid, or a duly authorised agent of such last- mentioned person («) : When it shall be uncertain which of several devisees of such mortgagee was the survivor : When it shall be uncertain as to the survivor of several devisees of such mortgagee, or as to the heir of such mortgagee whether he be living or dead: When such mortgagee shall have died intestate as to such lands, and without an heir, or shall have died and it shall not be known who is his heir or devisee (m) : And the order of the said Court of Chancery made in any one of the foregoing cases shall have the same effect as if the heir or devisee or surviving devisee (as the case may be) had duly executed a conveyance or assignment of the lands in the same manner and for the same estate. Mortgagee in (i) Where the mortgagee had entered into possession, a vesting order was possession. made under sect. 15 ; Be Skitter and Re Keeler, cited in note {h), supra, p. 80. Section applies (J) In He Meyricii's Estate, 9 Hare, 116, it seems to have been thought by ■where mortgage V.-C. Turner, that this section did not apply where the mortgage-money was money is un- unpaid. But the principle of this decision has been overruled by a deci- paid, sion of the Lords Justices in Re Baden's Mortgage Trust, 1 D. M. G. 67 ; s. c. 9 Hare, 820 (followed in Re Quinlan, 9 Ir. Ch. K. 306, and Re Lea's Trusts, 6 W. B. 482), -where on the petition of the executors of a mortgagee in fee, who had not been in possession of the mortgaged premises, but had died intestate as to the legal estate, and leaving an heir who could not be found, the Court under this section — the mortgage debt remaining unpaid — made an order vesting the mortgage estate in sach executors, subject to the equity of redemp- tion (vid. Re Skitter's Trust Mortgage, 4 W. R. 791, decided under the 9th section). But from Re Eewitt, 27 L. J. Ch. 302 (decided by the full Court of Appeal), it would appear that such an order will not be made, unless it is intended to sell or to transfer the mortgage. So as to vest {J,) See, however, the preceding note, from which it appears, that notwith- legal estate in standing the use of the word "reconveyance," the executor of a mortgagee who mortgagee's has not taken possession may obtain an order to vest the legal estate in him. executors. It was at least doubtful, whether the 1 Wm. 4, c. 60, b. 8, applied to mort- gagees (Re Dearden, 3 M. & K. 608). See 1 & 2 Vict. c. 69. Bights of (m) Where an illegitimate mortgagee in fee devised her real and personal estate Crown to to a trustee upon certain trusts and died without issue, the Court, the Crown escheat. offering no opposition, vested the legal estate in a purchaser, the mortgage- money having been paid off {Re Minchin's Estate, 2 W. R. 179). From a case of Bwrtlett v. Bartlett, however (cited in Ince's Trustee Acts, 2nd ed. p. 91), it would seem that where an illegitimate testator devises estates to which TRUSTEE ACT, 1850. 89 lie is beneficially entitled, to a trustee -who predeceases him and dies -without 13 & 14 Vict issue, a Testing order cannot be made so as to defeat the lights of the c 60 » 19 Crown. ' XX. (n). And be it enacted, that in every case where Power to ap- the Loyd ChanceUor, intrusted as aforesaid, or the Court [„ conveyT" of Chancery, shall, under the provisions of this Act, be certain cases. enabled to make an order having the effect of a convey- ance or assignment of any lands, or having the effect of a release or disposition of the contingent right of any person or persons, born or unborn, it shall also be lawful for the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery (as the case may be), should it be deemed more convenient, to make an order appointing a person to convey or assign such lands, or release or dispose of such contingent right (o) ; and the conveyance or assignment, or release or disposition, of the person so appointed, shall, when in conformity with the terms of the order by which he is appointed, have the same effect, in conveying or assigning the lands, or releasing or dis- posing of the contingent right, as an order of the Lord Chancellor, intrusted as aforesaid, or the Court of Chan- cery, would in the particular case have had under the provisions of this Act; and in every case where the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, shall, under the provisions of this Act, be enabled to make an order vesting in any person or persons the right to transfer any stock {p) transferable in the books of the Governor and Company of the Bank of England, or of any other company or society established, or to be established ; it shall also be lawful for the Lord Chancellor, intrusted as aforesaid, or the Court of Chan- cery, if it be deemed more convenient, to make an order directing the secretary, deputy secretary, or accountant- general for the time being of the Governor and Company of the Bank of England, or any officer of such other company or society, at once to transfer or join in trans- ferring the stock to the person or persons to be named in the order ; and this Act shall be a fuU and complete in- demnity and discharge to the Governor and Company of 90 TRUSTEE ACT, 1850. ^^ ?o'^* ^o'' *^^ ^^Tok of England, and all other companies or societies — — 1- and their officers and servants, for all acts done or per- mitted to be done pursuant thereto. (n) As to the Court making vesting orders instead of ordering a conveyance under this section, see note (y) to sect. 7. Form of order (o) For the form of the conveyance in such oases, vid. Sx parte Foley, 8 Sim. under s. 20. 395, and for form of order, Seton, 794, 799, 816 ; and Maneox v. Spiule, 3 Sm. & G. 478 ; Shepherd v. ChwChUl, 25 Beav. 21. Stock. (p) Wien stock is in question, the officer of the Bank should be directed to make the transfer, and in such cases no other person need be directed to join with him in the transfer ; but see Seton, 816. As to lands in XXI. And be it enacted, that as to any lands situated Durham? ^^ 'within the Duchy of Lancaster or the Counties Palatine of Lancaster or Durham, it shall be lawful for' the Court of the Duchy Chamber of Lancaster, the Court of Chan- cery in the County Palatine of Lancaster {q), or the Court of Chancery in the County Palatine of Durham, to make a like order in the same cases as to any lands within the jurisdiction of the same Courts respectively, as the Court of Chancery has under the provisions hereinbefore con- tained been enabled to make concerning any lands ', and every such order 6f the Court of the Duchy Chamber of Lancaster, the Court of Chancery in the County Palatine of Lancaster, or the Court of Chancery in the County Palatine of Durham, shall, as to such lands, have the same effect as an order of the Court of Chancery : Pro- vided always, that no person who is anywhere within the limits of the jurisdiction of the High Court of Chancery shall be deemed by such local Courts to be an absent trustee or mortgagee within the meaning of this Act. 17 & 18 Vict. (?) See now 17 & 18 Vict. c. 82, s. 11, which extends all the powers of u. 82, d. 11. this and the Extension Act to property in the County Palatine of Lancaster. But the Act does not give the Vice- Chancellor of the Duchy Court jurisdiction in lunacy (Be Onnerod, cited in note (g) to sect. 3, p. 8l). When trustees XXII. And be it enacted, that when any person or lS^ilP^^'°°^W_shaU be jointly entitled with any person out [or otherwise of the jurisdiction of the Court of Chancery, or who uncer ami cannot be found, or concerning whom it shall be uncer- tain whether he be living or dead, to any stock or chose in action upon any trust, it shall be lawful for the said Court to make an order vesting the right to transfer such stock, • TRUSTEE ACT, 1850. 91 or to receive the dividends or income thereof (s), or to 13 & 14 Vict. sue for or recover such chose in action, or any interest in ' °' L. respect thereof, either in such person or persons so jointly entitled as aforesaid, or in such last-mentioned person or persons together with any person or persons the said Court may appoint (t) ; and when any sole trustee (m) of any stock or chose in action shall be out of the jurisdic- tion of the said Court, or cannot be found, or it shall be uncertain whether he be living or dead, it shall be lawful for the said Court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof (s), or to sue for and recover such chose in action, or any interest in respect thereof, in any person or persons the said Court may appoint. (r) See Ex parte Bradihaw, and other cases cited in note (hy to see. 2. TIus Who ia trustee, section does not apply to tmstees out of the jurisdiction incapacitated by lunacy, infancy, or otherwise, see Cramer y. Cramer, cited note(/}, p. 113. («) See note («) to section 5. (t) It seems to have been held, that the Court will not, under this sec- Orders resting tion. Test the chose in action in the cestuis que trusts themselres {Se Brass's stock. Trusts, i W. R. 764 ; but see Ex parte Bradshaw, 2 D. M. G. 900. In Re ygatiJ,™ ;„ Ryaris Settlement, 9 W. R. 137, V.-C. S., a trust fund was vested in the cestui ^.gtuis av^e que trust, who had become absolutely entitled. See Lewin, 763, note (a), j-j^-j. See cases cited in note ( p ), p. 100. (m) Where the master found that it was uncertain whether A., one of two "Sole trus- trnstees, was liying or dead, but that B., his co-trustee, was dead, the Court tee" where it refused to treat A. as a " sole trustee " within this section, it being uncertain ig uncertain whether he had survived the other, Re Randall, 1 Drew. 401. The case of ^fbo survived, two trustees both refusing to transfer, was held not to be within the next section, Re Spawforth, 12 W. R. 978. See remarks on that case in Lewin, 763, note (c). But two representatives of a sole trustee are within the section {Re BaHnaU, 5 De 6. & Sm. 111). [The case of trustees of land refusing to transfer is provided for by a. 2 of [When trus- the Extension Act, p. 112.] tee of land XXIII. («) And be it enacted, that where any sole oon^y!]" trustee (w) of any stock or chose in action shall neglect when trustee or refuse to transfer such stock, or to receive the dividends tll^ansfer!^"' or income thereof, or to sue for or recover such chose in action, or any interest in respect thereof, according to the direction of the person absolutely entitled («) thereto for the space of twenty-eight days next after a request in writing for that purpose shall have been made to him by the person absolutely entitled thereto, it shall be lawful for the Court of Chancery to make an order vesting the sole right to transfer such stock, or to receive the dividends 92 TRUSTEE ACT, 1850. 13 & 14 Vict, or income thereof (i/), or to sue for and recover such chose c. 60, s. 23. . . . . , P ■ u in action, or any interest in respect thereor, in sucn person or persons as the said Court may appoint (z). (v) The 4tli section of the Extension Act extends the provisions of this section to the case of a trustee neglecting to obey an order of the Court, see Mackeniie t. Mackenzie, 5 De G}. & Sm. 338. "Soletrua- (w) See note (J) to last section. tee." (ac) These words include new trustees of the stock sought to be transferred, "Person abso- -He Russell's Trusts, 1 Sim. N. S. 404. But not one of two trustees, nor a lutely enti- tenant for life {Machemie v. Mackenzie, 1. c). tied." (.y) The refusing trustee need not be served {Se Baxter's Will, 2 Sm. & Q. Service on reou- ^PP" ^- ' ^''P'^^e Armstrong, 16 Sim, 296; Se Thia-d Burnt Tree Building Society, 12 Jur. 595, where the trustee having been served was allowed his costs against the petitioner). (s) See note (v) to sect. 5, p. 82, ante. saut trustee. When one of XXIV. And be it enacted, that where any one of the of stoci re/l«es trustees of any stock or chose in action shall neglect or to troMsfer or refuse to transfer such stock, or to receive the dividends receive and pay . . i /. , ,. i i ■ over dividends, or income thereof, or to sue tor or recover such chose m action according to the directions of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that purpose shall have been made to him or her by such person, it shall be lawful for the Court of Chancery to make an order vesting the right to transfer such stock, or to receive the dividends or in- come thereof (a), or to sue for and recover such chose in action, in the other trustee or trustees of the said stock or chose in action, or in any person or persons whom the said Court may appoint jointly with such other trustee or trustees.- (a) See note (d) to sect. 6, p. 82, amte. When stock is XXV. And be it enacted, that when any stock shall be name'of a'de-* standing in the sole name of a deceased person, and his ceased person, or her personal representative shall be out of the juris- Bonal represen- diction of the Court of Chancery, or cannot be found, or tativeisoM* it shall be uncertain whether such personal representative of jwnsdictwn, , ,. . , . , , •■,-,■, &c.] be living or dead, or such personal representative shall neglect or refuse to transfer such stock, or receive the dividends or income thereof, according to the direction of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for TRUSTEE ACT, 1850. • 93 that purpose shall have heen made to him by the person 13 & 14 Vict. entitled as aforesaid, it shall be lawful for the Court of °' ^''' °- ^^- Chancery to make an order vesting the right to transfer such stock, or to receive the dividends or income there- of (6), in any person or persons whom the said Court may appoint. (5) See note (») to sect. 5, p. 82, ante. XXVI. And be it enacted, that where any order shall Effect of an have been made under any of the provisions of this Act, theTe^ti'ht vesting the right to any stock in any person or persons to transfer appointed by the Lord Chancellor, intrusted as aforesaid, ^^"^ or the Court of Chancery, such legal right shall vest accordingly, and thereupon the person or persons so appointed are hereby authorised and empowered to execute aU deeds and powers of attorney, and to perform all acts relating to the transfer of such stock into his or their own name or names or otherwise, or relating to the receipt of the dividends thereof, to the extent and in conformity with the terms of such order : and the Bank of England, and all companies and associations whatever, and aU persons, shall be equally bound and compellable to comply with the requisitions of such person or persons so appointed as aforesaid, to the extent and in con- formity with the terms of such order as the said Bank of England, or such companies, associations, or persons, would have been bound and compellable to comply with the requisitions of the person in whose place such appoint- ment shall have been made, and shall be equally indemni- fied in complying with the requisition of such person or persons so appointed as they would have been indemnified in complying with the requisition of the person in whose place such appointment shall have been made ; and after notice in writing of any such order of the Lord Chancellor, intrusted as aforesaid, or of the Court of Chancery, con- cerning any stock, shall have been given, it shall not be lawful for the Bank of England, or any company or association whatever, or any person having received such notice, to act upon the requisition of the person in whose 94 TRUSTEE ACT, 1850. 13 & 14 Vict, place an appointment shall have been made in any matter — — — — '— whatever relating to the transfer of such stock, or the payment of the dividends or produce thereof (c), (c) See note {v) to sect. 6, p. 82, amte. Effect of an XXVII. And be it enacted, that where any order shall leg^lMghuI a '^^'^^ ^^^^ ^^^^ ^^^^ *^® provisions of this Act, either ctose in action, by the Lord Chancellor, intrusted as aforesaid, or by the Court of chancery, vesting the legal right to sue for or recover any chose in action, or any interest in respect thereof in any person or persons, such legal right shall vest accordingly, and thereupon it shall be lawful for the person or persons so appointed to carry on, commence, and prosecute, in his or their own name or names, any action, suit, or other proceeding at law or in equity for the recovery of such chose in action, in the same manner in all respects as the person in whose place an appointment shall have been made could have sued for or recovered such chose in action. Effect of an XXVIII. And be it enacted, that whensoever, under copyhoMianda ^^^ °^ *^^ provisions of this Act, an order shall be made or appointing either by the Lord Chancellor, intrusted as aforesaid, or convey copy, the Court of Chancery, vesting any copyhold or customary hold lands. lands in any person or persons, and such order shall be made with the consent of the lord or lady of the manor (d) whereof such lands are holden, then the lands shall, without any surrender or admittance in respect thereof, vest accordingly ; and whenever, under any of the provisions of this Act, an order shall be made either by the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, appointing any person or persons to convey or assign any copyhold or customary lands (e), it shall be lawful for such person or persons to do all acts and execute all instruments for the purpose of completing the assurance of such lands; and all such acts and instruments so done and executed shall have the same effect, and every lord and lady of a manor, and every other person, shall, subject to the customs of the manor, and the usual payments, be equally bound and compellable to make admittance to such TRUSTEE ACT, 1850. 95 lands, and to do all other acts for the purpose of com- 13 & 14 Viot. plating the assurance thereof, as if the persons in whose "' '^' "' ^^' place an appointment shall have been made, being free from any disability, had duly done and executed such acts and instruments. (d) See note {y), p. 83, as to vesting orders generally. Copyholds This section dispenses with the necessity of surrender and admittance, vested with or where a vesting order is made with the lord's consent, but it does not require -arithout con- such consent, and where such consent is not given, the lords of the manor ought ggQt of lord not to be served with the petition, for the order is without prejudice as to his rights, Se Flitchcrofi, 1 Jur. N. S. 418 ; Paterson v. Paterson, 2 L. K. Eq. 31 ; Se Hurst (Seton, 799) ; Ayles v. Cox, 17 Beav. 584. See, however, Re Howwrd, 3 W. K. 605 ; Cooper v. Jones, 25 L. J. Ch. 240. It is settled that the lord need not appear jp court to consent {Ayles v. Coxj Cooper V. Jones (11. c), where a verified certificate of his consent was treated as snfi[icient). (e) For a form of an order appointing a person to convey under this section, Form of order, vid. SeMa/'s WiU, 9 Hare, 221, and Seton, 798; and as to the application of the Act to copyholds, Be CoUingwood's Trusts, 6 W. K. 536. XXIX. And be it enacted, that when a decree shall when a decree have been made by any Court of Equity, directing the ^^"'^'J® ^°'',^*'® sale of any lands for the payment of the debts of a for payment of deceased person (/), every person seised or possessed of * *^' such lands, or entitled to a contingent right therein, as heir, or under the will of such deceased debtor, shaU be deemed to be so seised or possessed or entitled, as the case may be, upon a trust within the meaning of this Act ; and the Court of Chsmcery is hereby empowered to make an order wholly discharging the contingent right, under the will of such deceased debtor, of any unborn person (g). (/) For form of order under this section, see Seton, 799. The provisions Trustee under of this section are extended to decrees for sales for payment of costs, &c. (as decrees for to which see Weston v. Filer, 5 De G. & Sm. 608) ; by sect. 1 of the Exten- sale, siou Act, where the words are "for any purpose whatsoever," see 15 & 16 Vict, c. 86, s. 55, p. 219, post. {g) When copyholds, devised to an infant for life, with remainder to his Contingent first and other sons in tail, were decreed to be sold to pay the debts of the rights dis- testator ; and an order was made in the cause, and pursuant to the 1 Wm. 4, charged. c. 47 {ante, p. 84), that the infant's guardian should suiTender them to the purchaser, it was held the purchaser might require the contingent right of the unborn issue of the infant to be discharged by an order under this section (Wood V. Beeilesione, 1 K. & J. 213, marginal note). The application under this section must be to chambers (Ord. XXXV. r. 1, Application in art. 4). chambers. XXX. And be it enacted, that where any decree (h) shall Court to de- be made by any Court of Equity for the specific per- t-eTar^h'ur" 96 TRUSTEE ACT, 1850. ^^ ^^^ ^'^t. formance of a contract concerning any lands, or for the partition or exchange of any lands, or generally when any tees of lands j i n i n p xi ■ 1 comprised in decree shall be made tor the conveyance or assignment any suit, and as of any lands, either in cases arising out of the doctrine of persons un- of election or otherwise (h), it shall be lawful for the said born. , Court to declare ( i ) that any of the parties to the said suit wherein such decree is made are trustees {k) of such lands or any part thereof, within the meaning of this Act, or to declare concerning the interests of unborn per- sons (l) who might claim under any party to the said suit, or under the will or voluntary settlement of any person deceased, who was during his lifetime a party to the con- tract or transactions concerning which such decree is made, that such interests of unborn persons are the interests of persons who upon coming into existence would be trustees within the meaning of this Act ; and thereupon it shall be lawful for the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, as the case may be, to make such order or orders as to the estates, rights, and interests of such persons, born or unborn, as the said Court or the said Lord Chancellor might under the provisions of this Act make concerning the estates, rights, and interests of trustees bom or unborn {m). Constructive trustee. Equitable in- terests. Constructive trustee of shares declared without suit. Of realty not without suit. (h) For forms of order under this section, see Seton, 801, 803. For a form of order declaring a defendant in a suit for specific performance a trustee within the Act, see -Ec parte Dudiess of Mm-nmgton, 4 D. M. G. 537, Seton, 616 ; and see Bughes t. Wdls, 2 W. R. 575, Seton, 616. The application must be in chambers, Ord. XXXV. r. 1, art. i. It has been held that no vesting order is necessary to bind equitable interests which are affected by m decree. Re Williams, 5 De (J. & S. 516, unless the constructive trustee is out of the jurisdiction, see Lechmere v. Clamp, 31 Beav. 578, cited in note (c), p. 84. The Court has a discretion to declare a constructive trust by order on petition under the Act without decree in a suit, Re Angelo, 5 De G. & Sm. 278 ; and accordingly a mortgagor of shares resident out of the jurisdic- tion, was declared a constructive trustee for the person to whom the shares were sold by the mortgagee upon the petition of such purchaser without suit. Ibid. But V.-C. Wood refused to declare the infant heir of an alleged vendor a constructive trustee for the purchaser, where the contract concerned realty, until the rights had been ascertained by a suit, Re Carpenter, Kay, 418 ; and see Re Williams, 11 Sim. 54 ; Jackson v. MUfield, 6 Hare, 538 ; Re Weed- ing, i Jur. N. S. 707 ; and oomp. Cust v. Middleton, 9 W. R. 242, where it was held by the Lords Justices that no order could be made under these Acts to carry out leases contracted to be granted by a testator whose estate was TRUSTEE ACT, 1850. 97 being administered in a snit to which the intended lessees were not parties; see, 13 & 14 Viot too, Hargreaves v. Wright, IW. R. 408, cited in note to sect. 16, ante, p. 87 ; u. 60 b. 30." but where an equitaJ>le reversionary interest in realty had been assigned to '- '~ the petitioner, an order was made nnder the Act, without snit, vesting in Vendors, mort- him the legal interest, which had been improperly conveyed to the vendor. Re gagors, heirs, Wdldnson, 12 W. R. 522. And where A. covenanted to surrender copyholds &o., when de- to the use of B., and in the meantime to stand seised thereof upon trust for clared construe- and to surrender the same to B., he was held a constructive trustee within the tive trustees Act, without suit. Re OoUingwood, 6 W. R. 536 ; and see Davidson, II. 589, under the Act as to the mortgagor of leaseholds by underlease, being a constructive trustee of without suit, the reversion of a day for the mortgagee. Where a testator directed his executors to sell lands and apply the money, and before his death contracted to sell the lands, the Court made an order vesting the estate outstanding in his heir in the executors. Re Badcock, 2 W. R. 386 ; and as to the heir of a mortgagee being a constructive trustee for the executors, see Re Matthews, ibid. 85 ; Re Skitter, cited in note (h) to sect. 2, OTite, p. 80. So, where a vendor died before com- pletion of a compulsory sale to a railway company, his heir was held as constructive trustee without bill £Ied, Re Russell, 12 Jur. N. S. 224, see cases cited in note (m) to sect. 82 of the Land Clauses Act, a/nte, p. 54. The Court refused, on application under the Act without suit, to declare gufj will be the infant beir of a deceased pai'tner, whose surviving partner had exercised a directed, right of purchasing the partnership property given to him by the articles of partnership, a constructive trustee for the surviving partner. Re Burt, 9 Hare, 289 ; but where lands purchased with the money of a railway company had unless the trust been conveyed to two persons as tenants in common without any express is clear, declaration of trust, it being clearly proved that the lands were only held in trust, the Court treated the infant heir of one of the tenants in common who died, as a trustee for the company within the Act, Re Bramcher, V. -C. W. Jan. 14, 1859. For eases where a suit has been directed, see note to sect. 63, p. 110, infra. {i) For form of declaratory order, see Seton, 803. {h) One object of the section is said to have been to obviate the necessity Infant defend- of inserting, in decrees of foreclosure made against infants, a day for the ant. infant to show cause against the decree ; but see Newbury v. Mcurten, 15 Jur. 166, Baniell, 164 ; and see form of subpoena for infant to show cause. Ap- pendix, p. viii., 'post. In Bowra v. Wright, 4 De Q-. & Sm. 265, which was a partition suit, the Court declared the infant a trustee of such of the shares as were allotted to other parties. Of. HoMCoeik v. Hancock, Seton, 822 ; Be Bloomar, 2 De G. & J. 88 ; and Re Molyneux, 10 W. R. 512, where, on a decree for partition being made against a lunatic tenant in tail. Lunatic de- declaring her a trustee of certain hereditaments, the committee declining to fendants. take any steps to complete the partition, a vesting order was made under this section and the Lunacy Regulation Act, 16 & 17 Vict. c. 70. (I) As to the power of the Court to bind unborn persons, see Hargreaves v. Wright, cited in note to sect. 16, ante, p. 87. (m) In a recent case {Shepherd v. Churchill, 25 Beav. 21), where the shares Form of order of the parties to a partition suit were very minute and complicated, the Court in partition declared each of the parties trustees as to the shares allotted to' the other of suits, them, and vested the whole in a single trustee, with directions to convey to each of the parties their allotted shares (see form of order, 25 Beav. 23;andcomp. Orgsr v. -Sparfe, 9 W. R. 180 ; and Hubbard v. Hubbard, 2 H. & M. 38). XXXI.. And be it enacted, that it shall be lawful for Power to make the Lord Chancellor, intrusted as aforesaid, or the Court ^^'/°fj^°\^°'' of Chancery, to make declarations and give directions transfer stock is concerning the manner in which the right to any stock or chose in action vested under the provisions of this Act shall be exercised ; and thereupon the person or persons 98 TRUSTEE ACT, 1850. 13 & 14 Vict, ia whom sTich tight shall be vested shall be compellable c- 60, s. 31. , ° • 1 1 to obey such directions and declarations by the same process as that by which other orders under this Act are enforced (to). Stock ol-dered (»i) The Court may order the JjersOn to whom a fund is paid, to pay it into to be trans- court under the Trustee Relief Act ; see Re Thornton, 9 W. R. 475 ; Be Draper, ferred into 9 W. R. 806 ; but an order for payment direct into court will not he made, Re court. Pat'hy, 29 L. T. 72 ; see, howerer, Be Pitt, 1 Jui-. N. S. 1166, and Be Dwmson, cited note (2), p. 101, post. toTak^^oSeT XXXII. And be it enacted, that whenever it shall be appointing new expedient (o) to appoint a new trustee or new trustees, ins ees. ^^^ ^^ shall be found inexpedient, difficult, or impracti- cable (j>) so to do without the assistance of the Court of Chancery, it shall be lawful for the said Court of Chan- cery to make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees (g). (0) Appointments of new trustees of chm-Uies may he ohtained hy summons in chambers under the Charitable Trusts Act, 1853 (or in simple cases by application to the Charity Commissioners under the Act of 1860), and the pro- perty may be Tested under sect. 45 of this Act, p. W^post, see Lewin, 610 — 611| and Ord. XLI, 10 — 13, post, and note (y) thereto; but the jurisdiction of the Court to act iLpon petition is preserved concurrently, see Seton, 355, 362, 787. The Court would not, under this section, appoint new trustees of eharitiesj without the fiat of the Attorney-General, see ite RoUes' Charity, 3 D. M. G. 163 ; Re Laticaster Charities, 9 W. R. 192 ; Atl.-Oen. t. Cooper, lO W. R. 31. But this has not always been adhered to, see Lewin, 610. Applications for the appointment of new trustees of a charity should he entitled in Sir S. Bomillys Act, 52 G. 3, c. 101, cited Lewin, 666 {Be BoUes'- Charity (1. c), Be Bierten Charity Land, 10 Hare, App. xxxTiii.), and in the Trustee Act, and such other Act as is applicable, e. g. the Municipal Corporations Act, 6 & 6 Will. 4, c. 76, Be the Gloucester Charities, 10 Hare, App. iii. No proceeding respecting charities, not teing an application in a suit or matter actually pending, is to be taken without the sanction of the Charity Commissioners, 16 & 17 Vict. c. 137, s. 17; and see Re Jarais' Charily, 1 Dr. & Sm. 97, cited amte, p. 66 ; Be Conyei's Qrammm- School, 10 Hare, App. V. J Be Warwick Charities, 1 Phill. 569. This section only provides machinery in cases where, on the face of the instrument, it appears difficult, impracticable, or inexpedient to act without the Court's aid ; and does npt give the Court jurisdiction to consider the validity of the instrument or the conduct of trustees on petition. (1) The Court will not consider the question of validity. Be Matthews, 26 Beav. 463 ; Be ffanrison, 22 L. J. 60 ; Sugden on Real Property Statutes, 434 note ; and see Att.-Oen, v. Ward, 6 Hare, 477, where the deed declaring the trusts had not been enrolled (as it should have been), but the Court appointed new trustees, the old trustees admitting the trusts. (2) The Court will not, on petition, appoint a new trustee on any ground not appearing on the face of the instrulneut ; e. y. on the ground of the trusdee's ttisoouduct. Be Bridgmait, 1 Dr. & Sm. 164 ; Legg v. Mackrell, 1 Giif. 165 ; or because the donee of the power is about to exercise it cor- ruptly, Be ffodson, 9 Hare, 118 ; Be ffadley, 5 De G. & Sm. 67. New trustees of charities. Upon petition. Fiat of Attor- ney-General. Form of appli- cation. Charity Com- missioners. NEW TRUS- TEES. The Court will not on petition enter into — (1) Validity of instruments; (2) Misconduot of trustees. TRUSTEE ACT, 1850. 99 Nor will the Court, on petition under the section, remove a trustee without 13 & 14 Vict, or against Ms consent, Se Blanchard, 9 W. B. 647 ; Se Qarty, 10 L. T. K. c. 60, u. 32. S. 321 ; Re Dennis, 12 W. B. 675. In Bucih cases a bill must be filed, see Lewin, ch. xzvi. p. 601. Oases : (A). The Court has considered it expedient to exercise its statutory powers of where expe- appointing new trustees in the following cases : dMnt to appoint Where a Testing order could not otherwise have been obtained, see Re Mimdel, new trustees, cited in note (6), p. 79. Where there was great difficulty in obtaining administration to a deceased Difficulty ; trustee, Re Matthews, 26 Beav. 463 ; Davis t. Chanter, 6 W. B. 415. Where one of two trustees for sale was an infant (Re Porter, 2 Jur. N. infancy ; S. 349). And the Court wUl generally appoint a new trustee in the place of an infant, even though appointed by the testator himself (Re Gartside, 1 W. B. 196). It has been held, that the mere fact of a trustee residing out of the juris- residence diction of the court is not always a ground for holding it expedient to appoint abroad; another in his place. Re Mais, 16 Jur. 608 ; Re Moravian Society, 26 Beav. 101 ; Re Wail's Settlement, 9 Hars) 196 ; Withingtonv, Withington, 16 Sim. 104, where a trustee who had gone to reside in China was held not to be Incapable of acting ; and see Re Blanchard, and other cases, cited in note (m), supra. But see Menmard v. Welford, 1 Sm. & G. 426, where a trustee, resid- ing permanently abroad, was pronounced by V.-C. Stuart incapable of acting as a trustee of property in England ; and Re Guibert, 16 Jur. 852 ; Re Stewart, 8 W. B. 297 ; Re Joyce, 2 L. K. Eq. 576. In some cases, where a trustee has become bankrupt, the Court has held bankruptcy, it expedient to appoint a new trustee, and the Court of Chancery has juris- diction in such a case, see the Bankruptcy Act, 1861, 24 & 25 Vict. c. Under 24 & 25 134, Schedule G. (cited Lewin, 607), which provides that "If any bank- Vict. o. 134. rnpt shall, as trustee, be seised, possessed of, or entitled to, either alone or jointly, any real or personal estate, or any interest secured upon or arising out of the same, or shaU have standing in his name as trustee, either alone or jointly, any government stock, funds, or annuities, or any of the stock of any public company, either in England, Scotland, or Ire- Power of land, it shall be lawful for the Lord Chancellor, on the petition of the Lord Chan- person entitled in possession to the receipt of the rents, issues, and profits, oellor ; dividends, interest, or produce thereof, on due notice given to all other persons (if any) interested therein, to order the assignees and all persons whose act or consent thereto is necessary, to convey, assign, or transfer the said estate, interest, stock, funds, or annuities, to such person as the Lord Chancellor shall think fit, upon the same trusts as the said estate, interest, stock, funds, or annuities were subject to before the bankruptcy, or such of them as shall be then subsisting and capable of taking effect, and also to receive and pay over the rents, issues, and profits, dividends, interest, or produce thereof, as the Lord Chancellor shall direct." See as to the jurisdiction of the M. B. and of Master of the Vice-chancellors, Re Heath, 9 Hare, 616 ; Breed v. CaffoU, 24 L. T. 308 ; Ex Rolls and Vice- parte Walker, 19 L. J. Bank. 3, Seton 779, 781, 2. In Re Lonsdale, 14 .Tur. Chancellors. 1101, V.-C. Knight Bruce considered that persons entitled to an annuity, payable out of trust funds, were persons "entitled in possession," within the meaning of this section . The mere fact of bankruptcy, however, is not a Bankruptcy sufficient ground for removal (Re Bridgman, 1 Drew. & Sm. 104 ; but see Harris not always V. Harris, 29 Beav. 107 ; Re Roche, 2 H. L. Ca. 460) ; and it should be ground for remembered that property vested in a bankrupt as a bare trustee does not petition, pass to his assignees (Bx parte Gennys, Mont. & M. 258 ; see Lewin, 608 (5)). As to appointing a new trustee in place of a person convicted of felony, see Felony. " Trustee Extension Act, 1852," po»«, s. 8. (p) Cases where it is impracticable to appoint new trustees without the aid (gy Where im- of the Court arise, where there is a power given by an instrument for appoint- p-actieable to ment of new trustees, but either (1) the donee of the power is incapacitated by appoint without lunacy or other causes, or (2) the words of the power do not apply to the case Court's aid : which has arisen. • (1) Where the incapacity of the donee arises from lunacy, the application (1) Where should be made under the Lunacy Regulation Act, 16 & 17 Vict. c. 70 ; see Re donee of power H 2 lunatic. 100 13 & 14 Vict. 0. 60, 8. 32. 16 & 17 Viot. c. 70. (2) Where power in instrument in- sufficient. Where trustees disclaim. 23 & 24 Viot. c. 145. Whom the Court will ap- point. Number of trustees. Not foreigner, nor female, except as joint trustee. Cestui que trust. Near relative. Trustee already appointed. Alien. TRUSTEE ACT, 1850. Pwrker, 32 Beav. 580 (cited Lewis, 768); and iJe Bowmar, 3 De G. & J. 658, where sects. 136, 137 of the Lunacy EeguHition Act are set out, which provide that where a power is vested in a lunatic in the character of a trustee, the committee on behalf of the lunatic, under an order made upon the appli- cation of any person interested in the exercise of the power, may exercise it; and new trustees appointed under such power shall have the same rights and powers as if the order had been made under the Trustee Acts. (2) For cases where the power given by the instrument did not meet the case which happened, see Re Woodgate, 5 W. B. 448 ; Ee Harrison, 22 L. J. Ch. 69 (where the power provided for the ease of a trustee being incapable, unwilling, or unable, and the event was that a trustee went abroad) ; Cooper V. Macdonald, 14 W. R. 755 ; Travers v. JlUngworth, 2 Dr. & Sm. 345 ; Be Damson's Trusts, 3 N. R. 39, where a trustee was unable to sign from ill health ; see other cases in the last note. Where the application is in consequence of a trustee refusing to act, the disclaimer may be made at the bar of the court, Foster v. Dawber, 1 Dr. & Sm. 172 ; Be Bwmes, Seton, 807. See note («), p. 102, infra. Many cases where formerly it would have been impracticable to act without the aid of the Court, are now provided for by Lord Cranworth's Act (23 & 24 Vict. c. 145, sects. 27 & 28), which (applying to instruments executed! after August 28, 1860, see sect. 34 of the Act), contains large provisions for appointment of new trustees of such instruments in place of trustees, whether appointed by the Court or otherwise ; but that statute does not take away the jurisdiction of the Court under this Act, where it is more beneficial to exercise it, Viscowntess D'Adhemar v. Bertrami, 35 Beav. 19. (2). The Court exercises a discretion in appointing new trustees, and as to its general rules and principles in the selection, see Be Tempest, 1 L. R. Ch. 485. The Court will under this section, appoint two trustees instead of one (Be Tunstall, 4 De Gr. & Sm. 421 ; PUmly v. West, 16 Beav. 336 ; Ex pwrte Wilhmson, 2 Deac. 151 ; and Birch v. Cropper, 2 De G. & Sm. 255 ; of. Be Bathwrst, 2 Sm. & Gf. 169 ; Be Boycott, 5 W. R. 15, where two new trustees were appointed in addition to two existing trustees, the trust property having greatly increased). But the Court will not, vice versa, appoint one trustee instead of two {Be Ellison, 2 Jur. N. S. 62 ; Be Porlei's Ti-usts, 2 Jur. N. S. 849). But under special circumstances two have been appointed instead of three {Bulkeley v. Bwrl of Eglinton, 1 Jur. N. S. 894 ; and see Emmett v. Cla/rTce, 3 Gif. 32, where it was held that three trustees appointed by deed in the place of four, having had the legal estate conveyed to them, could give a valid discharge). As a general rule, the Court will not appoint an only trustee (see Be Coopei's Trusts, 1. u. ; Be Dichimson, 1 Jur. N. S. 724 ; and see Viscountess D'Adhemar v. Bertrand, 35 Beav. 20 ; Be Boberts, 9 W. B. 758, where it was said that money would never be paid out of court to an only trustee, unless the estate was substantially represented) ; but, where the trust was about to be shortly wound up, and there had been originally only one trustee, the Court appointed a sole trustee in the place of a lunatic trustee {Be BeynoMU, 16 Jur. 233). As to appointing new trustees of one or more specific trusts created by an instrument, and not of the entire instrument, see Be Oarty and Re Dennis, cited in note (»), p. 99, svipra, ParneU v. Singston, cited p. 210, post. The Court, under this Act, refused to appoint a foreigner residing per- manently abroad {Be Guibert, 16 Jur. 862), or a woman, even though un- married at the time (BrooTc v. Brook, 1 Beav. 531), to be a trustee ; and see Lake V. De Lambert, 4 Ves. 596. But in Be CamplelVs Trusts, 31 Beav. 176, an unmarried lady was appointed jointly with another trustee. A cestui que trust may, under special circumstances, be appointed {Ex pwrte Clwtton, 17 Jur. 988 ; Ex parte Comybecure's Settlement, 1 W. R. 458), see note (<), p. 91, amte. Except in cases of absolute necessity, the Master of the Rolls will not appoint a near relative of the parties interested to be a trustee ( Wilding v. Bolder, 21 Beav. 222) ; but this rule has not been followed by the other judges. A trustee appointed out of court may be reappointed by the Court (Be UundelVs Trusts, 2 L. T. N. S. 653). Where, by inadvertence, an alien had been appointed trustee, the Court refused to discharge the order and appoint a new trustee TRUSTEE ACT, 1850. without the Crown's consent ; but on a rehearing, the Crown offering no oppo- sition, a natural-bom subject was appointed, He Oiraud, 32 Bear. 385, The Court requires a written consent by the new trustees to act, unless ■ counsel consent on their behalf (Re Farhia Trust, 21 L. T. 218 ; but they Consent oT need not appear to consent, Re J)raper's Settlement, 2 W. R. 440). An affi- new trustees davit of their fitness must be produced (Re Battersl^s Trusts, 16 Jur. 900 ; necessary; Me TunstaWs WUl. 15 Jur. 645, 981, where, upon an affidavit of fitness, a hut no* ap- reference to the Master was dispensed with). As a general rule, an affidavit pearance. of fitness by the solicitor is not enough (Qrwndy v. Buckeridge, 22 L. J. Ch. Affidavit of 1007 ; Lewin, 769). fitness. Where parties interested objected to the trustees proposed to be appointed, jjg^ trustee to and desired the property to be paid in under the Trustee Relief Act, the „^^ j^j^ Cgm-t Court made an order vesting the property in the proposed trustees, on an undertaking by them to transfer it into court within a month. Re Dawson's Trusts, 3 N. R. 397, and see note (I), p. 98, supra. Before the passing of the Trustee Extension Act, sect. 9, it seems to have Where no exist- been doubted whether the Court could act under this section, when there were ing trustees, no existing trustees (Re Tyler, 5 De &. & Sm. 56 ; contrct, Re Frost, 15 Jur. 644; Re Mazeldine, 16 Jur. 853). * XXXIII. And be it enacted, that the person or persons The new trns- who, upon the making of such order as last aforesaid, ^^g°g„ftj.ug. shall he trustee or trustees, shall have all the same rights tees appointed and powers as he or they would have had if appointed suit. by a decree in a suit duly instituted (r). (r) See sect. 15 of Lord St. Leonards' Act, p. 276, post, and sect. 27 of Powers of trus- Lord Cranworth's Act, 23 & 24 Vict. c. 145, which provides that every trustee tees appointed appointed by the Court of Chancery either before or after the passing of this by the Court. Act, shall have the same powers, authorities, and discretions, and shall in all 23 & 24 Vict, respects act as if he had been originally nominaied a trustee by the deed, will, c. 145, a. 27. or other instrument creating the trust ; see (before that Act) Bartley v. Bartley, 3 Drew. 384 ; Byam v. Byam, 19 Beav. 66, where the Master of the Rolls held that a discretionary consent to be given by the v/ndersigned trustees was annexed to the office, and could be exercised by trustees appointed by the Court, Oglander v. Oglander, 2 De G. & Sm. 381, where it was held that trustees appointed by the Court had not the power of appointing new trustees in their own place, Newmam v. Warner, 1 Sim. N. S. 457. XXXIV. And be it enacted, that it shall be lawful for Po'^er to Court ,.,« p^i !• jir*" ^^^* lands in the said Court of Chancery, upon makmg any order tor new trustees. appointing a new trustee or new trustees (s) either by the same or by any subsequent order to direct that any lands subject to the trust shall vest (t) in the person or persons who upon the appointment shall be the trustee or trustees for such estate as the Court shall direct (m); and such order shaU have the same effect as if the person or per- sons (who before such order were the trustee or trustees, if any) had duly executed all proper conveyance and assignments of such lands for such estates. (s) Where a mortgagee's executors had, by decree, been ordered to transfer Vesting lands the mortgage debt to the trustees of a settlement, it was held that this was an under decree. 102 TRUSTEE ACT, 1850. 13&14Viot. c. 60, 9. 34. Whetter a de- clining trustee must execute deed of dis- claimer. Form of order. Vesting in new and old trustees asjoint tenants. appointment of new trustees by the Court, and that a vesting order of the mortgaged property might be made under this section, lie Hughet, 2 H. & M. 695. (t) Under this section "lands" include leaseholds, see note (6) to sect. 2. (u) Before the Court will under this section make an order devesting the estate out of a trustee declining to act, it seems to have been thought by V.-C. Wood that the trustee so declining must execute a deed of disclaimer; a parol disclaimer, on the hearing of the petition, not being sufficient {-Be Ellison, 2 Jur. N. S. 62). But this dictum has been doubted by other judges (see Foster v. Dawber, 1 Dr. & Sm. 172). So an executor, even though he may not have prored the will, must finally renounce before an order will be made to vest an estate in his co-executor (Be Badcoch's Trusts, 2 W. R. 386). For a form of Testing order under this section, see Seton, 804 ; Hancox v. Spittle, 3 Sm. & G. 478 ; and Be Ellis, 24 Beav. 426, where the Court directed the circumstances bringing the case within the Act to be inserted in the order. See, too. Re Maimoaring, 26 Beav. 172, from which it seems that where the Bank is required to transfer stock, this should always he done. The Court may make an order vesting the estate which is outstanding in the old a»d continuing trustees in the new and continuing trustees as joint tenants (see note to sect. 10), and for the cases on the form, &c. of vesting orders under the Act, see notes (y) and (s) to sect. 7, aiite, p. 83. Power to Court to vest right to . sue at law in new trustees. Old trustees not to be dis- charged from liability. Who may apply. XXXV. And be it enacted, that it shall be lawful for the said Court of Chancsery, upon making any order for appointing a new trustee or new trustees, either by the same or by any subsequent order to vest the right to call for a transfer of any stock subject to the trust, or to receive the dividends or income thereof (w), or to sue for or recover any chose in action, subject to the trust, or any interest in respect thereof, in the person or persons who upon the appointment shall be the trustee or trustees. (ii) See note (v) to sect. 6, p. 82, ante, XXXVI. And be it enacted, that any such appointment by the Court of new trustees, and any such conveyance, assignment, or transfer as aforesaid, shall operate no further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have done (w). (w) See note (o), p. 98, ante. XXXVII. And be it enacted, that an order under any of the hereinbefore contained provisions, for the appoint- ment of a new trustee or trustees, or concerning any lands, stock, or chose in action subject to a trust, may be made TEUSTEE ACT 1850. 103 upon the application of any person beneficially interested 13 & 14 Viot. in such lands, stock, or chose in action, whether under ' — '— disability or not, or upon the application of any person duly appointed as a trustee thereof ; and that an order under any of the provisions hereinbefore contained con- cerning any lands, stock, or chose in action subject to a mortgage may be made on the application of any person beneficially interested in the equity of redemption, whether under disability or not, or of any person interested in the monies secured by such mortgage (x). (as) On an application for an appointment of new trustees, all the cestifis que Who should trusts shoald be co-petitioners (infants, or lunatics petitioning by their next petition for friends, iJe Fellows, 2 Jnr. N. S. 62 ; Re Bourke, 2 D. J. S. 426) ; \\>i if they new trustees, are very nnmerous some may petition for the class, Jones v. James, 9 Hare, Appendix, Izxx., and see note (s) to 15 & 16 Vict. c. 86, s. 42, p. 197, post. Any person having a contingent interest in real estate may apply for a new Person (xmtiv,' trustee, Re Sheppard, 11 W. R. 60, overruling s. o. 10 W. U. 704. Compare 9^"*^ »»*«'•- Ross V. Ross, 12 Beav. 89 ; Allan v. Allan, 15 Ves. 130. 'S'**'- The committee of a lunatic should petition where lands are vested in a lunatic Committee of trustee (Re Wheeler, 1 D. _M. Gr. 434 ; and see note to p. 436 of the repprt). lunatic. As to the proper persons to petition in case of the bankruptcy of the trustees, jjj ^^se of see 12 & 13 Vict. c. 106, s. 130, cited in note to sect. 32, p. 99. bankruptcy. On an application for a vesting order in pursuance of a decree, the _, , ,, person in whom lands are to be vested (e. g. in case of lands sold under a decree, , .°. - a purchaser who has paid the purchase-money into court) is a proper person ^ ,. „-a„ to apply as being beneficially interested, Ayles v. Cox, 17 Beav. 584 ; and see 7^^ '"^ Rowley v. Adams, 14 Beav. 130 (in the latter case one petition by the pur- ™ ?"'^!" chasers of several lots was held not multifarious). Creditors who had obtained ' an administration decree against the debtor's estate were allowed to apply for a vesting order where a sale had been ordered, in Re Wragg, 1 D. J. S. 356. [The 38th section of this Act provided that application might be made before the Master in the first instance, and the Master might give a certificate of the material facts, and of his opinion that the applicant was entitled to the order ; and by sect. 39, the applicant having obtained such certificate, might petition the Court or the Lord Chancellor ; but since the abolition of the Master's office by 15 & 16 Yict. c. 80 (see p. 143, post), applications under the Act are mad« by petition in the first instance, see sect, 40, m/ra.] XL. And be it enacted, that any person or persons Power to pre- entitled in manner aforesaid to apply for an order from thg'gjBt'''™ '° the said Court of Chancery, or from the Lord Chancellor, instance, intrusted as aforesaid, may, should he so think fit, pre- sent a petition {y) in the first instance to the Court of Chancery, or to the Lord Chancellor, intrusted as afore- said, for such order as he may deem himself entitled to, and may give evidence {z) by affidavit or otherwise in support of such petition before the said Court, or the Lord Chancellor, intrusted as aforesaid, and may serve {a) 104 TRUSTEE ACT, 1850. 13 & 14 Vict, such person or persons with notice of such petition as he — — — — '- may deem entitled to service thereof. Application by iy) See supra, note (a). A Testing order in pursuance of a decree for sale summons or must be applied for in chambers, Ord. XXXT. 1, r. 4. And as to where an motion. order is made in a cause, see note to sect. 43, and applications for new trustees, &o., of charities are generally made in chambers, note (o), p. 98, ante. Evidence. (0),IniS« Pickmce's Trust, 10 Hare, App. xxxv., the Court allowed Affidavits filed affidavits filed in a cause to be used as evidence on a petition, in the matter in a cause. of the Acts. See Ord. XVIII. and note ; and as to evidence in support of a petition under this Act, see Re Hoshms, 4 De G. & J. 436, where on a petition for appointing new trustees of a will containing gifts to classes, an affidavit of the solicitor was received as sufficient evidence of the persons con- stituting the classes, without the production of baptismal and other certifi- cates. Service on ces- (a) The general rule is that aU the cestuis que trusts, including infants [Re tuis que trusts Fellows, 2 Jur. N. S. 62;, and (in cases of retiring trustees) the old trustees and trustees. also (Se Sloper, 18 Beav. 596) should be served ; see -Sa: parte Hardman, 3 Mont. Dea. & De G. 559, where the cestuis que trusts were abroad ; and Re Ekhardis Trusts, 5 De G. & Sm. 636. Exceptions. But service on all the cestuis que trusts, where they are very numerous, (1) trustees ""^y ^ dispensed with (Re Sharpley, 1 W. E. 271 ; Re Smyth, 2 De G. & Sm. with a power of ''81)> ^"^ trustees with a power of sale sufficiently represent their cestuis que sale represent *»'»s*s. Re Blanchard, 3 D. F. J. 131 ; see 15 & 16 Vict. c. 86, ss. 42, 61, cestuis que PP- ^^^< ^09) post), and note to sect. 17 of the Settled Estates Act, p. 244, trusts. i""**! ^""^ 2'^ * 2^ WitA. 0. 35, s. 14, p. 276, post. ,„, A trustee refusing to transfer need not be served with a petition under the (i) recusant gSrd and 24th sects., see note (y), p. 92, ante. rus ees. rpj^g Co^fj ^\\ ^.t make an order on petition of a lessee or tenant for life Service on re- without service on the remaindermen (Re Parrant, 20 L. J. Ch. 532 ; Re May- maindermen, nard, 16 Jur. 1084 ; Re Prescott, 19 L. T. 375). But where the lease con- reversioners, tained no clause prohibiting assignment, an order was made in the absence of the lessor (Re Matthew's Settlement, 2 W. R. 85). A petition relating to lands vested lunatic's in a lunatic trustee must be served upon the committee, Re Saumarez, 25 L. J. committee, Ch. 675 ; Re Wylde, 6 D. M. G. 25 ; and a petition to appoint new trustees assignees of ^* ^^ place of a bankrupt upon his assignees (Ex parte Carden, 12 Jur. 391). bankrupt ^*^ further, as to service in the case of bankrupt trustees. Re Bingley, 2 Dea. & Ch. 413 ; Ex parte Marshall, 3 De G. & Sm. 670. An order to vest lands incumbrancers ^"^J^"* *" *° annuity may be made in the absence of the annuitant (Re Winteringham's Trusts, 3 W. E. 578). Note as to ser- ■^' ^^^ ^''°^ °^ ^^^ petition a statement must be appended of the persons yjjg intended to be served, or if no person is intended to be served a statement to that effect must be appended, Ord. XXXIV. 1. See further as to services, the note on costs, note (h) to sect. 51, infra, p. 109. What may be XLI. And he it enacted, that upon the hearing of any ^°°«"P™P^*'-such motion or petition it shall be lawful for the said Court or for the said Lord Chancellor, should it be deemed necessary, to direct a reference to one of the Masters in ordinary of the Court of Chancery to inquire into any fects which require such an investigation, or it > shall be lawful for the said Court or for the said Lord Chancellor to direct such motion or petition to stand over to enable the petitioner or petitioners to adduce evidence or further evidence before the said Court or before the TRUSTEE ACT, 1850. 105 said Lord Chancellor, or to enable notice or any further 13 & 14 Vict. notice of such motion or petition to be served upon any — !_!! '— person or persons. XLII. And be it enacted, that upon the hearing of any Court may dis- such motion or petition, whether any certificate or report ™;th or without from a Master shall have been obtained or not, it shall be o™*^- lawful for the Court, or the Lord Chancellor, intrusted as aforesaid, to dismiss such .motion or petition, with or without costs, or to make an order thereupon in conformity with the provisions of this Act. XLIII. And be it enacted, that whensoever, in any Power to make cause or matter, either by the evidence adduced therein, „^,,°g_ or by the admission of the parties, or by a report of one of the Masters of the Court of Chancery, the facts neces- sary for an order under this Act shall appear to such Court to be sufficiently proved, it shall be lawful for the said Court, either upon the hearing of the said cause or of any petition or motion in the said cause or matter, to make such order under this Act (b). (5) See note (A) to sect. 30, ante, p. 96. Generally an order may be made Orders nnder in a cause without a petition. Wood v. Beetleston, 1 K. & J. 213 ; Viscountess Act made in If Adhemaa- y. Bertrand, 35 Beav. 19 ; but where the trustee is a lunatic, a cause, petition in lunacy is requisite (see notes (p) and (j) to sect. 3, p. 81), Jeffryes (1) Without V. Dryadale, 9 W. E. 428. special appli- Vesting orders in a suit were made on motion in Mackenzie v. Maciende, cation ; Seton, 810, 812, where a previous order appointing new trustees had been made (2) on motion, in a cause ; and see Se HoVbrooTcs Will, 8 W. B,. 3, where such order had been made on petition in a matter, and a subsequent vesting order was made On motion (see, too, Skyrmer v. Pelichet, 9 W. fi. 191). XLIV. And be it enacted, that whenever any order Orders made by shall be made under this Act, either by the Lord Chan- chancery, ° ceUor, intrusted as aforesaid, or by the Court of Chancery, founded on cer ... tain allega- for the purpose of conveying or assigning any lands, or tions, tobedbu- for the purpose of releasing or disposing of any contingent jg'Jfcey t5,e right, and such order shall be founded on an allegation matter con- of the personal incapacity of a trustee or mortgagee, or allegations." on an allegation that a trustee or the heir or devisee of a mortgagee is out of the jurisdiction of the Court of Chancery, or cannot be found, or that it is uncertain which of several trustees, or which of several devisees of a mortgagee, was the survivor, or whether the last trustee, 106 TRUSTEE ACT, 1850. Order to be conclusive evi- dence of facts on which it was founded. 13 & 14 Viet, or the heir or last surviving devisee of a mortgagee, be 0. 60, s. 44. ,. . , , 11 X- iu i i i living or dead, or on an allegation that any trustee or mortgagee has died intestate without an heir, or has died and it is not known who is his heir or devisee, then in any of such cases the fact that the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, has made an order upon such an allegation, shall be conclusive evidence (c) of the matter so alleged in any court of law or equity upon any question as to the legal validity of the order : Provided always, that nothing herein contained shall pre- vent the Court of Chancery directing a reconveyance or re-assignment of any lands conveyed or assigned by any order under this Act, or a redisposition of any contingent right conveyed or disposed of by such order ; and it shall be lawful for the said Court to direct any of the parties to any suit concerning such lands or contingent right to pay any costs occasioned by the order under this Act, when the same shall appear to have been improperly obtained. Trustees of charities. (c) See ColUn)(m v. CoUiiison, 2 D. M. G. 409, 414. XLV. And be it enacted, that it shall be lawful for the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, to exercise the powers herein conferred for the purpose of vesting any lands, stock, or chose in action in the trustee or trustees of any charity (cQ or society, over which charity or society the said Court of Chancery would have jurisdiction upon suit duly instituted, whether such trustee or trustees shall have been duly appointed by any power contained in any deed or instrument, or by the decree of the said Court of Chancery, or by order made upon a petition to the said Court under any statute authorising the said Court to make an order to that effect in a summary way upon petition. ppiioation tor W New trustees of a charity having been appointed under the 16 & 17 vesting order ^i"*- =• 137, s. 28 (see note (o), p. 98, ante, and note (/), to Ord. XLI. 10, on appointment Post), a vesting order under this section was made in chambers (iie i)aj)enport'« of new trus- Charity, 4 D. M. G. 839 ; Seton, 788 ; Lewin, 610, note (g). ) tees of charity. XL VI. And be it enacted, that no lands, stock, or chose Application for a TRUSTEE ACT, 1850. 107 in action vested in any person upon any trust or by way 13 ^ 1* '^iot- of mortgage, or any profits thereof, shall escheat or be ' ' ' forfeited to her Majesty, her heirs or successors, or to pr°perty h'eld any corporation, lord or lady of a manor, or other person, ^fo" t™st or by reason of the attainder or conviction for any offence of such trustee or mortgagee, but shall remain in such trustee or mortgagee, or survive to his or her co-trustee, or descend or vest in his or her representative, as if no such attainder or conviction had takeri place (e). (e) See 4 & 5 Wm. 4, o. 23, s. 3, of -whiah this section is a re-enactment, Trustee at- and notes in Shelford's Real Property Statutes, 665 ; Sugden's Real Property tainted. Statutes, 428. By sect. 8 of thes. Extension Act, p. 115, post, the Court has Trustee felons, power to appoint new trustees in lieu of persons convicted of felony. XL VII. And be it enacted, that nothing contained in Act not to pre- this Act shall prevent the escheat or forfeiture of any fo^eiture^of ""^ lands or personal estate vested in any such trustee or beneficial in- mortgagee, so far as relates to any beneficial interest therein of any such trustee or mortgagee, but such lands or personal estate, so far as relates to any such beneficial interest, shall be recoverable in the same manner as if this Act had not passed (/). (/) See 4 & 5 Wm. 4, c. 23, s. 5, which contains the same provisions, and Sugden, 428, referred to in last note. XL VIII. And be it enacted, that where any infant or Money of in- person of unsound mind shall be entitled to any money gon/of unsound payable in discharge of any lands, stock, or chose in mind to be paid action conveyed, assigned, or transferred under this Act, it shall be lawful for the person by whom such money is payable to pay the same into the Bank of England, in the name and with the privity of the Accountant-General, in trust in any cause then depending concerning such money, or, if there shall be no such cause, to the credit of such infant or person of unsound mind, subject to the order or disposition of the said Court ; and it shall be lawful for the said Court, upon petition in a summary way, to order any money so paid to be invested in the public funds, and to order payment or distribution thereof, or payment of the dividends thereof, as to the said Court shall seem reasonable ; and every cashier of the Bank of 108 TKTJSTEE ACT, 1850. 13 & 14 Vioi. England who shall receive any such money is hereby _J — — — '- required to give to the person paying the same a receipt for such money, and such receipt shall be an effectual discharge for the money therein respectively expressed to have been received. Court may XLIX. And be it enacted, that where in any suit com- in the absence menced or to be commenced in the Court of Chancery, of a trustee, jt ghaH jjg m^de to appear to the Court by affidavit that diligent search and inquiry has been made after any person made a defendant, who is only a trustee, to serve him with the process of the Court, and that he cannot be found, it shall be lawful for the said Court to hear and determine such cause, and to make such absolute decree therein against every person who shall appear to them to be only a trustee, and not otherwise concerned in interest in the matter in question, in such and the same manner as if such trustee had been duly served with the process of the Court, and had appeared and filed his answer thereto, and had also appeared by his counsel and solicitor at the hearing of such cause ( g) : Provided always, that no such decree shall bind, affect, or in any wise pre- judice any person against whom the same shall be made, without service of process upon him as aforesaid, his heirs, executors, or administrators, for or in respect of any estate, right, or interest which such person shall have at the time of making such decree, for his own use or benefit, or otherwise than as a trustee as aforesaid. [g) The Court under thia section ordered a cause to be certified as fit for hearing though a defendant trustee could not be found, and had not appeared 15 & 16 Vict. (WestTieadv. Sale, 6 W. B. 62). See, generally, as to dispensing with parties, c. 86, s. 42. notes to Chancery Improvement Act, 18S?, sect. 42, p. 197, post. [Sect. 50 relates to the practice under the obsolete sections, 38, 39.] Costs may be LT. And be it enacted, that the Lord Chancellor, in- estate. trusted as aforesaid, and the Court of Chancery, may order the costs and expenses of and relating to the peti- tions, orders, directions, conveyances, assignments, and transfers to be made in pursuance of this Act, or any of them, to be paid and raised out of or from the lands or personal estate, or the rents or produce thereof, in respect of which the same respectively shall be made, or in such TRUSTEE ACT, 1850. 109 manner as the said Lord Chancellor or Court shall think 13 & 14 Vict, proper (h). "• ^^' °- °^- (A) If a bill is filed for the appointment of a new trustee in a case where a Costs of bill petition might have been presented, the plaintiff will be liable for the addi- filed unnecea- tional costs, Thomas v. Walker, 18 Beav. 521 ; and as to cases where a bill sarily. is necessary, see note (m), p. 98. The costs of applications in the matter of a trust, whether occasioned by Costs of appli- the lunacy (ife FuZham, 15 Jur. 69), infancy, [Ex parte Cant, 10 Ves. 554), cations for or bankruptcy {Sx parte Painter, 2 Deao. & Ch. 684), of a trustee, must be benefit of trust borne by the trust estate or the cestui que ti-ust, according as the application property. is for the benefit of the applicant solely, or generally for the benefit of the estate, see Carter v. Sebright, 26 Beav. 374. In JEx parte Damies, 16 Jur. 882, V.-C. Parker, upon appointing a new trustee and making a vesting order Charged on under the Act, by consent ordered the new trustee to pay the costs of the pro- trust property, ceedings, and directed that such costs, with interest thereon at 42. per cent., should form a charge on the inheritance, and see Be Crdbtree, 14 W. E. 497, where costs were directed to be raised by mortgage to be settled by the Court. Compare sect. 29 of the Settled Estates Act, post. Where new trustees of two funds were applied for, the costs were borne rateably, iJe Grant, 2 J. & H. 764. When a bankrupt trustee is served and appears, he will be allowed his Costa of ap- costs (Se Whitley, 1 Seac. 478 ; Ex parte Cartwright, 3 De O. & Sm. 648 ; pewrance of Turner v. Molineux, 3 L. T. N. S. 687, where costs as between solicitor and bankrupt trus- client were given). The costs of the infant heir of an equitable mortgagor , tee ; against whom a vesting order had been obtained by the equitable mortgagee, of infant with a view to a sale, were postponed to the costs of the mortgagee in Wade v. trustee. Wa/rd, 4 Drew. 603. And in other cases infant respondents to petitions under ■™, . , the Act have not been required to be served, Re Tweedy, 9 W. R. 938 ; Re ""^^e ™tant Willan, ibid., 689 (where service upon the infant heir of a deceased mortgagee "^^R"" f\^ was held unnecessary), Re Wise, 5 De G. & Sm. 415. Trved The costs of an application for a vesting order as between vendor and pur- chaser, occasioned by the vendor leaving an infant heir or devisee, must be yosts of vest- borne by the vendor's estate, Seard v. Cwthbert, 2 Ir. Ch. Rep. 369 ; Bradley '"ff order— V. Munton, 16 Beav. 294; AylesY. Cox^ 17 Beav. 684 (where the sale was (1) As between under a decree), and compare cases cited on sect. 82 of the Lands Clauses ▼e'ldor'a estate Act, note (m), p. 54, arUe. a""i purchaser; The costs of an application for a vesting order as between a mortgagor pay- (2) as between ing off the mortgage debt and the mortgagee, occasioned by the mortgagee mortgagee's leaving an heir who is an infant, or cannot be found, or is lunatic, are payable estate and by the mortgagor, Ex parte Ommaney, 10 Sim. 298 ; Kimg v. Smith, 6 Hare, mortgagor 473 ; Re Jones, 2 D. F. J. 564 ; Re Stewart, 4 De G. & J. 317, Seton, 381. redeeming. But if the application was occasioned by the mortgagee himself becoming Where mortga- Innatio, it should be made in lunacy (see note to sect. 3), by the committee of ggg lunatic, the lunatic's estate, and the committee will have his costs out of the lunatic's estate, Re Wheeler, 1 D. M. G. 435; Ex parte Richards, IJ. & W. 164 ; Re Townsend, 2 Ph. 348 ; Re Thomas, 22 L. J. Ch. 8.58 (where the mortgagor had to bear the cost of the stamp imposed by the Extension Act). If, how- ever, the lunatic mortgagee appears on the feice of the mortgage-deed to be only a trustee, the cestui que trust pays the costs. Re Lewes, 1 M. & G. 23 ; see Re Townsend, ibid. 686. And if the mortgagor makes the application in a case where the committee of the lunatic has not declined to act, he must bear the costs. Re Wheeler, 1 D. M. G. 435. n t t It was held in Re Primrose, 23 Beav. 590, that the Court has no jariadic- l^osts of re- tion under the Act to order a respondent to pay the costs of a vesting order spondent occasioned by his own misconduct (but see AUorney-Generaly. Mmdodi, 2K. trustees in & J. 571, where in a suit the costs of appointing new trustees were ordered to case of mis- be paid by trustees who improperly refused to retire ; and Legg v. Mahrell, 1 conduct. Gif. 166, reversed on appeal, 4 L. T. N. S. 568 ; Qrierson v. Astle, 3 L. T. N. S. 288 ; King v. King, 1 De G. & J. 663 ; Palairet v. OoA-ew, 32 Beav. 564. See, too, the cases collected in note {k) to 10 & 11 Vict. c. 96, s. 1, ante, pp. 67, 68;. Where a trustee on a petition to appoint new trustees 110 TRUSTEE ACT, 1850. 13 & 14 Vict, disclaims at the bar he will only be allowed costs as between party and party c. 60, s. 61. (Bulkeley v. Earl of JBglmton, 1 Jur. N. S. 994 ; and see Norway v. Nor- ^ way, 2 M. & K. 278, overruling Slierratt v. Bentley, 1 E. & M. 655 ; and Legg v. Mahrdl, ante). Costs in Cham- As to the costs incidental to an inquiry in chambers, see note to 15 & 16 bers. Vict. c. 80, s. 27, p. 148, post. Commission LII. Aud be it enacted, that upon any petition being son of unsound presented under this Act to the Lord Chancellor, intrusted """*• as aforesaid, concerning a person of unsound mind, it shall be lawful for the said Lord Chancellor, should he so think fit, to direct that a commission in the nature of a writ de lunatico inquirendo shall issue concerning such person, and postpone making any order upon such petition until a return shall have been made to such commission («). (i) See notes to sect. 3, and note (j>) to sect. 32, p. 99, amte. Suit may be directed. Cases where suit directed. Powers of Court of Chan- cery to extend to property in the colonies. Lands in — Canada. Ireland, LIII. And be it enacted, that' upon any petition under this Act being presented to the Lord Chancellor, intrusted as aforesaid, or to the Court of Chancery, it shall be lawful for the said Lord Chancellor or the said Court of Chancery to postpone making any order upon such petition until the right of the petitioner or petitioners shall have been declared in a suit duly instituted for that purpose [k). (i) When lands were bought by a father in the name of his son, Lord Cran- worth, C. , refused, on a petition, under this Act, thougb founded on the certi- ficate of the Master, under the 38th section, to make an order, having the effect of a declaration, that the purchase did not amount to an advancement, but directed a bill to be filed (GoUmson v. GoUimon, 3 D. M. G. 409 ; and see Devoy v. Bmoy, 3 Sm. & G. 403 ; and Re Bwt, 9 Hare, 289 ; and note (h) p. 97, amte. In the latter case also a bill was directed to be filed. See, too, ^6 Draper, 9 W. K. 805), LIV. And be it enacted, that the powers and autho- rities given by this Act to the Court of Chancery in England shall extend- to all lands and personal estate within the dominions, plantations, and colonies belonging to Her Majesty (except Scotland) (Z). (i!) Under this section a vesting order was made as to lands in Canada (Jte SekofieM, 24 L. T. 322 ; Re Grot>m, 11 L. T. N. S. 336). As to lands in Ireland, see Re Davie), 3 Mao. & G, 278, where the Lord Chancellor held that an order could not be made to vest such estates in a trustee appointed in the place of a lunatic trustee (see post, ss. 55, 66, 57). But when the cestui qm ti-ust was in England, and the surviving trustee in Ireland, V.-C. Kiu- dersley made an order vesting lands situate in Ireland in a new trustee appointed by the Court {Re Hewitt's Estate, 6 W. R. 537). TRUSTEE ACT, 1850. Ill LV. And be it enacted, that the powers and authorities ^^ & 14 Vict, given by this Act to the Court of Chancery in England "" • ■ ■ shall and may be exercised in like manner and are hereby Courtofchan.- given and extended to the Court of Chancery in Ireland oe^y may be ■with respect to all lands and personal estate in Ireland. that^Court in LVI. And be it enacted, that the powers and authorities ^'^^'*"'i- given by this Act to the Lord Chancellor of Great Britain, chmoeUor i^ intrusted as aforesaid, shall extend to all lands and per- Lunacy to ex- ... -,,.. , . . tend to pro- sonal estate withm any of the dommions, plantations, and perty in the colonies belonging to Her Majesty (except Scotland and <=°l<"^'«^' Ireland). LVII. And be it enacted, that the powers and authori- Foyers of Lord ^ Ohancellorin ties given by this Act to the Lord Chancellor of Great Lunacy may be Britain, intrusted as aforesaid, shall and may be exer- Lord cif n^l- cised in like manner by and are hereby given to the Lord lor of Ireland. Chancellor of Ireland, intrusted as aforesaid, with respect to all lands and personal estate in Ireland. LVlII. And be it enacted, that in citing this Act in Short title. other Acts of Parliament, and in legal instruments and in legal proceedings, it shall be sufficient to use the expression the " Trustee Act, 1850." LIX. And be it enacted, that this Act shall come into Commence- operation on the first day of November, one thousand eight hundred and fifty (m). (m) K right of appeal to the House of Lords is given by this statute, and as Appeals from Buch right of appeal is expressly given by sect. 2 of the Trustee Belief Act, and orders under by Sir G. Turner's Act, 13 & 14 Tict. c. 35, s. 33, and other acts conferring the Act. - summary remedies, it seems doubtful whether in the absence of that clause such an appeal will lie. See, however, Jle Teynham, 11 Price, 667, where the House of Lords heard an appesil.&om an order made on a petition as to guardianship; and compare note (g), cui finem, p. 284, post. TKUSTEE EXTENSION ACT, 1853. 16 & 16 VICT. Cap. 55. An Act to extend the provisions of the " Trustee Act, 1850." [SOthJime, 1852. Whereas it is expedient to extend the provisions of is & 16 Vict. ■■f the Trustee Act, 1850 : Be it therefore enacted by the "• ^^ 112 TRUSTEE EXTENSION ACT, 1852. 15 & 16 Vict. Queen's most Excellent Majesty, by and with the advice — - — '. and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same : Court of Chau- I. Thatwhen any decree or order (a) shall have been made an ordCT for* * by any Court of Equity directing the sale of any lands for tete'"^ 1^* ^^f *"y purpose whatever (&), every person seised or possessed conveyance ty of such land, or entitled to a contingent right therein, lITal^a^^ being a party to the suit or proceeding in which such decree or order decree or order shall have been made, and bound thereby or sa e. ^^ being otherwise bound by such decree or order, shall be deemed to be so seised or possessed or entitled (as the case may be) upon a trust within the meaning of the Trustse Act, 1850 ; and in every such case it shall be lawful for the Court of Chancery, if the said Court shall think it expedient for the purpose of carrying such sale into effect, to make an order vesting such lands or any part thereof (c), for such estate as the Court shall think fit, either in any purchaser or in such other person as the Court shall direct ; and every such order shall have the same effect as if such person so seised or possessed or entitled had been free from all disability, and had duly executed all proper conveyances and assignments of such lands for such estate. Section retro- (a) This section applies retrospectively to a decree made before the passing spective. of the Act, Wake v. Wake, 17 Jur. 645, cited in note to sect. 16 of the "Trustee Act, 1850." 29th section of (6) See the 29th section of the " Trustee Act, 1850," which only applied to Trustee Act, a sale for payment of debts. 1850. (c) See as to vesting orders, note (y), ante, p. 83. Power to make II. That sections numbered 17 and 18 in the Queen's TestingtiiT Printer's copy of the Trustee Act, 1850, be repealed ; and estate, on in every case where any person is or shall be jointly or lect of a trus- solely seised or possessed of any lands or entitled to a tee to convey contingent right therein upon any trust, and a demand shall have been made upon such trustee by a person entitled to require a conveyance or assignment of such lands, or a duly authorised agent of such last-mentioned person, requiring such trustee to convey or assign the same, or to release such contingent right, it shall be TRUSTEE EXTENSION ACT, 1852. 113 lawful for the Court of Chancery, if the said Court shall 15 & 16 Viot. be satisfied that such trustee has wilfully refused or neg- — ' "' lected to convey or assign the said lauds for the space of twenty-eight days after such demand, to make an order vesting such lands in such person (d), in such manner and for such estate as the Court shall direct, or releasing such contingent right in such manner as the Court shall direct ; and the said order shall have the same effect as if the trustee -had duly executed a conveyance or assignment of the lands, or a release of such right, in the same manner and for the same estate (e). {d) See note {h), p. 87, and sect. 23 cpf the former Act, p. 91, ante. (e) -For form of order under this section, see Seton, 809 ; Kmightv. Knight, Vesting Or- 14 L. T. N. S. 161, and see ante, p. 83, note (y), as to vesting orders. ders. III. That when any infant shall be solely entitled to Power to make any stock (/) upon any trust, it shall be lawful for the t° "g^/J^l^^ Court of Chancery to make an order vesting in any person oeipt of divi- or persons {g) the right to transfer such stock, or to receive ;„ nam°e of°an the dividends or income thereof {h) ; and when any infant infant trustee. shall be entitled jointly with any other person or persons to any stock upon any trust, it shall be lawful for the said Court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, either in the person or persons jointly entitled with the infant, or in him or them together with any other person or persons the said Court may appoint. (/) The former Act contained no provision for the case of an infant trustee Infant trustee of stoot, see Cramer v. Cramer, 16 Jur. 331 ; Devoy v. Devoy, 3 Sm. & G. 403. of stock. ijl) In Be MorgoM, Seton, 825, the right was vested in the infant's guardian. See, too, Re Thornton, 9 W. E. 475, cited in notes to "Trustee Act, 1850," s. 31, p. 98. Where an infant was beneficially entitled to stock standing in his Infant bene- own name, an order declaring him trustee of such stock, and directing a transfer ficially entitled, under this section, was held informal, and an order was substituted under 1 ■Will. 4, c. 65, s. 32 ; Re Westwood, 6 N. E. 61, 316. See, however, Samdera T. Homer, 6 W. E. 476. (A) See note (i>), p. 82, amie. IV. That where any person shall neglect or refuse to On neglect to , , .,iT-ii • transfer stock transfer any stock, or to receive the dividends or income for 28 days thereof, or to sue for or recover any chose in action, or ""'^f may be ' "^ made vesting any interest in respect thereof, for the space of twenty- right to trans- eight days next after an order of the Court of Chancery ^''^l" t^eCourt for that purpose shall have been served upon him, it shall shall appoint. 114 TRUSTEE EXTENSION ACT, 1852. 15 & 16 Yict. be lawful for the Court of Chancery to make an order — — !_!l_L_ vesting all the right of such person to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in such person or persons as the said Court may appoint (i). Vesting order of stock. Order may be made on mo- tion. (i1 ' See sect. 23 of the former Act, and for form of order under this section, see Seton, 810. The order under this section, may, it seems, be made on motion (Re Bol- IrooKs Will, 8 W. E. 3 ; Skynner v. Pelichet, 9 W. R. 191, cited, ante, iu note to sect. 43 of former Act, p. 105). The order made under this section must not deal with a larger subject-matter than the order which it is designed to enforce (ibid). Bank of Eng- land and com- panies to com- ply with such orders. On like neglect V. When any stock shall be standing in the sole name sfmifar order °^ * deceased person, and his personal representative may be made, shall refuse or neglect to transfer such stock or receive the dividends or income thereof for the space of twenty- eight days next after an order of the Court of Chancery for that purpose shall have been served upon him, it shall be lawful for the Court of Chancery to make an ordef vesting the right to transfer such stock, or to receive the dividends or income thereof, in any person or persons whom the said Court may appoint. VI. "When any order being or purporting to be under this Act, or under the Trustee Act, 1850, shall be made by the Lord Chancellor, intrusted as aforesaid, or by the Court of Chancery, vesting the right to any stock, or vesting the right to transfer any stock, or vesting the right to call for the ' transfer of any stock, in any person or persons, in every such case the legal right to transfer such stock shall vest accordingly [k) ; and the person or persons so appointed shall be authorised and empowered to execute all deeds and powers of attorney, and to per- form all acts relating to the transfer of such stock into his or their own name or names, or otherwise, to the extent and in conformity with the terms of the order ; and the Bank of England and all companies and associa- tions whatever, and all persons, shall be equally bound and compellable to comply with the requisitions of such person or persons so appointed as aforesaid, to the extent TRUSTEE EXTENSION ACT, 1852. 115 and in conformity with the terms of such order, as the 15 & 16 Viot. . . . c 55 H 6 said Bank of England, or such companies, associations, _! — 1_ — — or persons would have been bound and compellable to comply with the requisitions of the person in whose place such appointment shall have been made. (I) This enactment was rendered necessary by He Smyth's Settlement, 4 Pe Ee Smyth's 6. & Sm. 499, which dedded that the former Act only gave the right to call Settlement. for a transfer of the stock. See note {v}, p. 82, atUe. VII. That every order made or to be made, being or Indemnity to purporting to be made under this or the Trustee Act, p*„igg"o o'tey- 1850, by the Lord Chancellor, intrusted as aforesaid, or i^g- by the Court of Chancery, and duly passed and entered, shall be a complete indemnity to the Bank of England, and all companies and associations whatsoever, and all persons, for any act done pursuant thereto ; and it shall not be necessary for the Bank of England, or such com- pany or association, or person to inquire concerning the propriety of such order, or whether the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery had jurisdiction to make the same. VIII. That when any person is or shall be jointly or Power to ap- solely seised or possessed of any lands or entitled to any tees in lieu of stock upon any trust, and such person has been or shall p.^'^°''Y/?" be convicted of felony, it shall be lawful for the Court of Chancery, upon proof of ' such conviction, to appoint any person to be a trustee in the place of such convict, and to make an order for vesting such lands, or the right to transfer such stock, and to receive the dividends or income thereof, in such person to be so appointed trustee ; and such order shall have the same effect as to lands as if the convict trustee had been free from any disability, and had duly executed a conveyance or assignment of his estate and interest in the same {I). (I) See note (e), ante, p. 107, as to escheat of trust property. IX. That in all cases where it shall be expedient to Power to the appoint a new trustee, and it shall be found inexpedient, point new trua- difficult, or impracticable (m) so to do without the assis- -.g „ "^J'***"'* tance of the Court of Chancery, it shall be lawful for the trustee. I 2 116 TEUSTEE EXTENSION ACT, 1852. 15 & 16 Vict> said Court to make an order appointing a new trustee or — — ' ^' new trustees, whether there be any existing trustee or not at the time of making such order (n). ^ (m) See ante, pp. 98, 99. Where no ex- („) gee note (q) p. IQO, to the 32nd section of the " Trustee Act, 1850," a.a isting Trustee, j^ tjjg necessity for this provision. Chancellor may X. In every case in which the Lord Chancellor, intrusted make order •' i_ m for appoint- as aforesaid, has jurisdiction under this Act, or the Trustee tees^wuSit ^''^' 1850, to order a conveyance or transfer of land or stock, being necessary or to make a vesting order, it shall be lawful for him also that it should , , , ... . . , , be -made in to make an order appointing a new trustee or new trustees Chancery, &o. jn i]]^q manner as the Court of Chancery may do in like cases, without its being necessary that the order should be made in Chancery as weU as in lunacy, or be passed and entered by the Registrar of the Court of Chancery (o). Jurisdiction in (o) See Re Wcmgh's Trust, 2D. M. G. 279 ; and note (j) to the 3rd section lunacy. of the former Act, ante, p. 81. As to powers of XI. That all the iurisdiction conferred by this Act, on persons m- " . •' trusted with the Lord Chancellor, intrusted by virtue of the Queen's lunato."^ Sign Manual with the care of the persons and estates of lunatics, shall and may be had, exercised, and performed by the person or persons for the time being intrusted as aforesaid. Act to be con- XII. That this Act shall be read and construed accord- Btrued as part . ii j ^ -x- i • of Trustee Act, mg to the dennitions and interpretations contained m the I860. second section of the Trustee Act, 1850, and the provisions of the said last-mentioned Act (except so far as the same are altered by or inconsistent with this Act) shall extend and apply to the cases provided for by this Act, in the same way as if this Act had been incorporated with and had formed part of the said Trustee Act, 1850. unde^TruTee^ Xltl. that every order to be made under the Trustee Act, 1850, or Act, 1850, or this Act, which shall have the effect of a char^bk^* conveyance or assignment of any lands, or a transfer of •with the same any such stock as can only be transferred by stamped dl*Zof"con*^ deed, shall be chargeable with the like amount of stamp yeyanoe. duty as it would have been chargeable with if it had been a deed executed by the person or persons seised or pos- TRUSTEE EXTENSION ACT, 1852. 117 sessed of such lands, or entitled to such stock : and every 15 & 16 Vict. c 55 s 13 such order shall be duly stamped for denoting the- pay- — — — — — ment of the said duty {p). (p) -^y 24 & 25 Vict. c. 91, s. 30, where sereral deeds are necessary for the Stamp, appointment of new trustees, only one is to be liable to full duty, and the others are to be stamped as counterparts. AN ACT TO DIMINISH DELAY IN CHANCEEY. 13 & 14 VICT. Cap. 35. An Act to diminish the Delay and Expense of Proceedings in the High Court of Chancery in England. [15th July, 1850. Whereas proceedings in the High Court of Chancery 13 & 14 Vict. in England are attended with great delay and expense, which it is expedient to diminish : Be it therefore enacted goMTnterested by the Queen's most Excellent Majesty, by and with the i" questions advice and consent of the Lords Spiritual and Temporal, Court of Chan- and Commons, in this present Parliament assembled, and "^ry *o state ' -^ _ special cases by the authority of the same, that it shall be lawful for for the opinion persons interested or claiming to be interested in any " e our . question cognizable in the said Court as to the construc- tion of any Act of Parliament, will, deed, or other instru- ment in writing, or any article, clause, matter, or thing therein contained, or as to the title or evidence of title to any real or personal estate contracted to be sold or other- wise dealt with, or as to the parties to or the form of any deed or instrument for carrying any such contract into effect, or as to any other matter falling within the original jurisdiction of the said Court as a Court of Equity, or made subject to the jurisdiction or authority of the said Court by any statute not being one of the statutes relating to bankrupts, and including among such persons all lunatics {a), married women, and infants, in the manner and under the restrictions hereinafter contained, to concur 118 ACT TO DIMINISH DELAY IN CHANCEEY. 13 c. I & U Vict, in stating such questions in the form of a special case (6) ' -1-!— for the opinion of the said Court, and it shall also be law- ful for all executors, administrators, and trustees to concur in such case (S). Lnnatic. Form of special case. Parties to special case. 15 & 16 Viet. c. 86, ss. 42, 44, & 51. Tmstees. Amendment. Revivor. 15 & 16 Vict. K. 86, a. 52. How lunatic may concur. How married women may How infant may concur. (a) See sect. 31 as to tlie meaning of lunatic. (6) For tlie form of a spijcial case, see sects. 7, 8, 10, post, and Ord. 6 Marot, 1860, r. 16, poit, and Daniell, 1634 ; and as to setting it down for hearing, see sects. 12, 13 ; and as to tlie orders wliich will be made on special cases, see sect, 14, post. All parties beneficially interested in all the questions to be deter- mined by a special c:ise must be made parties, see Entwisle v. Cannon, 4 W. H. 450; but see sects. 42, 44, 61, of the Chancery Improvement Act, 1852, as ■to persons representing classes. Sects 44 & 61 of that Act have been held to apply to special cases ; Re Brown, 29 Beav. 401 ; Swallow v. B'mns, 9 Hare, App. xlvii. But where a special case seeks to have the construction of the trust deed determined the trustees ought to be parties, Vorleyv. Richard- son, 8 D. M. G. 126, overruling Darby v. Darh/, IS Beav. 412. Amendment of a special case is allowed, Tkistletlmaite v. Gamier, 5 De G. & Sm. 73, where it had been set down for hearing ; Domville v. Lamh, 9 Hare, App. Iv. ; Bell v. Cade, 2 J. & H. 122, where amendment was allowed at the hearing ; and see Daniell, 1684. Special cases may be revived on abatement, Wilson f, WhateUy, 1 J. & H. 331 ; and see Ainsworth v. Alman, 14 Beav. 597, in which case revivor would have been more proper ; see note (/) to sect. 52 of the Chancery Im- provement Act, 1852, post, p. 211. II. And be it enacted, that the committee of the estate of any lunatic interested or claiming to be interested in any such question as aforesaid may, after having been authorised in that behalf by the Lord Chancellor (c), concur in such case in his own name and in the name and on the behalf of the lunatic. (c) This includes the Lords Justices, see note (j), p. 81, ante. III. And be it enacted, that a husband interested or claiming to be interested in the right of his wife in any such question as aforesaid may concur in such case in his own name and in the name of his wife where the wife has no claim to any interest distinct from her husband, and that a married woman having or claiming any interest in any such question as aforesaid distinct from her husband may in her own right concur in such case, provided that her husband also concurs therein. TV. And be it enacted, that the guardian (c?) of any infant interested or claiming to be interested in any such question as aforesaid may concur in such case in the name and on the behalf of the infant, unless such guardian has ACT TO DIMINISH DELAY IN CHANCEEY. 119 an interest in such question adverse to the interest of the 13 & 14 Vict, infant therein. " ^^' °- *■ (d) See sect. 84 as to the meaning of "guardian." V. And be it enacted, that it shall be lawful for the How special said Court, by order to be made in the matter of any fpp^nted'for a lunatic not found such by inquisition, or, in the matter of lunatic not any infant, upon the application of any person on the commission, behalf of such lunatic, or upon the application of such ^""^ ^°'^ mfant. infant, by motion or petition, to appoint any person shown by affidavit to be a fit person, and to have no interest adverse to the interest of the lunatic or infant, to be the special guardian of such lunatic or infant for the purpose of concurring in such case, in the name and on behalf of the lunatic or infant, and any such person so appointed may lawfully so concur : Provided always, that it shall be lawful for the said Court to require notice of such application to be given to such person, if any, as the Court shall think fit (e). (e) An application for a gnard'an o(i litem, or special guardian under tbis Application sectiun, must be made in court {TkornhUl v. Copleston, 10 Hare. App. Ixvii) ; tow made, and by mo'ion (Ee Gooclfellow, 1 W. 11. 446). But it need not be made by a next friend (Ex parle Craig, lH .lur. 762). The application should be sup- Evidence, ported by an affidavit of the fitness of the proposed guardian, and that he has no interest adverse to t'le infant (Ex parte Craig). The affidavit must be entitled not only "In the matter of the infant," but also "In the matter of the Act" (Star v. Newberry, 20 Beav. 14). It ia irregular to entitle the affidavit "In the special case, &c." because at the time when the affidavit is filed the special case is not yet on the file (ibid.), Maddison v. Skein, 6 L. T. N. S. '20. When the father of an infant having no adverse interest is a party to the Where guar- special case, it is not necessary to appoint a guardian ad litem (Ellis v. ^^^'^ ^ litem Guitton, 18 L. T. 260). unnecessary. As to notice of the application for guardian ad litem, compare notes to Ord. VII. 3. VI. And be it enacted, that in any case in which any O'^.'^f *» *.P- •' 1 -J P'""t special such order as aforesaid shall have been made by the said guardian of an Court in the matter of any infant without notice to the ^"lehargeTby guardian of the infant, it shall be lawful for the said Court if made Court, if it shall think fit so to do, to discharge such ^'* ""* "'' '°*' order, upon the application of such guardian, by motion or petition ; and the said Court, if it shall think fit, may thereupon appoint some other fit person to be the special guardian of such infant for the purpose of such special case, and may also give such directions as may be neces- 120 ACT TO DIMINISH DELAY IN CHANCERY. 13 & 14 Vict, sary for substituting in such special case either the name — '■ — ' °' of the guardian so applying, or of the special guardian so appointed in lieu of the name of the special guardian so displaced: Provided always, that the discharge of any order appointing a special guardian shall not invalidate anything which shall in the meantime have been done by such special guardian, unless the Court shall, upon notice to all parties, specially so direct. How such spe- VII. And be it enacted, that every such special case entiti^r*"^^ shall be entitled as -a cause between some or one of the parties interested or claiming to be interested as plaintiffs or plaintiff, and the others or other of them as defendants or defendant (/) ; and that in the title to such cases lunatics and infants shall be described as such, and their committees, guardians, or special guardians named ; and that where in any such case a married woman is named as a plaintiff and her husband as a defendant thereto, a next friend of such married woman shall be named in the title to such case. Form of special (/) See ante, note (5), p. 118. Where a creditor of a deceased person is case : where named as plaintiff in a special case, the record should not be entitled ' ' Be- creditor sues on tween such creditor on behalf of himself and all other creditors, plaintiffs, tehalf of him- and defendants," such creditors not being before the Court, and therefore not self and others, bound by the proceed! ags (Lee v. Head, 1 K. & J. 625). Form of special VIII. And be it enacted, that every such special case '^^' shall concisely state such facts and documents as may be necessary to enable the Court to decide the question raised thereby ig) ; and that upon the hearing of such case the Court and the parties shall be at liberty to refer to the whole contents of such documents ; and the Court shall be at liberty to draw from the facts and documents stated in any such special case any inference which the Court might have drawn therefrom if proved in a cause. Facts and do- (ff) See ante, note (5), p. 118, and as to stating documents, sect. 18, cuments to be post. When a material fact had been InadTcrtently omitted in the special stated. case, but appeared to be recognised by all parties, the Court introduced a preface before the order, stating the circumstances, from which it appeared that the fact in question had been so recognised (La/ne v. Debenham, 17 Jur. 1005). Unless the facts are fairly and fully stated the Court may decline to Not mere belief make any order, Bulkeley t. Hope, 8 D. M. (J. 36. The Court cannot act or inference. on inferences or belief of the parties, and therefore where a special case only stated with reference to the date of a memorandum which was of importance. ACT TO DIMINISH DELAY IN CHANCERY. 121 tliat the parties lelieved, &o. the case was ordered to stand over tote amended 13 & 14 Vict. by stating all the facts which could be ascertained, and verifying, if necessary c. 35, s. 8. by affidavit, that no further evidence could be given on the subject, DomviUe V. Lamb, 9 Hare, App, Iv. IX. And be it enacted, that every such special case to Speciial case to which an infant or lunatic is a party by his guardian or dtn co"n'ir''" special guardian shall also state how such guardian or t"ted, and the special guardian was constituted ; and that where any married wo- married woman having or claiming any interest distinct ™®''- from her husband is a party to such ease, it shall be stated therein that she concurs in such case in her own right? X. And be it enacted, that every such special case shall Special cases to be signed by counsel {h) for all parties, and shall be filed counsel, and in the same manner as bills are filed, and that the de^ *'^'^' ^^ fP" _ _ ' pearances to be fendants may appear thereto («") in the same manner as entered by de- defendants appear to biUs ; and that no defendant shall ™ '^^^' be required to take an official copy of a special case, but an office copy thereof shall be taken by the plaintiff. (A) The same counsel may, it seenis, sign a special case for all the parties Signature by {Ex parte Craig, 15 Jur. 762). It la enough if counsel's signature be appended counsel, to the do'aft (Stapleton v. Slaplelon, 17 L. T. 15 ; vid. Goppea/rd v. Mayhem, 22 L. J. Ch. 408). The interests of infants should, however, at the hearing at least, be protected by different counsel, even where one solicitor appears for all parties {Wright v. Woodham, 17 L. T. 293). (i) Appearance de novo is necessary after amendment, Thistlethwaite v. Appearance Gamier, 5 De G. & Sm. 73. XI. And be it enacted, that after a special case shall After a special have been filed, and the defendants shall have appeared ^feTto be bfun'd thereto, all the parties to such special case shall be sub- ^^ statements .... . ^ . after deien- ject to the jurisdiction of the Court in the same manner dants have ap- as if the plaintiff in the special case had filed a bill against peare "i'^, P- US- Decree, As to the orders which will be made at the hearing, see note to sect. li. When a mar- XIII. And be it enacted, that when any married woman, iSant^or^luna- i°faiit. 01" lunatic is party to a special case, application tic is a party, maybe made to the Court by motion for leave to set be made to the down the same, of which motion notice shall be given to Court for leave every party to such case in whom, as executor, adminis- down. trator, or trustee, any property in question therein is or is alleged to be vested in trust for or for the benefit of such married woman, infant, or lunatic, and also, if such application be not made by or on behalf of such inarried woman, infant, or lunatic, to such married woman and her husband, or to such infant, or to such lunatic and his committee, if any, as the case may be ; and that upon the hearing of such motion the said Court may give leave to set down (m) such case if it shall be of opinion that it is proper that the question raised therein shall be deter- mined thereon, and shall be satisfied by affidavit or other sufficient evidence, that the statements contained therein, so far as the same affect the interest of such married woman, infant, or lunatic, are true, but otherwise may ACT TO DIMINISH DELAY IN CHANCERY. 123 refuse such application : Provided always, that in case 13 & 14 Viot. the said Court, upon the hearing of such application, — '— '- shall he of opinion that it is proper that the question raised in such case shall he determined thereon, but shall not be satisfied that the statements contained therein, so far as they affect the interest of such married woman, infant, or lunatic, are true, it shall be lawful for the said Court to refer it to one of the Masters thereof to make such inquiries as to the Court shall seem proper, and upon further application being made, by motion as afore- said, upon the said Master's report, to give or refuse leave to set down such case as to the said Court shall seem fit {n). (m) The application to set down tTie special case under this section must be getting down, made in court (Sidebotham v. Watson, 1 W. II. 229). (n) See note to last section as to the mode of setting down special cases. XIV. And be it enacted, that it shall be lawful for the iTpon hearing, said Court, upon the hearing of any such special case as mineVnestion' aforesaid, to determine the questions raised therein, or and make any of them, and by decree to declare its opinion thereon, and, so far as the case shall admit of the same, upon the right involved therein, without proceeding to administer any relief consequent upon such declaration; and that every such declaration of the said Court contained in any such decree shall have the same force and effect as such declaration would have had, and shall be binding to the same extent as such declaration would have been, if con- tained in a decree made in a suit between the same parties instituted by bill (o) : Provided always, that it shall be Proviso that a lawful for the said Court, if it shall see fit so to do, before °^„ttoCommoa proceeding to make such decree as aforesaid, to send any Law Court, case or cases for the opinion of any of Her Majesty's Courts of Common Law {p), reserving the consideration of all further directions and of the costs {q), and to make such decree as aforesaid upon such further directions : Provided also, that if upon the hearing of such special Proviso that case as aforesaid the Court shall be of opinion that the fug^Jo™ goide' questions raised thereby, or any of them, cannot properly 124. ACT TO DIMINISH DELAY IN CHANCERY. 13 & 14 Vict: be decided upon such case, the said Court may refuse to ~ — '— — '- decide the same. Evidence. (o) As to what facts and documents must be stated, see sect. 8, auipra, and note thereto. Appeal. rpjig dgoree may be appealed from, see ss. 33 & 16. What the Court On a special case the Coijrt has decided a question of election, and directed will decide on accounts, Schroder t. Schroder, Kay, 678 ; see Evans v. Saimders, 1 Dr. special case. 415, 654 ; l)ay v. Day, 18 Jur. 1013 ; and compare cases on sect. 2 of the Trustee Relief Ac^ amte, p. 71. Questions of But generally the Court will only give its opinion on questions of construction, construction, and not hind the rights of parties, Bailey v. Collett, 23 L. J. 230 ; and as to special cases between vendor an4 purchaser, and the questions which the Court will or will not decide thereon, seeZcsKev. Thompson, 9 Hare, 268; and Wilsmn, V. Bermett, 20 L. J. Oh. 279 ; and compare Edwards v. Milbank, i Drew. 606. Declarations of It seems that the Court has no jurisdiction upon a special case to make future rights, binding declarations of future rights {Bu/rt v. Stwrt, 1 W. R. 145 ; Greenwood T. Sutherland, 10 Hare, App. xii. ; Oavlich v. Lawsom, 10 Hare, App. xiv. ; Gosling v. Gosling, Jo. 265. But see Earl of Tyrone v. Marquis of Water- ford, 1 D. F. J. 613. But in Bell v. Cade, 2 J. & H. 122, it was held that the Court might declare whether a person claiming a future right in remainder took such an interest in the property in question as to entitle him to file a bill to have it secured for his benefit. Compare notes on 15 & 16 Tict. c. 86, s, 50, post p. 208, which provides that no suit shall be objected to because only a declaratory decree is sought, and notes to sect. 8 of Lord Cairns' Act, post. (p ) See now 15 & 16 Vict. c. 86, ss. 61, 62, post, and notes to sect. 3 of Lord Cairns' Act, post. iq] Sep, as to costs under this Act, note to sect. 32, post. XV. And be it enacted, that every executor, adminis- trator, trustee, or other persons making any payment or doing any act in conformity with the declaration con- tained in any decree made upon a special case shall in aU respects be as fully and effectually protected and indem- nified by such declaration as if such payment had been made or act done under or in pursuance of the express order of the said Court made in a suit between the same parties instituted by bill, save only as to any rights or claims of any person in respect of matters not determined by such declaration. The Court may XVI. And be it enacted, that where any person shall aotWig"upon de- ^^ desirous to have a special case reheard, or to appeal ciaration. ffom the decision thereon, it shall be lawful for the said Court, upon application for that purpose, either at the time of the decree upon such special case being made or at any time afterwards, and upon such conditions, if any, as the Court shall think fit, to order that the declaration contained in such decree shall not be acted upon for such time as the said Court shall think just. 15 & 16 Vict. c 86, s. 50. 21 & 22 Vict. V. 27, ». 3. Costs. Protection to be aiforded to trustees by declaration. ACT TO DIMINISH DELAY IN CHANCERY. 125 XVII. And be it enacted, that the filing of a special 13 & 14 Viot. case, and the entering of appearances thereto by the per- — ' °' sons named as defendants therein, shall be taken to be a ^p^"?:^ "^^^ *° ' be a lis pen- lis pendens, and may be registered under the provisions dens, and may of an Act made and passed in the second year of the ^ ™^ ^" ' reign of her present Majesty, intituled " An Act for the 2 & 3 Vict, better Protection of Purchasers against Judgments, Crown *'' " Debts, Lis pendens, and Fiats in Bankruptcy" (r), in like manner as any other lis pendens in a Court of Equity may now be so registered, and, unless and until so regis- tered, shall not bind a purchaser or mortgagee without express notice thereof. ()•) See 2 & 3 Viot. c. 11, s. 7, cited in Daniell, 364. XVIII. And be it enacted, that any documents referred Mode of iden- to in a special case, and any copies thereof, or extracts ments, and therefrom, identified by the signature of the solicitors for *^°}"^' "■*? . n 1 i. order produe- all parties, or of the London agents of such solicitors, tion. may be produced and read at the hearing of such case, without further proof; and that it shall be lawful for the said Court, at any time after the filing of the special case, and the entering of appearances thereto by the persons named as defendants therein, to order any document which may be admitted thereby to be in the possession of any party to such case to be deposited and produced in such manner and for such purposes as the Court shall think fit (s). (s) See supra, sect. 8. As to ordering production of docnments, see notes Production of to sect. 18 of the Chancery ImproTement Act, 1852, p. 17S, post. docnments. XIX. And whereas it is expedient to provide means for Court, on ap- enabling executors or administrators of deceased persons executors°or to ascertain whether there are any outstanding debts or administrators, liabilities affecting the personal estates of such persons rf*TOurse°direct without the delay and expense of suits to administer such it to be referred estates (*): Be it therefore enacted, that it shall be lawful take an account for the said Court, upon the application of the executors "/^^Vt^aud or administrators of any deceased person, by order to be made upon motion or petition of course (m), and to be in the form or to the effect set forth in the schedule hereto, 126 ACT TO DIMINISH DELAY IN CHANCERY. 13 & 14 Vict, with such variations as circumstances may require, to refer c 35 s X9 ~ — — — 1- it to one of. the Masters of the said court to take an account of the debts and liabilities affecting the personal estate of such deceased person, and to report thereon (v) : Provided always, that no such order shall be made until the expira- tion of one year (w) next after the death of such deceased person, or pending any proceedings to administer the estate of such person, and that in case at any time after the making of such order any decree or order for adminis- tering the estate of such deceased person shall be made, it shall be lawful for the said Court by such decree or order to stay or suspend the proceedings under such order of course, on such terrns and conditions if any, as to the said Court shall seem just. statutory re- (0 This and the following sects, (as extended by 23 & 24 Tict. c. 38, a. 14, medies for and posOi enable an executor t^initiate proceedings (respecting perianal estate only, against exe- -Se Moore, 2 W. R. 85), -whicli he cannot do under 15 & 16 Vict. c. 86, ss. 45, cutors and. 46 ; but see 22 & 23 Vict, c 35, ss. 27—32, and 23 & 24 Tict. c. 38, b. 3, administrators, post, under which an executor or administrator can get complete protection, Clegg v. Soieland, 3. L. B. £q. 368. And as to administration suits bi/ executors, see 15 & 16 Vict. u. 86, a. 42, r. 6, post, p. 195. And against executors, see ibid, rr. 1, 2, 3 ; and see Williams on Executors, 1768, 1852. Application by (i'') '^^^^ application may now be "made by summons in chambers, 23 & 24 Bummons, Vict. o. 38, s. 14. And it is generally made either by summons or by motion, and not by petition of course, see Daniell, 1096 ; and for the mode of prose- cuting the order and issuing advertisements, see schedule, post, p. 134 ; and Ord. XXXV. 35—52; and Ord. 27 May, 1865. («) The form, since the 15 & 16 Vict. c. 80, is not "that it be referred to the Master," &c., but "that an account be talien," &c. (iJe Coiling, 9 Hare, App. vii., and see Seton, 147). (,w) By the 14th section of the 23 & 24 Vict. c. 38, it is provided that the order may be obtained immediately after probate or letters of administration have been granted. Master's report XX. {x). And be it enacted, that it shall be lawful for to°by motion lo ^"7 person who may have come in before the Master under the Court, of am' such order, and claimed to be a creditor upon the which notice ..nii j i shall be given, estate 01 the deceased person, or to have any demand upon such estate by reason of any liability, and whose debt or claim may not have been wholly allowed by the said Master [x), to apply to the said Court by motion, of which notice shall be given within fourteen days after the filing of the Master's report, to have such claim allowed by the Court, either wholly or partially ; and it shall be lawful for the said executors or administrators, and for ACT TO DIMINISH DELAY IN CHANCERY. 127 any creditor of the deceased person who may be au-' 13 & 14 Vict. ft ^K a 9ft thorised by special leave of the said Court so to do, to — ^ — '— — - apply to the said Court by motion, of which notice shall be given within the time aforesaid, to have any debt or claim allowed by the said Master disallowed by the Court, either wholly or partially ; and at the expiration of fourteen days after the filing of the said report the same shall, except as to any debt or claim as to which any such notice as aforesaid may have been given, be absolute, as if the same had been confirmed by order of the Court {x). {x) For the present mode of taking the judge's opinion on any point in the ig & 16 Viot. chief clerk's certificate by motion or summons, see sect. 33 of the Master ,• go g,33, iu Chancery Abolition Act, post, p. 153. And the time now is four, not four- teen days. See note to that section. XXI. And be it enacted, that upon the hearing of any Proceeding of such motion as aforesaid the said Court may either juoh motion, dismiss such motion, or may order the debt or claim to which such motion relates to be allowed or disallowed, as the case may be, and either wholly or partially, or may direct further inquiry or further proceedings, by way of action (y) or otherwise, touching such debt or claim ; and after such inquiry or proceedings may, upon further motion, deal with such debt or claim as to the said Court shall seem just : Provided always, that no new evidence shall be received by the said Court upon the hearing of any such motion without special leave of the said Court. (y) See now Sir John Kolt's Act, post, and Re Hooper, 11 W, R. 130, 25 & 26 Vict, where nnder that Act the Court adjudicated on the legal claim of a creditor c. 42. who had come in under an administration suit. XXII. And be it enacted, that in case any debt or any If debts or cer- certain liability shall have been allowed as aforesaid, and atiowed ^&nA shall not within fourteen days after the report has become "o* P**"! °^ absolute as to such debt or liability, or after the same order may be shall have been allowed by the said Court, be paid or °*'^f ^°^ P*?" ■; . . raent or ac- provided for by appropriation to the satisfaction of the counts. person who has established such liability, it shall be lawful for the said Court, by order, to be made in case of any debt remaining due, upon the application by motion 128 ACT TO DIMINISH DELAY IN CHANCEET. 13 & 14 Vict, or petition of the person to whom the debt remains due, — — — — L and on notice to the executors or administrators, and in case of any certain liability remaining unprovided for by appropriation, upon the application by motion or petition of the person by whom such liability has been established, or of the executors or administrators, and on notice by the party applying to the other of them, to order payment of the debts which may have been allowed and remain unpaid, and to provide for the certain liabilities which may have been allowed and remain unprovided for, in like manner as the same could or might have been paid or provided for in a suit for that purpose instituted by bill, or to refer it to the Master, to take an account of the debts and certain liabilities. allowed as aforesaid which remain unpaid or unprovided for, and also the usual ac- counts of the personal estate of the deceased person, with all usual and proper directions ; and every such order shall have the same force and effect and shall be prosecuted and carried on in like manner as a decree in a creditor's suit instituted by bill [z). (z) As to ordering accountB, see Ord. XXXV. 15, 16, 33, 34 ; and for form of order, Seton, 1232 ; and as to executors or administrators accounting, see Daniell, 1139. XXIII. Ahd be it enacted, that in case any contingent liability shall be allowed by the said report or by the said Court, it shall be lawful for the said Court, by order, to be made upon the application of the executors or administrators, by motion or petition, on notice to the person who may have established such contingent liability, to order such sum of money, part of the estate of the deceased person, as to the said Coiirt shall seem just, to be set apart and appropriated for answering such con- tingent liability (a), and to give such directions as the said Court shall think fit touching the payment of such sum of money into Court, and the investment thereof, and the payment, application, or accumulation of the interest or dividends thereof in the meantime and until the same shall be required to answer such liability, and when such liability shall be ascertained or determined to Decree for accounts. Court, on ap- plication of executors or administrators, may direct ap- propriation of money to an- swer contingent liability. ACT TO DIMINISH DELAY IN CHANCERY. 129 give such directions as to the payment of such sums out 13 & 14 Vict, of court as the said Court shall deem right : Provided — — — — 1- always, that no order to be made as aforesaid shall in any manner bind the assets so appropriated as against the persons entitled to the estate of the deceased subject to the contingent liability; and any person interested in such appropriated assets may apply to the Court touching the same as he may be advised. (a) A sum was, on motion by the executor, set apart to provide for an Unascertained nnascertained debt mentioned in the Master's report, the creditor' not having debt, appeared or established the liability before the Master, but having been served with notice of and appearing on the motion {He HowJdns, 10 Hare, App. xzxiii.). See now as to protection to executors, note («), supra, p. 126. XXrV. And be it enacted, that after the filing of such Court may report as aforesaid, it shall be lawful for the said Court, ceed^ngs''"' upon the application of the executors or administrators of against exe- _ . Gutors and the deceased, by order, to be made on motion (b), to restram administrators. by injunction any proceedings at law against them by any person having or claiming to have any demand upon the estate of the deceased by reason of any debt or liability, other than the persons who may have established contingent liabilities under the said order for which no appropriation may have been made. (V) Or summons, see 23 & 24 Yict. c. 38, s. 14, where this section is repeated. XXV. (c) And be it enacted, that in case no debt or Protection to liability, or no debt or liability other than a contingent J *^™^j*j.g liability, shall have been allowed as aforesaid, or in case or adminis- any debt or liability, other than as aforesaid, shall have been allowed as aforesaid, then, after the same shall have been paid or pi'ovided for by appropriation as aforesaid, all payments made by the executors or administrators, or any of them, on account of the estate of the deceased person, and all dispositions of such assets made by them or any of them, on account of such estate, shall, as against all persons having or claiming to have any demand upon such estate by reason of any debt or liability, other than persons who may have established under the said order any contingent liability for which no such appropriation as 130 ACT TO DIMINISH BELAY IN CHANCERY. 13 & 14 Viet, aforesaid may have been made, be as good and effectual as "■ ^^' "• ^^- if the same had been made undet a decree of the said Court: Provided always, that nothing herein contained shall in any manner affect or prejudice the rights of any creditor or other person having any demand or claim upon the estate of the deceased against any assets so paid or disposed of, or against the persons to whom such payment or disposition may have been made, or against any assets appropriated under the provisions of this Act, and the appropriation of which, if made under a decree of the said Court in a suit to which he was not a party, would not have been binding upon him. Ic) See now as to the protection of executors, note (<), steprft, p. 126. [Sect. 26.1 [Section 26 provided that any of the judges of the Court of Chancery might hear applications as to the conduct of suits in the first instance, if under special circumstances he should think fit to do so. Such appUcations are now made in chamhers, see sect. 26 of the Master in Chancery AboUtion Act, post, p. 145]. Exceptions for XXVlI. And be it enacted, that all exceptions for scandal, im- gcandal, impertinence (d!), and insufficiency, which, ac- Fnaufficrenoy to corduig to the existing practice of the said Court, are be heard by deferred to the Masters of the said Court, shall not any longer be so referred, but shaU be heard and determmed by the said Court in the first instance [d). (d) Exceptions for impertinence are now abolished (15 & 16 Vict. t. 86, s. 17). Any party to the cause may file exceptions for scandal. See as to setting them down for hearing, Ord. XVI. 10. Power for XXVIII. And be it enacted, that, notwithstanding any Court, notwith- J,^^g qj, practice of the said Court to the contrary, it shall standing any * rule, &o., to be lawful for the said Court, at the hearing of any cause to^recStTpr'oof °^ °^ ^"7 ^u^tlier directions therein, to recdve proof by by affidavit, affidavit of all proper parties being before the Court, and of all such matters as are necessary to be proved for enabling the said Court to order payment of amy monies belon^g to any married woman, and of all such other matters not directly in issue in the cause (e) as in the opinion of the said Court may safely and properly be so proved. Affidavits when (e) Affidavits Trere admitted at the hearing under this section as evidence admitted under that no appointment of trust funds had been made by deceased persons, in this section. ACT TO DIMINISH DELAY IN CHANCERY. 131 support of a suit by a party claiming in de&ult of appointment (Devey r. 13 & 14 Vict. Thornton, 9 Hare, 222, 233 ; and see Smith t. Leathart, 20 L. J. Ch. 202). «. 35, b. 28. So, where a class of chUdreD was interested, the Court, instead of directing the preliminary class inquiry, received the affidavits of the parents proving the Affidavits ad- class, and then allowed tfie cause to be heard {Binh v. WatMns, 14 Beav. 33; mitted at cf. Sear v. Smith, 5 De G. & S. 92 : Fowler y. Eeyndl, 15 Jur. 1019). As to hearing, what exhibits and documents can be proved at the hearing under this section, see Daniell, 816, and note (c). Matters raising a new issue not noticed in the pleadings cannot be proved under this section ; thus, where the pleadings in the cause raised the issue as to what fund a legsioy should be charged on, and at the hearing on farther consideration an affidavit was tendered to prove that the legacy had been paid, it was held that as the affidavit related to an issue not raised by the pleadings it was inadmissible under this section, but a farther inquiry was directed (Hmaard v. Chaffers, 1] W. B. 585 ; see Soghton v. Hoghton, 15 Beav. 278). So an affidavit as to the conduct of the plaintiff cannot be received at the hearing after the Master's report has been made (Bateman v. Margerison, 2 W. B,. 607 ; ^i>an» v. iewss, 2 L. T. N. S. 559 ; where Fallows v. Zord IHllon, 2 W. B,. 507, was not followed ; and see DanieU, 1249. As to the larger powers of proving facts and documents at the hearing in Where issue is causes where issue is joined, see note to Ord. 5 Feb. 1861, r, 7, post. joined. XXIX. And be it enacted, that * * * * it shall be law- Orders of ful for the Master of the EoUs and the Vice-Chancellors one judge may respectively to discharge, reverse, or alter any order made reverse an on motion or petition of course by any other of them, or course made by the Lord Chancellor (/). by another ■' ^-^ ' judge. (/) The omitted portion of this section repeals at length certain provisions of 53 Geo. 3, c. 24, and 5 Vict. t. 5. XXX. And be it enacted, that it shall be lawful for the Power to Lord Lord Chancellor, with the advice and consent of the &o.*trmake Master of the EoUs and any one or more of the Vice- general rules Chancellors, from time to time to make, rescind, and from time to alter general rules and orders for better enabling the *"°®" opinion of the said Court to be obtained on special cases, and for effectuating the purposes of this Act as to the debts and liabilities of deceased persons, and for making any provisions which may be or be deemed necessary or proper as to amendment, revivor, and supplemental matter or relief, and as to costs of any proceedings under or in pursuance of this Act, and for regulating the times and form and mode of procedure, and generally the practice of the said Court in respect of the matters to which this Act relates, and every of them, and so far as may be found expedient for altering the course of pro- ceeding hereinbefore prescribed in respect to such matters or any of them (^). K 2 132 ACT TO DIMINISH DELAY IN CHANCERT. 13 & 14 Vict. (g) See Ord. XXXV., and Order, 27 May, 1865, for rules as to advertise- c. 85, s. 30, ments by executors. No general order has been made as to special cases. Bules and orders to be laid before Parliament, and to be binding fi:om the time ap- pointed or from the making, unless objected to by vote of either House of Parliament. Bules and oi'ders not laid before Parliament within time limited to be void. Until rules or orders are made, and if not applicable when made, practice to be XXXI. And be it enacted, that all sucli general rules and orders shall be laid before both Houses of Parlia- ment, if Parliament shall be then sitting, immediately upon the making and issuing the same, or, if Parliament shall not be then sitting, then within five days after the next meeting thereof; and that every such rule or order shall from and after the time in that behalf to be appointed by the Lord Chancellor, with such advice and consent as aforesaid, and if no time shall be so appointed, then from and after the making thereof, be binding and obligatory on the said Court, and be of like force and effect as if the provisions therein contained had been expressly enacted by Parliament : Provided always, that if either of the Houses of Parliament shall, by any resolution passed at any time before such House of Parliament shall have actually sat thirty-six days after such rules, orders, and regulations shall have been laid before such House of Parliament, resolve that the whole or any part of such rules or orders ought not to continue in force, in such case the whole or such part thereof as shall be so included in such resolution shall from and after such resolution cease to be binding and obligatory on the said Court: Provided also, that no such rule or order as aforesaid shall by virtue of this Act be of the like force and effefct as if the provisions therein contained had been expressly enacted by Parliament, unless the same shall be ex- pressed to be made in pursuance of this Act ; and that every such rule or order so expressed to be made in pur- suance of this Act which shall not be laid before both Houses of Parliament within the time by this Act limited for that purpose, shall from and after the expiration of such time be absolutely void and of no effect. XXXII. And be it enacted, that in the meantime and until any such general rules or orders shall be made, and in so far as the same, when made, shall not be applicable, the proceedings under this Act shall be governed and re- ACT TO DIMINISH DELAY IN CHANCERY. 133 gulated by the provisions herein contained so far as the 13 & 14 Vict. same extend, and in so far as the same do not extend -^^ — '— — shall, as well with respect to the persons who ought to this Act and be made parties to special cases as in every other respect, practice of the be governed and regulated by the rules, orders, and prac- tice of the said Court in suits instituted by bill, so far as the same can be applied thereto; and, subject to such general rules and orders as aforesaid, the costs (A) of aU proceedings under this Act shall be in the discretion of the said Court. (h) In Jackson v. Craig, 15 Jur. 811, V.-C. Knight Bruce thought that the Coats of special Court had power to direct the costs of a special case to be paid out of the tea- case, tator's estate (and see Smith y, Stuart, 20 L. J. Ch. 205 ; Burt v. Sturt, 1 W. K. 145 ; Evans v. Eoana, 22 L. T. 43). But in Blinston v. Warburton, 2 K. & J. 406, it was said by V. -C. Wood, that where there wets no fund in, court the Court had no such jurisdiction, and that in such a case there should either be some arrangement between the parties or a question in the case out of what fund thej should be paid. The latter course is more generally adopted in practice ; but see UsticJee v. Peters, 4 K. & J. 437. As a general rule, the Court, in awarding the costs of a special case, is By whom pay- governed by the rules which regulate it in ordering payment of the costs of able, a suit instituted by bllL Thus, if the difficulty arise out of a testator's will, the costs, as in an administration suit, will be ordered to be borne by the testa- tor's general estate (Oookson v. Bingham, 17 Beav. 262 ; Hindle v. Taylor, 5 B. M. G. 585 ; but see Lloyd v. Cocker, 27 Beav. 649) ; or residuary real estate (MwrshaU v. Grime, 28 Beav. 379) ; or, if there be no general estate, by the fund specifically bequeathed, Cookson v. Bingham, 1. c. ; but see also, Lloyd V. Cocker, 1. c. ; and Ustiche v. Peters, 1. c, where V.-C. Wood held that the costs of a special case were not to be decided on the same principle as those of an administration suit, and that a plaintiif succeeding upon a special case arising out of the construction of a will was entitled to his costs from the defendant. So in Mortimore v. Mortimore, 4 De G. & J. 472, a special case having been stated for the opinion of the Court, at the instance of a tenant for life, with a view to obtaining an increase of her income by an investment, of which the Court in its judgment expressed disapprobation, the income of the tenant for life was ordered to bear the costs. Again, in Satmi v. Eeape, 27 Beav. 561, where the question was whether the plaintiffs could make a good title, the costs of a special case were in answer to a question in the case, declared to be payable by the defendant, upon the principle that, if a bill had been filed for specific performance, a decree would have been made against him with costs. Compare note (i), p. 67, as to costs under the Trustee Belief Act. XXXIII. And be it enacted, that all decrees and orders Decrees and made under the provisions of this Act shall be subject to subject to rehearing, appeal, and review, and may be discharged appeal, &c. and varied, in the same and the like manner as decrees and orders of the said Court made in suits instituted by bill («■). {i) As to suspending the decree in the meanwhile, see sect. 16, ante, p. 124. 134 ACT TO DIMINISH DELAY IN CHANCERY. 13 & 14 Vict. XXXIV. And be it enacted, that the following words — — ' ' ' and expressions in this Act shall have the several mean- of terms.* "*" i°gs hereby assigned to them, unless there be something either in the subject or in the context repugnant to such construction : Words importing the singular number only shall in- clude the plural number, and words importing the plural number only shall include the singular number : Words importing the masculine gender only shall include females : The expression "Lord Chancellor" shall mean and include the Lord Chancellor, Lord Keeper, and Lords Commissioners of the Great Seal of the United Kingdom for the time being : The word " Master " shall mean Master in Ordinary of the High Court of Chancery in England : The word " lunatics '' shall include idiots and persons of unsound mind, and whether found such by inqui- sition or not : The word "guardian" shall mean father or testa- mentary guardian, or guardian appointed by the Court of Chancery (not being a special guardian appointed under the provisions of this Act). meToTAo't. ^^^^^^- ^^"^ ^^ it enacted, that this Act shall com- mence and take effect from and after the first day of November one thousand eight hundred and fifty. SCHEDULE referred to by the foregoing Act. [Bate.] In the matter oiA.B. late of in the County of [Banker, or as the case may 6e], deceased. Upon motion this day made unto this Court by Mr. of counsel for C. D.. of the executor [or administrator] of the above-named A. B. [or upon the ACT TO DIMINISH DIJLAT IN CHANCERY. 135 humble petition (fc) of C. D. of the executor {or 13 & 14 Viot. administrator) of the said A. £., this day preferred unto - — '. — the Eight Honourable the Master of the Eolls for the reasons therein contained], it is ordered, that it be referred to the Master of this Court in rotation to take an account of the debts and liabilities affecting the personal estate of the said A. B., and to compute interest on such of the said debts and liabilities as carry interest after the rate of interest the same respectively carry ; and the said Master is to cause an advertisement to be published in the London Gazette and such other public papers as he shall think fit for the persons claiming in respect of any such debts or liabilities to come in before the said Master, and to prove their debts and claims, and he is to fix a peremptory day for that purpose ; and such of the said creditors as shall not come in and prove their debts and claims by the time so to be limited are to be excluded the benefit of this order: And it is ordered, that the said Master do distinguish debts from liabihties, and liabilities certain from liabilities contingent : And it is ordered that the personal estate of the said A. B. be applied in pay- ment and satisfaction of such debts and liabilities of the said A. B.va.& due course of administration ; and for the better taking the said accounts and discovery of the mat- ters aforesaid the parties are to produce before the said Master, upon oath, aU deeds, books, papers, and writings, in their custody or power relating thereto, and are to be examined upon interrogatories as the said Master shall direct ; and any of the parties are to be at liberty to apply to the Court as there shall be occasion. (Jc) See note (o), to sect. 19, and cases there cited. TBUSTEE ACT, 1850. 13 & 14 VICT. Cap. 60. [See ante, p. 76.] 136 COURT OF APPEAL IN CHANCERY ACT. COUET OF APPEAL IN CHANCEEY ACT {a). 14 & 15 VICT. Cap. 83. An Act to improve the Administration of Justice in the Court of Chancery and in the Judicial Committee of the Privy Council. [7 th August, 1851. 14 & 15 Vict. Wheeeas it is expedient that further provision should "' ' be made for the administration of justice in the High Court of Chancery and in the Judicial Committee of the Privy Council : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and con- sent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : Appeal Court of Duchy of Lancaster. Precedence of judges of Court of Appeal. Judges of Court of Ap- peal to take the following oath. Court of Ap- peal to have the jurisdiction (a) The Court of Appeal of the Palatine Court of the Duchy of Lancaster consists of the Chancellor of the duchy and the two Lords Justices of the Court of Appeal in Chancery ; see 17 & 18 Vict. c. 82 ; Seton, 1169 ; Ex parte Williams, 34 Bear. 370. [Sects. 1 & 2 give power to Her Majesty to appoint two persons to be judges of the Court of Appeal in Chancery.] III. The said judges shall be styled Lords Justices of the Court of Appeal in Chancery, and shall have rank and precedence next after the Lord Chief Baron of the Court of Exchequer, and as between themselves shall have rank and precedence according to the order and time of their appointment. IV. Every judge so appointed shall, previous to his executing any of the duties of his office, take the following oath, which the Lord Chancellor or the Master of the Eolls for the time being is hereby respectively authorised and required to administer : " I do solemnly and sincerely promise and swear, that I will duly and faithfully, and to the best of my skill and power, execute the office of Lord Justice of the Court of Appeal in Chancery. " So help me GOD." v. From and after the first day of October one thou- sand eight hundred and fifty-one, all the jurisdiction of COURT OF APPEAL IN CHANCERY ACT. 137 the High Court of Chancery in England which is now l^ & 15 Vict. possessed and exercised by the Lord Chancellor in the — — ' °' ' said Court of Chancery, and all powers, authorities, and by'^h^urd'^ duties, as well ministerial as judicial, incident to such Cha,noeUor. jurisdiction, now exercised and performed by the Lord Chancellor, shall and may be had, exercised, and per- formed by the said Court of Appeal (b). (i) The Court of Appeal appointed ty this Act have jurisdiction to correct Powers of an error in an order made by the Lord Chancellor {The AUomey-Ocneral v. Appeal Court. The Oorporatien of Exeter, 22 L. J. Ch. 418). When the judges differ, the decree below is affirmed, sect, 9. The Lord Chancellor will sit with the Lords Justices if necessary (vid. Shef- Sittings of field v. Zord Coventry, 1 W. R. §8). But when, after fully hearing a ease, Appeaj Court, the Lords Justices differ, and the decree below is affinned, a rehearing before the full Court will not in general be directed (Blmm v. Bell, 2 D. M. a. 775). VI. Where under any Act of Parliament any juris- Statutory juris- diction is vested in the Lord Chancellor, or any power, exerohedTy authority, or duty is to be exercised or performed by the ^^^ LordOhan- Lord Chancellor, and under the directions of any Act or jn^ge in Chan- by the usage in this behalf such power, authority, or duty "^''^ ™*y ^ is or ought to be exercised or performed by the Lord the Court of Chancellor acting judicially in the said Court of Chancery, ^vv^^ all such jurisdiction, power, authority, and duty, and the ' ministerial powers and authorities incident thereto or consequent thereupon, which are now exercised and per- formed by the Lord Chancellor, shall, from and after the said first day of October one thousand eight hundred and fifty-one, be had, exercised, and performed by the said Court of Appeal. VII. From and after the first day of October one Jurisdiction of thousand eight hundred and fifty-one, all the powers, mTankrupto™ authorities, and jurisdiction, original and appellate, given transferred to and granted to the Vice- Chancellors of the said Court of Appeal. Chancery, or any of them, under the Bankrupt Law Con- solidation Act made and passed in one thousand eight hundred and forty-nine (c), or otherwise had, possessed, or exercised by the said Vice-ChanceUors, or any of them, in matters of bankruptcy, shall be granted to, vested in, exercised and possessed by the said Court of Appeal; and all the provisions of the said Act in relation to such appeals to such Vice -Chancellor shall be construed accord- 138 COURT OF APPEAL IN CHANCERY ACT. U&15Yict. c. 83, s. 7. ingly: Provided always, that there shall not be any appeal from the decision of the said Court of Appeal to the Lord Chancellor, anything in the said Bankrupt Law Consolidation Act to the contrary notwithstanding. (e) 12 & IS Viot. 0. 106, s. 13, of Iiorda, see b. 10, infra. Aa to appeals in Bantruptoy to the House Cominon Law judges may sit on request of Lord Otian- cellor. VIII. It shall be lawful to the said Court of Appeal and the Master of the RoUs, and the Vice-Chancellors, and for each of the said jurisdictions, to sit, with the assistance of any judge of either of Her Majesty's Courts of Common Law at Westminster, upon the request of the Lord Chancellor, if any such Common Law judge shall find it convenient to attend upon such request {d). Assistance of (d) The Court now generally tries questions of law or fact itself see 25 & 26 Common Law Viot. c. 42, b. 1, and note. The assistance of a Common Law judge under judge. this section, will only be called in when the case is one of dif&culty {Seward v. Wheaile}/, 3 D. M. (J. 628) ; cf. Falhner v, Grace, 9 Hare, 283, where it was said by V. -0. Turner, that the power giTCu by the section ought not to be re- sorted to on a question turning merely on the construction of particular instru- ments, and not involving points of public importance. When a case is reheard before the Court and a Common Law judge, it has been said to be usual to hear only one counsel on each side {Norman v. Mitchell, 2 W. K. 685 ; Jones v. How obtained. Seach, 2 D. M.. Or. S8S. But this rule is not invariable). The application to the Common Law judge to sit must be made through the Lord Chancellor (Maif V. WiUougMi/, 9 Hare, App. xxx. ; Beerhwrst v. Jones, 16 Jur. 988). But where the Court of Appeal, on an interlocutory motion, suggests that the cause is a proper one to be heard before the Yice-Chancellor with the assistsince of a Common Law judge, the Yice-Chancellor will make an order to that effect on motion {Sugkes t, Chester cmd Holyhead Railway Company, 8 W.'K. 337). Decision of majority to be binding; if Court equally divided the decree, &c,, appealed from to be affirmedi Decrees, &c., of the said Court of Appeal may be appealed from to the House of Lords. IX. The decision of the majority of the judges of the Court of Appeal shall be taken and deemed to be the decision of the said Court; and if the judges of the said Court be equally divided in opinion on any cause or matter brought before the Court by way of appeal, the decree or order appealed from shall be taken and deemed to be affirmed by the Court of Appeal (e). (e) In such a case, unless it be otherwise directed, the costs of the appeal will follow the result {Re Clarke, 1 D. M. G. 43). X. All decisions, decrees, or orders of the Court of Appeal, including decisions in matters of bankruptcy, shall be subject to appeal to the House of Lords (/) in the cases and under the conditions in and under which the like decisions, decrees, or orders of the Lord Chancellor COURT OF APPEAL IN CHANCERY ACT. 139 would have been subject to such appeal if this Act had 14&15 Viot. not been passed ; but the appeal to the House of Lords — — — !- in matters of bankruptcy shall be only on matters of law or equity, or on the rejection or admission of evidence, and on a special case to be approved and certified by one of the judges of the Court of Appeal hereby constituted, whose determination on the settlement of such case shall be final and conclusive (^). (/) As to the practice There on the hearing of an appeal in the House of Appeal in Lords it appears that all parties are not properly represented, see Fremlliam House of Lords; v. Knight, 1 L. R. H. L. 30. As to the mode of enforcing the order of the House of Lords when that House Order how is not sitting, by making such ordar an order of the Court of Chancery, see enforced. Wentwortk t. Lloyd, 13 W. R. 146. (g) The Bankruptcy Act, 1861, made no difference in this discretionary Appeals in power of the L.JJ. to allow appeals in bankruptcy. Be Nemton, 10 W. R, 547. bankruptcy. XI. All the jurisdiction, powers, and authorities of one judge the said Court of Appeal may be exercised either by one *n^°™*^^g only of the judges for the time being appointed under this Act sitting Act and the Lord Chancellor sitting together as such ^ J^ij^j." Court of Appeal, or by both of the judges so appointed °^ \°^T^ jndges sitting as such Court apart from the Lord Chancellor, from him, to either in his absence from the said Court of Chancery, or ^o™ the Court during the same time as he is sitting in such court : Pro- Lo^d Chau- vided always, that the Lord Chancellor shall and may =?iior sitt™g ,.,.. , ~ , ., alone to have also, while sitting alone or apart from such two judges, co-ordinate have and exercise the like jurisdiction, powers, and au- ^^j'^theTourt thorities, as well as all such other jurisdiction, powers, -of Appeal, and authorities as might have been exercised by the Lord Chancellor if this Act had not been passed. XII. The Lord Chancellor shall fix the times at which Lord Chan- the two judges of the said Court of Appeal appointed iate°sittingr' under this Act, or either of them, shall sit with the Lord and business of Chancellor, and at which such two judges shall sit apart Appeal, from him as such Court of Appeal, and also what appeals and matters now usually heard and determined by the Lord Chancellor, and hereby made subject to the juris- diction of the said Court of Appeal, shall be heard and determined by such Court when the Lord Chancellor is sitting with the said judges to be appointed under this Act, or one of them, and by such judges when sitting 140 COURT OF APPEAL IN CHANCERY ACT. 14 & 15 Vlot. c. 83, a. 12. Appeals how marksd for hearing. Saving of ministerial and certain other powers of the Lord Chancellor. apaxt from such Lord Chancellor, and by such Lord' Chancellor when sitting alone, respectively and generally may make such regulations as to him may seem proper for dividing and regulating the business of the said Court of Appeal, and for the attendance of a registrar of the said Court of Chancery at the sittings of the said Court of Appeal (h). (h) Appeals are usually marked for hearing before the Lords Justices. As to applications to tranter appeals under this section, see Williams v. Olenton, 14W. R. 89, XIIL Nothing herein contained shall affect any of the powers, duties, or authorities attached to the office of Lord Chancellor, or exercised by the Lord Chancellor as keeper of the Great Seal, except the powers, authorities, and duties which are exercised and performed by him acting as a judge in the said Court of Chancery, either by virtue of his ordinary jurisdiction or of any statute and the ministerial powers and authorities incident thereto respectively, or affect the powers, authorities, and duties of the Lord Chancellor, under and by virtue of any appointment under the sign manual of the Crown, as having the custody of the persons and estates of persons found idiotic, lunatic, or of unsound mind (i), or in rela- tion to letters patent, grants, or writings passed or to be passed, under the Great Seal of the United Kingdom, or the revocation of such letters patent, grants, or writings, or the powers and authorities of the Lord Chancellor in right or on behalf of her Majesty as visitor of any charity or other foundation, or the powers of the Lord Chancellor of appointment to or removal from or otherwise in rela- tion to offices in the Court of Chancery, or other offices, save as herein specially provided, or the powers of the Lord Chancellor to direct and regulate the sittings and duties of the Vice-Chancellors, or any powers of the Lord Chancellor (whether to be exercised by the Lord Chancellor alone, or with the concurrence or advice or consent of the Master of the Rolls, or by the Master of the Rolls and the Vice-Chancellors, or otherwise), to make rules or orders for regulating the practice, proceedings, COURT OF APPEAi IN CHANCERY ACT. 141 and business of the Court of Chancery, or the business 14 & 15 Vict. or duties of any of the offices or officers of such court ; "' L and in all cases where the concurrence, advice, or consent of the Master of the Eolls and of one of the Vice-Chan- cellors, or of either of them, shall be requisite for the making of such rules or orders, the concurrence, advice, or consent of one of the judges appointed by virtue of this Act may be substituted for that of the Master of the Eolls or of such Vice- Chancellor. (i) See note (5) to p. 81, ante, as to lunacy jurisdiction. Lunacy juris- diction. XIV. In case the Ma^er of the Rolls or any Vice- One of the Chancellor of the High Court of Chancery shall be pre- cJiurt^f Ap- vented by illness or otherwise from sitting at any time peal may sit , ,. ,. ,. ,, , for Master of when according to ordmary course his court would be the Rolls or open, the Lord Chancellor may, by writing under his ^^'Soj^aurine hand, from time to time, so often as occasion may require, tis temporary authorise one of the judges of the said Court of Appeal to sit for Hie hearing and determining of causes and matters in lieu of the Master of the Rolls or such Vice-Chan- cellor, and the judge sitting under such authority as aforesaid may, for the purpose of disposing of any cause or matter which has been partly heard by him, continue such his sittings, notwithstanding the Master of the Eolls or Vice-Chancellor in whose stead he has partly heard such cause or matter may also be sitting for the hearing of other causes or matters ; and all decrees and orders made by such judge in pursuance of such authority shall be of ' the same effect and validity and subject to revision and appeal, in the same manner in all respects as if made by the Master of the Rolls or Vice-Chancellor, as the case may be : Provided always, that such judge shall not sit as a judge of the said Court of Appeal upon any appeal iirom any decree or order made by himself. XV. Every person holding or who has held the office of Judges of a judge of the Court of Appeal in Chancery shall, if a AppLi°if member of her Mai e sty's Privy Council, be a member P^'jy "o""- ..,„ . e 1 -r, • /-I -1 cillors to be of the Judicial Committee 01 the Pnvy Council. of the Judicial XVI. So much of the Act of the. Session holden in the Committee. 142 . COURT OF APPEAL IN CHANCERY ACT. ^ ^ ^ 15 Viot. third and fourth years of King William the Fourth, chapter '- forty-one, as provides that no matter shall be heard, nor No matter to in n . i j- i j i. te heard, &c. Shall any order, report, or recommendation be made, by by Judicial ^he Judicial Committee of the Privy Council, in pursuance unless three of that Act, unless in the presence of at least four members presentreKlu- °^ *^^ ^^^ committee, shall be repealed ; and no matter siveofLord shall be heard, nor shall any order, report, or recom- mendation be made, by the said Judicial Committee, in pursuance of the said Act or any other Act, unless in the presence of at least three members of the said committee, ■ exclusive of the Lord President of her Majesty's Privy Council for the time being. [The omitted sections relate to the payment of salaries to the judges and registrars, &c.J Interpretation XXIV. In the Construction of this Act, unless such Chancellor." meaning be repugnant to or inconsistent with the context, the expression "Lord Chancellor" shall mean and include the Lord High Chancellor of Great Britain, and the Lord Keeper or Lords Commissioners of the Great Seal of the United Kingdom, for the time being. TKUSTEE EXTENSION ACT. 16 & 16 VICT. Cap. 65. [See mUe, p. 111.] MASTEE IN CHANCEEY ABOLITION ACT. 15 & 16 VIOT. Cap. 80. An Act to abolish the Office of Master in Ordinary of the High Court of Chancery, and to make provision for the more speedy and efficient Despatch of Business in the said Court. [SOthJune, 1852. 15 & 16 Vict. Whereas proceedings before the Masters in Ordinary t ! of the High Court of Chancery are attended vyith great MASTER IN CHANCERY ABOLITION ACT. 143 delay and expense, and it is expedient that the business 15 & 16 Vict. now disposed of in the office of such Masters should be . transacted by and under the more immediate direction and control of the judges of the said Court : Be it therefore enacted by the Queen's most Excellent Majesty, by and ■with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : I. The office of Master in Ordinary of the High Court Offi"? "f ^as- of Chancery shall be and the same is hereby abolished, nary in Chan- but reserving and subject to the execution by the present "^"^^ abolished. Masters in Ordinary of the said court, as such, of the duties hereinafter provided for ; and until they are re- leased under this Act they shall, for the performance of such duties, continue to have all the powers conferred upon them by any Act of Parliament, or otherwise vested in them. [The sections omitted relate to the retirement of the Masters and the payment Closing of of their pensions, and the winding up of proceedings before them. Masters' The Masters' ofloes were finally closed on Aug. 23, 1860. offices. The omitted sections also provided what proceedings should he taken in the event of parties neglecting or delaying to prosecute matters before the Masters, and see now, for the practice in case of such delay or neglect, Ord. XXXV. 23, and note.] XI. From and after the first day of Michaelmas term Power to one thousand eight hundred and fifty-two it shall be lawful t^^j^ua and for the Master of the EoUs and the Vice- Chancellors for Vice-Chan- the time being and they are hereby required to sit at chambers for chambers (a) for the despatch of such part of the business *fl^Yn^ggg*&e of the said court as can, without detriment to the public advantage arising from the discussion of questions in open court, be heard in chambers, according to the directions hereinafter in that behalf specified or referred to; and the times at and during which they respectively shall so sit shall be from time to time fixed by them respectively. (a) For the business to he disposed of at Chambers, see sect. 26, infra ; Practice in and as to adjournments from court into chambers, see sect. 27. Cases of chambers, difficulty wHl be heard in Court, see sects. 27 and 29 ; and as to the right of parties to see the judge himself, see note (6), next page. The mode of pro- ceeding in chambers is by summons, see sect. 28. For the practice where parties do not proceed before the chief clerk with due diligence, see Ord. XXXV. 23, and note thereto. 144 15 & 16 Vict, c. 80, s. 11. Power to Lord Chancellor to provide Cham- bers for the Master of the KoUs and Vice-Chan- cellors. Judges to have same power and jurisdic- tion as in open court. Eight of party to see judge himself. MASTER IN CHANCERY ABOLITION ACT. For the practice as to examination of witnesses in chambers, see sect. SO, and note, .in/ra, p. 151. For the form of the chief clerk's certificate, see sect. 32. Applications to vary the certificate may be made under sect. 34, and as to appeals from orders made by the judge in chambers, see note to sect. 28, p. 160. XII. The Chamber business of the Master of the Eolls and of every Vice-Chancellor shall be carried on in con- junction with his court business : but as no rooms are attached to the courts of the Vice- Chancellors in which such chamber business can be transacted, it shall be law- ful for the Lord Chancellor to cause chambers to be pro- vided for every of them respectively for that purpose until courts vsith proper rooms attached can be provided for them. XIII. The Master of the Eolls and every of the Vice- ChanceUors respectively when sitting in chambers shall have the same power and jurisdiction in respect of the business to be brought -before them, as if they were respectively sitting in open court (6). (6) All orders made in chambers are made by the judge himself, and, conse- quently, the judge in chambers is always accessible to any of the parties engaged in proceedings there, who wish to see him, and it is the invariable practice to give any party, suggesting that he wishes to see the judge per- sonally, the opportunity of doing so directly {Hayward v. Hwyward, Kay, App xxxi. ; Be Rigg, 10 W. B. 365) ; and the same rule applies to cases under the Winding-up Acts (JRe AgrievMwrist Cattle Insurance Compamy, 3 D. P. J. 194 ; Ee Home Couraiet Life Asswanoe Company, 10 W. R. 457. See Saamders v. Walter, 9 Hare, App. v., and Re London and Cmmty Asswrance Compamy, S W. R. 794, -where upon a motion to commit a party, who refused to answer a question, and requested that the case might be adjourned for hearing before the judge, it was held, that either party has a right on the minutest point to require an adjournment of the case before the judge himself in chambers, and the motion to commit was refused with costs. See WiUiamisonf. Jeffreys, 9 Hare, App. Ivi. ; Leeds v. Lewis, 3 Jur. N. S. 1290, and see note (o), p. 152, infra, as to adjourning the examination of a witness to be taken before the judge in person. The case being before the judge himself in chambers, no direction for liberty to state special circumstances is necessary in a decree or order {Williamson V. J^reys, I. c, and Seton, 98). As to cases where inquiries may be prose- cuted in chambers, without an order directing them to be so prosecuted, see Kelson v. Kelson, 9 Hare, App. Ixxxvi. See 15 & 16 Tict. u. 86, a. 54, post, as to directions for taking accounts. Orders made in chambers to be ordinarily drawn up by judges' clerks, but judges may direct them to be XIV. The orders made by the Master of the Rolls and Vice-Chancellors respectively when sitting in chambers shall ordinarily be drawn up there by their respective clerks, to be appointed as hereinafter mentioned, but with power to each of such judges to direct any of such orders MASTER IN CHANCERY ABOLITION ACT. 145 to be drawn up by the registrar of the said court in like 15 & 16 Viot. manner as orders naade by a judge of the said court in — — — — '— open court are drawn up, for which purpose the registrars regiltra'iB oJ of the said court shall, when required, attend the Master *e court, and of the Rolls and the Vice-Chancellors respectively when their attend- sitting at chambers, in such order and manner as shall be 'f^'^ f 'i*'^" ° '. . . bers for the found most convenient for furthering the business of the purpose. said court, and as the Lord Chancellor, with the concur- rence of the Master of the EoUs and Vice- Chancellors, or any two of them, shall from time to time by any general order direct. ^ XV. All orders of the Master of the Eolls or of any ^i'^f^ "^^^ •' at chambers to Vice-Chancellor, made by him at chambers, shall have have same the force and effect of orders of the Court of Chancery, of™ourfc° &or and such orders may be signed and enrolled in like manner (d). (d) As to appeals from orders made in chambers, see p. 150, infra. Orders made in chambers may be enforced in the same manner as orders Enforcement made in court, see p. 513, post, and as to four-day orders issued when the of orders. party disobeying an order was not present when it was made, seeDaniell, 1089. [Sections 16 — 25 related exclusively to the appointment and removal of the Chief and chief and junior clerks ; respecting whom a new Act has been lately passed. junior clerks. Sect. 1 of the Court of Chancery (Officers) Act, 1867 (30 & 31 Vict. o. 87), Court of Chan- gives the Lord Chancellor power to order additional chief clerks and junior eery (Officers) clerks to be appointed, but the total number ot chief derhs is not at any time Act, 1867, SO to exceed twelve. & 31 Viet. c. Sect. 7 permits the Lord Chancellor from time to time to transfer any clerk 87. from any one judge to any other judge with the consent of the judges concerned. Sect. 8 of the same Act gives the Lord Chancellor power to appoint addi- tional registrars up to thirteen. The same Act sdso confirms several appointments of chief cleiks and junior clerks previously made.] XXVI. The business to be disposed of by the Master Business to be of the EoUs and Vice- Chancellors respectively while sitting chlmbers^by" at chambers shall consist of such of the following matters the judges. as the judge shall from time to time think may be more con- veniently disposed of in chambers than in open court (e), videlicet, applications for time to plead, answer, or demur ; for leave to amend biUs or claims ; for enlarging publication ; and also applications for the production of documents ; applications relating to the conduct of suits or matters (/) ; applications as to the guardianship and maintenance of infants ; matters connected with the management of property (g) ; and such other matters as 146 MASTER IN CHANCERY ABOLITION ACT. 15 & 16 Viet, each such judge may from time to time see^fit, or as may — — — — '— from time to time be directed by any general order of the Lord Chancellor (e). BITSINESS m CHAMBEBS. (A) Notice 10th Nov., 1852. INFANTS, guardians, maintenance, Marriage, &c., of wm'ds of court. Applications under Drain- age Act, For adminis- tration by summons. For leave to amend. For enlarge- ment of time. For production of documents. (B) 18 & 19 Viot. c. 134, 3 16, and Ord, XXXV. 1, Funds, &c., under control of Court, (e) The following notices. Ads, and orders have been issued and passed with reference to the business to be transacted in chambers. (A) By a notice issued in pursuance of the section in the text, afSxed to the chambers of the Master of the KoUs and the Vioe-Chancellors, on the 10th of November, 1852, it was provided that the following applications should be made in chambers (see 9 Hare, App. xlviii.), 1. As to guwrdiamskip of infamts (see Daniell, 1213, and as to the powers of guardians appointed by the Court, iMd. 1225), except the appointment of guardians ad litem, as to which see note (/), p, 401, post. Guardians to act on behalf qf infants under the Settled Estates Act, are also to be appointed on summons, see note (u), p. 252, post. For the evidence to be produced on application for guardians, see 19th Judges' Kegul, Aug, 1857 (Appendix, p, Iv, post) ; and see notes (a), p. 7, and {h), p. 9, ante. 2. For the appointment of a guardiwn to concur in a special case (but such applications are now made in court ; note (e), p. 119, anie). 3. As to the maintmamce or advancement of infants ; see for the necessary evidence, 19th Eegul. Aug, 1857 (1, c). The Order of 8 July, 1842, referred to in preliminary Ord. I. p. 362, post, provides for deduction of income tax, from money ordered to be advanced, unless the order specifies the contrary ; see now as to trustees' statutory power to allow maintenance, sect. 26 of Lord Cranworth's Act, p. 302, post. So an application that a ward of Court, see note (n), p. 7, ante, may go out of the jurisdiction, or be allowed to marry, is made by summons (unless the application has to be made under the Infant Settlement Act, p. 234, post) See also head (5) next page. 4. Under the Drainage Act (8 & 9 Vict, o, 56) ; see Waters v. Earl of Shaftesbm-y, 2 L, K. Ch. 231 ; Daniell, 1871 ; Seton, 527. (The order 4 March, 1846, as to the practice under this Act, though not abrogated, is practically obsolete ; see note (6), p. 362, post). 5. Under the Trmtee Acts of 1850 and 1852 (see head (4) next page). 6. For the administration of estates under the Act of 15 tk 16 Vict. c. 86 ; see note (p), p. 203, post, or under Sir G. Turner's Act, note («), p. 126, ante. 7. Under the Legacy Dviy Act, p. 65, ante, for payment of money out of Court (see head (2), next page, but compare sect. 5 of the County Courts Act, 1865, Appendix, p, xc. post). 8. For time to plead, answer, or demur (see Ord, XXXVII, 8, p, 569, post), and for time generally, see note (s), p, 572, post : but when the time originally given has expired, the application is by motion, p, 530, post, head (12), 9. For leave to amend bills (notes (Z) and (o), pp. 411, 2, post), (or to file a supplemental answer). 10. For enlarging publication, or the time for closing evidence (see note (Jc). p. 191, post). ^ ^ " 11. For the production of documents (see notes, p. 172, post). 12. Relating to the condttct of suits or matters (see note (/) infra). 13. As to matters connected with management of property (note (g) infra). 14. For payment into court of purchase-monies under sales by order of tlu eowt, and investing the same ; see Ord. XXXV. 13, p. 548, post. (B) 18 & 19 Vict. 0. 134, s. 16 (p. 235, post), enacted (removing the doubt expressed in Re Rye, 1 Jur. N. S. 222,) that "whereas the Court of Chancery was empowered to make orders in respect of the disposition of trust funds and other matters under its control in a summary way upon petition or motion, but not upon application in chambers; the business to be disposed of in chambers should comprise such of the said matters as any general order should direct ;" and accordingly it was directed by Ord. XXXV. 1, p. 544, post, that the business to be disposed of in chambers shall also comprise : MASTER IN CHANCERY ABOLITION ACT. 147 (1.) Applications iot payment to any person of the dividends or interest 15 & 16 Vict, of any stocks, funds, or securities standing to the credit of any cause o. 80 s. 26.' or matter depending, to the separate acoount of such person (see note • " ' ' (J), p. 544, post). Payment out of (2.) Applications tuder 36 Geo. 3, c. 52, a. 32 (The Legacy Dviy Act, dividends; d. 65, ante), -where the sum paid into the bank or the stock transferred Orders under into the name of the Accountant- General, does not exceed three him- Legacy Duty dred pounds cash, or stock, as the case may be (see head 7 last page). Act ; (3.) Applications under the Trustee EeUef Acts, in all cases where the or trust fund does not exceed three hundred pounds cash, or stock. Trustee (4.) Applications under the Trustee Acts, in all cases where any decree Relief Acts ; or order shall have 6ee» made by the Court for the sale or conveyance Vesting of any lands, manors, messuages, tenements, or hereditaments, cor- orders under poreal or incorporeal, of any tenure or description, whatever may be Trustee Acts ■ the estate or interest therein, (see note (h), p. 96, ante). ' N.B. Vesting orders in pursuance of ordinary petitions under the Act may be obtained by motion, p. 630, post, head (4). (5.) Applications on behalf of 4mf ants under 1 Wm. 4, c. 65 (Property under Property Law Amendment Act), ss. 12, 16, & 17, where the infant is a ward Amendment of the Court, or the administration of the estate of the infant or the ^''* *^ *" maintenance of the infant is under the direction of the Court. infants. (C) To these must now be added — (6.) Applications for special orders for taxation or reviewal of taxation, (C) Later Act (Ord. 2nd Aug. 1864, p. 648, post, and see note {I), p. 693, post). See and Orders. as to special orders for taxation, notes (z), p. 23, and (e), p. 24, ante. Taxation of (7.) Applications for new trustees of, and other relief relating to chm-i- ^ostg ties, see lie Chamberlain's Charity Estates, 1 W. R. 15, S2 ; Be . ' , ... Caddich, 9 Hare, App. ix. ; Re Hanson, ibid. It. ; but see as to -^^ ™ chanties. the Charity Commissioners jurisdiction, note (o), p. 98, amie, and Lewin, 406. (8.) Applications by mortgagors under the Mortgage Bebenture Act, Mortgage 1865, for discharge of their incumbrances by a company, and for a Debenture Act, receiver in default of payment ; (see Daniell, 1900.) 1865. (9.) Applications to appoint an umpire in cases of arbitration under Arbitration. the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, s. 12. (10.) Applications for transfer of suits from a county court to the High Transfer /j-om Court of Chancery, under sect. 3 of the Act of 1865 (Appendix, p. Ixxxix. post), or from the High Court of Chancery to a county court, or to a county under sect. 8 of the Act of 1867 (Appendix, p. xcv. post). court. (D) Finally, sect. 11 (supra) of this Act provides for the dispatch in (j)\ prosecution chambers of snoh part of the businessof the court as can be there heard without .f degrees and detriment to the public advantage, and see sect. 27, infra, as to adjournment preliminary into chambers. _ inquiries. For cases in which preliminary inquiries are ordered, see notes on Ord. XX. p. 469, post, and for the procedure in chambers under decrees generally, see Ord. XXXV. p. 545, post, and Appendix, p. liii., post, and under decrees in specific performance, partnership, foreclosure, and other suits, Daniell, 1129, et seqq. Under this head come also many kinds of applications, arising in the course applications in of proceedmgs wnder decrees amd orders in chambers; e.g., to vary the chief the course of clerk's certificate, note (q), p. 154, post ; and for leave for persons, who have such prosecu- not been served with notice of the decree, to attend proceedings in chambers tion, e. g., to (the order for leave to attend, by persons who have been served with notice vary certificate, of decree is obtained on motion or petition of course (Seton, 46) ) ; leave to or for leave to bring in a claim after the time fixed by advertisement, and before the certifi- attend proceed- cate is signed, see Ord. XXXV. 43, p. 558, post, or for directions as to ings, &c. accounts, &c., see note (r), p. 218, post, or for stop orders where assignor and assignee consent, p. 607, note (o), post. (/) Applications which may be made as to the conduct of a cause in chambers AS TO CON- are such as the following : — DUCT OF (1.) For directions in which of two smts proceedings shall be carried on, CAUSES : Norvall v, Paseoe, 10 W. E. 338 ; Belcher v. Belcher, 2 Dr. & Sm. where two I 2 suits; 148 MASTER IN CHANCERY ABOLITION ACT. 15 & 16 Viot. u. 80, a. 2(i. •where solicitor is changed ; or not duly qualified. Security for costs. Conduct of next friend. Motions. UAXAOE- MENT OF PBOPESTY. Receivers. Accounts, in- quiries, sales, &o., under decree. Allowance before decree. For change of investments. Payment into court, and re- investments Under Infants' Settlement and Settled Estates Acts. Transfer of Land Act. Trustees' management. 444 ; and see note (a), p. 393, post, as to the course where two suits for a similar object are instituted in different branches of the cou/rt. (2.) For conduct of the suit on account of plaintiff's negligence, Ord. XXXV. 22, 23, and note (?/), p. 553, post, or where a solicitor is changed, Topping v. Searson, 2 H. & M. 205 ; and see BuUin v. Arnold, 1 H. & M. 715, where one of several plaintiffs' refused to concur in appointing a new solicitor ; and see as to orders to change solicitors, Ord. III. 3, and notes, p. 386, post. (3.) To annul proceedings because the soUoitor was aot duly qualified. Sparling v. Brereton, 2 L. R. Eq. 64. (4.) That the plaintiff may give security for costs, Tymte v. Hodge, 2 J. & H. 692 ; and see note (/) to Ord. XL. 6, p. 578, post. (5.) For inquiries as to conduct of next friend, Piffard v. Beeby, 1 L. R Eq. 948 ; and appointment of new next friend, Daniell, 81. (6.) As to the manner of taking evidence under Ord. 5th Feb. 1861, rr. 3, 11, 19, 21, pp. 620—627, post, or for a special examiner, p. 186, post. (7.) For leave to amend, &o., (see heads 8, 9, 10, p. 146), or to substitute service (see note (6), p. 419, post), or to enter appearance for absconding defendant (see note (h), p. 423, post). N.B. Applications which can be made by motion or petition ex parte and of course, must not be made in chambers, Seton, 48, see pp. 529, 530, posi. (g) The following applications connected with the management of property may be made at chambers : — (1.) Respecting receivers of property, when once appointed, see note (a), pp. 499, post ; for inspection of mines, &c., in the course of a suit. (2.) For sales under a decree (see Ord. XXXV. 13, et seqq, p. 548, post), e.g., for sale by private contract; or for a sale before decree under sect. 55 of 15 & 16 Vict. o. 86, p. 219, post. As to ordering a sale in a partition or other suit where infa/nts are inte- rested, see HiMard v. Huibwrd, 2 H. & M. 38 ; Eiclcards v. Bickards, 15 W. R. 380. (3. ) For an allowance out of money in court imder the 57th section of the 15 & 16 Vict. c. 86 (see note (a), p. 221, post). (4.) For change of investments under the 23 & 24 Viot. c. 38, s. 10 (p. 290, post) (Ungless v. Tuff, 9 W. R. 729). (6.) For payment into court of purchase-money under decrees (head 14, p. 146), and for reinvestment in land of the purchase-money of lands belonging to a cha/rity, which had been paid into court (see head 7, last • page), or of monies paid into court under the Defence Act, 23 & 24 Vict. c. 112 (Me Maynard's Trusts, 9 W. R, 330). (6.) For directions under the Infants' Settlement Act, or as to adver- tisements under the Settled Estates Act (20 & 23 Regnl. as to busi- ness, Aug. 1857, Appendix, pp. Iv., Ivii. post). (7.) For registration or sale under the Transfer of Land Act, see 25 & 26 Vict. e. 63, s. 41, and note (h), p. 322, post. (8.) For leave for trustees, made parties to a suit (see Daniell, 1156), to grant and renew leases (see Bichford v. Chalker, 21 L. T. 192); to do repairs, cut timber, drain, employ an agent or valuer, enfranchise copyholds, redeem land tax, concur in a sale of a mortgaged estate, (Seton, 45) ; to invest in land under a settlement or will (Seton, 492) ; to bring or defend actions (Daniell, 1156). A petition is not necesflarily improper in such cases, Twner v. Tvmer, 30 Beav. 414. XXVII. It shall be lawful for the Master of the Eolls Judges may adjourn from open court to and every of the Vice -Chancellors respectively when sitting vice «cni,'t°he ™ °P^" court to adjourn for consideration in chambers (7i) consideration any matter which, in the opinion of such iudge, mav be of any matter, j o > j MASTER IN CHANCERY ABOLITION ACT. 149 more conveniently disposed of in chambers, or, when 15 & 16 Viot. sitting in chambers, to direct any matter to be heard in ~ ' °" ' open court -which he may think ought to be so heard (i). (h) It is unnecessary, on an adjoumment into oLambers, to insert a direction Special direc- for liberty to state special circumstances in a decree or order (note (c), p. 144", tiona when sapra). But where a plaintiff is allowed to go into evidence in chambers, necessary. in support of a point in his case raised at the hearing, but which formed no part of the prayer in his bill {e.g., whether valuable consideration was really given, when the settlement under which he claims is primd fade voluntary), there must be an order drawn up directing the inquiiy, and the case cannot proceed before the chief clerk on a simple adjournment into chambers {Kelson V. Kelson, 9 Hare, App. Ixxxvi. ; and see note {v), to Ord. XXZV. 19, p. 550, post). When a cause is adjourned to chambers, the reservation of costs is im- Costs reserved plied, without an express direction to that efifeot ( Wallis v. Bastard, 2 W. without special R. 47 ; and see Leeds v. Lewis, 3 Jnr. N. S. 1290) ; so too, when vice nersd, direction, the cause is adjourned into court {Dichen v. Homer, 2 L. T. K. S. 276 ; see Re Fellows, 2 Jur. N. S. 62, from which it seems that a petition ought not to ask for the costs "incidental to an inquiry" in chambers generally), and see next page as to costs of proceedings in chambers generally. When a cause is adjourned to chambers, or any directions are given in court Practice on to be acted on in chambers, a registrar's note must be obtained, 3rd Judges adjournment Regal. Aug. 8, 1857, Appendix, liii. , post. into chambers. See farther as to proceedings on adjournment into chambers, Daniell, 1208. (») For the practice as to adjourned summons to take the judge's opinion on any point in the certificate, see post, sect. 33 and notes ; and as to adjourn- ment into court upon application to vary the chief clerk's certificate, see notes to sect. 34, infra, and see further, as to adjournment into court, note (c), p. 144, ante, and {w), p. 551, post. 3'he hearing of the case in court when adjourned, is only a continuation of the hearing in chambers {Leeds y. Lewis, 3 Jur. N. S. 1290), the case being generally brought on in court as a motion by the party who took out the sum- mons in chambers. And see Jaquet v. Jaguet, 7 W. R. 543, where the Master of the Rolls refused to hear in snpport of the summons a party who did not join therein. It is in the discretion of the judge to make a rule that he will hear Matters matters requiring Kispersonal attention (see note (i), p. 144, ante), in court and before judge not in chambers. Be AgricvUural Cattle Insurance Gompwny, 11 W. R. 330, heard in court 386. or in chambers. XXVIII. The mode of proceeding before the Master of Jf"^?,"^^?™;.^ the Eolls and Vice-Chancellors respectively at chambers jadges at , „ , , , 1 J. chambers to be shall be by summons, and as near as may be according ^^ summons as to the form now adopted by the judges of the superior »' ofm^oii law. courts of common law when sitting at chambers (/c). {Tc) As to the practice in chambers, see Ord. XXXV. pp. 543-562 ; and Practice in Eegul. as to business, Aug. 1867, Appendix, p. liii., post. chambers For forms of summons in chambers, see Appendix, pp. xxi. — ^xxiii., post, generally. and as to service of summons, Ord. XXXV. 5 — 8, p. 546, post, and as ,to appearances of parties summoned, Ord. XXXV. 9 — 11, p. 5i6, post. Where a matter stands over in judge's chambers, it is only adjourned, and Hearing and the costs of obtaining a new appointment, and giving notice thereof, will further con- be disallowed (Ord. XXXV. 14, p. 648, post, and Se Catlm,l&_ Beav. 612). sideration. See also, as to applying by summons for the further consideration of causes originating in chambers, 18th Regul. as to business, Aug. 1857 (Appendix, p. It., post). And where small leaseholds had been ordered to be sold, the 150 MASTER IN CHANCERY ABOLITION ACT. 15 & 16 Vict. 0. 80, s. 28. Counsel in chambers. COSTS IN CHAMBERS. Abandoned summons. APPEALS PROM CHAMBERS. , Appeal court will not vary orders made merely in pro- secution of a decree. But orders of an original nature made in chambers may be appealed from. Where counsel have been heard. Appeals from the judge's decision in chambers. proceeds were distributed among numerous parties, upon the certificate of the chief clerk, without adjournment, to save expense, the purchasers being served with a summons to show cause in chambers why the proceeds should not be distributed by the chief clerk (Thorp v. Owen, 2 Sm. & G. App. i.). Counsel are not heard in chambers before the chief clerk (Hippie v. Oorles, 22 L. J. Ch. 16); and see Ord. XL. 29, p. 589, post,_ which provides that the costs of counsel attending in judge's chambers are not in any case to be allowed, unless the judge certifies it to be a proper case to be argued by counsel, as to which see Wroughton v. Colquhoun, 1 De G. & Sm. 357 ; Russell v. Nicholls, 15 Sim. 151, The Master of the Rolls always certifies for counsel unless he declares the contrary (Oreville v. Greville, 27 Beav. 598 ; followed by V.-C. Wood in Graham v. Oraham, Jo. 624). The practice as to counsel being heard before the judge in chambers varies in different judges' chambers. As laid down by V.-C. Wood, the rule is that, if one side only desires to be heard by counsel, the application is heard in chambers : if both wish to be heard by counsel, it is adjourned into court (Sumbold v. Forteath, 3 K. & J. 44, 47). The Master of the Rolls, however, is in the habit of hearing counsel on both sides in chambers, while T.-C. Stuart and V.-C. Malins, as a general rule, decline to hear counsel at all in chambers (cf. generally, Marriaon v. Mwyor of Sovihampton, 29 L. T. 61 ; Exparte Bunn, 24 Beav. 137 ; Sudson v. Ca/r- michael, 18 Jur. 852 ; He Bermeit, 18 Jur. 33) ; and see infra, under head " where counsel have been heard." As to the costs of a creditor who succeeds in a claim before the chief clerk, see Ord. XL. 24, p. 588, postj and as to the costs of a creditor failing in a claim before the chief clerk, see Hatch v. Sewrles, 2 Sm. & G. 157 ; where it was held that the Court has jurisdiction to order them to be paid by the creditor, though he was originally not a party to the cause, and was prevented by the Court from proceeding at law (cf. Teaman v. Haynes, 24 Beav. 127) ; Bentley v. Beniley, 1 N. R. 390 ; and the Court ordered such unsuccessful claimant to pay the costs though an appeal was pending, Colyer v. Colyer, 10 W. R. 748. The taxed costs of an abandoned summons will be ordered to be paid by the party taking it out (Lister v. Bell, 5 Jur. N. S. 115 ; and see TucJcer v. Eeiyieman, 24 L. J. Ch. 456), and compare note (y), p. 587, post, as to costs of abandoned motions. For the mode of drawing up orders made at chambers, see sects. 14, 15, supra ; orders made in chambers are enforced by attachment, &c. see p. 513, post, and as to four-day orders, see Daniel], 1889, note. The Court of Appeal will not generally interfere with the discretion of judges at chambers, by allowing appeals from orders made in the course of prosecuting a decree. Re McVeagh, ID. J. S. 399; Snowdon v. Metropolitan Railway, ibid. 408. Thus, in CooJies v. Cookes, 2 D. J. S. 526, it was held that the Court of Appeal would not (except in extreme cases,) distrust the selection of a receiver by a judge, unless there was some objection of principle to the person affected ; and see Ley v. Ley, 27 L. T. 267 ; and Re AgricuUwHst Cattle Imu/i-ance Company, 3 D. F. J. 194; where the L.JJ. ordered the appoint- ment of a person selected by the chief clerk as official manager, to be dis- charged, without prejudice to the judge's reappointing him, if in the exercise of his discretion he thought fit to do so. But in a case where, but for this Act, the application and the order waald have leeti made in court, with a consequent right of appeal, an order made in chambers was allowed to be appealed from, Snowdon v. Metropolitan Railway Oompamy, 1 D. J. S. 408 ; Ridgway v. Newstead, 4 De G. & J. 15. Parties are entitled, in cases of this nature, to an opportunity of having their case m-gued by counsel if they think fit, and generally the Court of Appeal will decline to hear an appeal from chambers, unless the case has been argued by counsel below, StroughUl v. Gulliver, 1 De G. & J. 113; BvctcUmon V. Swift, 13 W. R. 532 ; but see Snowdon v. Metropolitan RaUway Com- pany, 1 D. J. S. 408. An appeal to the Court of Appeal must be from the certificate as a whole, i.e. when it is made an order of the judge by being approved by him after an application to vary. Therefore if any party has obtained the opinion of the MASTER IN CHANCERY ABOLITION ACT. 151 judge on any particular point under sect. 32, infra, and desires to appeal from 15 & 16 Vict such opinion, he ought to wait till the certificate is made and approved as a c 80 s 28 ' ■whole, and then move to vary it on account of the impropriety of the order ' on which it is founded, Rhodes v. Shades, 1 L. E. Ch. 483. Thus the prac- tice as to appeals to the Lords Justices from orders made by the judge in chambers, was stated by the Master of the Rolls in 7orh and North Midland Railway Company v. Hudson, 18 Beav. 70, 73, to be, that an application was made in court to vary the certificate (see sect. 34), when an order would be made, without further argument, to the effect of the decision in chambers, which order would enable the parties to appeal. See Rhodes v. Ibbetson, i D. M. Gr. 787 (where, under the circumstances, the pro formd application was made to the judge in chambers), and Saunders v. Druce, 3 Drew. 139 (where even the pro forma application appears to have been thought unnecessary). For the mode of prosecuting business in chambers during vacations, see Ord. XXXV. 58, 59, p. 661, post. XXIX. From and after the first day of Michaelmas ?°'^^^ *" *e term, one thousand eight hundred and fifty-two, the dire^t^ what Master of the Eolls and the Vice-Chancellors respectively Tn'f ',*"'■'. , -, tf J shall be heard snail have the sole power (subject to any rules which and investi- may be made by the Lord Chancellor with the advice feNe^^n?'"' and assistance of them or any two of them) to order what ■«'^»* ^7 *eir matters and things shall be investigated by and before their respective chief clerks, either with or without their direction, during their progress, and what matters and things shall be heard and investigated by themselves ; and particularly if the judge shall so direct, his chief clerks respectively shall take accounts^ and make such inquiries as have usually been prosecuted before the chief clerks of the present Masters ; and the judge shall give Eight to suitor such aid and directions in every or any such account or p°in"^efore inquify as he may think proper, but subject nevertheless the judge. to the right hereinafter provided for the suitor to bring any particular point before the judge himself (l). (I) As to the right of parties to see the judge personally, see note (i) to sect. 13 (p. 144, ante). It is in the discretion of the judge to hear matters, which he is called on to Judge may sit hear personally, in chambers, or adjourn them into court (as to which see sect, in court or in 27) ; Re AgricuUm-al, &c. Company, 11 W. R. 330, 386. chambers. See as to a compromise being held binding, though not brought before the judge personally. Re Some Counties' Life Assurance Company, Ex pa/i'te Qarstin, 10 W. K. 457. XXX. Each chief clerk shall, for the purpose of any Power to proceedings directed by the Master of the Rolls or any itlf advertist Vice- Chancellor to be taken before him, have full power ™ents and , . -T I • J I J • 1 ■ J summonses, to to issue advertisements, to summon parties and witnesses, administer to administer oaths, to take affidavits and acknowledg- 152 MASTER IN CHANCERY ABOLITION ACT. 15 & IG Yiet. ments (m) other than acknowledgments by married women, — — — — L to receive affirmations, and, when so directed by the judge the'judte'shall *° ^liose court he is attached, to examine parties and direct. witnesses either upon interrogatories or vivd voce, as such judge shall direct (m). Evldenoe used in chambers. Examination on interro- gatories. Examination of witnesses before the chief clerk. Sammous or Eubpcena ne- cessary. Depositions. Under Com- pany's Act, 1862. Examination of accounting party. Practice when party examined in chambers refuses to Examination before judge in person. (m) Aa to what affidavits may be used in chambers, see Ord. XXXV. 27, 28, p. 555, post, and note (e), p. 130, ante; and Basham t. Smith, 22 Bear. 190, and as to evidence in chambers generally, Daniell, 1078, Ayckb. 497. (k) As to examination of witnesses upon interrogatories, see Davey v. Dv/rant, 24 Beav. 411, 2 De Gr. & J. 506 ; Wmg v. Barvey, 17 Jur. 481 ; CrosJeey v. Ewropean, &c. Skipping Compam/, 14 W. B. 514. The practice as to examinations before the chief clerk is to be the same as in the case of the examination of witnesses before an examiner, subject to any special directions which may be given in any particular case. Ord. 2XXY. 30, p. 555, post. But the order of 5th Feb. 1861 (p. 620, post), only applies to causes where issue is joined, and hefore the hearing, see note (c), p. 621, and r. 15, p. 625, post; so that the rule as to each party's producing his own witnesses for cross-ex.amination does not apply to proceedings in chambers, Stebbing v. A blee, 2 Jur. N. S. 1161 ; Jenner v. Morris, 10 W. B. 640. Therefore if the examination is to lae before the chief clerk, he can enforce attendance by summons, and for form of such summons, see Appendix, p. xxiii. ipost. If the examination is before an examiner, a subpoena should be issued. See Ord. XXXT. 29, p. 555, post, and for form of subpoena, see Appendix, p. vii. post. See further as to the mode of examination before the chief clerk, Rogers v. Mmi,, lOHare, App. liii. (from which it seems that he need not take down the depositions in his own handwriting), Re London, Birmingham, and Suchs Railway Company, 6 W. E. 141. As to the power to examine witnesses in chambers in winding-up cases since the Company's Act, 1862, see Re English Joint Sloclc Bank, 3 L. K. Eq. 203,207. _ When an accounting party brings in his accounts in chambers, the other side may examine him vivd voce; but must give notice of the points on which they wish to examine him, Wormsley v. Stmt, 22 Beav. 398 ; Re Lord, 2 L. R. Eq. 605 ; see Ord. XXXV. 34, p. 556, post. In such „. ^ase the accounting party may be ordered to produce documents (fbid.). If a party examined in chambers refuse to give a sufficient answer, the judge should be asked to examine him personally, and if he then refuse to answer he may be committed at once, Hayward v. Hayward, Kay, App. xxxi. If the examination is by interrogatories, the first step should be to except to the answer, Oroshey v. Ewopeam,, &c. Shipping Company, 14 W. K. 514, and see Daniell, 1083. A witness has a right, if he wishes, to require that his examination should be conducted before the judge and in person {Re London and County Assu- rance Company, 5 W. R. 794, and see note (6), p. 144, ante; and cf. HmywmA V. Haywa/rd, \. c. ; Re Borne OomUies Life Assurance Company, 10 W. K. 457 ; Re Agriculturist Cattle Insurance Society, 3 D. F. j; 194 ; Ex parte Bunn, 24 Beav. 137, where on a witness refusing to be sworn before the chief clerk, on the ground that he required the assistance of counsel, it was held, on a motion to commit the witness, that the proper course was, after he was sworn, to apply that his examination might be taken before the judge, or an examiner, or, if necessary, that the case might be adjourned into court). See, too. Re the Esgair Mwyn Mining Company, 8 W. R. 669, where it was held, that, although the chief clerk had power in a winding-up case to summon a witness before him until the list of contributories was definitely settled, yet a motion to commit such witness for refusing to attend could not be enter- MASTER IN CHANCERY ABOLITION ACT. 153 tained until sucli refusal had been certified by the judge in chambers under the 15 & 16 Vict 11 & 12 Vict. c. 45. 0. 80, a. 80. In one case, witnesses, who had been examined before the hearing, upon interrogatories, were examined again vivd voce, before the chief clerk, as to Examination the same matters (Rogers t. Mart, 10 Hare, App. liii. Cf. Hextall t. Cheadle, first in Court, 1 Sm. & G. 78 ; Routh or Rootk v. Tomlinson, 16 Beav. 251). and again in No special order is required for the transfer of a witness's examination from chambers, chambers to the examiner's office {Stebbing v. Atlee, 26 L. J. Ch.-255). Transfer of , , examination to XXXI. Parties and ■witnesses so summoned shall be examiner's bound to attend in pursuance of any such summons ; and p *?.' . shall be liable to process of contempt, in like manner as not attending parties or witnesses are now liable thereto in case oi cesalum-"' disobedience to any order of the said Court, or in case of t^mptandto default in attendance, in jjursuance of any order of the said false swearing. Court, or of any writ of subpoena ad testificandum (o) ; ^■ and all persons swearing or affirming before any such chief clerk shall be liable to all such penalties, punish- ments, and consequences for any wilful and corrupt false swearing or affirming contained therein as if the matters sworn or affirmed had been sworn and affirmed before any person now by law authorised to administer oaths, to take affidavits, and to receive affirmations. (o) See notes to preceding section. A writ of habeas corpus may be issued Prisoner how to bring up a, prisoner under a common law process, whose attendance is brought to required in chambers (Buckendge v. Whalley, 6 W. E. 180). chambers. XXXII. The directions to be given by the Master of Kesnit of the Eolls or any Vice-Chancellor for or touching any tefore chief proceedings before his chief clerk shall require no par- "^^'^j-'j^ ticular form, but the result of such proceedings shall be form of short stated in the shape of a short certificate to the judge (p), °*^' °***' °' and shall not be embodied in a formal report, unless in any case the judge shall, see fit so to direct ; and when the judge shall approve of such certificate or report he shall sign the same in testimony of his adopting the same. (p) As to the practice of attending to settle the certificate, see Daniell, 1239, Ord. XXXV. 26, p. 554, post, and as to giving notice to parties served with the decree, see note (c), p. 197, post. The chief clerk's certificate is not a judgment so as to carry interest, Form of chief note (/), p. 6, ante. clerk's certi- The certificate is not to set out the decree or order on which it is founded, ficate. but is to refer to it as directed by Ord. XXXY. 47, p. 669, post. See schedule M. for form of certificate, Appendix, p. xxir., post. In cases of account the certificate is not to set out the account to refer to In cases of it as directed by Ord. XXXV. 46 (p. 658, post). account. 154 MASTER IN CHANCERY ABOLITION ACT. 15 & 16 Vict. Where the chief clerk referred the accounts to an accountant (under sect, c. 80, s. 32. 43), and filed his report as part of the certificate, it was held irregular, Hill V. King, 9 Jur. N. S. 627 ; and see Be Agriculturist Cattle Insurance Society, 3 D. F. J. 194. Chief clerk The certificate may state facts and reserve the point to which they refer for may state facts the consideration of the Court, Stott v. Mecmoch, 10 W. R. 605. and reserve A certificate which finds an amount to be due should be in such a form as to point. enable the Court to ascertain in what way the amount found due was arrived But must state **i ^•'''i therefore, where an inquiry had been directed as to what was due the grounds of f™™ ^^^ defendants to the plaintiff for work done and materials supplied under the result several contracts, and the chief clerk by his certificate simply stated the arrived at. amounts which he found due on the several contracts, without giving any further particulars or stating the grounds for his conclusion, the certificate was dis- charged without prejudice to any questions, M'Iniosh v, Oreat Western Rail- way Cotryaamy, 1 D. J. S. 443. No exceptions XXXIII. No exceptions shall lie to any certificate or ficate, &c, report of tlie chief clerk, although signed and adopted by Parties at the judge; but any party shall, either during the pro- opinion of * ^ ceedings before such chief clerk, or within such time after judge upon any guch proceedings shall have been concluded, and before particular 7 • ' •/ point. the certificate or report shall have been signed and adopted, as the Lord Chancellor shall by any general order direct (q), be at liberty to take the opinion of the judge upon any particular point or matter arising in the course of the proceedings, or upon the result of the whole proceeding, when it is brought by the chief clerk to a conclusion (r). (?) The application under this section is by motion, Solertson v. Norris, 1 Qiff. 428, or (more usually) by summons, see Daniell, 1241 : and see Comer V. Everitt, 2 W. E. 388. _ _ The time is four clear days, Ord. XXXV. 48, 49, p. 559, post. Objections The objections to the chief clerk's finding should, if possible, be taken before when and how the certificate is made, and at once referred to the judge in chambers, so as to to be made save expense (Parr v. Zovegrove, 6 W. R. 201). So also in HallUey v. Ben- to the judge, derson (4 Jur. N. S. 202), it was held that a summons taken out by a creditor after the chief clerk has made his certificate, should be referred to the judge in chambers, and not adjourned into court. See Ord. XXXV. 43, p. 558, post. The opinion of the judge as to the principle on which an account should be taken was obtained by motion, Robertson v. Norris, 1 Giff. 428 : and see Twyford v. Traill, 3 M. & C. 650, there cited. (!■) See for the practice of taking the judge's opinion on the certificate as a whole, MorgoM v. Eatchell, 19 Eeav. 86 ; Daniell, 1241. Sn'edMd*'"' ^^^^^- ^^^'^ ^^y certificate or report of the chief adopted by clerk shall have been signed and adopted by the judge the .S'p'frtS ^^""^ ^^^^^ ^^ ^^^ ^^ ^^ manner as reports are now unless dis- filed, and shall thenceforth be binding on all the parties to charaeo. at ±\ i • / \ i . varied. ^^^^ proceedmg^ (s), unless discharged or varied, either at chambers or in open court, according to the nature of the MASTER IN CHANCERY AEOLITION ACT. 155 case, upon application by summons or motion (t) within 15 & 16 Viot. such time as shall be prescribed in that behalf by any — — — — 1- general order of the Lord Chancellor (u) ; and nothing herein contained shall prejudice or affect the power of the Court at any time to open any such certificate or report upon the same or the like grounds as any report of a Master of the said court which has been absolutely confirmed may now be opened (u). (s) The fact of a claim being disallowed by the chief clerk in one snit, was held Certificate, no bar to its being prosecuted in another, Teed v. Beere, 7 W. R. 394; but how far an see contrd,, Thomas v. Griffith, 2 (Jif. 504, aifirmed on appeal to full Coui-t, estoppel. 2 D. P. J. 562. See, however, a* to new claimants coming in after the certi- ficate is adopted, note (p), p. 547, post, and before it is adopted, note (?), supra. (t) The usual mode of proceeding to vary n- certificate is by summons ; Application to and the Court will not yary a certificate on farther consideration, unless objected vary how to in the usual way [LamJie v. Orton, 8 W. R. Ill, where it was said the oerti- made, ficate was to be treated as a Master's Report under the old practice, which was not allowed to be challenged unless excepted to in the proper way ; see, too, Sotherham v. Batteson, 2 W. R. 340). The application to vary will be ad- journed into court, if necessary, Seton, 55. If the cause is coming on to be heard on further consideration, such hearing Coming on and the application to vary will come on together, Orompton v. Hviber, 3 W. with further E. 347 ; Hudson v. Carmichael, 18 Jur. 852. And where such hearing and consideration, application to vary come on together, it may be necessary to appeal from the order as a whole, see Bloxam v. Whipham, 8 W. E. 2. And as to appeals from the judges' decision on application to vary, see note (Tc), ante. When there was error apparent in the chief clerk's certificate, and the decree Where error is founded thereon, the Court altered and corrected both the decree and the oerti- apparent, ficate, without a rehearing, notwithstanding this section and Ord. XXXV. 52 (p. 560, post) {Oradock v. Owe^i, 2 Sm. & G. 241) ; and cf. Purcell v. Man- ning, 3 Jur. N. S. 1070 ; where, in a somewhat similar case, the Court gave leave to move to vary the chief clerk's certificate, and to present a petition of rehearing. As to rectifying a direction to take accounts on rehearing, see Pennell v. Millar, 23 Beav. 172. ■Affidavits not used before the chief clerk cannot be used on applications to Evidence on vary his certificate. Re Hooper, 9 Jur. N. S. 570 ; and see Whitworth v. application to Whyddon, 2 M. & G. 56 ; Fleming v. East, Kay, App. lii. Nor is cross- vary, examination allowed on those affidavits which were used before him, Dawhins V. Morton, 10 W. R. 339. (a) The time is eight clear days from the filing of the certificate, Ord. XXXV. Time for sum- 52, p. 560, post, except in cases of certificates to be acted upon by the Ac- inous to vary countant-General without further orders, in which case the time is two clear certificate, days from the filing, Ord. XXXV. 53, ibid. ; and certificates passing receiver's accounts may be approved and acted on at once, Ord. XXXV. 54, ibid. Where the summons had been obtained within the eight days, even though not returnable until after that time, it was held sufficient { Wyehei ley v. Barnwrd, John. 41) ; and where it is impossible to move on a seal day within the eight days the Court allows, the motion to be made on a day not a seal day, and to be To be obtained saved till next seal, Gross v. Maltby, 8 W. R, 646. The eight days run during within eight vacations {Ware v. Watson, 7 D. M. G. 739 ; and see Re Jones, 8 W. R. 56). days. * When a motion was made for payment of money found due on a certificate before the eight days had elapsed, the Court ordered the motion to stand over till the expiration of that period {Doidhwaiie v. Spensley, 18 Beav. 74). (v) After the eight days have elapsed a certificate cannot be discharged or Varying after varied, except under very special circumstances {Howell v. Rightly, 8 D. M. eight days. 156 MASTER IN CHANCERY ABOLITION ACT. Error appa- rent rectified after the eight days. Practice of opening bid- Abolished by 30 & 31 Vict, c. 48, SB. 7—9. Except in cases of fraud. 15 & 16 Vict. G. 325), for the certificate, whateTer effect it may have on the hearing on further c. 80, s. 34, consideration, is conclusive against parties, vrho have neither taken out a summons nor moved to have it varied (Smith v. Armstrong, 6 D. M. G. 160 ; see Jaquet v. Jaquet, 7 W. E. 543 ; Leigh v. Tui-ner, 14 W. B. 36) ; and a certificate signed and approved by the judge becomes, at the expiration of such eight days, equivalent to a report absolutely confirmed under the old practice (Ware-T. Waison, 1, e.). See Cradoch v. Owen, 2 Sm. & G. 241, as to varying error apparent in the certificate after the eight days without a rehearing, and as to rectifying directions to take accounts on a rehearing, see Pennell v. Millar, 23 Beav. 172; and generally, as to appeals from orders made in chambers, see notes p. 150, ante. Before the eight days have elapsed an application to reopen biddings might formerly be granted (Bridger v. Penfold, IK. & J. 28 ; Oshome v. Foremwn, 8 D. M. Gf, 122 ; 6 H. L. Cas. 556 ; Waterhouse v. WUUmon, 1 H. & M. 636 ; Ewimg v. Waite, 1 L. K. Eq. 440) ; but this practice is now abolished by the "Sale of Land by Auction Act," 1867 (30 & 31 Vict. e. 48), sect. 7, which enacts that, "The practice of opening the biddings on any sale by auction of land under or by virtue of any order of the High Court of Chancery shall, fi:om and after the time appointed for the commencement of this Act (viz., Aug. 1, 1867), be discontinued, and the highest hand fide bidder at such sale, pro- vided he shall have bid a sum equal to or higher than the reserved price (if any), shall be declared and allowed the purchaser, unless the Court or judge shall, on the ground of fraud, or improper conducT in the management of the sale, upon the application of any person interested in the land (such appli- cation to be made to the Court or judge before the chief clerk's certificate of the result of the saJe shall have become binding), either open the biddings, holding such bidder boimd by his bidding, or discharge him from being the purchaser, and order the land to be resold upon such terms as to costs or otherwise as the Court or judge shall think fit." Sect. 5 of the same Act enacts, "That the particulars or conditions of sale by auction of any land shall state whether such land will be sold mthoui reserve, or subject to a reserved price, or whether a right to bid is reserved ; if it is stated that such land wiU be sold without reserve, or to that effect, then it shall not be lawful for the seller to employ any person to bid at such sale, or for the auctioneer to take knowingly any bidding from any such person." As to reserving biddings in chambers, see 13 & 14 Judges' Kegul., Aug. 1857, Appendix, p. Iv., post. Where a certificate made under a decree has been discharged, a fresh one may be obtained by summons. Cross v. Maltby, 8 W. R. 646, [Section 35 repealed sections 13, 14, and 15 of 8& 4Wm. 4, c. 94, which gave the Masters power to dispose of some of the business now to be disposed of in chambers.] XXXVI. From and after the first day of Michaelmas term, one thousand eight hundred and fifty-two, all or any of the powers, authorities, and jurisdiction given to the Masters in Ordinary of the said court by any Act or Acts then in force may be exercised by the Master of the EoUs and Vice-Chancellors respectively, [Sect. 37 gave power to the judges to dispose in open court of causes, &e. then pending before the Masters.] Power to^ XXXVIII. It shall be lawful for the Lord Chancellor^ ceilor, with ^'^^^ the advice and consent of the Master of the EoUs advice, &c., and Vice- Chancellors, or any two of them, and they are Rule respecting sale without reserve, &o. Summons for fresh certifi- cate. All powers possessed by Masters to be exercised by judges. MASTER IN CHANCERY ABOLITION ACT. 157 hereby required, forthwith to make and issue general 15 & 16 Vict. rules and orders for regulating the times and form and ''" ' ' mode of procedure, before the Master of the Rolls and ^ake fvJes'and Vice-Chancellors respectively sitting at chambers, and "■^•^^rs for ., . . 1 . P 1 , , „ , . „ regulating the their respective chiei clerks, and generally the practice of mode of pro- the said court in respect of the matters to which this Act chambers relates, and for regulating the fees and allowances to payment of solicitors of the said court in respect to such matters, ^^^' ' and also for regulating the fees to be payable by suitors of the said court to the officers thereof in respect of the business to be conducted before the Master of the Rolls and Vice-Chancellors respectively sitting at chambers, and their respective chief clerks ; and such rules and regulations may from time to time be rescinded, altered, varied, or added to by the like authority ; and aU such rules and regulations as aforesaid shall take effect as general orders of the said court : Provided always, that no greater amount of fees shall be payable by the suitors of the said court to the officers thereof, in respect of the business to be conducted before the Master of the Rolls and the Vice-Chancellors respectively sitting at chambers, and their respective chief clerks, than is now levied in respect of similar or analogous business in the Master's offices. [Sect. 39 related to the conduct of business then pending before the Masters.] XL. From and after the first day of Michaelmas term, po^g,, to one thousand eight hundred and fifty-two, it shall be i^^s^f at , , chambers to lawful for the Court or for any judge thereof when sitting take the at chambers to receive and act upon the opinion of con- "eyancLig °°°' veyancing counsel in actual practice, to be nominated as counsel in hereinafter mentioned, in all cases in which, according j^j.^ to the present practice of the court and of the Master's office, it has been usual for the Master to require or receive the opinion of conveyancing counsel for his aid and assistance in the investigation of the title to an estate, with a view to an investment of money in the purchase or on mortgage thereof, or with a view to a sale thereof {x), or in the settlement of a draft of a conveyance, mortgage, settlement, or other instrument (y), or otherwise, and in 158 MASTER IN CHANCERY ABOLITION ACT. 15 & 16 Yiot. such, other cases as the Lord Chancellor shall by any — — — — '— general order direct ; but it shall be competent for any fbj^ort™B*uch P^% *° ol>Ject to any opinion of any such counsel when opinion, which he shall deem it open to objection, and thereupon the potedofin" point in dispute shall be- disposed of by the Court, or by chambers or the judge sitting in chambers, according to the nature of open court. ., the case. Eeferenoe lo conveyancing counsel. Under Lauds Clauses Act and Settled Estates Act. Discretion as to employing conveyancing counsel. Procedure where infants, &c., are inter- ested. When dis- pensed with. Model convey- ance. Or lease. Deeds how settled by con- veyancing counsel. Power to Lord Chancellor to (it) For the mode of obtaining the opinion of conveyancing counsel of the Court of Chancery, see Ord. II. 3, p. 384, -post ; and as to referring to them on sales under the order of the Court, see 15 & 16 Vict. c. 86, s. 56, p. 220, foit ; and as to their fees, see notes (c) and (d), p. 690, and (/), p. 59), ^os?. The judge in chambers will, in a proper case, direct the opinion of one of the conveyancing counsel to be taken, Yates v. Plwmhe, 2 Sm. & G. 174. For the practice as to reference to chambers and the conveyancing counsel on reinvestment in land under the Lands Clauses Act, sect. 69, see note (g) p. 37, ante; and on sales under the Settled Estates Act, see note (n), p. 241, post. (y) In ordinary cases, where a deed has to be approved by the Court, the Court has a discretion (see notes to 15 & 16 Vict. u. 86, o. 66, p. 220, post), whether it will refer a matter to the conveyancing counsel or not, see Slaucland V. Blaxlamd, 9 Hare, App. Ixviii. ; but as a general rule, where infwnts, or persons under disability are concenied, the title is referred to, or the conveyance settled by, the conveyancing counsel. And as to the manner of settling deeds to be executed by incapacitated persons, under the decree of the Court, the consideration monies having been paid into court, see Baney v. Broolce, 9 Hare, App. xi. ; where it was held that the cause might stand over, and on its being again in the paper, the plaintiff being prepared with an affidavit of the correctness of the engrossment of the deed, and the certificate of the Accountant- General of the payment of the money into court, the Court would direct the registrar to sign a memorandum that the deed produced was the deed to be executed by the incapacitated person. The deed Is first sent to the judge's chambers, and then to the conveyancing counsel (Re Bennett, 18 Jur. 33 ; see Pegg v. Wisden, 16 Jur. 1106). And similarly, where a sale or lease of lands in which infants, &c., are inte- rested, is ordered under the Settled Estates Acts, Re Eyre, 4 K. & J. 268. Or where a wife's equity to a settlement Is decreed. But where the expense of a reference to the conveyancing counsel would have been out of proportion to the amount to be settled, the trusts were inserted in the order on the petition. Chamberlain v. Chamberlain, 1 Sm. & GifF. App. xxviii. ; nor is it an imperative rule, that the title of land in which the purchase monies of settled lands are about to be invested must in every case be laid before the conveyancing counsel of the court {Re Jones, 7 W. B. 171 ; for form of order in which, see 7 W. K. 523 : and see Gibson v. Wollard, 5 D. M. G. 835). And where land is wdered to be sold in lots, and one conveyance has been settled by the conveyancing counsel, it may be adopted by the chief clerk for all the rest inEwhioh no special circumstances exist to render such a course inconvenient. Re Eyre, 4 K. & J. 268. And as to model leases under the Settled Estates Act, see note to sect. 10 of that Act, p. 255, post. As to the manner of settling deeds to be executed by incapacited person^ under the decree of the Court, see Harvey v. Broolce, 9 Hare, App. xi, ; Re Bennett, 18 .Tur. 33 ; Pegg v. Wisden, 16 Jur. 1105. XLI. It shall be lawful for the Lord Chancellor to 3VtA.STER IN CHANCERY ABOLITION ACT. 159 nominate any number of conveyancing counsel in actual 15 & 16 Yiot. practice, not less than six, who shall have practised as such ^ !_!: L_ for ten years at least, to be the conveyancing counsel {z) fes^than s"ix' upon whose opinion the Court, or any judge thereof, may conveyancing act in any of the cases last before mentioned, and to supply years' practice, vacancies in such list from time to time, and to distribute *"• the business among such counsel in such order and manner as to the Lord Chancellor shall seem fit (a). (s) The present conveyanoing oounael are Mr. Hayes, Mr. Lewin, Mr. Dart, Mr. Brickdale, Mr. Yaugliau Johnson, and Mr. Charles Hall. (a) The Court -will not generally direct a reference to one conveyancing Reference to connsel in particular {Re Martin, ^2 L. J. Ch. 248) ; but it may do so where one counsel in the circumstances of the case render it expedient, Ord. II. 5. As to the particular, mode of distribution generally, see Ord. IL 1, 2 — 4, 5, p. 383, post, XLII. It shall be lawful for the said Court or any Power to judge thereof, in such way as they may think fit, to obtain ass^'t°„o/of the assistance of accountants (&), merchants, engineers, accountants, actuaries, or other scientific persons, the better to enable ' such Court or judge to determine any matter at issue in any cause or proceeding (c), and to act upon the certificate ~ of such persons {d). (&) The scale of charges allowed for an accountant in chambers is the same Costs of as that allowed by the general orders in bankruptcy, Meymott v. Meymoit, 33 accountant. Beav. 590. See as to the employment of accountants, Jte London, Birmingham, and Bucks Maihiiay Oompaaiy, 6 W. E. 141. It seems they need not always be employed in the presence of the parties {ibid.). (c) See note {b) to sect. 2 of Lord Cairns' Act (p. 261, post), as to award- 21 & 22 Vict. ing damages in Chancery ; and as to the effect of the powers given by this c. 27. section in extending the jurisdiction of equity in questions of damages, &c., see M'Intosh v. (Phe Great Western SaUieay Crnn/pamy, 3 Sm. & G. 146 ; and comp. Stokes v. City Offices Coimpamy, 13 W. E. 537 ; but see s. c. 11 Jur. N. S. 560 ; Mildmay v. Methuen, 1 Drew. 215 ; and the other cases cited in note (c) to sect. 10 of this Act. {d) As to the form of the chief clerks' certificate, where such assistance has been employed, see note to sect. 32. XLIII. The allowances in respect of fees to such con- Taxing veyancing counsel, accountants, merchants, engineers, ^g„iate fees actuaries, and other scientific persons shall be regulated to conveyanc- by the taxing master of the said court, subject to an fe,°8ubject to appeal to the judge to whose court the cause or matter appeal. shall be attached, whose decision shall be final (e). (c) This section does not authorise a reference to the taxing-master of accounts not connected with bills under taxation (per L. J. Turner, in King v. Savery, 8 D. M. G. 311). See note (h), p. 576, post. 160 MASTER IN CHANCERY ABOLITION ACT. 16 & 16 Vict. [The sections omitted relate exclusively to the salaries and pensions of the c. 80, s. 59. judges, chief and junior clerks, and other officers of the court (see p. 145, lathing to LIX, Nothing herein contained shall prejudice or rights, &c., of affect the rights, duties, or privileges of the Accountant- Generai afa ^^eneral of the said Court of Chancery as a Master in Master in Ordinary of the said court, or any salary or other pay- ' ™"^' ment payable to the said Accountant-General as such Master in Ordinary, or his right or title to any retiring allowance under any Act or Acts of Parliament now in force, nor shall the said Accountant-General be called upon or required to do or perform any duties or services as such Master in Ordinary', other than such as are now usually performed by him. The retiring LX. Whereas it has frequently happened that after cellor may" cases have been fully heard by the Lord Chancellor in deliver written the Court of Chancery, and are standing fer judgment, within six the Lord Chancellor [has delivered up the Great Seal weeks after his without being able, by reason of other urgent public resignation. , . . . f business, to deliver judgment therein, and much incon- venience and expense to the parties has been thereby occasioned : For remedy thereof be it enacted, that in every such case it shall be lawful for the person who has so delivered up the Great Seal, within six weeks after he shall have delivered up the same, to give in to the registrar of the said court a written judgment therein, signed by him; and a decree or order, as the case may require, shall be drawn up in pursuance of such judgment ; and every such decree or order shall have the same force and effect as if the judgment in pursuance whereof it is drawn up had been given in open court the day before he shall have so delivered up the Great Seal. Construction of LXI. In the construction of this Act the expression vms. "her Majesty" shall mean the sovereign for the time being ; and the expression " Lord Chancellor" shall mean also and include the Lord Chancellor, Lord Keeper, and Lords Commissioners for the custody of the Great Seal of the United Kingdom for the time being. IMPROVEMENT OF JUKISDICTION OF EQUITY ACT. 161 IMPKOVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 VICT. Cap. 86. An Act to amend the Practice and Course of Proceeding ill the High Court of Chancery. [1st July, 1852. Whereas it is expedient to amend tlie practice and 15 & 16 Vict. course of proceeding in the High Court of Chancery: Be "• it enacted by the Queen's inost Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament as- sembled, and by the authority of the same, as follows : I. From and after the time hereinafter appointed for Traotioe of the commencement of this Act, the practice of engrossing biiiron plich- on parchment bills (a) of complaint or claims to be filed ™ent discon- in the said court, and of filing such engrossment, shall printed bill to be discontinued : and the clerks of records and writs of ^^ ^l^^ ^°' . . stead, the said court shall receive and file a printed bill of com- plaint of claim, in lieu of an engrossment thereof, in like manner as they now receive and file such engross- ment (&). (a) The word is to include informations ; see sect. 66, p. 226, post. gjjj (6) See Ord. IX. 3, post. Claims are now abolished (Prel. Ord. IV.). II. The writ of subpcena to appear to and answer a bill Writs of sub- of complaint in the said court, and the writ of summons ^^ fo" be""' upon a claim, shall respectively be abolished (c). abolished. (c) See Ord. X. post. III. In lieu of serving the defendant to a bill of com- Defendants to plaint in the said court with a writ of subpoena to appear ^^inted Mil*' to and answer the same, and in lieu of serving the de- in lieu of the fendant to a claim in the said court with a writ of sum- ^^„l and°suni- mons upon such claim, in the mode and according to the ""ns. practice now adopted in the said court with reference to such writs respectively, the defendaqt shall be served with a printed bill of complaint [d) or claim, with an indorse- 162 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 Tiot. ment thereon, in tlie form or to the effect set out in the "• ^^' °' ^' schedule to this Act (e), with such variations as cii-cum- staiices may require, such printed hill of complaint or claim so to he served heing previously stamped with a proper stamp (/) hy one of the clerks of records and writs, indicating the filing of such hUl of complaint or claim, and the date of the filing thereof. Slight altera- tions may ba made iu writing. Alterations in print of bill. Printing. Counsel's name. Dates, &c. Form of in- dorsement when defendant out of juris- diction. Indorsemeut to amended bill, when neces- sary. Stamp. (d) As to the mode of printing the bill seeDaniell, 361 ; Ayckb. 14. Slight alterations, such as a transposition of Christian names, were allowed to be made in writing, Yeatman v. Maasla/, 2 D. M. G. 220 ; but now it would seem that the proper course would be to amend the bill, see Barnes v. Ridg- way, 1 Sm. & G. App. xviii., where the Court gave leave to make an amend- ment without re-serving the pai-ties with a copy of the amended bill. Written alterations, made in a printed bill, but not introduced upon the record, cannot, after the hearing, even with the consent of all parties, be treated as amendments, but the record must be amended and the bill re-seiTed [Godwin v. Coulson, 1 W. R. 485) ; see Daniell, 400, note (5). _ No special circumstances will exempt a bill, filed since the passing of this Act, and not coming within sect. 6, from being printed (Tate v. Lighthead, 16 Jur. 964). The omission, however, to print counsel's name upon a claim requiring his signature did not prevent its being filed {Coppeard v. MayheiB, 22 L. J. Ch. 408 ; cf. Stapleton v. Staplelon, 17 L. T. 15). Dates and sums are now to be printed in figures Ord. X. 3. (c) See the indorsement, post, p. 227. When a defendant is out of the juris- diction of the Court, it is necessary to apply for an order to serve him with a copy of the bill (see Ord. X. 7), within such time as the Court shall direct, and then to serve him with a copy of the bill, with an indorsement to the effect of the order of the Court (Baines v. Ridge, 9 Hare, App. xxvii. ; and see Chatfield v. BercMold, ibid, xxviii.). In Sharpe v. Blonde&u, 9 Have, App. xxvii., and Wallis v. Vigors, 1 W. R. 100, it was held by V.-C. Kin- dersley, that the indorsement in such cases need not be printed. Where the plaintiff requires an answer to an amended bill, he must serve a copy of such amended bill, with the usual indorsement, requiring appearance, and service of a plain copy is an intimation that no new answer is required. Subsequent service, therefore, of an indorsed copy and interrogatories after service of a plain copy is irregular, Barry v. Croslcey (2), 2 J. & H. 130. (/) In cases of emergency, several stamps, amounting together to 11., may be affixed (Brainy. Braim,, 9 Hare, App. xo. ; notwithstanding Ord. XXXIX. 3) ; and in Kershaw y. Kalow, 1 Jur. N. S. 974, leave was given to file an unstamped injunction bill, the offices being closed for the day, and the soli- citor undertaking to have the bill stamped the next day. As to the course which the Court will adopt when a defendant who has been served with an unstamped copy of a bill, and does not appear, is attached, see Hviton v. Smith, 3W.R. 153. The filing and service of a printed bill or claim to have the same effect as the filing and issuing of writs of subpoena and summons. IV. The filing of a printed bill of complaint or claim in the said court shall have the same effect as the filing of a bill of complaint or claim in the same court, and the issuing of a subpoena or writ of summons thereon respec- tively, now have {g), and the service upon the defendant of a printed bill of complaint or of a claim so filed, with such indorsement thereon, so stamped as aforesaid, shall IMPROVEMENT OF JUEISDICTION OF EQUITY ACT. 163 have the same effect as the service on him of a writ of 15 & 16 Yiot. subpoena or writ of summons respectively now has, and — ! — ' ' '- shall entitle the plaintiff in such suit to such remedies for default of appearance and otherwise as he is now entitled to in case of due and proper service of a subpoena to appear to and answer a bill of complaint or of a writ of summons upon a claim. (jf) As to the meaning of these words, see Re Soger, 3 .Tur. N. S. 930. V. The service upon any defendant of a printed copy As to service of a bill of complaint or of a claim in the said court shall " P"" ^ be effected in the same manner as service of a writ of subpoena to appear to and answer a bill of complaint is now effected, save only that it shall not be necessary to produce the original bUl or claim, which will be on the files of the court; provided that the Court shall be at liberty to direct substituted service of such printed bill or claim, in such manner and in such cases as it shall think fit (h). {h) This section does not extend the discretion of the Court in regard to Discretion of substituted service (Bones v. Angier, 2 W. K. 609). In this case it was held the Court as to by V.-C. Wood, that where an equitable moi-tgagor was abroad, and not heard substituted of for ten years, and his son-in-law took possession of the mortgaged premises, service. paying do rent, and in no way recognising the title, or acting as agent of the original mortgagor, the mortgagee could not, on filing a bill for foreclosure, proceed by substituted service on the son-in-law, it being impossible to serve the mortgagor, for the son-in-law seemed only to be an adverse holder, while the principle of substituted service is agency. The cases on substituted service are given in note to Ord. X. 2, post. "VT. Notwithstanding the provisions hereinbefore con- Written copies tained, the clerks of records and writs of the said court "^ g^rved in may receive and file a written copy (i) of any bill of com- certain oases *' rj \ / ■. j; -VT + i^P™ plamtiff plaint praying a writ of mj unction or a writ ot JNe exeat undertaking regno (k), or filed for the purpose either solely or among *°p^yK^ P™.'"^ other things of making an infant a ward of the said court, teen days. upon the personal undertaking of the plaintiff or his solicitor to file a printed copy of such bill within fourteen days (0, and every bill of complaint so filed shall be deemed and taken to have been filed at the time of filing the written copy thereof; and a written copy of any such bill of complaint, stamped as aforesaid (m), and with such indorsement thereon as aforesaid, may be served on any u 2 164 IMPEOVEMENT OF JURISDICTION OF EQUITY ACT. Cost of written bill. When piintecl till dispensed with. 15 & 16 Vict, defendant thereto, and such service shall have the same ~ — ' "' " - effect as the service of a printed copy. (i) The costs of a written bill land fide incurred will be allowed on application (see Ord. XL. 18 ; Elt v. Bwrial Board of Islington, 2 W. K. 584). A written bill having been filed, and an order made upon an un- dertaking by the defendant to stay proceedings, which precluded the plaintiff from filing a printed copy within the time prescribed, the Court, by consent, dispensed with the filing of a printed copy until farther order, and ordered that the written copy should remain on the file in the meantime {Lord Abingdon v. Thwnhilt, 3 W. K. 615) ; and where an interim order had been made prior to the expiration of the fourteen days, and the suit was afterwards arranged, the printed bill was dispensed with, Garland v. Biordan, 33 Beav. 448. Interrogatories may be filed on a written bill (Lambert v. Lomas, 9 Hare, App. xxix.), (4) As to injunctions, see Ord. XXV., po$t ; and as to writs of ne exeat, see note to Ord. XXXIII., post. [1) See Ord. IX. 4, for the consequences of not filing the printed bill in fourteen days ; but where the provision as to the printing of the bill within fourteen days was not. complied with, by reason of the illness of the plaintiff's solicitor, the Court gave leave to file the printed bill upon payment of the costs of the motion (Ferrand v. Corporation of Bradford, 21 Beav. 422 ; 8 D. M. G. 93). And leave was given to file a printed copy, nunc pro tunc, where the clerk to whom the filing of the printed copy had been entrusted had been com- pelled to leave town, and had forgotten it, so that the written copy had been taken off the file". Moss v. Syers, 11 W. R. 1047 ; but a motion of this kind ought not to be made ex parte, and as its effect is to take from the defendants a right g|ven them by the orders, they have a right to appear, and must have their ao^is- (t^id.) ; feee, too, Piatt v. Hdj,ldare, 15 W. E. 304. (m)' A second stamp on the printed bill is not necessary (Jones v. Batten, 9 Hare, App. Ivii., 2 D. M. Cr. 111). It seems, however, that the fee for perusal (see Regulatious as to Fees, Appendix, p. xxxix., post) must be paid to the defendant's solicitor on the filing both of the printed and written copy (Trustees of the Birkenhead Dock v. The Chester and Shroosbury Railway Company, 22 L. J. Cb. 22). Injunction and ne exeat. When omission to file printed bill was un- avoidable. Printed copy filed nunc pro tunc. Stamps, &c. Plaintiff to deliver printed copies of bill or claim at rate prescribed by Lord Chancellor. Printed copies. Provisions as to filing, &c., prints of original bill extended to amendment?. VII. The plaintiff in any suit to be commenced in the said court after the time hereinafter appointed for the com- mencement of this Act shall be bound to deliver to the defendant or his solicitor, upon application for the same, such a number of printed copies of his bill of complaint or claim as he sliall have occasion for, upon being paid for the same at such rate as shall be prescribed by any general order of the Lord Chancellor in that behalf (n). (n) See Ord. XL. 19, IX. 5, which provide that the payment to be made is at the rate of one halfpenny a folio, and that no defendant is to be entitled to demand more than ten printed copies. VIII. Upon the amendment of any bill of complaint or claim to be filed in the said court after the time herein- after appointed for the commencement of this Act, the provisions hereinbefore contained with respect to filing and serving and delivering printed copies thereof shall so IMPROVEMENT OP JURISDICTION OP EQUITY ACT. 165 far as may be, extend and be applicable to the bill or claim 15 & 16 Vict. as amended (o) : Provided that where, according to the "" ^^' ^' ^" present practice of the said court, an amendment of a bill ^" "S'^''''". ^ , , . . cases a printed or claim may be made without a new engrossment thereof bill may be or under such other circumstances as shall be prescribed p^tj^iy"^ by any general order of the Lord Chancellor in that behalf, amended. a bill or claim may be whollj' or partially amended by written alterations in the printed bill of complaint or claim so to be filed as aforesaid (p). (o) Astothenecessity of an endorsementreqniring appearance on an amended Endorsement bill, see Barry v. Croshey (2), 2 J. & H. 130 ; cited note (e), ante, p. 162. on amended As to amendments generally, see Daniell, 366, and Ord. IX. 8 — 24 ; and bill, notes to sect. 53, p. 217, post. Amendments. (p) As to necessity of reprinting, see Ord. IX. 18, and note. Reprinting. IX. It shall be lawful for the Lord Chancellor from Power to Lord time to time to make any order or orders directing that rerivrihe'^ *° the provisions hereinbefore contained as to printing or present prao- otherwise shall be discontinued or suspended until further of uus &e.'"^ order, and to direct that all or any of the present practice as to the filing of bills and claims, and the issuing and service of subpoenas and writs of summons, may be revived and come into operation as if this Act had not passed. X. Every bill of complaint to be filed in the said court Bills of oom- after the time hereinafter appointed for the commence- taiTconcis™' ment of this Act, shall contain as concisely as may be a narratives of . . . . material facts, narrative or the material facts, matters, and circumstances &e., divided on which the plaintiff relies, such narrative being divided "'''' numbered '^ . paragraphs, into paragraphs numbered consecutively, and each j)ara- but not to con- graph containing, as nearly as may be, a separate and ^^^J^_ erroga- distinct statement or allegation {q), and shall pray specifi- cally for the relief which the plaintilf may conceive himself entitled to, and also for general relief (r) ; but such bill of complaint shall not contain any interrogatories for the examination of the defendant. (}) As to the substance of a bill, see Mitf. Plead., p. 39, et seqq. As to the Bill of corn- form, see schedule A., Appendix, p. 1, post. plaint. (?•) This prayer should be omitted, where the bill is for discovery only, see Prayer, note (i). Appendix, p. iii., post. XL Before the name of any person shall be used in any Percon whose 166 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 Vict, c. 86, d. n. name is used as next friend of any infant, &e,, in any suit. Ice, to sign a written authority. Costs of next friend. Security for costs from next friend, (1) of infant is not required ; (2) of married woman is required ; Or they may sue in form& pauperis. Relator. Bill filed with- out consent. suit (s) to be instituted in the said court as next friend («) of any infant, married woman, or other party, or as a relator in any information (m), such person shall sign a written authority to the solicitor for that purpose, and such authority shall be filed with the bill, information, or claim (v). (s) The section does not, it seems, apply to a petition {Se Carlwrighfe Trusts, 8 ¥. R. 492). (t) The ohjeot of appointing a next friend (at least in the case of a mamed woman) is to secure a responsible person for payment of the costs of the suit (see Mitf. Plead.", pp. 26 and 29 ; JBligh v. Fredgett, 5 De G. & S. 7i, where before the Act a next friend appointed without his own knowledge was held liable for costs). The next friend of an infant will primd facie be held entitled to his costs, but the Court will look to his motiyes in instituting the suit, and if it finds that they were improper will refuse them to him {Clapton v. Clarke, 9 W. R. 718, Ij.J., overruling s. c. 2 Giff. 575). As to appointment of next friends in chambers, see note (/), p. 147, and compare the cases cited in note to Ord. VII. 3, as to guaK^ans ad litem of infant defendants. Security for costs is required from the next friends of married women, but not from the next friends of infants, Hind v. Whitmore, 2 K. & J. 458; Pemaington v. Alvin, 1 S. & S. 265 ; for the following reasons : — (1) In the case of infants the Court ia always anxious that questions in which they are concerned should be brought under its notice, and it has a jurisdiction over suits by infants to stay them if improper ; and therefore it allows any person to file a bill in the name of an infant, and does not require security for costs from an infant's next friend either original or substituted on the ground of poverty. Fellows v. JSarratt, 1 Keen, 119 ; MwTell v. Clap- ha/m, 8 Sim. 74. (2) In the case of a married woman the Court has no jurisdiction to stay the suit ; and, therefore, to prevent improper suits, she must choose a substantial person for her next friend (Wilton v. Hid, 2 D. M. G-. 807), even though the husband be a co-plaintiff (Smith v. Etches, 1 H. & M. 711) ; and the Court will remove him, or order security for costs to be given on evidence of his poverty, Elliott V. Ince, 1 D. M. G. 476 (see further, Morg. & Dav. Costs, 8, 248—263). And this rule works little injustice to married women, for they may obtain leave to sue in formi, pauperis (see Ord. VII. 8) ; but where the married woman is not a pauper, she cannot obtain leave to sue without a next friend, Caldicott V. Baker, 13 W. R. 449 ; and see Sealey v. Gaston, ibid. 577. (u) The written authority of a relator was dispensed with where dispatch was of importance, Attomey-Oeneral v. Murray, 13 W. R. 65. (v) For the practice where a bill is filed in the name of a married woman without her consent, see Davies v. Whitehead, 1 W. N. (1866), 162. And generally as to a plaintiff moving to take a bill filed without his authority off the file, see note to Ord. IX. 1 ; and as to where a bill is filed in the name of an infant without authority, see Towsey v. droves, 11 W. R. 252 ; WiUiams v. Williams (which was a County Court appeal), 2 W. N. (1867), 205. XII. Within a time to be limited by a general order of ),th by Interrogatories record oflSce by ^^^ Lord Chancellor in that behalf {w), the plaintiff in any plaintiff within g^it in the said court commenced by bill may, if he time pre- . j j > scribed. requires an answer from any defendant thereto, file in the record office of the said court interrogatories {x) for the IMPEOVEMENT OP JURISDICTION OF EQUITY ACT. 167 examination of the defendant or defendants, or such of 15 & 16 Vict. them from whom he shall require an answer {y), and °' '^' deliver (s) to the defendant or defendants so required to answer, or to his or their solicitor, a copy of such interrogatories, or of such of them as shall he applicable to the particular defendant or defendants; and no de- fendant shall be called upon or required to put in any answer to a bill unless interrogatories shall have been so filed, and a copy thereof delivered to him or his solicitor, within the time so to be limited, or within such further time as the Court shall think fit to direct. (w) The time is eight days from the time limited for the defendant's appear- Time for filing anoe, Ord. XI. 2 ; and until the time for filing interrogatories expires a interrogatories. defendant may not put in a demuiTer to part of a bill without answering the Till it expires rest, though no interrogatories have been filed, and it is doubtful whether he defendant must may in such a case put in a demurrer to part, and a voluntary answer as to not put in the rest, Sowe v. Tonkim,, 1 L. K. Eq. 9 ; but after the time for filing inter- anything but a rogatories has expired, if none have been filed the defendant may demur to part fall answer, without answering the rest. Burton v. Robertson, 1 J. & H. 38. demurrer, &o. It is not irregular to put in a full voluntary answer before interrogatories have been filed, Anderson v. Stamp, 34 L. J. Ch. 230. (a;) For form of interrogatories, see Sched. B. Appendix, p. iii., post. An Interrogatories interrogatory may embrace several questions, and where some questions were tow far to be sufficiently, and the remaining one was insufficiently, answered, an exception founded on to the whole interrogatory was held wrong form (Higgmson v. Blockley, 1 Jur. bill. N. S. 1104 ; but see Hambrook v. Smith, 17 Sim. 209). Under the new practice, the interrogatories are not required to be, as formerly (see Muddeston v. Brown, 6 Yes. 52), a literal echo of the bill. Thus it was held unnecessary in every case to insert a, charge of documents in a bill as the foundation of the usual interrogatory respecting them (Perry v. Twpin, Kay, App. xlix. ; Kidger v. Worswich, 5 Jur. N. S. 37 ; but see the modern practice in note {I) to sect. 18, p. 172, post). Nor is it now necessary that every interrogatory should be founded on a distinct allegation in the bill, unless the nature of the case requires it, Marsh v. Keith, 1 Drew. & S. 342 ; and sec Hudson V. QrenfeU, 3 Giff. 388, where a defendant having delayed answering interrogatories on the ground that they were unsupported by any corresponding statements in the bill, and were copied from inteiTogatories in an action at law which the defendant had answered, and to which he craved leave to refer, exceptions were allowed with costs. InteiTOgatories may be filed on a written bill {Lamiert v. Lomas, 9 Hare, Interrogatories App. xxix.). to written bill. They may also be filed against a party made defendant by order of revivor Against party (Anon., 25 L. T. 61). ty revivor, A plaintiff may file interrogatories to an amended bill, but after amending, To amended h£ must, in the absence of special circumstances, confine his interrogatories to bill, the amendments (flffidal Liquidators of Southampton Steamboat Company v. Sawlins, 12 W. B. 285). If he desires to interrogate after amendment as to Confined to any part of the original bill, he must obtain the leave of the Court (ibid.) ; amendments, therefore, where a plaintiff, having allowed the time for filing interrogatories upon the original bill to elapse, amended the bill merely by adding a co- plaintiff, and then without leave filed interrogatories upon the whole bill, it was held that the defendant was entitled to have these interrogatories taken off the file (ibid.) ; and see Drake v. Symes, 2 D. F. J. 81, and note to Ord. IX. 8, post. ri I c (y) The costs of an answer vexatiously required, e.g. when a judgmQnt creditor (^os'S °f second answer. 168 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. When defend- ant absconds. Defendants may answer without leave ■within the time now allowed, though not required so to do by plaintiff J bnt after that time defendant must have leave. 15 & 16 Vict, is interrogated on an amended bill as to the claims of other incumbrancers, 0. 86, B. 12. must be paid by the plaintiff if the defendant takes the objection by his answer, Cocks V. Stanley, 4 Jur. N. S. 492 ; Drake v. Symes, I. o. (a) As to delivery, see note to Ord. XI. 4. A bill may be taken pro confesso against an absconding defendant, although interrogatories have not been ddimred, see note (g) to Ord. XXII. 2. XIII. Whether the plaintiff in any suit in the said court commenced by bill does or does not require any answer from the defendant or any one or more of the defendants to the bill, such defendant or defendants may, without any leave of the Court, put in a plea, answer (a), or demurrer to the plaintiff's bill, within the time now allowed to the defendant for demurring alone to a bill, or within such other time as shall be fixed by any general order of the Lord Chancellor in that behalf; but after that time a defendant or defendants not required to answer the plaintiff's bill, shall not be at liberty to put in a plea, answer, or demurrer to the bill, without leave of the Court: Provided that the power of the Court to grant further time for pleading, answering, or demurring to any bill, upon the application of any defendant or defendants thereto, whether required to answer the bill or not, shall remain in full force, and shall not be in anywise prejudiced or affected (b) : Provided also, that if the Court shall grant any further time to any defendant for pleading, answering, or demurring to the bill, the plaintiff's right to move for a decree under the provisions hereinafter contained, shall in the mean time be suspended. (o) A voluntary answer is treated as at once sufficient, Roaers v. Fruei: 2 W. K. 67. _ • li s > If the defendant is not required to answer, and does not answer, he is con- sidered as traversing the plaintiff's case (sect. 26, infra). But defences in respect of subsequent matter, e.g. the Statute of Limitations or of Frauds ought to be specially pleaded ; and a defendant who is not required to answer should not trust to merely traversing the bill by abstaining from answering, for the defence of the statute may not be allowed to be pleaded at the bar. Holding v. Barton, 1 Sm. & W. App. xxv. ; but see Lincoln, v. Wright, 4 De a & J. 16. " ' Such defendant may, however, raise these defences by affidavit {Green v. Snead, 30 Beav. 231, and cases cited in reporter's note), but not where he has answered, and not raised them by answer, Phillips v. Phillips, 3 Giff. 200. (6) See Ord. XXXVII. 8, 17. > r e, Defendant's XIV. The answer of the defendant to any bill of com- contain noT P^^^"^* ^« the Said court may contain, not only the answer only answer to of the defendant to the interrogatories so filed as aforesaid, interrogatories, ' Voluntary answer suffi- cient. Defendant not answering traverses plain- tiff's case. But he should •plead Statute of Frauds, &o. IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 169 but such statements material to the case as the defendant 35 & 16 Yiot. may think it necessary or advisable to set forth therein, "' *^' °' ^*" and such answer shall also be divided into paragraphs ^"at^*f*ff ™*^ numbered consecutively, each paragraph containing as Ms case. nearly as may be a separate and distinct statement or allegation (c). (c) See Ord. XV. 1. XV. (d) The plaintiff in any suit commenced by billl'Iamtiffmay shall be at liberty at any time after the time allowed to of tim^^'^r™ the defendant for answering the same shall have expired fnsweriDg, but ,, ,. T.\/>» 1^ oefore replica- (but beiore replication) (e/to move the Court, upon such tion, move for notice as shall in that behalf be prescribed by any general ^e^^tal order order of the Lord Chancellor (/), or such decree or decretal order as he may think himself entitled to (g), and Affidavits may the plaintiff and defendant respectively shall be at liberty to file affidavits [h] in support of and in opposition to the motion so to be made, and to use the same on the hearing of such motion : and if such motion shall be ma'de after an answer filed in the cause, the answer (i) shall, for the purposes of the motion be treated as an affidavit. (d) For the practice as to service of notice of motion for decree, time of filing Motion for affidavits, &.o. see Ord. XXXIH. 4—9. decree. This section is retrospective. Cousins v. Vasey, 9 Hare, App. xxxi. (e) Where replication had been filed under the old practice, and a new Replication defendant had been added, after the statute came into operation, V.-C. Wood unnecessary on held that, as against such new defendant, the cause might be heard on motion motion for for decree, Gwyon v. Gwyon, 1 K. & J. 211. decree. Replication is unnecessary in a cause where notice of motion for decree is given, Dvffield v. Sturgis, 9 Hare, App. Ixxxvii. Nor is a traversing note necessary except where a defendant has been re- Traversing quired to answer, and has not done so, Heath v. Lewis, 17 Jur. 1090 ; but it note,- when was not considered an obstacle to the cause coming on upon motion fur decree necessary, that a traversing note had been filed, Maniere v. Leicester, 5 D. M. G. 75 ; Jmes V. Howell, 3 \V. E. 559. (/) The time prescribed is one month (Ord. XXXIII. 4). Notice of motion Setting down at one month's date having thus been given, and a list of the plaintiff's affi- motion for davits furnished (Ord. XXXIII. 5, post), the defendant's affidavits in answer, decree, and the plaintiff's affidavits in reply must be filed, and the motion thereupon set down within the times limited by Ord. XXXIII. 6 — 9, Oid. of Nov. 1866, 1-. 2. See note (i) to Ord. XXXIII. 9, post. (g) A plaintiff moving for a decree, according to the prayer of the bill, Decree made on may have the same relief which he could have had at the hearing of a cause motion for in the ordinary way (Norton v. SteinJcopf, Kay, 45, and ibid., App. x.) ; bnt decree, as to the distinction between decrees made on motion for decree and decrees made at the hearing of the cause, see note (g), p. 139 (ante), and note (6) to 30 & 31 Vict. c. 64, post. {h) In causes where notice of motion for decree is given, the evidence is 170 IMPROVEMENT OP JURISDICTION OF EQUITY ACT. 15 & 16 Vict. c. 86, s. 15. EVIDENCE ON mOTION EOBDECBEE. By affidavit. Except, (1) evidence at hearing under (2) examina- tion of unwil- ling witness be- fore examiner ; (3) cross-exa- mination before examiner. Notice to read answer. Against whom and when an answer may be read with or without notice. generally taken on both sides by affidavit ; and see Ord. XXXIII. 5, 6, 7, for the time limited for filing affidavits. The exceptions to the general rule are — (1) The Court has jurisdiction under sect. 39, infra, on a motion for a decree to issue a mhposna ad testificandrnm, or a subpmia duces tecum, see Appendix, p. vii. post, requiring the attendance of witnesses for oral cross-examination, Wigan v. Rowland, 10 Hare, App. xviii. ; WUheVm^. Beynolds, 8 W. E. 626, V.-C. K. ; Woodbowrn t. Grant, 22 Bear. 487, where it was held that docu- ments might be proved at the hearing as exhibits on a motion for a decree ; see, too, Maworth v. Parjeer, 2 K. & J. 163, where the Court intimated that, on a motion for a decree, the hearing might be ordered to stand over, in order to prove a deed in that way. So the Court may receive proof by affidavit at the hearing of matters not directly at issue, see sect. 28 of Sir G. Turner's Act, ante, p. 130, and note. (2) It is now settled that a party may summon his own unwilling witness for examination before the examiner ; but not before notice of motion for decree is served, Rendle v. Metropolitan Bank, 15 W. K. 1066, and see Coles v. Morris (on appeal), 2 W. N. (1867), 237. Such witness, however, must be examined in the presence of the other side, and cross-examined and re-examined then and there, the rule as to ex parte depositions only extending to causes where issue is joined (see note («) to sect. 31, p. 184, post), Bodger v. Bodger, 11 W. K. 80 ; Smith v. Baker, 2 H. & M. 498 ;. Coles v. Morris, 15 W. R. 828 ; Pellatt v. Nichols, 24 Beav. 298 ; Eehden v. Wesley, 26 Beav. 432. (3) As to cross-examination before an examiner on affidavits in causes where notice of motion for decree is given, see sects. 31 and 38, pp. 184, 190, post; and as to the mode of requiring a vritness's attendance before the ex- aminer, see sect. 40 and note (s), p. 193, post. A defendant may in such causes be cross-examined on his answer, see note (u), p. 19i,post, (i) It is not necessary for the plaintiff to give a defendant notice of his in- tention to read the latter's answer against him (Cousins v. Yasey, 9 Hare, App. Ixi.). But a defendant should give notice of his intention to read his own answer. A question has arisen as to how far one defendant's answer may be read against his co-defendant on a motion fordecree. InCousmisv. Yasey, 1. c, V.-C. Wood, after consulting with the other judges, seemed to be of opinion that upon special notice of the intention to use them being given to the parties against whom they were to be read, the answer of one defendant might be read against his co-defendants. But in the later case of Truck v. Iiam.preU,-3 W. E. 193, M. E. (and comp. Eehden v. Wesley, 26 Beav. 432), the Court appears to have been of a contrary opinion. This case is, however, very succinctly re- ported ; and in the later case of AsIimallT. Wood, 3 Jur.N. S. 232, V.-C. Stuart thought that the answer of a deceased defendant might be read against his co-defendants before the chief clerk, observing that "the reason why under the old practice the answer of one defendant could not be read against another co-defendant was, not only that no issue was joined between them, but that as one defendant was not allowed to have even an office-copy of the answer of the other defendant, there would be the greatest risk of injustice and mis- carriage by using any statement, although on oath, under such circumstances as evidence in the cause." The inconvenience here referred to could not of course occur in cases where notice was given. It seems, therefore, that both principle and authority are in favour of the practice as laid down in Comins v. Yasey. Since the above cases were determined, V.-C. Kindersley, after consultation with the Eegistrars, has decided in Stephens v. Eeathcote, 1 Dr. & Sm. 138 — 1. That a plaintiff may read a defendant's answer against that defendant vAthout notice (see Dawkins v. Mortan, 1 J. & H. 339). 2. That a plaintiff may not read one defendant's answer against his co- defendant without notice. 3. That a defendant may not read his own answer against the plaintiff without notice. 4. That if the plaintiff reads one part of a defendant's answer against that defendant, such defendant, notwithstanding that no notice lias IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 171 been given, is at liberty to read the rest of his answer against the 15 & 16 Yict. plaintiff. (It ■niU. be seen that this decision, in substance, agrees with o. 86, s. 15. ■ the statement of the practice given above. QucBi-e. Can a defendant read his co-defendant's answer against the plaintiff ? It seems that he can, hit only on notice. See Lord v. Colvin, 3 Drew. 222 ; and Rushout V. Turner, cited in 8 W. E. 3S7.) As the plaintiff can read the defendant's answer without notice, he may always enter it as read in the decree {Bright v. Legerton, 29 Beav. 69). As to the effect of giving notice of an intention to read the defendant's answer, see Wright v. Edwards, 2 W. R. 193. As to reading the answer of a defendant made a party, as the officer of a cor- Answer of per- poration, also defendants, see M'Intosh v. Ch'eat Western Railway Company, son made party .4 De G. & Sm. 544. only for dis- Where husband and wife answer jointly, instead of the wife answering covery. separately, her admissions may, nevertheless, be read against her, with re- Answer of mar- fereuce to her separate estate {Olive v. Carew, 1 J. & H. 207 ; see Callow v. ried woman. Bowie, 1 De G. & Sm. 531). In a cause where issue is joine(^ an answer is, of course, not evidence until turned into an exhibit. XVI. Upon any such motion for a decree or decretal Court may order it shall he discretionary with the Court to grant or such motion, refuse the motion (j), or to make an order giving such °'^™*^?^'"^^<"^ directions for or with respect to the further prosecution of prosecution, the suit as the circumstances of the case may require, and *"*• to make such order as to costs as it may think right. {j) The Court may either dismiss the bill, or allow it to be amended (see What order p. 217, post ; Thomas v. Ba-nard, 7 W. E. 86 ; and see Warde v. Dickson, may be made 5 Jut. N. S. 698). on motion for As to the decree made on motion for decree, see note ( g), last page. decree. XVII. The practice of excepting to hills, answers, and g^*°''j.j^ °\^ other proceedings in the said court for impertinence shall tills, answers, he and the same is hereby abolished : Provided always, pe^Jeucr' that it shall be lawful for the Court to direct the costs abolished. occasioned by any impertinent matter introduced into any ^^'g"™" ^ *" proceeding in the said court to be paid by. the party intro- ducing the same, upon application being made to the Court for that purpose {k). (Ic) See Ord. XLII. post. XVIII. It shall be lawful for the Court upon the appli- Court or judge cation (Z) of the plaintiff (m) in any suit in the said court, defendant to whether commenced by bill or by claim, and as to a suit ^"^"/^^g°°"'jj commenced by bill, whether the defendant (n) may or may oath. ' not have been required to answer the bill, or may or may not have been interrogated as to the possession of docu- ments, to make an order for the production by any defendant upon oath (o) of such of the documents in his possession or power {p) relating to matters in question in the suit. (2)) as 172 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 Vict, the Court shall think right (r): and the Court may deal ' (* Sfi n 1 ft C3 \ / • ' ' ' with such documents, when produced, in such manner as shall appear just (s). Production of documents how applied for. By summons in chambers and interrogatory as to docu- ments now unnecessary. Who may apply for production. Where produc- tion sought from company. Production whire ordered At pLice of business. {I) The course of procedure as to applications for production of documents is the same after the hearing as before it, Ord. XLII. 4 ; see Handip t. Kittrni, 1 D. J. S. 440. The Common Law Procedure Act, 1854, under which production of docu- ments can be obtained by summons, does not interfere with the equitable jurisdiction, Makepeace v. Rogers, 5 N. E, 499 ; see Barry v. Croskey, 2 J. & H. 30 ; Peacock v. Lowe, 2 W. N. (1867), 212 (Probate Court), The application for the affidavit as to documents is made by summons in chambers, see p. 146, ante; a defendant may decline to answer an interroga- tory as to documents, if he expresses his readiness to make the usual affidavit. Perry V. Twpin, Kay, App. xlix. ; Barnard v. Hunter, 4 W. E. 84; Piffard V. Beeby, 1 L. R, Eq. 623 ; but see note {p), infra. The plaintiff may apply at any period of the suit, and need not malie any affidavit iii support of his application, Rochdale Company v. King, 15 Beav. 11 ; see ParMnson v. Chambers, 1 K. & J. 72. As to applications by defendants, see sect. 19, p. 177, infra. (m) Persons not originally parties to the suit, but who will be bound by the decree, may apply under this or the 20th sect., Z>ent v. Dent, 1 L. R. Eq. 186 ; 35 Beav. 126. And after a decree for administration, any creditor may apply for production of documents relating to his claim, Re M'Veagh, 1 D. J. S, 399 ; see Forbes v. Tanner, 11 W. R. 414 ; Macrae v. Smith, 2 K. & J. 412 ; and the rule applies conversely to make such persons liable to be ordered to produce documents, Daniell, 1665. An arbitration which has been made a rule of Court, is not such a proceeding that the parties to it can take out a summons for production of documents. Re A nolo- Austrian Bank, 10 L. T. N. S. 369, («) Where discovery as to documents is sought from a company or corpora- tion, the secretary or officer of the company should be made a defendant for the purpose,. iZamsrei' v. Ch-eai Western Railway Company, 4 De G. & J. 74 ; see Law v. London Indisputable Policy Company, 10 Hare, App. xx. ; At- torney-Qeneral v. East Dereham Corn Exchange Company, 5 W. R. 486 ; and compare note (w) on sect. 19, infra ; Chaffers v. WaoVober, 30 L. T. 126. Where the clerk of a company stated in his affidavit that all the documents were in the po.'ssessiou of the warden, and that he could not inspect them without the warden's permission, it was held that the affidavit was insufficient, Attorney -General r. Mercers' Company, 9 W. R. 83; see note (j), infra, under "third party's interest." A secretary made a paity for discovery cannot evade discovery by resigning his situation after the filing Of the bill, Acomb V. Landed Estates Company, 14 W. R. 86 ; and se^ Carew v. Davis, 21 Beav. 213. Under a winding-up, in a contest between the company and an alleged contributory, the official liquidator is in the same position as if on a bill filed against the company, he had been made a defendant for purposes of discovery! Re Banied's Banking Company, 2 L. R. Ch. 350. (o) The documents are to be deposited at the Record and Writ Office, Ord, XLIL 3, but the Court will allow production at the defendant's place of busi- ness, if he states that the documents are in constant and necessary use in his business, Grane v. Cooper, 4 M. & C. 263 ; seeMertens v. Maigh, Johns, 735 ; but it isnot sufficient, to show that the books, &c. are in constant use, without also-stating that they cannot be removed without inconvenience, Hooper v. Gvmm, 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. E. 86 ; Daniell, 1677. In such case the solicitor may not charge the party inspecting for attendances, Flockton v. Peahe, 12 W. R. 1023, nor for copies, except at stationer's charges, note (e) to Ord. XXXVI. 13, post. If the defendant is required to produce or obtain information as to deeds. IMPEOYEMENT OF JURISDICTION OF EQUITY ACT. 173 &c., not in his possession, lie is entitled to have the costs of so doing first 15 & 16 Vict, tendered to him, Bethell v. Casson, 12 W. K. 200. u. 86 s. 18. A plaintiff who obtains the common order for production, may inspect documents which are ordinarily produced only on payment of customary fees, Expense of (e.g. court rolls) without payment of such fees, Moare v. WUson, 4 L. E. producing or Eq. 1. getting infor- The common undertaking to produce "to the plaintiff," means "to the ™ation. plaintiff, his solicitors, and agents," unless that be guarded against by the Production to terms of the undertaking, Williams v. Prince of Wixles Asswrance Company, agents 23 Bear. 338 ; but it does not authorise inspection by a non-professional rela- tion of the plaintiff, though alleged to be the only person acquainted with the accounts to be inspected, Summerfield v. Pritchard, 17 Beav. 9. The plain- tiff's agent, for purposes of inspection, ought, it seems, to be a legal agent, or at least a general agent, and not one appointed for the special purpose, Draper V. Manchester, &c. Railway Company, 3 D. F. J. 23. But on a special application, and on a special case being made out for it, an or accountants, accountant may be allowed to inspect documents, Bonnardet v. Taylor, 1 J. & H. 383 ; but not an accountant who has any personal interest in the case. Draper v. Manchester, efcc. Railway (1. c). Thus in Re Joint Stock Discount Com- pany, 15 \T. It. 99, an accountant was allowed to inspect the books of a company in course of being wound up on behalf of the shareholders on -certain conditions ; and where the issue in a cause depended in a great measure upon Other scientific the state of the originals of certain engineering plans and documents, and the persons, defendant deposed that he was not possessed of any engineering knowledge, and that the inspection of the documents would be useless to him without the aid and assistance of an engineer, the order for production and inspection was directed to extend to the defendant's surveyor, Swansea Vale Railway Com- pany V. £udd, 2 L. E. Eq. 274. Under a decree in an administration suit, a creditor supported his claim in chambers by the production of certain documents. The plaintiff, believing these documents to be forged, applied to have them deposited with the chief clerk, and for liberty to have them produced to be examined by scientific persons to test their genuineness, and the application was granted, the creditor's solicitor being allowed to be present at such examination (Groves v. Groves, Kay, App. xix., marginal note). The common order for production does not authorise inspection by a co-defen- Not to oo- dant, Bartley v. Barlley, 1 Dr. 233 ; but it is immaterial that the party insp_ecting defendants. is a witness in the cause, if the question is merely as to the contents of the documents, Swansea Vale Railway Company v. Budd -(ubi sup.) ; secus, where the question was whether the documents were forged, Groves v. Groves (I. c). No lien for costs attaches, even in favour of the next friend of an infant No lien for plaintiff, who has repudiated the suit, upon any deed brought in merely to costs on deeds enable the plaintiff to obtain inspection for the purposes of discovery (Dunn v. produced. Dunn, 3 Drew. 17 ; 7 D. M. G. 636). As soon, therefore, as the purposes of discovery are answered, they will be ordered to be re-delivered to the producing party(26id.). (p) The defendant must make the affidavit, though he insists that he cannot Affidavit must be compelled to produce any documents, for the question of liability to be made, production is distinct from the question of sufficiency of affidavit, Rumhold v. Forteaih, 3 K. & J. 44 ; Lazarus v. Mozley, 5 Jur. N. S. 1119 j Nicholl t. Jones, 13 W. E. 451 ; see too as to the necessity of making the affidavit, Manhy v. Bewicke, 27 L. T. 55 ; Q,uin v. Ratcliffe, 9 W. E. 65 ; Hanslvp v. Kitton, 1 D. J. S. 440. The order is in the form that the plaintiff, his solicitor or agent, may be at Order is to pro- liberty to inspect and peruse such documents admitted by the defendant as he ducedocuments may not by his affidavit object to pi-oduce, and to take copies thereof and admitted by extracts therefrom as he shall be advised at his own expense, Seton, 1040 ; affidavit. Mertens v. Haigh, Johnson, 738 ; and as to the cost of copies when furnished by the other side, see Ord. XXXVI. 3. The form of the affidavit is settled by schedule 3 to the Eegulations of Aug. Form of affida 8, 1857 (App. p. lix. post), and ought not to be varied except to meet the special vit. 174 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 Vict, e. 86, i). 18. No cross- examination on it. Remedy -where affidavit in- sufficient (a) in point of distinctness ; ments ; circumstances of the case (Woodhatchv. Freeland, 11 W. E. 398; Newallv. Telegraph Oompqmy,. 2 L. K. Eq. 756). There can be no cross-examination on the affidavit as to documents, Mamhy V. Mewiche, 8 D. M. G. 470 ; Newall v. Telegraph Company (1. c.) ; nor can counter afSdavits be filed, Westminster, where suits by . at issue, the plaintiff shall, vnthin such time thereafter as bUi at issue shall be prescribed in that behalf by any general order of ™*[cf^ode- the Lord Chancellor, give notice to the defendant that he fendant to desires that the evidence to be adduced in the cause shall ^^^^ o^^jjy ^^ be taken orally or upon affidavit, as the case may be : and by affidavit.] if the plaintiff shall desire the evidence to be adduced upon affidavit, and the defendant, or some or one of the defendants, if more than one, shaU not, within such time as shall be prescribed in that behalf by any general order of the Lord Chancellor, give notice to the plaintiff or his solicitor that he or they desire the evidence to be oral, the plaintiff and defendants respectively shall be at liberty to verify their respective cases by affidavit (r).] (r) See for the modem practice (by which this section is superseded) the Modern prao- references given in note (jp) to last section. tioe as to evi- dence. 184 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 Vict. [XXX. When any of the parties to any suit commenced "• ^^' ^- ^°- by bill desires that the evidence should be adduced orally, [Evidenoe may ^ • notice thereof to the opposite party as herein- be taken orally => , i, t i n • j.i if required, and before provided, the same shall be taken orally, m the prove.f manner hereinafter provided (s) : Provided that if the evidence be required to be oral merely by a party without a sufficient interest in the matters in question, the Court may, upon application in a summary way, make such order as shall be just.] » (e) See note (u) to next section as to oral examination' tinder tlie modem practice, by which this section is superseded. Witnesses to be XXXI. All witnesses to be examined {t) orally under onnfTife exa- *^^ provisions of this Act (m) shall be so examined by or miners of the before one of the examiners of the court (z)), or by or presence rf\he before an examiner to be specially appointed by the parties. Court (w), the examiner being furnished by the plaintiff with a copy of the bill and of the answer, if any, in the cause ; and such examination shall take place in the presence of the parties {x), their counsel, solicitors, or agents, and the witnesses so examined orally shall be sub- ject to cross-examination and re-examination ; and such examination, cross-examination, and re-examination shall be conducted as nearly as may be in the mode now in use in courts of common law with respect to a witness about to go abroad, and not expected to be present at the trial of a cause («/). Examination W '^^^^ ^°<1 ^^^ following rules as to examination before an examiner apply of witnesses ^ their integrity to the examination of witnesses de bene esse, (see Aycb. 175 ; (1) De bene (^""^ ^- -H^aM, 9 Hare, App. xx. ; Seeves v. Hodgson, 21 L. T. 124) ; and to gggg . the examination under it of wmoillmg witnesses in causes where notice of .„, '» ., motion of decree has been given, see note (A), pp. 169, 170, ante, i.' . ' («) The modern practice as to evidence in causes where issue is joined, is Cmg witnesses. „gulated by the Order of the 5th February, 1861 {post), unless the parties EVIDENCE agree to follow the practice under this section. WHERE Ord. 5th February, 1861, r. 6, provides that, {" except yihete the parties ISSuE IS agree to foUow the old practice (r. 10), or where the Court deems it more JOINEII. expedient to follow the old practice on account of the age, &c. of a witness Kules, 6 Feb., (r. 11), oi in suits to perpetuate testimony (r. 16), or in causes then pending 1861. (r. 17)" ), all examinations taken by the examiners of the court, or by any special examiner, for the purpose ,of being used at the hearing of a cause in Examination in which issue is joined, shall be taken ex parte, and no person shall have a chief ex parte, right to be present at the taking of any such examination except the party producing the witness, his counsel, solicitor, and agents ; and every examina- tion so taken esc parte shall he deemed to be an affidavit, and the examiner, before transmitting the same to the office of the Clerks of llecords and Writs IMPEOVEMENT OF JURISDICTION OF EQUITY ACT. 185 to be filed, shall mark the same as taken ex parte, and the Clei-ks of Eeoords 15 & 16 Vict, and Writs shall deetl with the same as au affidavit. u. 86, a. 31. As to the time for closing the evidence in chief in causes where issue is joined, see note to sect. 38, p. 191, post. The 3rd rule provides that in cames where issue is joined, either plaintiff or vivS, voce at or defendant may, in manner therein mentioned, apply for a norder to take the hearing, evidence in chief as to any facts or issues vivd voce at the hearing, and see note to the 7th rule. The 7th rale provides that "except in the cases mentioned in the 10th, Cross-examina-' 11th, 16th, and 17th of these rules, no cross-eoMmination of any deponent or tion before witness, or of any party to be used at the hearing of a- cause in, which issue is Court. joined, shall be taken otherwise than before the Court at the hearing." The Court may stiU, notwithstanding these rules of 6th February, 1861, Court itself make use, in a cause where issue is joined, of its powers under sect. 39, imfra, may summon p. 192, of summoning witnesses before itself, and it has done so where the witnesses, notices required by the orders of 6th February, 1861, have been accidentally neglected. Cox v. Stephens, 11 W. R. 929. Where a suit is brought on by motion for decree, and issue is joined in a Where there is cross suit, and an order is obtained by the plaintiff in the originaJ suit for him an option as to to use in the cross snit af&davits filed in his own suit, it is at the option of the the practice, plaintiff in the cross suit either to treat these affidavits as filed in the original suit, and so cross-examine the witnesses before an examiner, or to consider them as evidence to be used in his own suit, and give notice of cross-exami- nation in open court at the hearing, Neve v. PenneLl, 1 H. & M. 262. (v) The examiners are two in number. Under the old practice, it was their Examiners — duty to examine all witnesses residing in London and within twenty miles their duties, thereof, but now they may be ordered to attend at any place in England or Wales to examine infirm witnesses ; and see Pillan v. Thompson, 10 Hare, App. Ixxvi., and Ord. 5th February, 1861, i. 12. lu BrennoM v. Preston, however , (10 Bare, App. xvii.), where the defendants, who were restrained by interlo- ' ' cutory injunction in a case where the plaintiff had undertaken to submit to any order the Court might make for the early hearing of the cause, and in which no appointment could be obtained for examination before the examiner of the coui-t for upwards of a month, applied that the examination of witnesses residing in London might be taken before a special examiner, the Court granted the application. This, however, was a very peculiar case. The examination usually takes place at the Examiners' Office. As to the Place of exami- production of witnesses for cross-examination, see notes (2) and (n) p. 191, post, nation. It seems that witnesses who have waited at the examiners' office for half an Attendance of hour without receiving any notice that it is intended to proceed with the witnesses, examination, may leave with impunity, PerJes v. Stoitart, 1 N. R. 563. A deposit of SI. must be made on obtaining au appointment with an examiner of the court, Order 1 Jan. 1862, post. {w) As to the appointment of a special examiner in the case of witnesses Special exa- residing more than twenty miles from London (for the examination of whom a miner, commission was always issued before the Act), the practice was somewhat unsettled. In Reed v. Prest, Kay, App. xiv., V.-C. Wood is reported to have said that the former practice was not altered in the case of witnesses residing more than twenty miles from London, and that, therefore, in such cases, a special examiner must still be appointed. See, however, the qualification given to this case in Brocas v. Lloyd, imfra, where it is said that the report of it in the Law Times was erroneous. Again, in Ogilby v. Qregory, 4 W. R. 67, the same judge appointed a special examiner to take the cross-exami- nation of witnesses who had made affidavits in London. But in the later case of Brocas v. Lloyd, 21 Beav. 620, approved by the Lords Justices in Altree v. Sherwin, 2 De G. & J. 92, the Master of the Rolls expressed great disinclination to appoint a special examiner, even when the witnesses re- sided in the country, on account of the great expense entailed on the parties by that means. So in Be Forster's Trusts, 2 W. R, 679, V.-C. ICindersley Special exa- is reported to have said that, though the Court had jurisdiction to appoint miner only on a special examiner for the puiTJOse of examining witnesses in any cause special reason, or matter, yet, ordinarily speaking, the examination must take place in 186 IMPROVEMENT OF JtJRISDICTION OF EQUITY ACT. 15 & 16 Viot. u. 86. s, 31. 'Witnesses out of jurisdiction. Application for special exa- miner. Who may be. Fees. Expenses of witnesses. Several exami- nations. Oross-examina- tion by defend- ant. London, unless there was a special reason why it should take place in the country (comp. Rogers y. Hooper, referred to in note to 2 W. R. 679). In JRe Forster's Trusts, the Court ordered the examination and cross-examination of witnesses generally to take place in the country, on the assumption that it should apply to witnesses on both sides. It seems that the witness should in such a case communicate with the party on whose behalf the application was made, throwing on him the onus of applying for a special examiner, Townsend v. Williams, 6 W. R. 734. The Court may appoint an examiner for the examination of witnesses residing out of the jurisdiction (Crofts v. Middleton, 9 Hare, App. xviii.) ; and see Campbell v. The Attorney-General, 2 L. R. Oh. 571, for the jurisdic- tion of the Scotch Courts over questions of privileged documents, &c., where an examination before a special examiner appointed by the Court of Chancery, takes place within the jurisdiction of the Scotch Courts. As to the form of order in such cases, vid. 9 Hare, App. Ixxv. The Court, however, will exercise a dis- cretion in such cases, and will not make the order when no new facts are likely to be elicited {Lord v. Colvin, 2 W. R. 134). A motion for an order to compel a witness, who had gone to Paris, to return to this country for the purpose of being cross-examined on his affidavits, was refused with costs, WdUsley v. Mornington, 5 W. R. 393 ; Edwards v. Spaight, 2 J. & H. 617., In such a case the proper course would have been to have applied for a special exaininer, Rawlims v. Wichliam, 4 Jur. N. S. 990. In M'Neill v. Acton, 22 L. J. Ch. 584, it was held that an application for a special examiner ought to be made in court (Brennan v. Preston, 10 Hare, App. xvii. ; Pillan v. Thompson, 10 Hare, App. Ixxvi.). It is now settled, however, that the application may be made in chambers {Reed v. Prest, Kay, App. xiv. ; and see Williams t. Williams, 10 Hare, App. xlv.). Where the application is for an examination ex parte, the practice is for the Court to appoint without a reference to chambers, Davenport v. Goldberg, 2 H. & M. 286. It is not imperative that a special examiner should be a barrister (Henderson V. Philipson, 17 Jur. 615). But in cases of difficulty it seems a barrister ought to be appointed (Reed v. Prest, 1. c). The fee of a special examiner is five guineas a day, and five shillings for his clerk, and he is not entitled to any further fee for the labour of reading over papers, or other extra labour (Payne v. Little, 21 Beav. 65). As to the fees now to be allowed to a special examiner when examining witnesses in the country, see schedule annexed to Order 5th Feb., 1861, post (x) Where a defendant has given notice to read a co-defendant's evidence, notice of cross-examination of such co-defendant must be given to the de-' fendant who has thus made him his witness, Pennell v. Davison, 14 W. 9, 174. (y) It seems that professional witnesses, even though residing within the bills of mortality, may require compensation before giving evidence (Clark 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 consists of a fixed payment, corresponding with that allowed in courts of common law (NoJees v. Gibbon, 3 Jur. N. L. 282 ; Turner v. Turner, 7 W. R. 573). 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. Ma/r- shall, 1 W. li. (1866), 80 ; and the rule applies to parties to suits as well as to other witnesses (Da/iiey v. Du/rrant, 24 Beav. 493). A witness may be examined twice over, Wood v. Sca/rth, 24 L. J. Ch. 392 ; and see Lord v. Cohin, 3 Drew. 222. It has been held that a defendant may cross-examine his co-defendant's witnesses, all the evidence in the suit being now open to all parties to it (Lord V, Colvin, Daniell, 850 ; and see Stv/rgis v. Morse, 26 Beav. 562 ; and note (i), p. 170 ; and Powys v. Blagrove, Kay, 495) ; but crossexami' nation of a defendant is not evidence against co-defendants, see note at p. 194, IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 187 As to the order of cross-examination where there are several cross-examining 15 & 16 Yict. parties, see Harrison v. Mayor of Southampton, 2 Jar. N. S. 435. c. 86, s, 31. Ou the examination of witnesses under this section, it was held that if a document is put into the hands of a witness by the party examining him, the Documents put other aide may require to see the document., if the witness having a document '''*<' ^^^ hands put into his hands to refresh his memory is afterwards examined on the con- "' witnesses, tents generally ; but not if it is put into his hands to refresh his memory, or &". to state in whose handwriting it is only (per V.-C. Kindersley in Lord v. Colvin, 2 Drew. 208 ; affirmed on appeal, 5 D. M. G. 47). Where an examination in bankruptcy of a bankrupt was referred to in the Documents, &c. evidence of the plaintiff (the official assignee), it was held that the defendant referred to. was entitled to have the examination produced in cross-examining the plain- tiff's witnesses {Bell v. Johnson, 1 J. & H. 682). iSecus as to examinations not referred to (ibid.) ; see, too, as to a document referred to becoming evidence, Bowwrd V. Robinson, i Drew. 522, 525 ; and as to the inspection of docu- ments, see note to sect. 18, p. 175, ante. See also Davis v. Dale, 1 Mood. & M. 614, 515 ; Perry v. Gibson, 1 Ad. & Ell. 48. It seems that an examiner has full power to allow a shorthand writer to be Whether exa- present, or to admit the public if he think fit ( Wright v. Wilixa, 6 W. R. miner's office 643, which should be consulted as to the powers and privileges of an examiner an open court, in general). See, also, as to the employment of a shorthand writer, Re London, Birmingham, and Bucks Railway Compamy, Ex parte CuTzon, 6 W. fi. 141. XXXII. The depositions taken upon any such oral Depositions to . ., be taken down examination as aforesaid shall be taken down m writing in writing and by the examiner (s), not ordinarily by question and an- "ftn°g7''^ho''^ swer, but In the form of a narrative, and when completed is to sign the shall be read over to the witness, and signed by him In the ^*™** presence of the parties, or such of them as may think fit to attend : Provided always, that In case the witness shall refuse to sign the said depositions, then the examiner shall sign the same, and such examiner may, upon all examinations, state any special matter to the Court as he shall think fit : Provided also, that it shall be in the dis- On refusal, ex- . , , . aminer to sign, cretion of the examiner to put down any particular question ^nd state any or answer, if there should appear any special reason ^P/^^'y"^*?^^^"" for doing so ; and any question or questions which fit. may be objected to shall be noticed or referred to by the examiner in or upon the depositions, and he shall state his opinion thereon to the counsel, solicitors, or par- ties, and shall refer to such statement on the face of the depositions, but he shall not have power to decide upon the materiality or relevancy of any question or ques- tions (a) ; and the Court shall have power to deal with the costs of immaterial or irrelevant depositions as may be just. 188 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 Vict. (z) The examiner is boutid to take the depositions down in his own hand- c. 8fi, s. 3i. writing {Stobart v. Todd, H W. R. 617). Bat the rale appears to be different on an examination before the chief clerk under the 15 & 16 Vict. c. 80, s. 30, Examiner see Sogers v. Mort, 10 Hare, App. liii. must takedown («) Xhe examiner ought not, where the examination is taken ex parte, to depositions refuse to allow questions to be put, unless upon matterswhich would clearly himself. not be evidence, Smr v. WcUmsley, 2 L. R. Eq. 439. Power of exa- ^''^ examiner has no power to determine questions as to the adverse nature miner. °^ *''6 evidence of a witness (Buckley v. Cooke, 1 E. & J. 29). In such cases the questions as well as the answers of the witness should be put down by the examiner [ibid.; see, too, Wright v. Wilkin, 6 W. R. 643, cited in note (y), last page). Rightofwitness ^ witness, when cross-examined on his affidavit, has no right, it to see affidavit seems, to insist that the paragraph in his affidavit on which he is cross- on which he is cxaniiDed should be shown to him before he answers the questions (Gwyrme v. cross-exa- Watney, 31 L. T. 231, but it is believed that this case has not been generally mined. followed. See East Anglian Railway Company v. Goodwin, cited note (o), p. 192 ; and see cases cited in note (y), last page, on documents put into the hands of witnesses. If parties refuse XXXIII. If any person produced before any such &c. the same examiner as a witness shall refuse to be sworn, or to course to be answer any lawful question put to him by the examiner, pursued as is i ■ / <• i • i i • i • now adopted, or by either ot the parties, or by his or their counsel, solicitor, or agent, the same course shall be adopted with respect to such witness as is now pursued in the case of a witness produced for examination before an examiner of the said court, upon written interrogatories, and re- fusing to be sworn, or to answer some lawful question : Proviso as to Provided always, that if any witness shall demur or rin°fafques-'"^' object to any question or questions which may be put to tions. him (&), the question or questions so put, and the de- murrer or objection of the witness thereto, shall be taken down by the' examiner, and transmitted by him to the record office of the said court, to be there filed ; and the validity of such demurrer or objection shall be decided by the Court ; and the costs of and occasioned by such demurrer or objection shall be in the discretion of the Court. Process where (6) When a witness objects to answer because the examination is irregular, witness demurs the party examining him should move that the examination may proceed, to answering. (Rendle v. Metropolitam, and Provincial Bank, 15 W. R. 1068 ; Leather Cloth Company, Limited, v. Hurschfield, 1 H. & M. 295) ; but if he objects that he is protected from making the discovery, the demurrer should be set down for iiearing ; and see as to the orders which may be made overruling or allowing the demurrer, Daniell, 863 ; and as to the costs following the result, Wright V. Wilkin, 4 Jur. N. S. 627. Grounds on Wiien before this Act, a commissioner, notwithstanding the demuiTer of a which he may witness, took upon himself to examine a witness, the depositions were sup- demur, pressed, even though the demurrer was held untenable {Qoodall t. Oawthorn, IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 189 4 De G. & Sm. 97). The same course wonld probably be adopted under tbe 15 & 16 Vict. new practice. A witness may demur to answering a question on the ground c. 86, s. 33. of professional confidence (see note (r), p. 175, ante), or he may refuse to answer a question upon the ground that the answer would criminate him (see p. 176), without giving his reasons : but, if he discloses his reasons, the Court will consider the objection ; and if it finds it unfounded, will compel him to answer {Asian's case, 27 Beav. 474 ; 4 De G. & J. 320 ; Seg, v. Boyes, 7 Jur. N. S. 1158 ; Re Fernandez, 10 C. B. N. S. 3, 39, 40) ; and see generally as to the grounds on which a witness may object to making discovery, the cases cited; as to production of documents, ante, pp. 175, 176. The sections relating to evidence in the Oom. Law Proo. Act, 1854, apply to suits in equity, Buckley v. OooJce, 1 E. & J. 29. XXXIV. When the examination of witnesses before Original depo- any examiner shall have been concluded, the original transmitted^ to depositions, authenticated by the signature of such ex- the record aminer (c), shall be transmitted by him to the record ' office of the said court, to be there filed (d), and any party to tbe suit may have a copy thereof or of any part or portion thereof upon payment for the same in such man- ner as shall be provided by any general order of the Lord Chancellor in that behalf (e). (c) Where an examiner omitted to sign the depositions, they were allowed Omission to to be filed without delay upon payment of costs, and upon a proper explanation sign deposi- being given {Stephens v. Wamklin, 19 Bear. 585). And when an examiner tion. dies without signing, they may be signed by his successor {Bryson v. Warwick and Birmingham Canal Company, 1 W. B. 124; or filed without any signa- ture, PeUhouse v. BaUey, 14 W. K,. 827.) (d) An examiner appointed under this section to take evidence for the hear- Filing of depo- ing of the cause, must return all the depositions at once ; but it seems the sitions. same rule does not apply, if the evidence is taken under sect. 40 {Clark v. GUI, 1 K. & J. 13). (e) See as to copies, Ord. XXXVI. ; as to the fees for copies, see Keg. IV. ; Copies, as to costs, App. xlix. post. XXXV. It shall not be necessary to sue out any com- Commission for '' . • /• iU examination of mission for the examination of any witnesses within the witnesses dis- jurisdiction of the said court; and any examiner appointed p«°^«* ^'*- by any order of the Court shall have the like power' of j^Exa^^^er em- administering oaths (/), as commissioners now have under administer commissions issued by the Court for the examination of °*' ^■■' witnesses. (/) For form of oath, see Daniell, III. 849. XXXVI Notwithstanding that the plaintiff or the Affidavits as ..,., . , lijto particular defendant in any suit in the said court may have elected facts, &c., may that the evidence in the cause should be taken orally, te used. affidavits by particular witnesses, or affidavits as to par- 190 ISIPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 Vict, ticular facts or circumstances, may, by consent, or by leave — — — of the Court obtained upon notice, be used on the hearing of any cause, and such consent, with the approbation of the Court, may be given by or on the part of married women or infants or other persons under disability (g). ig) See note (n) to sect. SI, ante, for the modem practice as to oral erir dence. Affidavits to be divided into numbered paragraphs. XXXVII. Every affidavit to be used in the said court shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and, as nearly as may be, shall be confined to a distinct portion of the sub- ject (h). (h) See Ord. ZYIII. and notes, as to the form of affidavits. Evidence oral or by affidavit, on both sides, to be closed as prescribed by general order. Witnesses by affidavit may be orally cross- examined and afterwards re- examined. Witnesses bound to at- tend. XXXVIII. The evidence on both sides in any suit in the said court, whether taken orally or upon affidavit, shall be closed within such time or respective times after issue joined as shall in that behalf be prescribed by any general order of the Lord Chancellor («'), but with power to the Court to enlarge the same as it may see fit ; and after the time fixed for closing the evidence no further evidence, whether oral or by affidavit, shall be receivable, without special leave of the Court previously obtained for that purpose (k) : Provided always, that any witness who has made an affidavit, filed by any party to a cause, shall be subject to oral cross-examination within such time after the time fixed for closing the evidence as shall be prescribed in that behalf by any order of the Lord Chancellor (l), by or before an examiner (m), in the same manner as if the evidence given by him in his affidavit had been given by him orally before the examiner, and after such cross-examination may be re-examined orally by or on the part of the party by whom such affidavit was filed ; and such witness shall be bound to attend before such examiner to be so cross-examined and re-examined, upon receiving due and proper notice, and payment of his reasonable expenses, in like manner as if he had been duly served with a writ of subpoena ad testificandum IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 191 before such examiner (w) ; and the expenses attending 15 & 16 Vict. such cross-examination and re-examination shall be paid /" ' "' by the parties respectively, in like manner as if the wit- f'ttendbg cross- ness so to be cross-examined were the witness of the examinations, party cross-examining, and shall be deemed costs in the cause of such parties respectively, unless the Court shall think fit otherwise to direct. («) In a cause where issue is joined, the time is eight weeks, fixed by Ord. Time foi-olosing 5th Feb. 18B1, rule 5 ; and in a cause where notice of motion for decree is evidence, given, the time is limited by Ord. XXXIII. 4, 7 ; but in hard cases the time has been extended, see note {Ir) infra. The remainder of this section, providing for cross-examination before an Cross-examina- examiner, does not now apply to causes where issue is joined ; see note (»} to tion. sect. 31, supra. {k) The case of the time for closing evidence expiring in long vacation is Time when provided for by Ord. XXXVII. 19, post. The time for filing affidavits and enlarged, taking evidence may be enlarged in proper cases, see AndeHon v. Yates, 15 Jur. 833 ; Mayes v. Mayes, 11 Jur. N. S. 1033 ; Wragg v. Wragg, 11 Jur. 701. See note (m) p. 182. Thus, where affidavits were filed just before the close of the eight weeks Cases of sur- after issue joined, containing charges as to which no issue had been raised in prise, the pleadings, counter affidavits were allowed, Scoli v. Mayor of Liverpool, 1 De G. & J. 369 ; and similar leave was given, the period for cross-examina- Pqj, purpose of tion being also enlarged, in Phillips v. Warde, 2 Jur. N. S. 33 ; and see Hope answering late V. Thrdfall, 1 Sm. & G. App. xxi. ; Dotiglas v. A rchbutt, 23 Beav. 293. So affidavits the Court has a discretion to allow snch affidavits to be read at the hearing, £oyse v. Coldougk, 1 K. & J. 124 ; Thompson v. Partridge, i D. M. G. 794; Bayley v. Cass, 10 W. K. 370 ; and the cause may be ordered to stand over, to give the other side time to answer them, Heath v. WaUingford, 12 L. T. N. S. 631. Where the Court gave a plaintiff leave, seven months after he had given or to explain notice of motion for decree, to use as evidence an examination of the defendant them. taken in another canse, the defendant was allowed to tile affidavits in expla- nation, though the cause was in the paper, Watson v. Cleaver, 20 Beav. 137. The Court has a discretion to allow one party to cross-examine the other's witnesses before filing his own affidavits, see Mwey v. Vandenburg, 14 L. T. N. S. 542. The application for extended time should not be made ex parte, Richai-ds v. Nut applied Ciwlewis, 2 W. K. 481. for ex parte. As to proving exhibits at the hearing, see ante, p. 130 ; Darnell, 816 . Exhibits Where the time for closing the evidence is past, and a witness is required to proved at hear- produce documents, Ac, at the hearing, he may be compelled by a subpoena -^ duces tecum to do so ; and it seems that such a subpoena may be moved for before the hearing (Vorley v. Jerram, 6 W. R. 734). Leave was granted, after the time for closing evidence had passed, to file affidavits verifying extracts from a register of a Scotch court of law, McLachlan V. Lord, 14 L. T. N. 8. 9S. (V) The time for giving notice to the other side to produce a witness is four- Time for cross- teen days, from the closing of the evidence in chief; see Ord. 5th Feb. 1861, examination, rule 19, post. (m) See notes to sect. 31, 35, ante, as to the practice before the examiner. Practice of (m) See Ord. 5tb Feb. 1861, rules 19, 20, & 21, post, and notes, as to due oross-exami- and proper notice, and as to enforcing the attendance of witnesses. nation. A party cannot, after giving notice of his intention to cross-examine a party Witnesses, no- te the suit, abandon that course without first paying the costs occasioned tige to produce, thereby, Bavey v. Durrani, 24 Beav. 411. 192 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 Vict. XXXIX. Upon the hearing of any cause depending in -! '— !_ the said court, whether commenced by bill (o), or by claim, qSi^orafcKa- *^^ *^°°'^*^' ^^ ^^ ^^*^^ ^®® ^* ^° *° *^° (^)' ^^^ require the mination before production and Oral examination before itself of any wit- neTses" &o! ^^ss Or party in the cause, and may direct the costs of and attending the production and examination of such witness or party, to be paid by such of the parties to the suit, or in such manner, as it may think fit (q). Oral examina- tion before Court ordered by Court, At hearing of motion. At hearing of cause. Discretion of Court. Where Court will and will not order ex- amination before itself. Court at Ap- peal, (o) As to the application of this section to causes where notice of motion for decree is given, see note (4) to sect. 15, p. 170 ; it has been held that when made use of on motion for decree, it only applies to witnesses who have given evidence {East Anglian Railway Cow/pamy v. Goodimn, 6 W. K. 664), or who are called to prove documents (see note (c), p. 130) ; Chichester v. Chichester, 24 Beav. 289 ; Ferguson v. Wilson, 15 W. K. 27. And in causes where issue is joined, its provisions are, in most cases, superseded hy the Order, 5th Feb. 1861 ; see note («), ante, p. 184. See form of subpcena to testify vivd voce, Appendix, vii. post. An order may be made,- under this section, upon a motion for injunction, Nichols V. Ibbetson; 7 W. R. 430. The proper time for the Court to exercise its discretion (see Oliver v. Wright, 1 Sm. & G. App. xvi. ; Evams v. Coventry, 27 L. T. 39), under this section, is at the hearing, Raymond v. Brovm, 4 De (?. & J. 530 ; so that the proper course of proceeding is not to move for leave to issue a snhpoma ad testifican- dum for the hearing of the cause, but to apply at the hearing for an order that the witnesses may attend, which order the Court, if it sees fit, will make {May V. Biggenden, 1 Sm. & G. 133, 10 Hare, App. xlv., where Smith v. The Swansea Doch Compan/y, 9 Hare, App. xx., is remarked on ; and see Radley v. Meek, 25 L. T. 90). It is doubtful whether a subpoena is neces- sary in such a case {Holden v. Solden, 7 D. M. Gt. 397 ; Hope v. Liddell, 20 Beav. 438) ; see Seton, 14, Vorley v. Jerram, G W. R. 734 ; and for form of subpcena, see Appendix, p. vii. post. (p) See Farrall v. Davenport, 5 L. T. N. S. 436. When the party sought to be examined is one of the litigants, who has already had an opportunity of stating what he knew on oath, it seems that the application ought not in general to be granted {Oliver v. Wright, 1 Sm. & Giff. App. xvi.). If granted, the order will be at the risk of the party applying for it {Radley v. Meek, 25 L. T. 90). It seems that in general the Court will only order a witness to attend to be examined at the hearing,' where under the old practice it would have granted an issue (per. V.-O. Turner, in Wilkinson v. Stringer, 9 Hare, App. xxiii. ; comp. Deaville v. Deaville, 9 Hare, App. xxii. ; Ferguson t. Wilson, 15 W. R. 27 ; and see notes to 21 & 22 Vict. c. 27, s. 3, post, as to cases where issues will be granted generally, and Davison v. Robijison, 3 Jur. N. S. 791, 793). In Smith v. Edmards, 1 W. R. 18, the plaintiff having applied to be allowed to prove vivd voce, at the hearing, that a defendant was out of the jurisdiction, a fact which the other defendants contended was not sufficiently proved by the affidavits, the Court ordered the cause to stand over to enable the plaintiff to prove the fact (cf. Raworth v. Parker, cited in note (A) p. 1 70). When on the original hearing of a cause a defendant had tendered himself for examina- tion, and the offer was refused, the Court of Appeal refused to call upon him to be examined before itself {Hindson v. Weatherill, 5 D. M. G. 301), But a Court of Appeal has undoubted authority to examine vivd voce a party who was not examined before the Court below {Hope v. Thre\fall, 23 h. J. Ch. 631; Langfordv. May, 1 W. R. 484; and cf. Re Dickson, 3 Jur. N. S. 29 ; Lister v. Leather, id, 433 ; Pole v. Joel, 2 De G. & J. 286 ; Glover v. IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 193 Baubney, 9 Jnr. N. S. 90 ; Fergiison t. Wilson, 15 W. R. 27). When such 16 & 16 Viot. ■witnesses are examined, and the appeal is successful, the appellant will be «. 86, b. 39. entitled to the costs of the appeal (Lanqford v. May, ante). Before a witness is examined vhd voce by the Court under this section, the Course adopted matter in issue, aa stated in the bill, should be placed before the witness, and ™ examina- Ihe particular passage marked, and the witness's afidavit relating to it should *ion. be given him, and he should be told that a further examination was wanted upon it, per V.-C. Wood, in East Angliam RaiVway Company v. Qoodwin, 6 W. R. 564. (g) As to costs, see Martin t. Pycroft, 22 L. J. Oh. 94 ; Langford v. May, Costs of examir ibid. 973. nation before Court. XL. Any party in any cause or matter depending in the ^^^ P^''^ ?" * •i ^ •> . I. r a cause may by said court may, by a writ of subpoena ad testificandum, or subpoena re- duces tecum (r), require the attendance of any witness (s), a"^*of*any^' before an examiner (t) of the said Court, or before an ex- witness before . ,, • i J i- ii » T .an examiner, ammer specially appointed lor the purpose, and examine such witness orally, for the purpose of using his evidence upon any claim, motion, petition, or other proceeding before the Court, in like manner as such witness would be bound to attend and be examined with a view to the hearing of a cause ; and any party having made an affi- davit to be used or which shall be used on any claim, motion, petition, or other proceeding (u) before the Court, shall be bound on being served with such writ to attend before an examiner, for the purpose of being cross- examined {v) : Provided always, that the Court shall always have a discretionary power of acting upon such evidence as may be before it at the time (w), and of making such interim orders, or otherwise, as may appear necessary to meet the justice of the case. {>•) For forms of these subpoenas, see Appendix, p. vii. post. The subpoena for documents must specify the documents required, and must Subpoena for be founded on the ordinary affidavit as to documents (as to which, see ante, documents note (p), p. 173 ; Fiott v. MuUma, 1 Sm. & Giff. 1 ; Winy v. Harvey, ibid, must not be App. X. ; Mcintosh v. Great Western Railway Compamy, iiid. ; or the appli- vague. cation for documents under it will be dismissed with costs, Lee v. Angas, 2 L. B. Eq. 59 ; Newland v. Steere, 13 W. R. 1014. (s) As to examination of witnesses in causes where notice of motion for Subpoena for decree is given, see note (A) pp. 169, 170, ante; and where issue is joined, see witness before note («) to sect. 31, p. 184, ante. examiner. In the case of evidence to be used at the hearing, each party inay now be Production of compelled to produce their own witnesses for cross-examination, Ord. 6th Feb. ^itnegj 1861, T. 19, post. (t) As to the mode of conducting the examination, see notes to seots. 31— What affidavits 34, «wte ; and Cto-^ V. (?iW, cited note (d) to sect. 34. _ _ are open to cross (u) The following affidavits have been decided to be within this section : — examination. An affidavit made in support of a petition under the Trustee Relief Act, Re Affidavits Bendyihe, 5 W. R. 816. under the Re- lief Act. 194 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 Vict, c. &6, s. 40. of creditor verifying claim; of plaintiff applying for leave to amend. On motions. Affidavit as to documents. Angwer of defendant. For and against whom cross- examination is evidence. Affidavit can- not be witli- drawn, unless merely formal. If no oppor- tunity to cross- examine, affidavit has less weight but may be admitted. A creditor's affidavit as to his claim, even though he has obtained a judg- ment at law, Cast v. Foyser, 3Sm. & Gif. 369 ; Re Baher, 11 W. K. 1127. An accounting defendant's affidavit verifying his claim, Re Lord, 2 L. R. Eq. 605 ; but see Ord. XXXV. 34. An affidavit filed in support of an application for leave to amend. Catholic Publishing Company v. Wymwn, 11 W. R. 399 ; but when the Court, exer- cising its discretion, had given leave to amend, it was held that no purpose could be answered by allowing the cross-examination, which was therefore refused (iSW.) ; and see jffoqper V. C(im;)6eM, rn/rt^. An affidavit in support of, or against a motion for decree {Williams v. Williams, 17 Beav. 156, 10 Hare, App. xlv.), or of interlocutory motions, Lloyd V. Whitty, 19 Beav. 57. But when an affidavit had been filed in sup- port of a motion for injunction, but the motion went off, it was held that the affidavit was not open to cross-examination, Hooper v. Campbell, 13 W. E. 1003. An affidavit as to documents is not within the section, note (p), p. 174. A defendant's answer in a cause where notice of motion for decree is given, is open to cross-examination within the section, see sect. 59, post, p. 223 ; Rehden v. Wesley, 26 Beav. 432 ; Wightman v. Wheelton, 23 Beav. 397 ; and the defendant will not be allowed to read his answer on a motion for decree, unless the plaintiff has had an opportunity to cross-examine him (ibid.) ; and see next note. But the cross-examination cannot be read against co-defendants {Rehden V. Wesley, 1. c). Where a plaintiff on motion for decree gives notice of his intention to read one defendant's answer against another defendant, such defendant is entitled to cross-examine the plaintiff thereon, see Dawkvrks v. Mqrtan, 1 J. & H. 339 ; and though the defendant's answer thus becomes the plaintiff's affidavit, the plaintiff may still cross-examine iim upon it, Brvimpfit V. Hart, 11 W. R. 63. A party cannot elect to withdraw his witness instead of producing him for cross-examination. Catholic Publishing Company v. Wyman, 1 N. R. 512 ; Cauty v. Jlolditch, 14 Sim. 75 ; Clarhe v. Law, 2 K. & J. 28 ; but see Re Syhes, 2 J. & H. 415. Where the affidavit was a formal one, merely proving service abroad, and had no relation to the merits of the case, a motion for cross-examination was disallowed, Official Manager of National, ofcc. Association ■7. Ca/rstairs, 11 W. R. 866. (v) See note {u) to sect. 31, ante, p. 184, as to causes where issue is joined. (w) As to a cause standing over when a witness was too ill to appear for cross-examination, see Nason v. Clamp, 12 W. R. 973. Affidavits which the opposite party has had no opportunity of testing by cross-examination may, in pressing cases (but see Bingley v. Marshall, 6 L. T. N. S. 682), be admitted, but will liave less weight attached to them : e.g., where a plaintiff at law moved to dissolve an injunction, and the motion was not allowed to stand over that the other side might cross-examine his wit- nesses, Normanville v. Starming, 10 Hare, App. xx. ; Mayer v. Spence, 1 J. & H. 87 ; WigHman v. Wheelton, 23 Beav. 397 ; but see Besemeres V. Besemeres, Kay, App. xviii., where the motion stood over that the wit- nesses might be cross-examined. For other cases where affidavits have been admitted for what they were worth, though on account of death or from other causes, no cross-examination had taken place on them, see Abadom v. Aba- dom, 24 Beav. 243 ; Morley v. Morley, 5 D. M. G. 610 ; Davies v. OUy, 13 W. R. 484 ; Braithwaile v. Seams, 34 Beav. 202 ; Ridley v. Ridley, ibid. 329 ; Ta/aswell v. Scurrah, 11 L. T. N. S. 761 ; and see note to Ord. XIX. 4, post. How any sub- XLI. In cases where it shall be necessary for any party sequent evi- .... j ir j dence is to be to any cause depending in the said court to go into evi- taken. dence subsequently to the hearing of such cause, such IMPROVEMENT OF JURISDICTION Of EQUITY ACT. 195 evidence shall be taken as nearly as may be in the man- .15 & 16 Vict. ner hereinbefore provided with reference to the taking of — — '— — ^ evidence with a view to such hearing (a;). (x) See now, as to evidence taken after the hearing, Ord. 5th Feb., 1861, Examination of r. 15, which preserves the old practice of taking such evidence. witnesses after A special order for the examination of witnesses under this section is unne- hearing, cessar; {Anon., 23 L. J. Ch. 24) ; and a special application under such circum- stances was refused with costs {Howard v. Sewell, 1 W. R. 124). See farther as to the cross-examination of a witness upon his affidavit after deeree, before the chief clerk, ante, p. 151. XLII. It shall not be competent to any defendant in Defendant not any suit in the said court to take any objection for want tion for want of parties to such suit in any case to which the rules next "^ P^'ties m r J any case to hereinafter set fdrth extend ; and such rules shall be which rules deemed and taken as part of the law and practice of the ghalUxteni said court, and any law or practice of the said court inconsistent therewith shall be and is hereby abrogated and annulled iy). Eule 1. Any residuary legatee or next of kin may, with- out serving the remaining residuary legatees or next of kin, have a decree for the administration of the personal estate of a deceased person {z). Eule 2. Any legatee interested in a legacy charged upon real estate, and any person interested in the proceeds of real estate directed to be sold, may, without serving any other legatee or person interested in the proceeds of the estate, have a decree for the administration of the estate of a deceased person (s). Eule 3. Any residuary devisee or heir may, without serving any co-residuary devisee or co-heir, have the like decree {z). Eule 4. Any one of several cestuis que trust under any deed or instrument may, without serving any other of such cestuis que trust, have a decree for the execution of the trusts of the deed or instrument {a). Eule 5. 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 sue on behalf of himself and of all persons having the same interest. . Eule 6. Any executor, administrator, or trustee may o 2 196 IMPROVEMENT OF JUEISDICtlON OF EQUITY ACT. 15 & 16 Vict. 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 (z). Eule 7. In all the above cases the Court, if it shall see fit, may require any other person or persons to be made a party or parties to the suit, and may, if it shall see fit, give the conduct of the suit to such person as it may deem proper, and may make such order in any particular case as it may deem just for placing the defendant on the record on the same footing in regard to costs as other parties having a common interest with him in the matters in question. Kule 8. In all the above cases the persons who, accord- ing to the present practice of the court, would be necessary parties to the suit, shall be served with notice of the decree (b), and after such notice they shall be bound by the proceedings in the same man- ner as if they had been originally made parties to the suit, and they may by an order of course have liberty to attend (c) the proceedings under the decree ; and any party so served may, within such time as shall in that behalf be prescribed by the general order of the Lord Chancellor, apply to the Court to add to the "(Jecree (d). Eul^ 9. In all suits concerning real or personal estate which is vested in trustees under a will, settlement, or otherwise, such trustees shall represent (e) the persons beneficially interested under the trust, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons beneficially interested under the trusts parties to the suit ; but the Court may, upon consideration of the matter, on the hearing, if it shall so think fit, order such persons, or any of them, to be made parties (/). IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 197 (y) The section is retrospective, Fowler t. Bayldon, 9 Hare, App. Ixxviii. 15 & 16 Vict. As to parties to suits generally, see Daniell, 187 — 287, c. 86, s. 42. As to instituting suits to execute the trusts of a will in the absence of the heir at law, see Ord. Til. 1, post. Section retro- And as to proceeding against some of several persons jointly and severally spective. liable, see Ord. VII. 2, post. And as to making a decree in the absence of a trustee, see sect. 49 of the Decree in Trustee Act, ante, p. 108 ; and see Ord. XXIII. 11, jpost, as to cases iu which absence of a decree may be made, saving the rights of absent parties. parties ; (?) As to the section applying to proceedings under the Trustee Relief Act, see Re Colson, cited in note (r), p. 73 ; under the Trustee Act, 1850, note (x), p. 103, ante; and under the Special Case Act, note (6), p. 118, ante. A suit may be proceeded with, without making the real representatives of Representa- residuary devisees, who have died abroad before the institution of the suit, tives of former parties to the snit, although the devisees themselves have through ignorance of party dispensed their death been so named (Bateman v. CooJce, 1 W. R. 242). with. And compare cases cited in note to sect. 44, infra, as to dispensing with Sect. 44. personal representatives of deceased person. See as to making several of a numerous cla£3 represent the class both as plaintiffs and defendants, SroirUey v. Williams, 32 Beav. 177. (a) So one cestui que trust may, without serving his co-cestui que trust, One of several obtain an order for the appointment of new trustees (Jones v. James, cited cestuis que note (a;), p. 103, ante). trusts or trus- ' A cestui que trust may make one of several trustees or cestuis que trusts tees made liable for a breach of trust without making the other trustees parties, see Ord. party. Vlt. 2, post, and note ; and without making the other cestuis que trusts parties (McLeod V. Annesley, 16 Beav. 600 ; but see Jesse v. Bennett, 6 D. M. G. 356, cited post, note (e ) ; Bridget v. Hames, 1 Coll. 72). (b) The old practice was to make all persons interested parties, and to serve Old practice those against whom no direct relief was sought with a copy of the bill, and of praying that to pray that they might be bound by all the proceedings, see Ord. X, 11, and persons inte- notes. rested might be See now as to serving notice of the decree, Daniell, 395, 398 ; and as to bound, serving it on infants, Ord. VII. 5, post ; Clarke v. Clarke, 1 W. R. 48. Serving parties Memorandum of service is to be entered in the office of the Clerks of Records ^jjjj notice of and Writs, Ord. XXIII. 19, 20, post. decree. Notice of the decree may be served out of the jurisdiction. Strong v. Moore, ,, „ ;„,:„,ii„ 22 L. J. Ch. 917 ; Chalmers v. Laune, 10 Hare, App. xiii. ; Maybery v. V^!;"'' ™ Broofmg, 7 D. M. Q. 673. * ' The judge in chambers will direct who are the proper persons to be served. Who are to be De Baliaihard v. Bullock, 9 Hare, App. xiii. ; see for mode of obtaining such served, direction, 7th Regal, as to business, Aug. 1857, Appendix, p. liv. post. Persons who at the date of the decree had no interest in the suit cannot be Not parties brought into court under this rule, and when trustees appointed after decree who acqwire obtained an order of coarse to attend the proceedings, it was discharged as interest in suit, irregular, Colyer v. Oolyer, 11 W. R. 355. (c) See Lewis v. Clowes, 10 Hare, App. Ixii. and note ; and for form of Order for order, see Seton, 1213. liberty.to When parties served with notice of a decree do not attend proceedings at attend proceed- chambeis, it is not necessary before signing the certificate to serve them with ings. summons to proceed. Green v. Measures, 1 W. N. (1866), 122. (d) See Ord. XXIII. 18, post. . When a pai-ty served with notice of the decree feels himself aggrieved Practice on and thereby, he should move the Court on notice for leave to file a bill in the effect of such nature of a bill of review (Kidd v. Cheyne, 18 Jur. 348) ; but aemble service. he may appeal against the decree, Ellison v. Thomas, 1 D. J. S. 18. Ser- vice of notice of a decree for sale in a suit does not make the decree bind- ing on a judgment creditor, who is not a party to the cause (Knight v. Pocock, 24 Beav. 436 ; see also as to rule 8, generally, Doody v. HiggvM, 9 Hare, App. xxxii.), (e) This rule does not apply when the trustees have disclaimed (Tovmg v, When trustees 'Wa/rd, 10 Hare, App. Iviii.) ; nor ordinarily, where surviving trustees only, or represent ces- tuis que trusts. 198 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 fc 16 Viot. the representatives of sucli aa are dead only, are made parties {Stansjteld v. «. 86, s. 42. Hobson, 16 Beav. 189). In an administration suit, the trustees of a marriage settlement sufficiently (1) Where the represented the children of the marriage under the rule, Densem v. ElwoHhy, cestuis que 9 Hare, App. xlii. ; but its operation is not confined to administration suits trusts are par- (Fowler t. BayMon, 9 Hare, Ixxviii. ; comp. McLeod t. Aivnesley, 16 Beav. ties to adminia- 600). In applying it generally, hovpever, the Court will exercise the discretion ration, suits. given by the concluding clause. (2) Where thev The trustees of mortgaged property may not generally represent their cestuis are defendants" ?"* trusts in a suit to foreclose them, Tudov v. Morris, 1 Sm. & GifF. 503 ; to foreclosure Cropper v. Mellersh, 24 L. J. Ch. 430 ; Goddass v. Williams, 2 Y. & C. C. C. 596 ; Wilton v. Jones, ibid. 244. Croppers. Mellersh, however, was commented upon with disapprobation by V.-C. Wood in WUhiMS y.. Reeves, 3 W. R. 305 ; and in a similar suit, Goldsmid v. Stonehewer, 9 Hare, App. xxxviii,, it was held that infant cestuis que trusts were snficiently represented by their trus- tees, but as to adult cestuis que trusts, it was held that they ought to have the opportunity of redeeming; and, therefore, the decree of foreclosure should not be made against the trustee only ; and see Fowler v. Bayldon, 1. c. ; and in another case the Court made a decree for sale of a mortgaged estate in the absence of infant cestoM que trusts and of the representative of a deceased adult cestui que trust upon an affidavit of the trustee that it would be for the benefit of the infants, and at the same time ordered the proceeds to be paid into court (Siffhen v. Davis, Kay, App. xxi. marginal note). A surviving trustee for sale and executrix, who was also tenant for life of the property, sufficiently represented the parties in remainder under this sec- mortgaged land tion in a suit for foreclosure and sale {Marriott v. Kirkham, 3 Giff. 536). and the money. And in cases where the executors of a deceased mortgagor are parties to a suit for foreclosure (Sale v. Kitson, 3 D. M. G. 119; Haaiman v. Riley, 9 Hare, App. xl.), it has been held that the cestuis que trusts need not be joined in the suit, upon the ground, apparently, that the whole property out of which the mortgage is to be satisfied is represented (Sale v. Kitson, 1. c. ; but see the statute 17 & 18 Vict. c. 113, by which the mortgaged lands are made primarily liable to the payment of the mortgage debt). Possibly, since the latter Act, the Court may be disposed to put a greater latitude upon this section in suits for the foreclosure and sale of mortgaged property. See, too, 22 & 23 Vict, c. 35, s. 14, post, giving power to devisees in trust of real estate to sell the same for payment of debts notwithstanding the want of any express power in the will. 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 sufficiently represented on the record by the trustees. Pare v. Clegg, 29 Beav. 689. See, too, Bromley v. WUliama, 1 N. R. 413. As to trustees with a power of sale representing their cestuis que trusts on a suits. Infant and adult cestuis que trusts. Where trustees have both the Locke King's Act. Friendly soci- ety. Trustee Act. Settled Estates petition under the Trustee Acts, see note (a), p. 104, cmte, and on a petition Act. under the Settled Estates Act^ see note to sect. 17 of that Act, p. 244, post. When trustees Trustees do not sufficiently represent their cestuis que trusts on a bill to set may not repre- aside a settlement (Reed v. Prest, 1 K. & J. 183) ; and in a suit to restore sent cestuis trust property instituted by the representatives of a trustee against his co- que trusts. trustee, both of whom had committed breaches of trust, in which some of the cestuis que trusts had concurred, such cestuis que trusts were held necess iry parties (Jesse v. Bennett, 6 D. M. G. 365 ; see, too, Bevaynes v. RoUnson, 24 Beav. 86, 99, and Payne v. Pwrher, 1 L. R. Ch. 327). Executor with Executors with a power of sale are within the section (Shaw v. Hardingham, power of sale ^ ^" ^" ^^^^ ' ^""^ where there was a devise to trustees subject to the pay- within Act. ' ™™'' °^ debts with a general residuary devise over, the general residuary devisee was held to be an unnecessary party to a suit to carry the trusts of a will into execution ^Smi^A v. Andrews, 4 W. R. 363). In Bolton v. Stannard, 6 W. R. 570, however, where there was only an implied power of sale in the executrix. Sir John Romilly, M, R., held that she was not a trustee within the section; but see now 22 & 23 Vict. c. 35, s. 14, cited above, and Lewin, 343,. 348 ; Williams on Executors, 1866. IMPROVEMENT OF JUEISDICTION OF EQUITY ACT. 199 (/) Notwithstanding the above rules, it was held that when an estate is to be 15 & 16 Vict, sold under the decree of the Court, all persons interested in the property ought, c. 86, s. 42. if possible, to be made parties to the suit, or at least to be served with notice ■ of the decree under rule 8 ; so that a purchaser's title might not afterwards be Sales by decree impugned ; but see now 22 & 23 Yict. c. 35, sect. 23, post ; Soodyv. Higgins, of Court. 9 Hare, App. xxxii. ; Pigott v. Pigott, 8 L. T. N. S. 268 ; and see Cuddich y. Cook, 32 Eeav. 70. Where executors who had obtained indemnity under 22 & 23 Vict. o. 35, s. Defect im 29, were improperly made defendants in a suit to recover assets, the Court parties not re- reftised to make the legatees parties under this section, Olegg v. Bowland, 3 medied under L. R. Eq. 368. section, XLTII. The practice of the said court of setting down Setting down a cause merely on an objection for "want of parties to the tion foTwant ' suit shall be abolished (a). of parties r abolished. {g) See Ord. XXIII. 11, and notes. XLIV. (/t) If in any suit or other proceeding (i) before Court maypro- the Court it shall appear to the Court that any deceased suit, &c., with- person who was interested in the matters in question has "."* ""epresenta- ■^ . . ^ tive of deceased no legal personal representative, it shall be lawful for the person, or may Court either to proceed in the absence of any person ^^^°"' °°^' representing the estate of such deceased person (&), or to appoint some person (Z) to represent such estate for all the purposes of the suit or other proceeding, on such notice to such person or persons, if any, as the Court shall think fit, either specially or generally by public advertisements ; and the order (m) so made by the said Court, and any orders consequent thereon, shall bind the estate of such deceased person in the same manner in every respect as if there had been a duly constituted legal personal representative of such deceased person, and such legal personal representative had been a party to the suit or proceeding, and had duly appeared and submitted his rights and interests to the protection of the Court. {h) Under the old practice, administration ad litem, i.e., limited to the Administration proceedings taken in Chancery, was, in cases of pressing necessity, granted by ad litem the Ecclesiastical Court (Mitf. PL, pp. 204 et eeqq.), and now by the Court of limited to the Probate, see Williams on Executors, 498. It seems that an administrator ad purposes of the litem was never treated as a sufficient representative, where the object of the suit, suit was not only to bind but to administer the estate (droves v. Levi or Lane, 9 Hare, App. xlvii. n.). Secas when the object was merely to bind the estate [Davis v. Chanter, 2 Ph. 545 ; Maclean v. Dawson, 27 Beav. 369 ; 200 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 Vict, and see Devaynes v. Robinson, 24 Beav. 86; and Williama v. AUtn, 32 c. 86, o. 44. Bear. 656 ; nor will the Court order money to be paid out to an administrator ad litem {ibid). And it is enacted by the Probate Act, a. 70, " that the admiuis- Does not give trator so appointed shall have all the rights and powers of a general administrator right of general other them the right of distrSmting t/ie residue of such personal estate." The administration, administrator may also be appointed receiver of tiie rents of real estate (s. 71). 20 &. 21 Viet, ^y ^^^ 73rd section of the same Act, the Court of Probate may, " whenever it g yy_ ' shall appear necessary or convenient by reason of the insolvency of the deceased or other special circumstances,*' appoint a nominee of its own to be adminis- trator of the personal estate of a deceased person, and " every such adminis- tration may be limited as the Court shall see Jit," Se John Jones, 6 W. B. 276. See Williams on Executors, 500. Other pro- (i) Special cases under Sir Geo. Turner's Act, (Swallow v. Bimu, '9 Hare, ceedings." App. xlvii.); and petitions (jBe Stewart, Hid.), are within the section. (k) For cases where the death of a party to the suit causes no abatement, see note (q), p. 212. Kevocafion of a probate or administration pending a suit causes no abatement, 20 & 21 Vict. c. 77, s. 76. Section does (l) This section was not intended to apply to cases (1) Where there is no not apply — difficulty in obtaining representation, see Long v. Storie, 1 Kay, App. xii. (1) where no (in which case V.-C. Wood refused to act behind the back of a person who was difficulty in on the point of administering to the estate). (2) Where the interest of the administra- party to be bound is wholly unrepresented in the suit, Cox v. Stephens, 11 tion; W. R. 929; see Gibson y. Wills,21 Beav. 620; where a question arose between (2) where in- surviving children and the representatives of deceased children, and the living terest of party children asked that as representation had not been taken out to two of the to be bound is deceased children, one might be appointed under this section, but Lord Romilly, not repre- ^- ^'> refused, and said : " It is clear that there is a hostile question for di.s- sented ■ cussion, and the plaintiffs ask the Court to appoint a nominee of their own to represent their adversaries. If the Court sees that there are other persons present who bond fide represent the interest of those absent, it may allow that interest to be represented, but it will not allow the whole adverse interest to be represented." See also Headden t. Emmott, 22 L. T. 166, the dicta in which case, however, must be taken with some qualification (see the obser- vations of the Master of the Rolls in Deam, of Ely v. Gay ford, 16 Beav. 561). So a general representative is required when a decree is sought against the very party 'to be represented, as where n, sub-mortgagee sought a decree for fore- closure, without making the personal representatives of the first mortgagee parties, Bruiton v. Birch, 22 L. Ji Ch. 911 ; the objection will not apply, however, when the heir at law and executors named in the will of a deceased person, whose estate may be charged by the suit, are parties, though the executors have not proved {Qodda/rd v. Haslam, 3 W. R. 857). Comp. Ex parte Cramer, 9 Hare, App. xlvii. ; Williams v. Rowlands, 3 N. R. (3) where ge- 233. Nor does the seotion apply (3) where the object of the suit is not only neral adminis- to bind but to administer (see note (h) supra) the estate of the intestate tration is (Silver v. Stein, 1 Drew. 295 ; Groves v. Levi or Lane, 9 Hare, App. sought ; xlvii. ; but see Jones v. FovXkes, 10 W. R. 65, where by consent the order was made under the general jurisdiction), even though the whole interest of the person whose estate is sought to be represented has been assigned, and the administrator is alleged to be out of the jurisdiction (Donald v. Bather, 16 Bear. 26) ; and even though'an administrator ad litem be before the Court (Groves v. Levi, 1. c). In James v. Aston, 2 Jur. N. S. 224; Macleam, v. Dawson, 27 Bear. 21 ; the bill was filed to set aside transactions on the ground of fraud of the intestate, but as the result of such setting aside would have been an administration decree, it was held that the seotion (4) or the ad- did not apply. (4) Nor where a personal representative of the intestate would ministrator have active duties to perform in the execution of thedecree, Fowler v. Baylden, ad litem would 9 Hare, App. Ixxviii, So the Court will not, under this section, appoint a have to be person to receive a sum of money in court, payable to a deceased person, though active. the amount be small (Rawlins v. McMahon, 1 Drew. 226) ; and even where a representative has been appointed in the suit, it will not direct the money to be paid to him, but will order it to be carried over to a separate account IMPROVEMENT OP JURISDICTION OF KQTJITY ACT. 201 {Byam y. Se G. & J. 119, under the 54th section, and the cases cited above). or on admission In Be Wiltshire's Estate, 8 W. K. 133 ; it was held by V.-C. Stuait, that an of assets ; executor cannot, on an administration summons, be charged upon an admission of assets. or with refusal Where the representative of an executrix in effect refuses to account, a to account. person interested is always justified in filing a bill, and will be allowed the costs of such bill, particularly if questions of construction arise (Smith v. Spilshuiry, 1 Drew. & Sm. 151). Staying suit (j) As to staying proceedings where two administration suits have been after summons, instituted fpr the same purpose, see note to Ord. VX. 1. Copy of sum- XL VI. A duplicate or copy of such summons shall, mons to be . '^ '^'' filed in record previously to the Service thereof, be filed in the record oe oour . ggjgg ^f ^j^g gg^^^ court ; and no service thereof upon any executor or administrator shall be of any validity unless the copy so served shall be stamped with a stamp of such office indicating the filing thereof; and the filing of such summons shall have the same effect with respect to lis pendens (r) as the filing of a bill or claim. (r) See 2 & 3 Vict. c. 11. Creditor, &o., XL VII. It shall be lawful for any person claiming to OTder'for'admi- ^® ^ Creditor of any deceased person, or interested under nistration of his will, to apply for and obtain in a summary way, in the manner hereinbefore provided with respect to the personal estate of a deceased person, an order for the administration of the real estate of a deceased person, where the whole of such real estate is by devise vested in trustees, who are by the will empowered to sell such real estate, and authorized to give receipts for the rents and profits thereof, and for the produce of the sale of such real estate (s) ; and all the provisions hereinbefore contained with respect to the application for such order in relation to the personal estate of a deceased person, and consequent IMPBOVEMENT OF JUEISBICTION OP EQUITY ACT. 205 thereon, shall extend and he applicahle to an application 15 & 16 Vict, for such order as last hereinhefore mentioned with respect "• ^^' °" ^^' to real estate (t). (s) A devisee of real estate, subject to the payment of a testator's debts and Devisee of funeral and testamentary expenses, is a trustee within the section {Ogden v. real estate Lowry, i W. R. 156. See also Pigott v. Ymng, 7 W. E. 235, T.-C. K. ; and subject to 22 & 23 Vict. c. 35, s. 14, and Williams on Executors, p. 1856), Le-win, 343, 348. debts. (i) See the notes to sect. 45. XL VIII. It shall be lawful for the Court in any suit for 9.°"''' ™?y , the foreclosure of the equity of redemption in any mort- mortgaged gaged property, upon the request of the mortgagee (w), or ^["ad'of a'fore- of any subsequent incumbrancer, or of the mortgagor (u), closure on or any person claiming»under them respectively to direct ;"^aytSfnk° a sale of such property, instead of a foreclosure of such fi'- equity of redemption, on such terms as the Court may think fit to direct {w), and if the Court shall so think fit, without previously determining the priorities of incum- brances, or giving the usual or any time to redeem ; provided that if such request shall he made by any such subsequent incumbrancer, or by the mortgagor, or by any person claiming under them respectively, the Court shall not direct any such sale, without the consent of the mortgagee or the persons claiming under him, unless the party making such request shall deposit in court a reason- able sum of money, to be fixed by the Court (x), for the purpose of securing the performance of such terms as the Court may think fit to impose on the party making such request. (u) See for. the practice before and under the section, Davidson, II. 552. Object of sec- The right of an equitable mortgagee by deposit vrithout memorandum is tion. foreclosure, not sale, Samble v. Wilson, 5 N. E. 395 ; and see Seton, 448. Mortgagee's Even a legal mortgagee cannot obtain an order under this section, except right to sale, where it would be for the advantage of all parties. The Court will not, there- fore, act under it, when such a course would be an act of oppression towards the mortgagor, as, for instance, when it would dispossess a family of an old family estate (^ws< v. Hurst, 16 Beav. 375, which see generally). And when the When mort- mortgagor or subsequent incumbrancer dissent, the mortgagee must make out gagor dissents. a special case, in order to induce the Court to order a sale (Roberts v. Price, 1 W. E. 303 ; and comp. Hioms v. Moltom, 16 Jur. 1077, where the Master of the Eolls expressed a reluctance to order a sale under this section, unless by consent, except in cases when there was such a complication that the common decree could not be conveniently worked out). In a foreclosure suit against an infant, the Court, it being clearly for his benefit, ordered an imme- diate sale (Mears v. Best, 10 Hare, App. li.) ; see WigAam v. Measor, 6 W. E. 394 ; and see Siffhen v. Dames, Kay, App. xxi. , cited in note (e) to sect. 42. In this case, however, the Court required an affidavit by the trustee that the sale would be advantageous to the infant. Where the mortgagors were 206 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 1 5 A 16 Vict, bankrupt, and there were several incumbrancers, the Court directed a sale 0. 86, s. 48. (Cator v. Reeves, 9 Hare, App. liii. n.). So, thonghin Wichhamv. Nicholaon, 19 Beav. 38, a sale was ordered at the request of the first and second mortgagees When some of and mortgagor, the third mortgagee refiising to consent ; (and see Paine v. Ed- the inoum- wards, 10 W. R. 709 ; Foster v. Hwrvey, 11 W. R. 899 ; 12 W. R. 92), yet ' brancers dis- in Messor v. Soyle, 21 Beav. 559, it was held, that a judgment creditor rank- sent, ing after a first mortgagee, but prior in date to a further charge and to other judgments, was entitled to a decree for foreclosure and redemption, although the other parties desired a sale ; see now as to sales by a j udgment creditor, note (a), p. 3, ante. Gomp. Footner v. Sturgis, 5 De 0. & Sm. 736 ; Tuckley v. Thompson, 1 J. & H. 126, and cases there cited. When mort- (v) It was said that there can be no sale of mortgaged property, except sub- gagee dissents, ject to the mortgage, without the mortgagee's consent ( Wickenden v. Sayson, 6 D. M. G. 210) ; but now the mortgagor may obtain the order though the ^ mortgagee dissents, Neiemam, t. Selfe, 33 Beav. 522 ; and as to the right of a tenant for life, subject to incumbrances, to ask for a sale, see Cook r. Chol- Conduct of mondeley, 5 W. R. 835. Where the sale is applied for by and granted at the sale. instance of a second incumbrancer, the Court, in the exercise of its discretion, will give the conduct of the sale to the first mortgagee (Hewitt v. Nanson, 7 W. R. 6 ; and see Daniell, 1167, and Ord. XXXV. 13, post). On what terms W The Court will not, under this section, in the first instance, or in the sale is ordered, absence of the owners of the equity of redemption, direct a sale, but will, as in the case of a foreclosure, fix a day for the payment, and, in default, direct a sale {Smith v. Robinson, 1 Sm. & G. 140 ; comp. Lloyd t. Whittey, 17 Jur. 754) ; unless all the parties consent (Anning v. Lavers, 1 W. R. 19) ; but in Newman v. Selfe, 33 Beav. 622, the Master of the Rolls held that the Court might direct an immediate sale notwithstanding the dissent of the mortgagor ; and in Marriott v. KirTcham, 10 W. R. 340, an immediate sale was ordered. The usual time is six months {Lloyd y. Whittey, 1. c). In Whitfieldx. Roberts, 7 W. R. 216, the time fixed was four months from the certificate, and this time was afterwards extended ; but when a sale was manifestly for the benefit of all parties, the Court directed it to take place in one month (Staines v. Rudlin, 9 Hare, App.-liii., note; and cf. Wigham v. Measor, 5 W. R. 394 ; where an immediate sale was ordered). It seems that an equitable mortgagee is not, even since the Act, entitled to a decree for sale except by consent (Oox V. Toole, 20 Beav. 145, sed quaere). Foreclosure ^^ ''^^ heen held by Y. -C. Stuart, that mortgagees may, under this section, need not be ^'^ ^ ^^^^ '^'"' ^^ account of what is due to them, and for a sale, although the prayed for. mortgage contains a power of sale, and aforedoswe is not prayed for tythe bill (Button v. Sealey, 6 W. R. 360). See also, in connection with this section, ■ Sporle v. Whayman, 20 Beav. 607 ; Macrae v. Ellison, i Jur. N. S. 967. At what stage The Court will not, under this section, order a sale on an interlocutory of suit sale application (Wayn v. Lewis, 1 Drew. 487; and it has been said that a sale ordered. cannot be directed after a decree for foreclosure has been made (ibid.) ; even on the application of the mortgagee (Qirdleston v. Lavender, 9 Hare, App. Whether after liii.). And in a ease in which a decree for foreclosure had been made in decree for fore- February, 1861, and in January, 1853, after report made, an order was taken closure. by consent that the plaintiff, the first mortgagee, should be at liberty to con- tinue in possession until the 23rd of June, 1864, and that upon payment within one week after that date of the amount due, the plaintiff should convey, &c., but that in default of such payment the defendants should be foreclosed with- out further order or further extension of time, a motion by the second mort- gagee for further extension of time, and that in the meantime the property might be sold under this section, was refused, with costs (Campbell v. Moiohay, 18 Jur. 641 ; see marginal note). In Laslett v. Cliffe, 2 Sm. & G. 278, however, V. -C. Stuart considered that the section gav6 power to direct a sale after a decree for foreclosure had been made, being of opinion that the Court ought not, when a plaintiff had obtained a decree, to insist upon his proceed- ing against his will on a decree which he obtained for his own advantage, when he preferred a different course authorised by the Legislature (cf. Oooh v. Chol- mondeley, 5 W. R. 836). It will be observed that these remarks do not apply to such a case as Campbell v. Moxhay, 1. «., where the party applying had not the IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 207 carriage of the snit. As to the form of the decree for sale under this section, 15 & 16 Vict, see Staines v. Budlin, 16 Jur. 965 ; Cator t. Beeves, 16 Jur. 1004 ; Seton, u. 86, d. 48. p. 365. (a;) The deposit mast be enough " to meet at a rough estimate the possible Deposit when expenses of an abortive attempt at a sale " (Bellamy v. CocMe, 2 W. R. 326) ; sale ordered see Oorsellis v. Potman, 4 L. R. Eq. 156 ; and a reserved bidding will be fixed without con- sufScient to cover the sum found due to the mortgagee ( Whitfield v. Boberts, sent of mort- 7 W. R. 216) ; and when the mortgagor declined to deposit 1002., an order for gagee. foreclosure was made (Boydell v. Manhy, 9 Hare, App. liii.). As a general rule the conduct of the sale, even when it is asked for by the second mortgagee, ■will be given to the first {Hewitt v. Nanson, 7 W. R. 5). XLIX, No suit in the said court shall be dismissed by Suit not to be reason only of the misjoinder (y) of persons as plaintiffs m^oSder of therein (z), but wherever it shall appear to the Court that, plaintiffs, but notwithstanding the convict of interest in the co-plaintiffs, modify its or the want of interest in some of the plaintiffs, or the ^_^««''^«^%*p''°^^- existence of some ground of defence affecting some or circumstances, one of the plaintiffs, the plaintiffs, or some or one of them, are or is entitled to relief, the Court shall have power to grant such relief, and to modify its decree according to the special circumstances of the case, and for that purpose to direct such amendments, if any, as may be necessary, and at the hearing, before such amend- ments are made, to treat any one or more of the plaintiffs as if he or they was or were a defendant or defendants in the suit, and the remaining or other plaintiff or plaintiffs was or were the only plaintiff or plaintiffs on the record ; and where there is a misjoinder of plaintiffs, and the plaintiff having an interest shall have died leaving a plaintiff on the record without an interest, the Court may, at the hearing of the cause, order the cause to. stand revived as may appear just, and proceed to a decision of the cause if it shall see fit, and to give such' directions, as to costs or otherwise, as may appear just and expedient. , (a) As to misjoinder, vld. Mitf. on Pleading, 399 ; Daniell, 226. Before the Misjoinder. Act misjoinder was a ground for demurrer (Cuff v. Platell, i Russ. 242), or for a plea {King of Spain v. Machado, 4 Russ. 225 ; Makepeace v. Hay- (Aoj-Jie, iW. 244), as the case might be. _ ,,,,,,. ,^ , ,, (z) The section applies to a plaintiff suing on behalf of himself and others, gnit by plain- Thus where on a bill by one member of a company on behalf of himself and tiff on behalf all others except the defendants, praying an account of the receipts and pay- of himself and ments of the defendants on behalf of the company, and the payment of what others, should be found due to the plaintiff, it appeared that, owing to certain circum- stances the interests of some of the persons represented by the plaintiff were 208 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 Vict. diflFerent from his, it was held, that the case was within this section, and that c. 86, B. 49. the Court might treat the ahsent plaintiffs as defendants, and might determine whether a decree should be made {Clements v. Sowes, 1 Drew. 684, 694). In this case the Court directed the plaintiffs, having conflicting interests, to be Berred with and to have liberty to attend the proceedings on taking the accounts directed (ibid.). See, too, Beechmg v. Lloyd, 3 Drew. 227 ; Evant v. Coventry, ibid. 76 ; on appeal, 5 D. M. G. 911, 918 ; Stwpart v. Arrow- smith, 3 Sm. & G. 176. 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- plaintiff, Bewrdmore v. Gregory, 2 H. & M. 491. The section is imperative that a bill shall not be dismissed for misjoinder {Clements v. Bowes, 1. c). But see Barton v. Barton, 8 K. & J. 512. Suit by plain- Where a testatrix gave property to her two daughters, and made one of tiff filling two them her executrix, and the two daughters created an equitable mortgage of characters. part of the real estate, partly for the purpose of paying the debts of the testa- trix, and partly for their private purposes, and the daughter who was executrix died, having appointed as her executrix the other daughter, who filed a bill against the equitable mortgagees to have the title-deeds of the estate delivered up, it was held that the case was within this section, and that the plaintiff might file the bill in her character of representative both of the daughter and of the mother {Carter v. Sanders, 2 Dr. 248, qti. vid. ). See also, as to -mis- joinder since the Act, Williams v. Page, 24 Beav. 669 ; Barton v. Barton, 3 K. &J. 512. Where a bill is filed by a husband and wife to set aside an appointment made by the wife on the ground that her execution was fraudulently obtained, this is not merely a case of misjoinder which can be cured under this section, and the bill must be amended by making it the bill of the wife by her next friend (Hope v. Fox, IJ. & H. 456 ; Smith v. Euhes, 1 H. & M. 558). L. No suit (a) in the said court shall be open to objec- tion on the ground that a merely declaratory decree or order is sought thereby (J), and it shall be lawful for the Court to make binding declarations of right without granting consequential relief (c). (a) A petition under the Trustee Relief Act is within the section {Re Walker, 16 Jut. 1154, cited p. 71, anU, and see sect. 30 of "Trustee Act, 1860"). But see Sharshaw v. Oihis, Kay, 333. {b) This could not be done under the old law (see Grove v. Bastard, 2 Phil. 622). (c) Where a declaration is asked and also an injunction, such injunction is consequential relief (Marsh v. Keith, 1 Drew. & Sm, 342). The tendency of the later decisions on this section has been considerably to restrict its operation. Thus, notwithstanding the earlier cases of Fletcher v. Mogers, 10 Hare, App. xiii., and Wright v. King, 18 Beav. 461, it was held by Lord J ustice Turner (Lord Justice Knight Bruce abstaining from giving an opinion), that it gave the Court no powgr to ieclaxeftUwe rights {Lady Lang- dale V. Briggs, 8 D. M. G. 391) ; see the case before the court below, 3 Sm. & G. 245 ; comp. Bwrt v. Simrt, 1 W. E. 145 ; Greenwood v. Sutherland, 10 Hare, App. xii., and Garlick v. Lawson, ibid, xv., where the Court, in a special case, refused to make a binding declaration under this section as to the interests of parties entitled in reversion. See, also. Gosling v. Gosling, 1 Jo. 265 ; Fyfe v. Arbuthnot, 1 De G. & J. 406 ; BeU v. Cade, 10 W. R. 38. Or to bind When some of the parties were infants, and therefore unable to bind them- infants. selves, it was held that the Court had no power, even by consent, to decide a purely legal question, so as to bind the infants ( Webb v. Byng, 8 D. M. G. 633). Where, however, a lessee prayed a declaration of her right to claim a renewal of the' lease at the expiration of the term, and also prayed that a railway coni- Suit by hus- band and wife. No suit to be objected to if only declaratory order sought. Petition under Trustee relief Act. " Consequen-* tial relief." No power under section to declare future rights. IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 209 pany might be ordered to compensate her on the footing of such right, a 15 & 16 Vict, demurrer to the bill on the ground that her right (if any) -was infuturo, was o. 86 o. 50. overruled, Bogg v. Midland Railway Company, 2 W. N. (1867), 98. Nor will the section entitle a party to a prospective declaration guarding Court will not against a claim which may never be made. Thus, when a lease was granted make order to two partners, the covenants being only joint at law, and the representative guarding of one partner deceased filed a bill against the lessor, alleging that he claimed against claim a right under the covenants if a breach should arise, and praying a declaration which may not that he had no such right, notwithstanding the section, the demurrer was arise, allowed {Jackson v. Turnhy, 1 Drew. 617, qu. vid.) ; and it seems the section does not apply, unless the plaintiff would be entitled to consequential equitable relief if he chose to ask it {Soohe v. Lord Kensington, 2 IC. & J. 753 ; Jackson V. Tiumley, 1. c). Nor, it seems, can the Court, under this section, make a jJqj declara- decree declaratory of a merely legal right (Trustees of the JUrkeiAead Docks v. y^jj gf jepal Laird, i D. M. G. 732, 738 ; see, too, Bristow v. Whiimore, i K. & J. 743 ; right. Norman v. Johnson, 8 W. R. 300 ; and see as to the decision of questions of law arising in a suil^ ss. 61, 62, post, p. 224, and note {d) to sect. 3 of Lord Cairns' Act, p. 264, post. In Byam v. Byam (19 Beav. 58), the Court, to save expense, made a decla- When Court ration respecting the construction of certain marriage articles, instead of direct- makes declara- ing a settlement. Comp. Wright v. King, 18 Beav. 461, where a similar tion to save course was adopted in the case of a ward of Court whose fortune was small. In expenses, &c. Hope V. Hope, 4 D. M. G. 328, a declaration upon a point of Bnglish law was made for the information of a foreign court. Compare note (d) to sect. 3 of Lord Cairns' Act, p. 264, post. For cases where a small settlement has been made for the purpose of raising Fictitious suit, a question as to legitimacy and getting a declaratory decree, see Gurney v. y, 1 H. & M. 413; Anon., 2 H. & M. 124. LI. It shall be lawful for the Court to adjudicate on Court may questions arising between parties (d), notwithstanding that f^^'g of''thJ^^° they may be some only of the parties interested in the parties with- property respecting which the question may have arisen, Q^jjers inter- or that the property in question is comprised with other ^sted parties property in the same settlement, will, or other instrument, without making the other parties interested in the pro- perty respecting which the question may have arisen, or interested under the same settlement, will, or other instru- ment, parties to the suit, and without requiring the whole trusts and purposes of the settlement, will, or other instrument, to be executed under the direction of the Court, and without taking the accounts of the trustees or other accounting parties, or ascertaining the particulars or amount of the property touching which the question or questions may have arisen (e): Provided always, that if Proviso, the Court shall be of opinion that the application is fraudulent or collusive, or for some other reason ought not to be entertained, it shall have power to refuse to make the order prayed. 210 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 Vict. (d) This section was held to apply to a petition under the Trustee Act, 1850, u. 86, s. 51. presented by some only of the persons beneficially interested in a trust fund p . . 7— (-Re Sharpley, 1 W. K. 271 ; see note ia), p. 104, ante ; and to a special case, retitions and jjj Brovm, 29 Beav. 401) ; see note (6), p. 118, oMte. special cases. ^jj rjn,g jgotio^ g^jy applies when some of the persons interested in the Interest of question at issue, m every point of mew, are before the Court {Swallow v. absent persons Bmm, 9 Hare, App. xlvii.). Thus, when the question was between the must be repre- claims of the sUrriTing children, and the representatives of deceased children sented. under a settlement, the Court refused to proceed in the absence of any party representing the interests of the deceased children {ibid.). A party will not be allowed to proceed with the case iinder this section by striking the names of some of the defendants (who are out of the jurisdiction) out of the record, and proceeding without them {LaaiKam v. Pirie, 2 Jur. N. S. 1201 ; and see cases cited under sect. 44, swpra). JJeoree does not It must be remembered that the section does not render the decree of the bind them. Court binding on the absent parties, as the 42nd section of the Act does, when notice of the decree has been served upon them under the 8th rule {Doody v. Biggins, 9 Hare, App. xxxii.). Partial admi- This section enables the Court to direct the administration of one or more nistration. specific trusts created by an instrument without directing the performance of all (Pwrnell v. Eingston, 3 Sm. & G. 337 ; Prentice v. Prentice, 10 Hare, App. xziii.). But it does not enable the Court to make a decree for foreclosure or for sale in the absence of a party entitled to one-third of the equity of redemption, Caddich v. Oooii, 32 Beav. 70. In case of abate- LII. Upon any suit (/) in the said court becoming suit an order abated (g) by death, mafriage, or otherwise, or defective whfch sh"u^^' ^^ reason of some change or transmission of interest or have same liability (k), it shaU not be necessary to exhibit any bUl of ofre'vhor.'''" revivor or supplemental bill in order to obtain the usual order to revive such suit, or the usual or necessary decree or order to carry on the proceedings (i) ; but an order to the effect of the usual order to revive or of the usual supplemental decree may be obtained as of course (A;) upon an allegation of the abatement of such suit, or of the same having become defective, and of the change or transmission of interest or liability; and an order so obtained, when served (t) upon the party or parties who according to the present practice of the said court would be defendant or defendants to the bill of revivor or supple- mental bni, shall from the time of such service be binding on such party or parties in the same manner in every respect as if such order had been regxilarly obtained according to the existing practice of the said court ; and such party or parties shall thenceforth become a party or parties to the suit, and shall be bound to enter an appear- ance thereto (m) in the office of the clerks of records and writs, within such time and in like manner as if he or IMPEOVEMENT OF JURISDICTION OF EQUITY ACT. 211 they had been duly served with process to appear to a bill 15 & 16 Viot. of revivor or supplemental bill filed against him ; provided "' ^^' °' ^^" that it shall be open to the party or parties so served, within such time after service as shall be in that behalf prescribed by any general order of the Lord Chancellor (w), to apply to the Court by motion or petition to discharge such order on any ground which would have been open to him on a bill of revivor or supplemental bill, stating the previous proceedings in the suit and the alleged change or transmission of interest or liability, and praying the usual relief consequent thereon: Provided also, that if any party so served shall be under any disability other than coverture, such order shall be of no force or effect as against such party until a guardian or guardians ad litem shall have been duly appointed' for such party, and such time shall have been elapsed thereafter as shall be prescribed by any general order of the Lord Chan- cellor in that behalf (o). (/) For forms of orders, see Pemberton on Kevivor, 111. The section applies to suits commenced before the Act came into operation What proceed- (Lowes V. Lowes, 1 W. R. 14 ; cf. Jonea v. Woods, 20 L. T. 50). ; and even ings can he to cases where the abatement took place before that period (ibid.). A special revived, case is within the section {WUson v. Whateley, 1 Jo. & H. 331 ; comp. Aims- worth V. Almom, 14 Beav. 597 ; Re Brorni, 29 Beav. 401). And so are petitions, Re Nicholson, 29 Bear. 665; Be Waugh, ibid. 666; Re StaggoU, Petitions. 15 W. E. 974. And a reference of a solicitor's bill for taxation may be revived, see ante, Reference for note (m), p. 17. taxation. The party against whose representatives the suit is sought to be revived, Uo order must have appeared, Crowfoot v. Mwnder, 9 Sim. 306 ; Bland v. Davison, n ) when ori- 21 Beav. 312 ; Williams v. Jackson, 7 W. R. 104. gjjial party has And as to the Statute of Limitations being a bar to revivor, see Bland v. not appeared ; Daiiidson, 21 Beav. 312 ; Dwrme v. Doyle, 10 Ir. Exch. Rep. 502. ,„, ^jjenVj-j-ied Even when a decree for account has been made, the Court has a discretion \ •* q (.„ (...t. „* to refuse the order on account of laches, Alsop v. Bell, 24 Beav. 451 ; Higgins rfmitations V. Shaw, 2 Dr. & W. 356. The objection of lapse of time does not appear to have been taken in Deehs v. Stanhope, 1 Jur. 413. (g) The section applies to abatement either before or after decree, 10 Hare, Who may apply App. Ixxii., correcting ibid. xxxi. When the abatement is before decree, only the plaintiff can obtain the order ; (1) Before de- and a defendant, or the representatives of a deceased defendant, can only cree ; plaintiff move that in default of revivor the bill be dismissed, Ord. XXXIl. 4, post. or creditor. A creditor who in a creditor's suit has proved a debt on the estate, is con- sidered a. plaintiff for the purpose of reviving, English v. Haymam, 9 Hare, App. Ixxxviii. ; Lowes v. Lowes, 2 D. M. G. 784 ; though the certificate allow- ing his debt is not signed, Inchley v. Allsop, 9 W. R. 349. When the suit abates after decree, any defendant who has an interest therein (2) After de- may revive on the plaintiff's neglecting to do so ; but if a defendant desires cree ; plaintiff not only to revive, but also to get the condiict of the suit, he must give notice or defendant, of his motion, Noble v. Stow, 30 Beav. 512 (and see remarks on that case in NpUe v Stow Pemberton, 81), Stratford v. Baker, 2 W. N. (1867), 148. F 2 212 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 Vict, u. 86, s. 52. Between heaj:- ing and decree revivor not neceBsary. What is abatement. (A) What changes of in- terest are within the section — (1) transfers by operation of law : (a) descent. Except where suit was sup- plemental. Executors to admit assets : (/3) bankruptcy; assignment for benefit of cre- ditors ; When the suit abates between the hearing and decree, judgment may be given without reviving, GaUmson v. Lister, 20 Beav. 355 ; Bowneault v. Delafield, 12 W. R. 8 ; Bdsham v. Perceval, 8 Hare, 157. And where an issue had been directed, and the plaintiff was dead, but not known to be so when it was tried, it was no gi-ound for a new issue. So a decree may te drawn up though the suit has abated since it was pronounced, WiUimoit v. Oyilby, Seton, 1139 ; and see Backer v. Scholefield, 1 N. E. 180 ; where a statement was inserted that the Court proceeded in the absence of a personal representative (compare sect, ii, and note (t), ante, p. 200). No abatement takes place where the deceased plaintiff was one of several co-plaintiffs representing a class under sect. 42 of this Act, Ilmde y. Morton, 2 H. & M. 368 (where Hall v. Olive, 20 Beav. 675 ; Smiih v. Horsfall, 24 Beav. 331 ; Ure v. Lord, 2 Dr. & Sm. 263, were not followed). Whei-e the plaintiff in an administration suit, who was beneficially entitled, died, and the estate was known to be insolvent, so that his representatives would take no benefit, an order of revivor was made, dispensing con- ditionally with the presence of the plaintiff's representatives, Leycester v. Norris, 13 W. R. 201 ; and see sect. 44, supra. (K) Supposing the original party to have duly appeared ; (a) The section applies to the following changes of interest: — (l) Where the interest of such party to the suit is transferred \>y mere operation of law, e.g^. on marriage of female plaintiff or defendant, see Budge V. Weedoti, 4 Be G. & J. 216, 7 W. E. 519, reversing s. c. 7 W. E. 393 (where a protection order under 20 & 21 Vict. c. 85, was set aside), 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, Tresevant -r. Broughton, 5 W. E. 617 ; and see Powell v. Heather, 1 L. T. N. S. 479. So on 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 ; FlocMon Y. Slee, 7 W. E. 393 ; Fane v. Richards, 11 W. E. 524 ; see, too, BarUr v. Walker, 16 W. E. 728 ; Joyce v. Bawlins, 14 W. R. 785 ; but see Wright Y. Wilkin, 11 W. R. 851. Where the intestate was sole plaintiff in a sv^plemental suit, a bill was held to be necessary, Brooke y. Brooke, 9 W. R. 804. See as to revivor by execu- tors, Williams, 1763. 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 accounts directed against the deceased party, and to continue them against his representative, an order will be made on motion under the section that the executors do admit assets, or in default that an account be taken, Edwards v. Batley, 19 Beav. 457 ; Oartwright v. Shepherd, 20 Beav. 122, overruling Dean and Chapter of Ely Y. Edwards, 22 L. J. Ch. 629, where it was said that to get such an order a bill must be filed. But where the original bill was for specific performance, it seems that a supplemental bill against the executors of a deceased defendant is proper, Collard v. Roe, 1 Giff. 311 ; Pemberton, 124. _ So, too, on the bankruptcy of any party to the suit, bankruptcy teing a simple transmission of interest by Act of Parliament, a common order to revive against his assignees can be obtained, Macdonald v. Macfarlane, 6 W. E. 245 ; Lash v. Miller, i D. M. G. 841 ; Sitchin, v. Himhle, 10 W. R. 686 ; Jackson v. Riga Railway Company, 28 Beav. 75 ; Cochrane v. Phillips, 8 W. R. 461 ; and on the annulment of a bankruptcy, the suit can be revived by common order against the late bankrupt, Mostyn v. Emmanuel, 5 N. R. 464. No order is necessary on the change of the assignees of a bankrupt plain- tiff, see 12 &13 Vict. c. 106, s. 157 (unrepealed) ; Gordon v. Jesson, 16 Beav. 440 ; Man v. Ricketts, 1 Ph. 617. As to revivor for costs on bankruptcy of party liable to pay, see note (»), ad finem, p. 215. So where a plaintiff assigned his property for the benefit of creditors, a common order to make the inspectors parties was made under the section on the ground that the operation of the assignment was dehors the juris- diction of the Court of Chancery, and therefore, so far as the Court was concerned, it was equivalent to a transmission of interest by operation of law. IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 213 Croahey v. European Steam Company, 1 W. N. (1866), 23, 70, See, too, 15 & 16 Vict. Perezv. Pinto, cited in Pemberton, p. 145 ; Overmans. Overman, 12 Jur. 326. c. 86, ». 62. "o, on the lunacy of a plaintiif, his committee may revive by a common order in Chancery, Dangar v. Steioart, 9 W. E,. 266 ;' Simpson v. London and (?) lunacy. North- Western SaUway Company, 11 W. R. 558. But a suit cannot be revived under this section against a curator in whom Operation of a plaintiff's estate is vested by the law oi a, foreign country, Oillon v. RolcK, 1 foreien law. Dr. & Sm. 621. (2) Where a change of interest has taken place by a necessary party com- (2) New party ing into existence during the pendency of the suit, Fullerton v. Martin, 1 coming into Drew. 238 ; Phippen v. Brown, 1 Jur. N. S. 698 ; Pichford v. Brovm, 1 K. existence. & J. 643 ; Creswell v. Bateman, 6 W. E. 220 ; and see Jebb v. Tugwell, 20 Beav. 461 (where a supplemental order was made binding the interest of an infant born before decree, but by inadvertence not made a party before decree, it Infant only appearing that it would be for his benefit) ; and compare Barrett v. White, 3 W. bound where R. 526 ; Notleyy. Palmer, ibid. 201 ; see, however, Qarrett v. Lofncefield, 11 foj. jjjj benefit. W. R. 869; and forform of order generallyincaseof infant, see Seton, 1166, form 9 ; and compare note (p), p. 217, post, as to amendment by adding parties. (3) Where there has been an assignment of interest by a party to the suit, (3) Assignment not being an assignment by sole plaintiff of his entire interest. /not being sole (o) E. g., on a devise by a defendant, in which case, under the old practice, plaintiff's a plaintiff might continue his suit by a supplemental bill, simply putting in whole interest), issue the assignment ; and so, in Lowe v. Watson, 1 Sm. & Giff. 123, where / ■, jj • t a defendant to a creditor's suit, who was heir at law to the testator, died j f j t devising the real estate to his son on trust to sell, and out of the proceeds to pay a legacy to his executors, it was held that tj^e plaintiff might obtain the common order under the statute to revive against the devisee and executor of the heir at law. See, too, Hall v. Clive, 20 Beav. 675. So, on a settlement being made (see Atkinson v. Parker, 2 D. M. G. 221), (i8) Settlement, where a female ward of Court married without the leave of the Court, and the trustees of the settlement were made parties to a suit in which she was plaintiff by the common order. And see Williamson v. Jefferys, 12 W. R. 403, where a plaintiff trustee (7) Appoint- retired from the trusts after decree, and new trustees were appointed on further ment of new consideration, and the suit was revived on the motion of the continuing trustees, trustee. who were defendants, that they should carry on the suit as plaintiffs. So, on a mortgage by any party to the suit, the mortgagee or incumbrancer (S) Mortgage. may be brought before the Court by a common order, Bra/ndon v. Brandon, 3 N. R. 287 ; see Freeman v. Pennington, 3 D. F. J. 295. But the common order may be refused in cases where the revivor wUl Except where alter the frame of the suit, e. g., where a co-plaintiff is placed in such a posi- frame of suit tion that he ought to be a defendant {Jervoise v. ClarJe, 2 W. R. 337, in which is to betltered. case a supplemental bill was held necessary ; and comp. Montefiore v. Que- dalla, 8 W. R. 53, where a question had in the course of the suit arisen between co-plaintifis, and a supplemental bill was held necessary). So again, when 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 admi- nistration de bonis non to the testator's estate, it was held that a suit could not be revived against him under the section (Tate v. Leithead, 9 Hare, App. li. ; but see Cresswell v. Bateman, 6 W. E. 220). Where, however, there is a sole plaintiff and a sole defendant, and the defendant dies having appointed the plaintiff his executor, the latter may obtain an order to revive the suit against the persons beneficially interested, who have been summoned to attend the proceedings in chambers (Pedder v. Pedder, 8 W. R. 16 ; but see Dobson V. Paithwaite, 10 W. R. 29) ; and see the remarks of Pemberton on Revivor, p. 120. Foster v. Bonner, 33 L. J. Ch. 384, did not follow Jervoise V. Clarh -d t n, n The Court exercises a discretion according to the special circumstances, and ^i^t tue Lourt sometimes after decree, or where the rights of the parties have been ascertained, exercises dis- an order under the statute will be permitted ; but the fact of a decree having oretion. been made will not of itself be sufficient ground for the order, Tate v. Leithead (I. c); thus, where an administration bill was filed by plaintiffs believing 214 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 Viot. V. SQf a. 52. (B) What changes of in- terest are not within the section. Where interest of sole plaintiff determines. (a) devise of sole plaintiff. ment of sole plaintiff. (7) Succession of sole plaintiff. Except after estate tail. Liberal con- struction in later cases. Supplemental Mil. New parties bound by/atei-e proceedings ; by past pro- themselves to be next of kin, but after decree it turned out that another person was next of kin, it was held that the suit could not be continued, and the conduct of the cause given to the new plaintiffs without a fresh bill being filed, Lawrence v. Maide, 3 N. E. 239. (B) In cases where an order of revivor cannot be obtained under this section, a suit can only be revived against new parties by supplemental bill, aee note (g) p. 218. The section has been generally held not to apply to oases where a sole plaintiff has wholly determined by devise or assignment or otherwise, but lately the scope of the Act has been extended, and the courts lean towards making the common order in such eases, if possible. The next section as to amendment does not apply to such cases, Beardrrmre v, Gregory, 2 H. & M. 496. Thus, a supplemental bill was held necessary in order to revive the suit where a sole plaintiff died devising his whole interest, because the title of the devisee might be litigated in the Court of Chancery ; so that he must establish his rights by bill in order to hj.ve the benefit of the former proceedings, Dendy V. Dendy, 5 W.E. 221 ; Williams v. Williams, 9 W. E. 226; Laurie v. a-^sh, 32 Beav. 117. So, where the sole plaintiff assigned his interest inter vivos, V.-C. Wood observed that the title of the assignee might be litigated in that very suit, and' in order to revive he must file a bill, GreenJialgh v. Bumney, 5 N. E. 463. And similarly, where the sole plaintiff's interest determined by death or other- wise, because the person succeeding would have an entirely new right of action, and the defendants might raise a new defence, Pownend v. Toher, 14 W. E. 300 ; so where an ecclesiastical person succeeded to a benefice, or a remainder- man in a settlement became entitled on the death of a tenant for life, Watts v. Watts, Johnson, 631 ; 3obson v. Faithwaite, 30 Beav. 228 ; Wordsioorth v. Parhms, 12 W. E. 120 ; but a remainderman coming in on the determination of an estate tail was always witliin the section, because a plaintiff tenant in tail was supposed to represent the inheritance, and all claiming in remainder, Lloyd V. Johnes, 9 Ves. 58 ; and see Winter v. Stahle, 3 W. R. 580. But lately a liberal construction has been put on the section, and the common order has been made in cases where a sole plaintiff's interest has wholly determined, subject, however, to the right of any person contesting the title of his assignee or successor to move to discharge the order, £yre v. Brett, 34 Beav. 441 ; Colyer v. Oolyer, 1 L. E. Ch. 482 ; and see remarks on Colyer V. Oolyer, in Pemberton, 37, 67 ; Mallock v. StUl, 15 W. R. 293 ; Hohson v. SeoAoood, 15 W. E. 887. So where a sole plaintiff died before an answer had been put in to his inter- rogatories, his heir and executor was allowed to revive, and as the time for answering had expired, the Court also ordered that the defendant shonld within twenty-eight days answer the interrogatories, Eca-l Beavtchamp v. Winn, 2 L. R. Eq. 302. Where the interest of a sole defendant determined by his death, the common order was made to revive against his devisee, Eoarl Dwham, v. Legard, 34 Beav. 442 ; Bedford v. Bedford, cited in note thereto. If a supplemental bill is necessary, see, as to the proper parties, WiikinBon V. Fowkes, 9 Hare, 193 ; and generally, Daniell, 1405. (i) Even 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 v. Permmgton, 3 D. F. J. 295, overruling Wilson v. Auchterloney, 1 W. R. 34 ; and see remarks in Pemberton, pp. 50, 151. Where a defendant had appeared but not answered, and then became bank- rupt, an order was made to revive against his assignees without prejudice to their putting in an answer, Kitchin v. Hv/mhU, 10 W. E. 686 ; and see Earl Beaiichamp v. Winn, 2 L. E. Eq. 302. The Court has also jurisdiction in such oases to affirm past proceedings, Bouston V. Briscoe, 7 W. R. 394 ; but the new parties are of course only bound by the order as to past proceedings where they consent, ibid.. Smith v. Morsfall, 24 Beav. 331 ; or in the case of infants, where the Court considers it to be for their benefit (see last page). If the common order is made in such IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 21o ft case, liberty will be reserved to the new party to discbarge it if it is objeo- 15 & 16 Viot. tionable for any reason, Fenion v. Hawkins, 4 N. R. S4. c. 86, s. 52. As a general rnle there can be no revlTor for costs after an abate- ment caused by death (Morgcm v. Seudmnore, 2 Ves. Jr. 313; Andrews No revivor for T. Lodhwood, 15 Sim. 153 ; 2 Fh. 399) ; whether the abatement be caused by costs after the death of the party to pay or the paii:y to receive the coats (Jupp v. Oreen- death, ing, 5 Madd. 375) ; nor does the fact of the defendants being a corporate body ( Um/phelby v. Waveney VaMey Railway Company, 1 J. & H. 264 ; nor the fact that the bill specially piays costs {ibid.), nor that the case occurs since the 1 & 2 Vict. c. 110, s. 18, (p. 6, ante), ibid. ; Robertson v. Southgate, 7 Hare, 109 ; nor that the party who has died without paying costs was one of several def^dants, (Bowyer v. Beamish, 2 J. & H. 238), affect this rule. Where the party to whom costs were payable died before taxation, the Nor for taxa- Court (the suit not having been revived) refused with costs a motion that the tion of costs. Master might proceed with the taxation (Robertsons. Sovthgate, 7 Hai-e, 109). But the survivors of several defendants, against whom a biU has been dis- missed with costs, to be taxed, and paid by the plaintiff, are entitled to pro- ceed with the taxation of their costs, notwithstanding the death of one of such defendants, without a revivor of the suit, and although the surviving defend- ants and the deceased, in his lifetime, had carried in a joint bill of costs for taxation Hvmter v. Daniel, 7 Hare, 281 ; see, however, Malins v. Qreenway, 7 Hare, 391 ; Morgwn v. Davey, 384 ; Daniell, 1396. ^he exceptions to the rule are : 1. Where the costs have been taxed (Lovoten v. Mayor of Colchester, 2 Exceptions to Merrivale, 113 ; overruling Qleiiham, v. StutweU, Dick. 14) ; or the taxation general rule, has been postponed, on an undertaking that the postponement shall be without prejudice [Tucker v. WUHns, 7 Sim. 349). ' 2. Where the costs are directed to be paid out of the estate, Jenow v. Jenour, 1 Ves. 562), or out of a particular fund {Kemp v. Malcrell, 2 Ves. Sen. 579 ; but see MaUnsv. Greenway, 7 Hare, 391, where a trustee who would have been entitled to his costs out of a fund in court, dying before a decree on further directions, was held to have no lien on the fund for such costs), 3. Where some obligation imposed upon the party liable for costs remains to be executed, Bowyer v. Beamish, 2 Jo. & Lat. 240; Morgans. Scudamore, 1. c. ; Johnson v. Peck, 2 Ves. Sen. 465 ; Kemp v. Makrell, 1. c. ; and see Fitzmawrice v. Sadlier, 12 Ir. Eq. Rep. 136). 4. Where the costs are ordered to be paid by an officer of the court, e.g., a receiver in the cause {Betagh v. Ooncanon, LI. & G. temp. Plunket, 355). It is now settled that there may be revivor for costs after the bankruptcy of Revivor for a party liable to pay them, Ellison v. Sharp, 2 L. R. Ch. 355, ; following costs after Farrall v. Davenport, V.-C. S. 3 L. R. Eq. 473 ; and overruling BomicaaU bankruptcy. V. Delafield, 12 W. R. 1025 ; 13 W. R. 64. (k) The common order to revive is obtained by motion or petition, of course Common and (BoufU v. Purchas, 1 W. R. 12), Pemberton, 111 ; nor need the allegation special order referred to in the statute be proved {Gordon v. Jesson, 16 Beav. 440 ; Martin to revive. Y. ffadlow, 9 Hare, App. lii.); but where there are special circumstances arising out of the case, a special application to the Court is necessary {Martin v. HadUm, 1. c. ; Phippen v. Brown, 1 Jur. N. S. 698 ; Goodall v. Skerratt, 1 Sm. & G. App. vii.) ; and see Noble v. Stow, cited in note {g), supra. If obtained ex parte, it is, of course, liable to be objected to by any parties to the suit {Jackson v. Ward, 1 Gif. 30) ; and if obtained on a false statement of facts, will be discharged as irregular {Brignall v. Whitehead, 30 Beav. 229). For an order that the suit be revived, and that defendant do answer interro- gatories, see Earl Beauchami/p v. Wiam, 2 L. R. Eq. 302. , „ , o • c i (l) The service should be on the defendants personally, but, where a defend- service ot order ant is ont of the jurisdiction, an order may be obtained to substitute service on ot revivor, his solicitor (Forster v. Menzies, 10 Hare, App. xxxvi. n. ; see Scott v. Wheeler, 13 Beav. 239 ; MaH v. Tulk, 6 Hare, 618 ; NoHon v. Eepworth, 1 M & G. 54). So where the defendants were very numerous service on their soUeitors in the original suit was ordered, (MorrUt v. Walton, 2 W. R. 643) ; but there is no authority for the doctrine sometimes laid down, that such substituted service may be made without applying to the Court. Where 216 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 Tict. c. 86, B. 52. Party served becoming de- fendant. Appearance on revivor. Answer, inter- rogatories, &c., on revivor. Time to dis- charge order. Form of order. subpoena to hear judgment had been served on a defendant, and the suit was revived on his bankruptcy against his assignees, a new subpoena was not required to be served on them {Sparrow v. Ewing, \i W. K. 788). \fhere an estate was vested in trustees for sale, the Court held that service on the trustees was sufficient, without serving the parties beneficially interested {Grimston v. Oxlay, 1 W. R. 100). (m) Inffanburyy. Ward, 18Jur. 222; andPTcwdv. Cartwright, 10 Hare, App. Ixxiii. ; it seems to have been thought unnecessary for a defendant to enter an appearance to an order of revivor obtained under this section. But in Cross V. Thomas, 16 Beav. 592 ; and Forster v. Meneies, 10 Hare, App. xxxvi. n., leave was given to enter an appearance for a defendant who had not appeared under Ord. X., 4 {post). But these cases were exceptional '(see Pemberton on Revivor, 113) ; and generally, it is unnecessary for a defendant to appear to an order for revivor if they have already appeared to the original suit, Ball V. Radcliffe, 2 J. & H. 765 ; but see Daniell, 496. Executors, against whom an order had been obtained under this_ section, were held entitled to answer {Martin v. Pwnell, 3 W. R. 395) ; and it seems that interrogatories may be filed on such an order (Anon., 25 L. T. 61). A suit revived under this statute is to be considered a new suit so far as to entitle the defendant to move that the plaintiff (if resident out of the jurisdiction) do give security for costs {Jackson v. Davenport, 29 Beav. 212). (n) See Ord. XXXII. 1, which limits the time to twelve days. An applica- tion to discharge the order after six months had elapsed was refused, Tfith costs (Deehs v. Staxihope, 1 Jnr. N. S. 413). (o) See Ord. XXXII. 1 et segq. For forms of order under this section, see Deam and Chapter of Ely v. Hensly, 1 W. R. 190 ; and Seton, p. 1164; Pemberton on Revivor and Supple- ment, lOietseq. New facts, &o., after com- mencement of suit to be in- troduced as amendments to bill, &c. LIII. It shall not bfe necessary to exhibit any supple- mental bill in the said court for the purpose only of stating or putting in issue facts or circumstances which may have occurred after the institution of any suit ; but such facts or circumstances may be introduced by way of amend- ment (p) into the original bill of complaint in the suit if the cause is otherwise in such a state as to allow of an amendment being made in the bill, and if not, the plain- [Supplemental tiff shall be at liberty to state such facts or circumstances sta ement.] ^^ ^^ record, in such manner and subject to such rules and regulations with respect to the proof thereof, and the affording the defendant leave and opportunity of answering and meeting the same as shall in that behalf be prescribed by any general order of the Lord Chancellor (g). Effect of (p) As to amendment of petitions, see note to Ord. XXXIY., and as to the amendment, effect of amendment on injunctions, notices of motion, &c., note to Ord, IX, 8, post. Amendment The section only applies to amendments hefore decree. After decree they after decree by must be introduced by supplemental bill, see note (a) to Ord, XXXI., and supplemental Commerell v. Hall, 2 Drew. 194. bill. Not only facts which have occurred, but facts which have been discovered Facts newly since the institution of the suit, may be introduced by amendment, Bolton v, discovered Ridsdale, 2 W. R. 488, overruling s. c, ihid. 451, introduced, -^ plaintiff whose title was defective at first, may not by amendment intro- IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 217 duee matter to cnre such defect, Att.-Gen. t. Portreeve of Avon, 11 W. R. 1050 ; 15 & ig viot Godfrey v. TiicJcer, 33 Beav. 280. Nor may he add or strike out a prayer for c. 86 s 53 relief after answer, BvMerwo^'th v. Bailey, 15 Ves. 358 ; Lord Cholmondeley " ' • ■ T. Lord Clinton, 2 V. & B. 113 ; but see Severn v. Fletcher, 5 Sim. 457. Defective case Nor may he introduce new charges or alter the nature of the suit by amend- not to he cured ment, Mollett v. Enequist, 26 Beav. 466 ; Dermison v. Curtis, 11 L. T. N. S. by amendment. 671 ; Horton v. Brochlehurst, 29 Beav. 503 ; even though new parties are n ,. c added by amendment, Mulligan v. Mitchell, 1 M. & Or. 433 ; Gibson v. Ingo, '^'i °""™ °\ 5 Hare, 156 ; Barhrw r. McMmray, 2 L. R. Eq. 420. ^""^ <">*"g«0- If a plaintiff introduces such amendments he will have to pay such costs as have been occasioned by his irregular proceedings, Muvor v. Dry, 2 Sim. & S. 113 ; ParJees v. Nideson, i Giff. 311 ; and as to asking for costs of improper amendments, see note (i) to Ord. XI. 7, post, and Morg. and Davey, 86 ; or the defendant may move that the amended bill may be taken off the file or the amendments sti'uck out, the plaintiff paying the costs of the application, Ba/rlov> V. McMmray, 2 L. R. Eq. 420. The section does not apply for the purpose of making persons parties who Amendment as have become necessary parties in respect of new facts or changes of interest ; to parties, this must be done by supplement bill or order of revivor, Commerell v. Mall, -a ^ ■ r»sno f 2 Drew. 194 ; Wehl v. WwrdU, 11 Jur. N. S. 278 ; NichoUon v. Gihb, 2 W. „f changes of R. 337 ; but a merely formal party, c. g. the personal representative of a interest testator in the cause who has taken out administration since the hill was filed, may be added by amendment, Beardmore v. Gregory, 2 H. & M. 491 ; Heath T. Lewis, 2 W. R. 641 ; Haldane v. Eclcfm-d, 14 W. R. 306. Original defects in parties may be cured by amendment on motion or petition, Adding or ■without notice ; thus, defendants may be added or plaintiffs may be added, or striking out struck out, at any time before the setting down for healing, Hiehens v. Con- parties. greve, 1 Sim. 500, where it was done after answer ; but if plaintiffs are struck out after any of the defendants have appeared, the continuing plaintiff must give security for costs, Fellowes v. Deere, 3 Beav. 353 ; Drake v. Symes, 3 D. F. J. 491 (where a plaintiff struck his own name out, and the bill was afterwards dismissed with costs, for want of prosecution), see note (/) to Ord. XL. 6, post. But an infant plaintiff, on coming of age, was allowed to become a defendant instead, Bichnell v. Bichnell, 32 Beav. 381 ; but the amendments must not contain new charges relating to such new parties, see cases cited above. 1 An order to amend a bill by making a defendant a co-plaintiff, is out of course. Lock r. Bagley, 1 W. N. (1866), 65. A plaintiff may, in a proper case, obtain an order to add defendants even at the hearing ; thus, a bill was allowed to be amended at the hearing by intro- ducing a next friend on behalf of a plaintiff, a married woman, and by making an infant party a defendant, Mendes v. Guedella (2), 2 J. & H. 259 ; Ley- land V. Leyland, ibid, 149. A mere clerical error in the names of defendants was allowed to be corrected without new service, Barnes v. Ridgway, 1 Sm. & Q. App. xviii. ; see Ord. IX. 9. Sometimes the Court permits a cause to stand over at the hearing that the Where cause plaintiff may amend his bill, but not so as to allow him to make a new case, allowed to and as to what amendments will be allowed, see Lord Darnley v. London, stand over for Chatham,, and Dover Railway Company, 1 D. J. S. 204 ; where the plaintiff amendment at prayed specific pei-formance by the company of an agreement to make proper hearing, accommodation works such as should be defined in an award made by his surveyor ; but the defendants contended that the award was made too la.te, and the Court held that the award had been made too late to be binding on the company, and that the title to relief on the agreement, independently of the award, was not put forward with sufficient distinctness to make it right to give relief on that footing ; but they gave the plaintiff leave to withdraw replication and amend his bill, by putting in issue any claim founded on the original agreement. And L. J. Turner, after reviewing the cases of Filkhi v. Bill, 2 P. W. 6, 4 Bro. P. C. 640 ; Watts v. Hyde, 2 Phil. 406- and Palk v. Clinton, 12 Ves. 48, said that, speaking generally, leave should be given to amend at the hearing, where matters connected with what is proposed to be introduced by amendment are already in issue, see Childers v. ChUders 1 De G. & J. 482. In Knox T. Gye, 12 W. E. 145, 1126, the Court 218 IMPROVEMENT OF JUEISDICTION OF EQUITY ACT. 15 & 16 Viet, refused permission to amend at the hearing, the amendment proposed being c. 86, 3. 53. material, but allowed a supplemental bill to be filed. ■ And in Oossip v. Wright, 11 W. K. 632, where a mortgagor filed a bill to Amendment at set aside a conditional sale with right of re-emption, and it was held a valid hearing. transaction, V.-C. Kinderaley refused to allow him to amend at the hearing by alleging undervalue, or to dismiss the bill without prejudice to his filing another, see Forbes v. Stevens, 10 L. T. W. S. 491 ; Olegg v. Rowland, 3 L. K. Eq. 368, 374 ; Hume y. Pocock, 12 Jur. N. S. 223. Supplemental (?) See Ord. XXXII. 2, post, which provides that where the suit is not In statement. such a state as to allow of amendment, the plaintiff may file » supplemental statement. Barely filed. But a supplemental statement is but rarely filed (see Daniell, 1403), for the Before decree. '''^^ "*'' generally be amended before decree, and after decree this section does After decree ""* ^.pply ; but a supplemental bill must be filed, see Commerell v. Mall, 2 Drew. 194. Same rules The same rules apply to a supplemental statement as to ordinary amend- apply as to ments. Thus, a suit cannot be revived against new parties by a supplemental amendments, statement, but only by order of revivor or supplemental bill. Heath v. Chap- mom, 1 W. E. 244 ; Heath v. Lewis, 18 Beav. 527. Nor can a defendant file a supplemental statement any more than he can amend a plaintiff's bill (Lamgdale v. Qill, 1 Sm. & G. 24), even though he has the conduct of the suit, Lee v. Lee, 9 Hare, App. xci. ; though after decree he may revire agamst a plaintiff's representatives, note {g), p. 211, a/nie, LIV. (r) It shall be lawful for the Court, in any case where any account is required to be taken, to give such special directions (s), if any, as it may think fit with respect to the mode in which the account should be taken or vouched, and such special directions may be given, either by the decree or order directing such account, or by any subsequent order or orders, upon its appearing to the Court that the circumstances of the case are such as to require such special directions ; and particularly it shall be lawful for the Court, in cases where it shall think fit so to do, to direct that 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 primd facie evidence of the truth of the matters therein contained (t), with liberty to the parties interested to take such objec- tions thereto as they may be advised. (r) See as to accounts and inquiries in chambers, Ord. XXXV. 16, post, ani note (<) thereto. Applications under this section ought to be made in chambers, Hardwick V. Wright, 16 W. K. 953. Section In Lodge v. Pricha/rd, 1 Sm. & Q., App. viii. ; 3 D. M. Q. 906 ; it seems whether retro- to have been thought that this section was not retrospective ; but in the spective. latter case of Ewart v. Williams, 7 D. M. Gt. 68, it was held by Lord Justice Turner, affirming an order of V.-O. Kindersley, reported in 3 Drew. 21 (but dissentiente Lord Justice Knight Bruce), that it empowered the Court to give special directions as to the mode of taking an account, which, though not yet taken, had been directed by a decree made several years before the passing of this Act. Where accQunt required to be taken, Court may give spe- cial directions as to the mode of taking same. IMPROVEMENT OF JURISDICTION OF EQUITY ACT, 219 (s) The chief clerk may not take books as primd facie eridence ■without such 15 & 16 Vict order, CooJces v. Coohes, 11 W. R. 871 ; but where no order had been obtained e. 86 s. 54.' under this section that books of accounts should be taken as primd facie eyi- — '-t^ '— dence, but the chief clerk, in taking the accounts, directed by an administra- Special direc- tion decree, had so admitted them and granted the certificate, the Lords tions for taking Justices of Appeal refused an application to discharge the certificate, but with- accounts, out costs (Newherry r. Benson, 23 L. J. Ch. 1003) ; but a settled account is never disturbed in chambers, though the decree contains no direction on the subject, Neioen v. Wetten, 31 Beav. 315 ; but see Daniell, 1152, As to special directions for taking accounts before the Act, see Millar v. Craig, 6 Beav. 443 ; Allfreyy. AUfrey, 10 Beav. 353. The meaning of the section is that, -where vouchers have been lost, or Books prima, accounts cannot be taken in the ordinary way, the Court may give special direc- facie evidence, tions for the taking of such accounts, but such directions will not be given merely to save expense, or unless ordinary evidence cannot be obtained (Lodge v. Prichard, 1. c). The observations of V.-O. Kindersley, in Ewart V. Williams, 1, c, must, therefore, be received with some qualification. See the remarks of Lord Justice Turner in that case on appeal, 7 D. M. Q. 74, 75. («) Under this section, accounts taken in the Court of Chancery of Jamaica, Where Court in a suit instituted against executors in that island, were ordered to be taken will and will as primd facie evidence of the truth of the matters therein contained against not act under the plaintiff with liberty to him to surcharge and falsify {Sleight v. Lawson, the section. 3 K. & J. 292. And see Stainton v. Carron Company, 24 Beav. 346), And where the books of a manufactory, of which the plaintiff was manager, were kept by the defendant, it was held by V.-O. Wood that the contents, though not binding on the plaintiff, might, as he had free access thereto, be taken as primd facie evidence against him, with libeity to him to surcharge and falsify (Ogden v. Battams, 1 Jur. N. S. 791, qu. vid.). Accounts which went back nearly thirty years were ordered to be taken as primd fade evidence as against cestuis que trusts, who had always had access to them, BanJcs v. Cwrtwight, 15 W. K. 417 ; and see Hardwick v, Wright, ibid. 953. In Morgan v. Siggins, 5 Jur. N. S. 240, where a solicitor was ordered to Entries by deliver a bill of costs, an agreement for payment of a fixed sum being set aside, solicitor. V.-C. Stuart refused to direct that entries made by him several years before, and contemporaneous with the transactions, should be taken as prima facie evidence under this section (see Coleman v. Mellersh, 2 Mac. & G. 209 ; and as to limiting an account to a certain time. Dean v. Thwaite, 21 Beav. 621). When a decree for an account has been made against a mortgagee in pos- Court will not session without directing annual rests, the Court has no power under this order annual section, or under Ord. XXXV. 19, to add to the decree by directing it to be rests. taken with annual rests (Nelson v. Booth, 3 De G. & J. 119 ; and see note(p) to sect. 45, p. 303 — 4, ante. LV. (m) If after a suit shall have been in^ituted in Court may the said court, in relation to any real estate, it shall estate to be appear to the Court that it will be necessary or expedient sold if required. that the said real estate, or any part thereof, should be sold for the purposes of such suit (v), it shall be lawful for the said Court to direct the same to be sold at any time after the institution thereof (w), and such sale shall be as valid to all intents and purposes as if directed to be made by a decree or decretal order on the hearing of such cause ; and any party to the suit in possession of such estate, or in receipt of the rents and profits thereof, shall 220 IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 15 & 16 Vict, be compelled to deliver up such possession or receipt to the — — !— ! — '— purchaser or such other person as the Court shall direct. («) As to sales under a decree, see Ord. XXXV. 13, post, and note {x), p. 158, ante. The application under this section should be made in chambers, ante, p. 147. ** This section is only applicable to cases in which, for the protection of pro- perty, or other like causes, it is necessary to apply to the Court to order a sale, see TvMoch v. Ttdloch, 3 L. K. Bq. 574 ; and it was not intended to enable parties in a contested suit to obtain, upon an interlocutory application before the hearing, a decision upon the questions in contest" (Prince v. Cooper, 16 Beav. 546). And it seems that a sale will only be directed at once where, before the Act, it would have been directed at the hearing (Mandeno v. Man- deno, Kay, App. ii. ; but comp. Oladwin v. Oladwin, 21 L. T. 98, where an order was made under the section to avoid the expense of a hearing on further consideration), («) In a suit to carry the trusts of a will into execution, the Court may direct a sale to raise the costs of the suit, even though some of the plaintiffs are infants (Mandeno v. Mandeno, 1. c. ; Sioan v. Webb, 1 W. E. 90). {w) For the form of orderunder this section, see Seton, 231, 251, 1182. An order was made under this section for the sale of real estate pending a reference to the Master (Martin v. Hadlow, 1 W. R. 101). As to sales by the Court generally, see Daniell, 1164 ; Ord. XXXV. 13, post; 13th, 14th, and 15th Regul. as to business, August, 1857, Appendix, p. Iv., post. Section does not enable par- ties to obtain a decision of rights on inter- locutory mo- tion. Infants. Application under section, how made. LVI. Before any estate or interest shall be put up for sale under a decree or order of the Court of Chancery, au abstract of the title thereto shall, with the approbation of the Court, be laid before some conveyancing counsel to be approved by the Court {x) for the opinion of such counsel thereon, to the intent that the said Court may be the bet- ter enabled to give such directions as may be necessary respecting the conditions of sale of such estate or interest, and other matters connected with the sale thereof; and when an estate or interest shall be so put up for sale, a time for the delivery of the abstract of title thereto to the purchaser^or his solicitor shall be specified in the said conditions of sale. Conveyancing (x) As to the practice of obtaining the opinion of the conveyancing counsel, counsel. and the cases when it will be dispensed with, see 15 & 16 Vict. c. 80, ss. 40, 41, and notes thereto, ante, p. l.'iS ; and as to the fees payable to the con- veyancing counsel, see Ord. XL, 30, and notes. Before sale of estate abstract of title to be laid before some convey- ancing counsel, Time for deli- very of ab- stract. LVII. Where any real or personal property shall form Where real or perty is the the Subject of any proceedings in the Court of Chancery, subject of pro- and the Court shall be satisfied that the same wiU be ceedings. Court may allow part more than sufficient to answer all the claims thereon the^annuaf ^^^'^^ ^'^^^ to ^^ provided for in such suit {y), it shall be income, lawful for the said Court {z), at any time after the com- IMPROVEMENT OF JURISDICTION OF EQUITY ACT. 221 mencement of such proceedings, to allow to the parties 15 & 16 Vict, interested therein, or any one or more of them, the whole — U L or part of the annual income of such real property, or a part of such personal property, or a part or the whole of the income thereof, up to such time as the said Court shall direct, and for that purpose to piake such orders as may appear to the said Court necessary or expedient (a). (y) The allowance will not be made unless the executors admit assets Where allow- {Knight v. Knight, 16 Bear. 358) ; nor unless the parties are clearly entitled, ance will be and there is some pressing reason for making it {Sowley y. Bwrgess, 2 W, R. made. 652 ; Chubb v. Carter, 2 W. N. (1867), 179 ; and see before the Act came into operation, Moffat t. Bumie, 16 Beav. 298). (a) See Stacey v. Southey, 1 Drew. 400, where an allowance of the income of a married woman's separate estate was ordered to be made to her, pending a suit to charge her with the value of timber cut, security having been given for the value of the timber. (a) Applications under this section should be made in chambers, and ought Application not to be made the subject of an application in open court {Bmtley v. Craven, made in oham- 1 W. R. 362). hers. LVIII. The practice of the Court of Chancery with As to injuno- ... n 1 , c T ii /IN tions for stay respect to injunctions tor the stay oi proceedings at law {o) of proceedings. shall, so far as the nature of the case will admit, be assimilated to the practice of such court with respect to special injunctions generally, and such injunctions may be granted upon interlocutory applications supported by affidavit (c), in like manner as other special injunctions are granted by the said Court {d). (6) Under the old practice the plaintiff in equity was entitled to the Old practice as injunction to stay proceedings at law, called the common vnjimction, if the to common in- defendant made default in appearance, or did not demur, plead, or answer janc [1st July, 1852. [Sb. 1 — i relate to certain fees and emolamenta abolished.] 15 & 16 Viot. V. From and after the twenty-eighth day of October, one "• ^'' thousand eight hundred and fifty-two, the several allow- CTp^gT ^" a^ces for copying provided for and directed to be paid to cease, and the clerk of reports, the clerks of entries, the assistant Chancellor to clcrk of affidavits, the clerks of the examiners, and the make »es^i»- copying or writing clerks of the Masters in Ordinary of copies. the said court, by any Act or Acts of Parliament now in SUITORS IN CHANCERY RELIEF ACT. 227 force, shall cease; and it shall he lawful for the Lord 15 & 16 Vict. Chancellor, by any order or orders to be from time to "' ^'^' °' ^' time made by him, to make such regulations as to the making and delivering copies of the pleadings and other proceedings in the said court, and of the documents relating thereto, and the manner in which such copies should be paid for, and the amount of charge for the same, and by whom the amount to be so charged should be received, as may from time to time seem expedient {a). (a) See as to copies, Ord. XXXYI., post, and Kegul. as to fees, Appendix, pp. xlix., 1., post. VI. It shall be lawful for the Lord Chahcellor, by any Lord Chancel- order or orders to be from time to time made by him, to ^o^'^^and vary, reduce, or abolish all or any of the fees payable in provide for relation to proceedings in the Court of Chancery, and to byTtamps! '™ substitute one or more fee or fees in lieu thereof, and to direct that all or any of such fees shall, from a day to be named in such order or orders, and thenceforth, be collected by means of stamps to be provided and used in manner hereinafter mentioned (S). (6) See Ord. XXXVI. 1, and XXXIX. 3—8, and Kegul. as to fees, Appen- dix, pp. xlvii. — ^lii., post, VII. From and after the day named in such order or After such orders, unless and until the Lord Chancellor shall other- tote'receWed* wise direct, none of the fees mentioned in such orders i" money, but respectively shall be received in money, but by a stamp st^mp™^ ° denoting the amount of the fee which otherwise would be payable ; and where any fee shall be payable in respect of any document such stamp shall, at the expense of the party liable to pay the fee, and in such manner and under such regulations as shall by any order or orders be directed, be stamped or affixed on the vellum, parchment, or paper on which the proceeding in respect whereof such fee is payable is written, printed, or engrossed, or which may be otherwise used in reference to such proceeding, [Sections 8 — 13 oontain proTisions as to the sale of stamps, &c.] XIV. It shall be lawful for the Lord Chancellor, in- Power to ato- trusted by virtue of the Queen's sign manual with the lunaoyrand to « 2 228 SUITORS IN CHANCERY RELIEF ACT. 15 & 16 Vict, care and commitment of the custody of the persons and — — — — — estates of persons found idiot, lunatic, or ofunsoundmind (c)^ per-centage^n ^^ ^^^ Order or Orders to be from time to time made by lieu thereof, the Lord Chancellor, intrusted as aforesaid (c), to abolish all or any of the fees payable in relation to proceedings in lunacy, and to direct that such of the fees as shall not be abolished, if any, shall be collected by, means of stamps in the manner hereinbefore provided with respect to fees pay- able in relation to proceedings in the Court of Chancery, and also to direct that in lieu of all or any of such fees a percentage or ad valorem payment shall be paid on the clear annual incomes of the persons found idiot, lunatic, or of unsound mind, and on the amount of the taxed costs incurred in proceedings in lunacy, or on such annual incomes only, or on the amount of such taxed costs only, the amount of such annual incomes as aforesaid, and the amount of the percentage or ad valorem payment to be paid thereon or on such taxed costs to be from time to time ascertained and fixed in such manner, by such means, and under such regulations as the Lord Chancellor, in- trusted as aforesaid, shall by any order or orders direct, and the amount of such percentage ox ad valorem pay- ment to be paid into the Bank of England in the name of the Accountant- General of the Court of Chancery, to be placed to the account there intituled, " The Suitors' I Fee Fund Account," at such times and by such persons as the Lord Chancellor, intrusted as aforesaid, shall by any order or orders direct: Provided always, that the amount to be raised by such percentage or ad valorem payment stall not exceed the amount which may from time to'time be required to provide for the payment of the salaries, expenses, and sums of money payable under the Act of the session holden in the fifth and sixth years of the reign of her present Majesty, chapter eighty-four, or any other Acts or Act of Parliament for the time being in force with respect to lunatics ; and that a statement of the amount of such percentage or ad valorem payment shall from time to time, within fourteen days next after the same shall have been settled, be laid on the table of SUITORS IN CHANCEEY BELIEF ACT. 229 the House of Commons, if Parliament shall be then 15 & 16 ?ict. c, 87 B. 14 assembled, or if Parliament shall not be then assembled, ~ — '—^ — '— then within fourteen days after the meeting of Parliament then next following. (c) The Lords Justices are in fact also intrusted with this care, see Lewin, 754, note (e) ; 16 & 17 Vict. c. 70, s. 100 ; Seton 74. XV. All the jurisdiction and all the powers and authori- Certain statu- ties of a judicial nature, given by the Act of the session t;on of Lord holden in the first year of the reien of King William the p^anceiior as •' o c ^^ to lunatics to Fourth, chapter sixty-five, by "The Trustee Act, 1850, be exercised by and by any other Acts or Act of Parliament now in force, J'^gXing so^^ to the Lord Chancellor, intrusted by virtue of the Queen's intrusted, sign manual with the care and commitment of the custody of the persons and estates of persons found idiot, lunatic, or of unsound mind, shall belong to and may be exercised by all or any of the persons or person for the time being intrusted as aforesaid {d). (d) As to the jurisdiction of the Lords Justices in lunacy, see last note ; Jurisdiction in and see sect. 11 of the Trustee Extension Act, p. 116, ante, and note (o), p. lunacy. 70, and note (j), p. 81, amte. [Sections 16 — 40 relate to the payment of the salaries of the judges, the Clerks of E«- Accountant-General, the secretary of presentations, and the duties of thecZerfe cords and Writs. of records and writs ; as to which see now Ord. I. 35 — -63, and Ord. XXIII. 29, poit.] XLI. The deposit now payable (e) on setting down Deposits on ap- appeals and exceptions for hearing shall continue to be hito Bank Mid payable, and such deposits shall be paid to and received placed to "The by the senior registrar of the Court of Chancery for the Account." time being, who shall once in every three months pay all sums so received by him into the Bank of England to the credit of the Accountant-General of the said court (the amount so received and paid by such registrar to be verified by affidavit), and the several sums when so paid in shall b# from time to time placed to an account to be intituled " The Appeal Deposit Account," and the monies which shall from time to time be standing to such account shall be paid and applied as the Court of Chancery shall from time to time in that behalf order or direct. 230 SUITOES IN C'HANCEET RELIEF ACT. 15 & 16 Viet. (e) The deposit on appeals is 20t, Ord. XXXI. 4 and note, and see Daniell, 0. 87, [I. 41. 1364. It is now payable on appeals from orders on motions for decree, Ord. XXXI, 8. Sale by auction [Ss. 42, 43, provide that persons may sell by auction under an order of the under decree. Court of Chancery, without being liable to the duty imposed on auctioneers' licences : ss. 44 — 54 relate to fees and emoluments reduced or abolished, and to the salaries of chief clerks.] Interpretation LY_ Jq tjjg construction of this Act, unless sucli mean- of term "Lord. . . ' ■, , 1 j. ii. Chancellor." ing be repugnant to or inconsistent with the context, the expression "Lord Chancellor " shall mean and include the Lord High Chancellor of Great Britain, and the Lord Keeper or Lords Commissioners of the Great Seal of the United Kingdom for the time being. OATHS IN CHANCEEY ACT. 16 & 17 VICT. Cap. 78. An Act relating to the Appointment of Persons to admi- nister Oaths in Chancery, and to Affidavits made for Purposes connected with Registration. lUth August, 1853. 16 & 17 Vict. Be it enacted by the Queen's most, Excellent Majesty, "" '. by and -with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as foUows : "Masters Ex- J. The persons now Styled " Masters Extraordinary in traordmary « i n to cease to be Chancery shall cease to be so styled, and they and all BO styled, and pgrgons hereinafter appointed by the Lord Chancellor to be desig- '^ _ _ '^f •' nated "Com- to execute like duties in England shall be. designated missionei's. " Commissioners to administer oaths in Chancery in England" {a), and shall possess and exercise all such powers and discharge all such duties as now appertain to the office of Master Extraordinary in Chancery by virtue of any statute or order of the Court of Chancery or of the Lord Chancellor, or usage in that behalf, or otherwise. (a) See Ord. IV. 1, which provides that these commissioners shall not do any act incident to their office within ten miles of Lincoln's Inn Hall. S'soMtors II- I* shaU be lawful for the Lord Chancellor from OATHS IN CHANCERY, ETC., ACT. 231 time to time to appoint any persons practising as solici- 16 & 17 Viot. tors (b) within ten miles from Lincoln's Inn Hall at their . ' ' ' ' Dussioners. respective places of business (c) to administer oaths oatts'and take and take declarations, affirmations, and attestations of declarations in honour in Chancery, and to possess all such other powers to be styled and discharge all such other duties as aforesaid: and "?"'?"l™ ^°™" such persons shall be styled " London Commissioners to administer oaths in Chancery;" and they shall be entitled to charge and take a fee of one shilling and sixpence (d) for every oath administered by them, and for every decla- ration, affirmation, or attestation of honour taken by them, subject to any order of the Lord Chancellor varying or annulling the same. (b) The solicitor in the cause, or his clerk, is excluded, MopJein v. Hopkin, Solicitor in the 10 Hare, App. ii. ; Wood v. Harper, 3 Beav. 290 ; but a plaintiff being a cause excluded, solicitor, but not the solicitor in the cause, was allowed to put in an affidavit sworn before his clerk, Poster t. Harvey, 11 W. R. 899. (c) These words are not to be taken as defining the place where the oath is to Oath, where to be administered, but as denoting "the whole range within which the solicitors be adminis- are to be considered as practising " (per Lord Cranworth, in B.e Record and tered. Writ Clerks, 3 D. M. G. 723. It follows that it is not necessary that the oath should be taken in the commissioner's office (i&ic2.). By 18 & 19 Vict. c. 134, s. 15, persons taking a false oath, fee, are to be False oath, liable to the penalties of perjury, at whatever place the oath is taken. The commissioner is to state in the jurat or attestation at what place the oath, &c., has been taken (ibid.) (d) This fee is still payable, see Kegul. as to fees. Appendix p. xlvi., post. Fee. III. It shall be lawful for the Lord Chancellor from Commissioners time to time to appoint any persons practising as solicitors ported to ad- in the Isle of Man, in the Channel Islands (e), or any of ™™ster oaths them, to administer oaths and take declarations, affirma- the Channel tions, and attestations of honour in Chancery, and to ^^'^'^'^s- possess aJl such other powers and discharge all such other duties as aforesaid; and such persons shall be styled " Commissioners to administer oaths in Chancery for the Channel Islands," and they shall be entitled to charge and take the same fees as the said " Commissioners to administer oaths in Chancery." (e) Affidavits to support an application for a haheas corpus may be sworn Jersey, before a commissioner to administer oaths in Chancery in Jersey, there being no commissioners in that island for taking affidavits for the common law courts (Be Dodd, 6 W. E. 174). IV. The fiat or document by which any such commis- Commissioners' sioners as aforesaid shall be appointed shall bear a to be™r a Chan- 232 OATHS IN CHAl^CERY, ETC., ACT. 16 & 17 Vict, e. 78, s. i. eery stamp of 11. in lieu of otjier charges. Nothing to lessen power of Lord Chan- cellor. Reference to Masters Extra- ordinary in Acts to apply to commis- sioners. Persona au- thorised to ad- minister oaths in Chancery may administer oaths in Chan- cery of County Palatine of Lancaster. Term "Lord Chancellor." Chancery stamp of one pound, in lieu of the stamp of five shillings now required ; but no other charge or fee shall be made or payable in respect of such appointment, or of anything requisite to be done in order to perfect the same ; and it shall not be necessary that any such appointment should be published in the London Gazette. V. Nothing herein contained shall abridge or lessen the power of the Lord Chancellor as it now exists to appoint fit persons to administer oaths and take declarations, affirmations, and attestations of honour in Chancery, or to regulate the fees to be taken by them (/), and where any Act of Parliament refers to the Masters Extraordinary in Chancery, or to their powers or duties, the reference shall be held to apply to, and include, the commissioners herein- before mentioned, or to their powers or duties, as the case may be. (/) See now Eegul. as to fees, Appendix, p. xlvi. [Sect. TI. extends the provisions of 15 & 16 Vict. c. 86, ss. 22—24, to the Isle of Man, see note (g), p. 180, ante.] VII. That where any person is or shall be authorised to administer oaths for the High Court of Chancery, such person is and shall be authorised to administer oaths for all suits and matters whatsoever in the Chancery of the County Palatine of Lancaster; and where any plea, answer, affidavit, or other document whatsoever is or shall be receivable in evidence in the High Court of Chancery, the same shall be in like manner receivable in the said court of the county palatine. VIII. The term "Lord Chancellor" shall mean also and include the Lord Keeper and Lords Commissioners for the custody of the Great Seal for the time being. infants' SETl'LEMENT ACT. 233 INFANTS' SETTLEMENT ACT. 18 & 19 VICT. Cap. 43. An Act to enable Infants, with the Approbation of the Court of Chancery, to make binding Settlements of their Reai and Personal Estate on Marriage. l2nd July, 1855. Whereas great inconveniences and disadvantages arise is& 19 Vict. in consequence of persons who marry during minority °' being incapable of making binding settlements of their property : For remedy whereof be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same as follows : I. From and after the passing of this Act it shall be Infents may, lawful for every infant upon or in contemplation of his or probation of her marriage, with the sanction of the Court of Chan- *^^ *^'""' °^ , , , Chaneery, eery (a), to make a valid and binding settlement (b) or make valid contract for a settlement of all or any part of his or her contracts' for™ property, or property over which he or she has any power settlements of of appointment, whether real or personal, and whether in personal estate possession, reversion, remainder, or expectancy; and "P°° °'*"'*^®" every conveyance, appointment, and assignment of such real or personal estate, or contract to make a conveyance, appointment, or assignment thereof, executed by such infant, with the approbation of the said Court, for the purpose of giving effect to such settlement, shall be as valid and effectual as if the person executing the same were of the full age of twenty-one years : Provided always, that this enactment shall not extend to powers of which it is expressly declared that they shall not be exercised by an infant. (a) In Re Dalton, 3 Sm. & G. 331 ; 6 D. M. G. 201 : the Lord Chancellor Duty of Court expressed himself as of opinion that the Act did not impose on the Court any under this Act other duty than that of looking to the propriety of the settlement ; and con- sequently, that the propriety of the marriage itself was not a question for its consideration, though of course " what in each case might be a proper settle- 234 infants' settlement act. 18 & 19 Vict, ment must sometimes lead to an inquiry as to all the oironmstances connected «» ^ •' , ■ n arising from stone, or minerals as aforesaid, may, u the Court shall sales. think fit, be paid to any trustees of whom it shall approve, or otherwise the same shall be paid into the Bank of England or Ireland, as the case may be, to the account of the Accountant- General of the Court of Chancery, ex parte the applicant in the matter of this Act, and in either case such money shall be appli^ as the Court shall from time to time direct to some one or more of the following purposes : (namely :) The purchase or redemption of the land tax, or the discharge or redemption of any incumbrance affect- ing the hereditaments in respect of which such money was paid; or, affecting any other heredita- ments subject to the same uses or trusts ; or. The purchase of other hereditaments (i) to be settled in the same manner as the hereditaments in respect of which the money was paid {k) ; or, The payment to any person becoming absolutely entitled (Q. (j) Where there was no existing trustee of settled estates which had been New trustees directed to be sold, the Court ordered new trustees to be appointed, and the appointed, lands purchased with the proceeds to be conveyed to them, Se Sexton Marn't Settled Estates, 10 W. E. 415. (k) On the petition of a tenant for life, the remainderman consenting, the Proceeds of Court ordered part of the proceeds of a sale under the Act to be invested in sales invested, mortgage security, Wall v. Sail, 11 W. B. 298; see note {j), to 23 & 24 Vict. c. 38, s. 10 (p. 290), jpost. {1} See notes to sect. 69 of the Lands Clauses Act, ante, p. 36. Payment. XXIV. The application of the money in manner afore- Trustees may said (to) may, if the Court shall so direct, be made by the f^^Pe^tSn"''' 248 LEASES AND SALES OP SETTLED ESTATES ACT. u^i^oVat" *™s*^^s (if any) without any appKcation to the Court (n), casea \ritlio t' °^ Otherwise upon an order of the Court upon the petition application to of the person who would be entitled to the possession or Court. ^jjg receipt of the rents and profits of the land if the money had been invested in the purchase of land. Eeinvestment. ('"') ^P'"' a° application for the re-inveatment of money under this section, it is not necessary to serve the persons who were required to be served with all the notices required on a petition for sale {Be DuJee of Cleveland's Harte Estates, 1 Dr, & Sm. 481 ; followed in Be Sexton Barn's Settled Estates, 10 W. R. 416). (») See Be Peacock's Settled Estates, 15 W. R. 100. Until money XXV. Until the money can be applied as aforesaid, can he applied, , i-n,n • .,• • ij'-n to be invested, the same shall be from time to time invested in JiiX- and dividends chequer Bills, or in Three per Centum Consolidated to be paid to ' ' '^ partiesentitled. Bank Annuities, as the Court shall think fit ; and the interest and dividends of such Exchequer Bills or Bank Annuities shall be paid to the person who would have bee» entitled to the rents and profits of the land if the money had been invested in the purchase of land. Court may XXVI. The Court shall be at liberty to exercise any exercise powers . , .tit repeatedly, but of the powers conferred on it by this Act, whether the cisTthemTf'^' ^iourt shall have already exercised any of the powers expressly nega- conferred by this Act in respect of the' same property or not J but no such powers shall be exercised if an express declaration or manifest intention that they shall not be exercised is contained in the settlement, or may reasonably be inferred therefrom (o), or from extrinsic [Where settle- circumstances or evidence: Provided always that the -SLrpower 1 circumstance of the settlement containing powers to effect similar purposes shall not preclude the Court from exercising any of the powers conferred by this Act, if it shall think that the powers contained in the settlement ought to be extended. Lease ordered (") '^^^ existence of a power of sale in the settlement is not a sufScient though settle- manifestation of intention within this section to preclude the Court from ment contained ordering a sale under the Act {Be Thompson's Settled Estates, Johns. 424 ; and power to sell. ^^ ^''^ ^- Jenkins, 26 Beav. 351). Consent Where a power is only to he exercised with certain consent, the Court will not dispense with such consent, even though it be arbitrarily (but not mali- ciously) refused, Be Hwle's Settled Estates, 2 H. & M. 196, and see note («), supra. LEASES AND SALES OF SETTLED ESTATES ACT. 249 XXVII. Nothing in this Act shall be construed to 19 & 20 Viot. empower the Court to authorise any lease, sale, or other - ' °' ^ ' act beyond the extent to which in the opinion of the aut"hJri°e'any Court the same might have been authorised in and by »<=' which the settlement by the settlor or Settlors. beeiVul'r XXVIII. After the completion of any lease or sale, or i^ed by the other act, under the authority of the Court, and pur- Aotsoftbe porting to be in pursuance of this Act, the same shall ^o"""* ^^ p™- not be invalidated on the ground that the Court was not ance of this hereby empowered to authorise the same ; except that no ^^^j^^^^ ^ such lease, sale, or other act shall have any effect against any person whose coneurrence in or consent to the application ought to have been obtained, and was not obtained (p). (p) It seems that if the purchaser once got hia conveyance under this Act, Effect of con- his title, except as mentioned in the text, wonld be unimpeachable (Be Thomp- Teyance. son's Settled Estates, Johns. 422 ; per V.-C. Wood ; but see Se Burdin or Bardin, 5 Jur. N. S. 1378. It is competent for the purchaser at any time before the completion to point out to the Court that it is exceeding its juris- diction under the Act (Re Thompson's Settled Estates, 1. c). See, now, the land Transfer Act, 1862, sect. 49, post, p. 318, authorising sales with an in- defeasible title. XXIX. It shall be lawful for the Court, if it shall Costa. think fit, to order that all or any costs {q) or expenses of all or any parties of and incident to any application imder this Act shall be a charge on the hereditaments " which are the subject of the application, or on any other hereditaments included in the same settlement, and subject to the same limitations ; and the Coui-t may also direct that such costs and expenses shall be raised by sale or mortgage of a sufficient part of such heredita- ments, or out of the rents or profits thereof, such costs and expenses to be taxed as the Court shall direct. (q) As to the costs of applications intended to benefit estates to which difie- Costs, rent persons are successively entitled, see Re Pariy's Settlement, 29 L. T. 72 ; and see Be Mai-ner, cited p. 69, ante, and note (A), ante, p. 109. XXX. The Lord Chancellor of Great Britain, with the Power to Lord advice and assistance of the English Master of the EoUs, &o.*°tfmake the Lords Justices of the Court of Appeal in Chancery, mles and and the Vice Chancellors, or of any three of them, so far as relates to proceedings in England, and the Lord 250 LEASES AND SALES OF SETTLED ESTATES ACT. 19&20Viot. c. 120, s. 80. Chancellor of Ireland, with the advice and assistance of the Irish Master of the RoUs, and of the Lord Justice of the Court of Appeal in Chancery in Ireland, or of any two of them so far as relates to proceedings in Ireland, may, if he shall think fit, from time to time make general rules and orders for carrying the purposes of this Act into effect, and for regulating the times and form and mode of procedure, and generally the practice of the Court in respect of the matters to which this Act relates, and for regulating the fees and allowances to all officers and solicitors of the Court in respect to such matters ; and such rules and orders may from time to time be rescinded or altered by the like authorities respectively ; and all such rules and orders shall take effect as general orders of the Court (r). (r) See Ord. XLI. 14—25, and 23rd Eegul. as to business, Aug. 1857, 21 — 23, Appendix, p. Ivi., Ivii., post. Bales and orders to be laid before Parliament. XXXI. All general rules and orders made as afore- said shall, immediately after the making and issuing thereof, be laid before both Houses of Parliament, if Parliament be then sitting, or if Parliament be not then sitting, within twenty-one days after the next meeting thereof; and it shall be lawful for either of the Houses of Parliament, by any resolution passed within thirty-six days after such rules or orders have been laid before it, to resolve that the same or any part thereof ought not to continue in force, and thereupon the same shall cease to be binding. XXXII. It shall be lawful for any person entitled to life, &e., may ^\^g possession or to the receipt of the rents and profits grant leases for _ p i- 1* twenty-one of any settled estates for an estate for life, or for a term years. ^^ years determinable with his life, or for any greater estate, either in his own right or in the right of his wife, unless the settlement shall contain an express declaration that it shall not be lawful for such person to make such demise ; and also for any person entitled to the pos- session or to the receipt of the rents and profits of any unsettled estates as tenant by the courtesy, or in dower, Tenants for LEASES AND SALES OF SETTLED ESTATES ACT. 251 or in right of a wife who is seised in fee, without any 19 & 20 Vict. application to the Court, to demise the same or any part ' L thereof, except the principal mansion-house and demesnes thereof, and other lands usually occupied therewith, from time to time, for any term not exceeding twenty-one years to take effect in possession, provided that every such demise be made by deedj and the best rent that can reasonably be obtained be thereby reserved, without any fine or other benefit in the nature of a fine, which rent shall be incident to the immediate rever- sion ; and provided that such demise be not made without impeachment of'waste, and do contain a covenant for payment of the rent, and such other usual and proper covenants as the lessor shall think fit, and also a con- dition of re-entry on non-payment for a period not less than twenty-eight days of the rent thereby reserved, and on non-observance of any of the covenants or conditions therein contained ; and provided a counterpart of every deed of lease be executed by the lessee {&). (s) See as to this section, Sugden oa Powers, and Davidson iii., 437. XXXIII. Every demise authorised by the last pre- Against whom ceding section shall be valid against the person granting shall be valid, the same, and all other persons entitled to estates subse- quent to the estate of such person under or by virtue of the same settlement, if the estates be settled, and in the case of unsettled estates against all persons claiming through or tmder the wife or husband (as the case may be) of the person granting the same (t). (t) Such leases are now, by the 21 & 22 Vict. c. 77, ». 8, p. 257, post, valid, Leases valid "against the wife of any husband making such demise of estates to which he against wife, is entitled in right of his wife." XXXIV. The execution of any lease by the lessor or Evidence of lessors shall be deemed sufficient evidence that a counter- jg^""^^™ °^ part of such lease has been duly executed by the lessee as required by this Act. XXXV. The Act of the thirty- second year of King Repeal of 32 Henry the Eighth, chapter twenty-eight, intituled, ^«°-^-8.p<=-^28, " Lessees to enjoy the farm against the tenant in tail," sess. 3, o. 6 ' 252 LEASES AND SAXES OF SETTLED ESTATES ACT. 19 & 20 Vict, and the Act of the Parliament of Ireland of the tenth "' ^ "' "' ^^' year of King Charles the First, session three, chapter ceptasto^^" six, intituled, "An Act that lessees shaU enjoy their ecclesiastical farms against tenants in tail or in right of their wives- etc.," are hereby repealed, except so far as relates to leases made by persons having an estate in the right of their churches. Provision as to , XXXVI. All powers given by this Act, and all appli- tict"&o.^"°*' cations to the Court under this Act, and consents to such applications, may be exercised, made, or given by guardians on behalf of the infants (m), and by committees on behalf of lunatics {«), and by assignees of bankrupts or insolvents : Provided nevertheless, that in the cases of infant or lunatic tenants in tail no application to the Court, or consent to any application, may be made or given by any guardian or committee without the special direction of the Court (w). Guardian how («) As to appointing a guardian to apply or consent by summons in and when chambers and the evidence required, see 21st Eegul. as to business, appointed. Aug. 8, 1857, Appendix, p. Ivi., post. In case the guardian has to apply he must he appointed before the petition is presented, Urid,, but see £e Har- greavii Settled Estates, 7 W. K. 156, where it was held that the guardian may be appointed at any time before the petition is hea/rd ; He Longstaffe's Settled Estates, 1 Drew. & Sm. 142 ; and see the cases cited in note ^a;), infra. Where the guardian has only to consent to an application, he may be appointed either before or after the petition is presented. Re Ha/rgreave''s Settled Estates, 1. c. A guardian must be appointed even though the father of the infant having no adverse interest concurs (Re CaddicKs Settled Estates, 7 W. R. 334). (d) See 22nd Eegul. as to business, Aug. 8, 1857, Appendix, p. Ivi., post. (w) Such special directions may be obtained by ese parte summons, Ord. XLI. 23, post; see p. 147, ante. A married wo- XXXVII. Where a married woman shall apply to the toThe Court\) Court, or consent to an application to the Court, under be examined this Act, she shall first be examined apart from her husband. husband {x), touching her knowledge of the nature and effect of the application, and it shall be ascei;tained that she freely desires to make or consent to such application ; and such examination shall be made whether the heredi- taments which are the subject of the application shall be settled in trust for the separate use of such married No clause, &c., woman independently of her husband, or not; and no restraS^'an- clause or provision in any settlement restraining antici- LEASES AND SALES OF SETTLED ESTATES ACT. 253 pation shall prevent the Court from exercising, if it shall 19 & 20 Vict. think fit, any of the powers given hy this Act, and no "• ^^"^ "• ^7. such exercise shall occasion any forfeiture, anything in prevent'court the settlement contained to the contrary notwithstanding, from exerolsing powers of this (x) A married woman petitioning should be examined before any judicial ■^''*- step is taken. When married A married woman consenting to an application may be examined under this women should section at any time up to the hearing of the petition, or her consent may be be examined, taken in court on the petition coming on to be heard, see Se Forster's Settled Estates, 24 Beav. 220 ; 1 De G. & J. 386. Advertisements issued preyiftusly to the obtaining such consent are therefore valid (ibid.), overruling the older eases on this point ; but see Daniell, 1813. When a woman married aft«r the petition was presented, but before any proceedings were taken under it, the Master of the Rolls held that she must be examined under this section {Ee Cundee's Estates, Nov. 11, 1859) ; but where a married woman's interest was remote, she was represented by trustees, her examination was dispensed with. Be Lord de Tableifs Settled Estates, 11 W. B. 936. In Se Twhvt, 8 L. T. N. S. 657 (where it was held that a married woman After order entitled to a jointure charged on settled estates must be examined under made, this section), her examination was ordered after the order was made upon the petition, but before it was drawn up, the petition being ordered to be men- tioned again after the examination (Y.-C. Wood). XXXVIII. The examination of such married woman Snoh examina- shaU be made either hy the Court or hy some soli- by the Com-t or citor (y) duly appointed by the Court for that purpose (z), ty a soUcitor. who shall certify, under his hand, that he has examined her apart from her husband, and is satisfied that she is aware of the nature and effect of the intended application, and that she freely desires to make or consent to the same. (y) The solicitor appointed to take the examination should not be the Who may take solicitor acting in the matter {Se Brealy's Settled Estates, 5 W. B. 613 ; her examina- and of. ffopkins v. HopMm, 10 Hare, App. ii. ), or the solicitor of the husband tion. (Se Noyea' Settled Estates, 6 W. B. 7) ; and no person connected with the husband should be allowed to be present during the examination {Se Bm- dyshe, 3 Jur. N. S. 727). He must be a solicitor actually taking out a cer- tificate de armo in a/nnwm, although he may be practising in a foreign country (ibid.) It is now provided that when the married woman resides abroad, any person, whether a solicitor or not, may be appointed. See sect. 6 of the Amendment Act, 1858, p. i5Q,post. (z) The section does not authorise a commission (Se Noyei Settled Estates, 6 W. B. 7 ; and see Turner v. Twrner, 6 W. B. 95). XXXIX. Subject to such examination as aforesaid, As to consent married women may make or consent to any applications, ^^^^ „„^gr age. whether they be of full age or infants. XL. Nothing in this Act shall be construed to create No equity to any obligation at law or in equity on any person to make to™ppiy*to the Court. 254 LEASES AND SALES OF SETTLED ESTATES ACT. ^^ * 20 Vict, or consent to any application to the Court, or to exercise '- — '■ — '- any power. Tenants for XLI. For the purposes of this Act, a person shall be raerrise'powCTs '^^^^^'^ *o ^^ entitled to the possessions or to the receipt notwithstand- of the rents and profits of estates, although his estate toances!™ ^^J ^^ charged or incumbered either by himself or by the settlor, or otherwise howsoever, to any extent; but the estates or interests of the parties entitled to any such charge or incumbrance shall not be affected by the acts of the person entitled to the possession or to the receipt of the rents and profits as aforesaid, unless they shall concur therein. Exception as to XLII. Provided always, that nothing in this Act shall lyActs^of Par- ^^t^^o^ise any sale or lease beyond the term of twenty- liament. one years of any settled estates in which under the Act of the twenty-fourth and twenty-fifth years of King Henry the Eighth, chapter twenty, "to embar feigned recovery of lands wherein the King is in reversion," or under any other Act of Parliament, the tenants in tail are restrained from barring or defeating their estates tail, or where the reversion is vested in the Crown. Saving rights XLIII. Nothing in this Act shall authorise the of lords of granting of a lease of any copyhold or customary heredita- ments not warranted by the custom of the manor with- out .the consent of the lord, nor otherwise prejudice or affect the rights of any lord of a manor. To what settle- XLIV. The provisions of this Act shall extend to all ments this Act settlements, whether made before or after it shall come to extend. . . m lorce, except those as to demises to be made without application to the Court, which shall extend only to settlements made after this Act shall come in force. Extent of Act. XLV. This Act shall not extend to Scotland. Commence- XLYI. This Act shall come in force on the first day of ment of Act. November, one thousand eight hundred and fifty-six. LEASES, ETC., OF SETTLED ESTATES AMENDMENT ACT. 255 LEASES AND SALES OF SETTLED ESTATES AMENDMENT ACT, 1858. 21 & 22 VICT. Cap. 77. An Act to amend and extend the Settled Estates Act of 1856. [2nd August, 1858. Whereas it is expedient to amend and extend the 21 & 22 Tiet. Settled Estates Act of 1856 (nineteenth and twentieth '- — '- — Victoria, chapter one hundred and twenty) in certain e. 120. particulars : Be it enacted hy the Queen's most Excellent Majesty, hy and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : I. For the purposes of the definitions of " settlement" P.^^^^i*'""^ "/, •: ^ _ _ _ "Settlement and "settled estates" contained in the first section of and "Settled the said Act, all estates or interests in remainder or ^^***^^-' reversion not disposed of by the settlement, and reverting to a settlor, or descending to the heir of a testator, shall be deemed to be estates, coming to such settlor or heir under or by virtue of the settlement (o). ia) See note (5), p. 237, ante. II. The term "building lease" in the said Act (S) |' ^"i',''™? shall be deemed to include a repairing lease, so that no elude repair- repairing lease shall be made for a terra exceeding sixty '"^ ^^*^®' years (6). (b) See note (c), p. 239; ante. III. All the powers to authorise and to grant leases Po^^e™ 0^ leas- contained in the said Act and this Act shall be deemed to copyhold and include powers to the lords of settled manors to give f"^*"™*^ '^ _ ° tenants 01 licences to their copyhold (c) or customary tenants to grant manors. leases of lands held by them of such manors to the same extent and for the same purposes as leases may be authorised or granted of freehold hereditaments under the said Act and this Act. (c) See note (6), p. 237, amie. 256 LEASES, ETC., OF SETTLED ESTATES AMENDMENT ACT. 21 & 22 Vict, c. 77, s. 4. Extension of power under section 2 of recited Act as to term for building leases^ As to surren- der of leases. As to taking examinations of married Extension of power tn re- scind general rules and orders. IV. .The power given to the Court by the second section of the said Act to extend the term thereby pre- scribed for building leases, where it shall be satisfied that it is the usual custom of the district, and beneficial to the inheritance, to grant building leases for longer terms, shall be extended and may be exercised with respect to all the other leases in the same section men- tioned, except agricultural leases, provided the Court shall be satisfied that it is the usual custom of the dis- trict and beneficial to the inheritance to grant such leases for longer terms {d). {d) See note (/), p. 239, ante. V. The power conferred by the fifth section of the said Act to surrender leases granted under the provisions of the said Act shall be deemed to extend to all leases, whether granted in pursuance of the said Act or other- wise (e). (e) See note (l), p. 240, ante. VI. Whenever a married woman is resident out of the jurisdiction of the Court of Chancery of England or the Court of Chancery of Ireland respectively, as the case may be, her examination, under the thirty-eighth section of the Act, may be made by any person appointed for that purpose by the Court, whether he is or is not a solicitor of the court; and the appointment of any such person, not being a solicitor, shall afford conclusive evidence that the married woman was at the time of such examination resident out of the jurisdiction of the Court (/). (/) See note (j/), p. 253, ante. VII. The powers contained in the said Act to make and rescind general rules and orders shall extend to the matters to which this Act relates ; and such rules and orders may, so far as may be found expedient, alter the procedure prescribed by the said Act and this Act (g). {g) See Ord. XLI. 14—25, post. LEASES, ETC., OF SETTLED ESTATES AMENDMENT ACT. 257 VIII. In addition to the persons expressly enume- 21 & 22 Vict, rated in the thirty-third section of the said Act against "' ' ' °' whom demises authorized by the thirty-second section ^/^g^Jj^^g^jf^. are to be valid, such demises, in the case of unsettled der section 33 estates, shall be valid against the wife of any husband " making such demise of estates to which he is entitled in right of such wife (/i). (h) See note (<), p. 251, ante. CONFIEMATlbN OF SALES ACT. 25 & 26 VICT. Cap. 108. [See page 259, post.] LEASES AND SALES OF SETTLED ESTATES FURTHER AMENDMENT ACT, 1864. 27 & 28 VICT. Cap. 45. An Act to further amend the Settled Estates Act o/1856. [Uth July, 18M. Whereas by the tenth section of the Act passed in the 27 & 28 Vict. Parliament holden in the nineteenth and twentieth years "• of Her Majesty's reign, intituled "An Act to facilitate 19 & 20 Vict. Leases and Sales of Settled Estates," it was enacted, that when the Court of Chancery should deem it expedient that any general powers of leasing any settled estates, conformably to the said Act, should be vested in trustees, it might, by order, vest any such power accordingly either in the existing trustees of the settlement or in any other persons, and that in every such case the Court, if it should think fit, might impose any conditions as to con- sents or otherwise on the exercise of such power : And whereas, in order to protect the interests of persons interested in the settled estates affected by such powers, the practice of the said Court has been to require that 258 SETTLED ESTATES FURTHEK AMENDMENT ACT. 27 & 28 Vict, u. 46. Conditions tbat leases shall be settled by the Court not to be inserted in orders under sect. 10 of re- cited Act. Conditions already in- serted may be struck out by Court. leases granted in pursuance of a power vested in any trustees or other persons, under the provisions of the said tenth section of the said Act, should be settled by the said Court or by a judge thereof, or otherwise should be made conformable with a model lease deposited in the chambers of the judge : And whereas the introduction of such a condition has been found to occasion delay and expense, and so to create great difficulties in carrying into execution the objects of the Act, and such conditions may in general be safely omitted, and it is therefore expedient that the said Act should be amended as herein- after mentioned : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and con- sent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : I. In orders to be hereafter made under the said tenth section for vesting any powers of leasing in any trustees or other persons, no condition shall be inserted requiring that the leases thereby authorized should be submitted to or be settled by the said Court or a judge thereof, or be made conformable with a model lease deposited in the judge's chambers (a), save only in any case in which the parties applying for the order may desire to have any such condition inserted, or in which it shall appear to the Court that there is some special reason rendering the insertion of such a condition necessary or expedient. (a) See note («), p. 2il, ante. II. In all cases of orders already made in pursuance of the said tenth section, in which any such condition as aforesaid has been inserted, it shall be lawful for any party interested to apply to the Court to alter and amend such order, by striking out such condition, and the Court shall have full power to alter the same accordingly, and the order so altered shall have the same validity as if it had originally been made in its altered state (b) ; but nothing herein contained shall make it obligatory on the Court to act under this clause in any case in which from the evidence which was before it when the order sought to be SETTLED ESTATES FURTHER AMENDMENT ACT. 259 altered was made, or from any other evidence, it shall 27 & 28 Vict. appear to the Court that there is any special reason why — — ' in the case in question such a condition is necessary or expedient. (J) See note (m), p. 241, ante. .III. And whereas doubts are entertained whether inEemovalof the construction of the first section of the said Act the co^gt^aotion of Court is hound by the state of facts existing at the period sect, i of re- of the settlement taking eifect, or by the state of facts at the time of an application to the Court under the said Act, and it is desirable that such doubts should be removed : Be it enacted, that the said Court, in deter- mining what are settled estates within the said Act, shall be governed by the state of facts and by the trusts or limitations of the settlement at the time of the said settlement taking effect (c). (c) See note (J), p. 237, ante. IV. This Act shall be construed and dealt with as part Act to be oon- of the said former Act as amended by the Act of the i-ecM Act. twenty-first and twenty-second years of Her Majesty's reign, chapter seventy-seven, and all proceedings under this Act shall be subject to the same rules and orders, and shall be conducted in the same manner, as proceed- ings under the said former Acts. V. This Act shall extend to Ireland but not to Scotland, xtent of Act. CONFIEMATION OF SALES ACT. 25 & 26 YICT. Oap. 108. An Act to confirm certain Sales, Exchanges, Partitions and Enfranchisements by Trustees and others. [7th August, 1862. [Section 1 of this Act confirmed sales previously made apart from minerals, and not then impeached by any suit]. II. And whereas it is expedient that trusts and 25 & 26 Vict. powers to dispose of land by way of sale, exchange, — ' ^' partition, or enfranchisement should be extended in the T-^^'^^^Pfyj ^ ' dispose of land s 2 or minerals 260 CONFIRMATION OF SALES ACT. 25 & 26 Vict, c. 108, s. 2. Bepaiatelj 'without the residue, &c. Sanction of Court of Chan- cery requisite. Sales apart from minerals. Cestnis que trusts should be served. Court will au- thorize sales generally. Extent of Act. manner hereinafter appearing : Every trustee and other person now or hereafter to become authorized to dispose of land by way of sale, exchange, partition, or enfranchise- ment may, unless forbidden by the instrument creating the trust or power, so dispose of such land with an excep- tion or reservation of any minerals and with or without rights and powers of or incidental to the working, getting, or carrying away of such minerals (a), or may (unless for- bidden as aforesaid) dispose of by way of sale, exchange, or partition, the minerals with or without such rights or powers, separately from the residue of the land, and in either case without prejudice to any future exercise of the authority with respect to the excepted minerals or (as the case may be) the undisposed-of land ; but this enact- ment shall not enable any such disposition as aforesaid without the previous sanction of the Court of Chancery to be obtained on petition in a summary way -of the trustee (6) or other person authorized as aforesaid, which sanction once obtained shall extend to the enabling from time to time of any disposition within this enactment of any part or parts of the land comprised in the order to be made on such petition without the necessity of any further or other application to the Court (c). (a) The Court had previously under the Settled Estates Act allowed sales of land apart from the minerals ; note ( p), p. 242, ante. (6) The persons beneficially interested should be served, Se Brown, 11 W.R. 19. (c) The Court has made an order on petition authorizing sales of land apart from minerals, generally and without reference to any particular sale, Se WUUway, 32 L. J. Ch. 226. III. This Act shall not extend to Ireland or Scotland. CHANCERY AMENDMENT ACT, 1858. 261 CHANCEEY AMENDMENT ACT, 1858. 21 & 22 VICT. Cap. 27. An Act to amend the Course of Procedure in the High Court of Chancery, the Court of Chancery in Ireland, and the Court of Chancery of the County Palatine of Lancaster. [28th June, 1858. Whekeas it is expedient to amend further the practice 21 & 22 Vict. and course of proceeding in the High Court of Chancery, - '— the Court of Chancery in Ireland, and the Court of Chancery of the County Palatine of Lancaster : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : I. (a) This Act shall commence and take effect from Commenoe- and after the first day of November, one thousand eight "™*°^ ■*■'"'• liundred and fifty-eight, and may be cited and referred to Short title, as " The Chancery Amendment Act, 1858." (a) The Act is not retrospective (TFicis v. Bunt, Johns. 380), tut it would Act not retro- seem from the case of Nelson v. Bridges, 2 Beav. 239 (and see Prothero v. spective. Phdps, 25 L. J. Ch. 105 ; and LUlie v. Legh, 3 De G. & J. 204 ; Gedye v. Buhe of Montrose, 26 Beav. 46), that even before the passing of this Act Courts of Equity had inherent jurisdiction to award damages for the non-performance of an agreement which they were empowered to enforce . See Sugden's Vendors, 233, II. In all cases in which the Court of Chancery has Power to Court jurisdiction to entertain an application for an injunction award damages against a breach of any covenant, contract, or agreement, ™ certain or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, "contract, or agreement, it shall be lawful for the same Court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction or specific performance, and such damages may be assessed in such manner as the Court shall direct (5). (i) As to the mode of assessment, see note to next section. Damages were Damages grant- granted, though not asked for by the prayer of the bill, Catton v. Wyld, 32 ed though not Beav. 266 ; Cwrrieri Compamy v. Corbet, 2 Dr. & Sm. 355 ; but if a decree asked for by has been made giving equitable relief, a supplemental question as to damages bill, will not be entertained without a supplemental bill, Corporation of Mythe v. East, 1 L. R. Eq. 620. See Needham v. Oxl^j, 11 W. R. 745. Sir J. Rolt's Chancery Regulation Act, sect. 1 (post, p. 270), enacts that the Court shall determine every question of law or fact cognizable iu a Court of 262 CHANCERY AMENDMENT ACT, 1858. 21 & 22 Vict. Common Law, ou the determination of wlich the plaintiff's title to relief in li. 27, s. 2. equity depends. , , ,, ^ But, even if the question of a plaintiff's right to damages can be held to come The Court -vrithin these words (as to which see Johnson T. Wyatt, 2 D. J. S. 18), yet shall deter- there is a reservation in the 4th section of Sir J. Kolt'a Act, that the Court need mine, &o. , not decide purely legal questions where the matter has been improperly brought except where into equity, and, though in Johwon v. Wyait (1. c), the Lords Justices, having matter impro- regard to the spirit of the later Act, after. refusing an injunction, entered into perly brought the question of damages, and ultimately refused them, it has generally been into equity. held that Sir J. Kelt's Act has made no difference in the principles of the Court as to damages. The matter It is now settled that the question ot damages will not be entertained, must have except in cases where the Court has jurisdiction irrespectively of any rigbt to been proper to them, Hindley v. Emery, 1 L. K. Eq. 52 ; Dmell v. Pritchard, 1 L. E. Ch. be brought into 244 ; Swaine v. Great Northern Railway Company, 12 W. R. 391 ; Lewers Court of - ----- - -- - _ - ..-.-.^D equity, at the time V. Ea/rl of Shaftesbury, 2 L. B. Eq. 270 ; Wedmore v. Corporation of Bristol, 11 W. E. 136, where the Court refused to direct an inquiry as to damages on an interlocutory application, and see note (c) to sect. 42 of the Master in Chan- cery Abolition Act, p. 159, ante. _. The question always is whether the jurisdiction existed at the time of the when the bill filing of the Ull, for if it did, the Court will entertain the question of damages at was filed. the hearing, though something occurs during the litigation which prevents the jurisdiction attaching at the hearing, e.g. , though the plaintiff's subsequent laches disentitles him to the equitable relief, Eastwood v. Lever, 33 L. J. Ch. 355 ; or though a patent, in respect of which an injunction is prayed, has expired since the bill was filed, Davenport r. Rylamds, 1 L. B. Eq. 302 ; or the defendant has submitted to the equitable relief, Cory -7. Thames Iron Company, 11 W. R. 589 ; see Catton v. Wyld, 32 Beav. 265; but in a similar case the Court will not declare a legal right : see next note. (1) The following are instances in which the Court has refused to entertain the question of damages, owing to the question having been improperly brought into equity : — Where damages were sought in respect of an agreement which could not be grant equitable specifically performed — e.g., where the defendant had agreed to accept a lease relief, refuses of land so soon as he (the defendant) had completed certain buildings thereon, and such condition precedent had never been performed, Norris r. Jackson, 1 J. & H. 319 ; but compare Middleton v. Greenvmod, 2 D. J. S. 142 ; where, under similar circumstances the plaintiff waived the condition prece- dent, and was held entitled to specific performance with damages. See also Soames v. Edge, John. 669 ; Middleton v. Magnay, 2 H. & M. 233 ; Samuda v. Lawford, 4 Giff. 42. Again, where the plaintiff prayed that a resolution of directors allotting him count of uncer- certain shares might be specifically performed, but it appeared that all the tainty of agree- shares had been otherwise allotted, it was held that the plaintiff could not ment ; have a decree for indemnity out of the directors' own shares, this being a claim for damages in another form, Ferguson v. WUson, 2 L. R. Ch. 77. See,' too, Rogers v. Challis, 27 Beav. 175 ; Lewers v. Earl Shafteslury, 2 L. R. Eq. 270. And when any essential particular in the agreement is left to the decision of arbitrators or a referee, or the agreement is otherwise void for uncertainty, no damages will be given, TUlett v. Charing Cross Bridge Com- pany, 26 Beav. 419;. Darby v. Whittaher, i Drew. 134; Lancaster v. De Trafford, 10 "W. R. 474. And though the contract be one which might have been specifically enforced in equity, if the plaintiff does any act which, disentitles him to specific perform- ance, he will not be entitled to damages, Collins v. Stutely, 7 W. R. 710 ; Baumun v. Matthews, 4 L. T. N. S. 784 ; but see Eastwood v. Lever, and other cases cited supra, and Senior v. Pawson, infra. So if the inquiry complained of is so trivial that the Court considers that the (1) Cases where the Court having no jurisdiction to to entertain the question of damages ; e.g. on ac- or plaintiff's laches ; but dismisses the bill without matter was improperly brought into equity, no inquiry as to damages is nreiudice to an directed, ClarJee v. Clark, 1 L. R. Ch. 16 ; Dm-ell v. Pritchard, ibid. 244; action. Curriers' Company v. Corbet, 13 W. R. 1056 ; overruling s. c. 2 Dr. k Sm. 355 ; but the dismissal will be without prejudice to the plaintiff's right (if CHANCERY AMENDMENT ACT, 1858. 263 any) to bring an action at law, Eohson v, Whittingliam, 1 L. E. Oh. 21 & 22 Viol. 442. .... 0. 27, a. 2. (2) If the Court has jurisdiction to entertain a suit for specific performance, or injunction independently of the plaintiff's right to damages, it also will (2) Cases where assess damages for breaches of covenant in respect of the same transaction, the the Court hav- intention of the Act being to give the Court power to grant complete relief ing jurisdiction wherever it has a well founded jurisdiction to entertain the case, and not to to grant eq^uit- compel a plaintiff to seek partial relief in one Court, and then turn him over able relief, to another to seek supplemental relief, HindUy v. Emery, 1 L. II. Kq. 52 ; grants da- but see Corporation of MytAe v. JEast, cited in note (6), p. 261. mages in addi- But even where the Court has jurisdiction to give equitable relief, it will not Hon ; always restrain the plaintiff from obtaining relief in the shape of damages at law in respect of the same transaction, provided the action and the suit, though tat will not arising from the same transaction, are for different objects ; thus, though a always restrain plaintiff cannot obtain specific performance of an agreement in equity, and at the plaintiff the same time get damages at law for breach of the same agreement, (Hindley from suing at V. Emery, 1. c), yet where B. had agreed to deliver ships to A. by a certain law for damages, time, in consideration of which qpntract A. gave B. bills of exchange, and B. never performed the contract, it was held that A. might have a decree in equity to cancel the bills of exchange, and at the same time might sue at law for damages in respect of the breach of contract, which could not be specifically performed, Anglo-Danubian Company v. Rogerson, 4 L. K Eq. 3. (3) In many cases where there is sufficient foundation for the Court's jurisdic- (3) Cases tion, damages may be granted in substitution for equitable relief: e.g. if the wherethe Court plaintiff has been guUty of laches, Senior v. Pawson, 3 L. E. Eq. 330 ; or if a having juris- mandatory injunction would be very injurious to the defendant without cor- diction to grant responding benefit to the plaintiff, /ocisoji v. Duke of Newcastle, 12 W. E. 450 ; equitable relief see remarks of Lord Eomilly, M. R., in Tillelt v. Chairing Cross Bridge Com- has granted pany, 26 Beav. 419; and m SchotsmansY. Lancashire amd TorJcshireMailway damages in Company, 1 L. E. Eq. 399, (this case was reversed on another point, 2 L. E. Ch. substitution 332J ; and see Martin v. Headon, 2 L. E. Eq. 425 ; Isenberg v. East India for other relief, House Estate Company, 12 W. E. 450 ; Durell v. Pritchard, 1 L. E. Ch. 244; as the more and FranhlisTce v. Ball, 33 Beav. 660 ; where Lord Eomilly said that if a appropriate mortgagee agreed to lease, but could not obtain the moi'tgagor's consent, so remedy. that by leasing he would make himself liable as mortgagee in possession, then, on a suit for specific performance, damages would be the proper remedy ; and see the converse case in Howe r. Hunt, 31 Beav. 420. So where circum- stances happened after the filing of the bill, making an injunction impossible, Cotton V. Wyld, 32 Beav. 266 ; Davenport v. Rylands, 1 L. E. Eq. 3u2; Coi-y V. Thames Iron Works Company, 11 W. E. 589. And where the injury complained of was done by the defendants acting under parliamentary authority, damages were granted in place of an injunction, Wedmorev. Mayor of Bristol, 11 W. K. 136. III. It shall be lawful for the Court of Chancery, if it Damages may shall think fit, to cause the amount of such damages in q^eSn of'fact any case to be assessed (c) or any question of fact arising arising in any . , . . , . , suit may be in any suit or proceeding to be tried by a special or tried by a jury common jury before the Court itself (d), and the Court ^^^°™^^^,j, " of Chancery may make all such rules and orders upon the sheriff or any other person for procuring the attend- ance of a special (e) or common jury, for such assessment of damages or the trial of such question of fact, as may be made by any of the Superior Courts of Common Law at Westminster, and may also make any other orders 264 CHANCERY AMENDMENT ACT, 1858. 21 & 22 Vict, which to the Court of Chancery may seem requisite (/) ; c. 27, B. 3. ^^g^ every such jury shall consist of persons possessing the qualifications, and shall be struck, summoned, hal- lotted for, and called in like manner, as if such jury were a jury for the trial of any cause in any of the said Supe- rior Courts ; and every juryman so summoned shall be entitled to the same rights, and subject to the same duties and liabilities as if he had been duly summoned for the trial of any such cause in any of the said Supe- rior Courts ; and every party to any such proceeding shall be entitled to the same rights, as to challenge and otherwise, as if he were a party to any such cause ; and generally for all purposes of or auxiliary to the assess- ment of damages, or the trial of questions of fact by a jury before the Court itself, and in respect of new trials (5'), the Court of Chancery shall have the same jurisdiction, powers, and authority in all respects as belong to any Superior Court of Common Law, or to any judge thereof for the like purposes : Provided that from any order made by the Court on an application made for a new trial, there shall be the same right of appeal as from any other order of the Court. Mode of assess- (c) For the form of iaquiry as to damage ia the case of infringement of a ment of da- patent, see Davenport y. Rylcmds, 1 L. K. Eq. 302 ; in case of unlawful use damages. of a trade-mark, Leather Cloth Company t. Hinchfield, {ib-id. 299). An inquiry as to extraordinary damage, on the ground that the plaintiff could have made additional profit by letting a house during the London season was refused, Ohinnoclc v. Marchioness of My, 2 H. & M. 220 ; Mold v. Wheat- croft, 27 Bear. 510. As to whether damages claimed on account of abuse of the process of the Court should be assessed in equity or at common law, see Whitehead v. Lynes, 34 Beav. 165 ; on appeal, 12 h. T. N. S. 332. OTJESTIONS W Formerly when a question of law or fact arose, necessary to the decision OF LAW OB °^ *'^® equitable question at issue, the practice was to direct a case to be stated £'ACT. ^"^ ''"^ opinion of a court of law on the point of law, or to direct an issue as to the question of fact, or to direct an action if the proceedings involred a mixed question of law or fact. 10 e t' ns '^^^ ^^^^ ^ ^^""^ sections of 15 & 16 Vict. c. 86 (p. 224, ante), gave the Court '. , ° " , power to determine the legal title of any party seeking relief, and abolished the of au> ju g pjg^j(.;jg of stating cases as to points of law ; but for the purpose of determining ™ ' J questions of law, the Court may require the assistance of a common law judge, a°s'to points of '°y 1* ^ 15 Vict. c. 83, s. 5, note (d), (p. 138, ante). 1 ot to ^''^ Court may still state a case for the opinion of civilians, {Sap-e t. Oramp, b**stated • 2 W. K. 438) ; or of a Scotch advocate, McCormickv. Gamett, 5 D. M. G. ^ ' 278 ; or of a Court in another part of her Majesty's dominions, see 22 & 23 except for Vict. c. 63, s. 1, Lord v. Colvin, 1 Dr. & Sm. 24; Wihon t. Mom-e, 12 W. E. opinion of 1137 j and compare Brodie v. Johnson, 30 Beav. 129 ; Login v. Princess civilianB, coin- ^^ Coorg, ibid. 632|; where cases were stated in colonial courts under that Act nial courts, &c. for the opinion of the Court of Chancery. CHAKCEKV AMENDMENT ACT, 1858. 265 Lord Cairns' Act, by the section in the text, and sect. 5, infra, empowered 21 & 22 Vict, the Court to try questions of fact before itself, with or without a jury. u. 27, d, 3. And Sir J. Kelt's Chancery Kegulation Act, sect. 1, p. 270, post, enacts that the Court shall determine every question of law or fact incident to the relief ^- Q»es*i<"i» sought, feee Re Hooper, 11 W. E. 130 ; cited note (y), p. 127 ; Fernie v. ofh'^ *o ^e Young, 1 L. R. Eng. and Ir. Ap. 63, 71, 79. And see note (y) to sect. 79 of *"ed before the Lands Clauses Act, ante, p. 45. ™^ Court; But there are two reservations in Sir J. Kelt's Act, viz. : 25 & 26 Vict. (A.) In sect. 2 (p. 271), ■which reserves the power to send an issue out of c. 42, s. 1 ; Chancery, where it is more convenient that it should be tried at the assizes, or in the superior court of common law. (B.) In sect, 4, (p. 271), which provides that the Court need not decide a legal question where the matter has been improperly brought into equity. (A.) The proviso reserving power to send an issue out of Chancery, is only to except apply if the Court is satisfied that justice will be better done in the particular (a) where issue case by sending the issue to law, Femie v. Young, 1. c ; where an order of more conve- V.-C. Stuart, directing an issue at law, was reversed on appeal. nient. It seems, however, that the ^Court will not ordinarily try a question of e. g. Cases of nuisance before itself, unless the acts complained of were done in London or nuisance. Middlesex, Eaden v. Firth, 1 H. & M. 572. There may be an appeal on the question whether the trial shall be before Order directing the Court of Chancery, or in a court of common law, Femie v. Young, 1. c. ; issue to be though on the question whether the judge will try the question with or tried in chan- without the assistance of a jury, there is no appeal, note {g), p. 266. eery may be (B.) As to the second proviso, that the Court need not decide a purely legal appealed from, question, where the matter has been improperly brought into equity, compare iq\ wi,ere the cases cited, p. 262, mpra. _ mUi&r impro- Where a plaintiff complained that his legal rights had been infringed, but it „gfi_ jjrnneht appeared that he had had ample opportunity to establish his right at law, the Into eoultv Court refused to interfere, or to try his legal right with a view to granting an , injunction, Swaine v. Great Northern Railway Company, 12 W. K. 391 ; see *" ?" wlisre an Davenport v. Goldberg, 2 H. & M. 235 ; Ward v. Higgs, 4 N. E. 459 : t "i ^'"'"'" Clarkson v. Edge, 12 W. K. 618. ^a^« ^eeu A bill by an heir-at-law, to set aside a devise of real estate on the ground ■"'''"S''* °'-' was of fraud, was held to be demurrable, notwithstanding these Acts, Jones v. P^'"'^"S' Gregory, 2 D. J. S. 83. And where an action was pending as to the legal right in respect of which the plaintiff claimed an injunction, the Coui't refused to try the question before itself, Griffiths v. Tanner, 7 W, K. 322 ; Curlewis v. Garter, 12 W. R. 97 ; but an issue as to the novelty of a patent was directed, though the validity Patent cases, had been established at law against another defendant, Bovill v. Goodier, 2 L. K. Eq. 195. Id one case though, when the hill was filed, there was an equitable question How far, when to be tried, but the defendants, before decree, submitted to an injunction, the ^^^ jurisdiction Court refused to make a declaratory decree as to the plaintiff's rights. Attorney- to grant equit- General v. Boyle, 12 W. B. 368 ; and see the principles of the Court as to able relief is declaratory decrees in note (c) to 15 & 16 Tict. c. 86, s. SO, p. 208 ; Trustees gone, the Court of Birkenhead Socks v. Laird, 4 D. M. G. 732 ; Shrewsbury So. Railway w'H declare a Company v. Stowr Valley Railway Company, 2 D. M. G. 866 ; (see, however, legal right, last note as to granting damages, although the defendants had submitted before decree). So where a bill prayed either for a declaration that, according to the true construction of a deed, certain property did not pass by it, or if it did pass by it, then that the deed might be reformed, the Court, being of opinion that the property did not pass, and therefore that no reformation was requisite, refused a declaratory decree, but stated its opinion in the decree, Jenner v. Jenner, 1 L. R. Eq. 361. The Court will not allow the practice of granting issues to interfere with the Defendautmust plaintiff's right to have full discovery from the defendant, Foxwelly. Webster, answer fully 2 Dr. & Sm. 250 ; and see note (a) to Ord. XV. 1. though an issue For the form of record for trial, see Schedule N. Appendix, p. xxv. post. jg granted. A defendant will not be allowed to add a totally new issue of fact, not in pn-m c ' i any way suggested by his answer, to the issues already directed for the trial. record 266 CHANCEEY AMENDMENT ACT, 1858. 21 & 22 Vict, i;. 27, s. 3. for trial of question of fact. In order to raise snoh issue, a supplemental answer sbould be filed, Morgam, v. FwlUr, 2 L. B. Eq. 296. (e) Where a special jury is summoned, a direction to that effect must be contained in the order directing the trial, Ord. XLI. 27, post. if) See Ord. XLI. 26—52. {g) For the practice relating to new trials of issues, whether tried with or without a jury, see note (t) to sect. 6. Questions IV. Any question of fact, and any question as to the tried by jury amount of damages which, shall be so ordered to be tried to be reduced by a jury before the Court itself, shall be reduced into into writing. ... writing in such form as the Court shall direct (A), and at the trisil the jury shall be sworn to try the said question, and a true verdict to give thereon according to the evidence ; and upon every such trial the Court of Chancery shall have the same powers, jurisdiction, and authority as belong to any judge of any of the said Supe- rior Courts sitting at Nisi Prius. Qi) See Schedule N. Appendix, p. xxv. post. Damages may V. It shall also be lawful for the Court of Chancery, be assessed or jf ^j. gjjall think fit, to cause the amount of such damages queslions of _ ' _ ° facttried before in any Case to be assessed, or any question of fact arising withouta ji^yf i'^ any suit or proceeding to be tried before the Court itself without a jury («j, and to cause the evidence on the trial of that question to be taken by the oral examination of witnesses and other proofs in open court ; and any question of fact, and any question as to the amount of damages which shall be so ordered to be tried before the Court itself, shall be reduced into writing in such form as the Court shall direct; and the verdict of the judge shall be of the same effect as the verdict of a jury under this Act ; and the proceedings upon and after such trial, as to the power of the Court, the evidence, and otherwise, shall be the same as in the case of trial by jury under this Act : Provided that, in the case of trial under this section, any person may apply for a new trial, either to the judge before whom the trial was had, or to the Court of Appeal in Chancery {k). Discretion as (i) The question whether an issue ought to be tried with or without a jury to summoning is a matter entirely within the discretion of the judge, and is not a proper a jury. CHANCERY AMENDMENT ACT, 1858. 267 subject of appeal, Schneider v. Shrubsole, 12 W. R. 359 ; but see Femie v. 21 & 22 Yict. Toimg, 1 L. R. Eng. & Ir. Ap. OS; though the question, when the jury Is c. 27, s. 5. allowed, whether the trial shall be sent to a court of law or not, may be a matter of appeal, Femie t. Young, cited p. 265, ante. The Court will generally summon a jury, especially in patent cases, Eaden A jury is usu- V. Firth, 1 H. & M. 573 ; Davenport v. Goldberg, 2 H; & M. 285, unless allysummoned, both parUes consent to the judges deciding without one, or the case is not of uj,i„.g such difioulty that under the old practice no issue would have been directed. / \ *j^ navties As to the cases iu which issues were and are directed, see DanifeU, 967, 974 ; LiaoTit tn HU Taylor v. Brmrni, 10 W. R. 361 ; Grey v. Saig, 20 Beav. 219 ; Soberts v. ^,™„rwith ohp Kerdcike, 1 E. & J. 751 ; Egmont v. Darell, 1 H. & M. 563 ; and especially ^ ' as to the right of an heir at law to an issue, see Williams v. Williams, 33 °\ Beav. 306 ; OowgUl v. Rhodes, ibid. 310. W tj'e case is Therefore the Court will not direct a jury to be summoned until it has not of suftcient heard enough of the case to be satisfied of its necessity, George v. Whitmore, dimculty for an 26 Beay. 558 ; Bonsoi- v. Sradshaw, i Jur. N. S. 1011 ; Uradley v. Be- 'f "^ '"'r'' *''® vington, i Drew. 511. "^^ practice. And if the validity of the claim of one of the parties appears su6Bcieutly established, ha will not be put to the expense of a jury, Davenport v. Gold- berg, 2 H. & M. 282, 285 ; George v. Whitmore (I. c.) ; Davenport v. Phillips, 5 N. R. 485. (i) As to the ground on which a new trial will be directed, see Hughes v. New trial Jones, 1 N. R. 124; Pmn v. Jack, 15 W. II. 208; Daniell, 1013— 1028. when directed. The time within which application for a new trial should be made is fixed by Ord. XLI. 46. If the issue has been sentto a court of law (p. 265, ante), the motion for a new To be moved trial must be made before the Couit which directed the issue, see Ord. VI. 13, p. for before the 398, post ; (Booile v. Blvmdcll, 19 Ves. 494) or before the Court of Appeal, and Court which the order made on application for a new trial may be appealed from to the House iirected the of Lords when the issue was tried by the judge himself under this section, as well issue, as when it was tried by a jury under the thiid section {Curtis v. Piatt, 1 L. Appeal to R. Eng. & Ir. App. 337). HouseofLords. Where the application for a new tiial is made to the Court of Appeal, if such ^^g^ the Court Court differs with the judge who tried or directed issue, on a question of law ^f Appeal may involved therein, it will at once decide the question without sending the case down ,jeoidethe ques- again for a new trial {Morrison v. Barrow, 1 D. F. J. 633 ; Armstrong v. jj^j^ instead of A rmstrong, 3 M. & K. 45 ; Simpson y. Holliday, 1 L. R. Eng. & Ir. App. directing a new 316, 321 ; Edmunds v. Brougham, 15 W. R. 84). trial. If no application for a new trial is made, the verdict on the issues is con- -rr a- t t elusive as to all the questions of law and fact contained in such issues, /^"lot or whether the verdict was found bya jury or by the judge sitting without a jury, J°dge or jury and therefore where issues had been directed, and had been tried by the judge <'*"°"'' be re- without a jury, and he made a decree founded on his verdict, the House of onsicierea on Lords refused, on an appeal from such decree, to consider any questious which ^Pp*'> ''"'' were included in the issues {Femie v. Young, 1 L. R. Eng. & Ir. App. 63). ooly"? way ol new trial. VI. It shall also be lawful for the Court of Chancery, Damages may iu any case in which it shall think fit so to do, to cause a jury before the amount of such damages to be assessed bya jury ^"^^"^^jf^yj g. before any judge of one of the Superior Courts of lior Courts of Common Law at Nisi Prius, or at the assizes, or before ^t Nisi'prius' the sheriff of any county or city, and for that purpose to or before the issue a precept to the sheriff of such county or city as the ^unty or dfy. Court of Chancery shall think fit, or where the sheriff is interested, then to the coroner, requiring him to return, summon, and impanel a common or special jury for the 268 CHANCERY AMENDMENT ACT, 1858. 21 & 22 Tict. purpose aforesaid, in like manner as is done in cases of c. 27, s. 6. ^ . ^ ' writs of inquiry at common law, wliich are to be executed before a judge or before the sheriff; and the Court of Chancery shall have power to set aside the verdict or inquisition on such inquiry, and to direct a new inquiry in such manner and on such terms as the Court shall think fit. Where parties VII. In any case in which all parties to a suit are to maS'adm/s- Competent to make admissions (l), any party may call on sions, any any Other pai'ty by notice to admit any document, saving on'any°owieT ^'■ll j"st exceptions ; and in case of refusal or neglect to party to admit admit, the cost of proving the document shall be paid by documeuts. , ' , ^ . * „ . , , ,, ^ , the party so neglecting or reiusing, whatever the result of the cause may be, unless the Court shall certify that the refusal to admit was reasonable ; and no costs of proving any document shall be allowed unless such notice be given, except in cases where the omission to give the notice is, in the opinion of the taxing master, a saving of expense. (l) See Appendix, p. xxix. post. Assignees in bankruptcy and a married woman whose husband was a co-defen- dant were held to be competent under the section {Churchill v. CoUer, 1 N. B. 82). [By sects. 8 & 9 the previous sections of the Act are to extend to the Court of Chancery in Ireland ; and the Lord Chancellor of Ireland, with the assistance of the Master of the Rolls and the Lord Justice of Appeal in Ireland, or either of them, may make rules for procedure, and for regulating fees.] Sections 1, 2, X. Sections I., II., III., IV., V., VI., and VII. of this 7'of 'this Actto -^ct shall extend to, and all the powers therein contained extend to jjjj^y |jg exercised by, the Court of Chancery of the Court ot Chan- „ -r, , . n t • • eery of County County Palatine of Lancaster withm the jurisdiction of LaMasTer!'' the said Court ; and the Chancellor of the Duchy and County Palatine of Lancaster, with the advice and assistance of the Lords Justices of the Court of Appeal in the High Court of Chancery, or one of them, and of the Vice- Chancellor of the County Palatine, may and they are hereby required, from time to time, to make such general rules and orders as may be necessary for assimilating the procedure and practice of the Palatine Court, in respect of the matters aforesaid, to those of the High Court of Chancerj', and for regulating the fees and allowances in respect thereof. CHANCERY AMENDMENT ACT, 1858. 269 XI. The Lord Chancellor, with the advice and assist- 21 & 22 Viot. ance of the Master of the Rolls, the Lords Justices of — — '— the Court of Appeal in Chancery, and the Vice-Chan- J;°f&e!'_''^°^y cellors, or any three of them-, may, and they arc hereby ™ake rules for required, from time to time, to make general rules and fo" regulating orders for carrying the purposes of this Act into effect, ^^^^• and for regulating the times and form and mode of procedure, and generally the practice of the said Court, in respect of the matters to which this Act relates, and for regulating the fees and allowances to all officers of the said Court and solicitors thereof in respect to such matters, and so far as may be found expedient for alter- ing the course of proceeding hereinbefore prescribed in respect to the matters to which this Act relates, or any of them, and such rules and orders may from time to time be rescinded or altered by the like authority, and all such rules and orders shall take effect as General Orders of the said Court (m). (m) See Ord. XLI. 26 — 52, post, referring to the schedules printed in the Appendix, pp. xxvi. — xKxd. post. XII. All General Rules and Orders made in pursuance Eules and of the powers contained in this Act shall, immediately "aid before ^ after the making and issuing thereof, be laid before both Parliament. Houses of Parliament, if Parliament be then sitting, or if Parliament be not then sitting, within five days after the next meeting thereof : Provided always, that if either of the Houses of Parliament shall, by any resolution passed within thirty-six days after such Rules or Orders have been laid before such Houses of Parliament, resolve that the whole, or any part of such Rules or Orders, ought not to continue in force, in such case the whole, or such part thereof as shall be so included in such resolution, shall from and after such resolution cease to be binding. 270 CHANCERY REGULATION ACT, 1862. CHANCEEY REGULATION ACT, 1862. 25 & 26 VICT. Cap. 42. An Act to regulate the Procedure in the High Court of Chancery and the Court of Chancery of the County Palatine of Lancaster. [IVth July, 1862' 25 & 26 Viot. Whereas the High Court of Chancery has power in cer- — ^ — '- — tain cases to refuse or postpone the application of reme- dies within its jurisdiction, until questions of law and fact on which the title to such remedies depends have been (a) determined or ascertained in one of Her Majesty's courts of common law : And whereas it is expedient that the said power should no longer exist, and that in all such cases every question of law and of fact, cognizable in a court of common law, arising in the said Court of Chan- cery, on which the right of any party to any equitable relief or remedy depends, and whether the title to such relief or remedy be or be not incident to or dependent upon a legal right, should be determined by or before the said Court itself: And whereas the procedure of the Court of Chancery of the County Palatine of Lancaster has been assimilated to the procedure of the said High Court in the matters aforesaid ; and it is expedient that the future procedure of the said Courts should also be alike : Be. it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : {a) See, for tte practice tefore this Act, note (d), p. 264, ante. Court shall de- I. In all cases in which any relief or remedy within the ^u^tionTiIw jurisdiction of the said Courts of Chancery respectively is and fact inci- or shall be sought in any cause or- matter instituted or reHef sought, pending in either of the said Courts, and whether the title to such relief or remedy be or be not incident to or dependent upon a legal right, every question of law or CHANCERY REGULATION ACT, 1862. 271 fact, cognizable in a court of common law, on the deter- 25 & 26 Vict, mination of which the title to such relief or remedy "' ' °" ' depends, shall be determined by or before the same Court (b). (b) As to the effect of this sect, on the Court's jurisdiction as to see note (5), p. 261, ante. As to its effect on the Court's jurisdiction to "try issues of law or fact before itself with or without a jury, see note (d), p. 264, ante. II. Provided always, that whenever it shall appear to Where ques- either of such Courts that any question of fact may be MayVe'^more more conveniently tried by a jury at the Assizes, or at conveniently any sitting in London or Middlesex for the trial of issues issues may be' in the superior courts of common law, it shall be lawful ^"^«'!*«'i- for such Court, notwithstanding anything in this Act con- tained, to direct an issue to try any question of fact at the Assizes to be held in and for any county where the same may be conveniently tried, or at any such sitting for the trial of issues in London or Middlesex as afore- said ; and (subject to such general orders, if any, as may hereafter be made in relation thereto,) the practice hitherto existing in such Court in reference to the trial of issues shall prevail in reference to the trial of any issues directed under this proviso (c). (c) For cases where this proviso applies, see note (d), p. 264, ante. III. AH the provisions with reference to the trial of Provisions of questions of fact by or before the High Court of Chan- f 2* ^Ippiy eery, and by or before the Court of Chancery of the said to this Act. County Palatine, which are contained in " The Chancery Amendment Act, 1858," shall apply to the determination of questions of fact by or before the said Courts respec- tively under this Act. IV. Provided also, that in all cases in which the object Proviso in of any suit in equity shall be to recover or to defend the Xect^fmiit possession of land under a legal title, or under a title *» recover or which would have been legal but for the existence of some sion'of fand °" outstanding term, lease, or mortgage (and whether mesne ".°^*'^ * '«8al profits or damages shall or shall not also be sought in such suit), such relief only shall be given in equity as. would have been proper according to the rules and prac- 272 CHANCERY REGULATION ACT, 1862. 25 & 26 Vict, tice of the Court if this Act had not passed ; and nothing — — ' "' in this Act shall make it necessary for a Court of Equity to grant relief in any suit concerning any matter as to which a court of common law has concurrent jurisdiction, if it shall appear to the Court that such matter has been improperly brought into equity, and that the same ought to have been left to the sole determination of a court of common law (d). (d) For oases where this proviso applies, see note (i), p. 261; and note [d), p. 264, ante. Court of Chan- V. Nothing in this Act contained shall alter or affect wHh assistance the power of the judges of the High Court of Chancery to law -ud"™™ ^'■^ ^^*^ *^° assistance of a judge of any of Her Majesty's courts of common law. VI. This Act shall commence and take effect from and after the first day of November one thousand eight hun- dred and sixty-two, and may be cited or referred to as " The Chancery Kegulation Act, 1862." Commence" ment of Act. Short title. 22 ct- 23 Vict. c. 35. PEOPERTY AND TRUSTEES RELIEF AMENDMENT ACT (a). 22 & 23 VICT. Cap. 35. An Act to further Amend the Law of Property, and to relieve Trustees. [13f/i Aug. 1859. Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : (ffl) V. -C. Wood considered this Act to be thronghout retrospective (Bennett Eetrospective. v. Lytton, 2 J. & H. 155 — 158). [Sects. 1 — 10, 12, 19—22, and 24, of this Act relate merely to property law, but as they will be constantly referred to by the Chancery Practitioner, it has been thought advisable not to omit them. All the sections which in any degree bear on the subjects within the scope of this work are printed in large type. Leases. Effect of licence Sejst. 1 relates to provisoes for re-entry on Ireach of covenants in a lease, for breach of *°'i ^^ consequence of the old doctrine, that if an express licence was once covenant, given by the landlord for a breach of the covenant, the right of re-entry was PROPERTY AND TRUSTEES RELIEF AMENDMENT ACT. 273 gone for ever, enacts that " where any licence to do any act which without 22 & 23 Vict. " snch licence would create a forfeitnie, or give a right to re-enter, under a con- u. 3S, b. 1. " dition or power reserved in any lease heretofore granted, or to be hereafter - ' ' granted, shall at any time after the passing of this Act he given to any lessee Lessor giving ' ' or his assigns, every snch licence shall, unless otherwise expressed, extend only license for, " 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 " licence), and all rights under covenants and powers of forfeiture and re-entryin ' ' the lease contained shall remain in full force and virtue, and shall be available ' ' as against any subsequent breach or covenant or condition, assignment, under ' ' lease, or other matter not specifically authorised or made dispunishable by snch " licence, in the same manner as if no such licence had been given ; and the oon- " dition or right of re-entry shall beandremain in all respects as if such licence had " not been given, except in respect of the particular matterauthorised to be done." The subsequent Act, 23 k 24 Yict. c. 38, s. 6, p. 289, post, further provides that "any actual waiver shall not b^ assumed or deemed to extend to any or waiving one " instance or any breach of covenant or condition other than that to which such breach of cove- " waiver shall specially relate." nant. Sect. 2 relates to the same subject, and provides that "where re-entry on or in the case " assigning or underletting or doing any other specified act without licence, and of o«e of seve- ' ' a licence at any time after the passing of this Act shall be given to one of ral lessees, ' ' several lessees or co-owners to assign or underlet his share or interest, or to do ^^^^ ^^ j^gg " any other act prohibited to be done without licence, or shall be given to any t,gnefit of eove- " lessee or owner, or any one of several lessees or owners, to assign or underlet n^ntj ' ' part only of the property, or to do any other such act as aforesaid in respect of ' ' part only of snch property, such licence shall not operate to destroy or " extinguish the right of re-entry in case of any breach of the covenant or condi- " tion by the co-lessee or co-lessees, or owner or owners, of the other shares or " interests in the property, or by the lessee or owner of the rest of the'property ' ' (as the case may be) over or in respect of such shares or interests or remaining ' ' property, but such right of re-entry shall remain in full force over or in respect " of the shares or interest of property not the snbject of such licence." By sect. 3, " Where the reversion upon a lease is severed, and the rent or Apportionment ' ' reservation is legally apportioned, the assignee of each part of the reversion of rent not to "shall, in respect of the apportioned rent or other reservation allotted or destroy right " belonging to him, have and be entitled to the benefit of all conditions or of re-entry. " powers of reentry 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 reversion in respect of the apportioned rent or " other reservation allotted or belonging to him." See sect. 10, next page. Policies of Insurance. Sect. 4 relates to forfeitures of leases for breach of covenants to insure, and as the Court of Chancery, though accustomed to relieve against penalties and forfeitures, refused to do so in cases of omission to insure ( see note to Peachy V. Duke of Somerset in White and Tudor's Leading Cases, vol. ii.) the section (provides that "a Court of Equity shall have power (but see sect. 6, m/ra) Lesseesrelieved " to relieve against a forfeiture for breach of a covenant or condition to insure from forteiture " against loss or damage by fire, where no loss or damage by fire has happened, in case ot omis- " and the breach has, in the opinion of the Court, been committed through sion to insure. " accident or mistake, or otherwise without fraud or gross negligence, and there " is an insurance on foot at the lime of the application to the Conrt in conformity " with the covenant to insure' npon snch terms as to the Court may seem_ fit." The 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 t. Bennett, 2 Giff. 117). By sect. 5 "the Court, where relief shall be granted, shall direct a record of " such relief having been granted to be made by indorsement on the lease or " otherwise." 274 PROPERTY AND TRUSTEES RELIEF AMENDMENT ACT. 22 & 23 Vict. lAmJ by sect. 6 "the Court Bhall not have power under this Act to relieve c. 36, B. 6. " the same person more than once in respect of the same covenant or condition ; — " nor shall it have the power to grant any relief under this Act where a for- ' ' feiture under the covenant in respect of which relief is sought shall have been " already waived out of court in favour of the person seeking the relief," Sect. 7 provides, as some compensation, that the lessor shall have the benefit of an informal insurance, as follows : " 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 happening, have the same advantage " from any then subsisting insurance relating to the building covenanted to be " insured, effected by the lessee or mortgagorin 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." and purchasers Sect., 8, in order to protect purchasers of leaseholds against the consequence from lessees of omissions to insure on the part of those from whom they purchase, provides relieved from that "where, on the bond ^de purchase after the passing of this Act of a forfeiture in ' ' leasehold interest under a lease containing a covenant on the part of the lessee case of omis-- " to insure against loss or damage by fire, the purchaser is furnished with the sion to insure. ' ' written receipt of the person entitled to receive the rent, or his agent, for the " last payment of 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 purchaser or any person claiming under ' ' him shall not be subject to any liability, by way of forfeiture or damages or ' ' otherwise, in respect of any breach of the covenant committed at any time " before the completion of the purchase, of wMch the pwchaser 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. And by sect. 9 " the preceding provisions shall be applicable to leases for a " term of years absolute, or determinable on a life or lives or otherwise, and also " to a lease for the life of the lessee or the life or lives of any other person or Apportionment ^he 10th sect, relates to renlcha/rges, which were discouraged by the of rentcharge common law as contrary to feudal policy, and hence arose the doctrine that a not to extin- person having a rentcharge by releasing all his right in part of the land guish rent- charged extinguished the whole rent because it issued out of every part and charge. "ould not be apportioned, see Shelford's R. P. statutes, 686. To meet this inconvenience it is provided : " The release from a rentcharge of part of the ' ' hereditaments charged therewith shall not extinguish the whole rentcharge, ' ' but shall operate only to bar the right to recover any part of the rentcharge " out of the hereditaments released, without prejudice nevertheless to the rights " of all persons interested in the hereditaments remaining unreleased, and " not concurring in or confirming the release."] Judgvients. Release of part XI. The release from a iudement of part of any here- of land charged ,.^ , , , , . , , ,, not to affect ditaments charged therewith shall not affect "the validity judgment. of ^j^g judgment as to the hereditaments remaining unre- leased, or as to any other property not specifically re- leased, without prejudice nevertheless to the rights of all persons interested in the hereditaments or property remain- ing unreleased, and not concurring in or confirming the release (b). {i) See sect. 10 supra, and see generally as to judgments, note (a), p. 3, ante. PROPERTY ANB TRUSTEES RELIEF AMENDMENT ACT. 276 [Sects. 12 & 13 relate to appointments under powers ; and as, by common 22 & 23 Vict, law, if tlie formalities required by the instrument creating tlie power were not o. 35 as. 12 13. strictly complied with, the appointment was void, while Courts of Equity went to the other extreme, and aided defective execution of powers, in favour of Mode of exe- purchasers, &c., even where the defect was in matter of substance, c. g., the cuting powers want of a consent required by an instrument, this section provides that " a deed of appointment " hereafter executed in the presence of and attested by two or more witnesses in by deed ; " 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 testa- " mentary, notwithstanding it shall have been expressly required that a deed or " instrument in writing made in exercise of such power should be executed or ' ' attested with some additional or other form of execution or attestation or ' ' solemnity : Provided always, that this provision shall not opiate to defeat any " direction in the instrument creating the power that the consent of any parti- ' ' cular person shall be necessary to a valid execution, or that any act shall be ' ' performed in order to give validity to any appointment having no relation to ' ' the mode of executing and att^ting the instrument, and nothing herein con- ' ' tained shall prevent the donee of a power from executing it conformably to the ' ' power by writing or otherwise 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 note to Tollett v. Tollett in 1 White and Tudor's Leading By 1 Vict. c. 26, a. 10, an appointment by will is to be executed like other by will, wills, to be valid, though solemnities are not observed.] XIII. Where under a power of sale a hond fide sale Sale under shall be made of an estate with the timber thereon, or avdd'ed byrea- any other articles attached thereto, and the tenant for son of mistaken . , payment to life or any other party to the transaction shall by mistake tenant for life. be allowed to receive for his own benefit a portion of the purchase-money as the value of the timber or other articles (c), it shall be lawful for the Court of Chancery, upon any bill or claim or application in a summary way as the case m,ay require or permit (d), 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 monies and interest under the direction of the Court upon such parties as in the opinion of the Court shall be entitled thereto, the said sale ought to be established ; and upon such payment and settlement being made accordingly the Court may declare that the said sale is valid, and thereupon the legal estate shall vest and go in like manner as if the power had been duly executed, and the costs of the said application as between solicitor and client shall be paid by the purchaser or the claimant under him. T 2 in the will. 276 PBOPERTT AND TRUSTEES BELIEF AMENDMENT ACT. 22 & 23 Vict. (c) This section meets the particular case of OockereU v. Cholmeley, 1 E. & c. 35 s. 13." M. 418, where an estate was devised to a trustee and his heirs, to the nss of A. — '— for life, without impeachment over, and the trustee under a power of sale, with A.'s consent, sold the estate apart from the timber, which was taken at a valuation, and the power was held to be hoth at law and in equity badly executed. (d) Compare the provisions of the Act authorising sales of land apart from the minerals (anie, p. 259). Powers [of Trustees.] Devisee in trust XIV. Where by any will which shall come into moneyTy sale, Operation after the passing of this Act the testator shall notwithstand- ]^^yQ charqed his real estate or any specific portion ing want of " /. 7 ■ t i -ii iV, express power thereof with the payments of his debts, or witli the pay- ment of any legacy or other specific sum of money, and shall have devised the estate so charged to any trustee or trustees for the whole of his estate or interest therein, and shall not have made any express provision for the raising of such debt, legacy, or sum of money out of such estate (e), it shall be lawful for the said devisee or devi- sees in trust, notwithstanding any trusts actually declared by the testator, to raise such debts, legacy, or money as aforesaid ly 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. Effect of charge («) Under the old law, in eases where a testator, instead of devising property of debts. to trustees with an express power of sale, created a charge of debts only, it was doubtful whether the devisees in trust could give valid receipts to a purchaser. See notes to Elliott v. Merriman in White and Tndor's Leading Cases, vol. i., and Lewin, p. 340, (t seq. ; but with regard to wills coming into operation after 13th Aiiguat, 1859, this point is now setat rest by this and the following sections. Powers given XV. The powers conferred by the last section shall extended to°" extend to all and every person or persons in whom the survivors, de- estate devised shall for the time being be vested by TJSG63 &C ' ■ survivorship, descent, or devise, or to any person or per- sons who may be appointed under any power in the will, or by the Court of Chancery, to succeed to the PROPERTY AND TRUSTEES RELIEF AMENDMENT ACT. 277 trusteeship vested in such devisee or devisees in trust as 22 & 23 Vict, aforesaid (/). "■ ^^' °- ^^- (/) See note (r), p. 101, ante. XVI. If any testator who shall have created such a Executors to charge as is described in the fourteenth section shall not ^V? P°'"=' °^ ,,.,,, . . , raising money have devised the hereditaments charged as aforesaid in &o., where such terms as that his whole estate and interest therein suffioient"de- shall become vested in any trustee or trustees, the fise. executor or executors (g) for the time being named in such will (if any) shall have the same or the like power of raising the said mohieg as is hereinbefore vested in the devisee or devisees in trust of the said hereditaments, and such power shall from time to time devolve to and become vested in the person or persons (if any) in whom the executorship shall for the time being be vested ; but any sale or mortgage under this Act shall operate only on the estate and interest, whether legal or equitable, of the testator, and shall not render it unnecessary to get in any outstanding subsisting legal estate. (g) This power is not given to the administrators, see Lewin, 347. XVII. Purchasers or mortgagees shall not be bound to Purchasers, io. inquire whether the powers conferred by sections four- f^* ^°g °g J° teen, fifteen, and sixteen of this Act, or either of them, powers, shall have been duly and correctly exercised by the per- son or persons acting in virtue thereof. XVIII. The provisions contained in sections fourteen, Sections 11, 15, fifteen, and sixteen shall not in any way prejudice or *°^J^^°°*j^° affect any sale or mortgage already made or hereafter to sales, &c., nor be made, under or in pursuance of any will coming into devisees iu fee operation before the passing of this Act, but the validity or in tail. of any such sale or mortgage shall be ascertained and determined in all respects as if this Act had not passed (h) ; and the said several sections shall not extend to a devise to any person or persons in fee or in tail (»'), or for the testator's whole estate and interest charged with debts or legacies, nor shall they affect the power of any such devisee or devisees to sell or mortgage as he or they may by law now do. 278 PROPERTY AND TRUSTEES RELIEF AMENDMENT ACT. 22 & 23 Vict. (h) See Lewin, 340. u. 35, s. 18. (i) These words are declaratory of the former state of the law, see Lewin, 343, 344. [Sections 19 & 20 supply a deficiency in the law of inheritance, 3 & 4 Will. 4, 0. 106, and will be found in Shelford's R. P. Statutes, 455 ; Sugden's R. P. Statutes, 259. Assignment to Section 21 relates to the assignment of personalty, and provides that "any self and others, "person shall have power to assign personal property, now by law assignable, " including chattels real, directly to himself and another person or other per- " sons or corporation, by the like means as he might assign the same to another." Registration of Section 22 enacts that after December 31, 1859, the provision as to registry judgments of judgments contained in 2 & 3 Vict. o. 11, and 18 & 19 Tict. u. 15 (see Shelford's R. P. Statutes, 590 — 3), shall apply to Crown debts. The provisions of judgment Acts as to registration (except registration of execution), are less important, now that judgments are not to affect lands until they are taken in execution, see note (a), p. 6, ante, and the Judgment Act, 1864, p. 355, posfl. [Trustees' Receipts.l Not to be bound XXIII. The hond fide payment to and the receipt of to see to the , i application of any person to whom any purchase or mortgage money mra'e'*^^' ^^i^ell be payable upon any express or implied trust shall effectually discharge the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary shall be ex- pressly declared by the instrument creating the trust or security (&). Trustees' (i) Th is section seems only to apply to instruments executed since 1 3th August, receipts. 1869 ; see Lewin, 240. Lord Cranworth's Act, ss. 29, 34, post, pp. 304, S06, contains a more general power for trustees to give sufficient discharges, but only applies to instruments executed since August 28, 1860. Concealment of [Section 24 provides that any vendor or mortgagor concealing any settlement incumbrances a deed, will, or other instrument material to the title, or any incumbrance, from misdemeanor, the purchaser [or mortgagee'], shall be guilty of a misdemeanor, and punishable accordingly. The insertion of the words [or mortgagee], which were accidentally omitted, was provided for by 23 & 24 Yict. o. 38, s. 8, post, p. 289.] Interpretation XXV. In the Construction of the previous provisions of terms. ^^ ^j^j^ ^^^ ^j^^ ^^^^ „ y^^^ „ ^j^^^jj^ ^^ ^^^^^ ^^ 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- PROPERTY AND TRUSTEES RELIEF AMENDMENT ACT. 279 conveyed, re-assigned, or released on satisfaction of the 22 & 23 Vict. debt; and "■ ^^' °- ^^- The term "mortgagor" shall be taken to include every person by whom any such conveyance, assignment, pledge, or charge as aforesaid shall be made ; and The term " mortgagee " shall be taken to include every person to whom or in whose favour any such conveyance, assignment, pledge, or charge as aforesaid is made or transferred {l\ : The term "judgment" shall be taken to include registered decrees, orders of Courts of Equity and Bank- ruptcy, and other orders having the operation of judg- ments (/). (Q See 27 & 28 Vict. c. 112, s. 2, post, for the interpretation of Bimilar terms in tbat Act. Trustees and Executors. XXVI. No trustee, executor, or administrator making Trustee, &o., any payment or doing any act hond fide under or in pur- ment nnder suance of any power of attorney shall be liable for the "^"^^^ °^ ^**°'^" "^ , r^ •' ney not to be monies so paid or the act so done, by reason that the liable by reason person who gave the power of attorney was dead at the partTgiidng time of such payment or act, or had done some act to such power, avoid the power, provided that the fact of the death, or of the doing of such act as last aforesaid, at the time of such payment or act bond fide done as aforesaid by such trustee, executor, or administrator, was not known to him : Pro- vided always, that nothing herein contained shall in any manner affect or prejudice the right of any person entitled to the money against the person to whom such payment shall have been made, but that such person so entitled shall have the same remedy against such person to whom such payment shall be made as he would have had against the trustee, executor, or administrator if the money had not been paid away under such power of attorney (m), . (m) See Lewin, 285. This and the remaining sections of the Act provide for the protection of Protection of trustees, executors, and administrators, acting bond fde in the distribution trustees acting of trust funds. See note (t), p. 126, ante. boni fide. 280 PROPERTY AND TRUSTEES RELIEF AMENDMENT ACT. 22 & 23 Viot. XXVII. Where an executor or administrator, liable as c 35 a 27 • T • — — '—i — '— such to the rents, covenants, or agreements contained in rf executor of ^^7 ^^^^e or agreement for a lease granted or assigned to administrator the testator Or intestate whose estate is being adminis- rents^coTe" tered, shall have satisfied all such liabilities under the nants, or agree- g^id lease or agreement for a lease as may have accrued mcnts. ° . , , due and been claimed up to the time of the assignment hereafter mentioned, and shall have set apart a sufficient fund to answer any future claim that may be made in respect of any fixed or 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 purchaser thereof (w), he shall be at liberty to distribute the resi- duary personal estate of the deceased to and amongst the parties entitled thereto respectively, without appropriating any part, or any further part (as the case may be), of the personal estate of the deceased to meet any future liability under the said lease or agreement for a lease ; and the executor or administrator so distributing the residuary estate shall not, after having assigned the said lease or agreement for a lease, and having, where necessary, set apart such sufficient fund as aforesaid, be personally liable in respect of any subsequent claim under the said lease or agreement for a lease ; but nothing herein con- tained shall prejudice the right of the lessor or those claiming under him to foUow the assets of the deceased into the hands of the person or persons to or amongst whom the said assets may have been distributed. Seotion retro- («) This section has been held to be retrospective, Smith v. Smith, 1 Dr. & spootive. Sm. 384 ; Se Green, 2 D. F. J. 121 ; reversing Dodson v. SammeU, 8 W. E. 252, ou this point ; and see Jteillt/Y. Reilly, 34 Beav. 406 ; Bennetts. Lytton, 2 J. &H. 155, 158. Executor must The case of a leasehold assigned to a residaary legatee is not within this assign the section, such legatee not being a purchaser (Dodson v. SammeU, 9 W. R. leasehold. 887). Indemnity of Executors acting land fide, under the order of the Court of Chancery, are executor under protected from liability, and have no need to retain any portion of the assets to lease. indemnify them against possible liability in respect of the testator's covenants, Deanv. Allen, 20 Beav. 1; England r. Lord Tredegar, 1 L. R. Eq. 344; ■Williams on Executors, 1244 — 8. As to setting apart a fund in an administration suit to meet claims in re- PROPERTY AND TRUSTEES RELIEF AMENDMENT ACT. 281 spect of leaaehold assigned, and payment out of sacli fund to residuary legatees, 22 & 23 Vict, ■with the consent of the lessor, see Bunting v. Marriott, 9 W. R. 264 ; Seton, o. 35, s. 27. 196. — XXVIIL In like manner, where an executor or adminis- As to liability trator liable as such to the rents, covenants, or agreements, &e!,^in"respeot contained in any conveyance or chief rent or rentcharge pf rents, &c., (whether any such rent be by limitation of use, grant, or on rentcharge. reservation), or agreement for such conveyance, granted or assigned to or made and entered into with the testator or intestate whose estate is being administered, shall have satisfied all such liabilities under the said conveyance, or agreement for a conveyance, as may have accrued due and been claimed up to the time of the conveyance here- after mentioned, and shall have set apart a suf&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 conveyed, or agreed to be conveyed, although the period for laying out the same may not have arrived, and shall have conveyed such property, or assigned the said agreement for such 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 personal estate of the deceased to meet any future liability under the said con- veyance or agreement for a conveyance ; and the executor or administrator so distributing the residuary estate shall not, after having made or executed such conveyance or assignment, and having, where necessary, set apart such sufficient fund as aforesaid, be personally liable in respect of any subsequent claim under the said conveyance, or agreement for conveyance ; but nothing herein contained shall prejudice 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. XXIX. Where an executor or administrator shall have As to distribu- given such or the like notices as in the opinion of the *s°etf„f''tegta- Court in which such executor or administrator is sought tor or intestate 282 PROPERTY AND TRUSTEES RELIEF AMENDMENT ACT. 22 & 23 Viot. c. 35, e. 29. after notice given by exe- cutor or admi- nistrator. to be charged would have been given by the Court of Chancery in an administration suit, for creditors and others to send in to the executor or administrator their claims against the estate of the testator or intestate, such executor or administrator shall, at the expiration of the time named in the said notices or the last of the said notices for sending in such claims (o), be at liberty to dis- tribute the assets of the testator or intestate, or any part thereof, amongst the parties entitled thereto, having re- gard to the claims of which such executor or administrator has then notice, and shall not be liable for the assets or any part thereof so distributed to any person of whose claim such executor or administrator shall not have had notice at the time of distribution of the said assets or a part thereof, as the case may be ; but nothing in the present Act contained shall prejudice the right of any creditor or claimant to follow the assets or any part thereof into the hands of the person or persons who may have received the same respectively. (o) As to this notice, see Ord. XXXV. 35 — 37, post; and see as to the remedies of executors in equity, note (t), p. 126, ante. Executors acting under the provisions of this section, whether they have actually paid legacies over, or only appropriated them, have complete protection against future claims, Clegg v. Rowland, 3 L. K. Eq. 368. Trustee exe- XXX. Any trustee, executor, or administrator shall be cutor, &c., may at Hberty, without the institution of a suit, to apply by tion to judge of petition to any judge of the High Court of Chancery, or Chancery for |jy summons («) upon a written stateinent to any such iudge opinion, advice, •' . . . j j a &c., in manage- at chambers, for the opinion, advice, or direction of such "ust'property. i^^^^ °^ ^^Y question {q) respecting the management or administration of the trust property or the assets of any testator or intestate, such application to be served upon or the hearing thereof to be attended by all persons inter- ested in such application, or such of them as the said judge shall think expedient ; and the trustee, executor, or ad- ministrator acting Upon the opinion, advice, or direction given by the said judge shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee, executor, or administrator in the subject matter of the said application : Provided nevertheless, Indemnity of executors issuing notices to creditors. PROPERTY AND TRUSTKES RELIEF AMENDMENT ACT. 283 that this Act shall not extend to indemnify any trustee, 22 & 23 Viot. executor, or administrator in respect of 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 misrepresentation in obtaining such opinion, advice, or direction and the costs (r) of such application as afore- said shall be in the discretion of the judge to whom the said application shall be made. {p ) The application under this section should he hy petition, not summons Application (Re Dennis, 5 Jur. N. S. 1388. For a form of petition, see Be Miles, 27 Beav. how made. 579 ; Ee Pitt's Will, 27 Beav. 576. It must be signed hy counsel, 23 & 24 Vict. c. 38, s. 9, p. 289, post. But the Court made an order under the section on the petition of a cestiti que trust, Se Ward, H W. R. 96 ; and of one trustee without his co-trnstee's concurrence, Re Miiggeridge, Johns, 625. See as to the form, and title, and service of petitions under this section, Ord. 20th March, 1860, post. It was originally held that the direction of the judge as to the persons to he served should be obtained in the first instance, Re Mug- Service. geridge, I. c, and see note (c), p. 244, ante, and Re Simson, 1 J. & H. 89, and sect. 42 of the Transfer of Land Act, p. 323, post. But this practice , has since been disapproved of, Re Green, 8 W. R. 403. It is not, it seems, necessary to serve all persons interested (Re Muggeridge, I. c), unless there is a deficiency of assets (Re Mochett, Johns. 628). (5) "As the Act does not give any right of appeal, it was not intended to What ques- decide nice questions of law, its object being to procure for trustees at a small tions enter- expense the assistance of the Court upon points of minor importance arising in tained on peti- the management of the trust," Lewin, 443 ; Be Muggeridge, (1. c.) ; Be tion. Mockett (1. c). In Be , 8 W. R. 333; li. 0. sub now,. Be SpHler, 2 L. T. N. S. 71, a. petition was presented to the Lords Justices under this section by the trustees of certain marriage settlements, which settled the Questions of income of trust funds on the wife for her separate use, asking what they were management, to do with the income of the fund, the wife having become a lunatic, and being supported hy her husband in a private lunatic asylum. The following order was made : — "The Court, declaring their opinion that the whole of the income of the trust funds should henceforth be paid to the husband until the further order of the Court, he undertaking to apply the same for the main- tenance and support of his wife, and for the support of the children of the marriage, order the same accordingly ; the costs of and incidental to this application to be defrayed out of the income of the trust property." See further, for form of order. Be Jacob, 9 W. R. 474. So the Court will give advice as to investments, Be Lorens, 1 Dr. & Sm. 401 ; or payment of debts, Re Sox, 1 H. & M. 562. But where trustees were authorised hy the settlement to lay out trust funds Not (1) ques- iu purchasing real estate, which was accordingly purchased, and a petition was tions of detail presented to ohtain a direction of the Court as to the employment of a further where affidavits portion of the trust funds in the permanent improvement of the purchased are required ; estates, the Court having no means of ascertaining the amount required or directing its application, refused to make an order on petition (Re Sarrington, 1 J. & H. 142 ; comp. Be Mochett (I. c). In» another case (Be Simson, nor (2) ques- 1 J. & H. 89 ; where the question was whether a trustee would be justified in tions of diffi- iuvesting in East India stock or in railway debentures, or on mortgage of culty ; freeholds, copyholds, or leaseholds, V.-C. Wood answered the inquiry by simply stating that the trustees would be justified in investing in freehold securities in England or Wales, and gave no answer to the rest of the question ; see Marsh T. Attomey-Oenerai, 2 J. & H. 61 ; where the Court thought the question too difficult to decide on petition, and directed a bill to be filed, see p. 70, crnte. 284 PROPERTY AND TRt^STEES RELIEF AMENDMENT ACT. 22 & 23 Vict. c. 35, s. 30. nor (3) ques- tions of con- struction ; nor (4) hypo- thetical cases. No appeal. Costs. Every trust instrument to be deemed to contain clauses for the indemnity and re-imburse- ment of the trustees. So where questions of construction arise, a suit must be instituted, or the advice of the Court taken under the Trustee Relief Act; see Se Evans, 30 Beav. ■ 232, Se Muggeridge, 1. c. ; Bi Lorenz, 1 Dr. & Sm. 401 ; where V. -C. Kin- dersley refused, on a petition under this Act, to advise a sole trustee of a- marriage settlement as to his discretionary power to make advances to the husband at the written request of the wife, and Re Hooper, 29 Beav. 667 ; where the Master of the Rolls stated that the object of the Act was to enable trustees to obtain the opinion of the Court on matters of discretion vested in them, and not to determine questions of construction. These cases seem to overrule cases where questions as to the validity {He Michel, 28 Beav. 39) or construction {Se Green, 8 W. R. 403 ; Se Davies, 9 W. R. 134; Re Elmore, 6 Jur. N. S. 1325 ; Re Jacob, 29 Beav. 402), of a bequest have been deter- mined upon petition under the section, audi Re Pitt's Will, 27 Beav. S76, where an opinion was given turning to a certain extent upon extrinsic evidence admitted with a view to the construction of a will. See, however. Re Peyton's Settlement, 10 W. R. 515, where the Master of the Rolls in a petition under this Act decided that an absolute power of sale given to trustees, authorised them on a sale to fix a reserved bidding. The Court will not pronounce an opinion on an hypothetical case ; and, there- fore, refused to give any advice as to the incidence of future calls which might be made on account of shares bequeathed. Re Box, 1 H. & M. 552 ; 11 W. R. 945. The opinion of the Court is subject to no appeal, and does not prevent a bill being filed (Re Mockett's Will, I.e.). (r) As a general rule the costs of an application under this section will be ordered to come out of the corpus of the trust property, Re M' Veagh, Seton, 773 ; Re Elwes, ibid, 774. But where the question arose as to the application of income, the costs came cut of the income. Anon. 8 W. R. 333. XXXI. Every deed, will, or other instrument creating a trust either expressly or hy 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 ti-ustee for the time being of the said deed, will, or other instru- ment shall be respectively chargeable only for such monies, stocks, funds, and securities as they shall respec- tively actually receive notwithstanding their respectively signing any receipt for the sake of conformity, and shall be answerable and accountable only for their own acts, receipts, neglects, or defaults, and not for those of each other, nor for any banker, broker, or other person with whom any trust monies or securities may be deposited, nor for the insufficiency or deficiency of any stocks, funds, or securities, nor for any other loss, unless the same shall happen through their own wilful default respectively; and also that it shall be lawful for the trustees or trustee for the time being of the said deed, will, or other instru- ment to reimburse themselves or himself, or pay or dis- PEOPERTY AND TRUSTEES RELIEF AMENDMENT ACT. 285 charge out of the trust premises all expenses incurred in 22 & 23 Vict, or about the execution of the trusts or powers of the said "• ^^' ^- ^^- deed, will, or other instrument. XXXII. (s) When a trustee, executor, or administrator As to invest- shall not, by some instruments creating his trust, be "5°*^ ^^ *''"'" expressly forbidden to invest any trust fund on real securities, in any part of the United Kingdom, or on the stock of the Bank of England or Ireland, or on East India Stock (i), it shall be lawful for such trustee, executor, or administrator to invest such trust fund on such securities or stock ; and he shall not be liable on that account as for a breach of trust, provided that such investment shall in other respects be reasonable and proper. (s) This section is made retrospective by Lord St. Leonards' late Act, 23 Retrospective. & 24 Vict. c. 38, s. 12 (p. 291), post ; but in Hume v. Richardsm, 10 W. R. 528, where a question aros3 as to the duty of trustees to convert East India Stock, it was held that as the later Act gare the trustees a discretion to keep the trust fund invested in perishable securities, the tenant for life was entitled to the whole income accruing after the passing of that Act, but only to so much of the prior income as would have been produced by the equivalent in consols of the investments retained, the 12th clause of the Act (rendering this section retrospective), being considered to mean, not that rights originally accrued were to be altered, but that this clause was to be thrown back on instruments, on which it did not previously operate. This section does not apply to a case where the trust fund is already invested Does not apply in bank annuities, and there is no power in the instrument to vary securities, if no power in Ee Warde, 2 J. & H. 191. instrument. Compare 23 & 24 Vict c. 38, a. 11, p. 291, post, which empowers trustees 23 & 24 Vict, to invest trust funds in the stocks, &c., in which cash uuder the control of the c. 38. ss. 10, Court may be vested ; as to which see notes {j) and (h) on p. 290. 11, By sect. 2 of the late Act, 30 & 31 Vict. c. 132 (20th Aug. 18fi7), it is 30 ^ 31 yj^j^ enacted that "it shall be lawful for every trustee, executor, or administrator ^ J32 to invest any trust fund in his possession, or under his control, in any securities m . *. „ «, the interest of which is or shall be guaranteed by parliament to the same extent . . . ' ^ and in the same manner (i. e., when not forbidden, &c., see the section in the „.„„_:*;„- text,) as he may invest such trust fund in such securities as aforesaid." . , (0 The late Act, 30 & 31 Vict. c. 132 (20th Aug. 1867), after reciting the |" 'atliament section in the text, and that doubts had arisen as to the legal effect and ^ ^ significance of the words East India stock, (as to'which see Lewin, 262), enacts Application of the words ' East India Stock ' in the said Act (22 & 23 Vict. c. 35) shall include term '' East__ and express as well the East India Stock which existed previously to the 13tU India Stock. August, 1859, when the said Act received the assent of her Majesty, as East India Stock charged on the revenues of India, and created under and by virtue of any Act or Acts of Parliament which received her Majesty's assent on or after the 13th August, 1869 ; and it shall be lawful for every trustee, executor, or administrator to invest any trust fund in his possession or under his control in the stock created by the last-mentioned Act or Acts to the same extent, and for the same purposes and objects, as he can now invest such trust fund in the East India Stock which existed previously to the 13th August, 1859." 286 LAW OF PROPEETY FURTHER AMENDMENT ACT. 23 & 24 Viet, c. 38. Writs of exe- cution of judg- ments to be registered. LAW OF PKOPERTY FUETHER AMENDMENT ACT. 23 & 24 VICT. Cap. 38. An Act to further amend the Law of Property. [33rd July, 1860. Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : I. Whereas it is desii'able to place freehold, copyhold, and customary estates on the same footing with leasehold estates («), in respect of judgments, statutes, and recog- nizances as against purchasers and mortgagees, and also to enable purchasers and mortgagees of estates, whether freehold, copyhold, or customary or leasehold, to ascertain when execution has issued on any judgment, statute, or recognizance, and to protect them against delay in the execution of the writ : Be it therefore enacted, that no judgment, statute, or recognizance to be entered up after the passing of this Act (&) shall affect any land (of -whatever tenure) as to a bond fide purchaser for valuable considera- tion, or a mortgagee (c) (whether such purchaser or mort- gagee have notice or not of any such judgment, statute, or recognizance), unless a writ or other due process of execution of such judgment, statute, or recognizance shall have been issued and registered as hereinafter is men- tioned before the execution of the conveyance or mortgage to him, and the payment of the purchase or mortgstge money by him: Provided always, that no judgment, statute, or recognizance to be entered up after the passing of this Act, nor any writ of execution or other process thereon, shall affect any land of whatever tenure as to a hond fide purchaser or mortgagee, although execution or other process shall have issued thereon, and have been duly registered, unless such execution or other process shall be executed and put in force within three calendar months from the time when it was registered. LAW OF PROPERTY FURTHER AMENDMENT ACT. 287 (a) The latest Judgment Act (27 & 28 Yict. o. 112, post) assimilatea lands 23 & 2i Viot. subject to judgments eatered up since 29 July, 1864, to purely personal o. 38, s. 1. estate, see note (a) to p. 3, ante ; and no purchaser, &c. is bound unless the ; land is actually taken in execution. The provisions of this section are therefore Judgments superseded, except such as relate to the registration of execution, and they are since July, amended by the late Act, see note to next section. 1864, must be (6) Judgments registered before the date of this Act (23 July, 1860) affect po* in execii- lands according to the old law, though no writ of execution has been issued, *'on. see Evans v. Williams, 2 Dr. & Sm. 324. Before July, (c) The provisions of the latest Act are general, but as to judgments regis- 1861,' old law tared before July 29, 1864, the debtor himself and volunteers claiming under applies. him are bound by judgments according to the old law, see last note. Effect of notice. II. The registry hereinbefore required of any writ of Mode of regis- execution, or other due process on any judgment, statute, ^""^" or recognizance, in order to bind a purchaser or mortgagee, shall be made by a memorandum or minute referring to the judgment, statute, or recognizance already registered, so as to connect the registry of the writ of execution or other process therewith ; such memorandum or minute to be left with the senior master of the Court of Common Pleas at Westminster, who shall forthwith enter the par- ticulars in a book in alphabetical order by the name of the person in whose behalf the judgment, statute, or recognizance upon which the writ of execution or other process issued was registered {d), and also the year and the day of the month when every such memorandum or minute is left with him, and such officer shall be entitled for any such registry to the sum of five shillings ; and all persons shall be at liberty to search the same book, in addition to all the other books in the same office, on pay- ment of the sum of one shilling only : And all the provi- sions in this Act in regard to writs of execution or other process and the registry thereof, or otherwise relating thereto, shall extend, mutatis mutandis, to writs of execu- tion, or other due process issuing on judgments of the several Courts of Common Pleas of the County Palatine of Lancaster, and of Pleas of the County Palatine of Durham: but none of these provisions are to extend to Ireland. (d) The registry of the writ of execution is now to be made in the name of Double search the debtor by 27 & 28 Vict. c. 112, s. Z,post, p. 338. necessary. III. And whereas by an Act passed in the fourth and Provision for fifth years of their late Majesties King William and gg-rg'^Jj^gj.g. 288 LAW OF PEOPEETT FUETHEE AMENDMENT ACT. 23 & 24 Vict. V. 38, ij. 3. cutoTs against unregistered judgments. Queen Mary, intituled, " An Act for the better Discovery . of Judgments in the Courts of King's Bench, Common Pleas, and the Exchequer in Westminster," it was enacted, that no judgment not docketed and entered in books in the manner thereby provided should affect any lands or tenements as to pui'chasers or mortgagees, or have any preference against heirs, executors, or administrators in their administration of their ancestors', testators', or intes- tates' estates : And whereas by several later Acts judg- ments are required to be registered with more particulars than were required by the said recited Act ; and it is thereby enacted that judgments not so registered shall not affect any lands, tenements, or hereditaments as to purchasers, mortgagees, or creditors unless and until the same shall be registered in manner thereby required; and in obedience to a direction in one of the same Acts contained the dockets existing under the said first-recited Act have been finally closed : And whereas the said several later Acts do not expressly enact that judgments not docketed as thereby required shall not have any pre- ference against heirs, executors, or administrators in their administration of their ancestors', testators,' or intestates' estates, in consequence whereof such heirs, executors, or administrators have been held to have lost the protection which they enjoyed under the said first-recited Act, and it is expedient that the same should be restored : Be it therefore declared and enacted, that no judgment which has not already been, or which shall not hereafter be entered or docketed under the several Acts now in force, and which passed subsequently to the said Act of the fourth and fifth years of King William and Queen M&vy, so as to bind lands, tenements, or hereditaments as against purchasers, mortgagees, or creditors, shall ham any •pre- ference against heirs, executors, or administrators in their administration of their ancestors', testators', or intes- tates' estates (e). Effect of notice. W ^^ Fuller v. liedmm, 26 Beav. 600; Williams on Executors, 837. If executors hare notice of judgments, such judgments obtain priority, whether registered or not {Jennings T. Eigby, 33 Bear. 198). LAW OF PEOPERTY FURTHER AMENDMENT ACT. 289 [Sect. 4 provided that judgments, in order to have preference in admiuistra- 23 & 24 Vict, tion, must be re-registered every five years according to tlie Acts of 1 & 2 Vict., c. 38, s. 4. 2 & 3 Vict., and 18 & 19 Vict. Sect. 5 defined judgments as they are now defined by the latest judgment Act, 27 & 28 Vict. e. 112, s. 2, p. 356, post. Sect. 6 amended the law of waiver as between lessor and lessee, see p. 273, ante. Sect. 7 rdates to the law of uses, and the doctrine of scintilla juris, as Doctrine of to which, see Sandars on Uses, pp. 112, 162. This doctrine caused iucou- uses, venieuce, because the disturbance of the feoffees to uses might be held to bar future uses, and this section, therefore, provides that "where by any instrn- ' ' ment any hereditaments have been or shall be limited to uses, all uses there- " under, whether expressed or implied by law, and whether immediate or future, " or contingent or executory, or to be declared under any power therein con» ' ' tained, shall take effect when and as they arise iy force of and hy relation to the "estate and seisin originally vested inthe person seised to the uses, and the con- " tinned existence in him or elsewhere of any seisin to uses or scintilla juris " shall not be deemed necessary for the support of or to give effect to future or *' contingent or executory uses, nor shall any such seisin' to uses or scintilla "juris be deemed to be suspended, or to remain or to subsist in him or else- " where." Sect. 8 corrected a clerical error in sect. 24 of 22 & 23 Vict. e. 35, p. 278, ante"]. IX. Where any trustee, executor, or administrator Form of apply- shall apply for the opinion, advice, or direction of a judge j,°^„^"'e^'^^g®^ of the Court of Chancery under the thirtieth section of the under section 30 of 22 & 23 Act of the twenty-second and twenty-third of her present y^^_ ^ gg^ Majesty, chapter thirty-five, the petition or statement shall be signed hy counsel, and the judge by whom it is to be answered may require the petitioner or applicant to attend him by counsel either in chambers or in court where he deems it necessary to have the assistance of counsel {i). (i) See ante, pp. 282, 283. X. It shall be lawful for the Lord Chancellor, Lord ^^^^^^Ji"„^°'^'^ Keeper, or Lords Commissioners for the custody of the &c., of Eng- Great Seal of England, with the advice and assistance of }^°^ ^°^^^*; the Master of the Eolls, the Lords Justices of the Court general orders of Appeal in Chancery, and the Vice-Chancellors of the ^ent'irfcLh said court, or any three of them, and for the Lord Chan- ""fjf*^^^''"'^- cellor of Ireland, with the advice and assistance of the court. Lords Justices of Appeal and the Master of the Eolls in Ireland, to make such general orders from time to time as to the investment of cash under the control of the Court (i), either in the Three per Cent. Consolidated or Eeduced or New Bank Annuities, or in such other stocks. 290 LAW OF PROPERTY FURTHER AMENDMENT ACT. 23 & 24 Viot. funds, or securities as he or they shall, with such advice °' ^^' ^' ^°' or assistance, see fit ; and it shall be lawful for the Lord Chancellor, Lord Keeper, or Lords Commissioners in England, and for the Lord Chancellor in Ireland, to make such orders as he or they shall deem proper for the con- version of any Three per Cent. Bank Annuities now standing or which may hereafter stand in the name of the Accountant- General of the said Court of Chancery, in trust in any cause or matter, into any such other stocks, funds, or securities upon which, hy any such general order as aforesaid, cash under the control of the Court may be invested ; all orders for such conversion of Bank Annuities into other funds or securities to be made upon petition to be presented by any of the parties interested in a summary way, and such parties shall be served with notice thereof as the Court shall direct (k). Cash under (J) ^^ ^^ Briscoe, 4 N. E. 311, L. J. Turner doubted whether money paid control of in under the Lands Clauses Act in respect of a lunatic's estate could he Oowrt, ordered to he invested under this section, hut the same monies heing trans- ferred to an account in lunacy, were directed to he so invested. See, however, Wall V. Hall, 11 W. R. 298, where the section seems to have been applied to monies paid in under the Settled Estates Act, and the monies were allowed to be invested on mortgage, though.the 23rd section of the Act specifies only Exchequer Bills or 3?. per cent, stock, see note (4), p. 246, ante ; and compare Tie Birmingham Bluecoat School, 1 L. E. Eq. 632, where the section was applied to enlarge the investments allowed by a private Act. may be in- W See the Order of Feb. 1, 1861, posi, which provides that: "1. Cash under vested in Bank the control of the Court (see note (j), supra) may be invested in Bank Stock, Stock, East East India Stock, Exchequer Bills, and 22. 10s. per Cent. Annuities, and upon India Stock, mortgage of freehold and copyhold estates respectively in England and Wales ; &c. ; as well as in Consolidated SI. per Cent. Annuities, Reduced SI. per Cent. Annuities, and new 31. per Cent. Annuities. in special cases '^^^ Court is not bound to grant every petition for conversion from Bank ' Annuities into the securities mentioned in the order, Cochburn v. Peel, 3 D. F. J. 170 (decided by the fuU Court of Appeal). And it seems that when there are no special circumstances in the case, such as exigencies in the family which make it desirable for the children entitled in remainder that their parents' to increase the income should be increased, the application will be refused, see Re La/ngford, 2 income of ten- J- * H. 458 ; Re Boyce (before theM. R. in Ireland), 15 W. E. 827. Where ant for life there are such special circumstances the Court exercises a liberal discretion, ' Peillow V. Brookings, 4 L. T. N. S. 731, where the tenant for life had a wife and five children and an income not exceeding 70/. ; and see Equitable Rever- siona/ry Interest Society v. Fuller, 1 J. & H. 379 ; Bishop v. Bishop, 9 W. E. 649 : and compare Cohen v. Waley, ibid. 137 ; decided before the issuing or oaiiT out the of tlie order. In Mortimer v. Picton, 12 W. R. 292, it was held that where primary object *^^ primary object of the trusts on which funds are held (in that case the pay- of the trusts. ™^"* °^ BOOL, in lieu of jointure, to the plaintiff) would otherwise be defeated, the Court will authorise a change of investments. Where a maiTied woman had a life interest in the fund, and was also entitled absolutely in the event of her having no children, there being little probability of her having children, V.-C. Kindersley allowed an invest- LAW OF PEOPEETT FUETHEE AMENDMENT ACT. 291 ment in East India Stock, Vtdkr v. ParroU, 12 W. R. 976. And where an 23 & 24 Vict, applicant was very poor, tlie usual provision against receiving three dividends o. 38 s 10 ' in the year by reason of the change was omitted, JS« Ingram, 11 W. K. 980. ' Compare as to the discretion of the Court under the section, Hume v. Jiich- Discretion of ardson, 10 W. E. 528,. where the Lords Justices held that a trustee acting Court according to his bond fide discretion, was justified, as the Oowrt would he, both m retaining money already invested in English and Irish Baulc Stock and East India Stock, and in making a fresh investment in those securities (see section 11, TO/m). In Vngless v. Tuff, 9 W. E. 729, the Court made no special declaration in the Liberty to decree, but sanctioned generally investment in real securities, and gave liberty apply in to apply in chambers. _ ohrmbers. ine costs ot an application to vary an investment are generally payable out Costs of anoli of income, EqvMabU Reversionary Interest Society v. Fuller, IJ. & H. 379 ; cation. ' secus, where a petition would in any case have been necessary, Re Langford, 2 J. & H. 458. The trustees are to be served with the petition, and such other persons, if Service. any, as the Court may think fit, Ord. Feb. 1, 1861, i. 2. XI. When any such general order as aforesaid shall Trustees, &c., have been made it shall be lawful for trustees, executors, funXin the^ or administrators having power to invest their trust funds ^^'i^^' *=?' ™ _, . . which cash upon trovemment securities, or upon Parliamentary under the con- stocks, funds, or securities, or any of them, to invest courf may be such trust funds, .or any part thereof, in any of the stocks, invested. funds, or securities in or upon which by such general order cash under the control of the Court may from time to time be invested (Q. (Z) See note (i), sv^pra, for the securities in which tmsteea may invest under Investments by this section, and see notes (s) and («), p. 285, ante, for the securities in which trustees. they may invest under other Acts. Sect. 12 provides that s. 32 of 22 & 23 Vict. c. 35, relating to investments by trustees on mortgage or East India Stock, &c., cmte, p. 285, shall operate retrospectively. [Sect. 13 recites 3 & 4 Will. 4, c. 27, s. 40, which provides that money charged on land and legacies are to be deemed satisfied at the end of twenty years, if there shall be no interest paid or acknowledgment in writing in the meanwhile, and extends that enactment to the case of claims to the estates of persons dying intestate by providing that after Dec. 31, 1860, "no suit or Eight to pro- " other proceeding shall be brought to recover the personal estate, or any share perty of mtes- " of the personal estate, of any person dying intestate, possessed by tlie legal tate barred " personal representative of such intestate, but within twenty years next after after twenty ' ' a present right to receive the same shall have accrued to some person capable years. " of giving a discharge for or release of the same, unless in the meantime some ' ' part of such estate or share, or some interest in respect thereof shall have been • ' accounted for or paid, or some acknowledgment of the right thereto shall have " been given in writing, signed by the person accountable for the same, or his " agent, to the person entitled thereto, or his agent ; and in such case no such " action or suit shall be brought, but within twenty years after such accounting, " payment, or acknowledgment, or the last of such accountings, payments, or " acknowledgments, if more than one was made or given." As to what cases come within this section, see Shelford's E. P. Statutes, 248 — 262]. XIV. The order to take an account of the debts and Order to take o account of 292 23 & 24 Vict, c. 38, s. 14. debts, &o., of deceased per- son under section 19 of 13 & 14 Vict. c. 36, may be made imme- diately after probate granted. Act not to extend to Scotland, &c. LAW OF PKOPERTY FURTHER AMENDMENT ACT. liabilities affecting the personal estate of a deceased per- . son, pursuant to the nineteenth section of the Act of the thirteenth and fourteenth years of Victoria, chapter thirty- five (m), may be made immediately, or at any time after probate or letters of administration shall have been granted; and such order may be made either by the Court of Chancery upon motion or petition of course, or by a judge of the said court, sitting at chambers, upon a summons in the form used for originating proceedings at chambers; and after any such order shall have been made, the said Court or judge may, on the application of the executors or administrators, by motion or summons, restrain or suspend, until the account directed by such order shall have been taken, any proceedings at law against such executors or administrators by any person having, or claiming to have, any demand upon the estate of the deceased, by reason of any debt or liability due from the estate of the deceased, upon such notice and terms and conditions (if any) as to the said Court or judge shall seem just ; and the judge, in taking an account of debts and liabilities pursuant to any such order, shall, on the application of the executors or administrators, be at liberty to direct that the particulars only of any claim or claims which may be brought in pursuance to any such order shall be certified by his chief clerk, without any adjudication thereon ; and any notices for creditors to come in which may be published in pursuance of any such order shaU have the same force and effect as if such notices bad been given by the executors or administrators in pursuance of the twenty-ninth section of the Act of the twenty-second and twenty-third years of Victoria, chapter thirty-five. (m) See note (w), p, 126, ante. XV. This Act is not to extend to Scotland, nor are any of the clauses, except clause six and the subsequent clauses, to extend to Ireland. ATTOENIES AND SOLICITORS ACT. 293 ATTOENIES AND SOLICITORS ACT. 23 & 24 VICT. Cap. 127. SS. XXVII., XXVIII., XXIX. See aiUe, pp. 28 — 31. CHANCERY EVIDENCE COMMISSION ACT. 23 &, 24 VICT. Cap. 128. An Act to enable the Lord Chancellor and Judges of the Court of Chancery to carry into effect the Recommenda- tions and Suggestions of the Chancery Evidence Com- ■ missioners by General Bules and Orders of the Court. [28th August, I860- Whereas by commissions under the Great Seal, dated 23 & 24 vict. respectively the eighteenth day of August and the thir- "• ^^^' teenth day of October, one thousand eight hundred and fifty -nine, commissioners were appointed to inquire into the mode of taking evidence in the High Court of Chan- cery and its effects : And whereas two reports from the said commissioners have since been made to Her Majesty : And whereas doubts have been entertained whether effect can be given to the recommendations and suggestions of the said reports by general orders of the Court without the authority of Parliament : Be it declared and enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons in this present Parliament assembled, and by the authority of the same, as follows : I. The Lord Chancellor, with the advice and assistance Power for Lord of the Master of the Rolls, the Lords Justices of the Jg^/^J'^^^^^^lg Court of Appeal in Chancery, and the Vice-Chancellors, general rules or any three of them, may from time to time, as the Lord ^rryhig^re- °^ Chancellor with such advice and assistance as aforesaid commendations may think fit, make general rules and orders for carrying oery Evidence 294 CHANCERY EVIDENCE COMMISSION ACT. 23 & 24 Vict, the said recommendations and suggestions of the said — — ' " ' , reports or any of them, or any part thereof, into effect, Ee^tto" and in relation to aU matters consequential thereon or effect. incidental thereto, and so far as to them shall seem expe- dient for varying and adding to the course of proceeding recommended in the said reports in respect of the matters to which the said reports relate; and such rules and orders may from time to time be rescinded or altered by ^ the like authority; and all such rules and orders shaJl take effect as if they had been general rules and orders of the Court duly made (a). {a) See Order, February 5, 1861, post. II. Provided always, that all such general rules and orders as aforesaid shall immediately after the making and issuing thereof be laid before both Houses of Parliament, if Parliament be then sitting, or if Parliament be not then sitting within five days after the next meeting thereof; and if either of the Houses of Parliament shall, by any resolution passed within thirty-six days after such rules or orders have been laid before such Houses of Parlia- ment, resolve that the whole or any part of such rules or orders ought not to continue in force, in such case the whole or such part thereof as shall be so included in such resolution shall from and after such resolution cease to be binding. III. Nothing herein contained shall be construed to abridge or affect the powers of making general rules and orders which the Lord Chancellor, either alone or with such advice and assistance as aforesaid, might have ex- ercised if this Act had not passed. Such general rules and orders to be laid before Parliament. Act not to abridge, &c., powers of Lord Chancellor, &c., making general orders. TRUSTEES AND MORTGAGEES ACT. 295 TEUSTEES AND MORTGAGEES ACT. 23 & 24 VICT. Cap. 145. An Act to give to Trustees, Mortgagees, and others certain Powers noiu commonly inserted in Settlements, Mort- gages, and Wills (a). [28i/t August, 1860. Whereas it is expedient that certain powers and pro- 23 & 24 Vict, visions which it is now usual to insert in settlements, "' mortgages, wUls, and other instruments, should be made incident to the estates of the persons interested, so as to dispense with the necessity of inserting the same in terms in every such instrument : Be it enacted by the Queen's most Excellent Majesty, by and with the advice and con- sent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the autho- rity of the same, as follows (a) : (a) It must be remembered that this Act only applies (see sect. 34) to Extent of appli- persons entitled or acting under instruments executed after 28 Aug. 1860. cation of the Its operation (see sect. 32) may be negatived by express declaration ; and it Act. only provides for the case of the simplest and most ordinary instruments, so that it seems rather intended to supply defects in ill- drawn wills and settle- ments, than to supersede the labours of the skilled conveyancer ; and as it is generally desirable that each particular instrument should enable trustees to ascertain their powers and duties in relation to sales, &c., the general pro- visions of the Act are seldom made use of. Part I. Powers of Trustees for Sale, de., and Trustees of Renewable Leaseholds. I. (6) In all cases where by any will, deed, or other Trustees em- instrument of settlement it is expressly declared that seu may seU trustees or other persons therein named or indicated shall in lots, and ^ ... either by auo- have a power of sale, either generally, or m any particular tion or private event, over any hereditaments named or referred to in or "oitoao'- from time to time subject to the uses or trusts of such will, deed, or other instrument, it shall be lawful for such trustees or other persons, whether such heredita- ments be vested in them or not, to exercise such power of sale by selling such hereditaments, either together or in lots, and either by auction or private contract, and either 296 TRUSTEES AND MORTGAGEES ACT. Sale may be made under special con- ditions, and trustees may buy in, &c. 23 & 24 Vict, at one time or at several times, and (in case the power — ' shall expressly authorise an exchange) to exchange any hereditaments which for the time being shall be subject to the uses or trusts aforesaid for any other hereditaments in England or Wales or in Ireland (as the case may be), and upon such exchange to give or receive any money for equality of exchange. (b) See Lewin, 321, 323. II. It shall be lawful for the persons making any such sale or exchange to insert any such special or other sti- pulations, either as to title or evidence of title, or other- wise, in any conditions of sale, or contract for sale or exchange, as they shall think fit, and also to buy in the hereditaments or any part thereof at any sale by auction, and to rescind or vary any contract for sale or exchange, and to resell the hereditaments which shall be so bought in, or as to which the contract shall be so rescinded, without being responsible for any loss which may be occasioned thereby, and no purchaser under any such sale shall be bound to inquire whether the persons making the same may or may not have in contemplation any particular re-investment of the purchase-money in the purchase of any other hereditaments or otherwise (c). (c) See Lewin, 321, 323. Trustees exer- m. Yov the purpose of completing any such sale or sale, &e., em- exchange as aforesaid, the persons empowered to sell or exchange as aforesaid shall have full power to convey or otherwise dispose of the hereditaments in question, either by way of revocation and appointment of the use, or otherwise, as may be necessary (d). (d!) See Lewin, 323. Monies arising IV. (e) The money so received upon any such sale or &c.?tTbe'laid f°^ equality of exchange as aforesaid shall be laid out in ""*■ '" "*^" the manner indicated in that behalf in the will, deed, or instrument containing the power of sale or exchange, or if no such indication be therein contained as to all or any part of such money, then the same shall with aU conve- powered to convey. out in other lands : TRUSTEES AND MORTGAGEES ACT. 297 nient speed be laid out in the purchase of other heredita- 23 & 24 Vict, ments in fee simple in possession to be situate in England "" '"' ' or Wales or in Ireland (as the case may be), or of lands of a leasehold or copyhold or customary tenure which, in the opinion of th|^e persons making the purchase, are convenient to be held therewith or with any other heredi- taments for the time being subject to the subsisting uses or trusts of the same will, deed, or other instrument of settlement in which the power of sale or exchange was contained ; and all such hereditaments so to be purchased or taken in exchange as aforesaid as shall be freeholds of inheritance shall be settled and assured to the uses, upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, and declarations, to which the hereditaments sold or given in exchange were or would have been subject, or as near thereto as the deaths of parties and other intervening accidents will admit of,'but not so as to increase or multiply charges ; and all such hereditaments so to be purchased or taken in exchange as aforesaid as shall be of leasehold or copy- hold or customary tenure shall be settled and assured upon and for such trusts, intents, and purposes, and with, under, and subject to such powers, provisoes, and decla- rations, as shall as nearly as may be correspond with and be similar to the aforesaid uses, trusts, intents, and pur- poses, powers, provisoes, and declarations, but not so as to increase or multiply charges, and so that if any of the hereditaments so to be purchased shall be held by lease for years the same shall not vest absolutely in any tenant in tail by purchase who shall not attain the age of twenty- one years ; and any such purchase as aforesaid may be made subject to any special conditions as to title or other- wise : Provided that no leasehold tenement shall be pur- chased under the powers hereinbefore contained which is held for a less period than sixty years (e). (e) No provision is made by this section for the destination of leasehold property, which by the operation of this section may be divested from a tenant in tail by purchase dying under twenty -one, V. Provided nevertheless, that it shall be lawful for or in payment 298 TEXTSTEES AND MORTGAGEES ACT. 23 & 24 Vict, the persons exercising any such power as aforesaid, if they shall think fit, to apply any money to be received branc™" upon any sale or for equality of exchange as aforesaid, or any part thereof, in lieu of purchasing lands therewith, in or towards paying off or discharging any mortgage or other charge or incumbrance which shall or may affect all or any of the hereditaments which shall then be subject to the same uses or trusts as those to which the heredita- ments sold or given in exchange were or was subject. Money arising VI. No money arising from any such sale or exchange noUobriaid'' of lands or hereditaments in England or Wales shall be out, nor lands j^id out in the purchase of lands or hereditaments situate excoanged, elsewhere than elsewhere than in England or Wales, and no lands situate inwhioMa^s ^^ England or Wales shall, under any such power as sold or ex- aforesaid, be exchanged for any lands or hereditaments situated.^"^* situate elsewhere than in England or Wales ; and no money arising from any such sale or exchange of lands in Ireland shall be laid out in the purchase of lands or hereditaments situate elsewhere than in Ireland, and no lands or hereditaments situate in Ireland shall, under any such power as aforesaid, be exchanged for any lands or hereditaments situate elsewhere than in Ireland. Until pur- VII. Until the money to be received upon any sale or &o., money to' for equality of exchange as aforesaid shall be disposed of be invested at Jq tj^g manner herein mentioned, the same shall be in- interest. vested at interest for the benefit of the same parties who would be entitled to the hereditaments to be purchased therewith as aforesaid, and the rents and profits thereof in case such purchase and settlement as aforesaid were then actually made (/). (/) See, as to investments at interest, sect. 25, and note, p. 302, post. Trustees of VIII. It shall be lawful for any trustees of any lease- leaseholds may holds for lives or years which are renewable from time to time, either under any covenant or contract, or by custom or usual practice, if they shall in their discretion think fit, and it shall be the duty of such trustees, if thereunto reqmred by any person having any beneficial renew. TRUSTEES AND MORTGAGEES ACT. 299 interest, present or future or contingent, in such lease- 23 & 24 Vlot. holds, to use their best endeavours to obtain from time to "' ^^^' ^' ^' time a renewed lease of the same hereditaments on the accustomed and reasonable terms, and for that purpose it shall be lawful for any such trustees from time to time to make or concur iu making such surrender of the lease for the time being subsisting, and to do all such other acts as shall be requisite in that behalf; but this section is not to apply to any case where by the terms of the settlement or will the person in possession for his life or other limited interest is entitled to enjoy the same without any obligation to renew the" lease or to contribute to the expense of renewing the same (g). {g) The provision at the end of this section was inserted at the instance of Lord St. Leonards, and mil keep the power within narrow limits, see Lewin, IX. In case any money shall be required for the Money for purpose of paying for equality of exchange as aforesaid,' change^and*^' or for renewal of any lease as aforesaid, it shall be f""^ "^^"^^^l "^ lawful for the persons effectrug such exchange or renewal raised by mort- to pay the same out of any money which may then ^*2®' ^" be in their hands in trust for the persons beneficially interested in the lands to be taken in exchange, or com- prised in the renewed lease, whether arising by any. of the ways and means hereinbefore mentioned or otherwise, and notwithstanding the provisions for the application of money arising from sales or exchanges hereinbefore con- 4ained ; and if they shall not have in their hands as aforesaid sufficient money for the purposes aforesaid, it shall be lawful for such persons to raise the money required by mortgage of the hereditaments to be received in exchange or contained in the renewed lease (as the case may be), or of any other hereditaments for the time being subject to the subsisting uses or trusts to which the hereditaments taken in exchange or comprised in the renewed lease (as the case may be) shall be subject, and for the purpose of effecting such mortgage such persons shall have the same powers of conveying or otherwise assuring as are herein contained with reference to a, con- 300 TRUSTEES AND MOETGAGEES ACT. No sale, &c,, to be made without con' 23 & 24 Vict, veyance on sale; and no mortgagee advancing money -^ — ' upon such mortgage purporting to be made under this power shall he bound to see that such money is wanted, or that no more is raised than is wanted for the purposes aforesaid. X. No such sale or exchange as aforesaid, and no purchase of hereditaments out of money received on any r^r?^*!"*"' such sale or exchange as aforesaid, shall be made without ' ' the consent (ft) of the person appointed to consent by the will, deed, or other instrument, or if no such person be appointed, then of the person entitled in possession to the receipt of the rents and profits of such hereditaments, if there be such a person under no disability ; but this clause shall not be taken to require the consent of any person where it appears from the will, deed, or other instrument to have been intended that such sale, exchange, or purchase should be made by the person or persons making the same without the consent of any other person. {h) See Offen v. Sarmm, 1 D. F. J. 253. geea power of sale of heredita- ments of tenure. Pabt II. [Ss. 11—16 make the powers of sale, &o. usnaUj inserted in mortgages, incident to the estate of a mortgagee. As to sales by mortgagees under the 15 & 16 Yict. c. 86, s. 48, see ante, p. 205. ' Sect. 11 proTides that "where any principal money is secured or charged by " deed on any hereditaments of any tenure or on any interest iherevn," (so that the section does not apply where the mortgage is of chattels personal, e.g., of policies, or of hereditaments not the subject of tenure, as a personal annuity descending to the heir, see Stafford v. Buckley, 3 Ves. Sen. 170 ; Ex parte Wynch, 5 D. M. Q. 218), "the person to whom such money shall for the* " time being be payable, his executors, administrators, and assigns, shall, at " any time after the expiration of one year from the time when such principal " money shall have become payable, according to the terms of the deed, or after "any interest on such principal money shall have been in arrear for six months, " or after any omission to pay any premium on any insurance which, by the " terms of the deed, ought to be paid by the person entitled to the property " subject to the charge, have the following powers, to the same extent (but no ' ' more) as if they had been in terms conferred by the person creating the charge ; " namely, "1st. A power to sell or concur with any other person in selling the whole " or any part of the property by public auction or private contract, sub- " ject to any reasonable conditions he may think fit to make, and to " rescind or vary contracts for sale, or buy in and resell the property, " from time to time in like manner : "2nd. A power to insure and keep insured from loss or damage by fire the " whole or any part of the property (whether afiixed to the freehold or " not) which is in its nature insurable, and to add the premiums paid TRUSTEES AND MORTGAGEES ACT. SOl ["for any suoh insurance to the prineipal money secured at the same rate 23 & 24 Vict ,''?f interest: c. U5, s. 11." 3ra. A power to appoint or obtain the appointment of a receiver of the " rents and profits of the -whole or any part of the property in manner " hereinafter mentioned." Sect. 12 provides that the mortgagee's receipts for purchase-money shall he sufficient discharges. Sect. 13 provides "that no such sale as aforesaid shall he made until after Notice to be ' ' six months' notice in writing given to the person, or one of the persons, entitled given before " to the property subject to the charge, or affixed on some conspicuous part of sale ; but " such property ; but when a sale has been effected in professed ejcercise of the purchaser re- " powers hereby conferred, the title of the purchaser shall not be liable to be lieved from " impeached on the ground that no case had arisen to authorise the exercise of inquiry as to ' ' such power, or that no such notice as aforesaid had been given ; but any person circumstances " damnified by any such unauthorised exercise of such power shall have his of sale. " remedy in damages against the person selling." Sect. 14 provides that " the purchase-money shall be applied : first, in pay- Application of ' ' ment of all the expenses incident to the sale or incurred in any attempted sale ; purchase- " secondly, in discbarge of interest and costs ; thirdly, in discharge of aU the money. ' ' principal monies then due ; and the residue shall be paid to the person entitled " to the property subject to the charge." Sect. 15 provides that "the person exercising the power of sale hereby con- Conveyance " ferred, shall have power by deed to convey or assign to and vest in the pur- to the pur- " chaser the property sold, for all the estate and interest therein, which the chaser. " person who created the charge had power to dispose o^ except that in the case " of copyhold hereditaments the beneficial interest only shall be conveyed to and " vested in the purchaser by such deed." Sect 16 provides that " at any time after the power of sale hereby conferred' Owner of " shall have become exercisable, the person entitled to exercise the same shall charge may " be entitled to demand and recover, from the person entitled to the property call for title " subject to the charge, all the deeds and documents in his possession or power deeds and " relating to the same property, or to the title thereto, which he would have conveyance of " been entitled to demand and recover if the same property had been conveyed, legal estate. ' ' appointed, surrendered, or assigned to and were then vested in him for all the " estate and interest which the person creating the charge had power to dispose "of; and where the legal estate shall be outstanding in a trustee, the person " entitled to a charge created by a person equitably entitled, or any purchaser " from such person, shall be entitled to call for a conveyance of the legal estate ' ' to the same extent as the person creating the charge could have called for suph " a conveyance if the charge had not been made." Sect. 17 provides for the appointment of a receiver, by the mortgagee ; and, Seot.!18 provides that "every receiver appointed as aforesaid shall be deemed Eeceiver " to be' the agent of the person entitled to the property subject to the charge, deemed to be " who shall be solely responsible for his acts or defaults, unless otherwise pro- agent of the " vided for in the charge." See Jones v. Smith, 1 Hare 43, 72. If before this mortgagor. Act a mortgagee appointed a receiver, the possession of the receiver was, in the absence of any special stipulation, treated as the possession of the mortgagee. Sect 19 provides for the powers of such receiver ; sect. 20 for his removal ; sect. 21 for his payment by receiving a commission not exceeding five per cent. By seqt. 22 the receiver is to insure if required, and sect. 23 provides that Duties of a " every receiver appointed as aforesaid shall pay and apply all the money mortgagee's " received by him in the first place in discharge of all taxes, rates, and assess- receiver. " ments whatsoever, and in payment of his commission as aforesaid, and of the " premiums on the insurances, if any, and in the next place in payment of all " the interest accruing due in respect of any principal money then charged on ' ' the property over which he is receiver, or on any part thereof, and, subject as " aforesaid, shall pay all the residue of such money to the person for the time " being entitled to the property subject to the charge, his executors, adminis- " tratora, or assigns." , , . , By sect 24 "the powers and provisions contained in this part of this Act " relate only to mortgages or charges made to secure money advanced or to be " advanced by way of loan, or to secure an existing or future debt,"] 302 THtrSTEES AND M0ETGA6EES ACT. 23 & 24 Viet. 0. 145, s. 25. On what seou- rities trust funds may be invested. Investments by trustees. 0!rustees may apply income of property of infants, &c., for their maintenance. Paet III. Provisions as to Investment of Trust Funds, Appomtment and Powers of Trustees and Executors, dc. XXV. [i) Trustees having trust money in their hands which it is their duty to invest at interest shall be at liberty, at their discretion, to invest the same in any of the Parliamentary stocks or public funds, or in Govern- ment securities, and such trustees shall also ' be at liberty, at their discretion, to call in any trust funds invested in any other securities than as aforesaid, and to invest the same on any such securities as aforesaid, and also from time to time, at their discretion, to vary any such investments as aforesaid for others of the same nature: Provided always, that no such original invest- ment as aforesaid (except in the Three per Cent. Con- solidated Bank Annuities), and no such change of invest- ment as aforesaid, shall be made where there is a person under no disability entitled in possession to receive the income of the trust fund for his life, or for a term of years determinable with his life, or for any greater estate, without the consent in writing of such person (fc). (i) Much more extensive powers in regard to investment are given by the previous Acts (as to which see notes (s) and (t), p. 285, and note (2), p. 291)^ and this section is therefore practically inoperative. (Jc) See, as to this consent, Norris v. Wright, 14 Beav. 291, 303 ; WiUs v. Qresham, 2 Drew. 268 ; 5 D. M. G. 770. XXVI. In all cases where any property is held by trustees in trust for an infant, either absolutely or con- tingently on his attaining the age of twenty-one years, or on the occurrence of any event previously to his attaining that age, it shall be lawful for such trustees, at their sole discretion, to pay to the guardians (if any) of such infant, or otherwise to apply for or towards the mainte- nance or education of such infant, the whole or any part of the income to which such infant may be entitled in respect of such property, whether there be any other fund applicable to the same purpose, or any other person bound by law to provide for such maintenance or educa- tion, or not(Q; and such trustees shall accumulate all TEUSTEES AND MORTGAGEES ACT. 303 the residue of such income by way of compound interest, 23 & 24 Viet. by investing the same and the resulting income thereof — Lfi L from time to time in proper securities, for the benefit of the person who shall ultimately become entitled to the property from which such accumulations shall have arisen : Provided always, that it shall be lawful for such trustees at any time, if it shall appear to them expedient, to apply the whole or any part of such accumulations as if the same were part of the income arising in the then current year. (I) See Lewin, 419. Applications as to the maintenance and adTancement of infants may be made in chambers, see note to 15 & 16 Vict. o. 80, s. 26, head (3), p. 146, ante. XXVII. (m) Whenever any trustee, either original or Provisions for substituted, and whether appointed by the Court of ^g^°J,°^™ega ° Chancery or otherwise, shall die, or desire to be dis- °^ cleath, &o. charged from or refuse or become unfit or incapable to act in the trusts or powers in him reposed, before the same shall have been fully discharged and performed, it shall be lawful for the person or persons nominated for that purpose by the deed, will, or other instrument creating the trust (if any), or if there be no such person, or no such person able and willing to act, then for the surviving or continuing trustees or trustee for the time being, or the acting executors or executor or administra- tors or administrator of the last surviving and continuing trustee, or for the last retiring trustee, by writing,, to appoint any other person or persons to be a trustee or trustees in the place of the trustee or trustees so dying, or desiring to be discharged, or refusing or becoming unfit or incapable to act as aforesaid ; and so often as any new trustee or trustees shall be so appointed as aforesaid, all the trust property (if any) which for the time being shall be vested in the surviving or continuing trustees or trustee, or in the heirs, executors, or administrators of any trustee, shall with all convenient speed be conveyed, assigned, and transferred, so that the same may be legally and effectually vested in such new trustee or trustees, either solely, or jointly with the surviving or continuing 304 TRUSTEES AND MORTGAGEES ACT. 23 & 24 Vict, e. 145, s. 27. Power to appoint new trustees. Appointment of new trus- tees in cases herein named. Trustees' re- ceipts to be discharges. Executors ma; compound, &c. trustees or trustee, as the case may require ; and every new trustee or trustees to be appointed as aforesaid, as well before as after such conveyance or assignment as aforesaid, and also every trustee appointed by the Court of Chancery either before or after the passing of this Act, shall have the same powers, authorities, and discre- tions, and shall in all respects act, as if he had been originally nominated a trustee by the deed, will, or other instrument creating the trust. (m) See sect. 32 of the Trustee Act, and note (p), thereto, pp. 98 — 100, ante. This section does not provide for the cases of a trustee residing abroad (oomp. He Watts's Settlement, 9 Hare, 106, and Withington t. Withmgton, 16 Sim. 104, with MemnarA v. Welford, 1 Sm. & Gif. 426), nor for the case of all the trustees retiring simultaneously {Stones v. Sowton, 17 Beav. 308), nor for there being two sets of trustees of the same instrument (the surviving or continuing trustees of one set being not necessarily the best persons to appoint new trustees of the other set), nor for an augmentation or reduction of the number of trustees (see Lewin on Trusts; Se Bathurst, 2 Sm, & Gif. 169 ; Memertshagen v. Davis, 1 Coll. 355). See ante, p. 100. XXVIII. The power of appointing new trustees here- inbefore contained may be exercised in cases where a trustee nominated in a will has died in the lifetime of the testator. XXIX. The receipts in writing of any trustees or trustee for any money payable to them or him' by reason or in the exercise of any trusts or powers reposed or vested in them or him shall be sufi&cient discharges for the money therein expressed to be received, and shall effectually exonerate the persons paying such money from seeing to the application thereof, or from being answer- able for any loss or misapplication thereof (n). (») See 22 & 23 Vict. u. 35, s. 23, and note p. 278, ante. XXX. It shall be lawful for any executors to pay any debts or claims upon any evidence that they may think sufficient, and to accept any composition, or any secu- rity, real or personal, for any debts due to the deceased, and to allow any time for payment of any such debts as they shall think fit, and also to compromise, compound, or submit to arbitration all debts, accounts, claims, and things whatsoever relating to the estate of the deceased, and for any of the purposes aforesaid to enter into, give, TRUSTEES AND MORTGAGEES ACT. 305 and execute such agreements, instruments of composition, 23 & 21 Viet. releases, and other things as they shall think expedient, — ^-^^ — '- without being responsible for any loss to be occasioned thereby (o). (o) See Williams on Executors, 1663. Part IV. General Provisions. XXXI. For the purposes of this Act, a person shall be Tenants for deemed to be entitled to the possession or to the receipt execi^e powers, of the rents {p) and income of land or personal property, notwithstand- although his estate may'be charged or incumbered, either brances. by himself or by any former owner, or otherwise howsoever to any extent ; but the estates or interests of the parties entitled to any such charge or incumbrance shall not be affected by the acts of the person entitled to the posses- sion or to the receipt of the rents and income as aforesaid, Tinless they shall concur therein. ( p) Compare note (w), p. 45, ante. XXXII. None of the powers or incidents hereby con- Powers, &c., ferred or annexed to particular oifices, estates, or circum- may be ne- stances shall take effect or be exercisable if it is declared gati'^ii by , . . express decla- in the deed, will, or other instrument creating such ration, offices, estates, or circumstances that they shall not take effect ; and where there is no such declaration, then, if any variations or limitations of any of the powers or incidents hereby conferred or annexed are contained in such deed, will, or other instrument, such powers or inci- dents shall be exercisable or shall take effect only subject to such variations or limitations. XXXIII. Nothing in this Act contained shall be No persons deemed to empower any trustees or other persons to deal Jh^gg entitled with or affect the estates or rights of any person soever, ""^er the set- except to the extent to which they might have dealt with to be affectei or affected the estates or rights of such persons if the deed, will, or other instrument under which such trustees or other persons are empowered to act had contained express powers for such trustees or other persons so to deal with or affect such estates or rights. 306 TRUSTEES AND MORTGAGEES ACT. 23 & 24 Vict. «. 145, s. 84. OomiDence- ment of Act. XXXIY. The provisions contained in this Act shall, except as hereihbefore otherwise provided, extend only to persons entitled or acting under a deed,, will, ccidicU, or other instrument executed after the passing of this Act, or under a will or codicil confirmed or revived by a codicil executed after that date. Extent of Act. XXXV. This Act shall not extend to Scotland. 23 & 24 Vict, c. 149, 3. 2.' The Queen's priaon to be visited quar- terly. ACT FOE BELIEF OF PEISONERS IN CONTEMPT. 23 & 24 VICT. Cap. 149. An Act to make better Provision for the Belief of Prisoners in Contempt of the High Court of Chancery, and Pauper Defendants ; and for the more efficient Despatch of Business in the said Cowrt. [2%th August, 1860. [Sect. 1 disoliarged tlie Masters in ordinary from the duty of visiting the Queen's Prison.] II. In the last week in January, in the last week in April, in the last week in July, and in the last week in October in every year, the present solicitor to the suitors' fund, or in case of his illness or unavoidable absence, some officer of the Court of Chancery to be appointed by the Lord Chancellor from time to time during such illness or absence, and after the death or retirement of the present solicitor to the suitors' fund, the solicitor to the suitors' fund for the time being, or some other officer of the Court of Chancery to be appointed by the Lord Chancellor from time to time, shall visit the Queen's prison, and examine, the prisoners confined there for con- tempt, and shall report his opinion on their respective cases to the. Lord Cha,ncellor, and thereupon it shall be lawful for the Lord Chancellor, if he shall think fit, to assign a solicitor to any such prisoner, not only for defending him in formd pauperis, but generally for taking such steps on his behalf as the nature of the case may require, and to make all or any such orders as the Lord ACT FOR BELIEF OF PKISONEES IN CONTEMPT. 307 Chancellor was empowered to make after the like report 23 & 24 tiot. of a Master under the seventh rule of the said first here- — ' ^' ^' inbefore recited Act, and all the provisions of the same rule shall apply to the reports hereby directed, and the orders to be made thereunder (a). (o) Upon the report of the solicitor to the Suitors' Fee Fund as to the Prisoner plead- poverty of the defendant committed, a solicitor and counsel will be assigned ing in formS, without an application to the Court {Layton v. Mortimore, 2 D. P. J. 353). pauperis. III. It shall be lawful for the solicitor to the suitors' Prisoners and /.J ., jY! • -J.- ii • p • 1 , other persons fund or other omcer visitmg the prison as aforesaid to may be exa- examine the prisoners and all other persons whom he ™'°^'* °° °**''' may think it proper to examine upon oath, and to admi- nister an oath or oaths to any such prisoner and other persons accordingly, and to cause any officers, clerks, and ministers of any court of law or equity to bring and produce upon oath before him any records, orders, books, papers, or other writings belonging to the said courts, or to any of the officers within the same, as such officers. IV. In all cases where, in pursuance of the said sixth Court may rule contained in the first hereinbefore recited Act, a ^a9&s\f' defendant shall be brought to the bar of the court, and poverty of shall make oath that he is unable by reason of poverty to employ a solicitor to put in his answer, the Court, if not satisfied of the truth of that allegation, may direct an inquiry as to the truth thereof, and may appoint a soli- citor to conduct such inquiry on the behalf of such defendant, and if it is ascertained by means of such inquiry, or if the Court is satisfied without such inquiry, that such defendant is unable by reason of poverty to employ a solicitor to put in his answer, the Court may thereupon make such order as is authorised by the said sixth rule after a report by a Master (&). (6) See Ord. XII. 4, audjnotes, post. V. When any person shall be committed to any prison Gaolers to other than the Queen's prison under any writ or order of ™^Lord°Chan- the Court of Chancery, the gaoler or keeper of the prison cellor of all in which such person shall be confined shall, within somv^!^ ^"' fourteen days after such person shall have been in the X 2 308 ACT FOB RELIEF OP PRISONERS IN CONTEMPT. 23 & 24 Vict, custody of such gaoler or keeper, make a report to the ~ ' "' -- Lord Chancellor, containing the name and description of such prisoner, with the cause and date of his commit- ment, and a copy of the -writ or order under which he was committed ; and if such prisoner shall make oath before one of the visiting justices of such gaol, or a com- missioner for taking oaths in the Court of Chancery, that he is unable by reason of poverty to employ a solicitor, the report shall contain a statement to that effect, and it shall thereupon be lawful for the Lord Chancellor to direct the solicitor to the suitors' fund to ascertain the truth of such statement, and if true, to take such steps on behalf of any such prisoner as the nature of the case may require ; and the Lord Chancellor may thereupon, if he shall see fit, make such order or orders as he is empowered to make under the second section of this Act. Expenses in- VI. The solicitor to the suitors' fund shall make the prisoners and necessary" and proper payments out of pocket which may pauper de- jjg requisite in the proceedings taken on behalf of the fendantstobe .-^ ,,.; ° . , -^, ., paid out of prisoners and defendants under the order oi tne said suitors' fund, q^^^.^^ ^^g^ gljg^ll ^g allowed the same as part of his dis- bursements in respect of the suitors' fund : Provided that if any such prisoner or defendant shall be or become entitled to any funds in the cause, such funds shall be applied in the repayment to the suitors' fund of the sums expended on his behalf as aforesaid : Provided also, that in case any prisoner or defendant shall become entitled to any costs in any such suit or proceeding, such costs shall be received by the solicitor to the suitors' fund, and paid by him into the suitors' fund (c). (c) On a motion to discharge pauper defendants, to ^bom Bolicitor and counsel had been assigned under sect. 2, from custody, it was held that the Court had no power under this section to pay any part of the plaintiff's costs ■ of suit out of the Suitors' Fee Fund, Wand v. Woodcock, 5 L. T. N. S. 817. [Sect. 7 provides for payment of an additional salary to the solicitor to the Suitors' Fee Fund.] Power to mate VIII. It shall be lawful for the Lord Chancellor, with general orders. ^^^ advice and assistance of the Master of the Kolls, the Lords Justices of the Court of Appeal in Chancery, and ACT FOK EELIEF OF PEISONERS IN CONTEMPT. 309 the Vice-Chancellors, or any three of them, from time to 23 & 24 Vict, time to make such general rules and orders for regulating — ' °' the mode of procedure regarding commitments by the Court of Chancery for contempt and taking bills pro confesso, and for doing and effectuating any acts or pro- ceedings which may heretofore have been required to be done by or under the direction or through the interven- tion of any of the Masters of the said court, the doing and effectuating of which has not been already provided for, and generally for carrying the purposes of this Act into effect, as may be found expedient. « [Sects. 9 —12 provide for the custody of deeds under tlie care of late masters, and for the appointment of a new chief clerk, &c.] XIII. Where the Lord Chancellor is empowered by By whom this Act to make orders or to give directions with respect jjjg ^^t are to prisoners in contempt and pauper defendants, such *<> ^^ "'»<'=• orders and directions are to be made or given by the Lord Chancellor, Lord Keeper or Lords Commissioners for the custody of the Great Seal of the United Kingdom, or the Lords Justices of the Court of Appeal in Chancery only : and where the Court of Chancery is empowered by this Act to make such orders or to give such directions, they may be made or given by any judge of the said court. [The sections omitted relate ezclusively to the appointment of another chief clerk, &c.] CHANCERY AMENDMENT ACT, 1863. 25 & 26 VICT. Cap. 42. See ante, p. 270. 310 TRANSFER OF LAND ACT. 25 & 26 Vict, c. 53. TEANSFER OF LAND ACT, 1862. 25 & 26 TICT. Cap. 53. An Act to facilitate the Proof of Title to, and the Con- veyance of, Real Estates. [2Qth July, 1863. Wheeeas it is expedient to give certainty to the title to real estates and to facilitate the proof thereof, and also to render the dealing with land more simple and economical, Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : Extent of Act. I. This Act shall apply to England only. Eegietry to be estaiblislied. Limits of regis- try. By whom ap- pUca,tion for registration to be made. Past I. AS TO THE EEGISTEATION OP EEAL ESTATES AND THE TITLE THEEETO. II. There shall be established a registry of the title to landed estates. III. The registry shall be confined to estates of free- hold tenure and leasehold estates in freehold lands. IV. Application may be made for registration of title, by any of the following persons, viz. {a) : 1. The owner of the fee simple. 3. Persons who collectively are owners of the fee simple, or have the power of acquiring the same : 3. Persons who have the power of appointing the fee simple : 4. Trustees for sale of the fee simple : 5. The owner of the first estate of freehold and first vested estate of inheritance (6) : 6. Any purchaser of a fee simple, where his contract empowers him so to do, or the vendor consents : 7. Any person authorised by the Court of Chancery to make such application. Application may be made, although the estate o^ TRANSFER OF LAND ACT. 311 the person applying may be subject to charges and 25 & 26 Vict, incumbrances. °" ' ^' (a) When an application has to be made to the Court ex parte for its direction Application to and decision as to whether the applicants are capable of applying to register register, how under this section, such application ought to be made upon a statement of the made, facts in writing, certified to be correct by the registrar of the office, Ee Kennard, 11 L. T. N. S. 585. Trustees with a mere power of sale cannot apply alone, Bradish t. EUamea, Application by 3 N. E. 632. trustees with (i) Where A. was tenant for life and B. was entitled to the first vested estate of power of sale, inheritance, liable to be divested by the birth of issue to A. , it was held that A. yegtoj estate and B. together might apply, and that "vested " in this section does not mean incapable of being divested, ibid. Proceedings to obtain Registration of a Title as indefeasible. V. On application f6r the registration of a title as in- Examination defeasible the title shall be examined by the registrar and guarantee. examiners of title hereinafter mentioned in such manner as general orders shall direct : No title shall be accepted for registration as indefeasible unless it shall appear to be such as a court of equity would hold to be a valid market- able title. VI. Any question, doubt, or dispute as to any matter of Reference of title that may arise in the course of such investigation, tiifg*"""^ "^ may be referred to such judge of the Court of Chancery as the Lord Chancellor shall appoint to hear appKcations under this Act (c). (c) The Master of the Rolls is the judge appointed to hear these applications. See Se Drew's Estate, 1 L. E. Ch. 126; 2 L. E. Eq. 206. VII. If the title shall (either absolutely or subject as Particulars to aforesaid) appear to be good and marketable, the appli- to reg^Uar. cants shall furnish to the registrar, and he shall examine and settle for the purposes of registration : First, an exact description of the lands to be registered : Secondly, a statement of the persons, or classes or descriptions of persons, that are or may become entitled to such lands, and of the estates, powers, and interests that exist, or may arise or become vested in such persons respectively : Thirdly, a statement of the mortgages, charges, and in- cumbrances affecting such lands or any part thereof, and of the persons entitled thereto, both at law and in equity : 312 TRANSFER OF LAND ACT. 25 & 26 Vict. Copies of such description and statements when settled c, 53 g 7 — '■ — ' by the registrar shall be delivered back to the applicants : any objection to the same or to any part thereof, if not a;llowed by the registrar, shall, at the request of the applicants, be referred to and decided by the jvdge of the Court of Chancery. May be verified VIII. If required by the registrar, the description of the land furnished by the applicant shall be verified by his own oath or the oaths of persons having fuU. means of information. Claim to miaes jx. It shall be stated in the description of the land to and minerals. ^ be so furnished by the applicant whether he does or does not claim to be entitled to all or any part of the mines and minerals under such land, and unless. in such descrip- tion mines or minerals shall be expressly mentioned, they shall be deemed not to be included therein ; and if in such description mines or minerals shall be expressly mentioned, it shall be the duty of the registrar to have especial regard thereto in all subsequent inquiries to be made by him with respect to such lands, and in the investigation of the title thereto, and also in the service of such notices as hereinafter mentioned. Identity of X. The identity of the lands with the parcels or de- established, scriptions contained in the title deeds shall be fully established, and the registrar shall have power by such inquiries as he shall think fit to ascertain the accuracy of the description and the quantities and boundaries of the lands ; and, except in the case of incorporeal heredita- ments, d map or plan shall be made and deposited as part of the description. Notice of inten- XI. When such description has been settled, and the " ' registrar is satisfied with the title shown to the land, and with the result of the inquiries made, he shall require such notices as general orders (d) shall direct to be given - by public advertisement of his intention to register such land with an indefeasible title, at the expiration of a period not less than three months from the date of such advertisement. {d) See the Land Registry Orders issued 1st Oct. 1862. TRANSPEB OP LAND ACT. 313 XII. Such notice shall contain a copy of the descrip- 25 & 26 Yiot. tion of the land as proposed to be registered and the — ' °' "" names and descriptions of the applicants for registration : ^°fl*^°'^ °^ a copy of such notice shall be served on every adjoining occupier, and the person (if any) to whom such occupier pays rent, and on the lord of the manor in any case in which the lands are situate within or held of any manor, and also on every person not having already had notice of the application, who shall appear to have or claim any estate or interest in or right over the land, or any part thereof, and on such other persons as under the special circumstances of each case shall be deemed necessary. The notice shall also state the place, time, and manner at and in which any party may* be heard to show cause against such registration. XIII. At the time and place named in the notice, or at Cause may be such time and place as general orders shall direct, any rc°utra*iou!^' person may attend and show cause before the registrar, by affidavit or otherwise, against the registration, or claim that the same should be subject to any conditions or reservations ; the registrar may decide on such objection or claim, or may refer the same to the judge of the Court of Chancery: if the registrar decide, either party may appeal from his decision to the said Court, in manner hereinafter directed. XIV. If at the expiration of the time named in such Completion of notice there shall be no objection to the registration "^^^'^ applied for or none allowed, and no appeal pending, or, if any appeal shall be then pending, as soon as any objec- tion to such registration shall have been finally disallowed by the Court of Appeal, or the appeal withdrawn, the registrar shall complete such registration in manner following ; that is to say, First, the registrar shall enter in a book to be called " The Eegister of Estates with an indefeasible Title" such description of the estate as shall be finally approved of, and shall annex thereto any map or plan which shall be deemed necessary, and shall distinguish the estate so entered by a particular 314 TRANSFER OF LAND ACT. 25 & 26 Vict. c. 53, s. 14. Books may be inspected. As to excep- tion, &c., in record of title. number or numbers, and the entry sball refer to another book to be entitled " The Eecord of Title to Lands on the Eegistry : " Secondly, in the last-mentioned book, under the same number or numbers, shall be entered in concise terms an exact record of the existing estates, powers, and interests in the land so registered as aforesaid, and the names and descriptions of the persons or classes of persons that are or may become entitled thereto respectively : Thirdly, in a book to be entitled " The Register of Mortgages and Incumbrances" shall be entered under the same number or numbers an account of all the charges and incumbrances affecting the lands or any part thereof, or the estate or interest therein of any person named in the record of title. XV. Subject to such directions as may be given by general orders, the aforesaid books of registry may be inspected by the owners of the estates and interests, or of the mortgages and incumbrances recorded therein, or their respective solicitors or agents : no other person shall be permitted to inspect such books, except under an order of the Court of Chancery. XVI. In the record of title so made as aforesaid, it shall be competent for the registrar to specify or define any exception or qualification or condition affecting the whole of the interests so recorded, or any of them, and also to reserve expressly the right of any person or class of per- sons, and to describe any outstanding right or possibility of claim or interest subject to which such registration is made ; and if there shall be any disputed question of boundary between the applicants and any proprietor of adjoining land which shall not have been previously determined by any competent authority, it shall be com- petent for the parties or either of them to object in writing to the determination of such question by the registrar or by a judge of the Court of Chancery under this Act, and if any such objection shall be made, the registrar shall specify upon the record of title the existence of such dis- TRANSFER OF LAND ACT. 315 puted question of boundary and that the registration is 25 & 26 Viot. made subject thereto. . , . . XVII. If in making up, or afterwards continuing, such Any question record of title as aforesaid, any question shall arise as to conatrucUon of the true construction or legal validity or effect of any deed, a»y deed, &e., , , ^ to 06 rcterrcd mstrument, or -will, or as to the persons entitled, or the ty registrar to extent or nature of the estate, right, or interest, power or courf of'chan- authority of any person or class of persons, or the mode eery. in which any entry ought to be made in the record of title, or any doubtful or uncertain right or interest stated or dealt with by the registrar, it shall be competent for the registrar or for any of thfe parties interested, to refer the same to a judge of the Court of Chancery : if, on such reference, the judge, having regard to the parties appear- ing before him, shall think proper to decide the question, he shall have power to do so, or to direct any proceeding at law or in equity to be instituted for that purpose, or at his discretion and without deciding such question, to direct such particular form of entry to be made on the record of title as under the circumstances shall appear to be right (e). (e) See He Dreuii Estate, cited in note (c) to sect. 6, p. 311, ante. XVIII. In any case described in the preceding section, E«gistrar may the registrar may, at the request of the parties or at his „? tMe'trdeed own discretion, refer in the record of title to the deed, &0-. for estates will, or other instrument for the estates and interests of the parties, instead of setting out or describing the same : Provided always, that in every case in which such deed, will, or other instrument shall be so referred to, a copy thereof (which shall be verified and printed in the manner hereinafter directed vriith respect to deeds or instruments conveying, mortgaging, or charging the estate or interest of any proprietor on the register,) shall be delivered to the registrar by the parties applying for registration, and shall be preserved in the registry ; and for the purposes of any subsequent sale, mortgage, or contract for valuable consideration by any person appearing thereby to have any estate or interest in the land to which the record of title so made up shall relate, such copy shall be conclu- 316 TRANSFER OF LAND ACT. 25 & 26 Vict. e. 53, s. 19. sive evidence of the contents of the said deed, without the production of the original thereof. Persons en- XIX. The names of the persons entitled to the pro- cipal money, ceeds of any trust for sale of the lands so registered, or &c., nob to be ^o any principal money to be raised by virtue of any record of title change Under the trusts of any estate or term, shall not thinks fit ^''^'^ be entered in the register unless the registrar shall think fit so to do, but the estate of the trustees shall be defined and the purpose of the trust shortly described. Persons de- scribed in record of title •to be deemed as possessed of such estates, Informality not to preju- dice entry in teoord of title. Before regis- tration appli- cant and soli- citor or agent, &c , to make oath that all When an indefeasible Title shall arise. XX. Subject to any exception, qualification, or con- dition mentioned iu such record of title, and to any right or interest thereby reserved, and to any registered charges or incumbrances, and to such charges and inte- rests (if any) as are herein declared not to be incum- brances, the persons originally and from time to time named and described in such record of title as aforesaid shall, for the purposes of any sale, mortgage, or contract for valuable consideration by such persons respectively, be and be deemed to be as from the date of registering such record by the registrar, or from such time as shall be fixed by him therein, absolutely and indefeasibly pos- sessed of and entitled to such estates, rights, powers, and interests as shall be defined and expressed in such record against all persons, and free from all rights, interests, claims, and demands whatsoever, including any estate, claim, or interest of Her Majesty, her heirs and suc- cessors. XXI. No entry in such record of title as aforesaid shall be set aside or called in question as against any person who may afterwards become interested therein under any sale, mortgage, or contract for valuable consideration, by reason of any irregularity or informalty in the proceed- ings previous to the making thereof. XXII. Before the final registration of any land with an indefeasible title, the applicant and his solicitor or agent, or certificated conveyancer, and such other person or per- sons as the registrar shall require, shall make oath that TRANSFER OF LAND ACT. 317 all deeds, wills, and writings relating to the title of the 2S & C6 Vict. lands, or any part thereof, and all facts material to the — L,!^ '- title thereto, and all charges, liens, incumbrances, con- have\*°'' tracts, and dealings affecting the same or any part thereof, made known or giving any right as against the applicant, have to the ° ™^'° ™'^" fullest extent of their respective knowledge, information, and belief been made known to the registrar. XXIII. If at any time before registration the registrar Power to regis- is of opinion that any further or other evidence is neces- jegistration^^ sary, he may refuse to complete the registration until such further or other evidence shall have been produced. XXIV. The registrar shall, before taking any proceed- Power to regls- ing on an application for registration with an indefeasible security for title, require the applicant to give such security for costs '^^^• as general orders shall direct ; and it shall be lawful for the registrar and for the judge of the Court of Chancery respectively to order the costs and expenses properly incurred of any person properly appearing upon any pro- ceeding taken tinder this Act for the purpose of such registration to be paid by the applicant. Proceedings for Registration without an indefeasible Title. XXV. Application for registration without an inde- Registration feasible title may be made by any person, subject to the guarantee of following conditions : *''l^ "'^y ^« ° ^ , , made under 1. The applicant shall prove to the satisfaction of the certain con- registrar that he, or some person under whom he '*'°"^' claims, has been in the actual enjoyment or receipt of the rents and profits of the land as owner of the fee simple thereof, continuously and without inter- ruption, for a period of ten years immediately pre- ceding the time of such application : 2. The last deed or will (if any) under which the ap- plicant derives title shall be produced to the registrar : If the applicant claims as heir-at-law, evidence shall be given that the ancestor was in the enjoy- ment of the estate as owner thereof at the time of his decease : 318 TEANSFEB OF LAND ACT. 25 & 26 Viot. 3. The rules above enacted as to the description of the — — l!: L land to he registered shall apply, and the registrai- shall adopt the same course, and take the same pro- ceedings, for the purpose of ascertaining the accuracy of the description of the lands and of the boundaries thereof, as are hereinbefore directed with respect to registration with an indefeasible title : 4. A statutory declaration shall be made by the appli- cant and his soKcitor or agent, or certificated convey- ancer, and, if necessary, any other person whose evidence may be deemed necessary by the registrar, that they respectively believe the applicant to be, either alone or jointly with other persons to be named and described, (and subject to any qualifi- cation, condition, or exception which shall be stated,) well entitled to the fee simple of the lands proposed to be registered : 5. If the land be registered, the registrar shall, in the record of title, define the time, event, or circum- stances from and after which an indefeasible title shall attach : when the time has arrived, the event happened, or the defined circumstances exist, a judge of the Court of Chancery may, upon proof thereof, and if there be no other objection, after such and the like notices as are hereinbefore required in case of an application for registration of a title as indefea- sible shall have been duly given, direct a transfer of the land to the register of estates with an indefeasible title (/), and thereupon the registrar shall make up a proper record of the title to such land, and the appli- cant and other persons named in such record of title shall have the same estates, rights, and privileges as if the land had been registered with an indefeasible title : 6. Subject to the enactments herein contained, the registration of any person as owner of land without an indefeasible title shall not prejudice any estate, right, or interest created or existing at or before the date of such registration. (/) The applioatioa eliould be by summons in chambers, see sect. 146. TKANSFEK OF LAND ACT. 819 -r, ■ ■ r-r , , ■, -r^ , 25 & 26 Viot. registration of Leasehold Estates. o. 53, s. 26. XXVI. Leasehold estates, namely, lands demised for Leasehold es- terms of years of which fifty years are still to come and regUteed in unexpired, or demised for lives or for years determinable l^e manner 5) A fpppn old with lives, and in which two lives at least are still subsist- landa. ing, may be registered with an indefeasible title in a similar manner and subject to the same or similar direc- tions and rules of proceeding as are herein contained with respect to freehold lands : such application may be made by persons having such estates and interests in the lease- hold estates as are similar or correspondent to the estates and interests of the persons entitled to apply for the registry of freehold land : no indefeasible title shall, in the case of a leasehold, extend to the title of the lessor or grantor of the same : such farther directions shall be observed with regard to leasehold estates as shall be given from time to time by general orders. General Provisions as to. Title. XXVII. The following charges and liabilities shall not Charges and be deemed incumbrances within the meaning of this Act ; to to deemed namely, incumbrances. 1 . Land tax, succession duty, tithe r^ntcharges, rents payable to the Crown: . " 2. Public rights of way, liability to repair highways by reason of tenure,' rights of way, watercourses, and rights of water, and other easements or servitudes, rights of common, manorial rights and franchises : 3. Leases or agreements for leases not exceeding twenty-one years, where there is an actual occupatioii under the same : Nevertheless, where any such charges or liabilities appear or are discovered in the course of proceeding prior to registration, the registrar shall, in such manner as he shall think fit, notice in the register the existence of such charges or liabilities. XXVIII. Land entered on the register may, at the Land may be option of the proprietor, be registered as one estate or as onf^estete.*^ 320 TRANSFER OF LAND ACT. 25 & 26 Vict, separate estates ; but the particulars of each estate, and any — — — — '- transactions relating thereto, shall, subject to any regula- tions to the contrary that may be made by general order, form a separate record in the register, distinguished by a separate number, or in such other manner as the registrar may determine. Registered land XXIX. If land registered or proposed to be registered to^CT^u con- °^ ^^y P^'^t thereof, be subject, or be agreed to be made ditiona, &o. subject, to any condition, as, for example, that it shall not be built upon, or used in a particular manner, or any other legal condition, notice thereof shall be entered in the " record of title," and any transfer, demise, or charge of such land shall be subject to such condition ; but it shall be lawful for the Court of Chancery to discharge, alter, or modify any such condition upon hearing all parties who may be entitled to claim under or against the same. Notice of regis- XXX. So soon as any land is registered, if there shall toTe°°iv^n*b'^ appear to be any charge or incumbrance affecting such registrar to land or any part thereof which is entered in the register of incumbrances (the owner of which has not had notice of the application), notice of such registration shall be immediately given by the registrar to the person entitled or interested in such charge or incumbrance. Judicial deck- XXXI; If &nj judicial declaration of the title (g) to any land shall be made by the Court of Chancery under any Act which may be passed in the present session for the purpose of enabling persons having interests in land to obtain a judicial declaration of their title to the same, so as to enable them to make an indefeasible title to per- sons claiming under them, as purchasers for valuable consideration, the land as to which any such declaration may be made may, at the option of the person obtaining the same, be entered upon the register of estates with an indefeasible title under this Act when and so soon as the time allowed for appealing under any such Act as last aforesaid shall have expired, or (if any appeal shall be pfoseciited) when and so soon as any such declaration shall be affirmed by the last Court of Appeal, or the interested person, ration of title. TEANSFEK OF LAND ACT. 321 appeal withdrawn ; and the title to such land, as the same 25 & -20 viot. shall be declared by the Court, shall in such case be "' ^ ' "' ^'' entered upon the record of title to lands on the registry under this Act, and such land shall thenceforth be sub- ject to the provisions of this Act in the same manner in all respects as if the registration thereof had been made by virtue of proceedings duly taken for the registration of an indefeasible title thereto under this Act. {g) See, now, sect. 21 of the Declaration of Title Act, p. 327, post. XXXII. From and after the registration of any land. Every estate, every estate or interest, use, trust, mortgage, charge, lien, *"'•'*.'> ^ «"■ •' ,,,,..° . tsred in record right, or title granted, declared, arising, becoming vested of title after or in any manner created, or coming into existence in, to, l^f^ ^ """ ° upon, out of, or affecting such land or any part thereof (except as herein excepted), shall be entered, described, or noticed in the record of title or register of incum- brances to be so kept as aforesaid. XXXIII. Subject to the enactments herein contained. Estates of the estates and interests of all registered proprietors shall priet'rs^sub"ect remain subject to the existing law, and may be dealt with, to existing assured, devised, and transmitted by descent or repre- sentation according to the ordinary rules of law and equity. XXXIV. The registered proprietor of land may, with Power to regia- the consent of all persons appearing by the register '^"''^P^^P"^] to be interested in such land, remove the same from the sent of persons register, and thereupon the register shall as respects such doaeregis'ter. land be deemed to be closed. Caveat against Entry of Land on Register. XXXV. Any person having or claiming such an inte- Caveats may rest in land as entitles him to object to any disposition ^^^ |°^^sed with thereof being made without his consent may lodge a the effect that caveat with the registrar, to the effect that the cautioner entS to^ is entitled to notice of any application that may be made notice, for registration of such land, and appointing a place within Great Britain for the service of such notice. 322 TRANSFER OF LAND ACT. 25 & 26 Vict, c. 53, s. 36. Caveat to be supported by affidavit. How notice to be served. After caveat, no registration to be made of lands till ten days after notice. Compensation if caveat lodged withoat rea- sonable cause. Caveat not to prejudice title of any' person. XXXVI. The caveat shall be supported by an affidavit, stating the nature of the interest of the cautioner, and such other matters as may be required by the registrar. XXXVII. Notice may be served on the cautioner either personally or by sending it through the post to the address stated in the caveat. XXXVIII. After a caveat has been lodged, no regis- tration shall be made of any lands to which such caveat refers until notice has been served on the cautioner to appear and oppose such registration, and ten days have expired since the date of the service of such notice, or until the cautioner has entered an appearance, which may first happen. XXXIX. If any person wrongfully and without reason- able cause lodges a caveat with the registrar, he shall be liable to make to any person who may have sustained damage by the lodging of sucB caveat such compen- sation as a judge of the Court of Chancery shall deem just {h). (h) For mode of application see note (/), p. 318, and note (J), infra. XL. A caveat lodged in pursuance of this Act shall not prejudice the claim or title of any person, and shall have no effect whatever, except to entitle the cautioner to receive such notice as is hereinbefore mentioned of any application made for registration of land. Sales of land may be made by the Court, on application by owner. Sale with inde- feasible title. Application by summons. Haet II. SIMPLIFICATION OF TITLE BY JUDICIAL SALES. Sales hy Court of Chancery. XLI. Sales may be made (i) by the Court of Chancery of land with an indefeasible title, upon the application, by petition or otherwise {k), as general orders may direct, of any of the persons who are hereinbefore empowered to apply for registration of title (Z). («) It seems that the Court has no jurisdiction under this section, except in cases where it lias otherwise jurisdiction to order a sale, e.g., under the Settled Estates Act, or a private act, Bradish v. EUames, 10 Jur. N. S. 251. (i) Until any general order is made as here provided, applications under the Act are to be made by summons in chambers, sect. 134, p. 338, post, {I) See sect. 4, ante, p. 310, and note thereto. TRANSFER OF LAND ACT. 323 XLIT. Such application shall be served on such persons 25 & 26 Viot. as the Court shall think fit, before a preliminary order is "• ^^> °- ^^- made (m). Application to be served on (m) For form of order, see He Mlames, IS W. R. 170 ; and as to the mode parties, of applying for it, see note (»), infra. XLIII. By its preliminary order or orders, the Court Court shall shall provide for the examination of the title to the land, examfnation of and the ascertainment of a correct description thereof, title, &c., and shall also make such inquiries as to the parties order fm^alef interested, either as incumbrancers, owners, or otherwise, and direct such notices to be given as are hereinbefore directed (n) on the occasion of application to the registrar for registration of an indefeasible title, and shall also direct such other notices, if any, to be given as it thinks necessary to enable it to form a judgment as to the propriety of a sale, and shall hear by themselves, their counsel or agents, any persons interested in- such land who may apply (o) to them to be heard, and shall, upon the conclusion of such inquiries, and after hearing such parties, if any, as aforesaid, make such order as to the Sale of such lands as it thinks just. («) For directions as to advertisements, see sects. 11, 12, ante, p. 312 ; and Land Registry Orders, 1 Oct. 1862. If the preliminary order is considei-ed insufficient, further special directions should be applied for iy petition, Se Ellames, 1. o. ; see note (c), swpra. (o) Where six adverse claimants came in in consequence of advertisements, Advertise- V.-C. Malina, on summons by the applicant, fixed a period (about seven weeks) ment for vrithin which claimants must bring in evidence of title ; any claimant showing adverse a probable case to have proper opportunity of trying his right, otherwise an order claimants, for sale with indefeasible title to be made, Bradish v. Ellames, 15 W. R. 380. XLIV. Before making any order the Court may require Applicant to the applicant to give security for costs. forcosts""*^ XLV. The purchase money on any sale made by the Purchase- Court shaU be paid as the Court may direct; and the ^^°^«r *° J^«^ Court may make an order vesting the land in the pur- bank as Court chaser, subject or not, as the case may require, to the ™*^ incumbrances specified in such order (p), and subject in all cases to such charges or interests as may be subsisting thereon, and are hereinbefore declared not to be incum- brances within the meaning of this Act. {p) As to what charges and liabilities are not incumbrances within the Act, see sect. 27, p. 319, ante. 1 2 324 TEANSFEB OF LAND ACT. 25 & 26 Yiot. XLVI. The payment of the purchase money in manner -^ — ~ — '- directed by the Court shall exonerate the purchaser from to exoSe"' all liability whatsoever with respect to the same. purchaser from XL VII. Any vesting Order by the Court shall hear the Vestin^order ^^^^ stamp as if it Were a conveyance made by an to be stamped, ordinarj'' vendor. Applicant for XLVIII. Before any vesting order is made as aforesaid, soiidtor may the applicant for the sale or his solicitor may be person- be examined ally examined by the Court, or required to give satis- before vesting factory evidence as to the fact that all settlements, deeds, order made, -wills, and insti'uments of title, and all charges and incum- brances affecting the title to the land which is the subject of the application, and all facts material to such title, have been disclosed, and that there is not to their or either of their knowledge, information, or belief any deed, charge, or incumbrance affecting the title to the said land, nor any fact material to the said title, not fully and fairly disclosed as aforesaid : the Court may require any person propos- ing to make an affidavit in pursuance of this section to state in his affidavit what means he has had of becoming acquainted with the several matters referred to in this section, and if the Court is of opinion that any further or other evidence is necessary, it shall not make such vesting order until such further or other evidence is produced. Where sales XLIX. Where any sale of the fee simple of land is are made under , , , , , , , , <. , ^ <. ^, 20 Vict. 0. 120, about to be made under the order of the Court oi Chan- mak2°orde™'^^ cery, in pursuance of an Act passed in the twentieth year under this Act. of the reign of Her present Majesty, chapter one hundred and twenty, and intituled " An Act to facilitate Sales and Leases of Settled'Estates," or of any Act amending the same, or in pursuance of any other order of the Court, the Court of Chancery may, on the application of any parties interested in such sale, take such steps as are hereinbefore directed, and, if satisfied of the propriety of so doing, may make an order directing the land to be put up for sale with an indefeasible title, and also an order vesting the land in a purchaser, and any such vesting order shall have the same effect as if it had been made on an application to the Court under this part of this Act. TRANSFEE OF LAND ACT. 325 L. Every vesting order made by the Court of Chancery 25 & 26 Vict. in pursuance of this part of this Act shall confer on the "' ' ^' ^' person in -whom the land is vested an estate in fee simple, Ja^^ahr^^^ together with all rights, privileges, and appurtenances perao? in whom therewith enjoyed, or reputed as belonging or appurtenant aTestatrin^fee thereto, subject to the incumbrances, exceptions, or quali- siiiple, with fications, if any, appearing in the order, and subject also viieges, &c. to such charges and interests, if any, as are hereinbefore declared not to be incumbrances, but free from all other estates, rights, incumbrances (q), and interests whatsoever, including all estates, interests, and claims of Her Majesty, her heirs and successors. (2) See note ( p), supra. LI. AVhere upon an application being made for a sale Court may by the Court of Chancery it is proposed that a good title "^^ Testing " should be shown to the purchaser for a limited period order, where onlj', the Court may make a qualified vesting order, f,,,. a limited declaring by a statement contained in such order, or by P^""'^ °°'y' endorsement thereon, or by such other manner as the Court thinks fit, that the title is to be deemed to com- mence from the date of some specified instrument or at or on some specified time or event. LII. A qualified vesting order shall not affect or pre- Effect of qua- judice any estate, title, or interest in or to sucK land J^'^^^^^^''®^''"'^ created or arising prior to the date at which the title is stated to commence, but, save as aforesaid, shall have the same effect as an absolute vesting order. LIII. The Court of Chancery may, in the course of any Court of Chan- proceedings relating to land wherein a vesting order is ''„'ire™roduc- sought to be obtained, require all persons having any tion of deeds, deeds or evidences of title relating to such land, who are ' bound by law so to do, to produce the same to the Court, upon such terms and subject to such conditions as the Court may think just (r). (}•) See notes p. 75, ante, as to privileged documents. LIV. The Court of Chancery shall determine the rights Distribution 1 .... i? J.1 1 ±'±1 J i ■ of monies paid and priorities of the several persons entitled to or in- jntg tank, terested in any money payable under this part of this Act, 326 TEANSFEE OF LAND ACT. 25 & 26 Viet, and shall distribute the same among such persons in ac- ^~ — LJ L cordance with such rights and priorities. As to disposal LV. Where any money is payable in pursuance of this immediatdy -A-ct, and is not immediately distributable, or the parties distributable, entitled thereto cannot be ascertained, or where from any other cause the Court thinks it expedient for the protec- tion of the rights of the parties interested therein, it may order such money to be placed to such account as the Court directs, in trust to attend the orders of the Court, and it may by its order declare the trusts affecting such money so far as it has ascertained the same, or state the facts found by it in relation to the rights and interests th'erein, and generally the Court may make such orders with respect to any such money, and the investment or application thereof, or the payment thereof out of court, as the circumstances of the case require. As to disposal LVI. When the Court of Chancery has made a vesting vesting^order ^^^^'^ of l^'id in pursuance of this part of this Act, all such made. deeds and evidences of title delivered to the Court as relate exclusively to the land, and which the purchaser is entitled to, shall be delivered to him ; and all other deeds and evi- dences of title delivered to the Court relating to the land or to any part thereof shall be returned to the parties entitled to the custody thereof, but previously to the same respectively being so delivered or returned they shall he stamped or otherwise marked in such manner as to give notice to any person inspecting such deeds or evidences of title of the proceedings taken by the Court in relation to the land or any portion of the land comprised in such deeds. Vesting order LVII. Every such vesting order may direct the registrar on register."^ "^ t° enter the name of the person entitled on the register as the proprietor of the land with an indefeasible or qualified title, as the case may be, and in such case the order shall Contents of state the name and description of the person entitled, and vesting order, describe the lands to be registered, with the addition of the incumbrances, if any, affecting such lands, and such other matters as the Court thinks fit to insert therein, including, in the case of an applicant entitled only to a qualified TRANSFER OF LAND ACT. 327 vesting order, a statement of the time or event at or on 25 & 26 Viot. which the title, as registered, is to commence. '" ' "' LVIII. The registration of any person as first proprietor Eegistratiou of land with a qualified title shall not afi'ect or prejudice ytig noUo' ° the right of any person claiming any estate, title, or in- ^^^°' P™"-' terest created or arising prior to the time or event at or on which the title is stated on the register to commence, but, save as aforesaid, shall have the same effect as registration with an indefeasible title. LIX. Where upon the first registration of the land Entry of die- under a vesting order notice of any incumbrance affecting eumlranoe? such land has been eniered on the register, the registrar shall, on proof of the discharge of such incumbrance, enter a memorandum of such discharge on the register, and upon such entry being made the incumbrance shall be deemed to be discharged. LX. Where any order has been made by the Court of Compensatida Chancery vesting land in a purchaser, or where any per- ag|rieTed! son has been registered with an indefeasible title under a vesting order, any person aggrieved by such order or registration may apply to the Court of Chancery to be reimbursed for any injury he may have sustained, out of any purchase money that may be remaining in court. LXI. In every proceeding under this Act the Court As to costs and shall have -full power and discretion as to the giving or •'^P^^^^^- withholding costs and expenses, and as to the persons by whom and the funds out of which the same shall in the first instance or ultimately be paid, repaid, and borne, and may direct the same to be paid to or apportioned among such persons as it sees fit. LXII. The Lord Chancellor may from time to time as- -^^^ *? "f'fe"" „ , . ", 1 ■ , ^ ™6'^* °f duties. sign the duties by this part of this Act vested m the Court of Chancery to any particular judge or judges of that Court, and may appoint such new or additional clerk or clerks as to him may seem necessary for enabling such judge or judges duly to execute the duties imposed on it, and every such additional clerk shaU receive out of the Suitors' Fee Fund such salary as the Lord Chancellor may think proper. 528 TBANSFER OF LAND ACT. 25 k 26 ¥ict. c. 53,68.63-77. Paet III. ConTeyaoce, [Sects. 63 — 67 profide by what dispositions and forms registered land may &c., by means be conveyed. By sects. 68 — 73 the Registrar is, on request, to deliver to the of land certi- owner of registered land a land certificate, for the purpose of manifesting the fioate. exact nature of his estate and interest, and such oertificatft may be deposited, &o., instead of titJe-deeds. Sects. 74—77 provide for the entry of dealings with the land on the register.] Where estate. LXXVIII. Where the estate or interest of a registered any person ly proprietor is transmitted on his death to any other person descent such {,„ ,jescent, will, or representation, such other person shall person to be "' » > jr > x registered. be entered on the register in the place of the deceased pro- prietor: if such person cannot be ascertained, or there shall be any doubt, dispute, or litigation touching the ownership of the estate of such deceased proprietor, it shall be lawful for the Court of Chanceiy to appoint a person to be registered in the room of such deceased pro- prietor as the representative of such estate or interest. [Sects. 79 — 88 provide for the entry of wills, bankruptcies, and dispositions on the register.] Part IV. GENEEAL PROVISIONS TO FACILITATE REGISTRATION. Money charge LXXXIX. If on the examination of any title it shall &c., may be ' appear that the land or any part of it is subject to any referred to money charge or incumbrance, the ownership of which is judge at cbam- ' . ber«. not ascertained, or the right to which is doubtful or un- certain, or to any doubtful or uncertain right or claim which may be estimated or compensated by money, and does not involve a right to the land itself otherwise than as a security for money, the case may, at the request of the applicant for registration, be referred to a j iidge of the Court of Chancery sitting in chambers for the purpose of determining whether such right or claim and the costs of any party entitled by virtue thereof can be justly provided for by payment of money into Court, and if so to fix the sum to be so paid in, and direct the investment and appli- cation of the interest thereof; and after such payment shall have been made the land and the title thereto shall be TRANSFER OF LAND ACT. 32f) ' ■wholly discharged from such right, claim, charge, or 25 & 26 Vict, incumbrance as fully as if the same had never existed. — ' °' "' XC. Where any part of the money arising from the sale i'^i^rmoley of a registered estate is not immediately distributable, or not distribu- the persons entitled thereto cannot be fully ascertained, it b* paid into" shall be competent for one of the judges of the Court of C°"i' "^ Oban- Chancery, on any application for that purpose made with the concurrence of the registrar, to direct any sum of money arising from such sale to be paid into the Court of Chancery, or otherwise invested, and to declare the account or purpose to or for which such money is to be transferred or holden, and afterwardg to make all such orders touching such money, and the investment, application, and distribu- tion thereof, as the circumstances of the case may require. XCI. "When an estate is entered on the register, Deeds to be whether with or without an indefeasible title, all such ^**"P™- deeds and evidences of title as shall be produced to the registrar, under any of the provisions aforesaid, shall be stamped or endorsed in such a manner, under the direc- tion of the registrar, as to give notice to any person to whom such deeds or instruments may be afterwards produced that the land, or some portion of the land comprised therein, has been registered under this Act. XCII. If in any proceeding under this Act any question J»Jge may dc- shall arise respecting the priority of any charges or incum- of priority of brances, claims or interests, it shall be competent to the incumbrances, registrar to report the same to a judge of the Court of Chancery, who shall have power to summon all parties interested to attend him either in court or at chambers, and to decide all questions touching the priority and rela- tive rights of the parties, as fully as if they were parties to a suit instituted for the purpose. As to Restraint of Conveyance. XpIII. Where the registered proprietor of any land or As to restrio- charge is desirous for his own sake, or at the request of y'^yanj", &"', some person beneficially interested in such land or charge, ofland. to place restrictions on transferring or charging such land or charge, such proprietor may, upon application to the 330 TRANSFER OF LAND ACT. 53, !i. 93 25 & 26 Vict, registrar, direct that no transfer shall be made of or charge created on such land or charge, unless the follow- ing things, or such of them as he may prescribe, are done ; (that is to say,) Unless notice of any application for a transfer or creation of a charge is transmittted by post to such address as he may specify to the registrar : Unless the consent of some person or persons, to be named by such proprietor, is given to the transfer or creation of a charge : Unless some such other matter or thing is done as may be required by the applicant and approved by the registrar. XCIV. The registrar shall thereupon make a note of such directions on the record of title of such proprietor, or otherwise as he shall think fit, and no transfer shall be made or charge created except in conformity with such directions ; and any such directions may at any time be withdrawn or modified at the instance of all the persons for the time being appearing to the registrar to be inte- rested in such directions, and shall also be subject to be set aside by the order of a judge of the Court of Chancery. XCV. For the purpose of authorizing or compelling a transfer to be made of any registered land or charge, the Court of Chancery may exercise all such powers as are vested in it by the Trustee Act, 1850, or by any Act amending the same, in relation to transfers of stock (o). (o) See note {v}, p. 82, and (y), p. 83, ante, and sect. 20 of the Trustee Act, 1850, p. 89, wnte. Registrar to make a note of such restric- tions. Court of Chan- cery may exer- cise powers of 13 & 14 Vict. 0. 60. Vesting orders. Caution. Person inter- XCVI. Any person interested under an agreement, or caution mth ^^ otherwise howsoever, in any land or charge registered in the name of any other person, may lodge a caveat with the registrar to the effect that no disposition of such land or charge be made until notice has been served upon the cautioner. XCVII. The caveat shall be supported by an affidavit made by the cautioner or his agent, in such form as the registrar shall direct, stating the nature of the interest of registrar. Caution to be supported by affidavit. TRANSFER OF LAND ACT. 331 tlie cautioner, and such other matters as may be required 26 & 26 Vict. by the registrar. °- °^' ^- ^^- XCVIII. After any such caveat has been lodged in Statutory dis- , J. 1 J 1 ii • , 1 11 , position of land respect oi any land or charge, the registrar shall not not to be regis- register any disposition thereof until he has served notice *^'!^'^ "°^'^ , ° . . . , . notice served on the cautioner, warning him that his caveat will cease on cautioner. to have any effect after the expiration of twenty-one days next ensuing the date of such notice ; and after the ex- piration of such time as aforesaid the caveat shall cease, unless an order to the contrary is made by the Court of Chancery, and upon the caveat so ceasing the land or charge shall be dealt with in the same manner as if no caveat had been lodged. XCIX. If before the expii-ation of the said period of Cautioner to , , T J 1 , • ,1 gi™ security twenty-one days the cautioner, or some other person on against damage his behalf, appears before the registrar, and enters into a sustained by bond, with sufficient security, conditioned to indemnify sition of pro- every person against any damage that may be sustained by ^^^ ^' reason of any disposition of the property being delayed, the Court of Chancery inay thereupon, if it thinks fit so to do, make an order on the registrar requiring him to delay registering any disposition of the property for such further period as is mentioned in the order. C. If any person lodges a caveat with the registrar, he Compensation shall be liable to make, to any person who may have sus- caution without tained damage by the lodging of such caveat, such compen- reasonable sation as a judge of the Court of Chancery shall deem just. Injunction. CI. The Court of Chancery may, without prejudice to ^"""^ °^ C""^"- ,^ , eery may issue the exercise of any other power of the (Court, upon the order restrain- application of any person interested in any registered ^"^j^^'^P"^^*""' land made in such manner as the Court directs, issue an order restraining for a time, or until the occurrence of an event to be named in such order, or generally until further order, any disposition of any land or charge. CII The Court mav make or refuse any such order. Court of Chan- . ' , . , eery may annex and annex thereto any terms or conditions it may think terms, &o., fit, and discharge such order when granted, with or with- *' ™* °''^^''- 332 TRANSFER OF LAND ACT. 25 & 26 Viot. out costs, and generally act in the premises in such man- c. 43, o. 102. .1 • i- r ^1 • J ii, • * ner as the justice of the case requires ; and the registrar, without being made a party to the proceedings, upon being served with such order or an official copy thereof, shall obey the same. Jurisdiction CIII. Nothing contained in this Act shall take away or equity. affect the existing jurisdiction of Courts of Equity, on the ground of actual fraud. Acts relating CIV. The provisions of the several Acts of Parliament Middlesex and ^low in force relating to the registries which have been York not to established in the counties of Middlesex and York shall apply to land i . , , ^ ■, ■ • i on register cease to be applicable to any land situate in the said nn^erthis counties respectively, so soon as the same land has been j)ut upon the register under the provisions of this Act, and whilst it remains thereon. Penalty on Fraud, dc. [By sects. 105 and 106, a person making a false statement in proceedings under the Act is to \>e deemed guilty of a misdemeanor, and to be punishable accordingly.] Answers to CVII. Nothing in this Act contained shall entitle any bUls, questions, , j i i i i j • i &c., notadmis- person to reiuse to make a complete discovery by answer sibie in evi- ^Q j^jjy ]j[[[ Jq equity, or to answer any question or inter- rogatory in any civil proceeding, in any Court of Law or Equity, or in the Court of Bankruptcy; but no answer to any such bill, question, or interrogatory shall be admissi- ble in evidence against such person in any criminal pro- ceeding. [Sects. 108 — lis relate to the constitution of the office of Land Registry and the appointment of the Registrar and bis assistants, &c.] General Provisions. Crown, &c., CXIV. With respect to lands vested in Her Majesty, her heirs or successors, either in right of the Crown or of the duchy of Lancaster or otherwise, or vested in any public officer or body in trust for the public service, the public officer or body having the management thereof, if any, or, if none, then such person as Her Majesty, her heirs or successors, shall by writing under her sign manual appoint, may and shall (whether the land be vested in him TRANSFER OF LAND ACT. 333 or them or not) represent the owner of such lands for all 25 & 26 Vict, the purposes of this Act, and shall he entitled to such °' ^^' °' "*' notices, and may make and enter any such application or caveat, and do all such other acts, as any owner of lands for an estate in fee simple is entitled to receive, make, enter, or do under the provisions of this Act ; and with respect to lands belonging to the duchy of Cornwall, such person as the Duke of Cornwall for the time being, or as the personage for the time being entitled to the revenues and possessions of the duchy of Cornwall, shall in writing appoint, may and shall act as and represent the owner of such lands for all the pUl-poses of this Act, and shall be entitled to receive such notices, and may make and enter any such application or caveat, and do all such other acts as any owner of lands for an estate in fee simple is entitled to receive, make, enter, or do under the provisions of this Act ; and it shall be sufficient that any oaths, affidavits, or declarations required by this Act be taken or made by any such public officer, body, or person as in this section men- tioned, or by any person nominated in writing by any such public officer, body, or person, and in either case, without any solicitor joining in any affidavit or declaration ; and it shall not be necessary for any such public officer, body, or person as in this section mentioned to enter into any such bond as in this Act mentioned, nor to give any security for costs, nor shall they or any of them be liable in damages except for any acts done wrongfully and without reasonable cause. CXV. Where any married woman is desirous of making Provision a$ to any application, giving any consent, or doing any act, or ^''j^^i'"^*""'^ . becoming party to any proceeding under this Act, her ried women, husband's concurrence shall be required, and she shall be examined apart from her husband touching her knowledge of the nature and effect of the application or other act, and it shall be ascertained that she is acting freely and volun- tarily ; and such examination may be taken by the Court Examinations or by such persons as are authorized to take acknowledg- ^^^ ^^^1^ ments of deeds by married women under the Act of the Wm. 4, o. 74. third and fourth years of King William the Fourth, 334 TRANSFER OF LAND ACT. 25 & 26 Viot. 0. 63, B. 116. ProTision for other persons under dis- ability. Registrars, &o., may ad- minister oaths. Aa to loss of land certifi- cate. chapter seventy-four, " for the Abolition of Fines and Eecoveries, and for the Substitution of more simple Modes of Assurance;" and the form and manner in which such examination is to be certified to the Court shall be determined by the general rules and orders to be made under this Act : a married woman entitled to her separate use, and not restrained from anticipation, shall for the purposes of this Act be deemed a feme sole. CXVI. Where any person who (if not under disability) might have made any application, given any consent, done any act, or been party to any proceeding under this Act, is a minor, idiot, or lunatic, the guardian or committee of the estate respectively of such person may make such applications, give such consents, do such acts, and be party to such proceedings, as such person respectively, if free from disability, might have made, given, done, or been party to, and shall otherwise represent such person for the purposes of this Act; where there is no guardian or com- mittee of the estate of any such person as aforesaid, being infant, idiot, or lunatic, or where any person the commit- tee of whose estates if he were idiot or lunatic would be authorized to act for and represent such person under this Act is of unsound mind or incapable of managing his affairs, but has not been found idiot or lunatic under an inquisition, it shall be lawful for the Court of Chancery to appoint a guardian of such person for the purpose of any proceedings under this Act, and from time to time to change such guardian ; and where the Court sees fit it may appoint a person to act a,s the next friend of a married woman for the purpose of any proceeding under this Act, and from time to time remove or change such next friend. CXVII. The registrars and assistant registrars are hereby empowered to administer oaths and take statutory declarations in lieu of oaths in all proceedings under this Act. CXVIII. If any land certificate is lost or destroyed, the registrar may, upon being satisfied of the fact of such loss or destruction, grant a new land certificate in the place TRANSFER OF LAND ACT. 335 of the former one, and shall state upon the face thereof 25 & 26 Vict, that it is granted in substitution for the former certificate; '" hut no such new certificate shall be of any avail against any person who may have already derived title under the former certificate. CXIX. The registrar may, upon the delivery up to him Granting of of a land certificate, grant a new certificate in the place of "ates.^ the one delivered up. CXX. The Lord Chancellor, with the advice and assist- Lord Chancel- ance of any two of the judges of the Court of Chancery,\uies and shall from time to time make such general rules and orders orders for oar- . . , . , . rying into effect as he may see fit for carrying the purposes oi this Act into purposes of efi'ect, and for regulating the times, form and mode of procedure, and generally the practice of the Court in respect of the matters of this Act, and such rules and orders may from time to time be rescinded or altered by the like authority; and all such rules and orders shall take effect as general orders of the CoiU't. CXXI. The Lord Chancellor may from time to time As to assign- assign the duties vested in the Court of Chancery in and appoint- relation to the matters of this Act to any particular judge ™o°*i°^*j^i^' or judges of that Court, and may appoint such new or additional clerk or clerks as to him may seem necessary for enabling such judge or judges duly to execute such duties ; and every such additonal clerk shall receive out of the Suitors' Fee Fund such salary as the Lord Chancellor may think proper. CXXII. The registrar shall, with the sanction of the Forms to be ° , printed and Lord Chancellor, frame, and cause to be printed and pro- promulgated. mulgated, as he sees occasion, forms of applications, and directions indicating the particulars of the information to be furnished when any application is made to him under this Act, and also forms of instruments, and such other forms and directions as he may deem requisite or expedient for facilitating proceedings under this Act. CXXIII. A seal shaU be prepared for the Land Registry Seal of land Office ; and any instrument purporting to be sealed with ^^^^ ^^ ° °^'- such seal shall be admissible in evidence. CXXIV. A place of address shall be given to the regis- Addresses of 336 TRANSFEE OF LAND ACT. 25 & 26 Viot. trar for every person in England whose name is entered — — '— on the register of title as proprietor of land, of a charge, proprietors to , . ^. , , . . ,• be registered, or as cautioner, or as entitled to receive any notice, or m any other character. Registrar may CXXV. The registrar shall, with the sanction and under iranie general . orders. the direction of the Lord Chancellor, from time to time frame general orders for regulating the manner of regis- tering land, the examination of titles, the transfer, trans- mission, and withdrawal of official notes and caveats, the keeping the registers of title and assurances, and generally for the due execution of the provisions of this Act, and for giving effect to the objects thereof, have effeoTas" CXXVI. Any general orders so made by the registrar Act of Par- with such Sanction as aforesaid shall be of the same force " " ■ as if enacted by Parliament : they may from time to time be rescinded, added to, amended, or altered in like manner. Fees. Registrar to CXXVII. The registrar shall, with the sanction of the amount of fees. Lord Chancellor, determine the amount of payments to be made with respect to the following matters : The first entry on the register of title of land and charges on land: The registration of transfers and transmissions of land and charges, and all other matters to be done by the registrar : The registration of instruments and the withdrawal of such instruments : And the registrar may, with the like sanction, from time to time alter any amounts so determined, but all payments mentioned in this section shall be paid into the receipt of Her Majesty's Exchequer, and carried to the account of the Consolidated Fund of the United Kingdom of Great Britain and Ireland. Matters to be CXXVIII. In determining the amount of fees payable determining in respect of entries on the register of title under this Act, amount of fees, regard shall be had to the following matters : 1. In the case of the registration of land or of any TRANSFER OF LAND ACT. 337 transfer of land on the occasion of a sale,— to the 25 & 26 Vict, value of the land as determined hy the amount of _L_1_1__L purchase money: 2, In the case of the registration of land, or of any transfer of land not upon a sale, — to the value of the land, to be ascertained in such manner as may be directed by general order : 3. In the case of registration of a charge, or of any transfer of a charge, — ^to the amount of such charge : Subject, nevertheless, to the qualifications following : A maximum amount shall be fixed, and in cases where the value of any Iftnd or the amount of any charge exceeds such maximum, fees may be made payable in respect of such excess on such a reduced scale as may be thought expedient : Where increased labour is thrown on the registrar by reason of the severance of the parcels of an estate, the entry of a new description of parcels, or of any other matter, an increased sum may be charged. CXXIX. The following rules shall be observed with Collection of respect to the collection of fees : 1. All fees payable in respect of registration shall be received by stamps denoting the amount of fees pay- able, and not in money : 2. When any fee is payable in respect of a document, a stamp denoting the amount of fee shall be affixed to such document : 8. The Commissioners of Inland Revenue shall provide everything that is necessary for the collection of the monies hereby directed to be paid by stamps. CXXX. The several Acts for the time being in force stamp Acts relating to stamps under the care or management of the g^^pf under Commissioners of Inland Revenue shall apply to the this Act. stamps to be provided in pursuance of this Act, and to any document on which such stamps may be impressed, and to collecting and securing the sums of money denoted by stamps, and to preventing, detecting, and punishing all frauds, forgeries, and other offences relating thereto, as fully as if such provisions had been herein repeated and 338 TEAITSFER OF LAND ACT. 25 & 26 Vict, specially enacted with reference to the said last-mentioned c. 63, s. 130. 7 , n ,-1 stamps and sums of money respectively. Lord Chancel- CXXXI. The Lord Chancellor may from time to time sclkof c*osta. fix a scale of fees to be paid to the examiners of title, and also of costs to be paid to solicitors or certificated convey- ancers, in respect of any service rendered by them in any matter relating to proceedings under this Act ; and he may from time to time alter any such scale when fixed, and any scale of costs so fixed may, if the Lord Chancellor thinks fit, be based on an ad, valorem principle. Costs of regis- CXXXII. Where registration is made on the applica- oertaln c£«es,™ tion of parties who cannot make a valid charge on the fee te raised by simple, the Court of Chancery may declare that the costs mortgage. -^ , . and expenses of registration may be raised by a mortgage of the fee simple, and the same shall be charged accord- ingly- Orders to be CXXXIII. All general orders, scales of fees, and costs Parliament. made and fixed under this Act, shall be laid before Par- liament forthwith, if Parliament is sitting, or if not, within fourteen days after the next sitting of Parliament. Proceedings in Court of Chancery. Applications to CXXXIV. All applications to be made to "the Court of Court of Chan- /~^^ j ii. • a i. t. j i. eery to be by Chancery under this Act may be made by summons m snmmons. chambers ; and any power by this Act given to the Court of Chancery may, subject to any order by the Lord Chan- cellor as aforesaid, be exercised by any judge of the court sitting in chambers ; such judge shall have the power of directing any matter before him to be argued in court, and of directing any bill to be filed or action to be brought that may be necessary : any person aggrieved by an order made by a judge of the Court of Chancery may appeal to the Court of Appeal in Chancery, in such manner, within such time, and subject to such regulations and limitations, as the Lord Chancellor may prescribe; and any order made by the Court of Appeal in Chancery on appeal shall be subject to reversal or modification by the House of Lords, in like manner as decrees made by the Court of Chancery : provided that such appeal is made within such TRANSFER OF LAND ACT. 339 time and subject to such regulations as the House of 25 & 26 Viet. Lords may provide by any standing order (o). ~ ' °' (o) See as to proper course of proceeding in such a case, Ex pwrte Anon., 5 N. R 230. CXXXV. Any proceeding, matter, or thing whatsoever Extension to directed or required by the provisions of this Act to be counties Ma- done or performed by solicitors of the High Court of tine of Durham Chancery, either in the exercise of their profession of solicitors or as attesting witnesses to any deed or instru- ment for the transfer of land, mortgage, document, or other instrument undey the provisions of this Act, or in any other manner whatsoever, shall and may be done, exercised, and performed by any solicitor of the Courts of Chancery of the Counties Palatine of Durham and Lan- caster. Forms. CXXXVI. The forms in the schedule hereto shall be Forms. used in aU matters to which they refer : the Eegistrar, with the sanction of the Lord Chancellor, may from time to time make such alterations in such forms contained in the schedule hereto as he deems requisite : he shall publish any form, when altered, in the London Gazette, and upon such publication being made it shall have the same force as if it were included in the schedule to this Act. Inspection of Register. CXXXVII. Subject to such regulations as may be im- inspection of posed, and to the payment of such sums as may be fixed agister. by the Eegistrar with the sanction of the Lord Chancellor, any person registered as proprietor of any estate or inte- rest in any land or charge, and any person authorized by any such proprietor, or by an order of the Court of Chan- cery, but no other person, may inspect and make copies of and extracts from any register or document in the custody of the Eegistrar relating to such land or charge. [By sects. 138 — 9, a person fraudulently procuring an order of the Court of Chancery under the Act, is to be deemed guilty of a misdemeanor and punish- able accordingly.] Z 2 340 TEANSFER OF LAND ACT. 25 & 26 Viot. CXL. In the construction of this Act (except where ' 1 the context or other provisions require a different con- Jf termr*'"" struction), the word " person" shaU include Her Majesty, her heirs and successors, and the Duke of Cornwall for the time being, and also a body politic or corporate ; the word " possession " shall include receipt of the rents and profits; the word " land" shall include messuages, tene- ments, and hereditaments, corporeal or incorporeal : and the word " incumbrance " shall mean any legal or equitable mortgage in fee or for any less estate, and also any money secured or charged on land by a trust, or by judgment, decree, or order of any superior Court of Law or Equity, and also any legacy, portion, lien, or other charge whereby a gross sum of money is secured to be paid, and also any annual or periodical chai'ge which by the instrument creat- ing the same, or by any other instrument, is made re- jDurchasable on payment of a gross sum of money, and also any arrear remaining unpaid of any annual or periodical charge, for payment of which arrear a sale of any land charged therewith might be decreed by a Court of Equity. SCHEDULE. Form of Teansfee of Land. Dated this day of I A. B. of, &c., in consideration of [five thousand pounds] paid to me, grant to C. D. &c., and his heirs, for ever, all [insert description]. {Signed and sealed by A.B.) Witness, E. F. of. &c., A solicitor of the High Court of Chancery, or a certificated conveyancer. FoEM OF Mortgage. Dated this day of I A. B., in consideration of [five thousand pounds] lent TRANSFER OF LAND ACT. 341 to me by C. D., grant to C. D. and his heirs the heredita- 25 & 26 Vict. ments as described in the schedule, to secure to CD. the '. '. payment of the principal sum of [five thousand pounds] on the day of and interest at five per cent. in the meantime, half-yearly. C. D. shall have power to sell on default of payment of the principal or interest or any part thereof respectively. {Signed and sealed, dc.) Witness {as above). Form of Transfer by Indorsement. I, the within named A. B., in consideration of [five thousand pounds] paid to me by C. D., transfer to C. D. the within mentioned lands. Dated, &c. {Signature and seal). Witness (as above). Form of Transfer of Charge. I, the within named A. B., in consideration of [five thousand pounds] paid to me, do transfer to C. D. the' within mentioned mortgage. Dated, &c. {Signature and seal.) Witness, &c. Form of Power of Attorney to maice Transfers. I A. B. do appoint CD. my attorney to transfer to E.F., absolutely [or by way of mortgage, as. the case may &e,] all my lands as entered and described in the Eegister of Estates under No. 129 and my estate therein. {Signed and sealed.) Witness, A.B., Solicitor of the Court of Chancery, or, a, certificated conveyancer. 342 DECLABATION OF TITLE ACT. DECLAEATION OF TITLE ACT. 25 & 26 VIOT. Cap. 67. An Act for obtaining a Declaration of Title. [29i7i July, 1863.] 25 & 26 Vict. Wheeeas it is expedient to enable persons having inte- '- — '■ — rests in land to obtain in certain cases a judicial declara- tion of their title to the same, so as to enable them to make an indefeasible title to persons claiming under them as purchasers for a valuable consideration : Be it therefore • enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : Parties claim- I. Every person claiming to be entitled to land in titled to land possession for an estate in fee simple, either absolutely or may Petition subject to any incuinbrances, estates, rights, or interests, eery for deoia- vested or contingent, or claiming to have a power of dis- ration of title. pogiQg of land for his own benefit for an estate in fee simple in possession, either absolutely or subject to any incumbrances, estates, rights, or interests, vested or con- tingent, and every person entitled to apply for -the regis- tration of an indefeasible title to the Registrar appointed under any Act which may be passed in the present session for the registration of real estates and the title thereto, may apply to the Court of Chancery by petition in a summary way for a declaration of title under this Act. Petition to set II. Every such petition shall state what incumbrances, cukr/affecting estates, rights, and interests, if any, the petitioner admits *''!«• to affect his title, and subject to v/hich he seeks to have his title declared, and shall be in such form as the Court shall by general order direct. Two persons HI. Any two or more persons claiming to have together jointly peti™*^ such estate or interest in land as would have enabled any tion. Qjig person to petition as aforesaid may join in such a petition, and such proceedings shall be had thereupon as in the case of a single petitioner. DECLABATION OF TITLE ACT. 343 IV. No such petition shall be admitted as to lands of 25 &, 26 Vict. copyhold or customary tenui-e. "• ^^' °' ^- ■ V. It shall be lawful for the Court, by general order or Petition aa to otherwise, if it shall think fit, to require that the Registrar lands not ad- who may be appointed under any Act passed during the ™'"^'^' . • Vc ii • i ,■ p T Court may re- present session tor the registration of real estates and the quire Eegistrar title thereto shall be served with notice of such petition, ^^^^ ^l^^^o and the Eegistrar shall thereupon be made a party to and attend the proceedings on such petition, and the costs thereby properly incurred shall be paid by the peti- tioner. VI. The Court on the hearing of any such petition, on Court may in- being satisfied that the petitioner has proved such a pos- [foner^title* " session, and has stated such a title as, if established, would entitle him to a declaration under this Act, shall make an order for the investigation of the title in the same way as if the petitioner had obtained as vendor a decree for a specific performance of an agreement for sale of the land in question for the estate claimed in his petition. VII. If the Court, on such investigation, shall not be if Court dis- ' satisfied that the petitioner has shown such a title as it f?*'^^^'^' p,^*'" -*■ ^ ^ tion to be aia- would have compelled an unwilling purchaser to accept, missed, tut then it shall dismiss the petition, but subject to the right p^jf ° ° ^'^' of appeal hereiuafter mentioned. VIII. In case the Court is satisfied after such an in- Wiien iuvesti- vestigation that the petitioner has shown such a title as it f^^^ '^comt would have compelled an unwilling purchaser to accept, it may order a -, 11 ,1 J... 1 • £, ,• II- declaration of shall, on the conditions hereinaiter mentioned being com- tme to be plied with, make an order that on some day, not less than ™'"^e- three months from the date of the order, a declaration shall be made establishing the petitioner's title, unless in the meantime cause is shown to the contrary ; and the Court may enlarge the time for so showing cause as often as it may deem proper. IX. No such order shall be made until the petitioner Order not to shall have given security to the satisfaction of the Court seo",i4%or*'' for payment of all costs, if any, which may be awarded to costs is given. any person who may oppose the petitioner's right to the declaration prayed for. 344 DECLARATION OF TITLE ACT. 25 & 26 Viet. X. No such order shall be made until the petitioner and — ! — L his solicitor, and any other person whom the Court may madeVetu'''' require, shall have made and filed an affidavit that to the tioner to file best of their respective knowledge, information, and belief all documents ^^^ Settlements, deeds, documents, instruments, maps, have teen pro- plans, and papers relating to the title to the land in question have been produced to the Court, or the cause of their non-production has been fully and fairly explained, and that all facts material to the title have been fully and fairly disclosed to the Court : Provided always, that the Court may dispense with such affidavit either from the petitioner or his solicitor when it shall think it reasonable so to do,"or may permit the same to be modified as circum- stances may seem to require. Notice of order XI. The petitioner after obtaining such order shall give to be adver- , . /i. . , i i . • . « i tised in news- notice 01 the Same by advertisement in such newspapers papers. and at such times as the Court may direct, and in any other manner which the Court may deem expedient for the purpose of informing all persons interested thereof, and as may be directed by any general or special order in that behalf. Court may XII. Any person may, at any time before the proposed a^ahistdeclara- declaration of title has been made, petition the Court in a ration of title, summary way to be heard against the making thereof, and rights. the Court shaU thereupon fix a time for the hearing of such petition, and shall, if necessary, enlarge the time for maldng the declaration until such petition shall have been disposed of. On hearing of XIII. On the hearing of such petition the Court petition Court j^fiay introduce such restrictions or qualifications in the may qualify or . refuse deciara- title sought to be declared as the justice of the case reserferigto. requires, or may reserve the rights of any person or class of persons, or may refuse to make any declaration of title. Court may re- XIV. If it sliall appear to the Court that all or any of Berve rights of ^jjg ^[^Iq (jgeds relating to the land in question have been persons under ° ^ lost deeds. lost or destroyed, the Court may, if it shall think fit, reserve the rights of all persons under any such lost or destroyed deeds. DECLARATION OP TITLE ACT. 345 XV. If no petition has been presented against the 25 & 26 Vict. proposed declaration of title within the time in that behalf — — 1-?^ — ~ limited, or if, having been presented, the Court shall be of ^''*™ "™'* ' ' , sees no reason opinion that no sufficient ground has been shown for re- for refusal, fusing to make a declaration of title, then the Court shall, titie*to be" ° after the expiration of the time limited for showing cause, "^i^^' upon being satisfied that the required notices have been duly given, and that all other requisitions have been duly complied with, make a declaration that the original peti- tioner has such title to the land in question as he sought to establish by petition or such title, subject to any restrictions, reservations, or qualifications which it may deem necessary or proper to introduce. XVI. Any person may, at any time within six months Appeal may be from the making of any such declaration, appeal there- ^\ppeai "" from to the Court of Appeal in Chancery; and such Court within six shall on the hearing of the appeal make an order confirm- declaration, ing, varying, or annulling the declaration as it may see fit ; but if there is no such appeal, then the said declaration shall, at the expiration of the said six months, become final for the purposes of this Act. XVII. Any person may appeal from any such order of Parties may the Court of Appeal to the House of Lords at any time coSrtof AH>eal within six months from the making thereof, and the said to House of House may make an order confirming, varying, or annul- ling the said declaration as to them shall seem just; but if there is no such appeal, then the declaration, as approved by the said Court of Appeal in Chancery, shall at the expiration of the said six months become final for the purposes of this Act. XVIII. In case of any such appeal as .aforesaid to Declaration of the House of Lords, the declaration of title as finally ^^^^^l l^' approved by them shall become final for the purposes of House of Lords this Act. XIX. In case the Court shall have dismissed the where Court original petition on the ground that the petitioner had ^^g^?^'?'^*^*'^'^^ not shown such a title as it would have compelled an appeal to Court unwilling purchaser to accept, or if, on the hearing of any Houfe^of ^° petition against the making of the declaration of title l^rds. 346 DECLARATION OF TITLE ACT. 25 & 26 Vict, c. 67, s. 19. Deolaration of title not to be set aside for informality. Declaration of title to be re- gistered as an indefeasible title. Certificate of Court to be given to party obtaining final declaration of title. Production of deeds before; sealing of cer- tificate. Declaration of title to be deemed to have correctly de- clared land therein refer- red to. prayed for, the Court shall have refused to make any declaration of title, the original petitioner shall have the same rights of appeal to the Court of Appeal in Chancery and to the House of Lords as is hereinbefore given to any person appealing against a declaration of title ac- tually made. XX. The declaration of title, when it has in manner aforesaid become final for the purposes of this Act, shall not be set aside or called in question by reason of any irregularity or informality in the proceedings previous to the making thereof. XXI. Every declaration of title made under this Act may, at the option of the person obtaining the same, be registered as an indefeasible title under any Act which may be passed in the present session of Parliament for the registration of real estates and the title thereto {a). (a) See the Transfer of Land Act, p. 310, amte. XXII. Any person who has obtained in manner afore- said a final declaration of title shall be entitled to receive from the Court, on payment of the proper fees, and on production of his title deeds for the purpose next herein- after mentioned, a certificate under the seal of the Court setting forth the title so declared, and further stating that the time for appealing has expired, and such certificate shall be conclusive evidence of the facts therein stated. XXIII. Before any such certificate shall be sealed the petitioner shall produce to the Court such of his deeds and muniments of title as the Court shall require, and the same shall be stamped or marked by the officer issuing the certificate in such manner as the Court shall by general orders direct, for the purpose of showing that a declaration of title has been made as to the land therein comprised, or as to such part thereof as is comprised in the declaration. XXIV. Such declaration of title, as soon as it shall have become final for the purposes of this Act, shall in favour of any person thereafter deriving title as a pur- chaser for valuable consideration of the land therein DECLAEATIOHr OF TITLE ACT. 347 referred to, or of any part thereof, or of any estate, right, 25 & 26 Vict. or interest therein, by, from, through, or under the per- "• ^^' °- ^^- son whose title has been so -declared, be deemed and taken to have correctly declared the same, but save as aforesaid such declaration shall have no force or effect whatever as to the title of the land comprised therein. XXV. Instead of a single declaration of title, or a Court may single certificate, the Court may, on the application of the ™e^^atfonT'r petitioner, make separate declarations, or give separate certificates of certificates as to the title of separate parts of the land referred to in the petition. XXVI. If for the pilrpose of a sale or other disposition Court may of the land comprised in any certificate of title, or of any '^^^°?} °"g'°*l ^ J > J certificate, and part thereof, the holder of any such certificate shall be give certificates desirous of having separate certificates of title relating to parts'onand separate portions of the land, it shall be lawful for the comprised in Court, on petition by such holder, to order his certificate tificate. to be cancelled, and in lieu thereof to give to him separate certificates for separate parts of the land comprised in the certificate so cancelled ; and every such separate certificate shall refer to and state the date of the cancelled certificate, and shall have the same effect as to the land therein com- prised as if it had been given at the time of such date, but no such substitution of certificates shall in any way pre- judice or affect the title of any person who shall previously thereto have become entitled to any part of the land com- prised in the original certificate, or any interest in the same. XXVII. Whenever any such substitution of certificates Substitution shall take place the land mentioned in every such separate " "^' ' '^ ^■°- certificate may be entered upon the register of estates with an indefeasible title, under any such Act for the registra- tion of real estates and the title thereto as aforesaid ; and in that case any transactions relating thereto shall, subject to any regulations to the contrary that may be made by general order, thenceforth form a separate record in the register, distinguished by a separate number, or in such other manner as the Eegistrar may determine. XXVIII. If any certificate of title shall be lost or certificate of 348 DECLARATION OF TITLE ACT. 25 &' 26 Vict. 0. 67, B. 28. title is lost a duplicate may be issued. Declaration of title not to affect certain claims, &c. Registration of lands with declaration of indefeasible title. Court may hear petition for recal or variation of declaration of title. destroyed, the Court may issue a fresh certificate in lieu - of that so lost or destroyed, expressing on the face thereof that it is a duplicate, but no such fresh certificate shall be of any avail against any person who may have already derived title under the original certificate. XXIX. The declaration of title shall not affect any of the claims, rights, or matters hereinafter mentioned, that is to say : Land tax, succession duty, tithe rentcharge, rights of common, rents payable to the Crown, public rights of way, liability to repair highways by reason of tenure, rights of way, watercourses, rights of water and other easements, or servitudes, manorial rights and franchises, leases or agreements for leases for any term not exceeding twenty-one years where there is occupation under the same. XXX. From and after the registration of any land, as to which any such declaration of title as aforesaid shall have been made, in the hereinbefore mentioned register of estates with an indefeasible title, such land shall be subject to the provisions of any such Act for the registra- tion of real estates and the title thereto as aforesaid, in the same manner as if the registration thereof had been made by virtue of proceedings duly taken under such last-mentioned Act. XXXI. If, at any time after any such declaration of title as aforesaid has been made, any person shall con- sider himself to be aggrieved thereby, it shall be lawful for him to present a petition praying that the same may be recalled or varied in such manner as may be just, and the Court shall thereupon proceed in the hearing of such petition in the same manner as if the same had been presented before the declaration of title had been made, and the Court may, on the hearing of the said petition, annul the declaration and order the certificate or certifi- cates to be given up to be cancelled, or may make such variations therein as it may deem just, and may, if it shall think fit, also direct the registry thereof, if made, to be cancelled ; but no proceeding on any such petition shall DECLARATION OF TITLE ACT. 349 prejudice or affect the title of any person who before any 25 & 26 Vict. such annulling or variation shall have acquired a title ~ — !-!l L under the said declaration as a purchaser for valuable consideration of the said land or of any estate or interest therein. XXXII. The Court may, on the hearing of any such For prevention last-mentioned petition, make any order which it may if„^a^^tfi'""' deem just, restraining the person who has obtained the petition dis- declaration, and all persons claiming by, through, from, or under him otherwise than as a purchaser for valuable consideration, from in any manner dealing with the said land until such petition shall have been disposed of. XXXIII. All proceediags on any such petition shall Proceedings on be liable to the same right of appeal as in the case of to^right of * petitions presented before such declaration of title was appeal, made. XXXIV. The Court shall have power to order costs Power to Court either as between party and party or as between solicitor " °^ " ""^ ^' and client to be paid by and to any person, party to any proceeding under this Act, and to give directions as to the fund out of which such costs shall be paid. XXXV. And whereas it may happen that at the time of Person alien- making such declaration of title as aforesaid there may be tr^t m°oMy ° estates, rights, or interests iu the land which may not be j° ^"'^^H^^ °* saved by the declaration, and the persons entitled to such settled to cer- estates, rights, or interests may be damnified by the ^^"^ "^'^^' subsequent alienation of the land for valuable considera- tion : Be it therefore enacted, that all money received by the person so alienating shall be deemed to have been received by him in trust to invest the same in the pur- chase of lands to be settled to the uses and on the trusts to and on which the lands so alienated stood limited at the time of such alienation : Provided always, that this clause shall not be deemed to impose any liability on any person who may have received any money on such alienation as a trustee, so far as relates to money which he may have duly applied in execution of the trusts reposed in him. XXXVI. Where any married woman is desirous of Provision as , . . . . i 1 ■ to married making any application, giving any consent, or doing any ^omen. 350 DECLARATION OF TITLE ACT. 25 & 26 Viet, act, or becoming party to any proceeding under this Act, — — — — Lher husband's concurrence shall be required, and she shall be examined apart from her husband .touching^ her knowledge of the nature and effect of the application or other act, and it shaU be ascertained that she is acting freely and voluntarily; and such examination may^ be taken by the Court or such persons as are authorised to take acknowledgments of deeds by married women under the Act of the session holden in the third and fourth 3 & 4 Wm. 4, years of King William the Fourth, chapter seventy-four, "' '^^' " for the abolition of Fines and Eecoveries, and for the Substitution of more simple Modes of Assurance ; " and the form and manner in which such examination shall be certified to the Court shall be determined by the general rules and orders to be made under this Act : Provided always, that a married woman entitled to her separate use, and not restrained from anticipation, shall for the purposes of this Act be deemed a feme sole. Provision for XXXVII. Where any person who (if not under dis- BnderSbi- ^.bility) might have made any application, given any con- lity. sent, done any act, or been party to any proceeding under this Act, is a minor, idiot, or lunatic, the guardian or committee of the estate respectively of such person may make such applications, give such consents, do such acts, and be party to such proceedings, as such person respec- tively, if free from disability, might have made, given, . done, or Jbeen party to, and shall otherwise represent such person for the purposes of this Act: Provided always, that where there is no guardian or committee of the estate of any such person as aforesaid, being infant, idiot, or lunatic, or where any person the committee of whose estates if he were idiot or lunatic would be authorised to act for and represent such person under this Act is of unsound mind or incapable of managing his affairs, but has not been found idiot or lunatic under an inquisition, it shall be lawful for the Court to appoint a guardian of such person for the purpose of any proceedings under this Act, and from time to time to change such guardian. DECLAEATION OF TITLE ACT. 351 XXXVIII. Proceedings under this Act shall not abate 25 & 26 Viot. or be suspended by any death or transmission or change "' ' ^' of interest, but in any such case of death or transmission ^Juo Itfte by or change of interest it shall be lawful for the Court, deatli, &o. where it sees fit, to require notices to be given to persons becoming interested, or to make any order for discon- tinuing, suspending, or carrying on the proceedings, or otherwise in relation thereto, which to the Court may appear just. XXXIX. A register shall be kept in such place as the Register of Lord Chancellor shall appoint, wherein any person having ^^^ tobe'kept. or claiming to have any estate, right, title, or interest in or to any land, or having or claiming to have any incum- brance thereon, shall be at liberty to enter his name and address, with the name of the county, parish, and township in which such land is situated, in such form as the Chan- cellor shall order ; and when any person shall have made such entry the Court shall not make an grder under this Act unless it is satisfied, after such evidence as it shall think sufficient, that notice of the application for such order has been given to such person as shall have made such entry in a reasonable time before such order is actually made. XL. The Lord Chancellor, with the advice and assis- Power to Lord tance of the Master of the Eolls, the Lords Justices of the ^ce., to make Court of Appeal in Chancery, and the Vice- Chancellors, '^"'^^^°'' or of any three of them, shall from time to time make such general rules and orders as he may see fit for carry- ing the purposes of this Act into eifect, and for regulating the times and form and mode of procedure, and of giving notices, and generally the practice of the Court in respect of the matters to which this Act relates ; and such rules and orders may from time to time be rescinded or altered by the Hke authorities respectively j and all such rules and orders shall take effect as general orders of the Court. XLI. Until any general rules and orders shall be Court of Ohan- , n . , ■ ii 1 1 eery to adopt framed under the last preceding section, the rules and rules in sohe- orders set forth in the schedule hereto annexed shall be^"^^""*'' 352 DECLARATION OP TITLE ACT. 25 & 26 Vict, taken to be rules and orders of the Court of Chancery, c 6T s 41 — — — — '— but the same shall be liable to be rescinded or altered as Srwd!' if tliey had been made by the Lord Chancellor, with such advice and assistance as in the last preceding section is mentioned. Power to Lord XLII. It shall be lawful for the Lord Chancellor from appSnt add?- t™^ *° t™e to appoint such additional clerks as to him tional clerks, may seem necessary for enabling the Court duly to execute the duties imposed on it ; and every such addi- tional clerk shall receive out of the Suitors' Fee Fund such salary as the Lord Chancellor, with the consent of the Lords of the Treasury, may think proper. Rules and XLIII. All general rules and orders made as aforesaid, laid before including all orders for the appointment of any additional Parliament. clerks, shall, immediately after the making and issuing thereof, be laid before both Houses of Parliament, if Parliament be then sitting, or if Parliament be not then sitting, within, twenty-one days after the next meeting thereof ; and it shall be lawful for either House of Parlia- ment, by any resolution passed within six weeks after such rules or orders have been laid before it, to resolve that the same or any part thereof ought not to continue in force, and thereupon the same shall cease to be binding. Penalty on XLIV. If in the course of any proceeding before the Satement and Court Under this Act any person acting either as principal suppression of Qy. agent shall, knowingly and with intent to deceive, make deeds and ° , .... . , •, . « evidence. or assist or jom m 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, and on conviction shall be liable to be imprisoned for a term not exceeding three years, and either with or without hard labour, or to be fined such sum as the Court by which he is convicted shall award : the order or declara- tion of title obtained by means of such fraud or false- hood shall be null and void for or against all persons DECLARATION OF TITLE ACT. 353 other than a purchaser for valuable consideration without 25 & 26 Viot. notice. "■ '^' '■ ''■ [By sect. 45, any person forging any land certificate, &e., is to be guilty of fekny, and punishable accordingly.] XL VI. No proceeding or conviction for any act hereby Conviction not declared to be a misdemeanor shall affect any remedy ^^^^^y* "'^"^ 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. XL VII. Nothing in this Act contained shall entitle any Enactment of person to refuse to make a complete discovery by answer g^Xde obii-° to any bill in equity, or to answer any question or inter- gation to rogatory in any civil proceeding, in any court of law or very, equity, or in the Court of Bankruptcy; but no answer to any such biU, question, or interrogatory shall be admissible in evidence against such person in any criminal proceeding. XL VIII. In the construction of this Act (except where Construction _ , . . I. ,1 A , • of terms, &c., the context or other provisions of the Act require a in tus ^ct : different construction) the word "person" shall include a "Person:" body politic or corporate; the word "possession" shall "Possession:" include receipt of the rents and profits ; and the word "land" shall not include any incorporeal hereditaments, "Land." but shall include all corporeal tenements and heredita- ments not expressly excepted. XLIX. This Act shall relate to England only, and shall Extent of Act. come into operation on the first day of January, one thousand eight hundred and sixty-three, and may be cited as " The Declaration of Title Act, 1863." Short title. SCHEDULE, 1. Every petition for a declaration of title shall contain an exact description in their actual state of the lands as to which the declaration is sought, stating particularly the boundaries thereof, and the lands on which the same and every part thereof abut, and so far as conveniently may be, the names and descriptions of the owners and occupiers of such last mentioned lands. 2. On the investigation of the title to the lands as to 354 DECLAEATION OF TITLE ACT. 26 & 26 Vict, which the declaration is sought, the identity of the lands '. — ^ described in the petition, with the parcels as described in the title deeds, shall be established by affidavit or other- wise, as the Court may deem just. 3. The Court may, if it shall deem it necessary or proper, require the petitioner to lodge in court a map or plan of the lands in question. 4. The petitioner, after obtaining the order for a declaration of title, shall cause a copy thereof, together with the description of the lands in question, with any engraved or lithographed plan thereof (if any exists) to be served on every adjoining occupier and owner, or on such of them and on such other persons (if any) as the Court may direct to be so served. 5. He shall also cause a copy or copies thereof to be deposited in some office or place, offices or places, to be appointed by the Court on or near to the lands in question, to be accessible at all reasonable times to all persons desirous of examining the same, and notice of every such deposit shall be affixed in some public place or places on or near to the lands in question. 6. Every such copy served on any adjoining occupier or owner, or deposited as aforesaid, shall state that any person wishing to show cause against the making of the proposed declaration may do so by presenting a petition in a summary way to the Court of Chancery at any time before the day appointed for making the proposed declaration. 7. The petitioner, after such deposit shall have been made, shall cause advertisements to be inserted three times at least in such newspapers on such days as the Court shall direct, stating the said order, and stating also where any copy has been so deposited for inspection. 8. Unless the last of such advertisements is made within four weeks next after the date of the order, the time thereby fixed for showing cause against the same shall be enlarged for one calendar month, or such further time as the Court shall direct. CONFIRMATION OF SALES ACT. 355 CONFIEMATION OF SALES ACT. 25 & 26 VICT. Cap. 108. [See ante, p. 259.] JUDGMENT ACT, 1864. 27 & 28 VICT. Cap. 112. An Act to amend the Law relating to future Judgments, Statutes, and Recognizances. [29t/i July, 1864. Whereas it is desirable to assimilate the law affecting 27 & 28 Vict. freehold, copyhold, and leasehold estates to that affecting "• ^^^' purely personal estates in respect of future judgments, statutes, and recognizances : Therefore be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : I. No judgment, statute, or recognizance to be entered Future judg- up after the passing of this Act shall affect any land (of "o^to'affect whatever tenure) until such land shall have been actually land.until land delivered in execution by virtue of a writ of elegit or execution, other lawful authority, in pursuance of such judgment, statute, or recognizance (a). (o) See Thormon v. Pinch, i Gfiff. 505. By 1 & 2 Vict. ' ' case of old iuits as respects the ascertainment or selection of the Court unaffected. to which such causes or matters are or ought to be attached, remain unaffected by the abrogation herein- before made. (3.) The abrogation aforesaid shall not extend to or Article (3). affect any of the following Orders :- ^aL^et" The Orders relating to the Suitors' Fund, or the Suitors' Fee Fund, or the Solicitor to the Suitors* Fund. 362 PEELIMINARY ORDER. Prelim. Ord. 'Article (4), Orders as to fees not pro- vided for by regulations. Article (5). Old Orders as to fees incurred before Feb. 1, 1857. Article (6). Orders of a per- sonal or tem- porary charac- ter. Article (7). Orders relating exclusively to the common law side of Court. Rule 2. Regulations not affected. Orders not abrogated. Regulations. Rule 3. Old suits, &:o. The Orders of the 36th of May and 4th of Novem- ber, 17a5:.Cas to the custody of suitors' money and effects),: which are recited in the statute 13 Geo. I. G. 33. And the Orders (b) of the 1st of August, 1741, and the 38th oV August, 1828 (as to Exchequer Orders and Bills),— the Order of the 1st of November, 184'1- -(as .to Exchequer Powers of Attorney),— the Order {h)'oi the 8th July, 1843 (as to Income Tax), —the. Order (&) of the 37th of July, 1853 (as to cer- tain office routine), and the Orders (b) of the 4th of • March, 1846 (as to the drainage of settled estates). (4.) So far as any Order relates to any fee now pay- able in. any office, or to any officer, of the said Court, and no provision is made by the Eegulations subjoined to these Orders as to fees in such office, or to such officer, such Order shall not be affected by the abroga- tion aforesaid. (5.) So far as any Order made before the 30th of January, 1857, and then in force, relates to Court fees or Solicitors' fees, such Order shall continue in force, for the purpose only of regulating Court fees and Solicitors' fees incurred before the 1st of February, 1857. (6.) Orders of a merely personal or temporary character shall not be affected by the abrogation aforesaid. (7.) Orders relating exclusively to the common law side of the Court shall not be hereby affected. 2. The abrogation hereinbefore made shall not be deemed to extend to any rules put forth by the authority of the judges of the said Court, not purporting to be General Orders, but purporting to be mere Eegulations (c). (J) These Orders have been hitherto printed in the Appendix, but being practically obsolete are omitted in this edition. For the Ord. 1 Aug. 1741, and 28, Aug. 1828, see note to Ord. I. 13, p. 371, post; for the Ord. 8 July, 1842, see head (3) of not« (e), p. 146, aiUej for the Ord. 27 July, 1852, as to the routine of investing cash, see Daniell, 1630 ; and for the practice under the Drainage Acts see head (4) of note (e), p. 146, ante. (c) See the regulations as to fees and business, printed in the Appendix, pp. i. — Ixxxvii. post; and see note (a), p. liii. of the Appendix, as to the force of these regulations. 3. All suits and proceedings instituted at any time or PRELIMINARY ORDER. 363 times heretofore, and now governed by a practice of an Prelim. Ord. earlier date than the present practipe,.; shall continue to to be governed be so governed, except so far as these. Consolidated Orders ^^ *^? °^^ introduce any new practice. 4. The practice peculiar to claims shitU continue . in Kuie i. force with respect to claims filed, or to- be filed, before oMms°fiied ° the fifteenth day of February, 1860. . teftrel5Feb., 5. Notwithstanding anything hereinbef6re expressed, E,„ie 5. the abrogation hereinbefore made shall- not affect any ^^*^^''^''^* . _ practice oiigi- practice of the said Court, or any practice . or usage of, nated in or in, or connected with any of the offices of the said Court, ^^tJs hereby or the officers thereof, which originated in, or was abrogated not sanctioned by, any of the Orders hereby abrogated, and is now existing, except so far as the same may be incon- sistent with anything hereinafter contained. 6. Where any of the Orders hereby abrogated were Rule 6. intended to abolish any office, writ, practice, matter, fee, officerXo. ° or thing, such abrogation shall not have the effect of abolished by . . ,. abrogated revivmg the same. Orders. 7. Every Order or part of an Order hereinafter con- Kuie 7. . . J !_• 1 • i-i- -ii i • \- j> Construction of tamed which is a repetition, without variation, 01 an consolidated Order or part of an Order hereby abrogated, shall receive orders, where the same construction as was put on such 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 operation or otherwise, as such abrogated Order or part of an Order would have operated if this consoli- dation had not been effected. 8. Every Order or part of an Order hereinafter con- Rule 8. tained which is a repetition, with variation, of an Order ^j^jg ^^ria- or part of an Order hereby abrogated, shall receive the tio"- same construction as was put on such 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 opera- tion 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 indicates a contrary intention. And where the variation is of such a character as to be reasonably attributable, not to a 364 PEELIMINAEY ORDER. Prelim, Ord. Eule 9. New Orders to take effect on 15 Feb., 1860. Rule 10. Interpretation clause. .Article (1). Article (2). Article (3). Article (i). Article (5). Article (6). Article (7). Article (8). Article (9). variatiou of intention, but simply to a design to harmo- nise the style or language of the several Orders herein- after incorporated, such variation shall not be deemed to indicate any such contrary intention. 9. All such Orders or parts of Orders hereinafter con- tained as are entirely new Orders or parts of Orders, and all such Orders or parts of Orders hereinafter contained as, having regard to the last preceding Eule of this Preliminary Order, shall be properly deemed to be new Orders or parts of Orders, shall take effect on the fifteenth day of February, 1860, as to suits and matters now depending or hereafter to be commenced or originated. 10. In these Orders, the following words have the several meanings hereby assigned to them, over and above their several ordinary meanings, unless there be some- thing in the subject or context repugnant to such con- struction, 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 ; and the word " person " means any person, whether a party to a suit or proceeding or not. (4.) The word " bill " includes information. (5.) The word " plaintiff" includes informant. (6.) The word " af&davit " includes affirmation, and attestation upon honour ; and the word " sworn," in- cludes affirmed and attested upon honour. (7.) The word "receiver " includes consignee and manager. (8.) " The Accountant- General " means the Account- ant-General of the High Court of Chancery. (9.) The "Bank" means the Bank of England, or the Governor and Company of the Bank of Eng- land. PRELIMINARY ORDER. 365 (10.) The word "decree" or "order" includes a Prelim. Ord. . dismission. Article (lO). (11.) In the Eules at the end of which the Orders Article (il). of the 30th of March, 1859, are referred to, the word " party '' means any person appearing at the hearing of the cause, or of the application respectively, as the case may he ; and when any period is therein specified, the same shall (except as to decrees and orders made in vacations) be computed exclusive of vacation (30th March, 1859 ; Ord. 1). (12.) In the Eules at the end of which the Orders of Artide (12). the 22nd of August* 1859, are referred to, the word "money" includes interest or dividends on stock or securities, or any accumulations of interest or divi- dends (82nd Aug. 1859 ; Ord. 1). [Kale 11 provides for the custody of the originals of the General Orders.] OEDER I. OrncEKs or the Court. I. Accountant-Qeneral (a) . * 1. Where the Accountant-General is directed by any offi'""'^/th decree or order to pay any sum or sums of money to an Court. unmarried woman, and such decree or order does not Eule*i. extend to the transfer or delivery to such woman of any |™^ ""'l^'' stocks or securities, and such woman marries before ordered to be payment of such sum or sums of money, the Accountant- ^^'^ marry'^" General, if such sum of money does not, or such sums of before pay- money in the whole do not exceed 200i. (b) of principal money or 101. in annual payments, may draw for such money in favour of such woman and her husband, upon proof of the marriage, and upon an affidavit of such woman and her husband (c) that no settlement or agree- ment for a settlement whatsoever has been made or entered into, before, upon, or since their marriage, or in case any such settlement or agreement for a settlement has been made or entered into, then upon an affidavit of S66 ACCOUNTASTT-GENEBAL. OSSER I. Officers of the Court. such woman and her husband, identifying such settle- ment or agreement for a settlement, and stating that no other settlement or agreement for a settlement has been made or entered into as aforesaid, and an affidavit of the solicitor of such woman and her husband, that such solicitor has carefully perused such settlement or agree- ment for a settlement, and that according to the best of his judgment such sum or sums of money is not or are not, nor is nor are any part or parts thereof, subject to the trusts of such settlement or agreement for a settle- ment, or in any manner comprised therein or affected thereby (16th Feb. 1807) (d). Accountant- General. Chegvics and certificates. Payment out of Court. Prospective orders. Sums under 200Z. Wife's equity to a settle- ment. Affidavit in case of pay- ment out to widow. (a) As to the prakstice generally in the Accountant-Greneral's office, see Daniell, 1607—1656. By the late Act, 30 & 31 Vict. c. 87, s. 11, cTtequee drawn by the Account- ant-Cfeneral on the Bank are to be countersigned by one of his clerks instead of by the registrars. And by Ord. 12th Feb. 1863 (p. 636, post), his certifi- cates are to be signed by his chief clerk. As to giving special directions in regard to payment out, see Attorney- General V. Tiia, 3 De G. & Sm. 706 ; Bale v. Hayes, 2 Sm. & Giff. App. vii. ; Re Waylwnk, 2 Jur. N. S. 324 ; and for the practice as to payment of monies out of court to married women, tenants in tail, &c., see note (A), p. 37, cmte, and for form of Orders, see Seton, 67, 71. A prospective order for payment out of sums hereafter to be paid in was made in Be Chamherlam, 22 Beav. 286 ; Lwmbie y. Lamiie, 9 Hare, App. 84 ; but see Re Bowes, 12 W. K. 569. So the Acoountant-General may be ordered to pay the income of a fund in court to " the vicar for the time being of a parish," Re Pearce, 24 Beav. 491 ; of. Attorney-General v. Brandreth, 1 Y. & Coll. C. 0. 202; Re CoUmis Charity, 29 L. J. Ch. 168 ; Re Wrights Settlement, 1 Sm. & Giff. App. v. ; Re Sow, 15 Jur. 266 ; Re Brent, 8 W. K. 270 ; ReeoeY. Attorney-General, 3 Hare, 198 ; and as to the time of making the transfer directed by the Order, Collelt V. Maule, 13 Jur. 672 ; Ferguson v. Tadman, 1 E. & M. 331. (J) "Where a sum was over 2001., but would be reduced below that sum after payment of certain costs to which it was liable, the Court refused to allow it to be paid out to the husband without his wife's consent in court (Beaman v, Dodd, 13 L. J. Ch. 141). But this case was not followed by V.-C. Stuart in Roberts v. CoUett, 1 Sm. & Giff. 138. The wife, if she insist on her right, is entitled to a settlement, though the fund be under 200Z., Re Cwkler, 14 Beav. 220 ; Re Kincaid's Trusts, 1 Drew. 326 ; but if the sum is under 200^ she may waive her equity to a settlement, without being separately examined. If it is over 200 J., a married woman waiving this equity must be examined, even when it is asked that the money may be paid to her instead of to her husband, Mawe v. Seaviside, 7 Jur. N. S. 817 ; Gibbons v. Kelley, 10 W. E. 55, (where the lady was resident abroad and a commission was directed). See Daniell, 98, and notes to Lady Mibank V. Montolieu, 1 White & Tudor's Leading Cases. See as to payment out oi unascertained sums belonging to a married woman. Moss V. Dunlop, Johns. 490 ; Anon., 5 Jur. N. S. 1124 ; Daniell, 97. (c) A widow seeking for payment out of court of monies to which she has become entitled since her husband's death, must make an affidavit that there is no settlement {Sbrington v. Ebrington, 4 Drew. 645). And as a general rule the affidavit will always be required {ffoUgh v. Ryley, 2 Cox. 167 ; and see ACCOtTNTANT-GENEEAL. 367 Clayton v. Graham, 10 Ves. 288 ; Sniten v. Britten, 9 Beav. 143). If there Okder I. be a settlement it must be produced {Rose v. Bolls, 1 Beav. 270). Officers of the When the interest in the fund had been assigned, and it was found im- Court, possible to obtain an affidavit of no settlement, the Court, on proof that there ■ were no children of the marriage, dispensed with the affidavit (Clark v. Wood- Affidavit of no ward, 25 Beav. 456) ; so where the fact that there was no settlement had settlement been found by the Master (Hedges v. Clarke, 1 De G. & Sm. 354). In another when dispensed case (Anon., 3 Jur. N. S. 839), the husband's affidavit was dispensed with upon with. an affidavit of the wife that there was no settlement, &c. , coupled with another affidavit that the husband had refused to make the affidavit. So where the share to be paid out was less than 101., an affidavit of no settlement was dispensed with, Teai v. Veal, 4 L. R. Eq. 155. (d) The latter part of this rule is new. The original Order (dated the,16th Form of affi- February, 1806), only required the affidavit to state the marriage, and that no davit, settlement, &c., affecting the fund bad been made thereon. *3. Where the Accountant- General is directed by any „ Eule*2. , , ':•■,•,• in-, Stocks, funds, decree or order to transfer or dehver any stocks, funds, shares, or shares, or securities to an unmarried woman, and such 2o°w^*&c"'^'^*'^ decree or order does not extend to the payment to such ordered to be J. J 1 • ^ r transferred or woman oi any money, and such woman marries betore delivered to the transfer or delivery of such stocks, funds, shares, or Tfomen who . . marry before securities, and the same do not in the whole exceed m transfer, &o. value 2001. sterling, then, upon proof of the marriage, and upon an affidavit of such woman and her husband that no settlement or agreement for a settlement what- soever has been made or entered into before, upon, or since their marriage, or, in ca'se any such settlement or agreement for a settlement has been made or entered into, then, upon an affidavit of such woman and her husband, identifying such settlement or agreement for a settlement, and stating that no other settlement or agree- ment for a settlement has been made or entered into as aforesaid, and an affidavit of the solicitor of such woman and her husband, that such solicitor has carefully perused such settlement or agreement for a settlement, and that according to the best of his judgment such stocks, funds, shares, or securities are not, nor is any part thereof, subject to the trusts of such settlement or agreement for a settlement, or in any manner comprised therein or affected thereby, the Eegistrar may issue a certificate authorising the transfer or delivery of such stocks, funds, shares, or securities to such married woman and her husband; and the Accountant-General may thereupon transfer or deliver the same to them accordingly. 368 ACCOITNTANT-GENERAL. Order I. Officers of the Court. Bale *3. Same course where money to be paid, and stocks, funds, shares, or securities to be transferred, &c,, to TTomen who afterwards marry. Rule 4. Payments to surviving per- sonal represen- tatives on report or cer- tificate. Payment to personal re- presentatives. IlHle 5. In other cases. Eule 6. Where person, or his legal per- sonal represen- tatives, named in decree, order, report, or certificate. *3. A similar course to that mentioned in the 1st and 3nd Eiiles of this Order shall be adopted in the case of money directed to be paid, and of stocks, funds, shares, and securities directed to be transferred or delivered to a woman who afterwards marries, where the aggregate value of such money, stocks, funds, shares, and securities does not exceed 2001. 4. Where any money is directed to be paid out of court to persons to be named in the report of a Master or in the certificate of the chief clerk of a judge, and a sum is reported or certified to be due to any persons as legal personal representatives (e),'the same or any portion thereof for the time being remaining unpaid may, upon proof to the Accountant-General of the death of any of them, be paid to the survivors or survivor of them (28th July, 1853. See also 5th and 6th Ord. of 22nd Aug. 1859). (e) See note (k), p. 87, ante. A representative ad litem, appointed under s. a of the Chancery Amendment Act, 1852, is not competent to receive money, note {h), p. 199, ante. Where stock had been transferred to the Commissioners for the Reduction of the National Debt, the Court refused to order, without inquiry, the stock to be transferred into the names of the legal representatives of the deceased person in whose name it had been standing seventeen years before {Re Molony, 1 J. & H. 249). 5. Where any money is directed to be paid out of court to the legal personal representatives of any person, or to any persons as legal personal representatives, the same or any portion thereof for the time being remaining unpaid may, upon proof to the Accountant-General of the death of any of such legal personal representatives, whether before, on, or after the day of the date of the decree or order, be paid to the survivors or survivor of them (22nd Aug. 1859 ; Ord. 5). 6. Where any money is directed to be paid out of . court to any person named in the decree or order, or named or to be named in any report or certificate, or his legal personal representatives, the same or any portion thereof for the time being remaining unpaid may, on proof to the Accountant-General of the death of such person, whether before, on, or after the day of the date of ACCOUNTANT-GENERAL. 369 the decree or order, be paid to such legal personal- repre- ObdekI. sentatives, or the survivors or survivor of them (23nd °'^Courf *''° Aug. 1859 ; Ord. G). ' 7. Where any stocks, funds, shares, or securities, are Eule 7. directed to be transferred or delivered out of court to the pa^^f^"^,"'' I ^ . dehrery to sur- legai personal representatives of any person, or to any viving personal persons as legal personal representatives of any person, tLTeTmSeon the Registrar may, upon proof of the death of any of such certificate of representatives, whether before, on, or after the day of^S'strar. the date of the decree or order, issue a certificate autho- rising the transfer or delivery of such stocks, funds, shares, or securities, to the suiVivors or survivor of them ; and where any stocks, funds, shares, or securities are directed to be transferred or delivered out of court to any person, or his legal personal representatives, the Registrar may, upon proof of the death of such person, whether before, on, or after the day of the date of the decree or order, issue a certificate authorising the transfer or delivery of such stocks, funds, shares, or securities, to such legal personal representatives, or the survivors or survivor of them. And in any of the cases hereinbefore mentioned, such stocks, funds, shares, or securities, may be transferred or delivered accordingly (32nd Aug. 1859 ; Ord. 7). 8. No principal sum of money, nor any stocks, funds, Rule 8. shares, or securities, shall, under the 6 th or 7th Eule of fetters of Idml- this Order, be paid, transferred, or delivered out of court n'stration , , , . « , must, in cases to the legal personal representatives or any person, under under the 6th any probate or letters of administration purporting to be Jave^been"^*^' granted at any time subsequent to the expiration of six granted within years from the day of the date of the decree or order demT^&c!"" directing such payment, transfer, or delivery (32nd Aug. 1859 ; Ord. 8). 9. No interest or dividends shall, under the 6th Eule Eule 9. of this Order, be paid out of court to the legal personal parent of^ ° representatives of any person, under any probate or interest or letters of administration purporting to be granted at any time subsequent to the expiration of six years after the day of the date of the decree or order directing such pay- ment, or after the last receipt of such interest or dividends, 370 ACCOUNTANT-GENEEAL. OasER I. OJEcers of the Court. Rule 10. Payment to a partner or part' ners on report or certificate. Eulel^ Investment of dividends on Bank An- nuities pur- chased liy the Accottntant- General, pur- suant to the Legacy Duty Acts. Eule 12. Investment of interest and dividends and accumulations thereof by Acoountant- General, under decree or order directing the same. under such decree or order, which shall last happen (23nd Aug. 1859 ; Ord. 9). 10. Where any money is directed to be paid out of court to any persons named or to be named in a Master s report or chief clerk's certificate, and such money shall by such report or certificate be certified to be due to them as partners, the same may be paid to any one or more of such partners (22nd Aug. 1859 ; Ord. 10). 11. Where any money paid into the Bank, with the privity of the Accountant- General, pursuant to the Stat. 36 Geo. III. c. 52, s. 32(/), and 37 Geo. III. c. 135, is laid out by the Accountant-General, pursuant to the said statutes, in the purchase of Bank Si. per Cent. Annuities, the Accountant-General (unless he shaU have received, on behalf of some person claiming to be entitled, notice in writing of an intended application to the Court or to a judge in chambers, for disposing of the fund, or for otherwise applying the dividends thereof), may from time to time, without any formal request for that purpose, lay out -and invest the dividends on such stock, when so purchased, and all accumulations thereon, as the same shall accrue due in the purchase of like stock in trust in the same matter and account to which the original sum of stock stands (4th May, 1852). (/) See ante, p. 65, as to the Legacy Duties Act. 12. Where any decree or order directing the invest- ment from time to time of any interest or dividends accruing upon any stocks, funds, shares, or securities standing in the name of the Accountant-General, in trust in or to the credit of any cause, matter, or account, or upon any stocks, funds, shares, or securities which may be directed to be transferred into the name of the Accountant-General, or to be carried over from one account to another, or upon any stocks, funds, shares, or securities which may be directed to be purchased with any cash in court, or with any cash to be paid into court with his privity, is brought to the Accountant-General for the purpose of having such direction for investment ACCOUNTANT-GENEEAL. 371 carried into effect, the Accountant-General may, from OrdekI. time to time, until he shall receive notice of a decree or court. * ^ order to the contrary, without any further request, invest " the interest or dividends so .directed to be invested, together with aU. accumulations of interest or dividends thereon, as soon as conveniently may be after they shall accrue due and have been received, in the purchase of the particular description of stocks, funds, shares, or securities named in the decree or order directing such investment, and place such stocks, funds, shares, or securities when purchased, to the credit of the cause, matter, or account respectively, as may be directed by such decree or order (3rd June, 1853). 13. Where, by any decree or general or special order, ^'i^^ 13- any money is directed to be laid out with the pri'vity of Exchequer bilk the Accountant-General, in the purchase of Exchequer °/ ^™'^® °°'^^'^ decree or order. bills or bonds to be deposited in the Bank to the credit of any cause, matter, or account, and where any Exche- quer bills or bonds shall be deposited in the Bank, with the privity of the Accountant-General, to the credit of any cause, matter, or account, any principal money or interest which may thereafter be received and paid into the Bank in respect of such bills or bonds, or of any bills or bonds to be purchased with principal money or interest in pursuance of this Rule, or in respect of any exchanged bills or bonds, shall (unless the decree or order shall otherwise direct), from time to time, as the same shall be so received and paid into the Bank, be also laid out in the purchase of Exchequer bills or bonds, with the privity of the Accountant-General, and such Exchequer bUls or bonds ( g), when so purchased, shall be deposited in the Bank with the privity of the Accountant-General, and placed to the credit of the same cause, matter, or account, subject to the further order of the Court (22nd Aug. 1859 ; Ord. 14). (o) For the Bank's duty to receive interest oa Exchequer bills, &o. without Interest on scecial order, see Ord. 28 Aug. 1828, cited Daniel), 1626. Exchequer ^ . -, ^>ll3, Ord. 14. Where, under or in pursuance of any decree or Aug. 28, 1828. general or special order, any money shall be invested in K«ie 14. 372 ACCOUNTANT-GENERAL. Okdek I. the name of the Accountant-General, and -with his privitj'-, Court. in the purchase of any stocks, funds, shares, or securities, Gensral to °^ *°y Stocks, funds, shares, or securities shall be trans- declare trust, ferred into his name and with his privity in the books of tion in order" the Bank or of any other public company, he shall for investment declare the trust thereof to be to attend the order of this or transfer. . , Court, without any direction for that purpose in tne decree or order directing such investment or transfer (22nd Aug. 1859 ; Ord. 3). Hole 15. 15. For the purpose of any payment or investment, Generaito* to be made under any decree or general or special draw on the order, of or out of any money in the Bank on the Bank aooording ,.„ ,iiA zi to the Act and credit of any cause, matter, or account, the Accountant- outdh-eriion" General shall (without any direction for that purpose in such decree or order) draw on the Bank according to the form prescribed by the Act of Parliament made and passed in the twelfth year of the reign of his Majesty King George the First, intituled, " An Act for the bette securing the Monies and Effects of the Suitors of the Court of Chancery, and to prevent the counterfeiting of East India Bonds and Indorsements thereon,5and like- wise Indorsements on South Sea Bonds," and the General Kules and Orders of this Court in that case made and provided (32nd Aug. 1859 ; Ord. 3). Kuieie. - 16. Where any stocks, funds, shares, or securities sale of stocks, Standing in the books of the Bank or of any other public &o., standing company, in the name of the Accountant-General, in Accountant- trust in or to the credit of any cause, matter, or account, are by any decree or order directed to be sold, the same shall be sold with the privity of the Accountant-General, and one of the cashiers of the Bank shall have notice to attend and receive the money to arise by such sale, and upon receipt thereof shall forthwith pay the same into the Bank, with the privity of the Accountant-General, to the credit of the cause, matter, or account in trust in or to the credit of which such stocks, funds, shares, or securities were standing immediately before the sale, without any direction for that purpose in the decree or order directing such sale (22nd Aug. 1859; Ord. 4). General. ACCOUNTANT-GENERAL. 373 II. Examiners. officer of the (See Order XIX. on Evidence.) out^^__ III. Registrars {h). 17. The registrars shall attend the several courts of Rule 17. the Lord Chancellor, the Lords Justices of the Court of ^egUtors!'"^ Appeal, the Master of the Rolls, and the three Vice- Chancellors, in rotation, week by week, on alternate days (21st Dec. 1833 ; Ord. 27. 4th Jidy, 1850). {h) See as to the power and duties of the registrars generally, DavenpoH v. Po^erg of re- Stafford, 8 Beav. 503 ; Setoh on Decrees, p. 1137, and the Regulations of gigtrars March 15, 1860, Appendix, p. Istxx. post. The registrar in drawing up decrees may, by consent, introduce such alterations in the decree as he thinks the Court would sanction, and such alterations will be binding on the parties, See observations of Lord Langdale in 8 Beav. 511. 18. All decrees and orders drawn up by the Eegistrars, Rule 18. or by the Chief Clerks to the Judges, and all prfficipes ^,°*^^ °^//^^ for attachments, and such other documents (if any) as, prsecipes for according to the present practice or the practice for the and otheT ^ time being, ought to be entered by the entering clerks to documents. the Registrars, shall be entered by them without abbre- viations, and in a clear and legible hand, under the direc- tion of the senior Registrar for the time being, within one clear day after the same shall be left for entry ; and alt such entries shall be examined by one of the said entering clerks, and be marked with his initials, to denote such examination (21st Dec. 1833; Ord. 30. 16th Oct. 1852; Ord. 28. 9th Nov. 1853; Ord. 2) (i). (i) The decree or order is said to be "passed" when the Registrar has Passing and inserted his initials in the last page, as an authority to the Clerk of Entries to entering orders enter it in the Registrar's book (Seton, 1139). All proceedings on a decree or and decrees, order before it is entered are voidable and irregular (Tolson v. Jervis, 8 Beav. 364, where an attachment under an order not entered up was discharged). When passed and entered it can only be varied on a rehearing, except in cases of fraud (Mitf. PI., p. 73). But even in cases of fraud it cannot be rectified on petition Mossel t. Movgan, 1 Br. Ch. Ca. 74 ; see note (o) to Ord. XXXIV., post. 19. Proper calendars or indexes of such entries shall Rule 19. be made by the said entering clerks, so that the same g"ti^gg^ °^^'^ may be conveniently referred to when required. And such calendars or indexes, and the books in which such 374 EEGISTRAES. Okdse I. entries are made, shall, when completed, he transmitted °^ Court!*'" to the Eeport Office, to he there preserved under the direction o£ the Clerks of Records and Writs, and shall, To be accessible at all times during office hours, he accessihle to the feesr^""^" " puhlic on payment of the usual fee (j) (31st Dec. 1833 ; Ord. 30). , (j) See Kegnl. as to Fees, 1860, Appendix, p. xlix. post. Euie 20. 20. At the time of hespeaking a decree or order, the briefs,^ &c., to party bespeaking the same shall leave with the Registrar be left with the jjjg counsel's briefs, and such other documents as may be person bespeak- required by the Registrar, for the purpose of enabling order.'^'"''" " li™ to draw up the same (30th March, 1859 ; Ord. S) (ft). (i) See Eegistr. Eegnl. 15, et aeqq. Appendix, p. Ixxxiii. post. Rule 21. 21. Every decree or order shall be bespoken, and the to°b?be°spoken! hriefs and such other documents as are mentioned in the and documents next preceding rule shall be so left with the Registrar trai-.^within^"^ within seven days after the decree or order is pronounced XeTdecree °^ ^^^^^^ disposed of by the Court (30th March, 1859 ; pronounced. Ord. 3). Rule 22. 22. In case any decree or order is not bespoken, and Consequence of .. , ic.i default. the briefs and other requisite documents are not leit with »the Registrar within the time prescribed by the next preceding rule, the Registrar may decline to draw up the decree or order without the leave of the Court (30th March, 1859 ; Ord. 4). Eule 23. 23. At the time of delivering out the draft of any decree tiing drafT*' ^^ Order which requires to be settled by the Registrar in decree or order the presence of the parties, the Registrar shall deliver in writing. out, to the party on whose application the draft has been prepared, an appointment in writing of a time for settling the same (30th March, 1859 ; Ord. 5). Eule 24. 24. A copy of such appointment shall be served on the co^py'of such opposite party one clear day at least before the time fixed appointment thereby for settling the draft decree or order ; and the party. party serving "such copy, and the party so served, shall Attendance at attend such appointment, and produce to the Registrar ime ap- ^j^gjj, briefs and such other documents as may be neces- EEGISTRARS. 375 sary to enable him to settle the draft (30th March, 1859 ; Ordevi. I. /-\ J />\ n\ Officers of the Ord. 6) (l). Court. (?) See note (h), supra. pointed with An order drawn up in the absence of a defendant will not, unless error briefs and either of form or substance be shown, be set aside (Smith v. Acton (No. 2), 26 documents. Bear. 559). A notice to draw up an order served one day for the next is Order drawn regular {Re Christmas, 19 Beav. 619). i,p jn absence of defendant. 25. Service of such appointment shall be effected by Rule 25. leaving a copy thereof at the place for service of the party iiow°BerTCd? to be served, or by transmitting a copy thereof by the post to such party at such place for service (30th March, 1859; Ord. 7). 26. At the time fixed for settling the draft, the original „ ^"^®„ ^®- . o ' n Proof of service appointment, together with a memorandum endorsed to be produced thereon of the service of a copy thereof on the opposite " ^^^^^ '^^'^' party, and signed by a person by whom such service was effected, shall be delivered to the Registrar, in order that he may be satisfied that service has been duly effected, but the Eegistrar may require such service to be verified by affidavit (30th March, 1859 ; Ord. 8). 27. When the draft, decree, or order has been settled „. ^^J^ ^'^■ 1 1 -1-. • t 1 11 • • t Time for pass- by the Eegistrar, he shall name a time in the presence of ing the decree the several parties, or else deliver out an appointment in " ""^^^g^'" ^^ writing of a time for passing the decree or order (m). And, appointed, in the latter case, such appointment shall be served on..^p"\^t^gn(;_ the opposite party, in like manner as directed by the 24th and 25th Rules of this Order with reference to an appointment to settle the draft, decree, or order ; and the original appointment, together with a memorandum in- dorsed thereon of the service of a copy thereof on the opposite party, and signed by the person by whom such service was effected, shall be delivered to the Registrar, in order that he may be satisfied that service has been duly effected; but the Registrar may require such service Proof of Bervioe to be verified by affidavit (30th March, 1859 ; Ord. 9). to reV^trar."^ (m) See as to passing the order, note (i), ante, 28. If any party fails to attend the Registrar's appoint- Eule 28. ment for settling the draft of or passing any decree or ftten"dhie" order, or fails to produce his briefs and sugh other d jqu- appointment 376 REQISTBAES. Order I. ments as the Eegistrar may require to enable him to Court. settle such draft or pass such decree or order, the Eegis- with briefs and trar may proceed to settle the draft or pass the decree or documents. ^j.^^^ ^ j^-g absence, and the Eegistrar shall be at liberty to dispense with the production of counsel's briefs, and to act upon such evidence as he may think fit of the actual appearance by counsel of the party failing to attend or to produce such documents or papers as aforesaid, or may require the matter to be mentioned to the Court (30th March, 1859 ; Ords. 10 and 11) (n). (n) See Teatnum v. Read, 14 W. E. 123, for a motion imder this section. Rule 29. 39. The Eegisitrar's appointment may be in the foUow- Form of ap- • /. pointmentf "^g ^O^m :— Chancery Eegistrar's Office, Chancery Lane, 1860. "A.v.B." or " In the matter of A." I have appointed the day of 1860, at o'clock in the forenoon, to settle the draft of [or, to pass] the decree [or, order] pronounced in this cause [or, matter] by [the Master of the Eolls] on the day of CD., Eegistrar. (30th March, 1859 ; Ord. 12). Rule 30. Filing of ap- pointment. Rule 31. Adjournment of appoint- ment. Rule 32. Settling or passing decree 30. The Eegistrar's appointments, with the indorse- ments, if any, thereon, shall be filed by the Eegistrar (■50th March, 1859 ; Ord. 13). 31. The Eegistrar may adjourn any appointment for settling the draft of or passing any decree or order, to such time as he may think fit; and the parties who attended the appointment shall be bound to attend such adjournment without further notice (30th March, 1859 ; Ord. 14). 32. Notwithstanding the preceding rules of this order, the Eegistrar shall be at liberty, in any case in which he REGISTRARS. 377 may think it expedient so to do, to settle and pass the Oedbb i. decree or order without making any appointment for °^court*''^ either purpose, and without notice to any party (30th or order with-' March, 1859 ; Ord. 15) (o). out appoint- ment or notice. (o) See, before the rule, Bargrave v. Hargrave, 3 Mae. & G. 348 : Hart T. Tulh, 6 Hare, 611. 33. The Registrars shall from time to time meet, and Rule 33. consider such orders, rules, or regulations as may appear registrars." to them, or the majority of them, calculated to expedite and facilitate the satisfactory transaction of the business of the suitors in their office, and report such orders, rules, or regulations to the Lord Chancellor, to the end that, if the same be approved by him, proper steps may be taken for such orders, rules, or regulations being adopted and duly made general orders, rules, or regulations of the Court {3rd June, 1850 ; Ord. 14) (p). (p) See Appendix, p. Ixxx. IV. Taxing Masters. (See Order XL. on Costs.) V. Chief Clerks of the Judges. (See Order XXXV. on Proceedings in Chambers.) *34. The Chief Clerks of the Judges shall from time Rule *34. to time meet, and consider such orders, rules, or regula- cHef c'lerks. tions as may appear to them, or the majority of them, calculated to expedite and facilitate the satisfactory trans- action of the business of the suitors in the Judges' Chambers, and report such orders, rules, or regulations to the Judges, to the intent that if they should approve of the same, they may authorise the Chief Clerks to submit the same to the Lord Chancellor, to the end that, if the same be approved by him, proper steps may be taken for such orders, rules, or regulations being adopted and duly made general orders, rules, or regulations of the Court. 878 CLEEKS OF RECORDS AND WRITS. Obser I. Officers of the Court. Rule 35. Clerks of Re- cords and Writs to perform duties formerly performed by six clerks, sworn clerks, &c., except as solicitors. Certificate of Clerk of Records and Writs. VI. Clerk of the Inrolments in Chancery and Clerks of Records and Writs. 35. The Clerks of Records and Writs shall have the care of all documents ordered to be deposited for safe custody, and shall also (besides other duties) perform all such duties as were performed by the six clerks, sworn clerks, or waiting clerks, as officers of the Court, in rela- tion to the several matters hereinafter mentioned ; that is to say, The filing, custody, copying, and amending of all bills, demurrers, pleas, answers, and other pleadings and records {q). The entrance of appearances, consents, notes, and memorandums of service. The certifying of appearances and proceedings. The custody of exhibits deposited for inspecting and copying. The attendance with records and exhibits on the Judges of this Court, or at the assizes, or elsewhere. The enrolment of decrees and orders. And all such other duties as were performed by the six clerks, sworn clerks, or waiting clerks, as officers of the Court, in relation to suits and matters in equity, and not as attornies, solicitors, or agents of the parties in suits or matters in equity (26th Oct. 1843; Ord. 3. 16th Oct. 1853; Ord. 57^. (}) A certificate of the Clerk of Records and Writs is conclnsive as to the filing of a pleading {Beavan v. Bwrgess, 10 Jur. 63). Under the 14th section of the 14 & 15 Vict. c. 99 (Evidence Act), relating to the proof of copies of books or documents admissible in evidence on their mere production from the proper custody, the Clerk of Records and Writs may be ordered to certify copies of the bill, answers, and depositions in his custody, to be used on the trial of an issue directed by the Court (Reeve v. Sodgson, 10 Hare, App. xix.). Rule *36. Erasure, obli- teration, im- proper mode of writing, or disfigurement in pleadings or affidavits. *36. The Clerks of Eeeords and Writs shall be at liberty to refuse to file any plea, answer, or affidavit, in which there is any knife erasure, or any plea, answer, or affidavit which is blotted so as to obliterate any word, or which is improperly written, or so altered as to cause any material disfigurement, or any plea, answer, or affidavit CLEEKS OF RECORDS AND WRITS. 379 in which there is any interlineation of any word or words, Obdmi I. unless the person before whom the same is sworn duly court. * authenticate such interlineation with his initials in such manner as to show that the interlineation of such word or words was made before such plea, answer, or affidavit was sworn, and so as to mark the extent of such inter- lineation (15th Nov. 1660. 18th July, 1666 (r). (r) As to the form of affidavits, see Ord. XVIII. 1. Erasures in Erasures were held fatal to au affidavit, unless proved to have been made exhibits, &e. before it was sworn, GiU v. Gillwrd, 9 Hare, App. xvi. Bat erasures in the recital of the contents of an exhibit were permitted. Savage v. Svichimson, 24 L. J. Ch. 232, and interlineations in Vorweig v. Barweiss, 3 W. B. 259. . 37. The Clerks of Records and Writs shall keep a seal, nuie 37. in such form and bearing such impression as the Lord ^^Mtice as to Chancellor shall approve ; and any person desirous of suing out any of the writs specified at the end of this rule may prepare the same in the present form, with such alterations and variations as circumstances may require, and may present such writ for sealing to the Clerks of Records and Writs ; and such writs shall be open writs, and it shall not be necessary for the Lord Chancellor to sign any such writ. And tlie Clerks of Records and Writs, upon any such writ being presented for sealing, shall ascertain whether such writ is correct in form, and whether the person presenting the same is, according to the course and practice of the Court, entitled to sue out the same, and in case it shall appear that such writ is correct in form, and that the person is entitled to sue out the same, such writ shall be forthwith sealed with such seal as aforesaid, and shall, when so sealed, have the same force and validity as such writ had when sealed with the great seal (36th Oct. 1842 ; Ord. 4. 8th May, 1845 ; Ord. 24). The writs above referred to in this rule are the follow- ing : — Writ of Assistance, Writ of Attachment, Commis- sion to assign a Guardian, Commission to examine Wit- nesses, Writ of Distringas, Writ of Elegit, Writ of Fieri Facias, Writ of Habeas Corpus, Writ of In- junction, Writ of Ne Exeat Regno, Writ of Dower, Cojn- 380 CLERKS OF EECOEDS AND WRITS. Order I. mission of Partition, Commission to distinguish and Court. divide Lands, Writ of Sequestration, Writ of Subpoena, Writ of Venditioni Exponas, Writ of Fieri Facias de Bonis Ecclesiasticis, Writ of Sequestrari Facias de Bonis Ecclesiasticis, and Writ of Inquiry of Damages (s). (s) As to these writs, see references in index. Rule 38. 38. Where security of costs is directed to be given, cost"' ^ °^ such security shall be given to the Clerk of Records and Writs in whose division the cause or matter is (26th Oct. .1843 ; Ord. 6 («) ). (i) See, post, Ord. XIi. 6, and notes thereto. Rule 39. 39. Pleas, answers, and affidavits may be sworn before anTaffidarite'' ^^7 Clerk of Records and Writs, or before the Clerk of before whom Inrolments in Chancery, as occasion may require (26th sworn. „ ^ , V ./ X \ Oct. 1842 ; Ord. 7). Rule 40. 40. All acknowledgments required for the purposes of mentsTor ^' inroUing any deed or other document in Chancery may inrolling deeds, jje made before the Clerk of Inrolments in Chancery, or before any Clerk of Records and Writs, as occasion may require (26th Oct. 1842; Ord. 1). Rule 41. 41. The Records of all Deeds and Recognisances in- be™ Mismitted rolled shall be sent by the Clerk of the Inrolments to *? tlie Public the Public Record Office, Rolls Yard, within two years from the time of the inrolment thereof (3rd July, 1676, 9th June, 1686). Rule 42. 42. No person shall carry away any record from the be removed. Public Record Office, Rolls Yard, to any other place, without the direction of the Master of the Rolls, nor take out of the office of the Clerks of Records and Writs any record or document filed there, except by the direction of the Court (m) (25th Dec. 1574). Office copies. (") Unless satisfied that the office copy is insufficient the Court will not order production of the original document {Attumey-General v. Say, 6 Beav. 335 ; and see 2 Hare, 518 ; 3 Hare, 335 ; and Jervis v. While, 8 Ves. 313). The application for the order should not be ex parte (Lamb v. Daribv, 9 W. R. 765). Rule 43. 43. Any Clerk of Records and Writs, being required to answer fees, attend with any record or document at any assizes or at CLERKS OF RECORDS ANB WRITS. 381 any court or place out of the Court of Chancery or the Order I. offices thereof, shall he entitled to require that the soli- Comt. citor or party desiring his attendance shall deposit with him a sufficient sum of money to answer his just fees, charges, and expenses in respect of such attendance, and undertake to pay any further just fees, charges, and expenses which may not he fully answered by such deposit (26th Oct. 1842 ; Ord. 8). 44. All certificates of the Chief Clerk of a judge, Rule 44. (after the same shall have been signed by the judge in transmttting cases where his signature is required) and all petitions, "f certificates, ,.? ,.1 , ^,. petitions, and written admissions ot evidence whereon any order is admissions of founded, and all submissions to arbitration and awards evidence, sub- ' _ _ missions to made orders of this court, shall be transmitted to and arbitration, and left at the Eeport Office, to be there filed or preserved o7dTr3°ofCourt. under the direction of the Clerks of Records and Writs. And all office copies thereof, or of any part thereof, that office copies to may be required, shall be ready to be delivered to the ^^-f ^Vif-'^^'43 party requiring the same, within forty-eight hours after hours. the same shall have been bespoken (21st Dec. 1833 ; Ord. 30. 16th Oct. 1853 ; Ord. 50). 45. Upon every pleading or other proceeding which is Eule 45. filed under the direction of the Clerks of Records and p*oj%°d;^g°^ Writs, the date of filing the same shall be printed or written (see Ord. of 22nd May, 1661; Sanders, 297). 46. Proper indexes or calendars to the files or bundles Rule 46. of the reports, certificates, exceptions to reports, petitions, Jg^o^^jg^ ^^ admissions of evidence, and all other documents filed at to be kept and the Report Office, shall be kept by the Clerks of Records and Writs ; so that the same may be conveniently referred to when required. And such indexes or calendars and documents shall, at all times during office hours, be ac- cessible to the public, on payment of the usual fee (v) (21st Dec. 1833 ; Ord. 30). {v) See Eegul. as to Fees, 1860, Appendix, p. xlix. post. 47. The Clerks of Records and Writs shall also enter Rule 47. in the books kept by them for that purpose, the time when of°deIiverinT any certificate is delivered to them to be filed, with the <=s'^'ifio^t«> ''"' 382 CLERKS OF EECORDS AND WRITS. Obdsr I. Officers of the Court. name of cause and date of cer- tificate. Of time of delivery of other docu- ments, such entry to be accessible. Rule 48. Reference to record to be ■written or stamped on documents. Rule 49. Dates of de- crees, &c., be entered in cause books. Rule 50. References to dates and folios of registrar's book. Rule 51. Rules not to apply to causes com- menced before Not. 2, 1852. Rule 52. Applications to Court of BzchecLuer for documents, &c., in Exche- quer causes transferred into Chancery. Rule 53. Certificate of proceedings in a cause or name of the cause and the date of the certificate. And the like entry shall be made of the time of delivery of every other document filed at the Eeport Office. And such books shall, at all times during office hours, be accessible to the public, on payment of the usual fee {w) (21st Dee. 1833 ; Ord. 30). (w) See last note. 48. Every decree, order, report, certificate, petition, or document, made, presented, or used in any cause in this court, shall be distinguished by having plainly written or stamped on the first page of such decree, order, report, certificate, petition, or document, the year, the letter, and the number by which the cause is distinguished in the cause books kept by the Clerks of Records and Writs (30th Nov. 1855 ; Ord. 1). 49. The Clerks of Eecords and Writs shall, in addition to the entries formerly made by them in their respective cause books, enter therein respectively the date of every decree, order, report, and certificate, which shall be made in each cause (30th Nov. 1855 ; Ord. 2). 50. The entry of every such decree and order in such cause books shall contain a reference to the date and folio of the registrar's book in which such decree or order shall have been entered (30th Nov. 1855 ; Ord. 3). 61. The last preceding three Rules of this Order shall not apply to any cause commenced before the first day of Michaelmas Term, 1853 (30th Nov. 1855 ; Ord. 4). 52. The Clerk of Record and Writs in whose division any cause transferred from the Court of Exchequer to the Court of Chancery may be, shall, upon request of any of the parties thereto, apply to the Court of Exchequer for the records or other documents in such cause not before brought into the Court of Chancery (26th Oct. 1842 ; Ord. 30). 53. Fop the purpose of enabling aU persons to obtain precise information as to the state of any cause or matter, and to take the means of preventing improper delay in CLEEKS OF RECORDS AND WRITS. 383 the progress thereof, any Clerk of Records or Writs Okdeb I. shall, at the request of any person whether a party or not Court. in the cause or matter inquired after, but on payment of matter to be the usual fee (x), give a certificate specifying therein the given. dates and general description of the several proceedings which have been taken in such cause or matter in the Record and Writ Clerks' Office (3rd April, 1838 ; Ord. 43). (a:) See note {v), p. 381. ORDER II. OkdbrII. ConveyanciDg Conveyancing Counsel op the Court. Counsel of the Court. 1. (a) The business to be referred to the Conveyancing Rule I. Counsel nominated by the Lord Chancellor, under the fgrred^to Con- stat. 15 & 16 Vict. c. 80, s. 41, shall be distributed among veyanoing such counsel in rotation by the first clerk to the Regis- distributed in trars for the time being, and during his occasional or station. necessary absence by the second clerk to the Registrars for the time being, and during the occasional or neces- sary absence of both such clerks, then by such one of the other clerks to the Registrars as the Senior Registrar for the time being may nominate for that purpose (16th Dec. 1852 ; Ord. 1). (a) The oases relating to the duties of the conveyancing counsel are given in the notes to 15 & 16 Vict. c. 80, ss. 40, 41, ante, p. 158 ; and as to fees, see Old. XL. 30, and note thereto. 2. The clerk making such distribution shall be respon- Rule 2. sible for the business being distributed according to ^^J^. °^ P^™" regular and just rotation, and in such manner as to keep secret from all persons the rota or succession of Convey- ancing Counsel to whom such business may be referred ; and it shall be his duty to keep a record of such refer- ences, with proper indexes, and to enter therein all such references, with the dates when the same are made (16th Dec. 1852 ; Ord. 2). 384 CONVEYANCING COUNSEL OF THE COURT. Order II. 3. When the Court or a iudee at chambers directs Conveyaneing . , i. ■, ■, r-i Counsel of the any business to be referred to any such Conveyancing ^°°'^'*- Counsel, a short memorandum or minute of such direc- Rule 3. tion shall be prepared and signed, by the Eegistrar if the of the Convey- Same shall have been given in Court, or by the Judge's how'lfbtoiner'' ^^^^^ ^^^^^' ^^ g^^^*^ ^^ chambers ; and the party prose- cuting such direction, or his solicitor, shall take such memorandum or minute to the Eegistrar's Clerk whose duty it is to make such distribution as aforesaid ; and such clerk shall add at the foot thereof a note specifying the name of the Conveyancing Counsel in rotation to whom such business is to be referred ; and such memo- randum or minutes shall be left by the party prosecuting such direction, or his solicitor, with such Conveyancing Counsel, and shall be a sufficient* authority for him to pro- ceed with the business so referred (16th Dec. 1852; Ord. 3). Rule 4. 4_ jn gase the Conveyancing Counsel in rotation shall Counsel in 1. -n jo rotation unable from lUness or from any other cause be unable or decline act ^ '"'"^ ° *'° accept any such reference, the same shall be offered to the other Conveyancing Counsel appointed as aforesaid, successively, according to their seniority at the bar, until some one of them shall accept the same (16th Dec. 1852 ; Ord. 4). Rule 5. 5. The preceding Eules of this Order are not to inter- Liberty to „ , _ direct or trans- fere With the power of the Court, or of the judge at anVonfof such ^^^"i^^'^s, to direct or transfer a reference to any one in Counsel in particular of the said Conveyancing Counsel, where it particular. appears to the Court or the judge to be expedient (16th Dec. 1852 ; Ord. 5) (6). (J) See Se Martm, 22 L. J. Ch. 248. Order III. ORDER III. Solicitors and hUPereonf and SOLICITOKS AND. PakTIES ACTING IN PERSON, AND SERVICE Service on them ON THEM RESPECTIVELY, respectively. — :^^^ 1. The solicitors of this court in all cases where the Solicitors and parties sue or defend by solicitors, and the parties them- SOLICITORS AND PARTIES, AND SERVICE. 385 selves in all cases where they sue or defend in person, Okder III. shall perform all such duties as were formerly performed Parties aoSg by the sworn clerks and waiting clerks, as attorneys, '■'^*'^^™'*'"* T ■. , o ,1 ,• . , . , Service on them solicitors, or agents of the parties m relation to the respectively. several matters hereinafter mentioned, viz. : parties suing The making out of writs. ™ defending in rrn • ■■ -1 • 1.1 . . person, to per- ihe serving and being served with writs, notices, form duties orders, warrants, and other documents, proceedings, formed by six and written communications, in causes and matters clerks and T •, . . i / \ waiting clerks, depending m court (a). as atfomeys. The signing of elections and agreements to proceed at *"'■ law or in equity. * The signing of petitions of re-hearing and appeal. The entering of appearances and consents with the Eegistrar. The signing of consents to petitions. The tender and acceptance of costs. The joining in commission and striking of commis- sioners' names. The signing of notices by paupers (6). And all other duties formerly performed by the sworn clerks and waiting clerks, as attorneys, solicitors, or agents of the parties in suits or matters in equity (36th Oct. 1843 ; Ord. 16). (o) See as to service on solicitors, note (g) to sect. 4, post. (i) As to signing notices for panpers, see post, Ord. VII. 11, p. 406, post, 3. Every solicitor of a party suing or defending by a Rule 2. solicitor shall cause to be written or printed upon every Jn'^X^adinss^ writ or summons which he shall sue out, and upon every of solicitor's bill, demurrer, plea, answer, or other pleading or pro- p™e of busi- ceeding, and all exceptions, which he may leave with the "^^^> *°^ Clerks of Eecords and Writs to be filed, and upon all service, instructions which he may give to the Clerks of Eecords and Writs for any appearance or other purpose, his name or firm, and place of business, and also (if his place of business shall be more than three miles from the Eecord and Writ Clerks' Office) another proper place (to be called his address for service), which shall not be more 386 SOLICITORS AND PARTIES, AND SERVICE. Order III. Solicitors and Parties acting in Person, and Service on them respectively. Rule 3. Solicitor not to be changed without order. than three miles from the said office, where writs, notices, orders, summonses, warrants, and other documents, pro- ceedings, and written communications, may be left for him. And where any such solicitor shall only be the agent of any other solicitor, he shall add to his own name or firm and place of business the name or firm and place of business of the principal solicitor (26th Oct. 1842 ; Ord. 17). 3. A party suing or defending by a solicitor (c) shall not be at liberty to change his solicitor [d) in any cause or matter without an order of the Court (e) for that purpose, which may be obtained by motion or petition as of course (e) ; and until such order is obtained and served, and notice thereof given to the Clerk of Records and Writs, the former solicitor shall be considered the soHcitor of the party (26th Oct. 1842; Ord. 18) (/). Plaintiffs solicitor. Discharge of solicitor. Change in firm. When a new solicitor may be employed without order to change. Subpoena to name a new solicitor. When special order is neces- sary. Where no order obtained. Lien of dis- charged solici- tor how far affected. (c) All the plaintiffs in a suit should appear by one solicitor, see Peareth v. Peareth, Johns. 58. {d) The order to change operates as a discharge by the client (Webster Y, Le Hunt, 9 W. R. 804) ; and see Wa/rd v. Svnft, 6 Hare, 310. (e) The rule applies where there has been a change only in the firm of soli- citors (MiUtlebury v. Hayward, 8 Jur. 1085). A client may employ a new solicitor without obtaining an order to change solicitors in the following cases : — (1.) Where money stands to the separate account of a party to a cause, and he petitions for payment out by a new solicitor, Waddilove v. Taylor, 17 L. J. Ch. 384. (2.) Where the solicitor dies pending the suit, WhaUey v. Whalley, 22 L. J. Ch. 632. If the solicitor of a party to the suit dies, and the party neglects to appoint a new one, he should be served with a svJtpcma to name a eolioitor (see form in Appendix, p. viii. post), see Gibson v. Ingo, 2 Ph. 402, where on such sMbpcma being served on a defendant, and no solicitor appointed, the Court ordered a taxation to proceed in the defendant's absence. So, where a defendant's solicitor died, and the plaintiff obtained an order that he might name a new one, which he failed to do, the Court directed the accounts to be taken in his absence (Dean v. LetJiiridqe, 26 Beav. 397). (/) Where there was a special contract respecting the employment of a soli- citor, and an order, as of course, to change solicitors was obtained, the special contract being suppressed, such order was discharged with costs (Sichards v. Scarborough Mwrket Compamy, 17 Beav. 83 ; Jenhins v. Sryant, 3 Drew. 70 ; and see note (m), p. 17, ante ; and see Topping v. Searson, 2 H. & M. 205). (g) Where there has been a change of solicitors without order, service of notices, &c., upon the old solicitors is regular ( Wright v. King, 9 Beav. 161 ; Davidson Y. Leslie, ibid. 104). As to how far the lien of a solicitor who is changed in the course of a suit will be affected by that circumstance, see Oreasw^U v. Byron, 14 Yes. 271 ; Oane V. Martin, 2 Beav. 584 ; dommerall v. Poynton, 1 Swanst. 1; Oole- grave v. ifanley, Turn. & Russ. 4Q0 ; Bozon v. Bolland, 4 M. ft Cr. 854 ; SOLICITORS AND PARTIES, AND SERVICE. 387 Bcslop V. Metcalfe, 3 M. & Cr. 183, from wMcli cases it seems that if the Okder III. solicitor voluntarily withdraws, he must deliver the client's papers to the new Solicitors and solicitor, see Daniell, 1696. But where the solicitor is discharged by the client. Parties acting though the reason is that he, the solicitor, is in embarrassed circumstances, in Person, and he is not thereby disentitled to his lien {Re Smith, 9 W. E. 396) ; so where Service on them he was in custody for debt {Se Williams, 28 Beav. 466, 3 D. F. J. 104). respectively. A solicitor who conducts a cause to its conclusion in the place of one who by arrangement with his client retires from conducting it, has priority for his Priority of con- costs in case of a deficiency of assets {Cormack v. Beisley, 3 De G. & J. 157). tinning solici- Even where the lien subsists the client is entitled to the convenient use of tor's lien, his papers in pending business (Rawlinson v. Moss, 9 W. E. 733), where a Client entitled question was raised as to the party liable to pay for the schedule of papers to j,se of prepared for a client, before giving to his discharged solicitor a receipt for papers not- papers delivered over. See, too, Webster v. Le Hunt, 9 W. E. 804 (see p. withstanding 827, for terms of order) ; Re Williams, 1. c; Griffiths v. Cfriffiihs, 2 Hare, jig^ 587 ; Cane v. Martin, 2 Beav. 584. 4. Where a party sups or defends by a solicitor, and Eule 4. no address for service of such solicitor shall have been ^no'^address written or printed pursuant to the directions of the 2nd for service, Eule of this Order, all writs, notices, orders, summonses, Berved°at his* warrants, and other documents, proceedings, and written P^aoe of busi- communications, not requiring personal service upon the party to be affected thereby, shall, unless the Court shall otherwise direct, be deemed sufficiently served upon such party, if served upon his solicitor {h) at his place of busi- ness. But if an address for service of such solicitor secus, where shall have been written or printed as aforesaid, then all J''®™'^.^'*^"^^ . . ^ for service. such writs, notices, orders, summonses, warrants, and other documents, proceedings, and written communications, shall be deemed sufficiently served upon such party, if left for his solicitor at such address for service (26th Oct. 1842; Ord. 19). (A) See W^-ight v. King, 9 Beav. 161 ; Newton v. Thompson, 16 Jnr. 1008. Compare cases on substituted service in note (6), p. 419, post. As to service on solicitors generally, see Re WisewoM, 16 Beav. 357 ; Re Service on Cailim, 18 Beav. 508 ; Re Dufaur, 16 Beav. 113 ; Re Thomson, 20 Beav. solicitors. 545; W^on y. Smmett, 19 Beav. 233; Ex parte Belton, 25 Beav. 368; Re Walton, 4 K. & J. 78. In one case, the Court, under peculiar circumstances, allowed service to be eflFected on the solicitor by placing it under the door of his chambers. Re Templeman, 20 Beav. 574. And where the solicitor in the cause had ab- Absconding sconded, he was held to be rightly served with a notice of motion left at his solicitor, unoccupied place of business, Newton v. Thompson,, 22 L. J. Ch. 10. 5. {i) Every party suing or defending in person shall Me 5. cause to be written or priiited upon every writ which be or defending in shall sue out, and upon every bill, demurrer, plea, answer, p^™° '° '"- or other pleading or proceeding, and all exceptions which and residence 2 388 SOLICITORS AND PARTIES, AND SERVICE. Oeber III. he may leave with the Clerks of Eecords and Writs to be Parties acting filed, and upon all instructions which he may give to the in Person, and Clerks of Eecords and Writs for any appearance or other Service on them . • ^ -i ^ r-n i.- respectively, purpose, his name and place of residence, and also (ii his and address for place of residence shall be more than three miles from T"^"" *^® Eecord and Writ Clerks' Office), another proper place (to be called his address for service), which shall not be more than three miles from the said office, where writs, notices, orders, summonses, warrants, and other docu- ments, proceedings, and written communications, may be left for him (26th Oct. 1843 ; Ord. 20). Where indorse- (') ^ ^o ^^^ effect of neglecting to indorse au address for service on the ment of name ^•'i* "f suipcena issued under the old practice, see Price v. Webb, 2 Hare, and address for ^^^i ^^^ ! from which case it would seem that in such a case the writ was not service is necessarily void, bat the Court would in the meantime so deal with the pro- omitted, ceedings by staying process or otherwise, as to give the party the benefit of this rule. Rule 6. g_ Where a party sues or defends in person, and no Where there is , , „ . » , , „ , , no address address for service of such party shall have been written for service, qj. panted pursuant to the directions of the 5th Rule of service on party ^-^ ^ suing, &e., in this Order, or where a party has ceased to have a solicitor, peisonai,°or\t ^^^ writs, notices. Orders, summonses, warrants, and other his place of documents, proceedings, and written communications not residence. . . , . , , „. , requiring personal service upon the party to be affected thereby, shall, unless the Court shall otherwise direct, be deemed to be sufficiently served upon such party, if served upon him personally, or at his place of residence. Where there is But if an address for service of such party shall have vice to be at "^^^ written or printed as aforesaid, then all such writs, such address, notices, Summonses, warrants, and other documents, pro- ceedings, and written communications, shall be deemed sufficiently served upon such party, if left for him at such address for service (26th Oct. 1842 ; Ord. 21). Rule 7. 7. Where a person who is not a party (k) appears in Service, on town ,. ... , . ,, _, . . V solicitor of per- any proceeding either before the Court or m chambers, son not a party service upon the solicitor in London, by whom such party appearing -in ' j s: j any proceeding, appears, whether such solicitor act as principal or agent, serticf"^ ^^^^^ ^^ deemed good service, except in matters of con- tempt requiring personal service (l) (3rd April, 1828; Ord. 44). SOLICITORS AND PARTIES, AND SERVICE. 389 (h) This rule does not apply to respondents to a charity petition, for they Order III. are held to be parties to it {Se Willongkhy's Chanty, 6 Sim. 18). But a Solicitors and creditor coming in to prove his debt in chambers is no party, and is within Parties acting the rule (Jennings v. Devey, 4 Jar. 858). In cases not within the rule there in Person, and must be a special application for substituted service, see note (i), p. 419, post. Service on them (J) As to matters of contempt requiring personal seiTioe, see Ord. XXIII. respectively. 10, and notes, p. 489, post. ==: -. ■^ Who may be served within 8. The plaintiff shall, -without special leave of the *•»? ™le a^ »"« Court, be at liberty to serve any notice of motion, or jj^^i^ g other notice, or any petition or summons, personally or at Defendant who ,,,,,.■, ~, J, ij-Tiii- bas not entered the dwelung-house or oflice oi any detendant, who, having ^n appearance been duly served with a copy of the bill, shall not have ^^l be served , ,,.,.,.,.., with notice of caused an appearance to^be entered withm the time limited motion, &c. for that purpose (11th April, 1843; Ord. 3) (m). (m) Where a defendant is out of the jurisdiction, this rule does not apply (Green t. Pledger, 3 Hare, 165), 9. Where any solicitor or party causes an appearance „ Kule 9. ^ X, ^ A / IT Notice of to be entered, or an answer, demurrer, plea, or repli- appearance, cation, to be filed, he shall, on the same day, give °'°^J,t^.' ^?' notice thereof to the solicitor of the adverse party, or to or replication, the adverse party himself, if he acts in person (26th g°nig J^y^'' Oct, 1842; Ord. 23) (n). (n) When the plaintiff omitted to give notice of the filing of a replication till Proceeding the day after it was filed, it was held that the proper course was not to move when plaintiff to take it off the file, but to move to enlarge the time for taking the next step neglects to give in the cause (Wright v. Angle, 6 Hare, 107 ; but see Johnson v. TucJeer, 15 notice of filing Sim. 599, where the notice not having been given till five weeks after the re- replication, plication was filed, the latter was ordered to be taken off the file ; and comp. Matthews v. Chichester, cited in note ()•), p. 448, post. Wright v. Angle waa, however, followed in Lloyd v. The Solicitors' Life Assurance Com- pany, 3 W. R. 640, where the notice had not been given till the fourth day after the replication had been filed. In this case V. -C. Wood, to discourage the practice of such summary applications on a mere slip, refused to give any costs. See also note (c), p. 455, post. Omission to give notice of the filing of an answer in pursuance of this Consequences rule does not deprive the defendant of his right to move to dismiss under Ord. of omission to XXXIII. 10 (Jones v. Jones, 3 W. E. 638 ; and see Lowe v. Williams, 12 give notice of Beav. 432). answer. As to giving notice of the filing of a replication to a defendant absconding or out of the jurisdiction, see cases cited in note (e) to Ord. XVII. 2, p. 462, post. 10. Any solicitor signing any petition of rehearing or Rule 10. appeal, or any consent to a petition, or any notice of j^g' petitionro'f motion, or any proceeding or application to be made by a rehearing, &c., pauper, shall thereby become subject to all liabilities to paupers, to be 39a Order III. Solicitors and Parties acting in Person, and Service on them respectively. subject to liabilities. Eulell. Agreement by aolioitor as to cause not to be binding unless reduced to writing. SOLICITORS AND PARTIES, AND SERVICE. which the sworn clerks were formerly subject in respect of such matters (26th Oct. 1843; Ord. 25) (o). (o) See note to Ord. VII., 11, p. 406, post. 11. No agreement between any solicitors relating to any of their clients' causes shall be capable of being enforced, unless and until such agreement, or some note or memorial thereof, be put into writing, and subscribed by the party who is to be bound thereby, or his solicitor (13th July, 1685. 19th July, 169r-8).§ OnDBKlv. OEDEE IV. Commissioners Oaths°i™Chaiiw COMMISSIONERS TO ADMINISTER OaTHS IN ChANCBRY. — '- " The Commissioners to administer Oaths in Chancery Jf tokSaffi^"' ™ England" shaU not, within ten miles of Lincoln's Inn davits, &c. ■ Hall, take any affidavits, pleas, answers, disclaimers, or acknowledgments of deeds or recognizances, or do any other act incident to their office. And every such com- missioner shall express the time when, and the place where, he shall take any affidavit, plea, answer, or dis- claimer, or the acknowledgment of any deed or recog- nizance, otherwise the same shall not be held authentical, nor be admitted to be filed or enrolled. And in like manner every such commissioner shall express the time when, and the place where, he shall do any other act incident to his office (9th Oct. 1656. 22nd May, 1661 ; Sanders, 210. 21st Dec. 1833 ; Ord. 88) (a), (a) See ante, p. 230, as to these commissioners. Okdbk V. Official Attend* ance and Vaca- tions. Rule 1—3 Offices -when open. OEDEE V. Officul Attendance and Vacations (a). 1. The several offices of the court, except the offices of the Accountant- General and Taxing Masters, shall be open on every day of the year except Sundays, Good Friday, Monday and Tuesday in Easter week, Christmas •ATTENDAJfCE AND VACATIONS. 391 Day, and all days appointed by proclamation to be observed Ordbb V. as days of general fast, humiliation, or thanksgiving (8th ance and May, 1845 ; Ord. 5). yMaXions. (o) As to time runniDg during vacations, see notes to Ord. XXXIII. 13, Business, &c., p. 539, and XXXVII. 13, p. 670, post j and as to special applications in in yaoationa. vacation, Ord. VI. 11, p. 397, post; and as to summonses, certificates, &c., during vacation, Ord. XXXV. 68, 69, p. 661, post. 3. The offices of the Accountant- General and of the Taxing Masters shall be open on every day of the year except the days specified in the 1st Rule of this Order, and except during vacations (8th May, 1845 ; Ord. 6). 3. The office of the yacation Taxing Master shall be open, during the vacations, on every day except the days specified in the 1st Rule of this Order (8th May, 1845 ; Ord. 7). 4. The vacations to be observed in the several offices of Bale i, 6. the Court, except in the office of the Accountant- General, are to be four in every year, viz., the Easter vacation, the Whitsun vacation, the Long vacation, and the Christmas vacation; and (1.) The Eastei? vacation shall commence and termi- Articls (i). nate on such" days as the Lord Chancellor shall every year specially direct ; (2.) The Whitsun vacation shall commence on the -Article (2). third day after Easter term, and terminate on the second day before Trinity term in every year; (3.) The Long vacation shall commence on the 10th -Aiticle (3). day of August, and terminate on the 28th day of October in every year ; (4.) The Christmas vacation shall commence on the Article (4). 24th day of December in every year, and termi- nate on the 6th day of the following month of January; and (5.) The days of the commencement and termination Article (5). of each vacation shall be included in and reckoned part of such vacation (8th May, 1845 ; Ord. 8) (6). (i) As to when the duties of the vacation judge commence, see Francis y. Vacation judge. Browne, 10 W. B. 811, cited note (i), p. 398, ■post. 392 ATTENDANCE AND VACATIONS. Order V. 5. The vacations in the office of the Accountant- General L^f anf *'°'^' shall be the same as in the other offices, except as to the Yacationa. Long vacation, which, in that office, shall commence and terminate on such days as the Lord Chancellor shall every year direct (8th May, 1845 ; Ord. 9). Rule 6. 6. The Lord Chancellor may, from time to time, by cellor mayvary Special Order, direct the offices to be closed on days other vacation. than those mentioned in the 1st Eule of. this Order, and direct any of the vacations to commence and terminate on days different from the fixed days mentioned in the 4th Eule of this Order (8th May, 1845; Ord. 10) (c). OfSoes cloBed. (c) As to the effect of the ofiSces being closed on pending applications, see Flowers v. Bright, 2 J. & H. 690, cited p. 570, post. Order VI. Selection of ORDER VI. Selection op Couet (a). Rulel. to'b^ marked! 1 • Every original bill to be-filed in the High Court of Chancery shall (at the option of the plaintiff) be distinctly marked, at or near the top or upper part thereof, either with the words "Lord Chancellor," or with the words " Master of the Rolls ; " and if with the words " Lord Chancellor," then also with the name of one of the Vice- Chancellors for the time being, at the option of the plaintiff. And the Record and "Writ Clerks shall, in the books and indexes in which the same shall be entered, add to the entry thereof such distinguishing words or mark as may make it appear from such entry whether the bill is marked with the words " Lord Chancellor," or with the words " Master of the Rolls," and if with the words " Lord Chancellor," then for which of the Vice- Chancellors the same is marked. And the cause (unless removed by some special order (6) of the Lord Chancellor or Lords Justices) shall accordingly be attached to the court of the Master of the Rolls, or to the court of such Vice-Chancellor, as the case may be. And the Record and Writ Clerks shall not SELECTION OF COURT. 393 iile any original bill whicli shall not be marked in tbe Okdkr VI. manner hereinbefore directed (5th May, 1837; Ord- 1. CouVt. 29th Oct. 1851). (a) Where two suits for the same object are instituted in different branches Same suit in- of the court, application should generally be made to stay proceedings in one. stituted in two (As to the plea of a former suit depending, see note {k), post, p. 446 ; Daniell, branches of the 683.) _ Court. (1) If the suits are identical in object, the proceedings in one mil be stayed n ) If objects unconditionally, and the cause carried on in the other. Odder v. Golder, 9 ^re identical Hare, 276 ; Underwood v. Jee, 1 M. & (J. 276 ; Portarlmgton t. Darner, 2 proceedino's ' Phill. 262 ; JacJcson t. Leaf, 1 J. & W. 229 ; and the same rule applies to may be stayed petitions. Be Browse, 14 W. B. 298. ;„ ojjg branch In selecting the court in which the cause shall be carried on, the general rule ^nj^ jjje con- adopted is that the cause will be carried on in the suit where a decree was first (^^(.^, given to made ; but this rule is subject tp exceptions, e. g. where the plaintiff in the tjig plaintiff in later suit has a better right to the carriage of the suit. Thus, the suit insti- the other, tuted by a mother, has been preferred to other relations, though they had priority, Harris \. LigMfoot, 10 W. R. 31, and a person beneficially interested in preference to a creditor (Penney v. Francis, 9 W. B. 8 ; Kelk v. Arthur, 16 Jut. 605 ; see Belcher t. Belcher, 2 Dr. & Sm. 444), without respect to priority of decree. So where priority has been unfairly obtained, Harris v. Conduct of Gandy, 1 D. F. J. 13 ; Belcher t. Belcher, 13 W. R. 913 ; Frost v. Ward, cause. 2 D. P. J. 70, and cases cited, infra. As to inquiries in chambers where infants are concerned, see Daniell, 73, ■ If two decrees have been made in different branches of the court, the Course when transfer will, in the absence of special circumstances, be made to the branch two decrees where the fullest and most perfect decree has been made, lAttlewood t. CoUims, have been 11 W. R. 387 ; and see Oorser v. Jones, 14 W. R. 704. And as to the con- made, duct of decrees where two suits have been instituted in the same court, and generally, see note (/), p. 147, ante. The dismissal of the suit stayed will be without costs if there was no im- propriety in its institution, Brooksiank v. Higginbotham, 31 Beav,. 35, but otherwise with costs, Salter v. Tiddesly, 13 W. B. 376; Whittington r. Edwards, 3 De G. & J. 243 ; and so where a second petition for payment of Two petitions, money out of court was improperly presented, Be Chaplim, 3 N. R. 289. The rule applies equally where one suit for administration has been insti- Suit and sum- tnted by bill and another by summons. The proceedings instituted by bill will mens, be stayed, if the same decree can be made on the summons as on the hill, Ritchie v. Himiberstone, 22 L. J. Ch. 1006 ; Penney t. Francis, 9 W. R. 8 ; Thompson t. Thompson, 11 W. B. 797 ; Whittington v. Edwards, 3 De G. & J. 243 ; and see Pigott v. Toung, 7 W. R. 235, where a suit instituted by claim was adjourned into chambers. As to staying proceedings in the Duchy Court of Lancaster, see Wynne v. Duchy Oourtj Hughes, 26 Beav. 377, Bradley v. SUlfox, 1 N. R. 221. And as to staying suits in the Court of Chancery, because the matter in Foreign Court, litigation can be more effectually disposed of in a foreign court, see Ayokbourn, 337 ; Pieters v. Thompson, Cooper, 294. (2) Where the objects of the two suits are similar, bat one will effect more (2) If one than the other, the Court will not stay the proceedings as a matter of course suit will effect in either of the suits, unless one of them has been instituted with a view to more than the snatching a decree, see infra. other, proceed- For example, it has been held that a decretal order on an administration sum- ings need not mons was no answer to a suit embracing matters which could not be included in be stayed, that decree. Bump y. Qreenhill, 20 Beav. 512 ; and see note (p), p. 203, as to the limited order which can be made on summons. But even in such oases, if it is desirable to amalgamate the two suits, the There may be Court W01 do 60 on conditions. amalgamation. Thus, where two suits were instituted for administration the Court stayed 394 Obbbr VI. Selection of Court. Special order on amalgAmait- ing two suits. (3) If secoad suit unfair and unnecessary though not identical, the first cause may be hastened. Application to stay proceed- ings in one of two suits, how made ; by whom and when. Notice. Form of order. Transfer of causes. Ee-transfer of causes. SELECTION OF COURT. proceedings in the second suit, although it prayed additional relief, on the defendant in the first suit undertaking not to offer opposition to any ™a™rs not covered by the original decree which the judge in chambers might tn'""^^* to add thereto {Gwyer v. Peterson, 26 Bear. 83 ; Matthews v. Palmer, 11 W. K. 610) ; and in another case, instead of staying proceedings in the secpnd suit, the Court ordered the two suits to be consolidated, and the inquiries directed by the first decree to be extended, EoaUns t. Campbell, 2 H. & M. 43. A creditor, plaintiff in an administration suit, whose suit was stayed on the ground of a decree embracing the same objects in another suit instituted by executors, was held to be entitled to a discovery of the assets from the executor, Macrae v. Smith, 2 K. & J. 411 ; see Laaikester v. Wood, 14 L. T. N. S. 512. In another case the Court stayed proceedings in the second smt only so far as the first suit gave identical relief, Dryden t. Poster, 6 Beav. 146. Com- pare Piffard v. Vanrenan, 13 W. R. 425 (cit«d infra)-; and for a rase of consolidation of a large number of suits, see Foxwell v. Weister, 2 Dr. & Sm. 257 note, 12 W. R. 186. (3). But the Court will stay a suit though not identical, if it is unfairly and unreasonably instituted, e.g., where plaintiffs in a second administration suit obtained a decree without mentioning to the Court that another suit had been instituted, Harris v. lAghtfoot, 10 W. E. 31. So where an administration suit instituted by bill has been pending, and a party has without good reason attempted to gain priority by taking out a sum- mons, the first cause has been hastened to prevent him, White v. Lyon, 4 N. fe. 221 ; and see remarks by T.-C. Maling, in Tulloch v. Tulloch, 2 L. R. Eq. 574, 576 ; Fva-ze v. Bennett, 2 De G. & J. 125 ; Harris v. Gandy, 1 D. F. J. 13 ; and compare the cases on last page, as to giving the conduct of the cause to the plaintiff in the second suit, when piiority has been unfairly obtained. But see Piffa/rd v. Vanrenan, 13 W. R. 425, where the bill charged an executor with fraud, and the executor, after appearing to the bill, took out an administration summons and obtained the usual order, and V. -C. Stuart re- fused to discharge the order, and said that the accounts might be taken and the residue ascertained, subject to the reservation of the question raised by the bill. The proper course in making the application is to move before the Lord Chancellor or Lords Justices to transfer the cause, and then apply to the judge in whose court proceedings are to be stayed by motion, to stay proceedings, Duffort V. Arrowsmiih, 7 D. M. G. 434 (overruling White v. Johnson, 2 Phil. 689) ; Ladbrooke v. Sleaden, 16 Bear. 457. So where there has been a decree in both suits, Scott v. Stone, 22 L. J. Ch, 911. See, too, Bryson T. Warvrich and Napton Canal Company, 18 Jur. 893. The personal representative should apply as soon as a decree has been made in one suit. But if he neglects, the plaintiff who first obtained the decree should apply. If no one interested applies, the Court itself will make the appli- cation. Swale V. Swale, 22 Beav. 401. One clear day's notice of an application to transfer a cause must be given to the other side, Sideioltom y. Sidebottom, 7 W. R. 104. And where one of the defendants, had neither consented nor been served, the application was refused, though all the other parties concurred, Pond v. Barnes, 2 D. F. J. 387. For form of order, see Seton, 887 ; and as to the costs in the suit which is stayed, see ibid, 888. (6) Where two bills which, though not strictly cross bills, are clearly in the nature of cross bills, are filed in different courts, the second suit will be trans- ferred to the court in which the first bill was filed, Merchant Banking Com- pany V. Maud, 15 W. E. 886. ■Where a cause has been transferred by general order from one court to another, a re-transfer will not, without consent, be ordered where it will delay the hearing. Where it will not cause delay, the Court will give weight to the fact that the judge from whose court it has been transferred has by means of interlocutory applications gained an acquaintance with the facts, Piatt v. Walker, 1 L. E. Ch. 471 ; but it will not take into consideration that such judpe has decided a similar point in another case, Wilson v. Graii, 14 W. E. 783. SELECTION Of COURT. 395 Generally, on applications for a transfer of a cause the Court will consider Obdek VI. the probability of convenience, Omrlewis v. WMdbome, 10 W. R. 261. Selection of As to applications for re-transfer, see Wilson. -r. Gray, (1. c); ani Tiffin y. Court. Parker, 12 W. R. 698, where the applications were unsuccessful. The Court will not allow a suit to be transferred where any one of the ConTenienoe. defendants has not consented, and has not been served with notice of the appli- Notice of appli- cation, Bond V. Barnes, 2 D. F. J. 387. cation. 2. The Eecord and Writs Clerk to whom it belongs to ^"^^^ 2. give or sign the certificate that a cause is ready for hearing, and Writ shall, upon being applied to for such certificate, see that the ^'^^''^'g f^l' same certificate is marked, or cause the same to be marked, marked. with the designation of the judge to whose court the cause is attached (5th May, 1837; Ord. 3. . 11th Nov. 1841; Ord. 2). 3. The Eegistrars shall not set down to be heard any ^»^^ 3. cause in which the certificate of the cause being ready for be set down hearing shall not be marked in the manner hereinbefore "°'^f certifi- ° cate be marked. directed (5th May, 1837; Ord. 4). 4. Unless otherwise directed by any special order of Rule i. the Lord Chancellor or the Lords Justices, every plea or Diurrers%x- demurrer and all exceptions in any cause shall be set ceptions, and down to be heard before the judge to whose court the down before cause is attached, and every cause shall be set down to ^""^^f *° ^'"'^^ ' _ _ •' court cause be heard in conformity with the manner in which the attached. certificate of the same being ready for hearing is marked as hereinbefore directed (5th May, 1837; Ord. 6) (c). (c) An order irregularly obtained must be properly discharged, and cannot Irregular order be treated as a nullity. See Daniell, 745 ; Willcins v. Stevens, 10 Sim. 617 ; not a nullity. BlaJee v. Blake, 7 Beav, 514 ; Fennings v. Hwmphery, 4 Beav. 1 ; Chuck v. Cremer, 2 Ph. 113. See note to Ord. IX. 12, p. 413, posl. Aa to the costs of an irregular proceeding, see next note. 5. Save as hereinafter provided, all motions, petitions. Me 5. rehearings otherwise than by way of appeal, and further tio°ns°'rehear- proceedings in causes shall be had before the judge to ^°s^ ^^^ f^r- 1 11 1. ii 1 J /■ 7\ *"^'' proceed- whose court such causes are or shall be attached (a), ingatobeset unless removed therefrom by any special order of the ?^^° ^^^^^ Lord Chancellor or the Lords Justices (5th May, 1837; court cause Ords. 9 & 13. 11th Nov. 1841; Ord. 5. 39th Oct. 1851; ^"^''^'''• Ord. 7) {d). (d) An application to tax a solicitor's bill need not necessarily be made in What appIica-1 the court where the business was done, see note (l), p. 17, ante. tions may be See also note (/) to next section, and Earl of Shrewsbury v. Trappes, cited, madeinanother note (0, p. 398, post. Court. 396 SELECTION OP COURT. Okdek VI. Selection of Court. Orders affect- ing other Ibrauches of the Court. Rule 6. Notices of motions and petitions not in any cause, and petitions and motion papers, under Stat. 13 & 14 Vict. c. 35, s. 19, and orders thereon^ are to be marked in same manner as bill. But it was held by V.-C. Shadwell that he had no right, to order even a fund standing in trust in a Lord Chancellor's cause to be transferred to a RoUs cause {Wright v. Irving, 10 Sim. 625; see, too, Hooper r. Paver, 6 Beav. 173). If a notice of motion has been irregularly given before the wrong Court, that Court has jurisdiction to make the applicant pay the costs ( Tearsley v. Teariley, 19 Beav. 1). 6. Every notice of motion not in any cause, and every petition not in any cause, and every petition or motion paper under the Stat. 13 & 14 Vict. c. 35, s. 19, shall be marked at or near the top or upper part thereof, in the same manner as a bill is now marked, with the name of the Lord Chancellor and one of the Vice-Chancellors, or with the name of the Master of the EoUs; and every order made thereon shall be marked in the same manner as the said notice of motion, petition or motion paper ; and the matter in which such order is made shall thence- forth be considered as attached to the court of the judge whose name shall be so marked upon such order (e) in like manner and for the like purpose as causes are attached to such court, but shall be subject to be transferred from such court in the same manner as causes are so trans- ferred; and the provisions of the 5th and 11th Rules of this Order shall apply to every matter so attached (2nd Nov. 1850 ; Ord. 37. 11th Nov. 1841; Ord. 6. 5th May, 1837; Ord. 16. 29th Oct. 1851; Ord. 7) (/). Vacation. (*) Notwithstanding this rule any Yice-Chancellor may hear a motion or petition for another, who has risen for the vacation (Rule 11 and note). What applica- Lf) ^^ ^^^ following cases it has been held that applications need not be made tions may be *" ^^^ i^^S^ to whose court the matter is attached. made out of Where an order was made for new trustees of a charity, it was held not to court to which ^^ necessary that all subsequent applications for appointment of new trustees the matter is should be made to the judge who had made the first order, Be Watts' Charities, attached. ^^ Beav. 404 ; and the same was held where the applications were for the payment of dividends on sums paid into court in the matter of a private Act of Parliament, Re Bilston Curacy, 10 W. R. 516 ; reluctantly followed by V.-C. Wood in Me Hayhen's Trust, ibid. 557 ; but see contra, Be Browse, 14 W. R. 298. Rule "7. *7. Upon any Vice-Chancellor for the time being ceasing ceasing to hold *° ^o\&. his office, any cause or matter which shall then his ofiSce. be attached to the Court of such Vice-Chancellor shall, unless removed by any special order of the Lord Chan- cellor or Lords Justices, thenceforth be attached to the SELECTION OF COURT. 397 court of his successor, as Vice- Chancellor for the time Order vi. 1 • Selection of being. Court. 8. The Eegistrars shall keep distinct lists of the causes RrHeS ~ and other matters set down to be heard before each judge Registrars to (llthNoY.1841;_Ord.7). etleslt' 9. All applications for orders of course to be obtained Bule 9. on petition or motion shall and may be made in the same course! ° manner, in all respects, as if the above Rules of this Order had not been made (g) (5th May, 1837 ; Ord. 14). {g) See Ord. XXIII. 17, p. 492, post. A motion of course in a cause attached to one Vice-Chancellor's Court may be made to another Yice-Chau- cellor {Magan v. Magan, 16 Jnr, 587). 10. Applications to discharge, reverse, or alter any Euleio. order made on motion or petition of course by the Lord disohsu^e™^ Chancellor, the Lords Justices, the Master of the Eolls, reverse, or -,.__.„, „ 1 11 1 1 1.1 ^l'^"-' orders of or one oi the Vice-ChanceLlors, shall be made to the judge course. to whom special applications in the cause or matter in which such order is made, ought to be made (3nd Nov. 1850 ; Ord. 26) {h). {h) See 13 & 14 Tict. c. 36, e. 29 (page 131, ante). Therefore on an appli- Application to cation to the Master of the Rolls to discharge a Rolls order of course made discharge Rolls in a Vice-Chancellor's cause, the Court -will not look to the merits except so far order of course as to enable it to judge of the regularity of the order (St. Victor v. Deve- in a V.-C.'s rejix, 6 Beav. 584 ; Hooper v. Paver, ibid, 173 ; Ai-nold v. Arnold, 9 Beav. cause. 206). But when the question is simply one of irregularity, the Master of the EoUs On question of yriU. entevtaw it (Marquis of Hertford y. Suisse, 7 BeaT. 160). irregularity. Otherwise, if it goes to the merits of the case, it will be dismissed with costs, q^ question of Cooper-v. Knox, IS Beav. 102. merits. In order to give a Vice-Chancellor jurisdiction to discharge or vary a common „, ' order for taxation of costs made by the M. R. in such V.-C.'s cause, the . , ®?.°° ™" petition must be entitled in the suit, and not merely "in the matter of A. B. ' ^ ^° cause a solicitor," He Sell, 2 H. & M. 501. 11. In the interval between the close of the sittings Rule 11. after any term and the commencement of the sittings ^^1°^ ",, "^ before or at the beginning of the next ensuing term, tions. applications for special orders may be made to any judge of the court in the same manner as if the above rules of this Order had not been made («') ; but the orders which shall be made in any such interval by the Lord Chan- cellor or the Lords Justices, or by the Master of the Rolls, or by any of the Vice-Chancellors, shall, — if not made by the judge to whom the application, if made during the 398 SELECTION OF COURT. Oedeb VI. Selection of of Court. Vacation judge, Rule 12. Applications to stay proceed- ings on decree or order ap- pealed from. Application where made to the Appeal Court. Rule 13. New trial of ordinary sittings of the Court, would have been made pursuant to the directions contained in this Order, — be marked as haying been made for such judge, and shall in the future proceedings of the cause be deemed to be the order of such judge, in all respects, save this, — ^that no order so made by one judge for another, under the cir- cumstances aforesaid, shall be re-heard for the purpose of being discharged or varied, otherwise than by the Lord Chancellor or the Lords Justices (5th May, 1837; Ord. 15. 5th Aug. 1842) {k). (i) The jurisdiction of the vacation judge to hear applications in causes pending in any of the courts, commences when that court rises for theTacation, though it may have risen before the time provided by Ord. V. 4, for the com- mencement of the vacation, Francis v. Browne, 10 W. R. 811. (h) See Holloway v. PhiUipg, 22 L. J. Ch. 1091 ; Pricey. Gardner, 1 Jur. N. S. 975 ; Seam, v. Griffith, ibid., 1045 ; Man v. Siclcetts, 9 Beav. 4. 12. Every application to stay proceedings [1) upon any decree or order which is appealed from, shall be made first to the judge who pronounced the decree or order (3rd April, 1828 ; Ord. 46). (I) See note {cfy, p. 522, post, as to motions to stay proceedings pending an appeal. This rule is not invariable ; thus, where a plaintiff's bill to restrain the defendant from taking proceedings on a judgment at law had been dis- missed, and he appealed, he was allowed to move before the Court of Appeal that the defendant might be restrained from putting his judgment in force until the petition of rehearing should have been disposed of, £arl of Shrews- bury V. Trappes, 2 D. F. J. 172. 13. Every application for the new trial of any issue or question of fact directed by a judge of this court to be tried at law, shall be first made to the judge who directed such issue or question of fact to be so tried (3rd April, 1828; Ord. 47) (m). (m) See as to new trials of issues, note Qe), p. 267, ante. Obdeh VII. Parties, Per- sons under Disability, and Paupers. Rule 1. Heir at law minecessary OEDER VII. Parties, Persons tjndee Disability, and Paupers. I. Parties Generally. 1. In suits to execute the trusts of a will, it s^all not be necessary to make the beir q.t l£^,w a parjiy ; ji^nt the PARTIES GENERALLY. 399 plaintiff shall be at liberty to make the heir at law a party, Ombr Vll. where he desires to have the will established against him foM^undrr" (26th Aug. 1841; Ord. 31) (a). DiaabUity, and Paupers. • (a) See as to the practice before this rnle, Daniell, 225, and see ShaheU v. ZZIZZ Z — Richardson, 2 Coll. 31 ; JBarch t. Omey, 14 Jur. 1109 ; WeeJcs v. Evans, 7 to execnt " Sim. 546, for the present practice of administering real assets in the absence *„„„*„ „c^ -n of the heir. musts otwiu. Heir not neoes- 2. (b) "Where the plaintiff has a joint and several de- administration mand against several persons, either as principals or °^ "^^^^ ^^'*'®' sureties, it shall not be necessary to bring before the Parties jointly Court, as parties to a suit concerning such demand, all i^yris™"^ the persons liable theretg ; but the plaintiff may proceed principals or against one or more of the persons severally liable (26th ^''™'^^'- Aug. 1841; Ord. 33). (i) The rule applies where the amount is ascertained ; thus in Perry v. One trustee Knott, 5 Beav. 293, it was held by Lord Langdale, that a cestui que trust, may be made seeking to mate one of several trustees liable for a breach of trust, need not liable for make the other trustees parties. See, too, Strong v. Strong, 18 Beav. 408 ; breach of trust Norris v. Wriglvt, 14 Bear. 291 (where the presence of the assignees of separately from bankrupt trustees was dispensed with) ; Attorney-General v. Pearson, 2 Coll.. co-trustee. 581 ; Attorney-General y. Corporation of Leicester, 7 Beav. 176, which was the case of a charity information ; Kellaway v. Johnson, 5 Beav. 319 ; Bateman v. Margerison, 6 Hare, 496 ; Masters v. Barnes, 2 Y. & C. C. 0. 616. These eases seem at first sight opposed to Lenaglian v. Smith, 2 Ph. 301 ; Lewis V. Allen, 8 W. R. 603 ; Fussell v. Elwin, 7 Hare, 29 (where on the bankruptcy of one defendant trustee the suit had to be revived against his assignees), 'PAiKipson v. Gatty, 6 Hare, 26 ; Fowler v. Reynal, 2 De (J. & Sm. 749 ; Skiptonv, Sawlins, 4 Hare, 619, where under somewhat similar circum- stances the absent trustees, or their representatives, were held to be necessary parties;. see note to Devaynes v. Robinson, 24 Beav. 86; Richardson v. Hastings, 7 Beav. 301 ; and see Macgachen v. Dew, 15 Beav. 84 ; where, however, the circumstances were peculiar, the breach of trust having been committed by two classes of trustees, and the Court holding that the cestui que trust might proceed against one class separately ; but the distinction is that Unless the suit where a gemeral account and general administration is sought, or may he will lead to a involved in the suit, all the trustees must be parties ; but where trustees general admi- are sought to be made liable for an ascertained amount, the general order nistration. applies, Goppardv. Allen, 2 D. J. S. 173; Chancellory. 3forecraft,llSesir. 262 ; Biggs v. Penn, 4 Hare, 469 ; Hall v. Austen, 2 Coll. 670 ; Penny v. Penny, 9 Hare, 39. But the personal representative of an executor or trustee who has never acted Where oo- or received assets was not, even before the rule, a necessary party to a suit for trustee never administration of the estate (see Williams on Executors, p. 1860 ; and Pitt acted. V. Brewster, Dick, 37; and comp. Masters v. Barnes, 1. c, with Hall v. Austen, I. c, and HolUmd v. Prior, 1 M. & K. 237, where the executor had both acted and received assets). As to the necessity of making cestuis que trusts, or other persons involved, When cestuis parties to a suit against a trustee in respect of a breach of trust, see Lund v. que trusts Blanshard, 4 Hare, 9, and note (e), p. 198, ante, and compare Williams v. should *e Allen, 29 Beav. 292, where the cestuis que trusts being dead, administration parties, to their estates limited to the purposes of the suit was, in such a case, held • sufficient ; see the case on appeal, 10 W. E. 612. 400 PARTIES GENEEALLY. Order VII. Parties, Per- sons under Disability, and Paupers, Case of part- nership. Principal and surety. Sule 3. Default in appearing or answering by an infant or person of unsound mind not found so by inquisition. Solicitor assigned as guardian. Next friends. The rule does not allaw a, partnership debt to be recovered against one partner's representative without making a surviving partner a party, Hills v. M'Rae, 9 Hare, 297; Goxy. Stephens, 2 N. K. 596; but see, ffaigv. Grey, 3 De G. & Sm. 741 ; Thorpe v. Jachon, 2 T. & Coll. Ex. 653. It seems that a plaintiff may not sue a surety under this order in the absence of his principal or co-surety (Lloydv. Smith, 13 Sim. 457; Piersonv. Barclay, 2 De G. & Sm. 746 ; Allan v. Sowlden, 6 Beav. 148 ; but see Wilson v. Goodnum, 4 Hare, 63). See further, as to parties in respect of joint and several demands, Maclntyre v. Connell, 1 Sim. N. S. 252 ; Mayor of Ber- wick V. Mmray, 5 W. K. 208 ; Colby v. SawJcms, 6 Jur. 162 ; and Daniell, 258. II. Infants (c) and Persons of TJnsownd Mind {d). 3. Where, upon default made (e) by a defendant in not appearing to or not answering a bill, it appears to tbe Court that such defendant is an infant or a person of weak or unsound mind, not so found by inquisition, so that he is unable of himself to defend the suit, the Court may, upon the application (/) of the plaintiff, order that one of the solicitors of the court ( J \ /J Signature of unless the same be signed by counsel (6) (Henry V. counsel. • Ord. 17; and 33nd May, 1661; Sanders, 298, 300). (a) As to disclaimers, see Daniell, 653, et seq., and as to the costs of dis- Disclaimer, claimers, see Morgan & Davey on Costs, 81, DUlony. Ashwin, 12 W. B. 366 ; and as to plaintiff dismissing his bill against disclaiming defendants, see Dur- rani V. JDwrroKt, 10 Jur. N. S. 92. (5) A biU not signed by coaqgel is demurrable (Kirkley v. Bwton, 3 Madd, Counsel's 378), or may be taken off the file (French v. Dear, 5 Ves. 547 ; Burch v. signature Rich, 1 B. & H. 156 ; and where a plaintiff improperly altered the bill, after it had been signed by counsel, it was taken off the file with costs to be paid by the plaintiff, Troup v. Eicardo, 13 W. B. 147. See further as to the sanction required in the case of bills and informations, and sanction to note (a), next page. bills, &c. An amended bill not required to be printed, if amended by the counsel who signed the bill, need not be re-signed ( TFeJsto" v. Woodfall, 1 S. & S. 135). If the signature be omitted, defendant may apply for leave to amend {Har- rison y. Delmont, 1 Price, 108) ; see Ooppeard v. Mayhem, 22 L. J. Ch. 408. A special case must be signed by counsel, see ante, p. 121. 2. No counsel shall sign any [bill, answer, or other .„ Eule2. , ,. , . , ^ ^ , , , ,. Pernsalby pleading, unless it be drawn, or, at least, perused, by him- counsel. self before it be signed. And counsel shall take care that deeds, writings, or records, be not unnecessarily set out therein in hesc verba ; but that so much of them only as is pertinent and material be set out or stated, or the effect and substance of so much of them only as is perti- nent and material be given, as counsel may deem advis- able, without needless prolixity ; and that no scandalous matter (c) be inserted therein (23nd May, 1661; Sanders, 296). (c) As to scandal, see notes to Ord. XVI. 21, post. 3. No bill, answer, or other pleading, shall be said to be Bule 3. of record, or be of any effect in court, until the same be pleadings. filed in the office of the Clerks of Records and Writs (22nd May, 1661 ; Sanders, 297. 8th May, 1673, Ord. 4). . *4. No claim shall be filed after the fourteenth day of q^^^^*^- February, 1860. abolished. 408- BILLS GENERALLY. Orbeb IX. Bills. Eule 1. Value of sub- ject matter. Informations. Sauction to. BiU filed with- out sanction. Bill to estat- lisb rights. Where infor- mation with- held. Eule 2. Form of bill. * Endorse- ment on bills. OEDER IX. Bills. I. Bills generally (a). 1. Every suit, the subject matter of which is under the value of 10/., shall be dismissed, unless it be instituted to establish a general right, or unless there shall be some other special circumstance (&), which, in the opinion of the Court, shall make it reasonable that such suit should be retained (39th Jan. 1618-19 ; Ord. 15). (a) As to the form of a bill, see Sched. A. Appendix, p. i., post. The word " bill " includes an information (Prel. Ord. X. (4), p. 36i,ante). The Attorney-General must sign and sanction an information before it is filed or amended (Attomey-Generai t. Fellowes, IJ. & W. 254). A certificate of the relator's solicitor of his competency to pay the costs, and that the printed copy of the bill is a true copy of the draft prepared by counsel, is required by the Attorney-General before giving his sanction. A bill improperly filed without the client's sanction, will be ordercd-to be taken off the file with costs to be paid by the solicitor, Jwrdine v. Bright, 10 W. R. 380, see Se Thompson, 25 Beav. 245 ; Dauiell, 290 ; Seton, 853. As to bills filed in the name of a company, but without their sanction, see East Pant Du Mining Company v. Merryweather, 13 W. B. 216. As to consent of relator's next friends, &c., see 15 & 16 Vict. c. 86, s. 11, p. 165, ante, and as to signature by counsel, see last order. See Oox v. Foley, 1 Vern. 359, where a bill for establishing a right to ancient quit rents of very small value was allowed to be filed. Where the suit is for the benefit of a charity it wUl be entertained though for a smaller amount than 101. {Parrot v. Pawlet, Gary's Rep. 103). (6) Where the sum recovered was only 9^., it was held that the suit was sustainable, and the plaintiff was entitled to his costs, because the defendants had withheld information, and the plaintiff was justified in supposing that he might have recovered more (BecJdtt v. Bilhrough, 8 Hare, 188). The objec- tion may be taken advantage of by demurrer, or at the hearing (Brace v. Taylor, 2 Atk. 253). 3. Bills may be in a form similar to the form set out in Schedule (A.) to these Orders (c), with such variations as the nature and circumstances of each particular case may require (7th Aug, 1853; 1st Set, Ord. 14). * And biUs shall be endorsed in the manner set forth in the Schedule to the Stat. 15 & 16 Vict. c. 86, ex- cept that, instead of the words in the note, " You will be liable to be arrested and imprisoned," there shall be substituted the words, " The plaintiff may enter an appearance for you, and you will be liable to be arrested BILLS GENERALLY. 409 and imprisoned, and to have a decree made against you in ^^^^^ ^^■ your absence " (d). '■ (c) See Schedule 4-> Appendix, p. 1. (d) See as to the indorsements on billsj p. 226, ante, and note (e) p. 162, ante. *8. Bills shall be printed (e) on cream-wove machine- .^Y^« *|- drawing foolscap folio paper, IQlbs. per mill ream, in pica bills. type, leaded, with an inner margin about three-quarters of an inch wide, and an outer margin about two inches and a half wide (7th Aug. 1853 ; 1st Set, Ord. 1). And dates and sums occurring therein shall be expressed by figures instead of words (/). (e) As to printing bills, see 15 & 16 Vict. e. 86, s. 3 (p. 162) ; slight alte- rations may be made in writing {ibid, note (d) ). (/) See, before the rule. Anon., 9 Hare, App. Ixxxiii. ; and see the cases cited on Order 6th March, 1860, post, as to printing of answers. 4. The Clerks of Eecords and Writs shall, at the ex- Eule 4. piration of fourteen days from the filing of any written ^f not'fillng*^ bill or written copy of a biU, under the Stat. 15 & 16 Vict, a printed copy c. 86, s. 1, take off the files of the court, without further -vritMn 14 order, the bill or copy so filed, unless a printed copy ^*y^- thereof shall in the meantime have been filed. And the plaintiff in the suit, or his solicitor, who shall personally have undertaken to file such printed copy, shall pay to the defendant all the costs incurred by him in the suit ; such costs to be taxed by the Taxing Master, without further order, upon production to him of the certificate of the Clerk of Eecords and Writs, that a printed copy of the bill has not been filed pursuant to such undertaking, and to be recoverable in like manner as costs ordered to be paid by a party in a suit to another party in a suit are recoverable (7th Aug. 1852 ; 1st Set, Ord. 3) (g). (g) For cases where this rule has been relaxed, see notes {1} and (m), p. 164. 5. No defendant shall be at liberty to demand from the Rule 5. plaintiff more than ten printed copies of his bill (7th Aug. only entitled 1853 ; 1st Set, Ord. 6). to ten copies. 6. Witnesses shall not be examined in perpetuam rei . Rule 6. memoriam, unless a bill shall have been filed for the pur- petuam rei pose (29th Jan. 1618-19; Ord. 73. 12th Nov. 1556) (/i). memoriam. (h) See 5 & 6 Vict. c. 69, ante, p. 10. It seems the Court has jurisdiction Perpetuating to perpetuate testimony with a view to proceedings in foreign courts (Morris t. testimony for foreign courts. 410 BILLS GENERALLY. Order IX. Bills. Answer ad- mitting right to examine sufficient. Where defen- dant refuses to answer. When volun- tary answer put in, dis- puting plain- tiff's right. Want of prose- cution. Evidence how taken. Mon-is, 2 Ph. 206). See further, as to taking evidence to be used in foreign courts,_ 19 & 20 Vict, c. 113. A bill for the perpetuation of testimony is distinct from a bill for dis- covery, and an answer admitting the plaintiff's title to examine the wit- nesses is a sufficient answer, ElUce v. Rowpdl, 32 Beav. 299 ; but if the de- fendant puts in no answer to such a bill, and stands out aU process of con- tempt, the Court will order the examination of the witnesses, such being equivalent to taking the bill^o confesao {Lancaster ■v. Lancaster, 6 Sim. 439 ; Coveny v. Athill, 1 Dick. 355). Where the defendant put in a, voluntary answer disputing the case made by the bill and moved to dismiss, the motion was ordered to stand over, with liberty to either party to examine witnesses to prove the point in issue, and no order was made as to costs {Brigtoche V. Boch, Wedgwood v. Soch, 7 Jur. N. S. 63). A motion to dismiss a bill to perpetuate testimony for want of prosecu- tion, either before or after replication, is irregular ( WriglU v. Tatham, 2 Sim. 459 ; JBeavan v. Carpenter, 11 Sim. 22). The proper order is that the plaintiff do proceed within a certain time, or pay the defendant his costs {ibid. ; and see Ba/rham v. Longman, 2 Sim. 460). A special examiner may be appointed to take evidence out of the jurisdic- tion, see, note {w), p. 183 ; and in suits to perpetuate testimony, evidence is to be taken according to the practice as settled before the Ord. 5fli Feb. 1861. See rule 16 of that order, post. Eule 7. Not to be set down for hear- ing. After exami- nation, case ended. Costs. Course where cause set down, 7. No suit to perpetuate the testimony of witnesses shall be set down for hearing (9th Nov. 1670) (i). (i) When the witnesses have been examined there is an end of the cause {Morrison v. Arnold, 19 Ves. 670) ; and the defendant, upon an allegation that he did not examine any witnesses, may obtain an order of course for his costs {Foulds V. Midgeley, 1 V. & B. 138) ; but if he examines witnesses himself he is not entitled to any costs, Shrine v. Powell, 15 Sim. 8], Morgan & Davey, 149. Where the defendant obtains the usual order for his costs, and such order recites that the testimony of witnesses has been taken, the examination must be regarded as completely taken, and cannot be excluded because there was no sufficient cross-examination {WatJdns v. Atchison, 10 Hare, App. xlvi.). Where, contrary to the rule, the cause is set down, the bill wUl be dismissed with costs, EUice v. Soupell (No. 2), 32 Beav. 308 ; but the plaintiff may nevertheless have the benefit of the depositions {SaZl v. Eoddesdon, 2 P. W. 162 ; and see Yaughany. Fitzgerald, 1 Sch. & Lef. 316). Unless the witnesses are incapacitated from travelling, their depositions taken in a suit instituted in perpetuaw, rei memoriam, caimot be read, Morrison v. Arnold, 19 Ves. 670, and see Watkins v. Atchison, 10 Hare, App. Ixvi. II. Amendment of Bills (j). Rule 8. 8. An order for leave to amend a bill may be obtained Order for leave , , . , « , , to amend at any time before answer (fc), upon motion or petition, before answer, ^thout notice (8th May, 1845 ; Ord. 64) {I). What amend- ments are of course. Information. {j) As to what parties and what facts may be introduced by amendment, see note (p), pp. 216, 217, ante. As to slight alterations in the print of a bill, see note {d}, p. 162, ante. An inforinatiou cannot be amended without the sanction and signature of the Attorney-General, Attorney-General v. Fellowes, 1 G-. & W. 254. As to printing amendments, see, infra, rule 18, and note. As to time allowed for amending, see rule 24, infra, p. 417. AMENDMENT OF BILLS. 411 As to indorsement on amended bill, see note (e), p. 162, ante. Oedee IX. As to plaintiff's costs of amendment and defendant's costs thereby occasioned, Bills, see Ord. XL. 7, 8, post, Daniell, 385. As to amendment of a defendant's concise statement, see Mertens t. Haigh, Indorsement. 2 W. N. (1867), 198. Where a plaintiff had amended his bill, and found it necessary afterwards to Amendments apply for leave td strike out the amendments, such leave was granted. Eagles struck out. . V. Le Breton, 5 L. T. N. S. 818, and see form of order, Seton, 1254. If the plaintiff obtains an order to amend, after ohtaining an interim injunc- Interim in- tion, such order will be pHmd fade without prejudice to the injunction, Ken- junction not nedy v. Lewis, 14 Jur. 166, and see remarks thereon in Seton, 873 ; though ipso facto dis- until the practice as to special and common injunctions was assimilated (see p. solved by 221, ante), the order to amend was not always without prejudice in the case of amendment ot the common injunction. So . the order to amend need not contain the words bill, "without prejudice" in order to save the injunction, nor will these words, if inserted, preclude the defendant from moving to dissolve the injunction in a but defendant proper case, e. g., if the plaintiff by amendment has changed the record, At- may move to tomey-General v. Marsh, 10 Sim. 572 ; or broken the terms of an arrange- dissolve, ment, Clarice v. Clarlc, 13 W. R. 133 ; and see Harding v. Ti/ngey, 12 W. K. 703. A writ of ne exeat is not lost by amendment of the bill. Grant v. Qrant, 5 but not writ Russ. 189. of ne exeat. Where a plaintiff amends after giving notice of motion, the notice is gone Notice of mo- (Martin v. Frost, 8 Sim. 199 ; Moneypenny v, , 1 W. E. 99), whether tion is gone the motion be for an injunction or a receiver, Smith v. Dixon, 12 W. E. 934 ; if plaintiff and he must pay the costs occasioned by the notice thus waived, Ord. XL. 23, afterwards post. So by amendment the plaintiff is considered to have purged a defendant's amends bill, contempt for want of answer, note (p), next page, and a previous order to tajse -g amendment the bill pro confesso, becomes inoperative, but the order for amendment may Tjlointiff waives save the plaintiff's rights, 1 Will. 4, c. 36, s. 15, r. 10; and see Weightmanv. defendant's Powell, 2 De G. & Sm. 570. • _ contempt. Similarly, a plaintiff can only call for an answer to his amended bill in ' respect of the amendments ; for by amending he admits the former answer sufficient; see note {«) to Ord. XVI. 12, post; and as to costs where an answer to an amended bill is vexatiously required, see CocJes v. Stanley, 6 W. E. 45. Qe) If no answer is required and none is put in, there seems to be no limit Time for to amendment but the Court's discretion, Oill v. Bayner, 1 K. & J. 395. amendment. The following rules of this order provide that after the answer, or last of Where no an- the answers is put in, a "plaintiff is entitled at any time within four weeks swer required, (if no defendant has moved to dismiss for want of prosecution, see rule 12), to Afj..,, ongwer one order of course to amend (unless he has undertaken to file replication), which may be applied for by motion in Court or petition at the Eolls (Ayckb. 33), see rr. 10, 11. (Z) Applications for leave to amend, which are not of course, must be obtained by special application in chambers (ante, p. 146). For the evidence necessary in support of such special application, see rr. 14, 15, 16. The order of course to amend is irregular, if iiere is any concealment of When special material circumstances affecting the original biU, e. g., if a demurrer has application is been served and set down, Hoflich v. Reynolds, 9 W. E. 398, or a plea, see necessary. Nech V. Gains, cited in note to sect. 10, infra, or if an appeal from a demurrer is pending (Ainslie v. Sims, 17 Beav. 174 ; and see Lewis v. Cooper, 2 Ph. 178, and oases there cited), or if a reference, whether the bill is for an infant's benefit, is pending, Fletcher v. Moore, 11 Beav. 617. The order for leave to amend operates from the day of service only (Price Order operates V. Webb, 2 Hare, 515, cited, post, note to rule 12 ; and see James v. Charle- from service. mowt, 12 Jur. 389). Where the plaintiff does not require a farther answer, the order to amend should state this (Boddimgton v. Woodley, 9 Sim. 380 ; and see Hemvngwwy v. Femavdex, 12 Sim. 165); but notwithstanding service of order, defendant may answer original bill (Maekerell v. Fisher, 14 Sim. 604). On an application to amend when interrogatories have been filed, but no answer has been put in (ex. gr., when a demurrer is allowed), it may become 412 AMENDMENT OF BILLS. Obder IX. proper to ask for leave to amend both the bill and the interrogatories, as the Bills. latter cannot be amended under an order to amend the bill alone. K,uie9. 9. An order for leave to amend a bill only for the rectified. purpose of rectifying some clerical error m names, dates, or sums, may be obtained at any time, upon motion or petition, without notice (8th May, 1845 ; Ord. 65) (m). Effect of order on order to take bill pro confesso. Rule 10. Time for order of course for leave to amend, where one answer. (m) See Barnes v. RidglVwi/, 1 Sm. & Gif. App. xviii. An order obtained under this rule was held to render an order to take a bill pro confesso inoperative, see Weightman v. Powell, cited last page ; but see Cheeseborough v. Wright, 28 Beav. 173. As to misnomers in copies of bills served on formal parties, see WUham v. Salvin, 16 Jur. 420, cited in notes to Ord. X. 12, p. 428, post. 10. {n) Where there is a sole defendant, or where, there being several defendants, they all join in the same answer, the plaintiff may, after answer and before replication or undertaking to reply, obtain one order of course (o) for leave to amend the bill, at any time within four weeks after the answer is to be deemed or is held to be sufficient {p) (8th May, 1845 ; Ord. 16, Art. 32). (») An order of course cannot be obtained under this or the following rules, when the answer to the discovery sought has been accompanied by a plea to the relief sought (Neck v, Cfains, 1 De G. & Sm. 223), and see note (I), supra. (o) Any further order must be obtained by special application by summons in chambers, see rr. 13, 15, infra, and p. 146, ante. {p) The rule applies to the case of an answer to an amended as well as to an original bill, Masterman v. Midlamd, course tor leavp defendant (being entitled to move) has served a notice of to amend, after motion to dismiss the bill for want of prosecution (13th mi'ss"" April, 1847) (s). (s) Where a notice of motion to dismiss was served, but withdrawn, it did Order obtained not prevent the common order to amend, Briggs v. Beale, 4 N. E. 261. but not served. An order to amend dates from its service (Price v. Webb, 2 Hare, 515), therefore an order of course to amend obtained but not semed before service of a notice of motion to dismiss for want of prosecution, is a nullity, and is therefore no answer to the motion to dismiss, Jones v. Lord Cha/rlemont, 12 Jur. 389. Comp. Morris v. Owen, 1 V. & B. 523; but the rule of the Court now is to treat all orders made as valid until they are regularly discharged ; see Story v. Official Manager of the National Inswrance Company, 8 L. T. N. S. 534 ; and note to Ord. VI. 4, p. 395, ante. When the defendant has moved to dismiss, an order to amend may be applied for under the 14th sect., and does not require the additional affidavit mentioned in the 15th section, Collett v. Preston, 3 M. & G. 432. 13. No more than one order of course for leave to Eule 13. amend a bill shall be granted after an answer has been of°J,j°ggfor^' filed, unless in the case provided for by the 9th Kule of 'eavetoamend, _ . after answer, this Order (8th May, 1845 ; Ord. 66) (t). {I) The 9th rule relates to clerical errors. Application of Even as against a defendant added by amendment after answer, no further ruig. amendment can be added as of course, Attorney-General v. Nethercoat,^ M. & gg„(,_j omgnrl. Or. 604, oveiTuling Evams v. Hughes, 5 Sim. 666 ; and the rule applies to bills . for discovery as well as bills for relief, Peile v. Stodda/rt, 11 Beav. 591. 414 AMENDMENT OF BILLS. Obder IX. But the Court, exercising the discretion given by Ord. XXXVIII. 17, post. Bills. waived this rule where a plaintiff was in Jamaica, and could not amend within the time allowed by tiie first order of course, Crossley v. Doitimg, 15 W. K 1078. Order obtained. An order obtained in violation of this rule will be discharged with costs, JEdge v. Diilce, 10 Beav. 184 ; Sorshy v. -Fwuicett, 10 Beav. 191 ; Bennett v. Honeywood, 1 W. K. 490 ; but the amended bill, unless it is a new engross- ment, need not be taken off the file, Attorney-General v. Cooper, 3 M. &. Or. 268. Rule 14. 14, A special order for leave to amend a bill shall not to amend, not ^^ granted without affidavit (m) to the effect, — 1st, that *°th^ ^t'^m^ *^® draft of the proposed amendments has been settled, davit. approved, and signed by counsel ; and, Sndly, that such amendment is not intended for the purpose of delay or vexation, but because the same is considered to be material for the case of the plaintiff (8th May, 1845 ; Ord. 67) {w). Affidavit by («) The affidavit is made by the plaintiff and his solicitors, or by the solicitor whom to be alone, in case the plaintiff, from being abroad, or otherwise, is unable to join made. (r. 16). The application is made in chambers, ante, p 146. (w) As to special applications, see note (2), p. 411, ante. Eule 15. 15. After the plaintiff has filed or undertaken to file a affidavit re- replication [x), or after the expiration of four weeks from quired. t}jg ^j^g y^hen the answer (y), or the last of the answers required to be put in, is to be deemed or is held to be sufficient, a special order for leave to amend a bill shall not be granted without further affidavit, showing that the. matter of the proposed amendment is- material {z), and could not, with reasonable diligence, have been sooner introduced into siich biU^Sth May, 1845 ; Ord. 68) (a). Order of course -(a;) An order of course, obtained after replication, to amend even by adding to amend by parties, is irregular {Hitckcoch v. Jaqp,es, 9 Beav. 192 ; see, under the old adding parties, practice. Brattle v. Waterma/i, .4 Sim. 1'25). Such an order, however, may irregular after be obtained ex parte (Bry,(m v. Wastell, Kay, App. xlvii. ). replication. (y) See note (p), p. 412, ante. («) Leave to withdraw replication and amend the biU by claiming less than had been cjaimed by the original bill was granted on plaintiff's undertaking not to require an answer to the amended bill, Forbes v. Stevens, 4 N. R. 386 overruling s. c. 4 N. E. 185. Affidavit that (a) The affidavit need not set out all the proposed amendments (Payne v. the amendment Little, 19 L. J. Ch. 458), but it must show circumstances from which the ~ is material. Court can itself judge as"to the materiahty and diligence, Stuart v. Lloyd, 3 M. & (J. 181 ; and see Attomey-Qeneral v. Fishmongers' Company, 4 M. & When leave Cr. 1 ; Philips ■?. Coding, 1 Hare, 40. For leave will not be given unless the will not be Court is satisfied from the occasion and necessity for the proposed amendments given. that it ought to be given {Bertolacci v. Johnstone, 2 Hare, 632). The affidavit must show due diligence oo-extensive with the whole time from the filing of the answer {Winnall v. Featherstonhaugh, 9 Jur. 1064 ; on appeal to L. C. 10 AMENDMENT OF BILLS. 415 Jur. 235). Where the affidavit stated that "having regard to these oiroum- Order IX. stances, the amendments could not with," &c., this was held sufficient {Attor- Bills. ney-General v. Corporation of London., 13 Beav. 313) : see further, as to due ■ diligence and the terms under which the order will be made after replication, Amending at Champneys v. Buchan, 3 Drew. 5. A motion to withdraw replication and hearing and amend the bill after the evidence had closed was refused with costs, Eo^ion v. after issue BrocUehurst, 29 Beav. 503 ; and see Ord. XVII. 2 ; and Price v. Salusbury, directed. 32 Beav. 446. As to amending at the hearing, or after decree, see the cases cited in notes p. 217 {ante) ; and Milligan v. Mitchell, 1 M. & Or. 433. As to the course to be adopted where the time has been allowed to go by through inadvertence, see Potts v. Whitmore, 10 Beav. 177 ; and Clarice v. Mayor of Derly, cited in note (g), post. 16. Such affidavits as are mentioned in the 14th and Kule 16. 15th Rules of this Order shall be made by the plaintiff te made by and his solicitor, or by the solicitor alone, in case the plai^'i* and 1 . . ™ » . , . . , 1 . . solicitor. plaintiff, from being abroad or otherwise, is unable to join therein [8th May, 1845 ; Ord. 69) (a). (a) The affidavit on motion to amend an information may be sworn by the By whom affi- solicitor to the relators only (Attorney-Oeneral v. Corporation of London, 13 davit must be Beav. 313; Attorney-General y. Wakeman, 15 Sim. 358). An affidavit by sworn, the solicitor's managing clerk has been held insufficient {CJirisfs Hospital v. Grainger, 1 Ph. 634). But when the facts are within the personal knowledge of the clerk, the Court may require his affidavit as well as that of the solicitor (ibid. ; see, too, Hamdjield v. Woolley, 4 Sim. 122). 17. The plaintiff, having obtained an order for leave to Bule 17. amend his bill, shall, in all cases in which no other time is amendment limited by such order, have fourteen days (6) after - the l*"!*?^- date of the order within which he may amend such bill (8th May, 1845 ; Ord. 16, Art. 34) (c). (i) The omission of the plaintiff to amend within the time limited does not deprive him of his right to obtain a second order to amend before any answer is put in, Nicholson v. Peile, 2 Beav. 497. (c) This rule applies to cases where special leave to amend is given {Cridland Fourteen days V. Lord De Mauley, 2 De G. & Sm. 660), and to cases where liberty is given allowed in all to amend upon the allowance of a demurrer (Bainirigge v. Baddeley, 12 cases, Beav. 152 ; Armiistead v. Durham, 11 Beav. 428 ; and see Nicholson v. Peile, 2 Beav. 497) ; and where leave is given to amend by adding parties afthe hearing, Jampier v. Ingle, 1 N. K. 169. It seems that the fourteen days are now allowed in all cases to a plaintiff even after in- amending after obtaining an injunction, though formerly seven days only were junction ob- allowed where a common injunction had been obtained, see Kenmedy v. Lewis, tained. 14 Jur. 166, and remarks thereon in Seton, 873. As to motion by defendant to dismiss in conseciuence of neglect to amend, see r. 24, infra, and Ord. XXXIII. 11, post. 18. Where an amendment of a bill might formerly have Euie 18. been made without a new engrossment thereof, a biU may lending bUl. be amended by written alterations in the printed bill which has been filed, and by additions on paper to be 416 AMENDMENT OF BILLS. Oudxii IX. Billa. When bill must be re- printed on amendment. Rule 19. Date of order and of amend- ment to be marked on record. Amendment, to be entered with date of amendment and of order. Rule 20. Amended bill how served. interleaved tlierewitli if necessary (7th Aug. 1853; 1st Set, Od. 7) (d). *But where such amendment could not for- merly have been made without anew engrossment, it shall be made by a reprint of the bill. (d) When the amendments exceed two folios of ninety words each, in one pUice, the bill must in all cases be reprinted (Stone v. Davies, 3 D. M. G. 240), and although the amendments do not exceed in any one place two folios, the Clerk of Kecords and Writs has a discretion to refuse to file it without reprint, if the amendments are numerous and complicated, John v. Lloyd, 1 L. &. Ch. 64. A bill cannot be amended, partly by written and partly by printed amendments (Nayloo- v. Wright, 7 D. M. G. 403 ; see 15 & 16 Vict. c. 86, s. 8, and notes, aaite, p. 165). It has been suggested that much trouble might be saved, if, upon an amendment of the bill by reprint, the amendments were required to be printed in italics. 19. Whenever any bill upon the file of this court shall be amended, the record of such bill, when amended, shall be marked with the date of the order under which the same is so amended, and of the day on which such amendment is made, in manner and form following: — viz., "Amended day of , by Order dated day of ." And the usual entry of such amend: ment, together with the aforesaid date of making such amendment and the date of the order, shall ber made in the Eecord and Writ Clerk's book. And such amended bill shall be deemed to be filed at and from the date of making such amendment (13 May, 1838). 30. A copy of an amended bill, whether upon an amend- ment by a reprint or by such alterations and additions as mentioned in the 18th Kule of this Order shall be served upon the defendant or his solicitor ; and such copy may be partly printed and partly written, if the amendment is not made by a reprint : and in every case the copy to be served shall be stamped with the proper stamp by one of the Clerks of Records and Writs, indicating the filing of such amended bill, and the date of the filing thereof (7th Aug. 1853; 1st Set, Ord. 9) (e). (e) The copies to be served are altered by the solicitor previously to the same being stamped by the Eecord and Writ Clerk. A fee by means of stamps, of Is., according to the lower scale, and 5s. according to the higher scale, is payable to the Record and Writ Clerk for marking every copy. Appendix, p. xlix. post. Rule 21. 21. Service upon a defendant's solicitor of a copy of an AMENDMENT OF BILLS. 417 amended bill, whether wholly printed or partly printed Obdee, IX. and partly written, shall be good service on such defend- ant (7th Aug. 1853; 1st Set, Ord. 10. 8th May, 1845; soKVo\e Ord. 36) (/). good semee. (/) THa and the next rule were held to authorise suhstituted service of an Snbstituted amended bill on the solicitora of a defendant out of the ju/riadiction, Zuluetax. service of VineM, 3 M. & Q. 246, overruling Marqak of Hertford v. Suisse, 13 Sim. amended bill. 489. 23. Where a defendant has appeared in person to any ^^^o 22. bill, service at the address for service of such defendant defendant in of a copy of an amended bill, whether wholly printed or p^^""- partly printed and party written, shall be good service on such defendant (7th Aug. 1853 ; 1st Set, Ord. 11). 33. The 3rd, 4th, 5th, 18th, SOth, 31st and 32nd Eules , ^?le 23. Application or of this Order shall not apply to bills filed before the 2nd orders to old day of November, 1853, though afterwards amended ; and °"'*^" the practice existing immediately before that day shall continue in force, with reference to the amendment of such bills (7th Aug. 1853 ; 1st Set, Ord. 13). 34. Where the plaintiff obtains an order for leave to Role 24. amend his bill, and does not amend the same within the amendment time thereby limited for that purpose, or, if no time is so ^ithin time limited, then, within fourteen days from the date of the days, order order, such order to amend becomes void, and the cause, ^ ' as to dismissal, stands in the same situation as if such order had not been made (8th May, 1845 ; Ord. 70) {g). (g) Where the plaintiffs had, in consequence of the misconduct of their soli- Accidental citor, omitted to amend their bill within the time allowed, a motion for further omission. time was refused, Clarke v. Mayor of Derby, 10 Jar. 978 ; but see Chamip- neys v. JBuchan, 3 Drew. 5 ; BaMrvige v. Badddey, 12 Beav. 152 ; Orossley V. Doming, 15 W. B. 1078, cited in note to sect. 13, ante. OEDER X. Order X. Service of Service op Copy of Bill, and Appearance. Copy of Bin, . and Appear- 1. (a) Service of every copy of a bill shall be effected °'°°e. by serving such copy personally, or by leaving the same Rule 1. with a servant of the defendant or some member of his g^^'of bill. 418 SERVICE OF BILL, AND APPEARANCE. Order X. family, at his dwelling-house or usual place of ahode, Service of Copy , ., ri j. ^- j. xi. j j • /■ \ of Bill, and unless the Court directs some other mode oi service {a) . (33nd May, 1661 ; Sanders, 297). Service ly post. Service at chambers, office, &c. Member of family. Peers, M.P.'s, &c. Married wo- men. Infants. Lunatics. Prisoners. Partners. Railway com- pany, UiilDoorpo- rated com- panies, &o. Scotch com- pany. (a) See 15 & 16 Vict. o. 86, ss. 2 and 3, p. 161, ante, lay which the old subpoena is abolished. Where the subpcena was enclosed in a letter which the defendant admitted he had received, it was held insufficient, Gathercote v. Wilkinson, 1 De Gr. & Sm. 681 ; but service of a copy of the bill was held to be sufficient when the defendant admitted having received it by post. Burton v. Shaw, 10 L, T. N. S. 292, and service on a company by post is good service, see infra. Service at the chambers of a barrister resident out of London, and having little or no business, was held insufficient ( v. Sham, cited in Hinde's Ch. Pr., p. 92). So service on a solicitor at his office is insufficient, unless under a special order {Yoimg v. Goodson, 2 Kuss. 255). The member of the family on whom service is effected must be an inmate of the house (Edrjson v. Edgion, 3 De Gr. & S. 629). Service on a peer, even though he be abroad, is properly effected by leaving the bill at his town-house {Tliomas v. Earl of Jersey, 2 M. & K. 398 ; and see Attorney-General v. Earl of Stamford, 2 Dick. 744, there cited ; and David- son V. Marchioness of ^Hastings, 2 Keen, 509). Peers, whether Irish or English (Robinson v. Eord Moheby, 8 Ves. 601), are entitled to letters missive. As to members of the House of Commons, see East India Company v. Sir Thomas Stimhold, Hinde, 91. Service on the husband (even though a prisoner for debt at the time), is good service on the wife (Holcomle v. Trotter, 9 Jur. 637 ; Gee v. Cottle, 3 M. & Cr. 180). Seeus, if the wife be deserted by or voluntarily living apart from him, Holcomle v. Trotter, 1. o. ; Thomas v. Selby, 9 Beav. 194 ; Steele v. Plomer, 1 M. & Gr. 83 ; Dubois v. Hole, 2 Vern. 713, where the demand was against the wife's separate estate, and see cases as to enforcing an answer from married women, note (S), p. 435, post; see, however, Bromley \. Bamk of England, 7 Jur. 120, and as to service on married women out of the jurisdic- tion, see p. 425, post. In Christie v. Cameron, 4 W. R. 589, service on the rector of the college of which an infant defendant was an under-graduate was held sufficient, the plaintiff being unable to discover where the defendant's father lived. So, service on an infant's mother (Smithy. Marshall, 2 Atk. 70), or step-father (Thompson V. Jones, 8 Ves. 141), may be allowed ; and see as to serving infants previously to appointing a guardian ad Utem, note (g), p. 402, ante. The Court will not grant leave to substitute service on the medical officer of an asylum, where a lunatic defendant is confined (Morgan v. Jones, 4 W. R. 381) ; from which case it would seem, that service in such cases ought to be effected on the lunatic himself, in the presence of the medical officer. See, too, SheldraJce v. Elliston, 2 L. T. N. S. 48. • Service on the deputy-governor of a gaol where a defendant is a prisoner is good service (Newenham v. Pemberton, 2 Coll. 54). Service on one of two partners is not good service on the other (Tovng v. Goodson, 2 Russ. 255) ; but see as to substituted service on a partner, note (5) p. i20, post. Service on a railway company (8 Vict. c. 20, s. 138), or joint-stock company (25 & 26 Vict. c. 89, ss. 62, 63), is well effected by the bill being left at or transmitted by post to the registered office of the company, or by being given personally to the secretary, or if there be no seoretai7 to one of the directors. In the case of an unincorporated company, service may be effected in the same way, except that if there be no secretary the solicitor may be served (8 Vi J. c._ 18, B. 134). As to substituted service on companies, see note (6), post. Service at the London office of a Scotch company possessing large property in Eng- land is good service on the company (Maclaren v. Stainton, 16 Beav. 279). SERVICE OF BII^h, AND APPEARANCE. 419 OSDBR X. Service of Copy I. In the Case of Parties Generally. of Bin, and Appearance. 2. The Court may direct substituted service (6) of a — ^^^^ — copy of a bill (c) to be served under the Stat. 15 & 16 Vict. Substituted c. 86, in cases in which, according to the practice of the **""'*• court, existing at the time of the passing of that statute, substituted service of a subpoena to appear to and answer a bill might have been directed (83nd May, 1661; San- ders, 297). (i) Substituted service was held good, though no order had been previously Substituted obtained, in Re Paragon and Spera Mining Company, 10 W. R. 76 ; Martin v. service. Pyeroft, 5 W. R. 464. Persons, who, not being parties, appear in any proceedings, may be served On persons not through their solicitors, except in matters of contempt, Ord. III. 7, ante. parties. The application should be by ex parte motion, Danford v. Cameron, 8 Hare, How to be 329 ; Head v. Sarton, 28 L. T. 36 ; and it should be shown that every effort applied for. has been made to effect personal service, Firth v. Bush, 11 W. R. 611 ; see Sope V. Carnegie, 1 L. R. Eq. 126, (where substituted service was ordered, and the bill was also directed to be served at the residence of the defendant, personal service having been found impracticable). As to entering an appearance for an absconding defendant without any ser- Course where vice personal or substituted, see rule 7, infra. itc annot be Substituted service may be allowed, though the defendant is not absconding, effected, but is residing pei-manently abroad, Griffiths v. Cooper, 2 D. P. J. 208. if defendant Before the Court will direct substituted service, it must be proved that the resides abroad, person on whom it is sought to effect such service is the agent of the defendant Og ■„- —iji i,- for a purpose closely connected with the suit. Bones v. Angieif 2 W. R. 609, t7+-», x-j „„ cited, under 15 & 16 Vict. c. 86, s. 5, p. 163, ante, and that there is recwoMaiZe ™™f ground to believe that the service vnU come to the pa/rt'^s own hnowledge, Hope ^^ " T. Hope, 19 Beav. 237 ; 4 D. M. G. 328 ; Himt v. Lever, 5 Ves. 147 ; Heald v. Hay, 9 W. R. 359 ; Dicker v. Clarhe, 11 W. R. 636. A solicitor who has acted for the defendant in transactions connected with On solicitor or the subject-matter of the suit, is a suficient agent for the purpose of substi- attorney in tuting service, Hope v. Ca/rnegie, 1 L. R. Eq. 126 ; thus in a suit to restrain matters con- the defendant's action at law, service was substituted on the attorney at nected with law, Sergison v. Beavan, 9 Hare, App. xxix. (note) ; Hurst t. Hu/rst, 1 De the suit. G. & Sm. 694 ; Hawkins v. Bennett, 1 Gif. 215 ; Broo&er v. Smith, 4 L. T. N. S. 545 (which see as to the evidence necessary in support of the motion), and in a suit to make children wards of court, service was substituted on the mother's attorney in a divorce suit, Hope v. Hope, 19 Beav. 237 ; 4 D. M. G. 328 ; and, in general, service of proceedings in a supplemental suit may be substituted on the defendant's solicitor in the original suit, Scott v. Wheeler, 13 Beav. 239 ; Norton v. Hepworth, 1 M. & G. 54 ; and substituted service on the solicitor was ordered, though he objected to accept it, Governors of Grey Coat Hospital v. Wes^mnster, &c. Commis- sioners, 4 Jur. N. S.449. But the solicitor in a former suit is not the client's Not on a former agent for the purpose of substituted service iu a fresh suit, though relating to solicitor, the same matter (Hwrst v. Hurst, 1 De G. & Sm. 694), nor in a cross suit {Waterton v. Croft, 5 Sim, 502). A solicitor who had only written for a copy of the bill was not held suffi- Not on person ciently an agent for the purpose, Asiatic Banking Company v. Anderson, 13 merely in com- L. T. N. S. 272 ; nor is the fact of a person being in communication with the munioation. absent party sufSoient, Watts v. Hughes, 8 W. R. 292. Where a defendant wilfully kept out of the way, and his solicitor admitted Futwre pro- 420 SERVICE OF BILL, AND APPEAEANCE. Obseb X. Service of Copy of Bill, and Appearance. On a Bteward and particular agent. General agen , Service how- substituted on a company ; on trustees. Process of sub- stituting ser- vice. Substituted service allowed, of bill of re- vivor ; of a traversing note ; of replication ; of decrees. that he was in communication with him, V. -C. Wood made an order for service of aU futwre proceeding! on the solicitor, Christie v. Cameron, 3 W. R. 146 ; Fosters. Menkes, 16 Beav. 568 ; but see Steel v. Gordon, iUd. 158. Substituted service on stewards and agents of persons abroad was autho- rised by 4 & 6 Wm. 4, c. 82, sect. 1, Cox v. Bannister, 8 W. R. 206 ; OarwardiMe v. WisMade, 15 Jnr. 913 ; and generally substituted service upon an agent in respect of property the subject of the suit, is allowed, Sobhouse v. Courtney, 12 Sim. 140 ; Morrit v. Walton, 2 W. K. 643 ; Cooper v. Wood, 5 Beav. 391 ; Murray v. Vipart, 1 Ph. 521 ; Weymouth v. Lamiei% 8 Beav. 333 ; Jackson v. Shmiks, 13 W. R. 287 ; and see reporter's note to Sichcord V. Nedriff, 2 Mer. 458. Secus, where the agency was not proved, Webb v. Salomon, 3 Hare, 251. Substituted service on a general agent was allowed in Jones V. CargiH, 11 L. T. N. S. 566. On a solicitor with general power of attorney, in Foster v. Memies, 16 Beav, 588, see Barker v. Piele, 11 W. R. 658. On a partner, Carrington v. OantUlon,, Bunbury, 107 ; Coles y. Gurney, 1 Mad. 187 ; Kinder v. Forbes, 2 Beav. 503. As to substituted service in the case of a company whose office is closed, see GasJcell V. Chambers, 26 Beav. 262^; Se Petroleum Company, 15 W. R. 29 ; Se Unity, dc. Association, 11 W. R. 355 ; Me London and Westminster Wine Company, 3 N. R. 26 ; Ex parte Chifferiel, 6 N. R. 349. If trustees avoid service after naming a place where they may be served with notice of applications, service at such place is sometimes held sufi^cient, JEx parte Baugham, 16 Jur. 355 ; see note (»•), p. 73, ante. A copy of the bill and of the order directing substituted service should be shown to the party served, Jones t. Bramdon, 2 Jur. N. S. 437 ; see Fwrrow v. White, IJ. & W. 643. And if a defendant does not appear after sub- stituted service, the plaintiff should enter an appearance for him, and not move to commit him, Hachwood v. Locherby, 7 D. M. G. 238. (c) Substituted service will be allowed in a proper case, not only of the original bill but of subsequent proceedings, see Foster v. Menw.es, and other cases cited last page. So substituted service is allowed of order of revivor and supplemental proceedings (note (I), p. 215, ante) ; of a traversing note {Hunt v. NibleU, 25 Beav. 124; Scott y. Wheeler, 13 Beav. 239; WaUisT. Darby, 6 Hare. 618 ; Horlock v. WUson, 12 Beav. 545) ; of replication, by advertisement); Barton v. Whitcowie, 17 Jur. 81; Anon., 1 W. R. 116; Jenkyn v. Vaugham,, 3 Drew. 20 ; MiUer v. Elwin, 4 Jur. N. S. 600 ; Lechmere V. Clamp, 29 Beav. 259; 30 Beav. 218) ; of "other process" (seenoteto rule 6, infra, Skegg v. Simpson, 2 De G. & Sm. 454, and cases collected in note thereto); and of decrees and orders {Re Moiirilyan, 13 Beav. 84; Rolyy. Scholes, 1 W. R. 118; Fe Dufawr, 16 Beav. 113 ; Rider y. Kidder, 12 Yes. 202). But service of notice of motion of decree may not be substituted, Lechmere V. Clamp, 1. c. Rule 3. Defendant within juris- diction must appear eight days after service. 3. Where a defendant within the jurisdiction of the court is served with a copy of a bill {d) in a manner pro- vided by the Stat. 15 & 16 Vict. c. 86, s. 3, he must appear thereto within eight days after the service of such copy of the bill (e) ; otherwise an appearance may be entered for him, as provided by the next Eule of this Order (8th May 1845; Ord. 16, Art. 3). Appearance by solicitor not duly qualified. Appearance gratis. (d) An appearance entered by a defendant's solicitor who was dulv entered on the rolls was not set aside because he had not taken out his yearly certifi- cate, Sparling v. Brereton, 14 W. R. 515. " ^ As to appearing gratis, see Daniel], 497. SEBVICE OF BILL, AND APPEARANCE. 421 Appearance is not necessary in the case of persons served with notice of a Ordeh X decree under the 42nd sect, of the Chancery Amendment Act, 1352, ante, p. Service of Copy 196, see Green v. Measures, cited in note (c) thereto. of Bill and Nor where an order of revivor is made, need the parties who have appeared Appearance. already put in a new appearance, note (m), p. 216, ante. '— (e) A defendant need not appear to an amended bill, unless he is required or Appearance by desires to answer the amended bill (see Ayckb. 86, Bwrry v. Oi-oshey, 2 J. & parties served. ■ ^^^l- After revivor. Appearance to amended bill. 4. Where any defendant, not appearing to be an infant, Rule i. or a person of weak or unsound mind, unable of himself ^^^^^^^^^^ to defend the suit is, when within the jurisdiction of the by plaintiff for Court, duly served with a copy of the bill (/) under the wHWnTnris- Stat. 15 & 16 Vict. c. 8p, s. 3, and refuses or neglects to ^¥''"'> °.°* appear thereto within eight days after such service, the or person of plaintiff may, after the expiration of such eight days and "°'°™^ "''"''• within three weeks from the time of such service [g), apply to the Becord and Writ Clerk to enter an appear- ance for such defendant ; and no appearance having been entered, the Eecord and Writ Clerk shall enter such appearance accordingly, upon being satisfied by affidavit that the copy of the bill was duly served. And after the expiration of such three weeks, or after the time allowed to such -defendant for appearing has expired, in any case in which the Eecord and Writ Clerk is riot hereby required t(^ enter such appearance, the plaintiff may apply to th& Court for leave to enter such appearance for such defendant Qi), and the Court being satisfied that the copy of the biU was duly served, and that no appearance has been entered for such defendant, may, if it so thinks fit, order the same accordingly (Ji) (8th May, 1845; Ord. 39). (/) Substituted service has been held due sei-vice on a, defendant for the Appearance purpose of this section, Steele v. Plomer, 1 M. & G. 83; WUcoxonY. Wilhms, entered for de- ll W. K. 868 ; but see Dicker v. Clarice, ibid. 765 ; and as to substituted fendant after service of an amended bill on the solicitor of the defendant, the defendant him- substituted self being resident out of the jurisdiction, see Zulueta v. Vinent, 3 M. & 0. 246 service. (o\eirviiDg Ma/rquis of Sertf ord V. Suisse, 13 Sim. 439 ; a,nA Sezcell y. Cfodden, 1 De G. & Sm. 126), cited in note (/), p. 417, amte. (g) When the plaintiff had accidentally allowed the three weeks limited by Accidental the order to pass and the defendant had subsequently to the service gone delay in enter- abroad, the Court extended the time, Cla/rkson v. Eld/ridge, 8 W. R. 466 ; ijg appearance but after a long and unexplained delay (Norton v. Fisk, 15 Jur. 1027 ; Toity for defendant. V. Ingleby, 7 Beav. 591 ; Bradstoch v. Whatley, ibid. 346), the application cannot be made without fresh service of the bill or notice of motion {Edmonds 42^ Obdek X. Service of Copy of Bill, and Appearance. Appearance may be entered though juris- diction is denied. Process after entering ap- pearance. Eule 5. Appearance entered for infant or defendant of unsound mind Toid. SERVICE OP BILL, AND APPEARANCE. V. Nicoll, 6 Beav. 334 ; Radford v. RoUHs, 2 Hare, 96 ; Walker v. Burst, 15 L. J. Ch. 72). „ „ r,-. ». (A) For form of order, see Burton v. Teblutt, 14 L. T. N. S. 511 ; beton, 1247-8. The Court -will not, upon the question whether an appearance shall he entered for a defendant, enter into the question whether it has jurisdiction to entertain the suit, Felkm v. ZordMerhert, 1 Drew. & Sm. 608. As to the plaintiff's proper course if the defendant, after appearance entered for him, neglects to put in any answer, see note (a), p. 433, post. 6. Any appearance entered at the instance of the plain- tiff for a defendant, who, at the time of the entry thereof, is an infant or a person of weak or unsound mind, unable of himself to defend the suit, is irregular, and of no validity (i) (8th May, 1845 ; Ord. 30). (i) See Leese v. Knight, 10 W. E. 711 ; and for the regular mode of pro- ceeding, see Ord. VII. 3, p. 400, ante. Eule 6. 6. Where the Court is satisfied by suf&cient evidence may^beTntered that any defendant (k) has been within the jurisdiction of by plaintiff for ^j^g Court at some time not more than two years (l) before defendant. the bUl was filed, and that such defendant is beyond the seas, or that, upon inquiry at his usual place of abode (if he had any), or at any other place or places where at the time when .the bill was filed he might probably have been met with, he could not be found so as to be served with a copy of the bill, under the Stat. 15 & 16 Vict. c. 86, s. 3, and that in either case there is just ground to believe that such defendant has gone out of the realm or otherwise absconded to avoid being served with such copy of the bill or with other process (m), the Court may order that such defendant do appear at a certain day to be named in the order; and that a copy of such order, together with a notice to the effect- set forth at the end of this Rule, may within fourteen days (w) after such order made, be inserted in the " London Gazette," and be otherwise published as the Court shall direct. And where the defendant does not appear within the time- limited by such order, or within such further time as the Court may appoint, there, on proof made of such publication of the said order, the Court may order an appearance to be entered for the de- fendant on the application of the plaintiff. Officer of Court. SERVICE OF BILL, AND APPEARANCE. 423 Notice. — "A. B., take notice, tbat if you do not appear Okder X. pursuant to the above order, the plaintiff may enter an of Bill, and appearance for you, and the Court may afterwards grant to Appearance. the plaintiff such relief as he may appear to be entitled to on his own showing" (8th May, 1845 ; Ord. 31). (i) A defendant for Tfliom the plaintiff moves to enter an appearance as an "Out of tbe absconding defendant under this rule, ought not to be described in the bill aa jurisdiction ." " out of the jurisdiction," ilfcmmtm T, Goodman, 1 W. N. (1866), 46. A party who, aft«r judgment has been recovered against him, takes advan- "Absconding tage of a stay of execution to convert his personal property into money, and defendant." go abroad, after his creditor has given him notice that he intends to file a bill to enforce the judgment against his real estate, is an absconding defendant within this rule. Cope v. Russell, 2 Ph. 404 ; and the fact that he has absconded to avoid service of any legal process (whether criminal or civil, Allen V. Loder, 20 L. J. Ch. 658), which may be issued against him, is sufficient to bring him within it, Barton v. Whitcome, 16 Beav. 205 ; and see Sennett v. Powell, 2 W. E. 667. Where a defendant against whom a breach of trust is charged has gone abroad, the Court will allow an appearance to be entered for him under this rule {Crosse v. Crosse, 8 W. E. 338). (I) Where a defendant more than two years before bill filed has been out When defend- of the jurisdiction of the Court, and has no solicitor, agent, or other person, ant abroad within the jurisdiction, upon whom suhstituted service can be made, and he more than two cannot be found or heard of out of the jurisdiction, it would appear that the years, plaintiff cannot, either under this rule or otherwise, obtain leave to enter an appearance for him as a preliminary step to having the bill taken pro confesso {Thurlow V. Treeby, 27 Beav, 624) ; this seems to form a casus omissus from the orders. (m) Under this head substituted service of a traversing note, replication, &e. , is allowed, see note (c), p. 420, ante. (m) These fourteen days were extended in Dicker v. Clm-Tce, 11 W. E. 870. 7. Where a defendant in any suit (o) is out of the juris- ^^y.^^l\J'^^-^y diction of the Court. of bill and of (1.) The Court, upon application supported by such on'^^fS™^ evidence {p) as shall satisfy the Court in what place or out of jurisdio- country such defendant is or may probably be found, ^rtijle (1). may order that a copy of the bill (g) under the Stat. 15 & 16 Vict. c. 86, s. 3, and, if an answer is required, a copy of the interrogatories, may be served on such defendant (r) in such place or country, or within such limits as the Court shall think fit to direct (s). (2.) Such order shall limit a time after such service Ailicle (i). within which such defendant is to appear to the bill; such time to depend on the place or country within which the copy of the biU is to be served. And where an answer is required, such order shall also limit a time within which such defendant is to plead, answer, or 424 OsDliR X. Service of Copy of Bill, and Appearance. Article (3). Article (4). Appearance may be en- tered for such defendant. SERVICE OF BILL, AND APPEAKANCE. demur, or obtain from the Court further time to make his defence to the bill (t). (3.) At the time when such copy of the bill shall be served, the plaintiff shall also cause such defendant to be served with a copy of the order giving the plaintiff leave to serve such copy of the biU. (4.) And if, upon the expiration of the time for appearing, it be shown to the satisfaction of the Court that such defendant was duly served with such copy of the bill and with a copy of the order, the Court may, upon the application of the plaintiff, order an appear- ance to be entered for such defendant (8th May, 1845 ; Ord. 33). Service out of jurisdiction may be ordered in any suit. Statutory powers of ser- vice out of jurisdiction previously to the order. 2 W. 4, c. 33. 4 & 5 W. 4, «. 82. New order under autho- rity of Acts of Parliament. Cockney v. Anderson. Drummoud v. Drummoud. (o) It is now settled that this rule gives the Court power to order service on a defendant out of the jurisdiction, m any suit, Drummond v. Brummond, 2 L. E. Eq. 336 ; 2 L. K. Ch. 32, overruling Gookney v. Anderson (mfra). Before the 33rd order of 8th May, 1845, the only enactments by which a defendant could be effectually served out of the juiisdiction were 2 Wm. 4, c. 33, and 4 & 5 Wm. 4, o. 82 (previously to which a subpoena might be served out of the jurisdiction, but unless the party served chose to appear, the suit could not be proceeded with as against him). By 2 Wm. 4, c. 33, it was made lawful for the Court of Chancery or Exchequer in England, in any suit relating to land in England or Wales, to order its pro- cess to be served on a defendant residing within any part of the United King- dom, and in the Isle of Man ; and a similar power was given to the Court of Chancery and Exchequer in Ireland, in suits relating to land in Ireland. By 4 & 5 Wm. 4, o. 82, power was given to the Court of Chancery or Exchequer in England and Ireland respectively, in suits concerning land in England and Ireland respectively, or concerning any charge, lien, judgment, or incumbrance thereon, or concerning any money vested in any government or public stocks, or shares in public companies or concerns, or the dividends or produce thereof, to order its process' to be served on a defendant residing in any place out of the United Kingdom. In these Acts " United Kingdom" included Scotland, Cameron v. Cameron, 2 M. & K. 292. The 33rd rule of the General Orders of May, 1845 (on which this rule is founded), was framed by the Lord Chancellor and the Judges of Chancery under the authority of the 3 & 4 Vict. c. 94, and 4 & 5 Vict. c. 62 (Acts for facilitating the administration of justice in the Court of Chancery, 1840 and 1841), and the Court was by that rule authorised to serve its process on a defendant out of the jurisdiction in any suit. In Cookneyv. Anderson, 31 Beav. 452; 1 D. J. S. 366; and Foley v. MaiUa/rdet, 1 D. J. S. 389. Lord Westbury held that the Lord Chancellor and Judges had no power to extend the extra t«rritorial jurisdiction of the Court further than the legislature had already extended it by the Acts of Wm. 4, and therefore that this rule applied to no suits except those specified in those Acta, e. jr. it was held not to apply to a suit for dissolution of partner- ship, Baillie v. Blanchet, 4 N. R. 48, or for payment of a legacy where the defendant had no property within the jurisdiction, Foley v. Maillardet (1. c.) ; and see Dodd v. Webber, 2 Beav. 502 ; Green v. Pledger, 8 Hare, 165. See, however, remarks of Lord Romilly, M. E. in Official Manager of National Insurance Association v. Carstairs, 2 N. E. 348. The full Court of Appeal has now decided in Dnmmond v. Drammmid (1. c. ) SERVICE OF BILL, AND APPEARANCE. 425 where the cases are reviewed, that the Court has jurisdiction to order service Order X. of the bill out of the jurisdiction in any suit. Service of Copy See generally as to the discretion of the Court in allowing service of the bill of Bill, and abroad, the remarks of Lord Chelmsford and L. J. Turner, in Dnummond v. Appearance. Drummond, 2 L. R. Ch. 32, 37, 46. The order will not be made if there are no means of effectually reaching the defendant, Steele v. Stewart, 1 H. & M. Court's discre- 793 ; but see Innes v. Mitchell, 1 De Q. & J. 423 ; Meiklan v. Campbell, 24 tion to allow Beav. 100 ; Oook v. Woad, 7 W. &. 424. it. And the defendant may enter a conditional appearance and apply to have Defendant mav the order set aside by showing that it was not in accordance with the rules of resist it the Court, or that the allegations in the bill on which the order was founded were untrue, Haywwrden v. Dwnlop, 2 Dr. & Sm. 155 ; Maclean v. Dawson, 27 Beav. 25 ; 4 De 9. & J. 160 ; Seton, 1249. But see Tracy v. Smith, 11 W. B. 458. (j)) The Court will look at the bill to satisfy itself that the case made by the Evidence re- plaintiff is not on the face of it absurd, Maclean v. Dawson, 27 Beav. 25 ; 4 De quired. Q. & J. 150, 157. So the circumstances need not be stated in the plaintiff 's affidavit, Brooke v. Morison, 32 Beav. 652 ; and see last note as to the discretion of the Court in granting the apphcation and the right of the defendant to apply to set it aside. As to what affidavits in support of the application are required, see Blen- hinsop V. BlenJdnsop, 2 Ph. 1 ; Fieshe v. BuUer, 7 Beav. 681 ; Preston v. XHci^on, 9 Jur. 919 ; Whitmore v. Ryan, i Hare, 612 ; Joseph v. I^ndall, 13 L. J. Ch. 23. {q) Leave is generally obtained to serve interrogatories at the same time, Service out of Zeaman v. Brown, 7 W. E. 322 ; and as to service of interrogatories as a pre- jurisdiction, liminary step to taking the bill pro confesso, see note {d) to Ord. X!SlI. 2. Tbe order in terms only permits service of the bill and interrogatories on a of interroga- defendant out of the jurisdiction, and service of process subsequent thereto has tories, been in the older cases refused ; e, g., a traversing note was not allowed to of subsequent be served out of the jurisdiction. Anon., 11 Jur. 28 ; Anderson v. Stather, process ihid. 96 ; and though a more liberal construction has lately been placed on the order, special leave is necessary to serve notices of motion out of the jarisdic- of notices of tion, Weguelin v. Lawsom, 8 L. T. N. S. 763; see, too, Hasluch-v. Stewart, motion 6 Sim. 321 ; Green v. Pledger, 3 Hare, 165 ; Haywarden n. Dunlop, 1. c. ; Godson V. Cook, 7 Sim. 519. Notice of motion for decree has been allowed to be served on a defendant out of motion for of the jurisdiction, Meek v. Ward, 10 Hare, App. Iv. ; Middleton v. Chi- decree, Chester, 1 N. R. 255. So has notice of a decree, under 15 & 16 Yict. c. 86, s. 42 (see note (i), p. 197, arUe). So has notice of replication, Lamham v. Pirie, 2 Jur. N. S. 1201 ; Heath of replication, T. Lewis, 2 W. B. 488. An administration suit instituted by summons is within the order, BeAlcan, of administra- 1 D. J. S. 398, reversing Lester v. Bond, 1 Dr. & Sm. 394 ; but not, it seems, tion summons, a petition underjthe Trustee Relief Act, Ex parte Bernard, 6 Ir. Ch. Rep. 133. not of petition. As to service out of the jurisdiction in suits instituted in the Palatine Court, see Waltham v. Goodyear, 7 D. M. G. 77 ; Wynne v. Hughes, 26 Beav. 377 ; Downes v. Jackson, 14 W. B. 907. If the defendant absconds and refuses to answer after being served out of the jurisdiction, the plaintiff may proceed to take the bill pro con/esso under the modern practice, see Ord. XXII. post. (r) As to service of the bill on one person for several, see Jones v, Oeddes, 9 Service out of Jur. 1002. jurisdiction on Service on a husband out of the jurisdiction has been held good service on one for several, the wife, Steele v. Plomer, 2 Ph. 782, note, 1 M. & G. 83 ; but where the Husband for husband was of unsound mind, both he and his wife were served, Biddvlph .„{i^^ V. Lord Camoys, 7 Beav. 580. Leave may be given to serve infanta out of the jurisdiction, Anderson v. Infants. Stather, 10 Jur. 383 (decided under the Acts of Wm. 4), and persons of unsound mind, BiddulpK. v. Lord Camoys (supra). As to service on a com- Lunatics, pany out of the jurisdiction, see Ltwis v. Baldwin, 11 Beav. 153 ; and as to Companies. 426 SERVICE OP BILL, AND APPEARANCE: Orseb X. service of a letter missive on a peer out of the jurisdiction, see Anon., 18 L. J. Service of Copy Ch. 229. of Bill, and (s) The service need not be limited to any particular spot; thus leave was Appearance, given to serve the defendant "in Scotland," BUnkinsop v. Blenhimsop, 2 Ph. 1 ; in the Grand Duchy of Baden, Preston v. Dickinson, 9 Jur. 919. "^^™' («) The order is to limit a time which must be specified in the indorsement on Form of order, the bill (note (e), p. 152, ante), "toplead, answer, ordemur, not demuiring alone." Time for de- ^^ Griming v. PrioUau, 33 Beav. 221, a defendant served out of the jurisdiction murrerhow ^^^ six weeks allowed "to plead, answer, ordemur, not demurring alone." limited. After the expiration of the six weeis he appeared, and within twelve days after appearance he demurred to the whole bill, and it was held he could do so according to the common rule (Ord. XXXVII. rule 3, post), so that tho rule in the text does not refer to the case of a defendant demurring alone. See further as to the time allowed, Whitmore v. Ryan, i Hare, 612 ; Brown V. Stcmton, 7 Beav. 582. Rule 8. Affidavits of service, to state particu- lars of seiTico. Rule 9. Appearance may after- wards be entered by defendant. Rule *10. No attachment for want of appearance without special order. No messenger or serjeant-at- arma to compel appearance. How appear- ance of defend- 8. Affidavits filed for tlie purpose of proving the ser- vice of a copy of a bill upon any defendant shall state when, where, and how the same was served, and by whom such service was effected (8th May, 1845 ; Ord. 34) (u). (m) See, before the rule, Davis v. Bole, 1 Y. & C. C. C. 440 ; where this rule has not been complied with, the.writ of attachment will be set aside as irregular {BicJcford v. Skewes, 9 Sim. 428). 9. A defendant, notwithstanding that an appearance may have been entered for him by the plaintiff, may after- wards enter an appearance for himself in the ordinary way; but such appearance by such defendant shall not affect any proceeding duly taken or any right acquired by the plaintiff under or after the appearance entered by him, or prejudice the plaintiff's right to be allowed the costs of the first appearance (8th May, 1845 ; Ord. 36) {v). («) See Price v. Well, 2 Hare, 511. *10. No attachment for want of appearance shall here- after be issued, without a special order of the Court (w), and no order shall be made for a messenger, or for the seqeant-at-arms, to take the body of the defendant, for the purpose of compelling him to appear to the bill (36th Aug. 1841; Ord. 7). (w) The first part of this order is new; as to the latter part, see Hinde v. Blake, 12 L. J. Ch. 56. The appearance of a defendant might be enforced before this rule by attach- ment, under 1 "Wm. 4, o. 36, sect. 3. And it was provided by tlie 11th sect, of SERVICE OF BILL, AND APPEABANCE. 427 that Act, that if any defendants bi-ought into Court by habeas corpus or Order X. otherwise, in custody, after fourteen days' previous notice in writing, requiring Service of Copy them to enter an appearance, refused to do so, or to appoint an attorney, of Bill and the Court might enter appeai'ance for them,] see Collins v. Brown, 1 Hare, Appearance 315; Ansdell v. Whitfidd, 6 Sim. 356; Williams v. Jones, 8 Sim. 471. As — to attachment generally, see Seton, 1230 ; Ayckb. 56 ; Daniell, 420. ant might be Since the orders now allow a plaintiff to enter an appearance for the defend- compelled, ant (rule 4, supra, p. 421), and afterwards to proceed to take the bill pro con- More usual fesso, see note (a), p. 433, post, the leave of the Court to issue an attachment now to enter for want of appearance is rarely applied for, and the process is almost obsolete, appearance for Such leave was refused in Hackwood v. Lockerby, 7 D. M. G. 238, cited p. defendant and 420, ante, where, however, the service was substituted. take bill pro confesso. II. In the case of Formal Parties. 11. («) "Where no aqjcount, payment, conveyance, or Eule 11. other direct relief is sought against a party to a suit, it of uiron ""^^ shall not he necessary for the plaintiff to require such par'iea against 1 • • o T -I -n , V -1 whom no direct party, not being an infant, to appear to the hill (y), but relief is sought. the plaintifif shall be at liberty to serve such party, not being an infant, with a copy of the bill, whether the same be an original, or amended, or supplemental bill, without any indorsement requiring such party to appear thereto ; and such bUl, as against such party, shall pray that such party, upon being served with a copy of the bill, may be bound by all the proceedings in the cause {z). But this Eule shall not prevent the plaintiff from requiring a party against whom no account, payment, conveyance, or other direct relief is sought, to appear to the bill, or from prosecuting the suit against such party in the ordinary way, if he shall think fit (26th Aug. 1841; Ord. 33). (a;) The provisions of the 42nd secbion of the 15 & 16 Vict. o. 86, ante, p. 195, Necessity for materially diminishing the number of necessary parties to a suit, and of the rale diml- earlier sections dispensing with the necessity for an answer in many cases, have nished. practically reduced the operation of this rule. The Attorney-General is not a defendant within this rule {Christopher v. Attorney- Cleghom, 8 Beav. 314) ; and it has been held not to apply to parties out of General. the jurisdiction, their case being provided for by rule 7, supra (Lorton v. Party resident Kingston, 2 M. & G. 139). abroad. The Court refused to allow substituted service under this rule, Thomas V. Selby, 9 Beav. 194. In Joh/nson v. Tucker, 15 Sim. 485, where a cestui que trust filed a bill i^g what par- against trustees, for an account and appointment of new trustees, the other jjgg ^jjg j.,jg ceetuis que trusts being necessary parties were held to be within this rule, see applies, Knight v. Cawthom, 1 De G. & Sm. 714 ; Powell v. Cockerell, 4 Hare, 567 ; Davis T. Davis, 4 Hare, 389; Ahram v. Wavd, 6 Hare, 170; Lloyd v. Lloyd, 1 T. & 0. C. C. 181. And in Duncomiev. Levy, 5 Hare, 236, a debtor filed a bill against creditors, parties to a trust deed, which he had executed for their benefit, charging that one of the creditors had forfeited his debt ; the other creditors were held to be within this rule, and V. -C. Wigram said, 428 SERVICE OF BILL, AND APPEAEANCE. Obseb X. Service of Copy of Bill, and Appearance. Bule does not apply to de- fendants not in same inter- est as plaintiff. Practice as to service under the rule. Costs. Bill of revivor, &c. Co-defendants. that as the subsequent orders (sea rule 14, infr• ,1 proceedings on form : (that is to say), "A.B. appears to the bill tor the payment of purpose of being served with notice of all proceedings °°^'^°°™^^™*'^ therein." And thereupon the party entering such appear- ance shall be entitled to be served with notice of all pro- 430 SERVICE OF BILL, AND APPEARANCE. Oeder X. ceedings in the cause and to appear thereon {d). But the ^TKufanT^ costs occasioned thereby shall be paid by the party enter- Appeavanee. j^g gugji appearance, unless the Court shall otherwise direct (26th Aug. 1841; Ord. 37). (d) Notices given under this rule require the same time to be given as ' notices to a defendant -who ia bound to answer { Wilten v. Rumhell, 8 Jnr. 236). Rule 16. 16. No party shall enter either a common or special part^sMTCd appearance under the 14th or 15th Eule of this Order, to enter com- after the expiration of twelve days from the service of the ^pearance."' copy of the bill, without first obtaining an order of the Court for that purpose; such order to be obtained on notice to the plaintiff, and to be granted, if the Court On appearance shall think fit, upon such terms as are just. And any liewilllDebound , j. • i. • i by prior pro- V^^^J SO entering such common or special appearance ceedings. shall be bound by all the proceedings in the cause prior to such appearance being entered, unless the Court shall otherwise direct {8th May, 1845 ; Ord. 37; and Ord. 16, Art. 5) (e). Prior proceed- (e) A motion for leave to enter an appearance without heing hound hy prior ings. proceedings was refused in Boreham v. Bignall, 4 Hare, 633 ; and see liighy V. Slrangways, 10 Jur. 998, where leave was refused altogether. Rule 17. 17. The service of a copy of a bill upon a defendant, Served''^*" "^der the 11th Eule of this Order, shall be of no validity within 12 if not made within twelve weeks from the filing of such filing. bill, unless the Court shall give leave for such service to be made after the expiration of such twelve weeks (8th - May, 1845 ; Ord. 16, Art. 3) (/). Delay in service (/) Where a copy of the biU was served after the twelve weeks, the Court, of bill on formal on the joint application of the plaintiff and the defendant served, gave leave to defendant. enter a memorandum of service {Tugwell v. Hooper, 10 Beav. 19). Liberty to serve the copy bill was given after great delay, where it was shown to have been accidental (Bell v. Hastings, 7 Beav. 592). Seeua if the delay be unex- plained (Horry v. Colder, 7 Beav. 685). Rule 18. 18. Where the plaintiff omits to serve any defendant of wirafter^^ ■'^itli a copy of the bill under the 11th Eule of this Order, the 12 weeks, within twelve weeks from the filing of such bill, the Court may, if it shall think fit, upon the motion of the plaintiff, without notice, give the plaintiff leave to serve such de- SERVICE OF BILL, AiTD APPEARANCE. 431 fendant with such copy, within such time and upon such Obder x. terms as to the Court shall seem just (8th May, 1845 ; ^'ofBiuf and"^ Ord. 28) (g). Appearance. (gr) Where the time has been enlarged under this rule, it is not necessary to Service on for- serve the defendant with the order enlarging the time (Fenton v. Clayton, 15 mal defendants, bim. 82). An apphoation to serve a defendant under this rule, after decree, for the purpose of binding him thereby, was refused, Penfold v. Kelly, 12 W. B. 286. ORDER XI. OkdekXL ^ Interrogatories. Inteerogatokies (a). 1. The interrogatories for the examination of the Rule i. defendant to a biU may be in a form similar to the form fogatots"*''" set out in Schedule (B.), with such variations as the nature and circumstances of each particular case may require (7th Aug. 1853 ; 1st Set, Ord. 15). (o) For the form of interrogatories for examination of defendant, see Different kinds Schedule B. (Appendix, p. iii. post), and for the practice as to interrogatories of interroga- to original and amended bills, see p. 167, ante. tories. As to cross interrogatories for examination of plaintiff, see p. 177 ; and as to interrogatories for the examination of witnesses in chambers, see p. 152, ante. Amendment of As to amending interrogatories, see Hooper v. Harrison, 2 W. K. 510 ; interrogatories. Saniell, 444. As to filing interrogatories for the purpose of taking the bill pro confesso. When defend- when defendant absconds, see £aker v. I)eam, 6 W. K. 719 j Butler v. Mat- ant abscond' thews, 19 Beav. 549 ; Wilkina t. Hogg, 30 L. J. Ch. 492, Ord. XXII. i-. 2, note (g), post. 2. Where the plaintiff requires an answer to any bill ^. ^^}^ 2- 1 p 1 -, n -, ■, ' , ■ Time for filing. from any deiendant or defendants thereto, the interroga- tories for the examination of such defendant or defendants shall be filed within eight days after the time limited for the appearance of such defendant or defendants (7th Aug. 1853 ; 1st Set, Ord. 16) (6). (i) By Ord. X. 3 (p. 420, o» /,> and Pleas. 1661; Sanders, 299) (A). (h) As to this plea and the averments necessary to support it, see Daniell, 583—4 ; Mitf. 287 note, 289. It seems that in order to support such a plea, the second bill must be brought by the same person in the same right (Huggins v. Tm-h Buildmg Company, 2 Atk. 44) ; but not necessarily between the same parties (Moore v. Wehh Copper Company, 1 Bq. Ca. Ab. 39). Somewhat similar is the plea of a former decree or order of dismissal, see Moss V. Anglo-Egyptian Company, 1 L. K. Ch. 108 ; Bwtder v. Slewa/rl, 10 W. E. 176 ; Ayckb. 204 ; but a suit stayed for want of prosecution cannot be pleaded in bar, Brendlyn v. Ord, 1 Atk. 571. A former decree, in order to be pleaded, must have been enrolled {Anon. 3 Atk. 809 ; Kinsey v. Kinsey, 2 Ves. Sen. 577 ; but see Pearse v. Dovin- son, 1 L. K. Eq. 241), and it must be final (Senhouse v. Earl, 2 Ves. Sen. 449, where the plea was of a conditional decree for foreclosure), and as exten- sive as the decree sought in the second suit (Pickford v. Hunter, 5 Sim. 122 ; see note (a), p. 393, ante ; and Ellice v. Raupell (No. 1), 32 Beav. 299). A decree in a colonial court may be pleaded, as there is an appeal from that court to the Appellate Court of the Privy Council in this kingdom (Henderson V. Henderson, 3 Hare, 160 ; and see Farguhwrson v. Saon, 5 lluss. 45 ; Pairtridge v. Usbome, id. 195 ; Hv/nter v. Stewart, 10 W. B. 176). So a decree in Scotland may be pleaded {Ma/rqiiis of Breadalbwne v. Marqms of Chandos, 2 M. & Cr. 732). But not the decree of a foreign court, smble (Henderson v. Henderson, 3 Hare, 118). So after decree the Court will re- strain a plaintiff from proceeding for the same matter in Scotland (Wed- derbwn v. ^ Wedderhwm, 2 Beav. 207) ; or Ireland (Booth v. Leycester, 3 M. & Cr. 459) ; or in a colonial court (^Bimhwy v. Buniury, 1 Beav. 381. An agreement to submit the affairs of a partnership to arbitration, and that the submission shall be made a rule of a court of common law, cannot be pleaded in bar to a suit in equity, seeking discovery and praying for an in- junction and receiver (Ooohe v. Cooke, 4 L. R. Eq. 77). Compare generally the cases on staying proceedings where two suits for the same purpose are instituted in different branches of the court, ante, p. 393, and also note (2), p. 535, post, as to dismissing bills owing to the plaintiff not having paid costs of abandoned proceedings. 8. No demurrer or plea shall be held bad and overruled upon argument, only because such demurrer or plea does not cover so much of the bill as it might by law have extended to (26th Aug. 1841; Ord. 36) {I). (I) This rule only applies to accidental slips, see Dell v. Hale, 2 T. & C. 1, Mitf. Plead. 248. And a defendant who puts in a partial demurrer, accom- panied by an answer, must distinguish precisely the part of the bill which is demurred to, Chetwynd v.tLinden, 2 Ves. Sen. 450 ; Weatherhead v. Black- hum, 2 V. & B. 121 ; Osiorne v. JuUion, 8 Drew. 552 ; Hicks v. Eaincock 1 Cox, 41. Rule 9. 9. No demurrer or plea shall be held bad and over- anTpieasnot ^"^^^ ^1^°^ argument, only because the answer of the bad because defendant extends to some part of the same matter as is paluo which covered by such demurrer or plea (26th Aug. 1841; Ord. the answer 37) (^). extends. Plea of depen- dence of other suit. How sup- ported. Plea o{ former decree or dis- missal. Decree must be enrolled. What decrees may be pleaded. Decrees in what courts may be pleaded. Staying pro- ceedings in other courts after decree. Plea of arbitra- tion not good. Rule 8. Demurrers and pleas not bad because not covering so much of bill as they might. Application of rule. DEMURRERS AND PLEAS. 447 (m) This rnle only applies to accidental slips, and does not allow a defendant Order XIV. to raise two distinct defences by plea and answer, or demurrer and answer, see Demurrers Mansell t. Feeney, 2 J. & H. 313 ; where a plea denying a partnership put in to and pleas. a bill filed to establish the partnership, and accompanied by an answer raising the question of lapse of time and other issues, was held bad in form and sub- Answer over- stance. So, too, when a defendant, after the time allowed for demurring alone, ruling plea or filed a pleading which was a demurrer, and also an answer to the whole bill, it demurrer, was held that notwithstanding this rule the answer overruled the demurrer, Emmott T. Mitchell, 9 Jur. 170 ; Shey v. GarWce, 1 De G. & Sm. 396. So a defendant cannot put in a demurrer to the whole biU accompanied by a plea to the whole bill (Limmdea v. Qamett and Moseley Gold Mining Cpmpamy Limited, 2 J. & H. 282). It was contended in JEsdaile v. Molyneuac, 2 Coll. 636, that this and the Pleading and preceding rule authorised a defendant, who had answered the original bill, to demurring to plead to an amended bill. But it seems that the rules do not apply to such a amended bill case, and that the defendant can only adopt that course where the amended after answer- bill seeks to extend, vary, or restrict the case made by the original bill, or ing original when the defendant can show that some material fact came to his knowledge bill, since putting in the answer (ibidl) ; Ellicey. SompeU, 32 Eeav. 299 ; Attoi'ney- General v. Cooper, 8 Hare, 166 ; Wyllie v. Ellice, 6 Hare, 505, 515 ; and see Mlice V. Goodson, 3 M. & Cr. 653, where the defendant had answered the original bill, and then, when amendments had been introduced not materially varying the case, demurred to the amended bUl, and it was held that the answer overruled the demurrer. Secits, where the amendments change the nature of the case (Oresy v. Sevan, 13 Sim. 354). 10. Every petition praying that a plea or demurrer may I^nle 10- be set down (w) to be argued, shall state whether the bill petition for to which such plea or demurrer is put in is marked with setting down ■^ ' / plea or de- the words " Lord Chancellor, or with the words " Master murrer. of the EoUs," and if with the words " Lord Chancellor," then to which of the Vice-Chancellors' Courts the cause is attached (6th May, 1837; Ord. 5). (n) See as to setting down pleas and demurrers, Eegistr. Eegul. March, 1860, Appendix, p. bcxx. post. 11. A demurrer or plea need not be entered with the demurrers and Kegistrar ; but upon the filing thereof by a defendant pleas not to be either party is to be at liberty to set the same down for registrar. argument immediately (8th May, 1845 ; Ord. 44) (o). (o) See Egreimni v. Cowell, 5 Beav. 617, under the 36th Order of Aug. Demurrers 1841. Demurrers in Rolls Causes are put into the paper two days ; in Vice- J"™ ^et Chancellor'a causes six days after they are set down. aown. 13. Where any plea or demurrer is overruled, the „ ?'"'^ ■'j^" defendant shall pay to the plaintiff the taxed costs occa- or demurrer sioned thereby, unless the Court shall otherwise direct °^^"" * ' (3rd April, 1828 ; Ord. 32) (p). (p) An exception to this case occurs in the case of a demurrer ore tenuB. As Costg, to the costs of such demurrer, and of those of the demurrer on the record, see 448 DEMURRERS AND PLEAS. Oeder XIV. rule (1), ante, and note (c). As to costs when a plea is ordered to stand for Demurrers an answer, see Yarnall r. Rose, 2 Keen, 3261 ; Morgan & Davey on Costs, 18. and Pleas. Where a demurrer on two grounds fails as to one and succeeds as to another, " no costs will be given {Benson v. ffadfield, 5 Beav. 546). On reversing an order allowing a demurrer the costs were ordered to be refunded {Oats v. Chap- man, 1 Ves. S. 541). Rule 13. Costs of demurrer allowed. 13. Where a demurrer to the whole or part of a bill is allowed upon argument, the plaintiff, unless the Court shall -otherwise direct (q), shall pay to the demurring party the costs of the demurrer, and where the demurrer is to the whole bill, the costs of the suit also (8th May, 1845 ; Ord. 45). (q) But when the bill charged fraud and collision, a demurrer on the ground that the charges of fraud were too general, and that speeifio acts of fraud must be charged, was allowed without costs, on the ground that by the demurrer the defendant had admitted the existence of fraud (Bothomley v. Squire, 1 Jur. N. S. 694) ; and see Schneider v. lAzardi, 9 Beav. 461, where it was held, not- withstanding this rule, that the costs of a demurrer were in the discretion of the Court, and that to some extent the statements in the bill, though admitted only for the purposes of the demurrer, would be regarded. The order allowing a demurrer with costs, carries with it the costs of a pending motion, Gladstown v. Ottoman Bomk, 1 N. R. 612. And where a motion for an injunction stood over at the request of a defendant who had then filed a demurrer which was allowed on appeal, and plaintiff was ordered to pay the costs of the demurrer and the costs of suit, it was held that the costs incurred on the motion were costs of suit (Pimden v. Stevens, 12 Jur. 319, overruling s. u. 11 Jur. 898). Rule 14. 14. Where a demurrer to the whole bill is not set down muner to' ^°^ argument within twelve days (r) after the filing thereof, whole bill and the plaintiff does not within such twelve days serve without being ^^ order for leave to amend the biU (s), the demurrer shall set down. ^e held sufficient to the same extent and for the same pur- poses, and the plaintiff shall pay to the demurring party Costs. the same costs as in the case of a demurrer to the whole bill allowed upon argument (8th May, 1845 : Ord. 46, and Ord. 16, Art. 17) («). Demurrer allowed with- out costs. With costs of suit, including pending motions. Setting down demurrer after twelve not generally allowed. Amendment in consequence of demurrer, &c. {r) Vacations are not reckoned in the computation of the twelve days, Ord. XXXVII, 13 (3), and see Charlton v. Richmond, 4 Beav. 397. As to allowing a demurrer to be set down after twelve days have expired, see Knight v. Marjoribanh, 14 Sim. 198, where such an application, grounded on the alleged pecuniary embarrassments of the plaintiff's solicitor, of which the plaintiff was previously aware, was refused (see Powell v. Cm-field, 7 Jur. 1124) ; and in Mattliews-r. Chichester, 11 Jur. 49, overruling s. c. 5 Hare, 207, the plaintiff having neglected to comply with this rule, and his bill being consequently out of court, the Court refused to allow it to be restored. (a) A demurrer was served and set down, and a common order to amend was subsequently obtained at the Rolls, it was held that the case not being one for a common order to amend, plaintiff must pay the costs (Hoflick v. Sevnolds, 9 W. R. 398). See note {I), p. 411, ante. DEMURRERS AND PLEAS. 449 The costs of demurrer prepared, but not filed before the bill is amended, are Okder XIV. payable by plaintiff (Bainbrigge v. Moss, 3 K. & J, 62). Demurrers (t) The defendant had formerly to move for these costs exparle {Mackenzie v. and Pleas. Claridge, 6 Beav. 123 ; Titrnia-y. Sampson, 8 Jur. 1134). But the order is ■ now of course {Jacobs v. Hooper, 1 W. E. 61) ; see as to the effect of defend- Costs of ant's laches on the costs, Campbell v. Joyce, 2 L. R. Eq. 377. demurrer pre- pared, &c. Costs how 15. Where a demurrer to part of a bill is not set down obtained by for argument within three weeks after the filing thereof, jj^jg j'g and the plaintiff does not within such three weeks serve Where de- an order for leave to amend the bill, the demurrer shall of a bill be held sufficient to the same extent and for the same ^"^o'ent without being purposes, and the plaintiff shall pay to the demurring set down. party the same costs, as in the case of a demurrer to part Costs. of a bill allowed upon argument (8th May, 1845 ; Ord. 47, and Ord. 16, Art. 18) (m). (u) See the preceding note. 16. Where a plea to the whole or part of a bill is allowed Rule 16. upon argument (ij), the plaintiff, unless he undertakes to g^l'jo^gj'' ^* reply to the plea (w), or unless the Court otherwise directs. When plea to shall pay to the party by whom the plea is filed the costs aiiowed.'biii of the plea, and, where the plea is to the whole bill, the to be dis- costs of the suit also ; and in such last-mentioned case the order allowing the plea shall direct the dismissal of the bill (8th May, 1845 ; Ord. 48). («) See note (p), ante, notes to rr. 15, 13, as to the costs of a plea ordered Plea standing to stand for an answer. for answer. (mi) As to costs, where the plaintiff having set the plea down for argument. Where de- moves that it may not be in the paper, see Jones v. Wattier, 4 Sim. 128 ; fendant does Lopes V. De Tastet, 3 Mad. 183. not argue plea. Where a plea to the whole bill was allowed, the plaintiff, although he under- ^jjgj,g plaintiff took to reply to the plea, was compelled to pay the costs of it, but the other mj^ertales to costs of suit were reserved {Fry v. Ricliardson, 10 Sim. 475). reply. 17. Where a plea to the whole or part of a bill is not Rule 17. set down for argument within three weeks after the filing gufficfent,^* thereof, and the plaintiff does not within such three weeks without being either serve an order for leave to amend the bill, or by argument. notice in writing undertake to reply to the plea, the plea shall be held good to the same extent, and for the same purposes, and the same costs shall be paid by the plaintiff, Costs. as in the case of a plea to the whole or part of a bill 450 DEMUBRERS AND PLEAS. Obdek XIV. Demurrers and Fleas. When plea so sufficient, bill to be dis- missed, What is plea to -whole bill. allowed upon argument (x). And where the plea is to the whole hill (y), the defendant by whom such plea was filed may at any time after the expiration of such three weeks obtain as of course an order to dismiss the bill (8th May, 1845 : Ord. 49, and Ord. 16, Art. 19). (a) Under the old practice, the defendants had to apply for their costs on notice to the other side, Solerts v. Jones, 13 L. J. Ch. 32 ; but see now Jacobs V. Eooper, 1 W. R. 61, and note («), supra. ' (y) A plea to all the relief, but not in form to all the discovery sought by a bill for both discovery and relief, is not a plea to the whole bill. An order of course to dismiss, therefore, obtained after the expiration of the three weeks, was discharged for irregularity (Neck v. Gains, 1 De Gf. & Sm. 223). Rule 18. 18. Where the plaintiff undertakes to reply to a plea to taKngTo reply the whole bill, he shall not, without the special leave of needlne ^th™' *^^ Court, take any proceeding against the defendant by whom the plea was filed till after replication (8th May, 1845; Ord. 50). ceeding with- out leave. Okdkr XV. Answers. Rule 1. Form of answer. Defendant who answers must answer fully. He may plead or demur, but not move to dismiss or ask for an OEDEE XV. Answers (a). 1. Answers may be in a form similar to the form set out in Schedule (C.) (6) with such variations as the nature and circumstances of each particular case may require (7th Aug. 1852; 1st Set, Ord. 31). (a) For the practice as to answers of particular defendants, e.g., married women, see note (J), p. 435, ante. Subject to the right of pleading or demurring (see last order), or of claiming protection as to particular interrogatories, see rule 4, infra, a defendant, if he answers at all {i. e. if he does not demur or plead to all or part of the dis- covery), mnst answer fully (see note (e), p. 453, post), Oreat Luxemburg Rail- way Company v. Magnay, 23 Beav. 646 ; Swaiey v. Sutton, 1 H. & M. 614, 12 W. R. 124; ffowev.M'Kerman, 30 Beav. 647; Robsony. Flight, 33 Beav. 268; Foxwell V. Webster, 2 Dr. & Sm. 2S0. Thus, in a creditor's suit, an executor defendant cannot refuse accounts because he denies by his answer that the plaintiff is a creditor, for there are many intermediate steps as to which an answer may be material, e. g. the appointment of a receiver, see De La Rue v. Dickinson, 3 K. & J. 391. It follows that a defendant cannot move to dismiss a bill instead of pleading to it or answering it on the ground that the plaintiff has no bonA fde interest, Sealon V. Grant, 2 L. R. Ch. 459 ; see Morgan v. Great Eastern Railway Company, 11 W. R. 662. Nor can he have an issue directed before answer, and thereby ANSWEES. 451 avoid giving discovery, Foxvjell v. Wdtster, 2 Dr. & Sm. 250 ; nor can he Order XV. demur to part of the bill, declining to answer the rest, unless the time for Answers. filing interrogatories has expired and no answer is required (note (w), p. 167, ■ a/ate). issue before (6) See Appendix, p. iv. post; and Order 6ih March, 1860, by which answer, answers are required to be printed ; and as to the title of au answer, Rdbbeth Form of v. Squire, 10 Hare, App. iii. ; and of an answer and demurrer, Osborne v. answer. Jullion, 3 Drew, 652 ; and see as to form of answers, 15 & 16 Vict. c. 86, s. 14, p. 168, ante ; Patrick v. Blackwell, 17 Jur. 803 ; Daniell, 668, 674. Where an error was discovered in an answer after it had been sworn, but Correcting before it was filed, the original jurat was ordered to be cancelled, and the title and answer to be filed as re-sworn, Attorney-General v. The Governors of Don- errors in nington Hospital, 17 Jur. 206 ; and compare as to correcting the title of an answer before answer, Thatcher v. Lambert, 5 Uare, 228 ; and Atto^-ney-General v. Corpo- it is filed. raXvm of Worcester, 2 Ph. 3. ; and see note (a) p. 463, post, as to collecting , the title of aflSdavits. In an older case, Griffiths v. Wood, 11 Yea. 62 (followed in Cope v. JPan-y, 1 Madd. 83 ; and Fry v. ManteU, 4 Beav. 485), an answer in which a misnomer occurred, was ordered to be taken off the file as no answer. ' An answer prepared for five cannot be sworn to as the answer of thi'ee only (Hai-ris v. James, 3 Bro. C. C. 398 ; Gooke v. Westall, 1 Madd. 265), unless by consent {Done v. Sead, 2 V. & B. 310). Secus as to pleas, see note (e) to Ord. XIV. 2, p. 444, ante. If a defendant is desiious of correcting his answer after it has been filed, he After it is must apply for liberty to file a supplemental answer. See Wells v. Wood, 10 filed by Ves. 401 ; Dolder v. Bank of jEngland, id. 284 ; Edwards v. McLeay, 2 V. supplemental & B. 256 ; Jennings v. Merton College, 8 Ves. 79 ; Phelps v. Prothero, 2 De answer. G. & Sm. 274. Leave to file the supplemental answer (unless by consent) must be obtained by motion in court after notice, and the notice must specify the new fact intended to be introduced : thus, if a defendant desires to add a new issue to issues directed for trial, he should raise it by supplemental answer, Eaising a new Morgan v. Puller, 2 L. R. Eq. 296. And where a party, owing to an error iggae. in the instructions, was by his answer made to admit what was contrary to the fact, the Court allowed him to file a supplemental answer on payment of costs, gj. correcting Cooper V. Vttoxeter Bwrial Bpard, 1 H. & M. 680 ; but proof of the mistake mistake in must be produced before leave will be given, Churton v. Frewrni, 1 L. B. Eq. fact. 238. The application must be by motion in court, not by summons in cham- bers (j.bid.). See as to amendments by a defendant of particulars of objections to a patent, Penn v. Bibbey, 1 L. K. Eq. 548. Where a defendant throughout his answer referred to a printed document, Answer refer- which was not filed as an exhibit, the answer was held to be incomplete ing to other without the printed document, Lafone v. Falkland Islands Company, 3 K. documents, & J . 267). Compare Mylessi v. Spartali, 29 Beav. 564 ; and Telford v. Saskin, accounts, &o. 1 Drew. & Sm. 148 ; where the answer of a defendant, who was required to set forth certain accounts, referred to a book not scheduled in the answer, in which such accounts were set out, and the answer was held insufficient. And even where the account-books, which were of great size and very nume- rous, had been scheduled, it was held incumbent on the defendant to point Schedules. out specifically the portions from which the plaintiff could obtain the infor- mation sought {Drake v. Symes, Johns. 547 ; and see White v. WUliams, 8 Ves. 193; Christian v. Taylor, 11 Sim. 401; Daily v. Kewrick, 13 Price, 291 ; Soldei-o v. Saimders, 3 N. E. 59). A schedule of excessive length will be held impertinent {Norway v. Bowe, 1 Meriv. 355). A defendant cannot, as a general rule, avail himself of any defence which Defence must appears only on his evidence, and is not stated in his answer (Stanleys. Robin- be put in issue ion, 1 K. & M. 527 ; Harrison v. Barwell, 10 Sim. 382 ; and see cases cited, by answer, note (a), p. 168, ante, as to pleading by afldavit, the Statute of Limitations, &e., where an answer is not required) ; but where, though a substantial defence is not expressly raised by the answer, the facts on which it rests are , alleged and substantiated by the answer, such defence wiU be held available, ™tL Ormea v. Beadel, 2 D. F. J. 333. See, however, Hglderness v. Rankin supporreu, Q Q 2 452 ANSWERS. Order XV. Answers. or by cross interrogatories, or cross bill. Answer after revivor and amendment. Elusory an- swer, taken off the file. Answer ad- mitted svifS- cient. Rule 2. Facts if denied to be traversed directly. [ihid. 258). A cross bill or cross interrogatories may be necessary in a^pport of the defence ; thus, a defendant, if he has reason to believe that the plaintiff has parted with his interest in the subject matter of his suit, should file cross interrogatories, and if he only takes the objection by his answer, the Court will not attend to it, Clark v. Malpas, 10 W. E. 613. As to where a cross bill is necessary, see Jacob v. Richards, 18 Beav.[300, 5 D. M. G. 55 ; ffamnah v. Hodgson, 30 Beav. 19, and note (x), p. 178, ante. As to putting in an answer after order of revivor, see Martin v. Pumell, 3 W. R. 395, cited in note (m), p. 216, ante. And as to answer to amended bill, see Drake v. Symes, 2 D. P. J. 81, and note (j), p. 411, ante._ Where a defendant, to gain time, filed an elusory answer to one interroga- tory only, hoping to gain time by driving the plaintiff to take exceptions, his answer was ordered to be taken off the file {Eead v. Barton, 3 K. & J. 166 ; and see Lynch v. Lecesne, 1 Hare, 626 ; Financial Corporation v. Bristol, (Sec. Railway Company, 3 L. E. Eq. 422). But an answer, however clearly evasive, cannot be taken off the file after it has been excepted to, Olassington V. Thwaites, 2 Euss. 458. As to where an answer is admitted sufficient, see note (»), pp. 458, 459, post. 3. When a defendant denies a fact, he must traverse or deny it directly, and not by way of negative pregnant : As, for example, where he is interrogated whether he has received a sum of money, he must deny or traverse that he has received that sum, or any part thereof, or else set forth what part he has received. And so where a fact is alleged, with divers circumstances, the defendant must not deny or traverse it literally, as it is alleged in the bill, but must answer the point of substance positively and certainly (32nd May, 1661; Sanders, 299) (c). Answer must traverse inter- rogatory. Omission to answer specific interrogatory. As to persons named. As to corre- spondence. As to resources, means of payment, &o. (c) The answer must traverse with accuracy such parts of an interrogatory as are not intended to be admitted (Patrick v. Blachuiell, 17 Jur. 803). And every interrogatory founded on a specific averment must be specifically an- swered {Earp V. Lloyd, 4 K. & J. 58). But when substantial information is given by the answer, though not technically, exceptions will be discouraged \Seade v. Woodroffe, 24 Beav. 421). An interrogatory asked whether certain sums had not come to the defend- ant's hands, and whether he had not applied the same to certain purposes? The defendant denied that any sums had come to his hands, but did not answer the remainder of the interrogatory. It was held that the answer was sufficient (The Duke of Brunswick v. The Duke of Cambridge, 12 Beav. 280). An interrogatory asked whether the defendant had not had communication with A. B. and 0. D., and other persona ? The answer admitted communica- tions with A. B., but denied any with any other persons, omitting the name of C. D. It was held that the defendant being specially interrogated as to 0. D., the general answer was insufficient (ibid.). A bill alleged that the defendant in the course of a correspondence made certain representations, and an interrogatory required him to set forth a list of the correspondence. An answer stating that the correspondence contained no such representations was insufficient, Riskton v. Qrissel, 14 W. E. 578. A son was interrogated, in respect of a purchase from his father with whom he had been living, which was impeached by the bill as fraudulent and without consideration, as to his own pecuniary resources, whence derived, and the amount, value, ,and income thereof, and also out of what funds, &c., he had ANSWERS. 453 obtained the means of paying the oonsideration money. To the first interro- Obbee XV. gatory he answered that he had pecuniary resources of his own, partly arising Aneifeis. from property of his own, and partly his wife's, without stating the value. To the second, that he had paid 1, 0001. by money belonging to him, and at the time in his father's hands, and the remaining 7,0002. by a cheque on his bankers. Upon the circumstances charged in the bill, it was held that the answers to both interrogatories were insufficient (Newton v. Dimes, 30 L. T. 30). When on a specific averment of a conveyance to S., the words "or to some Specific an- and what person or persons," are added in the interrogatory, the party interro- swer. gated is not thereby relieved from answering specifically as to the alleged con- veyance from S. {Ewrp v. Lloyd, 4 K. & J. 58). A defendant must answer precisely and directly, and cannot refer to a Reference to schedule which he does not in the usual form pray may be taken as part of his documents, answer, Boldero v. Sawndei-s, 3 N. K. 59, and see note (6), p. 451, ante. But a defendant may refuse to answer irrelevant interrogatories, see Ord. What dis- XVI. 4, p. 456, mfra ; and as to special reasons for objecting to discovery, see covery pro- note (r), p. 175, aiite, as to protected documents. tected. See further, as to answering interrogatories, Aldridge v. WestbrooTe, 4 Beav. 212 ; and Bate v. Bate, 7 Beav. 528 ; Inman v. Whitley, 4 Beav. 548 ; Att.- Gen, v. Rees, 12 Beav. 50 ; Dixon v. Fraser, 2 L. R, Eq. 497 ; Bridgewater V. De Winton, 12 W. B. 40. 3. A defendant shall not be bound to answer any state- Rule 3. ment or charge in the bill, unless specially and particularly j^oan^'^to an"* interrogated thereto {d). And a defendant shall not be swer unless PflTlGC18#llv bound to answer any of the interrogatories for the exami- interrogated. nation of the defendants, except those interrogatories which such defendant is requii'ed to answer. And where a defen- dant answers any statement or charge in the bill, to which he is not interrogated, only by stating his ignorance of the matter so stated or charged, such answer shall be deemed impertinent (26th Aug. 1841; Ord. 16). (rf) A plaintiff in a patent suit was held not entitled to discovery from the General defendant in answer to a general interrogatory as to the instances of prior user, inquiry, on which he relied, BovUl v. Smith, 2 L. B. Eq. 459. 4. A defendant shall be at liberty by answer to decline Rule 4. . , , i !■ • X 1 Defendant may answermg any mterrogatory or part oi an interrogatory, jgji;j,g ^^3^^^.. from answering which he might have protected himself by i"g interroga- i ° ° , . tory, to which demurrer (e), and he shall be at liberty so to decline, not- he might have withstanding he shall answer other part of such inter- demurred, rogatory or other interrogatories from which he might have protected himself by demurrer, or other parts of the bUl as to which he was not interrogated (26th Aug. 1841; Ord. 38). (e) Demurrer here means demurrer to the particular discovery and not a Defendant may general demurrer to the whole bill, Seton, 1655. Thus, in Mason v. Walce- demur to par- ticular dis- 454 AJTSWEES. Order XV. man, 2 Ph. 516, Lord Cottenham held in accordance withV.-C. Knight Brnce, Answers. that a defendant could not decline to answer any one interrogatory on the ground only that the biU was open to a general demurrer. This case was fol- cmiery nnier i^^ed in Fisher y. Price, 11 Bear. 194 ; and see Stainton v. Ohadwich, 13 the rule ; Beav. 320 ; Attorney-General v. Corporation of London, 12 Bear. 21, and but if he gives note (a), p. 450, ante. partial dis- These cases may be considered as having settled that the order points to covery he objections to discovery and has no reference to relief ; and this was the doctrine cannot decline laid down by Y.-C. Knight Bruce, in Baddely v. Cwrwen, 2 Coll. 151 (decided to answer fully under the old order), where on a bill by a legatee against an executor and a on the ground person alleged to have possessed himself of Hie testator's assets, it was held that the wliole that the bill might have been demurred to by the second defendant on the relief might ground of there not being sufficient charges of collusion between the defendants ; have been that course, however, was not taken, but the second defendant, by answer, demwred to. stated his belief of the allegations in the bill as to the will, probate, &c., but declined to answer the rest of the bill, and claimed the same benefit from his answer as if he had demurred to the relief sought by the bill, and to so much of the discovery sought by the bill as had not been met by the answer, and this answer was held insufficient. See, too, Molesworth v. Sowa/rd {ibid, 145), and FairtJiorne v. Weston, 3 Hare, 387, 393, where it was said that the order was not meant to enable the defendant to put in a short answer and refuse all further discovery ; and where an answer to an interrogatory, accompanied by a submission that the bill was demurrable, was held insufficient. And the con- trary decisions of Drahe v. Drake, 2 Hare, 647 ; Tipping v. Clarice, 2 Hare, 583 ; and Kaye v. Wall, i Hare, 127, 283, may be considered as overruled by Mason v. Wakeman, mpra. So in Ma/rsh v. Keiih, I Drew. & Sm. 342, it was held that where the bill prayed alternative relief, and each branch pf.the i-elief prayed was in effect complete relief, a defendant could not protect himself from answering fuUy on the ground that as to one branch of the relief he might have demurred. See Boies v. Christ's College, 26 L. J. Ch. 449. As to the grounds on which a defendant may demur to answering particular interrogatories, see cases cited as to protection of documents in note (r), p. 175, ante. 5. All answers shall be signed by the parties swearing the same, and such signature shall be affixed or acknow- ledged in the presence of the persons before whom the same are sworn (37th April, 1748) (/). (/) As to the answer of an illiterate person, see Wilton v. Clifton, 2 Hare, 535. Rule 6. 6. Unless the Court shall otherwise direct, the answers on olth! *° ^^ °^ ^^^ persons (except persons entitled to the privilege of peerage, or corporations aggregate) shall be put in upon the oath of the parties putting in the same, where they are not exempted from taking an oath by any statute in that behalf {g) , Persons entitled to the privilege of peerage may answer upon protestation of honour, and corporations aggregate shall put in their answer under their common seal (26th Oct. 1842; Ord. 7. 31st Dec. 1640. 26th May, 1685). Form of jurat ,^3) The 15 & 16 Vict. c. 86, s. 21, p. 179, amte, does not alter the form to answer. "' "^^^ *° ^^ administered to a defendant on putting in his answer (Attorney- Rule 5. Signature by parties swear- ing answer. ANSWERS. 455 Getieral v. Hudson or Henderson, 9 Hare, App. Ixiii. Thus the jurat to a Ordek XV. joint and several answer may still be qualified as to the defendant's belief of Answers. the truth of other acts than hia own (ibid.). When a jurat had been partially cancelled by an officer of the court it was directed to be resworn in the original form (ibid. ; and see Attorney-General v. Donniagton Hospital, 22 L. J. Ch. 706). See further as to swearing answers, note (i), p. 451, ante. As to the London Commissioners for taking Oaths, see 16 & 17 Yict. c. 78, p. 230, ante ; and as to swearing answers, &o., abroad, see 15 & 16 Yict. o. 86, sect. 22, p. 180, ante. OEDEE XVI. OK... XVI. Exceptions to Exceptions to Answer (a). Answer. 1. When a plaintiff excepts to an answer for insuffici- Rule l. ency, he shall take his exceptions in writing, signed by ?''°^*^°°^ '^"'^' counsel (22nct May, 1661; Sanders, 300). how taken. (a) Exceptions for impertinence are abolished by 15 & 16 Viet. e. 86, s. 17, p. 171, ante. As to moving to take an elusory answer off the file instead of excepting to it, Takin" answer see BeaA v. Barton, cited in note (6), p. 452, ante ; for form of exceptions, see off jhe file. Daniell, Vol. III. 705. They should be headed, "Exceptions taken by, &o., to mjii. -nj icna. the answer of the defendant, &c. to the bill of complaint o^ &c. for insufficiency" of excentiors {Earl of Lichfield v. Bond, 5 Beav. 513). But in Bradstock v. Whatley, 6 " Beav. 61, leave was given to amend the title on payment of costs. They should follow the words of the interrogatories. But if they plainly point out the passages to which they apply {Woodroffe v. Daniell, 10 Sim. 243) ; or if the variation be trifling {Hodgson v. Butterfield, 2 Sim. & St. 236 ; Brown v. Keating, 2 Bear. 581) ; they will not necessarily fail, especially if they contain a reference to the number of the interrogatory (Esdaile t. Moly- neux, 1 De Gr. & S. 218) ; and semble, such a practice might save the neces- sity of setting out the interrogatory itself (ibid.). If an exception for insufficiency is well founded in any respect, the exception Where an ex- is allowed, Benard v. Levinstein, 3 N. R. 665. ception for ia- Where, however, one interrogatory embraced six questions, five of which sufficiency is were sufficiently answered, an exception to the whole interrogatory was held to partly well be wrong in point of form (Higginson v. Blockley, 4 W. K. 60 ; but see, founded. conlrd, HambrooJc v. Smith, 17 Sim. 209). Where a plaintiff takes no excep- j;xceptior,s to tion to the answer to the original bill, he cannot except to the answer to the g^^g^gj ^g amended bill on grounds which would have applied equally to the answer to the g^^gmig j tin. original bill {Ovey v. Leighton, 2 S. & S. 234). See note (»), p. 458, post. Whether exceptions are allowed (Newton v. Dimes, 3 Jur. N. S. 583), or Costs of excep- overruled (Stent v. Wichens, 5 De Gr. & Sm. 384), the costs will be ordered to tions. follow the result (comp. Willis y. Childe, 13 Beav. 454) ; and such costs are payable immediately (Thomas v. Bawling, 27 Beav. 875). But it seems they should be asked for by the successful party (Earp v. Lloyd, 4 K. & J. 58 ; Crossley v. Stewart, 2 N. R. 57). But where an interrogatory includes several questions which ought to be distinct, and exceptions as to such interroga- tory are only partly allowed, the defendant has not to pay costs, Langley v. Wake, 15 W. R. 53. Where some exceptions are allowed and others overruled, the costs of those allowed ought to be set off against those overruled ( Willis v. Childe, 1. c. ; 456 EXCEPTIONS TO ANSWEE. Order XVI. DaUy v. Worham, 32 Beav. 69 ; and for form of orders, see Seton, 1256). As Exceptions to to costs of exceptions submitted to, see Ord. XL. i-. 13 ; and see Morgan and Answer. Davey, 27 — 29. Eule 2. 3. No pleading or other matter depending before the soanTalhow"'^ Court shall be set down for hearing for scandal, unless taken. exceptions are taken in writing and signed by counsel, describing the particular passages which are alleged to be scandalous (9nd Nov. 1850; Ord. 23) (&). (b) Unless it appears that the passages objected to as scandalous would be immaterial at the hearing, the Court 17111 disallow the exceptions. Anon. 10 W. E. 617. Kule 3. 3. Where any exceptions for scandal or insufficiency are giving notice taken, the solicitor of the party taking the same, or the of filing excep- party himself where he acts in person, shall leave, such tions. .J , ■ exceptions at the Eecord and Writ Clerks Office to be filed, and shall on the same day give notice of the filing thereof to the solicitor for the opposite party, or to the opposite party himself where he acts in person (36th Oct. 1843; Ord. 5 and 34) (c). Accidental (c) When a party accidentally omitted to give the notice, the Court relieved omission to ^'"'^ fr°"i ^^^ irregularity on payment of costs {Bradstoclc v. WhatUy, 6 Beav. give notice. 61 ; and see Lowe v. Williams, 12 Beav. 482 ; Lord Suffield v. Bond, 10 Beav. 146, and notes to Ord. III. 9, p. 38^ Rule 4. 4. In deciding on the sufficiency or insufficiency of any mat«tauVof answer or examination, the relevancy or materiality of the statement or statement or question referred to shall be taken into con- guestion to be ., ,. , t . ., ^ considered. sideration (3rd April, 1828 ; Ord. 74) (d). Relevancy of (<^) See Marsh r. Keith, 1 Drew. & Sm. 342 ; Seade v. Woodroffe, 24 Beav. question. ^21 ; Wood v. HUchings, 3 Beav. 504 ; and as to irrelevancy, see note on p. 176, ante. Rule 5. 5. No order shall be made for leave to file exceptions nunc^pro"tuuo '^^'^^ 2>ro tunc (3nd Nov. 1850 ; Ord. 6) (e). No order even . («) The 17th Order of May, 1846, is to the same effect. Under this order by consent. '' ^^^ ^^^^ *^^* ^° °^^^^ ^"^ le&Ye to file exceptions, nunc pro iimc, cannot now be made even by consent (Biddulph v. Oamoys, 9 Beav. 155) ; but a special order may be made for referring {quare filing) them, notwithstanding that the time has elapsed (Hid. ; and see Whitmore v. Sloane, ibid. 1). Rule 6. 6. After the filing of an answer, the plaintiff shall have EXCEPTIONS TO ANSWER. 457 six weeks within which he may file exceptions thereto for Obdee, XVI. insufficiency (/). Where he does not file exceptions ^l^swer! within six weeks, such answer on the expiration of the „■ f~M- six weeks shall he deemed sufficient (3nd Nov. 1850 ; exceptions for Ord. 8) (g). insufficiency. (/) This rule is va'iatim the same as the 22nd article of the old 16th Order From what of May, 1845, under which it was held that where an answer and plea had period time been iiled, and the plea had been overruled, the six weeks mentioned in runs, the order ran from the overruling of the plea (Esdaile v. Molynevsc, 2 Coll. 641). Under the 4th Order of April, 1828 (Beav. Ord. Cane. 4), the principle of which seems to apply, it was held that where an answer was insufficient, and the plaintiff obtained an order to amend, and that the defendants might answer the exceptions and amendments together, the plaintiff had the full period of two months (by this rule reduced to six weeks^ to except (Lloyd v. Clarhe, 6 Beav. 467). Where a defendant in contempt files his answer without paying the costs, the In case of time for excepting runs from the filing of the answer, not from payment of the defendant in costs of contempt [Coyler. Alleyne, 16 Beav. 568, following NicJcUnv, Patten, contempt. 4 Beav. 126). (g) As to the plaintiff admitting an answer to be sufficient, see note to r. 1 2, infra. 7. No exceptions for insufficiency shall be taken to an ^ ^^^^ 7. . /-\T\ N° exceptions answer alter replication (29th Jan. 1618-19 ; Ord. 62). after repiica- 8. When a defendant desires to prevent exceptions to *^'"'- his answer for insufficiency being set down for hearing, he Time for shall have for that purpose only eight days after the filing submitting to of such exceptions within which he may submit to the same (2nd Nov. 1850 ; Ord. 9) (h). (h) See note to next rule. *9. Where a defendant, not being in contempt, submits Rule *&. to exceptions to his answer for insufficiency before the forther^answer, plaintiff has set them down for hearing, he shall have where excep- „ , , « , 1 • • -ii • tions sub- fourteen days {i) from the date ot the submission withm mitted to which he is to put in his further answer to the bill ^^°^^ ^^' (2nd Nov. 1850 ; Ord. 10) {j ). (i) In the original order the words are tJiree weeJcs (Beav. Ord. Cane. Answer where 433;. defendant {j) Where a defendant submits to exceptions, he need not again answer submits to interrogatories sufficiently answered in his first answer (Robinson v. Anderson, exceptions. 2 Eq. Eep. 89 ; comp. Duncombe v. Davis, 1 Hare, 184). 10. Exceptions to answers for insufficiency, or to any ]j„ie iq. pleading or other matter depending before the Court for ^g^"^^*^"^^^^^ scandal (fc), shall be set down for hearing by the registrar for hearing. 468 EXCEPTIONS TO ANSWER. Obdbr XVI. at the request of the party filing the same, upon the pro- ^Ittr *° duction of a certificate of the Clerk of Records and Writs of the filing of such exceptions, or (in the case of ex- ceptions to an answer for insufficiency) of the filing of a further answer, and the same shall he advanced and put in the paper for hearing on an early day (I) ; and the party setting down any such exceptions shall, on the day on which the same shall be so set down, serve a notice (m) thereof on the party whose pleading or other matter is excepted to; otherwise the exceptions shall be deemed not set down (2nd Nov. 1850 ; Ord. 12). (i) In the original order the words were scandal or impertinence, but see 15 & 16 Vict. c. 86, s. 17, ante, p. 171, which abolishes exceptions for im- pertinence. . , (I) Exceptions are to be heard by the Court, 15 & 16 Vict. c. 35, s. 27 Setting down ^^^^^ p_ jgg^ . ^^^ ^ ^^ setting them down, see 5th Eegistr. Kegul., March, exceptions. ^ggQ^ Appendix, p. Ixxx., post. The plaintiff's solicitor should, before the exceptions are heard, leave a copy of the interrogatories, the answer, and the exceptions with the judge, nrt -A Where a defendant tooli exceptions to a bill for scandal and neglected to set Otner Bide may ^^^^ ^^^^^ ^^ ^^^ j^^j^ ^j^^j. ^^^ plaintiff was entitled to an order of course for set down it jetting them down, and they were afterwards advanced for hearing (Ooyle v. partyexcepting ^„^^s^_ ^^ ^^^ {^^^^ neglects. ^^^ g^^ ^^^^ ^^j ^^ ^^j^ g^ ^f^_ Rule 11. 11- Where the plaintiff files exceptions for insufficiency Exceptions for tp a defendant's answer, the plaintiff shall not set them n"t"to be set down for hearing before the expiration of eight days from *■" ht d""^ *^^ filing of such exceptions, unless in a case of election he from iiiing, shall be required by notice in writing from such defendant to set them down in .four days pursuant to the 6th Rule of Order XLII. (2nd Nov. 1850 ; Ord. 11). Rule 12. 12. Where the plaintiff files exceptions for insufficiency Not to be set ^q ^n answer, he shall set them down for hearing after the down after .. ».,, .i.,., tc ji fourteen days, expiration of eight days, but withm fourteen days trom the filing of such exceptions; otherwise the answer, on the expiration of such fourteen days, shall be deemed sufficient (2nd Nov. 1850; Ord. 14) (n). Answer ad- W As to admission of sufficiency, see further rule 1 6, poH. mitted suffi- Where the plaintiff gave notice of motiob for a, decree, after exceptions cicnt by motiijij to ^1 "■nswer for insufficiency had been allowed, the Court, it seems, treated for decree; him as having waived his right to a, further answer (Boyse v. Cochell, 18 Jur. 770) ; and see note (r), infra. by amendment. ^^ * plaintiff who amends his bill after answer, admits the answer to be sufficient, and cannot except afterwards to matters which he has not excepted EXCEPTIONS TO ANSWER. 459 to on the original answer, Duncomic v. Davis, 1 Hare, 192 ; nor can he re- Ordek XVI. quire an answer to interrogatories already answered, Drake v. Symes, 2 D. P. Exceptions to J. 81. JSecus if the amendment is merely formal (see Daniell, 70S, 4), for by Answer. snch amendment the plaintiff does not admit the answer to ba sufficient, Taylor V. Wrench, 9 Ves. 315 ; Kaye v. Wall, i Hare, 283. Answer A voluntary answer is treated as at once sufficient, Bailey v. Dv/nherley, 6 admitted suffix] W. R. 835. dent. As to the meaning of a defendant's " sufficient answer," for the purpose of filing cross-interrogatories or requiring production of documents, see note (u) p. 178, and (a), p. 179, ante. 13. After exceptions to an answer for insufficiency have Rule is. been filed, and a further answer has been put in, the wheu^set^*'""^ plaintiff shall have fourteen days from the filing of such *"^°' further answer within which he may set down the old exceptions. Where the old exceptions are not set down within fourteen days after such further answer has been put in, the answer shall, on the expiration of such fourteen days, be deemed sufficient (3nd Nov. 1850 ; Ord. 16) (o). (o) See last note. 14. Where, after exceptions to an answer for insuffi- Rule 14. ciency are set down for hearing, a defendant, not being in g„bmitMng to contempt, submits to answer, or where the Court holds answer, &c., the first or second answer to be insufficient, the Court tions are set may appoint the time within which such defendant shall ^°^"- put in his further answer (2nd Nov. 1850 ; Ord. 17, 31) (p). (p) A defendant in contempt for not putting in a further answer after exceptions allowed cannot apply for further time ( Wheat v. Grahame, 5 Sim . 570). 15. After the allowance of or submission to exceptions Rule 15. to an answer for insufficiency, a defendant shall answer ^f ^g^it"^^^ within the time allowed or appointed as aforesaid. And ans-wering, where he does not answer within the time so allowed or ancTof, or" appointed, or obtain further time and answer within such submission to , , . . „ , /. , , exceptions. further time, the plamtift may sue out process or contempt against such defendant (8th May, 1845; Ord. 37, 3nd Nov. 1850; Ord. 17). 16. The ansTv^er of a defendant shall be deemed Rule 16. ^ . . / \ Answer when sufficient (q) — sufficient. (1.) Where no exceptions for insufficiency are Article (l). 460 EXCEPTIONS TO ANSWER. Okdbr XVI. Sxceptions to Answer. Article (2). Article (3). filed thereto within six weeks after the filing of such answer. (3.) Where, exceptions being filed, the plaintifi' does not set them down for hearing within fourteen days after the filing thereof. (3.) Where, within fourteen days after the filing of a further answer, the plaintiff does not set down the old exceptions (2nd Nov. 1850 ; Ord. 18). (a) See note (y), last page. Eule 17. 17. Where, after a defendant's second or third answer matte to"" is filed, the plaintiff sets down the old exceptions for which further insufficiency, the particular exception or exceptions to quired to be which he requires a further answer shall he stated in the stated in notice of setting down such exceptions (3nd Nov. 1850 ; Ord. 19) (r). Course when (»•) See Tanner v. StruUon, 15 Jur. 457. When a defendant Bubmits to the defendant original exceptions, set down after a further answer, his better course is not to submits to apply at chambers for further time, by agreeing to which application the original exoep- plaintiff might possibly be held to waive his exceptions altogether, (see note (n), tions set down supra), but to notify the defendant's submission to the plaintiff, and then to after further make an arrangement as to the time to be allowed, and to bring that point answer. only before the Court when the exceptions are called on {The Mcmchester, &c. MaUway Company v. The Worhsop Moard of Health, 2 K. & J. 25). Eiile 18. Answer to be deemed suffi- cient or insuffi- cient from date of order on hearing or submission. Kule 19. After third insufficient answer, de- fendant may be committed. Costs. Three insuffi- cient answers. 18. Where, upon the hearing of exceptions, the answer is held sufficient, it shall be deemed to be so from the date of the order made on the hearing ; and where the defendant submits to answer without an order from the Court, the answer shall be deemed insufficient from the date of the submission (2nd Nov. 1850; Ord. 20). 19. Upon a third answer being held to be insufficient, the Court may order the defendant to be examined upon interrogatories to the point as to which it is held to be insufficient, and to stand committed until he shall have perfectly answered the interrogatories; and the defendant shall pay such costs as the Court shall think fit to award (2nd Nov. 1850; Ord. 22) {p). {p) See under the old 10th Order of April, 1828 (the procedure under which was imperative), Balfour v. Farquharson, 1 S. & S. 72 ; on appeal, Turn. & Rubs. 13i ; Weston v. Joy, 1 Madd. 527; Allfrey y. AUfrey, 12 Beav. 620. An order for immediate committal after three insufficient answers is EXCEPTIONS TO ANSWER. 461 irregular, Hayward v. Hayward, Kay, App. xxxi. ; 23 L. J. Ch. 549, Okdek XVI. (where, however, the examination waa on interrogatoriea in chambers). Exceptions to This rule does not apply to a defendant making insufiBoieut affidayita aa to Answer, documents (Harford v. Lloyd, 2 W. R. 637). ■ 20. Where any person having filed exceptions for scandal I^"!? 20. to any pleading or other matter depending before the Court, scandal, -when does not set the same down for hearing within sIk days after ^^* ^°'^°' the filing thereof, such exceptions shall be considered as abandoned; and the person by whom such exceptions were filed shall pay to the opposite party such costs as may have Costs. been incurred by such party in respect of such exceptions (2nd Nov. 1860; Ord.^24). 21. Upon the production of an order allowing exceptions Rule 21. for scandal to any pleading or other matter depending gcandafous before the Court, the officer having the custody or charge matter. of such pleading or other matter shall expunge from such pleading or other matter such parts thereof as the Court shall have held to be scandalous (2nd Nov. 1850 ; Ord. 25) (2). (}) See Jodrelly. Jodrell, 12 Beav. 216; Everett v. Frytheryeh, 12 Sim. Taking 363. A bill containing scandalous matter was by consent of all parties ordered scandalous to be taken off the file {Makepeace t. Bomieux, 8 W. R. 687, and see Clifton pleadings off T. BentaU, 9 Beav. 105). A scandalous affidavit may be ordered to be taken the file, &c, off the file (Goddard v. Parr, 24 L. J. Ch. 783) ; or the scandalous matter may be expunged {Re Bailey's Settlement, 3 W. R. 133). As to costs in cases of scandal, see Morgan & Davey, 28. OEDER XVII. oederXVII. Replication EePLICATION AND JOINING IsSUE (o). "'"is^sue'!'"^ 1. Where a defendant is not required io answer and does Rule l, not answer the bill, so that under the Stat. 15 & 16 Vict. Sdl"" c. 86, s. 26, he is to be considered as having traversed the fendant is not case made by the bill, issiie shall nevertheless be joined by answer, and filing a replication in a form or to the effect of the replica- "^"^^ ""* tion set forth at the end of this order (7th Aug. 1852; 1st Set, Ord. 28) (b). 462 REPLICATION AND JOINING ISSUE. Obdbk XVII. Eeplication and Joiniog Issue, Hearing on bill and answer where replication is not filed. Sule 2. Subpoena to rejoin abolished. One replication only to be filed. Issue joined by filing replica- tion. {a) As to the practice where a replication is not filed, and the case is heard on hiU and answer, without further eyidenoe, see note (6), p. 466, post. 3. No subpoena to rejoin shall hereafter be issued ; and only one replication shall be filed in each cause, unless the Court shall otherwise direct (b), and the replication shall be in the form set forth at the end of this order, or as near thereto as circumstances admit and require ; and upon the filing of such replication the cause shall be deemed to be completely at issue (c)'; and each defendant may, without any rule or order, proceed to verify his case by evidence (d); and the plaintiff may in like manner proceed to verify his case by evidence {d) as soon as notice of the replication being filed has been duly served on all the defendants (e) who have filed an answer or plea, or against whom a traversing note has been filed, or who have not been required to answer and have not answered the bUl (8th May, 1845 ; Ord. 93) (d).. Beplications against several defendants. In cases of revivor and abatement. Application for leave to withdraw replication. Service of replication, out of juris- diction, substituted. (i) The application is not granted of course, nor, it seems, except in cases of necessity {Stimton v. Taylor, i Hare, 608). But it has been held that when some of the defendants answer after replication has been filed, the plaintiff should move for leave to file a further replication {Rogers v. Eooper, 2 Drew. 97. As to filing replication after revivor, see DeeJcs v. Stanhope, 2 W. E. 651 ; Stanton v. Perceval, 5 H. L. Ca. 257. (c) Applications for leave to withdraw replication cannot be made after witnesses have been examined (Gascoigne v. Giamdler, 3 Swanst. 420 ; £ous- field V. Mould, 1 De G. & Sm. 347 ; and see Morton v. Brochlehurst (No. 1), 29 Beav. 503. The applications for that purpose may be made in chambers, p. 148, a/nte. A supplemental answer may by consent be filed after the replication is filed without withdrawing it {Parsons v. Hardy, 21 L. J. Ch. 400). . {d) As to the time for closing evidence, and applications to enlarge such time, see note (k), p. 191, amte, (e) Where the defendant resides out of the jurisdiction, he may be served with notice of replication if his residence is known ; see as to service out of the jurisdiction, ante, p. 425, note (j). And if his residence is not known, substituted service is permitted, ante, p. 420, note (o), thus in Hooper v. Harrison, 2 W. B. 510, an appearance had been entered for a defendant resident abroad, and interrogatories had been filed, which he was required to answer ; but before he was served with them, they were amended by striking cut the part which referred to him, and the Court directed a general replication to be filed, and that service of notice of filing the replica- tion on the defendant within one week should be good service ; and see Wil- Tcms V. Hogg, 4 L. T. N. S. 12 ; Butler v. Matthews, 19 Beav. 549 ; and Ord. XXII. 1, 'post. The notice must in ordinary cases be served on the day of filing (Ord. III. 9, amte, p. 3S9 ; but see note (m) thereto). REPLICATION AND JOINING ISSUE. 463 Form of Replication. "Between A. B. . . , Plaintiff, " and " C. D.; E. F., G. H., &c. . Defendants. " The plaintiff in this cause hereby joins issue with the defendant C. D. " [all the defendants who have answered or pleaded, or against whom a traversing note has been filed, or who have not been required to answer and have not answered the bill], " and will hear the cause on bill and answer against the defendant E. F." [all the defen- dants against whom th§ cause is to be heard on bill and answer'], " and on the order to take the biU as confessed 'against the defendant G. H." [as the case may be.] Okdbb XVH. Beplication and Joining Issue. OEDEE XVIII. Atfidatits {a). 1. All affidavits shall be taken and expressed in the first person of the deponent (8th May, 1845; Ord. 136) (J). (a) As to tlie Commissioners for administering oatlis, see p. 230 ; and as to swearing affidavits abroad, see p. 180, arite: Daniell, 825; Seton, 20. Tlie Registrars of the Land Registry Office ma; administer oaths under the Land Transfer Act, p. 334, ante, and the Clerks of Records and Writs, or of Inrol- ments, may administer them generally as occasion requires, p. 380, ante. As to cross-examination upon affidavits, see note (a), p. 193, ante. The word affidavit includes an affirmation and attestation upon honour (Prel. Ord. 10 (6). Affidavits are to be printed, Ord. 16 May, 1862, post. An affidavit, if made in a suit, must be correctly entitled in the suit {May v. Prinsep, 11 Jur. 1032 ; Salomon v. Statman, 4 Bear. 243, where a mis- nomer of the defendant in an affidavit of service was held a ground for dis- charging with costs the order obtained on the motion ; but see Hatoes v. Bamford, 9 Sim. 653; and Pea/rsom. Wilcox, 10 Hai-e, App. xxxv., where affidavits erroneously entitled were allowed to be taken off the file and re-sworu without a fresh stamp ; and Fisher v. Coffey, 1 Jur. N. S. 956, where the name of one of the defendants having been omitted in the title, the Court, on proof that no suit such as that described in the title existed, gave leave to file the affidavit. See as to correcting errors in title, &c., of answer, note (i), p. 451, ante. See further, as to the title of affidavits, Be Sams, 7 Jur. N. S. 166 ; Se Barnes, 5 L. T. N. S. 687. If made on a petition under an Act of Parliament (ex. gr. the Trustee Act), they must be entitled in the Act (Macienzie v. Mackenzie, 6 De G. & S. 338). But affidavits filed under a petition, the heading of which has been altered, need not be re-sworn (Re Yarteg Iron Works Wesleyam Chapel, 10 Hare, App. xxxvii.) ; but may be made evidence in the petition under the new title by a short affidavit referring to them (itnd.). Order XVIII,' Affidavits. Rule 1. To be ex- pressed in the first person. [Ord. 16 May, 1862. Title of affi- davit. Correction of errors in title, &c. 464 AFFIDAVITS. Okdbr XVIII. AfBdavits. Affidayits made evidence in another matter. Form of affi- davit. Irregular affi- davits, when admitted. When not admitted. Eule 2. Costs of affidavits not so expressed to be dis- allowed. Rale 5. Affidavits to be filed in Kecord and Writs Office. Time for swearing and (1) Not before bill filed or petition pre- sented. (2) Not after time fixed by General Orders, Affidavits filed in a cause may be used in support of a petition in the cause, Jones v. Turnbull, 22 L. J. Ch. 1055 ; or, by leave of the Court, of a petition in a matter, Re Pichance, 10 Hare, App. xxxv. ; and as to using, in a supple- mental suit, affidavits filed in the original suit, see Blachmore v. Qlamorgan- shire Canal Compcmy, 5 Uuss. 151 ; usually notice is required. As to a deponent's description of himself in his affidavit, see Boddmgton v. Woodley, 12 L. 3. Ch. 15. An affidavit containing scandalous and irrelevant matter may be ordered to be taken off the file {Ooddard v. Pan; 3 W. -R. 633 ; Kemiek v. Kermich, 12 W. R. 335 ; and as to costs of affidavits, and of impertinent matter therein, see Ord. XL. 32, post, and notes thereto). (6) Every affidavit is to be divided into paragraphs, p. 190, ante. There is to be a memorandum stating by whom it is filed, Ord. 5 Feb. 1861, r. 18, and each statement is to show the means of knowledge, ibid. r. 23 ; as to era- sures, see Ord. I. 36, p. 378, wnte, and note. Documents referred.to, if not set out, must be made exhibits, Bewetson v. Todhunter, 2 Sm. & G. App. ii. ; Re Field, 11 W. R. 297 ; see Tripp, 99 ; Daniell, 828. Affidavits sworn in America in the third person were received as evidence in Re Husband, 12 L. T. N. S. 303 ; Dryden v. Frost, 8 Sim. 380 ; and trifling irregularities have been overlooked, see Gates v. BucMaml, 13 W. R. 67 ; MicJe V. Ward, 10 Hare, App. i. But the signature of the party cannot be dispensed with, Andersmt, v. Stalker, 9 Jur. 1 085 ; (as to marksmen, see v. Ghristopker, 1 1 Sim. 409) ; nor the words "make oaMh," Phillips \. Prentice, 2 Hare, 542; Re Newton, 2 D. F. J. 3. 3. Any solicitor, party, or person filing an affidavit not taken and expressed in the first person of the deponent shall not be allowed the costs of preparing and filing such affidavit in any taxation of costs (8th May, 1845 ; Ord. 128) (c). (c) See as to the form of affidavits, note (5), swpra. 5. Before any affidavit is exhibited in court or other- wise produced for the purpose e»f grounding any order, writ, process, or proceeding thereon, such affidavit shall be filed in the office of the Clerks of Eecords and Writs {d). And no order grounded upon an affidavit shall be drawn up unless the affidavit be first so filed, and an office copy thereof be produced (15th Nov. 1660) (e). (d) Generally no affidavit to be used at the hearing, even of a suit for an injunction, can be sworn before bill filed, Prancome v. Francome, 13 W. R. 356; Fennel v. Brovm, 18 Jur. 1051 ; except where, by the rules of the Court, or by statute, a special affidavit is required to be filed with the bill (e.g., in suits to obtain the benefit of lost instrunients, Daniell, 358 ; or formerly on motion for the common injunction, ante, p. 221) ; Walker v. Fletcher, lPh._115. So in general affidavits to be used in support of a petition should be sworn after it is presented, Re Western Benefit Building Society, 33 Beav. 368 ; but where the petition was for payment of money out of Court, an affidavit sworn before the petition was presented, but after payment of the money in, was received. Re Yarley, 14 W. R. Affidavits to be used in a suit cannot generally be filed after eight weeks from the time when issue is joined, see Ord. 5 Feb. 1862, r. 5, or where notice AFFIDAVITS. 465 of motion for decree is given, after the times specified by Ord. XXXIII. 5, 6 ; Order XVIII. but the time may be enlarged in proper cases, see note (i) p. 191, ante. Affidavits. Affidavits to be used on motions or petitions maybe tiled up to the last — : : — moment before the hearing, Munro v. Wivenhoe, etc. Railway Gompany, 13 Time for filing W. &. 880 ; Ex parte Leicester, 6 Ves. 429 ; Jones v. , 8 Ves. 46 ; affidavits on Electric Telegraph Company v. Nott, 2 Coop. 67 ; where the hearing was interlocutory postponed to give time to file them, see, however, Clement v. Griffith, Coop, applications. 470. In a very special case affidavits filed after the motion was opened were admitted, Ea^t Lancashire Railway Company v. Sattersley, 8 Hare, 87 ; and see Smith v. Swansea Dock Company, 9 Hare, App. xx. , and where an affidavit was filed too late for the hearing of a petition, it has been admitted on appeal, Re Gibraltar and Malta Banking Company, 13 L. T. N. S. 263. Affidavits of service must be filed at latest before the rising of the court Affidavits of on the day on which the application is made. Lord Miltoim v. Stewart, 8 service. Sim. 34. (e) In vacation office copies have been dispensed with, Attorney-General v. Lewis, 8 Beav. 179 ; but the rule is strictly adhered to at other times, Jackson v. Cassidy, 10 Sim. ^36 ; Elsey v. Adams, 4 GrifF. 398, where an injunction was dissolved with costs because there was no office copy of the affidavit in court when the motion was made. As to office copies, see Daniell, 832 ; Ord. XXXVI. 1 . post. OEDEE XIX. ObdehXix. Evidence Evidence Geneeally. generally. 1. When the defendant has answered, the plaintiff shall .^"^'ei- carefully consider the answer, and if he finds that upon anties as to the answer alone, without further proof, there is sufficient entering into ^ 11, J evidence. ground for a final order or decree, he shall proceed upon the answer without entering into evidence. Or if it is needful to prove a particular point, he shall not enter into evidence as to other points that are not necessary to be proved. In the first case, if he enters into evidence at all, and in the second case, if he enters into evidence as to such other points, he will render himself liable Costs. to pay the costs thereof (22nd May, 1661; Sanders, 299) (a). (a) For the cases on taking evidence in a cause where notice of motion for Evidence and decree is given, see note to 15 & 16 Vict. c. 86, s. 15, p. 170, ante, and cross-examina- where issue is joined, see note (u) to the 30th section of the same Act, p. 184, tion. ante, and as to cross-examination before the examiner, see notes on pp. 185 — 9, ante, and as to the time for closing evidence, see p. 191, ante. 2. Where a cause is heard upon bill and answer, the Kule 2. answer must be admitted to be true in all points, and no till ancl an- other evidence shall be admitted, unless it be matter of^*^"^' 466 EVIDENCE GENERALLY. Order XIX. record to which the answer refers, and which is proveable GeleraSy. by the record (29th Jan., 1618-19 ; Ord. 64. 22iid May, • 1661 ; Sanders, 300) {h). Proving (j) Jt seems to be now settled that, notwithstanding this rule, an exhibit exhibits at may be proved at the hearing upon bill and answer {OhalJc r. Maine, 13 Jur. 481, hearing on bill following Rowland y. Sturgis, 2 Hare, S20 ; Nmllev. Fitzgerald, 2 Dru. & and answer. -^^r. 530, and overruling Jones v. Griffith, 14 Sim. 262). The 43rd Order of Aug. 1841, provides ■' ' That, in cases in which any exhibit Viva voce, or may by the present practice of the Court be proved viva voce at the hearing by affidavit. of a cause, the same may be proved by the affidavit of the witness who would be competent to prove the same vivd voce at the hearing" (Beav. Ord. Cane, 179). This Order is not expressly incorporated into the Consolidated Orders ; but it is apprehended'that, under the combined operation of rule 3 of this Order, and rule 5 of the Preliminary Order, the practice established by it will be preserved unaltered. Kale 3. [The 3rd rule of this Order (which abrogated sect. 30 of the Chancery Amendment Act, 1852 (ante, p. 184), as to evidence in a cause where issue is-joined), is now abrogated in its turn by the new rules of 5th Feb. 1861, see note (<), p, 184, ante,'] Rule 4. Decrees in other courts may be read without order ; secus as to depositions. Reading de- crees and evidence in other causes. If there has been oppor- tunity to cross- examine. Order to read evidence taken under winding up; in bankruptcy ; not evidence taken in county Palatine. Though wit- nesses are not dead. 4. Decrees in other courts may be read upon the hear- ing, without an order> But no depositions taken in any other court shall be read, unless by order (29th Jan. 1618-19 ; Ord. 71) (c). (c) The order is made as of course, saving just exceptions, see Daniell, 807, et seqq. The true test seems to be whether the iirst suit raised the same issue, and was vvrtually between the same parties { i. e. between persons represent- ing the same interests) as the first (Laicrence v Maule, 4 Drew. 472 ; Borough V. Whichcote, 3 Bro. P. C. 595 ; Coke v. Fowntain, 1 Vern. 413 ; Bade v. Lingood, 1 Atk. 204 ; Humphreys v. Pensam, 1 M. & C. 580; Mackworth v. Penrose, 1 Dick. 50). The fact that the plaintiff in the second suit was only a co-defendant in the first suit will not prevent the Court from allowing the depositions of the witnesses in the first suit to be read if the paaty against whom they are to be read had an opportunity of cross-examining the witnesses (Nevil v. Johnson, 2 Vem. 447, and see Poulterers' Company v. Askew, 2 Ves. sen. 89, 90), and a, plaintiff was allowed, seven months after he had given notice of motion for decree, to use the examination of the defendant taken in another cause, Watson v. Cleaver, 20 Beav. 137. But where there has been no opportunity to cross-examine afiSdavits, they cannot be made evidence in another suit, Williams v. Williams, 12 W. E. 663 ; Moore v. ffai-per, 15 W. B. 306 ; and see note (w), p. 194, ante. An order was made to read in a suit evidence taken under a winding-up order to which the parties to the suit were privy, Ernest v. Weiss, 1 N. R. 6 ; and depositions in bankruptcy, Lake v. Peisley, 1 L. R. Eq. 173 ; 35 Beav. 125. But an order of course to read in a suit in Chancery copies of a bill, order, decree, or affidavits, in a suit in the Court of the County Palatine, alleged to have been between the same parties, and directed to the same issue, was discharged as irregular, Stephenson v. Siney, 2 L. R. Eq. 303 ; such deposi- tions must be introduced as evidence in the ordinary course (ibid.). The order may be made though the witnesses whose evidence it is proposed to use are not dead, City of London v. Perkins, 3 Brow, Pari. Ca, 602 ; but see Carrington v. Oarnock, 2 Sim. 567. EVIDENCE GENERALLY. 467 5. Where either party, plaintiff or defendant, ohtains Oroek XIX. an order to use depositions of witnesses taken in another o-enerally. cause, the opposite party may likewise use the same b^^aTs. without motion, unless upon special reason, shown to the ^''^^'' *° "^^ ^, .. . depositions in Oourt by the party obtammg such order, the opposite another cause, party be prohibited by the same order from so doing ^y ™po^te^'° (32nd May, 1661 ; Sanders, 304). party. *6. Where a defendant in equity files a cross bill for . ^'■"le *6. ... . . . Answer to discovery only against the plaintiff in equity, or exhibits cross bill for interrogatories for his examination (d), the answer to such tHrosTrntCT- cross bill or interrogatories may be read and used by the rogatories party filing such cros*s bill or exhibiting such interroga- answer to bill tories in the same manner, and under the same restric- ^°'^ "^^^^^^ tions, as the answer to a bill praying relief may be read and used (26th Aug. 1841 ; Ord. 43). (d) The words " or exhibit interrogatories for his examination " are new, see 15 & 16 Vict. c. 86, s. 19, ante, p. 177. [The 7th rule of this Order, as to examination of witnesses before the 7th rule as to examiner is abrogated by r. 2 of Ord. 5th Feb. 1861, post, and see now notes cross-examina- pp. 185— 9, ante, as to cross-examination 'in a cause ■where notice of motion of tion abrogated, decree is given, and as to cross-examination (before the Court) in a cause where issue is joined, see note (m), p. 185, ante, and Ord. 5th Feb. 1861, ^ost] 8. The re- examination of a witness shall immediately Rule 8. follow his cross-examination, and shall not be delayed to tion of witness, a future period (7th Aug. 1852 ; 1st Set. Ord. 35) (e). (e) See ante, pp. 170, 184. [The 9th rule proTiding for the attendance of witnesses for cross-examina- Eule 9 abro- tion, is abrogated by r. 2 of Ord. 6th Feb., 1861 ; and see now rule 19 of that gated. order, post']. 10. The above Rules with reference to the examination, Rule lo. ... 1.11 Evidence taken cross-examination, and re-examination of witnesses, snail after the extend and be applicable to evidence taken in any cause l^earmg, subsequently to the hearing thereof (7th Aug. 1853; 1 Set. Ord. 38) (/). (/) See the next note. 11. The practice of the Court with respect to evidence Rule li. before the hearing, when applied to evidence to be taken tions'as to ^°' before an examiner in any cause subsequently to the evidence after : . .... I i , . -i the hearing. hearing, shall be subject to any special directions which H H 2 468 EVIDENCE GENERALLY. Obber XIX. may be given in any particular case (16th Oct. 1833 ; Generally. Qrd. S5) (^f). Rule 12. No affidavit or deposition filed or made before issue joined to be used without notice. ig) See Ord. XXXV. 29, post, and note (m), p. 152, ante. 12. No affidavit or deposition filed or made before issue joined in any cause shall, without special leave of the Court, be received at the hearing thereof, unless within one month after issue joined, or within such longer time as may be allowed by special leave of the Court Qi), notice in writing shall have been given by the party intending to use the same, to the opposite party, of his intention in that behalf (13th Jan. 1855 ; Ord. 6). (A) As to applications to enlarge time, see note (i), p. 191, atde. Rule IS. [The 13th rule (abrbgated by Ord. 5th Feb., 1861, r. 2, provided : (1), for Time for the time for closing the evidence in causes where issue is joined, as to which closing evi- see now Ord. 5th Feb., 1861, r. 5, and note (i), p. 191, write. dence in causes. (2) For the time during which such evidence should be open to cross-exami- Timefor cross- nation. See now the same order, r. 19, and note («), p. 185, ante, examination -^^ *" ^'■^ i\me for closing evidence where notice of motion for a decree is in causes. gi^e") see Ord. XXXIII. 4, post."] Rule U. Oaths. 14. Oaths shall be administered in a reverent manner (10th April, 1676) (i). {i) As to swearing affidavits, &c., see note (a), p. '163, ante. Ohber XX. Preliminary Accounts and Inquiries. OEDER XX. Peeliminary Accounts and Inquiries. Where it appears that certain preliminary accounts and inquiries (a) must be taken and made before the rights and interests of the parties to the cause can be ascertained, or the questions therein arising can be determined, the plaintiff shall be at liberty, at any time (6) after the de- fendants shall have appeared to the bill, to move (c) the Court on notice, that such inquiries and accounts shall be taken and made (d) ; and an order (e) directing such inquiries and accounts shall thereupon be made, without prejudice to any question in the cause, if it shall appear to the Court that the same will be beneficial to such (if PRELIMINARY ACCOUNTS' AND INQUIRIES. 469 any) parties to the cause as may not be competent to OkderXX. consent thereto, and that the same is consented to by Accounts aud such (if any) of the defendants as being competent to Ipqu'rieg. consent have not put in their answer to the bill, and that the same is consented to by, or is proper to be made upon the statements contained in the answers of such (if any) of the defendants as have answered the bill (/) (9th May, 1839 ; Ord. 5). (a) Where preliminary inquiries are directed, but in consequence of some irre- Preliminary gularity the bill is afterwards dismissed against one defendant, the preliminary inquiries pro- inquiries may, under special circumstances, be prosecuted against the other secuted against defendants, the plaintiff waiving all relief against the party dismissed (Chaffers some defend- V. Baher, 5 W. R. 515), See note (d) infra. ants only. (6) They may be ordered though the cause is set down IStrofher v, Dntton, m;,-. f„^ 1" Sim. 288). „\Xrin (c) In Hicks v. Shells, i Jar. 858, Lord Langdale, M. K., made the order on petition. See, too, Neate T. Pinh, 15 Sim. 450. ^°- petition. {d) The Court will not act under this rule where some of the defendants Qourt refuses are out of the jurisdiction (Deriishire v. Some, 14 Jur. 969 ; see Barrett v. to act on this Buck, 2 Hare, 520) ; or where some of the defendants object that persons not rule unless all parties are interested {ibid. ; and see Logan v. Baimes, 10 Sim. 604) ; for the parlies wM be inquiry must be binding on all parties (Meinertzhagen v. Davis, 10 Sim. 289). iound by the Nor, it seems, will the rule be acted upon where the plaintiffs title ( Wilson t. inquiries. Applcgarth, 10 Sim. 657 ; Kinshela v. Lee, 7 Bear. 300), or the substantial equity of the case (Belclier v. miitemore, 7 Beav. 245), is denied by the answer. See, too, WaUis v. Sarel, 8 Jur. 640 ; and Seed v. Don Pedro Mining Company, 11 W. R. 935, where the Lords Justices refused to direct a reference as to title, one of the defences set up by the answer being that the title was not made out in.time. In Fosdowe v. Amcoats, 4 Jur. 1053, a suit for specific performance, the ^hat inquiries Court on motion iinder this rule referred it to the Master to inquire whether ^jh ^g directed the plaintiff had shown a good title, and when first, without prejudice to the u^der this question of specific performance (see now Ord. XXXV. 61). And in general the Order, inquiries must be such as would have been directed at the hearing (Mdnertz- hagen v. Davis, 10 Sim. 289) ; and they will be regulated by the nature of the suit (Collinson t. Ballard, 2 Hare, 119) ; and they must not be such as would inToWe the decision of the questions at issue in the cause (Curd v. Curd, 2 Hare, 116; Breeze\. English, id. 118 ; ice t. Shaw, 10 Sim. 369; Frost V. Hamiltmi, 4 Beav. 33). As to the evidence which will justify the Court in directing these inquiries Evidence, generally, see Miller v. Priddon, 1 M. & G. 687 ; Skarf v. Soulby, 1 M. & Gr. 364 ; Jenhjn v. Vaughan, i W. R. 214. (c) The order when made has not the effect of a decree (Teague v. Order not final. Richards, 11 Sim. 46). Thus, it will not prevent a creditor from suing at law (ibid.). (/) See note (d). In one case the Coiirt granted a preliminary inquiry in ^t whose a suit with a view to granting the prayer of a petition presented by persons not instance parties (iVeoie V. Pink, 15 Sim. 450). Inanothercase a defendant (the plaintiff granted, having died in the interval), was allowed to prosecute the inquiries (Upjohn v. Upjohn, 4 Beav. 246). 470 SETTING DOWN AND HEARING. Order XXI. Setting Down and Hearing. Rule 1. Time for setting down, and serving subpoena to hear judg- ment. When four weeks run. OEDEE XXI. Setting Down and Heaping. 1. Within four weeks after the evidence has been closed the plaintiff shall set down his cause and ohtain and serve a subpoena to hear judgment (a). If he does not^ any defendant, after the expiration of such four weeks, may either move to dismiss the bill for want of prose- cution, or may set the cause down at his own request^ and may obtain a subpoena to hear judgment, and serve the same on the plaintiff (6) (8th May, 1845 ; Ord. 16, Art. 45, and Ord. 116). (o) The time for closing the evidence means the time limited for the exami- nation in chief, consequently the four weeks run from the termination of the eight weeks mentioned in rule 6 of Ord. 5th Feb. 1861, Dowsony. Solomon, 4 Drew. 642 ; Hart v. Roberts, 32 Beav. 231, where it was held by the Master of the Rolls that at the end of the four weeks the defendant might, if the cause were not set down, move to dismiss for want of prosecution. In Jenkijn V. VaughoM, 3 W. K. 151, V.-C. Kindersley refused to dismiss a bill though the four weeks had elapsed, on the ground apparently (see remarks in Dowson T. Solomon, 1. c. ), that the time for cross-examination had not elapsed. Further time to set down the cause was allowed in Southampton, &c. Steam- boat Company v. Rawlins, 13 W. E. 512. As to serving subpoena to hear judgment when the bill has been amended ov the suit revived, see Davis v. Front, 7 Bear. 256 ; Bray v. Woodram,, 6 Madd. 72. For form of snbpcena, see Appendix, p. vi. post. If the plaintiff has obtained an unconditional order for enlarging the time for closing the evidence, the defendant cannot set down thf cause or obtain the subpffina {Langley v. Fisher, 5' Beav. 692) ; and where he had done so the cause was struck out of the paper and the subpoena quashed (ibid.). (6) The defendant who sets the cause down is only bound to serve the ^Zoinii^ (Sinith T. Welle, 6 Madd. 193 ; Clarke v. Dunn and Phelps, 5 Madd. 474). It is the duty of the plaintiff to serve the other defendants (ibid.). See further, Rigg v. Wall, 3 M. & Cr. 505. 2. All causes required to be heard shall be sat down for hearing by the registrars, upon production to them of the certificate of the proper officer that the same are in a fit state to be set down for hearing (33rd Feb. 1850) (c). Setting down (c) As to setting down Causes, see Appendli, p. Ixxxl. post, and as to cause as short, marking them as Short causes, Appendix, p. Ixxxii. post. The Court by con- Minutes agreed sent allowed a cause to be heard, when there were interrogatories unanswered <">■ on the file, minutes of decree having in the meantime been agreed upon, and the parties having agreed to dispense witli the answer (Blston v. Elslon, 24 L. J. Ch. 408). SubpcEna to hear judgment where bill amended, &c. Where uncon- ditional order for enlarging time has been obtained. Defendant bound to servo plaintiff only. Kule 2. Causes to be set down on certificate of proper officer. Eule 3. Subpcenis to 3. No suhpa'ita to hear judgment shall be sealed, unless SETTING DOWN AND HEARING. 471 the Clerk of Eecovds and Writs who seals the same has a Okdek XXI. note from the registrar of the day on which the same is ^nd nLrbr to be made returnable. And the registrar shall not give heavjud-'- any such note until the cause is set down for hearing men* not to be (18th Feb. 1G31-22. 28th May, 1623. 30th June, 1626. Zttj^^^ Hil. Term, 1646-47; Ord. 2. 8th May, 1673; Ord. 8. '^g's'-^^a^-- 25th June, 1658). 4. Causes may be set down for hearing, and the sub- ^^'^^ ^• poenas to hear judgment served and returnable on any day, brsefdown as well out of term as in term (23rd Nov. 1831 ; Ord. 82). ^"'^ subpoenas _., , . ,,, , served out of 0. A subpoena to hear judgment shall not be returnable term. at any time less thaij one month from the teste of the Rule 5. writ ; and it shall be served at least ten days before the •nrhen'^^turn- return thereof (8th May, 1845 : Ord. 16, Art. 46) (d). able and to be ' served. (d) See, as to advertising the subpoena to hear j udgment, notes to Ord. XXII. Advertising 4, p. 478, post ; and as to waiver of irregularity in the writ, Carvich v. Young, subpoena. Jao. 524 ; and for form of the subpoena, see Appendix, p. vi. post. 6. Foreclosure causes, when ready for hearing, may be Rule 6. ordered to be advanced for hearing, under the same cir- ^'VoreSure cumstances and subject to the same rules as other causes causes, may be ordered to be so advanced (9th May, 1839 : Ord. 4) (e). (e) The costs of a sucoeasfal application under this rule were directed to be Costs of costs in the cause (Carthew v. Barclay, 10 Sira. 273 ; but see 5ro«roe v. application. Loehhart, 10 Sim. 420). The application should be on notice (Powell v. Notice of Calloway, i Jur. 859). The application will not be granted unless the application defendant consents, semble {Lewin v. Moline, 1 Beav. 99 ; and see Mount- ford v. Cooper, 1 Keen, 464 ; and RashUigh v. Dayman, 2 Madd. 147, there cited). 7. Where any cause becomes abated or is compromised Rule 7. after the same is set down to be heard, the solicitor for ggmpj,of„;gg the plaintiff shall certify the fact (/), as the case may be, ^fter setting to the registrar, who shall cause an entry thereof to be be certified. made in the Cause-book opposite to the name of such cause (3rd April, 1828; Ord. 39). (/) If this be not done, -the defendant will be entitled to the costs of the Costs of the day (Saner v. Beavin, 14 Beav. 646). dayj 8. Where any cause shall have been standing for one ^"le 8. year in the Cause-book, marked as " abated," or standing or standing over generally, such cause shall, at the expiration of the "''^'^ ^°'' °°® 472 SETTING DOWN AND HEAEING. Ordek XXI, Setting Down and Hearing. year, to be struck out. Betaining cause till infant of age. Rule !). Causes on further direc- tions and on equity re- served. Pleas, de- murrers, exceptions, to Masters' lleports, how set down. Eule 10. Causes how set down ; causes on further con- sideration. year, be struck out of tlie Cause-book {g) (32iid Aug. 1859 ; Ord. 19). (g) But where infants who had nearly attained twenty-one were interested in the subject-matter of a suit set down for hearing, the Court by consent ordered the cause to be retained in the Registrar's book till they attained twenty-one (hroohe t. Todd, 6 Jur. N. S. 664). 9. All causes for further directions, or on equity re- served after a trial at law shall have been had in pursuance of a decree or order pronounced by the Lord Chancellor, the Lords Justices, the Master of the EoUs, or one of the Vice-Chancellors, and all pleas, demurrers, and exceptions to Masters' Keports required to be heard before the Lord Chancellor, the Lords Justices, the Master of the Rolls, or one of the Vice-Chancellors, shall be set down by the registrars for hearing, on orders drawn up by them upon petition to the Lord Chancellor to be left with the registrar, or on orders drawn up by one of the secretaries at the Rolls upon petition of course to the Master of the Rolls, as the case may be (33rd Feb. 1850). 10. When any cause shall, at the original or any sub- sequent hearing thereof, have been adjourned for further consideration, such cause may, after the expiration of eight days and within fourteen days from the filing of the certificate of the chief clerk of the judge to whose court the cause is attached, be set down by the registrar in the Cause-book for further consideration, on the written request of the solicitor for the plaintifi" or party having the conduct of the cause ; and after the expiration of such fourteen days the cause may be set down by the registrar on the written request of the solicitor {h) for the plaintiff or for any other party ; and the request to set down the cause may be in the form or to the effect firstly set forth at the end of this Rule ; but the cause, when so set down, shall not be put into the paper for further consideration until after the expiration of ten days from the day on which the same was so set down, and shall be marked in the Cause-book accordingly. And notice thereof shall be given to the other parties in the cause at least six days before the day for which the same may be so marked for SETTING DOWN AND HEARING. 473 further consideration; and sucli notice may be in the ObdebXXI. form or to the effect secondly set forth at the end of this anf Heari^T Eule (4th March, 1853). (A) A. cause may be set down a aeoond time for further consideration and Further consi- to administer purchase-monies on the chief clerk's certificate that a sale of deration, pai-t of the property has taken place since the first certificate (per V.-C. Stuart, January, 1860). See as to marking causes "short" lOthRegist. Eegul. March, 1860, Appen- Cause marked dix, p. Ixxxii. post. short. Form of Bequest. "In Chancery. "A. «;. B. "I request that this cause, the further consideration whereof was adjourned by the Order of the day of , may be set down for further con- sideration before His Honour the " Dated, &c. " CD. " Solicitor for Form of Notice. "In Chancery. "A. r. B. " Take notice that this cause, the further consideration whereof was adjourned by the Order of the day of , was, on the day of set down for further consideration before His Honour the for the day of "Dated, &c. "CD." " Solicitor for " To Mr. " SoHcitor for 11. The solicitors for the several parties in all causes Rule 11. and matters shall attend in court when such causes and attend at matters are appointed to be heard and during the hearing Jieanng- thereof (18th -Jan. 1815). 12. Where, upon the hearing of any cause or other E«le 12. mattei', it appears that the same cannot conveniently pro- cannot pro- ceed, by reason of the solicitor for any party having "^^ through neglected to attend personally or by some proper person omission of solicitor. 474 SETTING DOWN AND HEARING. OUDER XXI. Setting Down and Hearing. Costs. Solicitor when ordered to pay costs per- sonally. Rule 13. No pleas, &c., to stand over to indefinite period. on 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 all or any of the parties such costs as the Court shall think fit to award (3rd April, 1828; Ord. 36) (i). (i) See Oooh v. Broomhead, 16 Ves. 133, where a solicitor having under- taken to appear for a defendant at the hearing was ordered to pay all the costs occasioned by his neglect to do so ; and Courtney v. StocJe, 2 Dr. & War. 251. 13. No pleas, demurrers, exceptions, causes, further directions, further considerations, rehearings or appeals shall be allowed to stand over to an indefinite period (29th Jan., 1835). Obder XXII. Taking Bills pro Confesso. Rule 1. Notice of motion that bill be taken pro confesso after attach- ment for want of answer, when to be served. Process by attachment : Rules 1 and i Without attachment ; OEDER XXII. Taking Bills pro Confesso (a). 1. Preliminary Proceedings. 1 . Upon the execution of an attachment for want of answer (6) against any defendant (c) or at any time within three weeks afterwards, the plaintiff may^ ckuse such defendant to be served with a notice of motion to be made on some day not less than three weeks (d) after the day of such service, that the bill may be taken pro con- fesso against such defendant ; and thereupon, unless such defendant has in the meantime put in his answer to the bill, or obtained further time to answer the same, the Court, if it so think fit, may order the bill to be taken pro confesso against such defendant, either immediately, or at such time and upon such terms and subject to such conditions as imder the circumstances of the case the Court shall think proper (8th May, 1845 ; Ord. 76, and Ord. 16, Art. 49)(e). (a) Rules 1 and 2 of this order relate to the old practice of taking bills pro confesso, after first attaching, or attempting to attach, the defendant. See note (a), pp. 433—434, ante. But that practice is now superseded by the more convenient one of joining issue by filing a traversing note (p. 438, ante), or of proceeding to take the bill pro confesso, without any process to enforce the answer. See note (/), infra. For this purpose it is necessary that the defendant be served with the bill TAKING BILLS PRO CONFESSO. 475 personally, or by substituted aerTice (Ord. X. 7, p. 423, ante), and that inter- Order XXII. rogatories should bave been filed (see next note) ; then if the defendant appears, Taking Bills hat refuses to answer, the plaintiff may proceed under rules 2 and 3 of this pro Confesso. order ; and if he neither appears nor answers, under rules 2 and 4. (6) See ante, p. 433. Kules 3 & 4. If no answer has been required, and the defendant puts in no answer, but Process : absconds, the proper course is not to proceed under this order, but to file repli- cation, as if the defendant had traversed the case made by the bill, see Ord. ^^jigje no XVII. 1 (p. 461, ante), and the replication may be advertised, note (c), p. 462, answer is ante ; and as to taking bills of revivor, or supplement jiro confesso, see next note, renuired • Where an answer is required, an insufficient answer is considered as no , ' . answer, and a bill can be taken pi'" confesso against a defendant where an T .^^^ fif^'**^t^ answer is on the file, if such answer be insufficient (King v. Bryant, 6 L. J. '^ '"^^ cient. Ch. (N. S.), 151 ; bat see Ilawldns v. Crooh, 2 P. Wms, 556). In order to take the bill pro confesso for want of answer it has been con- Interrogatories sidered that interrogatories must have heen filed, Butler 7. Matthews, 19Beav. must he filed, 449, followed in WUkms v. Hogg, 4 L. T. N. S. 12, And where leave had been given to serve a bill and interrogatories on a defendant abroad, and sub- sequenily the plaintiff moved to take the bill pro confesso, the registrar objected that the interrogatories were not actually filed till after the order for service ; but as the defendant was not misled, the objection was held imma- terial, Harrison v. Bailey, 2 W. N. 94. Where the defendant absconds and cannot be attached, so that the case but need not comes within rules 2 and 3, though the interrogatories must have been filed, be served. service or advertisement of them may be dispensed with, Butler v. Matthews, 19 Beav. 549 ; WUkins v. Hogg, 9 W. R. 688 ; Anthony v. Cooper, 34 Beav. 77 ; Barlow v. SimcocJc, 14 W. K.. 383. See note (a), p. 481, post, as to dis- pensing with service of decree. (c) Where the plaintiff has a right to take a bill pro confesso against the In cases of husband, he has also a right to take it pro confesso against the wife, if both be husband and made defendants, and there is no order for the wife to answer separately wife. {Alexander v. Osborne, 11 Jur. 444 ; and see Gee v. Cottle, 3 M. & Cr. 180 ; Toohe V. Clarh, Dick. 350 ; and note (6) to Ord. XIL 2, 'ante, p. 435). As to taking a bill pro confesso against the Attorney-General, see Peto v. Taking bills Attorney-General, 1 T. & J. 509 ; against a corporation, Brickwoodv. Harvey, pro confesso 8 Sim. 201 ; against privileged persons, Logan v. Grant, 1 Madd. 626 ; Jones against parti- V. Davis, 17 Ves. 368 ; against a defendant under sentence for felony, Rogers cular defend- T. Kirkpatnck, 3 Ves., jua. 573. ants. As to taking a bill of revivor pro confesso, see Henderson v. Meggs, 2 jn cases of Bro. 0. C. 127; Anon., 3 Atk. 690; Burnsider. Mayne, 8 Ir. Eq. Rep. 97. revivor, When an original bill had been taken pro confesso against a defendant resid- • ing abroad, it was held unnecessary to go through the process of taking a supplemental bill against the same defendant pro confesso also, but after serving the latter bill on the defendant abroad, and entering an appearance for him, the Court gave leave to serve notice of replication abroad (Heath r. iewii, Slmrt v. Slurges, 2 W. R. 488). Where the cause is set down on further consideration, service of notice further consi- thereof on the absconding defendant is unnecessary, see Godson v. Cook, 7 deration, &-. Sim. 519 (Eltoft v. Brown, 2 Hare, 618 ; Green v. Harrison, 4 W. R. 696), see note (c), p. 197, ante. (d) The long vacation is reckoned in computing these three weeks, Ord. XXXVII. 13, and note. (e) The first order is that the Clerk of Records and Writs, &o,, attend with Form of order the record of the plaintiff's bill at the hearing of the cause on the day whore bill of , in order that the same may be taken pro confesso (Brown v. taken pro Home, 8 Beav. 607), unless the defendant should on or before, &c., show good confesso. cause to the contrary ; and that the cause shall not be heard until, &c. (Courage v. Wardell, 4 Hare, 481 ; 9 Jur. 1055 ; where the defendant had appeared by his solicitor) ; and see Collins v. Collyer, 3 Beav. 600 ; (and 4 Beav. 103) ; decided on the 1 Wm. 4, c. 36, s. 15 ; but see Woollams v. Baker, 6 Sim. 316, and cases there cited; Graver y. Baker, Sewing Machine Company V. Millard, 8 Jui-. N. S. 713. 476 TAKING BILLS PRO CONFESSO. Okdbr XXIL Taking Bills pro Confesso. Costs of motioD. Partly inter- ested allowed to intervene and answer. Eule 2. Defendant not answering and not to be found, deemed to have absconded to avoid process, &c, As to taking bills of revivor, or supplemental proceedings pro confesso at once, see note (c), supra. The Court may under this rule order the costs of the motion to be paid by the defendant, though he puts in his answer before it is made (Spooner y. Payne, 2 De G. & Sm. 439). The order takes effect from the time when it is pronounced (James v. Creswicke, 7 Sim. 143, where the Court refused to dis- cbarge it, though the answer was filed before the rising of the Court on the day on which it was made). Where there had been a decree in a creditor's suit for the administration of the testator's estate, and a bill was subsequently filed against the executrix which was about to be taken pro confesso, the Court gave the plaintiff in the first suit liberty to intervene in and defend the second upon payment of costs, and giving an indemnity (Olding v. Potdter, 23 Beav. 143). A bill may be taken pro confesso in the vacation {Clarh v. Clark, 1 Ph. 116). 2- (/) Where any defendant, whether within or not within the jurisdiction of the Court, does not put in his answer (jf) in due time after appearance entered by or for him, and the plaintiff is unable, with due diligence {h) to procure a writ of attachment or any subsequent process for want of answer to be executed against such defendant, by reason of his being out of the jurisdiction of the Court, or being concealed, or for any other cause, then such defendant shall, for the purpose of enabling the plaintiff to obtain an order to take the bill pro confesso, be deenied to have absconded to avoid or to have re- fused to obey the process of the Court (8th May, 1845 ; Ord. 77) (i). Defendant may (/) This rule like the first applies primarily to process for enforcing an be aiaconding answer, see note (a), supra ; but it is not necessary in order to take a bill pro defenda/at confesso against an absconding defendant, that an attachment should have though no teeii actually issued, JBvtler v. Matthews, 19 Beav. 649 ; see Whitfield v. attachment be Lequetre, 10 Jur. 533. And for cases in which a defendant is held to be issued, absconding for the purpose of having the bill taken pro confesso against him, see ffele v. Ogle, 2 Hare, 623 ; Zulueta Y.'Vinent, 15' Beav. 272 ; Graver v. Templer, 9 Sim. 523; Jm-vis-v. Shand, 13 L. T. N.S. 403, and note (m), infra; but the Court has wide discretion as to whom it will consider an absconding defendant for this purpose, see note [p), infra. Want of an- {g) Before the bill can be taken p'o confesso for want of answer, interroga- swer. tories must have been filed ; but need not necessarily be served or advertised, see note (b), supra. (A) See Yearslcyw. Swdgett, 11 Beav. 144; Wilkinson y. Turner, 14 W. B. 813. (i) See note (/), supra. Rule 3. 3. Where any defendant who, under the 2nd Rule of defendant has tl^is Order, may be deemed to have absconded to avoid or perswror 'b ^° ^^^^ refused to obey the process of the Court, appears his solicitor, in person or by his own solicitor, the plaintiff may serve TAKING BILLS PRO CONFESSO. 477 upon such defendant or his solicitor a notice, that on a Obdeb XXII. day in such notice named (being not less than fourteen (k) p^ Confesso^. days after the service of such notice), the Court will be notice of mo- moved (I) that the bill may be taken pro confesso against ^i"" *<> take such defendant ; and the plaintiff must, upon the hearing feaso^to b™ of such motion, satisfy the Court (in) that such defendant S"™- ought, under the provisions of the 2nd Eule of this Order, t6 be deemed to have absconded to avoid or to have re- fused to obey the process of the Court ; and the Court, if so satisfied, and if an answer has not been filed may, if it so think fit (n), order the biU to be taken pro confesso against such defendanC, either immediately or at such time or upon such further notice (o) as under the circum- stances of the case the Court may think proper (8th May, 1845; Ord. 78) (p). (h) Short notice of motion was allowed in Newton t. Can; 6 N. R. 347 > Motion agaiuet Wedderbum v. Thomas, 10 Jut. N. S. 92. See, also, as to this motion note absconding de- (s) to next section. fendant. (I) See note (q) next section. (m) The affidavit in support of the motion mn.'it show that " the plaintiff Affidavit must has made inquiries at places and of persons where there waS reasonable pro- show that de- bability that the defendant would be heard of" {Anstey v. Uobson, 2 W. E. fendant is 46 ; Harrison v. Stewardson, 2 Hare, 530). Thus, where the affidavit absconding. showed that the defendant was in Australia, and that communications had been unsneeessfuUy attempted to be made with him and through his wife, who was in England, and notice of the application had been served on the solicitor who had put in an appearance for him, this was held sufficient (Robson V. Earl of Devon, 2 W. B. 485). But a mere allegation that th^ plaintiff has used all possible diligence is not enough (ibid.). It is not neces- sary that an attachment should have been issued, see note (/), supra. (n) The words "if it so think fit" give the Court a wide discretion. (o) The Court will not in general direct the bill to be taken jn-o confesso BiU not taken immediately, see note (e), supra. pro confesso (p) This order does not take away the right of proceeding under the 1 Wm. immediately. 4, c. 36, WUhin v. Namsly, 4 Hare, 476, see ante, p. 433. 1 Wm. 4, o. 36, An order to take the bill pro confesso is gone, if an order be obtained to jj^^ ^^y. g^jp^].. amend even a clerical error in the bill ( Weighiman v. Powell, 2 De G. & Sm. ggded. 570, see note (j), p. 411, ante. But see Ckeeseborough y. Wright, 28 Beav. -^^^^ of order 173, where a plaintiff, after entering an appearance for a defendant, amended ^^ ^^^^^^ ^^ his bill, and it was held that a second appearance was unnecessary (see the case ^^^^^ ^.^ ^^^^ of Nairne v. Featherstone, cor. V.-O. Wood, there.cited). ^^jj^ ^^_ fesso. *4. Where any defendant who, under the 2nd Eule of Rule *4. this Order, may be deemed to have absconded to avoid or anorentocT' to have refused to obey the process of the Court, has had for him, • 1 1 iii /.ii ivii notice to be an appearance entered for him under the 4th, 6th, or 7tfa inserted in Eule of Order X., and does not afterwards appear in per- "Gazette." son, or by his own solicitor, the plaintiff may cause to be 478 TAKING BILLS PRO CONFESSO. Oj'^^s ^™- inserted in the " London Gazette '' a notice, that on a Taking Bills .... i i. i pro Confesso. day m such notice named (being not less than tour weeks ~ after the first insertion of such notice in the " London Gazette"), the Court will he moved that the bill may be taken pro confesso against such defendant (q) ; and the plaintiff must, upon the hearing of such motion, satisfy the Court that such defendant ought, under the pro- Yisions of the Snd Kule of this Order, to be deemed io have absconded (r) to avoid or to have refused to obey the process of the Court, and that such notice of motion has been inserted in the " London Gazette " at least once in every, entire week reckoned from Sunday morning to Saturday evening (s) which shall have elapsed between the time of the first insertion thereof and the time for which the said notice is given ; and the Court, if so satisfied, and if an answer has not been filed, may, if it so think fit, order the bill to be taken pro confesso against such de- fendant, either immediately, or at such time or upon such further notice (i) as under the circumstances of the case the Court may think proper (8th May, 1845 ; Ord. 79). Motion may be ( q) Every day in term being a motion day, it is not necessary that the day, made for any jf in term, should be " a seal day" {Chaffers v. BaJcer, 5 D. M. G. 482). day in term. The motion may be ' ' saved " on the day mentioned in the ' ' Gazette " until "Saving" the next seal day, without the saving being expressly mentioned to the Court motion. (Torr v.,Torr,}obps. 660); aai see PostleOiwaite -v. Travers, 1 N. R. 354; where the judge did not sit on a day in term for which notice to take the bill pro confesso had been given. See also note (h) to last section. Omission of ^he omission of the name of the defendant against whom the bill is sought defendant's to be taken pro confesso in the advertisement, is a fatal defect (Jones v. name. Brandon, 3 Jur. N. S. 1146). (r) See notes (/) and (m), supra. Advertising (s) See cases on advertising replication, cited, note (e), p. 462, ante. After replication and replication has been advertised, and the time mentioned in the advertisement Bubptena to for going into evidence has expired, the plaintiff should set down the cause hear judg- and obtain leave to advertise the subpoena to hear judgment {Lechmere v. ment. Clamp, 29 Beav. 259). In this case the Court ultimately made a decree accord- " Every entire ing to the prayer of the bill '(30 Beav. 218). It was held in Millar v. Elwin (25 week," Beav. 674), that, where the plaintiflF gave notice of motion to take the bill pro confesso at the end of six weeks, and advertised once in every one of the first four but not in the last two, there was a sufficient compliance with the rule. See further as to advertisements, Baher v. Dean, 6 W. R. 719 : WUhins V. Sogg, 4 L. T. N. S. 12. (t) See note (o) to last section. Rule 5. 5. Any defendant, being in custody for want of his Defendant in ., , .... , , , , .,, custody sub- answer, and submitting to have the bill taken pro con,' mitting to TAKING BILLS PRO CONFESSO. 479 fesso against him, may apply to tlie Court, upon motion Ordek XXII. with notice to be served on the plaintiff, to be discharged prfSfi"! out of custody ; and thereupon the Court may order the ^^^^ ^^ biU to be taken ^ro confesso against such defendant, and taken pro oou- may order him to be discharged out of custody upon sucli 5p?y"o be terms as appear to be just, unless it appears from the discharged. nature of the plaintiff's case, or otherwise to the satisfac- tion of the Court, that justice cannot be done to the plaintiff without discovery or further discovery from such defendant (8th May, 1845 ; Ord. 80) {u). (it) See Maitland v. Rodger, 14 Sim. 92; and note, p. 434, ante. II. Hearing — Decree. 6. No cause in which an order iv) is made that a bill be „ ^"'^ ^; Hearing of taken pro confesso against a defendant shaU be heard on cause taken the same day on which the order {v) is made ; but the P™ °°"^^''°- cause shall be set down to be heard, and the Court, if it so think fit, may appoint a special day for the hearing thereof (8th May, 1845; Ord. 81). (v) The ' ' order " referred to is the preliminary order referred to in note (c) Meaning of to mle 1 {Brown v. Home, 8 Beav. 607). To set down a bill to be taken pro "order." confesso against a sole defendant the Record and Writ Clerks must grant Preliminary a certificate that the cause is in a fit state to be heard and a petition for the necessary in Lord Chancellor's fiat is not necessary (Torr v. Torr, Johns. 660). taking bill pro confesso 7. A defendant against whom an order to take a bill against sole jpro confesso is made may appear at the hearing of the ^^^ 1 cause ; and where he waives all objection to the order (w) Defendant but not otherwise, he may be heard to argue the case Jearingr*'^ ^ upon the merits as stated in the bill (8th May, 1845 ; Ord. 83). (w) The defendant wishing to argue the case on the merits is precluded from Defendant objecting that he has not been duly served with the order (Qreaves v. Oreaves, cannot object 12 Beav. 422). that he has not been 8. Upon the hearing of a cause in which a bill has been served. ordered to be taken pro confesso, such decree shall be £,551^"'^^'^ made as to the Court shall seem just {x), and in the case absolute. of any defendant who has appeared at the hearing and waived all objection to such order to take the bill pro confesso, or against whom the order has been made after 480 TAKING BILLS PRO CONFESSO. okmr xxn. Tating Bills pro Confesso. What decree may be ob- tained. Shortening of time for making decree absolute. appearance by himself or of his own solicitor, or upon notice served on him or after the execution of a writ of attachment against" him, the decree shall be absolute (8th May, 1845 ; Ord. 83) {y). (a) The plaintiff is entitled under these words only to such a decree as he would have obtained if the defendants had appeared at the hearing, Bricrly V. Ward, 15 Jur. j!77> in which case a foreclosure suit was taken yn'o confesso against defendants who did not appear at the hearing, and it was held that the plaintiff was only entitled to the usnal decree against them, and not to an im- mediate decree for absolute foreclosure, see Stanley v. Bond, 6 Bear. 421 ; Hayes t. BrierUy, 3 Dr. & War. 274, there cited ; Simmonds t. Palles, 2 J. & L. 489 ; Haynes v. Ball, 4 Beav. 101 ; Loyd v. Loyd, 2 Con. & L. 692 ; and where the defendant made default, but the plaintiff appeared to have no equity, the bill was dismissed (^eidall v. Jervis, Dick. 632). {y) In a suit to enforce a security and take accounts, the Court refused to shorten the period of three years, after which, under rule 15, infra, the decree could be made absolute, though the plaintiff contended that the delay would amount to a denial of justice. Barlow v. Simcock, 14 W. K. 664; but where the biU was ordered to be taken pro confesso against a bare trustee, the decree was made absolute in the first instance, LeUe v. Vidni, 12 W, R. 597. See section 49 of the Trustee Act, 1850, p. 108, wiie're to ground the application to make the decree absolute under this rule (IViWav. \'J ^ .■ Keefe, 16 Beav 83). defendant is (i) See note (a), p. 481, simra. served; ' ^ (2.) Where defendant is 16. Where the decree is not absolute under the 8th »<>« seiwcJ. Rule, and has not been made absolute under the ISthp^^^j^^ J^^- Rule of this Order, and a defendant has a case upon leave to an- merits not appearing in the bill, he may apply to the decree^ot™ Court by petition, stating such case, and submitting to absolute under such terms with respect to costs and otherwise as the Court may think reasonable, for leave to answer the bill ; and the Court, if satisfied that such case is proper to be submitted to the judgment of the Court, may, if it think fit, and upon such terms as seem just, vacate the enrol- ment (if any) of the decree, and permit such defendant to answer the bill {k) ; and where permission is so given to put in an answer, 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 defendant had been had in the cause (8th May, 1845 ; Ord. 91). (i) Upon a fair case being made out, the Court will act under this rale upon the defendant's paying the costs of the application and of the suit {InglU v. CampbeU, 2 W. K. 396). 17. The rights and liabilities of any plaintiff or defen- Rule 17. dant under a decree made upon a bill taken pro confesso tiverof plTties shall extend to the representatives of any deceased plain- bound. I I 2 484 TAKING BILLS PRO CONFESSO. Oeder XXII. tiff or defendant, and to any persons claiming under any pro CraifesBo. person who was plaintiff or 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 or petition served in such manner and supported hy such evidence as under the circumstances of the case the Court may deem sufficient, permit any party or the representative of any party to New interests file such hill, or adopt such proceedings as the nature and how far saved, circumstances of the case require, for the purpose of having the decree (if absolute) duly executed, or for the purpose of having the matter of the decree (if not abso- lute) duly considered, and the rights of the parties duly ascertained and determined (8th May, 1845 ; Ord. 98). OEDEE XXIII. Order XXIIt. Ordtm'^'^ DeCEEES AND OrDEES (a). 1. In any decree or order where the words "The Judge" Meaning of ^^^ used, such expression shall mean the judge to whose tte words _ court the cause or matter wherein such decree or order is "The Taxing made is for the time being attached. Where the words "^Ttrfcierk of " "^^^ Taxing Master " are used, such expression shall Records and mean the Taxing Master in rotation, or, in case any pre- decree oi™ ^ vious reference shall have been made, the Taxing Master order. to whom the cause or matter stands referred, as the case may be ; and where the words " The Clerk of Eecords and Writs" are used, such expression shall mean the Clerk of Eecords and Writs in whose division the cause or matter wherein such order is made, is (33nd Aug. 1859; Ord. 18). Sutposna to (a) As to_ subpoenas to hear judgment, see Ord. XXL 1, p. 470. hear judgment. A decree is held to be made on the day when it is pronounced, not on the Date of decree, "^^y "f^^J^ it U drawn up, jRe Risca Coal Compwny, 10 W. E. 701, Order irreeu- ■*■" ™'^^'^ irregularly obtained should be properly discharged, and not treated larly obtained, as a nullity, see note (c), p. 396, cwito DECREES AND ORDERS. 485 As to the production of the briefs to the registrar, see Ord. I. 28 (p. 375, Order XXIII. ante) ; and as to the doounients, &o., -ffhicli should be left on bespeaking Decrees and decrees, see Appendix, p. Ixxxiii, post. Orders. 3. It shall not be necessary in drawing up any decree briefs*'™ ° or order, to insert the year of the Sovereign, or to recite Rule 2. any of the pleadings or any part of the petition or notice decreefand of motion, as the case may he, or any previous decree or orders. order in the cause or matter, or any report, certificate, affidavit, or other document that has been, or before the decree or order is completed shall be, filed or recorded ia the court j but it shall be sufficient to refer thereto (6) ; save only that in matters of contempt, or where the decree or order varies from some general rule, and in such other cases as the Court shall direct or the registrar shall in his discretion see fit (c), the registrar shall make such short recitals as may be necessary to show the grounds on which the decree or order is granted (13th April, 1853. 31st Dec. 1833; Ord. 37). (6) To avoid the necessity of reciting a settled scheme for a charity, the Reference order for the settlement may refer to a copy of the scheme settled, approved, instead of signed by the judge, and filed (Re Conyei's School, 22 L. J. Ch. 707). recital. Where a plaintiff reads part of a defendant's answer, the whole answer is Entering entered as read, (Manhy v. Bewicke, 3 Jur. N. S. 685), and on a motion for a answers, evi- decree, whereon a plaintiff can read a defendant's answer without notice (see denoe, &c., as note (i), p. 170), he is entitled to have it entered in the decree as read (Briglit read. V. Legerton, 29 Beav. 69). When a defendant is not called on, he is entitled to have all his evidence entered as read (Manhy v. BewicJee, 1. c, which see as to entering office copies of former proceedings in other suits). And all affidavits which have been filed, and which a party gives notice that he will read on the hearing of a nrotion, though not mentioned at such hearing, should be entered as read. Catholic Publishing, ttc. Company v. Wyman, 1 N. R. 49. Evidence should not be entered as read de iene esse {Parlier v. Morrdl, 2 ■"<"' to be Phil. 453 ; Watson-v. Pwrker, ibid. 5), not even by consent (McMahon v. Bur- entered as chell, 2 Phil. 127), nor "saving just exceptions" (Sherwood v. Beveridge, 2 read de bene CoU. 536 ; Drahe v. Drake (No. 1), 25 Beav. 641 ; but see Gee v. Ourney, 8 Mse: Beav. 315). Where it does not appear by the registrar's minutes that any evidence was -""i on subse- read, the Court will not. on a subsequent application, order evidence to be luent appli- entered as read (Bute v. Eden, 1 Bro. P. C. 499 ; see, too, Seton, 22). cation. (c) The case of Saiienport v. Stafford, 8 Beav. 503, should be consulted as Power of to the latitude allowed to the registrars in drawing up decrees and the variations registrars to which they may make therein (oomp. Philips v. Oiibons, 1 V. & B. 184, 186, make varia- and Taylor r. MUner, 10 Yes. 444). tions. As to correcting sUps in the drawing up of decrees, see notes to rule 21, imfra, p. 493, anXas to applying on the minutes, see note (w) ibid. 3. Where any sums of money or any securities or other Eule 3. effects belonging to the suitors of the Court are directed tob'e expressed to be paid into x>v deposited in the Bank, with the privity ^^ ""°^^^ ■"^^*- 486 DECEEES AND ORDERS. Residues and shares of residnes. Oedek XXIII. of the Accountant-General, or to be paid out, or invested jJfiPTPPR ATI n Orders. ^^ the purchase of stocks, funds, or securities ; or where any stocks, funds, or shares are directed to be transferred into the name and with the privity of the Accountant- General, or to be transferred out of court, carried over, or delivered out, the exact sum of money, the amount of the stocks, funds, shares or securities, and the particulars of the effects so to be paid in, transferred, or deposited, or so to be paid out, invested, transferred out, carried over, or delivered out, shall be ascertained by the registrar, and specified and expressed in the decree or order, in words written at length ; except in the case of residues or shares of residues of money, stocks, funds, or securities remain- ing after a portion directed to be applied for particular purposes, the amount of which cannot be ascertained at the time of making the decree or order (d) ; in which cases the amount of such residues or shares of residues shall be verified by affidavit without any direction for that purpose in the decree or order, unless such residues or shares shall be certified by the Taxing Master, who shall be at liberty to certify the same without a direction for that purpose in such decree or order (21st Dec. 1833 ; Ord. 28. 22nd Aug. 1859; Ord. 12). {d) See Piggott v. Cfm-raway, 9 Sim. 260. Rule 4. 4:- Where a residue of cash, stocks, funds, shares, or b^"''riT d° securities is directed by any decree or order to be operated and expressed upon by the Accountant-General, the exact amount of wrilte'n at ^^^^ residue, where the same can be done (e), shall (if length, required by the registrar) be verified by affidavit to be produced to the registrar, and shall be expressed and specified in the decree or order in words at length, so that the amount of such residue may appear on the face of the decree or order (21st Dec. 1833 ; Ord. 28. 7th Dec. 1839). (e) See Piggott v. Oatraway, 1. c. Rttle 5. Persons by or to whom 5. All persons, whether representatives or others, who are directed to pay into, or deposit in, the Bank any sum rbepaW "ftc^ °^ money, securities, or other effects with the privity of DECREES AND OBDERS. 487 the Accountant-General, or to transfer any stocks, funds, Order xxiii. or shares into his name and with his privity, and all Order^" persons, whether representatives or others, to whom any to be de- sums of money, stocks, funds, shares, securities, or other scribed by effects are directed to he paid out, transferred, carried over, or delivered out, shall, except in the case of bodies corporate, companies, or societies, be described by name in the decree or order, and not merely as plaintiffs or petitioners or the like, unless such payments, transfers, carryings over, or deliveries are directed to be made to or by representatives, and no probate or letters of adminis- tration shall have beeit taken out at the time of making such decree or order. And the christian names and sur- names or titles of honour of all such persons, and the titles of all such bodies corporate, companies, and societies, shall be written at length and without abbreviations in such decrees or orders (21st Dec. 1833 ; Ord. 28). 6. In all decrees or orders directing the payment of Rule 6. interest, dividends, annuities, or other periodical pay- ^^^l ^^ ^^^' ments, the time when the first of such payments, and periodical pay- when all subsequent periodical payments, whether quar- expressed in terly, half-yearly, yearly, or otherwise, shall be made, ^"r"^®^^'"^" shall be specified and expressed in words at length (21st Dec. 1833 ; Ord. 28). 7. Where any stocks, funds, shares, or securities, ^^^« 7. standing in the name of the Accountant-General, in trust Order. in or to the credit of any cause, matter, or account, or any part thereof, are or is directed to be divided and transferred or delivered out of court to or among several persons, or to be carried over to several separate a,ccounts ; and where any money is directed to be paid out to or among several persons, or carried over to several separate accounts, the registrar shall be at liberty, where it shall appear to him to be more convenient so to do, to state the respective amounts of such stocks, funds, shares, securities, or money to be so transferred, paid, or carried over, in a schedule at the foot of the decree or order ; and it shall be sufficient to refer to such schedule in the man- datory part of the decree or order ; but in every such case 488 DECREES AND OEDEES. Obdbe xxill. the total amount of the stocks, funds, shares, securities, Orders. or money, respectively, to be dealt with in such schedule, shall be stated in words at length in the mandatory part of the decree or order (33nd Aug. 1859 ; Ord. 15). Rule 8. 8. Where, upon or after the death of any person to payment of whom the interest or dividends of any stocks, funds, proportion of ghares, or securities standing in the name of the Account- interest, &e., . , ° ,. /. to personal re- ant- General, m trust m or to the credit of any cause, of tenant to 1^^**61"' ^r account, or any part of such interest or divi- life. dends, were or was payable for life, an order is made for the sale, transfer, or delivery of such stocks, funds, shares, or securities, or for payment of the interest or dividends to accrue due thereon subsequently to the death of such person ; the same order shall also provide for the payment to the legal personal representatives of such person, of such proportion of the interest or dividends on such stocks, funds, shares, or securities, as shall have accrued between the last period of payment, and the day of his death, unless the Court or judge shall be of opinion that such legal personal representatives are not entitled thereto, or shall for any other reason otherwise direct (33nd Aug. 1859 ; Ord. 11). Rule 9. 9. Every decree or order whereby the Accountant- cession duty on General is directed to pay or transfer any fund or part fund in court, gf g^^y f^j^ Jq respect of which any duty shall be payable to the revenue under the Acts relating to legacy or succes- sion duty, shall, unless such decree or order expressly provides for the payment of the duty, also direct the Accountant- General to have regard to the circumstance that such duty is payable. And where by any decree or order any carrying over to a separate account of any fund in respect of which any such duty may be chargeable is directed, the words, " subject to legacy duty," or " subject to succession duty," as the case may be, shall be added to the title of the account. And in order the better to provide security against the payment or transfer by the Accountant- General of any fund chargeable with any such duty, without the duty being first paid, the Accountant- General, on receiving notice from the proper officer that DECREES AND ORDERS. 489 the duty is payable, shall cause a memorandum to be Okder XXlil. made in his books in conformity with such notice ; and orders. the Accountant-General, before executing any decree or order directing the payment or transfer of any fund or part of any fund in respect of which any such duty shall be payable, shall require the production of the official receipt for the duty, or a certificate from the proper officer of the payment of the duty, chargeable in respect of any such fund or any part thereof respectively, by any such decree or order directed to be paid or transferred (9th March, 1854) (/). (/) See 36 Geo. 3, c. 52 (the Legacy Doty Act), s. 25, and 16 & 17 Vict. To whom duty c. 51 (the Succession Duty Act), s. 63, which provides that " whenever any paid, suit shall be pending in any court for the administration of any property chargeable with duty under this Act, or the Legacy Duty Act, such Court shall provide, out of any property which may be in the possession or control of the Court, for the payment of the duty to the commissioners." The duty is usually paid to the solicitor on his undertaking to apply it properly. Where it was very large it was ordered to be paid to the proper officer at the Stamp Olfice (see Seton, p. 84). See further, as to the order, Bryan v. Mansion, 5 W. K. 483, where an When ordered incumbrancer who had received the dividends without paying the legacy duty to be repaid. was, on the petition of the Attorney-General, ordered to pay the same with the costs of the petition. But in BicJes v. Keat, 3 Beav. 141, a petition by the Attorney-General, for payment of a sum returned to the administrator, under felse representations, as overpaid in respect of probate duty, -presented before the accounts had been passed, was dismissed as premature. 10. Every decree or order made in any suit or matter (g), Rule lo. requiring any person to do an act [thereby ordered, shall orders to state state the time (h), or the time after service of the decree or ^'^^ t™? ^^^'■' ^ ' service for order, within which the act is to be done ; and upon the doing the act copy of the decree or order which shall be served (i) upon ![^'^""^'^" . ji 1 n 1 Memorandum. the person required to obey the same, there shall be indorsed a memorandum in the words or to the effect following, viz: — "If you, the within-named A.B., neglect to obey this decree [or order] by the time therein limited, you win be liable to be arrested under a Writ of Attach- ment (k) issued out of the High Court of Chancery, or by the Serjeant-at-Arms attending the same Court, and also be liable to have your estate sequestered for the purpose of compelling you to obey the same decree [or order]" (18th July, 1867; amending 13th Ord. of 11th April, 1843) {I). (ff) See note to Re Minter, 19 Beav. 34. 490 DEGREES AND ORDERS. Obder XXIII. (h) When the time is not stated, the decree or order is not thereby made Decrees and ineffectual, but the Court on motion will fix a time (Needham v. Needham, 1 Orders. Hare, 633). rzr : (J) The service must be perianal (Rdby r. Scholes, 1 W. E. 118 ; ife Zloyd, When time not lo Bear. 451 ; and see Whistler v. Aylward, Drury, 1 ; Be Wisewold, 16 stated. Beav. 367 ; Duffidd v. Elwes, 2 Beav. 268 ; Oooch v. Marshall, 8 W. R. Service when 410) ; unless the Court grants an application for substituted service, see note (6), required to be p. 419, ante. personal, and But the affidavit of personal service need not state where it was effected, when sub- Ee Job, 27 Beav. 32. stituted. Where a day is named before which the act is to be done, the order must be served before that day, Duffield v. Elwes (1. c). (k) The attachment may issue at once, see Ord. XXIX. 1, post. {I) For the form of indorsement in the case of a peer, M.P., or corporation, see Saoiell, 939. Rule 11, 2i_ "Where a defeudant, at the hearing of a cause, objects Decree saving .7 , , , , the rights of that a Suit is defective for want of parties, and has not by absent parties, ^j^^^ ^^ answer taken the objection, and therein specified by name or description the parties to whom the objection applies, the Court, if it shall think fit, may make a decree saving the rights of the absent parties (26th Aug. 1841 ; Ord. 40) (m). What parties (m) Compare sects. 42 & 44 of 16 & 16 Vict. o. 86, pp. 195, 199, ante. within rule. a decree was under this rule made in the absence of the assignees of a bank- rupt (Maybery v. Brooking, 7 D. M. G. 673) ; of the heir-at-law of a sur- viving trustee (Favikner v. Danitl^ 3 Hare, 199, and comp. May v. Selby, 1 T. & C. C. C. 235) ; of a mortgagee {Fulton v. Clark, 1 De G. & Sm. 307) ; of a person entitled upon a remote contingency {Daulniz v. Peel, 1 Coop. Rep. temp. Cottenham, 365). But the husband of a female plaintiff or defendant is not within the rule {Sussellr. Lucy, 18 L. J. Ch. 464) ; nor a debtor who has assigned his pro- perty in trust for his creditors, Kimber v. Ensworlh, 1 Hare, 293. (See note, p. 201, am.te.') Consequence of As to making a decree on appeal, in the absence of some of the parties cause being interested, see Gowlder v. Camm, 29 L. J. Ch. 135. If at the hearing the defective for cause is found to be defective for want of parties, and after liberty to amend want of parties, being given, the cause on being brought on again is found to be still defective, the Court will dismiss the bill {Williams v. Page (No. 4), 28 Beav. 148). See note (/), p. 139, ante. See further, as to cause being defective for want of parties at hearing, Leyland v. Leyland, 10 W. R. 149. Rule 12. 12. Where a defendant makes default at the hearing of defendant ^ cause, the decree shall be absolute in the first instance, makes default without giving the defendant a day to show cause ; and such decree shall have the same force and effect as if the same bad been a decree nisi in the fii'st instance, and afterwards made absolute in default of cause shown by the defendant (20th Aug. 1841; Ord. 44) (n). What decree may be made. (n) The practice under this rule has been to hear the cause, and give the plaintiff such a decree as upon the pleadings and evidence he is entitled to DECBEES AND ORDERS. 491 {Hdkewell v. Webler, 9 Hare, 541; Broiime v. Smith, 5 Juv. 1196). See, Order XXIII. too, Ord. XXII. 8, and note {x), p. 480, ante, and Eughes v. Jones, 26 Decrees and Beav. 24. Orders. 13. If the plaintiff, after the cause is set down to be Euie 13. heard, causes the bill to be dismissed on his own applica- p/aS^g ap- tion (o), or if the cause is called on to be heard in Court plication or and the plaintiff makes default {p), and by reason thereof lentto di^ml*- the bill is dismissed, such dismissal, unless the Court shall ^^^ °" merits. otherwise direct, shall be equivalent to a dismissal on the merits, and may be pleaded in bar to another suit for the same matter (8th May, 1845; Ord. 117) (g). (o) Plaintiff may move to dismiss liis bill wUh costs at any time before plaintiff dis- decree, notwithstanding tliat a motion is pending in the suit, the costs of which missing own may afterwards have to be paid by the defendant, Marhwick v. Pawson, 4 N. tui with costs. R. 528. Seeus, where any proceeding in the cause has given the defendant a right against the plaintiff (see Daniell, 731), e.g., if the original bill and a cross bill are to be heard together, Booth v. LeycesUr, 1 Keen, 247 ; and after decree the plaintiff cannot dismiss, but see Barton v. Barton, 3 K. & J. 512. The order may he made "without prejudice to the question by whom the Without pre- costs are ultimately to be borne," but such order must be obtained in court, judice to costs. Clements v. Clifford, 14 W. R. 22; Bemdston v. Churchill, I W. N. (1866), 8 ; see Wigginton v. Patemam, 12 Jur. 89. Under the following circumstances a plaintiff has been allowed to dismiss Without costs : his biU without costs : — 1. If the hill was filed under a mistake common to both parties, BrougJUon (1) In case of V. Zashmar, 5 M. & C. 136. See, too, Hamsard v. Ha/rdy, 18 Ves. 460. mistake ; 2. If the defendant has given the relief sought by the suit, Wilde v. Wilde, (2) where de- 10 W. R. 368, 503 (where, however, the plaintiff did not get all the costs of fendant offers the suit), or if the bill has become unnecessary, but was originally justified by all that could the defendant's misconduct or fraud, Elsey v. Adams, 2 D. J. S. 147; Knox be gained by V. Brown, 1 Bro. C. C. 136 ; Godday v. Sleigh, 3 W. K. 87 ; but see Ven- the suit ■ tilation and Sanitary Improvement Company v. Edelston, 11 W. R. 613, where the motion was refused, the defendants resisting it, but the costs were made costs in the cause. 3. Where the plaintiff has been misled by a suggestion of the Court, Lister (3) plaintiff V. Leather, 1 De G. & J. 361 ; and see cases there cited. misled by As to a plaintiff taking a bill off the file which was filed without authority, court, see note (r), p. 166. . (p) Before a bill is dismissed for default, an affidavit of service of subpoena Dismissal for to hear judgment must be produced (Rigg v. Wall, 3 M. & Cr. 505 ; but see default. Charlton v. Allen, 9 Hare, App. Ixvii ; Bell v. Hornby, 14 Beav. 439). (j) As to pleading a decree, see ante, p. 446, 14. Every decree or order for an account of the personal Rule 14. estate of a testator or intestate shall contain a direction pe?^nalty out- for an inquiry what parts (if any) of such personal estate standing or un- are outstanding or undisposed of, unless the Court shall otherwise direct (36th Aug. 1841 ; Ord. 45). 15. Where by any decree or order, whether made in Rule in. court or in chambers, any accounts are directed to be inquiries to°be taken or inquiries to be made, each direction shall be numbered. 492 DECBEES AND OEDERS. Order XXIII. numbered, so that, as far as may be, each distinct account Orders. and inquiry may be designated by a number, and such "^ decree or order may be in the form set forth in Schedule (D.), with such variations as the circumstances of the case may require (16th Oct. 1853 ; Ord. 8) (r). (»•) See SchedTile D., Appendix p. v, and see Ord. XXXV. r. 16, post. Rule 16. 16. In taking any account directed by any decree or fnces!^''"" order, all just allowances shall be made, without any direction for that purpose in such decree or order (33nd Aug. 1859 ; Ord. 16) (s). (s) As to "just allowances," see Seton, p. 103. U is not usual for the Court to determine in the first instance what is a just allowance (per Lord Eldon in Brown v. Be Tastet, Jao. 294). Rule 17. 17. With a view to the convenience of the suitors and paSgfand' ^^^^^ solicitors, and for the purpose of dimiuishing the entering of expense of orders on petitions of course which according tions of course, to t^® practice of the Court may be presented to the Master of the EoUs, one of the secretaries of the Master of the EoUs shall, upon any such petitions of course (except upon petitions for setting down causes to be re- heard) which' shall be presented to his Honour, instead of answering such petitions, draw up the orders thereon in such form as the Master of the EoUs shall from time to time direct, every such order to be signed as passed with the initials of such secretary; and the under secretary shall enter, or cause to be entered, every such order in a book to be kept at the secretary's office at the EoUs for that purpose, and shall then mark and sign such order with his initials, as entered ; and the suitors of the Court and their soUcitors shall have access to the said book, during office hours, without the payment of any fee. And every such order so to be made as aforesaid shall have the same force and effect as orders of course passed by the registrars have (31st Dec. 1833 ; Ord. 29). Rule 18. 18. The time within which a party served with a notice tion to°add to 0^ ^ decree under the Stat. 15 & 16 Vict. c. 86, s. 42, may ?,?^.?'',®S ?r"'l®'^ f^Pply to ^^^ Court to add to the decree, shall be one 15 & 16 Vict. 0. 86, s. 42. DECREES AND ORDERS. 493 month after such service (7th Aug. 1853; 1st Set, Ord. o»dek xxm. A (\\ fA ' Decrees and *^> W- Oiderfl. (0 See note {d) to the Act, p. 197, ante. 19. A memorandum of the service upon any person of „ ^^^ ^^■ .. n .1 , . ., 1 ■, , ^ , „ , Memorandum notice of the decree m any suit under the 8th Eule of the of service of same section, shall he entered in the office of the Clerks 5°*J°® "^ of Kecords and Writs, upon due proof hy affidavit of such service (7th Aug. 1853 ; 1st Set, Ord. 41). 30. Notice of a decree or order served pursuant to the ^"le 20. 8th Eule of the same section shall he entitled in the cause, titled and en- and there shall be endorsed thereon a memorandum in the "^o^^d. form or to the effect following, that is to say, " Take notice that, from the time of the service of this notice, you l_or, as the case may be, the infant, or person of un- sound mind] will be bound by the proceedings in the above cause in the same manner as if you [or, the said infant, or person of unsound mind] had been originally made a party to the suit; and that you [or, the said infant, or person of unsound mind] may, by an order of course, have liberty to attend the proceedings under the within- mentioned decree [or, order] ; and that you [or, the said infant, or person of unsound mind] may, within one month after the service of this notice, apply to the Court, to add to the decree [or, order]" (1st June, 1854; Ord. 8) {u). (u) The rale applies to serrioe on infants {Clarhe v. ClarTce, 9 Hare, App. ziii). 31. Clerical mistakes in decrees or orders, or errors Rule 21. arising from any accidental slip or omission, may at any fates^w^'^' time before . enrolment {v) he corrected upon motion or reoted. petition, without the form and expense of a rehearing (3rd April, 1838; Ord. 45) {w). (v) After enrolment, no alteration is to be made tut on hill of review, Ord. Cases where XXXI. 9, poBt, hut the Court has notwithstanding in some oases corrected slips hare heen accidental slips after enrolment, upon petition, Fearon v. Desbrisay, 21 corrected even 1. J. Ch. 511 ; Yineyy. Chaplin, 3 De G. & J. 282 ; Semttr. White, 14 W. after enrol- E. 220 ; Attomey-Qeneral v. Greenhill, Si Beav. 174 ; hut see next note. ment. (ib) 'Where the order was made at chambers, the application to correct it is usually by summons. 494 DECREES AND ORDERS. Order XXIII. Decrees and Orders. What correc- tions not within rule. What correc- tions are within the rule. Applying on minutes. The rule does not extend to the omission of any term which could only have been introduced under the express judgment of the Court (Bird v. Heaih, 6 Hare, 236 ; and see Fyler t. Fyler, 1 Coll. 93 ; Dodson r. SammeU, 8 W. R. 252), or to any alteration which is equivalent to a new direction (Colman v. Sarell, 2 Cox, 206 ; Whitehead t. North, 1. c. ; Willis, v. Parkinson, 3 Swanst. 233; BrooTcfield v. Bradley, 2 S. & S. 64; Champemovme v. Brooke, 9 Bligh, N. S. 199). See, howeTer, Ord. XXXV. 19, post, as to varying orders made during the prosecution of decrees. But an accidental slip (Tnriier v. Hodgson, 9 Beav. 265), ex gr. the omis- sion of the usual direction to settle the conveyance, may he supplied by petition under it (Trevelyam, v. Charter, id. 1 40) ; and see Hughes t. Jones, 26 Bear. 24, where a decree for specific performance haying been made against the defendant (who made default) without a reference as to title, the Court, on the motion of the defendant, ordered a reference as to title to be inserted in the decree, the defendant paying the costs of the application. In Jefferysv. Smith, 11 W. R. 479, the words "survivors or survivor," were added to a decree for payments to four executors, and in Re Ticl, ibid. 351, a decree, though passed and entered, was altered on motion, the plaintiff, who was directed by the decree to pay costs, having been dead when the decree was pronounced ; see Pennell v. MUla/r, 23 Beav. 172 ; Moore v. Walter, 11 W. E. 713. In Ashew v. Peddle, 14 Sim. 301, a mistake in a decree was corrected, although it had been pronounced seven years, and the case had been heard on further directions. Where a party has liberty given him to apply to the Court on the minutes of a decree, he most do so within a fortnight. After that time, notice of motion, specifying the variations sought to be introduced, must be regularly given (Hood v. Gooper, 26 Beav. 373 ; see further, notes to Ord. XXXIII. and XXXIV.). See, too, Prince v. Howard, 14 Beav. 203. Rule 22. Non-perform- ance of condi- tion on which decree has been obtained. Rule 23. No order on petition, &c., filed until ori- ginal petition, &c,, filed. S2. Where any person who has obtained any decree or order upon condition, does not perform or comply with such condition, he shall be considered to have waived or abandoned such decree or order so far as the same is beneficial to himself; and any other person interested in the matter may,- on breach or non-performance of the condition, take either such proceedings as the decree or order may in such case warrant, or such proceedings as might have been taken if no such decree or order had been made, unless the Court shall otherwise direct (8th May, 1845 ; Ord. 119). 33. No order made on a petition, and no order to make a submission to arbitration or an award an order of the Court, and no decree or order wherein any written admis- sions of evidence are entered as read, shall be passed, until the original petition {x), submission to arbitration, award, or written admissions of evidence, shall have been filed in the Report Of&ce, and a note thereof made on the decree or order by the Clerk of Reports {21st Dec, 1833; Ord. 27. 26th April, 1647. 27th May, 1687), DECREES AKD ORDERS. 495 (x) But where the original petition had been lost, the Court allowed the Oedee XXIII. copy left with the judge to he filed (Smith v. Harwood, 1 Sm. & (J. 137 ; Decrees and ' Sanderson v. Waiier, 1 M. & Or. 359 ; see, however. He JSoUei; 9 Jur. 419); Orders. and where the petitioner refused to deliver up the original petition for the ■ — — • '- purpose of being filed, the respondents were allowed to file the copy served on Where original them in its place {Andrews v. WcJton, 1 M. & Or. 360 ; Re Devonshire, 32 petition lost. Beav. 241) ; but the petitioner must pay the costs of the application, ibid. The copy filed should be certified by the judge's secretary to be a true copy (Sanderson v. Walker, 1. c.) 24. For the purpose of diminishing expense in the Rule 24. enrolment of decrees and orders, no part of the statements ^ttements in or allegations contained in any bill, answer, petition, enrolments. notice of motion, affidavit, report, or certificate, shall be recited or stated in any such enrolment, but it shall be sufficient to state in such enrolment the filing of the bill or petition, or service of the notice of motion, with the names of the parties thereto, together with the prayer of the bill or petition, or the object of the notice of motion, the filing of the several answers and other pleadings or proceedings, and the short purport or effect of any decree or order, made, had, put in, or taken, before the date of the decree or order enrolled and leading thereto. And no Certificate hy decree or order shall be enrolled until the Clerk of Eecords ^"^g^Qg^g and Writs, in whose division the cause or matter may be, shall have inspected the docket of such enrolment, and shall have certified thereon that the statement of the pleadings, decrees, orders, reports, certificates, and proceedings therein contained is correct (17th March, 1843). 25. All decrees and orders pronounced or made in any Rule 25. cause or matter in this Court which shall be enrolled, ^ri'th'i^six shall be so enrolled (y) within six calendar months after months, the same shall be so pronounced or made respectively, and not at any time after, without special leave of the Court, such leave to be obtained in manner next herein- after mentioned (7th Aug. 1852 ; 2nd Set, Ord. 2). (y) As to enrolling in England the orders made by a Scotch court in the Enrolment of course of winding up a company, see 21 & 22 Ylct. c. 60, ss. 12, 13 ; and Re orders made in We^m Bank of Scotland, 1 D. F. J. 1. a foreign court. *26. Where any party is desirous to enrol a decree or Rule •26. order, after the expiration of six calendar months and aftefsTx'^* within five years from the time the same shall have been months. 496 BECKEES AND ORDEES. Okdes XXIII. made, he may apply by motion to the jui court the cause is attached for an order for that Orders. Application for enrolment even after appeal, to be made to court below. When enrol- ment made at once. Order made subject to ap- peal within 28 Onns lies on party resisting application. Vacating en. rolment. ;e to whose pur- pose {z) ; and such order, unless made by consent of the opposite party (a), or on notice to all the parties, shall be a conditional order in the first instance, but shall become absolute without further order, unless cause be shown against it within twenty-eight days after service thereof (6) (7th Aug. 1853 ; 3nd Set, Ord. 3). (e) Even when the original decree has been reversed, the application for leave to enroll should, it seems, be made to the Court which pronounced the first decree (Webb v. The Direct London and Pmismovih Saiiwai/ Company, 10 Hare, App. xvi) ; and similarly where the court of appeal has taken cog- nizance of a suit by directing an issue raised therein to be tried before itself, Fomeell v. Bradbmy, 12 L. T. N. S. 70. Payment of the costs of an appeal were not made a condition of granting the leave to enroll, though the costs of the application for leave were required to be paid before the enrolment (Bwtchwrd v. Dresser, Kay, App. xzvii. (a) When all the parties appeared and consented, the Court ordered the enrolment at once {Ha/rrison v. The Corporation of Sovihamvpton, 2 W. K. 183), So, where all other parties had been served with notice of the motion and did not appear {Wdlesley v. Momingtmi, 22 L. T. 233). Where a defendant was lunatic, the order was made on notice to the solicitor of the lunatic on the record, Smith v. WhUmore (2), 11 L. T. N. S. 507. (6) In Shervnm v. Shakspeare, 18 Beav. 627, the Master of the Rolls, upon an application to enroll a decree after the six months, made the order to enroll the decree at the end of twenty-eight days, if there should be no appeal in the meantime, observing that the defendants were entitled to the same delay as they would have obtained by entering a caveat ; as to which, see note (c), next page, and Daniell, 921 ; and compare Davison v. Robinson, 4 K. & J. 754, where the order for enrolment was to be made absolute in case no petition of appeal was presented in the twenty-eight days. Upon an application under this as under the preceding rule, the burden of showing cause why the decree should not be enrolled lies with the party resisting the application [Kay v. Smith, 7 D. iVI. G. 383) ; and mere dealings with the property the subject-matter of the suit by the successful party, since the decree, are no ground for an application to vacate the conditional order, Chapman v. Brovm, 15 W. E. 474. "An enrolment ought not to be vacated except upon strong grounds of surprise, or something approaching to deception or mala fides," per Lord Chelmsford, in Wildeman v. Lade, 4 De G. & J. 401, where, some communi- cation having passed between the solicitors, with reference to an appeal, the solicitor of the party applying to vacate the enrolment made an affidavit thereof, but did not state that he was misled, and the application was refused ; see Hill V. Curtis, 1 L. B. Ch. 425 ; Fray v. Drew, 13 W. E. 797. See further, as to vacating the enrolment of a decree on the ground of bad faith, surprise, or otherwise, Wicktnden v. Say son, 25 L. J. Ch. 162 ; Balgv/y v. Chorley, 1 M. & K. 640 ; Barnes v. Wilson, 1 E. & M. 486 ; Backhouse v. Wyld, 3 Jur. N. S. 398 ; WUliams v. Page, 1 De G. & J. 561 ; Pewrce v. Lindsay, 4 De G. & J. 211 ; Hargrcme v. Hargrave, 8 M. & G. 348 ; Fryer t. Davis, 1 L. E. Ch. 390 ; Hill v. Sovih Staffordshire Railway Company, 2 D. J. S. 230. But it is no ground for vacating an enrolment that the party enrolling knew of the other side's intention to appeal, Hill v. Curtis, 1 L. E. Ch. 425. As to correcting a mistake in an enrolled decree, i&eKing v. Chaplin, 7 W. E. 159 ; Fox V. Charlton, 6 N. E. 352 ; and as to opening a foreclosure after enrol- ment of the decree, Ford v. Wastell, 2 Ph. 591 : Thornhill v. Manning, 1 Sim. N. S. 461. DECREES AND ORDERS. 497 As to cases where no caveat has been entered in consequence of the illness of Ok^er XXIIT. the solicitor, see Hmedl v. Evans, 2 W. K. 608. Decrees and The Lords Justices have the same jurisdiction to vacate an enrolment as Orders, the Lord Chancellor, Hill t. South Staffordshire Railway Company (1. c). '^^ l j7~ citoT. 27. Where a caveat is entered (c) with the proper officer Rule 27. to stay the signing of the docket of the enrolment of any signing doXt decree or order, such caveat shall be prosecuted with "f enrolment, effect within twenty-eight days after the docket of such decree or order shall be left to be signed with the proper officer by the party who entered the same : otherwise such caveat shall be of no force, and the docket of such decree or order may immediately after the expiration of the said twenty-eight days be presented to be signed, as if no such caveat had been entered (7th Aug. 1853 ; 2nd Set, Ord. 4) {d). (c) A caveat must be tendered after the decree has been delivered to the Proceeding judges' secretary for enrolment and forwarded to the Chancellor for signature, thereon, and or it will be too late ; Barnes v. Wilson, 1 K. & M. 486 ; Ekketts v. Mwrtin, time for enter- 2 D. P. J. 163 ; and see Marm v. Ricketts, 1 Ph. 530, 617. ing caveat, (<2) The signature of the Lord Chancellor to the docket is only suspended by the caveat, see Attomey-Oeneral v. Conservators of the Thames, 11 W. R. 408. The appeal must be set down and notice given, and the order for setting by setting down the petition of appeal served within the twenty-eight days, Pearce v. down appeal, Imdsay, 4 De Gr. & J. 211 ; Dearman v. Wych, 4 M. & Cr. 550 ; Stevens &c. V. Chippy, T. & R. 178 ; Groom v. Stinton, 2 Ph. 384. As to vacating the enrolment on the ground of surprise on the party intending to appeal, or the illness of their solicitor, &c., see last note. *28. No enrolment of any decree or order shall be ^»le *28,. allowed after the expiration of five years from the date within five thereof (7th Aug. 1852 ; 2nd Set, Ord. 5). But the Lord ?«*"• Chancellor or the Lords Justices (e) shall be at liberty, of time. on motion and notice to all parties (/), where it shall appear to him or them under the peculiar circumstances of the case to be just and expedient {g) to enlarge that period (7th Aug. 1852 ; 2nd Set, Ord. 6). (e) See Cooper v. Taylor, 23 L. T. 263 ; Bill v. Sovih Staffordshire Rail- way Company, 2 D. F. J. 230. (/) These words are new. See Coohson v. Zee, 1 W. R. 509. (g) Leave to enrol after the five years under this rule is generally required Leave to enrol to enable an appeal to be carried to the House of Lords. The Court made after five years an order giving leave to enrol after the five years when the other side had for purpose lodged a petition of appeal within that period, which they failed to prosecute of appeal {Cookson V. Lee, 1 W. R. 509 ; but see Townley v. Deere, ibid. 483J, Home may be given V. Barton, 8 O. M. Gr. 587. under special In Brandon v. Brandon, 7 D. M. Gr. 365, an obvious error in a decree was circumstances. 498 DECREES AND ORDERS. Oedee XXIII. corrected, nobwithstanding a lapse of thirty years (of. Cradock T. Owen, 2 Sm. Decrees and & G. 241, and see Slorre v. Senbow, 1 W. R. 116). Orders. But the fact that in the meantime a decision of the House of Lords has been pronounced, which overrules the decree sought to be enrolled, and from In case of which the party applying is consequently desirous of appealing, is not of itself obvious eiTor ; * good ground for inducing the Court to enrol a decree after five years have but no< because *^*P^^'^(.'^*''**'*2'T. WellesUy, 8 De G. & J. 164; 9 H. L. Ca. 625; Ex the law is parte Mitchell, 16 W. R. 474). Where an infant party to a suit had obtained altered. '''^ °°^'^ ^P*"^ ^° understanding that the decree should end all litigation, he was not allowed after a lapse of seven years from the date of the decree, and two from his coming of age, to enrol the decree for the purposes of an appeal, Moneypemny v. Bering, 4 De G. & J. 175. In case of in- Where there had been a mistake in the frame of an interlocutory decree, in terlocutory the absence of which the final decree might have been different, an enlargement decree. of time to appeal from the final decree was allowed under the analogous Order XXXI. r. 1, Buc&eridge v. Whalley, 2 N. R. 404 ; 3 N. R. 179 ; and Questioning see Walmsley v. Poxhall, 1 De Q. J. S. 451. See, too, the observations of the prior orders on House of Lords in Beavan v. Mornmgton, 8 H. L. Ca. 526. It seems that appeal. "where a party appeals from a final decree, he is not at liberty to question prior interlocutory orders (except such as are inoperative without a subsequent decree), the time for appealing against which has elapsed {ibid.). Rule 29. 29. As soon as the docket of a decree or order is signed Jf^nroTmelt'to ^^ *^« ^°^^ Chancellor, for the purpose of enrolment, the Public Record Clerk of Records and Writs (h) shall forthwith cause the same to he engrossed in the proper form, and transmit the same to the Public Eecord Office, Rolls Yard {h) (3rd July, 1676). (Ji) The words in italics are alterations introduced by Order 7th May, 1866, post, which abrogated the rule in the text as it then stood, and re-enacted it as it is now printed in the text. Previously to such alteration the solicitor carried the docket to the Record ofBoe. OedeeXXIv. order XXIV. Receivers. Receivees (a). Rule 1. 1. Where an order is made directing 'a receiTer to be anTsakries of appointed, unless otherwise ordered, the person to be receivers. appointed shall first give security (6), to be allowed by the judge to whose court the cause is attached, and taken before a person authorised to administer oaths in Chan- cery, duly to account fqr what he shall receive on account of the rents and profits for the receipt of which he is to be appointed, at such periods as such judge shall appoint, a^d to account fqr and p^y % ^ame a^ thq qourt" shall direct, or, as the case niay fee, to l^e answerable ifor wt^at RECEIVERS. 499 he shall receive in respect of the personal estate for the Oeder xxiv. getting in and collection of which he is to be appointed, ^°^"'°"' and to account for and pay the same as the Court shall direct. And the person so to "be appointed shall be allowed a proper salary for his care and pains in receiying such rents and profits, or, as the case may be, shall have an allowance (c) made to him in respect of his collecting such personal estate (16th Oct. 1853; Ord. 13). (a) The word includes a consignee and manager (Prel. Ord. 10 (7) ). A receiver will, in general, only be appointed on motion after bill filed. Keceirer how (Compare the practice as to injunctions, p. 503, post.) But in one case where appointed, an infant was interested, a receiyer was appointed on petition {Re Leemvng, 20 L. J, Ch. 550, and see Re Baron, cited in Seton, 705 ; where a receiver was appointed on summons in chambers, and if the parties consent, or the appli- cation is to supply the vacant place of a receiver already appointed, it may be made in chambers (note (g), p. 148, ante). No appeal to the Court above lies On application from the appointment of a receiver by a judge in chambers (Ley v. Ley, 27 L. in chambers. T. 267). A receiver cannot be appointed before decree on the motion of a defendant, On application even though he be the co-executor of the plaintiff, and the bill charges that a of defendant receiver is necessary {Soiinson v. Hadley, 11 Beav. 614), nor at the hearing, only after unless prayed for by the bill {Barlow v. Gains, 8 Beav. 329). But in Hiles deeree. V. Moore, 15 Beav. 175, a receiver was appointed after decree on the petition of a defendant, against his co-defendant, the application being supported by the plaintiff, and a receiver having been specially prayed for by the bill (see, too. Barlow v. Gains, I.e., and Edgecombe v. Carpenter, 1 Beav. 171, and note (a), p. 503, post). The mortgagee of an undivided share may, in a suit of foreclosure and par- On application tition, obtain the appointment of a receiver of his undivided Eba,re {Fall y . of party en- Elkins, 9 W. R. 861). A receiver of the whole property was granted at the titled to un- hearing as between tenants in common, there being evidence that the defen- divided share, dant, one of them, had excluded the rest, Sandfard v. Ballard, 33 Beav. 401. As to the jurisdiction of the Court to appoint a receiver at the instance of Orof persons persons claiming by a title, which he might enforce at law, or by entering into claiming by a possession, see Talbot v. Hope Scott, 4 K. Si, J. 96, and the authorities there legal title, cited, Saniell, 1561 ; Sturck v. Young, 5 Beav. 557. See, however, Acland V. Gravener, 31 Beav. 482 ; and 23 & 24 Vict. o. 145, ». 17, p. 301, ante, under which a first mortgagee may appoint a receiver. See generally as to the cases in which, and the property over which, a receiver will be appointed, Seton, 1009 ; DanieU, 1552, 1570. A receiver will in a proper case be granted before answer {DucTciworth v. ^t '"hat stage Trafford, 18 Ves. 283 ; Aberdeen v. Chitty, 3 T. & Coll. Exch. Ca. 379) ; of suit, and if the circumstances show a case of urgency, before appearance {Meaden V. Sealey, 6 Hare, 620 ; Hart f. TvXh, ibid, 611 ; and see TanfUld v. Irvine, 2 Euss. 149) ; in such cases leave to serve notice of motion will be given {ibid.). Where the defendant absconded to avoid service, the appoint- ment was made on an ex parte motion {Dowling v. Hudson, 14 Beav. 423, in a note to which all the cases will be found collected). But when the defendant has not absconded, the motion cannot be made ex parte {OaUlard v. Caillard, 25 Beav. 512). See further, as to appointing a receiver where the defendant absconds, Ord. XXII. 9, p. 480, ante. A receiver, though not specially prayed for by the bill, may be appointed at When not the hearing {Osborne y. Harvey, 1 Y. & C. 0. 0. 166), or after decree {Bowman prayed for by V. Bell, 14 Sim. 392; and see Brooher y. Brooker, 8 Sim. k G. 476, oited bill. ante, p. 208 ; but see Fallows v. Lord Villon, 1 W. K. 106) , but not before decree, Pare v. Olegg, 9 W. B. 216. A mere defect of parties was not held 500 EECEIVEES. Obdeb XXIV. Keceirers. Evidenoe on. Who may be appointed. Appointment i matter of dia- cretiou. Receiver of property of deceased per- sons. Powers of re- ceivers. Allowances for monies expended. Duty to defend action. Defaulting receivers. Receiver ap- pointed for benefit of all pai'ties. sufficient ground for refusmg the application, Be Johnson, 1 L. R. Ch. 325. On application for a receiver, or to discharge an order appointing a receiver, the answer of the defendant is now to be regarded not as conclusive but only as an affidavit of the defendant (15 & 16 Vict. c. 86, a. 59, ante, p. 223). A party to the suit may, by special leave, be appointed receiver (Davis v. Barrett, 13 L. J. Ch. 304). But he must act without salary, except by express order and by consent (see Powys v. Slagrave, 18 Jur. 462 ; Hoffmwn V. Dvmcam, ibid. 69 ; Baylies v. Baylies, 1 ColL 548). A practising barrister may be appointed {Oarlamd v. Garland, 2 Ves. Jun. 137) ;_ but not the soli- citor In the cause \ibid.), nor the solicitor under a commission of lunacy (Ex parte Pincke, 2 Meriv. 452), nor the next friend of infant plaintiffs (Stone V. WishoA-t, 2 Madd. 64), nor a trustee (Anon., B Ves. 515 ; Anon v. Jol- land, 8 Ves. 72) ; except in a special case, and without salary (Sutton v. Jones, 15 Ves. 584 ; SyTces v. Hastings, 11 Ves. 363 ; and see Banlcs v. Bamks, 14 Jur. 659). A peer will not generally be appointed (Attorney- General V. Gee, 2 V. & B. 208). The granting of a receiver is a matter of discretion, to be governed by a view of the whole circumstances of the case, one of such circumstances being the probability of the plaintiff being ultimately entitled to a decree (Owen v. Bonum, S M. & G. 378). Where the validity of a will is disputed, the Court of Probate has now power to appoint an administrator femdenXe lite to be receiver (21 & 22 Vict, c. 77, ss, 70 — 72). As to the mode of applying for a receiver to protect the property of a deceased person, until a legal personal representative can be appointed, see Overington v. Ward, 34 Beav. 175, and cases there cited. As to the powers of a receiver generally, see De Winton v. Mayor, die. of Brecon, 26 Beav. 533-, Daniell, 1584 ; Seton, 1015 ; and for the powers of receivers of railway and other companies, see Seton, 1034 ; and the late case of Gardner v. London, Chatham, and Dover Railway Company, 2 L. R. Ch. App. Ca. 223 ; but see as to railway companies 30 & 31 Vict. o. 127, s. 4, cited note (c), p. 356 ante. A receiver may, on its being ascertained to be for the benefit of the estate, be entitled to an allowance for money laid out on the estate without previous order (Tempest v. Ord, 2 Meriv. 55 ; Bhmt v. Clitherow, 6 Ves. 799 ; but see Attorney-General v. Vigor, 11 Ves. 563). The direction that a receiver shall manage as well as sell and let the estate, authorises him to bring itf proposals for ordinary repairs of the buildings on the estate (Thomhill v. Thomhill, 14 Sim. 600 ; and see as to the costs, where a receiver, without the express sanction of the Court, defends an action, Swaby f. Dickon, 5 Sim. 629 ; Bristowe v. Needham, 2 Ph. 190 ; and cf. De Winton V. Mayor of Brecon, 6 Jur. N. S. 1046). As to the jurisdiction of the Court over defaulting receivers, see Bristowe v. Needham, 11 W. R. 926 ; Brandon v. Brandon,.! Dr. & Sm. 16 ; and com- pare Dixon V. Wilhinson, i Drew. 614 ; 4 De (J. & J. 508. For the mode of compelling a receiver to account, see Daniell, 1690 ; Seton, 1018 ; Whitehead y. Lynes, 34 Beav. 161; on appeal, 12 L. T. N. S. 332, and note to rule 2, imfra. Where the receiver died, leaving an unascertained balance, found by the Master's report to be due from him, the Court, on petition, ordered his recog- nizances to be put in suit against his representatives and sureties (I/udgater V. Charmell, 3 M. & Q-. 176, overruling s. c. 15 Sim. 479). A receiver is appointed for the benefit of all parties (Paulliner v. Damiel, 3 Hare, 204) ; and he will not be discharged merely on the application of the party on whose application he was appointed (ibid. Largan v. Bowen, 1 Sch. & Lef. 296 ; Damis v. Duke of Marlborough, 2 Sw. 108) ; and, on the other hand, all parties are bound by his possession (Neate v. Pink, 3 M. & G. 476); and if any loss arises from his default the estate must bear it (Hutchinson v. Massarene, 2 Ball & B. 65). But where the rights of any party to the pro- perty have been established, the receiver is to be treated as his receiver (Boehm V. Wood. T. & R. 345). EECEIVERS. 501 The possession of the receiver cannot be disturbed without the leave of the Order XXIV. Court, even when he is appointed without prejudice to the rights of persons Receivers. having prior estates, and when the right to take possession is clear (see Eand- field V. Bandfield, 1 Drew. & Sm. 310 ; Lane v. Steme, 3 Giff. 629). But the Possession of receiver is not in possession until his recognizances are completed, see Defries receiver not v. Creed, 6 N. B. 17. disturbed with- A receiver being in the position of a quasi trustee, he will not be allowed to out leave of make interest on the balance in his hands (Shaw v. Shades, 2 Russ. 529 ; and Court, see Brever v. Maudsley, 8 Jur. 547 ; Earl of Lonsdale v. Church, 3 B. C. C. Not allowed to 41) ; and will be answerable for the loss of monies with the control of which make interest he has parted, ex, gr., monies deposited in a bank in the name of his sureties on balances in (Salway v. ScUway, 2 Kuss. & M. 215 ; on appeal to the House of Lords, 9 bis hands, Bligh, N. S. 181, sub. uom. White v. Baugh). So if he remits the money to poi-^hat losses his own credit at his banker's, and the banker fails (Wren v. Kirton, 11 Ves. answerable 377). So if he places it in what he knows to be improper hands (Knight v. Lord Plymouth, 3 Atk, 480). Secus if the money be paid to a person appa- rently solvent at the time for the purpose of its safe transmission (ibid.) or for safe custody (see 3 Yes. 566, an4 Salway v. Salway, 4 Euss. 60). (6) The security usually required is the recognizance of the receiver together Recognizances, with two sureties for double the amount of the annual income (Seton, 1007 ; Mead v. Lord Orrery, 3 Atk. 237). In certain cases a receiver may be When dis- appointed on his own recognizances only (TFifeore v. Wilson, 11 Jur. 793), and penaed with, in some cases without recognizances (see Bainbrigge v. Blair, 3 Beav. 424 ; Manners Y. Furze, 11 Beav. 30, and other cases cited in Seton, 1. c). If parties not competent to consent are interested, security must always be given (Tylee v. Tylee, 17 Beav. 583). The sureties must be persons resident in England, even where the property Who may be to be collected lies out of the country (Cochbwm v. Raphael, 2 S. & S. 453). sureties. The sureties are liable for interest as well as the receiver (Dwmson v. Raynes, Their liability. 2 Suss. 466), and for costs of proceedings against receiver, and to appoint a new one, (^Ex parte Mansell, 3 J. & Lat. 351 ; and see Re Lockey, 2 Ph. 509). As to the surety's lien on the receiver's property, see Brandon v. Brandon, 7 Their hen. W. E. 250. See for the form of a receiver's recognizance, Appendix, p. Ixxii. post, (c) The allowance depends on the degi'ee of dificulty or facility with which salary, allow- the rents are collected (I)ay v. Croft, 2 Beav. 488). The maximum allowance ^'Uces, &c. is usually 51. per cent. (Seton, 1006). But for extraordinary trouble and expenses an additional allowance may, by express order, be made to him (Potts V. Leighton, 15 Ves. 276; Re Ormsby, 1 B. & B. 189 ; Malcolm v. ffCallag- han, 3 M. & Or. 52, cited in Seton, 1006). See note on last page as to allowance for monies expended. 2. The judge shall fix the days upon which receivers R«ie 2. shall (annually, or at longer or shorter periods {d), at his ceivers to leave discretion) leave and pass their accounts (e), and also the ^"^Xand^'pay days upon which such receivers shall pay the balances balances, appearing due on tJjLe accounts so left, or such part thereof as the chief clerk shall certify as proper to be paid by them. And with respect to such receivers as shall Penalties of neglect to leave and pass their accounts and pay the"®^®'^' balances thereof at the times so to be fixed for that pur- pose as aforesaid, the judge before whom such receivers are to account shall from time to time, when their subse- quent accounts are produced to be examined and passed, 502 RECEIVERS. Obbeb XXIV. Keceivers. Former prac- tice. Application to pass accounts, how made. Receiver wlien charged with interest. Rate of inter- est. Rale 3. Summons to proceed upon and entry of account. Bale 4. Deposit of ac- count book. Application to discharge. Costs, not only disallow the salaries therein claimed by such receivers, but also charge them with interest after the rate of 61. per cent, per annum (/) upon the balances so neglected to be paid by them during the time the same shall appear to have remained in the hands of such receivers (see Ord, of 33rd April, 1796, and 63rd Ord. of 3rd April, 1838 : and see also S3rd Eule of Ord. XXXV. infra). (d) See, before the rule, Bertie t. Lord Abingdon, 8 Beav. 53. By the old Order of 1796 the accounts were required to be delivered annually. See Beames' Orders, p. 463. For forms connected with a receiver's account, see Appendix, pp. Ixxiv— Ixxix. post. (e) The application that the reoeivermay pass his accounts is usually made by petition, but it may be by motion (Re Burke, 1 B. & B. 74). It may be made though the bill has been dismissed (Pitt v. Bonner, 5 Sim. 577). (/) A receiver who keeps money in his hands even for a quarter of a year after it ought to have been paid in, will be charged with interest (Fletcher v. Dodd, 1 Ves. jun. 85). Interest may be charged though the accounts have been settled (Hicks v. Hicks, 3 Atk. 274 ; Fletcher v. Dodd, 1. c.) ; and even though the receiver has been discharged (Harrison v. Boydell, 6 Sim. 211, where the receiver having failed to pay in his balance was ordered to pay the same and the amount allowed for his salary with interest). Under the old practice it was held that, unless the objection to the allow- ance of poundage to the receiver was raised before the Master, the Court would not enter into it (Ward v. Swift, 8 Hare, 139). Where the default was made by the execviors of a receiver it was held by V.-C. Knight Bruce that they ought only to be charged with interest at il. per cent, (Clements v. Beresford, 10 Jur. 771). 3. Upon a receiver's account being left in the judge's chambers to be passed, a summons to proceed thereon shall be taken out ; and the account, when passed, shall be entered by the solicitor of the receiver in books, in the same manner as heretofore ; and the affidavit verifying the account so passed shall refer to it as an exhibit, and not be annexed to it (16th Oct. 1852 ; Ord. 31), 4. When a receivership has been completed {g), the book containing the accounts shall be deposited in the Office of the Clerks of Eecords and Wi^ts (16th Oct. 1853; Ord. 32), (g) The application to discharge the receiver and vacate his recognizances may be by petition or motion, or by consent, by summons in chambers, or the direction may be given in the decree or order on further consideration ; and the recognizance will be vacated on a proper affidavit of payment to the party entitled to receive the balance, as well as upon the Accountant-General's certi- ficate. The rule to the contrary, as stated in Lawsonv. Sicketts, 11 Beav. 627, is not now followed (Seton, 1023). A receiver is entitled to the costs of his application to be discharged (Richardson r . Ward, 6 Madd. 266). INJUNCTIONS. 503 ORDEE XXV. iORDERXXV. Injunctions. Injunctions (a). No injunction for stay of proceedings at law shall be No injunoUona .J J. i-ij-iij? „ as of course to granted as ot course for delault oi appearance or of stay proceed- answer to the bill (7th Aug. 1853 ; 1st Set. Ord. 45) (5). ™g= ^* l*^- (a) An injunction will in general only be awarded on motion of the Injunctions plaintiff after a hill specially praying that relief ( Wood y. Beadel, 3 Sim. awarded on 273), and a defendant was not entitled to an injimotion against a co-de- application of fendant, Russell v. London, Chatham, tk Dover Railway Co., i Giff. 432 ; but plai/ntiff ovij. there are exceptions to the rule. (1) In special cases a defendant may restrain a co-defendant, Edgecombe Exceptions — T. Carpenter, 1 Bear. 171 ; Kingham t. Maitey, 2 Sim. 41 ; and the rule (1) After does not apply -if there has been a decree, the subject of which is injured by decree; the act complained of, e.g. where a mortgagor after a decree in a foreclosure suit cuts down timber (Wright t. Atkyns, 1 V. & B. 313). Compare the rule as to receivers, p. 499, ante. (2) Injunctions may be granted without bill filed under special acts, e. g, (2) under under the Merchant Shipping Act, Re the Regatta, 6 N. R. 248 ; or as to special acts, transfer of stock or shares, under 39 & 40 G}eo. 3, c. 36, and 5 Yict. c. 6, Re East of England Bank, 6 N. B. 31. (3) An officer of the court may obtain an injunction without bill where an /gv j^ j^gg gf action is brought against him for damages for illegal acts done in the execution ofScers of of its process IFrowd v. Lavyi-ence, 1 J. & W. 665), even when the action Qouft seeks damages for the taking of chattels not included in the order of the court {Walker v. Micldelhwait, 1 Drew. & Sm. 49). An injunction wUl in general only be awarded against a defendant to a suit, Against de- but there are exceptions to this rule, Tiz. : — fendants only. 1. Where an executor, heir (Rouse v. Jones, 1 Ph. 462), creditor (Dyer v. Exceptions — Kearsley, 2 Meriv. 432, note), or legatee (RatcUffe-r. Winch, 16 Beav. 576), /[ \ Executor after an administration decree or order, obtains an injunction to restrain a j^^ restrain creditor from suing (JfacZorere V. Si!ai»(o», 16 Beav. 279). But the irijune- gj,g(j^(g,, ^^jj^j tion will not be granted against a creditor who has recovered judgment (Fowler jgcree. T. Bioberts, 2 Gif. 226). Where there has been no answer the injunction will in these cases only be granted on an affidavit by the executor as to the assets in his hand (Gilpin v. Lady Southampton, 18 Tes. 469 ; and see Drewry v. Thacker, 3 Swanst. 546 ; Clarke v. Earl of Ormond, Jac. 108, 125), or on an admission of assets (Lawton v. Lawton, 8 W. E. 458). And the Court will take care to secure the fond by payment into court or other proper directions (Clarke v. Earl of Ormond, Jac. 108). For form of order see Canham v. Neale, 26 Beav. 266 ; Mosely v. Mosely, 4 L. T. N. S. 239. The creditor is entitled to his costs up to notice of decree, and generally to his costs of the motion (Jones v. Jones, 5 Sim. 678 ; Cole v. Burgess, Kay, App. 1 ; but see, contra, Lawton v. Zawton, ante, and Gardner v. Qarrett, 20 Beav. 469). 2. Where plaintiff is suing at law and in equity for the same thing, see (2.) Plaintiff Ord. XLI. 5, and note. suingatlawand Injunctions may be divided into two general heads : injunctions to restrain in equity may t)roceedings in other courts, and injunctions to restrain wrongful acts of a be restrained, special nature. _ . INJUNO- I. Injunctions of the former kind most frequently applied for are injunctions tjonS. to stay proceedings at law, formerly called common injunctions (see note to 15 ,^ \p..'»..:„i_- & 16 Vict. 0. 86, s. 58, ante, p. 221). It would be out of place to treat here i^-^^esiraining of the grounds on which a Court of Equity will interfere to grant this iiijunc- P"°» courts-" tioD, which are in fact nearly commensurate with the grounds of equitable * ^^ ™ > relief generally. It may be useful to remark, however, that the Court may not only in a proper case interfere to restrain trial or execution at law (see, as 504 INJUNCTIONS. Orubr XXV. Injunctions. Hestraining proceedings in common law courts, where equitable defence could not be raised. Bestraiuing wrongful acts as to copyright or patent ; trade marks; ancient lights; waste and trespass ; nuisance ; remoTal of property; interpleader suits. to this, Tmncr y. Wrighi, IJ. & W. 290 ; Williams v. Jtoberts, 8 Hare, 315), hut even after execution to stay money in the hands of the sheriff, or delivery of possession. See authorities cited in OauieU, 1472, and notes to JEa/rl of OxforcCs ease, in 2 W. & T. Leading Cases. A Court of Equity will restrain proceedings in the Admiralty Courts when the defence {ex. gr. that of a bottomry bond being obtained by fraud) cannot be made available in the latter (Olascott v. Lang, 3 M. & Cr. 461 ; Duncam, V. M'GaVmont, 3 Beav. 409); in the Court of Probate, where any questions peculiarly cognizable by Courts of Equity, e. g., a trust, a wife's equity to a settlement (Meali v. Meals, 1 Dick. 373), or an infant's legacy (Sorrell v. Waldron, 1 Vern. 26), are involved. See, as to restraining proceedings in the Insolvent or Bankruptcy Courts, Attviood v. Banks, 2 Beav. 192 ; Ferry v. Walher, 1 T. & Coll. C. C. 672. In all these cases the ground upon which Courts of Equity proceed is that there are substantial grounds of defence to the proceedings commenced of which the Court in which they are pending cannot take cognizance, or which, for want of the power of such Courts to compel discovery, cannot be properly raised. Whether the injunction will be granted generally, or until answer, depends upon the ground on which it is sought. As to a plaintiff's right to bring his bill to a hearing after injunction, see Mayhem v. Maxwell, 3 L. T. N. S. 847 ; and as to interim injunction till hearing, Coleman v. West Hartlepool Company, 3 L. T. N. S. 847 ; and see Ooddeen v. Oakley, 2 D. F. J. 158. See generally as to the "common iiyunetion," p. 221, ante. II. The cases in which the Court wUl interfere to restrain wrongful acts of a special nature may be classified under the following heads : — 1. Breaches of contract or trust, in which case the injunction wUl be granted irrespectively of damage (Tipping v. Echersley, 2 K. & J. 254). 2. Infringement of copyright or patent right. Such injunctions will now be granted on a primd faae title being shown. See, as to the affidavits and evi- dence necessary to support each primd fade title, Mayer v. Spence, 1 J. & H. 87 ; and see as to copyright the late case of Scott v. Stanford, 3 L. R. Eq. 718. 3. Counterfeiting trade marks or colorable imitations calculated to mislead the public (Shrimpton v. Saight, 18 Beav. 164 ; and see Seixo v. Provezende, 1 L. R. Ch. 192) ; unless arising from the necessity of the case (Taylor v. Taylor, 10 Hare, 475). 4. Obstruction of ancient lights, or lights derived from a common landlord (Davies v. Marshall, 9 W. R. 368 ; 1 Drew. & Sm. 657, 664 ; QaXe v. Abbot, low. R. 748); or alteration of windows so as to enlarge easement already acquired (Cooper v. Hiibbuck, 30 Beav. 160 ; and see Benshaw v. Bean, 18 Q. B. 113 ; Townend v. Wilson, 9 W. R. 30, there cited) ; and as to light and air generally, see Clarice v. Clarlc, 1 L. R. Ch. 16 ; Tates v. Jack, ibid. 295. 5. Waste and trespass (see Daniell, 1478, and notes to Oarth v. Cotton, in 1 W. & T. Leading Cases). And as to the amount of damage necessary to be shown, see Wintle v. Bristol Railway Company, 10 W. E. 210 ; Holyoake v. Shrewsbury and Birmingham Railway Company, 5 Rly. Ca. 421 ; London and North Western Railway Oompa/ny -r. Lancashire and Yorkshire Railway Compam/, 4 L. R. Eq. 174. 6. Nuisance either of a public nature, in which case an information must be filed, or of a private nature' (see Att.-Oen. r. Nichol, 16 Ves. 342 ; White v. Cohen, 1 Drew, 312). And as to form of order, see Lvngwood v. Slowmarhet Company,! L. R. Eq. 77, 336. 7. Alienation, or, in some cases, removal out of the jurisdiction of property attended by gross or irremediable injustice (Daniell, 1493 : and see Dvke v. Taylor, 9 W. R. 403). 8. Setting up of legal bars. 9. In interpleader suits, as to which see Daniell, 1418, 1422. In such cases the injunction will only be granted on an affidavit of no coilusion, annexed to or filed with (Jones v. Shepherd, 29 Beav. 293 ; Shepherd v. Jones, 3 De G. F. & J. 56) the bill, and on payment of the rent (Townley v. Deare, 3 Beav. 213) or money (Pauli v. Von Melle, 8 Sim. 326) in dispute into court. INJUNCTIONS. 505 10. Bills of peace. Order XXV. Leave may be given (on ex parte motion) to serve the notice of motion with Injunctions. the bill, but not before the bill is filed {Simmons v. Heaviside, 23 Beav. 412 ; . see, contrct, Fosbrooke v. Woodcock, 12 Jur. 956, where the subpoena had ■'^^^''^ *" Si'^e issued under the old practice). The leave should be stated in the notice {Hill early notice of r. RimeU, 2 M. & Or. 641). Leave to serve notice of motion before the ex- motion for in- piration of the time limited for defendant's appearance does not mecessarsZy J """''on. include leave to give shorter notice than is usually required (as to which see Ord. XXXIir. r. 2 ; Hart v. Tulk, 6 Hare, 611). When the defendant has once appeared to the bill he ought strictly to be Or to move served with notice of the motion (see Langham v. Qreai Northern Railway without notice. Company, 1 De G. & Sm. 486 ; and Perry v. Weller, 3 Buss. 519 ; Collard V. Cooper, 6 Madd. 190 ; Marasco v. Borton, 2 Ves. sen. 112, cited in note to 1 Rns. & M. 321 ; and comp. note {a) p. 630, post) ; but such service is dispensed with " where the threatened mischief is imminent, and would be irremediable" (see reporter's note to the last cited case, and Lord Eldon's dictum, in 3 Br. C. 0. 477, note ; a,ni Allard v. Jones, 15 Ves. 605 ; Acraman V. Bristol Dock Compmiy, 1 K. & M. 321). The 25 & 26 Vict. c. 42, reqtfiring the Court to give complete relief where Interim or ex it gives any, does not interfere with the practice of granting interim injunc- parte injuno- tious, Davenport v. Jepson, 1 N. B. 173. tions. In cases of waste or immediate urgency an ex parte inj unction 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 more than ordinary jealousy {Winlle v. Bristol Railway Compa/ny, 10 W. R. 210). Generally, a plaintiff obtaining an interim order will have to give an under- Undertaking as taking as to damages, Adamson v. WUson, 10 L. T. N. S. 24 ; Chappell v, to damages. Davidson, 8 D. M. G. 1 ; especially since the passing of Lord Cairns' Act, ante, p. 261, l^ck v. Silver, Johns. 218 ; and see Wakefield v. Duke of Bucdentgh, 13 W. R. 856. And it seems that it makes no difference that the plaintiff's right to an injunction till the hearing is clear, Tuck v. Silver (1. c.) ; but see Ingram v. Stiff, cited in note, Johns. 220. The plaintiff being abroad his counsel entered into the undertaking, Ha/miUon Who may give V. Board, 1 N. R. 379 ; and a company being plaintiff, some responsible per- the undertak- son was required to enter into the undertaking, Anglo-Danubian Company v. ing. 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 the interim injunction was obtained {Newly V. Harrison, 3 D. F. J. 237, overruling s. o. 1 J. & H. 678, and see the cases there cited). But where a plaintiff had obtained an injunction ex parte in w^hen Court the usual undertaking to be answerable in damages, and after the injunction had -^{W direct been dissolved, the defendant moved to dismiss the bill for want of prosecution, inquiry as to and for an inquiry as to^amages, the Court made the usual order to file replica- damages tion, or else that the bill should be dismissed, but refused in that stage of the though bill proceedings to direct an inquiry as to damages, SoiUhwood v. Tayler, 28 Bear, dismissed. 610. The undertaking does not extend to damages which result not from the in- junction but collaterally from the suit, Bingley v. Marshall, 11 W. R. 1018. Unless the plaintiff when he obtained the ex parte injunction, disclosed all Concealment material facts, either the injunction will be dissolved, Hilton v. Barl Granville, of material 4 Beav. 130, or at any rate the plaintiff will have to pay the cost^ Puller v. facts. Taylor, 11 W. R. 532; Holden v. Waterloo, 15 W. B. 139; see FUch v. Rotchfori, 18 L. J. Ch. 458. A plaintiff cannot obtain an injunction pending a plea (Humphreys v. Hum- Injunction phreys, 3 P. Wms. 395) or a demnrrer {Cousins v. Smith, 13 Ves. 164 ; and pending plea, see Anon. v. Bridgewater Canal Company, 9 Sim. 378, as to setting down demurrer, &c. the demurrer in such cases), or after a bill has been found to contain scandalous matter {Davenport v. Dwenport, 6 Madd. 251). A successful demurrer to the whole bill puts an end to an injunction pre- Effect of de- viously obtained, even though leave be given to amend {Schneider v. Lizardi, murrer on iu- 9 Beav. 461). junction. 506 INJUNCTIONS. Obder XXV. Injunctions. During vaca- tion. Effect of abate- ment on in- junction. Evidence on motion for in- junction. Effect of giving notice of in- junction tefore order drawn up. Plaintiff's rights In case of breach. Motion to dis- solve. Dissolution where several defendants to a bill of dis- covery. A plaintiff may move for an injunction duiing the long vacation. A plaintiff's right to an injunction at the hearing is not necessarily preju- diced by his omitting to apply for It at an earlier stage of the cause {Davies v. Marshall, 1 Drew. & Sm. 557, 564, but see observations of V.-C. Wood in Betls V. Clifford, IJ. & H. 77). As to the effect of the amendment of the bill on a notice of motion for in- junction, or on an injunction already obtained, see note (j), p. 410, ante. The abatement of a suit does not of itself dissolve an injunction (see SiU V. Hoare, 2 Cox, 50 ; Stuart v. AmeU, 1 Cox, 411 ; and Ord. ZXXII. 4, and notes). As to the evidence by which a motion for or to dissolve an injunction may be supported, see 15 & 16 Vict. c. 86, ss. 39, 40 ; and note (a), p. 463, mUe. The answer of the defendant is to be treated as an affidavit, both on motions for and on motions to dissolve an injunction (15 & 16 Ylct. c. 86, a. 59, ante, p. 223). In pressing eases the plaintiff may, before the order has 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 for a breach after such notice ( Vansandau v. Hose, 2 J. & W. 264 ; Kimpton v. Eve, 2 V. & B. 349 ; Lewes t. Morgan, 6 Price's Exeh. Kep. 518 ; and see Oooch v. Marshall, ante, p. 472). The injunction operates fi-om the date of the order {Rattray v. Bishop, 3 Madd. 220). The copy of the injunction must be served personally (note (i), p. 490 ; Ellerton v. Thirsk, IJ. & W. 376). After breach the plaintiff may move either that the defendant be at once committed, or that he may be committed unless he show cause to the contrary. In the first case, the service of notice of motion {Anfjerstein v. Hvmt, 6 Ves. 488) ; in the second case, the service of the order nisi (Swant v. Moore, 2 K. & M. 33, 34) must be personal, unless it be satisfactorily made out that he is purposely keeping out of the way, in which case substituted service may be permitted {PuUeney v. Shelion, 5 Ves. 147 ; see note (6), p. 419). The order for committal must state the affidavit of service of the in- junction, and either the affidavit of service of the notice of motion for com- mittal, or the appearance of counsel . on the motion, Stephens v. Workman, 1 N. E. 663. If an injunction is improperly obtained, the party restrained should move to dissolve it {Woodward v. Earl of Lincoln, 3 Swanst. 626). He cannot safely treat it as nullity {ibid.). See note (c), p. 395, ante, note {a), p. 529, post. Where a joint action at law has been commenced by several persons, who are all made defendants to a bill in equity for discovery, the Court will not dis- solve the injunction till all have answered {Joseph v. Doubleday, 1 V. & B. 497; White T . SteinwacJes, 19 \es. 8Z). (b) See notes to 15 & 16 Vict. c. 86, s. 68, p. 221, ante. OKn.K xxvr.- OI^I^ER XXVI. stop Orders. Stop OEDEKs(a). Euiei. 1. Where any stocks, funds, shares, securities, or sioned by stop monies are standing, in the name of the Accountant- orders., Greneral in trust in or to the general credit of any cause or matter, or to the account of any class of persons, and an order is made to prevent the transfer or payment of such stocks, funds, shares, securities, or monies, or INJUNCTIONS. 507 any part thereof, without notice to the assignee of any Ordeji XXVI. stop Orders. person entitled in expectancy or otherwise to any share or portion of such stock, funds, shares, securities, or monies, the person by whom any such order shall be obtained, or the shares of such stocks, funds, shares, securities, or monies affected by such order, shall be liable at the discretion of the Court or the judge at chambers, as the case may be, to pay any costs, charges, and expenses, which, by reason of any such order having been obtained, shall be occasioned to any party to the cause or matter, or any persons interested in any such stocks, funds, shares, securities, or monies (3rd April, 1841) {a). (a) In cases where the assignor aad assignee concur (see Lister v. Tidd, Mode of obtaiu- 15 W. R. 917), a stop order must be taken at chambers {Edmonson v. JJar- ing stop orders. rison, 1 W. K. 140), see p. 147. If the assignor does not concur, the application should be by petition (Setou, 953, and see Be Miller, 6 W. K. 238 ; Re Nowell, 11 W. B. 896). A stop order has priority even over a charging order in aid of a decree under 1 & 2 Vict. o. 110, s. 14, and 3 & 4 Vict. c. 82, s. 1, as to which, see p. 3, ante ; and see generally as to the effect of a stop order, Tidd v. Lister, 15 W. B. 975 ; and as to its giving no priority over other charges, Wariurton v. Hill, Kay, 470 ; Greening v. Beckford, 5 Sim. 195 ; Me Blmnt, cited p. 71, ante; Swayne v. Swayne, 11 Beav. 463; Hulhes v. Day, 10 Sim. 41. "By granting a stop order the Court decides nothing as to the rights of the parties " (per Lord Langdale, in Lucas v. Peacoch, 9 Beav. 118 ; Hawkesly-^. Oowan, 12 W. R. 1100 ; and see Re Blunt, cited p. 71 {ad finem), amte). In Re Duke of Cleveland's Harte estates, January 17, 1862, V.-C. Kin- Prospective dersley granted a prospective stop order, restraining the payment of funds order, hereafter to be paid in to a particular account ; but V. -C. Kindersley refused to make such a prospective order where there was no certainty that any fund would be brought into court, Wellesley v. Momington, 11 W. E. 17. The operation of the order, though general in terms, is confined to the amount on which the order was founded, Maeleod v. Buchanan, 33 Beav. 234. The order for payment out of a fund in court of the claims of an incum- Costs of pay- brancer who has obtained a stop order should include the costs of obtaining the ment out after stop order {Waddilove v. Taylor, 6 Hare, 307), for if it does not do so they stop order, will be disallowed {ibid,). A mortgagee who, after notice that the parties entitled to a distributable Of unnecessary fund in court had presented a petition for payment to him and them of the stop order, funds, applied for a stop order, was refused his costs of the application {Boole V. Soterts, 12 Jur. 108). See, further, as to the costs of a stop order and the appearance of persons who have obtained one, Qrimsby v. Webster, 8 W. E. 725 ; Edwards v. Grme, 29 L. J. Ch. 839. *3. Any person presenting a petition or taking out a Rule *2. summons for any such order as aforesaid shall not be re- tion, &c., for' quired to serve such petition or summons upon the parties ^'°p '"■''^'^• to the cause (&), or upon the persons interested in such 508 INJUNCTIONS. OkdebXXVI. parts of the stocks, funds, shares, securities, or monies, ^jrs^ g^g ^j,g ^^^ sought to be affected by any such order (3rd April, 1841) (c). Service on as- (^) This rule does not dispense witli the necessity of serving the assignor, signor. though a party to the cause (Parsons v. Groome, 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 (Olcusbrook v. GiUalt, 9 Beav. 611)'. What evidence (c) "Two things are necessary under this General Order. Fii'St, you must necessary un- show, generally, the title of the assignor ; but it is not absolutely necessary to der this rule, show the particular share of the fund to which he is entitled. Secondly, yon must show the assignment either by proving its execution in the usual way, or by the assignor's appearing and admitting it" (per Lord Langdale in Wood v. Vincent, 4 Beav. 419 ; and see Qaarman v. Williams, 5 Beav. 133, and cases cited in the reporter's note). OederXxvii. order XXVII. Distringas. Distringas {a). Rule 1. 1. Any person claiming to be interested in any stock distringal"* °^ *'^*'^^^®'^^^^® ^^ *^® Bank, standing in the name of any other person or body politic or corporate, in the books of the Governor and Company of the Bank, may, by his solicitor, prepare a writ of distringas (b) pursuant to the Stat. 5 Vict. c. 5, in the form set out in the first Schedule to the said Act (c), and may present the same for sealing at the Ofiice of the Clerks of Records and Writs (17th Nov. 1841; Ord. 1). (o) If a judgment (which includes decrees in equity) has been entered up against any person, the judgment creditor may apply for a charging order on stock and shares, 'which, after notice to the bank or^company, is to operate as a distrimgas, 1 & 2 Yict. c. 110, ss. 14, IS, aTde, p. 3. 5 Viot. e. 5, (6) The 5th section of the 6th Vict. c. 5, enacts, "That in the place and s. 5. stead of the writ of distringas, as the same has been heretofore Issued from the said Court of Exchequer, a writ of distringas in the form set out in the first schedule to this Act shall, on and after the said 15th day of October, 1841, be issuable from the Court of Chancery, and shall be sealed at the Subpoena Office, and that the force and effect of such writ, and the practice under or relating to the same, shall be such as is now in force in the said Court of Exchequer : Provided, nevertheless, that such writ, and the practice under or relating to the same, and the fees and allowances in respect thereof, shall be subject to such orders and regulations as may, under the provisions of this Act, or of any other Act now in force, or under the general authority of the Court of Chancery, be made with reference to the proceedings and practice of the said Court of Chancery." Party who has See, before the rule. Ex parte Field, 1 T. & 0. C. C. 1. The fact that a obtained dis- party has obtained a distringas under the 5th section does not prevent him tringas may from applying for an injunction under the 4th section of the Act (-Be Marquis DISTEINGAS. 509 of Hertford, 1 Ph. 129 ; and see Ex parte Amyot, cited in the notes to that Order XXVII. case). But the order will not be indefinitely continued if no bill be filed (s. c. Distringas. 1 Hare, 684) ; though the filing of a bill does not necessarily discharge the writ (s. c. 1 Ph. 203). app'y for (c) The writ is as follows :— " ViOTORiA, &o. To the Sheriff of London, injunction, greeting : We command you that you omit not by reason of any liberty, but Form of writ, that you enter the same, and distrain the Grovernor and Company of the Bank of England by all their lands and chattels in your bailiwick, so that they, or any of them, do not intermeddle therewith until we otherwise command you ; and that you answer ns the issues of the said lands, so that they do appear before us in our High Court of Chancery on the day of , to answer a certain bill of complaint lately exhibited against them and other defendants, before us in our said Court of Chancery, by , complainant, and further to do and receive what our said Court shall then and there order in the premises, and that you then leave there this writ. Witness, &e. "EOMILLT, M.K." 2. Upon the presentment of such writ for sealing, and ?»ie 2. on leaving with the Clerks of Eecords and "Writs an affi- davit, duly sworn by the person or one of the persons applying for such writ or his solicitor before some person authorised to administer oaths in Chancery, in the form set out at the end of this Rule, the same writ shall (in conformity with the 37th Rule of Order I.) be forthwith sealed with the seal of the Office of the Clerks of Records and Writs, and such writ, when sealed, shall have the Force of writ, same force and validity as the writ of distringas formerly issued out of the Court of Exchequer (17th Nov. 1841 ; Ord. 2. 10th Dec. 1841) (c). Fonn of Affidavit. " A. B. [the name of the person or persons in whose behalf the writ is sued out] v. The Governor and Company of the Bank of England. " I, , of do solemnly swear, that, according to the best of my knowledge, information, and belief, I am [or, if the affidavit is made by the solicitor, A. B,, of is] beneficially interested in the stock hereinafter particularly described, that is to say " [here specify the amount of the stock to be affected by the writ, and the name or names of the person or persons, or body politic or cor- porate, in whose name or names the same shall be •stand- ing']. (c) Where a distringas was obtained, accompanied by an affidavit of the Discharging person obtaining i(^ that he was personally interested in a particular sum of distringas 510 DISTRINGAS. Order XXYII. stock standing in the name of A,, and the writ was afterwards applied to Distringas, another sum of stock, standing in tlie name of B., the practice of the Bank — ; not being to look at the affidaTit, it was held that on the bankruptcy of the obtained by person who had obtained it, it might be discharged with costs without serving mistake. his assignees {Re Cross, 10 W. E. 53), Bule 3. Disgharge of writ. Bule 4. Bank not to be authorised to refuse transfer, or withhold payment of dividends for eight days after request to transfer, &c. 3. .Such writ of distringas, and all process thereunder, may at any time be discharged by an order, to be obtained as of course upon the petition of the person on whose behalf the writ was issued, or to be obtained upon the application, by motion on notice or by petition duly served, of any other person claiming to be interested in the stock sought to be affected by such writ. And upon or after such application, such costs thereof and in rela- tion thereto and to the said writ as to the Court shall seem just, may, if the Court shall think fit, be awarded, and ordered to be paid by the person on whose behalf the writ- was issued, or, upon an application by any other person, by such person (17th Nov. 1841 ; Ord. 3). 4. Where the Governor and Company of the Bank, after having been served with such .writ of distringas, and a notice not to permit the transfer of the stock in such notice and in the said affidavit specified, or not to pay the dividends thereon, receive a request from the person in whose name such stock is standing, or some person on his behalf or representing him, to allow such transfer, or to pay such dividends, the said Governor and Company shall not, by force or in consequence of such distringas, be authorised, without the order of the Court, to refuse to permit such transfer to be made or to with- hold payment of such dividends for more than eight days after the date of such request (17th Nov. 1841 ; Ord. 4). Oedek ■ XXTIII. Subpoenas. Bule 1. Prseoipe. ORDER XXVIII. Subpoenas. 1. Where it is intended to sue out a subpoena («), a preecipe for that purpose, in the usual form (6), and con- taining the panie 01" firm afld the plp-ee of tmsines? gr SUBPCENAS. 511 residence of the solicitor or solicitors intending to sue Oedbb . out the same, and where such solicitor or solicitors is or Subpcenaa. are agent or agents only, then also the name or firm and place of business or residence of the principal solicitor or solicitors, shall in all cases be delivered and fi.led at the Office of the Clerks of Records and Writs. And on a subpoena for costs being sealed, the Taxing Master's certificate shall be produced to the officer sealing the writ as his authority for sealing it (31st Dec. 1833 ; Ord. 2 and 3). (o) As to service of subpoenas, see rule 6, infra. As to iiTegularities in a subp&na and the consequences thereof, see Lm'd Irregularities Suntingtower v. Sherbom, 5 Beav. 162 ; Barnes v. Tweadale, G. P. C. 440 ; in subpoena. PovkII v. Martin, IJ. & W. 292 ; Johnson v. Sa/rnes, 1 De G. & Sm. 129 ; Carmchy. Young, Jao. 524 ; OlMeldv. Cohhett, 12 Bear. 92; and as to service of a subpoena on witnesses, Keymerv. Permg, 10 Sim. 179 ; Broohr. Biddall, 23 L. J. Ch. 696 ; Spicer v. Dawson, 22 Beav. 282 ; Hope v. Liddell, 20 Beav. 438. a • * (5) When the defendant makes default at the hearing, the afiSdavit of Affidavit of service of the subpoena to hear Judgment must verify the fact of the indorse- service when ment being as required by the order (B% v. Watt, 3 M. & 0. 605) ; but see plaintiff makes note (6), p. 491, ante. By the old Order, the name of the solicitor was default at hear- required to be imdoraed (Beav. Ord. Cane. p. 43). i^S- 3. Writs of subpoena shall be in the forms mentioned ^^^ 2. in Schedule (E), with such alterations and variations as subpoena, circumstances may require (8th May, 1845 ; Ord. 34) (c). (c) See Appendix, p. v. And as to subpoenas for costs, see Morg, & Dav. 363 ; for documents, see amte, pp. 174, 193 ; to hear judgment, ante, p. 470. 3. Every subpoena, other than a subpoena duces tecum, Rule 3. 1 n , . .I T .J Number of per- shall contain three names, where necessary or required ggng ;„ ^ sub- (31st Dec. 1833 ; Ord. 6). P»°a other 1 n 1 . 1 T T • *''*" subpoena 4. No more than three persons shall be included in one duces tecum. subpoena duces tecum ; and the party suing out the same ^^^ *• shall be at liberty to sue out a subpoena for each person, duces tecum, if it shall be deemed necessary or desirable (31st Dec. 1883 ; Ord. 6). 5. In the interval between the suing out and service of Kuie 5. any subpoena, the party suing out the same may correct subpoenas. any error in the pames pf parties or witnesses, and may have the writ re-sealed upon leaving a porrected precipe of such subpoena, marked with the words " altered and 512 SUBPCENAS. re-sealed," and signed with the name and address of the solicitor or solicitors suing out the same (8th May, 184:5 ; Ord. 25). 6. The service of subpoenas {d) shall be effected by delivering a copy of the writ and of the indorsement thereon, and at the same time producing the original writ (21st Dec. 1833 ; Ord. 4). (d) The service of a subpoena for costs anttorises the party serving it to receive the money without a power of attorney {Em/pringhmn v. Short, 12 L. J. Ch. 144). Service out of the jurisdiction of a subpoena for costs is irregular (Fernandez V. Corbin, 2 Sim. 644 ; HawTcims v. Ball, 1 Beav. 73 ; and see s. c. 4 M. & Cr. 280). " Substituted service of the subpcena for coats" may be allowed (see p. 419), if after due diligence to serve the party personally he cannot be found, Danford ■ V. Cameron, 8 Hare, 329 ; Hunter v. Anon., 6 Sim. 429 ; Inglis v. Oamphell, 2 W. R. 667 ; or if the party is residing permanently abroad, Walrond r. Parher, 1 Giff. 315 ; HawUrn v. Ball, 1 Beav. 73, 4 M. & Cr. 280. Rule 7. 7. Service upon a defendant's solicitor of a subpoena to poena to hear hear judgment shall be deemed good service upon such judgment. defendant (8th May, 1845 ; Ord. 26) (e). Affidavit of (e) If the solicitor served is the solicitor on the record, the afBdavit of service, service of the subposna need only state that "according to the information and belief of the deponent," he is the solicitor of the defendant (Marsden v. Blimdell, 20 L. J. Ch. 104). The affidavit need not state the place where the party was served (Be Job, 27 Beav. 32). As to subpoena to hear judgment, see wnte, p. 470. Oedee XXVIII. Subpcenas. Rule 6. Service of sub- poena. Service of sub- poena on per- sons out of ju- risdiction. Substituted service. Rule 9. Time for ser- vice. Rule 8. 8. Affidavits filed for the purpose of proving the service Affidavits to , 3 13., J.. r. prove service. 01 a subpoena upon any deiendant, must state when, where, and how such subpoena was served, and by whom such service was effected (8th May, 1845 ; Ord. 34). 9. The service of any subpcena, except a subpoena for costs, shall be of no validity if not made within twelve weeks after the teste of the writ (8th May, 1845 ; Ord. 10, Art. 1)(/). (/) See Lord Ennimglower v, Sherborn, 5 Bear, 162, Rule 10, 10. The practice of the Court existing on the 1st day Fr3.ctic6 Si8 to ^ tf subpoenas to of Nov. 1852, with reference to issuing and serving writs bflls 'fiied'on OT °^ sw^i^o^wa to appear to and answer bills, shall continue before 1st in force with respect to bills filed on or before that day (7th Aug, 1862 ; 1st Set, Ord. 18). Nov. 1852. «1 PROCESS TO ENFORCE DECREES AND ORDERS. 513 OEDEE XXIX. OkdeeXXIX. Process to en- PeOCESS to ENFOECE Decrees and OedeKS (a). force Decrees * ' and Orders. "1. Where aiiy person is by any decree or order mT*!^ directed to pay any money or deliver up or transfer any No demand property real or personal to another, it shall not be neces- decree, &o., sary to make any demand thereof; J)ut the person so to"^bfpaidoi' directed shall be bound to obey such decree or order, property to be upon being duly served [a) with the same, without de- delivered up. mand; and process of contempt may issue accordingly to enforce performance thereof (30th March, 1859 ; Ord. 17) (b). (a) Before process can issue the decree must be served with the proper Process of indorsement, Ord. XXIII. 10 (p. 489, ante.) contempt. As to decrees of Courts of Equity having the effect of judgments and operat- t).„j.„„ mijat ing as a charge on real estate, and as to charging orders on stock, &c., see . a 1 & 2 Vict. c. 110, s. 18 (p. 6, ante). seivea. An order of the House of Lords afSrming an order of the Court of Chancery, Decree a charge was on an ex parte application made an order of the Court, as it could not "^ land, otherwise be enforced while the House was not sitting, WentwortA v. Lloyd, Decree of 13 W. R. 146 ; see p. 139, ante. House of Lords. As to the course for obtaining damages on account of abuse of the process of Abuse of pro- the Court, see Whitehead v. Zynes, 34 Beav. 165 ; Ooucher v. Clayton, 14 L. gggg of Court. T. N. S. 494 ; Pielden v. Northern Railway of Buenos Ayres Company, 2 W. N. (1867), 218; but as to injunctions to restrain actions against an officer of the court, see note (a), p. 503, ante. (6) The process of contempt may issue at once, see Ayckb. 233 ; Seton, 1214, Process issued 1240 ; Se Belton, 25 Beav. 368 ; Me Bowen, 11 W. R. 607. at once. 2. Every person, not being a party in any cause, who Eale 2. obtains an order, or in whose favour an order is made, ^"p^^f ''y <"' against per- shall be entitled to enforce obedience to such order by sons not par- the same process as if he were a party to the cause. '^^ " '^"^^' And every person, not being a party in any cause (c), against whom obedience to any order may be enforced, shall be liable to the same process for enforcing obedience to such order as if he were a party to the cause (26th Aug. 1841 ; Ord. 15). (c) Orders made in the taxing-master's office can be enforced by attachment, see note (f), p. 27, amte. I. Attachment, Serjeant'at-Arms, and Sequestration (d). 3. Where any person is by a decree or order made in Rule 3. any suit or matter directed to pay money or to do any je'cre'es Mid other act in a limited time, and, after due service of such orders. 514 PROCESS TO ENFOBCE DECEEES AND ORDERS. Order XXIX. decree or order, refuses or neglects to obey the same force Decrees according to the exigency thereof, the person prosecuting and Orders, g^jji decree or order shall, at the expiration of the time limited for the performance thereof, be entitled to a writ Attachment, or writs of attachment against the disobedient person. And in case such person shall be taken or detained in custody under any such writ of attachment without obeying the same decree or order, then the person pro- secuting the same decree or order shall, upon the sheriff's return that the disobedient person has been so taken or Sequestration, detained, be entitled to a commission of sequestration (e) against his estate and effects. And in case the sheriff shall make the return non est inventus to such writ or writs of attachment, the person prosecuting such decree or order shall be entitled at his option either to a com- mission of sequestration (e) in the first instance, or other- Serjeant-at- wise to an order for the seqeant-at-arms, and to such '"■'"^- other process as he was forrlierly entitled to upon a return non est inventus made by the commissioners named in a commission of rebellion issued for the non-performance of a decree or order (/) (Ord. of 18th July, 1857, amend- ing 11th Ord. of 11th April, 1843). Writ of attact- ment 'when and how issued. Indoi-sement. When return- able imme- diately. . Affidavit in support. Execution and return, of writ. (1) " Non est inventus. " (2) Imprison- ment. (3) Bail. Contempt not bailahle. Sequestration without writ of attachment. (d) A writ of attachment issues generally without any order, against persons in contempt, either for non-compliance with orders of the Court (as in the text), or for other reasons, see Ord. XLII. 1, p. 609, post; but a, special order should he obtained to attach a defendant for want of answer (p. 433, OMte). The indorsement on the writ expresses the object of it, and a time is limited for the sheriff to make his return, fifteen days if the party in con- tempt resides more than twenty miles from Iiondon, see Zulueta v. Vinent, 15 Beav. 273, otherwise it is now (by 1 Will. 4, o. 36, s. 15, i. 3), returnable immediately; and see Daniell, 421 ; Wroe v. Clayton, 16 Sim. 183. Asto affidavits in support of attachments, see Gardiner v. Rose, 4 Russ. 578. The writ is executed by the sheriff of the county into which it issues ; but if he cannot find the person named in the writ, he makes the return "non est inventus," and the Court will then make an order, upon affidavit by the sheriff of due diligence (as to which see note (A), p. 476, ante), for a seques- tration (see next note) ; or that the serjeant-at-arms arrest^ch person (except where the attachment is for want of appearance, see Ord. X. 10, p. 426, ante). The ordinary returns made to the writ are three : (1) That the person can- not be found (see above). (2) That he is in prison (and a sheriff who impro- perly discharges a person in his custody is liable to be committed, Kendal v. JBaron, 2 Dick. 661) ; or (3), that the sheriff has taken bail : but where the writ issues for non cottipliarice with an order of the Court, the attachment is not bailable, and when a sheriff improperly returns that he has taken bail, a messenger will be ordered to go, Cowdraiy v. Cross, 24 Beav. 445. (e) Where a party against whom a writ of sequestration is required is shown to be' abroad, the Court may dispense with the writ of attachment altogether, lie East of Mngland Banlc, 2 Dr. & Sm, 284 ; and so where the 'writ of attach- PEOCESS TO ENFORCE DECREES AND ORDERS. 515 ment is by mistake issued into a wrong county in which the defendant does Order XXIX. not reside, and a ■writ of non est inventus is returned, the Court will, on proof Process to en- of his being abroad, order a sequestration to issue without another attachment force Decrees {Hodgson t. Hodgson, 23 Beav. 604). and Orders. As to sequestration on mesne process for want of answer, see Ord. XII. 6, and note, p. 434 (head 2), ante; and see Daniell, 453, 947, Seton, 1215, Mistake in writ for the difference between a sequestration for non-performance of a decree and of attachment, sequestration on mesne process, and the cases in which a sale wiU be directed Sequestration on sequestration. on mesne pro- As to discharging the order for seqnestration where it has been improperly cess. obtained, see Bignold t. Cobiold, 11 Jur. N. S. 152. The seizure of the person under an attachment does not destroy the right to Proceeding proceed against the property, Rolerts v. Ball, 3 Sm. & G. 168 ; but it was against person held in Const v. Barr, 2 Sim. & St. 452, that the parly detained in custody and property. must be brought up to the bar of the court before a sequestration can issue. But see s.° c. on appeal, 2 Russ. 161. Wiere a sequestration proves ineffectual, the attachment may be revived by motion on notice {Knott v. Cottee, 19 Beav. 470, and see ante, p. 418). As to sequestration after an attachment for costs, see Savies v. Nixon, 11 Sequestration W. R. 62 ; Morgan & Davey, 366. for costs. (/) See Daniel], 943. 4. Where a person is committed or brought up by the Rule 4. serjeant-at-arms for breach of a decree or order, he shall party commit- not be released until he has performed the decree or ^^^ ™ ^^^^"sM order in all things that are to be immediately performed, at-arms. and given such security as the Court shall direct to per. form the other parts of the decree or order (if any) at the future days and times thereby appointed (23nd May, 1661 ; Sanders, 308) (g). {g) The party brought up must pay the costs of the contempt ( R'i-ijrAJ v. Committal for Taylor, cited in Seton on Decrees, p. 631 ; and see further as to clearing a contempt, contempt, notes to Ord. XII. 3, p. 436, aTUe). Where a solicitor had been attached for not delivering his bill within the Clearing con- time specified in an order, and it subsequently appeared that money was due tempt, from him to his client, it was held that he could not be detained in cus- tody until he should pay the monies so due, but for that purpose a separate motion on notice was necessary, Ee Powell, 1 N. R. 461. II. Writ of Assistance. 5. Upon due service of a decree or order for delivery Rule 5. of possession, the person prosecuting the same shall be ^'^tt to wnt. entitled to an order for a writ of assistance (36th Aug. 1841 ; Ord. 13) {h). (A) An aEBdavit in support of an application for this writ need not show Evidence and an existing non-compliance with the order to be enforced (Weiiter v. Taylor, form of writ. 18 Jur. 869). For the form of writ, see Seton, 1228. A writ of assistance will be granted though the indorsement on the decree Writ when only states that the party disobeying it will be liable to attachment, Serjeants- granted, at-arms, or sequestration (Bower v. Cooper, 2 Hare, 412; but see Hinde Ii L 2 516 PROCESS TO ENFOBCE DECREES AND ORDERS. Order XXIX. Process to en- force Decrees and Orders. T. £Mie, 12 L. J. Ch. 56). A writ of assistance will not be granted to aid' a receiver in distraining for rent, White v. Phibbs, Sausse & Scully, 88). £iile6. Form of writ of fi. fa. or elegit. Issuing succes- sive writs. Practice where only part of money is levied under fi. &. under this role. If order was irregular or not served, writ is irre- gular. Rule 7. Order for pay- ment to lie marked with day on which it was left for entry. III. Fieri Facias, Elegit, and Venditioni Exponas (i). 6. Every person to whom, in any cause or matter pending in this court, any sum of money or any costs shall have been directed to be paid, shall, after the lapse of one month from the time when the decree or order for payment was duly passed and entered (k), be entitled to sue out one or more writ or writs oi fieri facias or writ or writs of elegit of the form set forth in Schedules (F.) and (G.), or as near thereto as the circumstances of the case may require (10th May, 1839 ; Ord. 1) (l). (i) These rules are framed pursuant to 1 & 2 Vict. o. 110, ss. 18 & 20, see p. 6, ante ; and see Spencer v. Allen, 2 Ph. 215. Where a writ of ji. fa. issued into one county has failed to satisfy the demand, another writ may issue into another county (ibid.s and see Hodgson v. Hodgson, 23 Bear. 604). The rules as to giving notice of liability to attachment (Ord. XXIII. 10), and as to sequestration where the attachment fails (Ord. XXIX. 3), do not apply to the process of fi. fa. (Streeten v. Whitmore, 5 Beav. 228), but a sequestra- tion was directed after a return of nuUa bona to a writ of fi.fa. ( Westbi/ v. Westby, 5 De &. & Sm. 516) ; and where part of the money directed to be paid had been levied under a fi. fa. issued under this rule, and the amount of the levy appeared on the return to the writ, the Court refused the four-day order for payment, but made the following order : — " Let the chief clerk ascertain and certify the amount now due from the defendant to the plaintiff, and let the defendant, within ten days after the date of the chief clerk's certificate, pay to the plaintiff what shall be so certified to be due. The order to be taken on affidavit of service " {Hvplcvag V. Hipkim, 26 L. J. Ch. 512). (J) When the order was to pay money on a day before the day on which the order was passed and entered, it was held by the Lords Justices that compli- ance with it was an impossibility, and that a writ of fi. fa. issued under it was irregular (Adkina y. Bliss, 2 De G(. & J. 286) ; and if the order directs payment within a certain time from service and is never served, the writ cannot issue upon it, as in that case there is no default (ibid.). But where the time is not stated in the order the order is not made ineffectual, but the Court will on motion fix a time, see note (A), p. 490, ante. An order for pay- ment of money to an account in the Bank of England is not within the riUe (Re Leeds Banking Compamy, 1 L. E. Ch. 160). (I) See Appendix, pp. ix., xii., post. 7. Upon every such decree or order hereafter to be entered, one of the entering clerks shall, at the. request of the party leaving the same, mark the day of the month and year on which the same is so left for entry ; and no writ of fieri facias or elegit shall be sued out upon any such decree or order, unless the date of such entry is so marked thereon (10th May, 1839 ; Ord. g). PROCESS TO ENFORCE DECREES AND ORDERS. 517 8. Such writs when sealed shall be delivered to the Okder xxix. sheriff or other officer to whom the execution of the like force Decrees writs issuing out of the superior Courts of Common Law a"^ Ordera. belongs, and shall be executed by such sheriff or other ^"l« ^■ officer as nearly as may be in the same manner in which how writs he ought to execute such like writs. And such writs, ^^outed. when returned by such sheriff or other officer (m), shall be yery, &c., of delivered to the parties or solicitors by whom respectively ^"*^- they "were sued out, and shall thereupon be filed as of record in the office of the Clerks of Records and Writs. And for the execution of such writs, such sheriff or other Fees. officer shall not take or be allowed any fees other than such as are or shall be from time to time allowed by law- ful authority for the execution of the like writs issuing out of the superior Courts of Common Law (10th May, 1839; Ord. 3). (m) As to the execution and return of the writ, see note {d), p. 514, ante. 9. Where it appears, upon the return of any such writ I^ule 9-. oi fieri facias as aforesaid, that the sheriff or other officer of venditioni has by virtue of such writ seized but not sold any goods exponas. of the person directed to pay such sura of money or . costs as aforesaid, the person to whom such sum of money or costs is payable shall, immediately after such writ with such return shall have been filed as of record, be at liberty to sue out a writ of venditioni exponas in the form set forth in Schedule (H.), or as near thereto as the circumstances of the case may require (10th May, 1839 ; Ord. 4) in). ■ (n) See Appendix, p. xviii., post. 10. On every such writ of fieri facias and elegit so to Eule lO. be issued as aforesaid, there shall be indorsed, in addition ^rfts of™!°fa!" to the particulars required by the 2nd or 5th Eule of and elegit. Order III., the words, " By the Court," and also there- under the calling and place of residence of the person against whom such writ shall be issued ; and every such writ shall be also indorsed for the sum to be levied, according to the form used upon like writs issuing out 518 PROCESS TO ENFORCE DECREES AND ORDERS. Order XXIX. Ijooess to en- force Decrees and Orders. Rule 11. Writs of fi. fa. de bonis eocle- siasticis or sequestrari facias. Rule 12. Indorsement. Rule 13. Proceedings thereon. of the superior Courts of Common Law (10th May, 1839 ; Ord. 5). " IV. Fieri Facias de bonis Ecclesiasticis and Sequestrari Facias de bonis Ecclesiasticis. 11. Where it appears, upon the return of any writ of fieri facias or any writ of elegit issued in pursuance of the 6th Eule of this Order, that the person against whom such writ was so issued, is a beneficed clerk, and has no goods or chattels nor any lay fee in the bailiwick of the sheriff to whom such writ was directed, the person to whom the sum of money or costs mentioned in such writ is or are payable, shall, immediately after such writ with such return shall have been filed as of record, be at liberty to sue out one or more writ or writs oi fieri facias de bonis ecclesiasticis, or one or more writ or writs of sequestrari facias, in the form stated in schedule (J.), or as near thereto as the circumstances of the case may allow (18th July, 1857 ; Ord. 2) (o). (o) See Appendix, p. six., post. See before tbis rule, AUm v. Wiliiamsj 3 W. R. 85 ; Hawki/as v. Oathercole, 1 Drew. 12. 13. On every such writ of fieri facias de bonis ecclesias- ticis or writ of sequestra.ri facias so to be issued as afore- said, there shall be indorsed, in addition to the particulars required by the Snd or 5th Eule of Order III., the words " By the Court," and also thereunder the calling, if any, and place of residence, if any, of the person against whom such writ shall be issued ; and every such writ shall be also indorsed for the sum to be taken or levied, accord- ing to the form used upon like writs issuing out of the superior Courts of Common Law (18th July, 1857 ; Ord. 3). 13. Such writs, when sealed, shall be delivered to the bishop, and, shall be executed by him as nearly as may be in the same manner in which he ought to execute such like writs issuing out of the superior Courts of Common Law. And such writs, when returned by the bishop, shall be delivered to the parties or solicitors by whom respectively they were sued out, and shall thereupon be PROCESS TO ENFORCE DECREES AND ORDERS. 519 filed as of record in the office of the Clerks of Records Obdek xxix. and Writs. And for the execution of such writs, the force DeteTs" bishop or his officers shall not take or be allowed any ^^ Orders, fees other than such as are or shall be from time to time Fees. allowed by lawful authority for the execution of the like writs issuing out of the superior Courts of Common Law (18th July, 1857 ; Ord. 4). ORDER XXX. ObderXxx. Process gene- PrOCESS generally (a). raUy. 1. Every suitor who prosecutes a contempt (a) shall j, ■^'l!®-'' use his best endeavour to procure each process to be duly process of con- served and executed upon the party prosecuted ; other- ^"^'' wise he shall pay costs unto the party aggrieved, and lose the benefit of the process returned (23nd May, 1661; Sanders, 306). (a) See notes on process to enforce decrees and orders, p. 513, ante, and on process to enforce an answer, p. 433, ante. As to matters of contempt generally, see Seton, 1238, and cases cited in note (a), p. 609, post. 2, After any order for a serjeant-at-arms shall be Rule 2. granted by the Court, the registrar shall on request draw jeLt-atarms' up the said order, and deliver the same to the serjeant- *" ^^ drawn up ,.,, 1111,1 1 and delivered at-arms or his deputy, who shall thereupon endeavour to to the serjeant. apprehend the party prosecuted and bring him into court to answer his contempt, if he can. But if he cannot, no Payment of such order for a serjeant-at-arms shall be discharged, ^^g^^^*"^^^™*''^ nor the contempt thereupon, without a certificate under &0-, dis- the hand of the serjeant-at-arms that his fees have been ° ^"^^^ ' paid. And after the said order shall have been so drawn up and passed, no private or other agreement shall be made between the party prosecuting the contempt and the person standing in contempt, or on their behalf, for a compromise of the suit or the discharge of the contempt, unless such satisfaction shall be made, and a certificate thereof shall be produced to the Court (4th Nov. 1674; 13th July, 1686 ; 13th June, 1694). 520 PEOCESS GENERALLY. Okdbr XXX. 3_ Where a party is brought up to this Court by virtue rrocess gene- r j or n ^ raUy. of any writ of habeas duly issued from the office of the P,ule3. Clerks of Eecords and "Writs, and by reason of the pres- New writ of sure of other business, or from any other cause, the hear- ing of the cause or matter in which such party is con- cerned is postponed to a future day, a new writ of habeas may be issued for such future day, if the Court shall so direct, without payment of any fee (31st Jan. 1846). Eule 4. 4. No writ of execution shall be issued for the purpose Sn to^enforce °^ requiring or compelling obedience to any decree or decrees, &o., order, but the person required by any such decree or order to do any act, shall, upon being duly served with such decree or order, be held bound to do such act in obedience thereto (11th April, 1843 ; Ord. 6, amending 10th Ord. of 26th Aug. 1841). Rule 5. 5. No writ of attachment with proclamation nor any S«ith*pro- ■"'"* °* rebellion shall be issued for the purpose of com- clamatioDs and polling obedience to any process, order, or decree of the UoilbolUhed". Court (26th Aug. 1841 ; Ord, 6). Okder XXXI. OEDER XXXI. Proceedings to reverse, alter, PeOCEEDINGS TO EEVEESE, ALTEE, OE EXPLAIN DeCEEES or explain Decrees and AND OeDEES (a). Orders. 1. Rehearings and Appeals (6). Rule 1. - 1. No appeal from any decree or order or any re- peSlndre-' Clearing of the case on which such decree or order is founded, shall be allowed, unless the same is set down for hearing, and the requisite notice thereof duly served, within five years from the date of such decree or order How enlarged, respectively (7th Aug. 1853; Snd Set, Ord. 1). But the Lord Chancellor or the Lords Justices shall be at liberty, where it shall appear to him or them under the peculiar circumstances of the case to be just and expedient, to enlarge that period (c) (7th Aug. 1853 ; 2nd Set, Ord. 6). Appeal from ^"^ Appeals from motions are by motion, except motions for decree, as to motions peti- '^^'^^ ^'^ ^^^ 8, infra, p. 524. Appeals from petitions are by petition, or in tions cham- ^"'"^ "^^^^ ^7 ™°*ion, See p. 529, head (8), and 530, head (6), post. bers, &c. KEHEAEINGS AND APPEALS. 521 As to appeals from orders of course, see p. 131, ante. OfiDEB, XXXI. As to appeals from chambers, see p. 150, ante, and from the Palatine Court, Proceedings to see p. 136, ante. reverse, alter, (J) Oferica^errors may he corrected on summary application before, and in or explain some oases even after inrolmeut, note («), p. 493, ante. Decrees and As to new directions varying, not the decree, but the prosecution of it in Orders, chambers, see Ord. XXXV. 19, p. 550, post. Decrees may be altered. Clerical errors. (A) In respect of new facts which have ooourred since the decree, and such New direc- new facts may be introduced, tions. (1) Before inrolment : by mpplemental hill (see note (g), p. 218, ante) jjj;^ FACTS, which, if necessary, may come on with a rehea/ring of the original decree (infra), ,-,„/■ Head v. Godlee, John. 536, 679, and compare Home v. Barton, 8 D. M. G. W -Dejore in- 587. But if such new facts are inconsistent with the frame of the decree, the ™™^"'- xupplemental bill becomes in the nature of a hill of review, and cannot be filed without the leave of the Court, see note (m), p. 525, post, (2) After inrolment : by hill of review (see rule 10, infra). (n\ ^ft^j. j«. (B) If the objection to the decree is founded on matter of law, or the law ipohnent. has been altered {Fleming v. Fleming, 9 W. E. 757), it may be varied, APPEAL (1) Before inrolment : on a rehearing (see NvUer v. Harrison, 2 W. N. 225), pRnivr ERROR and such rehearing, when it takes place before the Court; of Appeal in Chan- ,„ ^ « m eery (p. 139), is sometimes called an appeal. A cause which has been reheard j, j? • before the same judge may be again reheard before the Court of Appeal with- (1) Before in- out leave, Maybery t. BrooMng, 7 D. M. Q. 673 ; secus when it has been folmemt by reheard by the Court of Appeal, Ex parte Besley, 3 M. & G. 287. rehearmg. (2) After inrolment : if the error in law appears upon the face of the (2) After in- decree, hy hill of review (p. 525, post) • but if the error in law does not so rolment by bill appear, appeals from inrolled decrees are carried to the House of Lords, see of review or p. 138, ante, and note {g), p. 498, anie. appeal to Behearings are not generally allowed in the following cases : — Lords. (1) ¥oi costs alone ; except No rehearing, (0) In extreme cases, but see Ohappell v. Gregory, 2 D. J. S. Ill ; CoUard j^, j,^^ ^^^ V. Bowe, 7 W. R. 623 ; Perhs v. Wycombe Eaihoa/y Compamy, 1 N. R. 1 ; )^,' Pei-ks V. Stodhert, 11 W. R. 1013 ; Seton, 1157 ; Ayckbonrn, 379, (/3) Where the costs are charged on a particular fund or estate. (y) Where a question of principle or practice is involved ; and sea Morgan & Davey, 105, 106, and Me Tul, 11 W. R. 351. (2) Where the order is drawn up as made by consent, Carew v. Cooper, 12 (2) Where de- W. R. 767, Coolces v, Coohes, 12 Jur. 294 ; but see as to cases of fraud, Brooke cree was by v. Lord Mostyn, 13 W. R. 115 ; Anon., 1 Yes. Jun. 93. consent. The following persons are allowed to appeal as well as the adverse party on Appeals by, the record : (1) One co-plaintiff against another, Jopp v. Wood, 2 D. J. S. 323. 1. Co-plaintiff. (2) Persons not parties to the cause, if materially interested in the order to ^ Persons not be appealed from, ParmUer v. Parmiter, 2 D. F. J. 526 ; Jopp v. Wood (2), parties but 33 Beav. 372; Leaie v. Jenkins, 14 W. R. 489. interested. (3) Parties served with the decree, and having leave to attend the proceed- „ „ , . ing^, Bllison v. Thomas, 1 D. J. S. 13 ; Kidd v. Gheyne, 18 Jur. 348. f'^^.TIZl^ Evidence referred to, not in the order under appeal but in a previous order leaTeio dweuu. in the cause, cannot be read on the appeal, Jenner v, Morris, 1 L. E. Ch. 603. Evidence on The judge's notes oiviva, voce evidence axe prima facie evidence on appeals, appeal. Ord. 5 Feb. 1861, r. 14, p. 625, post. As to new docwmentary evidence being admitted on a rehearing, see Glover V. Dauheny, 9 Jur. N. S. 90 ; Daniell, 1368 ; and as to the costs in such a case, see Morgan & Davey, 104. (c) See amte, notes to Ord. XXIII. 28, pp. 497, 8. The order to enlarge Enlarging time the period will not be made ex pwrte, Buckeridge v. Whalley, 2 N. R. 404. for rehearing. 2. Where any rehearing is granted, such rehearing shall Rule 2. not in any way stop or hinder any proceedings on the to^tTpproc^ed- 522 EEHEABINGS AND APPEALS. Ordkb XXXI. decree or order appealed from, unless by special order of reTerse,"a1ter° ^^^ Court (d) ; but the person in possession of any decree or explain or order shall be at liberty to proceed thereon as if no Orders. appeal or rehearing had been granted (13th May, 1686). ings on decree, &c., appealed from. Application to stay proceed- ings pending an appeal. When granted. When defen- dant need not answer pending appeal as to demurrer. When refused. In case of Terms imposed on party ap- pealing. When decree impeached for fraud. Costs of appli- cation. No jurisdiction ■when Ml is dismissed. (d) The application to stay proceedings pending the appeal is by motion after notice, and should be immediate {Herring v. Olobery, 12 Sim. 410) ; it need not necessarily be made to the judge who pronounced the decree, notwithstand- ing Ord. VI. 1, ante. Earl ofSlvrewshury y. Trappes, 2 D. F. J. 172 ; but. see Price v. Salisbwy, 11 W. E. 1014. The application has been granted where irreparable mischief would other- wise Tbe likely to ensue, e. g., ■where the plaintiff declined to give security for repayment of rents, or of costs in the event of a reversal of the decree, Barrs v. Femkes, 1 L, E. Eq. 392 (where it was said that of late years, appeals being conducted with greater rapidity than formerly, these appli- cations have been more freq'uently granted), and see Gihls v. Daniel, 4 Giff. 41, note ; Salli v. Universal Man-im,e Assurance Company, 10 W. R. 327. A plaintiff having obtained an order for production of documents, was restrained from inspecting them, pending an appeal fiom the order, Kelly v. ffutkin, 15 W. E. 916. A, shareholder pronounced a contributory was allowed to pay calls into court, pending an appeal, Jopp's case, 2 W. N. (1867), 192 ; see Seton, 1157 ; Colyer v. Finch, 20 Beav. 555 ; Bowmen. Buckton, 35 L. J. Ch. 851 (V. 0. K.) ; Lord v, Golvin, 1 Dr. & Sm. 475 ; Wood v. Farth- ing, 8 W. E. 425 ; Portarlim^ton v. Darner, 11 W. E. 869 ; Price v. Salis- bury, ibid., 1014; ffardasv. Rica/rdo, 1 Ph. 498. So where a demurrer or plea to discovery has been overruled, and the defendant appeals, the Court . will , stay proceedings to enforce an answer if there has' been no delay, or if the defendant would be prejudiced by an- swering, Drake v. Drake, 3 Hare, 528 ; Qardas v. Mcairdo, 1 Ph. 498 ; Satmders v. Sicha/rdson, 2 W. E. 358. , , But the application has been refused where the appeal has been considered hopeless (see Zord v. Colvin, 1. c), or if the effect of staying proceedings would be a reversal of the order ; thus where an injunction had been granted and a motion for a new trial of issues was being carried by appeal to the House of Lords, the Court refused to dissolve <£e injunction pending the appeal, Penn vj Bibbey, 3 L. E. Bq. 308. So where an injunction was refused the defendant could not be restrained, pending an appeal, Oalloway v. Mayor of London, 3 D. J. S. 59. And where the defendant had been ordered to execute a conveyance, and applied to suspend such execution, pending an appeal, the application was refused, on the plaintiff consenting that notice of the appeal should be endorsed on the conveyance, Wilson y. West Bart- lepool Railway Compa/ny, 34 Beav. 414. And costs have been ordered to be paid, notwithstanding an appeal, Colyer v. Colyer, 10 W. E. 748 ; Archer v. Biidson, 8 Beav. 321 ; and terms have been imposed on the party appealing and desiring to stay proceedings, Taylor v. Midland Rail- way Convpomy, 9 W. E. 854 ; Mcintosh v. Great Western Railway Com- pany, 13 W. E. 1029 ; Monypen.ny v. Monypenny, 8 W. E. 430. An order staying proceedings where there was no appeal pending, but only a bill impeaching a decree for frauds, was dismissed as irregular. Whitehead V. I/ynes, 12 L. T. N. S. 332. The costs of the motion must in general be paid by the party applying whether successful (Bauer v. Mitford, 9 W. E. 135 ; Topham v. Earl of Portland, 11 W. E. 813 ; BarresY. Fewkes, 1. p.,) or unsuccessful (Waldo V. Caley, 16 Ves. 214 ; Wilson v. West Hartlepool, ^"* * reference as to title was held to prevent the order being made, ' Gregory v. Spencer, 11 Beav. 143 ; Collins v. Oreaves, 5 Hare, 596. See, however, Norton v. White, 2 D. M. G. 678. 2. If the defendant gave notice for too early a day, even though the motion itself is postponed to the regular time, Ponsardin v. Stear, 32 Beav. 666. 3. If an order is pending to stay proceedings till the plaintiff clears his ings are stayed contempt, Futvoye v. Kennwrd, 2 Giff. 533 (but see contra, Kennedy v. plaintiff or de- EAwards, 11 Jur. N. S. 153) ; or if the defendant is in contempt when he moves, Anon., 15 Yes. 174 ; and see Howe v. Qrey, 2 W. N. (1867), 141. 4. If the plaintiff obtains an order to amend (see Ord. IX. 12, p. 413, ante) or files replication (but see .ffenZej/ v. Abrahaan, 5 Hare, 214); or sets down the cause {Story v. Official Manager of National Inswance Compamy, 8 L. T. N. S. 634 ; Hamd v. King, 10 Jur. N. S. 91) ; tendering the fuU costs up to tend'erina costs "^^ *™^ (^®® Hughes v. Lewis, Johns. 696 ; Jones v. Jones, 10 Jur. N. S. 1167). If the plaintiff does not tender such costs, the defendant may bring his motion on for the costs, Corry v. Curlewis, 8 Beav. 606 ; Lester v. Archdale, 9 Beav. 156 ; but Bee.Steedmwn v. Poole, 11 Jur. 655. But it is no answer to the motion to dismiss — 1. That the defendant is insolvent, and that the plaintiff was therefore justi- fied in discontinuing useless litigation. 2. That the plaintiff is an outlaw, Knowles v. Ehydyfeded Colliery Com- pamy, Johns. 630. 3. That the plaintiff has experienced some difdculty in the conduct of the plaintiff is out- suit, e.g. in drawing up an order, Jones v. Morgam., 12 Jur. 388 ; or in pay- lawed. ing costs which he had been ordered to pay, Kewnedy v. Edwards, 11 Jur. N. S. (3) or has not 153. Nor is it enough t6 show that he has not got in an answer, or documents got in answer, ^"^ which he has applied ; he must show that he has used due diligence to get &c. them. Earl Momington v. Smith, 9 Beav. 251 ; Frwnco v. Meyer, 2 H. & M. 42 ; and see Jones v. Jones, 3 W. E. 638 ; Baldwin v. Darner, 11 Jur. 723 ; Briggs v. Beale, 12 W. E. 934 ; Knowles v. Ehydyfeded Colliery Oompa/ny, Johns. 514 (but a motion to dismiss by one defendant, whose co-defendant appearing by the same solicitor had not answered, was refused (2)IfKofe'ce was irregular. (3) If proceed- feudant being m contempt. (4) If plaintiff amends, re- plies, &c., Bill may be dismissed — (1) Though de- fendant is insolvent, (2.) Though MOTIONS TO DISMISS BILLS. 537 with costs, Winihropf. Murray, 7, Have, 150.; Nicholl v. Jones, 14 W. Obder K. 79.) . . xxxiir. 4. That the defendant has filed ei-Os^-interrogatories- which plaintiff has Motions. applied for more time to answer, Jackson -v. Ivimey, 1 L. E. Eq. 693 ; or. that another defendant has filed a cross bill, Wyndham t. Cooper, 14 W..R. 8 (4) or though (see, however, Talbot v. Marsh-field, cited Ayekb. 319) ; or that the defendant defendant has has filed a voluntary answer, Weeks v. Heward, 11 W. R. 79. filed cross . (o) The four weeks expire at twelve at night on the last day, i'rcsioit v. interrosatories, Collett, 20 L. J. Ch. 228; Ord. XXXVII. 9, \9,post. . • .. ■ ' or voluntary (p) See note (r), p. 413, ante. answer. (q) The words in italics were altered by Ord. 22 Nov. 1866,' p. 646, post. Wliei-e plain- (r) If the plaintiff does not within three weeks undertake to.reply toa plea tiff does not to the whole biU, the defendant may obtain an order of course to dismiss under undertake to Ord. XIV. 17, p. 431, ante. reply to plea. As to the four weeks, see note (o), supra. p ^^^j^ (s) As to the meaning of these words, see note (n), p. 470, ante, from which it appears that a defendant cannot move to dismiss under this rule, while the plaintiff has a right Jo cross-examine a witness. See, also, note (o), supra. 11. Where the plaintiff obtains an order for leave to Order to amend amend his bill, and having obtained no order to enlarge bill when void. the time, does not amend the bill within the time limited by the order to amend, or if no time be limited, then within fourteen days from the date of such order (u) the order to amend shall be void, and the cause shall as to dismissal stand in the same position as if such order to amend had not been made (v) (8th May, 1845 ; Ord. 16, Art. 34; and Ord. 70 and 114). (m) See Ord. IX. 17 and 24, pp. 415, 417, ante. The fourteen days do not run during vacation, Ord.XXXVlI. 13, p. 570,post. Dismissal ex (v) When the order was that the plaintiff should amend within a month; and parte. in default that the bill be dismissed, an order to dismiss made ex parte was held regular {Dobede v. Edwards, 11 Sim. 454). So where a demurrer is filed and before it comes on for argument the plaintiff obtains the common order to amend, but does not amend within the time specified, the bill is gone {HoflicTc V. Reynolds, 30 L. J. Ch. 407). Where a time was named within which plaintiff should amend, but the Motion to fix order did not direct the bill to be dismissed if not amended within such time, time to amend defendant was allowed to move on notice that the bill, unless amended within where none a certain time, should be dismissed with costs, Emerson v. Emerson, 6 Hare, fixed originally. 442 (see note (fi), p. 490, ante); and where no time was named within which the plaintiff should amend, and on the plaintiff taking no steps to amend, the defendant moved that he should amend within fourteen days, or that the bill should be dismissed ; though the plaintiff d^fterwards amended he had to pay the costs of the defendant's application, Tampier v. Ingle, 1 N. R. 169. *13. Any defendant may upon notice move to dismiss ^"l" *12. . , <. 7 /. • 1 ji Time for mo- the bill, with costs, for want oi prosecution, where the tiou to dismiss plaintiff, after answer, amends his bill without requiring ^"^J^*"^* "^P^o- an answer to the amendments (w), and, having obtained no plaintiff' order to enlarge the time, does not file the replication, or after°an-^'" set down the cause to be heard on bill and answer or swer, without 5S8 MOTIONS TO DISMISS BILLS. Order XXXIIL Motions. requiring an- swer to amend- ments. Article (1). Article (2). Article (3). ■Where plaintiff amending requires an- swer. Where from some of the defendants only. Time for vo- luntary answer to amend- ments. Computation of time. Rule 13. Time for mo- tion to dismiss for want of prosecution, where no an- swer required or put in. serve a notice of (x) motion for a decree or decretal order, within the times following, viz. : — (1.) Within one week after the expiration of the time within which such defendant might have put in an answer, in cases where the defendant does not desire to answer the amendments (y). (3.) Within fourteen days after the refusal to allow further time, in cases where the defendant, desiring to answer, has not put in his answer within the time allowed for that purpose, and the judge has refused to allow further time. (3.) Within fourteen days after the filing of the answer, in cases where the defendant has put in an answer to the amendments, unless the plaintiff has within such fourteen days obtained a special order for leave to except to such answer or to re-amend the bill (8th May, 1845; Ord. 115; and Ord. 16, Arts. 39, 40, 41). (mi) Where a plaintiff amends and requires an answer, rule 10, article 1 (p. 535, ante), applies. Where a plaintiff anaends and requires an answer to the amendments from some but not from all of the defendants, the defendants who are not required to answer may more to dismiss for want of prosecution, if the plaintiff, after getting in the other defendant's answers, delays taking any step in the cause for so long a time as to warrant the conclusion that he docs not intend to bring the cause to a hearing, Fories v. Preston, 5 N. E. 360 ; and see Temple t. Holland, 1 N. E. 504 ; Eaistriclc r. Elsworth, 2 De G. & Sm. 95. See, how- ever, Brovm v. Rutter, 21 Beav. 615, where the plaintiff required A. hut not B. to answer amendments, and B., who did not desire to answer them, moved to dismiss after fourteen days, and the Master of the Bolls refused the motion, holding that such a case was not within the order of May, 1845 ; but in that case there were special circumstances which would have made it unjust to dismiss the bill, see remarks of V.-C. Stuart in Forbes v. Preston (1. c). (x) See note (q), p. 537, supra. (y) The time for putting in an answer to an amendment where no answer is required is thirty days from service of the amendments, see Ord. XXXYII. 7, p. 568, post, and note. The vacations are not to be reckoned in the computation of the time limited by this article (Ord. XXXVII. 13 (4), p. 670, post). 13. A defendant to a suit commenced by bill, who shall not have been required to answer the bill, and shall not have answered the same, shall be at liberty to apply for an order to dismiss the bill for want of prosecution, at any time after the expiration of three months [n) from the time of his appearance, unless a notice of motion for a decree or decretal order shall have been served (a) in MOTIONS TO DISMISS BILLS. 539 the meantime, or the cause shall have been set down to Ordeh be heard; and the Court may, upon such application, if Motfo™.' it shall think fit, make an order dismissing the bill, or make such other order or impose such terms as may appear just and reasonable {b) (7th Aug. 1853 ; 1st Set, Ord. 29). (2) In the computation of ttese three months, Taoatious aie reckoned, see Three months Ord. XXXVII. 13, and note p. 570, post. run during va- (a) See note (j), p. 537, ante. cation. (6) The Court, under this rule, has a discretion conferred on it to dismiss Discretion of the biU, or to allow the plaintiff further time. Where, therefore, a bill was Court under filed against several defendants, one only of whom (who was not required to this rule, answer) had appeared, the Court permitted that defendant to move to dismiss the plaintiff's bill at the end of t^ree months, but ultimately gave the plaintiff further time, Bothomley v. Squire, 7 D. M. (j. 246 ; andeomp. Oillv. Rayner, 1 K. & J. 395, 397 ; Wafers v. Thome, 26 L. T. 57 ; Osbm-ne t. BriglU, 30 L. T. 101; and Haddonv. Pegler, 5 Jur. N. S. 1123). The orders do not in terms allow a defendant, who not being required to Where defeud- answer, has neyertheless put in a voluntary answer to apply to dismiss the biU, ant files volv,n- but it seems from Beniley v. Mercer, 6 W. R. 265 (V.-C. Wood), that such a tary answer. defendant may move after three months from appearance. It appears to be doubtful whether a defendant who has not been required Where no an- te answer the bill, and has not done so, can under this rule move to dismiss gwer required the bill for want of prosecution after a replication has leen filed. and replication A motion to dismiss for want of prosecution a bUl for discovery only (South is filed. Eastern RaUway Company v. Submarine Telegraph Company, 23 L. J. Ch. jjo^fon ^o dis- 183) ; a bill to perpetuate testimony (Wright v. Tatham, 2 Sim. 459) ; or a j^^jg^ particular bill to appoint a receiver pendente lite (Edwards v. Edwards, 22 L. J. Ch. jjj^^g ^f bills 1054), is irregular. iiTegular. OEDEE XXXIV. ^.lll^ Petitions (a). ^^*'^^°°^- *1. ^t the foot of every petition (not being a petition of ^■"'^ *^- course) presented to the Lord Chancellor or the Master persons to be of the Eolls, and of every copy thereof, a statement shall ^^"^ be made of the persons, if any, intended to be served therewith {b) ; and if no person is intended to be served with such petition, a statement to that effect shall be made at the foot of the petition, and of every copy thereof (30th March, 1859 ; Ord. 16). (a) As to petitions of right, see note (a) to Ord. 1st Feb. 1862, post. As to appeal petitions, see p. 529, head (8), and head (2) next page. Fetitiona, like motions (p. 529, ante), are either of course, or special. The PETITIONS practice has become general for orders of course, even in causes attached to the OF COOKSE. courts of the Vice-Chancellors, to be made upoA petition at the Eolls (Daniell, 1438), and see note (I), p. 17, ante, as to applications of course for taxation of costs ; but as to petitions of course to the Lord Chancellor, see Ord. XXI. 9, ante, p. 472, and 3rd Begistr. Eegul., March, 1860, Appendix, p. Ixxx. post. 540 PETITIONS. Ordbe XXXIV. Petitions. Orders how drawn up, passed, and entered. (A.) PETI- TIONS IN A CAUSE. For payment of money out of court. To vary orders or decrees. To enforce a compromise or undertaking to carry out decrees. To wind up a suit. (B.) IN A MATTER. Under general, or statutory jurisdiction without suit. Petition of Eight. WHO MAY PETITION. Party in con- tempt. Persons under disability. FORM OF PETI- TION. As to the consequences of suppression of any material facts on an applica- tion obtained ea> parte and as of course, see note (m), p. 17, ante (taxation of costs), and note (4), p. 215, ante (revivor). On any petition of course presented to the Master of the Rolls (except petitions for setting down causes to be reheard), one of the secretaries of the Master of the Rolls will, instead of answering it, draw up the order thereon in such form as the Master of tbe Rolls may direct ; and will sign every such order as passed with his initials. Every such order is entered in it, book kept at the Secretary's office at the Rolls for that purpose, and is marked and signed with the initials of the secretary as entered (Daniell, 1455). Special petitions are presented. (A.) In a cause. (B.) In a matter (under the statutory or ordinary jurisdiction of the Court). (A.) Ina cause; and as to the title of a petition in a cause, see Daniell, 1453. In Weeding v. Weeding, 1 J. & H. 421, a fund was transferred from one cause to another on a petition entitled only in the first. As to what applications in a cause should be made by motion, and what by petition, see note (a), p. 629, ante, and Lord Shipbrooke v. Lard Hinchin- Irooh there cited. They are such as the following : — (1) For payment of money out of court, Spencer v. Lm'd Mostyn, 11 Jur. 234, except in a very clear case, see p. 529, head (2), ante ; and as to applica- tions for sums under 300Z. being made by summons in chambers, see note (o), p. 544. (2) To vary orders made on petitions, or to correct clerical errors, under Ord. XXIII. 21, ante ; and as to supplying directions in a decree by petition, see Winter v. Jimes, 4 M. & Cr. 101. (3) To enforce comp-omises entered into out of court, see Forsyth v. Manion, 5 Madd. 78 ; Dawson v. Newsome, 2 Giff. 272 ; but where there is a dispute as to counsel's authority, or the agreement goes beyond the purview of the suit, a new bill is necessary, AsJcew v. MUlington, 9 Hare, 65 ; Green v. Crochett, 13 W. E. 1052 ; Rickardsony. Eyton, 2 D. M. G. 79. Or to enforce an undertaking by a party to the suit, Sidejield v. Thacker, 18 Beav. 688. (4) To carry decrees and orders into effect in complicated cases. (5) To wind up suits, the further consideration of which has become un- necessary (see Winthrop v. Winthrop, 1 Coop. 201 ; Harrison v. Lane, 2 Sm. &. G. 249 ; Thompson v. Knight, 9 W. R. 780). (B.) Under the statutory or general jurisdiction of the Court, e. g. applica- tions relating to charities, see Seton, 353 ; Ee Dwncan, 2 L. R. Ch. 356 ; but see, also, note (o), p. 98, ante, and (/), p. 598, post : or for mai'riage of ward of court, Daniell, 1232 ; but see p. 146, head (3), ante. As to the titles of petitions under the statutory jurisdiction, see Ayekbourn, 302, and note (i), p. 27, note (o), p. 98, ante. As to what questions can be considered on a petition without suit, see note (o) to sect. 2 of the Trustee Relief Act, p. 71, ante ; note (A) to sect. 30 of the Trustee Act, 1850, p. 96, ante, and note (j), to sect. 30 of Lord St. Leonards' Act, 1859 (application by trustees for advice of Court), p. 283, ante. As to petitions under the Trustee Belief Act, see note (p), p. 72; under the Trustee Act, notes (a) and {y), p. 103, 104, ante. As to petitions of right, see p. 63], post. As to petitions by parties under commitment, see Nicholson v. Squire, 16 Yes. 259, cited in note (a), to Ord. XLII. 1, p. 609, post. Petitions by infants (Howard v. Prince, 14 Beav. 28, and see p. 371, oirfe), or married woman (Jones v. Lewis, 1 De G-. & Sm. 245 ; but see Crouch v. Waller, 4 De G. & J. 43), are presented by a next fiiend. A lunatic petitions by his committee. A petition must be fairly written upon paper, but it need not be written upon parchment, Except it be for a rehearing, or appeal, it is not signed by counsel, nor need it be prepared by one ; but by Ord. XL. r. 32, J30s«, the Taxing Master is to allow, on taxation between party and pal-ty, the costs of such petitions as appear to have been proper to be settled by counsel. PETITIONS. 541 ' ' A petition addressed to the Lord Chancellor must he left with his principal Order secretary, and, if it is not for a matter of course, it will be answered by a XXXIV. memorandum, -written in the margin of the petition, and signed by such secre- Petitions. tary, directing all parties concerned to attend before him on the next day of petitions, unless, upon previous application either to his lordship or a Vice- Answering of Chancellor, permission has been given to have the petition answered for an petitions, &o. earlier day. When the petition is answered it is taken away by the person presenting it, and the copy is forwarded from the secretary's office to the judge by whom the petition is to be heard. "A petition addressed to the Master of the EoUs must be left with his under-seeretary, and, if it is not of course, it will be answered in the same manner as a petition addressed to the Lord Chancellor" (Daniell, 1454, 5). A petition in a matter must state the name and address of the petitioner. ITame and ad^ So if presented in a cause by a person not a party (GteSrooi v. Qillatt, 9 dress of peti- Beav. 492). tiouer, &e. As to the cases in which a petitioner will or will not be ordered to give Securitv for security for costs, see notes pp. 578 — 580, post. costs. A solicitor before he presents a petition ought to have a general authority q v '4 • to act for a party in the suit ; or a particular one to present the petition ; but . ^ "'.' °^ ^ *"' see Tarluck v. T served seven Original Summons shall be served seven clear days beiore return*to"eof ^^^ return thereof (m). All other summonses, not being summonses referred to in the 4th Eule of this Order, shall be served two clear days before the return thereof (16th Oct. 1852 ; Ord. 5). Service of (m) The summons may be returnable after the seven days, Wycherley v. summons. Samard, Johns. 41, and for form of affidavit of service of summons, see Schedule to Regul. as to business, Aug. 18S7, Appendix, p. Ivii. post. Rule 8. 8. Where proceedings originate in chambers, and Appointmentof , . .^ .it, new time when where from any cause the summons may not have been se™T°%hf served upon any pajity seven clear days before the return time. thereof, an indorsement may be made upon the summons and upon a copy thereof stamped for service, appointing a new time for the parties not before served to attend at the chambers of the judge; and such indorsements shall be sealed at the judge's chambers ; and the service of the copy so indorsed and sealed shall have the same force and effect as the service of an original summons ; and where any party has been served before such indorse- ment, the hearing thereof may, upon the return of the summons, be adjourned to the new time so appointed (16th Oct. 1852 ; Ord. 6). Rule 9. 9. Where proceedings originate in chambers, the par- on^proceedi'ngs *^®s Served shall, before they are heard in chambers, enter in chambers, appearances in the. Eecord and Writ Clerks' Office, and give notice thereof (16th Oct. 1852; Ord. 7). PROCEEDINGS IN CHAMBERS. 547 10. Where any of the parties summoned to attend the OrderXXXV. judge in chambers fail so to attend, whether upon the chambeiB™ return of the summons or at any time appointed for the RJ^elo consideration or further consideration of the matter, the Proceeding ex judge may proceed ex parte, if, considering the nature of of party sum- the case, he think it expedient so to do (3rd April, 1838 ; moned makiDg Ord. 53. 3rd June, 1850; Ord. 6). *11. Where the judge has proceeded ex parte, such Rule *ll. proceeding shall not in any manner he reconsidered in tion of ex parte the judge's chambers, unless the judge, upon a special proceedings. application made to him for that purpose by a party who was absent, shall be satisfied that he was not guilty of wilful delay or negligence. And in such case, the costs ^°^- occasioned by his non-attendance shall be in the discre- tion of the judge, who may fix the same at the time, and direct them to be paid by the party or his solicitor before he shall be permitted to have such proceeding recon- sidered, or make such other order as to such costs as to such judge may seem meet (3rd Apiil, 1838 ; Ord. 54) (w). («) The latter part of tliis mle, pToviding tliat the costs shall he in the dis- cretion of the judge, is new. 12. Where a decree or order is made, whether in court Rule 12. or in chambers, directing an account of debts, claims, or ^j^™^"^j"°* liabilities, or an inquiry for heirs, next of kin, or other prove, &c., unascertained persons, unless otherwise ordered, all per- sons who do not come in and prove their claims within the time which may be fixed for that purpose by advertise- ment (o), shall be excluded {p) from the benefit of the decree or order (16th Oct. 1852 ; Ord. 9). (o) See form of advertisement, Sched. L. Appendix, p. xxiii. post. (p) As to claimants coming in after the time fixed by the advertisements. Claimants com- on application made by summons, see r. 43, p. 558, post, rule 10, p. 639, post, ing in after After ajmoitionment, new claimanta may come in during the prosecution of time fixed by the decree (see sect. 19, and note (o), p. 550, post), and even after distribution, advertisement. After distribution under a decree persons making further claims may pro- ceed bff bill against those persons who have received the assets, but not against the executors, who are indemnified by the decree, see Clegg v. Bowlcmd, cited note (o), p. 282, ante; David v. Frowc(, 1 M. & K. 209 ; Good v. JBlewitt, 19 Tea. 339 ; Oreig v. Somermlle, 1 K. & M. 338 ; Thomas v. Griffiths, 2 Gif. 604 ; 2 D. F. J. 13. Where a decree or order is made, whether in court Rule 13. or in chambers, directing any property to be sold, unless N n 2 548 PEOCEEDINGS IN CHAMBERS. Okdek XXXV. otherwise ordered, the same shall be sold with the appro- ^ChSrs.'° bation of the judge to whose court the cause or matter is Sale under — attached, to the best purchaser that can be got for the decree or same, to be allowed by the judge, and all proper parties °'^^^''' shall join in the sale and conveyance as the judge shall direct (16th Oct. 1852; Ord. 13) (?). Questions as to (j) By the orders of the 16th July, 1851, the Masters were enahled to fix sale considered reserved biddings upon a sale under their direction, to direct deposits to be in ohamhers. made, and to appoint persons to receive the saiSe, and also to receive pro- posals, for private contract, and under the 61st rule of this order, their powers are vested in the judges in chambers. See, too, Prel. Ord. r. 5, p. 363, ante, and note (/), p. 147, ante, as to questions entertained in chambers, and see 13, 14, 15 llegul. as to business, August, 1857, Appendix, p. Iv. post, as to the affidavits and documents necessary to be produced in chambers, &c. Conduct of sale The conduct of the sale is ordinarily entrusted to the plaintiff {Knott v. generally. Cottee (No. 4), 27 Beav. 33), even though he would not have been entitled thereto according to the contract if performed without suit {Dale v. Hamilton, 10 Hare, App. vii.). When, however, it appears to be for' the benefit of all parties it may be given to a defendant {Knott v. Cottee, ante). When a sale is directed, every party to the suit having the title deeds is bound to facilitate Under 15 & 16 the sale {ibid.). On a sale under the 15 & 16 Vict. o. 86, s. 48, ante, p. 205, Vict. c. 86, s. the conduct of the sale is given to the first mortgagee {Hewitt v. Nanson, cited 48. in note (■;;), p. 206, ante). Effect of taking A purchaser under a decree cannot generally take possession (Hutton v. possession or Mansell, 2 Beav. 260), or pay his money into court, Derming v. Henderson, paying pur- 1 De G. & Sm. 689, without accepting the title ; but see Dempsey v. Dempsey, chase-money 1 De G. & Sm. 691; Seton, 1195. And an application to pay the money into court upon into court, and to be let into possession without prejudice to objections to the objections for title, will be refused {Butter v. Marriott, 10 Beav. 33 ; but see Mai-fell v. title. Rudge, 2 T. & Coll. Exch. E. 566). Eelievins pur- ■*■ Piroliasei' under a decree of the Court will not be relieved from his pur- chaser from " "'^^^^ merely because there are irregularities in the decree {Baker v. Sowter, purchase ^^ 'Bes,-^. 343). Seem if there is a want of jurisdiction or parties {ibid. ; and see, as to equitable interests being bound by the decree. Re Williams, 5 De G. Costs where & Sm. 515). A purchaser under a decree is entitled to his costs when the title bad. title is bad {Smiih v. Nelson, 2 S. & S. 557). Openin" bid- The practice of opening biddings on sales under the Court, except in cases dinos and of fraud, is abolished by the 30 & 31 Vict. c. 48, quoted p. 166, ante; as to ° ' reserving biddings, 13 & 14 Judges' Regul. p. Iv., post; and as to sales before decree, ante, p. 219 ; and as to abstracts, conveyances, &c., on sales by the Court, ante, p. 168. conditions of As to the form of conditions for sale, see Appendix, p. Ixiv. post ; and for sO'le- the mode of certifying the result of the sale, see 16th Judges' Begul. Appendix, p. Iv. post. Euie 14. 14,^ Where matters in respect of which summonses have Attendances on . ■,■■,!. further con- been issuod, are not disposed of upon the return of the Bideration. summons, the parties shall attend from time to time with- out further summons, at such time or times as may be appointed for the consideration or further consideration of the matter (16th Oct. 1852; Ord. 16) (r). Adjournments (f) As to adjournments of causes in chambers, and the mode of bringing in chambers, them on after such adjournment, see 18th Eegul. as to business, Aug. 1857, Appendix, p. Iv. post, and note {h), p. 149, ante. PROCEEDINGS IN CHAMBERS. 549 This section applies only where a regular adjournment has been made, and OudbrXXXV. where a witness had been summoned for examination, but, having received Proceedings in notice that the examination would not be proceeded with, did not attend, Chambers. and no adjournment was thereon made, it was held that he could not be forced to attend again without a fresh summons being tkeu out, Zmoson V. Stoddart, 12 W. R. 286. 15. In all cases of proceedings in chambers under any Rule 15. decree or order, the party prosecuting the same shall or order to°b? leave a copy of such decree or order at the judge's if^* at judge's chambers, and shall satisfy the same to be a true copy of the decree or order as passed and entered (16th Oct- 1852; Ord. 17) (s). (s) A note stating the nanJes of the solicitors for all parties, and for Documents to whom they are concerned, must also be left, and when the suit has been be left at cham- instituted by bill, a printed copy of the bill must be left at the same time bers. (5th and 6thRegul. as to business, Aug, 1857, Appendix, p. liii. j90sQ. 16. Upon a copy of the decree or order being left, a I^"le 16- summons shall be issued to proceed with the accounts or proceed with inquiries directed it) : and upon the return of such ?<"=o'?its or ^ ^ ' ^ , inquiries di- summons, the judge, if satisfied by proper evidence that reoted. all necessary parties have been served with notice of the decree or order, shall thereupon give directions as to the Directions. manner in which each of the accounts and inquiries is to be prosecuted, the evidence to be adduced in support Evidence. thereof, the parties who are to attend on the several accounts and inquiries, and the time within which each proceeding is to be taken; and a day or days may be appointed for the further attendance of the parties, and all such directions may afterwards be varied or added to as may be found necessary (16th Oct. 1852; Ord. 18). (t) See sect. 54 of the Chancery Improvement Act, 1852, p. 218, ante, and Directions as notes thereto, as to special directions for taking accounts and as to the ordinary to taking directions, see Ord. XXIII. 14 — 16, ante, p. 491, and see form of ordering accounts, accounts and inquiries, Appendix, p. v. post. 17. Where, by any decree or order, a deed is directed _ ^^'^^ 17. ' ■' •' / \ • 1 Settling deed to be settled by the judge m chambers (u), m case the under decree, parties differ about the same, a summons to proceed shall p^^i/" j^ffer. be issued; and upon the return of such summons the party entitled to prepare such deed shall be directed to deliver a copy thereof, within such time as the judge shall think fit, to the party entitled to object thereto; and the 550 PEOCEEDINGS IN CHAMBEES. Order xxxy. party SO entitled to object shall be directed to deliver to ChlmW™ the other party a statement in writing of his objections (if any) within eight days after the delivery of such copy; and the proceeding shall be adjourned until after the expiration of the said period of eight days (see 76th Ord. of 23rd Nov. 1831). (u) For form of Buch decree, see Seton, 1192, and as to settling deeds in chambers, see ^''■ instead of being made and delivered by the officers of the court at the office in which they are filed or left, shall be made, delivered, charged, and paid for (c) according to the following rules of this order (25th Oct. 1852 ; Ord. 1). (c) See rale 10, post. 4. The party or his solicitor requiring any copy, save Eule i. as excepted in the preceding rule, shall make a written fopies°to he la application to the party by whom the copy ought to be writing, &c. 2 564 COPIES BY SOLICITORS AND PARTIES. Obd. XXXVI. Copies. Knle 6. By whom copy supplied. Rule 6. Whea copy is to be ready. Delivery on payment of charges. Where copies are not sup- lied. delivered, or his solicitor, with an undertaking to pay the proper charges (35th Oct. 1852 ; Ord. 1, Art. 2). 5. Upon such requisition being made, with such under- taking as aforesaid, copies of such pleadings, proceedings, or documents shall be made by the party or his solicitor filing or leaving the same, or who under the 1st rule may have taken office copies thereof (25th Oct, 1852 ; Ord. 1, Art. 3). 6. The copies shall be ready to be delivered at the expiration of forty-eight hours after the delivery of such request and undertaking, or within such other time as the Court may in any case direct, and shall be delivered accordingly on demand, upon payment of the proper charges (d) (25th Oct. 1852; Ord. 1, Art. 4). {d) If the solicitor makes default in supplying the copies, an addition of tyro days is made to the period for taking any proceeding which may have to be taken after obtaining such copy, Ord. XXXVII. 16, p. 571, poat. As to applying for copies of the petition under the Settled Estates Act, see Ord. XLI. 18, 19, p. 600, post. Rule 7. Copies of bills of costs. Rule 8. Numbering of folios and in- dorsement. Party or solici- tor answerable for truth of copy. 7. Copies of bills of costs shall be made side for side so as to correspond with the bills of costs left in the office (25th Oct. 1852; Ord. 1, Art. 6). 8. The folios (e) of aU copies shall be numbered con- secutively in the margin thereof; and the" name and address of the party or solicitor by whom the same are made shall be indorsed thereon in like manner as upon the proceedings in the court ; and such party or solicitor shall be answerable for every such copy being a true copy of the original, or of an office copy of the original pleading, proceeding, or document of which it purports to be a copy, as the case may be (25th Oct. 1852 ; Ord. 1, Art. 7). (e) The folio is to consist of seventy-two words, and each figure is to count as a word (Regulations as to fees, iv. i, Appendix, p. xxxvi. post). Time fir deli- ^' ^^ °*^®® °^ ^^ ^"''''^^ applications for injunctions or very of copies writs of ne exeut regno (/), the party maldng such applica- certaif^lel" ^^"'^ ^^^^ ^^Hver copies of the affidavits upon which it is granted, upon payment of the proper charges, immediately upon the receipt of such written request and undertaking copies. COPIES BY SOLICITORS AND PARTIES. ,^66 as aforesaid, or within such time as may be specified in Obd. xxxvi. such request or may have been directed by the Court '^°^"'^" (25th Oct. 1852 ; Ord. 1, Art. 8). (/) As to this writ, see note (a), p. 629, arUe, head (I). 10. Any party or solicitor who has taken any office copy Rule 10. mentioned in the 1st rule shall produce the same in court office" °''''" °^ or at the judge's chambers, when required for the purpose of the proceedings to which the same relates (25th Oct. 1852; Ord. l,.Art. 9). 11. All copies to be delivered by parties or their Eule ii. solicitors shall be writfen on paper of a convenient size, written!""' with a sufficient margin, and in a neat and legible manner, similar to that which is usually adopted by law- stationers- and unless such copies are so written, the parties or solicitors delivering them shall not be entitled to be paid for the same (25th Oct. 1852; Ord. 2). 13. "Where any party or solicitor who is required to ^.ule 12. deliver any such copy either refuses to deliver the same, default in snp- or does not deliver the same within the period of forty- P^^'^s ''°P^^^- eight hours allowed by the 6 th rule of this order, the person making such application shall be at liberty to pro- cure a copy from the office in which the original shall have been filed, in the same way as if no such application had been made to the party or solicitor ; and in such case no costs shall be due or payable to the party or solicitor so making default in respect of the copy so applied for (25th Oct. 1853; Ord. 3). 13. The taxing master shall not allow any costs (g) in Rule 13. respect of any copy so taken as aforesaid, unless the same ^og^ ofTopies." shall appear to him to have been requisite, and to have been made with due care, both as regards the contents and the writing thereof (25th Oct. 1852 ; Ord. 5). (g) A defendant's solicitor, furnisliing copies of documents which the plaintiff Costs of copies; has a right to take himself on their being produced for his inspection under the 15 & 16 Vict. c. 86, s. 18, see note (o), p. 172, cmte, ■will only be allowed to charge stationers' charges actually incurred (Kerniedy t. George, 6 W. R. 218). A solicitor concerned for two or more parties is not allowed to charge for supplying to himself copies of documents, which copies he has himself pre- pared, see Sharp v. Wright, 1 L. R. Bq. 634. 566 TIME GENERALLY. OitDEK OEDEE XXXVII. xxxvir. ^'"^- Time. {For other Rules relating to Time, see the other Orders, passim). I. Time generally. Rule 1. 1. The times of procedure shall be the same in town town and ooun- causes and country causes (8th May, 1845 ; Ord. 16). try causes. g. Service of all -writs, notices, summonses, orders, Service of pro- Warrants, documents, and other proceedings, not re- oeedingg not quiring personal service upon the person to be affected requiring per- ,,11, 11^ > 1 1 • xi sonai service to thereby, shall be made before seven o clock in the evening, ''^m^^on^Satur ^^^^P* °^ Saturday, when it shall be made before two days before 2 o'clock in the afternoon ; and if made after seven o'clock ^■™' in the evening on any day except Saturday, the service shall be deemed as made on the following day; and if made after two o'clock in the afternoon on Saturday, the service shall be deemed as made on the following Monday (2nd Feb. 1857). Rule 3. 3. A defendant may demur alone to any bill within muirins alone ^^^^^^ ^l^js after his appearance thereto, but not after- ' wards (8th May, 1845 ; Ord. 16, Art. 10) (a). Demurrer witli (") ^^ '^ therefore always made the special condition of an order giving time answer *° demur, plead, or answer, that be shall not demwr alone (see Mitf. Plead. 246), and unless the demurrer is accompanied by an answer to some material part of the bill, Osbarn v. JvUion, 3 Drew. 562 ; Baker v. Hellish, 11 Yes. 73, it must be put in within the twelve days. Demurrer to ^ defendant cannot demur alone to jta/rt of a bill until the time for filing part of a bill, interrogatories has expired, see note («)), p. 167, ante, m. , J Twelve days from appearance are allowed in all cases, whether the de- .- , fendant was served within or without the jurisdiction, and the time which, on fend'"t ia o t ^^"'°® °"' °^ ^^^ jurisdiction, is limited for a defendant to "plead, answer, or of ■ ^-'ad'ot'on ^^"'"■'> '*"* demurring alone" does not preclude him from appearing and jun 1 1 . ^g^uf].jng g^ftgj g„(,jj tin,g hag expired, Qrilning v. Prioleau, 33 Bear. 221. Where plaintiff When the plaintiff enters an appearance for a defendant and afterwards enters an ap- amends his bill, the time within which such defendant may demur to the peaxance for amended bill runs from the date of the service thereof on him {Gheeselm-ough defendant. v. Wright, 28 Beav. 172). Where time Where the bill had, under the old practice, been referred for scandal and does not run, impertinence, and so reported, it was held that the defendant might demur after the twelve days {Nedhy v. Nediy, 8 Sim. 334) ; and the time between service of an order that plaintiff give security for costs, and the giving such security, is not reckoned in the twelve days, rule 14, infra. TIME GENEEALLT. 667 *4. A defendant required to answer a bill, whether Okdkr . • . XXXVII original or amended, must put in his plea, answer {b), or Time. demurrer thereto, not demurring alone, within twenty- ^^^^ »^ eight days (c) from the delivery to him or his solicitor of a Time for an- copy of the interrogatories which he is required to answer answer re^ (7th Aug. 1852 ; 1st Set, Ord. 19). quired. (5) A plaintiff's answer to interrogatories filed by the defendant is to be Answer to de- put in "in like manner " as if they had been contained in a bill of discovery fendant's inter- filed by the defendant against him on the day when such interrogatories shall rogatories. have been filed, 15& 16 Vict. c. 86, s. 19, p. 177, ante. Where a wife obtains an order to answa' separately for her husband, see p. When wife ob- 435, ante, her time for answering ought, it seems, to run only from the date tains order to of the order, see Jackson v. Haworth, 1 S. & S. 161. answer sepa- As to process for want of answer, see Ord. XII. p. 433, ante ; and as to lately. applications for further time, see rule 8, post. (c) The time for plaintiff to give security for costs is not reckoned, see r. 14. *5. A defendant not required to answer a bill, may, Kule *5. without any leave of the Court, put in a plea, answer {d), an^e^re-" "" or demurrer, not demurring alone, within fourteen days quired, after the expiration of the time within which he might have been served with interrogatories for his examination in answer to such biU (e). (d) See as to voluntary answers, 15 & 16 Vict. c. 86, s. 13, p. 168, ante. Time for serv- (e) The time for service of interrogatories is limited as follows — ing interroga- te) If the defendant appears within the eight days limited for his appear- toriea. ance, interrogatories are to be delivered to him or his solicitor within eight 1. Whei-e de- days from the time limited for such appearance, i. e., within sixteen days from fendant ap- service of bill p. 432, ante. • pears. (j8) Jf the defendant fails to appear within the eight days, then a copy of 2. Where he the interrogatories may be delivered to him personally at any time after the does not appear eight days, and before his actual appearance. within eight (7) If the defendant fails to appear within the eight days, but appears days. afterwards, the copy of the interrogatories may be delivered to him or his solicitor within eight days after such appearance. Hence the time for a voluntary answer is — _ Time for an- (a) Thirty days, if the defendant appears within the eight days limited swer. for appearance ; ^ (1) Where de- (/3) and (7) If he makes default in appearing, the cas^ appears to form a fendant ap- easus omissus from the order ; for it could hardly be contended that a pears, defendant is entitled to take advantage of his own default for the purpose of (2) Where de- getting further time to put in his answer. It is submitted that the rule ought fendant makes to be held only to apply to the case of a defendant not making default. default in Further time may be given, rr. 17, 18, post. Where a demurrer had been appearing. put in without effect, further time was given to put in a voluntary answer. Further time MuUim V. ffitssey, 15 W. E. 657. gi^en. *6. Where a defendant is ordered to answer amendments Rule *6. and exceptions together, he must put in his further answer ai™er°to and his answer to the amendments of the bill within /oitr- amendments . „, , 1 •,! • i J. ■ and exceptions teen days after he shall have been served with interrogatories together. for his examination in answer to the amended bill (/). 568 TIME GENERALLY. Where he does not, and procures no enlargement of the time allowed, he shall be subject to the follow- ing liabilities : — (1.) An attachment may be issued against him ig) ; (2.) He may be committed to prison, and brought to the bar of the court ; (3.) The plaintiff may file a traversing note, or proceed to take the bill pro confesso against him (8th May, 1845 ; Ord. 16, Art. 15) {h). V. Rigiy, 9 Okdeb XXXVII. Time. Consequences of default. Article (1). Article (2). Article (3). (/) This rule only refers to amendment after answer Beav. 311). (g) See note (d), p. 614, amte, as to tlie evidence of serrioe of interroga- tories necessary to found an attachment. Defendant (A) It has been suggested that this rule is defectiye, inasmuch as it does making default not state what will be the consequences of a defendant making default in in answering answering altogether the amendments and exceptions. The 5th rule of the altogether. Preliminary Order has been referred to as rectifying the defect (if any) ; but the sounder opinion seems to be, that the right of the Court to attach or commit a defendant for contempt, in not conforming to its orders, is a matter of inherent jurisdiction, and does not depend upon any general order. Eule *7. Time for answer to amendments, where no answer re- quired. *7. When the plaintiff amends his hiW. without requiring an answer to the amendments, a defendant who has answered or has not been required to answer the original bill, but desires to answer the amended bill, must put in his answer thereto within fourteen days after the expira- tion of the time within which, if an answer had been required, he might have been served with interrogatories for his examination in answer to such amended bill (i), or within such further time as the judge may allow (8th May, 1845 ; Ord. 16, Art. 38). Time for put- (i) The time limited for a plaintiff to file his interrogatories to an amended ting in volun- bill is eight days from the time limited for the appearance of the defendant,' tary answer to Ord. XI. 3, OMte, p. 432. The defendant, however, is not bound to appear amended bill, at all to an_ amended bill unless he desires to answer it (see note (e) p. 421, ante), in which latter case he must appear within eight days. Therefore the defendant is to have 8 + 8 + 14 (= 80) days for the time within which the answer is to be put in. See note (c), last page. Where the appearance has been entered for the defendant, and the bill is afterwards amended, the time for such defendant to put in a voluntary answer to the amended bill runs from the time of the service of the amended bill on him {Cheeseborough v. Wright, 28 Beav. 173). Eule 8. 8. Where a defendant, using due diligence, is unable Extension of , a ■ r- ■,•■,■,•■,■ . time to answer. ^° Put in his answer to a bill Within the times allowed by these orders, the judge, on sufficient cause being shown, TIME FOE HEABING. 569 may, as often as he shall deem right, allow to such Order XXXVII defendant such further time and on such (if any) terms as Time. to the judge shall seem just (8th May, 1845 ; Ord. 18. 7th Aug. 1852; 1st Set, Ord. 19) {k). (S) The application is to be made in chambers, p. 146, ante. The first application is not of course, but must be supported by affidavit Application for (Srown V. Lee, 11 Bear. 162) ; but the judge will nsually rely on the state- further time to ments of counsel as to the time required by him {Byng y. Olwrh, 13 Beav. answer when 92, where the time for answering was enlarged on five successive occasions) ; granted, and on application for time to answer, it must be considered that the answer is necessary not only for enabling the defendant to give the discovery re- quired, but to state his own defence {York and Midland Railway Company V. Hudson, ibid. 69). A defendant in contempt cannot apply, Wheat v. Ch'aham, 5 Sim. 570 ; see, however, Davis v. Tollemache, 2 Jur. N. S. 564, and note (o), p. 609, 'post. On applications for time to ans*er, a printed copy of the bill and the inter- Documents to rogatories must be produced (2nd Regul. as to business, Aug. 8, 1857, be produced. Appendix, p. liii. post). Under an order giving farther time to answer, the defendant may, it seems, Filing plea put in a plea {Hunter v. Nockolds, 12 Jur. 149) ; but see Philips v. Gibbons, under order to 1 V. & B. 184 ; Taylor v. Milner, 10 Yes. 444 ; Newman v. White, 16 Beav. answer, &c. 4 ; Mitf. Plead. 246, note (o). As to an order giving time to file an answer to a cross bill, see Lafone v. Falkland Islands Company, 2 K. &. J. 276 ; and as to applications for time to answer where a defendant submits to exceptions, Manchester, die. Railway Company v. Worksop Board of Health, ibid. 26, and see p. 470, ante. An attachment sued out pending the discussion of an order for further time to answer, will be discharged as irregular {Davis r. Tollemache, 2 Jur. N. S. 564). II. Computation of Time. 9. Where any limited time from or after any date or L;ja^"a^time event is appointed or allowed for doing any act or taking not limited by any proceeding, and such time is not limited by hours, computed. the computation of such limited time shall not include the day of such date or of the happening of such event, hut shall commence at the beginning of the next following day ; and the act or proceeding shall be done or taken at the latest on the last day of such limited time according to such computation (8th May, 1845 ; Ord. 11). 10. Where the time for doing any act or taking any Months. proceeding is limited by months not expressed to be calendar months, such time shall be computed by lunar months of twenty-eight days each (8th May, 1845 ; Ord. 18) . *11. Where any limited time less than six days from or Rule *il. after any date or event is appointed or allowed for doing ^^ys on which any act or taking any proceeding, Sundays, and other offices are^^ days on which the offices are closed, except Monday and excluded. 570 COMPUTATION OP TIME. Ordeb Tuesday in Easter week, shall not be reckoned in the XXXVII Time. ' computation of such limited time. — jj^jg ;^2. 12. Where the time for doing any act or taking any Wlien time proceeding expires on a Sunday or other day on which Saadayorday the offices are closed, and by reason thereof such act or on which offices proceeding cannot be done or taken on that day, such act are closed, -^ ,.,,,„ i ,i x- i? j • or proceeding shall, so far as regards the time ot doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next open {8th May, 1845 ; Ord. 13) (Z). Closing of © Where the time for doing an act, or taking a proceeding is expressly fixed offices, by Act of Parliament, this rule does not enable such act or proceeding to be done or taken after the expiration of the time so fixed, Flower v. Bright, 2 J. & H. 590, Enle 13. 13. The times of vacation (m) shall not be reckoned in ^treXned."" ^"^^ computation of the times appointed or aUowedfor the following purposes : — Article (1). (1.) Amending or obtaining orders for leave to amend biUs. Article (2). (2.) Filing or setting down exceptions for scandal or insufficiency, in cases where the time is not limited by notice given pursuant to the 6th Kule of Order XLII. Article (3). (3.) Setting down pleas and demurrers. Article (4). (4.) Filing replications in), or setting down causes under the 12th Eule of Order XXXIII., in cases where a defendant puts in an answer to amendments to which the plaintiff has not required an answer (o) (8th May, 1845 ; Ord. 14, 2nd Nov. 1850 ; Ord. 4). When time (m) In all cases not specified in this rnle vacations are to be counted in the runs during computation of time, see Botliomley t. Sgmre, 7 D. M. Q. 246 ; Ware v. Watson, vacation. i^irf. 739 ; Hitchin v. Hughes, 14 W. E. 93. («) See Stinton v. Taylor, 4 Hare, 408, -where it was held ibat the rule does not apply to the filing of replications generally. (o) See p. 638, ante. Eule 14. 14. The day on which an order that the plaintiff do giving serarit™ 8^"^'^ Security for costs is served (p), and the time thence- for costs not forward until and including the day on which such security is given, shall not be reckoned in the computation of time allowed a defendant to plead, answer, or demur, or COMPUTATION OF TIME. 671 otherwise make his defence to the suit (8th May, 1815 ; Order Ord. 15). ^^?I"- ( p) Merely taMng oiU the summons fur seoarity for coats does not prevent Time runs the time from running, Henderson t. Atkins, 7 W. 11. 318. If, therefore, until order ia there is danger of the time running out before the order ia made, the defendant served. should plead, answer, or demur, giving notice that he does so without prejudice to his right to call for security, J)rinan v. Mannix, 3 Dr. & W. 1S5. r 15. Where the fourteen days within which, pursuant „ ^"'« ^^- GSLSQS wliGrfi to the orders of the Court, a defendant is bound to file time is ex- his affidavits in answer to a motion for a decree, or the *^°?^f > ^^? . . period expu'ing seven days within which the plaintiff is bound to file his in the long affidavits in reply thereto, or the eight weeks after issue ^^°* '™' joined within which the' evidence in any cause to be used at the hearing thereof is to be closed, or the month after the expiration of such eight weeks within which a witness who has made an affidavit intended to be used by any party to such cause at the hearing thereof is subject to cross-examination (g), shall expire in the long vacation, the time for the several purposes aforesaid respectively is hereby extended to the fifth day of the ensuing Michaelmas Term, and shall expii'e on that day, unless enlarged by order. And in cases where the above-mentioned periods of fourteen days and eight weeks respectively shall be extended by virtue of this order, the seven days within which the plaintiff is bound to file his affidavits in reply, and the month during which a witness is subject to cross- examination, shall be respectively taken to commence from the expiration of such extended periods respectively (1st June, 1854 ; Ord. 1. 13th Jan. 1855 ; Ord. 5) (r). (j) This part of the rule -will only apply to causes where issue is joined, if Where issue the parties agree to follow the old practice, see note (m), p. 184, ante, and joined. Ord. 5th Feb. 1861, r. 10, p. 623, post. (r) A question may arise as to whether this rule applies to cases where the Where addi- time has been enlarged, and the enlarged period expires in the vacation, tional time ex- The Master of the 'RiiDs, in Clarh v. Malpas, January 13, 1862, expressed pires in vaca- an opinion that it did so apply, but the point was not expressly determined, tion, 16. Where a party or solicitor by whom any copy ought Rule 16. to be delivered, pursuant to Order XXXVI., refuses to t^^t1n°^L deliver the same, or does not deliver the same within the of default of period of forty-eight hours allowed by the 6th rule of that delivering order, an addition of two clear days shall be made to the •'"P'^^' 572 COMPUTATION OF TIME. Obdsr XXXVII. Time. period within which any proceeding which may have to be taken after obtaining such copy ought to be so taken, so that the person requiring such copy may be as little prejudiced as possible by the neglect of the solicitor to deliver such copy (35th Oct. 1853 ; Ord. 4). chambers to enlarge or abridge time, III. Power of the Court as to Time. Rule*ir. *17. The power of the Court or the judge at orjudge°in™ chambers (s) to enlarge or abridge the time for doing any act or taking any^ proceeding, upon such, if any, terms as the justice of the case requires, shall not be affected by these orders (8th May, 1845 ; Ord. 21. 7th Aug. 1853 ; 1st Set, Ord. 46). Application for • (*) Applications for further time to answer (rule 8, ante), and to file inter- fnrthertime by rogatories (Ord. XI. 3), are ordered to be made at chambers, p. 146, ante, summons in and it seems by this rule that applications for further time generally should chambers. lie made at chambers. Or by motion ■'^° Scmtha/mpton, /x Costs, Charges, 1841 ; Ord. 29) (p). and ExpenL, generally. (p) SeeAiramv. Ward, 6 Hare, 170, where defendants in the same in- terest as the plaintiffs, but who had refused to join as co-plaintiffa, were allowed Parties refusing their costs under this rule. to be co-plain- tiffs. 17. Expenses incurred in consequence of affidavits Kule 17. being prepared or settled by counsel, shall be allowed only yitg prepared, ■when the taxing master shall in his discretion, and on *«■> ^y <=oun- consideration of the special circumstances of each case, think such expenses properly incurred ; and in such case he shall be at liberty to allow the same or such parts thereof as he may consider just and reasonable, whether the taxation be between solicitor and client or between party and party (1st June, 1854 ; Ord. 11) (q). (q) See, before the rule, Se Pender, 10 Beav. 390 : The rule does not take In what cases the qnestion of the costs of settling affidavits out of the discretion of the allowed. Court, see Dairies r. Marshall, 1 Dr. & Rm. 354 ; where the costs of fees to counsel for settling an affidavit, which was a mere echo of the bill, were allowed. The present practice seems to be in &TOur of allowing fees to counsel for settling affidavits in all cases of difficulty. 18. No costs shall be allowed, either as between party Rule 18. and party, or as between solicitor and client, for any ^g^ ^iii. written bill, or written copy of a bill filed under the Stat. 15 & 16 Vict. c. 86, s. 6, or for any written copy thereof served upon, any defendant thereto, or for any written brief of such bill, unless the Court, in disposing of the costs of the cause, shall direct the allowance thereof (7th Aug. 1852 ; 1st Set, Ord. 3) (r). (?•) See notes to 15 & 16 Vict^ c. 86, s. 6, p. 164, OMte. 15 & 16 Vict. c. 86, 3.6. 19. The payment to be made by the defendant to the .„ *"ie 19- -1 • /■ 1 1 -IT 1 11 T 1 Payment for plaintiff for prmted copies of the bill shall be at the rate printed copies of one halfpenny per folio (7th Aug. 1852; 1st Set, °^'''"- Ord. 5) (s). («) As to the length of the folio, see Regulations as to Fees, Appendix, p. per folio, xxivi. post. 20. Where two counsel (t) appear for the same party Rule 20. /• i , T 'A. Costs of two upon the hearing of any cause or matter, and it appears counsel. to the taxing master to have been. necessary or proper 586 COSTS, CHARGES, AND EXPENSES. Order XL. for such party to retain two counsel to appear, the costs Costs, Charges, . , , , aud Expenses, occasioned thereby shall be allowed, although both of generally, g^jj^ counsel may have been selected from the outer bar (3rd April, 1838 ; Ord. 33) (u). Costa of second (i) As to the practice of allowing two counsel upon interlocutory motions, counsel. see observations of V.-C. Shadwell in Coohe v. Turner, 12 Sim. 660, and of Lord Langdale in Stephens v. Lord Newhorough, 11 Beav. 403, where the briefs of two coonsel were allowed on an unopposed motion on taxation as between party and party. So on an unopposed petition, Starge v. Viinsdale, 9 Beav. 170. But of course there were special circumstances in those cases. See Friend v. Solly, 10 Beav. 329 ; Tea/riley v. Yearsley, 19 Beav. 1. The costs of two junior counsel employed to settle a defendant's answer will not be allowed (Davis v. Earl of Dymrt, 21 Beav. 124 ; 8 D. M. G. 33) ; but under an order for taxation of costs as between solicitor and client, the costs of a consultation between the junior counsel and a Queen's Counsel as to the frame of a bill in equity were properly allowed, without reference to the result of the suit, or the fact whether or not the advice of the Queen's Counsel was acted upon {Foi-stei' v. Dailies, 11 W. B. 813 ; see, too, Lucas v. Pea- cock, 8 Beav. 1). Costs of third (a) It does not follow from this rule that the costs of a third counsel (being counsel. a Queen's Counsel) will not be allowed where the question involved is intricate or the pleadings voluminous. Per T.-C. Shadwell in Wastell v. Leslie, 14 Sim. 84. But see Smith v. JSarl of Effingham, 10 Beav. 378 ; Attm'ney- General v. Mtmro; 1 Mac. & G. 213 ; Downing College Case, 3 M. & C. 474. In a very heavy appeal case the costs of three counsel were allowed (Pearce v. Lindsay, Johns. 705 note; 1 D. F. J. 573 ; Weniworth v. Lloyd, 2 L. K Bq, 607. See, as to employing a third counsel of the common law bar, Belts v. Clifford, 1 J. & H, 74, where the costs of such counsel were allowed ; Flochton V. Peahe, 12 W. R. 1203, where they were disallowed. When the counsel who has drawn the pleadings is called within the bar before the hearing, the costs of employing two additional counsel may be allowed (Carter v. JBarna/rd, 16 Sim. 157 ; see, however, Qreen v. Briggs, 7 Hare, 279). Brief to Attor- As to the costs of a brief to the Attorney-General on an information, see ney-6eneral. AUwney-Qeneral v. Draper^ Company, 4 Beav. 806. Rule 21. 21. Where a cause which stands for hearing is called strucVontfor °^ *° ^^ heard, but cannot be decided by reason of a defect on part want of parties or other defect on the part of the plain- again set down, tiff, and is therefore struck out of the paper, and the same cause is again set down, the defendant shall be allowed the taxed costs occasioned by the first setting down, although he does not obtain the costs of the suit (3rd April, 1828 ; Ord. 34) {w). (w) See as to this rule, Morgan & Davey, 63. Where objec- Tlie objection for want of parties should have been taken by the answer, but tion for want ^^ rule applies if the defect appears in the bill (Furze v. Sharwood, 6 M. & of parties is Cr. 96; Lowry v. Fulton, 9 Sim. 104; and Attorney-General r^ Hill, 3 M. taken. & Cr. 247, where the defendants did not insist on the objection at the hearing). Costs of the -A-nd where no answer was required, but the defendants took the objection day. ■ l>y afiidavit, the plaintiff was ordered to pay the costs of the day (Nelson v. Seaman, 1 D. P. J. 368). . COSTS, CHARGES, AND EXPENSES. 587 But where the defendants by answer admitted that all proper persons were Okder XL parties, they are not entitled to the costs of the day (Pnce v. Berrington, 2 Costs Charges Bear. 285; and see Wilson v. Broughton, 7 L. J. Ch. 120). Mitchell v. and Expenses' Bailey, 3 Madd. 61) ; and st/mble, the Court has power to reserve the costs oeuerallY ' notwithstanding the rule (Mason v. Franklin, 1 Y. & G. C, C. 242). — — As to the costs of causes standing over by reason of the non-attendance of Costs where the plaintiff's or appellant's counsel, see Qodson v. Hall, 7 CI. & Fin. 549. cause stands over by reason 23. Where a cause, being in the paper for hearing, is auoe of counsel. ordered to be adjourned upon payment of the costs of ^"le 22. the day {x), the party to pay the same, whether before the °^^° ^^' Lord Chancellor, the Lords Justices, the Master of the Rolls, or one of the Vice-Chancellors, shall pay the sum of ten pounds, unless the Court shall otherwise direct (3rd April, 1828; Ord. 35) {x): (x) See as to costs of day, Caddich v. CooTe, 32 Beav. 70 ; and Till v. Brown, 2 Bro. C. C. 276 ; Farmer v. Curtis, 2 Sim. 466 ; Morgan & Davey, 64. *23. Where a party gives a notice of motion, and does Rule *23. not move accordingly, he shall pay to the other side, costs doned motion! to be taxed by the taxing master, unless the Court itself shall direct, upon production of the notice of motion, what sum shall be paid for costs (see Ord. of 5th Aug. 1818) {y). (y) Under the old order forty shillings only was payable upon an abandoned Forty shillings motion unless an affidavit had been filed (Green v. Meares, 14 Sim. 526 ; formerly pay- Gorely v. Gorely, 25 Beav. 234, in which case taxed costs were payable). As able, to what motions were within the Order, see Tucker v. Jlemaman,, 24 L. J. Ch. 456 ; Davis v. Soiith-Eaatem Jtailway Company, 23 Beav. 649, in the reporter's note to which all the cases are collected. A motion is abandoned (a) if the plaintiff amends his hill, and gives a What is an new notice of motion, Eccles v. Liverpool Borough Bank, Johns. 402 ; London abandoned mo- and Blaekwall Railway Company v. Lim^house Board of Works, 3 K. & J. tion. 123 ; Smith v. Dickson, 12 W. E. 934 ; see note (j), p. 411, a/nte. ($) If counsel is not instructed to move on the seal day mentioned in the notice (Re Compton Smith, 23 Beav. 284, and see Wedderburne v. Llewellyn, 13 W. K. 939) ; and a motion before the Appeal Court will be treated as abandoned if not made when called upon (Turner v. Twmer, 16 Jur. 1165). Where the motion is renewed it will not be heard till the costs of the aban- doned motion have been paid (Bellchamber v. Giani, 550 ; and see Oldfield V. Cdbbett, 12 Beav. 91, and note to 23 Beav. 650, ibid.). When the party giving the notice of motion dies before it is brought on, and Eepresenta- the bill is revived by his executors, who decline to proceed with the motion, tives reviving the other side is not entitled to the costs of the motion, as costs of the aban- and not mov- doned motion or as costs in the cause (Lewis v. Armstrong, 3 M, & K. 69 ; ing. Warner v. Armstrong, 4 Sim. 140). If a party applies for the costs under this rule he must mention the aban- How and doned notice of motion to the Court, and produce it to the registrar before the 'when costs order is drawn up ( Withey v. HaAgh, 3 Madd. 437). under rule to It is too late to ask for the costs of an abandoned motion at the hearing, at be applied for. least on speaking to minutes (Eccles v. Liverpool Borough Bank, Johns. 402 ; 588 COSTS, CHARGES, AND EXPENSES. Ordbb XL. and see Woodcock f. Oxford, Worcester, and Wolverhampton Railway Corn- Coats, Charges, pony, 17 Jur. 33, where it was held that auoh costs were to be applied for on and Expenses, the seal day after the day on which the notice of motion was given. See, too, generally. Farquharson v. Pitcher, 4 Russ. 510, where it was held that after a bill has been dismissed for want of prosecution, the plaintiff cannot obtain the costs of an abandoned motion. Rule *24. *24. A creditor who has come in and established bis Costs of esta- debt («) in the iudge's chambers, under a decree or order bhshing a debt ^ ' J & ' -lt i- under decree, in a suit, shall be entitled to the costs of so establishing his debt (a); and the sum to be allowed for such costs shall be fixed by the judge, unless he shall think fit to direct the taxation thereof; and the amount of such costs, or the sum allowed in respect thereof, shall be added to the debt so established (11th April, 1842 ; Ord. 6, amending 47th Ord. of 26th Aug. 1841). Costs of credi- (^) See note (Jc), p. 149, ante, as to the costs of a creditor failing in his tor failing in claim. claim. (a) The rule does not apply to the costs of a creditor plaintiff in the cause Creditor nlain- (^'"'^"ff ''■ Saynes, i Hare, 309 ; and see further as to the rule, Sead v. tiff in cai^e not '^«ti*A, 4 Beav. 621). ... J Where there is a deficiency of assets the costs of the creditors proving will " '^^ ^' not be payable in the first instance, but will have to be apportioned with their debts {Morshead y. Reynolds, 21 Beav. 638). Rule 25. 25. Where an account consists in part of any bill of costfinder costs, or where the judge is authorised to fix the amount r. 24 by direc- of costs under the 24th Eule of this Order, the judge ion a ]u ge. ^^^ direct the taxing master to assist him in settling such costs, not being the ordinary costs of passing the account of a receiver; and the taxing master, on re- ceiving such direction, shall proceed to tax such costs, and shall have the same powers, and the same fees shall be payable in respect thereof, as if the same had been referred to the taxing master by an order, and he shall return the same, with his opinion thereon, to the judge by whose direction the same were taxed (26th Oct. 1842 ; Ord. 12). Rule 26. 26. Where, upon the taxation of any bill of costs, it be" transmitted appears^ to the taxing master, that, for the purpose of by the judge's duly taxing the same, it is necessary to inspect any chief clerk to,, , .i-i the taxing- books, papers, or documents relatmg to the cause or master. matter in the chambers of any judge, the taxing master COSTS, CHARGES, AND EXPENSES. 589 shall be at liberty to request the chief clerk of such Ordbr XL. judge to cause the same to be transmitted to the office of ^ndkxpmaea', the taxing master; and also to request such chief gene'^Uy- clerk to certify any proceedings in the said chambers which may be comprised in the bill of costs under taxation ; and in such cases the chief clerk, when and so soon and at and for such times as the due transaction of the business at the said chambers will permit, shall direct such books, papers, and documents to be trans- mitted to the office of the taxing master for his use during the taxation, and shall certify the proceedings which have taken place in the said chambers according to the request of the taxing master ; and after the costs in respect of which such request of the taxing master was made shall have been certified, the taxing master shall cause the same books, papers, and documents which have been so transmitted to his office, if then remaining there, to be returned to the chambers of the judge (26th Oct. 1843; Ord. 13). 27. When any book, paper, or document shall be Rile 27. transmitted from the chambers of a judge to the office of transivis- of a taxing master, a memorandum of such transmission ^"'°' *■"• shall be made and signed by the taxing master or the clerk of the taxing master at whose request such book, paper, or document may be transmitted, and shall be delivered to the chief clerk of such judge : and when any such book, paper, or document shall be returned from the office of the taxing master to the judge's chambers, a memorandum of such return shall be made, and signed by such chief clerk, or by one of his clerks, and shall be delivered to the taxing master (26th Oct. 1842; Ord. 14). 28. Parties attending any proceeding in chambers. Rule 28. without having obtained the previous leave of the judge ties atte/jinK to attend the same, shall not be allowed any costs of "u™^^^^"^ "" such attendance, unless by special order of the Court or judge, judge (16th Oct. 1852 ; Ord. 55). 29. The costs of counsel attending the judge in cham- Rule 29. hers shall not in any case be allowed, unless the judge gel attending chambers. 590 COSTS, CHARGES, AND EXPENSES. Obbkb XL. certifies it to be a proper case for counsel to attend (16th a'nXtl"' Oct. 1852; Ord. 56) (b). generally. (6) As to the practice of hearing counsel in chamhera, see 15 & 16 Vict. o. 80, s. 28 (ante, p. 145). Rule *30. *30. Where, in pursuance of any direction by the settled by pri- Court or a judge in chambers, drafts are settled by any before OT°^ft "^ *^® Conveyancing counsel of the court (c), the expense they are set- of procuring such drafts to be previously or subsequently ancing counsel settled by Other counsel on behalf of the same parties on of court. whose behalf such drafts are settled by the conveyancing counsel of the court, shall not be allowed on taxation as between party and party, or as between solicitor and client, unless the Court or the judge in chambers shall otherwise direct (see Letter by Lord St. Leonards, C, to the Taxing Masters, 24th Dec. 1852) (d). (c) This rule is new. The costs of referring title, &c. to conTcyancing counsel of the court are liable to taxation, see note {e) to rule 32, infra. Fees to convey- The fees payable to the conveyancing counsel are entirely in the discretion of ancing counsel, the taxing master (Evmsay v. Sumsay, 21 Beav. 40). (d) As to costs where a purchaser or mortgagee insists on employing private counsel in addition to the conveyancing counsel of the court, see Re Morgan Jones' Settled Estate, 6 W. K. 762 ; Nicholson v. Jeyes, 1 Sm. & Giff. App. ziii, Eule 31. 31. Where a proceeding in chambers fails, by reason sioned by non- of the non- attendance of any party, and the judge does attendance of party where not think it expedient to proceed ex parte, the judge may judge does not order such an amount of costs (if any) as ,he shall think parte! ^* reasonable, to be paid to the party attending, by the absent party or by his solicitor personally (3rd April, 1828 ; Ord.. 55. 3rd June, 1850 ; Ord. 7, 8). Rule 32. 32. Where costs are to be taxed as between party and Allowances on ,i , • , n . ,i . .. i i taxation as P'^i'ty, the taxing master may allow to the party entitled between party ^q receive such costs all such iust and reasonable ex- and party. ■' penses as appear to have been properly incurred in The service and execution of writs, and the ser- vice of orders, notices, petitions, warrants, and sum- monses (e). Advising with counsel on the pleadings, evidence, and other proceedings in the cause (/) ; Procuring counsel to settle and sign pleadings and COSTS, CHAEGES, AND EXPENSES. 591 such petitions as may appear to be proper to have Ohdbb xl. been settled by counsel (g) ; a^nX'enr.' Procuring consultations of counsel {h) ; generally. Procuring the attendance of counsel in judge's chambers, or in the master's offices, where the judge or master has certified the cafee to be proper for counsel to attend (i) ; Procuring evidence by deposition or affidavit (j), and the attendance of witnesses ; and Supplying counsel with copies of, or extracts from, necessary documents (k). But in allowing such costs, the taxing master shall not allow to such party any costs which do not appear to have been necessary or proper for the attainment of justice or for defending his rights, or which appear to have been incurred through over-caution, negligence, or mistake, or merely at the desire of the party (8th May, 1845; Ord. 120). (e) Costs inonrred in issning process of contempt will not be allowed on Costs of soli- tazatiou as between part; and party unless specially applied for {Attorney- citors issuing General t. Carrington, 6 Bear. 460) ; nor the costs of inrolllng a decree, process, &c. Clark V. Malpas, 31 Beav. 554. (/) Fees to counsel are generally left to the taxing master's discretion, At- Employing tomey- General v. Lord Carrington, 6 Beav. 454 ; Pa/rhimonv. Hanbury, 13 counsel W. K 1056 ; including the conveyancing counsel of the court, Re Spooner, 1 K. & J. 220 ; but see Attorney-General v. Drapers' Company, 4 Beav. 305 ; Davis V. Earl Dyswrt, 21 Beav. 124 ; 8 D. M. G. 33; Sturgis v. Moi-e, 33 L. T. 5 ; and see notes (c) and (d), last page. A special retaining fee was disallowed on taxation between party and party, Retaining fee. Smith v. Earl of Effingham, 10 Beav. 378 ; Green v. Briggs, 7 Hare, 279 ; but see contra, Nicholls v. Haslam, 15 Sim. 49. Counsel's fees on a brief to fix a day for the hearing were allowed on taxation between party and party, Clark V. Malpas, 31 Beav. 554. The costs of drawing observations for counsel may be allowed, though the Drawing obser- cause stand over, Davies v. Marshall, 1 Dr. & Sm. 664, unless they are un- vations. reasonably long, Ernest v. Partridge, 11 W. B. 715 ; see WerUworth v. Lloyd, 3 li. R. Eq. 608 ; Friend v. Solly, 10 Beav. 329; Re Pender, ibid. 390 ; Stephens v. Lord Newborough, ibid. 403. See Seton, 840, and note (i), infra. (g) See note (?) to rule 17, p. 585, ante. (h) See rule 20, supra, and notes (<) and (u), p. 586. In the absence of special reason only one consultation fee should be allowed Qf consnlta- on taxation as between party and party. Smith v. Earl of Effingham, 10 Beav. tions. 378 ; and see Davis v. Earl of Dyswrt, 21 Beav. 124 ; 8 D. M. G. 33 ; Lucas T. Peacock, 8 Beav. 1 ; Re Catlin, 18 Beav. 516. The costs of a conference as to a demurrer were allowed though the demurrer Conferences, was unsuccessful, Ernest v. Pa/rtridge, 11 W. R. 715. See as to allowance of consultation fees on taxation between party and party. Green v. Biggs, 7 Hare, 279 ; Fm-ster v. Davies, 32 Beav. 624. (t) See rule 29, supra. (j) As to costs of examining witnesses abroad, see Wentworth v. Lloyd, 34 Of examining Beav. 455 ; of unnecessary evidence, see Attorney-General v. Carrington (I. c.) ; witnesses 692 COSTS, CHARGES, AND JIXPENSES, Okdee XL. Costs, Charges, and Expenses, generally. abroad, or un- necessarily. Of affidavits, &c., not used. Copying cor- respondence, &c. Employing short-liaud writer. Interpreter. Abstracting depositions. Rule 33. Objection to an allowance or disallowance by the taxing master bow made. Rule 34. Reviewal of taxation upon application for warrant to re- view orupon the return thereof. Buoih V. Booth, 1 Beav. 130 ; Farrow v. Rees, 4 Bear. 29. Of bringing up witnesses for cross-examination wbo were not cross-examined, Clarh v. Malpas, 31 Beav. 554. The costs of an affidavit, filed but not entered in the order, will not be allowed even on a taxation as between solicitor and client {Stephens v. Lord Newhorouyh, 11 Beav. 403 ; and see Stuart v. Greenall, 13 Price, 765). But where a document is not filed, but it appears that the consequence of not filing it was to save expense, the costs of it will be allowed (Davies v. Marshall (No. 2), 1 Drew. & Sm. 664). • A solicitor is entitled to the costs of an affidavit made on delivering up papers under an order (Re Oatlvn, 18 Beav. 514 ; see RawUnson v. Moss, 9 W. R. 733). As to costs of employing experts to get up evidence, see Chwrton v. FreiBm, 16 W. R. 599. As to costs of attorney's travelling expenses, see Claris v. Malpas, 4 Beav. 654 ; Howell v. Tyler, 2 Y. & 0. 284. (i) In Friend v. Solly, 10 Beav. 329, the briefs of pleadings prepared for counsel after publication, and before the cause had been set down, and which became useless in consequence of a compromise before hearing, were disallowed on taxation as between solicitor and client. See, too. Re Pender, 19 Beav. 390. In Stephens v. Lord Newbm-ough, 11 Beav. 403, the costs of a copy of correspondence furnished to counsel as instructions for a bill and partially inserted therein, in addition to instructions for drawing the bill, were dis- allowed, though the taxation was as between solicitor and client. The costs of short-hand writer's notes of the evidence were disallowed in Smith V. EaH of Efingham, 10 Beav. 378 ; Flockton v. Peake, 12 W. R. 1023 ; but allowed in Clwrk v. Malpas, 31 Beav. 654 ; and see Re London and Birmmgham Railway Company, 6 W. R. 141 ; Malms v. Price, 1 Ph. 590. The costs of an interpreter employed to prepare an answer were allowed, but not his hotel and travelling expenses, Farl Shrewsbury v. Trappes, 10 W. R. 663. A reasonable sum was allowed to a solicitor for reading depositions taken abroad, Wentworth v. Ll(^d, 2 L. R. Bq. 607. The costs of taking depositions which became useless were disallowed, Ridley V. Sutton, 1 H. & C. 741 ; but see Duhe of Bea/afort v. Lord Aslibwrriham, 13 C. B. N. S. 698 ; and compare note ij), ante, and Seton, 840. 33. Any party who may be dissatisfied with the allow- ance or disallowance by the taxing master, in any bill of costs taxed by him, of the whole or any part of any item or items, may, at any time before the certificate is signed, deliver to the other party interested therein, and carry in before the taxing master, an objection in writing to such allowance or disallowance, specifying therein, by a list in a short and concise form, the items or item or parts or part thereof objected to, and may thereupon apply to the taxing master for a warrant to review the taxation in respect of the same (1st June, 1854 ; Ord. 12). 34. Upon the application for such warrant, or upon the return thereof," the taxing master shall re-consider and review his taxation upon such objection, and he may, if he shall think fit, receive further evidence in respect COSTS, CHARGES, AND EXPENSES. 593 thereof; and if so required by either party, he shall OrdurXL. state, either in his certificate of taxation or by reference and ExpenTs,' to such objection, the grounds and reasons of his decision generally. thereon, and any special facts or circumstances relating thereto (1st June, 1854 ; Ord. 13). 35. Any party who may be dissatisfied with the certi- Rule 35. ficate of the taxing-master as to any item or part of an tax^tkn on item which may have been objected to as aforesaid, may ^otio" or pe'i- apply to the judge by whom the order for taxation shall have been made ; and such application shall be made by a sum- mons at chambers for an order to review the taxation as to the same item or part pf an item, and such judge may thereupon make such order as to the judge shall seem just [l) ; but the certificate of the taxing-master shall be final and conclusive as to all matters which shall not have been objected to in manner aforesaid (1st June, 1854 ; Ord. 14) (m). (I) The words in italics are from Ord. 2nd Aug. 1864, -vrhicli abrogated rules Kule varied by 35 and 36 of this order, and re-enacted them as they now stand in the text. Ord II. Aug. As they stood before such alteration, applications to review taxation were 1864. made in court by motion or petition. (m) For the questions of taxation which are left to the taxing-master's dis- No reviewal of cretion, and as to which there can be therefore no reviewal, see notes to rule items left to 32, mpi-a. discretion, The common law courts have decided that a retaxation will in no case be gj. nmjg,. forty directed if the items alleged to be overcharged do not amount to forty shillings, shillings Newton v. Boodle, 4 C. B. 359 ; and on an application to review, the amount * must be stated, jRe Dearden, 9 Exch. 210 ; and the items alleged to have been improperly allowed or disallowed must be specified. Re Cotlgreve, 4 Beav. 87. The Court will not entertain an application to review matters referred to a or common law chancery taxing-master by a common law master, Me Lett, 10 W. K. 6; and items, see Se Sheffield Water Worl^ Act, 1 L. K. Exch. 64 ; Borrodaile v. Nelson, 14 C. B. 656; Seton, 838, 9. The Court, on application to review, will determine questions which involve What items the some principle, but not those relating to quantum only, Be CaiUn, 18 Beav. Court will con- 608 ; Friend v. SoUy, 10 Beav. 629 ; Re Congreve, 4 Beav. 87 ; Turner v. sider on a Turner, 7 W. E. 573 ; Re Hubbard, 23 Beav. 481 ; Att.-Gen. v. Lord Car- review of rington, 6 Beav. 454; Alsop v. Lord Oorford, 1 M. & K. 564. Thus, where taxation. there had been irregularity in the proceedings before the taxing-master, Benton Question of T. CricHett, 3 Madd. 496 ; or where costs had been wrongly omitted from principle, taxation (Greenwood v. Churchill, 14 Beav. 160), or the master refused to allow any costs in respect of a particular proceeding (Hemi/ng v. Leifchild, 9 W. E. 174), the taxation was ordered to be reviewed. Where the petitioner had not taken proper steps to satisfy the taxing- Costs of appli- master, he had to pay the costs of an application to review, though success- cation to re- ful, Sturge v. Dimadale, 9 Beav. 170. Where the taxation was only ordered view taxation, to be reviewed in part, no costs were given, Be Catlin, 18 Beav. 608. See, too, Be Whalley, 20 Beav. 578 ; Be Oolguhomi, ex pa/rte Ford, 1 Sm. & Giff. App. 1. Be London, Birmingham, and Bucks Railway Act^ 6 W, K, 141. Q 1} 594 Order XL. Costs, Charges, and Expenses, generally. Rule 36. Evidence o\ such motions or petitions. COSTS, CHARGES, AND EXPENSES. 36. Such application (n) shall be heard and determined upon the evidence which shall have been brought m before the taxing-master ; and' no further evidence shall be received upon the hearing thereof, unless the judge («) shall otherwise direct (1st June, 1854 ; Ord. 15). (n) See note (l) to last role. 87. Upon interlocutory applications, where the Court deems it proper to award costs to either party, the Court 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 shall be paid (8th May, 1845 ; Ord. 123) (o). When parties (o) The Court will not, it seems, act under this rule "unless the pai-ties are are poor. poor, and are anxious to put an end to the matter" (per V.-C. Wood in The London and Blachwall Railway Oompany v. The Bowrd of Works for the Limelumse District, 26 L.J. Ch. 170). Rule 37. Gross sum in lieu of taxed costs. Rule 38. Order for taxa^ tion when un- Costs recover- able by sub- poena. Subpoena for Rule 39. Taxation of costs where parties differ. 38. Where a bill or petition is dismissed with costs, or a motion is refused with costs, or any costs are by any general or special order ordered or decreed to be paid, the taxing-master in rotation, or if there has been any former taxation of costs in the same cause or matter, then the taxing-master before whom such former taxation has taken place, may tax s^ich costs without any order referring the same for taxation, unless the Court, upon the application of the party alleging himself to be aggrieved, prohibits the taxation of such costs ; and the costs to be certified by the taxing-master shall be re- coverable by subpoena (8th May, 1845 ; Ord. 124) {p). (p) See note (c), p. 613, aiite. Service out of the jurisdiction of a subpoena for costs is irregular (Hawkins V. Hall, 1 Beav. 78 ; 4 M. & 0. R. 280) ; but substituted service of the subpoena may be allowed, see note (d), p. 512, ante. 39. Where it is directed that aosts shall be taxed in case the parties differ about the same, the party claiming the costs shall bring the bill of costs into the taxing-master's office, and give notice of his having so done to the other party ; and at any time within eight days after such notice, such other party shall have liberty to inspect the same without fee, if he thinks fit. And at or COSTS, CHARGES, AND EXPENSES. 595 before the expiration of the eight days, or such further Ok^er XL. . . . . Costs, Charges, time as the taxing-master shall in his discretion allow, and Expenses, such other party shall either agree to pay the costs or generally. signify his dissent therefrom, and shall thereupon he at liberty to tender a sum of money for the costs. But where he makes no such tender, or where the party claim- ing the costs refuses to accept the sum so tendered, the taxing-master shall proceed to tax the costs. And where the taxed costs shall not exceed the sum tendered, the costs of the taxation shall be borne by the party claiming the costs (Ord. of 23rd Nov. 1831 ; amending 76th Ord. of 3rd April, 1828). 40. Where any costs are by any decree or order directed 'Rule 4o. to be taxed, and to be paid out of any money in court, of costs'taxed the taxing-master in his certificate of taxation shall state to be stated. the total amount of all such costs as taxed, without any direction for that purpose in such decree or order (22nd Aug. 1859 ; Ord. 13). OEDEE XLI. PeOCEEDINGS UNDEE the STATUTOEr JUEISDICTION OF THE COUET. 1. Proceedings mider the Trustee Belief Act, 10 cfe 11 Vict. c. 96. 1. Any trustee desiring to pay money to the account of, R"ie i- or transfer or deposit stock or securities into or in the trustee, name of, the Accountant-General, under the Stat. 10 & 11 Vict. c. 96, shall file an affidavit (a), entitled in the matter of the Act and in the matter of the trust, and set- ting forth, (1.) His own name and address. Article (l). (2.) The place where he is to be served with any Article (2). petition or any notice of any proceeding or order of the Court or of the judge in chambers, relating to the trust fund. « *iry ^^™- . ° •' diction of the the particular trust until the Court shall have made some Court, order in that behalf (7th May, 1853). 4. The trustee having made the payment, transfer or Rule 4. deposit, shall forthwith give notice thereof to the several ment^&c.''*^ persons named in his affidavit, as interested in or entitled to the fund (10th June, 1848 ; Ord. 3) (6). (b) Tliis notice is sometimes dispensed with, see note (m), p. 69, ante, 5. Such persons, or any of them, or the trustee (c). Rule 5. may apply by petition, or, in cases where the trust fund petition or does not exceed 300^. cash or 300Z. stock, by summons (d), ™mmona by . •' ^ ' whom made. as occasion may require, respecting the investment, pay- ment out, or distribution of the fund^ or of the dividends or interest thereof (10th June, 1848 ; Ord. 4).' (c) As to the proper persons to petition, see note (2), p. 72, ante. (d) See note (p), p. 72, and (as), p. 544, aaite. 6. The trustee shall be served with notice of any appli- Rule 6. cation made to the Court or to the judge in chambers, tgg_ respecting the fund or the dividends or interest thereof, by any person interested therein or entitled thereto (10th June, 1848 ; Ord. 5) (e). 7. The persons interested in or entitled to the fund Knie 7. shall be served with notice of any application made by tui que trust, the trustee to the Court or to the judge in chambers, respecting the fund in court or the interest or dividends thereof (lOth June, 1848 ; Ord. 6) (e). (e) See the oases on service under the Act, p. 73, ante. 8. No petition shall be set down to be heard, and no Rule 8. summons shall be sealed, until the petitioner or applicant ^*g°^ ""^ ^^' has first named in his petition or summons a place where he may be served with any petition or summons or notice of any proceeding or order of the Court relating to the trust fund (10th June, 1848 ; Ord. 7). 9. Petitions presented, summonses issued, and affidavits Rule 9. filed under the said Act, shall be entitled in the matter of ^^^^ °&r*'' 598 PROCEEDINGS UNDER TRXTSTEE RELIEF ACT. Order XLl. the Said Act (10 & 11 Vict. c. 96), and in the matter of the under the Sta- particular trust (10th June, 1848; Ord. 8). tutory Juris- diction of the . Court. II. Proceedings under the Statute 16 dt 17 Vict. c. 137, s. 28, relating to Charitable Trusts (/). Rule 10. 10. Any application to a judge in chambers under su^miiouar ^ " The Charitable Trusts Act, 1853/' section twenty-eight, Form of sum- shall be made by Summons, and such summons may be °'™^" in the form set out in Schedule (K.) No. 1 (g), or as near thereto as the nature of the case may permit (9th Dec. 1853). Charitable (/) This section of the Charitable Trusts Act, 1853, gives the equity judges trusts. m chambers power to appoint new trustees of, or grant other relief relating to Jurisdiction of *"? charity whose income exceeds SOI., but the former jurisdiction to appoint equity judges • new trustees, on petition, under the Trustee Act, is not taken away, though it is seldom used, see note (o),, p. 98, ante. of bankruptcy The district Courts of Bankruptcy and County Courts were given similar and county jurisdiction over charities with an income under SOI., and now, by the Chari- courts ; table Trusts Act, 1860 (23 & 24 Vict. c. 136), over charities with an income up to 501. of charity By the Act of 1860, sect. 2, a concurrent jurisdiction over charities is given commissioners, to the Charity Commissioners, as to charities with an income exceeding 502., on the application of the majority of the trustees, and as to charities with a less income, on the application of the Attorney-General, the trustees, or any person interested in the charity, or inhabiting the place where it is situate, unless they think the case from some difficulty of law or fact, Jitter for the adjudication of a court, see Seton, 789, note (o), p. 98, amte. As to applications for new trustees of charities, see note (o), p. 98, ante, {g) See Appendix, page xxi., post. Rule 11. 11- The fees paj'able on proceedings before a judge in ceeTings to°' chambers under the said Act shall be the same as the chambers. fees payable according to the Orders XXXVIII. and XXXIX., in respect of other proceedings commencing by summons, and shall also, in all other respects, be regulated by those Orders (9th Dec. 1853). Rule 12. 13. Where the judge directs that any matter com- Trsummon'f^ menced by summons under the said Act shall be heard in open court, the same fees shall be payable and the same costs shall be allowed, as would have been payable in respect of any other matter so heard (9th Dec. 1853). Rule 13. 13. No order made under the said Act by the judge in P^°^" chambers, shall be subject to appeal, where the gross annual income of the charity has not been declared by the Charity Commissioners for England and Wales to PROCEEDINGS UNDER CHARITABLE TRUSTS ACT. 599 exceed one hundred pounds, unless the judge by whom Order XLI. such order may have been made shall certify that such under'Sa- appeal ought to be permitted^ either absolutely or on such *?*°'"y J'"''a- terms as the judge may think fit to impose (9th Dec. '^"' Court *''* 1853). III. Proceedings under the Statute 19 ; answer was and where a defendant filed a written answer, and did not afterwards print it, iiot printed, he was held Uable to attachment until he did so, Bloxaome t. Chichester, 2 B. J. S. Hi. * 4. At any time after the expiration of such four days, *• ^•'p? *° ^^ the defendant, within forty-eight hours after the same delivery to shall have been demajided in writing, is to have ready for ^ *™*' ■ delivery to the plaintiff an official and certified printed copy of the answer. 5. Notwithstanding the preceding Orders, a defendant 5. Defendant is to be at liberty to swear to and file a printed answer, and file printed 6. On receiving from the plaintiff a demand for an answer, official and certified printed copy of the answer, the g^gg ^opy. defendant is to get a printed copy thereof examined by the Clerks of Eecords and Writs with the answer as filed, and to stamp such copy with a Chancery stamp for 5s., and the Clerks of Records and Writs, on finding that such copy is duly stamped and correct, are to certify thereon that the same is a correct copy, and to mark the same as an office copy. 7. Such copy is, on demand, to be delivered to the 7. DeUvery of plaintiff, who, on receipt thereof, is to pay to the defendant plaintiff, the amount of the stamp thereon, and at the rate of 4d. per folio for the same (d). (d) See Attorney-General v. Etheridge, 11 W. R. 927. 8. The plaintiff is also to be entitled to demand and 8. Delivery of receive from the defendant any additional number of copies. printed copies of his answer, not exceeding ten, on pay- ment for the same at the rate of one halfpenny per folio. 616 ORDER AS TO PRINTING OF ANSWERS, ETC. March 6, 1860. Printing of Answers, &c. 9. Copies for co-defendants. 10. Office copies of schedules. 11. Plaintiff's answer to defendant's interrogatories. 12. No inter- lineation. Alterations in print of answer. 13. No costs for written brief of answer. 14. Fees. 15. Orders, except Order I., not to apply to persons suing, &c., in formS. pauperis. 16. Written bills, pleas, &o., to be written on the same paper as bills. 9. After all the defendants who are required to answer shall have filed their answers, a co-defendant is to be entitled to demand and receive from any other defendant any number of printed copies of his answer, not exceed- ing six, on payment for the same at the rate of one half- penny per folio. 10. Office copies of Schedules to answers of accounts or documents are to be obtained according to the practice now existing for obtaining office copies of answers. 11. Where a plaintiff is required to answer interroga- tories, he is to file his answer thereto, and to get such answer printed, and to furnish printed copies thereof, in the same manner as a defendant is by these Orders required to do with respect to his answer. 12. The Clerks of Records and Writs are not to cer- tify or mark any printed copy of an answer which has any alteration or interlineation in writing (e). (c) In Lee v. Dawson, 1 J. & H. 37, however, the Record and Writ Clerks were ordered to certify a printed answer in which some slight errors had been coiTected in writing, and to alter the printed copy left with them, so as to cor- respond with the corrected copy and with the written copy previously certified by the Record and Writ Clerks. Compare note (d), p. 162, ante, as to print of bill. 13. No costs are to be allowed, either as between party and party or as between solicitor and client, for any written brief of an answer, unless the Court shall direct the allowance thereof. 14. Solicitors are to be entitled to charge the fees mentioned in the Schedule thereto. 15. These Orders are not to apply to answers filed by defendants or by plaintiffs defending or suing in- /ormd pauperis, except Order 1. 16. Written Bills, Pleas, Demurrers, Special Cases, Duplicates of Summonses, originating proceedings in Chambers, Records for trial. Interrogatories, Examina- tions, Traversing Notes, Replications, Supplemental Statements, Exceptions and Certificates to be filed in the office of the Clerks of Records and Writs, are to be written on paper of the same description and size as that on which Bills are printed (/). (/) See Ord. 12. 3, p. 409, cmte. ORDER AS TO PRINTING OF ANSWERS, ETC. 617 Affidavits to be filed in the office of the Clerks of March, 6, Records and Writs (g) are to be written on'foolscap paper printing of bookwise. Depositions of witnesses are to be written on Answers, &c. foolscap paper bookwise or briefwise as the Examiner may think fit. Provided nevertheless, that the Clerks of Records and Writs may receive and file affidavits and depositions written otherwise than as here directed, if, in their opinion, the circumstances of the case render such reception and filing desirable or necessary. (g) See Ord. I. 35, p. 378, ante. piling ^jga^. vits. 17. In these Orders the following words have the 17. interpre- several meanings hereby assigned to them, over and ***'™ orders. above their several ordinary meanings, unless there be something in the subject or context repugnant to such construction ; (that is to say) words importing the sin- gular number include the plural number, and words importing the plural number include the singular num- ber, and words importing the masculine gender include females. SCHEDULE. Lower Scale. Higher Scale. For instructions for brief in a suit by Bill on cause coming on for hearing, to be charged on ser- vice of notice of motion for a decree, or on service of subpoena to hear judgment . . .110 2 2 The solicitor of the party answer- ing interrogatories, for perusing the interrogatories . ..068 13 4 If exceeding 40 folios, at per folio 4 The solicitor of the party filing an answer, for his attendances on the Record and Writ Clerks, •with and for the written and printed copies of the ahswer, and for certifying . . .068 13 4 618 ORDER AS TO PRINTING OF ANSWERS, ETC. Lower Seale. Higher Scale. March 6, Printke of ^°^ examining and correcting the Answers, &c. proof, at per folio . ..002 002 For attending the printer with the answer to be printed . .068 068 For revising the print before swearing, or filing (^) at per folio 002 002 {g) See Attorney-General t. Etheridge, 11 W. R. 927. 20 Mar. 1860. ORDER, 20th Makch, 1860 (a). Application for Advice of j^g fQ Trustees obtaining the Advice of the Court under 22 (& 23 Vict. c. 35, s. 30 (a). Court. 1. Title and form of peti- tion, &c. 2. Statement on which summons is granted to be transmitted to registrar. 1. All Petitions, Summonses, Statements, Affidavits, and other written proceedings under the 30th section of the said Act shall be intituled, " In the matter of the said Act, and in the matter of the particular Trust Will or Administration ; " and every such Petition and State- ment shall be marked in manner directed by the 6th of the Consolidated General Orders, Rule 6 (&) ; and every such Petition or Statement shall state the facts concisely, and shall be divided into paragraphs, numbered con- secutively ; and every such summons shall, except as to its title, be in the form of the General Summons in Sche- dule (K.), No. 1 (c), subjoined to the Consolidated General Orders. (a) See for this Act, p. 282, ante. (b) See p. 396, om(e. (c) See Appendix, p. xxi. post. 2. At the time when any such summons is sealed, the statement upon which the same is grounded shall be left at the Chambers of the Judge, and shall, on the con- clusion of the proceeding, be transmitted to the Registrar by the Chief Clerk, with the minutes of the opinion, advice, or direction given by the Judge ; and the Regis- trar shall cause such statemeht to be transmitted t6 the Report Office, to be there filed. ORDER UNDER 22 & 23 VICT. c. 35, s. 30. 619 3. Every such Petition or Summons shall be served March 20, seven clear days before the hearing thereof, unless the Application for person served shall consent to a shorter time. Advice of 4. The opinion, advice, or direction of the Judge shall 7-^ — be passed and entered, and remain as of record, in the summmia or same manner as any Order made by the Court or Judge, petition. and the same shall be termed " a Judicial Opinion," or j^g^ of^udge, " Judicial Advice," or " Judicial Direction," as the case l">^ passed . and entered. may be. 5. The fees of Court, and the fees and allowances to 5. Fees. Solicitors, on proceedings under the SOth section of the said Act, shall be the same as are now payable under the Consolidated General Orders XXXVIII. and XXXIX., and by the practice of the Court for business of a similar nature. OEDER, 1st Feb., 1861. l peb. 1861. Investments. As TO Investments of Sums in Court (a). 1. Cash under the control of the Court may be in- Rule 1. vested (6) in Bank Stock (c). East India Stock (d), Ex- ^^^7„*X°*the chequer Bills, and %l. 10s. per Cent. Annuities, and upon control of the mortgage of freehold and copyhold estates respectively in England and Wales ; as well as in Consolidated 3J. per Cent. Annuities, Reduced 3Z. per Cent. Annuities, and New 3Z. per Cent. Annuities. (o) This order] is made in pursnance of 23 & 24 Tict. c. 38, s. 10, p. 289, a/nte. (b) For the principles on which the Gonrt acts in authorizing changes of Changin" in- investments, see note {j), to 23 & 24 Tict. c. 38, s. 10, amte, p. 290; vestments. And for the meaning of cash under the control of the Court, see same n ^ under (c) As to Bank Stock, see Order of Aug. 16, 1861, p. 630, post. ^'g™' "' (d) The new East India Loan is within these Orders. See note (t), p. 285, „ , ' , amie. ^^"'^ ^^°^^- New East India Loan. 3. Every petition for the purpose of the conversion of Rule 2. SeiTice 0" petition. any 3Z. per Cent. Bank Annuities into any other of the S^™''^ °^ stocks, funds, or securities hereinbefore mentioned, shall 620 OEDEE AS TO INVESTMENTS. I Feb. 1861. Investments, be served upon the trastees, if any, of such Bank Si. per Cent. Annuities, and upon such other persons, if any, as the Court shall think fit (e). (e) See p. 290, cmte. 5 Feb. 1861. Evidence. Rule 1. Variation of course pre- scribed by 15 & 16 Vict. Eule 2. Abrogation of certain rules in the Consoli- dated Orders. Kule 3. Order to take evidence viv9, voce at the hearing. ORDEE, 5th Feb. 1861. On Evidence (a). 1. The course of proceeding prescribed by the statute 15 & 16 Vict. c. 86, with regard to the mode of examining witnesses, and taking evidence in the Court of Chancery, and the practice of the Court relating thereto, shall be and hereby are altered in the manner and to the extent prescribed by the following rules, but not further or otherwise. (a) This order was made in pursuance of 15 & 16 Vict. c. 86, ». 63, p. 221, ante ; and 23 & 24 Vict. c. 129, d. 8, p. 293, ante. 2. The rules numbered respectively 3 and 4 of the 18th of the Consolidated General Orders, and the rules numbered respectively 3, 7, 9, and 13 of the 19th of the same Orders, are hereby abrogated (&). (i) See pp. 464—7, oMe. 3. In any cause in which issue is joined (c), the plaintiff or any defendant may, at any time within fourteen days after issue joined, apply to the judge in chambers, by summons to be served on the opposite party, for an order that the evidence in chief as to any facts or issues (such facts and issues to be distinctly and concisely specified in the summons) may be taken vivd voce at the hearing of the cause (d), and the judge may make an order that the evidence in chief as to such facts and issues or any of them, shall be taken vivd voce at the hearing accord- ingly ; and the facts and issues as to which any such order shall direct that the evidence in chief shall be taken vivd voce at the hearing, shall be distinctly and concisely specified in such order ; but in case the judge ORDER AS TO EVIDENCE. 621 shall be satisfied that such application is unreasonable, 5 Feb. I86I. or made for the purpose of delay, oppression, or vexation, '- — he may refuse to make any such order ; and where any such order shall have been made, the examination in chief, as well as the cross-examination and re-examina- tion, shall be taken before the Court at the hearing as to the facts and issues specified in such order. And no affidavit or evidence taken before an examiner shall be admissible at the hearing of any such cause in respect of any fact or issue which shall be included in any such order as aforesaid. (c) These mles, except part of r. 19 (see note (s), p. 626, post), do not apply to motions for decree, the practice as to which is still governed by 15 & 16 Tict. c. 86, ss. 16, 40, see note (A), p. 170. (d ) But an order for trial of issues before a jury cannot be obtained either Rule does not in chambers or by interlocutory application, until the cause is at least set down apply to trial to be heard. See note (a), p. 450, ante. before jury: 4. Save as aforesaid, and save in the case mentioned „ Rule 4. . Evidence as to in the 11th of these rules, it shall not be competent to facts not in- the plaintiff or any defendant to require, by notice or "u^h^orderT^ otherwise, that the evidence in chief to be used at the hearing of a cause shall be taken orally. But except as to facts or issues included in any order directing evidence in chief to be taken viva, voce at the hearing under the 3rd of these rules, each party in a cause in which issue is joined shall be at Kberty to verify his case either wholly or partially by affidavit, or whoUy or partially by the oral examination of witnesses ex parte before one of the ex- aminers of the Court, or before a special examiner, in the manner prescribed by the 6th of these rules (e). (e) See note («), p. 184, ante. 5. The evidence in chief on both sides in any cause in Rule 5. which issue is joined, to be used at the hearing thereof,. ^^"^'^"^J'^,, ^^ in respect of facts and issues not included in any order used at the - for taking evidence in chief vivd voce at the hearing ^'"®" under the 3rd of these rules shall, whether taken by affidavit or before an examiner (and including the cross- examination and re-examination of any witness or other person under the 10th and 11th of these rules) be closed 622 OEDEE AS TO EVIDENCE. 6 Feb. 1861. within eight weeks after issue joined, unless the time he — enlarged by special order (/). Time enlarged. (/) As to the time for closing evidence,' and as to cases where the time will be enlarged, see notes on p. 191, ante. Rule 6. 6. Except in the cases mentioned in the 10th, 11th, Alteration m ■, , n ■• ■■ 11 •• iii. the mode of 16th, and 17th of these rules, all examinations taken by taking evidence ^j^g examiners of the court, or by any special examiner, before an . « . examiner. for the purpose of being used at the hearing of a cause vn which issue is joined shall be taken ex parte (g), and no person shall have a right to be present at the taking of any such examination except the party producing the witness, his counsel, solicitor, and agents ; and every examination so taken ex parte shall be deemed to be an affidavit ih); and the examiner, before transmitting the same to the office of the Clerks of Eecords and Writs to be filed, shall mark the same as taken ex parte, and the Clerks of Eecords and Writs shall deal with the same as an affidavit (i). Notice of ex (^g^ When a witness refuses to make an affidavit, and a party is desirous of parte examina- examining him ex parte under this rule, he must give notice under rule 22, tion- post, see Ford v. Tennamt, 11 W. B. 275. Discretion of (h) Nevertheless the examiner has a discretion, and need not take down the examiners. answers to improper questions, see Sv/rr v. Walrmley, cited note (o), p. 188, ante. (i) This rule puts an end to the publicity of oral evidence (see note"(»), p. 184, ante) in causes where issue is joined ; but in causes where notice of motion for decree is given, the evidence is stiU taken by afidavits, see note {h), p. 170, am,ie. Rule 7. 7. Except in the cases mentioned in the 10th, 11th, tion before the 16th, and 17th of these rules, no cross-examination of any Court. deponent or witness or of any party, to be used at the hearing of a cause in which issue is joined, shall be taken otherwise than before the Court at the hearing (k). (Jc) See note (u), p. 185, ante. Cross-examina- The cross-examination in open court is not allowed on interlocutory applica- tion in open tious in causes where issue is joined, but only at the hearing of the cause, court at hear- Bodger v. Bodger, 11 W. K. 80. iMg of cause Affidavits to be used on motion for decree are open to cross-examination only. before the examiner as before, see 15 & 16 Vict. c. 86, s. 40, p. 193, ante, and note (A), p. 170, ante. As to the admission of evidence for what it is worth, cross-examination being Where no cross- difficult or impossible, see note (w), p. 194, ante. examination. A disputed will of real estate may now be proved vivd voce at the hearing, Disputed will ow™g to the liberty of cross-examination under this rule, and under 15 & 16 T>invpd ^'"''^- "• 8^> «• 3^> P- 192, ante; Chichester v. Chichester, 24 Beav. 289 : and P ""^^ ■ see Daniell, 793 ; Seton, 1118. ORDER AS TO EVIDENCE. 623 8. Where any such order as is mentioned in the Srd of 5 Feb. I86I. these rules has been made, the Clerks of Eecords and " ™°^' "Writs, upon giving a certificate that the cause is ^^eady 3^^^?"'^^^^^ for hearing, shall make, in or upon the certificate, an and hearing entry showing that an order for taking evidence in chief i^ tobetakeT vivd voce at the hearing has been made. And the regis- ""^ '^'"'^■ trars in setting down the cause for hearing in the Cause- book of the judge to whose court the same is attached, shall mark the same so as to indicate that the taking of evidence in chief m^i;? voce at the hearing has been ordered; and the same shall not come on to be heard without the special direction of the Court, which may be obtained upon an application to the Court, by either party upon notice, to have a day fixed for the hearing. 9. Where any such order, as mentioned in the 3rd of Ku'e 9- these rules has been made, each party shall be at liberty peiiing attend- to sue out, at the Record and Writ Clerks' Office, subvoenas ^'^ °^ "^'■^ neHses. ad testificandum and subpoenas duces tecum to compel the attendance at the hearing of witnesses whom he may desire to produce on any issue or matter of fact included in such order. Such subpoenas may be according to the forms of subpoenas now in use in this court, with such variations as the circumstances of the case shall require (J). (t) See form of subpcena in Appendix, p. vii., post ; compare note (o), p. 192, ante, as to a subpoena being probably unnecessary where oral examination is applied for at the hearing. 10. Notwithstanding any of the preceding rules, if, at ^^^« lo. . . • ■ 7 ,, ,■ 1 n 1 • ■ Agreement to any time after issu£ joined, the parties shall, by writing take evidence signed by them or their respective solicitors, and filed at ''°'*"' *^® "^^ the office of the Clerks of Records and Writs, agree that the oral examination in chief and cross-examination of any witness or witnesses (whether a party or parties, or not), or the cross-examination of any person or persons who shall have made an affidavit or affidavits, or who shall have been examined ex parte before an examiner, shall be taken before one of the examiners of the court, or a special examiner, in manner provided by the Stat. 15 & 16 Vict. c. 86 {m), such examination may be taken accordingly : 624 ORCER- AS ,T0 EVIDENCE. Rule 11. Examination of witnesses who are old, infirm, &c. 5 Feb. 1S61. and in case, by virtue of any such agreement, any witness '■ — or person shall be examined in chief before the examiner or special examiner, the cross-examination and re-exami- nation of such witness or person shall be taken before the same examiner or special examiner, or his successor in office ; and the cross-examination of every witness so ex- amined in chief shall' immediately follow his examination in chief, and the re.-examination of every witness or person so cross-examiiied shall immediately follow his cross- examination; (m) See sects. 31 — 40 of the Act, pp. 184 — 193, ante. 11. Notwithstanding any of these rules, the Court, or the judge in chambers, may direct that the oral examina- tion and cross-examination of any witness (whether a party or not), or the cross-examination of any person who has been examined ex parte before an examiner, or made an affidavit, shall be taken before an examiner of the court or a special examiner (re), in the manner prescribed by the statute 15 & 16 Vict. c. 86, as if these rules had not been made, in case it shall appear to the judge that owing to the age, infirmity, or absence out of the jurisdiction of such witness or person, or for any other cause which to the judge shall appear sufficient, it is expedient that such direction should be given. Such direction may be ob- tained on application to the Court or the judge in chambers on notice. I {n) See notes pp. 185 — 6, cmle. Rule 12. 13. In the case of the examination or cross-examination, CT^ntrTn"^ uudcr the last preceding rule, of any person in England such oases. or Wales, the party requiring such examination or cross- examination may apply to the Court or the judge in chambers for an order that one of the examiners of the Court may attend, for the purpose of such examination or cross-examination, at any place or places in England or "Wales to be named in such order (o) . (o) See note (ic), p. 185, ante. Rule 13. 13. The examiner shall, in respect of expenses incident ORDER AS TO EVIDENCE 625 to the performance of his duty under such order as men- 5 Feb. 1861. tioned in the last preceding rule, he entitled to receive. on the production to him of such order, such sums of examiner." money as are mentioned in the schedule hereto (^). Such sums shall be paid to him by the party obtaining such order ; and, subject to any direction of the Court, or of the judge in chambers to the contrary, shall be costs in the cause. (p) Seep. 629, post. 14. Upon any appeal, re-hearing by way of appeal, or ^^}^ l*- further proceedings, the judge's notes of the vivd voce be evidence on evidence shall primd ^acie be deemed to be a sufficient »??«*'». note thereof. 15. Evidence taken in a cause subsequently to the _R«le 15. hearing (q), shall continue to be taken according to the t^e hearing, provisions of the statute 15 & 16 Vict. c. 80, and 15 & 16 Vict. c. 86, subject, however, to any special directions which may be given in any particular case. And all evi- dence taken at the hearing of any cause may be used in iany subsequent proceeding in the same cause. (2) See note (0) to 15 & 16 Vict. u. 80, b. 30, p. 161, ante. 16. In suits to perpetuate testimony, evidence shall con- ^^^e 16. tinue to be taken according to the now existing practice (r). suits to pei- (r) See note (h), p. 409, ante. ^^^_ ^ 17. The evidence to be used at the hearing of causes in Rule 17. which issue shall have been joined before the first day of pe''nding°pro- Easter Term, 1861, shall be taken according to the now oeedings. existing practice. 18. No affidavit filed on or after the first day of Easter Rule 18. Term, 1861, shall be used as evidence on any proceeding JJ'^°™^^^'^^ in any cause or matter unless there be written at the foot at the foot of thereof, at the time of filing the same, a memorandum ''" ^ °'^''" stating by whom the same is filed, which memorandum shall be in the form following, or as near thereto as cir- cumstances will admit (that is to say): "This affidavit is filed on the part and behalf of the plaintifi's," (or " of the defendants M. & N.") (s). (s) As to form of affidavits, see note (J), p. 464, ante. 626 OEDEB AS TO EVIDENCE. ^v^^A ^^^^' ^^' ^^^^^^ ^^ '^''"'V caMse or matter a party has filed an '- — affidavit (t), or where in any cause in which issue has been Notioes^to pro- joined, a party has examined a witness ex parte before duee witness the examiner under the 6th of these rules, any opposite examinatbn. party desiring to cross-examine the deponent or witness, shall not be obliged to procure the attendance of such deponent or witness for cross-examination either before the examiner or before the Court (m), but any such oppo- site party may serve upon the party by whom such affidavit has been filed or witness examined, or his solicitor, a notice in writing requiring the production of such depo- nent or witness for cross-examination before the exam,iner{v) or before the Court (w), as the case may he, such notice to be served within such time as hereinafter mentioned, or within such time as in any case the Court or judge in chambers may specially appoint (that is to say) : Where such cross-examination is to be taken before the Court at the hearing of a cause in which issue is joined, then at any time before the expiration of fourteen days (a;) next after the closing -of the evidence; and wjiere such cross- examination is to be taken before the examiner in a cause in which a notice of motion for a decree or decretal order has been served, and to be used at the hearing of such motion, then at any time before the expiration of fourteen days next after the end of the time allowed for the plaintiff to file affidavits in reply {y); and in every other case within fourteen days next after the filing of the affidavit or examination upon which such deponent or witness is to be cross-examined {z). And unless such deponent or wit- ness be produced accordingly, such affidavit or examination shall not be used as evidence unless by the special leave of the Court (a). The party producing such deponent or wit- ness shall be entitled to demand the expenses thereof in the first instance from the party requiring such production, but such expenses shall ultimately be borne as the Court shall direct (6). Cross-exam'- (0 The portion of tie rule in italics relates to causes where notice of motion nation on for decree is given, and to petitions, &o., in which cases the cross-examination motion for j^ before an examiner. The remainder of the rule relates to causes where issue decree. '^ joined, and the cross-examination is vivd voce at the hearing. ORDER AS TO EVIDENCE. 627 («) Before this rule, the obligation lay on the cross-examining party (Win- 5 Feb. 1861. throp V. Eld^rton, 1 W. R. 318; Spicer v. Dawson, 22 Beav. 282), in all cases ; Evidence, and it still lies on him in oases where this order does not apply ; e. g. where an affidavit was by consent withdrawn at the hearing, and was afterwards used Production of before the chief clerk, Jennerv. Morris, 10 W. R. 640. See note (to), p. 152, witness. ante, (v) As to cross-examination before the examiner, see ss. 31 — 34 of the Examiner Chancery Improvement Act, 1862, pp. 184 — 9, ante. of court And as to applying for a special examiner under this rule, see Edwards y. ^, „„„„:„i Spaight, 2 J. & H. 617, cited in p. 186, ante. ^'^ sveoM. (io) As to the cross-examination being before the Court in causes where issue is joined, see sect. 7, p. 622, ante. (x) The plaintiff may apply for oral cross-examination of a witness at the Application for hearing, under sect. 39 of the Chancery Improvement Act, 1852 (p. 192, amte), cross-examina- though the fourteen days dave elapsed, Cox y. Stephens, 11 W. R. 929 ; see tlon after four- Singer Sewing Machine Company v. Wilson, 11 Jur. N. S. 58. In Mughes teen days from T. Spittal, 13 W. R. 251, it appears that cross-examination was allowed date of deposi- though notice was not given untjj after the fowrteen days had expired. And see tion. Bedwell v. Prudence, 1 Dr. &. S. 221 (decided under the old order, by which a month instead of fourteen days was fixed) ; but in BowdUlon v. Baddeley, 26 Bear. 255, cross-examinadon on an affidavit was not allowed, the time having elapsed. {y) SeeOrd. XXXIII. 6, p. 533, amte, and note (h), p. 170, ante, as to cross- examination in causes where notice of motion for decree is given. No time has been limited within which the cross-examination shall take Within what place, but it must be within reasonable time, see Hughes v. Spittal, 13 W. R. time cross- 251, where two months was named as the time. examination (z) When the notice to cross-examine on an affidavit was given within the should follow fourteen days, but the petition, in support of which the affidavit was filed had notice, come on for hearing, V. -C. Wood allowed the withdrawal of the affidavit in- jjoti^e jq cross- stead of the cross-examination. Se SyJces, 2 J. & H. 415, 417 ; but see note -_.—;„. (■a), p. 194, ante. (a) As to admitting affidavits, on which no cross-examination has taken place, for what they are worth, see note {w), p. 194, ante. (6) As to whether a party who is ordered to pay the costs of a suit is with- Costs of cross- out further order bound to pay costs of a cross-examination under this rule, examination, see Himt v. Pullen, 34 Beav. 301. costs of suit. 20. AVLere any such notice as is mentioned in the 19th ^"'^ ^o. Mode of com- of these rules is given, the party to whom it is given shall polling attend- ance for cross examination. be entitled to compel the attendance of the deponent or »■":« f™ cross- witness for cross-examination before the Court at the hearing of the cause, or before the examiner, as the case may be, in the same way as he might compel the attend- ance of a witness to be examined, if an order had been made for taking evidence vivd voce at the hearing under the 3rd of these rules. 21. Where any such notice as mentioned in the 19th Ej^ie 21. „, ,.. /.,, -, • n -I Hearing, where of these rules is given tor the production 01 any deponent notice of oross- or witness, for cross-examination at the hearing of a cause «?a'™>°»*''°'' ' . ° given. in which issue is joined, either party may, upon notice, apply to the Court or to the judge in chambers, to fix a day for the hearing of the cause. s 3 2 628 ORDEK AS TO EVIDENCE. 5 Feb. 1861. Evidence. cross-exami- nation, 22. Any party in any cause or matter requiring the attendance of any witness, whether a party or not, before Notice of ^^^ Court, or before one of the examiners of the court, ^r'"**!?-" *" °^ * special examiner, for the purpose of being examined, or of being cross-examined, shall give to the opposite party forty-eight hours' notice (c), at least, of his inten- tion to examine or cross-examine such witness ; such notice to contain the name and description of the witness, and the time and place of such examination or cross- examination, unless the Court shall in any case think fit to dispense with such notice. Beasonable notice of inten- tion to exa- mine. Rule 23. Eacli state- ment in an affidavit to show means of knowledge. Rule 24. Consents as to mode of procedure on behalf of per- sons under disability. Rule 25. (c) These words apply to the opposite party ; not to the witness, who is entitled to reasonable notice according to circumstances, see North Wfieal Exmouth Mining Company, 31 Bear. 628. 23. Each statement in an aflSdavit, which is to be used as evidence at the hearing of a cause or matter, or of a motion for a decree or other motion, or on any other pro- ceeding before the Court, or before the judge in chambers," shall show the means of knowledge of the person making such statement {d). (d) See form ofafBdavit, note (5), p. 464, ante. The words "I am informed," where there is no personal knowledge, are the same as "I believe," Woodhatcli v. Fredand, 11 W. R. 398. 24. In all causes and matters to which any infant, married woman, person of unsound mind, whether found so by inquisition or not, or person under any other dis- ability, is a party, any consent as to the mode of taking evidence, or of any other procedure, shall, if given with the sanction of the Court or of the judge in chambers, by the next friend, guardian, committee, or other person acting on behalf of the person under such disability, have the same force and effect as if such party were under no disability, and had given such consent. Provided that no such consent by any committee of a lunatic shall be valid as between him and the lunatic unless given with the sanction of the Lord Chancellor or Lords Justices sittins m lunacy. 25. These rules shall come into operation on the first ORDER AS TO EVIDENCE. 629 day of Easter Term, 1861 ; and the general interpretation 6 Feb, 1861. clause in the Consolidated General Orders shall be Evidence. deemed to extend to the rules of this Order. ^™^ °^ °p'"*- tion and eon- struction. SCHEDULE. [Referred to in Rule XIII.] Expenses to be allowed to an Examiner of the Court when acting under any such Order as mentioned in the 12th of the above rules. £ s. d. For every day in which he is necessarily, and without any default of his own, detained in the performance of such duty, for his ex- penses, the sum of . . . .110 For every mile he travels from the Examiners' Office to the place of examination, and from one of the places of examination or cross- examination (if more than one) to another of them, and from the place where he last acts in such examination or cross-examination to the Examiners' Office, the sum of . .016 ORDER 13th July, 1861, 13 July, 1861 Pro oonfesso. AS TO READING BILLS TAKEN PRO CONFESSO. That in all cases in which a Bill of Complaint shall Bills taken have been or shall be ordered to be taken pro confesso may be read against any defendant or defendants, such Bill may be ^""^ printed read at the hearing from a printed copy thereof, stamped with a proper stamp, by one of the Clerks of Records and "Writs, indicating the filing of such Bill of Complaint, and the date of the filing thereof; and, where such BiU shall have been amended, the same may be read from a printed copy thereof, or from a copy thereof partly printed and partly written, stamped with the proper stamp, by one of the Clerks of Records and Writs, indicating the amendment 630 ORDERS AS TO BILLS TAKEN PRO CONFESSO. 13 July, 1861. of such Bill and the date thereof, without the attendance Ffo confsBSO '- of the Clerk of Eecords and Writs, as hath hitherto been the practice. 16 Aug, 1861. Bank Stock. The wliole half-yearly dividend on baink stock to he drawn for under future orders. OEDER, 16th August, 1861, AS TO DRAWING DIYIDENDS ON BANK STOCK (a). I do Order that the Accountant-General of this Court, in acting under Orders hereafter to be made for the pay- ment of Dividends on Bank Stock standing in his name, do, unless the particular Order shall otherwise provide, draw for the whole half-yearly dividend which may from time to time be declared on such stock ; and that the said Accountant-General, in acting under Orders heretofore made for the payment of such dividends, and which Orders have been included in or may hereafter be added to any Schedule to any General Order in that behalf already made, do draw for the whole of such half-yearly dividend; but that the said Accountant-General, in acting under any Orders heretofore made and not included in or directed to be added to any such Schedule, do until further order draw for three -and-a-half per cent, only of the half-yearly dividend declared on such bank stock. (Signed) Westbury, C. (a) Bank stock Is now one of the recognised investmentB of the Court, note (h), p. 290, amte. 1 Jan. 1862. Deposit on appointment with Examiner. Party obtain- ing appoint- ment for examination of witness before examiner of ORDEE, 1st January, 1862, AS TO DEPOSIT BY PARTY OBTAINING APPOINTMENT FOR ORAL EXAMINATION OP WITNESSES BEFORE AN EXAMINER OP THE COURT (fl.). Every party in a cause or matter who is desirous of having an oral examination of a witness or witnesses before one of the examiners of the Court, shall, at the time when he obtains an appointment for the purpose of OHDER AS TO DEPOSIT FOK DEAL EXAMINATION. 631 having such examination taken, deposit with the clerk of 1 Ja^i- 1862. the examiner the sum of three pounds (&), and in case appointment such party shall fail to attend and duly proceed with the ^^'th Examiner. examination of his witness or witnesses at the time ap- tte court, to pointed for the exajnination, unless prevented by death, with eierk of illness, or unavoidable accident, the examiner shaU direct examiner. the sum so deposited to be paid to the opposite party attending such appointment ; and where the appointment shall have been duly attended, or where the examination cannot be proceeded with in consequence of death, illness, ?**'"^^ °^ or unavoidable accident, the sum so deposited shall be returned to the party who deposited the same (c) ; but in those cases where there is no opposite party, or the opposite party shall fail to attend such appointment, then the respective clerks of the examiners shall once in every six months pay into the Bank of England, into the name of the Accountant- General of this Court, to the credit of the Suitors' Fee Fund Account, the sum so deposited and remaining in the hands of such clerks respectively, in consequence of the appointments not having been duly attended, the amount of the sums so deposited and paid by such clerks as aforesaid to be verified by affidavit. This order shall come into operation on the first day of February, 1863. (a) This order was made in pursnance of the Chancery Improvement Act, 1862, s. 63, p. 224, ante. (6) The rale does not apply to persons suing in formd, paupei-is, Sheets v. Ewrst, 1 N. K. 50. " T).j,.g:i. „},„,. (c) Where the first appointment failed owing to a misunderstanding, the Zl. ^eposii ■was returned on a new appointment and a new deposit being made, Perhes v. "^ j*^jg^ ' Stodhart, 11 W. B. 586. ^ OEDEE, 1st FeBRUAHY, 1863, l Feb. 1862. Petitions of PETITIONS OF EIGHT. 'Rig^i. 1. Upon Her Majesty's fiat (a) being obtained to any Rule 1. petition of right presented in pursuance of the said Act righto be and intituled in the Court of Chancery, such petition, filed at Record with the fiat thereon, together with a printed copy of such office. 632 ORDER AS TO PETITIONS OF EIGHT. 1 ^eb.^1862. petition and fiat (if the petition is in writing), shall be ^E^ght. ° filed at the office of the Clerks of Eecords and Writs. Petition of ^"^ -^^^ *" * Petition of "gW, see Mitf. PI. 33. "When the Crown is ira ii»Iit Affpi-tinff possession, or any title is vested in it which a suit seeks to divest or affect, or ,,?,.„ ^ its rights are the immediate and sole object of the suit, the application must be j,..f^ ^ to the Queen by petition of right," ibid. This order was made in pursuance i, .. , of the Petition of Eight Act, 1860 (23 & 2i Vict. c. 34), as to which Act see Petition of ggtoj,^ 1112 ; Daniell, 130. TSfin ^''^ ^** °^ *''® *^"^™ '^ obtained at the Home Office, and the petition 1860. ^jjjy ]jg prggented to any superior court of law or equity in which the subject matter, or any material part thereof, would have been cognizable in a suit between subject and subject. Rule 2. 3. Every such petition, or the printed copy thereof, so fame'o^fSt Sled shall be marked with the words " Lord Chancellor" ' or " Master of the Rolls," and if with the words " Lord Chancellor," then also with the title of the Vice- Chancellor before whom it is intended to be prosecuted. Rule 3. 3. Every copy of a petition of right left at the office of rtamptd*°ot,ies ^^^ Solicitor of the Treasury in pursuance of the said Act, for service. and every copy of a petition of right served upon or left at the last, or usual, or last known place of abode of any person under the provisions of that Act shall be a printed copy, sealed with the seal of the office of the Clerks of Eecords and Writs, in the same manner as copies of bills are now sealed (6). And the leaving or serving of any copy not printed or not sealed with the office seal shall be of no effect for any of the purposes of the said Act. (6) As to the seal or stamp of the clerks of records and writs, see 15 & 16 Vict. u. 86, b. 3, p. 162, ante. Rule 4. • 4. A suppliant in any petition ■ under the said Act for cMmina- desiring to file interrogatories for the examination of any tion of respon- person or persons who may be required to plead or answer thereto (other than Her Majesty's Attorney- General) (c), shall file such interrogatories at the same time as such petition. And a copy, examined and marked by the Clerks of Records and Writs, of the interrogatories which any respondent is required to answer shall be served upon such respondent, together with the copy of the petition. (c) As to answers by the Attorney-General, see 23 & 24 Vict, e, 34, ss. 3, 4, 6, 7. Rule 5. 5. Any person wlio might be admitted to prosecute a Right to peti- .^ ■ ,, . ^ • ,. ^ . ,, , -^^ . , tion in formi suit m this court 111 jormd pauperis [a) may be admitted to pauperis. ORDER AS TO PETITIONS OF RIGHT. 633 prosecute in formS, pauperis a petition of right intituled in l ^«}>: 1882. this court. And any person who might, if a defendant to ^Right! " an ordinary suit in this court, have heen admitted to " defend in forma pauperis may be admitted to make his defence in forma pauperis to any petition of right insti- tuted in this court which he may be required to plead or answer to. But no person shall be admitted to prosecute any petition in forma pauperis without a certificate of counsel that he conceives the case to be proper for relief in this court. (d) See note to Ord. VII. 8, p. 403, ante. 6. The same orders and rules shall apply with regard Enle 6. to any person admitted to sue or defend in forma pauperis p^tionin*gin under these Orders as are applicable with regard to f"'™^ p^'^- paupers in suits between subject and subject. ^^™' 7. So far as the same may be applicable, and except in Rule 7. so far as may be inconsistent with the said Act and with reference'to the preceding Orders, the General Orders from time to *"'*f ^^^^^ ,• ■ r J ,. ... . apply to pro- time m force as to proceedmgs m suits in this court, and ceedings by the practice and course of proceeding in this court in ^1'°° °^ reference to such suits, shall be applicable, and apply and extend to proceedings in this court in petitions under the said Act, which are, for the purposes of this Order, to be considered as bills (e). (e) The petition being left at the office of the solicitor to the Treasmy (r. 3), Rule 8. may be pleaded or demurred to, or answered, for which purpose further time Defence to peti- may be allowed. In default it may be taken pro confesso, 23 & 24 Vict. c. 34, tion of right. s. 8 ; a decree may be made and costs given as in a suit instituted by bill, ibid. ss. 9—14. See Tobin v. The Queen, 11 W. R. 915. Notwithstanding the Act and these rules, any supplicant may proceed accord- ing to the practice before the Act (s. 18) ; under which the Court did not at the hearing of the petition enter into the merits, but directed a commission to inquire whether a suit should be instituted. See Mitf. Flead. 33. Sanlell, 131—3. 8. The duties which under the said Act and the said Rule 8. Orders may be required to be performed by officers of J'f"*^'^^^.fJ''' this court, shall be performed by the officers respectively, the court, who perform duties of a similar nature in suits in this court between subject and subject. And the fees and allowances payable to all officers and solicitors of this court, in respect of matters under the said Act, shall be 634 ORDER AS TO PETITIONS OF RIGHT. 1 Feb. 1862. Petitions of Eight. such fees and allowances as, by the practice of the court and the General Orders from time to time in force, they are entitled to take and charge for similar proceedings in cases between subject and subject. Westbuey, C. John Eomiliy, M. R. RiCHD. T. KiNDEESLET, V. C. 16 May, 1862. Printing of afBdavits. Rule 1. Affidavits to be printed. Form of affi- davits. Rule 2. Manner of printing. ORDER, 16th Mat, 1862, PRINTING OP AFFIDAVITS («). 1, All affidavits and depositions which are to be used on the hearing of any cause in which issue shall be joined, or a notice of motion for a decree served after the eighteenth day of June, one thousand eight hundred and sixty-two, shall be printed except as hereinafter men- tioned. (a) This order was made in pursuance of the powers given by 15 & 16 Viot. c. 86, s. 63 (p. 224, cmte). As to form of affidavits generally, see note (6), p. 461, ante. 2. Such affidavits and depositions shall be printed under the direction and superintendence of the Clerks of Records and Writs, upon paper of such kind and dimen- sions and with such type as are prescribed by the General Order for the printing of bills (5), and in all other respects in such form and manner as the Clerks of Records and Writs shall deem to be most convenient, and the expense ■ of such printing shall be paid out of the same fund and in like manner as the expense of making office copies is now paid (c). (b) As to the printing of bills, see Ord. IX. 3, p. 409, ante. (c) As to expense of office copies, see Ord. XZZVI. 1, p. 662, ante ; and Regulations as to Fees, Appendix, p. zliz. post. Rule 3. 3. Solicitors and parties on filing affidavits hereby at R^cord\ud* required to be printed, are to leave with the Clerks of Writ Office. Records and Writs a fair copy of each affidavit filed, such copy to be written on draft paper, on one side only, and ORDEK AS TO PRINTING OF AFFIDAVITS. 635 to be certified by the solicitor or party to be a correct copy 16 May. 1862. of the affidavit filed. affidavfts! 4. In a cause in which issue is joined, the Clerks of r^JiT^ Eecords and Writs shall, upon the application of any Time for print- party to the suit, cause such affidavits and depositions ^fere issue (other than depositions taken on the oral cross -examina- joined. tion of witnesses who have made such affidavits) to be printed after the expiration of the time fixed for closing the evidence; and such last mentioned depositions after the expiration of the time allowed for the oral cross- examination of such witnesses (d). {d) There is now no oral cross-examination in causes where issue is joined, otherwise than iefore the Court at the hearing, except in the cases excepted by rr. 10, 11, 16, 17 of the Ord. 5th February, 1861 (pp. 623-625, , ante, and c. 86, sect. 68, p. 224, ante. And see tlie invalid order of Aug. 2, 1864, p. 637, ante. (5) All special applications for taxation must now be made by summons, though the client also asks that a sum of money improperly retained by the solicitor may be refunded, Re May, 34 Bear. 132. See note (r), p. 18 ; (z) p. 23, ante, as to special applications, [Rule 2 abrogated Ord. XL. 35, 36 (relating to reviewals of taxation), and rules 8 and 4 re-enacted them as they are now printed (pp. 593, 594, ante), providing as follows.] 8. Any party who may be dissatisfied with the certifi- cate of the taxing-master as to any item or part of an item, may apply to the judge by whom the order for taxation shall have been made; and such application shall be made by a summons in chambers (c). (c) See note (1), p. 693, ante. Special appli- cations for taxation. Rule 2. Rule 3. Reviewal of taxation by summons in chambers. APPENDIX. SCHEDULES TO THE GENERAL OEDEES. SCHEDULE (A). Schedule (A). [Eeferred to in the 2nd Rule of Order IX.] Form of Bimi. In Chancery. Lord Chancellor. V.-C. Wood. [or] Master of the KolLs. Between John Lee Plaintiff. and James Styles \ and J Defendants. Henry Jones ) Bill of Complaint. To the Bight Honourable Frederick Lord Chelmsford, of Chelmsford, in the County of Essex, Lord High Chancellor of Great Britain. Humbly complaining, showeth unto his Lordship, John Lee, of Bedford Square, in the County of Middlesex, Esq. (a), the above- named plaintiff, as follows :— 1. The defendant James Styles, being seised in fee-simple of a farm called Blackacre, in the parish of A., in the county of B., with the appurtenances, did, by an Indenture dated the 1st of May, 1850, and made between the defendant James Styles of the one part, and the plaintiff of the other part, grant and convey the said farm with the appurtenances unto, and to the use of, the plaintiff, his heirs, and assigns, subject to a proviso for redemption thereof, in case the defendant James Styles, his heirs, executors, administrators, or assigns, should on the 1st of May, 1851, pay to the plaintiff, his executors, administrators, or assigns, the sum 11 APPENDIX. Schedule of 5000J., with interest thereon, at the rate of 51. per centum per (^)' annum, as by the said Indenture Trill appear. (a) The description must be fully set out, or the plaintiff will be required to give security for costs, as to -which see note to Ord. XL. 6 (ante). Address of When a bill is filed by a next friend on behalf of an infent, the address of next friend. the next friend must be fully set out (Major v. Amoit, i W. K. 229) ; and it is not enough that the address of the next friend should appear on the written authority filed with the billin pursuance of the 15 & 16 Vict. c. 86, s. 11 (ibid.j Misdescription but see Wattsv. Kelly, 6 W. K. 206). The defendant may plead a misdescription may be °f tlis plaintiff; but such plea must be Tery precise in its aTerments (Smith v. pleaded. Smith, Kay, App. xxii. ; Rowley v. Eccks, 1 Sim. & S. 611, but that was doubted in Sambrigge t. Orton, 20 Beav. 28) ; and a clerical error in the description is not a ground for a plea (Oust v. Sovthee, 19 L. J. Ch. 526). 2. The whole of the said sum of 5000^., together with interest thereon at the rate aforesaid, is now due to the plaintiff. 3. The defendant Henry Jones claims to haye some charge upon the farm and premises comprised in the said Indenture of Mort- gage of the 1st of May, 1850, which charge is subsequent to the plaintiff's said mortgage. 4. The plaintiff has ftequently applied to the defendants, James Styles and Henry Jones, aiid required them either to pay the said debt, or else to release the equity, of redemption of the premises, but they have refused so to do, 5. The defendants, James Styles and Henry Jones, pretend that there are some other mortgages, charges, or incumbrances, affecting the premises, but they refuse to discover the particulars thereof. 6. There are divers valuable oak, elm, and other timber and timber-like trees growing and standing on the farm and lands comprised in the said Indenture of Mortgage of the 1st of May, 1850, which trees and timber are a material part of the plaintiff's said security ; and if the same or any of them were felled and taken away, the said mortgaged premises would be an insufficient security to the plaiptiff for the money due thereon. T. The defendant James Styles, who is in possession of the said farm, has marked for felling a large quantity of the said oak and elm trees and other timber, and he has by hand bills, published on the 2nd of December instant, announced the same for sale, and he threatens and intends forthwith to cut down and dispose of a considerable quantity of the said trees and timber on the said farm. Prayer. The plaintiff prays as follows : — 1, That an account may be taken of what is due for principal and interest on the said mortgage. 2. That the defendants, James Styles and Henry Jones, may be decreed to pay to the plaintiff the amoimt which shall be so found due, together with his costs of this suit, by a short day to be appointed for that purpose, or, in APPENDIX. HI default thereof, that the defendants, James Styles and Schedule Henry Jones, and all persona claiming under them, (■^)- may be absolutely foreclosed of all right and equity of redemption in or to the said mortgaged premises. 3. That the defendant James Stiles may be restrained, by the injunction of this Honourable Court, from felling, cutting, or disposing of any of the timber or timber-like trees now standing or growing in or upon the said farm and premises comprised in the said Indenture of Mort- gage, or any part thereof. 4. That the plaintiff may have such further or other relief as the nature of the case may require (6). The defendants to this Bill of Complaint are, James Stiles, Henry Jones. Y. T., (name of Counsel.) Note. — This bill is filed by Messrs. A.. B. and CD., of Lin- coln's Inn, in the County of Middlesex, Solicitors for the above- named plaintiff. [Ord. of 7th August, 1852 ; 1st Set.] (6) This paragraph should be omitted where the bill is for discovery merely, Prayer for fur- but when it had by mistake been added to such a bill, it was held that it was ther relief not alone sufficient to convert the bill into a bill for relief {South-Eastern omitted in bill Railway Company v. Submarine Electric Telegraph Company, 2 W. E. 31) ; for discovery and see further, as to the prayer for general relief, HUl v. The Great Northern only. Sailway Company, 5 D. M. G. 66, where it was held that under such a prayer relief inconsistent with the allegations in the bill will not be granted ; and see Daniell, 348. SCHEDULE (B). Schedule [Referred to in the 1st. Rule of Order XI. ] Form of iNTEREoaATOEiES (a). In Chancery. Between John Lee Plaintiff. and James Styles \ and > Defendants. Henry Jones ) Interrogatories for the examination of the above-named defendants in answer to the plaintiff's Bill of Com- plaint. 1, Does not the defendant Henry Jones claim to have some charge upon the farm and premises comprised in the Indenture of a 2 IV APPENDIX. Scheaule Mortgage of the First of May, One thousand eight hundred and (^>- fifty, in the plaintiff's Bill mentioned ? (a) See ante, notes to Ord. XI. 2. "What are the particulars of such charge, if any, the date, nature, ami short effect of the security, and what is due thereon ? 3. Are there, or is there, any other mortgages or mortgage, charges or charge, incumbrances or incumbrance, in any and what manner affecting the foresaid premises, or any part thereof} 4. Set forth the particulars of such mortgages or mortgage, charges or charge, incumbrances or incumbrance ; the date, nature, and short effect of the security ; what is now due thereon ; and who is or are entitled thereto respectively ; and when, and by whom, and in what manner, every such mortgage, charge, or in- cumbrance was created. The defendant James Styles is required to answer all these interrogatories. The defendant Henry Jones is required to answer the interroga- tories number 1 and 2 (6). T. Y., (name of Counsel). [Ord. of 7th Aug. 1852 ; 1st Set.] (6) See Hughes v. Lipicombe, 3 Hare, 341 ; JBoutcher v. Branscomle, 5 Biav. 641, under the 16th Order of August, 1841. Schedule SCHEDULE (C). [Referred to in the 1st Eule of Order XV.] FoKM OF Answer (a). In Chancery. Between John Lee Plaintiff. and James Styles \ and I Defendants. Henry Jones ) The answer of James Styles, one of the above-named defendants to the Bill of Complaint of the above- named plaintiff. In answer to the said Bill, I, James Styles, say as follows : 1. I believe that the defendant Henry Jones does claim to have a charge upon the farm and premises comprised in the Indenture of Mortgage of the First of May, One thousand eight hundred and fifty, iu the plaintiff's Bill mentioned. (o) See ante, notes to Ord. XV. APPENDIX. 2. Such charge was created by an Indenture dated the First of November, One thousand eight hundred and fifty, made between myself of the one part, and the said defendant Henry Jones of the other part, whereby I granted and conveyed the said farm and premises, subject to the mortgage made by the said Indenture of the First of May, One thousand eight hundred and fifty, unto the defendant Henry Jones, for securing the sum of Two thousand pounds and interest at the rate of Five pounds per centum per annum, and the amount due thereon is the said sum of Two thousand pounds, with interest thereon, from the date of such mortgage. 3. To the best of my knowledge, remembrance, and belief, there is not any other mortgage, charge, or incumbrance affecting the aforesaid premises. M. N., (name of Counsel). [Ord. of 7th Aug. 1852; 1st Set.] Scbedule (C). SCHEDULE (D;. [Referred to in the 15th Rule of Order XXIII.] Setedula (D). FoKM OF Ordering Accottnts and Inqitiriks. This Court doth order [and decree] that the following accounts and inquiry be taken and made ; that is to say, 1. An account of the personal estate not specifically be- queathed, of A. B., deceased, the testator in the pleadings named, come to the hands of, &o. 2. An account of the testator's debts. 3. An account of the testator's funeral expenses. 4. An account of the testator's legacies and annuities (if any) given by the testator's will. 5. An inquiry what parts (if any) of the testator's said per- sonal estate are outstanding or undisposed of. And it is ordered, that the testator's personal estate, not speci- fically bequeathed, be applied in payment of his debts and funeral expenses in a due course of administration, and then in payment of the legacies and annuities (if any) given by his will. {If ordered.) And it is ordered that the following further inquiries and accounts be made and taken ; that is to say, 6. An inquiry what real estate the testator was seised of or entitled to at the time of his death. 7. An account of the rents and profits of the testator's real estate received by, _j i \ drafts. O"^"^- !)• Regulations as III- ■ReGULATXCNS AS TO CotTET FeES. to Court Fees. 1. The fees of Court (e) shall be those set forth in the Fourth 1. Eefereuceto Schedule hereto (30th Jan. 1857 ; Ord. 4). fourth sche- dule- (e) See Ord. XXXIX., 2, 3, amie. 2 . Scale of Court fees. 2. The fees set forth in the column headed "Lower Scale" in the Fourth Schedule hereto shall be paid in all cases in which the Lower Scale of fees is to be charged by and allowed to solicitors, under the provisions of these regulations ; and the fees of Court set forth in the column headed " Higher Scale " in the Fourth Schedule hereto shall be paid in all other cases (30th Jan. 1857 ; Ord. 4). APPENDIX. XXXV 3. The solicitor or party instituting any proceeding in respect of Eegulations as which he claims to pay the fees of Court according to the Lower *° ^®^^' ■'^^^''• Scale shall file with the Clerk of Records and Writs a certificate in Court Fees. the form hereunder set forth, of which certificate the Clerk of 3. Certificate Records and Writs shall, at the request of any solicitor or any ^°^ '""'^'^ party acting in person in the suit or matter, mark a copy (30th ^'^^^' Jan. 185r ; Ord. 4) (/). (/) The copy must be left on bespeaking the decree. See 20th Registr. Kegul., March, 1860, p. Ixxxiii. post. • 4. On production of such copy of the certificate, the officers of 4. On produc- the Court shall receive and file all proceedings in the suit or tion thereof matter bearing stamps according to the Lower Scale (30th Jan. proceedings to 1856; Ord. 4). , KlpT 6. In any case certified for the Lower Scale of Court Fees in according to which it shall happen that the solicitor shall become entitled to lower scale. charge and be allowed according to the Higher Scale of solicitors' 5. Where fees, the deficiency in the fees of Court shall be made good (30th solicitor en- T iot;tT /-> J j\ o \ titled to Jan. 1857 ; Ord. 4). _ higher scale. 6. In any case in which the fees of Court have been paid upon deficiency of the Higher Scale, and in which it shall happen that the solicitor court fees to shall become entitled to charge and be allowed only according to ^ ™*'^^ S""''- the Lower Scale of solicitor's fees, the excess of fees of Court so 6- Where paid may be allowed upon the taxation of costs, if the ciroum- iu^j *„ lower stances of the case shall, in the judgment of the Taxing Master, scale, excess of justify such allowance (30th Jan. 1857 ; Ord. 4). court fees to be 7. The stamps for denoting the payment of fees of Court allowed. shall be of the amounts set forth in the Fifth Schedule hereto. 7. Stamps. Form of Certificate for paying the Lower Scale of Oowrt Fees. (Title of Cause or Matter.) I hereby certify, that, to the best of my judgment and belief, the Lower Scale of fees of Court is applicable to this case. Dated, &c. A. B. Solicitor for IV. REaULATIONS AS TO CHARGES FOR COPIES DELIVERED BY Eegulations as Parties and Solicitors. to Charges for Copies deli- 1. The charges for all copies delivered by parties or solicitors ^^^^^ ^lay'' under the 3rd, 4th, and 5th Rules of the 36th of the Consoli- *|torg dated General Orders shall be at the rate of fourpence per folio. except in the cases next hereinafter mentioned (25th Oct. 1852 ; 1- General rule Ord.l,Art.5)(,). -;;£'- (g) See Ord. XXXVI. 1, ante. Where documents are produced at a solicitor's office for his convenience he may only charge stationers' charges for copies of them, note (o), p. 172, Lower Scale. Higher Scale. 10 5 10 3 10 10 10 5 1 1 1 10 10 xlviii APPENDIX. Regulations as (u) The latter words are new. The fee was formerly (except where pro- to Pees, 1860. vided for by a special order) calculated on the gross instead of the net profits. See Wastell v. Leslie, i D. M, Q. 818 (note) ; Buchmaster t. Buckmaster, Fees to he col- 7 \f _ ji,_ gys. lected by Jq ^^U v. Wells, i D. M. G. 816, and Neave v. Douglas, 26 L. J. Ch. stamps. 756, special orders were made to pay such fee as the judge should think reasonable. Lower Scale. Higher Scale. For every oath, affirmation, declaration, or attestation upon honour . . . 1 C 16 In the Mas- ter^ Office. In the Regis- trar's Office. For every warrant or summons For every certificate or report . For taking the acknowledgment of every married woman .... For attending any court per day by the clerk. ...... *For every certificate upon the passing of a receiver or consignee's account (6), a further fee in respect of each 100!. of the net balance received by such re- ceiver or consignee, after deducting aU necessary outgoings (it) for rents, taxes, rates, repairs, and management of the property , . . . . . {v) See note (m), supra. 3 3 1 1 1 6 8 1 6 8 14 14 10 For every decree or decretal order made by the Court on a special case, or on the original hearing of a cause or claim, or on motion for a decree, and on further directions, or further considera- tion not made on summons adjourned from chambers . . . .10 For every order on petition or motion of course . . . , ..010 For every other order . . ..0100 For every office copy of a decree or order, and for every office copy of a petition of appeal or rehearing made under the 12th Bule of the 36th of the Consoli- dated General Orders . . . 10 10 3 5 1 10 Note. — The above fees are to include the charge for entry. In the Ex- For every witness sworn and examioed, airliner's Office. including oath, for each hour . . Lower Scale. Higher Scale. 5 5 APPENDIX. xlix Lower Scale. For every witness sworn and examined away from the office (w) (besides coach hire and reasonable expenses) . .17 (w) See page 185, ante. If more than five miles from the Exa- miner's Office, for the first day . . 2 For every other day . . . .2 Upon every application to inspect deposi- tions, including the inspection . .030 Upon every application to search book for causes, including search . ..010 Upon every application to search book for depositions, including search . .010 Higher Scale. Regulations as to fees, 1860. 15 2 For making all office and other copies, per folio ....... For filing every bill or information For filing every claim . . . . For filing every special case . Upon entering every appearance, if not more than three defendants . If more than three and not exceeding six defendants ..... And the same proportion for every like number of defendants. For every certificate . . . . For marking every copy of a bill, claim, or summons to be served . For every writ of summons, distringas, subpoena, or attachment For every writ of fieri facias de bonis ecclesiasticis or sequestrari facias (1 8th July, 1857, Order 5) . . . For sealing every other writ For every oath, affirmation, declaration, or attestation upon honour, except for the purpose of receipt of dividends from the Accountant General For examining every copy or part of a copy of a set of interrogatories, and marking same as an office copy Upon every application for a search for a record, and for searching . Upon every application for a search in the Report Office (25th Oct. 1852, Sched. 1, Ft. 2) Upon every application to inspect a re- cord, and for inspecting tho same 4. 10 5 10 7 14 4 10 5 10 10 16 1 7 Fees to be coUeoted by stamps. 2 15 O 2 2 3 10 10 In the Record 4: and Writ 10 Olerh's Office, 5 <}^^d Report 1 o^-^"- 7 14 4 5 5 10 10 16 1 5 2 2 6 5 5 d APPENDIX. Begulations as to Fees, 1860. Fees to be collected by lower Scale. Higher Scale. 5 10 Upon every application to inspect exhibits, if occupied not more than one hour . 5 If more than one hour, per diem . . 10 Upon every application for the officer's attendance in courts of law, per diem, and for his attendance, besides reason- able expenses of the officer . ..100 100 Upon every application for the officer's attendance in a court of equity, and for his attendance, per diem . .0100 10 Upon every application to swear an invalid, including the attendance, besides ne- cessary expenses . . ■ . 10 10 For examining and signing enrolments of decrees and orders . . . .300 300 For filing caveat against claim to revive, or against decree or order or enrolment .050 050 For filing supplemental statement or statement for revivor . . .050 10 For filing every affidavit, including sche- dules and exhibits . . ..026 026 For every application to inspect an affi- davit 006 006 For amending every record of a bill, claim, or special case . . . . 10 10 In ike Taxing For every warrant or summons, (but not Master's Office. more than one warrant or summons is to be issued on one bill, or set of bills unless the Taxing Master shall think it necessary to issue a new warrant or summons) . , . On signing every report and certificate . Upon the taxation of every bill of costs, . as taxed, where the amount shall not exceed 20Z. . . ... Upon every additional 20t, or fractional part thereof, a further fee of For every oath, affirmation, or attestation upon honour . . . . . Where no certificate of the taxation of a bill of costs is required, the ad valorem duty hereby directed to be levied in respect of the taxation of costs shall nevertheless be due, and shall be payable on the amount of the bill as taxed, or on the amount of such part thereof as may have been taxed ; and the solicitor shall in such case cause the proper stamp (the amount thereof to be fixed by the Taxing Master) to be impressed on or annexed to the bill of costs (4th Dec, 1852 ; Ord. 1). 10 3 10 1 10 10 10 10 16 1 6 APPENDIX. li But where the Taxing Master sends a bill or part of a bill to Regulations as the officer of any other court (x), with a request to such officer to *<> ^^^s, 1860. assist him in the taxation thereof, and the officer of such other Fees to be col- court takes his fee thereon, the ad valorem duty hereby directed lected by to be levied in respect of the taxation of costs shall not be paid on stamps, that part of the bill so taxed and charged for by the officer of such other court (29th Nov. 1853). (x) See notes to Ord. XL. 1 — 3, ante. On aU attendable petitions, appeals, re- hearings, and letters missive On all non-attendable petitions {y) . . Lower Scale. Higher Scale. 5 5 10 In the Lord Chancellor's n -in n-P'"™"^"^ " -■■" " Secretary's Office. (y) Petitions not of course are answered by a, memorandum directing attendance. See notes to Ord. XXXIV. ante. As to what petitions for orders of course in causes attached to the Vice- Chancellors are addressed to the Lord Chancellor, see same notes and Kegist. Segnl. 2, 3, p. Ixxz. post. Lower Scale. Higher Scale. On a matter of course order, on a peti- tion of right 10 10 On an order for a commission on a peti- tion of right 10 10 On every petition set down for hearing, to include the fee on hearing On the petition for every order of course On the admission of every solicitor . . In the Office of 5 10 Q^T^fSeerelaA-y 10 5 o"*'^^^""'- 1 ir For preparing power of attorney with affi- davit, exclusive of stamp duty . Upon every application for a search For transcript of accounts, each opening consisting of debtor and creditor sides of the account (30th Jan. 1857, and 21st June, 1854, Ord. 2). 3 3 5 5 2 2 THE FIFTH SCHEDULE. AMOUNTS OF STAMPS. AMOUNTS OF STAMPS One penny, threepence, fourpence, sixpence, eightpence, one FOR COL- shilling, one shilling and fourpence, one shilling and sixpence, one pggg ^^ shUling and eightpence, two shillings, two shillings and sixpence, yth Sept. 1852. two shillings and eightpence, three shillings, three shillings and 3rd Dec. 1852. ^ cj 2 26th July, 1855 lii , APPENDIX. Eegulations as sixpence, four shillings, five shillings, seven shillings, eight shillings, to Fees, 1860. ten shillings, fourteen shillings, one pound, two pounds, threo Fees to be col- pounds, four pounds, five pounds, ten pounds, lected by n n stamps. Oampbem, C. John Romiily, M. E. J. L. 'Knight Bruob, L. J. G. J. TUBNBR, L. J. ElCHD. T. KlNDERSLEY, V.-O. John Stuart, V.-C. W. P. Wood, V.-C. Hilary Term, 1860. EEGULATIONS AS TO BUSINESS [Not having the force of General Orders). jRegulations (a) to he observed m the conduct of business at the chambers Regulations as of the Master of the Bolls and the Vice-Chancellors, by order of *° businesf, the Hight Honourable Sir John Bomilly, Master of the liolls ; the "gs? ' Honourable the Vice-Chancellor Sir Bichard Torin Kindersley ; the Honourable the Vice-Chancellor Sir John Sttiart ; and the Honourable the Vice-Chancellor Sir William Page Wood ; this 8th day of August, 1857. I. Summonses are not to be altered after they are sealed, except 1. AUeraticm upon, application at chambers, and any alterations then made will °^ summons. be marked with the seal of such chambers. (a) These regulations merely point out the way in which proceedings may be taken for the sake of convenience ; but they are not absolutely obligatory in every case (per V.-O. Stuart, 7 W. R. 157 ; and see £e Zongstaffe's Estates, 1 Drew. & Sm. 142). II. Upon application for time to answer, a printed copy of the 2. Production bill and the interrogatories to be answered, are to be produced. of bill, &c., on III. Whenever any matter is adjourned from the Court to f^/j.i°^g7o^ chambers, or any directions are given in Court to be acted upon at answer. chambers, whether upon a matter adjourned into Court from 3 jtei^istrai's chambers or upon any other occasion, without an order being note on drawn up, a note signed by the registrar, stating for what purpose adjournment such matter is adjourned to chambers, or the directions given, is to *" cbambers. be procured from the registrar, and left at chambers (6). (J) See notes to 15 & 16 Vict. c. 80, s. 27, p. 148, ante. IV. In drawing up decrees and orders to be left at chambers, 4. Kumbering the solicitors are to take care that every account, inquiry, sale, °^ accounts. direction to appoint receiver, and other direction to be answered at chambers, is numbered consecutively according to the form set forth in the Schedule (D) referred to in the General Consolidated Order XXIII. 15 (c), and that the other directions are not numbered. (c) See p. T. ante. V. At the same time that any decree or order made in a suit 5. Leaving of instituted by bill is left at chambers, a print of the bill is to be print of bill at , ,, chambers. left. VI. A note stating the names of the solicitors for all the parties, •*• Note of and showing for which of the parties such solicitors are concerned, solicitors and is to be left at chambers with every decree or order. parties. VII. For the purpose of procuring the direction of the judge as 7. Service of liv . APPENDIX. Kegulationa as to the manner of serving, nbtiqe of a decree or order, pursuant to to business, the Genteral Consolidated Order VIl. 6 (d). ^mr ^' ^^® plaiintiff is to' make an ex pa/rte application by summons, and thereupon to show by affidavit as far as he is able ; — notice under Ord. YII. 5. 8. Copy of certificate of entry, &o., to be left at chambers. 9. Number of entry of claim to be stated in notice. 10. Altera- tions in accounts veri- fied by afSda- vit. 11. Accounts, &c. , to be refeixed to a.s exhibits. 1. With respect to Infants : — The ages of the infants. Whether they have any parents or testamentary guardians, or guardians appointed by the Court of Chancery. Where and under whose care the infants are residing, at whose expense they are maintained, and in case they have no father or guardian, who are their nearest relations. And that the parents, guardians, relations, or persons on whom it is proposed to serve the notice, have no interest in the matters in question, or if they have, the nature of such interest, and that it is not adverse to the interests of the infants. 2. With respect to persons of Unsound Mind not found so hy Inquisition : — Where and under whose care such persons are residing, and at whose expense they are maintained. Who are their nearest relations, and that such relations, or persons upon whom it is proposed to serve the notice, have no interest in the matters in question, or if they have, the nature of such interest, and that it is not adverse to the interest of the persons of unsound mind. (d) See note (5), p. 197, ante. VIII. A copy of every certificate by a record and writ clerk of his entry of a memorandum of service of notice of a decree or order, and of every order giving liberty to a person served with such notice to attend the proceedings, certified by the solicitor, is to be left at chambers (e). (e) See Ord. XXIII. 19, amte, as to this memorandum of service. IX. Upon the notice of a claim having been entered at cham- bers by a creditor or other claimant served upon the solicitors in the cause the number of the entry of the claim is to be stated (/). (/) See Ord. XXXV. 38, et seqq., and Ord. 37 May, 1865, ante. X. Every alteration in an account verified by affidavit to be left at chambers is to be marked with the initials of the commissioner or officer before whom the affidavit is sworn, and such alterations are not to be made by erasures with the knife or other instru- ment. XI. Accounts, extracts from parish registers, particulars of creditors' debts, and other documents referred to by affidavit, are not to be annexed to the affidavit, or referred to in the affidavit as annexed, but are to be referred to as exhibits (3). (g) See as to form of affidavits generally, notes to Ord. XVIII. 1, ante. APPENDIX. . Iv XII. Every certificate on an exhibit referred to in an affidavit Eegulations as signed by the commissioner or officer before whom the affidavit is l*° business, sworn, must have the short title of the cause or matter. i sT?' XIII. Affidavits for the purpose of enabling the judge to fix ' reserved bids are to state the value of the property, by reference 12. Certifi- to an exhibit containing such value, so that the value may not be- ^^.^ °'^ ^^' disclosed by the affidavit when filed (/i). -„ '.-., ., XIV. As soon as particulars and conditions of sale. settled at ^g to the fix- chambers have been printed, two prints thereof, certified -by the ing of reserved solicitor to be correct prints of the particulars and conditions tiddings. settled at the judge's chambers, are to be left at chambers (h). H- Prints of XV. An office copy of the affidavit of the person appointed to Pa^i^'ars and sell, of the result of the sale, with the bidding paper and particu- ^^^ j^ |,g jgj^ lars therein referred to, are to be left at chambers at least one in otainbers. clear day before the day apgointed for settling the certificate of the. 15. Office copy result of the sale {h). of affidavit of (A) See notes to Old. SXXV. 13, ante. appointed to XVI. Receivers' accounts are to be delivered at chambers on or ^"'' before the day appointed for that purpose, and in default the ^°- /™6 *or TGCGivcrs to receiver will be liable to the consequences imposed by the General deliver their Consolidated Order XXIV. 2 (i). accounts, (i) See notes to Ord. XXIV. ante. XVII. AH accounts, copies and papers, left at chambers, are to 17. Accounts be written upon foolscap paper bookwise, unless the nature of the ""•> ''<' "^ document renders it impracticable to do so. foolscap paper XVIII. Where any cause originating in chambers shall, at the bookwise. original or any subsequent hearing thereof, have been adjourned 18. Adjourn- for further consideration, such cause may, after the expiration of ment of cause eight days, and within fourteen days from the filing of the certifi- '" chambers, cate of the chief clerk of the judge to whose court the cause is attached, be brought on for further consideration (k) by a summons to be taken out by the plaintiff or party having the conduct of the cause, and after the expiration of such fourteen days, by a sum- mons to be taken out by any other party. And such summons is to be in the form prescribed by the Consolidated Order XXXV. 2, and set forth in the Schedule (K) thereto ; and the object of the application may be stated as follows : — " That this cause, the further consideration whereof was adjourned by the order of the day of , 18 , may be further considered." This summons is to be served six clear days before the return. (i) See note (h), p. 149, ante. XIX. Upon application for the appointment of guardians of in- 19. Evidence fants and allowance for maintenance 0, the evidence is to show : — »° application 1. The ages of the infants. ment of 2. The nature and amount of the infants' fortunes and incomes, guardians and 3. What relations the infants have. allowance of ,„ „ , , 1 ./. .Tin maintenance. (I) See note (e), p. 146, ointe, head 3. XX. Upon applications to obtain the sanction of the Court to 20. Evidence Ivi APPENDIX. Kegnlations as infants making settlements on marriage, under the Act of 18 & 19 to business, -yict. cap. 43 (m), evidence is to be produced to show — 1857. ^- Tlie age of the infant. ; — - — 2. AVhether the infant has any parents or guardians. imderiS &'l^^ ^' ^'*^ '^^°'^ ""^ ""'^^'^ ^^°^^ *=*''^ *'^^ ^"^^* ^^ ^^i^g, and if Vict. 0. 43. ^^^ infant has no parents or guardians, what near relations the infant has. 4. The rank and position in life of the infant and parents. 5. What the infant's property and fortune consist of. (3. The age, rank, and position in life of the "person to whom the infant is about to be married. 7. What property, fortune, and income such person has. 8. The fitness of the proposed trustees and their consent to act. The proposals for the settlement of the property of the infant, and of the person to whom such infant is proposed to be married, are to be submitted to the judge, (m) See p. 234, ante. 21. Appoint- XXI. For the purpose of procuring the appointment of a ment of ■ guardian to infants under the Act of Parliament of 19 & 20 Vict, under 19^& 20 "' ^^*^' ^^^ *^^ Consolidated General Order XLI. 23 {n). Vict. e. 120, -^ summons should be taken out in the names of the infants by and Old. XLI. a next friend, in the form used for originating proceedings in 23- chambers, intituled in the same manner as the petition or intended petition, — that , or some other proper person or persons, may be appointed guardian or guardians of the said infants, for the purpose of making an application on behalf of the said infants [or, consenting on behalf of the said infants to an application] to the Court under the provisions of the above Act. In case the application to the Court is to be made on behalf of the infants, the guardian must be appointed before the petition is presented (n). If the guardian is to consent to an application, the guardian may be appointed either before or after the petition is presented. Evidence. Upon the application to appoint such guardian, the following evidence is to be adduced : — 1. The age of the infant. 2. Whether he has any parent, testamentary guardian, or guardian appointed by the Court of Chancery. 3. Where and under whose care the infant is residing, and at whose expense he is maintained. 4. In what way the proposed guardian is connected with the infant, and why proposed, and how qualified to be appointed. 5. That the proposed guardian has no interest in the intended application, or if he has, the nature of his interest, and that it is not adverse to the interest of the infant. 6. The consent of the guardian to act. It. The nature of the intended application to the Court. (») See note («), p. 251, ante. 22. Leave to XXII. For the purpose of procuring the direction of the judwe make or con- ° APPENDIX. Ivii for leave to make or consent to an application on behalf of infants Kegulations as or lunatics under the said Act of 19 ■sal *bl il^ 2 a/ noCS II S |5 1 ►? -a-d .^11 ^ rt _ ^ m «l! OO i-t &= fe r-i «« 'i" l-H ■gti 1 " '^ as 09 o 2 ^ , ■ rrt t4 , *H • O , ew OJ OJ .g ^ 4 -3 g ^ « e r 1 " 1 1- s 1 a 3 (^ i-» ta 4 ^ 0) . ^ S'S t-H c3 P S- HO «f§ OO !l=| iH CM«0 ■^ Ui to I^ 1— 1 APPENDIX. Ixi n o (S) ^ S & ■§"§ g o -? p4 -I Pi ta o fit o _ I- ^11 B gt ^3 • 1 ^ o5 < P.^ =U 'a o . aa , n . 1 u *« i . >> u ■ §.5 1 s ^A §,g o-a 13 •o -g SI 2 ■§ ■ mO 1° 1 . 1 l-^ 1^ (3 a . . . . ' perso paid ( ed. 1. 1 . 1 'Sal 1 £ » 2a a m< 3-6^ l-H O I| § ^ d^ a ^5 sO § CQ &H >-a "S-d ^1| i-H e5 _ O xa «|^ CO ^ S ^ o=« a rH CM CO h-i 11 ^3 a g ■< g ^ B>«t3 F-i -e , o n TJ T-4 Dat ben eive OO l-H ^ " d H «> 1 ■ g ■ I: ■§ . 11 1 1 1 • i i g 1 &4 u 1 ra § Ha EH If ■S3 p %■ ^1 4& i-t (M r-t (M CO APPENDIX. Ixxv ^ 51 ^ » «d o ^^ 1 J ^ 1^ ►3 ■^ g OT3 g H P O (S ^^ fi) ca ti O ..q o B1 ^•d K fS O ^a -"S » a n.^ o Igj-g i pj ^ M "S <3|| C4-t °. S Begulations as to IjusinesB. August 8, 1857. eg P3 .1^ OJ •■s« ^ • • gc^ -♦3 ■fS 1 1 Ph^ • afiH n3 gp=i .-§ s rt^ •^.s §^ fi§^ t! § 1^ fll P^ 8 o 2 ■1^^ ■a 4! 111 P EQ °3 2 ^ ill "s-s "g'S'S -|3 43 ^11 ^N 41 144 n "3 a a Ixxvi APPENDIX. Regulations as to business. August 8, 1857. No. 15. — Beceiver's Costs of Appointment and passing Account. Term 186 . Instructioua for drawing and engrossing recognizance ..... Attending summons when same settled and attending at judge's chambers for allowance thereof .... Copies of draft for parties to whom copies are (Urected to be handed , Paid for stamp and parchment Instructions for affidavits of sureties Drawing and engrossing same fo. 4 Attending sureties on their being sworn thereto ... ... Paid oaths filing and for office copy Making appointment with receiver and his sureties and attending them on acknowledging recognizance Paid thereon .... Attending .to enrol recognizance Paid enrolling .... Attending at judge's chambers when order appointing receiver made Paid for order .... Attending passing and to enter same Copy order for the judge Letters, (fee. If the order appoints the receiver subject to his giving security, the following will be the charges in lieu of the above : — Copy order for the judge Preparing summons to proceed and attending to get same filled up and sealed at chambers . . . . Paid stamp ..... Copy summons to leave at chambers Copies to serve and service thereof on parties having leave to attend Attending thereon .... The same charges as above relating to the recognizance. Making copy certificate fo. 6 . . Copies for the parties to whom copies are directed to be handed Attending adjourned summons when cer- tificate settled . . . , Lower Scale. Higher Scale. ■1 15 2 12 2 2 6 8 6 8 5 4 5 4 6 8 13 4 6 8 7 6 6 8 10 6 8 2 6 5 2 6 2 6 8 6 8 13 4 6 8 7 6 13. 4 10 13 4 2 6 5 2 6 1 2 8 6 3 2 8 6 8 13 4 2 13 4 APPENDIX. Ixxvii Transcribing certificate Paid for stamp . . . . . Attending appointment to sign Attending to bespeak and for office copy certificate . . . . . Paid for office copy . . . . Letters, J- Bonal repre- cient amount. sentatives. 18. Orders for payment of specified sums to the Receiver-General Legacy or sao- of Inland Revenue, for Legacy and Succession Duty, will not be cession duty. drawn up until the calculation has been examined at the Legacy and Succession Duty Department, and a Certificate obtained of the proper amount payable for duty. 19. J/ the decree or order is made in a cause commenced subse- Reference to quently to the 1st day of Michaelmas Term, 1852, the reference *y^°°^^- to the record is to be either inscribed or stamped upon some docu- "^ • ' ment in the cause, or upon the brief. If the decree or order is made in a cause commenced prior to the 1st of Michaelmas Term, 1852, a memorandum or certificate is to be indorsed and signed by the solicitor on the brief, in the form following, that is to say : — " I certify that this cause was commenced previously to the 1st day of Michaelmas Term, 1852." 20. If the fees of Court are payable according to the loiter Lower scale scale (except on orders on petition or summons, other than sum- " *^^^- mons originating proceedings in chambers), a copy of the certifidate ^™- ^^.> ^' ^ for paying the lower scale of Court fees, duly inarked by the Clerk j^^\_ oi Records and Writs. /2 Ixxxiv APPENDIX. Registrar's Begulatious, March 15, 1860. In cases of non- appearance. Documents to be left on be- Bpcahimg de- crees or or- ders. Decrees. If any admis- Bions are to be entered as read. Ord. 1, 44. Memorandum of sei-vice of copy bill on any defendant. If traTersing note filed and the defendant does not ap- pear. If the bill has been taken pro- confesso. Affidavits read at the hearing. Socnments proved at the hearing. Orders on further con- sideration. 21. If any party or person served does not appear at the hearing, An affidavit of service on such party or person. 22. On bespeaking any decree, Counsel's Brief, and a print of the Bill, with the Reference to the Record marked thereon, and the correct title of the cause, with the names of the guardians of any infant defendants inserted. In addition to the printed copy of the Bill to be left for the use of the Judge previously to the hearing of all causes and motions for a decree (c), a printed copy of the Bill is by direction of the Lord Chancellor to be left with the Usher of the Judge for the use of the Registrar in attendance iu Court. In case a correct printed copy of the Bill shall have been so left it will not be neces- sary to leave another printed copy of the Bill on bespeaking the decree. (c) Two copies are now required to be left (Chancery notice, Hilary Term, 1860). 23. If any admissions are to be entered as read. The original paper of admissions, signed by the parties or their solicitors, to be indorsed by the Registrar. The admissions, when so indorsed, are to be filed in the Report 06Sce before the decree is left to be passed, and a memorandum, thereof is to be made on the decree by the Clerk of Reports. 24. If a memorandum has been entered of service of a copy of the hill on any defendant, The Order to enter the memorandum of service with the Record and Writ Clerk's Certificate of the entry thereof, and of no appear- ance by the defendant so served. 25. If a traversing note has been filed, and the defendant does not appear. The Record and Writ Clerk's Certificate that the note has been filed, an affidavit of service of a copy of the note, and of subpoena to hear judgment. 26. If the bill has been taken pro confesso. The Order for the Record and Writ Clerk to attend at the hearing with the Record of the BUI, and any previous orders as to the contempt. 27. If any affidavits have been read at the hearing, The Office" Copies of such affidavits, and any exhibits therein referred to. 28. If any documents have been proved at the hearing, vivfi, voce or by affidavit. The Order authorising them to be so proved, with the office copies of the affidavits (if any) and the documents proved. 29. On bespeaking orders on fwrther consideration. Counsel's brief, the original decree or the last order on further consideration, and any subsequent orders to revive or carry on the proceedings, and the office copy of the Chief Clerk's certi- ficate, and office copies of any affidavits, and any exhibits or other evidence used at the hearing. APPENDIX. IXXXV 30. If the order deals with any pwohase mmwy, Eegistrar's A consent brief for the purchaser, or au affidavit of notice Regulations, to him of the intended application of the purchase money, and that YsRn'^^' the conveyance has been executed and delivered to him. 3X. Orders on motion. Documents to Counsel's brief, with his indorsement of the Order made ; the *" ^"^ "" J*' notice of motion, if any, annexed, and office copies of any affi- J.ggj or orders davits, and any exhibits or other evidence used at the hearing of if tj^g order the motion. deals with any 32. Orders on petition, purchase The original petition and Counsel's brief, with his indorsement """"^y- of the Order made, and any decree, order, or the office copy ^™?''s o° of any certificate on which the petition is founded, and office copies „ of any affidavits, and any exhibits or other evidence used at the petition. hearing. 33. Under Settled Estates Act, Under the In addition to the documents mentioned in Regulation 32, the Settled Estates newspapers containing the advertisement of the petition, and ^''^■ any interlocutory orders that may have been made relating thereto. 34. Under Lands Clauses Act, (fee. , Orders under Where the Order deals with any money paid into court by Acts authoria- the promoters of any public undertaking to the credit of such ing public undertaking not standing to any separate account, the Accountant- J^^j l", °^\ General's certificate of the payment into court of the sum sought ' ' to be dealt with, and also the Accountant-General's certificate of the fund in court to the credit of the undertaking ; and when the Order directs the carrying over of the money to a separate account, or payment of the same out of court to any person entitled thereto, an affidavit of the petitioner verifying the petition, and negativing any adverse right or claim, in the terms of the Cons. Ord. 34, rule 3, and any other evidence used at the hearing. 35. Winding-up order. Orders for In addition to the documents mentioned iu Eegulation 32, the winding-up affidavit of the service of the petition, and the London Gazette """"P*"^^- and newspapers containing the advertisement thereof. 36. Orders vacating receiver's recognisances, Ordersvacating An office copy of the receiver's recognisance from the office of receiver's the Clerk of Enrolments. ^^ 37. Where a fee of less than £3 is payable on any decree or Fees and order, such fee will be payable by affixed stamps, and the stamp stamps. affixed to the decree or order is to be of an amount corresponding as nearly as practicable with the amount of the stamp which it requires, so that no greater number of adhesive stamps may be affixed thereto than is actually necessary ; and solicitors are re- quested not to cancel any adhesive stamps affixed to decrees and orders drawn up by the Registrars, as such stamps will be cancelled by the Registrar on passing the decree or order. 38. When a decree or order engrossed on an impressed stamp is Decrees or not paid for within one calendar month from the day on which "^^''^ Ixxxvi APPENDIX. Eegistrar's Kegulations, March 15, 1860. Documents to he left on be- speaking de- (M'ees (yr orders impressed stamps to be cancelled if not duly paid for. 'Six. parte orders. such decree or order is engrossed, it will be cancelled, and the stamp recovered as spoiled ; and in case the party shall afterwards desire to have the decree or order engrossed, he will be required to pay the stationer's charges for the same. certificate of sale, transfer, or delivery. Certificates under the Cons. Ord. 1, rule 8. Case I. Case n. Case III. Note. — Solicitors and their Clerks, on bespeaking or applying respecting orders made in any ex parte matter, are requested to inquire for the same by the title thereof as it appeared vn the Court Paper. Decrees and orders drawn up by the Registrars will when entered be delivered to the Solicitor having the carriage thereof, with his papers, by the Assistant-OIerks to the Registrars. Form of affidavit in Case I. 39. Every certificate for sale, transfer, or delivery of any stocks, funds, shares, or securities, before being submitted to the Kegistrar for signature, is to be examined by one of the Registrar's clerks at the order of course seat, Who is to mark the same as examined, and sign his initials at the foot in the leftjiand margin thereof, thus : Ex*!. A. B. 40. The Registrars previously to issuing certificates for the transfer or delivery of stocks, funds, shares, or securities, pursuant to the Cons. Ord. 1, rule 8, will require the following evidence to be produced ; and the affidavits of identity may be in the forms given in cases I., II., III., according to the circumstances ; — . If the order direct such transfer or delivery to the legal personal representatives of a deceased person named in the order, but with- out naming such representatives in the order, and any of such representatives be dead, leaving survivors, or a survivor, the pro- bate or letters of administration of the deceased person named in the order, a certificate of the burial of the deceased representative, or an official extract from the Register of Deaths, of his death, and an affidavit of his identity. If the order direct such transfer or delivery to any persons named in the order, as the legal personal representatives of a deceased person, and any of such representatives be dead, leaving survivors, or a survivor, a certificate of the burial of such deceased representative, or an official extract from the Register of Deaths, of his death and an affidavit of his identity. If the order direct such transfer or delivery to any person named in the order, or his legal personal representatives^ and such person be dead, the probate, or letters of administration, a certifi- cate of the burial of such deceased person, or an official extract from the Register of Deaths, of his death, and an affidavit of his identity. And if any of the legal personal representatives be alsq dead, leaving survivors, or a survivor, the further evidence men- tioned in Case I. I (the deponent), of, '« ^«*- [S. 22 relates to the salary of one of the registrars ,] 23. The provisions of this Act shall come into operation on the C""™^""^™™* first day of October, One thousand eight hundred and sixty-five, except the provisions relating to framing a scale of costs and making rules and orders of practice and forms of proceeding, and except the provision which relieves the judges from the obligation of holding courts during the month of September without the order of the Lord Chancellor, which provisions shall come into operation on the passing of this Act. APPENDIX. XCV COUNTY COUKT ACTS AMENDMENT ACT, 1867. C^nty Courts Amendment 30 & 31 VICT. Cap. 142, Ss. 8, 9, 24—27. ■^°*' ^^^^- Ad Act to amend the Acts relating to the Jurisdiction of the County Courts. [20tk August, 1867.] 8. Where any suit or proceeding shall be pending in the High E™„°^*^j^f '^ Court of Chancery, which suit or proceeding might have been transferred to commenced in a county court (o), it shall be lawful for any of the County Courts parties thereto to apply at chambers to the judge to whose court ■wMoh might the said suit or proceeding sh^ll be attached to have the same °?^" . transferred to the county court or one of the county courts in which the same might hare been commenced, and such judge shall have power upon such applfcation, or without such application, if he shall see fit, to make an order for such transfer, and thereupon such suit or proceeding shall be carried on in the county court to which the same shall be ordered to be transferred, and the parties thereto shall have the same right of appeal that they would have bad had the suit or proceeding been commenced in the county court. (a) See note (i), p. Ixxzix., ante, 9. The jurisdiction which is given by the Act passed in the Suits in which session holden in the twenty-eighth and twenty-ninth years of the ? no'j? nn reign of her Majesty, intituled " An Act to confer on the County yj^j ^ gg jj,™ Courts a Limited Jurisdiction in Equity," so far as relates to cases be exercised. coming withia the fourth head of the first section of the said Act, may, from and after the passing of this Act, be exercised in all suits for specific performance of or for the reforming, delivering up, or cancelling of any agreement for the sale, purchase, or lease of any property (6) wh^re, in the case of a sale or purchase, the purchase money, or in case of a lease the value of the property, shall not exceed five hundred pounds. (6) See note (d), p. Iszxix., ante. 24. Any monies, annuities, stocks, or securities vested in any Trustees may persons as trustees, executors, administrators, or otherwise, upon W Trust trusts within the meaning of an Act passed in the session of f^r'gtojt anT' Parliament holden in the tenth and eleventh years of the reign Securities into of her present Majesty, chapter ninety-six, "for better securing the Coui-t. Trust Funds, and for the Belief of Trustees," where the same does not exceed in amount or value the sum of five hundred pounds, upon the filing by such trustees or other persons, or the major part of them, to or with the registrar of the county court within the district of which such persons or any of them shall reside, an aflida'^t shortly describing the instrument creating the trust according to the best of their knowledge, may in the case of XCVl APPENDIX. County Courts money be paid into a post office savings hanh (c) established in the A t™i SK?"' town in which the county court is held in the name of the regis- ' trar of such court, in trust to attend the orders of the Court, and upon such persons filing with the registrar the receipt or other document given, to them by the officer of the said bank the registrar shall record the same, and give to them an acknow- ledgment in such form as may be directed by any rule of practice, which acknowledgment shall- be a sufficient discharge to such persons for the money so paid, and in the case of stocks or securities may be transferred or deposited into or in the names of the treasurer and registrcm (c) of such court, in trust to attend the orders of the Court, and the certificate of the proper officer of the transfer or deposit of such stocks or securities shall be a sufficient discharge to such persons for the stocks or seouiities so transfetred or deposited ; provided that where there is not a treasurer a person shall be nominated by rule of practice to whom the transfer or deposit in conjunction with the registrar may be m^de. (c) See. note (e) p. Ixxxix., ante. Extension of 26. For the purposes of the last section all the powers and ^°v> *v7v° authorities given to the Court of Chancery by the Act passed in 0^74 toCoi^t ^^^ session of Parliament holden in the twelfth and thirteenth of Chancery to years of the reign of her present Majesty, chapter seventy-four. County Couits. "For the further Belief of Trustees," shall be possessed and exercised by the county courts, and any order made by virtue of such powers and authorities shall fully protect and indemnify all persons acting under or in pursuance of such order. Monies paid 26. Any money paid into a county court in equitable pro- into a County ceedings shall, unless otherwise ordered by the Court, be invested table Proceed-' ^^ *^® registrar of the court in his name as registrar, within ings may be in- forty-eight hours of its payment into court, in a post office vested in a Post savings bamk established in the town in which the court is held (d). Office Savings without restriction as to amount, and without the declaration required of a depositor in a savings bank ; and no part of any money invested in a post office savings bank under this Act shall be paid out to any registrar, except upon an authority addressed to the postmaster general by the commissioners of her Majesty's Treasury. {d) See note (a), p. czii., post. Proceedings in 27. Any proceeding taken in the county courts under " The Kquitymay be County Courts Act, 1865," conferring an equitable jurisdiction on Summrais. ^ ^""^ courts, may, if so directed by rules and orders to be made under such Act, be commenced by summons. APPENDIX. xcvii COUNTY COIJET OEDERS. Sdertises! ORDER I. C. c. Ord. I. Plaint and Summons. PLAINT AND SUMMONS. 1. All suits under the Ist, 2nd, 3rd, 4th, or ^th clauses of the Kule 1. first section of the Act shall be commenced by filing a plaint in Commencement equity in the county court to which jurisdiction in the matter is ° ° given by the 10th section of the Act (a), (a) See now 30 & 31 Vict. o. 142, s. 27 (last page). For forms of plaint, see' pp. cxxiT. — cxxviii. and cxxxi., post ; and for form 6f summons on plaint, p. oxxxiii., post. The plaint is to be printed or written on foolscap paper, see C. C. Ord. XXIII. 1, p. oxTiii., post. 2. Every plaint in equity shall state the name, address, and ^"l^ 2. description, of the plaintifif, and of the person intended to be p p^^ i brought before the Court as defendant : and where any party sues \^^j jjq, 34, or is sued in a representative character, he shall be so described in the plaint ; but this rule shaU. be subject to the 34th rule of " The County Court Bules, 1867 " (6). (6) See as to describing the plaintiff in a biU, note (a), p. v., a/nie, and Description of compare note (i), p. 388, ante. plaintiff. By the county court rule referred to, when the plaintiff is unacquainted with » defendant the defendant's christian name, the defendant may be described by his surname, or hy his surname and the initial of his christian name, see 0. C, Ord. XXIII. 7, post. 3. Every plaint in equity shall contain a concise statement of Rule 3. the grounds upon which the plaintiff seeks to obtain relief ; and Plaint. shall ask for the specific relief to which he conceives himself en- titled, and also for general relief (c). (c) See the forms referred to in note (a). 4. Where the plaint is filed by an attorney he shall endorse ij,„ie 4. thereon his name or firm and place of business, and that the Plaint filed by plaintiff sues by him as attorney ; and where there is more than attorney, one plaiutiff, and the plaint is not filed by an attorney, the plaintiff who actually files the same shall endorse thereon his name and address (d). (d) As to notice when an attorney is changed, see C. C. Ord. XXIII. 4, p. cxix., T^. post. 6. Plaints in equity may be in forms similar to those set out in ^"^^ 5. the schedule to these orders, with such variations as the nature °"^ plamt. and circumstances of each particular case may require (e). (e) See forms referred to in note (a). XCVIU APPENDIX. County Court Orders, 1865. C. C. Ord. I. Rule 6. Delivery to registrar and filing of plaints. Rule 7. Summons on plaint. Rule 8. Date and re- turn of sum- mons. Rule 9. Service of summons. 6. The plaintiff or his attorney shall deliver at the office of the registrar the plaint, with as many copies thereof as there are persons to be brought before the Court as defendants, and the registrar shall forthwith endorse on the plaint a memorandum of the day on which the same was received by him, and when such plaint shall be so endorsed it shall be taken for all purposes to have been duly filed on the date so endorsed thereon. 7. The registrar shall, on the filing of such plaint, make out a summons to the defendant, or to every defendant where there is more than one, to appear, and submit to the judgment of the Court thereon. 8. The summons shall be in the form in the schedule, and be dated of the day on which the plaint was filed, and may be re- turnable at any court to be holden not less than one calendar month, nor more than three calendar months from the filing thereof (/). (/) Seep, axx^iu., po^t. 9. The summons, with a copy of the plaint annexed thereto, shall be issued by the registrar to the bailiflf forthwith, who shall serve the same within seven days, and the service thereof shall be proved, in conformity with the present practice of the county courts ; prowided always, that the Court may, upon facts duly verified by affidayit, allow substituted service where justice requires it(?). ig) See farther 0. C. Ord. XXIII. 14, 15, pp. oxix., cxx. post ; and gene- rally for the principles on which substituted service is permitted see note (6), p. 419, ante } for form of affidavit in support of application for substituted service, see p. cxxiii. , post, and for form of order, see ihid. ; as to service an a party's aMor'ney being good service on such party, see C< 0. Ord. XXIII. 12, p. cxix., post, and as to service being effected by a party's attorney, see ibid., r. 13. 10.. Where a defendant shall be out of England, the judge, or in his absence the registrar, may, upon an affidavit of the fact. Rule 10. Service when out^of turisdic- direct the service of the plaint and summons to be effected within tion of county such time and in such manner as the judge or registrar may think Court. fit (Ji). (K) For the cases in which service is allowed out of the jurisdiction, see note (o), p. 424, ante. C. 0. Ord. 11. Proceedings after Service. Rule 1. Admission. QEDEE II. PROCEEDINGS AFTER SERVICE. 1. Where any defendant desires to admit the truth of the allegations in the plaint, and to submit to the judgment of the Cpurt, he may, at any time before the return day of the original sumntons, in the presence of a registrar of a county court, or in the presence of one of his clerks, or of an attorney of one of the superior courts, sign an admission in the form contained in the APPENDIX. xcix sobedule to these orders (a), and the signature of the defendant County Court thereto shall be verified by affidavit, unless signed in the presence Orders, 1865. of the registrar of the court in which the suit is, or of one of his c. C Ord II. clerks. - — '- '■ — -' (o) See forms 17, 18, p. cxxxvi., post. 2. The admission shall be delivered to the registrar, together Rule 2. with a copy thereof for each of the plaintiffs, or, where the plaint ^9*'™ °^^'^- is filed by an attorney, with a copy for such attorney only ; and °"^^"'"'* the registrar shall forthwith file the same, and transmit a copy by post to each plaintiff, or the attorney, as the case may be, and after the receipt of such copy the plaintiff shall be entitled to the costs then already incurred, and to the further costs of attending the court and obtaining the decree or order to be made upon such admission, but to no other costs. 3. The defendant may, within eight days after the service of Rule 3. the summons, by a statement in writing signed by him, disclaim Statement In any interest in the subject-matter of the suit, or admit or deny j.^,°. ''^ any of the statements in the plaint, or raise any question of law answer may be on such statements without admitting the truth thereof, or he may filed by de- state concisely any new fact or document upon which he intends fendant. to rely as a defence at the hearing, or which he thinks advisable to bring to the notice of the Oourt. Provided always, that in exercising his discretion as to costs, the judge shall consider the fact of a defendant having or not having availed himself of the powers given by this rule (fc). (6) See form 19, p. cxxxvii., post. 4. The statement under the last foregoing rule shall be delivered Rule 4. to the registrar, together with a copy thereof for each of the Statement to plaintiffs, or where the plaint is filed by attorney, with a copy for such attorney only ; and the registrar shall forthwith file the same, and transmit a copy by post to each plaintiff or the attorney, as the case may be. 5 Where the statement is filed by an attorney he shall endorse Rn'e 5. thereon his name or firm and place of business, and that the b**attorae ^^^ defendant defends by him ; and where it is not filed by an attorney, the defendant who actually files the same shall endorse thereon his name and address. 6. The plaintiff may at any time before setting down the cause Rule 6. for hearing, by notice in writing delivered at the oflSoe of the regis- Dismissal of trar, require the plaint to be dismissed as against all or any of the ™"* defendants, with costs, without prejudice to further proceedings or suits, and such notice shall operate as an order to dismiss accord- ingly; and the registrar shall forthwith file such notice, and forward a copy thereof by post or otherwise to each of the de- fendants (c). (c) See as to dismissal of suit by plaintiff, note (o), p. 491, oMe. 9 2 APPENDIX. OEDER III. EVIDENCE. Rale 2. As to admis- sion of docu- ments. 21 & 22 Vict. c. 27, s. 7. County Court Orders, 1865. C. C. Ord. III. Evidence. Rule 1. 1. Except where otherwise provided by these orders, the Evidence to be evidence of witnesses shall be taken viod voce on oath according to taken vivi ^j^g present practice on the hearing of plaints (a). (a) For scale of allowances to witnesses, see p. cliv., post. ' 2. Where a party desires to give in evidence any document, he may, not less than five days before the hearing, give notice to any other party in the cause who is competent to make admissions, requiring him to inspect and admit such document ; and if such other party shall not within a reasonable time make such admis- sion, any expense of proving the same at the hearing shall be paid by him, whatever be the result of the cause, unless the Court shall otherwise order ; and no costs of proving any document shall be allowed unless such notice be given, except in cases where, in the opinion of the registrar, the omission to give such notice has been a saving of expense (6), (b) See as to notice to admit documents, 21 & 22 Vict. o. 27, s. 7, p. 268, ante, and note ; and for form, see form 14, p. cxjixiv., post. Eule 3. 3. Where a party desires to inspect any document in the posses- Inspection of gjgjj Qp under the control of any other party, he may, five days Dossession or ^^fore the hearing, give notice to such other party that he or his control of an attorney desires to inspect the same at any place to be appointed opposite party, by such other party ; and if such other party shall not appoint a «o^ 9'fP' -^"^^^ convenient place, or allow the party giving such notice, or his 15 k I'e^Vict 8,ttorney, to inspect such document within three days after li. 86 a. 18. receiving such notice, the judge may adjourn the hearing, and make such order as to costs as he shall think fit (c). (c) Foi* form of notice to produce, see form 15, p. cxxxv., post ; and as to production of documents generally, and non-production of privileged documents, see notes, pp. 172 — 6, ante. Rule 4. Summons to witness. Eule 6. CompulsoT} production of 4. Where a party requires the attendance of any other party, or of any witness, either to give evidence or to produce documents, he shall apply to the registrar to issue a summons requiring such other party or witness to attend the court or the registrar, as the case may be, or to attend and produce documents ; and such summonses shall respectively be drawn up by the registrar, and be issued by him to the bailiff, who shall serve the same ; and in every summons to produce documents the registrar shall insert a description of the documents required {d). (d) See forms 15, 16, p. cxxxv., post. 5. Where a party served with a summons under the last rule shall not at the hearing produce the documents required, the Court APPENDIX. CI may, upon admissiou or proof of the service of such summons County Court within a reasonable time, and that such documents are in the Orders, 1865 . possession of the party so served, and that they relate to the o. 0. Ord. III. matter then pending before the Court, make an order for their , 'r~r — production by him, and the Court may deal with them when so parties to suit. produced, aad with all costs occasioned by their non-production, 15 & 16 Vict, as may appear just : Provided that nothing herein shall prevent "■ ^^> ^s. 18 the Court from receiving secondary evidence of any document of *" which notice, to produce has been given (e). (e) See note (p), p. 173, ante, as to compulsory production of documents. 6. Where any documents are produced to the Court from ^"'^ ^• proper custody, they shall be read without further proof, if they ^objected to appear genuine, and if no objection be taken thereto ; and if the received with- admission of any document so produced be objected to, the judge out formal may adjourn the hearing, and the party objecting shall pay the proof, costs caused by such objection, in case the same shall afterwards be proved, unless the judge shaU. otherwise order. 7. Where the party desires to use at the hearing an affidavit ,».?"'.® by any particular witness, or an affidavit as to particular facts, he may, ten days before the hearing, give a notice, with a copy of such affidavit annexed, to the party against whom such affidavit is to be used ; and unless such last-mentioned party shall within five days give notice to the other party that he objects to the use of such affidavit, he shall be taken to have cousented to the use thereof. 8. Where it shall be necessary to examine a witness de bene esse, ^^^^ ?. application upon affidavit shall be made to the judge to appoint an ^^^"ne^gs^ examiner for that purpose (/). (/) See note (t), p. 184, ante. 9. Upon the application of a party desirous to examine a witness Knle 9. residing otit of the jurisdiction of the Court, the judge may, if he Special exa- thinks fit, appoint the registrar of the court vrithin the district ™'°er. of which such witness resides to take the examination of such witness (gi). {g) Compare as to special examiners, note (w), p. 185, ante. 10. Where any witness is examined by a registrar he shall be E'"'® l*?' examined on oath, and the registrar shall transcribe the answers of ^ °^5on™^d. such witness, and the deposition shall be subscribed by the witness and the registrar who shall have so examined him, and shall then be transmitted by post to the registrar of the court in which the suit or proceeding is pending. 11. The allowance to be made to witnesses for attendance either ,,, "^ " before the Court or registrar, shall in no' case exceed the highest ^.^^^^_ *" rate of the allowances mentioned in the scale in the schedule {h). (h) See p. cHt., post. Cll APPENDIX. Oounty Court Orders, 1865. G. C. Ord. IV. Hearing. Rule 1. How parties to come prepared. Rule 2. Hearing. Rule 3. Affidavits. Rule 4. Decree or de- cretal order. Rule 5. Jury. 28 & 29 Vict. 0. 99, s. 7. Rule 6. Record for trial. OBDEE IV. HBAEING. 1. Upon the day on which the summons is returnable all parties shall come to the court prepared, so far as the nature of the case will admit, with evidence to enable the judge to try the whole matter of the suit upon the merits, and then to determine the same by a final decree or to make such decretal order, or give such directions for adding parties to the suit, for making inquiries, taking accounts, realising assets, or doing any act which the judge may consider necessary to enable him to make a final decree upon a day to which the hearing may be adjourned. 2. A suit in equity shall be heard in open court as plaints in the county court are now tried. 3. Affidavits and depositions used at the hearing shall be read as the evidence of the person by whom they are used. 4. Upon the hearing the Court may dismiss the suit, or grant the relief asked by the plaint, or any part thereof, or may grant any other relief consistent with the case made by the plaint, or make any order giving directions for, or with respect to, the pro- secution of the suit, as the circumstances of the case may require, and also make such order as to costs as the Court may think fit. 6. Where the Court shall order any question of fact, or any question as to the amount of damages, to be tried by a jury, the Court shall adjourn the hearing, and appoint a day for the trial of such question by a jury ; and thereupon the practice shall be in all respects the same as that under the County Court Acts and rules now in force, in cases where either party has required a jury, including the power to direct a new trial when necessary. 6. Where the Court shall order any question of fact, or any question as to the amount of damages, to be tried by a jury, the judge shall reduce the question into writing, and the same shall be called the " Record for Trial " (a). (a) See forms of record for trial, pp. xxt., xxvi., ante. C. C. Ord. V. Decretal Orders. Rule 1. Registrar to draw order. OEDEE V. DECRETAL ORDERS, 1. Where the Court makes any decretal order the registrar shall, as soon thereafter as conveniently may be, draw up, seal, and file such order (a). (o) See for decretal orders, forms 20 — 25, pp. cxxxvii.— crlii.,fios«y and for heading and indorsement, &o., see forms 41, 42, p. cliv., post. APPENDIX. cm 2. Where a decretal order directs any debd to be preparfed and County Court executed, it shall state by what party the said deed shall be pre- Orders, 1865. pared, and to whom it shall be submitted for approval (6). C. C. Ord. V. (S) Compare as to settlement of deeds under a decree, note (y), p. 158, Rule 2. ""'«• Preparation of a deed. 3. Where upon the hearing it appears to the Court expedient Rule 3. that a receiver be appointed, such appointment shall be made by Keeeiver. the decretal order, whether the same be asked as part of the relief in the plaint or not (c). (c) See as to receivers; p. 499, ante. 4. Where real property is ordered to be sold, the decretal order -^"^^ ^• shall direct who shall Ijave the conduct of the sale, and by whom * ® o rea the conditions and contracts of sale, and the abstract of title, shall be prepared. And where siny conditions oi: contracts are ordered to be settled by a conveyancing counsel it shall name the counsel to whom they are to be submitted (d). (d) As to sales under a decree, see Ord. XXXV. 13, and note (q), p. 548, ante ; and as to the convejaneing counsel, see 16 k, 16 Vict. c. 80, a. 40, and notes, p. 158, ante. 5. Where a decretal order directs any personal property to be Rule 5. sold, the same shaU be sold, under the superintendence of the high Sale of personal bailiff, by public auction, unless the Court shall otherwise order. Property. 6. Where any decretal order directs any accounts or inquiries to Rule 6. be taken or made, or any acts to be done, by the registrar, high Accounts or bailiff, receiver, or parties, it shall name a day within which all '"I'^rws. such acts shall be done, and accounts and inquiries completed, and shall also name a day, not less than fourteen days after that day, on which the registrar shall certify the result of the accounts and inquiries, and what has been done under such decretal order, and on which the cause will be fuli^her heard, and if practicable a final decree made (e). (e) As to the certificate and bearing on further consideration, see ss. 32 and 34 of 15 & 16 Vict. c. 80, and notes {p), p. 153, and {t), p. 155, ante. OEDER VI. c. c. Ord. Vf. Execution of EXECUTION OF DECRETAL ORDERS. Orders. 1. Where a deed is ordered to be prepared, and the parties can- Rule 1. not agree upon the form thereof, the judge may, upon the applioa- ^^^ ^o"^ set- tion of either party, settle the same himself, or name a conveyanc- ^ ' ing counsel by whom the same shall be settled, subject to the final approval of the judge (a). ;a) See note (a) to last order. . CIV APPENDIX. County Court Orders, 1865. C. C. Ord. YI. Kule 2. In taking accounts, &c., registrar to be chief clerk. 15 & 16 Vict, c. 80, ss. 30, 31. 2. Where, a decretal order directs that any account be taken or inquiry made, such account shall be taken and inquiry made by the registrar, and he shall for that purpose have all the powers and discharge all the duties of a chief clerk of the Master of the Bolls or a Vice-Chancellor in the Court of Chancery ; and all parties prosecuting any such accounts or inquiries shall have the same power of summoning witnesses, including as witnesses any parties in the cause, and of examining them on such accounts or inquiries, and of compelling the production of documents, as they had on the original hearing ; and all rules as to the summoning, swearing, and examining of witnesses, and the production of documents at the hearing, shall be applicable (as far as may be) to such summon- ing, swearing, examining, and production on taking any such accounts, or prosecuting any such inquiries (6). (b) See notes, pp. 151, 152, om^e; and as to time and place of taking accounts, &o. under this rule, see C. C. Ord. XX. 5, p. cxvi., post. Eule 3. 3. Where a decretal order directs accounts to be taken, any In taking books of account in which the accounts required to be taken, or accounts, ac- ^^^ ^^ them, have been kept, shall, unless the judge shall other- be prima facie ^i^^ direct, be taken as primd facie evidence of the truth of the evidence of the matters therein contained, with liberty to the parties interested to matters therein take such objections thereto as they may be advised (c). contained, (c) Compare 15 & 16 Vict. c. 86, s. 54, and notes, pp. 218, 219, anie. Bule 4. Adrertisement for creditors, &c. 4. Every advertisement for creditors or other persons having any claim upon or interest in the distribution of any assets to be administered by the Court, which shall be issued pursuant -to any decretal order, shall direct every such creditor or other person, by a time, to be thereby limited, to send to the registrar his name and address, and the full particulars of his claim or interest and a statement of his account, and the nature of the security (if any) held by him, and at the time of directing such advertisement a time shall be fixed for adjudicating on the claims {d). {d\ Compare Ord. XXXV. 37, etseq., p. 556, and Ord. 27 May, 1865, r. 1, p. 637, ante. Eule 5. 5. No such creditor or other person need make any affidavit, or Creditors need attend in support of his claim, unless he is served with a notice not attend requiring him to do so, as hereinafter provided (e). without notice. ^ ^ ' i- v / (e) Compare Ord. 27 May, 1865, r. 2, p. 638, ante ; and see form of notice to creditor to prove his claim, p. oxliv., post, form 29. Rule 6. 6. Every creditor shall produce or transmit to the registrar any Securities, security held by him, at such time as shaU be specified in the doeumente to advertisement for that purpose, being the time appointed for be produced to adjudicating on the claims ; and every creditor shall, if required, registrar. by notice in writing to be given by the registrar, produce or trans- mit to the registrar all other deeds and documents necessary to APPENDIX. • ev substantiate his claim before the registrar at his office at such time County Court as shall be specified in such notice. Orders, 1865.' - 7. Every person claiming as heir-at-law, devisee, next of kin, C. C Ord 71 or legatee, shall, if required, by notice in writing to be given by \- " ' the registrar, produce or transmit to the registrar any pedigree or pedWeelr proof mentioned in such notice within such time as shall be therein proof to be specified. produced to 8. In case any creditor or other person shall neglect or refuse to "S'^trar. comply with the two last preceding rules, he shall not be allowed „ ^'^\ ^^ any costs of proving his claim unless the registrar shaU otherwise not albwed direct. 9. At the time appointed for adjudication upon the debts or Rule 9. claims, the registrar shall take the evidence of the executor, admi- Proof of debts nistrator, or other accounting party upon such debts and claims, °^ =lai™s. and may thereupon, in Ms discretion, allow any of such debts or claims without further proof, and may direct such investigation of all or any of the debts or claims not allowed, and require such further particulars, information, or evidence relating thereto as he may think fit, and may, if he so think fit, require any creditor or other person to attend and prove his claim, or any part thereof ; and the adjudication on such claims as are not then allowed shall be adjourned to a time to be then fixed (/). (f) Compare Ord. XXXT. 40—44, p. 557—8 ; and Ord. 27 May, 1865, r. 7, p. 639, ante. 10. Notice of allowance shall be given by the registrar to every Rule 10. creditor or other person whose claim, or any part thereof, has been Notice of allowed, and notice shall also be given by him to every such ere- *^'owance. ditor or other person as he shall think fit, to attend and prove his claim or such part thereof as is not allowed, by a time to be named in such notice, not being less than seven days after such notice, and to attend at a time to be therein named, being the time to which the adjudication thereon shall have been adjourned ; and in case any such creditor or other person shall not comply with such notice, his claim, or such part thereof as aforesaid, shall be disallowed {g). 11. Any such creditor or other person who has not before sent Rule 11. in the particulars of his claim pursuant to the advertisement, may Claims not do so two days previous to any day to which the adjudication is ^^^°^^ mede. adjourned. 12. If any claim be sent in after the time fixed by the adver- Rule 12. tisement (except as before provided in case of an adjournment), Claims too the registrar may, upon special application, entertain the same, '**®* upon such terms and conditions as to costs and otherwise, as he thinks fit (g). (g) See Ord. XXXY. 43, and note {p), p. 547, ante; and see form of notice of allowance of claims, p. czliv. post, form 30. 1 3. In taking any account directed by any decretal order, all Rule 13. just allowances shall be made without any directions for that pur- Allowances. pose in such order. CVl APPENDIX. County Court " Orders, 1865. C. C. Ord. TI. Rule 14. Application to judge for further direc- tions mero uiotu. 14. When the registrar, high bailiff, receiver, or any party has by any decretal order been directed to do any act for doing which it may be found necessary to have further directions or an order of the Court, the registrar shall apply to the judge for such direction or order, and upon such application the judge may give siioh direc- tion or make such order as he may think fit, or may appoint a time to hear all parties upon the application so made by the registrar ; and if the judge shall make such appointment for hear- ing, the same shall operate as a stay of proceedings in the suit until the day so appointed, if he shall bo direct (h). (h) See forms of order under this rule, p. oxxjdx., post, forms 21, 22. C. C. Ord. "Vir. Absent Parties. Rule 1. Inquiry as to parties. Rule 2. Notice to parties. Rule 3. Application to vary or add to decretal order. ORDER VII. ABSENT Parties. 1. Where any matter is refeired to the registrar by a decretal order, he shall, as soon as conveniently may be, ascertain if there are any pai'ties who, if the decretal order had been made in a suit pending in the Court of chancery, ought, under the 42nd section of the 15 & 16 Vict. c. 86, to be served with a notice under rule 8 of such section (ct). (o) See pp. 195 — 9, ante. 2. Where it shall be necessary to serve any parties with the notice mentioned in the foregoing rule, the same shall be prepared by the registrar,. and issued by him to the biiiliff, who shall serve the same, and upon such notice the party served therewith may attend the proceedings under the decretal order (&). 3. Any party who shall be served with a notice under the last foregoing rule, may apply to the Court at the next sitting, or by leave of the judge at any subsequent sitting, to vary or add to the decretal order (6). (6) See form 28, p. cxliv., post. C.C. Ord. VIII. Certificate, Rule 1. Registrar's certificate. ORDER VIII. REGISTRAR'S CERTIFICATE. 1. Where a registrar has been ordered to certify to the Court upon any matter he shall present to the Court a certificate in writing signed by him (as). (a) See note (p), p. 153, supra; and for form of certificate, see form 31, p. cxIt., post. Rule 2. 2. The registrar shall prepare his certificate seven days before cerHfi(Se to *^^ ^^^ appointed for presenting the same, and shall give notice lie in office. *" ^^ parties to the suite that the same lies in his office for the APPENDIX. cvii inspection of any parties interested therciu or aflfeoted thereby (6) ; County Court and he shall deliver a copy thereof to any person requiring the Orders, 1865. same, upon payment of the costs of such copy. C C Ord VIII (ft) See form 32, p. cxlviii., post. 3. Where any party interested in, or affected by, the registrar's Rule 3. certificate desires to have the same varied, he shall apply by him- Variation of self, his counsel or attorney, at the coUrt on the day appointed registrar's for presenting the same, and the judge shall thereupon hear and °™ ' °* ^" determine such application, and shall confiriu or vary the certi- ficate, and make such further order thereupon as he may think fit (c), 4. If no application shall be made to vary the certificate, it Rule i. shall be taken as confinjied, unless the judge shall otherwise Confirmation order (c). of certificate. (c) See as to varying the certificate, notes on pp. 154, 155, ante. OEDER IX. c. c. Ord. IX. Final Decree. FINAL DECREE. 1. When the Court has determined all the questions raised be- Rule 1. tween the parties the registrar shall, as soon thereafter as conve- niently may be, draw up a final decree in accordande With the judgment of the Court, and seal and file the same (a). (a) See forms 26, 27, p. cxliii., post, and for heading of and endorsement on decrees, see forms 41, 42, p. clir., post. OEDER X. c. c. Ord. X. REVIVOR AND SUPPLEMENT. ^^"''°''" 1. Upon any suit becoming abated by death, marriage, or other- Kule 1, wise, or defective in consequence of any change or transmission of iif^i^i'Tr'^j. interest or liability, the judge shall, on application of any person o 86 s 52* having a right so to apply, make an order reviving the said suit, or such supplementary decree or order as may have become necessary in consequence of any such matters as aforesaid (a). (a) See notes, pp.211 — 216, ante ; and see form of order of revivor, p. clii., post, form 38. 2. An order under the foregoing rule shall be drawn up by the Rule 2. registrar and sealed with the seal of the Court, and issued to the Order to be bailiff, who shall serve the same upon such person or persons as the served. Court shall direct. 3. After service of such order, the suit shall, as between the Rule 3. party by whom the order has been obtained and the party on Person served whom it has been served, be in the same plight and condition as it *^ "^.gb """d CVlll APPENDIX. County Court was in before it had become abated or defective as aforesaid ; pro- Orders, 1865. yided that the person so served may move the Court at the next C. C. Ord. X. sitting, or by leave of the judge at any subsequent sitting, to dis- charge such order, and such motion shall be made upon affidavit of 15 & 16 Viet *'^® facts relied upon to support the same, c. 86, s. 52. c. c. Ord. xr. ORDER XI. Petitions by Trustees, &c. PROCEEDIN'GS UNDER THE 5th, 6th, & 8th CLAUSES OP THE FIRST SECTION. Rule 1. Petition. Eule 2. Petitions by trustees. 1. All proceedings under the 5th and 6th clauses of the first section of the Act shall be by petition, and such petition need not show title except so far as is provided by the rules in this order (a). (a) See note (e), p. Ixxxix. , ante. 2. Where a trustee petitions under the said fifth clause for an order in any matter relating to the trust, he shall file his petition at the office of the registrar, and leave thereat as many copies thereof as there are persons beneficially Interested in the due exe- cution of the trust, and he shall state in such petition his own name, address, and description, and also the names, addresses, and descriptions of the persons beneficially interested, so far as he is able, and the nature of the trust, and how created, the property or money to which the same relates, and the substance of the order which he seeks to obtain (i). (J) See forms 8, 9, p. cxxviii., cxsix., post. 3. Where any guardian or trustee of any infant petitions for an order relating to the maintenance or advancement of such infant, he f^hall file his petition at the office of the registrar, and where any person, as next friend of an iufant, petitions on behalf of such infant for an order upon or against the guardian or trustee of such infant, he shall file his petition at the office of the registrar, and leave thereat as many copies thereof as there are guardians or trustees. And in such petition shall be stated the names, addresses, and descriptions of the petitioner, and of all the persons to whom such order is intended to relate, and shall also state the nature of the guardianship or trust, and how created, of the property to which the trust relates, and the substance of the order which the petitioner seeks to obtain (c). (c) See form 10, p. exxx., post. Eule 4. 4. Where any person intends to apply under the 8th clause of Application for tjjg flrgt section of the Act, for an order in the nature of an injunc- mj unction. ^^^^ (except as is provided in Order XII. for urgent cases) he shall deliver at the office of the registrar a notice of his intention to apply for the same, together with as many copies thereof as there Eule 3. Petitions by guardian or trustee of infant or next friend. APPENDIX. cix are persons upon or against whom such order is intended to be County Court obtained, and he shall state in such notice his own name, address, Orders, 1865. and description, and, so far as he can, the names, addresses, and c Ord XI descriptions of all such persons, and also the substance of the ■ order which the petitioner seeks to obtain (6). (6) See note (/), p. Ixxxix., ante; for form of notice, see form 12, p. cxxzli., post. 6. Under this order petitions shall be filed and notices shall be Rule 5. delivered at the office of the registrar seven days before the sitting Time of filing of the Court at which the petition is to be heard or application Vf^l^^ona and made. giving notices. 6. The registrar, upon receiving any such petition or notice and Rule 6. the copies thereof, shall issue the copies under the seal of the Registrar to Court to the bailiff for servjce upon the respective persons to whom '^^"^ notices. they are addressed, together with a notice, signed by himself and under the seal of the Court, informing them of the day and hour on which the petition or application will be heard, and that if they do not attend, either in person or by their attorneys, such order will be made and proceedings taken as the judge may think just and expedient. 7. The bailiff of the court shall, four days at least before the Rule 7. hearing, serve all copies of such petitions and notices. Service of 8. Upon the hearing of any petition or application under this Petjt'oiis and order, unless the judge shall otherwise direct, the facts relied upon „ ' ^ in support of or in opposition to such petition or application shall paots may be be proved by affidavit (c). supported by affidavit, (c) As to time for filing affidavits to be used on petitions, see note {d), p. 464, ante. 9. Where the judge makes an order upon such petition or appli- Rule 9. cation, the registrar shall, as soon thereafter as conveniently may I^^g'strar to Tj ij£ii.j draw up order. be, draw up, seal, and nle such order. '^ 10. The preceding orders relating to suits shall, in all cases Rule 10. where they are applicable, be construed as extending to pro- Orders as to , . J J.1, ■ J suits to extend ceedmgs under this order. ^^ proceedings. OEDER XII. c.c. Ord.xn. Motions, &c. EX PARTE APPLICATIONS. 1. Wherever in any suit or proceedings it shall become neces- Rule 1. sarv to secure the possession of any property, or to obtain security Peremptory ^ .^ ..,:. J. c J.I. motions. from any person for any monies m his possession, or to eniorce the deposit or the payment into court thereof pending litigation, or the immediate sale of any goods or chattels, and the deposit or pay- ment into court of the purchase-money thereof, or to obtain an order in the nature of an injunction, any party may apply ex parte to the judge, either in or out of court, upon affidavits setting forth the facts rendering such order immediately necessary, and upon ex APPENDIX. Connt;y Court such application the jtidge may either make an order absolute in Ord ers, 18 65. the first instance, or make an orler to be absolute at any time to C. C. Ord. XH. ^ ordered by him unless cause be shovn to the contrary, or may — make such other order or giye such directions in the matter as the judge may think fit, and may order immediate execution (o). Ex parte motions. Rule 2, Orders how drawn. Eule 3. Orders how drawn and executed. (a) As to ex ^arte injunctions, see note p. 605, cmte, and generally as to ex parte motions, see note (a), p. 529, ante. For forms of order under this rule, seep, cxxsix., post, forma 21,22. 2, The draft of all orders under the foregoing rule shall be pre- pared beforehand by the registrar of the court in which such suit or proceeding is pending, and shall be presented by the party vrhen he m^kes such application to the judge to settle and sign. 3. The draft so sigi^ed shall be transmitted by the applicant to the registrar of the court in Tvhioh the suit or proceeding is pend- ing, who shall draw up the order in conformity therewith, and seal and file the same, j^nd issue a copy thereof under the seal of the court to the bailiff for service, and execution shall be issued thereon, as by the order is directed. CO. Ord. XIII. Amendments. OEDER XIII. AMENDMENTS. Kule 1. Amendments. 16 & 16 Vict, u. 86, ss. 49 and 63. 1. The judge may, at or during the hearing, and before a final decree or order be made in any suit or proceeding under the Act, exercise all powers of amendment mentioned in the 67th section of the statute 19 & 20 Vict. c. 108, so far as the same may be appli- cable to suits and proceedings in equity, and also all the powers and authorities of a judge of the High Court of Chancery ; and " The County Court Kules, 1857," which are numbered respect- ively 91, 92, 93, 94, 95, 96, 97, 98, 99, and 100, shaU apply, so far as they are applicable, to all suits and proceedings under this Act (a). Amendments (") -^^ to amendments in chancery, see note (p), pp. 216, 217, amte ; and at hearing. *' *" amendments on acconnt of misjoinder, notes (y) and (z), pp. 207, 208, ante; and the county court rules, 1857, 91 — 100, referred to in the text. C. C. Ord. XIT. Affidavits. Rule 1. Affidavits to he expressed in the first person. ORDER XIV. AFFIDATITS(a). 1. AU affidavits shall be expressed in the first person of the deponent. (a) As to the form of affidavits, and the manner of swearing them, and the irregularities which, under special circumstances, are allowed in them, see notes (a) and (6), pp. 463, 464, ante; and as to the registrar's duty on rejecting affidavit, see C. C. Ord. XX. 3, p. cxvi., post. APPENDIX. . Cxi 2. All aflB davits shall state the deponent's age, occupation. County Court quality, and place of residence, and also what facts or circumstances Orders, 18B5. deposed to are within deponent's own knowledge, and his means of C C Ord XIT knowledge, and what facts or circumstances deposed to are known — to, or believed by him by reason of information derived from other a T sources than his own knowledge, and what such sources are. knowledge to 3. The costs of afiSdavits not in conformity with the last two be stated. preceding rules shall be disallowed on taxation, unless the Court Kule 3. shall otherwise direct. *^°^*^ °^ affidavits when 4. Before any affidavit is used it shall be filed in the office of "i'saUowed. the registrar (6). p.,.J"le4^_ (jb) As to time for filing affidavits, see note (d), p. 464, ante. davits. 5. No affidavit in which there is any knife erasure, or which is I^^le 5. blotted so as to obliterate any word, or which is illegibly written, ^™^".''«' l"'"*- or so altered as to cause it to be illegible, nor any affidavit in ne^ion &e. which there is any interlineation, unless the person before whom in affidavits. the same is sworn shall have duly authenticated such interlinea- tion with his initials in such manner as to show that such inter- lineation was made before it was sworn, shall be filed or used in any suit or proceeding (c). (c) See note (a), supra. ORDEE XV. c.c. Ord.xv. Rehearing. REHEARING. 1. No decree or order once made shall be reheard unless in any Rule 1. case in which the judge, on special grounds, shall think such re- j^ebearing to V- JX1.11.J. j.i_-j be allowed on neanng necessary, and then only on such terms as the judge may gpggjai groands think just (a). only, (a) Compare note (h), p. 521, ante. ORDER XVI. c.c.Ord.xvi. Enforcement. ENFORCEMENT OF DECREES AND ORDERS (a). 1. On the application of the party entitled to the benefit of the Rnle 1. decree or order, the registrar shall issue to the bailiff a copy of "^•'"''e °' "«- such decree or order under the seal of the court with a notice to the party to be bound endorsed thereon, and the bailiff shall forthwith serve the same upon the party to whom such notice is addressed. (a) See notes to Ord. XXIX., amte, pp. 513—8. 2. No process shall issue to enforce any decree or order, unless Eule 2. XII Coubty Court Orders, ISefl. G.C.Ord.XVI. When execu- tion may issue, Eule 3. Warrant of fi. fa. Rule 4. Warrant of possession or APPENDIX. by leave of the judge, until three days after a copy thereof under the seal of the court shall have been served upon the party to be bound thereby. 3. Where any decree or order is made for the payment of money into court or by one party to another, the registrar shall, after the expiration of the time, if any, appointed by the decree or order for the payment thereof, and after the expiration of the time limited by this order, upon application by the person having the conduct of the suit, or by the payee, issue to the bailiff of the court a writ of fieri facias, as a warrant of execution, as provided by section 94 of 9 & 10 Vict. c. 95 (6). (J) See form 34, p. oxlir. , post. 4. Where by decree or order made in any suit or proceeding for the delivery up to any person of lands or tenements, goods or chattels, either as owner thereof, or to be sold, or to be held in possession until an order is made as to the disposition thereof, the registrar shall, upon the application of the person entitled to such possession, issue to the bailiff either a warrant of possession, or warrant of assistance, as the case may require (c). (c) See forms 35 and 36, p. el., cli., post. C.0.Ord.XVII. Funds in Court. Rule 1. Registrar to obey in the receipt and payment of monies under this Act the treasury in- structions. Rule 2. Payment into court. ORDER XVII. FUNDS IN COURT (a). 1. All monies ordered to be paid into court shall be received by the registrar, and the duties of the registrar and the treasurer with respect to such monies shall be in all respects the same as if the monies received under the Act had been received under the autho- rity of the County Court Acts now in force, and all instructions issued or to be issued by the lords commissioners of Her Majesty's treasury, shall apply to monies received under the Act unless therein otherwise directed. (o) Undertlienew CountyCourt Act of 1867, 30 & 31 Vict. o. 142, s. 96, p. xcvi., ante, all monies paid into court under the Act of 1866, are to be invested in post-of5oe savings banks, as directed by rule 6, infra, with regard to sums under 301, 2. Where money is directed to be paid into court, the party directed shall attend and pay the same into the office of the regis- trar (6), and obtain a receipt for the amount ; and in case of stock, shares, or other securities, a transfer shall be made into the names of the registrar and treasurer of the court less the broker's account and charges, and the certificate of transfer, together with such accounts, shall be filed in the office of the registrar, who, with the treasurer, shall hold such monies, stocks, shares, or securities in trust to attend the order of the Court. (6) See now note (a), s«pra. APPENDIX. CXIU 3. Where any party to a suit or proceeding is desirous of having County XJourt any fund in court in which he is interested, or any part thereof, Oi'ders, 1865; invested, the Court may at any time order the investment thereof ; C.C.Ord.XVII. and such funds may be invested in the purchase of three per cent. consolidated annuities, in the names of the treasurer and registrar Tnyeat' t f of the court for the time being, with or without the name of the monies under person (if any) found or declared by the Court to be immediately order of Court, entitled to the interest of the fund, and the Court may further order that the person (if any) so entitled shall fronl time to time receive the dividends thereof. 4. Where the investment is in the names of the treasurer and Rule i. registrar alone, the registrar shall from time to time receive the Interest on dividends of all the funds so standing in their names, and shall ^''''estments. re-invest the dividend in the same names, except where and so far as the Court shall otherwise direct, and shall apportion the amount so re-invested in his books to the right accounts. 6. Where the sum to be invested in any case in the same inte- Euie 5. rest does not exceed 30Z. in one year, the same may, if the judge Where sum think fit, be deposited in the post-office savings bank in the name ?^^* *''*° ^'"• of the registrar for the time being in trust for the parties interested inveg^d ;„ therein, and in such case the person (if any) entitled to the inte- post-office rest on such sum shall be allowed to receive the annual addition savings banks. made to the same by way of interest, on such certificate or autho- rity from the registrar as the Postmaster-general may from time to time require. 6. Where any order has been made upon any person to pay to Eule 6. the Accountant-general in Chancery any sum of money under sec- Service of tion 5 of the Act (c), such order shall be drawn up by the regis- ""^ 5®"^ f"?^^"^ trar and issued to the bailiff of the court ; by whom the same shall ^jj be served personally upon the person ordered to make the pay- ment. (c) This section relates to the Legacy Duties Act, see note (5), p. 65, ante ; for form of order to pay legacy into court, see p. olii., post, form 39. 7. Where default shall be made in the production of the cer- Rule 7. tificate of the Accountant-general the registrar shall give notice in Where default writing to the judge of the fact of such default, and the judge may made in paj- thereupon direct a warrant of execution to issue in accordance with Accountant- section 5 of the Act. general of the 8. Where any married woman is interested in any principal Court of money, stocks, shares, or securities exceeding in value 200i. or Chancery. 101. in annual payments, she shall be examined by the judge Rule 8. apart from her husband to ascertain whether the same shall be ^^*^"^ paid to him or made the subject-matter df a settlement, but if she be under age the Court shall order a proper settlement to be made (d). (d) Compare note (J), p. 366, ante. CXIV APPENDIX. County Court Orders, 1865. 0. 0. Ord. XVIII. Transfer to Chsmcery. Rule 1. Transfer to Court of Chan- cery -wliere subject matter exceeds the amount to which jurisdic- tion is given by Act. OEDER XVIII. TRANSFER OF PROCEEDINGS TO COURT OP CHANCERY. 1. If during the progress of any inquiry uader order of the Court it shall be made to appear that the subject-matter of the suit or proceeding exceeds the amount to which the jurisdiction of the Court is limited, the registrar may proceed with the particular account or inquiry which is then before him, unless he thinks it inexpedient so to do, but he shall at the next sitting of the court present a certificate of the state of the suit and proceedings, and if the judge shall be of opinion that such excess exists, he shall make an order for the transfer of the suit or matter to the Court of Chancery ; and the registrar shall make and file with the record a copy of such certificate and order, and shall transmit the original, together with the order of the judge thereupon, under the seal of the court, by post or otherwise, to the oflice of the clerk of records and writs in Chancery, or to such other ofiSce or officer as the Lord Chancellor may by general order direct, and shall also send notice, by post or otherwise, of the fact, to all parties and persons entitled to be served with a copy of the decree (a). (a) See sect. 9 of the Act, p. xoi., omte, and see form 40, p. cliii., post. C.C.Ord.XIX. ORDER XIX. APPEAL. 1. Where any party desires to appeal under section 18 of the Act against the determination or direction of a judge of a county court, such appeal shall be had in accordance with the provisions of section 15ofl3 '''°*" or so altered as to cause it to be illegible, nor any affidavit in neation &c. which there is any interlineation, unless the person before whonj in affidavits. the same is sworn shall have duly authenticated such interlinea- tion with his initials in such manner as to show that such inter- lineation was made before it was sworn, shall be filed or used in any suit or proceeding (c). (c) See note (a), supra. ORDEE XV. CO. Ord. XV. Rehearing. REHEARINa 1. No decree or order once made shall be reheard unless in any Kn'e 1. case in which the iudge, on special grounds, shall think such re- Ji'^^anng to V . Jii 1 1 i it • J be allowed on hearing necessary, and then only on such terms as the judge may gpeei^i grounds think just (a). only, (a) Compare note (i), p. 521, ante. ORDER XVI. c.c.Ord.xvi. Enforcement, ENFORCEMENT OF DECREES AND ORDERS (a). 1. On the application of the party entitled to the benefit of the Kn'e 1. decree or order, the registrar shall issue to the bailiff a copy of Service of de- such decree or order under the seal of the court with a notice to the party to be bound endorsed thereon, and the bailiff shall forthwith serve the same upon the party to whom such notice is addressed. ddressed. (o) See notes to Ord. XXIX., amte, pp. 513—8. 2. No process shall issue to enforce any decree or order, unless Eule 2. xu APPENDIX. Conhty Court by leave of the judge, until three days after a copy thereof under Orders, isefi. the seal of the court shall have been served upon the party to be C. C. Ord. XVI. bound thereby. 3. Where any decree or order is made for the payment of money into court or by one party to another, the registrar shall, after the expiration of the time, if any, appointed by the decree or order for the payment thereof, and after the expiration of the time limited by this order, upon application by the person having the conduct of the suit, or by the payee, issue to the bailiff of the court a writ of fieri facias, as a warrant of execution, as provided by section 94 of 9 vtr tr Tm .... , C. C. Ord. XX. 7. Where a registrar is not prepared to certify to the Court on the day mentioned in the order he shall apply to the judge for an „ ^"'^ ®' extension of time, and state the reason for making the application, regUtrar''^'^"™ and he shall give notice, by post or otherwise, to the parties of Rule 7 the enlargement of the time, and of the day on which he is to Further time certify. for certificate. 8. Whenever a notice for appeal is given, the registrar shall Rule 8. detain the proceeds of any execution which may then be in or Registrar to may come into his hands pending such appeal, to abide the event tfaWdeT^^t of such appeal, unless the judge shall otherwise order. of appeal. ORDEE XXI. ^•^.•?''^H^- High BaiUff. DUTIES OF HIGH BAILIFF. 1. Where any personal property is directed to be sold by R"le 1. auction, the high bailiff shall superintend the sale ; and where the ^^ *" ^^'® °^ property is to be sold by private contract, he shall carry out the perty. directions of the Court in respect of such sale. 2. The high bailiff shall serve all documents issued to him by Rule 2. the registrar for service, and execute all warrants. Services and 3. Where a warrant shall direct the high bailiff to take posses- ^^™ ^°^^' sion of, without selling or delivering to a party, any goods or poggession " chattels, he shall make, or cause to be made an inventory or ap- praisement of the goods or chattels which he may take into his possession, and may, upon receiving as a deposit the amount of such appraisement or suflBcient security, to be approved by the registrar, for the safe custody, and for the delivery up of posses- sion upon request, of such goods and chattels, relinquish the possession thereof on condition that the same shall be re-delivered to him or held to abide the order of the Court. 4. AH moneys coming into the hands of the high bailiff shall Rule 4. be paid over by him to the registrar to the credit of the suit or Ray™ent over proceeding in which the same was so received by him within twenty-four hours after he shall have received the same. ORDER XXII. '-'i^Lt™^- DUTIES OP RECEIVER (a). 1. Every receiver appointed by the Court, other than the high Riile 1. bailiff, shall give such security by bond to the registrar for the ^°^'^«'' *>?_ cxvui APPENDIX. County Court faithful discharge of his duties, and the payment over of money. Orders, 1865. as the Court shall direct. .v^.»->ru..a.Aii. ' ^g^ ^g j.g reoeivers, see note (a) p. 499, ante, and see form 33, p. cxlviii., pos«. Rule 2. His accounts to be audited by registrar, and when. Rule 3. To produce Toucher, and if required verify on oath. Rule i. To produce account for audit upon notice. Rule 5. Audit once a year. Rule 6. Parties need not attend audit. Rule 7. Court may order income to be paid direct to parties. 2. The receiver shall submit to the registrar, and the registrar shall audit, the accounts of the receiver, which need not be in any particular form, as soon as conveniently may be after the receipt or realisation of the assets, and immediately after such audit shall pay over to the registrar the balance found thereby to be in his hands. 3. The registrar may require any receiver to produce any receipt, accounts, and vouchers necessary for verifying the accounts, and may disallow any item not proved to his satisfaction, and may, if he shall think fit, require any receiver to verify such accounts and vouchers upon oath. 4. The receiver shall, at any time before the complete realisation of the assets, produce his accounts to be audited in manner pro- vided by this order, upon receiving seven days' notice in writing from the registrar so to do, and such notice may be sent by post or otherwise to the address of the receiver. 5. Where the duties of the receiver are continuous, no longer period than one year shall in any case be allowed to intervene between each audit. 6. In no case shall it be necessary for any party to attend at the audit of the receiver's account, but where a party is dissatisfied with a receiver's account he may apply to the Court or registrar for a revision of the registrar's allowances. 7. The Court may order the receiver to pay over, at such time or from time to time as it shall see fit, to the party entitled to the beneficial interest therein, or to the guardian of any infant, any yearly or other accruing rents or interest instead of paying the same into court, and to take credit for such payments in his accounts when audited. 0. C. Ord. XSIII. Practice. Rule 1. Proceedings may be -wholly or partly printed. Rule 2. Documents to be sealed. Rule 3. Service. OEDER XXIII. PRACTICE. 1. All plaints, petitions, statements, and documents whatsoever in any suits or matter under the Act which are required to be filed shall be on foolscap paper, and may be wholly or partly printed or written, and dates and sums occurring therein may be expressed in figures. 2. All judicial or official documents in any suit or proceeding, and all copies thereof respectively issued by the Court, shall be stamped by the registrar with the seal of the court. 3. Every document, the mode of serving which is not specially defined by these orders, may be served, and the service thereof APPENDIX. cxix may be proved, in conformity with the practice that has heretofore Couuty Court prevailed in the coimty courts a» to the service of summonses, Orders, 1865. excepting so far as the same relates to the time of service. C. C. Ord. 4. Where any party to a suit or proceeding changes his attorney XXIII. he shall give notice in writing of such change to the registrar, R^d^ stating the name or firm and place of business of the new attorney, Change of and the registrar shall file the notice (o). attorney. (a) See form 37, p. clii., post. 5. No suit or motion for a decree or decretal order shall be Eule 5. heard until the same shall be set down for hearing. Setting down 6. The tiipes of the sitting of a county court in matters of ^'"■' ''earing. equity shall be those appointed for the transaction of the general '^"'^ ^• business of the court, unless the judge shall otherwise order and .;fZ^ ""^ ^liity shall appoiut a special dSly or days for a sitting of the Court in matters of equity. 7. Where any party to any suit or proceeding is unacquainted Rule 7. with the Christian name of any person whose name he desires to Where Chris- insert in any plaint, proceeding, or document, he may describe such *'*'','^ °*™® person by his surname, or by his surname and the initial of his Christian name, or by such name as he is generally known by. 8. Where any proceedings or documents are filed an extra copy. Rule 8. in addition to the copies to be delivered imder these orders, shall "P^, "^® 01 lUClSGi be left with the registrar for the use of the judge. 9. The registrar shall transmit by post, prepaid, to the judge, ^"'^ 9. five days before the sitting of the Court, all copies of proceedings ja'I' and documents left for his use under these orders. iudee. 10. Copies of all proceedings or documents shall be prepared by j{^]g jg the registrar for any person requiring the same, upon payment of Registrar to the costs of such copies when the order for the same is given. prepare all 11. Where by these orders any act is to be, or may be, done ""P"^^- by any party to a suit or proceeding, such act may be done either , ~' j' in person or by his attorney, ^^^g ^^ 12. Where a party acts by attorney, service of any proceeding counsel or or document upon such attorney, or delivery of the same at his attorney. office, or sending the same to him by post, shall be good service Rule 12. upon the party for whom such attorney acts, as upon the day when Service on the same is so served or delivered, or upon which in the ordinary g„fj™e^t ^ course of post it would be delivered, except in oases where by these orders personal service upon a party is required (6). (J) Compare Ord. III. 7, and notes, pp. 388 — 9, ante. 13. Any proceeding or document may, by leave of the registrar, I^"le 13. be served by the attorney of the party requiring to effect such ^^[™g ^ *® service ; but the costs of such service, and proof thereof, shall not be allowed, except by order of the judge. 14. Where by reason of the absence of any party, or from any Rule 14. other sufficient cause, the service of any summons, notice, proceed- Substituted ing, or document cannot be made, or ought in the opinion of the service. cxx APPENDIX. County Court judge to be dispensed with, the judge may wholly dispense with Orders, 1866. gmjij service, or may, at his discretion, order any substituted C. C. Ord. service or notice by advertisement or otherwise in lieu of such XXIII. service (c). (c) See note (g), p. xeviii., ante. ] 5. The judge shall order in what newspaper any advertisement which may from time to time be ordered in any suit or proceeding shall be inserted ; and when there is no fund in court, the expense of such advertisements shall be paid to the registrar by the party requiring the same before they are inserted. 16. All advertisements to be inserted in the " London Gazette " shall be transmitted to the registrar of county court judgments in London, who shall cause them to be classified and inserted in lists under the direction of the commissioners of Her Majesty's treasury. ] 7. The judge may order what party shall have the conduct of any suit or proceeding (d), or any part thereof, and may rescind or alter such order, or make new orders in that behalf, from time to time as he shall think fit. {d) See note (/), p. 147, ante, as to conduct of causes. By advertise- ment. Kule 15. In -what news- papers. Costs to be prepaid. Kule 16. Advertise- ments in ■ "London Gazette." • Eule 17. Conduct of suit. Eule 18. Court may enlarge or abridge periods men- tioned in these orders. Eule 19. Undertaking by next friend to pay costs. 18. The judge may, if he think fit, enlarge or abridge any of the times fixed by these orders for taking any step, or filing any document, or giving any notice, in any suit or proceeding. 19. Before the name of any person shall be used in any suit or proceeding as next friend of any infant, married woman, or other party, such person shall sign an undertaking, in the form given in the schedule, to be responsible for any costs to which the plaintiff or applicant may become liable in the course of the suit or pro- ceeding, and such undertaking shall be annexed by the registrar to the plaint or petition (e). (e) See note (*), p. 166, ante; and see form 1, p. oxxii. post. Where the undertaking has not been signed or annexed, the proper course is not to dismiss the plaint, but to order it to stand over until such undertaking has been signed and annexed ( WUliams y. Williams, 2 W. N. 203. ) Eule 20. 20. Where suits or proceedings shall be commenced in diflferent Transfer of courts by parties in the same interest such suits or proceedings shall oeedlnga^rom ^^ transferred to the court in which the first plaint or petition was one court to filed, and shall there be proceeded with in the same way in all another in cer- respects as if they had been commenced in that court. (/). tain cases. Eule 21. Taxing of^cer. (/) See note (5), p. 394, ante. 21. The registrar shall be the taxing officer of the court (g), (jf) As to power of taxing masters, see note (5), p. 576, amte. Eule 22. 22. Creditors are to be entitled to interest in respect of debts as debts!^* ™ *° ^"^ °^ *^®°^ *^ "^''y ™terest after the rate they respectively APPENDIX. CXxi carry, and as to all others after the rate of £4 per cent, per annum, County Court from the date of the decretal order, and to costs of successfully Orders, 1866. proving such debts according to the scale of costs in that ~c~C~Ord behalf (A). JXIII. " 23. Interest is to be computed on legacies ifter the rate of £4 per cent, per annum, from the end of one year from the date of int^est ^^ the testator's death, unless otherwise ordered or a different rate is legacies. directed by the will (h). (A) As to interest on debts and legacies, see Ord. XLII. 9, and note (i). p. 612, ante. 24. A note of every decretal order or final decree made in any Rule 24. suit, or of an order made on a petition, shall be transmitted to Decrees to be the registrar of county court judgments in London, who shall g^^j^^Ys^' register the same uader the direction of the commissioners of Her ^° * Majesty's treasury. 25. All proceedings and documents may be in forms similar to Rule 25. the forms in the schedule to these orders where the same are Forms, applicable ; and in cases where no forms are provided, parties shall frame the proceedings or documents, using as guides those contained in the schedule. 26. The rules and forms and practice heretofore in force in the Rule 26. county courts shall, subject to these orders, be adopted with General prac- reference to suits and proceedings in equity, so far as they shaU be ^^^ ''"^®' respectively applicable. OEDER XXIV. C. c. Ord. XXIV. INTERPRETATION. Interpretation. 1. In these orders the following words shall have the several Rule 1. meanings hereby assigned to them, over and above their several Interpretation ordinary meanings, unless there be something in the subject or context repugnant to such construction ; (viz.) (1.) The -words " the Act " shall mean 28 & 29 Vict. c. 99 : the Act, (2.) Words importing the masculine gender shall include Masculine. females : (3.) "Words importing the singular number shall include the Singular. plural, and vice versd : (4.) The word " party " shall mean a party to a suit or proceed- ing ; and "person " shall mean any person, whether a Person, party to the suit or proceeding or not ; and the words " person " or " party " shall include a body politic or corporate : (5.) The word "affidavit" shall include statutable affirma- Affidavit, tions and attestations upon honour, and the word " sworn " shall include affirmed according to the statute and attested upon honour : CXXU APPENDIX. County Court (6.) Where any number of days is mentioned, it shall mean Orders, 1865. "clear days": C. C. Ord. (?•) The word " court " shall mean the county court having XXIV. jurisdiction in the suit or proceeding, and the words ]w " judge " and " registrar " shall respectively mean the Com-t judge and registrar of that court. Bjj;];^ (8.) The -words "high baUifif" shall include any assistant bailiff lawfully appointed by the high bailiff, and the word " bailiff" shall include high bailiff. J. B. Dasent. Rupbet A. Kkttle. D. D. Heath. WxiLiAM Fdknbb. J. WOELLBDGE. I approve of these orders and forms to come into force io all County Courts on the 1st day of October, 1865. CRANWORTH, C. County Court SCHEDULE OF FORMS Forms, 1. TO THE COUNTY COURT ORDERS IN EQUITY FOR REGULATING THE PRACTICE OP THE COUNTY COURTS. 1. Undertaking UNDERTAKING BY NEXT FRIEND OP INFANT TO BE as to costs. RESPONSIBLE FOR DEPENDANT'S COSTS (a). In the County Court of holden at I, the undersigned , being the next friend of A. B., who is an infant, and who is desirous of entering a plaint [^or of taking proceedings] in this court against C. D. of, -t m f^ -4 s O pp I o n ta cy F4 1 1 1 <3 <1 .3 1- 1 n APPENDIX. clix ° d oft fe5 O EH o >-H a TO t-< F4 & i-a EH I— I t> & P3 > II 4s For what purpose paid or allowed. Names of Persons to whom paid or allowed. Bate when paid or allowed. Folio ia Cash Book. 11 11- On what Account and from what source received. Names of Persons from whom received. Date when received. Folio in Cash Book. County Court Form (C). (C.) Registrar's Ledger. clx APPENDIX. County Court Costs. CostsofCounsei A SCALE OF COSTS AND CHARGES aad Attoiuies. TO BE PAID TO COUNSEL AND ATTORNEYS IN THE COUNTY COURTS. Undw the Provisions of the Slaimte 28th and 29th Victoria, Chapter 99. Lower Scale Higher Scale not exceeding above ifilOO. £100. £ s. d. £ s. d. Instructions to sue or defend . , 10 15 Examining, and taking minutes of evi- dence of each, witness, afterwards aUowed by the judge . . ..030 050 Application for substituted service or service out of England . • .040 060 Service sum allowed by judge Drawing plaint or petition or statement by defendant, or preparing instructions for counsel to draw the same, and attendance therewith , . . . 13 4 10 Fee to counsel and clerk therewith .13 6 2 4 6 Attendance and filing plaint, petition, admission, or statement . ..034 068 Every copy of plaint, petition, admis- sion, or statement . . . • .020 030 Preparing, and service of notice to in- spect, admit, or produce and fair copy Attending inspecting documents , Mileage one way from the attomey'a place of business to place of inspection, for each mile ... . . Preparing admission by defendant All necessary aflBdavits not exceeding five folios, including filing, each .050 070 If above five folios are allowed upon taxation, then for every additional folio 010 010 Attending court, and conducting cause where no counsel employed . . 1 10 2 2 Instructions for, and drawing and copy briefs, in causes or matters in which counsel is employed, including attend- ance on counsel therewith . ..200 300 4 6 5 r 6 6 3 5 APPENDIX. clxi Fee to counsel and clerk, not exceeding . Attending court on hearing with counsel ...... Attending court to support or oppose^ any application or motion without counsel . . . . . . Attending in the last-mentioned cases with counsel ..... Fee to counsel and derk not exceed- ing Every attendance on the registrar which he may think upon taxation was necessary ... ... When the attendance is longer than one hour, then for every addi- tional hour or part of an hour The like costs for attendance before an examiner. Witnesses' expenses in conformity with rule. Lower Scale Higher Scale County Court not exceeding above £100. Costs £100. J ^ CostsofCounsel £ s. 2 4 d. 6 £ s. 3 5 d. 6 10, 15 15 1 10 15 1 3 6 2 4 6 5 4 7 6 Occasional Costs. Where in the course of a cause or matter a party suing or sued in a fiduciary or representative character necessarily in-, curs costs not allowed upon taxation between party and party, the registrar shall apply to the judge to allow such sums as he may think fit out of any funds in court applicable to that pur- pose. For attorney's journey to attend hearing, mileage one way from attorney's place of business to court, for each mile .006 Where in opinion of registrar he could not return same night . . .110 Drawing accounts and other documents not included in the foregoing costs, but allowed upon taxation of costs to be necessary, per folio . . ..008 For perusing and adapting old abstracts of title, per three sheets . .034 Drawing abstracts of additional deeds and documents, per three sheets ..068 For preparing conditions and contracts of sale, and fair copy, per folio . .008 6 1 11 6 8 3 4 e 8 8 and Attornies. clxii APPENDIX. Comity Conrt Lower Scale Higher Sra.le Costs lot exceeding above *100. '- flOO. Costs of Counsel £ a d. £ s. d. Where condition and contract are not submitted to counsel, in addition to the above there shall be allowed for perusing abstracts, every three sheets 3 4 3 4 Where conditions and contracts are to be settled by counsel, instructions to accompany abstract, and attendance therewith, or letter . . ..068 13 4 Fee to counsel . . . ■ Fair copies of abstracts of title or of ac- counts, documents, opinion of counsel, and of papers received from counsel, per folio 004 004 Attending sale 110 2 2 Where by any proceeding taken by the opposite party it becomes necessary to advise or receive instruction from a client in the progress of a suit or mat- ter, for each attendance Attending taxing costs Letters and messages . . . . Costs op the Day on Adjottrnmbnt. Attending court where no counsel em- ployed ... ... Attending with counsel » . . . Refresher fee to counsel aijd clerk not exceeding . . . . .13 6 2 4 Witnesses- expenses same as on trial. Costs op Appeal. Preparing notice of appeal, including copies and service . . ..070 0100 Preparing case, including copies . . 10 16 Attending judge to sign . . ..050 070 Attending judge in case of diflference to settle 10 15 Application to stay proceedings ..070 10 Transmitting case and copies, including notice to successful party . .050 070 Application to judge for leave to proceed on judgment 5 7 Depositing decree or order of Court of Appeal 030 040 N.B. The registrar is to faa the bills of costs upon the lou'cr scale when the subject matter of the suit or proceeding does not exceed 100^, and upon the higher when it exceeds 1001. 6 8 13 4 5 7 5 TTRNMB NT. 10 15 1 10 15 APPENDIX. elxiii We, John BnRY Dasent, John Worlledgb, Rupert Alfred County Court Kettle, and William Furner, being County Court judges ap- Costs. pointed to frame rules and orders for regulating the practice of QQgjg(,fOo„ngg| the courts, and forms of proceedings therein, under the 32nd sec- and Attornies. tion of the 19 >uwaya GElifERAL INDEX. clxxi ANTICIPATION, clause restraining, does not prevent the Court from exercising the powers given by the Leases and Sales Acta, 252 APPEAL, 186, 358; Consolidated Order as to, 520 Bankbuftct in, to Court of Appeal, 137 ; to House of Lords, 139 Cbambebs, pkom, 150 Costs, fob, not generally allowed, 521 (i) Court of, Act as to, 136 Jurisdiction of, in bankruptcy, 137. [See Lords Justices.] Declaration op Title Act, under, 343, 345 Decbees and Ordbbs, fbom, generally, 520 Application for, made by motion, or petition of course, 131 ; by parties served with notice of decree, 197 (d) Deposit to be paid on setting down, 523; to be carried to appeal deposit account, 524 Evidence on, 521 (6), 632 (6) House of Lords, to, 138, 139 (/) Inrolment, befipre or after, 521 (a) Petition for form of, 523 ; signature to, 523 (e) ; presentation of, 524 Uehearing, by, 621 (6) Staying proceedings, pending, 522 (d) Time for, 521, 497, 498 {g) Land Registbt and Tbanbfeb Act, under, 320 Palatine Coubt, from, 136 (o) Sfeoial Case, from order on, 133 (i) Tbustbes' Act, under. 111 (/) APPEARANCE, Consolidated Ordei; as to, 420 Amended bill to, 421 (e) Attachment, not to be enforced by, 426 Chambers, in, 546; of persons in same interest, not to be separate, 551 Default of bill dismissed for, 491 Defendant, /or, entered by plaintiff, 421, 422 ; unless infant, &c., 422 Entered Vfith Record and Writ Clerks, how to be, 378 ; registrar, 385; notice of appearance to be given to adverse party, 389 Gratis, 420 {d) Parties, of formal, ordinary, or fecial, 429. [See Pakit, Formal.] Petitions, on, 542 (a) Revivor, in cases of, 216 (ro) Special case under, 121 Time for entering by defendant within jurisdiction, 420; when out of jwrisdiction, 423 APPOINTMENT os new Trustees, 98. [See New Tbusiebs.] APPOINTMENTS, under powers, 275 APPORTIONMENT, Conditions of re-entry, of, provieion for, 273 Decree, directed of a fund by, how made, 558 ARBITRATION, . , . Executors authorised to submit claims to, 304 Rule of court, when made, no foundation for order to produce docu- ments, 172 (m) Submissions to and awards on, to he filed, 381, 494 AEREST, Privilege from, of oflBcers, attendants, suitors, and witnesses, 609 ■clxxii GENEEAL INDEX. ASSETS. {See ADMiNiaiKATioN.] Admission of, Executor not chargeable on administration summons on, 204 Revivor against executors, course as to on, 212 (h) Trustee Belief Act, when necessary on proceedings under the, 67 Distribution of, by executors of lessees saving lessors' right to follow, 280 ; by executors after notice to creditors, 28] ASSIGNEE, word including assignee in bankruptcy, 5 (5) Bankrupt of. [See Bakkkbpt.] ASSIGNMENT, meaning of the word in the Trustee Acts, 78 Personalty, of, (including chattels real), may now be made by one to himself and another, 278 ASSISTANCE, wnt of, practice as to, 351 ; order for, to enforce decree, 497 ATTACHMENT, writ of, 614 (d) Answer, for want of, 433 ; irregular, pending application for further time, 433 (a) Appearance, none for want of, without special order, 426 ATTENDANCE and VACATIONS, Consolidated Order as to, 390 ATTENDANCE, Counsel of, at hearing, 587 (w) Solicitors of, at h^^riug, 474 ; fees for, xl. ATTESTATIONS OF HONOUR, included in the term Affidavit, 364. [See Afeidavit, Oath.] ATTORNEY-GENERAL, Costs of the, 686 (u) Informations to be signed by the, 408 (a) Perpetuating Testimony Act, when to be a party to suits under, 11 Petition of right, how interrogated, &c., under, 632 (c) Process against, for want of answer, 435 (6) Service on, as formal party, not allowed, 427 (a;) ATTORNIES AND SOLICITORS [See Solicitor], Act as es Act, 34; lauds vested in, on execution of deed-poll, when, 42, 44; may deposit purchase-money on refusal to convey, or neglect to show tille, 43 ; liability to costs, in case of compulsory purchase, 46 ; in case of conveyance by agreement, 53; deposit by, on entry before pur- chase, 55, 359 (G) ' PROPERTY, applications made in chambers as to the allowance of income of, pendente Ute, 221; or as to the management of, 148; protec- tion of, pending litigation, rules as to parties in suits for, 195 Railway Companies, of, protected against execution, 359 (A) PROPERTY AND TRUSTEES RELIEP AMENDMENT ACT (22 & 23 Vict. c. 35), 272—285 PROSECUTION, dismissal of bill for want of, 534. [See DisinsSAt.] PROTEST, payment of bill of costs under, 25 PURCHASE-MONEY, Application of, on sales by mortgagees, 301; or trustees for sale or exchange, 296 ; sale by the Cowrt, on, applications for payment into court of, made in chambers, 148 {g) Converted, in what cases under Lands Clauses Act, 36 (6), 45 (k) Lands Clauses Act, under the, 34 — 39 IHaability, payable to parties under, if amounting to 200Z., to be paid into bank, 34; how to be applied, 36, 37; until claimed, is realty, 36 (6); when paid in, interest ceases to be payable by company, 36 (d) ; to be invested in meantime, 38 ; if over 201. and under 2001., may be paid into bank or to trustees, 38; if under 20i., to be paid to parties,, their husbands, guardians, committees, or trustees, 39 Payable under contract with tenants for life, &o., if over 200J., to be paid into bank, 40 ; the Court may order a portion to be paid to tenant for life, 40 (c); where paid in respect of leases or reversions, application directed by the Court, according to the rights of the parties, 41 _ Refusing to convey, or not showing title, or not being found, in case of owner, may be paid into bank, 43; application of, 44 Sale under power, on, in respect of timber, mistaken payment of, to tenant for life, may be cured, 275 CCXVl GENERAL INDEX. PUKCHASER, Decree, uuder a, on what grounds relieved from his purchase, 548 (}) Inquire, need not, whether devisees in trust or executors are justified in selling to pay debts or legacies under stat. 22 & 23 Vict. u. 85, 277; or as to application of purchase-money paid to trustees or mortgagees, 278 (k), 304 Leaseholds, of, protected against damages or forfeiture for past non-in- surance, if proper insurance subsisting, 274 Q. QUESTIONS, Adjudication on, in absence of parties inteiested, 201. [See Pabtifs.] Fact, of, or as to amount of damages, may be reduced into writing, 266, XXV. ; and be tried by a jury before the Court, 263, 264; or may be tried before the Court without a jury, 266 (i); must be tried by the Court except when issue is more convenient, 265 [d), 271 Law, of, necessary for determination of equitable questions, may be decided by the Court* and cases are not generally to be stated, 224 ; common law judge may be called in, 138, 272; must be decided by Court, except when matter was improperly brought into equity., 266, 271 E. RAILWAY COMPANIES, Powers and obligations of, under Lands Clauses Act, 34 — 57. [See Lands Clauses Act.] Schemes of arrangement, powers of, to make under Railway Company's Act, 1867, 369 (B)— 369 (E) REAL ESTATE. [See Lands.] Heir or devisee becomes trustee of, under Trustee Acts, after decree for payment of debts, 95 Sold, may be ordered to be, by the Court, pendente lite, 219, 548 (g) Summons for administration of, in chambers, 204 RECEIPTS, Mortgagees, of, to be a sufficient discharge for purchase-money, 301 Trustees, of, to be a sufficient discharge where there is a charge of debts, 277; generally under instruments dated since August 28tb, 1860, 278 (A), 304 RECEIVER, Consolidated Order as to, 499; word includes consignee and manager, 864 Accounts of, to be passed at fixed times, 501, 602 ; form? of accounts, Ixxiv. ; certificate on passing, 560 ; course on default in passing, 502, 552 ; account book to be finally deposited in Record and Writ Clerks' Office, 602 Appointment of, on motion of plaintifij after bill filed, 499; of de- fendant, 499(a); not usually at instance of persons having legal estate, 499 (a) ; solicitor in cause, or trustee not generally appointed 500 Costs of, Ixxvi. County Courts Act, under, duties of, cxvii. Defaulting, jurisdiction of Court over, 500 Discharge of, 502 (g) Mortgagee may appoint, 301 Powers of, 600 Pro confesso, ordered on decree on bill taken, 480 Railway Companies, oi rolling stock of, 359 (A) Recognizances of, amount of, 498, 501 (6) Snlary and allowances of, 601 (c) Writ of assistance, not entitled to, as aid in distraining for rent, 516 (A) GENERAL INDEX. CCXVU RECOGNIZANCES, to whom given, 613; time for enrolment of, 613; Receiver, of, 498, 591 RECORD OF TRIAL, questions reduced into writing for jury, under "Chancery Amendment Act, 1858," to be called, 602; to be transmitted to registrar, 606 ; filing of, 607; form of, xxv.; how written, 616 RECORDS, Custody of, provisions as to the, 878, 380 Original, when ordered to be produced, 380 Pleadings do not become, until filed, 407 RECORD AND WRIT CLERKS, Consolidated Order as to, 378 Attendance of, at assizes, &o., 381 Certificate by, that cause is ready for hearing, 395 ; of correctness of statements in decree, 495 ; conclusive as to filing of pleadings, 378 ; that record of trial has been filed, 602 ; of state of proceedings in cause, 383 Delivery of office copies by, 381 Documents to be deposited in office of, 172 (o), 610 Fees taken in ofi&ce of, xlix. Filing and transmission of pleadings by, 378, 407 ; of certificates, peti- tions, admissions of evidence, snbmissions to arbitrators, and awards by, 381 ; may refuse to file pleas, &o., on account of erasure or interlineation, 378 ; writs sealed by, 379 Indexes and cause books to be kept by, 381; dates, &c., to be inserted therein, 381,382 Oaths, &c., sworn and acknowledgments made before, 380 Records, to attend judges and assizes with, 378, 380; records not to be removed from office of, 380 Security for costs to be given to, 380 RE-EXAMINATION of witness to follow immediately after cross-exami- nation, 624 REFERENCE FOR TAXATION, in ^hat Court ordered, 12, 16 (I) REFUSING TO CONVEY, Landowner, under Lands Clauses Act, course as to, 42, 43 Mortgagee's heir, order under Trustee Act, as to, 87 Trustee, order under Trustee Act, as to, of laud, 112 ; of stock, 91, 92, 112, 113 REGISTRAR, Consolidated Order as to, 373 Begvlations as to business in offices o^ Ixxx. Alterations in decrees, maybe made by, by consent, 373, 485 (c) Appointments of, for settling or passing decrees and orders, 374 ; to be served on opposite party, 374, 375 {1} ; service of, 376 ; form of 376 ; adjournment of, 376 ; decrees or orders may be settled or passed without appointment; 376 Attendance of, 373 ; entry of decrees, &c., and index, 373; docu- ments to be left with, Ixxxiii. ; meetings of, 377 Attendance of, in chambers, 145 ; note signed by, when to be procured on adjournment of cause to chambers, liii. Book of reference should be made to, in entries of decrees and orders, 382 Certificate of, to Accountant-General for transfer &c, to surviving legal personal representatives, 369 ; evidence required previously to issuing, Ixxxvi. ,..,,. . . County Court Act, under, to act as chief clerk, civ, j as taxmg master, cxx. ; duties of, cxvi. CCXviii GENKBAIi INDEX. REGISTRAR— coneinaed. Fees taken in office of, xlviiL Land, registry of, 310 ; to be served with petitions for declaration of title, 343 Lists of causes to be kept by the, 397 REGISTRATION, Judgments of, to bind purchasers, mode of, 356. [See 278.] Land of, under Transfer of Land Act, 310 [see Land Reqistrt and Tkansfeb Act] ; under Declaration of Title Act, 346 REGULATIONS, As TO BOSINESS IN CHAMBERS, liii. As TO BUSINESS IN BEQISTKAKS' orEIOE, Isxx. As TO PEES, xxxiii. REHEARING, CmsoHdated Order as to, 520. [See Appeal.] Cause taken pro eonfesso, of, 482 Copy of bill and petition of, to be left with jadges of appeal, 524 Deposit on, 623, 229 ; wadertaking to pay costs, 523 (/) Evidence on, 521 (b), 632 (6) Heard, to be before judge to whose court cause is attached, 395, 521 (6) Order made on, in essence of party served, 524 Petition of, statements in, 623 ; to be signed by counsel, 623 (e) ; and solicitor or party, 385 Time for, 520 REIMBURSEMENT of trustees, clause for, deemed to be contained in every instrument, 284 REINVESTMENT of purchase-monies under Lands Clauses Act, 35, 37 ; under Settled Estates Act, 247 RELATOR, person named as, to sign written authority, 166. [See Infoe- MATION.] RELIEF, Prisoners in contempt, of. Act for, 306 Prayer for, general, not to be inserted in bill for discoveiy, iii. (5) Suitors, of. Act for, 226 REMAINDERMEN, service of, on petitions, 50 {g), 104 (a). [See Serviob.] RENEWABLE LEASEHOLDS, trustees to endeavour to renew, unless tenant for life entitled to enjoy without renewal, 298 ; renewal money may be raised by mortgage, 299 RENT, Best, under Settled Estates Act, 239 (g) Executors of lessees or grantees, how to protect themselves against liability for, 281 BENT-CHARGE, not now extinguished by a release of a portion of the hereditaments therefrom, 274 REPAIRS, application of purchase-money in, under Lands Clauses Act, 36(/) REPLICATION, Consolidated Order as to, 461 Advertisement of, 182 (m), 389 Amendment after issue joined by, is irregular, 412, 414 (x) Exceptions for insufficiency to answer not to be filed after, 457 Filing of, 462, 462 (A) Form of, 463 ; how to be written 616 Issue joined by filing, 182, 462 GENERAL INDEX. CCxix REPLICATION— coBiOTMed. Motion for decree, unnecessary in case of, 169 (e) Notice of, 182 (m), 389 Service of, substituted, or out of jurisdiction, 462 (e) Withdrawal of, i62 (e) REPORT OFFICE, Certificates, petitions, &c., to be transmitted to, to be filed by Clerks of Records and Writs, 381 Fees in, xlix. Repoi-ts to be distinguished by date, letter, and number, 382 REPRESENTATIVE, moj-c? including heir, 528 {g) Mortgagee, of. [See Moktgaqee.] Personal. [See Persomal Repbesbntative.] RESERVED BIDDINGS, affidavits in chambers relating to, form of, Iv. RETAINER, question of, considered by taxing master, 576 REVIEW, BILL OF,* 524, 521 (b). [See Appeal.] Bill in the nature of a, should be filed (on leave) by person served with notice of a decree and feeling aggrieved thereby, 5?6 (m) Decree signed and enrolled, necessary to reverse a, 524 ; when un- necessary, 526 (i) Error in law, or new matter, only admitted in case of, 525 ; leave of the Court to file, when necessary, 52S; deposit on, 526 ; may be filed by party served vnth notice of decree, 197 (d) REVIVOR, 210—216 ; Consolidated Order as to, 526 Abatement, upon, of suits, 210; or petitions or special cases, or re- ferences for taxation, 211 (/). [See Abatembkt.] Appearance after, 216 (m) Application of plaintiff or creditor on, before decree ; of plaintiff or defendant, after decree, 211 (g); defendant may apply before decree for revivor by plaintiff or dismissal, 528 Bill of, direction as to form of, 527; when unnecessary, 212 {h) Costs, for, allowed on abatement by lankmptcy, 215 ; not aUowed on abatement by death, except in certain cases, 215 County Court Act, under, cvii. Interrogatories may be filed on (semMe), 216 Order of, without bill, on motion or petition of course, 215, 216 ; made in cases of change of interest by operation of law, and by descent, bankruptcy, lunacy, &c., 212 (h) ; or by birth of infant, 213; or by assignment, 213; not where frame of suit is altered, 213 ; where interest of sole plamtiff is transferred, 214; discharge of order for, 216 {»), 527 ROAD, dedication of, out of settled estates, mth a view to leases, 243 (t). S. SALE, Conduct of generally in sales ordered by the Court, 548 (j) in case of mortgaged property ordered to be sold, 206 (v) Court, by, may be ordered of real estsAe pendente lite, 219 ; on appli- cation in chambers, 220 (u) Abstract of title when to be laid before conveyancing counsel on, 158 (x), 220 Auction, by, seller not liable to auction duty on, 230 Biddings not now opened on, 156 ; reserved, Iv. Conditions on, to be left at chambers, Iv. ; form, Ixiv. Conveyancing counsel may be employed to settle deeds, &e., on, 157, 220 Decree for, made in the absence of cestuis que trusts, 198 CCXX GENERAL INDEX. SALE —continued. Effect of, under Trustee Acts, 95, 112 ; applications after, made in chambers, 541 Hearing, directed before the, 219 Indefeasible title, with, 322. [See Land Transfer Act.] Judgment creditor, by, 356 Minerals, apart from, 242 (p), 260. [See Minerals.] Mortgaged property; of, directed in lieu of foreclosure, 205, 206 («i) Opening biddings on, practice of, abolished, 156 Practice on, in chambers, 548 (q) Purchase-monies produced by, may be ordered in chambers to be paid into court, 146 (e), 148 (g) Purchaser, on, when relieved from purchase, 548 (q) Settled Estates, of, 242. [See Settled Estates Act.] Trustees for, represent cestuisque trusts, 104 (a.), 196. [See Trustee.] SCANDAL, Exceptions for, 461. [See Exceptions.] Objections for, in proceedings in chambers, heard on summons, 562 Plaintiff's answer to interrogatories may be excepted to for, 177 Pleadings, not to be inserted in, 407 SCHEDULES TO GENERAL ORDERS, i. SCHEDULE, Answer, to, 614 (6), 616 ; office copies of, how obtained, 563 Original bill annexed to supplemental bill as a, 528 SCHEME of arrangement may be filed in Chancery by Railway companies unable to meet their engagements with their creditors, 359 ( B) May be confirmed by the Court on application by the directors, 359 (D) ; and inroUed,Zi9 (D) SCIENTIFIC PERSONS, Assistance of, may be obtained by the Court, 159 Employment of, to test documents believed to be forged, 173 SCINTILLA JURIS, continued existence of, not to be deemed necessary for support of future uses, 289 SCOTLAND, Advocate in, case stated for opinion of, 264 ((2) Affidavits, &c., how sworn in, 180 Decree in court in, may be pleaded, 446 (k) Railways in, provisions as to filing of schemes of arrangement by, 359 (B) Service on parties in, 424 (o) SEAL, Chambers, of, summons to be sealed with, 545 OfBicial, judicial notice taken of, 180 ; not of foreign notary, 181 ; penalty for forging, 181 Writs, for sealing, to be kept by Clerks of Records and Writs, 379 SECRETARY, Company, of a, made a defendant, for production of documents, 172 (») Fees of the Lord Chancellor's and Master of the Rolls', li. SECURITY FOR COSTS, Amount of, 578 (/) ; who may be surety for, 578 Given to Record aud Writ Clerk, 380 Required from plaintiff or petitioner, &o., abroad, or misdescribing himself, or being a privileged person, 579 (A) ; from party apply- ■ ing for taxation, 16 (i) ; or for registration, or sale of land under Land Transfer Act, 317, 323; or for declaration of title under Declaration of Title Act, 343 ; not from plaintiff in cross suit, 680 Waived by defendant taking voluntary step in suit, 580 GENERAL INDEX. CCXXl SECURITY FOR MONEY, what is, under Trustee Acta, 79 (») What may be paid in under Trustee Relief Acts, 67 (g) SEISED, meaning of word in Trustee Acts, 77, 79 (6) SELECTION OF COURT, Consolidated Order as to, 392 SEQUESTRARI FACIAS DE BONIS ECCLESIASTICIS, liberty to sue out writ of, to enforce decree, 518 ; form of writ, xix. ; sealing, 380 ; indorsement and process on, 518; fees, 619, xlv. SEQUESTRATION, Directed by decree on bill taken pro confesso, 480; generally, 514 Mesne process on, for want of answer, 434 Writ of, to enforce decree, 514 SERGEANT-AT-ARMS, order for, to enforce decree, when made, 514; fees, 519 SERVICE, Consolidated Orders as to, 384, 417 Address for, to be given by solicitors, 385; or parties suing in person, 387 ; where no address giveii, service on solicitors may be at their place of business, 387 ; on parties may be personal or at residence, 388 Bills, of, 161; how to be effected, 417; substituted service, when allowed, 419; service of amended bill, 162; oiientten bill, 164 ; of bill on defendant out of the jurisdiction, 424 (o) Cestuis que Trusts, on, 1 04 (a) Chambers, of notice of decree directing accounts or inquiries in, 549 ; when dispensed with, 550 ; original summons on proceedings originating in, 546 ; of summons for further consideration of such proceedings, Iv. ; other summonses, 646 Companies, on, 418 (a), 420 Decrees, of, should be personal, 490 (i) ; of decree before process, 513 (a); of decree on bill taken pro confesso, 481 (a) Fees on, lower and higher scale of, xlv. Formal parties, on, i. c, from whom no account or direct relief is sought, 427 Incumbrancers, on, where petition is for payment of monies out of court, 51, 73; generally, 104 Infante, on, of notice to appoint guardian ad litem, 402 ( A) ; under Trustee Act, when dispensed with, 109 (A) Injunction, of notice of motion for, may be made, by leave, with the bill, but not before bill filed, 605 Jurisdiction, on parties out of the, by leave of Court, 424 (o) ; appli- cation for, how made, 423 ; evidence required, 426 {p} ; of what proceedings, 425 (q) Lands Clauses Act, under, 51 {g) Married Woman, on, 418 Motions, of notice of, 632 Notice of decree, of, 490 (i) ; to bind persons not parties, 196 ; in case of infants or persons of unsound mind, 403 Parties, on, formal, 427 Petitions, of, 542 (a) ; two days must elapse between, and hearing, 542 Remaindermeu, on, unnecessary, where petition is for payment of in- come to tenant for life, 50 (g) ; necessary on petition for new trustee, 104 (a) Replication, of notice of, 462 (c) Revivor, of order of, or supplemental order, 215 {I) Settled Estates Act, under, 246 Solicitor, en, 387 (A) ; on town solicitor of person appearing though not a pai'ty, 3S8 CCXXll GENERAL INDEX. SERVICE— continued. Stop order, of petition for, should be made on assignor, but not on other parties to the cause, 608 "Subpoena to hear judgment of, 471 Substituted, application for, 419 ; on agent, 419 (S) ; of what proceed- ings, 420 (c) ; under County Court Act, cxix., cxx. Summons on proceedings originating in chambers, of, 546 ; of sum- mons on further consideration of such proceedings, Iv.-; other summonses, 546 Time of the day for, of proceedings not requiring personal service, 566 Traversing note of, 439 {d) Trustee Acts, under, 104 (a) Trustee Relief Acts, under, 73 (r) Witness, of notice of examination of, before the Court, C28; or examiner, 628 ; of notice to produce for cross-examination, 626 SETTING DOWN, Consolidated Order as to, 470 ; RegUtrm's Regulations as to, Ixxx. Abatement or compromise after, to be certified, 471 Appeal, of petitions for, Ixxxii. Cause, of, upon production of proper officer's certificate, 470, Ixxxi. ; for further consideration, 472 ; notice to be given, 473 ; in default of, defendant may move to dismiss, or set dovfn himself, 470, 647 ; where emdemce is to be viva voce, 623 Exceptions, of, Ixxx. Further consideration, on, Ixxxii. Motion for decree, of, 169 (/), 646 Pleas and demurrers, of, Ixxx. Pleas, &o., how set down, 472 ; forms of request for and notice of, 473 Practice on, in registrar's office, Ixxx. Time for, of cause, 470 ; of motion for decree, 533 SETTLED ACCOUNT not genei'ally disturbed in chambers, 219 (s) SETTLED ESTATES, meaning of the words, 237 Leases of, and sales of, or of timber on, may be authorised by the Court on certain terms, 237, 242 [See Settled Estates Act.] SETTLED ESTATES ACTS (1856, 19 & 20 Vict. c. 120), 236— 254 ; (1858, 21 & 22 Vict. o. 77), 265, 267; (1864, 27 & 28 Vict. c. 45), 267 — 269 ; Consolidated Order as to, 599 Advertisements under, 699 Application under, by tenant for life, or greater estate, 244 ; with consent of tenant in tail, or other beneficiaries, 244 ; unless dis- pensed with, 245 Consents requiied under, 244, 245 Costs of applications under, 601 Evidence uuder, 601 Leases, under, may be authorised by the Court on certain terms, .237 ," and lessor appointed, 240; or powers of leasing vested in trus- tees, 240 — 241; evidence required, 240; model lease may be adopted, 241 («) ; part of rent reserved on mining leases to be in- vested, 247 ; leases may be surrendered or renewed, 239 ; no lease to be granted where application to Parliament bas been refused, 246 ; or (for more than 21 years), of estates entailed hy statute, or where reversion in Crown, 254, or if negatived by instrument, 248 Orders under, parties may be heard in opposition to, 246 (/), 600 Petitions under, 699 ; how and when heard, 600 ; where infants, &c., are concerned, 252, 601 Roads, dedication of, uuder, 243 GENERAL INDEX. CCXXIU SETTLED ESTATES ACTS— continued. Sales under, may be authorised by the Court, 242, 248, &o. ; with in- defeasible title, 324; minerals may be excepted, 242 (p), (r); fee- farm rent reserved on building land, 242 ; purchase-monies to be applied in discharge of incumbrances, purchase of other heredi- taments, &c., or invested, 247 ; no sale to be authorised where application to Parliament has been refused, 246 ; or of estates entailed by statute, or where reversion in Crown, 254 ; or if ne- gatived by the instrument, 248 SETTLEMENT, Affidavit of none, in case of payment out to married woman or widow, 365, 366 Infants may make binding, on marriage, with the sanction of the Court, 233 ; appointments and disentailing deeds to be void on death of infant under age, 234 ; evidence on application, Iv. SEVERINa IN defence; costs of parties, 551 (a;) SHERIFF, Court of, not a County Court within the County Courts Equitable Jurisdiction Acts, Ixxxix. {a) Jury before, may assess damages in any case before the Court, 267 Process, execution of, by, 514 (d) SHORTHAND WRITERS, &o., Costs of, when allowed, 592 (J) Examiner's power to allow to be present, 187 SIGNATURE, Counsel, of, necessaiy to what pleadings, 407 ; to amendments, 414 Notary, of foreign, must be proved by affidavit, 181 {k) Official, judicial notice taken of, 180 (e) ; penalty for forging, 181 SIX CLERKS, duties of the, to be performed by the Record and Writ Clerks, 378 ; solicitors or parties, 385 SOLE TRUSTEE, when appointed by Court, 100 (q) ; who is a, within Trustee Acts, 91 SOLICITOR, Consolidated Order aa to, 384 ; Regulations as to fees of, xxxvii. Agreement between, and client, how far a bar to taxation, 18 (m); when void, 18 (m); as to cause, to be in writing, 390 Attendance of, on order for taxation, 13 ; at hearing of cause, 474 Bill of costs of, 11. [See Bill of Costs.] Changed, not to be, without order, 386 ; lien of discharged solicitor how far affected, 386 (g) Class, may be appointed by judge in chambers to represent a, 551 Client, communications between, and, privileged, 175 (r) Copies of pleadings, &c., to be made by, 563 Costs of, 15 [See Taxation op Costs], may be charged on property preserved or recovered, 29 ; where separate solicitors appear for parties in same interest, 551 (x) ; where same solicitor appears for two or more defendants, 583 (m) Documents may be ordered to be delivered up by, on reference of bill for taxation, 20 (h) Fees, charges, and disbursements of, what are taxable under Attorneys and Solicitors Act, 19 («). [See Taxation or Costs.] Fees of, xxxvii. [See Fbes.] Lien of, 387. [See Lien fob Costs.] Name and address for service of, to be indorsed on pleadings, 385 ; when acting as agent, 386 Neglect or omission of, costs occasioned by, to be paid by, 473 CCXXIV GENERAL INDEX. SOLICITOR— coniimterf. Service on behalf of parties, on, of proceedings not requiring per- sonal service, 387 ; on town solicitor of person appearing, but not a party, 388 ; address for service to be indoi-seJ on pleadings, 386. [See Service.] Siibpana, to name, form of, viii. SPECIAL ACT, meaning of, in Lands Clauses Act, 32 SPECIAL CASE, 117 Amendment of, 118 Appeal from orders made on, 124 Appearance on, 121 Costs on, 133 Form of, 118 (i), 120, 121 ; how to be written, 616 Guardian, special, to infant or person of unsound mind appointed to concur in, 119 Hearing, how set down for, 122 Infants, &c., how bound by, 121, 123 Ids pendens, is a, 125 Parties to, 118 Questions of construction, &c., may be stated for the opinion of the Court by, 118 ; decision upon, does not bind rights, 123 ; refusal by the Court to decide, 123 Revivor of, on death of sole plaintiff, 118 SPECIAL CIRCUMSTANCES, on which costs may be referred for taxa- tion after twelve months or payment, 24 (/). [See Taxation op Costs.] SPECIFIC PERFORMANCE, Damages may be awarded by the Court in addition to or substitution for, 261 ; not where specific performance would not be decreed, 262, 263 Effect under Trustee Acts of decree for, 96 (h) STAMPS, Amounts of, for collecting fees, li., 162 (/) Answer, on of&ce copy of, 615 Bills, written, on, 164 (m) Fees to be paid by, in Chancery, 553 ; in lunacy, 227 ; not of taxation of costs to be paid out of fund in court, 675 Orders made under the Trustee Acts, on, 116, 117 (p ) Preparation and use of, directions as to the, 573; obliteration of, directed, 675 * STANDING OVER for ludeEuite period, abolished, 474 STATUTES, Hen. VII. 11, 0. 12 (suit in formd pauperis), 403 Hen. VIII. 24 & 26, c. 20 (Recoveries), exception in Settled Estates Act, 254 Will. & Mary, 4 & 5, c. 20 (Judgments), docTceUs, 287, 288 Anne, 6, c. 18 (Cestuis que vie), production, 530 Geo. III. 36, c. 62 (Legacy Duties), 65 (5) 37, c. 135 (Legacy Duties), 370 62 0. 101 (Charities, Sir S. Romilly), charity trustees, 98 (o) Will. IV. 1, c. 36 (Commitments for Contempt), enforcing appearance, 426 (wi) ; enforcing answer, 433 (a) ; return of writ of attachment, 51i{d) c. 47 (Infants' Conveyances, &c.), 84 c. 60 (Old Trustee Act), 80 {p), 88 (l) i;. 65 (Infants' Conveyances, &c.), application in chambers, 147 GENERAL INDEX. CCXX^■ STATUTES— co)i«i?med. Will. IV. 2, V. 23 (Chancery Process), service ovi of jurisdiction, 424 (o) 3 & 4, u. 27 (Limitations), legacies, &o., 291; to ie jp2eac2e(2, 168 (a) u. 41 (Privy Council), judicial committee, 142 c. 42 (Common Law, Pleadings, &c.), interest on deits, 613 c. 74 (Fines and Recoveries), vesting order as to estates tail, 78 K. 94 (Chancery Offices), repeal of clauses, 156 u. 106 (Inheritance), 278 4 4 5, u. 23 (Escheat), 76, 107 u. 82 (Chancery Process), service out of jurisdiction, 424 (o) 5 & 6, u. 62 (Voluntary Declaration), notary public, 181 c. 76 (Municipal Corporations), 98 (o) Vict. 1 & 2, c. 69 (Heirs of Mortgagees), vesting orders, 88 c. 110 (Judgments), 1 — 6 2 &; 3, 0. 11 (Judgments, Sec), lis pendens, 125, 204 ; registration, 278, 289 c. 5i (Infant's Custody), 7 — 9 3 & 4, c. 55 (Drainage), applioaiions in chamhers, 146 0. 82 (Charging Orders on Stock in Court), 3 («) 5, c. 5 (Chancery Procedure), distringas, 408 5 & 6, c. 69 (Perpetuating Testimony), 10, 11 6 & 7, c. 73 (Solicitors' Taxation), 11—28 7 & 8, c. 101 (Lvmatice), payment to poor law guardians, 70 8, c. 18 (Lauds Clauses, ss. 1—4), 69—87, 31—69 c. 20 (Companies), service, 418 (a) 8 & 9, c. 56 (Drainage), application in chambers, 146 9, c. 20 (Parliamentary Deposit Act), 69 — 64 10 & 11, c. 69 (Taxation of Costs of Private Bills, Commons), 17 e. 96 (Trustee Relief Act), 64—74 11 & 12, c. 68 (Irish Tmstee Relief), 71, 72 12 & 13, 0. 74 (Trustee Further Relief), 74, 75 0. 78 (Taxation of Costs of Private Bills, Lords), 17 c. 106 (Bankruptcy, 1849), appeal, 137, 138 ; abatements, 212 13 & 14, c. 35 (Sir G. Turner's Act), 117—135 u. 60 (Trustee Act, 1850), 76—111 14 & 15, u. 83 (Appeal in Chancery), 136—142 c. 99 (Evidence), office copies, 378 15 & 16, 0. 55 (Trustee Extension, 1852), 111-117 c. 80 (Master in Chancery Abolition), 142 — 160 c. 86 (Chancery Improveaient Act, 1852), 161 — 226 c. 87 (Relief of Suitors), 226—230 16 & 17, c. 51 (Succession Duties), 489 (/) 0. 70 (Lunacy Regulation), committers consent to exercise of power, 97, 99 (p) ; ajffidavits, 180 0. 78 (Oaths in Chancery), 230— '^32 0. 97 (hTinatics), jiirisdiction of Lords Justices, 229 c. 137 (Charitable Trusts, 1853) ; sanction of Charity Com- misdoners, 65 (a) ; jurisdiction to give relief in chambers, 98, 698 17 & 18, c. 82 (Palatine Court), Trustee Act, 81, 90 ; appeal, 136 u. 113 (Locke King's &.ot), parties to suit, 198 c. 125 (Common Law Procedure, 1864), applications in chambers, 147; evidence, 189; equitable pleas, 222 {d) 18 & 19, u. 15 (Judgments, lis pendens), registration, 278, 289 c. 43 (Infant Settlements, 1865), 223—226 o. 91 (Merchant Shipping), shares in ships included in the word stock, 79 0. 124 (Charitable Trusts, 1855), payment to ofacial trustees, 66 P CCXXVl GENERAL INDEX. STA.TVTES— continued. „. , . Vict. 18, 19 0. 134 (Despatch of business in Chancery), oaths, 231 (c), 235 19 & 20, c. 113 (Evidence), evidenoe to be used in foreign courts, 410 c. 120 (Settled Estates Act, 18S6), 236—254 20 & 21 c. 77 (Probate) adminiitraiion ad litem, 200, 201 c. 85 (Divorce Protection Order), revivor, 212 21 & 22, 0. 27 (Chancery Amendment, 1858), 261—269 c. 77 (Settled Estates Amendment, 1858), 265—257 c. 85 (Divorce and Matrimonial), mother's access, 8 (a) a. 93 (Legitimacy Declaration), 10 22 & 23 c. 35 (Property and Trustees Belief Amendment Act), 272 —285, e. 63 (Ascertainment of Law), power to state a case, 264 23 & 24, 0. 34 (Petition of Eight), 633 (e) c. 38 (Law of Property further Amendment), 286 — 292 c. 112 (Defence Acts), application in chambers, 148 ; costs under, 47 (a) c. 127 (Attornies and Solicitors), 28 — 31 0. 128 (Evidence Commission), 293, 294 c. 145 (Lord Cranworth), 295—306 V. 149 (Relief of Prisoners in contempt and Pauper de- fendants), 306—309 24 & 25, 0. 134 (Bankruptcy 1861), new trustees, 99 ; appeal, 139 25 & 26, 0. 42 (Questions of Law and Fact, 1862), 270—272 c. 53 (Land Registry and Transfer), 310—341 0. 67 (Declaration of Title), 342—354 0. 89 (Companies' Act, 1862), examination of witnesses in chambers, 152 (») ; service, 418 (o) e. 108 (Confirmation of Sales Act), 259, 260 27 & 28, 0. 45 (Settled Estates Further Amendment), 257-259 c. 112 (Judgments), 365, 357 28 & 29, 0. 78 (Mortgage Debentures, 1865), 156 (a) c. 99 (County Court Equitable Jurisdiction), Ixxxviii. 30 & 31, V. 44 (Chancery ; Ireland). [See Pbefatort Matter, p. xxvi.] c. 64 (Chancery Appeal, 1867), 358 c. 48 (Sale of Land by Auction), opening biddings, 156 c. 87 (Chancery Officers), 145 o. 127 (Railway Companies), 357, 359—359 (G) c. 132 (Investment), 285 (s), (t) 0. 142 (County Courts Amendment Act, 1867), xcv. STAT OF PROCEEDINGS. [See Prooeedinqs, stay of.] STOCK, meamng of the word, in Trustee Acts, 77, 79 (c) Distringas on, practice as to placing, 508. [See Distringas.] Trustee Acts, order made under respecting, appointment of new trustees by the Court, in case of, 102 charities, &c., in case of trustees of, 106 convicted of felony, when trustee is, 115 deceased person, standing in name of, when personal representa- tive is out of the jurisdiction, &c., or neglects to transfer, &o., 92, 113 infant trustee, in case of, 113 jurisdiction, when personal representative is out of, &o., 92 ; when trustee is out of, &o., 90 lunatic mortgagee, personal representative or trustee, in case of, 81,82 refusal to transfer or receive dividends of, in case of, by a per- sonal representative, 92, 113 ; trustee, 91 Vesting order of, under Trustee Acts, effect of, 82 (■»), 93 GENERAL INDEX. CCXXVll STOP ORDER, Cmsolidated Order aa to, 606 Application for, made in chambers, if assignor and assignee concur, if not, ly petition, 507 (a) Charging or4er, should be obtained in support of, 4 Effect of, as to priorities, 71, 507 (a) Petition or summons for, not to be served on parties interested in parts of the funds not to be effected by the order, 507 SUBPCENA, Consolidated Order aa to, 510 Ad testificandum for attendance of witness, vii. [See Witness.] Alterations in, SU Costs for, vii. Ihuxs tecum in chambers, 152 ; at hearing, 192 ; before the examiners, 193 ; form of, vii. ; only three persons to be included in, 511. [See Production op Doodmbnts.] Forms of, 511, vi., viii. Infant, for, to sh^w cause against decree on coming of age, form of, viii Judgment, to hear, to be issued by plaintiff within four weeks after closing evidence, 470 (o) ; or by defendant, if plaintiff neglects, 647, 470; upon special case, 122; sealing of, 470 ; when retm-nable, 471; service of, 471; service on solicitor is good .service, 512 ; form of, vl Prcedpe for, 510 Sealing of, 379 Service of, 512 Solicitor, to name, form of, viii. SUCCESSION DUTY, on funds in court, provisions for payment of, 488, Ixxxiii. SUFFICIENCY OF ANSWER, 412 (p). [See Answer, SnrpioiiNT.] SUIT. [See Cause.] Conduct of, applications relating to, made in chambers, 147 (/). [See Conduct of Cause.] Directed, on applications for judicial 'opinion, 284 (jp) ; proceedings under Trustee Acts, 97 ; Trustee Relief Acts, 71 Dismissal of, 535 ; not ordered before answer generally, 535 (l) ; ordered, because subject matter is under Wl., 408 ; for want of prosecution, 536 ; for other reasons, 535 (I) Fees in, when on lower and when on higher scale, xxxiii., xxxiv. (i) Parties to, rules as to, in some cases, 196. [See Parties.] Pending, or former, for the same matter, plea of, 445 Perpetuate testimony, to, may be instituted by persons claiming honours, estates, &c., contingent on future events, 10 ; suit not to be set down for hearing, 410 ; evidence in, how taken, 625 SUITORS IN CHANCERY RELIEF ACT (15 & 16 Vict. c. 87), 226 SUITORS' MONEY AND EFFECTS, custody of, saving of Orders as to, 361 SUMMONS. [See Chambers.] Accounts, to proceed with, under decree, 549 Adjourned, course on hearing, 149 (h), Iv. Administration, for 202, 204 ; filing and service of, 203, 397, 628 ; form of, xxii. Alteration in, after sealing, how made, liii. CCXXVm GENERAL INDEX. SUUUOUfS—conHnued. Chambers, in, 149 ; preparing and sealing of, SiS; form of, xxii., zxiii.; alteration of, liii.; how to be written, 681; indorsement of name, &c., of solicitor, 358; filing and service of,. 528, 699.' [See Chambers.] Further consideration of cause originating in chambers, for, Iv. SUMMONS AND APPOINTMENT BOOK, entries in, 554 SUPPLEMENTAL, Answee, 451 (i) Bill, Form of, directions as to, 218 (q), 521 (b) Necessary to add facts after decree, 621 (5) ; or to revive against new parties in cases not within 15 & 16 Vict. c. 86, sect. 52, . 214 Original bill annexed as schedule to a, 528 Review, in the nature of a bill of, 525 (m). [See Review.] Statements, how and when to be made, 218 (g); how written, 616 SURCHARGES, how to be made, 556 SURETIES, rules as to parties in suits against, 400 (J) SURRENDER of leases for purpose of obtaining new one under Settled Estates Act, 239, 240 {I) SURVIVORS, Personal representatives of, payment out to, 369 Trustee Relief Acts, may act under, 67 (h) SWORN CLERKS, duties of the, to be performed by Record and Writ Clerks, 378 ; solicitors or parties, 385 TAKING BILLS PRO CONFESSO, Omsolidated Order as to, 474. [See Pbo Confesso.] TAXATION OP COSTS. [See Taxing Masteb.] Abatement and no revivor, when a bar to, as between parties, 215; not as regards survivm'S of parties entitled to, 215 ; abatement no bar as between solicitor and client, 17 Action brought after order for, restrained, 12, 15 ; is a contempt, 15 (c); may be authorised against party about to quit England, 15 Agreement, how far a bar to, 18 (m) Allowance of gross sum in place of, 594 Costs of application for, 13, 14; rule of one-sixth, 19, 20 DeUvery of client's papers ordered, 20 {u) Ex parte, may be on non-attendance of other side, 13 Lands Clauses Act, under the, 54 Lunatic, deceased, of, order for, may be made within six years after right accrued to recover costs, 30, 31 Order for, application for, to what court to be made, 12 : how enforced. 27, 28 Common, may be made within a month after bill delivered by inotion m- petition of course, 27; without any money being brought into court, 12 ; after one and before twelve months, subject to conditions, 12; upon motion or petition of course of solicitor or party chargeable, 15 (a); unless verdict for costs has been obtained, or writ of inquiry executed, 13, 18 {g); GENERAL INDEX. CCXXIX TAXATION OF COSTS— cmtinued. after twelve months by summons under special circumstances, 13, 15 (o1; effect of delay, 19 (r) Special, not necessary because action is pending, but is necessary if part only of a bill is to be taxed, 17 (m) ; or if there is a special agreement,18 (m); or after twelve months, or payment, 13, 24 (c) ; to be made by sammons, 648 ; when by bill, 22 (■»), 26 (q) ; may be made by party chargeable, 16 (i) ; including executors, next friends, &c., 16 (Jc), or by parties, or liable to pay, or having paid (not mere volunteers), 21 (v) ; or {speciaX) by cestui que trust, 22 ; petition when unnecessary, 594 Parliamentary business, in respect of, may be ordered by a court of equity, 16 (I) Partial, e.g., of two bills, where five claimed, 17 (m) " Parties differ" in case the, course on, 694 Party and party, as between, what allowances made, 590 Payment, jifter, within twelve months, may be ordered under special circumstances, 24 (c) Reference for, by what court, 12, 16 (Z) ; to whom, 576 ; application to discharge reference, 17 (J) Be-taxation, when allowed, 23,593 (m); how applied for, 592, 593; evidence on, 694 Special circumstances may be considered when third parties apply, 21 ; must be shown on application to tax after twelve months, 18 (r) ; or payment, 24 (c) ; e. g., pressure, 24 (/) ; or fraudulent over- charge, 25 (/) ; or grounds accounting for delay, 18 (2) Taxing master, by. \See Taxing Master.] Third parties liable to pay may apply for, 21, 22 ; who are, 21 (0) Third parties interested in property may apply, 22 ; by special sum- mons, 23 (z) Time for application, 26 (g) TAXING MASTER. [See Taxation.] Meaning of word, 484 Assisted by officers of other courts, 26 Accounts not connected with bills under taxation cannot be referred to. 576 (6), 19 (s) Allocatur of, does not constitute charge on real estate, 6 (/) Certificate of, final, unless altered by Court, 27 County Courts Act, under, registrar to act as, cxx. Duties, powers, and discretion of, 19 (s), 576, 576 (5) ; as to costs of improper pleadings, 582 (h); of affidavits settled by counsel, 585; to assist each other, 577 ; may obtain assistance from officers of other courts, 26 Fees in office of, lower and higher scale, 1. Offices of, when open, 391 ... ,00 i^on Production of books, papers, &c., may be required by, 688, 589 TENANT FOR LIFE, . ^ , , j v . Lands Clauses Act, purchase money m respect ot lands purchased from, under, how to be paid into bank, 35—39. [See Lands Clauses Act.] Leases for twenty-one ^ears may be granted by, 250 ; notwithstandrng incumbrances on his estate, 254 ; except of lands settled before Nov 1, 1856, 254 Petition for payment of income to, under Trustee Relief Act, costs of, 69 Settled Estates Act, may apply under, 244 ; notwithstandmg inoum- Trustees and Mortgagees Act, trustees acting under to obtain consent of to investments (except in consols), 302 ; sales, exchanges and purchases, 300 ; power to consent notwithstanding incumbrances on his estate, 305 CCXXX GENERAL INDEX. TENANT IN TAIL, LnndB Clauses Act, purchase money in respect of lands purchased from, under, how to be paid into bank, 36 — 45. [See Lands Clauses Acts.] Settled Estates Act, applications and consents by, under, 2ii; in the case of bankrupts and insolvents, 252 ; infants and lunatics, 252 TERM FEE, lower and higher scale of, zlvi. TIME, Consolidated Order as to, 666 Computation of, to be the same in country and town causes, 566 ; by months, lunar, 569 ; Sundays, &c., excluded, 669 ; vacations when not reckoned, 570 ; long vacation, 571; time for giving security for costs when not reckoned, 670 Enlargement or abridgment of power of Court or judge in chambers, 562, 572 ; further enlargement, 572; in case of answer, 568; rule as to enlarging time over the long vacation, 571 Rules as to, iu case of. Affidavits, after notice of motion for deeree, 533 ; after issue joined, 191 (i) ; before issue joined, notice of intention to use, 468 Amendment of bill, 410, 411 (h) Answer, 567 ; mln/nta/ry answer, 667 ; voluntary answer to amend- ments, 668; answer after submission to exceptions, 457; answer to amendments and exceptions, 567 ; printed sinswer, filed after filinr/ vyritten answer, 614 Appeal and notice thereof, 620 Appearance of defendant within the jurisdiction, 420 ; formal defendant, 480 ; plaintiff entering appearance for defendant, 421 ; for defaulting defendant in custody, 426 (w) Bill, printed, after filing of written Mil, 409 Certificate of chief clerk, opinion of judge taken on, before sig- nature by him, 559 ; application to discharge or vary, after signature by judge, 560; to he acted on by Acoountant- General, before signature of judge, 661 ; after signature, 660 Copies of pleadings, delivery of, by officers of the court, 381, 564 ; parties or solicitors, 665 Decree, application to add to by party served with notice of, 492 ; hespeahi/ng, 374 ; jnrolling, 497 ; bringing into chambers, 652 ; settled under decree, objections tu, 649, 550 DemuiTer (alone), filed, 566 ; demurrer (not alone), 567 ; where no answer required, 667 ; setting down, Ixss. Dismissal for want of prosecution, motion for, 535 — 539 Evidence closed, 191 (i) Exceptions for insufficiency filed, 457 ; submitted to, 467 ; set down, 458 ; when plaintiff is proceeding at law and equity, 611 ; old, after further answer, 459 Further consideration, cause set down for, 472 ; cause origiijating in chambers, Iv, Guardian ad litem, to infant, &c., notice given of application to appoint, 400 Hearing, cause set down for, 470 Inrolment of decrees and orders, 497 ; caveat against inrolment prosecuted, 497 Inrolment of recognizances, 613 Interrogatories filed by plaintiff, 431, 432 ; defendant, 177 Judicial opinion, service on application for, 619 Law or in equity, order for election to sue at, obtained, 611 Minutes of decree, application made to court on, 494 {w) Motion for decree, notice for, given, 533 Notice of motion, service of, 532 Plea filed, 567 ; set down, Ixxx. GENERAL INDEX. CCXXxi TIM E ~continued. Rules as to, in case of — continved. Petitions served, 542 ; for judicial opinion, 619 Pro confesso, motion made to taie bill, after attachment for want of answer, 474 ; against absconding defendant who has ap- peared, 477 ; or for whom appearance has been entered, 478 ; for making absolute decree taking bill pro confesso, 482 ■ application made for setting aside, 481 ' Production of documents to defendant obtained, 177 Recognizances inrolled, 613 Rehearing set down and notice thereof served, 520 Revivor, order of, or supplemental order, application to discharge, 627 Service of proceedings not requiring personal service, 666 Settled Estates Act, applications under, 600 Subpoena served, 512 ; subpoena to hear judgment, 470 Summons in chambers served 546 ; on further consideration, Iv. Taxation, reviewal of, 592 ; proceedings where parties differ, 594 Traversing note, filed, 438 Verdict or inquisition on writ of inquiry, application to set aside, 608 Witness, cross-examination of, on affidavit or ex parte exami- nation, 626 TITLE, Concealment or falsification of instruments of, how punishable, 278 Declaration of, 208 [see Dbolabatioh oi' Right] j under Declaration of Title Act, 342 Sales by court, under, 249, 346, 548 (j) Settled Estates Act, whether conferred by a conveyance under, 249 TRADE MARKS, counterfeiting, injunction may be granted to restrain, 504 TRANSFER OF LAXD ACT, 110. [See Land Registry ahd Tkakspee Act.] TRANSFER, Cause of, 394 (h) ; where same cause is instituted in diOerent branches of court, 393 ; imder County Court Act, cxx. • Examination of witness, of, from chambers to examiner, 153 TRAVERSE of plmntifPs case, where defendant is not required to answer, and does not answer, 182 (») TRAVERSING NOTE, Consolidated Order aa to, 438 Filing of, when defendant puts in no answer, 182 (») ; not against infant defendant, nor if defendant does not appear, 438 (6) Form of, 438 ; how written, 616 Motion for decree after filing a, 438 (a) Plea answer or demurrer, not to be put in after, without leave, 440 Service of, 439 TRIAL Equity in, of questions of law or fact, 264 — 267. [See Questtons or Law OB Fact.] Jury, by procedure on, 602, 609 New, when directed, 267 (J), 607 CCXXXU GENTEEAL INDEX. TRUST, Constructive, under Trustee Act, 80 (/), 84 (c), 98 (h) Execution of, relief granted without directing, 209 Partial administration of, when directed, 210 (e). See 100 (}) Property held on, when not to escheat, or be forfeited, 107 Suits to execute, rules as to parties in, 195 TRUSTEE, word includes constructire trustee, &c., under Trustee Acts, 78, 80 (h) Absence of, decree made in, 108 Bankrupt, appointment of new in place of, 99 Cestuis que trusts, when represented by, in administration or fore- closure suits, 196, 197 («) ; under Trustee Act 101 (a) ; under Settled Estates Act, 245 (s) Charities of, orders as to, 98 (o), 147 (head 7) Constructive, under decree for sale, 96 ; under other decrees,, 95, 96 ; vendor, &c., declared without suit, 96 Costs of, and against, 68, 109 {h) Discharge of, by appointment of new trustees by the Court, 102 ; by payment into court under the Trustee Relief Act, 69 (l) Escheat, none on failure of, 107 Indemnity and reimbursement of, clauses for, to be deemed to be con- tained in every instrument creating a trust, 284 Infant heir considered a, 73 Investments by, of trust funds, 285 (s), 290 (j), (h) Judicial opinion as to management or administration of trust property or assets may be obtained by, 282, 618 Leases may be renewed by', 298 ; of settled estates may be authorised by the Court to be granted by, under Settled Estates Act, 241 Lunatic, power of, exercised by committee, lOU (p). [See Lunatic] Maintenance, &c., power to allow, 302 Mortgagor, when a, within Trustee Acts, 80 (i) New, appointed by the Court under Trustee Acts, 98 (o). [5ee New Trustees.] Power of sale, when given to, by charge of debts, 277 ; generally under Lord Cranworth's Act, 295 — 306 Receipt of, a discharge for purchase or mortgage-money, 278 ; gene- rally, 304 Relief Act, 64. [See Trustee Reliep Act.] Refusing or neglecting to convey or assign, 91, 92, 112, 113 ; refusing to act, new may be appointed, 100 ; on disclaimer of at the bar, 102 (m), ilO (A) Sale, for, when to represent cestuis que trusts in suits for administra- tion or. foreclosure of the trust property, 196, 198 (c) ; for pur- pose of service, 104 (a), 245 (z); when constituted by charge of debts, though power of sale is not expressly given, 276 Severing in defence, costs of, 552 Sole, when appointed by the court, 100 (j) ; money will not be paid out of court to, 100 (g) Trustee Acts, vesting order made under, in case of, when infant, or lunatic, or out of jurisdiction, or dying without heir, or neglect- ing to convey as to lands, contingent rights, stock, or choses in action, 76 — 92 [see Trustee Act] ; new, appointment of, 98, 99. [See Trustee Act.] TRUSTEE ACTS, 1850 (13 & 14 Vict. e. 60), 76 ; 1852 (15 & 16 Vict. o. 55), 111 Applications under, by peHtion, 108 ; by motion, 106 (b) ; by sum- mons, 544 ; in County Courts, Ixxviii. ; by whom to be made, 102 Costs under, 109 Infants, orders under, as to, 83, 11.''. [See Infant.] GENERAL INDEX. CCXXxiii TRUSTEE ACTS— continued. Jurisdiotioii, out of, orders under, as to persons, 84, 85, 90. [See JnKISDIOTION, OtJT OP.] Lunatics, orders under, as to, 80. [See Lunatic] Mortgagors and mortgagees, orders under, as to, 80, 83, 87. [See MOETQAGE.] New trustee appointed under, 99. [See New Trdsteb.] Orders under made on petition, 103 ; on motion, 105 (6) ; on sum- mons, 544 ; in County Courts, Ixxviii. Suit directed under, 96 (ft),110 Vesting orders under, of stock, 82 {v); of laud, 83, (j^) ; of copyholds, 94 made in suit without petition, 105 in pursuance of decrees and constructive trusts, 95 ; in case of lunatics, need not he made in chancery as well as lunacy, 116 ; person appointed to convey in place, of, 89 TRUSTEE RELIEF ACTS, 1847 and 1849 (10 & 11 Viet. c. 96), (12 & 13 Vict. 0. 74), 64, 74, Consolidated Order as to, 595 Applications under, when in chambers, 544 ; when in County Court, Izxxviii., xcv. Costs under, 67 (k) Discharge of old trustees from control under, 69 (Q Payment into court under, of what securities, 67 (g) ; when justified, 68 ; by inswrance companies or morfgagees who have sold under a power of sale, 66 (c) ; by survivors, or majority of trustees, 67 (Je) ; no order necessary for payment in, 66 (e) ; to what account money should be paid in, 66 (/) Petition under, 72, 547 ; how far equivalent to suit, 65 (a), 71 (o) Service on cestuis que trusts under, 73 ()•), 67 (/), 69 {m), 597 ; on trustees under, 73 (r), 597 Summons under, 72 TUENEE'S ACT (SIR GEORGE) (13 & 14 Vict. c. 35), 117 U. UNBORN PERSONS, Leases and Sales Acts, trustees for, to concur in applications under, 244 Trustee Acts, order made under, in case of, who on coming into existence would be trustees, as to contingent rights, 87 ; other interests, 95, 96 Undertaking as to damages, on motion for injunction, 505 UNSOUND MIND, PERSONS OF. [See Lunatic] Meaning of the words in Trustee Acts, 79 Binding by service of notice of decree, though not parties to suit, 403, liv., 698 Commission de lunalico inquirendo directed concerning, under the Trustee Acts, 110 Consents as to procedure may be given by guardian of, 628 Guardian ad litem to, appointment of by the Court, 400 ; notice of motion for, 532 Payment into Court of money of, under Trustee Acts, 107 Special case, guardian appointed to, to concur in, 119 Trustee Acts, application respecting, under, whether made in chan- cery or lunacy, 81 (g) Trustee Relief Acts, order undei-, in case of, whether made in chancery, 70 (o) USES, Scintilla Juris not to be deemed necessary to support, 289 CCXXXIV GENERAL INDEX. VACATION, Consolidated Order as to, 391 Certificates signed by one judge for another, during, 561 Injunction may be moved for during the long, 506 Motions and petitions heard by one judge for another, during, 396 (e) Special orders during, practice as to, 397 Summons iu chambers, issued by one judge for another, during, 561 Time, not reckoned in computation of, for certain purposes, 570 ; rules as to enlarging, over the long, 571 VENDITIONI EXPONAS, wHt of, to enforce decree, 616; form of, xviii. VENDOR, Concealing deeds, &o., fraudulently, or falsifying pedigree, punishment of, 278 Costs, under Trustee Acts, on sales, to be paid by, ]09//i) Refusing to convey, hovr far a Trustee within Trustee Acts, 97 VERDICT of judge, effect of, as to amount of damages, or question of fact, under Chancery Amendment Act, 1858, 267 (Jc) VESTING ORDER, 82 (v), 83 (y). [See Oedbr, Vesting.] VICE-CHANCELLOR, included under words Lord Chancellor and Master of Rolls, 8, 17.' [See Lord Chancellor ] Bankruptcy jurisdiction of, transferred to the Court of Appeal in Chancery, 137 Ceasing to hold office, practice as to causes before, 396 Lords Justices, one of the, may sit for a, 141 Powers of, to hear matters aiBfecting "the property of lunatics under the Trustee Acts, 81 (j) ; Trustee Relief Acts, 70 (o) Taxation of costs may be ordered by, 17 VIEW, by jury, on trials before the Court under " Chancery Amendment Act, 1858," summons and order for, 604 ; form of order, xxvii. ; deposit and scale of charges, 605 W. WAITING CLERKS, duties of the, to be performed by Record and Writ clerks, 378 ; solicitors and parties, 385 WAIVER, Amendment of bill, by, oi notice of motion, &c., 411 Answer, of right to further, by motion for decree, 458 (») ; by agree- ment to application for further time, 460 (r) Conditions, &c,, in leases, of, not now presumed to be general, 273 Contempt of by amendment, 411 Exceptions to answer, of, 458 (n). 460 (r). [See Answbr scitioibnt.] Informality of, not by taking an office copy, 441 Security for costs, of right to, 680, 681 WARD OF COURT, Infant when constituted, 7 {a) Written bill to make infant a, may be filed, 163 WARRANT, Service of, by and on solicitor or party appearing, 385 Taxation, to review, application for, 592 WASTE, rules as to parties in suits respecting, 195 Injunction may be granted to restrain, 604 GENERAL INDEX. CCXXXV WIPE. [See Married Woman.] WILFUL DEFAULT, wlietlier executor, &b., can be charged ■with, on au admiDistiation Bummons, 204 ; by supplemental bill, 625 (m) WILL, disputed, of real estate may be proved vivd voce at the hearing, 622 (fc) WITNESSES, Allowance to, 186 (y) Attendance of, how compelled before the Court, 190, 623; before the examiner, ^J90, 193, 627; in chambers, 152 (m), 153; by party ordered to produce his own witness, 626, 627 Chambers, examination of, in, 151 ; before chief clerk or examiner, 152, 153 Cross-examination of, on motion for decree, 1 70 (%) ; when issue is joined, 135 (»), 622, 623 ; by co-defendants, 186 (y) notipe of, to be given to opposite party, 628, 1 86 (x) ; repealed, 186 {y) ; when cross-examination impossible the evidence may be received quantum valeat, 194 (w) Examination of, on motion for decree, 170 (fi) on issue joined, 184 (a) in chambers, 152 ; under County Courts Act, ci. ordered by Court at hearing, 192 notice of to be given to opposite pai'ty, where witness is required to attend before examiner, 628 ; deposit to be paid, 630 Privilege of, from arrest, 609 Production of, for cross-examination, may be required by the other party, in causes where issue is joined, 626, 627 ; not on proceed- ings in chambers, 152 [u) Ee-examination of, to follow cross-examination immediately, 624 Subpoena for, vii. WOMAN, not appointed as a trustee by the Court of Chancery, 100. [See Maeeied Woman.] WRITS issued by Record and Writ Clerks, 379 ; how executed by sheriff, 517; address for service, &c., to be indorsed on, 385, 387 Assistance, 515 Attachment, 514 (5) Commission to examine witness, 189 Damages, inquiry of, 608, xxxi. Distringas, 509 (6) Elegit, 516, siL — xvii. Fieri facias, 516, ix. — xii.; de bonis ecclesiastiois, xix., xx. Habeas corpus, 520 Injunction, .503 Inquiry, xxx. ; of damages, xxxi. Ne exeat, 529. [See Nk Exeat EEaNO.] Sequestration, 514 (c) ; de bonis ecclesiasticis, xx. Subpoenas, vi. — viil ; to answer bill abolished, 161 Venditioni exponas, 516, xviii. WRITTEN BILL, 163. [See Bill, Weittbn.] WRONGFUL ACT, injunction may be granted to restrain, 504 ; damages awarded by the Court, 262 THE END. BEADBOBY, EVANS, AND CO., PEINTBBa, WHITEFBIABS. ^ ^