iiaratiaU iEquUg CdaUctttatt (Sift of IE. 31. iiar0tfaU. iCffi. 1. 1894 CORNELL UNIVERSITY LIBRARY The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924085504862 other Works by Mr. W. Gregory Walker. In one volume, 8vo, price 2ls., cloth, A COMPENDIUM OF THE LAW RELATING TO EXECUTORS AND ADMINISTRATORS, with an Appendix of Statutes, Annotated by means of References to the Text. 1880. *' We highly approve of Mr. Walker's arrange- ment The Notes are full, and as far as we have been able to ascertain, carefully and accu- rately compiled We can commend it as bearing on its face evidence of skilful and careful , labour, and we anticipate that it will be found a very acceptable substitute for the ponderous tomes of the much esteemed and valued W iUiams." Law Times. " Mr. Walker is fortunate in his choice of a' subject, and the power of treating it succinctly, for the ponderous tomes of Williams, however satisfactory as an authority, are necessarily inconvenient for reference, as well as expensive. .... On the whole, we are inclined to think the book a good and useful one." — Law Jonntal Second Edition, in 8vo, price 8s., cloth. THE PARTITION ACTS, 1868 & 1876,* A MANUAL OF THE LAW OF PARTITION AND OF SALE, IN LIEU OF PARTITION, with the Decided Cases, and an Appendix containing Judgments and Orders. 1882; " This is a very good manual — practical, clearly written, and complete. The subject lends ■ itself well to the mode of treatment adopted by Mr. Walker, and in his notes to the ^arious sections he has carefully brought together the ca9es and discussed the difficulties arising upon the -language of the different provisions. * — Solicitors' yournal. "The main body of the work is concerned only with the so-called Partition Acts, which are really Acts enabling the Court in certain cases to substitute a sale for a partition. What these cases are is very well summed up or set out in tl;e present edition of this book, which is well up to date. The work is supplemented by a very use- ful selection of precedents of pleadings and orders." — Law yournal. ^ "This is a very painstaking and praiseworthy little^ treatise. That such a work has now been published needs, in fact, only to be, announced ; for, meeting as it does an undoubted require- ment, it is sure to secure a place in the library of every eqiyty practitioner. .... We are gratified to be able to add our assurance that the practi- tioner will find that his confidence has not been misplaced, and that Mr. Walker's manual, com- pact and inexpensive as it is, is equally exhaustive and valuable. ' — Irish Law Times. Corresponding with the N.S.W, " Partition Act, 1878 " (41 Vict., No. 17). By the same Author and Mr. E. J. ELGOOD, Barrister-at-Law. In one volume, 8vo, price ijs., cloth. THE LAW AND PRACTICE RELATING TO THE ADMINISTRATION OF THE ESTATES OF DECEASED PERSONSi With an Appendix of Orders and Forms, Annotated by References to the Text. 1883. " All those having the conduct of administratioa actions will find this work of great assistance ; it covers the whole ground of the law and practice from the institution of proceedings to the final wind up." — Laiji Times. Published by STEVENS & HAYNES, London ; AND Sold by C. F. MAXWELL, Wentworth Court, Sydney, & Melbourne. THE Practice in Equity BEING THE EQUITY ACT OF 1880 AND THE RULES OF COURT ISSUED THEREUNDER Critically Examined and Compared with the present English Practice, with full references to the English and Colonial Cases. , BY W. GREGORY WALKER, Of Lincoln's Inn and Sydney, Bakrister-at-Law, B.A,, and late Scholar of Exeter College, Oxford. ^( --.^-ulClTOi'.' - i CHARLES F. MAXWELL, LAW BOOKSELLER AND PUBLISHER. W. MAXWELL & SON,"8 BELL YARD. 1884. liLsfoi PREFACE. It is somewhat singular that so important a statute as the Equity Act of 1880 has not previously been edited. It is true that not a few of its sections are but re-enactments of the former practice ; but, on the other hand, many of its provisions are wholly or in part imported from English Acts or Rules of Court which have never been re-enacted or re-ordered here, and which consequently introduce a, procedure novel to the colony. It seemed to me that a book might not be unacceptable which should give at one view the case-law upon the different sections of the Act, and so save the practitioner the trouble of frequent piecemeal reference to various English text-books. To supply this want, however imperfectly, is the object of the following pages. The recent issue of the Equity Rules, consisting in part of old, but in large part of new, provisions, created a like want, which I have endeavoured to supply by the like means. I need hardly say that I have not attempted an exhaustive treatment of all the points of Equity Practice covered by the Act and Rules. To have done so would have necessitated a treatise the very bulk of which would have defeated my intention, which was simply to provide the Profession with a manual which should point out concisely the chief details of the new practice, its operation, and (with regret be it added) its difficulties and ambiguities, adding at the same time, with all deference, and in no carping spirit, some few criticisms and suggestions. Tl PEEFACE. My task has not been very easy, and errors both of omission and commission will no doubt be discovered in what I have written. I invite members of the Profession to point these out, and to communicate to me any addenda or corrigenda which may occur to them. The English Consolidated Rules and Orders have been cited as Cons. Ord., r. , the Rules and Orders issued under the Judi- cature Act as 0., r. ; the Rules recently issued under our own Equity Act as R. W. GREGORY WALKER. Ghcmibers, Wentworth Court, Sydney, lebrvMry, 188 J/.. TABLE OF CASES. A. PAGE. Abram V. Ward 166 Adams v. Claxton . . . . 155 Adamson v. Gill . . . . 38 • V.Hall .. .. 129 Agriculturist, &c., Company, re 58 Alexander v. Nurs6 . . . . 37 Alsop V. Bell 52 Anderson v. Butler's Wharf Co. 59 V. Stather . . . . 104 V. Wallis . . . . 128 Andrew v. Aitken . . . . 53 Anglo-Austrian Bank, re , . 21 Anglo-Danubian Company v. Bogerson 27 Anglo-Italian Bank v. Davies.. 49, 50 Anning v. Lavers . . . . 45 Anon 101,114 Ashton V. Wood . . . . 154 Aslatt V. Corporation of South- ampton . . . . . . 50 Aspinall v. Bourne . . . . 155 A.G. V. Boyle 3 V. Chambers . . . . 37 v.Clapham .. .. 22 V. Colney Hatch, &e. . . 38 -^ — - V. G. E. E. Company .. 5n ■ V. Merthyr Tydfil . . . . 38 Atwood V. Chichester . . . , 136 Auster v. Haines . . . . 53 44 37 37 47 B. Backhouse y. Charlton Bacon v. Tiiner Baillie v. Jackson Banks T. Cartwright . . Banque Frauco-Bgyptienne Lutscher Bartholomew v. Bawlings . . 17 Bates V. Bley 149 Bauman v. Matthews . . . . 27 Baylis v. Watkins . . . . 155 Bear v. Smith 33 Beardmore v. Gregory . . . . 9, 53 Beckett v. Attwood . . . . 59 Beddall v. Maitland . . . . 16 Beddow v. Beddow . . . . 49, 50 Bell V. Turner 37, 47 Bellamy v. Cockle . . . . 45 Bellchamber v. Giani . . . . 169 Bennett v. Moore . . . . 82 Bentley v. Craven . . . . 48 Berdan v. Greenwood Bernard v. Hard wick . . . . 92 Berry v. Gaukroger . . . . 154 Betts V. De Vitre . . . . 42 V. Gallais . . . . . . 27 V. Neilson . . . . . . 26 Bierdermann v. Seymour . . 168 Bigsby V. Dickinson . . . . 64 Bick V. Motley . . . . 57 Bidder v. McLean Biddulph V. Camoys . . . . 104 Birch V. Williams . . . . 136 Birmingham Estates Company V.Smith 16, 17 Bishop, ex parte . . . . 141 1 re 51 Blackford v. Davis . . ... 46 Bland v. Davison . . . . 52, 53 Bly'th and Young, re .. ..60,61 Bogg V. M. B. Company Bolton V. Bolton Bonsor v. Bradshaw Booth V. Coulton . Bourke v. Wright Boydell v. Manby Bradley v. Bevington Brancker v. Carne Briant v. Tibbut Briggs V. Beale . . Bright V. Legerton Bristow V. Whitmore Brocklebank v. King's Steamship Company Broughton v. Eodd Bf own, re V. De Tastet . . V. Gellatly V. Pearson Lynn Burch V. Eich . . Burchell'v. Giles Burgoine v. Taylor Burmester v. Moxon . . Burnell v. Burnell Burnett v. Baxter Burstall v. Fearon' Bush 1. Trowbridge Water works Company.. V. Watkins Byrd v. Nunn . . 41 36 28 54 16, 121 45 28 19 154 126 24 41 105 67 10 149 165 82; 83 92, 93 164 136 45 82 144 129 107 33 95 TABLE OF CASES 0. Caddick v. Cook Callow V. Howie Campbell v. Moxhay Carter v. Sanders T. Wake . . of Case V. M. E. Company Cashin v. Cradoek Cator V. Beeves . . Cattonv. Wyld.. Cavander's Trusts, re . . Charlton v. Charlton . . Child, ex parte .. Chilton V. Corporation London Chubb V. Garter Churchill v. Cotter City of London, &c., Co. Tennant Clarkson t. Edge Claydon v. Green Clements v. Bercsford . . T. Bowes Clive V. Carew . . Cochrane v. Fearon . . Cockle V. Joyce Colebourne v. Colebourne Coleman v. Mellersh . . Oollette T. Goode Collins V. Stuteley V. Vestry of Pad- dington Colman v. Northcote Commissioners, &c., of Lon don V. Glasse Cook V. Cholmondeley Cookes T. Cookes Corporation of Hythe v. East Corsellis v. Patman Cory V. Thames Ironworks Co. Costa Eiea, Republic of, v, Erlanger Cox V. Barker . . . . 10, Cradoek T. Owen Craig V. Phillips Cross V. Maltby Crossley v. Dixon Crowfoot V. Mander Curlewis v. Carter Curriers' Co. v. Corbet Curtis V. Sheffield d; Dakins v. Garrett Darby v. Whittaker . Daubnz v. Peel 10 24 45 9 44 37 84 44 26, 27 65 60 34 83 48 35 27 3 5» 159 9 24 106 136 51 47 95 27 60 104 19 44 46 26 45 27 106 ,41,42 155 60 154 19 52 3 26 60 172 26 135 Davenport v. Goldberg V. By lands V. Stafford Davey v. Durrant Davies v. Marshall Davis, re V. Ashwin V. Davis V Dysart Davy V. Garrett Dawkins v. Morton V. Penrhyn Dawson v. Beeson Day V. Batty V. Brownrigg Deane v. Thwaite Deekes v. Stanhope Dent v. Dent . . De Windt v. De Windt Dicken v. Hamer Dicks V. Brooks Dight V. Gordon Dixon V. Dixon V. Williams Domville v. Berrington Doody V. Higgins Dowling V. Dowling Down V. Ellis . . Drevon v. Drevon Drover v. Beyer Duchess, (fee. Company, Duffield V. Sturges Duckett V. Jones Dunne v. Doyle Durell V. Pritchard PAGE, 3 27 .. 130 34 .. 167 37 47 .. 155 40 84 24, 58, 155 .. 96,97 .. 43,85 .. 137 49 46 52 22 41 65 64 59 57 59 .. 156 10 40 .. 150 37 86 ■e .. 61 23 92 53 26 E. Earl, re 37 Eastwood V. Lever . . . . 27 Eocles V. Liverpool Borough Bank 168 Ellis V. Walmesley . . . . 169 Eno V. Davies 60 Evans v. Coventry . . . . 9 Evennett V. Lawrence.. .. 60 Ewart V. Williams . . .. 46 P. Farington, re .. Farquharson v. Pitcher Faulkner v. Daniel Feltham v. Clark Ferguson v. Wilson Ferinie v. Young 165 168 135 135 26 ,28,29,30,31 TABLE OF CASES. Ferrand v. Mayor, &o., of Brad ford . . Finch V. Finoh . . Fleming t. East Forbes, re. Ford V. Tynte . . Foster v. Harvey Fowler v. Beynal Frauklinski v. Ball Frazer v. Thompson French v. Dear . . Fritz V. Hobson FuBsell V. Elwin Fyfe v. Arbuthnot G. Garlick v. Lawson Garrod v. Holden Garwood v. Cuiteis Gaskin y. Balls . . George v. Whitmore Gilbert v. Smith Girdlestone y. Laveuder Glover v. Ellison Golding V. Wharton Saltworks Company Goode V. Onslow Gosling V. Gosling Goss, re .. Gover v. StUwell -'s case, re Grant v. Grant , Gray v. Webb . . Greaves, re Green v. Sevin . . Griffin v., Allen Griffith v. Eicketts Griffiths V. Tanner Grove V. Bastard H. H. V. H Haggitt V. Ini£F . . Hardwiok v. Wright Hargrave v. Hargrave Hargraves v. White Harris v. Gamble V. Jenkins Harrison v. Cornwall, Hart V. Montefiore Hartley v. Owen Hastie v. Hastie Hawkesley v. Bradshaw &o., Co 42 150 34 36 38 44 33 26 165 93 25, 27 168 40 40 92 18 49 28 82,83 45 L49 84 169 40 86 172 64 150 17 104 16 60 128 3 40 51 87 47 130 101 94 84 65 22 114 64 84 Hayward v. Hayward v. Stephens I V. Harris . . Heath V. Crealock Hedley v. Bates. . Hellyer v. Druitt Henshaw v. Angell Hetheriugton v. Longrigg Hewitt V. Nanson Higgins V. Shaw Hill V.King Hills V. Springett Hinde v. Morton Hindley v. Emery Hiorns v. Holtam Hobson V. Jones Hodson V. Moohi Hoffman v. Postell Holoombe v. Trotter Holloway v. Cheston Hope V. Fox Home Counties, &c,, Co., Howard v. Chaffers Howe V. Hunt . . Howell V. Eightley Huggons V. Tweed Hull and County Bank, Hunter v. Hunter Hurst V. Hurst . . Hulton V. Sealey Hyde v. Warden PAQE. 58 36 84 44 50 145 154 82 44 53 152 53 129 26, 27 44 46 16,17 19 129 59 9 58 34 26 155 17 60 62,63 44 45 51 Imperial, &o., Association v. Whitham 19 Imperial Laud Company of Mar- seilles, re .. . . . . 36 International Financial Com- pany V. City of Moscow Gas Company . . . . . . 60 Jackson v. Duke of Newcastle V. Turnley James v. James . . Jaques, re Johnstone v. Cox Jones V. Chennell V. Charlemont V. Gregory Justice V. Mersey, &e., Co. 28 41 44 60 65 63, 64 125 3 64 TABlB OF CASES. Eelsou V, Eelsou Eeuoh, re Kimber v. Ensworth King V. Sandemau Erkley v. Burton Knight V. Enight Erehl v. Bntrell Laiuson T. Laiuson Lambe t. Oiton Lancaster v. De Trafiord Lane v. 3ray . . Langdale Y. BriggB .. Lanham T. Firie Laslett y. Cliffs.. Lanretta, The .. Lazarns v. Mozley Lee T. Angas y. Willook. . Leeds y. Lewis . . Lees y. Lees y. Patterson Leigh y. Turner Leyitt y. Leyitt.. Lewers y. Earl of Shaftesbury Lewis y. Nobbs . . Leyland v. Leyland Lloyd y. Whittey Lodge y. Pritchard London, &c., Company, re 55 37 135 136 93 48 28 151 155 26 22 40 10 45 65 22 39 57 55 37 17 155 37 26 89 135 44 46 38 y. Doyer 45, 47 y. Lime- house Board of Works . . 172 Loudon and County Assurance Company, re 58 Lord y. Lord 149 Lydney, &o.. Company y. Bird 105 Lyley. Elwood 37 M. Malcolm y. Harris . . . . 158 y. Montgomery . . 51 Manchester, Ac, Co. y. Brooks 16 . y. Slagg . . . . 59 105, 106 45 89 47 27 18 90 105, 106 .. 135 37 Mapleson y. Masini Marriott y. Kirkham Martauo y. Mann Martin y. Hadlow y. Heaton Mason y. Brentini y. Kearney y. Allen Maybery y. Brooking I y. Butter McArthur y. Dudgeon . . McDonald y. Carrington McGowan y. Middletou McGregor, ea; parte .. . McYeagh y. Croall Mea4!ham y. Cooper Mears y. Best . . Mellish y. Brooks Mellor y. Sidebotham . . Messer y. Boyle . . Meyrick y. James Michel y. Wilson Middleton y. Greenwood y. Magnay . . Mildmay y. Methuen . . M. Moxham, The Morgan y. Puller y. Higgins Morley y, Finney Momington y. Keane . . Morris y. Llanelly Eailway Go, Mounsey y. Bumham . . 149 17 16 157 22 149 45 168 83 44 34 136 26 i6. 37,38 36 29 47 150 163 38 164 N. Naylor y. Farrer . . . . 17 Needham y. Needham . . . . 134 Nelson y. Booth . . . . 46 New Callao, re .. .. 60, 61, 62 Newen y. Whetten . . . . 46 Newman y. Selfe . . 44, 45, 104 Norris y. Jackson . . . . 26 Norton y. White .. .. 128 Noyes y. Crawley , . . . 97 0. O'Brien y. Maitland . . . . 104 Ogden y. Battams . . . . 47 Original, &o.. Company v. Gibb 16 Orr Ewiug's Trade Marks, re.. 64 P. Padwick y. Scott . . . . 17 Paine y. Edwards . . . . 44 Pare y. Clegg 51 Parkinson y. Hanbury . . 92 Parnell y. Hingston . . . . 10 Parsons y. Harris . . . . 82 Pease y. Fletcher . . . . 51 Pennell y. E. of Dysart . . 40 Percy, &o., Company, re .. 106 Philippe y. Philipps . . . . 84 Phillips y. Gutteridge . . . . 45 Phcenix, &o. , Company, re .. 64 Pierce y. Hammond . . . . 155 TABLE OF CASES. Piggott V. Garraway Poole V. Gordon Porter v. Lopes.. Powell V. Jewesbury Prentice v. Prentice Price V. Berrington V. Webb . . Prince v. Cooper Purcell V. Manning Pnrnell v. G. W. E. Company 61, 62 Q. Quartz Hill, &c., Co., re V. Beall. Quin V. Hessou E. 34, 39 50 17 Ealph V. Carrick Bamsay v. Eeade Eattray v. Blauchard . . Baymond y. Tapson . . Beddish, ex parte Eiohards, re Eiohardson v. Ward . . Boberts v. Evans V. Price Bobinson v. Drakes V. Hewetson. . Bobson V. Whittingham Eochdale Canal Co. T. King Bogers v. Challis V. Powell Booke V. Lord Kensington Eowley v. Burgess Eowsell V. Morris Bubery v. Morris Bumbold v. Forteath . . Bussell V. Lucey Butter V. Tregent S. Sambrooke v. Hayes . . Samuda v. Lawford Sandeman v. Hinton . . Saner v. Bilton V. Deaven Saxby v. Easterbrook . . Schjott V. Sohjott Schneider v. Shrubsole Schotsmans v. Lancashire, &e. , Company Schultz V. Boberts Scriben, re Sempillv. Campbell .. 65 82 141 39 61, 63 152 155 9 44 65 53 28 21 26 150 41 48 167 163 22 185 94 168 26 169 18 129 50 11 28 26 33 37 140 PAGE, Senior y. Pawson . . . . 27 Sharp y. Lush 137 • V. Wright 165 50 104 156 170 17 Shaw y. Jersey Sheppard y. Harris Sidny y. Banger Simmons v. Storer Sir Charles Napier, The Skidmore, re 165 Sleight y. Lawson Smith y. Armstrong V. Baker.. y. Etches y. Eichardson -y. Bobinson Spames y. Edge Spiller y. Paris, &o.. Company Staoey y. Southey Stainton y. Oarron Company. . Steel y. Cobb Stephens v. Heathcote.. Steuarty. Gladstone .. Stockton, Ac, Company, re .. Stokes y. City Offices Company V. Grant Stott v. Meanock Strelley v. Pearson Strickland y. Strickland Sturge y. Dimsdale Suffield y. Bond Swaine y. G. N. E. Company.. 3, 26 Swallow y. Biims . . . . 10 Swindell y. Birmingham Syndi- cate .. 60 46 155 43 9 84 44 26 36 48 47 104 24 36 62 38 84 57 50 . 164 171, 172 42 Talbot y. Keay . . Tarbuck y. Woodcock . . Taylor y. Eckersley V. Grange Tennant v. Trenchard . . Thomas y. Bernard V. Elsom y. Thomas y. Williams . . Thomson y. Woodfine.. Thorley's, &e., Co., y. Massam Thorp y. Holdsworth . . Tildesley v. Harper Tillett V. Charing, &o., Co. . . Trail y. Jackson Troup V. Eicardo Truman and Co. v. Bedgraye. . Trustees of Birkenhead Docks V. Laird 42 165 51 64 44 24 59 104 50 16 50 84, 94 95 26 60 93 51 41 TABLE OF CASES. TuUooh V. TuUoeh Turner v. Turner Turquaad v. Wilson . . Twycross v. Grant U. Union Bank of London v. Manby Upton V. Brown U. S. A. V. Vavasaeur v. Erupp Venour'B S. E., re W. Wadham v. Eigg Wakelee v.-Davis Walker v. Poole Wallis V. Bastard Walsh V. Wason Ward V. Higgs . . V. Morse.. Wards v. Dickson Ware v. Watson Warner v. Mosses Watkin v. Parker Watson v/ Bodwell Watts V. Watts . . Wayn v. Lewis . . Webb V. Byng , . V. Mansel yPebster v. Manby V. Taylor •- i V. Threlfall Wedderburne v. Llewellyn Wedmore v. Corporation Bristol 35, of 47 155 82 114 22 58 19 16 5n 58 97 116 55 161 3 18 24 164 36, 170 92 63, 84 53 45 41 60 171 139 92 168 26, 27 Wellesley v. Mdrnington Werderman v. Sooietg Gen€rale d'Electricit^ West Jewell. &o., Co., re Weston's case . , White V. Boby . . V. PMbbs Whitfield V. Roberts Whiting V. Bassett Whittaker v. Whittaker Wiokham v. Nicholson Wigham t. Measor Wightman v. Wheelton Williams t. Jackson . . ' V. Page Williamson v. L. &N.W.E. Co. Willyams v. Hodge Wilson V. Broughton.. V. Church . V. Whately V. Wilson Winterfeld. v. Bradnnm Wolf V. Vanderzee Woodcock V. Oxford, &c., Co, Woodford v. Brooking.. Wormsley v. Start Wrench v. Wynne Wright T. Clifford T. Lukes V. Swindon, &o., Co. Wycherley v. Barnard . . Wynne v. Humberston Yearsley v. Tearsley . . Yetts V, Biles . . York, &c., Co. V. Artley V. Hudson Youl, re Young V. Fernie FAOE, 161 97 61 64 26 139 44,45 37 150 44 45 39 52 9,135 84 104 168 19 53 155 105 46 168 45 149 161 136 83 115 154 22 172 168 44 58 53 31 THE PRACTICE IN EQUITY. 44 VIOT., No. XVIII. An Act to amend the Law respecting the Procedure and Practice of the Supreme Court in its Equitable Jurisdiction. [Assented to, 12 July, 1880.] Be it enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parlia- ment assembled and by the authority of the same as follows : — Jwrisdiction of the Judge in Equity. \. It shall be lawful for the Governor with the advice Appointment and jurisdiction of the Executive Council to appoint one of the Judges 6i °* •f"''s«- the Supreme Court to be the Primary Judge in Equity hereinafter called the Judge and as such Judge to exercise the jurisdiction of the said Court in Equity And the Supreme Court shall be holden by the Judge so appointed for the determination of all proceedings in Equity and the disposal of motions and matters in relation thereto respec- tively and every decree or order of the Judge made in Equity (unless appealed from in manner hereinafter provided) shall be as valid and binding as if made by the full Court, 2 EQUITY ACT, 1880. Judge's absence 2. In case of the absence from Sydney or illness of the or illness. •' "' Judge so appointed it shall be lawful for any of the other Judges (during such absence or illness) to sit alone and determine all such matters as aforesaid in like manner as the Judge so being ill or absent might have done but subject nevertheless to the like appeal. The word 3. Wherever in this Act the word " Court " is used it "Court." shall be taken to mean the Court holden before the Judge so appointed as aforesaid or the Judge acting under the last preceding section in his stead unless the context shall require a different construction. Power to decide 4. In any suit or proceeding in Equity wherein it may legal titles, &c. be necessary to establish any legal title or right as a foun- dation for relief the Court shall itself determine such title or right without requiring the parties to proceed at law to establish the same and whenever any question now cognizable only at law shall arise in the course of any pro- ceeding before him the Judge shall have cognizance thereof as completely as if the same had arisen in a Court of Law and shall exercise in relation to such title right or question all the powers of the Supreme Court in its Common Law Jurisdiction, and no suit in Equity shall be open to objection on the ground that the remedy or appropriate remedy is in some other jurisdiction. This section is to a great extent oompounded of the following English enactments — (1) 15 and 16 Vict,, u. 86, s. 52: "in cases where, according to the present practice of the Court of Chancery, such Court declines to grant equitable relief until the legal right or title of the party or parties seeking such relief shall have been estab- lished in a proceeding at law, the said Court may itself determine such title or right without requiring the parties to proceed at law to establish the same ; " (2) 25 and 26 Vict., c. 42, s. 1 : " in all cases in which any relief or remedy within the jurisdiction of the said Courts of Chancery [i.e., the High Court of Chancery and the Court of EQUITY ACT, 1880. Chancery of the County Palatine of Lancaster] respectively is or shall be sought in any cause or matter instituted or pending in either of the said Courts, and whether the title to such relief or remedy he or be not incident to or dependent upon a legal right, every question of law or fact cognisable in a Court of Common. Law, on the determination of which the title to such relief or remedy depends, shall be determined by or before the same Court." The section of the Colonial Act now under consideration clearly enacts this — that the Equity Court shall, instead of sending the same to law, itself try any legal question that may incidentally arise in the course of a suit in Equity, or on which the right to the equitable relief claimed depends (subject to section 37, which gives the Court a discretionary power to remit to a legal tribunal questions of fact or assessments of damages). But has it the further operation of permit- ting plaintiffs to bring into equity rights of action which are entirely legal rights, and of submitting to the decision of the Equity Court purely legal questions, rights and titles, such being in no way alleged as a foundation for ulterior equitable relief, nor being merely incident to a suit in Equity properly so called? In other words, has the Legislature of this Colony introduced, by an indirect method, the most fundamental provision of the English Judicature Act, and created in the Equity Court of the Colony such a fusion of juris- dictions as to give it the power (which the Chancer^ Division of the High Court of Justice in England undoubtedly now possesses) of determining what are usually known as common law actions, e.g., a simple action of ejectment, an action for libel, or a common money demand? Before the Judicature Act, the Court of Chancery in England had no such power : it was not given to it by either the 15 & 16 Vict., c. 86, s. 52, or the 25 & 26 Vict., c. 42, s. 1, above cited (see Swaine v. G.N.S. Co., 12 W.K. 391 Olarkson v. Edge, ibid. 518 ; Davenport v. Goldberg, 2 H. & M. 285 Ward V. Higgs, 4 N.R. 459 ; Jones v. Gregory, 2 De G. J. & S. 8.S Griffiths V. Tanner, 7 W.E. 322; Otvrlewis v. Carter, 12 W.E. 97 A.G. u. Boyle, ibid. 368; and see note to section 60.) But then the Act last referred to contained a provision (s. 4) in these terms : "Provided also that, in all cases, in which the object of any suit in Equity shall be to recover or defend the possession of land under a legal title, or under a title which would have been legal but for the existence of some outstanding term, lease, or mortgage (and whether mesne 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 practice 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 P2 4 EQUITY ACT, 1880. brought into Equity, and that the same ought to have been left to the sole determination of a Court of Common Law." It is very remark- able that the Colonial Act not only does not incorporate into itself this proviso or anything like it (see, however, the striking omission from section 21 of certain pertinent words occurring in the corre- sponding English provision — post, p. 16), but enacts affirmatively that " no suit in equity shall be open to objection on the ground that the remedy or appropriate remedy is in some other jurisdiction." These words, taken alone, are certainly large enough to let in the extended operation indicated above, unless the words "suit in equity" are to be pressed, so as extract from them an indication of intention on the part of the Legislature that the proceedings must at least be capable of being cast into a mould familiar to the Equity Court, so excluding proceedings directed to a purely common law remedy. The words of the section must, however, be construed by reference to the Act as a whole ; and perhaps the strongest arguments against giving them the comprehensive meaning under consideration are these — (1) that, if they are to be so interpreted, they more than cover, and therefore supersede and nullify, so much of the 32nd section as enables the Court in certain cases to grant damages in lieu of an injunction or specific performance ; (2) that a power of transfer (which is not inherent in a Court) is not bestowed by the Act on the Equity Court, and that therefore (contrary to the effect of the Judicature Act in England) such Court is peremptorily obliged, if the section is to bear the wide meaning referred to, to retain and dispose of any " oommou-law " suits that might be brought before it, e.g., suits in respect of libel, false imprisonment, seduction, &o,, (fee, however great might be the block of equity business proper awaiting disposal. And it may well enough be argued that the Act ought not to be construed as abrogating by implication, rather than by express words, a practice which at the date of the Act was firmly established. But the matter is a doubtful one, and requires either a legislative or a judicial solution. Judge or Judges 5. — In any cause or matter the Judge may sit with the assistance of any tvro other Judges of the Supreme Court. Provided alvp^ays that in every such case where three Judges sit the decision of the majority shall be taken to be that of the full Court. This section enables the Judge, when called upon to decide legal points, to invite the assistance of a Judge or Judges who may perhaps be more conversant with such matters. The first part of the section, if it stood alone, would seem to preclude the Primary Judge EQUITY ACT, 1880. from calling in one assistant Judge only; but the proviso clearly oontemplatds that one or two assistant Judges may be invited at the Primary Judge's option, and with this the marginal note agrees.* Statement of Claim. 6. After the commencement of this Act all persons f"^"^^ seeking equitable relief shall instead of proceeding by bill of p'^*"*'"^' complaint file in the office of the Master in Equity a state- ment of his case to be termed the statement of claim which shall contain as concisely as may be a narrative of the material facts and circumstances on which the plaintiff relies but not the evidence by which they are to be proved such narrative being divided into paragraphs numbered consecutively and each paragraph containing as nearly as may be a separate and distinct statement or allegation and shall pray specifically for the relief which the plaintiff may consider himself entitled to and also for general relief. See R, 28, with the notes. Parties. 7. It shall not be competent to any defendant to take any K"'?^ "■^ *° objection for want of parties in any case to which the rules next hereinafter set forth extend and such rules shall be taken as part of the law and practice of the Court aiid any law or practice inconsistent therewith is hereby annulled. Bule 1. Any legatee devisee or next of kin may with- out serving the remaining legatees devisees or next of kin have a decree for the administration of the real and personal estate of a deceased person. * As to the authority of margihal notes to Acts of Parliamaut, see Claydoii.v. Green, 3 C.P. 611 ; re Venour'e S.K, 2 CD. 525; A.G. v. O.E.R. Co., 11 CD. 465. EQUITY ACT, 1880. Jiule 2. Any one of several cestui qtie trust under any deed or instrument may without serving any other of such cestui que trust have a decree for the execution of the trusts of the deed or instrument. Jiule 3. In~ all cases of suits for the protection .of property 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. Hule 4. Any executor administrator or trustee may obtain a decree against any one legatee next of kin or cestui que trust for the administration of the estate or the execution of the trusts. Rule 5. 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. Rule 6. In all the above, cases the persons who accord- ing to the present practice of the Court would be necessary parties to the suit shall be served with notice of the decree and after such notice they shall be bound by the proceedings in the same manner as if they had been originally made parties to the suit and they may by an order of course have liberty to attend the proceedings under the decree and any party so served may within such EQUITY ACT, 1880. 7 time as shall in that behalf be prescribed by the general order of the Supreme Court apply to the Court to add to the decree. See BE. 171—173. Rule 7. In all suits concerning real or personal estate which is vested in trustees under a will settlement or otherwise such trustees shall represent the persons 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. This section is taken from the 42ud sec. of the 15 & 16 Vict., c. 86. Eule 1 supra is condensed from rr. 1, 2, 3, of the English enactment ; accordingly rr. 2, 3, 4, 5, 6, 7 correspond respectively with the English rr. 4, 5, 6, 7, 8, 9. See on these rr. Walker and Elgood's "Administration Actions." 8. If in any" suit or proceeding in Equity it shall appear to Absence of peraonal the Court that any deceased person who was interested in representatives. the matters in question has no legal personal representative it shall be lawful for the Court either to proceed without any person representing the estate of such deceased person or to appoint some person to represent such estate for the purposes of the suit or proceeding on such notice (if any) as the Court shall think fit either specially or generally by public advertisement and every order made in reference to 8 EQUITY ACT, 1880. the matter and every order consequent thereon shall bind the estate of such deceased person in the same manner as if there had been a duly constituted legal personal represent- ative of such deceased person and such representative had been a party to the suit or proceeding and had appeared and submitted his rights and interests to the protection of the Court. On this section (which corresponds with the 44th sec. of the 15 & 16 Vict., u. 86.) see Daniell's Ch. Pr., p. 181 ; Walker's "Executors and Administrators," p. 79. Misjoinder of 9_ — j^q g„it ghall be .dismissed by reason only of the mis- joinder of persons as plaintiffs but wherever it shall appear to the Court that notwithstanding the conflict of interest in the co-plaintiffs or the want of interest in some of the plaintiffs or the existence of some ground of defence affecting some or one of the plaintiffs the plaintiffs or some or one of them are or is entitled to relief the Court may grant such relief and modify its decree according to the special circumstances and for that purpose may direct such amendments if any as may be necessary and at the hearing before such amendments are madq may 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 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 has died leaving a plaintiff on the record without an interest the Court may at the hearing order the cause to stand revived as may appear just and proceed to the decision of the cause if it shall see fit and may give such directions as to costs or otherwise as to the Court shall seem meet. This section is taken from see. 49 of 15 & 16 Viot., o. 86. The language of this section is explicit, and the new doctrine is not left to the discretion of the Court ; it is imperative on the Court to EQUITY ACT, 1880. 9 follow it, and, if it applies to cases where the parties are named on the record, it applies equally where a plaintiff sues on behalf of himself and all others : accordingly, on a bill by one member of a company on behalf of himself and all others except the defendants, praying an account of the receipts and payments of the defendants on behalf of the company and payment of what should be found due to •the plain- tiff, where it appeared that there were circumstances which made the interest of some of the persons whom the plaintiff purported to repre- sent different from his, the Court held that the case was within the section, and that the Court could treat the absent plaintiffs as defend- ants, and a decree for an account was made, and liberty given to certain shareholders to attend the proceedings under the decree {Clements v. Bowes, 1 Dr. 684, 694 ; see per Eomilly, M.E., Williams V. Page, 24 Beav. 669). The fact that the plaintiff is the representative of a person who could not have sued, as well as of a person who could, is, under this section, no objection to a suit (Garter v. Sanders, 2 Dr. 248) . As to husband and wife co-plaintiffs, see Hope v. Fox, 1 J. & H. 456 ; Smith v. Etches, 1 H. & M. 558 ; Beardmore v. Gregory, 2 H. &'m. 491 ; Roberts v. Eoans, 7 CD. 8.30. It is said that the bill is open to objection (once said Turner, L.J.) on the ground of misjoinder, some of the plaintiffs having interests adverse to those of others of them. But for what purpose was the Chancery Amendment Act passed ? Was not one of its purposes to enable the Court to deal with cases according to justice, notwithstand- ing any formal objections on the ground of multifariousness ? (Evans V. Coventry, 5 De G. M. & G. 918). ■ 10. It shall be lawful for the Court to adjudicate on Absence ot per- sona intereBted, questions arising between parties notwithstanding that they may be some only of the parties interested in the property respecting which the question may have arisen or that the property is comprised with other property in the same instrument without making the other parties interested in the property or interested under the same instrument parties to the suit and without requiring the whole trusts and purposes of the instruments 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 may have arisen Provided always that if the 10 EQUITY ACT, 1880. Court shall be of opinion that the application is fraudulent or collusive or for some other reason ought not to be entertained it may refuse to make the order prayed. This section corresponds with the 51st section of the 15 & 16 Vict., c. 86. Under it the court can direct the administration of one or more of several specific trusts created by the same instrument, without directing the performance of the whole of the trusts (Pa/rnell v. Hingston, 3 Sm. & G. 337), and can make a decree for the purpose of carrying into effect an arrangement as to a part of the estate of a testator, without administering the estate or executing the trusts of the will generally [Prentice v. Prentice, 10 Ha. App. 22). But it does not enable the Court to decree foreclosure or sale in the absence of a person entitled to a share in the equity of redemption (Caddide V. Gooh, 32 Beav. 70) ; and it only appUes in cases where there are before the Court some of the parties interested in every point of view, and so it is inapplicable (e.g.) where, the question being between surviving children and the representatives of deceased children, the latter class are unrepresented (Swallow v. Binns, 9 Ha. App. 477). The section applies to special cases (re Brown, 29 Beav. 401). A party will not be allowed under this section to strike the names of some of the defendants, who are out of the jurisdiction, out of the record, and proceed without them (Lanlmm v. Pirie, 2 Jur. N. S. 1201). The section does not render the decision of the Court binding on the absenting parties (Doody v. Higgins, 9 Ha. App. 32). Defendant not 11. It shall not be nocBssary that every defendant to the interested as to au the relief. statement of claim shall be interested as to aU the relief thereby prayed for but the Court may make such order as may appear just to prevent any defendant from being em- barrassed or put to expense by being required to attend any proceedings in such suit in which he may have no interest. This section is borrowed from 0. XVI., r. 4. Under it a statement of claim is not open to demurrer on the ground that the demurring defendant is not interested in all the questions raised (Cox v. Barker, 3 CD. 359). In such a case it is competent to the Court to direct that those questions in which alone a particular defendant is interested be tried first (see per James, L. J., S.C. 371). EQUITY ACT, 1880. 11 12. Before the name of any person shall be used in any ^?^J^° "*''' suit as next friend of any infant married woman or other party or as relator in any information such person shall sign a written authority to the solicitor for that purpose / and such authority shall be filed with the statement of // ' claim. ]!-''y- special or common jury for the trial of any such question of fact or question of damages as may be made by the Supreme Court and may also make any other orders in relation thereto which to him may seem , requisite and every such jury shall be summoned struck and called in like manner as if sum- moned for the trial of a cause in the Supreme Court in its Common Law jurisdiction a-nd generally for all purposes of or auxiliary to the trisEl of questions by a jury and in respect of new trials the Judge shall have the same jurisdiction in all respects as belongs respectively to the Supreme Court in its Common Law jurisdiction or to any Judge thereof for the like purpose Provided that from every order made by the Judge on an application for a new trial there shall be the same right of appeal as from any other order of the Court. ~ This section is extracted mutatis mutandis from the 3rd section of the ai&22 Vict., u. 27. 30 EQUITY ACT, 1880. If' damages are assessed, or a question of fact is tried, by a jury before the Primary Judge, any application that may be made for a new trial must be made, under this section, to such Judge, subject to appeal. assessed or ques- 36. It shall be lawful for the Court to cause the amount tionsof facttried before the Uourt of such damages in any case to be assessed or any question itself without a a J ■/ i ^'^'y- of fact arising in any suit or proceeding to be tried before the Court itself without a jury 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 ques- tion 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 pro- ceedings 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 a trial by jury under this Act Provided that in the case of a trial under this section any person may apply for a new trial either to the Judge before whom the trial was heard or by way of appeal to the full Court. This section is taken from the 5th section of the 21 & 22 Vict., c. 27. On an application for an injunction a trial was ordered by the Lord Chancellor to take place by a jury before a Vice-Chancellor. On a consent between the parties, the Vioe-Ohancellor substituted a trial before himself without a jury. This was held by the House of Lords to be ultra vires of the Vice-Chancellor : the change could only be competently effected by an order of the Lord Chancellor (Ferniev. Young, 1 E. and I. App. 63). The section provides, inter alia, that, where damages are assesxed, or a question of fact is tried by the Primary Judge without a jury, an application for a new trial may be made either to such Judge or to the full Court. EQUITY ACT, 1880. 31 37. It shall be lawful for the Oourt in any case where it Damages may be •^ assessed by a shall see fit to cause any such question of fact to be tried or ^^alg^"'°ot "he the amount of such damages to be assessed by a jury before k"™^ j)nMs"or Ti(ii~* r-t • i^' • r^ **" circuit. any J udge of the Supreme Oourt or m any Circuit Oourt. This section is substantially identical with a proviso in section 2 of 25 & 26 Vict., c. 42, declaring that, whenever it should appear to the Court that any question of fact might be more conveniently tried by a jury at the assizes, or at any sitting in London or Middlesex for the trial of issues in the superior Courts of Common Law, it should be lawful for the Court of Chancery to direct such trial. It was held that, in order to bring o. case within the proviso, the Oourt of Chancery had to be satisfied that the administration of justice in the particular case might be more conveniently exercL'^ed and promoted by directing such issues than by completing the hearing and the inquiry before itself ( Young v. Fernie, 1 De G. J. & S. 353). If a decree is founded upon the finding of issues, however those issues were found, whether on a trial at law or on a trial in the Court of Chancery, with or without a jury, and the decree states the findings, but does not refer to the evidence, the House of Lords held, on an appeal against such a decree, that it could not look at the evidence to see whether it afiorded ground for the findings or the decree. In a case, therefore, where theie had been an application to the Court of Chancery for an injunction to restrain the infringement of a patent, and a trial had taken place before a Vice-Chauoellor without a jury, and his Honour had made certain findings, and in the decree on the hearing had made no reference to anything but the findings, the patent, the specification, and the answers, and there was an appeal against the decree alone, the House had no power to look into the evidence in order to satisfy itself whether the decree was or was not warranted by the evidence, but was bound to confine itself to the decree and to the matters referred to in it (Fernie v. Young, 1 E. & I. ipp. 63). As to suing out a writ of inquiry under this section, see ER. 135-138. 38. When the evidence on both sides is closed and there Proceeding to hearing after evi- has been no trial before a jury a memorandum to that effect dence closed. shall be signed by the Judge and filed and the plaintifi" may thereupon forthwith proceed to the hearing of the cause unless the Judge shall otherwise order And the plaintiff shall without any such memorandum after the verdict in 32 EQUITY ACT,, 1880. cases of trial before a jury proceed to the hearing on a day" to be fixed by the Judge for that purpose and it shall not be necessary in any case to sue out a subpoena to hear judg- ment. The euaotmeut that the plaintiff shall after a verdict in cases of trial before a jury proceed to the hearing on a da; to be fixed by the Judge for that purpose, seems to intimate that, where a trial of questions of fact is had before a jury, the hearing of the suit should not be had until some day subsequent to such trial, and, indeed, that an application to fix a day for the hearing should not be made until after the verdict has been delivered ; and see notes to section 34. Judge may 39. XJpon the hearing of any cause or matter the Judge require examma- ^ . tion before may require the production and oral examination before himself of any J ^ r witness. himself of any witness or party in the cause and may direct the cost of and attending the production and examination of such witness or party to be paid by such of the parties to the suit or matter and in such manner as he may think fit. This section (which in this Act is somewhat inconveniently placed under the heading " Mode of Trial of Cause," belonging as it does to the succeeding rather than the preceding sections) is taken from the 39th section of the 15th & 16th Vict., c. 86. Evidence. Evidence at tiie 40. The eviderCce to be used at the hearing shall be taken hearing. m the same manner and be subject to the same rules and exceptions as at a trial at nisi prius Provided that affi- davits by particular witnesses or as to particular facts may by consent or by leave of the Court be used on the hearing and such consent may if the Court shall think fit be given by or on the part of married women or infants or other persons under disability. Vivd voce evidence, taken at the trial or hearing, is new to the Equity Court. Its introduction into the Chancery Division of the High Court in England by the Judicature Act has been much appre- ciated, and this mode of taking evidence has there been largely EQUITY ACT, 1880. 33 employed. The advantage of it in eliciting the truth has already been amply shown in this colony since the passing of the Equity Act. The proviso in this section as to the admission of affidavits obviously refers, both from its collocation and its wording, only to suits in which the general evidence is taken orally, and does not enable a party to prove by affidavit the principal facts of his case (SchuUz V. Roberts, 1 9. 0. R. Eq. 34) : the only method provided by the Act for the determination of suits entirely upon affidavit evidence is by motion for decree under sec. 28, q.v. If it is wished on behalf of persons under disability to consent to the admission of affidavits under sec, 40, leave to give such consent must be obtained from the Court : an application for such leave may properly be made ex parte, for, even after leave granted, U is open to the opposite side to refuse to give their consent, if they should object to such admission. Where, however, a party, being avA juris, refuses to consent, or, being under disability, refuses to apply for leave to consent to the admission of affidavits, the Court has power under this section to order such admission in invitum, but in such a case the application should, of course, be on notice to the dissentients. See notes to next section. 41. The Court at the hearing of anjs cause or of any further directions therein may receive proof of affidavit of all proper parties being before the Court and of all matter necessary to be proved for enabling the Court to order payment of any money belonging to a married woman and of all such other matters not directly in issue in the cause as in the opinion of the Court may properly be so proved. This section, like the proviso in sec. 40, evidently relates, when imported into the Equity Act, to suits in which the general evidence is taken orally, and extends only to comparatively formal matters, not to "matters directly in issue," or the merits of the case. Indeed, it seems to the writer superfluous, being merely oo-extensive with, and covered by, the proviso in sec. 40. The section is taken from the 28th section of the 13 & 14 Vict., c. 35. Under it an affidavit by the parents as to the members consti- tuting a class of children has been admitted on further consideration, instead of an inquiry being directed [Bush v. Wathins, 14 Beav. 33 ; and see Fowler v. Reynal, 3 Mac. & G. 500), and also an affidavit as to the apportionment of a fund amongst creditors (Bear v. Smith, 5 De G. & Sm. 92). But evidence discovered after the original hearing, and raising a new issue and a new defence, cannot be admitted under D 34 EQUITY ACT, 1880. this section upon further oonsideration ; though, if justice cannot be otherwise done, the Court will direct an inquiry {Howard v. Cltaffers, 9 Jur. N.S. 634; Fleming v. East, Kay, Jpp. 52). tim o/r™'"*" 42. Every witness who has made an affidavit in any cause eponen . ^^ matter before the Court shall be subject to oral cross- examination in the same manner as if the evidence given in his affidavit has been given by him orally and may be re-examined orally by the party using such affidavit and such witness shall attend before the Court to be so examined upon receiving due notice and payment of his reasonable expenses in like manner as if he had been duly served with a writ of subpoena ad testifican !um and the expenses attend- ing such examination shall be paid by the parties respec- tively in like manner as if the witness were the witness of the party cross-examining and shall be deemed costs in the' cause unless the Court shall otherwise direct. Where a person has made and filled an affidavit to be used in a matter pending before the Court, he cannot be exempted from cross- examination by the withdrawal of the affidavit {re Quartz Hill, ««« ess'- an order at any stage of the cause for the examination of witnesses either orally or upon interrogatories as the Court shall think fit and before such person or officer of the Court as it shall for that purpose appoint and every such exami- nation being duly taken and returned may be read as evidence at the trial or hearing accordingly Provided that it shall not be necessary to sue out any commission for the examination of any witness within the jurisdiction of the Court and eveiy officer or person appointed to examine any such witness by order of the Oourt shall have the power of administering oaths and also such other powers as by the order appointing him may be directed. This section is compounded, with some alterations, of parts of 0. XXXVII., rr. 1, 4. Whenever a necessary witness is going abroad, or is, from illness, age, or other infirmity, likely to be unable to attend the trial, an order will be made for his examination under this section, in the presence of both parties {Warner v. Mosses,) 16 CD. 100). The practice is that the witness examined de bene esse is examined by D2 36 EQUITY ACT, 1880. both parties. There might be a case — a case of imminent danger of death— in which leave might be given to either party to attend, and therefore it would not be absolutely necessary that both parties should attend; but it must be shown to be "necessary for the purposes of justice " (per Jessel, M.E. ibid. ) The words in inverted commas are the words occurring in the English rule : in the enact- ment under consideration we have "expedient," which is a wider term. An order will not be made for the examination of witnesses before the trial, unless it is impossible, or at least really difficult, to procure th«ir attendance at the trial {The M. Moxham, 1 P.D. 116 ; per Jessel, M.K., Warner v. Mosses, ubi supra ; consider re Imperial Land Go. of Marseilles, W.N. (1877) 244; Spiller v. Paris, dbc, Co., 27 W.B. 229»; Banque Franco-Egyptienne v, Lutscher, W.N. (1879) 183 ; 28 W.E. 133). An application under this section should be made promptly (see Steuartv. Gladstone, 7 CD. 394). The Court has a discretionary power to direct the filing of deposi- tions informally taken (Bolton v. Bolton, 2 CD. 217). oiTot'ths furis- ^^- -^^^ pleadings examinations and affidavits in causes or matters in Equity may be sworn and taken in any place out of this colony under the dominion of her Majesty before any Judge Notary Public or person authorised to administer oaths at such place or before any British Consul or Vice- Oonsul in any place out of her Majesty's dominions And judicial notiqe shall be taken of the seal or signature as the case may be and authority of any such Judge Notary Public person Consul or Vice-Consul. This section corresponds, mutatis m,utandis, with sec. 22 of the 15 & 16 Vict., 0. 86. It seems superfluous to state that where pleadings, &a., are sworn before persons of whose signature judicial notice is to be taken, no verification of their signature is necessary {flay ward v. Stephens, 36 L J. Ch. 135), or that the mere fact of the signature of an authorised person being attached to a document does not make such document receivable in evidence (re Forbes, 1 W.B. 32 ; see re Goss, 12 Jur. 595). It will be noticed that the section is only permissive, and conse- quently the Court is at liberty to receive, and in fact has frequently received, pleadings, &o., sworn otherwise than before a British Consul or Vioe-Oonsul in places out of the Qaeen's dominions, e.g., before EQUITY ACT, 1880. 37 notaries or persons authorised by the law oE the foreign country to administer oaths (Levitt v. Levitt, 2 H. & M. 626 ; Haggitt v. Iniff, 5 De G. M. & G. 910 ; re Kench, 15 W.E. 781) But in such oases the Court has no authority to take judicial notice of the signature or authority of the person before whom the document is sworn, and requires proof of these things (Baillie v. Jackson, 3 De G. M. A G. 38 ; re Earl, 4 K. & J. 300 ; re Davis, 8 Eq. 98)— a certificate of the clerk of a superior Court of New York has been held sufficient verification {Levitt i. Levitt, ubi supra; Alexander v. Nune, W.N. (1871) 249) — though proof may be dispensed with, where the fund is very small (Mayne V. Butter, 13 W.R. 128), or where there is consent (Lees v. Lees, W.N. (1868)268; Lyle v.Elwood,\5'S,(i.&l ; Bell v. Turner, 11 Eq. 439 ; Bacon v. Turner, W.N. (1876) 292, where there was only an unsworn declaration ; and see Whiting v. Bassett, 14 Eq. 70). Where there has been no consul or consular agent within reasonable access, the Court has accepted an affidavit made in one of the United States, attested by the Governor as being sealed with the great seal of the State (re Seriben, 16 W.E. Oh. Dig. 105), and has appointed a resident solicitor special examiner to take the evidence (Drevon r. Drevon, 12 W.R. 66). 46. The Judge may in every case obtain the assistance AsBiBtanoc of of conveyancing counsel accountants merchants engineers P^"™°- actuaries or other scientific persons the better to enable him to determine any matter at issue in any cause or proceeding and to act upon the certificate of any such person The allovirance in respect of fees to such persons shall be regulated by the Master subject to an appeal to the Judge. The provisions of this section are taken from sees. 40, 42, of 15 & 16 Vict., 0. 80. By the Judicature Act, 1873, sec. 56, provision is made for trials by the Court with the aid of assessors ; but such a method of trial has not been introduced here (unless it be authorised by the section above set out), and, even in England, has never been resorted to except in admiralty matters. Under this section a complicated builder's account was referred to chambers, there to be disposed of by the Judge personally, with, if necessary, the assistance of such soientifio person as he should think fit to call in (Mildmay v. Lord Methuen, 1 Dr. 216), a question of alluvial encroachment on a sea-shore was referred to an engineer (A, G. v. Chambers, 4 De G. & J. 58, where the form of order is given), and in another case an engineer was directed to make experi- ments to ascertain the effect of steam navigation upon a canal (Case 38 EQUITY ACT, 1880. V. Midland Railway Co., 27 Beav, 247). This section does not em- power the Court, where plaintiffs have clearly established their right to au injunction, to delay granting it until a reference has been made to an expert (A. O. v. Colmey Hatch, cfcc, 4 Ch. 146) ; and a general inquiry as to what ought to be done to preserve a plaintiff's light and air has been refused (Stakes v. City Offices Co., 13 W. B. 537). In A. G. v. Golney Hatch, <&c., (at page 166), Selwyn, O.J., thought that after decree an inquiry might perhaps be directed as to the means to be adopted to prevent or cure the evil complained of, and after decree an opinion may be taken as to the time which ought to be allowed for carrying it into effect (A. G. v. Merthyr Tydfil, &c., W.N. (1870) 148). The report of an expert is not to be looked at in the light of an award, but only as furnishing materials for the information and guidance of the Court (Ford v. Tynte, 2 De G. J. & S. 127, where affidavits were admitted in opposition; Adamson v. Gill, 16 W B. 306). The expert has no jurisdiction to call witnesses (Morris v. Lla/neWy Railway Co., W.N. (1868) 46). It was laid down by Kindersley, V. C. , as the opinion of all the Judges, that the section did not intend that the Court should delegate the power of calling in scientific assistance to the Master, nor direct him to receive such assistance, the purpose of the section being to enable the Judge, in doing that which he has to do, in substitution for the Master, to call in the aid of scientific persons (MUdmay v. Lord Methuen, 1 Dr. 220; see, however, re London, <£c., Co., 6 WE. 141) ; but in this colony, though the Master has not apparently the power himself to call in scientific aid, the Judge may procure it for him (see EE. 186 & VII. (8) ). Oral evidence on 47 ^j^y party in any cause or matter may by a subpoena require the attendance of any witness before the Court or Master or any person specially appointed for the purpose and may require the production of any deed instrument writing matter or thing which such witness may be lawfully required to produce and may examine sucji viritness orally for the purpose of using his evidence upon any motion petition or other proceeding in like manner as such witness would be bound to attend and be examined with a view to the hearing of a cause. This section is taken, with immaterial variations, from 15 & 16 Yiot., c. 86, s. 40. It does not refer to cioss-examination (which is EQUITY ACT, 1880. 39 provided for by section 42), but to examination in chief. It will probably not be resorted to except for the purpose of getting the evi- dence of persona who, from hostility or for some other cause, decline to make affidavits. "Party" is to be read as " person " (re Quartz Hill, <&c., Co., 21 CD. 642). Any party may, without leave of the Court, issue a svibpmna for the examination of a witness at any stage of a suit ; but the Court will exercise a control over this privilege to prevent its being oppressively used (Raymond v. Tapson, 22 O.D. 430). But a subpoma duces tecum, requiring a solicitor, not a party to the suit, to produce all papers, Ac, relating to all dealings and transactions between his firm and the plaintiffs or defendaiits (as the case may be) for a period of 30 years, without specifying any particular documents required, is too vague, and the witness is entitled to refuse production. But if the witness, having been served with a subpoena in this general form, admits that he has in his possession " the documents thereby required," he must produce them, and cannot insist on being first sworn (Lee v. Angas, 2 Bq. 59). 48. Upon application by motion or petition to the Oourt ^™7oa cerWn'' in any suit depending therein for an injunction or a receiver ™° ""'°' or to dissolve an injunction or discharge an order appointing a receiver vy^here the defendant has filed an answer to interrogatories such answer shall for the purpose of evidence on such motion or petition be regarded as an affidavit and affidavits may be received and read in opposition thereto. This section is adopted from the 59th section of the 15 & 16 Vict., c. 58, which was directed against the old rule prohibiting con- tradiction of the defendant's answer. Senible; on a motion for an iujuuction, the plaintiff cannot cross- examine a defendant on his answer, unless it is to be used on the defendant's behaU (Wighiman v. Wheelton, 23 Beav. 397). 49. In cases where it shall be necessary for any party to Evidence after go into evidence subsequently to the hearing .or on any in- quiry account or reference before the Judge or Master such evidence shall be taken in such manner as shall be prescribed by any general rule of the Court. See E. 201. 40 EQUITY ACT, 1880. Declaratory Decree. DeciarationBof gQ -^^ ^^j^ ^j^^jj ^^ ^p^^ ^ objection on the ground that a merely declaratory decree is sought thereby and the Court may make binding declarations of right without granting consequential relief. This section is an adoption of the 50th section o{ the 15 & 16 Vict., tt. 86, which effected in this respect an alteration in the law (see Grove v. Bastard, 2 Ph. 622). To save expense, the Court has declared the constrnction of executory marriage articles, instead of directing a settlement to be executed in conformity therewith [Byam v. Bynm, 19 Beav. 58). But, notwithstanding this enactment, the Court will not declare future rights ; but will leave them to be determined when they come into possession. Thus it will not, during the life of a tenant for life, entertain a suit to settle the rights of remaindermen, though of course, a suit to perpetuate testimony will lie (Lady Langdale v. BHggs, 8 Do G. M. & G. 391, 419; Garlick v. Lawson, 10 Ha. App. 14 ; and see Dowling v. Dowling, 1 Ch. 612) ; it has no power to make a declaration in the lifetime of the tenant for life with regard to the interests of parties entitled in reversion, unless it shall be necessary to do so for the administration of an estate, or in order to grant the plaintiff the relief to which he is entitled (Oosling v. Gosling, Johns. 265), So a suit to have a covenant declared void has been treated as premature, and dismissed, when brought before the happening of the event on which the ■ covenant, if good, would come into operation {Fyfe v. Arbuthnot, 1 De G. & J. 406.) On the same principle, the Court has refused to entertain suits by remaindermen or their mortgagees to compel the tenant for life to produce the title deeds, where the plaintiff's title was bond fide disputed {Davis v. Earl of Dysart, 20 Beav. 405, 417,- 420 ; Pennell v. Earl of Dysart, 27 Beav, 542). But in one case, under special circumstances, the Court has declared a future right. Land as to which a dispute as to the amount of the lessee's interest was pending (viz., whether he had a right of renewal from 1885, or whether his interest expired altogether at the end of his existing term, 1890) was taken by a railway company, under an agreement by which it was provided that, if the lessee should substantiate his right of renewal, the company should pay him a further sum (the amount, if in dispute, to be settled by arbitration, pursuant to the Lands' Clauses Act), in addition to the price of the existing term. The com- pany having subsequently bought up the lessor's reversion in fee, the lessee filed a bill against them, praying a declaration of his right to a renewal from 1885, and payment of compensation on that footing, EQUITY ACT, 1880. 41 and it was held, on demurrer, that the Court had jurisdiction to decide the question of future right of renewal, on which the lessee's claim to compensation wholly depended, and for ascertaining which no means were afiforded by the Lands' Clauses Act (Bogg v. Midland Railway Go., i Eq. 310). See Cox v. Barker, cited infra. The Court used to decline to pronounce decrees declaratory of legal rights, especially where infants were concerned ( Webh v. Byng, 8 De G. M. & G. 633 ; Trustees of Birkenhead Docks v. Laird, 4 De G. M. & G. 732 ; compare De Windt v. De Windt, 1 E. & I. App. 87) ; but, having regard to the 4th section of the Act, q.v., these decisions are no longer law. It has been laid down by an eminent Judge that the section now under consideration applies only in cases in which there is some equitable relief which might be granted, if the plaintiff chose to ask for it {Rooke v. Lord Kensington, 2 K. & J. 753 ; Bristow v. Whit- more, 4 K. & J. 743) ; that if was meant only to remove the objection that a plaintiff, who might have consequential relief, prays merely a declaration of his right {Jackson v. Turnley, 1 Dr. 617). And it was held that there is no jurisdiction in the Court under which a plaintifl may institute a suit, alleging that he has a good title to property, of which he is in possession without any inter- ruption of his enjoyment, but that the defendant sets up an equitable claim which ought not to be binding on the plaintiff, and (praying no other relief) obtain in such a suit a declaration that it is not binding on him {Rooke v. Lord Kensington). Again, a lease having been granted to two partners, a bill was filed by the representative of one of the lessees deceased, alleging that the lessor claimed to have a right under the covenants against the plaintiff, if a breach should arise, and praying a declaration that the defendant had no right : a demurrer was allowed {Jackson v. Turnley). But the authority of these-cases, so far as they enunciate the general propositions above referred to — for the decisions themselves seem quite unimpeachable — has been greatly shaken by the remarks of James, L.J,, who has expressed an opinion that in these cases the Court had adopted rather a narrow view, at the same time adding that certainly it would not have done to ask the Court to make a declaration upon mere abstract questions, and that possibly it would not be right to ask a Court of Equity to decide something which would have to be determined in a Court of Law {Cox v. Barker, 3 CD. 370.) By a marriage settlement real estate was limited to such uses as the husband and wife should appoint, and in default of appointment to the use of the trustees during the life of the wife on trust for her for her separate use, with remainder to the husband in fee. The husband entered into a contract to sell the property, the purchaser having notice of the pro- visions of the settlement. The purchase money was paid to the trustees of the settlement, and a draft conveyance was approved in 42 EQUITY ACT, 1880. the form of an appointment by the husband and wife to the parchaser, but before the conveyance had been executed the husband suddenly died, having by a will dated before the contract, devised all his real estate to trustees upon trust for his widow for life, and after her death to sell and divide the proceeds as therein directed. Tbe widow, who was one of the executors, brought an action against the purchaser, the other executors, and the devisees in trust under the husband's will, asking the Court to determine whether she could be compelled to concur in the conveyance to the purchaser, what was the effect of the contract for sale, what would be the devolution of the purchase money if the contract should be completed, and whether, if the contract were completed by the trustees of the settlement aloue, the purchaser would be entitled to compensation out of the purchase money in respect of the plaintiff's life interest. It was held that the statement of claim was not open to demurrer by the pur- chaser on the ground that he was not interested in all the questions raised, or on the ground that only a declaratory decree was asked for {Cox V. Barker, ubi supra). Formal Defects or Irregularities. Formal defectB. 51. No proceeding shall be invalidated by any formal not to invalidttte r o j j proceedings. defect or by any irregularity unless the Court shall be of opinion that substantial injustice has been caused by such defect or irregularity and that such injustice cannot be remedied by any order of the Court. Apart from any enactment, "I have no doubt," said Turner L. J. , "of the power of the Court to dispense with the General Orders when the circumstances and the justice of the case require " {Ferrand V. Mayor, (do., of Bradford, 8 De Or. M. & G. 95, approved by Lord Chelmsford in Betts v. De Vitre, 15 W.K. 701); "I conceive," said Lord Langdale, M.E., " that the Court has sufficient authority when' the occasion requires its exercise, to prevent parties converting its own rules, and the sanctions employed to enforce them, into the means of injustice " {Lord Suffield v. Bond, 10 Beav. 153.) " I quite admit," said Malins, V.C, "that the rules and orders of the Court must be adhered to ; but there is a still higher rule of the Court, which is that persons who are guilty of bad faith cannot avail them- selves of those rules and orders " {Talbot v. Keay, 8 Eq. 612). In a like spirit. Wood, V.C, said, "Whenever the Courtis satisfied that substantial j nstice requires any of its own regulations to be waived or any slip to be remedied, the Court will interfere for the purpose," but added, " I say nothing of any matter depending upon statutory EQUITY ACT, 1880. 43 powers or regulated strictly by Act of Parliament " {Smith v. Baker, 2 H. & M, 499). Here, however, the power of overlooking irregu- larities is itself conferred by statute. Compare 0. LIX., by which it is provided that non-compliance with any of the rules of Court issued under the Judicature Act shall not render the proceedings in any action void, unless the Court or a Judge shall so direct ; but such proceedings may be set aside, either wholly or in part, as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit. "Nothing," said Jessel, M.B., "can be more distinct and valuable than this rule, which enables the Court to do j ustice without regard to technicalities," Cotton, L.J., adding, "lam not inclined to allow a party to take advantage of technical objections, when he has not been deprived of the opportunity of defending himself " {Dawson v. Beeson, 22 CD. 509, 510). Sale of Mortgaged Property. 52. In any suit for the foreclosure of the equity of Court may direct ^ -^ •' a Bale in fore- redemption in any property the Court may upon the request '''°™™ ''"^''^• of the mortgagee or any subsequent incumbrancer or of the mortgagor or any person claiming under them respectively direct a sale of such property instead of a foreclosure on such terms as the Court may think fit and without previously determining the priorities of incumbrances or giving time to redeem provided that if such request be made by any such subsequent incumbrancer or by the mortgagor or any person claiming under them respectively the Court shall not direct any such sale without the consent of the mortgagee or the person claiming under him unless the party making such request shall deposit in Court a reasonable sum to be fixed by the Court for the purpose of securing the performance of such terms as the Court may think fit to impose on him. This section is borrowed from the 15 & 16 Vict., c. 86, s. 48. As to the principles on which the Court acts in dirfiotiug a sale under the section, the statute intended to give the Court » vel-y considerable discretion, in order to avoid the great delay and expense which is occasioned by ioreclosure and redemption in a case whei-e there are a great number of successive mortgages, and the Court will 44 EQUITY ACT, 1880. exercise that power in such a manner as not to operate injuriously or oppressively on any person interested, e.g., so as not to dispossess a family of an old family estate ; the discretion is given with a view to its exercise for the benefit of all parties interested, and so as not to injure any of them; but the discretion of the Court does not interfere with any power of sale which the mortgagor has granted to the mortgagees (per Lord Romilly, Hurst v. Hurst, 16 Beav. 374, 5, 6j. The same learned Judge {Hiorns v, Holtum, 16 Jur. 1077) expressed a reluctance to order a sale under this section, unless by consent, except in cases where there was such a complication that the common decree could not be conveniently worked out. It is within the discretion of the Court whether a, foreclosure or a sale shall be ordered ; but a sale is not to be ordered as of course. There may be cases of complication where a sale is eminently desirable, and there may be cases where, by reason of there being little or no complica- tion, or for other reasons, a sale ought not to be ordered (per Lord Cairns, Heath v. Grealock, 10 Oh. 32). An order for sale will not be made where the Court cannot give possession and insure that the title deeds shall be handed over (S.C.). A mortgagee, it has been said, must make out a special case in order to induce the Court to order a sale, where the mortgagor or subsequent incumbrancers dissent (Boberts v. Price, 1 W.R. 303 ; and see Messer v. Boyle, 21 Beav. 559) ; but this canon seems not to have been rigidly applied, and sales have been ordered on the request of mortgagees, notwithstanding the opposition of mortgagors or puisne incumbrancers {WicJcham v. Nicholson, 19 Beav. 38 ; Newman V. Selfe, 33 Beav. 522.) See further Paine v. Edwards, 10 W.R. 709 ; Foster v. Harvey, 11 W.R. 899, 12 W.R. 92 ; Cator v. Reeves, 9 Ha. App. 53, n. It may here be mentioned that the relief to which an equitable mortgagee by deposit of deeds, not accompanied by a memorandum, is entitled is foreclosure, not sale, unless a sale be consented to (James v. James, 16 Eq. 153 ; Backhouse v. Charlton, 8 CD. 444) ; but, if the deposit be accompanied by a memorandum of agreement to execute a legal mortgage, the depositee is entitled to either foreclosure or sale (York, <&c., Qe. v. Artley, 11 CD. 205). In no case, however, can a pledgee of personal chattels foreclose ; therefore a depositee of railway bonds was held entitled to an order for sale only (Carter v. Wake, 4 CD. 605). Where a second mortgagee obtained an order for sale, the conduct of it was given to the first mortgagee (Hewitt v. Nanson, 7 W.R. 5). As to sale at request of a mortgagor, see Tennant v. Trenchard, 4 Ch. 537;' Cook v. Cholmondeley,- 5 W.E. 835; Whitfield v. Roberts, 7 W.R. 216. In some oases sales have been directed only on terms, time to redeem being given (see Smith' v. Robinson, I Sm. & G. 140; Lloyd v. EQUITY ACT, 1880. 45 Whittey,n Jar. 754; Whitfield v. Roberts, 7 W.R. 216 ; Newman v. Selfe, 33 Beav. 522) : in others immediate sales have been ordered (seq Phillips v. Gutteridge, 4 De G. & J. 531 ; Mears v. Best, 10 Ha. App. 51 ; Arming v. Lavers, 1 W.R. 19 ; Wigham v. Measor, 5 W.K. 394 ; Marriott v. Kirkham, 10 W.R. 340: Foster v. Harvey, 11 W.R. 899). The fact of infants being interested is no obstacle to a sale being ordered {Wigham v. Measor, 5 W.R. 394). Though the section authorises a sale in a " suit for foreclosure," it may be directed in a suit in which foreclosure is not expressly prayed ; nor is it an objection that the mortgagee, who asks for an order for sale, has himself an express power to sell (Huttonv. Sealey, 4 Jur. N.S. 450). Instead of ordering a sale, the Court may decree fore- closure, and give liberty to apply in chambers for a sale {Burmester v. Moxon, 36 Beav. 810). But a sale would not be ordered on interlocu- tory application under the old praetiee (Wayn v. Lewis, I Dr. 487 ; per Jessel, M.R., London, <6c., Go. v. Dover, 11 CD. 204) ; but under the new practice foreclosure may, in proper oases, be ordered on motion (see R. 27), and in such cases, no doubt, a sale may likewise be directed. As a rule, « sale will not be directed after a decree for foreclosure {Girdlestone v. Lavender, 9 Ha. App. 53 j Campbell v. Moxhay, 18 Jur. 641), but it has been done on the application of the mortgagor, where the mortgagee consented, and a sum was paid into Court to indemnify a puisne incumbrancer {Laslett v. Oliffe, 2 Sm. 6 G. 278), and on the application of a puisne mortgagee with the consent of the prior mortgagees, where the bill had been taken pro confesso against the mortgagor (Woodford v. Brooking, 17 Eq. 425). The deposit must be enough " to meet at a rough estimate the possible expenses of an abortive attempt at a sale " (Bellamy v. Cockle, 2 W.R. 326), and is applicable to indemnify the first mortgagee for his costs in such an attempt (Oor^ellis v. Batman, L.R. 4 Eq. 156). Where a mortgagor declined to deposit £100, foreclosure was decreed (Boydell v. Manby, 9 Ha. App. 53). A reserved bidding will be fixed sufficient to cover what is due to the mortgagee ( Whitfield v. Boberts, 7 W.R. 206). A ccount. 53. In all cases of account either party may by consent DUpenBing with or by leave of the Judge file a State of Facts before or at ^S^'nt.°^'°"" the hearing of any cause petition motion or matter verified by affidavit and where the amount is capable of being ascer- tained without difficulty from the pleadings or evidence or by such State of Facts the Court may adjust the same and 46 EQUITY ACT, 1880. decree accordingly without further inquiry or reference and where the account cannot be so adjusted may give such special directions as may seem expedient with respect to the mode in which the account shall be taken or verified which directions may be given either by the decree or order directing such account or by any subsequent order and where it shall think fit so to do the Court may direct that in taking the account the books in which it has been kept or any of them shall be taken as primd facie evidence of the truth of the matters therein contained with liberty to the parties interested to take such objections thereto as they may be advised. It is obvious that, in a ease to which procedure by State of Pacts is applicable, much time and expense would be saved by having the account promptly settled by the Judge, instead of its being referred ; but probably few eases of disputed account will offer themselves in which recourse can be had to such procedure, because it can only be resorted to if (1) both parties consent to the filing of a State of Facts, or, one dissenting, the Court orders it in invitum, and (2) the amount in dispute is capable of being ascertained without difficulty. The second part of the section — relating to special directions and primd facie evidence — is taken, with only verbal alterations, from the 54th section of the 15 & 16 Vict., e. 86. Where vouchers have been lost, or the accounts cannot be taken in the ordinary way, the Court may give special directions, but such directions will not be given unless it appears that the ordinary evi- dence cannot be had, oj merely to save expense (Lodge v. Pritchard, 3 De G. M. & G. 906 ; Ewart v. Williams, 7 De G. M. & G. 68, in which case it was further held that the enactment was retrospective). Again, the enactment cannot be construed as authorising an order varying the account itself (per Knight Bruce, L.J., Nelson v. Booth, 3 De G. & J. 121) ; it applies only to the mode of carrying on an account directed by the decree, and does not extend to enable a sub- stantial variation of the decree (per Turner, L.J., ibid.) A settled account ought to be admitted by the Master without an order (Newen v. Whetten, 31 Beav. 315), but he may not without an order take books as primd facie evidence (Gookes v. Cookes, 11 W.R. 817). Special directions: — Blackford v. Davis, i Ch.304; Wolf v. Van- derzee, 17 W.R. 547 ; Hobson v. Jones, 9 Bq. 456 ; *beane v. Thwaite, 21 Beav, 621, Priind facte evidence : — Sleight v. Lawson, 3 K. & J. EQUITY ACT, 1880. 47 292 ; Stainton v. Garron Co., 24 Beav. 346 ; Ogden v. Battarm, 1 Jur. N.S. 791 ; Morgan v. Higgins, 5 Jar. N.S. 240 ; Banks v. Cartwright, 15 W.B. 417 ; Hardwick v. Wright, ib. 953 ; Coleman v. Mellersh, 2 Mao. & G. 309. Sale of Real Estate. 54. If in any suit instituted in relation to real estate it Sales maj- be di- •^ rectod before shall appear to the Court that it will be expedient that the ''*'"'**• same or any part thereof should be sold for the purposes of such suit the Court may at any time direct the same to be sold and such sale shall be as valid as if directed to be made by a decree or decretal order on the hearing and any party to the suit in possession of such estate or in receipt of the rents and profits thereof shall deliver up such possession or receipt to the purchaser or such other person as the Court shall direct. This section is taken, with merely verbal alterations, from the 55th section of the 15 & 16 Vict., e. 86. The section is intended to apply only to those oases in which, for the protection of the property or other like cause, it is necessary to come to the Court (per Eomilly, M.E., Prince v. Cooper, 16 Beav. 546; per Malins, V.O., Tulloch v. TuUoch, 3 Eq, 574). In those cases the Court has power to order a sale before the hearing (Tulloch V. Tulloch), and, a, fortiori, after the hearing but before the Master's report (as in Bell v. Turner, 2 CD. 409). It is the course of the Court, when it is shown that it will be necessary to resort to real estate, to make an order for the sale of it, without waiting for the hearing or further consideration, the only question always being whether it is just and proper to make that order (per Hall, V.C, S.C). See further Martin u. Hadlow, 1 W.B. 101. The section was intended to apply to administration suits ; it does not apply to ordinary suits for foreclosure (London, (Sbc, Co. v. Dover, U CD. 204, in which Daiiis u. Ashwin, 47 L.J. Ch.70, was questioned). Application under the section may be made on motion (as in Praice V. Cooper and TuUoch v. TuUoch) or petition (as in Bell v. Turner). See R. 26. Application of Iricome. 55. Where any real or personal property is thei subject of ^jJ.°J^g°out g", any proceeding in Equity and the Court is satisfied that the fafn oSs!" °"" 48 EQUITY ACT, 1880. same will be more than sufficient to answer all the claims thereon which ought to be provided for in such proceeding the Court may at any time after the commencement of such proceeding allow to the parties interested therein or any of them the whole or part of the annual income of such real property or a part of such personal property or of the income thereof up to such time as the said Court shall direct and for that purpose may make such orders as may appear expedient. This section is taken, with verbal alterations, from the 57th section of the 15 & 16 Vict., c. 86. It differs, however, from the English enactment in not permitting an allowance of the wliole of the income of personal property. It permits an allowance in proper cases of (1) the whole or part of the income of real property, (2) part of the capital of personal property, {d) part of the income oi personal property. An allowance will only be made under this section where the executors admit assets (Knight v. Knight, 16 Beav. 358), and where the applicants are clearly entitled, and some pressing reason exists for the application (Rowley v. Burgess, 2 W. B. 652 ; Chubb v. Carter, WN. (1867), 179). For a special order, see Stacey v. Southey, 1 Dr. 400. Applications under this section should be made in chambers (Bentley v. Craven, 1 WE. 362 ; and see foot-note to Knight v. Knight, ubi supra). See also s. 61. Injunction. Injunctions to 56. The practice of the Court with respect to injunctions stay proceedings ** '**• for the stay of proceedings at law shall so far as the nature of the case will admit be assimilated to the practice of the Court with respect to special injunctions generally and such injunctions may be granted upon interlocutory appli- cations supported by affidavit in like manner as in the case of other special injunctions. Injunctions and -57. An injunction may be granted or a receiver appointed receivers. e ^ r^ • n by an interlocutory order of the Court m all cases in which it shall appear to the Court to be just or convenient that EQUITY ACT, 1880. 49 such order should be made amd whether there, he a 'prayer for an injunction or receiver or not and any such order may be made either unconditionally or upon such terms and conditions as the Court shall think just and if an injunction is asked either before or at or after the hearing of any cause or matter to prevent any threatened or apprehended waste or trespass such injunction may be granted if the Court shall think fit whether the person against whom such injunction is sought is or is not in possession under any claim of title or otherwise or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title and whether the estates claimed by both or by either of the parties are legal or equitable. This section is, with the exception of the words italicised (which have been added), taken from s. 5, sub.-s. 8, of the Judicature Act, 1873. The first point to be considered is whether it applies to the case of granting an injunction or receiver after the judgment [or hearing] as well as before. No doubt it applies to both. There is a larger discretion given to the Judges as to when they shall grant an application than they had before. Of course, like every new power, it must be exercised for judicial reasons ; but the existence of such power gets rid of any decisions, if decisions there be, limiting the exercise of the discretion as regards the exercising it on an inter- locutory application as distinguished from a trial (per Jessel, MB., Anglo-Italian Bank v. Davies, 9 CD. 286, 287). But the power given to-grant an injunction in all cases in which it shall appear to the Court to be " just or convenient " to do so does not in the least alter the principles on which the Court should act (per James, L.J., Day V. Brownrigg, 10 CD. 307 ; per Thesiger, L.J., Gaskin v. Balls, 13 - CD. 329) ; e.g., the Court will not grant a mandatory injunction where it would not have granted one under the old practice [Gaskin V. Balls). In ascertaining what is "just," said Jessel, ME., you must have regard to what is " convenient " ; what is right or just must be decided, not by the caprice of the judge, but according to sufficientlegal reasons or on settled legal principles {Beddow v. Beddow, 9 CD. 93). In the words of the same learned Judge, the grant- ing of an injunction must be "just " as well as " convenient " {Day V. Brownrigg, ubi supra) ; the words "just or convenient" do not mean that the Court is to grant an injunction simply because the I! 50 EQUITY ACT, 1880. Court thinks; it convenient : it means that the Court should grant an injiinotion for the protection of rights or for the. prevention of injury according to legal principles {Aslatt v. Corporation, of Southampton, IB CD. 148). " But the moment you find there is a legal principle (tlje M.R, went, on to say), that a man is about to suffer a serious injuiy, and that there is no pretence for inflicting that injury on him, it appears to me that the Court ought to interfere. Now, it has been said — and I think truly said — that, as a general rule, the Court only interferes where there is some question as to property. I do not think that the interference of the Court is absolutely confined to that now ; there may be cases in which the Court would interfere even when personal status is the only thing in question ; but it is not necessary for me to decide that question at the present moment." His Lordship then proceeded to grant an injunction restraining a corporation from avoiding the office of alderman held by the plaintiff, an injunction never heard of formerly (S.C.) There seems to be here a distinct decision that the Court may grant injunctions under the section where formerly it could not, or would not, do so. Again, under the pro- visions of this section, injunctions have been granted restraining, even on interlocutory application, the publication of a trade libel {Thorley's, (tc, Co. v. Massam, 14 CD. 76,3; Thomas v. Williams, ibid. 864; Quartz, <6c., Co. v. Beall, 20 CD. 507; compare Saxby V. Easterbrook, 3 C.P. D. 339), the exercise by u landlord of the legal right of distress (Shaw v. Earl of Jersey, 4 CP.D. 359.) By this section a larger jurisdiction to grant iuj unctions than existed before is given in every case ; so says Jessel, M.B. {Quartz, (&c.. Go. V. Beall, 20 CD. 507) ; and Fry, J , has referred to the evident intention of the legislature, as indicated by the section, to enlarge rather than diminish the power of the Court in respect of injunctions (Thomas v. Williams, 14 CD. 873). There are indeed cases which claim for the English Courts, as at present constituted, an almost unlimited power of granting injunc- tions, but which can only be cautiously cited as precedents applicable in the colony, because they proceed upon sections in the Judicature Act or Orders thereunder not yet adopted here, conferring upon the Chancery Division the large powers contained in the Common Law Procedure Act (Beddow v. Beddow, 9 CD. 89 ; compare Quartz, d-c. Co. V. Beall, ubi supra), a power to grant prohibition (Hedley v. Bates, 13 CD. 498), and a power to make any order for the preservation of any property the subject of the suit (Strelley v. Pearson, 15 CD, 113). Under this section the Court may and does grant receivers when it never could have done so before. Thus, for instance, it has power to grant a receiver under the section where a plaintiff has himself the power of obtaining possession at law (per Cotton, L.J., Anglo-Italian Bk. V. Davi'es, 9 CD. 293, and see per Jessel, M.B., S.C„ cited ante, EQUITY ACT, 1880. 51 p. 49). On this principle receiver-s have been appointed at the instance of legal mortgagBes {Pease v. Fletcher, 1 CD. 273 ; Truman and Co. v. Redgrave, 18 CD. 547). Again, in a suit for partition, where one of the co-owners is in oconpation, though not in exclusive occupation, of the property, the Court now has jurisdiction to appoint a receiver [Porter v. Lopes, 7 CD. 358). In an action for the specific perfor- mance of an agreement to accept a lease of a farm, in which judgment • had been given for the defendant, the plaintiff having appealed, the Court of Appeal (no previous application having been made to the Divisional Court or a Judge) appointed the plaintiff receiver and manager of the farm without security, on his undertaking to abide by any order which the Court might make in the matter (Hyde v. Warden, 1 Ex. D. 309.) Where the circumstances of the case are urgent, a receiver may be appointed ex parte before the defendant has appeared {Taylor v. Eckersley, 2 CD. 302), and even before he has been served with the statement of claim {H. v. H., 1 CD. 276). The italicised words in the above section are an innovation upon the English practice, according to which injunctions cannot be \ granted [Colebournev. Colebourne, 1 CD. (390), nor receivers appointed {Pare v. Clegg, 7 Jur. N.S. 1136; but see Malcolm v. Montgomery, 2 Moll. 500) before the hearing, unless specially claimed by the plain- tiff's pleading. 58. No writ of iniunction shall hereafter be issued or any *io writ to be •* •' issued. docquet be signed or filed as at present but service upon any person of the decree or order directing such injunction or notice thereof shall have the same effect as the issuing of a writ of injunction and signing and filing of a docquet and service of the writ upon such person and thereupon the plaintiff shall be entitled to all such remedies as he is entitled to under the present practice. As to giving notice of an injunction by telegram, see re Bishop, 13 CD. 110. Abatement of Suit 59. Upon any suit becoming abated by death marriage or Simplifying pro- otherwise or defective by reason of some change or trans- viving a suit, mission of interest or liability it shall not be necessary to file any new or supplemental statement of claim in order to obtain the usual order to revive such suit or the usual 52 EQUITY ACT, 1880, decree or order to carry on the proceedings but an order to the effect of the usual order to revive or of the usual supplemental decree may be obtained as of course upon an allegation of the abatement of such suit or of the same having become defective and of the change or ti-ansmission of interest or liability and an order so obtained v^^hen served upon the party or parties who according to the present practice would be defendant or defendants to a bill of revivor or supplemental bill shall from the time of service be binding on such party or parties in the same manner as if such order had been regularly obtained according to the existing practice and such party or parties shall thenceforth become a party or parties to the suit and be bound to enter an appearance thereto as if he or they had been duly served with process to appear to such a bill duly filed against him Provided that the party or parties so served may within such time after service as shall be prescribed by any general rule in that behalf apply to the Court 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 trans- missions of interest or liability and praying the usual relief . consequent thereon Provided also that if aiiy party so served is under disability other than coverture such order shall be of no effect as against such party until a guardian ad litem shall have been appomted for such party and such time shall have elapsed thereafter as shall be prescribed by any general rule. This section corresponds with the 52nd sec. of 15 & 16 Viot., c. 86. Where a person named as defendant dies before appearance, an original statement of claim must be filed against hie representative ; it is not a case for revivor [Crowfoot v. Mander, 9 Sim. 396 ; Bland V. Davison, 21 Beav. 312 ; Williams v. Jackson, 7 W.B. 104). The Court has a discretion, and has refused orders of revivor on the ground of negligence, laches, and delay (see Alsop v. Bell, 24 iieav. EQUITY ACT, 1880. 53 451 ; Higyins v. SMw, 2 Dr. & W. 356 ; Bland v. Davison, 21 Beav. 312 ; Dunne v. Doyle, 10 Ir. Exoh. E. 502 : no objection on this score appears to have been taken in Deeks v. Stanhope, 1 Jur. 413). The decisions upon this section have been by no means uniform, and, in cases where, under the old practice, an original bill in the nature of a supplemental biH would have been necessary, it has been held that the order to revive or carry on the proceedings could not be obtained, e.g., where, in consequence of the death of » plaintiff or defendant, or determination of au interest, a fresh and distinct interest arises in another person who is not a party to the original suit (see Hills v. Springett, 5 Eq. 123, and cases there cited; Auster V. Haines, 4 Ch. 445 ; Beardmore v. Gregory, 2 H. & M. 491, 496 ; Watts V. Watts, Johns. 631 ; Seton, 1531). The section applies to special cases {Wilson v. Whateley, 1 J. & H. ^ 331), and petitions {Robinson v. Hewetson, 1 W.B. 100 ; re Youl, 16 Eq. 107). On the death of a defendant who has delivered a counter-claim, it is necessary that his representatives, if they wish to prosecute the counter-claim against the plaintiff in the original suit, should obtain an order of revivor against him. An order of revivor of the original suit obtained by the plaintiff against them does not authorise them to prosecute the counter-claim against him [Andrew v. Aitken, 21 CD. 175). The section makes an order of revivor binding from the date of service, except in the case of parties under disability other than coverture, in whose case it does not bind until after the lapse of the prescribed time after the appointment for them of a guardian ad litem. See EE. 151—154. The present practice in England under the Judicature Act in respect of change of parties, &c., varies from the above, and is regulated by 0. L., r. 1 of which provides that an action shall not become abated by reason of the marriage, death, or bankruptcy, of any of the parties, if the cause of action survive or continue, and shall not become defective by the assignment, creation, or devolution of any estate or title pendente lite. Supplemental Statements. 60. It shall not be necessary to file any supplemental Fact newly aiis- ■^ ./ X X ing— liow intro- statement of claim for the purpose only of stating facts '''"=^''- which have occurred after the institution of the suit but such facts may be introduced by way of amendment into the original statement of claim if the cause is otherwise in 54 feQCiTT ACT, 1880 a state to allow of an amendment in the statement of claim and if not the plaintiff may state such facts on the record in such manner and subject to such rules with respect to the proof thereof and affording the defendant an opportunity of answering the same as shall be prescribed by any general rule in that behalf. See B. 152. Judge Sitting in Clumibers. General power to 61. After the commencement of this Act the Judge shall sit in Chambers. sit in Chambers for the despatch of such business in Equity as in his opinion may advantageously and with propriety be heard in Chambers and such Judge shall fix the times for so sitting and when so sitting shall have the same powers and jurisdiction as in open Court. nes's't^bJSd ^2- '^^ business to be disposed of by the Judge in "*' Chambers shall consist of such of the following as he shall think would be more conveniently so disposed of namely — Applications for time for leave to amend for production of documents for determining the mode of trial and settling the questions to be tried applications relating to the conduct of any_^uit or matter the guardianship or maintenance of infants matters connected with the management of property and such other matters as the Judge may from time to time see fit so to dispose of. These two sections contain the substance of sections 11, 13, and 26 of the Act 15 & 16 Vict., c. 80, and give the Judge an extremely wide discretion as to what business shall, and what shall not, be taken in chambers. The appointment of a receiver has been considered a " matter con- nected with the management of property" within the meaning of the 62nd section (Booth v. Coulton, 16 W.E. 683). EQUITY ACT, 1880. 65 63. The Judge while sitting in open Court may adjourn ^^J^^p"™™* for hearing in Chambers or while sitting in Chambers may Chambers, adjourn for hearing in open Court any case before him- which he may think would better be heard in Chambers or in open Court as the case may be. This section follows, with verbal alterations, section 27 of 15 & 16 Viet., c. 80. When a cause or matter is adjourned from Court to chambers {Wallis V. Bastard, 2 W.E. 47), or from chambers into Court (Dicken v. Hamer, 2 L.T. N. S. 276), it is unnecessary expressly to reserve the costs, for such a reservation is implied. The hearing in Court of a matter adjourned from chambers is only a continuation of the hearing in chambers (Leeds v. Lewis, 3 Jur. N. S. 1290) ; and vice versd. However, where there is an adjournment to chambers for the purpose of making an inquiry as to a matter on which no evi- dence has been oSered in Court, it would seem that an order should be drawn up directing an inquiry (Kelson v. Kelson, 9 Ha. App. 86). This section is of little importance in this colony, where the differ- ence between hearing in chambers and in Court is so slight. 64. The course of proceeding in Chambers shall be by Procedure in r o J Chambers. summons and as nearly as may be according to the forms observed 'by Judges of the Supreme Court sitting in Chambers in proceedings at law. Decrees of Judge. 65. The decrees and orders of the Judge whether sitting Mode of Bettling ^ ^ decrees. in open Court or in Chambers may be settled by the Judge or he may direct any such decree or order to be settled by the Master in Equity and the Judge shall in every case certify his approval thereof under his hand And no war" rant shall be taken out to consider any decree or order but the Judge or Master shall at the time of settling the decree or order direct what proceedings shall be taken thereunder and the Judge shall direct what inquiries and proceedings shall be taken before himself under the decree or order and what before the Master. SeeRB. 191, 192. 56 EQUITY ACT, 1880. Proceedi/ricfS before the Master. iiiquiraiSilbetore ^^- ^^^^ Judge or the full Court in cases under Appeal shall have the sole power to order what matters shall be in- vestigated before the Master in Equity with or without special direction and what matters shall be heard and in- vestigated by themselves respectively and in every case unless the Judge or such Court shall otherwise direct the Master shall tax costs and make such inquiries as have usually been prosecuted before the Master And the Judge shall give such aid and directions in any such inquiry as he may think fit subject to the right of appeal and to the right of every suitor to bring any particular point before the Judge himself. As to this right of a suitor, see s. 69. moTwitnesses, ^^- ^^^^ Master in Equity shall for the purpose of any &c. proceeding before him have full power to issue advertise- ments to summon parties and witnesses to administer oaths to take aifidavits and also acknowledgments except those of married women and when directed by the Judge or full Court to examine parties or witnesses orally or upon inter- rogatories And every party and witness summoned by the Master shall be bound to attend such summons and shall for disobedience thereof be liable to process of contempt in like manner as for disobedience to or for default of attendance in pursuance of any order of the Supreme Court or on any writ of subpoena and all persons knowingly swearing or afiirming falsely before the Master shall incur all the penalties of perjury. This section provides that the Master oau only examine parties or witnesses, when directed by the Judge or full Court ; but section 47 enacts that any party may subpoena a witness before the Master for examination. EQUITY ACT, 1880. 67 Much of the section is taken from 15 & 16 Viet., c. 80, s. 30, for the practice under which see Walker & Elgood's Administration Actions, p. 91. 68. Directions by the Judge concerBing any proceedings ^OTmofMaatei't before the Master shall not require any particular form and the result thereof shall not be embodied in a formal report- but shall be stated in a short certificate to the Judge unless he shall otherwise -direct And the approval of the Judge of any such certificate or report shall be signified under his hand. , This section ie equivalent, mutatis mutandis, to the 32ud sec. of 15 & 16 Vict., u. 80. It has heen held that the certificate should state not facts merely, but conclusions drawn from the facts (Lee v. Willock, 6 Ves. 605 ; Dixonv. Dixon, 3 Bro. C.C. 509), though it would be sufficient if it stated a fact involving, according to the practice of the Court, a particular consequence {Bick v. Motley, 2 M. A K. 312). At the present time, however, it is considered that, if the circumstances warrant it, a certificate may state facts, and reserve for the considera- tion of the Court the legal questions arising out of them {Stott v. Meanock, 10 W.B. 605). See EE. 219—223. 69. No exception shall lie to any certificate or report of ^^^^^^^Jj^™ j^ the Master after it has been adopted and signed by the Judge but any party may during the proceeding before- the - Master or within such time after its conclusion as shall be fixed by any general rule in that behalf take the opinion of the Judge on any particular point or matter arising in the course of the proceeding or upon the result of the whole when brought to a conclusion When so adopted and signed every such certificate and report shall be filed and shall thenceforth be binding on all parties unless discharged or varied by the Court upon application within such time as may be fixed by any general rule Provided that nothing 58 EQUITY ACT, 1880. herein shall prejudice the power of the full Court sitting in Equity on Appeal to open any such certificate or report as any report of the Master absolutely confirmed may now be opened. This section is the shortened equivalent of sees. 33 and 34 oJ 15 & 16 Vict,, 0. 80. In proceedings in chambers every party has the unqualified right to have his case, or the minutest point arising in chambers, heard personally (in the first instance, and not by way of appeal) by the Judge, though there be no controversy between the parties, and the Master cannot refuse an application to have it so heard {re M gricul- turist, C0C., Co., 3 De G. P. & J. 194; per Kindersley V.C., Wadham V. Rigg, 2 Dr. & Sm. 80 ; re London and County Assurance Co., 5 W.E. 794; re Home Counties, &c., Go., 10 W.E. 457 ;yer Wood.V.C, DawJcins i>. Morton, ib. 339 ; Hayward o. Hayward, Kay, App. 31). It is the right of the suitor to have the matter at once adjourned before the Judge, without taking out auy summons. Of course, if a solicitor took au adjournment before the Judge of every item in an account, no business could be transacted. In theory there is a right to do this, but in practice it is found impossible that it should be done. The practice is to wait until the taking of the account is com- pleted, and then to take an adjourniueut once for all to the Judge. When, however, a question of principle is involved in an item which decides the mode in which the account is to be taken, it is, of course, impossible to wait until the account is completed, and then it is quite right to adjourn the item at once before the Judge. If a solicitor were so unreasonable as to iusist on the adjournment of every item in an account to which he might object, that would be au abuse of the process of the Court, and I have no "doubt the Judge would have jurisdiction to punish the solicitor by making him pay the costs personally (per Jessel, M.E., Upton v. Brovm, 20 CD. 732). See further s. 66. The above note relates to the adjoarument to the Judge of particular items or matters, for which, as it has been seen, no summons is necessary : for the procedure, where the opinion of the judge is to be taken upon the result of a finished proceeding, see BE. 224, 225. As to approving and filing a certificate, see E. 226 ; as to discharging or varying the same, E. 227. As to whether a party, dissatisfied with a decision of a Judge in chambers, should proceed at once to the full Court, or first procure the matter to be re-heard by the Judge in Court, see the contra- dictory cases of Yorlc, pposite party. Abatement and Compromise. 14. — Where any suit becomes abated, or is compromised after the same is set down to be heard, the solicitor for either party shall certify the fact to the Master, and there- upon an entry thereof shall be made in the Suit Book opposite to the title of such suit. 15. — Where any suit shall have been standing for one year in the Suit Book marked as "abated," or "compromised," or shall have been standing over generally, such suit shall at the expiration of the year be struck out of the Suit Book. Affidavits. 16. — Any solicitor or person filing an aflBdavit not in accordance with the form prescribed in the General Rules' of the Supreme Court applicable to affida\its, shall not be allowed the costs of preparing or filing such affidavit in any taxation of costs. 17.— All affidavits, whether to be used at the hearing of a suit or on any other proceeding, shall state distinctly what facts or circumstances deposed to are within the deponent's own knowledge ; and, where any fact or circumstance is stated upon information derived from other sources than his own knowledge, he shall distinctly state what such sources are. 18,-^The costs of affidavits not in conformity with the preceding Rules shall be disallowed on taxation, unless the Ooui-t shall otherwise direct. 80 RULES OP OOUET. 19.— Before any affidavit is used in Court or before the Master, such affidavit shall be first filed in the Equity Office ; and no order grounded upon an affidavit shall be drawn up unless such affidavit be first so filed : Provided that no copy need hereafter be served for the purpose of any motion or petition, or of any proceeding in the Equity Office, and that every affidavit so filed may be read without any office copy having been taken. Attachment. 20. — The Sheriff shall bring to the bar of the Court every person arrested upon any writ of attachment on the first day iu which the Court shall sit in Equity next after such arrest, or as soon afterwards as practicable : Provided that the Sheriff may take bail for the appearance of the person arrested. As to obtaining a writ of attachment, seo R. 176. 21. — If the person arrested be not so brought before the Court, or if, being so brought, no motion be made for his committal, he shall be discharged out of custody by the Sheriff, without payment by him of the costs of his con- tempt, which in such case shall be paid by the party obtaining the attachment. But, in case of continued dis- obedience of the rule, decree, or order of the Court for a period of eight days after such discharge, the Court may order a fresh attachment to issue. 22. — Where a party is in prison under an attachment, or being already in prison is detained under an attachment, and is not brought to the bar of the Court within thirty days from the time of his being actually in custody or detained under such attachment, he shall be discharged in respect of such attachment by the Sheriff, or keeper of EULES OP COUET. 81 the gaol in whose custody he is, without payment of the costs of his contempt, which in such case shall be paid by the party obtaining the attachment. But, in case of con. tinned disobedience of the rule, decree, or order of the Court for a period of eight days after such discharge, the Court may order a fresh attachment to issue. Chief Clerk. 23. — The Chief Clerk may sign for the Master any process issuing out of this Court which now requires the signature of the Master. 24. — The Chief Clerk, when directed by the Court or ■Master, may discharge the Court duties of Registrar and , the duties of Taxing Officer, and he may take accounts, and ' prosecute inquiries, as directed by the Court or Master. '< Election of Jurisdiction. 25. — In all cases in which it is alleged that the plaintiff is prosecuting the defendant in this Court and also at Law for the same matter, the defendant may at any time after appearance, or in case the plaintiff shall have filed inter- rogatories seven days after filing a sufficient answer thereto, apply to the Court as of course in chambers, for an order that the plaintiff make his election in which Court he will proceed, with the usual directions in that behalf The order for election is to be applied for ex parte : the plaintiff may then, if so advised, move to discharge such order. By Cons. Ord. XLII., 1.8, the plaintiff may so move, on the merits confessed in the answer, or, if necessary, appearing by affidavit. The intimation that the Defendant may obtain the order "as of course in chambers " is not easily reconcilable with so much of the next E., as provides that " all applications for orders of course shall be by motion,'' which can only be made in Court. G 82 RULES OP COURT. Interlocutory Applications. 26. — Interlocuto: y applications in motion or petition, md supported by that all applications for orders of cou and that a petition according to the j resent practice o ' this Court, save only suit may be made by affidavit or otherwise. se shall be by motion. ihall be used in applications for special Parliament, or where, or the position of the order applied for, the orders where so pi jvided by Act of from the circumsts aces of the case, ( parties sought to b i affected by the notice of motion wo aid not sufficient y convey information of the facts and cirq imstances upon w|hich the application is based. This R. must be read subject to section 62 of the Act. 27. — Any party (to a suit may at amy stage thereof apply by motion, on nomce to the Court tor such order as he may, upon any admission of fact in me pleading, or other- wise, be entitled toJ without waiting 'or the determination of any other question between the pa rties ; and the Court may on such application give such : elief, subject to .such terms, if any, as the Court may think fit. With the exception of the words italicised in the text (which have been added), this B. Is taken from 0. XL., r. 11, which of all the Rales issued In England under the Judicature Act is probably the one most largely resorted to. Under this R. plaintiffs have been enabled to obtain at an early stage of the suit an order for payment of trust funds into Court, and a decree for administration [Ramsay v. Reade, 1 CD. 643 ; Bennett v. Moore, 1 CD. 692 ; Hetherington v. Longrigg, 10 CD, 162) ; an order directing the usual inquiries in a partition suit [Gilbert v. ^mith, 2 CD. 686 ; Panona v. Harris, 6 CD. 694) ; an order in a like sui^ for a sale and payment of the proceeds iuto Court, and for an account of rents and piofits received by a party in possession [Burnell v. Burnell, II CD. 213) ; the usual partnership accounts {Turquand v. Wilson, 1 CD. 85) ; specific performance (nrown V. Pearson, 21 CD. 716) ; &a , &o. EULES OF COURT. 83 In Gilbert v. Smith {ubi supra), James, L.J., Said the plaintiffs were entitled to the order moved for ex debito justitice. The admission must, however, be such as would show that the plaintiff is clearly entitled to the order asked for ; the E. was not meant to apply when there is any serious question of law to be argued {per Mellish, L.J., Chilton v Corporation of London, 7 CD. 735) ; in such a case a judge would have a discretion as to whether or not he would make an order on motion, and with the exercise of that discretion the Court of Appeal ought not to interfere (Mellor V. Sidebothum, 5 CD. 342). The words of this beneficial E. are, it will be noticed, permissive only, not imperative ; never- theless, the English judges have shown a marked disposition to avail themselves largely of the power it gives them of granting speedy relief, and of accelerating the proceedings in the suit. The plaintiff may move under the E. at any stage, and notwith- standing that he has joined issue, and given notice of trial (Brown v. Pearson, 21 CD. 716). Under the old practice, a plaintiff could not after decree obtain an order for payment into Court of trust moneys in a defendant's hands on admissions in the answer, but must have proceeded on the examination or report (Wright v. Lukes, 13 Beav, 107) ; but this canon cannot be applied to the modern statement of defence, for by the R. under consideration motions founded on admissions in the pleadings may be made at any stage of the suit. Irrelevancy and Scandal. 28. — The Court may at any stage of the ] roceedings order to be struck out a:iy matter in a pleading w lich is irrelevant or scandalous, and I may make such order thereon as to costs, as may seem just. I See sees. 6, 20 of the Act and E. 59, and compare 0. XXVII. , r. 1, which provides that the Court or a Judge may at any stage of the proceedings order to be struck out or amended any matter in a statement of claim or defence which may be scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action ; and see E. VI. Scandalous matter was, of course, constantly struck out under the old system ; and charges and statements which would not have been improper under that system may nevertheless be struck out under the present system Watson 0. Rodwell, 3 CD. 380). Improper pleadings ought to be struck out, and not left to be dealt with as a question of costs (S'.C.) In an action for the recovery of land, of which the plaintiff has never been in possession, a general allegation in the statement of G2 84 RULES OP OOUET. claim that by assurances, wills, documents, and Grown grants in tlie possession of the defendant — without stating their nature or further describing them — the plaintiff is entitled to the land (PhiUpps a. Philipps, i Q.B.D. 127) ; a statement of claim, parts of which are unintelligible, other parts irrelevant, while other parts contain offensive charges {Gashin v. Gradock, 3 CD. 376) ; a statement of claim stating immaterial facts, and setting out at great length docu- ments which could not be material except as evidence by way of admission {Davy v. Gdrrett, 7 CD. 473) ; a claim in which the vendor of goods and the indorsees of a bill given by the purchaser to the vendor for the price jointly sue the purchaser to recover the price and also upon the dishonoured bill {Smith v. Richardson, i CP.D. 112); statements in pleading which are not demurrers, but allege only matters of law that might be raised by demurrer {Stokes v. Grant, 4 CP.D. 25) ; a reply which refers to an independent document, such as plaintiff's answer to interrogatories, as containing facts on which the pleading relies, without setting out such document itself as part of the reply— or which sets up new claims — or which pleads mere evidence or argument, or states conclusions of law to be drawn or inferred from the facts pleaded {Williamson v. L. & N.W.R. Co., 12 CD. 787) ; the omission, in a suit to restrain the obstruction of an aljeged private right of way, to show on the statement of claim whether the plaintiff claims the right by prescription or grant, and to allege with reasonable certainty the termini of the way and its course {Harris v. Jenkins, 22 CD. 481) : all these have been held embar- rassing, and liable to be struck out or oompulsorily amended. Com- pare Berdan v. Greenwood, 3 Ex. D. 251 ; Heap v. Harris, 2 Q.B.D. 630 ; Thorp v. Holdsworth, 3 CD. 637 ; Haiokesley v. Bradshaw, 5 Q.B.D. 22, 302. The striking out of pleadings as embarrassing was at first said to be so much a matter in the discretion of the judge that, where he had exercised his discretion, the Court of Appeal would not, as a general rule, interfere, unless he had acted on a wrong principle {Golding v. Wharton Saltworks Go., 1 Q.B.D. 374; Watson v Rodwell, 3 CD. 380) ; but the weight of these cases has been shaken by the decision that it is the duty of the Appeal'Court to exercise its own discretion as to whether a pleading is so framed as to embarrass the opposite party, and that Court has struck out a pleading, though a motion for that purpose had been dismissed with costs by the Court below, and no question of wrong principle was involved, James, L.J., saying a defendant may claim ex dehito justitice to have the plaintiff's ease presented in an intelligible form, so that he may not be embarrassed in meeting it, so that the Court ought to be strict even to severity in taking care to prevent pleadings from degenerating into the old oppressive pleadings of the Court of Chancery {Davy v. Garrett, 7 CD. 473). BULES OF COUET. 85 Motions and Petitions. 29. — Every notice ,of motion shall express the day on ■which it is intended to be made. 30. — All petitions shall be addressed to the Primary Judge in Equity; and the Master or Chief Clerk shall endorse thereon the usual directions. 31. — At the foot of every petition preferred to the Court, and of every copy thereof, a statement shall be made of the persons (if any) intended, to be served therewith ; and, if no person is intended to be served with such petition, a state- ment to that effect shall be made at the foot of the petition, and of every copy thereof. This has long been the English practice. A petition which wants the proper foot-note ought not to be received into the office for filing. 32. — Unless the Court gives special leave to the contrary, there must be at least two clear days between the service of a notice of motion or petition and the day appointed for hearing the notice of motion or petition ; and in the computation of such two clear days Sundays and Holidays shall not be reckoned. Where a party applies for special leave to serve short notice of motion, he must distinctly state to the Court that the notice applied for is short ; and the same fact must distinctly appear on the face of the notice served on the other party {Dawson v. Beeson, 22 O.D. 504). Ne Exeat. 33. — In all cases where the High Court of Justice in England would grant or direct a writ -of Ne exeat Regno to issue, a writ of Ne exeat Golonid may be directed to issue, under the seat of this Court, and tested in the name of the Primary Judge in Equity, and signed by the Master or Chief Clerk ; and such writ shall have the same effect in this 86 EULES OP COURT. Colony, and shall be applied for and served in the like manner, and under the same circumstances, and subject to the same rules of practice, as the writ of Ne exeat Regno in England. This E, introdnees some perplexity. In the first place the colonial practice as to these writs is to follow the practice of " The High Court of Justice in England," i.e., the Court established by, and administering justice according to the practice under, the Judicature Acts (see, further, notes to E. VI. ), notwithstanding that the practice of that Court may depend on provisions in those Acts (e.g., as to the fusion of jurisdictions) which have not been adopted here. The second difficulty (which, in fact, arises out of the first) is that, according to the practice in England under the Judicature Acts (and, in the view of Jesse], M.E., — as to which, however, the Court of Appeal gave no opinion— the practice bf the Court of Chancery before those Acts), the writ is not to be issued except in cases which come within the provisions of the 6th Section of the Act 32 and 33 Vic, 0. 62 (Drover v. Beyer, L.E. 13 CD. ^242.) This section, however, differs in some respects from the corresponding provision of the Colonial Act, 37 Vic, No. 11. The result, therefore, would seem to be that the E. now under consideration requires the Equity Court of this Colony, in issuing writs of ne exeat, to disregard the colonial enactment relative thereto, and to have regard to the provisions of an English Act, which, of course, do not of themselves operate here, and which the Colonial Legislature has not adopted. Notice to Admit. 34. — Notice to admit documents under section 43 of the "Equity Act of 1880" may be in the form set forth in Schedule C to these Rules. Payment Out of Court. 35. — Where the party, to whom money exceeding £10 is ordered to be paid out of Court, does not attend the Equity Office in person, the power of attorney to receive the same must be in accordance with the provisions of the Act 17 Vic, No. 22 : Provided that a common power of attorney, without any declaration, shall suifice where the money is paid on the day of the execution of such common power of attorney. EULES OF COUET. 87 Sheriff. 36, — All duties formerly discharged in the High Court of Chancery in England in respect of process issued out of that Court or otherwise by a Sergeant-at-Arms shall be discharged in respect of proqess issued out of this Court by the Sheriff; and all such process shall be directed to the Sheriff. Service. 37. — In every case where a party shall institute or defend any suit or proceeding, or appear in any matter, by a solicitor, service by or upon such solicitor shall (except for the purpose of bringing the party into contempt) be equivalent to service by or upon the party himself, 38. — Where aliy party shall proceecl or appear in person,, he shall, excepti in the case of stalements of claim and appearance thereto, hereinafter proviced for, leave a memo- randum in writii ig in the Equity Off oe at the time of his taking the first step in the matter, setting forth his full name and addres 3 ; and service at sue] i address shall be good service on him. ' Solicitor. 39. — A solicitor shall not (except by leave of the Court) act in any suit or matter for more than one party, unless the parties represented by him are in the same interest; and all the members of a firm may, for the purposes of this rule, be deemed one person. See E. 209. 40.— Where upon the hearing of any suit or matter it appears that the same cannot conveniently proceed by reason of the solicitor for any party having neglected to attend personally or by some proper person on his behalf, or having 88 EULES OP OOUElr. omitted to procure the production of or to deliver any- necessary document or paper which ought to have been produced or delivered, such solicitor shall personally pay to all or any of the parties such costs (if any) as the Court shall think fit to award. This rule is taken, with immaterial variations, from Cons. Ord. XXI., r. 12. SUBPCENAS. 41. — Where it is intended to sue out a subpcena, a prcecipe for that purpose in the usual form, and containing the name or firm and the place of business or residence of the solicitor ■ intending to sue out the same, and, where such solicitor is an agent only, then also the name or firm and place of business or residence of the principal, shall in all cases be filed in the Equity Office. 42. — Writs of subpcena shall be in the forms used at Common Law, with such alterations and variations as cir- cumstances may require. 43. — No more than four persons shall be included in one suhpoBna : Provided that the party suing out the same shall be at liberty to sue out a subpoena for each person, if it shall be requisite. 44. — In the interval between suing out and service of any subpoena, the party suing out the same may correct any error in the names of parties or witnesses, and may have the writ resealed upon leaving a corrected prcecipe of such subpoena marked with the words " altered and re-sealed," and signed with the name and address of the solicitor suing out the same. 45. — The service of subpainas shall be efiected by deliver- ing a copy of the writ, and at the same time producing the original writ. RULES OP COURT. 89 46. — Affidavits filed for the purpose of proving the service of a subpcena must state where, when, and how such sub- poena was served, and by whom such service- was effected. 47. — The service of any subpoena shall be of no validity if not made within twelve weeks after the teste of the writ. PARTIES. I. — Generally. II. — Persons under Disability. III. — Paupers. I.— GENERALLY. 48. — The present law -and practice of this Court in its Equity Jurisdiction with regard to parties to a suit shall continue unaltered, save so far as they may be affected by these Rules. II— PERSONS UNDER DISABILITY. 49. — Married women and infants may respectively sue as plaintiffs by their next fi'iends, according to the present practice of this Court, and infants may, in like manner, defend any suit by their guardians appointed for that purpose. Married women may also, by the leave of the Court, sue or defend without their husbands and without a next friend, on giving such security (if any) for costs as the Court may require. This corresponds with 0. XVI., r. 8. Under this R. the name of a defendant, who was also the next friend of the plaintiffs, and whose wife was a defendant, was struck out, and liberty was given to the wife to defend separately {Lewis v. Nobhs, 8 CD. 591). The R. gives the Court u, complete judicial discretion to allow a married woman to sue alone or by a next friend, and either with or without giving security for costs. The old rule that an application that a next friend should give security for costs must be made before the next material step in the cause is taken is abrogated, and the Court has a judicial discretion to direct such security to be given at any time {Mariano v. Mann, 14 CD. 419.) See further R. 81. 90 RULES OF COUET. A perpon cannot, pending his ineolvenoy, act as the next friend of a married woman without giving security for costs ; otherwise, after certificate granted {Mason v. Kearney, 11 S.C.E. Eq 35. 50. — Any person who shall for the time being be of nnsound mind, and whether or not so found by inquisition or declared under the Lunacy Act of 1878, may sue as plaintiff in any suit by his committee or guardian, if any such shall have been appointed, or, if not, by his next friend ; and may, in like manner, defend any suit by his committee or guardian appointed under the said Act, or by his guardian ad litem. This corresponds with the English practice. 51. — Where any person I'equired to bo served with notice of a decree or order pursuant to the 6th Rule of sec. 7 of the Equity Act of 1880 is an infant or a person of unsound mind not so found by inquisition or declared under the Lunacy Act of 1878, the notice shall be served upon such person or persons and in such manner as the Court may direct. This Rule is taken from Cons. Ord. VII. , r. 5. See E. 171. 52. — Guardians ad litem appointed for infants, or for persons of unsound mind not so found by inquisition or declared under the Lunacy Act of 1 878, who shall be served with notice of any decree or order, shall be appointed in like manner as guardians ad litem to defend are appointed in suits. 53. — At any time during the proceedings in any suit or matter, the Court may require a guardian ad litem to be appointed for any infant, or person of unsound mind not so found by Inquisition or declared under the Lunacy Act RULES OF OOUET. 91 of 1878, who has been served with notice of such decree or order, or who shall be required to be served with notice in any suit or matter ; and the Master shall have like power under references to him. These two Bules are taken from Cons. Ord, VII., rr. 6, 7 III.— PAUPEES. 54. — Any person may be admitted to prosecute or defend a suit in forma pauperis according to the present practice of the Court, provided that he obtain a certificate of Counsel to the effect that the case is proper for relief in this Court. This rule is equivalent to Cons. Ord. VII. , r, 8. 55. — After a person has been admitted to sue or defend in forma pauperis, no fee, profit, or reward, shall be taken of him by any Counsel or solicitor, for the dispatch of his business, during the time it shall depend in Court and he shall continue a pauper ; nor shall any agreement be made for any recompense or reward afterwards : and any person offending herein shall be deemed guilty of a contempt of Court ; and the pauper who shall give any such fee or reward, or make any such agreement, shall be thenceforth dispaupered. This rule is taken from Cons. Ord. VII., r. 9, omitting, however, the words which end that i\ — "and not be afterwards admitted again in that suit to sue or defend in forma pauperis.'' 56. — The Counsel or solicitor assigned by the Court to assist a pauper may not refuse to do so, unless such Counsel or solicitor satisfy the Court with some good reason for his unwillingness to be so assigned or to continue to act binder the' assignmen t. This rule (with the exception of the words italicised in the text, which are wanting in the English Order) is taken from Cons. Ord. VII., r. 10. 92 EULES OF COUET. The Court oanuot assign counsel or solicitors to pauper defendants on the application of the plaintiff ( Garrod v. Holden, 4 Beav. 245 ; Watkin v. Parher, 1 M. & Or. 370). A pauper who has had counsel assigned to him cannot argue his case in person {Parkison v. Hanbury, 4 De. G. M, & G. 508). 57. — No process of contempt shall be issued at the instance of a pauper until signed by- his solicitor in the suit ; and no notice of motion served or petition presented on behalf of a pauper (except for the discharge of his solicitor) shall be of any effect, nor shall any person served with such notice or petition be bound to appear thereon, unless such notice or petition be signed by the solicitor of the pauper ; and such solicitor shall take care that no such process be taken out, and that no such notice or petition be served, needlessly or for vexation, but upon just and good grounds. This rule is taken from Cons. Ord. VII., r. 11. PLEADINGS. I. — Generally. II. — Statements of Claim. III. — Statements of- Defence. IV. — Demurrers. I.— GBNEEALLY. 58. — Statements of claim, statements of defence, demur- rers, and pleas, shall be signed by Countel. v.-wl This was for centuries the English practice, until it was provided S by 0. XIX. , 1'. 4, that signature of counsel should not be necessary, — a provision that met with the express disapproval of Malins, V.C. (see Bernard v. Hardwick, W.N. 1876, 134 ; Duclsett v. Jones, W.N. } 1876, 17 ; 33 L.T. 777). Notwithstanding the 0., pleadings are still commonly signed in England as before. Where the amendments in a statement of claim consist merely of elisions, it does not, if amended by the counsel who originally signed it, need to be re-sigued ( Webster v. Threlfall, 1 S. cS: S. 135) ; but if, after being filed, it is amended, it is irregular to put it again upon the file without a fresh signature to the draft, although the amend- ments have only reduced it to the shape in which it was originally settled by counsel (Burch v. Rich, 1 B. & M. 156). BULES OF COUET, 93 A pleading which requires the signature of counsel, but is not so signed, ought not to be received in the oflSce. A statement of claim not signed by counsel is demurrable (Kirkley v. Burton, 3 Madd. 378), or it may be taken off the file (French v. Dear, 5 Ves. 547 ; Burch V. Rich, iibi supra). Where a plaintiff improperly altered a bill, after it had been signed by counsel, it was taken off the file with costs to be paid by the plaintiff (Troup v. Ricardo, 13 W.E. 147). 59. — All pleadings in a suit shall be as brief as the nature of the case will admit, and shall not contain any scandalous or irrelevant matter. Deeds, writings, or records shall not be unnecessarily set out verbatim, but only so much of them or the substance and effect thereof as maybe pertinent j and in adjusting the costs of the suit the Court or Master may inquire, at the instance of any party thereto, into any unnecessary prolixity, and may order the costs thereby occasioned to be borne by the party i chargeable with the same. This B, is compounded of Cons. Ord. VIII., r. 2, and 0. XIX., r. 2. As to striking out pleadings or parts of pleadings which may be scandalous, &a., see B. 28. 60. — No pleading shall be of record or be used in Court until the same has been filed in the Equity Office. II.— STATEMENTS OP CLAIM. 61. — Statements of claim shall be in the form set out in Schedule A to these Rules, with such variations as the nature and circumstances of each case may require. See section 6 of the Act. XII.— STATEMENTS OP DEFENCE. 62. — Statements of defence shall be in the form set out in Schedule B to these Rules, with such variations as the nature and circumstances of each case may require. See sections 19 and 20 of the Act, 94 RULES OF COUBT, 63. — When a defendant does not know, or is not in fact alleged in the position eithen to admit or deny a plaintiff's statement of claim, he ra ly state that he does not know or th|it he is not able to adrtit such fact. See section 20 of the Act, and compare 0. XIX, r. 17, which provides that every allegation of fact in any pleadiog iu an action, not being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted, in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of unsound mind not so found by inquisition. 64. — It shall not be sufficient foi a defendant in his statement of defence to deny, or al ege that he does not admit, getierally the facts alleged by tl e statement of claim, but he mnst deal specifically with eacl allegation of fact of which he does apt admit the truth. This corresponds in substance with 0. XIX. , r. 20. 0. XIX., r. 22 (which is probably involved in r. 20 of the same 0., or, if not, would yet seem to be in force here by virtue of r. VI) provides as follows : — When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum, or any part thereof, or else set out how mjiich he received. And so, when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along with those circum.stances, but a fair and substantial answer must be given. With regard to these jules, pleadings will be construed strictly [per Jessel, M.B., Thorp v. poldsworth, 3 CD. 637). The following have been held insufficient a^ denials or non-admissions : — " The defend- ant denies that the termS of arrangement between himself and the plain- tiffs were definitely agreed upon as alleged (".c.) ;" " the defendants put the plaintiffs to proof of the several allegations in their statement of claim" {Harris v. Gamble, 7 CD. 877) ; "the defendants do not admit the correctness of the statements set forth in pars. 1, 2, 3, and 6 of the plaintiflf'e statement of claim, and require proof thereof ' {RitUer V. Tregent, 12 CD. 758). So, too, where, in an action against a lessee to set aside a lease granted under a power, the statement of BULBS OF COURT. 95 claim stated that the donee of the power had received from the lessee a certain sum as a bribe, and stated the circumstances, and the defence denied that that sum had been given, and denied each circumstance, but contained no general denial of a bribe having been given, it was held that the giving of a bribe was not sufficiently denied (Tildesley v. Harper, 7 CD. 403; see 10 CD. 393). Again, the statement of claim in a suit for specific performance stated that the predecessor in title of the plaintiff, by his agent lawfully authorised, signed an agreement with H., the predecessor in title of the defendant. The statement of defence denied this in words following the words of the statement of claim, and then proceeded to state that H. was of unsound mind, and did not lawfully authorise anyone as his agent to sign an agreement ; and in a subsequent par. denied that any . agreement was signed by H. or any person by him lawfully authorised. It was held by the Court of Appeal that the Defendants could only enter into evidence to show H.'s unsound- ness of mind, and could not enter into evidence to show that the agent was not duly authorised (Byrd v. Nunn, 7 C.D. 284). Again, where, in an action for damages for an alleged infringement of the plaintiff's copyright in a song, the defendant by his defence alleged that the song had not been registered until a certain date, and added "the de- fendant denies that the song has been duly registered ; the time of the first publication thereof is not truly entered on the register, " it was held that the defendant was only entitled to prove that the time of the first publication had been untruly entered, and not that the name of the publisher had been untruly stated {Colletle v Goode, 7 C.D. 842.) 65. — A defendant, in his statement of defence, shall set forth all matters, not appearing in the statement of claim, and all grounds of defence, upon which he intends to rely. This B. of course does no more than re-state what has always been the practice of the Court. 0. XIX., r. 18, is to the same effect. Compare B. 168, 66. — Where any sets up any right or in his statement of defendant sets off or claim by waj of counter-claim, he shall, defence, state specifically that he does so by way of setoff or counter-claim, ax^d shall pray specifically for the relief that he may consider timself entitled to, and also for general relief; and shall state what additional parties, if any, are necessary for the ralief so prayed. 96 BULBS OP COURT. As to the form of a counter-claim, see notes "to section 21 of the Act. The meaning of the concluding sentence of the E. under con- sideration is not apparent. It has been pointed out that, under the Act, a defendant can only bring a counter-claim against the plain- tiff ; and, if other parties than the plaintiff are necessary to the establishment by the defendant of any equity to which he is entitled, he must proceed by an independent suit. For a defendant, therefore, to claim relief by way of counter-claim, and at the same time to state that the relief cannot be granted unless parties are brought before the Court who cannot be brought before it, would be to stultify him- self. If, on the other hand, it should bo held (contrary to the writer's opinion) that, under the Act, a defendant has power to join other persons with the plaintiff as defendants to a counter-claim, he ought not merely to state that they are necessary parties, but to make them parties, to such counter-claim. IV.— DEMUEEEES. 67. — No demurrer- shall be filed without a memorandum at the foot, stating shortly in substance the ground or grounds thereof, or the point or points intended to be relied on ; of which memorandum a copy shall be served, as part of such demurrer. 0. XXVIII., r. 2 — which, however, does no more than re-state what has always been the practice in Equity as regards demurrers (see per Lord Cairns, Dawldns v. Lord Penrhyn, 4 App. Cas. 58) — provides that a demurrer shall state some ground in law for the demurrer, but the party demurring shallnot, on the argument of the demurrer, be limited to the ground so stated. It would appear on a mere comparison of these two provisions that the Colonial practice was differentiated from the English, and that here a demurring party could rely only on" those grounds of demurrer which he had specified ; but that this is not so appears from the terms of E. 88, which makes it clear that, except so far as that E. establishes a new practice as to costs, the practice here on demurrer, as to specification of the points relied on, is the same as in England. The equity in a statement of claim was not apparent, but had to be collected from a long and complicated series of facts. A defendant put in a general demurrer on the ground " that the facts alleged do not show- any cause of action to which effect can be given as against this defendant." It was held that, notwithstanding 0. XXVIII., r. 2, a demurrer in that form was in such case sufficient {Bidder v. McLean, 20 C.D. 512). EULES OF COUBT. 97 The Statute of Frauds must be pleaded, and cannot be raised by deipurrer {DawJcins v. Lord Penrhyi}, ubi supra); so also the Statute of Limitations, as regards personal actions fS. 0. 59 ; Wakelee v. Davis, 25 W.B. 60), but, in real actions, the last mentioned Statute may be raised by demurrer {Dawhns v. Lord Penrhyn, in effect over-ruling Noyes v. Crawley, 10 CD. 31), A demurrer for want of parties, it has been held, will not now lie in England {Werderman v. Sociiti G6nirale d'ElectriciU, 19 CD. 246) ; but the decision being based upon two Orders (0. XVI., r. 13, and 0. XXVIII., r. 1) which have not been incorporated in our EK., it would appear that the decision referred to does not affect the colonial practice (see E. II.). PEOCEEDINGS IN SUIT BEFORE DEFENCE. I. — Indorsement on Statement of Claim. II. — Service OF Statement of Claim. III. — Appearance. IV. — Defendants Submitting or Admitting. V. — Notice OF Proceedings, when unnecessary. VI. — Default OF Appearance. VII. — Security for Costs. B. [or where there fendants AB. and I.— INDOESEMENT ON STATEMENT OF CLAIM. 68. — The indqrsement on a statement of claim shall be varied from the form set out in the Sche lule of the Equity Apt of 1880, and shall be as follows : — Victoria E..J To the wipin-named Defendant A is more than one Defendant, D CD.] Grreeting — We command [you [" and every of yo i " where there is more than one Defendant] that within days after the service hereof on |fOU, exclusive of the day of such service, you cause an appearaice to be entered for jou in the Equity Office of our Supr ime Court to the within S tatement of Claim : And that you do at the same time of ente ring your A.ppear- ance file in the ! 3quity Office a Memoraadum, stating, in efiect, that you aispute, or admit, in wh( le or in part, the Plaintiff's claim, pr submit to such Decrfe or Order as the Court may thi ik fit to make, or disclai n EULES OF OOUET. interest in the subject matter of the Claim. And il you admit the Plaintif 's disclaim, you d 3 on the eighth day afte r or so soon after as you can be hei personally or b; ' Counsel, before the Jud Supreme Court house in King Street, in at Ten of the jelock in the forenoon Decree as is winhin prayed or shall be ai all right title or \4ithin Statement of claim, or if you such Appearance, rd, attend, either ye in Equity, at the ;he City of Sydney, submit to such just. i nd Primary Judge in day of Witness thfe Honourable A.B., the Equity, at Sydney, the in the yi ar of our Lord one thousa id eight hundred and eig hty- , and in the year of Our reig i. Note. — Appear mces are to be entered ii the Equity Office of the Sujpreme Court, in King Street aforesaid, and if you n gleet to enter your appe irance, or to file a Memorar dum, as above-mentione( , or personally, or by Count el, to attend at the plac i and time above- mentione I, you will be subject to such Order as the Court ma f think fit to make in yc ur absence. So far aB this K. direots a form of endoraement varying from the form expressly prescribed by the section of the Act it would seem to be clearly ultra vires. It will be noticed that, according to the form here directed, a defendant not disputing the plaintiff's claim is to appear " either personally or by counsel before the judge in Equity," &a. By the 17th sec. of the Act, however, it is enacted that in such a case he may appear " either personally or by counsel or solicitor before the judge sitting in chambers,'' &o. It Is submitted that the BB. cannot have the effect of cutting down the plain words of the Act, and that, where a decree is to be taken under the 17th sec, it should be applied for in chambers, where alone solicitors have audience. Of course, however, the judge, sitting in chambers, could, if he thought fit, adjourn any such application into Court, in which case solicitors could no longer appear. EULES OP COURT. 69.— A plaintiff statement of claim 99 endorse on the' I And the suing in person shall lis full name and address, solicitor of a plaintiff suing by a solicitor ^hall indorse on the statement of claim the full name an \ address of the plaintiff, and also his own name or firm and place of business, iquent proceedings and notice at such be good service. a,nd service of subs place of address shal. II.— SEEVICB OF STATEMENT OF CLAIM. 70. — Service of a statement of claim shall be effected by serving a copy personally, or by leaving the same with a servant of the defendant, or some member of his family, at his dwelling-house or usual or last known place of abode- But such service shall not be required when the defendant by his solicitor agrees to accept service : And if it be made to appear to the Court that from the defendant being absent from the Colony, or from any other cause, the- plaintiff is unable to effect prompt service as hereinbefore directed, the Court may make such order for substituted or other service, or for the substitution of notice for service, as may be just. . in.— APPEABANCE. 71. — When a defendant within the jurisdiction of the Court is duly served with' a statement of claim, he shall, if he reside within 100 miles from Sydney, appear thereto within eight days ; and, if he reside above 100 miles and l,ess than 200 miles, within twelve days ; and, if he reside above 200 miles, within sixteen days, after service. 72. — When a defendant enters his appearance he shall file a memorandum to the effect either that he disputes or admits the plaintiff's claim, or some part thereof, 100 RULES OF COURT. decree or order as the Court may think fit to make, or that he disclaims all right, title, or interest in the subject matter of the statement of claim. 73.— If any defendant shall neglect to snfcer an appear- ance, or to f le a memorandum as aboi e-mentioned, or personally or t ^ Counsel to attend at the p lace and time in the above-menl ioned indorsement, he shall I e subject to such order as the C( urt may think fit to make ii his absence. See notes to 1 . 68. So far as relates to noi -appearance, R. 73 appears to be superseded by the more elaboral 9 provisious con- tained in RR. 77 it sqq. ,74:. — A defei dant appearing in person sh ill annex to his appearance his ull name and address ; and service of subse- quent proceedii gs and notices at such place of address shall b6 good S( rvice : And the solicitor of a defendant icitor shall state the full na oae and address , and also his own name, c r firm, or place defending by so of the defendan of business. IV.— DEFENDANTS SUBMITTING OR A] >MITTING. 75. — When th s defendant being sole defer dant, or all the defendants, shall enter an appearance, or shi ,11 file a memc randum or memo 'anda to the effect that he i iocs or they d admit that the pli intiff is entitled to the relit f prayed by th statement of cla im, or that he or they f re desirous t submit to the di cree or order of the Com t, the plaintiff may at any time i fter the time limited for he attendance in Court of the i lefendant, or last of the defendants,' as directed by the at sve-mentioned indorsement!, set down the suit to be heard is a short matter on statet lent of claim and memorandum clear days' notice or memoranda on the fo irth day after so setting down tl e same. And the plainti f shall give to the defendant or c efendants, or his or their in writing of such heari ig. And the solicitor, four , EULES OF COUET. 101 !ree or order as such decree or ir to the further Court may on suih hearing make a de prayed by the statement of claim, oi order with regard ta the relief so prayed, prosecution of the sjiit in all respects, as sljall be just. This E. introduces, though by a different machinery, the practice of hearing causes " short," which has long obtained in England; but the expression " short matters," as applied to causes, is to be regret- ted, as confusing the distinction between causes and matters which has always hitherto been observed in legal terminology. As these " short matters " are novelties in this colony, it may be well to state the English practice with regard to short causes, especially having regard to E. VI. When a cause involves no question of difficulty, and is not likely to take up much time in argument — not more than ten minutes as a rule {Anon., 17 Jur. 435) — or is such that the subject matter of it would authorise the Court to make a decree as of course, it may be heard as a' short cause amongst the short causes, for the hearing of which one day in each week is appointed. To obtain this privilege, there must be a certificate — which, however, in one case (Hargraves v. White, 17 Jur. 436) was dispensed with — from the counsel of the plantiff that the cause is fit to be heard as a short cause, but the consent of the solicitors for any of the Defendants will not be required. Upon the production of such certificate to the proper officer, he will mark the cause as "short " in the cause book. The plaintiff, thus advancing a cause, proceeds at his peril ; and if, on the cause coming on, it appears that it is not one which is entitled to be so advanced, the costs occasioned by the advancement will have to be paid by the Plaintiff (Daniel, p. 685, 5th ed.). Moreover, the Court requires to be furnished with minutes, prepared by the Plaintiff's counsel, and, where practicable, assented to by the counsel for the defendant or defendants, of the decree or order sought. It is to be observed that, so far as this E. goes, a suit can only be heard as a short matter ' ' where the defendant being sole defendant, or all the defendants, shall enter an appearance, or {qu. and) shall file a memorandum or memoranda to the effect that he does or they do admit that the plaintiff is entitled to the relief prayed by the statement of claim, or that he or they are desirous to submit to the decree or order of the Court." But the benefit of the practice as to short matters is extended by Rule 126, q.v. See also next E. v.— NOTICE OF PEOCEBDINGS— WHEN UNNECESSAEY. 76. When a defendant, being one of a number of defen- dants, some of whom dispute that the plaintiff is entitled to 102 EULES OF COURT. the relief prayed by the statement of claim, shall enter his appearance and shall file a memorandum to the effect either that he admits that the plaintiff is entitled to the relief prayed, or that lie desires to submit to such decree or order as the Court may think fit to make, or that he dis- claims all right, title, and interest in the subject matter of the statement of claim, it shall not be necessary that such defendant be served with notice of any proceedings in the suit, except of or until the hearing of the suit or of any application for the dismissal of such suit. It ia an obvious inference from thia and the last EE. that, where one or some only of several defendants is or are willing to submit to a decree or order, the plaintiff cannot obtain a speedy decree or order against such defendant or defendants under the last E. ; but must wait till he is in a position, in the ordinary course of the suit, to ask for relief against all the defendants. VI.— DEFAULT OF APPEAEANCB. 77._Wher( any defendant, not being person of weal or unsound mind unable of the suit, is ( uly served with the stat sment of claim. iter an appearance thereto and does not limited by thle indorsement, the plain iff may, within twenty-one da; 'S from- the time so litnit 3d for appearing thereto, apply ,0 the Court for leave to n ake an entry of such default ; i nd the Court, being satisfies I that the copy of the statement jf claim with the indorsen ent thereon was duly serted, arid that no appearance has been entered for such defendant , may, if it so thinks fit order the same ] 'rovided that in all cases accordingly default notice served on the defendant, Df the entering thereof sjiall be forthwith ,an infant, or a himself to defend within the time 3f such entry of The words ," any defendant, not being an infant, or a person of weak or unsound mind; unable of himself to defend the Suit," are large enough to except from the operation of this E. the case of a EULES OF OOUET. 103 defendant of unsound mind, so found by inquisition or declared under the Lunaoy Act of 1878. But from the terms of E. 80, it would seem that this is not so. Nor is there any reason why it should be sq, for a defendant so found or declared a lunatic has already a committee or guardian by whom to defend the suit (see E. 50), and there is oonseciueutly no occasion to appoint a guardian ad litem for him. 78. — A defendant, notwithstanding su ih entry of default^ may within seve i days after notice ther< of enter an appear- ance in the ordiu s,ry way, and may at any to the' Court fc r leave to appear and terms as to costs and otherwise as the time apply specially defend, upon such Court may direct ; but such appeal ance shall not affect a ly proceeding duly plaintiff, or preju- mtry of default or taken or right t Iready acquired by the dice the plaintiff 3 right to costs of such of any such proc( eding. 79.^Where si ch entry of default of ap jearance shall have been made, or w len a defendant shall i ot have filed any memorandum, the plaintiff may within the entry of default of appearance apply decree or order igainst such defendant thereupon the Court may make such deorj such directions as to the taking of evide ice and otherwise for the further pi Dsecution of the suit, as fourteen days after to the Court for a n his absence, and e or order, or give may seem just. The words " or when a defendant shall not have filed any memo- randum " introduce a difficulty. The provision apparently is that, when a defendant shall not have filed any memorandum, the plaintiff may within fourteen days after the entry of default of appearance apply, &c. But, if a defendant appears but neglects to file a memorandum, the case will not be covered by this E., for there can be no entry of default. B. 73 would meet the case, so far as it goes ; but the fact of there being a double provision (in EE. 73 and 79) for the case of a defendant not filing his memorandum appears to have escaped attention, and to call for judicial exposition, 80. — Where, upon default made by a defendant in not appearing to a statement of claim, it appears to the Court 104 BULES OP COURT. that such defendant is an infant, or a person of unsound mind not so found by inquisition or declared under the Lunacy Act of 1878, 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 be assigned guardian of such defendant, by whom he may appear to and defend the suit ; But no such order shall be made, unless it appears to the Court, on the hearing of such application, that a copy of the statement of claim was duly served ; and that notice of such application was, after the expiration of the time allowed for appearing to the statement of claim, and at least six clear days before the day in such notice named for hearing the application, served upon, or left at the dwelling-house of, the person with whom, or under whose care, such defendant was at the time of serving such copy of the statement of claim ; and also, in the case of such defendant being an infant, not residing with or under the care of his father or guardian, served upon or left at the dwelling-house of the father or guardian of such infant, unless the Court, at the time of hearing such application, shall dispense with such last-mentioned service. With the exception of the words italioised in the text, this fi. is taken, mutatis mutandis, from Cons. Ord., VII., r. 3, which (with the substitution of " some proper person " for "one of the solicitors of the Court") was re-adopted by 0. XIII., r. 1. The E. applies to petitions as well as suits {re Gfreaves, 2 W.E. 336). It applies to infants residing abroad {O'Brien v. Maitldnd, i De G. P. & 3. 331 ; Anderson v. Slather, 10 Jur. 383), to infant married women {Golman v. Northeote, 2 Ha. 147) and to a person of great age and incapable of giving a continuous attention to business {Newman v. Selfe, 11 W.E. 764 ; Steel v. Cobb, ibid. 298), but not to a person who suffers from bad health only, and not from any mental incapacity {Willyama v. Hodge, 1 Mac. & G. 516). On an application by the plaintiff under this E., the Court nominates the solicitor ( Thomas v. Thomas, 7 Beav. 47 ; and see Biddulphv. Gamoys, 9 Beav. 548 ; Slteppard v. Harris, 15 L.J. Ch. 104). See E. 209. As to costs of guardians ad litem appointed under this B. , see E. 249. BULES OF COURT. 105 vi: — SEODEITY FOR COSTS. 81. — If it appears upon the statement of slaim or other- wise, at any time during the prosecution of the suit, that the sole plaintiflF, iif only one, is, or, if more tl an one, all the plaintiffs are, residing out of the jurisdictiow of the Court, the defendant sha 1 be entitled as of course t( an order for the plaintiff or pliintiffs to give security to Ihe Master for costs. And the C )urt may order such secur ty, if it shall think fit, in respec ; of any one or more of se ^eral plaintiffs who shall be out of the jurisdiction ; and no fi rther proceed- ing shall be taken security shall have in the suit until a stated t been given. me after such Rule 49 gets rid, in the case of moving for security from a next frieud, of the old canon of practice that such an application must be made before taking a material step in the suit ; the terms of the present E. get rid of the same obstructive canon in the case of moving for security from a plaintiff out of the jurisdiction (see Lydney, &c., Co. v. Bird, 23 CD. 368). A further innovation (not introduced into the English practice) is that, where only one or some of several plaintiffs is or are out of the jurisdiction, security may nevertheless be obtained (though it is not, in this case, as of course) : this is a valuable provision, for it may well happen that the only sub- stantial plaintiffs are abroad, the plaintiffs within the jurisdiction being men of straw. Under the present English practice security may be ordered tb be given for past as well as future costs {Broclilebanh v. King's Lynn Steamship Co., 3 C.P.D. 365; Massey v. Allen, 12 CD. 807). See E. VI. A defendant who admits the cause of action sued upon, and sets up a counter claim founded on a distinct claim, is not entitled to security for costs from the plaintiff, a, foreigner residing out of the jurisdiction {Winterfeld v. Bradnum, 3 Q.B.D. 324). In an action for breach of contract, the defendant, a foreigner residing abroad, by his defence denied the breaches, and also made a counter-claim for breaches of the same contract by the plaintiff, claiming damages to an amount less than the plaintiff's claim : — Held, that the defendant could not be ordered to give security for the plaintiff's costs occasioned by the counter claim (Mapleson v. Masini, 106 KULES OP COURT. 5 Q.B.D, 144). Of course, a mere defendant, though out of the juria- diotiou, cannot be called on for security, notwithstanding that he takes an independent proceeding in the auit,«.^., prefers a petition [Cochrane V. Fearon, 18 Jur. 568 ; and see Mapleson v. Masini) ; nor can a shareholder, who resides out of the jurisdiction, and appears to oppose a petition for winding up a Company (re Percy, etc., Co. , 2 CD. 531). 82. — Security for costs may be given by bond to the Master according to the custom of the Court in the penalty of £100. Provided that the Court may, if it shall think fit, direct a greater or less amount of security to be given ; and that in any case the amount of security may be paid into Court in place of giving a bond. The English rule (0. LV., r. 2) is that in any cause or matter in which security for costs is required the security shall be of such amount, and be given at such time or times, and in such manner and form, as the Court or a Judge shall direct, and (0. LV., r. 3) that, where a bond for security is given, it must, unless otherwise ordered, be given to the party requiring the seeiirity, and not to an officer of the Court. In recent oases in England, security has been ordered for £500 {Republic of Costa Rica v. Erlanger, 3 CD. 62), and even £1,000 and £600 {Massey v. Allen, 12 CD. 811). The terms of E. 82 make it doubtful whether the Court has power to direct, against the will of the party giving the security, that the amount of the security, ordered be paid into Court, or whether the effect is only to confer on the party ordered to give security the option of paying the amount into Court, or of securing it by bond. The former would be the more beneficial construction to put on the B., for it is obvious that a security by bond may prove to be no security at all ; but it is not clear that the words can properly bear such an interpretation. 83. — The day on which an order that a plaintiff do give security for costs is served, and the time thenceforward until and including the day on which such security is given, shall not be reckoned in the computation of time allowed to a defendant to flead, file his statement of defence, or demur, or otherwise make his defence to the suit. BUL^S OP COURT. 107 DEFENCES— INTERROGATORIES, &c. I. —Demurrer. II. — Plea. III. — Statement op Defence. IV. — Interrogatories. V. — Exceptions.' VI. — Con- sequences OF Default. I.— DEMUEEER. 84. —A defendant, demurring alone, may file a demurrer to a statement of claim within eight days after his appearance thereto,, but not afterwards. And either party may set down the demurrer for argument immediately. See notes to r. 145. It may be mentioned that, where a suit is dismissed at the hearing, the defendant will not be deprived of costs on the ground that he might have raised the same defence by demurrer {Bush v. Trowbridge Waterworks Co., 10 Ch. 459). 85. — Where a demurrer is overruled, the defendant shall pay to the plaintiff the taxed costs occasioned thereby, unless the Court shall, otherwise direct. 86. — Where a demurrer to the whole or part of a state- ment of claim is allowed upon argument, the plaintiff, unless the Court shall otherwise direct, shall pay to the demurring party the costs of the demurrer, and, where the demurrer is to the whole statement of claim, the costs of the suit also. These ER. make it unnecessary for the successful party on demurrer to ask for his costs. It is for the other side to ask, if a case can be made, that he be deprived of them. With a view, however, to enforcing payment of the costs, it will be prudent to obtain an order of the Court for their payment. 87. — Where a demurrer to the whole or part of a state- ment of claim is not set down for argument within twelve days after the filing thereof, and the plaintiff does not within such twelve days serve an order for leave to amend the statement of claim, the demurrer shall be held sufficient to 108 BULBS OP OOUET. the same extent and for the same purposes, and the plaintiff shall pay to the demurring party the same costs, as in the case of a demurrer to the whole or part of a statement of claim allowed upon argument. 88. — Where any grounds of demurrer are urged in arguing a demurrer beyond the grounds therein expressed, and the grounds which are so expressed are disallowed, the defendant shall pay the same costs as if the demurrer were overruled, although on the grounds so newly urged the demurrer may be allowed, unless the Court shall otherwise direct. This B. introduces a new and (it is submitted) a reasonable practice as to costs. See B. 67, with uotes. . II.— PLEA. 89. — A defendant may file a plea to a statement of claim within fourteen jdays after his appearance [thereto, but not afterwards. Anji either party may set doim the plea for argument immediately. By Order XIX. , r. 13, no plea or defence shall be pleaded in abate- ment ; and for a considerable time before the Judicature Act pleas had become practically obsolete in England. It is apprehended that little, if any, recourse will be had to them here. 90. — A plea may be put in without oath, where the matter of plea appears upon record, but, where the matter of plea does not appear upon record, the plea must be put in upon oath. This B. is taken from Cons. Ord. XIV., r. 2. 91. — The dependency of a former suit for the same matter is a good plea, but, where the plaintiff disputes the truth of the plea, he may obtain an order of course for inquiry as to the truth thereof : And such order, and the report in pursuance thereof, shall be obtained within twenty-one RULES OF COUET. 109 days after the filing and service of such plea, otherwise the defendant may obtain as of course an order to dismiss the suit with costs. This R. is taken in substance from Cons. Ord. XIV. , r. 6. 92.-^— Where a plea is overruled, the defendant shall pay to the plaintiff the taxed costs occasioned thereby, unless the Court shall otherwise direct. This R. is taken from Cons. Ord. XIV., r. 12. 93. — Where a plea to the whole or part of a statement of claim is allowed upon argument, the plaintiff, unless he undertakes to reply to the plea, or unless the Court other- wise directs, shall pay to the party by whom the plea is filed the costs of the plea ; and, where the plea is to the whole statement of claim, the costs of the suit also ; and in such last-mentioned case the order allowing the plea shall direct the dismissal of the suit. This R. is taken from Cons. Ord. XIV., r. 16. 94 — Where a plea to the whole or part of a statement of claim is not set down for argument within fourteen days after the filing thereof, and the plaintiff does not within such time either serve an order for leave to amend the statement of claim, or by 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, as in the case of a plea to the whole or part of a statement of claim allowed upon argument ; and, where the plea is to the whole statement of claim, the defendant by whom such plea was filed may at any time after the expiration of such fourteen days obtain as of course an order to dismiss the suit with costs. This E. is taken from Cons. Ord. XIV., r. 17, with the substitution of fourteen days for three weeks. no RULES OF OOUET. 95. — Where the plaintiff undertakes to reply to a plea to the whole statement of claim, he shall not, without special leave of the Court, take any proceedings against the defen- dant by whom the plea was filed till after replication. This E. is taken from Cons. Ord. XIV., r. 18. It would seem that replication must be filed within seven days after the undertaking to reply. See B. 108 (b. ) III.— STATEMENT OF DEFENCE. 96. — A. defendant who has not filed a demurrer or plea / shall file a statement of defence within fc ur teen days after the time limited I for the appearance of i uch defendant, or within such extended time as may be colisented to by the plaintiff, or as tha Court may on application for that purpose allow. And a statement of defence shall, except in the cases of corporations aggregate, be on oatn. A.nd corpora- tions aggregate n ay put in a statement bf defence under Provided that in sucK case the Court )rder that a statement of defence be put in on oath by sue i member or officer of tae corporation as it shall think fit. I As to statements of defence being on oath, see notes to the 19th section of the Act. 1 their common sea may nevertheless veniently dealt wi claim, the plaintiff notice for leave to counter-claim, and such leave : and in 97. — If a statement of defence contain ; any set-off or counter-claim whic i the plaintiff is advised cannot be cou- th by amendment of tie statement of may apply to the Court ipon motion on file a statement of defepce to the said the Court may either refuse qr grant either case may make suah orders as to parties and for the lutui-e conduct of the suit is shall thereby be rendered necessa ?y, or may determine that the said set-off or counter-claim cai mot be conveniently disf osed of in the pending suit, and or ier the same to be.struck dut accordingly. BULES OF COURT. m The first pait of this B, will inevitably put litigants to mnch unnecessary expense, which might have been avoided if the inexpensive English practice of permitting plaintiff to combine (as of course) with their reply a defence to the defendant's counter-claim had been adopted. Those who are conversant with the practice of counter- claiming, as the same has obtained in England for several years past, will be aware that there are a very considerable number of cases of set-ofi and counter claim in which the matter raised by the defendant cannot be conveniently (if at all) dealt with by amendment of the statement of claim. In all such oases the Court will no doubt, under this B., readily enough allow a plaintiff to file a defence to the counter-claim, and it is difficult to see how the counter-claiming defendant could oppose the plaintiff's application for leave to do so ; but, notwithstanding this, the necessary leave can only be obtained by the expensive! course of moving on notice. The latter part of the B. (as to striking out a set-ofi or conntbr- claim) provides no more than has been enacted by the 21st section of the Act, q.v. 98. — If a defendant does not file a statement of defence," the plaintiff may trjbat him as having traversed the allegations of fact made in the statement of claim , provided that he has filed a memorandum to the effect t lat he disputes the plaintiff's claim, aiid may proceed in the suit accordingly. This B. seems to afford a defendant a cheap and easy way of evading B. 64. Surely it would be more logical and more just to treat a defendant, who puts in no defence, as admitting rather than traversing the allegations of fact made in the statement of claim, and to give the plaintiff speedy relief on that footing, as is done in England by 0. XXIX., which provides (r. 10) that, if the defendant makes default in delivering a defence or demurrer, the plaintiff may set down the suit on motion for judgment, and such judgment shall be given as upon the statement of claim the Court shall consider the plaintiff entitled to, and (r. 11) that, where there are several de- fendants, then, if one of such defendants make such default as aforesaid, the plaintiff may either set down the suit at once on motion for judgment against the defendant so making default, or may set it down against him at the time when it is entered for trial or set down on motion for judgment against the other defendants. See tiotes to section 20 of the Act. A defendant who does not file a defence is, of course, under the dis- advantage of being able to raise no special defence at the hearing (see E, 65) ; his only chance of success would seem to lite in disproving the plaintiff's facts. 112 RULES OF COTJET. IV.— INTEEEOGATOEIBSl 99. — A )laintiff may, by leave of the Ciurt, and either at the time o' filing his statement of claim or subsequently before the suit is at issue, file, interrogatories for the examinatio: i of a defendant ; but such ini srrogatories shall be founded upon or be relevant to the alle jations contained in iihe statsment of claim. And the defendant shall on oath answei such interrogatories and file su( li answers within fourteen da -^s after service of the interroj atories on him : And the an wer shall be deemed sufficient, inless exceptions are filed the :eto within seven days after tl e filing of such answer. See section .9 of the Act. 100. — A ( efendant may, by leave of the ( !ourt, and either at the time o filing his statement of defence or subsequently before the s uit is at issue, file interroj atories for the examination of the plaintiff, to which intei rogatories shall be prefixed a concise statement of the subjfcts on which a discovery is s )ught. And the plaintiff shall on oath answer such interroj atories and file such answer vithin fourteen days after ser irice on him of the said interr( gatories : And the answer si all be deemed sufficient, unless exceptions are filed thereto ^ ithin seven days after the filing )f such answer. Provided always that it shall not be con petent to any defendant to ile interrogatories until he has answered any interrogatoriei previously filed by the pi lintiff for his examination. See section 23| of the Act. v.— EXCEPTIONS. 101. — Exce )tions for insufficiency may b( filed to any statement of ( efence, answer, or further ans ver to interro- gatories, withi 1 sgven days after the filing of s uch statement of defence a: tions shall descjribe insuffieient. So much of this statements of defepce flat qoutradietion with the notes. and the next two BB. as pT07id( s for exceptions to for insufficiency is a palpabl i nullity, being in othe 24th section of the Act,"\^|hioh see, together 102.— The Cburt, statement of def( noe[i regard to the all igations or statement p efixed may be. See note to last EULES OP COUET. 113 i- or further answer. And such excep- the passages which a 'e alleged to be , in determining the suBciency or] answer to interroga or contained in the stal ement to the interrogator I., and section 23 of the Act. 103.— Where that a further that the party ii See note to E. 1( 1 exceptions are allowed, the statement of defence or an default be examined vivd vhce. of any ies, shall have of claim, es, as the case C ourt may direct' r be filed, or VI.— CONSEQUENCES OF DEFAULT. 104. — If any party fail to comply with an order to answer interrogatories, or for discovery or inspection of documents, he shall be liable to attachment : And he shall also, if a plaintiff, be liable to have proceedings in the suit stayed until compliance ; and, if a defendant, to have his defence (if any) struck out, and to be placed in the same position as if he had not filed a memorandum of dispute or statement of defence : and the Court may order accordingly. See farther B. 108 (d.) 114 RULES OF COUBT. Compare 0. XXXI., r. 20 : — If any party fails to comply with any order to answer interrogatories or for discovery or inspection of docu- ments, he shall be liable to attachment. He shall also, if a Plaintiff, be liable to have his action dismissed for want of prosecution ; and, if a Defendant, to have liis defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the Court or a Judge for an order to the effect, and an order may be made accordingly. Under this 0. it has been laid down that it is not imperative on the Court to make an order dismissing the action, or striking out the defence (Hartley v. Owen,U L.T. 752; W.N. 1876, 193); such extreme measures will only be taken as a last resort (Twycroft v. Grant, W.K. 1875, 201 ; Anon., ibid. 202). And see E. 110. 105. — Where a party has filed interrogatories, and has just reason to believe that the party interrogated means to abscond before answering, the Court may, on the ex parte application of the party interrogating, order an attachment to issue against him, returnable at such time as the Court shall direct. lOG. — Where a party is brought up in custody for want of an answer to interrogatories, and makes oath in Court that he is unable, by reason of poverty, to employ a solicitor to put in such answer, the Court, if satisfied as to the truth of that allegation, may assign a solicitor and Counsel for such party to enable him to put in an answer. 107. — Where a party, in contempt for want of answer or discovery, obtains upon filing an answer or affidavit of discovery the common order to be discharged as to his con- tempt, on payment or tender of the costs thereof; or where the partv obtaining the attachment accepts the costs without order, it shall not be necessary, in case the answer or affi- davit is insuificient, to recommence the process of contempt, but the party obtaining the attachment may take up the process at the point to which he had before proceeded. RULES OF COURT. 115 PROCEEDINGS BETWEEN DEFENCE AND HEAEING. I.— ^Dismissing Suit for want op Prosecution. II. — Pro- duction OF Documents. III. — Preliminary Ac- counts AND Inquiries. IV. — Motion for Decree V. — Joining Issue — Replication. VI. — Setting Down Suit for Hearing. I.— DISMISSING SUIT FOR WANT OP PROSECUTION. 108.— A de endant may upon notice move the Court that'*- the suit be dipmissed with costs for want o: ' and the Court Where the pi dismiss for want prosecution, may order accordingly ; liutiff has become insolvent, notic i of motion to of prosecution must be served on th( assignee under his insolvency {T, 'right v. Swindon, <£e., Co., 4 CD. ]54), (a) Whei a plaintiff does not within the time fixed by these Rules, or such further time as the Court may rder, file a replication or set d )wn the suit to be heard on a motion for a deciee, or obtain and s erve an order for leave to arae nd the state claim, (c) Where ment sf claim. (6) Where a plaintiff, having undertaken plea ly such defendant to the whole does not file his replication to reply to a statement of vithin seven days i fter the date of his undertakin a plaintiff, having replied, does not set down s after filing the su it for hearing within seven daj s such I splication. In this case tl a defendant may, instead of mov^g to dismiss, himself set the su t down for hearing : R. 124. (d) Where a plaintiff has failed to con ply with an order to answer interrogatories for twenty-eight days after proceedings have been i tayed under Rule 104. 116 ]09.— lA / JRules, any RULES OF COURT, all cases not provided fc r by the foregoing defendant may move to disi liss a suit for want of prosecuti )n where the plaintiff has noi within a reasonable time after t lie time fixed by these Rules or by an order of the Court tiken siioh step as may be tlien necessary to be taken for plosecuting the suit. 110.— Ujlon any application to dismisi pi-osecutionJthe Court may make an ord( r such other o|'der, or may impose such teifn just and reasonable. a suit for want of to that effect, or s, as may appear See notes to R. 104. For oases in which a suit may be dismissed at a defendant's instance as of course. See ER. 91, 94. II. --PRODUCTION OF DOCUMENTS. 111. — -Any party may, without filing any affidavit, apply to the Court for an order directing any other party to the suit to make discovery on oath of all the documents which are, or have been, in his possession or power relating to any matter in question in the suit. See sections 25, 26, of the Act. 112. — The party against- whom such an order has been made shall make an affidavit specifying the documents which he lias, or has had, in his possession or power, and also which, if any, of such documents he objects to produce ; and it shall be in the form set out in Schedule D to these Rules, with such variations as circumstances may require. An affidavit as to documents setting out a very large number of letterSj'instead of referring to them in bundles properly identified, was ordered to be taken off the file, the costs to be paid by the party making the affidavit ( Walhe,r v. Pooh, 21 CD. 835). KTJLES OF COUBT. 117 III.— INQUIRIES AND ACCOUNTS. 113. — The Court may at any stage of the proceedings in a suit or matter direct any necessary inquiries or accounts to be made or taken, notwithstanding that there is some special or further relief sought for, or some special issue to be tried, as to which it may be proper that the suit or matter should pi'oceed in the ordinary manner. And the Court may, if it shall so think Jit, restrain the accounting party from the exercise of any remedy for enforcing pay^ ment of any debt pending such account or inquiry. This K. is taken from 0. XXXIII. , with the addition of the words italicised in the text. These italicised words seem superfluous, for the power thereby conferred must pf course be exercised on equitable principles, and so nothing is added to the jurisdiction already pos- , sessed by the Court to grant injunctions. / / , IV.— MOTION FOR DECREE. \ ; 114. — Fourteen days' notice shall be given to the defendant! of any motion for a decree or decretal order under section '. 28 of the Equity Act of 1880. 115. — All afiSdavits to be used in support of such motion shall be filed before the service of such notice, and a list of such affidavits shall be set forth at the foot of such notice. Copies of the affidavits need not be served : R. 19. 116. — The defendant, within twelve days after service of such notice, shall file his affidavits in answer, and deliver to the plaintifi a list thereof. 117. — Within four days after the expiration of such twelve days, or other period to which the time for filing the defendant's affidavits has been enlarged, the plaintiff shall file his affidavits in reply, and he shall deliver to the defendant a list thereof. lis RULES OF COUBT. 118. — No fuither .evidence on either side shall be used upon such motion for a decree or decretal order without leave or direction of the Court. 119. — Every notice of motion for a decree or decretal order shall be entered eight days before such motion in the Suit Book with the suits. i.— ISSUE AND REPLICATION, suit shall be put at iss iie within eight days mited for the defendai t, or all the defend- )r their statement or i tatements of defence id, or within such furtller time as the Court ! t has filed a memorandumlof dispute, bat files no se, must the PlaintiH nevert aeless tile a replication ? t moving for a decree, omi is to file a replication, he is liable to hav J his suit dismissed for wi ,nt of prcseoution : E. 108 (a.) 121. — The Slit shall be deemed tolbe at issue by the plaintiff filing a replication in the follow Lng form, that is to say, — The Plain iff in this suit hereby j sins issue with the Defendant A. B. [any Defendant who hj s filed a Memoran- dum disputing tie Plaintiff's claim] Ai d will hear the suit on Statement of IClaim and Appearance " .gainst the Defend- ant CD. [any D ifendant who has not by his Memorandnm (if any) dispute i the Plaintiff's claim ] And only one replication shall be filed in a suit unle >s the Court shall otherwise direct. VI.— SETTLING ISSUES OF FACT. 122. — Where in any suit it appears that the pleadings do not sufficiently define the issues of fact in dispute between EULES OP COUET, 119 the parties, and it shall be deemed desirable that they should be so defined, the Court may on the application of any party or of its own motion after replication settle such issues. Vn.— SETTING DOWN SUIT FOE HjEAEING. 123. — Withii seven days after replication, the plaintiff shall set down tl e suit for hearing on some! day not earlier than the fourte^ nth, nor later than the tw€ aty-eighth, day after so setting < own the suit ; and the plai itiff shall forth- with serve notic s of the suit being so fixed f ir hearing upon all the defendants thereto. 124.— If the hearing within , leven days after replicatio i, any defend ant may set dow i the suit for hearing with defendants notice plaintiff does not set do n the suit for as hereinbefore p rovided for setting down b y the plaintiff, and shall forth vith serve on the plaintiff thereof. n like periods and the other A defendant may, in such case, instead of setting the suit down for hearing, move to dismiss it for want of prosecution : E. 108 (c). HEARIlSra— EVIDENCE. I. — Generally. II. — Evidence by Commission. III. — Trial by Jury. I.— GENEEALLY. 125. —Suits which are to be treated as Consent Matters or as Short Matters, or in which the defendant ought to attend in Court in pursuance of the indorsement on the statement of claim, shall be set down for hearing on such days as the Court may specially appoint for the hearing of such matters and suits. As to short "matters or matters iu which the defendant ought to attend &o., see ER. 68, 75. Consent matters are here mentioned for the first time : they no doubt mean suits in which the terms of decree have been agreed : see next E. 120 RULES OF COURT. 126. — If the parties to any suit have agreed upon the terms of the decree to be asked from the Court, the suit may come on to be heard on any day after it has been set down that may be appointed for hearing Consent Matters. 127. — Any suit may, by the consent of the parties thereto, or by order made with notice in chambers on summons, come on to be heard as a Short Matter upon any day after it has been set down that may be appointed for hearing such matters, or that the parties may agree upon and the Court may order. E. 75 only provides for the hearing as short matters of suits in which a memorandum of admission or submission has been filed. Bat there are many eases in which a defendant, at first hostile, becomes reasonable and willing to take a speedy decision of the Court : these cases are met by this E., which enables suits to be heard "short" by consent, notwithstanding that a memorandum of dispute has been filed. The words, " or by order made with notice in chambers," are difficult. They apparently contemplate an order being made against the will of the defendant for the hearing of a suit "short." But such an order would be unnecessary, for the plaintiff may himself set down the suit to be heard " short " without the defendant's consent : see R. 75. 128. — When £t,ny suit is called on, all the pleadings shall be read, and the evidence on both sides, documentary and oral, shall be taken, including evidence in reply ; and, when the evidence is closed, a memorandum t be signed by the Judge and filed : and th then proceeded with at once, or may be ad day, as the Court shall direct. that eflFect shall hearing may be ourned to a future 129. — If the pi dntiiF refers to the statement of defence or any part of it as evidence in support of his case, the Judge shall take a note of such reference ; and the plaintiff shall BULES OP COURT. 121 not enter into evidence as to such matters as are established by such reference ; and, if he enters into evidence as to them, he will render himself liable to pay the costs thereof. This E. is, in theory, only a corollary to section 20 of the Act, but, in practice, it may put the plaintiff in a difficulty, unless it is leniently applied by the Court. Of course, where there is a clear admission in the defence of any particular fact, no plaintiff would be justified in adducing evidence of such fact ; but, as will be seen from the cases cited in the notes to B. 64, there are cases in which it is very difficult to say whether the expressions used in the defence amount to any and what admissions of the plaintiff's allegations, and in such cases it would not be prudent in a plaintiff to let the suit go to a hearing without evidence of hia own in support of that part of his ease ; the Court may, however, be of opinion that the defendant's expressions did in fact amount to admissions sufficient for the plaintiff's purpose. It is presumed that in such cases of reasonable doubt, a plaintiff will not in any event be made to pay the costs of the evidence so adduced by him. Kot improbably this R. will remain a dead letter. A plaintiff may read a passage from a statement of defence without reading the whole of the paragraph containing such passage (Bourke V. Wright, 4 N.S.W.L.E. Eq. 9). 130. — The Court or any party may, before, or at anytime during, the hearing of a suit, require the evidence or judg- ment to be taken down by a shorthand writer, who shall be duly sworn ; but it shall not be necessary for the witnesses to sign the notes of their evidence : and the Court may make such order as it shall think fit for the costs of employ- ing such shorthand writer. The Judge's notes, or the notes of such shorthand writer, shall for all the purposes of the suit be primd facie proof of the evidence of the deposition of witnesses. As to shorthand notes, see s. 31 of the Act. II.— EVIDENCE BY COMMISSION. 131. — Where any party has obtained a commission for the examination of witnesses, he shall, unless the Court other- wise direct, cause notice of the time and place of such 122 BULBS OP COURT. examination to be served on the parties entitled to notice seven days at least before the day of examination ; and every such commission shall be returnable on some day to be fixed in each case by the Court, and shall, with the examination of witnesses under the samej be returned to the Equity Office in like manner as statements of defence taken in the country are returnable. See B. 11. III.— TBIAL BY JUBY. 132. — Any question of fact, or any question of the amount of damages, directed to be tried by a jury, shall be reduced into writing in the form set forth in Schedule E to these Eules, and shall be called the " Record for Trial," and shall be filed in the Equity Office within two days after such order shall have been made, and within seven days after such-filing shall be entered for trial at such time and place and in such manner as the Court shall direct. This B. is taken, with some alterations, from Cons. Ord. XLI., r. 26. Two and seven days are substituted for three and three days respectively, and the entry for trial, instead of being specially provided for, is to be " as the Court shall direct," rendering an application for directions necessary, at least in all cases wliere the practice at law (see next B.) doe.s not sufficiently indicate the course to be pursued. As to trial by jury, see sections 32-38 of the Act. 133. — When the Court shall order any question of fact, or any question of the amount of damages, to be tried by ajuiy, the course of proceedings shall be in all respects in accordance with the law and practice as to trial of issue and assess- ments of damages at Common Law. 134. — The notice of any application for a new trial shall be given within eight days after the verdict or finding of the jury shall have been filed, or within such other time as the Court may direct. EULESOF COUET. 123 1 35. — Where the Court shall decree damages to any person, and shall order the amount of such damages to be assessed by a jury before any Judge of the Supreme Court, or in any Circuit Cojirt, the person to whom such damages shall be decreed shall be at liberty to sue out from the Equity Office a writ of inquiry of damages. 136. — The Kules now in force in the Courts of Common Law relative to writs of inquiry and trials shall be appli- cable to writs of inquiry to be issued by virtue of the last preceding Rule. 137. — The writ of inqviiry, together with the return thereto of the verdict or inquisition, shall within seven days after such return be filed at the Equity Office, or within such other time as the Court shall allow. 138. — Any application to set aside the verdict or in- quisition on any such writ of inquiry, and to direct a new inquiry, shall be made within eight days after the finding thereof, or within such other time as the Court shall allow. 139. — The defeni lant, or other the persi against whom out a summons damages shall have been decreed, may take before any Judge at chambers for liberty to )ay into Court a sum of money in respect of such damages ; md in case such liberty shall be given, and a sum of money s lall be paid into Court accordingly, and in the event of a larger sum for damages not being s warded than the amount so paid into Court, the plaintiff, or person seeking sue] i damages, shall pay the costs of the assessment of such dariages, unless the Court shall otherwii ;e direct. This B. follows in substance Cons. Ord. XLI., r. 40. 140. — On the day appointed for any trial, and previously to the commencement thereof, a copy of the Record for Trial, 124 EULES OF OOUET. together with a copy of the statement of claim, statement of defence, and other pleadings, shall be left with the Judge before whom such trial is appointed to be had by the person at whose instance the same may have been entered for trial. 141. — The verdict or finding of the jury, together with the names of the jurors who were sworn, shall be endorsed by the associate of the Judge before whom the trial has taken place on the Record for Trial, and shall be signed by him and then returned to the Equity Office to be filed. And the Judge may certify whether he is satisfied or otherwise with such verdict or finding of the jury. AMENDMENTS OF PLEADINGS. 142. — ^A jlaintifi' may obtain an or er of course at any time for lea\le to amend his statemeqt of claim for the purpose of reJtifying clerical errors. BR. 142-149 ire, except as regards the timi s limited, framed sub stantially upon Ihe lines laid down by Cons. 19. Applications tor leave to amend should b( s. 62 of the Act.| Ord. IX., rr. 8-13, 17, made on summons : ci I 143. — Where no statement of defence has been filed, a plaintiiF may Abtain an order of course jfbr leave to amend his statement lof claim at any time befo -e the time limited for filing the abatement of defence, or tb ments of defeiase which may be put in to of claim, has e: ;pired. J last of the state- the said statement This E. relates the two next RR. to amendment where no de snce has been filed ; apply where a defence has be< n filed. 144. — Wheri there is a sole defendai t, or where, there being several djefendants, they all join ii defence, the plaintiff may, before repl one statement of cation, obtain an RULES OF COURT. 125 order of cours^ for leave to amend his statement of claim at any time witllia fourteen days after the nling of the said statement of difence. This E. seemsjto imply that a plaintiff need i ot file his repli- cation till fourteen days after the filing of the d ifenoe ; but, by E. 119, he must fill it within eight days, unless the Court extends the time. If, theref cfce, a Plaintiff wants the benefit o the fourteen days for obtaining an Irder of course, to amend his stati ment of claim, he must obtain f urtlffir time for filing his replication. 145. — Wheri there are several defend an tsjwho do not join in one statemeut of defence, the plaintiff m ly before repli- cation obtain i the filing of the See note to last n order of course for leav( statement of cl dm at any time within four ieen days after last of the statements of def( nee. to amend his 146. — A plaintiff shall not obtain an ord( r of course to amend his statement of claim after any d( fendant, being entitled so to mdve, has served a notice of mc tion to dismiss the suit for waiit of prosecution. And no nore than one order of course I for leave to amend a statement of claim shall be granted after the statement of defemce or the last of the statemeni s of defence has been filed, Sinless for the li purpose of reotifmng clerical errors. u An order of course for leave to amend, notserved, doesnot-prevent the defendant from demurring to the statement of claim ; for such an order operates from the time of service only, and, therefore, an intermediate step taken by the defendant after the order is made, but before it is served, is regular (^Price v. Webb, 2 Ha. 515.) On the same principle, an order of course to amend, obtained, but not served, before service of a notice of motion to dismiss for want of prosecution, was treated as a nullity, and no answer to the' motion to dismiss (Jones v. Lord Oliarlemont, 12 Jur. 389) ; but by the modern practice an order of the Court is regarded as valid until regularly discharged, and it is submitted that, in circumstances like those in Jones v. Lord Gharle- mont, a defendant's proper course at the present day would be to 126 BULBS OP COURT. more, on one notice of motion, (1) to discharge the order to amend, (2) to dismiss the suit for want of prosecution. A notice of motion to dismiss, which has been served, but is after- wards withdrawn, does not prevent the common order to amend {Briggs v. Beak, 4 N.E. 261). 1 I . .147. — A speci il order for leave to amend any pleading may be granted it any time upon such ter qs as to costs or otherwise as maj seem just, and all such aiiendments shall be made as may )e necessary for the purpo& i of determining the real questioi s or question in controve :sy between the parties : Providei . that any amendment in a statement of defence shall be n aon oath. This is the only E to amend, and it req lireshim in every case, howeve: special, leave before 1 e can do so. which covers the case of a a sfendant desiring 148. — Any par y, having obtained an ore iii simple, to obtain er for leave to hich no other amend his pleadii g, shall in all cases in time is limited b ' such order have seven pays after the date of the order svithin which to make such amendments, and, in default of I is so amending, the order s lall be treated for all purposes of t le suit as if the same had n Dt been made. 1 49. — Whenever record shall state dated day of any pleading shall be i Amended day of mended, the by order, 150. — Whenever la plaintiff has obtained le ive to amend his statement of cli im, and the amendments siderable that no re- upon give notice to an attested copy of over the same to hitil of the statement of are so incon- shall there- ngrossment is required, hi my defendant who has beei served with he original statement of c aim to hand for amendment ; and the s ttested copy claim, when so amendedl (or, if the EULES OP COURT. 127 amendment be ojf such a nature as to requiife a new engross- ment, then an attested copy of such new enirossment), shall at the time suchj amendment is made or new engrossment filed (if requiring no new appearance) ba served on the defendant's solicitor. But, if a new appearance be required, the amended attested copy, or an attested i|opy of the new engrossment, shal the indorsements be served on the defendan|, together with ihereon. REVIVOE AND SUPPLEMENT. 151. — Any person under no disability, or under the disability of coverture only, who may be served with an order under the 59th section of the Equity Act of 1880 to revive any suit or carry on the proceedings therein, may apply to the Court to discharge such order within twelve days after such service ; and any person being under any disability other than coverture who may be so served may apply to the Court to discharge such order within twelve days after the appointment of a guardian or guardians ad litem, for such person ; and, until such period of twelve days shall have expired, such order shall have no force or effect as against such last mentioned person. This Kale corresponds with Cons. Ord. XXXII., r, 1. 152. — Where any suit shall not be in such a state as to allow of an amendment being made in the statement of claim, the plaintiff may state any facts or circumstances which have occurred after the institution of the suit by filing in the Equity Office a written statement, to be annexed to the statement of claim ; and such proceedings by way of defence, evidence, and otherwise, shall be had and taken upon the statement so filed as if the same were 128 RULES OF COUBT. embodied in a supplemental statement of claim : Provided that the Court may make any order which it shall think fit for accelerating the proceedings in any manner which may appear just. This E. is taken, mutatis mutandis, from Cons. Ord. XXXII., r. 2. See section 60 of the Act. As to amendment, see EE. 142-150. 153. — It shall not be necessary, in any claim to revive a suit, or in any supplemental statement of claim, to set forth any of the statements in the original pleadings, unless the special, circumstances of the case may so require. ^ This E. corresponds with Oous. Ord. XXXII., r. 3. " Claim" means "statement of claim.'' The E. does not dispense with the necessity of stating, in a claim to revive, so much of the pleadings in the original suit as is sufficient to show the title of the plaintiff as against the defendant to revive the suit. If the statements in the claim to revive do not show a title to revive, the plaintiff cannot on demurrer supply the defect by reading the record of the original statement of claim, although that record be referred to in the claim to revive. The title to revive the suit against the defendant is not shown by the mere statement that such defendant is the representative of a party who put in a defence to the original statement of claim (Griffith v. Ricketts, 3 Ha. 476 ; aad see Anderson v. Wallis, 6 Jur. 906). 154. — When a suit abates ' before decree by the death of a sole plaintiff, any defendant may either take the proceed- ings necessary to revive the suit, as in the case of such abatement after decree, or may apply to the court, upon motion on notice served on the legal representative of the deceased plaintiff, that such legal representative do revive the suit within a limited time, or that the suit be dismissed against such defendant. With the exception of the words italicised in the text (which constitute a departure from the old practice in England under the Oous. Orda.), this E. corresponds with Oons. Ord, XXXII., r. 4. The executors and devisees in trust of a deceased defendant may make the application (Norton v. White, 2 De G. M. & G. 678). BULES OP COUET. 129 Where a sole plaintiff in an administration suit died, an order of course to revive was made on the application of a person who had heen served with notice of the decree, and had obtained liberty to attend the proceedings (Buntall v. Fearm, W.N. 1883, 99). On the death of one of several co-plaintiffs, it was ordered that the survivors should revive within a limited time or that the bill should be dismissed, notwithstanding that there should be no legal personal representative, it being their duty to obtain administration {Saner v. Deaven, 16 Beav. 30) ; Adamson v. Hall, T. & E. 258 ; Hinde v. Morton, 2 H. & M. 368 ; Holcombe v. Trotter, 1 Coll. 654). . DECEEES AND ORDERS, 155. — The partjj who has the carriage 3t t of any decree or order shall perfect I the same within ten 6 ays after it shall his so doing, any of the Court or iinfci have been pronounhed ; and, in default of of the other parties Master, be allowed such decree or ordei may, at the discretion 10 take the necessary sti ps for perfecting The words "shall perfect the, same" are vague. They cannot mean " shall procure the same to be settled and passed," because settling and passing depend on the state of business in the Master's ofSce, and are beyond the control of the parties. The words pro- bably mean (adopting the language of the latter part of the B.) "shall take the necessary steps for perfecting the, same," i.e., shall leave the draft minutes and take out an appointment to settle (B. 157), and serve notice of such appointment (Bule 156). 156. — Two dear days' notice shall be given of any appointment to settle minutes, provided that in cases of emergency the summons may be made returnable immedi- ately, 157. — Draft minutes of the decree or order shall be left in the Equity Office on taking out an appointment to settle the same. 130 RULES OP COUET. 158. — The Court or Master may, in any case in which it may be considered expedient so to do, settle and pass the decree or order without making any appointment so to do, and without notice to any party. This E. gives extraordinary powers, which, it is presumed, will seldom be invoked. 159. — No decree or order shall be drawn up without the leave of the Court after six months from when it shall have been pronounced. 160. — In drawing up any decree or order it shall not be necessary to recite any pleading or document in full, but a short reference thereto shall be sufficient, unless the Court or Master shall otherwise direct. ,^' This E. is a oondenaation of part of Cons. Ord. XXIII., r. 2. The Master in drawing up any order may introduce such alter- ations as from his experience he believes the Court would sanction (Davenport v. Stafford, 8 Beav. 503 ; Hargrave v. Hargrave, 3 Mac. & G. SiS). 161. — Where any sums of money or any securities or other effects belonging to the suitors of the Court are directed to be paid into or deposited in Court in any suit or matter, or to be paid out or invested ; or where any stock, funds, shares, or moneys are directed to be trans- ferred into the name and with the privity of the Master, or to be transferred out of Court, carried over, or delivered out, — the exact sum of money, the amount of the stock, 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 and specified and expressed in the decree or order in words written at length ; except in the case of residues or shares of residues remaining after a portion directed to be applied for particular purposes, the RULES OF COURT. 131 amount of which cannot be ascertained at the time of making the decree or order ; 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 Master, who shall be at liberty to certify the same without a direction for that purpose in such decree or order. This B. is taken from Cons. Ord. XXIII., r. 3. The direction contained in this R. to specify the amount to be paid out, &a., applies to those cases only in which the amount to be paid out, &a., can be ascertained at the time when the order for payment, &o., is made {Piggott v. Garraway, 9 Sim. 260). 162. — Where a residue of stock, funds, shares, or securities or moneys, is directed by any decree or order to be operated upon by the Master, the exact amount of such residue, where the same can be done, shall, on settlement of the minutes, be verified by affidavit or otherwise, 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. This E. is taken from Cons. Ord. XXIII., r. 4, except that the verification by affidavit, where the case admits of it, is here made peremptory, instead of being, as in the English r., only necessary where required by the Registrar. 163. — All persons, whether representatives or others, who are directed to pay into or deposit in Court any sum of money, securities, or other efiects with the privity of the Master, or to transfer any stock, funds, shares, or moneys, into his name and with his privity ; and all persons, whether representatives or others, to whom any sums of money, stock, funds, shares, securities, or other effects are directed to be paid out, transferred, carried over, or delivered out, shall, K2 132 EULES OF COURT. 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 administration shall have been taken out at the time of making such decree or order : and the Christian names and surnames or titles of honor of all such persons, and the titles of all such bodies corporate, companies, and societies shall be written at length and without abbreviation in such decrees or order. This B. is taken from Cons. Ord. XXIII., r. 5. 164. — In all decrees or orders directing the payment of interest, dividends, annuities, or other periodical payments, the time when the first of such payments, and when all subsequent periodical payments, whether quarterly, half- yearly, yearly, or otherwise, shall be made, shall be specified and expressed in words at length ; and, where the same has not been so specified amd expressed, then the respective pay- ments shall he made yearly. Except as regards the words italicised in the text (which have been added), this E. is taken from Cons. Ord. XXIII., r. 6. The added words seem somewhat inconsistent with the preceding part of the E., for they appear to intimate that in the case of pay- ments intended to be made yearly the time of payment need not necessarily be specified, whereas the words immediately preceding provide that it shall be specified. 1 65. — Where any stock, funds, shares [or] securities stand- ing in the name of the Master in trust in, or to the credit of, any suit, 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 accounts, and where any money is directed RULES OF COURT. 133 to be paid out to or among several persons, or carried over to several separate accounts; the Master shall be at liberty, where it shall appear to him to be more convenient so to do, to state the respective amounts of such stock, 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 mandatory part of the decree or order ; but in every such case the total amount of the stock, funds, shares, securities, 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. This R. is taken from Cons. Ord. XXIII., r. 7. 166. — Where, upon or after the death of any person to whom the interest or dividends of any stock, funds, shares, securities, or money standing in the name of the Master in trust in, or to the credit of, any suit, matter, or account, or any part of such interest or dividends were or was payable for life, an order is made for the sale^ transfer, or delivery or payment, of such stock, funds, shares, securities, or moneys, or for the 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 stock, funds, shares, securities, or moneys, as shall have accrued between the last period of payment and the day of his death, unless the Court shall be of opinion that such legal personal representatives are not entitled thereto, or shall for any other reason otherwise direct. This B. is taken from Cons. Ord. XXIII., r. 8. 167. — Every decree or order made in any suit or matter requiring any person to do an act thereby ordered shall state 134 EULES OF OOUKT the time or the time after service of the decree or order ■within which the act is to be done ; and upon the copy of the decree or order, which shall be served upon the person required to obey the same, there shall be endorsed a memo- randum 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 will be liable to be arrested under a Writ of Attachment issued out of the Supreme Court, and also be liable to have your estate sequestrated for the purpose of compelling you to obey the same Decree (or Order)." And in any case where money only has to be paid to any person, then the memorandum shall he to the effedt following : — " // you the within-named A.B. neglect to obey this Decree (or Order) by the time therein limited, a Writ of fieri facias ma^ be issued against you to levy upon yowr goods and chattels and lands and tenements and also you will be liable to have your estate sequestrated for the purpose of compelling you to obey the same Decree (or Order)." With the exception of the words itaUoiseS in the text (which have been added), this R. is taken from Cons. Ord. XXIII., r. 10. Where a decree has been drawn up without fixing a time within which an act is to be done, the decree is not rendered ineffectual, but the Court will, on motion, fix a time for the performance of the act (Needliam v, Needliam, 1 Ha. 633). 168. — Where a defendant, at the hearing, objects that a suit is defective for want of parties, and has not, by plea or statement of defence, taken the objection, and therein specified by name or description the parties to whom the objection applies, the Gburt, if it shall think fit, may add the parties wpon such terms as to costs or otherwise as may be deemed just, or may make a decree saving the rights of such parties. With the exception of the words italicised in the text (which have been added), this E. is. taken from Cons. Ord. XXIIL, r. 11. EULES OP COURT. 135 Under this B., decrees have been made in the absence, and saving the rights, of a mortgagee (Felthamv. Clark, 1 De G. & Sra. 307), the assignees o£ a bankrupt {Maybery v. Brooking, 7 De G. M. & G. 673), the heir-at-law of the survivor of trustees, and the personal repre- sentative {Faulkner v. Daniel, 3 Ha. 199), and a person entitled in a remote contingency {Daubuz v. Peel, 1 Coop. E. t. Cottenham, 365) ; but decrees will not be made under this E. in the absence of a female plaintiff's husband {Bmsell v. Lucey, 18 L.J. Ch. 464), nor, in a suit to execute the trusts of a creditor's deed, in the absence of the person who created the trust (Kimber v. Ensworth, 1 Ha. 293). The object of the E. was to remove a difficulty which often arose at the hearing of a cause, from objections for want of parties being taken by defendants, when the objections had not been suggested by the answer, and the rights of the absent party would be as well protected by the decree of the Court as if he were present, or at all events those rights could not be prejudiced by a decree made in his absence. It was not contemplated that the Court would ever exercise the powers which the order gave in a manner which would be prejudicial to an absent party (per Wigram, V.C, S.G. 295.) Where a suit involved a question in which the children of the plaintiff were interested, and a child was born after the bill was filed, the Court, on the objection taken at the hearing, ordered the cause to stand over, with liberty to amend by bringing the child born since the institution of the suit before the Court {Leylani v. Leyland, 10 W.E. 149). At the hearing, a suit was found defective for want of parties, and was ordered to stand over, with liberty to amend by adding parties. When brought on a second time, it was still defective for want of parties. The Court dismissed it against all the defendants ( Williams v. Page, 28 Beav. 148.) Compare E. 259 and sections 7 and 8 of the Acti 169. — If the plaintiff, after the suit is set down to be heard, causes the statement of claim to be dismissed on his own application, or if the suit is called on to be tried or heard in Court and the plaintiff makes default, and by reason thereof the statement of claim is dismissed, such dismissal, unless the Court shall otherwise direct, shall be equivalent to a dismissal on the merits, and may be pleaded in bar to another suit for the same matter. This E. is taken from Cons. Ord. XXIII., r. 13. By 0. XXXVI., r. 19, if, when an action is called on for trial, the defendant appears, and the plaintiff does not appear, the 136 RULES OP COURT. defendant, if he has no counter-claim, shall be entitled to jadgment dismissing the action, but, if he has a connter-claim, then he may prove such claim so far as the burden of prool lies upon him ; by r. 20 of the same O., any verdict or judgment obtained where one party does not appear at the trial may be set aside by the Court or a Judge upon such terms as may seem fit, upon an application made within six days after the trial. These rr. are, it is submitted, imported into the Colonial practice by virtue of E. VI; but, if not, yet they will probably be adopted by the Court as providing a reason- able practice. Under r. 20 {supra), the English Courts will, on a case being shown, readily set aside a judgment obtained in ahsentem, on payment by the party in default of the actual costs of the day when the action was called on and of the application to restore {Cockle v, Joyce, 7 CD. 56 ; Wright v. Clifford, 26 W.E. 369), including all costs thrown away {King v. Sandeman, 26 W.R. 569 ; compare Burgoine v, Taylor, 9 CD. 1.) In one case the solicitor through whose oversight the dismissal was caused had to pay the costs {Birch i>. Williams, 24 W.E,. 700). Where the plaintiff's absence at the trial is caused by the default of his solicitor, the time for applying to set aside the judgment will be enlarged {Michel v. Wilson, 25 W.B. 380 ; see Atwood v. Chichester, 3 Q.B.D. 722). 170. — Every decree or order for an account of the estate of a testator or intestate shall, unless the Court shall other- wise direct, contain a direction for an inquiry as to vrhat parts (if any) of such estate are outstanding or undisposed of. This B. is taken from Cons. Ord. XXm., r. 14. 171. — Notice of a decree or order served pursuant to the 6th rule of the 7th section of the Equity Act of 1880 shall be entitled in the suit, and there shall be indorsed a memo- randum in the form or to the effect following, that is to say :— " Take notice, that from the time of the service of this notice, you [or, as the case may be, the infant, or person of unsound mind] will be bound by the proceedings in the above Suit 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 pro- RULES OF COURT. 137 ceedings 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]." This R. is taken from Cons. Ord. XXIII., i'. 20. See B. 51. Mere liberty to attend the proceedings does not entitle the parties having the liberty to the costs of their attendance in chambers as a matter of coarse. In order to entitle such parties to such costs, the order giving the liberty to attend should expressly provide that they are to be entitled thereto (Day v. Batty, 21 CD. 830 ; and see Sharp V. Lush, 10 CD. 468). 172. — A memorandum of the service upon any person of notice of the decree in any suit under the 6th Rule of the same section shall be entered in the Equity Office, upon due proof by affidavit of such service. This B. corresponds with Cons. Ord. XXIII., r. 19. 173. — The time within which a party served with notice of a decree under the 6th Rule of the same section may apply to the Court to add to the decree shall be one month after such service, unless the Cov/rt shall extend the time or shall otherwise direct. With the exception of the words italicised in the text (which have been added), this E. is taken from Cons. Ord. XXIII., r. 18. 174. — Clerical mistakes in decrees or orders, or errors arising from any accidental slip or omission, may at any time be corrected upon summons in chambers. Except that a summons is substituted for amotion or petition, this B. corresponds with Cons. Ord. XXIII., r. 21. 175. — 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 aban- doned such decree or order, so far as the same is beneficial 138 EULES OF OOUBT. 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. This E. is taken from Oons. Ord. XXIII., r. 22. PROCESS TO ENFORCE DECREES AND ORDERS. 176. — No writ of attachment, sequestration, or assist- ance, shall be issued without special order, to be obtained on motion with affidavit of the circumstances of the case ; but it shall not be necessary to serve the person against whom such writ is sought to be issued with notice of the motion. Sb far as regards notice of an application for attachment, this E. di:Sers from the present English practice, according to which (0. XLIV., r. 2) no writ of attachment is to be issued without leave, to be applied for on notice to the party against whom the attachment is to be issued. See RE. 20, 167. 177. — If any party directed' by an order or decree to pay money (whether money only, or costs only, or money with costs) shall, after due service of such order or decree, neglect to pay the same as thereby directed, the party prosecuting such order or decree shall, at the expiration of the time limited for the performance thereof, be entitled to proceed by writ oi fieri facias for the recovery of the money thereby payable in the manner directed by the Act of 5 Victoria, No. 9, section 43. Provided nevertheless, that an attachment may issue when the decree or order directs the payment of any money into Court. See E. 167 EULES OP OOUET. 139 178. — In respect to the payment of costs, when the amount of such costs shall have been duly taxed and certified, and payment thereof demanded from the party by whom payable or his solicitor, execution shall be issued under a writ of fieri facias upon an affidavit of due demand from the party by whom the same is payable or his solicitor. 179. — Every person, not being a party in the suit, who shall have obtained an order, or in, whose favour any order shall have been made, shall be entitled to enforce obedience to such order by the same process as if he were a party to the suit ; and every person, not being a party in the suit, against whom obedience to any order may be enforced, shall be liable to the same process for disobedience to such order as if he were a party in the suit. This E. is taken from Oons. Ord. XXIX., r. 1. 180. — When any party who by any order or decree is ordered to deliver possession of any lands, tenements, or hereditaments within a limited time shall, after due service of such decree or order, refuse or neglect to obey the same, the party prosecuting such order or decree shall (on proof made of demand and refusal- to obey the same) be entitled to a writ of assistance or of habere facias. An affidavit in support of an application for a writ of assistance need not show an existing non-compliance with the order or decree ( WeiaUr v. Taylor, 18 Jur. 869.) The writ will not be granted to aid a receiver in distraining for rent ( White v. Phibbs, S. & Sc. 88). 181. — Where any party who by any order or decree is ordered within a limited time to do some act other than to pay money or deliver possession of lands, tenements, and hereditaments shall, after due service of such order or decree, refuse or neglect to obey the same, according to the exigency thereof, the party prosecuting such order or decree 140 EULES OF COUET. shall, at the expiration of the time so limited, be entitlpd to a writ of attachment or to a writ for the delivery of any property other than money, lands, tenements, and heredita- ments which shall have been decreed or ordered, to be delivered, or a writ of sequestration, as the Court may in each case deem to be just. 182. — Upon the sheriff's return of non est inventus to an attachment, the party suing out the same, upon affidavit that due diligence has been used in endeavouring to appre- hend the person, and stating the facts of such endeavour, shall be entitled to a writ of sequestration. APPEALS. 183. — Any person intending to appeal to the Full Court from any decree or order under section 70 of the Equity Act of 1880, shall, within fourteen days next after the pro- nouncing of the same, or within such extended time as the Court below may have allowed, enter and file in the Equity Ofiice a n otice of appe8J;,_signed by -feifti^ Counsel, and set- ting forth therein the grounds and reasons of and for such appeal; which notice shall be in the [^m. a] form similar to the form in Schedule F to these Rules ; and a copy of such notice of appeal shall, within ten days next after filing the same, or within such extended time as the Court below shall allow, be delivered to each of the Judges of the Supreme Court, and shall within like time be served upon all parties intended to be served therewith, or their solicitors. See sections 70 and 72 of the Act, with the notes. The signature of the notice of appeal by two counsel cannot be dispensed with (Sempill v. Campbell, 6 S.O.E. Eq. 1). The same ruling doubtless applies to a cross-notice under the next Enle. The result is curious : an appellant, or a respondent who gives a cross- notice, must employ at least two counsel on the hearing of the appeal, while a respondent not giving a cross-notice need only em- ploy one. RULES OF COURT. Ml 184:. — The time within which a respondent shall give notice that he intends upon the hearing of the appeal to contend that the decision of the Court below should be varied or altered shall be fourteen days from service of the appellant's notice of appeal ; and such notice shall be signed by two Counsel, and shall specially set forth the grounds and reasons for' contending that the decision should be varied or altered. This cross-notice is not compulsory on a respondent (see notes to section 74 of the Act). Probably, therefore, the direction here given that he shall give the notice within the time limited must be construed only as intimating that, if on the hearing of the appeal he contends for a variation or alteration without having given the notice here prescribed, a special order will be made as to his costs, under the concluding words of section 74, q.v. Compare ex parte Bishop, 15 CD. 400. 185. — Every appeal shall hereafter be set down for the first day for the hearing of appeals in Equity which shall happen next after the making of the deposit or giving the security required, unless the Court shall otherwise order : and every appeal not so entered shall be deemed to have been abandoned. As to obtaining the costs of an abandoned appeal , see notes to section 70 of the Act. An appeal from a decree of the Primary Judge will not be heard unless the decree has been drawn up, passed, and entered. Where the plaintiff appealed from a decree dismissing his bill with costs, but omitted to draw up such decree and get it passed and entered, his appeal was struck out of the paper with costs (pre- sumably of the day only), but allowed to be set down for hearing on a subsequent day after the decree had been perfected (Rattray v. Slanchard, 6 S.C.E. Eq. 94, 100). REFEEENCES, INQUIRIES, AND ACCOUNTS. 186. — The Court may for the purpose of obtaining the assistance of conveyancing Counsel, accountants, merchants, engineers, actuaries, or other scientific persons, under sec- tion 46 of the Equity Act of 1880, refer to any such persons 142 RULES OF qOUBT. anymatter at issue, or arising in the suit for a report thereon, and may at the time of such reference and from time to time give such directions with relation thereto, as to the Court may seem necessary. See notes to the section of the A■ party to the suit, only one copy of the receiver's accounts was allowed on taxa- tion, the Taxing Masters certifying it to be, a general rule that a solicitor concerned for two or more parties is not allowed to charge for supplying to himself copies of documents which he has himself prepared (Sharp v. Wright, 1 Eq. 634). And, where a solicitor attended in chambers for two parties, though in different interests, the costs of only one attendance were allowed {Brown v. Oellatly, 15 W.R. 887). Where, however, the Court, at the instance of the plaintiff, ordered the solicitor to the suitor's fee fund to appear for an infant defendant, his appearing for other defendants suing in fmmcL pauperis did not disentitle him to the full costs of suit {Frazer v. Thompson, 1 Giff. 337.) • See E. 209. 255. — Where any party submits to exceptions for insuffi ciency, he shall pay to the excepting party twenty shillings costs if before the order of reference, and thirty shillings if before the report, unless other costs are specially certified 166 BULES OF COURT. by the Master. And, where the costs of suit are ordered to be paid to any party, the costs occasioned to him by the insufficiency of any answer . to interrogatories shall be deemed to be part of such costs ; any sum being deducted therefrom which shall have been paid to him upon the exceptions being submitted to, or the answer certified to be insufficient. This E. is an extension of Cons. Ord. XL., i. 13. It only applies where the question of costs has not already been disposed of by the Court (Poole v. Gordon, 16 L.J. Ch. 265). 256. — The plaintiff, having duly caused an appearance to be entered for any defendant, shall be entitled as against the same defendant to the costs of and incident to entering such appearance, whatever may be the event of the suit ; and such costs shall be added to any costs which the plaintiff may be entitled to receive from such defendant, or be set off against any costs which he may be ordered to pay to such defendant; but payment thereof shall not be otherwise enforced without the lea'^^e of the Court. This R. corresponds with Cons. Ord. XL., r. 15. 257. — Where no account, payment, conveyance or other relief is sought against a party, but the plaintiff (or the defendant under a counter-claim) requires such party to appear to the statement of claim or counter-claim, the costs occasioned by such party having been required so to appear, and the costs of all proceedings consequent thereon, shall be paid by the party requiring such appearance, unless the Court shall otherwise direct. This E. is adopted from Cons. Ord. XL., r. 16, and extended to the case of a counter-claim. Persons who, having the same interest as the plaintiffs, decline to be co-plaintiffs, may have their costs under this E. {Abram o. Ward, 6 Ha. 170.) RULES OF COUBT. 167 258. — Expenses incurred in consequence of affidavits being prepared or settled by Counsel shall be allowed only when the Master shall in his discretion, and on consideration of the special circumstances in each case, think such expenses properly incurred ; and in such case he shall be at liberty t9 allow the same, or such parts thereof as he may consider just and reasonable, whether the taxation be between solicitor and client, qr between party and party. This E. is taken from Cons. Ord. XL., i. 17. See B. 263. It does not take the question of the costs oat of the discretion of the Court (see Davies v. Marshall, 1 Dr. & Sm. 354). Compare B. S. C. (costs), VII., i. 13 : — Such, costs of pro- curing the advice of Counsel on the pleadings, evidence, and pro- ceedings in any cause or matter, as the Taxing Master shall, in his discretion, think just and reasonable, and of procuring Counsel to settle such pleadings and special affidavits, as the Taxing Master shall, in his discretion, think proper to be settled by Counsel, are to be allowed ; but, as to affidavits, a separate fee is not to be allowetl for each affidavit, but one fee for all the affidavits proper to be so settled, which are or ought to be filed at the same time. This r. (eo. far aa regards affidavits) supersedes in England the B. in the text, but of course it is otherwise here. 259. — Where a suit which stands for hearing is called on to be heard, but cannot be decided by reason of a want of parties, or other defect on the part of the plaintiff, and is therefore struck out of the paper, and the same suit 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. This B. corresponds with Cons. Ord. XL., r. 21. Where it is plain on the face of the statement of claim that a suit is defective for want of parties, a defendant raising the objection is entitled, if the hearing stands over to add parties, to the costs of the day, although he may have not taken the objection by his answer [Eowsell v. Morris, 17 Eq. 20, and cases there cited). But, where defendants admitted by their answer that all persons interested were parties, and at the hearing objected for want of parties. 168 RULES OF COUET. and the objection prevailed, it was held that, having misled the plain- tiff, they ought to pay him the costs of the day {Price v: Berrington, 2 Beav. 285 ; and see WiUon v. Broughton, 7 L.J. Oh. 120). As to a defect of parties through an event happening after the suit is at issue, see Sambrooke u. Hayes, 6 L.J. Ch. 258 ; Fussell v. Elwin, 7 Ha. 29. It is the duty of a plaintiS to come fully prepared at the hearing to ask the Court for a decree ; and, if he is not so prepared, and the suit appears defective from his default, it is then a matter of discretion or indulgence to grant him leave to supply the defect {Bierdermann v. Seymour, 1 Beav. 594). Wbeu a cause was set down as "short," and struck out, the Defendants were held entitled to their costs of the day, unless they had concurred (Mellish v. Brooks, O.P. Cooper, 474). See notes to B. 168. 260. — Where a suit, being in the paper for hearing, is ordered to be adjourned upon payment of the costs of the day, the party to pay the same shall pay the sum of ten pounds, unless the Court shall otherwise direct. This B. is taken from Cons. Ord. XL., r. 22. 261. — Where a party gives a notice of motion, and does not move accordingly, he shall pay to the other side costs to be taxed by the Master, unless the Court itself shall direct what sum shall be paid for costs. This E. is taken from Cons. Ord. XL., r. 23. As to what is an abandoned motion, see Morgan and Wurtzburg, 65. The Court has allowed the costs of an abandoned motion at the close of the seal {i.e., the time devoted to motions) — the motion pre- sumably not having been saved — subject to the case being mentioned by the other side in the course of the day (Yeits v. Biles, 25 W.E. 452). But the usual course is to apply for the costs on the next seal after that for which notice was given ( Woodcock v. Oxford, &c., Co., 17 Jur. 33 ; and see Wedderiume v. Llewellyn, 13 W E. 989). They must not be applied for on any later day, e.g., at the hearing, or on speaking to minutes {Eccles v. Liverpool Borough Bank, Johns. 402). Where a defendant procures a dismissal of a, suit for want of prosecution, without having made a motion of which he had given notice, the plaintiff cannot afterwards obtain an order for the payment of the costs of such motion, as being abandoned {Farqaharson v. Pitcher, 4 Euss. 510). ' RULES OF COURT. 160 A person in contempt cannot apply for the costs of an abandoned motion {Ellis v. Wahmsley, 4 L.J. Ch. 461). While the costs of an abandoned motion remain unpaid, no othet motion for the same purpose can be made (Belkhaniber v. Okmi, 3 Madd. 750). 262 — Where two or more Counsel appear for the same party upon the hearing of any suit or matter, and it appears to the Master to have been proper for the party to retain such Counsel to appear, the costs occasioned thereby shall be allowed. This R. corresponds with Cons. Ord. XL., r. 20, with the addition of the words italicised in the text. It will be seen that, with regard to the number of counsel employed on a side, the colonial practice is more liberal than th6 English. Consider Sandemanv Hinton, 1 N.S.W. R. 50 ; Goode. v. Onslow, 2 N.S.W. R. 278. 263. — Where costs are to be taxed as between party and party, the Master may allow to the party entitled to receive ■ such costs all such just and reasonable expenses as appear to have been incurred in Advising with Counsel as to the institution or defence of the suit ; The service and execution of writs, and the service of orders, notices, petitions, and summonses ; Advising with Counsel on the pleadings, evidence, and other proceedings in the suit ; Procuring Counsel to settle and sign pleadings and such petitions and affidavits as may appear to be proper to have been settled by Counsel ; See R. 258. Procuring consultations of Counsel, and procuring the attendance of Counsel in the Master's Office where the Master may consider the case proper for Counsel to attend ; Procuring evidence by deposition or affidavit, and the attendance of witnesses, and supplying Counsel with copies of [or] extracts from necessary docu- ments. 170 EULES OF COUBT. 264.: — But, in allowing such costs, the 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 th^e desire of the party. These two EB. oorrespond with Cons. Ord. XL., r. 32, with the addition of the words italicised in the text ; from which it will be seen that here again the colonial practice is the more liberal. E. 264 (being the latter part of Cons. Ord. XL., r. 32) has been re- adopted in England by B. S.C. (costs), Ord. VI., r. 26 (see Warner v. Mosses, 19 C D. 72). 265. — Any party who may be dissatisfied with the allow- ance or disallowance by the Master of the whole or any part of any item or items in any bill of costs may, at any time before the certificate is signed, deliver to the other party interested therein, and carry in before the Master, an objection in writing to such allowance or disallowance, specifying in a short and concise form the matter objected to, and may thereupon apply to the Master for a summons to review the taxation in respect of the same. This B. corresponds with Cons. Ord. XL., r. 33, except that a summons is substituted for a warrant. Cons. Ord. XL., r. 33, has been re-adopted by E.S.C. (costs), Ord. VI., r. 30, with a modification, the last clause reading simply, " apply to the Taxing Officer to review," &a. . The party carrying in an objection is only bound to state the items to which he objects, not the reasons of his objection (Simmoiis v. Storer, U CD. 154). 266. — ^Upon the application for such summons, or upon the return thereof, the Master shall reconsider and review his taxation upon such objection ; and he may, if he shall think fit, receive further evidence in respect thereof ; and, if so required by either party, he shall state either in his RULES OP COUET. 171 certificate of taxation, or by reference to such objection, the grounds and reasons of his decision thereon, and any special facts or circumstances relating thereto. This E. corresponds with Cons. Ord. XL. , r. 34, except as men- tioned in the last note. As re-adopted by E.S.C. (costs), Old. VI., r. 31, it reads simply, "upon such application, " &e ', which avoids the difficulty now to be noticed. The E. in the text seems to contemplate that the summons shall be returnable before the Master himself. If the Master should adhere to his taxation, he should, it is submitted, if he has granted a sum- mons, first sign his certificate, and then adjourn the summons to review to the Judge ; it will then form an application under the next E. But the better course would seem to be for the Master to reconsider his taxation on the application for a summons to review ; then, if he adheres to his taxation, to grant the summons, have it brought on before him pro forma, and at onoe and without argument adjourn it to the Judge. It cannot be contended thai there should be one summons before the Master, and a second and independent summons before the Judge. The difficulty is caused by the E. making the summons returnable before the Master. Where a party, objecting to the Master's disallowance, did not take proper steps to satisfy him when the matter was in his office, he was, though successful on an application to the Court to review the taxation, ordered to pay the costs (Sturge v. Dimsdale, 9 Beav. 170). 267. — -Ajiy party vsrho may be dissatisfied with the cer- tificate of the Master, or with his allocatur, if the costs form a sum to be afterwards inserted in a report or certificate, may, as to any item or part of an item which may haye been objected to, apply to the Court for an order to review the taxation as to the same, and the Court may thereupon make such order as to the Court shall seem just. But the certificate or allocatur of the Master shall be final and conclusive as to all matters which shall not have been so objected to. This E. corresponds with Cons. Ord. XL., r. 35, with the omission of the words requiring the application to be made by summons in chambers (see Webster v. Manby, 4 Ch. 372). See notes to last E. 172 BULKS OF COURT. As to what matters will be entertained on an application to review taxation, see Morgan and Wurtzburg, 480. 268 — Such applications shall be heard and determined, upon the evidence which shall have been brought in before the Master ; and no further evidence shall be received upon the hearing thereof, unless the Court shall otherwise direct. This E. corresponds with Cons. Ord. XL., r. 36. An affidavit of what took place before the Master is inadmissible {Stitrge v.'Dmsdale, 9 Eeav. 175). 269. — Upon interlocutory applications, where the Court deems it proper to award costs to either party, the Court may order payment of a sum in gross, in lieu of taxed costs, and direct by and to whom such sum in gross shall be paid. This E. is taken from Cons. Ord. XL., r. 37. Wood, V.C, once said that the Court would not act under this E., unless the parties were poor, and anxious to put an end to the matter (London, Clerical direotionB as to, 77 Contents of, 14, 9o Counter-claim, to, 110 Denial or non-admission in, 94 Expiration of time, not' to be put in after, without leave, 13 Form of, 93 Oath, to be on, 110 Omission to file, proceedings ou. 111 Passage, single, may be read from, 121 Separate, costs of, 165 Time for, 110 Transmission and filing of, 78 Stat op Proceedings on Appeal, 65 Stop Okdeks, 160 S'l'EiKiNG Out, Counter-claim, 110 Scandal, Ac, 83, 147 SnBPOLNA, 25, 88 Suit Book, 77, 79 Summons, Peremptory, before Master, 144 Proceeding on, 55, Ml, 161 Service of, 146 Signed by whom, 78 sopplement, 53, 127 Taxation, 170-173 Time, 161 Further, power to grant, 13 Security for costs, wlidre order made to give, 106 Tbial, Jury, by, 28, 122 New, 122 Trustees, New, Appointment of, 148 Tkusts, Some only, may be executed by Court, 9 Vbediot, 124 Setting aside, 123 Witness, Examination of, judge may require, 32. And see Evidence Wbits, Assistance, of, 138, 139 Attachment, of, 80, 113, 114, 134, 138, 140 Delivery, of, 140 Fi.fa. of, 134, 138, 139 Habere facicts, of, 139 Inquiry, of, 123 Sequestration, of, 134, 138, 140 Signing and sealing of, 78 i-:v-'-D (P'( SOLIGITOr; )r- 1. !-: ■* SYDNEY : GIBBS, SHALLARD, AND CO., PEINTBtlS, PITT STRBET. EQUITY RULES. ^6th September, 1889. In pursuance of the several powers vested in us in that behalf, we do hereby order and direct that the following Consolidated Standing Rules of 29th June, 1883, be hereby repealed, viz. : — Kules 4, 6, 11, 13, 26, 27, 28, 38, 58, 63, 64, 66, 68, 69, 73, 74, 75, 77, 78, 79, 81, 89, 96, 97, 98, 99, 100, 101, 102,' 103, 108, 109, 110, 120, 121, 123, 124, 128, 139, 142, 143, 144, 145, 146, 147, 148, 149, 150, 155, 188, IQl, 192, 193, 195, 196, 197, 198, 202, and 271. And in further pursu- ance of the said several powers we do hereby further order and direct in manner following : — Pkoceedings Geneballt. 1. All statements of claim, statements of defence and subsequent pleadings, interrogatories, answers, and exceptions, and copies thereof respectively, and all petitions, reports, decrees, and decretal, and other orders shall be on foolscap paper, written briefwise on one side only, with a quarter margin, and having not less than six folios nor more than eight f oliqg of seventy-two words on eaih page, and divided into convenient paragraphs with the numbers of the paragraphs severally written on the inner edge of the margin. 2. All orders, except Chamber orders, and all decrees shall be signed and passed by the Master, and then sealed with the seal of the Court and entered in the entry-book. 3. All statements of defence, sworn pleas, and answers to inter- rogatories shall be taken before the Master or Chief Clerk and filed forthwith : Provided that statements of defence, sworn pleas, and answers of any party residing more than five miles from the Equity OfSce may be taken before a Commissioner of Affidavits or a Justice of the Peace, and the same shall be immediately sealed up and indorsed by such Commissioner or Justice of the Peace as aforesaid, as the case may be, with his signature and transmitted to the Equity Office with the least possible delay, and filed on receipt thereof ; and the signature of the party swearing the same shall be affixed or acknowledged by such party in the presence of the person before whom the same are sworn. 4. On the filing of any statement of defence, or any subsequent pleading, plea demurrer, interrogatory, or answer, an att ested copy thereof shall be forthwith served on the opposite party. ' Inteelocutobt Applications. 5. Interlocutory applications in a suit may be made by motion or petition and supported by affidavit or otherwise, according to the present practice of the Court, save only that applications for orders of course may be by summons in Chambers, and that a petition shall be used in applications for special orders where so provided by -Act of Parliament, or where, from the ciroumstauceB of the case or the position of the parties sought to be affected by the order applied for, the notice of motion would not sufficiently convey information of the facts and circumstances upon which the application is based. 6. Any party to a suit may at any stage thereof apply by motion on notice to the Court for such order as he may, upon any admission of fact in the pleading, or under the 36th of these Eules, be entitled to, without waiting for the determination of any other question between the parties (provided that where the execution of a docu- ment is admitted, such document may be put in evidence), and the Court may, on such application, give such relief, subject to such terms, if any, as the Court may think fit. 7. Every petition shall, upon being presented and before any copy thereof is served upon any person intended to be served there- with, be filed in the Equity Office, and every person intended to be served with a copy of such petition shall be served with a written copy thereof according to the practice in reference to the service of statements of claim, together with an indorsement thereon, in the form or to the effect set out in Schedule A to these Eules, with such variations as circumstances may require, stamped with the proper stamp by one of the clerks of the Equity Office. Service. 8. Where any party shall proceed or appear in person, he shall except in the case of statements of claim and appearance thereto, hereinafter provided for, leave a memorandum in writing in the Equity Office, at the time of his taking the first step in the matter, setting forth his full name and address ; and also if his address shall be at some place more than one mile from the Equity Office another proper place to be called his address for service which shall not be more than one mile from the said Equity Office ; an ' service at the address for service set forth in the said memorandum shall be good service on him. PLEADimaS G-ENBBALLT. 9. Statements of claim, statements of defence, and all subsequent pleadings, demurrers, and pleas shall, except by leave of the Court, be signed by counsel. Statements or Claim. 10. Any person or persons trading under the name of a firm may be sued in the name of a firm, and any party to a suit may in such case apply by summons to the Court for a statement of the person or persons who are trading under the name of such firm, to be furnished in such manner and verified on oath or otherwise as the Court may direct. Statements of Defence. 11. When a defendant does not know, and is not in a position either to admit or deny a fact alleged in the plaintiff's statement of claim, he mn.y state that he does not know, and that he is not able to admit that fact. 12. It shall not be sufficient for a defendant in Hs defence to deny generally the facts alleged in the statement of claim, or for a plaintiff in his reply to deny generally the facts alleged in a defence by way of counter claim ; but each party must deal specifically with each allegation of fact of which he does not admit the truth. 13. Where any defendant sets off or sets up any right or claim by way of counter claim, he shall in his statement of defence state specifically that he does so by way of set-off or counter claim, and shall pray specifically for the relief that he may consider himself entitled to. 14. Subject to the last preceding Eule, the plaintiff by his reply may join issue upon the defence, and each party in his pleading, if any, subsequent to reply, may join issue upon the previous pleading. Such joinder of issue shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined ; but it may except any facts which the party may be willing to admit, and shall then operate as a denial of the facts not so admitted. 15. Where a defendant disputes the validity of a patent, he shall deliver to the plaintiff at the time of delivering his statement of defence, or within such further time as the Court may direct, particulars stating on what grounds he disputes it, and where one of the grounds is want of novelty, must, unless the Court shall otherwise direct, state the time and place of the previous publica- tion or user alleged by him ; and at the hearing no evidence shall, except by leave of the Court, be admitted in proof of any alleged infringement or objection of which particulars are not so delivered. Indoesembnt on Statement op Claim. 16. The indorsement on a, statement of claim shall be varied from the form set out in the Schedule of the Equity Act of 1880, and shall be as follows — VICTORIA E. To the within-named defendant A.B. [or where there is more than one defendant, defendants A.B. and C.D.J greeting : We com- mand you [and every of you where there is more than one defendant"] that within days after the service hereof on you, exclusive of the day of such service, you cause an appearance to be entered for you in the Equity Office of our Supreme Court to the within statement of claim. And that you do, at the same time of entering yovir appearance, file in the Equity Office a memorandum stating in effect that you dispute or admit in whole or in part the plaintiff's claim, or submit to such decree or order as the Court may think fit to mate, or disclaim all right, title, or interest in the subject matter of the within statement of claim. And if you admit the plaintiff's claim, you may, on the Tuesday following the eighth day after such appearance, or so soon after as you can be heard, attend either personally or by counsel or solicitor before the Judge sitting in Chambers at Chancery-square, in the City of Sydney, at ten of the clock in the forenoon, and submit to such decree as is within prayed or shall be just. Witness the Honourable A.B., the Primary Judge in Equity, at Sydney, the day of , in the year of our Lord one thousand eight hundred and eighty- , and in the year of our Keign. Note. — Appearances are to be entered in the Equity Office of the Supreme Court, at Chancery-square aforesaid, and if you neglect to enter your appearance, or to file a memorandum as above mentioned, or personally or by counsel or solicitor to attend at the place and time aboTe mentioned, you will be subject to such OL-der as the Court may think fit to make in your absence. IT. The solicitor of a plaintiff suing by a solicitor shall indorse upon every statement of claim the address of the plaintiff, and also his own name or firm and place of business, and also, if his place of business shall be more than one mile from the Equity O&ce, another proper place to be called his address for service, which shall not be more than one mile from the Equity Office, where writs, notices, petitions, orders, summonses, warrants, and other documents, proceedings, and written communications may be left for him. And when any such solicitor is only agent of another 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. 18. A plaintiff suing in person shall indorse upon every statement of claim, his place of residence and occupation, and also, if his place of business shall be more than one mile from the Equity Office, another proper place to be called his address for service, which shall not be more than one mile from the Equity Office, where writs, notices, petitions, orders, summons, warrants, and other documents, proceedings, and written communications may be left for him. Appearance. 19. The solicitor of a defendant appearing by a solicitor shall state in such memorandum his place of business, and a place to be called his address for service, which shall not be more than one mile from the Equity Office. 20. A defendant appearing in person shall state in such memorandum his address, and a place to be called his address for service, which shall not be more than one mile from the Equity Office. 21. If the memorandum does not contain such address, it shall not be received; and if any such address shall be illusory or fictitious, the appearance may be set aside by the Court, on the application of the plaintiff. Default op Appearance. 22. Where any defendant, not being an infant or a person of weak or unsound mmd, unable of himself to defend the suit, is duly served with the statement of claim, and does not enter an appearance thereto within the time limited by the indorsement, the plaintiff may, after seven days from the time so limited for appearing thereto, apply to the Court on affidavit of service of the claim for a decree or order against such defendant in his absence, and thereupon the Court may, if satisfied of the due service of the claim, make such decree or order, or give such directions as to the taking of evidence and otherwise, for the further prosecution of the suit, as may seem just. 23. A defendant, notwithstanding his default of appearance, may at any time apply to the Court for leave to appear and defend upon such terms as to costs and otherwise as the Court may direct. SECtTBITT FOR COSTS. 24. If it appears upon the statement of claim or otherwise, at any time during the prosecution of the suit, that the sole plaintiff, if only one, is, or if more than one, all the plaintifEs are, residing out of the jurisdiction of the Court, the defendant shall be entitled as of course to an order for the plaintiff or plaintiffs to give security to the Master for costs. And the Court may order such security, if it shall think fit, in respect of any one or more of several plaintiffs who shall be out of the jurisdiction ; and no further proceedings shall betaken in the suit except by leave of the Court until after such security shall have been given. Demubbeb. 25. Any party may demur to any pleading of the opposite party, or to any part of a pleading setting up a distinct cause of action, ground of defence, set-off, counter claim, reply or as the case may be, on the ground that the facts alleged therein do not show any cause of action, or ground of defence to a claim or any part thereof, or set off, or counter claim, or reply, or, as the case may be, to which effect can be given by the Court as against the party demurring. 26. A demurrer shall state specifically whether it is to the whole or to a part, and if so, to what part of the pleading of the opposite party. It shall state some ground in law for the demurrer, but the party demurring shall not, on the argument of the demurrer, be limited to the ground so stated. 27. A defendant desiring to demur to part of a statement of claim, and to put in a defence to the other part, shall combine such demurrer and defence in one pleading. And so, in every case where a party entitled to put in a further pleading desires to demur to part of the last pleading of the opposite party, he shall combine such demurrer and other pleading. 28. If the party demurring desires to be at liberty to plead as well as demur to the matter demurred to, he may, before demur- ring, apply to the Court for an order giving him leave to do so j and the Court, if satisfied that there is reasonable ground for the demurrer, may make an order accordingly, or may reserve leave for him to plead after the demurrer is overruled, or may make such other order aud upon such terms as may be just. 29. While a demurrer to the whole or any part of a pleading is pending, such pleading shall not be amended, unless by order of the Court ; and no such order shall be made except on payment of the costs of the demurrer. 30. When a demurrer is overruled, the Court may make such order, and upon such terms as to the Court shall seem right, for allowing the demurring party to raise by pleading any case he may be desirous to set up in opposition to the matter demurred to. Plea. 31. A defendant may file a plea to a statement of claim within fourteen days after his appearance thereto, but not afterwards except by leave of the Court. And either party may set down the plea for argument immediately. Statement of Defence. 32. A defendant who has not filed a demurrer or plea shall file a statement of defence within three weeks after the time limited for the appearance of such defendant, or within such extended time as may be consented to by the plaintiff, or as the Court may, on application for that purpose, allow. And a statement of defence shall, except in the cases of corporations aggregate, be on oath. And corporations aggregate may put in a statement of defence under their common seal : Provided that in such case the Court may nevertheless order that a statement of defence be put in on oath by such member or officer of the corporation as it shall think fit. Eeplt and Subsequent Pleadin&s. 33. A plaintiff shall deliver his reply, if any, within two weeks after the defence or the last of the defences shall have been delivered, unless the time shall be extended by the Court. 34. No pleading subsequent to reply, other than a joinder of issue, shall be pleaded without leave of the Court, and then upon such terms as the Court shall think fit. 35. Subject to the last preceding rule, every pleading subaeq^uent to reply shall be delivered within one week after the delivery of the previous pleading, unless the time shall be extended by the Court Admissions. 36. Any party to a suit may give notice, by his own statement or otherwise, that he admits the truth of the whole or any part of the case stated or referred to in the statement of claim, defence, or reply of any other party. Close op Pleadings. 37. As soon as either party has joined issue upon any pleading of the opposite party simply without adding any further or other pleading thereto, the pleadings as between such parties shall be deemed to be closed. Amendment op Pleadings. 38. The Court may at any stage of the proceedings allow either party to alter his statement of claim, or defence, or reply, or may order to be struck out or amended any matter in such pleadings respectively as may be scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the cause ; and all such amend- ments shall be made as may be necessary for the purpose of determining the real questions or question in controversy between the parties. 39. The plaintiff may, without any leave, amend his statement of claim once at any time before the expiration of the time limited for reply and before replying, or, where no defence is filed at any time before the expiration of four weeks from the appearance of the defendant who shall have last appeared. 40. A defendant who has set up in his defence any set-off or counter claim may without any leave amend such set-off or counter claim at any time before the expiration of the time allowed him for pleading to the reply, and before pleading thereto, or in case there be no reply, then at any time before the expiration of twenty-one days from the filing of his defence. 41. When any party has amended his pleading under either of the last two preceding Kules, the opposite party may within eight days after the filing of the amended pleaiding apply to the Court to disallow the amendment, or any part thereof, and the Court may, if satisfied that the justice of the case requires it, disallow the same or allow it, subiect to such terms as to costs or otherwise as may seem just. 42. Where any party has amended his pleading under Eules 39 or 40, the opposite party shall plead to the amended pleading, or amend his pleading within the time he then has to plead, or within eight days from the delivery of the amendment whichever shall last expire, and in case the opposite party has pleaded before the delivery of the amendment, and does not plead again, or amend within the time above mentioned, he shall be deemed to rely on his original pleading in answer to such amendment. 43. In all cases not hereinbefore otherwise provided for, application for leave to amend any pleading may be made by either party to the Court, and either before or at the trial of the cause, and such amendment may be allowed upon such terms as to costs or otherwise as may seem just. 44. If a party who has obtained an order for leave to amend a pleading filed by him does not amend the same within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall on the expiration of such limited time as afore- said, or of such fourteen days as the case may be become ipso facto void, unless the time be extended by the Court. 45. Whenever any pleading is amended, such pleading when amended shall be marked with the date of the order, if any, under which the same is so amended, and of the day on which such amendment is made, in manner following, viz. : " Amended day of ." 46. Whenever a party has obtained leave to amend any pleading, and the amendments are so Inconsiderable that no re-engrossment is required, he shall thereupon give notice to the opposite party of such amendments, and the attested copy of such pleading when so amended (or, if the amendment be of such a nature as to require a new engrossment, then an attested copy of such new engrossment) shall at the time such amendment is made or a new engrossment filed (if requiring no new appearance), be served on the solicitor of the opposite party. But if a new appearance be required, the amended attested copy or an attested copy of the new engrossment shall be served on the opposite party, together with the indorsements thereon. iNTEBEOaATOKIES. 47. A plaintiff may, by leave of the Court, at any time before the expiration of fourteen days after the suit is at issue, file interroga- tories for the examination of a defendant; and the defendant shall, on oath, answer such interrogatories and file such answers within fourteen days after the service of the interrogatories on him : And the answer shall be deemed sufficient, unless exceptions are filed thereto within seven days after the filing of such answer. 48. A defendant may, by leave of the Court, and either at the time of filing his statement of defence or subsequently before the expiration of fourteen days after the suit is at issue, file interroga- tories for the examination of the plaintiff, to which interrogatories shall be prefixed a concise statement of the subjects on which a discovery is sought. And the plaintiff shall, on oath, answer such interrogatories and file such answer within fourteen days after service on him of the said interrogatories : And the answer shall be deemed sufficient, unless exceptions are filed thereto within seven days after the filing of such answer. Provided always that it shall not be competent to any defendant to file Interrogatories untU he has answered any interrogatories previously filed by the plaintiff for his examination. 49. Under special circumstances the Court may allow either party to file interrogatories at a later period in the suit. EXCKPTIONS FOR InSUFFIOIENCT. 50. Exceptions for insufficiency may be filed to any answer or further answer to interrogatories within seven days after the filing of such answer or further answer. And such exceptions shall describe the passages which are alleged to be insufficient. 51. Where exceptions are allowed the Court may direct that a further answer be filed, or that the party in default be examined viva voce. Setting down Suits foe HEAEiNa. 52. Within seven days after a joinder of issue, the plaintiff shall set down the suit for hearing on some day, except by leave of the Court, not earlier than the fourteenth nor later than the twenty-eighth day after so setting down the suit ; and the plaintiff shall forthwith serve notice of the suit being so set down for hear- ing upon all the defendants thereto. 53. If the plaintiff does not set down the suit for hearing within seven days after a joinder of issue, any defendant may set down the suit for hearing, within like periods as hereinbefore provided for setting down by the plaintiff, and shall forthwith serve on the plaintiff and the other defendants notice thereof. Default of Pleading. 54. If the plaintiff does not file a reply or demurrer, or any party does not file any subsequent pleading or a demurrer, within the period allowed for that purpose, the pleadings shall be deemed to be cloaed at the expiration of that period, and the statements of fact in the pleading last filed shall be deemed to be admitted. 9 55. A.ny decree or order by default may be set aside by the Court, upon such terms as to costs or otherwise as such Court may think fit. Dismissal toe want of Pbosbcittion. 56. Any party may move to dismiss a suit or counter claim for want of prosecution when the opposite party has not, within the time fixed by the Eules in that behalf or by an order of the Court, taken such step as may be then necessary in the suit or counter claim. 57. Upon any application to dismiss a suit or counter claim for want of prosecution, the Court may make an order to that effect, or such other order, or may impose such terms, as may appear just and reasonable. Decrees and Oedbes. 58. The party who has the carriage of any decree or order shall, within ten clear days of the same being pronounced, or within such further time as the Court shall direct, lodge the minutes of the same in the Equity Office, and take out an appointment to proceed therein. 59. Where in any suit a set-off or counter claim is established as a defence against the plaintiff's claim, the Court may, if the balance is in favour of the defendant, make a decree for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case. Appeal. 60. Notices within Eules 183 and 184 of the Consolidated Stand- ing Kules of 29th June, 1883, may be signed by one counsel. Eepbeences. 61. Proceedings on reference to the Master shall be by summons or appointment signed by him. Such summons may be in the form set forth in Schedule 9 to the Consolidated Standing Eules of 29th June, 1883, and such appointment may be in the form set forth in Schedule B to these Eules. 62. When a reference has been made by the Court to the Master or Chief Clerk to settle any decree or order, the Master or Chief Clerk shall direct what proceedings shall be taken thereunder, and the decree or order so settled shall be submitted to the Court for approval. 63. In directing what proceedings shall be taken under any decree or order the Master may direct what parties are entitled to attend future proceedings, the necessary advertisements, and which of the several proceedings may be properly going on pari passu, and the manner in which inquiries and accounts are to be prosecuted, and the evidence to be adduced in support thereof ; and if the Master shall think it expedient so to do, a certain time or certain times shall be fixed within which the parties are to take any pro- ceedings, and all such directions may afterwards be added to or varied from time to time. 64. Where the party entitled to prosecute a decree or order does not proceed therein within the time fixed or limited for that purpose by the Court or Master, or by any Eule for the time being in force in that behalf, then the Court or Master may, upon the 10 production by any other party, interested either as a party to the suil or as one who has oome in and established his claim under the decree or order of the certificate of the Clerk of the Eecords in the Equity Office, that the party entitled to prosecute such decree or order has not proceeded therein within such time as aforesaid, commit to such other party the further prosecution of the said decree or order, and from thenceforth the party making default shall not be at liberty to attend as prosecutor of the said decree or order, and the certificate shall be indorsed accordingly, and such indorsement shall be signed by the Master. 65. No more than one summons or appointment shall be taken out for the time during which the Master or Chief Clerk shall continue or adjourn the proceedings under such summons or appointment. 66. Every summons or appointment before the Master or Chief Clerk shall be considered peremptory, and in case the Master or Chief Clerk shall not be attended by the solicitor or a competent person on behalf of the solicitor of any party, the Master or Chief Clerk shall in such case disallow the usual fee for the solicitor's attendance, and he shall mark such determination in his book. 67. Where some or one, but not all the parties, shall attend the Master or Chief Clerk at an appointed time, whether the same be fixed by the Master or Chief Clerk personally or upon summons or appointment, then the Master or Chief Clerk shall be at liberty to proceed em parte if he thinks proper considering the nature of the case, so to do. 68. When the Master or Chief Clerk has proceeded ex parte, such proceeding shall not be reviewed by him unless he shall, upon special application made to him for that purpose by the party who was absent, be satisfied that the party was not guilty of wilful delay or negligence. •69. Every summons or appointment to proceed upon any matter before the Master or Chief Clerk shall be issued and served two clear days before the time fixed, and, upon any pro- ceeding whereon evidence is to be given, the Master shall be at liberty to direct from time to time that evidence shall be taken separately upon any selected point or points, and the evidence shall be taken accordingly. Costs. 70. Where it is directed that costs shall be taxed in case the parties, differ about the same, the party claiming the costs shall bring the bill of costs into the Equity Office, and give notice of . his having so done to the other party; and at any time within eight days of such notice, such other party shall have liberty to inspect the same, if he thinks fit. And at or before the expiration of the eight days, or such further time as the Master shall in his discretion allow, such other party shall either agree to pay the costs, or signify his dissent therefrom, and shall thereupon be at liberty to offer payment of a sum of money for the costs. But, when he makes no such offer, or when the party claiming the costs refuses to accept such offer, the Master shall proceed to tax the costs; and when the taxed costs shall not exceed the sum offered, the costs of the taxation shall be borne by the party claiming the costs. 11 'J'lMB OF OpBBATION, &C. 71. These Rules are to be read with the Consolidated Standing Rules of June, 1883. 72. Such of these Rules as relate to pleadings shall not apply to any pending suit in which a statement of defence has been filed, except by leave of the Court. 73. These Rules shall come into operation on the 16th day of September, 1889, and shall apply to any proceedings commenced on or after that date. 74. These Rules may be cited as the "Consolidated Standing Rules of September, 1889." FREDK. M. DARLEY, C.J. W. C. WINDEYER, J. M. H. STEPHEN, J. WM. OWEN, J. GEO. HIBBERT DEEFELL, J. "W. J. POSTER, J. SoHBrtrLE A. In the Supreme Court of New South Wales. In Equity. The day of , in the year of our Lord one thousand eight hundred and Let all parties concerned in the matter of the within Petition attend before the Honourable William Owen, Primary Judge in Equity, at this Court, on , the day of , at o'clock in the forenoon, and hereof let all parties havei due notice. Chief Clerk in Equity. Schedule B. In the Supreme Court of New South Wales. In Equity. (Short title of cause or matter.) I APPOINT the day of , at my chambers, Equity Office, Chancery-square, to [settle minutes of order of, ^c, or as the case may be']. Dated the day of 18 . Master in Equity. PREDK. M. DARLEY, C.J. W. C. WINDEYER, J. M. H. STEPHEN, J. WM. OWEN, J. GEO. HIBBERT DEFEELL, J. W. J. FOSTER, J. In the Supreme Court of New South Wales. IN EQUITY. Regul^ Generales. The 27th day of September, a.d. 1889. In pursuance of the powers vested in ua by the "Equity Act of 1880," ami of all other powers in that behalf enabling us, we do order as follows : — 1. All rules now in force for fixing the amount of fees and allowances to Solicitors for any proceeding in Equity are hereby repealed. 2. The amount of fees and allowances to Solicitors in reference to proceedings in Equity shall be those mentioned in the annexed scale. 3. These Rules shall come into operation on the 7th day of October, 1889, and shall apply to any proceedings commenced on or after that date. £ 8. 7 d. £ 8. 6 to 1 d. 1 5 to 3 to 10 7 10 5 10 10 5 6 to 1 to ] to 1 to 1 to 1 to 10 Scale referred to. Inatructiona To sue or defend From For statement of claim, statement of defence, special case on petition From For replication or interrogatories From For documents to be brought into Master's Office, such as charges, discharges, or statement of facts From To amend any pleading From For affidavit From To appeal From For or in opposition to any motion to be made in Court From For or in opposition to any application in Chambers From For brief on hearing of suit, such fee may be allowed as the taxing officer stall think fit, having regard to the number of witnesses whose proofs shall have been taken, the time occupied in making searches and in procuring evidence, and to all the circumstances of the case For brief on motion, or on further consideration, or on appeal, or on examination of witnesses de bene esse From 10 _ to 2 For brief on application in Chambers From 7 " 6 to 1 Drawing Pleadings and other Documents. Statement of claim or statement of defence 10 '^r per folio • 16 Replication, interrogatories, demurrer, plea, special case, statement of facts, charge, discharge, petition, minutes, affidavit, order, accounts, statements, advertisement, summons in Chambers, or pleading of any kind 5 Or per folio 16 Will, conveyance, or other deed, per folio From 1 6 to 2 Briefs per sheet (including copy) 10 Orper folio 2 Bills of costs for taxation including copy for the taxing officer, per folio 16 Indorsement on statement of claim under 13th section of Equity Act of 1880... 5 Indorsement of fiat on petition 3 Marking each exhibit to affidavit 10 Copies. £ s. d. Of statement of claim and all other documents where no other provision is made 1 Or per folio , 6 If attested, per folio 8 Of briefs, per sheet of 6 folios 3 6 Engrossment on parchment of any will or deed, per folio 8 Of any documents for printer, per folio 6 For printing, the amount actually and properly paid to the printer Perusals. Of statement of claim, statement of defence, and other pleading by the Solicitors of the party to whom the same are delivered 7 6 Or per folio ' 6 Of special affidavits by the Solicitor of the party against whom the same can be read — each affidavit, per folio 6 Of printed proof and revise, per folio , 2 Writs and Summonses. Writ of subpoena ad testificandum or duces tecum including prsecipe and attending to issue, but not including fees paid 12 6 Writ of execution, including affidavit of demand, praecipe, attending to issue and attending lodging with Sheriff, and fees paid on issuing and lodging with Sheriff 2 5 All other writs, drawing, and engrossing, at per folio 2 Services and Notices. Service of statement of claim, petition, order, or other document on a party personally From U 7 6 to 15 If served at a distance of more than two miles from the place of business of the Solicitor serving the same, for each mile beyond such two miles therefrom 10 Where, in consequence of the distance of the party to be served, it is proper to effect such service through a bailiff or agent, for correspondence in addition 7 6 Where more than one attendance is necessary to effect service such further allowance may be made as the taxing officer shall think fit Service of any statement of claim, statement of defence, replication, petition, or other similar document on the Solicitor of the opposite party 5 For preparing and serving on Solicitor of opposite party, notice of appearance, of trial, or of hearing 5 For preparing and serving notice to produce or notice to admit 7 6 If special, or necessarily long, such allowance as the taxing officer shall think proper, not exceed ing (including copy and service) per tolio 2 For preparing notice of motion 5 Or per tolio 16 Copy for service 2 Or per folio 6 For service of notice of motion, summons in Chambers, or appointment on Solicitor of other party 2 6 For preparing any necessary or proper notice not otherwise provided for, in- cludmg copy and service on Solicitor of other party 5 Or at per tolio 2 Attendances. To file statement of claim and have summons indorsed stamped 5 To file petition, including obtaining signature to fiat indorsed 5 To swear and file statement of defence 7 6 To enter appearance, file affidavit, notice of motion, copy chamber summons, Judge's order, or other similar document... 2 6 5 to 10 10 5 to 10 5 to 10 1 10 2 2 to 3 3 15 £ o. d. £ s. To obtain consent of next friend to sue in his name or of a guardian ad litem .: 10 At Master's Office to obtain decree or order after being passed and entered 5 To inspect or produce for inspection documents pursuant to a notice to admit From For every hour after the first To obtain or give any necessary or proper consent From To obtain an appointment to examine witnesses de bene esse From On examination of witnesses before Master in Equity, Com- missioner, or other person with counsel For every hour after the first On examination of witnesses de bene esse without counsel... From Every hour after the first If examination more than two miles from place of business of Solicitor, then such additional allowance as the taxing officer may deem reasonable On deponent to read over and with him to be sworn to affidavit From By a Solicitor or his clerk to be sworn to an affidavit On a summons in Chambers with counsel From If without counsel From To file Chief Clerk's and Taxing Master's certificates, or to get copy marked as an office copy From On counsel, with brief or other papers — If counsel's fee one guinea If more and under five guineas If five guineas and under twenty guineas If twenty guineas If more than twenty guineas On consultation or conference with counsel From To enter or set down suit, special case, or appeal for hearing or trial In Court on hearing of motion, special case, petition, appeal, or'Hiny other hearing where no witnesses examined From To present petition for order of course and for order In Court on every suit or special motion when same in list and not heard On hearing of any suit per day where witnesses examined.... From To hear judgment Before Master or Chief Clerk on any appointment, settlement of minutes, or inquiry, or for any purpose whatsoever necessary in the progress of the suit or proceeding From On taxation of bill of costs From Unless the same shall necessarily occupy so much time that the taxing officer shall consider such amount inadequate, in which case he may allow such further fee as he shall think proper To obtain or give undertaking to appear 5 At Gazette Office or other newspaper with notice for insertion 5 On counsel to procure certificate that cause proper to be heard as a short cause 10 To procure signature of judge to any order in chambers 7 To examine an abstract of title with deeds, per hour, in a cause or matter 10 To produce deeds for such purpose, per hour 5 To obtain appointment to tax or other appointment neces- sarily signed by the Chief Clerk or other clerk in the office of the Master in Equity, and including drawing, copy, and service of any such appointment {but not in- cluding fees paid) 7 5 10 1 to 10 5 to 1 to 3 5 to 7 7 5 10 15 1 2 6 to 2 5 1 to 3 7 5 15 to 7 1 7 10 6 to 2 to 3 4 £ s. d. £ s. d. If served on more than one party,. for every additional party 5 0' On printer, and instructing him < 10 0- For examining the proof print at per folio ...,,.A,.^jj,, ' 2 Attending to return proof. 'XI 5 0- Examining revise From 5 to 1 Attending to search cause list during each Term Prom 10 to 2 0- Term Fees, Lbttbks, &o. Term fee, for every Term during which any proceeding shall be taken in the suit 15 And further, in country agency, suits for letters 6 0- Where no pjjooeeding in the cause or matter is taken which carries -a Term fee, a charge for letters niay be allowed if the circumstances require it „ For letter before suit, and every necessary letter during the courseof asuit : ..From 3 6 to 7 6 For circular letters, after the first letter, for each letter...... 1 ft In addition to the above, an allowance is to be made for special letters, and for the necessary expense of postages, carriage, and transmission of documents , AliLOWANCES TO TOWN WITNESSES. Merchants, bankers, master mariners, and professional men, per diem Prom 15 to 1 Tradesmen, auctioneers, accountants, and clerks, per diem... From 7 6 to 15 0- Artizens, journeymen, sailors, labourers, and the like, per diem ; ..From 6 to 7^6. Allowance to Country Witnesses. From four shillings to eight shillings per day, in addition to the abovementioned allow- ances, and in addition to the sum reasonably paid for travelling expenses. FREDK. M. DARLEY, C.J. W. C. WINDEYER, J. WM. OWEN, J. GEO. HIBBERT DEFFELL, J. F. Cunninphnnie & Co., Printers, 140 Pitt-atreet, Sydney, ^/ % mil