Digitized t't KD , Cornell University Law Library The Moak Collection PURCHASED FOR 1 The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST OEAN OF THE SCHOOL By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS Digitized by Microsoft® THE KD 7194?P39" """"""" "■"""* ^'"^liuteini'iMimiui,?''*''' "' ^' Court of 3 1924 021 727 890 JUDGMENTS AND OEDEKS THE COURT OF APPEAL AND HIGH COURT OF JUSTICE, CHIEFLY IN BEFEEENCB TO ACTIONS ASSIGNED TO THE CHANCEEY DIVISION. BY LOFTUS LEIGH M:MBBRT0N, ONE OP THE KEQISTBABS OF THE StTPEEME COtlET OF JXIDICATDEE, AND AUTHOR OF "the PBACTICE m equity by way op revivor AND SUPPLEMENT." LONDON: STEVENS & HAYNES, BELIi YAED, TEMPLE BAB. 1876. Digitized by Microsoft® LONDON PBINTBD BY WILLIAM OLOWES AND SONS, KrAUKOni> STBEET AKD CHARING CKOSS. Digitized by Microsoft® TO THE EIGHT HONOUEABLE HUGH McCALMONT BAEON CAIENS, LORD HIGH CHANCELLOR OF GREAT BRITAIN, %hi8 moth. IS BY PERMISSION MOST RESPECTFULLY DEDICATED. Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Library, 2008. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® PREFACE. I SUBMIT to the Profession a book whioli I commenced in the latter end of 1869, and which is the result of several years' labour. In doing so I am aware that the practice in the Chancery Division of the High Court of Justice remains in many branches of its work very unsettled, even if the 'principles can be considered as defined. But on the other hand, the Judicature Acts and Eules have left much of the old Procedure in Chancery unaffected, and have demonstrated without ambiguity much of the new Procedure. To the safe ground indicated I have almost entirely confined myself; and on that account the present publication may not, I hope, be thought inopportune, or found to be valueless. I must express the obligations I am under for many of my refer- ences to the following works : — Story's Equity Jurisprudence ; Fisher on Mortgages ; Kerr on Injunctions ; Backley on the Companies Acts, 1862 and 1867; and in particular to the last Edition of Daniell's Chancery Practice by Mr. Field and Mr. Dunn. For the Index I am indebted to my friend Mr. Herbert Jackson, of the Chancery Eegistrars' Office. So much of the value of a Law book depends upon its Index, that I have studied to put the Index of this Volume into good hands ; and I believe successfully. LOFTUS LEIGH PEMBEETON. AprU, 1876. Digitized by Microsoft® Digitized by Microsoft® CONTENTS. CHAPTER I. WRIT or SUMMONS — APPEABAtiCB. Form of Summons — Indorsements on Claim, 1. Service of Writ of Summons, 2, 3. Service out of Jurisdiction, 4. Appearance, 5. Appearance set aside — Time for Appearance — Notice — ^Default of Appearance — ^Infants — Person of Unsound Mind, 6. Payment into Court in Satisfaistion, 7. CHAPTER II. PARTIES AND JOIHDBE OF CAUSES OF ACTION. Parties, who may be joined, 8. Trustees and Executors — Married Woman and In&nts — Misjoinder of Parties, 9. Wlien Deft added — Deft claiming Contri- bution of Indemnity, 10. Questions of Action relating to Persons not Parties — Joinder of Causes of Action, 11. Action by and against Lunatics and Persons of Unsound Mind, 12. CHAPTER III. PLEADINGS. Pleading generally, 13 — ^15. Pleading Matters arising pending the Action, 16. Statement of Claim, 17. Defence, 18. Discontinuance — Reply and subse- quent Pleadings, 19. Amendment of Pleadii^, 20. Default of Amendment after Order obtained, 21. Amendments at the Hearing — Amendments, how made — Delivery of amended Pleading, 22. CHAPTER IV. DEMUBBEG. Allowed — Overruled, 23. By whom — Form of — ^Delivery of — Combination of Demurrer and Defence — Pleading and Demurring — Entering Demurrer for Argument — ^Default of Entry, 24. Pleading pending Demurrer — Demurrer allowed — Costs — ^DemuiTsr overruled — Costs — Entering Demurrer for Argu- ment, 25. CHAPTER V. DEFAULT or PLEADING. Non-delivery by Pit of Statement of Claim — Dismissal for want of Prosecution — Default of Pleading, 26. Non-delivery by Deft of Defence or Demurrer — Digitized by Microsoft® X CONTENTS. Non-delivery of Reply, or Demurrer, or subsequent Pleading — Issues between Persons not Pits or Defts — Judgment by Default set aside, 27. CHAPTER VI. DISCOVERT AND INSPBOTION. Interrogatories to Bfldy Corporate or Joint Stock Company — Interrogatories struck out, 28. Answers to Interrogatories — Affidavit — Objection to answer- ing Interrogatories — Affidavit — Omission to answer Interrogatories — Insufficient Answer — Production of Documents, 29. Inspection of Documents — Rules as to Production, 30. Notice to produce Documents referred to in Pleadings or Affidavit — Inspection of Documents referred to in Notice — Application for Order — Affidavit, 31. Discovery or Inspection reserved — Right to Produc- tion, 32-34. Non-compliance with Order — Service of Order — ^Notice of Order by Solicitor to his Client — Evidence of the Answers to Interrogatories, 35. CHAPTER VII. SPECIAL CASE. Appointment of Guardian, 36. Setting down — Entering for Argument — Amend- ment of Special Case — Future Rights, 37. Costs, 38. CHAPTER VIII. TBANSFERS AND CONSOLIDATIOlil. From one Division to another — From one Court to another, 39. Judicature Rules, 40. ^ CHAPTER IX. ISStTES. Forms of Orders for Ti-ial of Questions of Pact, 41-43. Verdicts indorsed on Postea, 44-45. New Trials, 46. Decree after Trial of Issues — Issues, 47, 48. Jury, 49. Forms of Oaths— Verdict, 50. Order for View by Jury, 51. Motion for Judgment after Issues tried — Trial of Issues postponed, 52. ■ CHAPTER X. PBOCBBDINQS XS DISTRICT REGISTRIES. Registries, how established — Powers of District Registrars — Proceedings which may be taken — Proceedings up to Trial, 53. Writs of Execution — Costs — Authority of Registrars — References and Appeal to Judge, 54, Removal of Action from District. Registry, 55. Production of Documents — Accounts, 56. CHAPTER XI. ADMISSIONS. Notice of — Costs— Form of Notice, 57, 58. Digitized by Microsoft® CONTENTS. xi CHAPTER XII. TRIAL — EVIDENCE — ^MOTION FOB JUDGMENT. Place of IWal— Mode of Trial, 59. Notice of Trial— Default at the Trial, 60. Judgment — Leave to set aside, &c. — Questions of Pact and Law — Jury — Asses- sors — Commissioners — Eeferee, 61. Evidence generally, 62. Evidence by Affidavit — Motion for New Trial, 63. Motion for Judgment, 64. Entry of Judgment, 65, 66. CHAPTER XIII. Forms of Orders — Judgment affirmed — Reversed — Transfer of Jurisdiction, 67. Appeals from High Court — Appeals from Inferior Courts to Divisional Courts — Constitution of Court of Appeal — Tenure of Office of Judges — Orders not subject to appeal, 68. Discharging Orders made in Chambers-^Absence of a Judge — Power of a single Judge — Pinal and Interlocutory Orders — Judges not to sit on Appeal from their own Judgments, 69. Appeals, how brought — Notice of Motion — How set down — Amendment — Further Evidence, 70. Limit of Time for appealing — Deposit — From Winding-up Orders — From ex parte Applications refused by Court below — Evidence in Court below — Questions of Fact, 71. Cross Appeals — Notice— Omission to give Notice — Appeal not to stay Execution, 72. CHAPTER XIV. MOTIONS AND APPLICATIONS AT CHAMBEBS. Motions, 73. Applications at Chambers, 74. CHAPTER XV. CHANGES OP IKTEBBST. Effect of Marriage, Death, Bankruptcy and Assignment — Recent Practice in Chancery, 75-76. The Right to an Order to carry on Proceedings, 78-79. Determination of Interest, 80. Forms of Orders, 81-86, Security for Costs — Continuing Proceedings for Costs — Statutes of Limitation, 87. Service of Order — Appearance — Discharge of Order — Compulsory Orders to prosecute Action, 88-92— Orders dispensing with or appointing Representatives, 92-93. CHAPTER XVI. ENFOKCING OBDBRS AND JUDGMENTS. Mode of enforcing — For the Payment of Money into Court — For the Recovery or Delivery of Land — For the Recovery of Property other than Land or Money — For Acts other than Payment of Money, &c. — Relief subject to Condition, 94. Execution against Partners — Writ of Execution, Definition of — Writ, for what Time in force, and within what Time may issue, 95. Enforcing Orders by or against Persons not Parties — Proceeding by audita querela — Existing Modes of Digitized by Microsoft® xii CONTENTS. enforcing Orders and Judgments— Order in which Writs may issue— Enforcing by Writs of Pi. Fa. and Elegit, and Venditioni Exponas, 96. Enforcing by Se- questration, 97-98. Order for Serjeant-at-Arms, 98— Order to turn over Prisoner — Order for Habeas, 99. Sequestration against Corporations, 100 — Enforcing by Attachment, 101. The Debtors Act, 1869— Trustees and Soli- citors, lOa. Contempts of Court— Committals under Debtors Act, 1869 — Pay- ments.by Instalments, 105-106. Discharge of Prisoner committed under Debtors Ao^-Writ of Possession— Orders pro hiteresse suo, 107-108. Enforcing by Mandamus, 109. Writ of Delivery, 109. Attachment of Debts, 110, 111. CHAPTER XVII. INFANTS. Guardians ad Litem — Actions by and against, 112, 113. Guardian of Person — Maintenance, 113. Guardian of Person and Estate, 114. Custody and Educa- tion, 104, 105. Kemoval of Guardian — Testamentary Guardian — ^Leave to take Infant out of Jurisdiction, 116, 117 — Propriety of Suit, 117, 118. Alle- gations of Pact against Infants in Pleadings — ^Decrees against Infants, 118. Infant Wards — Orders in reference to Infant Wards, 119-122. Property Law Amendment Act, and Orders under it, 123-125. Infants Custody Act, and Orders under it — Infants Marriage Act, and Orders under it, 128-131. Infants Settlement Act, and Orders under it — The Infants Belief Act, 131-133. CHAPTER XVm. MABBIED WOMEN. Next Friends— Orders as to Next Friends, 134. Actions by and against Married Woipen — Appeal of Married Women — Compromise of Suit — Costs against— — Foreclosure against — Establishing Will against — Bight to sue in Forma Pauperis — Eight by Survivorship— Payment to Husband in Eight of Wife — Pjiyments to Women who afterwards marry, 137, 138. Equity to a Settlement — Order making a Settlement, 139, 140. Eight to a Settlement — ^Amount brought into Settlement — Form of Settlement, 141-143. Waiver of Settlement — Examination in Court, 144. Charge of Separate Estate, 145, 146. Married Women's Property Act — Married Women's Property Act Amendment Act, 146- 148. Protection Orders, 148. CHAPTER XIX. ACCOUNT. Orders directing Common Accounts, 149, 150 — Jurisdiction of the Court — Statute of Limitations — Mode of taking Account, 150, 151. Evidence at the Hearing — Costs — Settled Accounts — Allowances — Set-off — Interest — Appropriation, 155. Agency — Solicitor and Client — Principal and Stewai-d — Company and Agent — Principal and Agent, 156, 157. , Accounts between Tenants for Life and Be- maindermen, 158, 159. Apportionment — Contribution — Sureties, 161, 163. Accounts of Rents and Profits — Tithes— Modus, 164, 165. Digitized by Microsoft® CONTENTS. xiii CHAPTBE XX. PARTNEKSHIP. Orders directing Comtnon and Special Partnership Accounts, 166-173. Jurisdic- tion of the Court — Mortgages to secure Partnership Debts — Interest on Capital after Dissolution, 174-177. CHAPTBE XXI. ADMINISTBATION. Orders establishing Will — Administration Orders of Heal and Personal Eslate in Creditor's Action, 178-180. In Action by Next-of-Kin — In Actions by Lega- tees, Trustees, Executors, or Beneficiaries, 180-182. Accounts against Executors, 183. Special Inquiries — Inquiries as to Heir-at-Law — Sales and Contracts, Exchanges, Mortgages, Dovfer, &c., 184-188. Election, 188. Domicile — Com- mon and Special Orders directing Inquiries, 189, 190. Common Directions — Deposit in Court, &c. — Transfer and Payment into Court, 191, 192. Orders on Further Consideration — Orders providing for Payment of Costs Debts, and Legacies, 193-196. Hotchpot Provisions, 196, 197 — Insufficient Estate — Orders providing for Abatement of Legacies and Contribution of Real Estate, 199, 204. Orders marshalling Assets — Orders directing Sale or Mort- gage of Eeal Estate for Payment of Debts — Orders apportioning Costs — Orders providing for Costs where Shares incumbered, 205-211. Establishing Will — Actions for Administration — General Administration — Parties -t-General Administration at Chambers — Marshalling — -Speciality and Simple Contract Debts — Legacy and Succession Duty, 212-219. Interest on Debts and Legacies — ^Apportionment of Income — Domicile — Costs out of Estate- Costs of Incumbered Shares — County Court Jurisdiction, 220-225. Charities — Orders directing Inquiries and Declarations as to Charitable Bequests, 226-235. The Mortmain Act, 9 Geo. 2, c. 36— Charities excepted from Mort- main Act — Construction of Gifts to Charities, 236-239. Increase of Income — Investment of Charity Moneys — Administration cy-pres — Charity Leases — Orders directing Schemes to be settled — Charity Schemes — Costs, 240-248. Accounts of Debts and Liabilities, 248-250, CHAPTER XXII. INJUNCTIONS. Common Forms of Order ex parte and on Notice — Undertaking as to Damages — Injunction on Payment into Court — Injimction Orders, where granted— Man- datory Injunctions, 251-253. Waste— Orders restraining Waste — Jurisdiction of the Court, 254-260. Trespass — Orders restraining Trespass — Jurisdiction of the Court, 260-268. Nuisance — General Rights to Injunction— Light and Air — Orders restraining In- fringement of Light and Air— Right to Light and Air, 268, 274. Water — Orders restraining Improper Use or Diversion of Water — Right to Use of Wa.ter and Running Streams, &c., 274-278. Noise and Noisy Trades— Orders restraining them — Nuisance to Eight of Way — Nuisance in respect of Eight to support, 278, 280. Digitized by Microsoft® xiv CONTENTS. Breach of Agreement or Covenant — Orders restraining Breaches — Bight to In- junction, 281-286. Copyright — Literary Copyright — Orders granting Injunction — Duration of Literary Copyright — Subjects of Literary Copyright— Registration— Assign- ment — International Copyright in Books, 286-290. Dramatic and Musical Copyright — Orders granting Injunction — Eight to Order — International Copy- right in Dramatic Pieces, 290-293. Prints, Engravings, and Etchings— Orders restraining Publication — Right to Order — Copyright in Sculpture, Casts, and Models — Copyright in Paintings, Drawings, and Photographs, 293-296. Copy- right in Designs, 296-298. Patents — Orders restraining Infringement — Patents, how obtained — Specifications — Kight to Injunction, 298-305. Perpetual Injunction in Patent Cases — Inspection of Patent — Destruction of : Articles made in violation — Account of Profits — Costs in Patent Suits — Triil ' . of Issues, 306, 307. Trade Marks— Orders granting Injunction — Right to Order — Amount of Profits, 308-313. Confidential Communicatioijs — Orders granting Injimction — Right to Orders, 313-314. Railway and other Companies — Order granting Injunction against— Right to Orders, 314—325. Merchant Shipping Acts — Orders — Right to Order, 326-328. Stop Orders — Common Forms — Writs of Distringas — Charging Orders — Writs of ne exeat, 329-334. CHAPTER XXIII. EEOBIVBBS. Common Orders — Orders appointing Receiver— Of Businesses — 'Of Manors — Of Heirlooms — Of Canals — Of Railways — Of Markets — Of Docks — Of a Rectory — Of a Pension, 335-840. New Security — Receiver, when appointed — Security^ Salary — Accounts, 341, 342. The Persons appointed Receivers — Efi'ect of Appointment — The Property of which Receiver may be appointed — Mortgaged Property — Directions by the Court to Receiver — Discharge of Receiver, 343-349. CHAPTER XXIV. MORTGAGES. Common Foreclosure Decrees — Decrees when Mortgagee is in Possession, 350, 351. Decrees directing successive Foreclosures, 352-356. Decrees where Changes in Interest of Mortgagors or Mortgt^ees, 357-359. Mortgages of Personalty, 361, 362. Orders directmg Special Accounts and Inquiries, 363, 364. Orders directing Sale instead of Foreclosure, 364-366. Bight to Foreclosure or Sale, 367. Repairs — Allowances — Interest, 369-373. . Costs, 376-376. Accounts with Rests — Receiver, 377, 378. Orders under Equitable Mortgages, 380-386. Creation of Equitable Mortgages and Right to Relief, 386, 387. Orders at Suit of Judgment Creditors, 388-390. Rights of Judgment Creditors, 390. Tacking, 391, 392. Consolidation of Mortgages, 393-396. Mai-shalling Securities, 397. Foreclosures in Particular Cases, 397-399. Derivative Mortgages, 399. Orders of Foreclosure against Infants and Married Women, 400-402. Mortgages Digitized by Microsoft® CONTENTS. XV between Solicitor and Client, 403. Orders of Final Foreclosure, 403. Liens, 405-406. The Merchant Shipping Acts and Orders — Bottomry, 408-412. Orders in Redemption Snits, 412-419. The Eight to redeem, 420. Orders under the Benefit Building Societies Acts, 422-424. Welsh Mortgages, 425. CHAPTER XXV. SPECIFIC PEEFOKMANCB. Orders in Suits by Vendors, 427-434. Orders in Suits by Purchasers, 435-438. Frame of Deoree^Title— Right to Decree, 438-446. Sale of Land— Root of Title, 446. Mandatory Orders — Rents — Wilful Default — Occupation Rent — Rests, 446, 447. Compensation — Abatement — Consideration Money — Payment of Purchase- money into Court, 448. ConWact — Time — Damages — Interest — Lien on Vendor's Estate, 449, 450. Default in Payment by Purchaser — Rescinding Contract — County Court Jurisdiction, 451, 452. CHAPTER XXVL RECTIFICATION OF DEEDS. Orders rectifying Deeds, 453-456. Jurisdiction of the Court, 456-458. CHAPTER XXVn. SALES BY THE COtTET. Common Orders — Property, when sold — Property, how sold — Particulars of Sale — Conduct of Sale, 459, 460. Conveyancing Counsel — Leave to bid — Deposit, 461. Investigation of Title — Orders directing Payment in(;o Court, 463, 464. Possession — Interest — Conveyance — Title Deeds — Dealings with Purchase- Money, 464, 466. Re-sale — Contract rescinded — Discharge of Purchaser — Substituted Purchaser, 467-470. Sale of Goods and Merchandise of perishable Nature, 471. CHAPTER XXVin. PARTITION. Order directing Partition, 472-478. Right to Partition— Pecuniary Compensation — Commission — Costs, 480, 481. Orders directing Sales under the Partition Act, 1868 .. 481-484. Right to an Order for Sale— Form of Decree, 485, 486. Parties — Inquiries — Service of Notice of Decree — Liberty to bid — Application of Trustee Act, 1850 — County Court Jurisdiction, 487, 488. Boundaries — Order directing Commission — Suits to ascertain Boundaries, 488, 489. Dower — Order directing Inquiries and Assignment of Dower Right to Dower, 489-491. CHAPTER XXIX. SOLICITORS. Orders striking Solicitors off the Rolls, 492, 493. Change of Solicitor — Orders directing Delivery of Papers, 494-496. Lien of Solicitor on Deeds — Lien of Solicitor on Fund in Court, 496, 497. Interest on Taxed Costs — Orders making Digitized by Microsoft® xvi CONTENTS. Costs a Charge, 497-503. Taxation of Solicitor's Bill under 6 & 7 Vict. c. 73— Orders directing Taxation under Sect. 37 of 5 & 6 Vict, c, 73.. 504-512. Orders of Course and Special Applications under Sect. 37 — Orders for delivery of Bill, Deeds, &c., 513, 514. Orders directing Taxation under Sect. 38 of the Act, 515, 516. Orders directing Taxation (after payment) under Sectl 41 of the Act, 518-520. Agreements for Remuneration, 522. Interest on Moneys disbursed by Solicitor — Interest on Moneys belonging to Client, 522, 523. The Legal Practitioners Act, 1875 . . 524. STATUTOEY JURISDICTION. CHAPTER XXX. PBODTTCTION OF CESTUI QUE VIE, Order for Production at Parish Church and before Commissioners — Bight to Order— Service of Order — Non-production~Second Order — Commissioners — Cestui que vie abroad — Cestui que vie proved to be alive — Costs, 526-528. CHAPTER XXXI. THE CHAftlTABLE TKUSTS, &C., ACTS. Orders under Sir Samuel Eomilly's Act — Eight to Order under that Act — Service of Petition — Scheme — Ordering apportioning Costs, 520-531. The Charitable Trusts Acts, 1853 to 1869— The Elementary Education Act, 1870— Enforcing Orders of Charity Commissioners — Charities exempted from Jurisdiction — Costs of Attorney-General, 532-536 — The Grammar School and Endowed Schools Acts — The Church Building Acts Amendment Acts, 536-540. The Burial Acts, 1852 to 1871 — The Municipal Corporations Acts, 540, 541. In- rolment of Deeds — Charitable Uses Acts, 543. CHAPTER XXXII. AEBITEATION. Orders making Agreement or Submission an Order of Court — Orders referring Suit to Arbitrators — Right to Arbitration, 545-547. Stay of Proceedings — Evidence of Arbitrators — Failure of Parties or Arbitrators — Award — Time enlarged — Award remitted — Award set aside — Delivery of Possession — Produc- tion of Documents, 548-554 — ^Arbitration under Friendly Societies, &c., Acts — Arbitration under Lands Clauses Consolidation Act — Costs, 454-556. CHAPTER XXXIII. THE COPYHOLB ACTS. Orders under the Copyhold Acts — Payment into Court — Application of Money Costs, 558-560. CHAPTER XXXIV. THE DEFENCE ACTS. Orders under the Defence Acts— Application of Compensation Money— Service of Petition— Costs— Sale by Secretary of State of War, 561-563. Digitized by Microsoft® CONTENTS. xvil CHAPTER XXXV. THE PABLIAMENTART DEPOSIT ACT. Orders under Parliamentary Deposit Act — Payment into Court — Investment — Payment out, 564-567. CHAPTER XXXVI. THE LANDS CLAUSES CONSOLIDATION ACT, 1845. Orders under Sects. 69 and 70 — Orders under Sects. 73 and 74 — Orders pro- viding for Costs of Purchase and Reinvestment, 568-578. Investment of Purcliase-money — Land Tax, Debts, and Incumbrances, 578, 579. Purchase of other Lands — Removing or replacing Buildings — Permanent Improvements, 579, 580. Payment to Persons entitled — Disentailing Deed — Interim Invest- ment — Compensation — Costs — Investment by Promoters of Undertaking, 580- 586. CHAPTER XXXVII. THE TEUSTEE EBLIEP ACTS. Orders — Payment into Court — Affidavit — Discharge of Trustee — Notice by Trustee — Petition — Summons — Service of Petition — Effect of Order — Juris- diction—Costs, 587-592. CHAPTER XXXVIir. THE TRUSTEE ACTS, 1850 AND 1852. Lunatics — Persons of unsound Mind, 593. Land — Bare Trustees — Married Women, 594. Orders under Sects. 7 and 8 of Trustee Act, 1850.. 594, 595. Orders under Sects. 9, 10, 11, and 12 — Orders under Sects. 13, 14, 15, and 16.. 596, 597. Orders under Sect. 2 of Extension Act, 598. Orders under Sects. 19, 20, and 21 of Trustee Act, 1850 .. 598, 599. Orders under Sects. 22, 23, and Sects. 4 and 5 of Extension Act, 601-604. Orders under Sect. 28 — Orders under Sect. 29 and Sect. 1 of Extension Act, 604-606. Orders under Sect. 30— Orders under Sects. 32, 34, 35, and Sect. 9 of Extension Act, 608- 613. Disclaiming Trustees — Trustees, who appointed, 613. Costs — Parties to Petition— Evidence, 614-616. CHAPTER XXXIX. THE SETTLED ESTATES ACTS. Guardians of Infants — Consents — Examination pf Married Women — Advertise- ments of Petition — Setting down Petition — Evidence, 617-620. Orders directing Sale, 620-624. Application of Sale Moneys and Rents— Interim In- vestment — Leases — Building Leases, 625-628. Streets, Roads, and Gardens, 628-630. Mining Leases — Indorsement on Settlement — Costs, 630-632. CHAPTER XL. LAW OP PROPERTY, &C., AMENDMENT ACT. Orders authorizing Investments — Questions for the Opinion of the Court — Service of Petition — Evidence — Costs — Investments by Trustees — Cash under the Control of the Court, 633-636. h Digitized by Microsoft® xviii CONTENTS. CHAPTER XLI. PKI80NBRS EBLIBP ACT. Orders assigning Counsel and Solicitor'to Prisoner under Sects. 2 and 4 — Order under Sect. 5 — Examination of Prisoners, &c., 637-639. CHAPTER XLII. THE COMPANIES ACTS, 1862 AND 3867. Compulsory Winding-up Orders — Assets how administered — Winding-up Orders, when made, 640-644. Company "unable to pay its Debts," Section 80 — Meaning of "the Court," 644-646. Who may petition — ConcuiTent Peti- tions — Title of Petition — Advertisement of Petition — Service of Petition — Verification of Petition — Advertisement of Order to wind up, 646-652. Costs, Security for, and Payment of, 652, 653. Provisional Liquidator, Appointment of — Official Liquidator, Appointment of — Security — Resignation, &c., and Compensation of Liquidators — Powers of Liquidators, 654-656. Rectification of Register, 659-662. Liability of Members, 662-664. Unlimited Liability of Directors, 665. Payments in Cash — Contributories, 665, 666. Restraining Legal Proceedings, 667-670. Stay of Winding-up Proceedings, 671. Meetings directed by the Court — Winding-up in County Court, 672, 673. Voluntary Winding-up, 673, 674. Winding-up subject to Supervision, 675, 676. Ap- peals, 677, 678. Proof of Debts, 679. Suspected Persons — Absconding Con- tributory — Enforcendent of Orders, 679, 681. Unregistered Companies, 681- 683. Life Assurance Conipanies : — Subsidiary Company — Valuation of Policies and Annuities — Novation by Policy-holders, 683-686. Reduction of Capital : — Orders reducing — Special Resolution — Petition — Creditors opposing Reduction — List of Creditors — ^Notice to Creditors — Certificate — Hearing of Petition — Registration of Order and Minute, 686-693. Joint Stock Companies Arrangement Act : — Meetings — Compromise, 693. CHAPTER XLIIL COKFIEMATION OF SALES ACT. Orders directing Sale — Powers of Sale and Exchange — Parties to Petition, 694, 695. CHAPTER XLIV. JUDGMENT DEBTOBS ACT. Orders — Delivery of Land in Execution — Order for Sale — Notice of Sale — Parties claiming under Debtor, 696-698. CHAPTER XLV. THE COPNTT CODRT ACTS. Jurisdiction — Transfers to and from County Court — Appeal from County Court Appeal by way of Motion — Appeal by way of Special Case, 699-702. Digitized by Microsoft® CONTENTS. xix OHAPTBE XLVI. THE iBAILWAT COMPANIES ACT, 1867. Order appointing Eeceiver— Protection of Boiling Stock and Plant— Scheme for Arrangement — Petition — Appearances — Order on Petition — Inrolment of Scheme— Notice of Order— Inrolment of Order— Rehearing, 703-708. CHAPTER XLVir. THE LIQUIDATION ACT, 1868. Division of Assets in Specie — Scheme— AfSdavit— Notice of filing Scheme— Con- firmation of Scheme — Petition — Order confirming Scheme — Inrolment of Order — Petition for Reheariog — Chamber Order— Effect of Scheme— Meetings of Creditors^-Poreclosure by Notice, 709-712. CHAPTER XLVm. METROPOLITAN BOAED OF WORKS ACT. Default in payment of Dividend — Receiver, 713. CHAPTER XLIX. THE LIFE ASSURANCE COMPANIES ACTS. Payment of Deposit into Court — Investment of Deposit — Amalgamation or Trans- fer of Companies — Reduction of Contracts, 714, 715. CHAPTER L. THE NATIONAL DEBT ACT, 1870. Orders directing Transfer to Claimant — Unclaimed Dividends — Retransfer to Per- sons entitled — Service of Petition — Costs — Rescinding Order — Second Claimant, 716-718. CHAPTER LI. THE LAND TRANSFER ACT, 1875. Part I. Entry of Land on Register of Title : — Freehold Land — Leasehold Land, 719-722. Examination of Title by Registrar — Liabilities, Rights, &c. — Discharge of In- cumbrance — Determination of Lease — Adverse Possession, 719-724. Part II. Registered Dealings with Registered Land : — Eight of Entry of Proprietor of Charge — Right of Foreclosure — Of Sale — Priorities of Charges — Cancelling Charges — Transfer of Freehold and Leasehold Land — Transfer of Charges — Transmission of Land and Charges, 724-728. Part III. Unregistered Dealings with Registered Land — Notice of Leases — Notice of Estates in Dower — Cautions against Registered Dealings — Inhibition by the Court, 729-731. b 2 Digitized by Microsoft® XX CONTENTS. Paet IV. Cautions against Entry of Land on Register — Crown Lands — Registration of Lands of different Tenures — Power of Trustees to sell — ^Registration of Part Owners — Production of Deeds — Application to the Court — Costs — Doubtful Question arising on Title, 732-735. The Trustee Act, 1850 — Married Women — Infants and Lunatics — Specific Per- formance — Costs — Rectification of Register — Appeals — Inspection of Register —Description and Powers of " the Court," 737-741. CHAPTER LIL TBADE MABKS EEGI8TEATI0N ACT, 1875. Registration of Trade Marks — Disputed Claim — Reference to the Court — Charac- teristics of Registered Trade Mark — Recljification of Register — Applications to the Court, 742, 743. Restrictions on Registry — Removal of Trade Mark — The Cutlers' Company and SheiHeld Corporate Marks — Definitions of Trade Marks, 744-746. CHAPTER LIII. COPTEIGHT OF DESIGNS ACT, 1875. Transfer of Powers to Commissioners of Patents, 747-748. Digitized by Microsoft® TABLE OF CASES. A. Abbott, Re . . . 520, V, Sworder Aberdeen v. Chitty Abergavenny v. Abergavenny V. Thomas . . 488, Aberystwitb Railway Co., Re Aoaster v. Anderson . Accidental and Marine Insurance Co., Re , V. Mercati Ackroyd v. Ackroyd . Adair's Settled Estates, Re Adam, Re Adams v. Fisber Adamson v. Hall Adley v. Whitstable Co. African Steamship Ca v. Swanzy Agar V. Fairfax . . 479, 480, Agra and Masterman's Bank, Re . (Cannan's CJaim) Aguilar v. Aguilar Ainsworth v. Alman . V. Bentley V. Walmsley . Airey v. Hall Aitchison v. Dixon Albert Average Association, Re Albert Life Assurance Co., Re Albion Bank, Re Alcock V. Alcock Alden v. Foster Alderson v. White Aldis V. Knight Aldrich V. Cooper FAOE PAQB Aldworth v. Robinson . . 398 521 Alexander v. Simms . . , 411 439 Allan v. Backhouse . . 159, 162 342 Allen, iile . . . 587,591 75 V. Macpherson . . 212 489 —. V. Martin . . .267 565 V. Papworth . . . 146 216 V. Williams ... 97 AUfrey «;. AUfrey . . 150,154 647, 680 AUhusen v. Whittell . . .221 652 Alsop V. Bell . . . . 224 199 Alvanley v. Kinnaird. . . 444 624 Ames v. Birkenhead Docks (Trus- 620 tees of). . . . 340,344 33 Amesbury v. Brown . . 162, 373 89 Anderson v. Kemshead . . 378 150, 325 V. Stather ... 5 329 Andrews, Re . . . .524 481 V. Lockwood ... 87 658 V. Partington . . 115 656 V. Salt . . . .114 143 Angell v. Smith . . . 378 37 Angelo, Re . . . .608 281 Anglesea Colliery Co., Re . . 647 311 Anglesey (Marquis of), ife . . 160 33 Anglo-Austrian Bank, Re . . 555 222 Anglo-Danubian Co. v. Eogerson . 252 683 Anglo-Danish Steam Co., Re . 651 Anglo-Egyptian Navigation Co., Re 653 Anglo-Greek Steam Co., Re . 644 Anglo-Moravian Railway Co., Re 653 Anon. ..... 104 (3 Atk. 572) . . .214 — (6 Mad. 276) . . .334 (,2 K. & J. 441) . . 175 658, 693 . 653 . 135 . 404 422, 426 . 155 217, 218, 397 Digitized by Microsoft® TABLE OP CASES. Aiming v. Hartley Anson (Lord) v. Hodges V. Towgood Anspaek v. Noel Appleby v. Dodd Archer v. Hai-rison — V. Preston V. Slater Armitage v. Walker Armstrong v. Armstrong Arnold v. Bainbrigge V. Bradbury V. Gamer • V. Young FAGS . 552 . 451 . 465 . 439 . 159 424, 425 . 443 . 212 . 555 . 225 . 420 . 42 . 371 . 184 . 594 . 138 . 717 242, 530 380, 443 372, 374 . 87 . 280 . 176 258, 373 . 85 Arrowsmith's Trusts, lie Asbby V. Asbby Ashmead, Se . Asbton Charity, Be V. Corrigan Asbwell V, Staunton Askew V. Townsend Aspden v. Sedden Astle V. Wright Aston V. Aston . Atkinson v. Parker Att.-GeD. V. Alford . . .155 V. Attwood . . . 152 V. Backhouse . . . 242 V. Barkhara ... 82 V. Beverley (Corporation of) 232, 240, 241 V. Birmingham (Borough of) 268, 274 V. Bodmin (Mayor of) . 232 V. Bradford Canal Co. . 276 V. Bristol (Mayor of) 240, 248 V. BuUer . . . 248 V. Burnley (Corporation of) 241 ■ V. Chester (Corporation of) 246, 248 V. Church . . . 130 V. Clarke . . . 238 V. Clements . . . 131 V. Colney Hatch Lunatic Asylum . . . 273, 275 V. Cornthwaite . 180, 214 V. Coopers' Company 242, 246 ■ -■«. Craven (Earl of) . 243 ■■ V. Cross . . . 242 ■ V. Cuming . . .325 Att.-Gen. v. Davey V. Davies V. Day V. Dixie V. Dove V. Downing V. Doyley V. Drapers' Co. FAGS 234, 243 . 238 , 443 . 243 . 247 . 242 . 241 231, 282, 238, 240 — V. Etough ... 37 — V. Exeter (Corporation of) 244, 542 — V. Fishmongers' Co. 240, 247 — • V. Foster ... 81 — V. Gascoigne . . . 245 — V. Gee .... 343 — y. Gibson . . .129 — V. Gladstone . . 239 — V. Great Northern By. Co. 324 — V. Green . . 242, 243 — V. Griffiths . . .242 — V. Haberdashers' Co. . 239 — V. HaU . . 238, 243 — V. Hanmer . . . 246 — V. Hardy . . .399 — V. Hotham (Lord) 233, 243, 248 — V. Hungerford . . 242 — V. Hurst . . . 248 — V. Ilchester (Corporation of) 244 — V. Kerr . 243. 246, 247 — V. Kingston (Mayor of) . 268 — V. Lepine . . . 245 — V. London and North Western Bail. Co. 321,324 — V. Lowe . . . 540 — V. Lucas . . .131 — V. Ludlow ■ . . . 542 — V. Mansfield (Earl of) . 242 — V. Marlborough (Duke of) 258 — V. Mathias . . . 247 — V. Mereers' Co. . . 247 — V. Metropolitan Board of Works . 254, 268, 277 ^— V. MuUay . . . 131 — V. Netheroote . 248, 333 — V. Newark (Corp. of) 248, 469 — V. Norwich (Corporation of) 325 — V. Oglander . . . 242 — V. Owen . . 242, 248 — V. Peacock . . . 242 Digitized by Microsoft® TABLE OP CASES. xxm Att.-Gen. v. Penruddock V. Pilgrim V. Powis (Earl of) V. Richmoijd . 323, 489 242 325 268 ■ V. Stamford (Mayor of) - V. Stamford (Earl of) ■ V. Stephens . • V. Sturge ■ V. Syderim ■ V. Terry -r V. Rooliester (Corporation of) 241, 242, 248 — V. Severne . . . 131 -^ V. Sheffield Gas Co. . 233 — V. Shrewsbury (Corporation of ) . . . . 236 — V. Sittingbourne and Sheer- ness Eailway Co. . 451 — V. Sitwell . . .443 — V. Skinners' Co. . 240, 241 ^ V. Smythies . . 240, 325 — tJ. Southampton (Mayor of) 322 — V. South Molton (Corpora- tion oQ . . .240 — V. St. Cross Hospital 321, 325 -T- V. St. John's Hospital 235, 243 243 531 489 245 238 278 V. Thames Conservators 268, 278 V. Thetford (Corporation of) 325 V. Vigor . . .348 r- V. Warren . . . 242 V. Wax Chandlers' Co. . 241 V. Wigan (Mayor of) . 325 V. William and Mary (Col- lege of) . . .219 V. Wilson . . .241 V. Winchilsea (Earl of) . 248 V. Windsor (Dean and Canons of) . . 248 u. Wood . ' . .242 w. Worcester (Bishop of) 245,530 V. Yarmouth (Corp. of) . 321 Atwood V. Maude . i 173, 176 Attwood V. Small . . .468 Aubrey's Estate, Be . . . 585 Audley Hall Cotton Spinning Co., lie Auater v. Haines Austin V. Phelips Australia (Bank of), Be Averall v. Wade 653 . 80 . 181 . 652 218, 397 Ayles V. Cox 1 Aylet V. Dodd . Aynsl^y V. Glover ■ V. Eqad B. Back V. Staoey Bacon v. Jones . Badcock, Be Bagshawe v. Eastern Union way — V. Winter Bagot V. Bagot . Baile v. Baile . Bailey, Be : — V. Birchall V. Bryson V. Collett V. Hohson Baker, Be V. Gray V. Hall . V. Sutton Baker's Case Balfe V. Lord . Ball V. Coutts . V. Kay . Balston v. Smith Bamford v. Bamford Bankart v. Tennant Banks v. Cartwright Bankier v. Poole Banner v. Johnston Barclay, Ex parte Barfield v. Loughborough Baring v. Dix . Barker v, Mariot V. Peele ^ V. Walters Barlee v. Barlee. Barlow v. Gains ■ r- V. Osborne Baruaby v. Tassel Barnard, ije V. Ford Barned's Banking Co., Barnes, Be V. Eacster V. Wood PAGE 604, 615 . 242 , 272 . 420 272 306 613 Eail- . 324 . 143 . 259 500, 503 . 512 . 501 . 384 . 465 . 480 . 516 . 396 . 142 230, 238 . 680 . 425 . 145 . 279 . 303 . 491 . 444 . 152 4 . 677 . 379 174, 176, 177 . 175 . 338 4 . 153 90, 135 342, 375 . 460 . 38 . 512 . 141 675, 676 . 138 206, 218, 374, 397 436, 447 Be Digitized by Microsoft® TABLE OF CASES. Bamet v. Moxon . . . 488 Bamett v. Weston . . .393 Bamsley v. Powell . . . 212 Barnwell v, Iremonger . . 222 Barrett v. Ring . . . 440 Barrow, Be . . . 516, 521 V. Barrow . . 143, 458 Barry v. Barry .... 257 V. Cane . . . 136 Bartlett, 5e . . . 127,128 V. Kees . . . 357, 367 V. Salmon . . . 468 Barton v. Cook . . . .224 Basil V. Acheson . . . 873 Basket v. Cunningham . . 290 V. Cambridge (University of) 290 Bastow, Be . . 667, 670, 677 Batchelor v. Middleton Batenian, Re V. Boss (Countess of) Bates, Mc parte V. Bates. V. Dandy V. Hillooat Bathurst v. Murray . Batley v. Kynock Battersby, Re . Baxter, Be V. Bower Bealey v. Shaw Bearblook v. Tyler . ' Beardmore v. Gregory Beaufort (Duke of) v. Berty V. Morris V. Philipps Beaujolais Wine Co., Be Beaumont v. Boultbee. V. Bramley . V. Oliveira 219, 231, 239, 241 Beaumont's Trusts, Be Beoket v. Micklethwaite Beckett v. Buckley . Beddgelerfc Co., Be Bedford v. Bedford Bedford Charities, Be . Bedford and Cambridge Railway Co. V. Stanley Bedford (Duke o!)v. British Mu- seum . Beevor v. Luck 363, 370 . 579 . 442 . 304 79,81 . 402 . 389 . 123 306, 307 . 616 598, 604 . 272 277, 278 . 48 r9, 85, 216 114, 115 . 48 . 432 . 675 . 154 . 468 . 695 . 398 391, 418 . 704 . 79 . 530 445 . 445 395, 396 Beioley v. Carter Bell V. Bank of London ■ V. Blyth V. Cade . V. Walker V. Wilson Bell's Case Bellamy v. Brickenden V. Cockle Bellwood, Be . Belsham v. Percival Belton, Be Bending v. Bending Bennet v. Whitehead Bennett, Be V. Baxter V. Foster V. Hamill V. Rees Bennitt v. WhitohoTise Benson v. Duncan Berkeley, Be Berkhampstead School Bernard v. Morgan Bemey v. Harvey V. Sewell Berrie v. Howitt Berry v. Armistcad V. Johnson Berwick (Mayor of) v Besch V. Frolich Betts i;.,De Vitre V. Gillois V. Neil son Bevan & Whiting, Be Bewick v. Whitfield Beynon v. Cook . Bibby v. Naylor Bickett V. Morris Bickford v. Skewes Bicknell, Be Biggs V. Head . Bignold, Be Bignold's Settlement, Billsou V. Owen V. Scott Binfield v. Lambert Bingley School, Be Binks V. Lord Rokeby Bird V. Gandy . 440, Case Murray Be 119 FAOB 462, 488 . 410 . 410 . 37 . 290 164, 260 . 679 . 373 365, 368 . 612 33,77 . 513 . 491 . 164 . 521 . 497 . 224 . 462 439, 440 . 263 . 412 . 613 . 245 . 399 . 165 . 378 . 502 . 468 . 469 . 155 . 175 299, 306 . 305 . 304 497, 514 . 259 . 419 79,80 . 277 . 305 . 620 . 314 . 522 . 613 . 181 , 401, 402 . 213 . 532 . 465 . 405 Digitized by Microsoft® TABLE OP OASES. FASB Bird V. Husler .... 20 Black V. Galsworthy ... 34 Blackemore v. Glamorgan Oanal Navigation .... 267 Blaokett v. Bates . . . 444 Blacklock v. Barnes . • . 371 Blaokmore v. Smith . . 76, 92 Blagden, Ex parte . . . 155 V. Bradbear . . . 443 Blagrave v. Blagrave . . . 258 Blair v. Bromley . . '. 451 Blakeley v. Blakeley . . .216 Blakesley, J?e . . . .524 Blanchard, Be . . . .612 Bland v. Davidson ... 88 Blenkinsop v. Blenkinsop . . 5 Blinston v. Warburton . . 38 Bliss V. Putman. . . .80 Blower w. Morrets ... 87 Bloxam v. Metropolitan Railway Co. . Bloye's Trusts . Blundell, Be . Blunt, Be Blyth, Be Boddy V. Kent . Boden, Be Bodicoate v. Steers Boehm V. Wood . Bogue V. Houlston Boileau v. Eutlin Bolden v. Nicholay Bolingbroke's Case Bolme V. Snout Bolton V. Bolton • V. Corporation of Liverpool Bonaparte (The), Ux parte Bonfil V. Purchase Bonser v. Bradshaw Boon V. CoUingwood Booth V. Carter V. Creswicke V. Leycester ■■— V. Rich Bootle V. Blundell Bostock V. North Staffordshire Bail- way Co. . . 317,324,325 Bosvil V. Brander . . 141, 142 Bbucicault v. Davenport . . 87 V. Delafield . 77, 86 319, 325 . 591 . 534 . 330 . 582 75,76 . 599 475, 479 342, 451, 465 287, 295 . 58 . 146 . 440 . 166 . 479 33 412 82 498 334 239 403 372 118 213 Bourke, Be ... . 601 Bovill V. Cowan ... 32 V. Crate . . 299, 305 V. Goodier . . . 307 V. Smith . . . 308 Bowen v. Brecon Railway Co. . 348 Bower v. Angier ... 4 V. Pernie ... 32 V. Law . . . 254 V. Hope Insurance Society 641, 683 Bowman v. Bell . . . 342 Bowra v. Wright . . 401, 479 Bowser v. Maclean . . . 267 Bowyer v. Beamish ... 87 V. Bradshaw . . . 503 Box, Be 634 Boxon V. Williams . . .386 Boyce, Be . . . 594, 612 Boycott, Be ... , 612 Boyle, Ux parte . . , 390 Be . . . .521 Boyse v. Colclough ... 44 V. Rossborough . . 213 Bozon V. Bolland . . 496, 497 Brace v. Duchess of Marlborough 392, 393 Bracey, JJe . . . 515,516 Brackenburg, Be . . 612, 614 Bradford w. Belfield . . .430 V. Brownjohn . 159, 161 V. Earl of Romney . . 468 Bradley v. Munton . . 440, 615 Bradshaw, Hx parte . . . 601 V. Bradshaw . . 448 Brady, Be ... . 522 Brancker, Hx parte . . . 334 Brandon v. Brandon . 79, 348, 371 Brass, Be .... 601 Brassington v, Brassington . Braund v. Earl of Devon Bray v. Akers . Brealey's Settled Estates Breech Loading Armoury Co Brent v. Best Brett's Case Brewin v. Austin Bridges v. Huxman Robinson Bridgewater v. De Winton Biidgman, Be . Bridport Old Brewery, Be . 496 . 532 . 136 . 619 Be 680 ■ . 162 664, 665 . 373 . 212 . 450 . 34 . 613 . 674 Digitized by Microsoft® TABLE OF CASES. PAGE . 305 . 305 . 662 241, 402 643, 645 . 635 Bridson v. Benecke V. McAlpine . Briggs, Ex parte V. Chamberlain Brighton Club, Be Briscoe, Ee V. Great Eastern Ry. Co. 317, 324 Bristol V. North Somerset Ry. Co. 707 Bristow V. Booth . . 605, 610 Bristowe V. Whitmore . . 407 British and Foreign Gas Company, Re .■ . . . 645,648 British Mutual Investment Co. v. Cobbold .... Broad v. Wickham Broadbent v. Imperial Gas Co. Broadwood, Ee . Broadwood's Settled Estates, Ee . Brodie v. Bolton Bromage v. Davies Bromhead v. Hunt Brompton (Incumbent of), Ex parte Brompton Waterworks, Ex parte Brook V. Brook . Brooke v. Brooke V. Haynes . — V. Mitchell . V. LordMostyn Brookes v. Brookes Brooks V. Cock . :— V. Hertford . Brougham v. Squire . — V, Broughton . Brown, Ex parte ' — V. Fenwick . ' V. Hayward «. Higgs V. Kennedy . V. Oakshot V. Eye V. Stenson V. Tanner V. Weatherby Browne, Ee V. Blount V. Groombridge V. Yeall Brownlow v. Metropolitan Board of Works 493 344 271 619 581 223 493 496 540 565 . 613 . 476 . 458 . 554 . 137 . 342 . 295 . 479 . 469 . 370 . 530 249, 695 . 584 138, 212 . 241 . 458 . 470 225, 700 . 489 . 409 . 212 579 345 224 237 521, 278 Brunskill v. Caird Brutton, Be Bryan v. Cormick V. Mansion V. Wastall Bryce v. Bury . Bubb V. Yelverton Bucoleugh (Duke of) field . Buchanan, Ex parte ■ V. Greenway Buckeridge v. Whalley Buckingham v. Sellick r V. Sheffield . Buckmaster v. Harrop Buckworth v. Buckworth Bugden v. Bignold Bulkeley v. Earl of Bglinton V. Hope Bull V. Palkner V. Withey Buller V. Butler Bullock V. Menzies Bunbury, Ee Bimnett, Ee Burgess v. Burgess ' V. Hatchley . V. Hills Burke v. O'Connor Burley's Estate, Ee . Burmester v. Moxon . Burnell v. Wellington Burney v. Morgan Bm-nham National Schools Burrell v. Smith Burridge v. Roe Burroughs v. Oakley . Burrowes v. Lock Bury V. Allen . Bush, Be . Busk V. Fearon Butcher v. Butcher Bute (Marquis of), Ee Butler V. Oumpston . Butler's Will, Be Buxton V. James V. Monkhouse Byrch, Be Byron (Lord) v. Johnstone Bywater, Ee FAOE . 580 . 492 345, 878 . 219 . 21 . 387 . 259 Wake- . 280 . 679 . 405 . 153 . 486 . 77 . 443 . 115 . 397 611, 613 . 37 . 388 . 136 . 115 . 142 . 620 . 634 . 312 . 313 . 313 . 375 . 620 . 369 . 90 75, 79, 80 . 533 . 223 406, 407 . 448 . 448 . 176 . 103 . 412 . 443 . 596 . 146 . 581 292, 293 . 378 . 513 . 313 . 342 Digitized by Microsoft® TABLE OF CASES, XXVll c. Caddick's Settled Estates . Cadman v. Homer Oaleraft v. Thompson Caldwell v. Bayliss . , . UaledoQian Eailway Co. v. Sprott . Calley v. Richards PAGE tjl8 448 272 258 280 33 . 480 696, 697 . 444 . 462 . 226 . 462 Calmady v. Calmady . Calne Railway Co., He Calverly v. Williams . Calvert v. Godfrey V. Sebright Camden v. Benson Cameron's Coalbrook Railway Co., Be 33 CampbeU, Ee . . . .613 u. Allgood . . .258 V. MuUett . . .175 Cane v. Martin . . . .497 Cann, Be 579 ■ «. Cann. . . . 456 Cannon v. Johnson . . . 481 Cant, Be 584 Canterbury (Archbishop of), -Eic parte ..... 560 Capes V. Rutton . . . 284 Capps V. Capps .... 80 Capron v. Capron . . 160, 220 Cardell v. Hawke . . .217 Oardick v. Masson ... 91 Carew v. Cooper . . . 345 Carey v. Burtie. . . . 164 K. Hills . . .216 Cargo ex Sultan . . . 412 CarJ.isle (Countess of) v. Lord Berkley 343 Carlton v. McEnzie . . . 136 Carmarthen and Cardigan Railway Co., Ex parte . . . 586 Carmichael v. Carmichael . . 154 Carpenter, Be . . . . 606 Carpmael v. Powis . . . 469 Carr v. Estabrook . . . 145 Carrington v. Nuttall . . 47 V. Payne . . . 213 Carrodus v. Sharp . . . 447 Carr's Settled Estates. . . 628 Carter v. Barnardiston . . 214 V. Carter . 189, 393, 498 v. Green . . .247 PAGE Carter v. Sebright . . . 614 V. Taggart - . . 140, 143 Cartier v. Carlisle , . .313 Cartwright v. Shepherd . . 84 Carven, Be . , , . 524 Cary v. Faden . . . 289, 290 —. V. Longman . . 289, 290 Oasborne v. Barsham , . .48 Caslon V. Forbes . . , 366 Cassavetti v. Cassavetti . . 192 CasselU. Stiff . . . .291 Castle V. Wilkinson , . . 447 Catholic Publishing Co., Be 643, 645 ' Catlin, Be . . . .524 Cato V. Irving .... 411 Cator V. Reeves .... 368 Catton V. Wyld. . . . 450 Cavendish v. Cavendish . . 464 — V. Mercer . . . 115 Cawley and Whatley, Be . . 522 Cawthorne, Be . . . . 592 Central Railway Co. of Venezuela. V. Kiscb . . . 468, 661 Chadwick v. Chadwick 77, 79, 82, 86 Chaffers v. Headlam ... 93 . 582 254, 258 Chamberlain, Be Ohamberlayne v. Duinmer Chambers, Be i V. Goldwin Chambris v. Goldwin . Ohampney, Expa/rte . Chandler, Be . Chapell V. Sheard Chaplin v. Chaplin , . Ohapman v. Chapman V. Gibson V. Smith and Shaw, Be Chappell V. Davidson V. Rees V. Sheard Charingbould v. Curtis Charlesworth v. Haigh Charlton v. Newcastle and Carlisle Railway Co. .... 325 V. Poulter . . .285 Chatfield v. Berchtoldt . . 5 Chatham v. Higginbottom . . 179 Chamicey, Be . . . . 612 Chavanv v. Van Sommer . .174 524, 628, 630 154 378 115 492 292 162, 373. 493 . 457 . 47 . 103 252, 313 . 357 309, 313 . 441 . 341 Digitized by Microsoft® TABLE OF CASES. PAGE Chawner's Trusts, Be. . . 634 Cheats V. Kenward . . .441 Chelmsford Grammar School, Re . 245 Cheshimt College, Re . . 569, 579 Cheslyn Hall, Be . . . 492 Cheslyn v. Dalby . . . 550 Chester v. Chester . 80, 230, 240 Chichester v. Marquis of Donegal 34 ^ V. Hunter ... 89 Chilcote, Re . . . .513 Chinnock v. Marchioness of Ely . 450 Chisholm v. Ferguson . . 362 Chislehurst College, iJe . . 532 Chomley v. Countess of Oxford . 422 Ohowick V. Dimes ... 76 Christchurch (Dean of) Ex parte . 584 Christie v. Cameron ... 4 V. Ovington . . . 729 Christ's Hospital v. Grainger . 542 Chubb V. Petipher . . .485 V. Stretch . . .146 V. Witt . . .188 Church Estate Wandsworth, Re . 540 Churchill v. Salisbury and Dorset Railway Co 316 Churton v. Douglas . . 283, 285 Cilfoden BeneBt Building Society, Re 654 City and County Bank, Re . 649, 650 City of London Brewery Co. v. Tennant . 253, 254, 268, 273 City of London Financial Associa- tion, Re . . . 650, 651 Clagett V. Phillips ... 33 Clarendon (Earl of) v. Hornby 479, 480 . 126 . 142 . 305 1 444 Clark, Be Clark V. Cook . V. Ferguson . V. Grant V. Malpas V. Tipping V. Ward Clarke, Ex parte V. Clark V. Cost . V. Earl of Ormonde V. Taylor V. Tipping V. Wilson Clavering v, Claverinsc . 91 . 606 . 658 273, 450 . 155 . 154 . 242 153, 154 . 448 . 259 Olavering's Case Clay, Ex parte V. Kufford Claypole (Rector of). Ex parte Clayton v. Clarke • V. Fishwick - V. Rowland Cleland, Ex parte Clement v. Maddick . Clement's Case . Cleveland's Harte Estates Clifford V. Turrill Clift V. Watkin . Clifton V. Burt . Clinan v. Cooke Clinch V. Financial Corporation Ciine's Estate, Be Clive V. Beaumont Clossey, Be Clough's Estate Clouten, Ex parte Glutton, Be Cobbe, Be Cobbett V. Woodward Cobden v. Maynard . Cockayne v. Harrison. Cockburn v. Peel V. Raphael Cockle V. Whiting Cockroft V. Sutcliffe . Cooks V. Jones . v. Manners Codrington v. Parker . Cogan V. DufiSeld Cohen v. Wilkinson . Colbourn v. Simms . Cololough V. Sterum . Cole V. Cole V. Sewell Colebrooke v. East London Rail way Co. Coleman v. West Hartlepool Rail- way Co. Coles V. Trecothick . Collard v. Allison V. Roe . Collier V. McBean Colliugwood, Be Collins, Be PAGE . 444 . 175 . 444 . 580 . 118 . 257 . 337 249, 259 . 498 308, 313 . 680 . 330 496, 497 . 338 217, 218 , . 443 . 658 . 160 . 438 526, 527 . 618 . 387 . 613 . 592 . 290 . 460 . 498 . 635 343, 345 . 493 . 223 . 383 227, 239 . 378 . 457 . 324 . 287 . 462 . 153 480 316 . 104 . 448 304, 305 . 440 595, 608 . 493 Digitized by Microsoft® TABLE OF CASES. Collins Co. V. Brown . Collinson ■;;. Collinson V. Lister Colman v. Duke of St. Albans V. Eastern Counties Rail- way Co. V. Turner Colnaghi v. Ward ColsoD, 2Je Colyer v. Colyer V. Finch Combe v. Corporation of London . Commercial Bank of India, Re 658, Comming v. Scott Commissioners of Courts of Jus- tice, Re .... Commissioners of Sewers v. Glasse Consolidated Bank, Re Constantinople and Alexandria Hotels Co. Contract Corporation, Re Conybeare, Re . V. New Brunswick Rail- way Co. Good V. Cood Cook, Ex parte . ,Re V. Bolton V. Hart . V. Sadler Cook's Policy, Re Cooke V. Forbes V. Fryer Cookes V. Cookes Cookney v. Beavan Combe v. Corporation of London Coombe v. Stewart Coombes v. Brookes Coope V. Carter V. Cresswell ' V. Twynam Cooper, Re 'V. Blumfield V. Evans V. Hood V. Jones V. Martin V. Wood Coote V. Whittington Cooth V. Jackson PAGE 313 474 77 378 324 216 29,5 591 79 388 34 ,683 443 584 265 648 648 680 613 468 443 175 625 77 224 405 679 450 135 151 5 33 404 613 217 58 163 612 211 164 441 604 457 4 216 443 Cope V. Evans . ^ V. Russell PAGE . 187 4 . 163 76, 138 . 441 . 422 Copin V. Middleton . Coppin V. Coppin Coquet V. Gibson Corbet V. Barker Cor'i (Earl of) v. Russell 389, 391, 697 Cormaok v. Beasley . . . 498 Cornewall v. Cornewall . . 214 Cornish v. Upton . . .290 Corns V. Griffiths . . .309 Corporation of the Sons of Clergy V. Mose .... 244 Corsellis v. Patman . . . 387 Corslake v. Pill . . . .441 Cory V. Eyre . . . .388 Cosens v. Bognor Ry. Co. 323, 407, 451 Coster V. Coster . . . 143 Cotham v. West . . .364 Cotton, JEJ3 parte . . . 379 Counter v. Macpherson . . 445 Courand v. Hanmer . . . 342 Court V. Barr .... 100 Coventry (Lord) v. Burslem . 165 V. Coventry . . . 224 V. Gladstone . . . 411 Coward and Adam's Trust, Re . 148 V. Chadwick . . . 345 Cowbridge Railway Co., Re .697 CoweU V. Simpson . . . 498 V. Sykes . . . 175 Cowley (Earl of) v. Wellesley 38, 259 Cox, Ex parte .... 393 V. Allingbam ... 58 V. Chubb . . .168 ■ «. Cox . . ' . 224, 481 V. Land and Water Journal 290 V. Stephens ... 93 Crabtree, Be . . . 614, 615 Crabti-ee's Settled Estate, Re . 618 Craig V. Wilson . . . 493 Crane v. Price .... 303 Crawford v. Hamilton . . 174 V. North Eastern Rail- way Co 325 Crawshay v. Collins . 167, 174, 557 V. Maule . 166, 174, 175 Craythorne v. Swinburne . . 163 Credit Poncier of England, Re . 688, 689, 693 Digitized by Microsoft® TABLE OF CASES. ?AaE Cresswell v. Bateman ... 81 Creswick v. Harrison . . . 386 Cre'we (Lord) v. Edlestone . . 344 Crisp, Ex parte . . 398, 420 V. Platel ... 34 Croft W.Day . . . .312 Croome v. Lediard . . . 284 Crop V. Norton .... 440 Croskey v. European Steam Ship- ping Co. .... 86 Cross Charity, Be . . . 242 Cross V. Cross .... 90 — V. Kennington . . 223 Crossley v. Clay . . . 553 V. Derby Gaslight Co. . 306 V. Lightowler . 276, 278 V. Maycock . . . 442 V. Stewart . . . 307 Crouch V. Waller . . 137, 138 Crdwe's Mortgage,. Me . 598 Croxon v. Lever . . 119, 401 Croxton v. May . . 143, 144 Crump V. Lambert . . . 279 Cubitt V. Palmer . . .280 Cudd V. Rutter . . . .441 Gallwick V. Swindell . . 361, 379 Cuinberland v. Copeland . . 290 Cuthing, Be Cuhder's Estates Curd V, Curd . Curran v. African Co. Currie, Be V. Pye . Currier's Co. v. Corbett Curteis o. Candler Curtis i;. Curtis — - — V. Hulton V. Price Cuthbert v. Wharmley Cutler Be V. Powell Cutts V. Cooley • . V. Salmon 595, 696, 598, 608 . 619 . 32 . 155 . 521 . 247 273, 449, 450 . 222 . 491 . 239 . 462 . 249 . 143 . 159 . 469 . 403 D. Da Costa v. Da Costa. . . 118 Dale V. Hamilton . . . 460 D'Almaine v. Boosey . . 292, 293 Dalmer v. Dashwood . . . 378 DiiltoD, Be V. Hayter V. Wilson Dangan v. Eivaz Dangar v. Stewart Daniel v. Harding V. Skipwith D,apper v. Durant Darbey v. Darbey V. Whittaker Dare Valley Eailway Co., Be Darley v. Nicholson . Darliley v. London, Chatham, and Dover Eailway Co. . 22, 449, 450 Darthez v. Clemens . . .151 Dartmouth and Torbay Eailway Co., Be. .... 566 PAGE 132, 591 420 400 325 80 91 369 20 175 441, 445 551, 552 333, 334 Davenport v. Davenport ■». James ■ V. Jephson 45, 46, 301, 305, 306 300, 306 . 595 . 483 . 513 . 494 615, 634 . 93 313, 314 . 448 . 77 257, 258 580, 612 . 613 . 370 . 524 305 367 V. Eylands Davey v. Miller V. Wiellisback David, Be Davidson v. Leslie Davies, Be — V. Boulcott V. Clough V. Cooper V. Davies • — V. Leo . Davis, Be V. Chanter V. Dendy V. Dysart (Earl of) V. Marlborough (Duke of) 336, 342, 344, 345, 349, 378 Daw V. Eley . 105, 302, 307, 308 37, 154, 464 . 513 . 344 . 342 . 258 . 407 . 530 . 498 . 253 . 344 . 142 . 307 Dawson v. Dawson V. Sadler •■ — ^ V. Yates Day V. Croft . V. Merry Deane v. Byrnes Deane's Charity De Bay and Griffin Deere v. Guest . Defries v. Creed. De la Garde v. Lempriere Delame v. Dickenson . Digitized by Microsoft® TABLE OF OASES. XXXI FAOB De la Salle v. Moorat . . . 217 De la Torre v. Bernalls . . 21 De la Touche's Settlement 455, 458, 591 Delevante, Be . . . .217 Delme, Be . . . .561 Demainbray v. Metcalf . . 380 De Manneville v. De Manneville . 115 Dempsey v. Dempsey. . . 464 Dennis, Be . . . 527, 634 Denny v. Hancock . . . 452 Dent V. Auction Mart Co. . , 271, 273 V. Turpin . . .313 Denton Colliery, Be . . . 662 V. Dormer . . . 468 V. Macneil . . . 661 Derbyshire Eailway Co. v. Bain- brigge 390 Dering v. Winchilsea (Earl of) . 161 De Tabley's Settled Estate . . 619 Detillin v. Gale. . . .374 BeTiaSorA, Ex pwrte. . . 526 Devaynes v. Morris ... 79 w. Noble . . 156,173 De Visme v. De Visme . 464, 465 De Vitre v. Betts . . .307 Devon and Somerset Hallway Co., Be 705 Dewell V. Tufnell . . .470 De Winton v. Mayor, &c., of Brecon 340, 345 Dick V. Milligan Dickson, Be . 517, 518, 521 V. Clarke Dimson's Estate, Be . Dines v. Blake . Dinwiddle v. Bailey . Disney, Be Dixon V. Astley V. Dawson V. Jackson V. Muckleston V. Pyner V. Smith V. Williamson Dobson V. Groves D'Oechsner v. Scott . Doe d. Pate v. Boe Doggett V. Eastern Counties Eail- way Co. Dolby V. Challin 552 522 4 . 670 . 553 . 150 . 143 . 448 . 224 569, 579 . 388 . 461 . 108 . 493 . 553 135, 138 . 108 ,87 22 FAOE Dolman, Be ... . 513 Doloret v. Rothschild . . . 441 Donaldson v. Donaldson . . 445 Doncaster Permanent Building So- ciety, Be Done's Case Donovan v. Fricker . Domer v. Fortescue . Douglas V. Douglas V. Russell Doulcet, Be Dowling V. Betzeman . V. Hudson V. Legh . Downes, Be V. Smith Downing v. Burden . Downshire v. Lady Sandys Drake, Be V. Symes V. Trefuais Dresser, Be Drinkwater v. Ratcliffe Driver's Settlement, Be Druitt's Case Drummond v. Drummond V. St. Albans (Duke 425, 652, 683 . 334 . 447 . 164 191, 222 . 411 . 612 . 441 . 342 . • 58 . 518 . .661 . 210 255, 258 517, 518 . 83 . 580 . 616 482, 486, 487 613 Dryden v. Frost Duckle, Be Duckworth, v. Trafford Dudley Canal Co. v. Grazebrook Dugdale v. Dugdale . V. Robertson . Dulwich College, Be . Dummer Trusts, Be . Dumville v. Ashbrooke Duncan v. McCalmont Duncombe v. Greenacre Duncroft v. Albreeht . Dungey v. Angove Dunkley v. Dunkley . Dunn V. Blake . ■ V. Bownas Dunne v. English — ■■ V. Doyle Dunstan v. Patterson, Be Durell V. Pritchard 253, 254, 268, 273, 449 Dutton V. Morrison . . . 175 Dyer v. Hargreaves . . . 447 of) 680 5 164 375 124 342 281 224 . 262 . 536 572, 580 . 344 . 412 141, 143 . 441 . 453 . 143 . 552 . 238 . 451 . 88 367, 374 Digitized by Microsoft® TABLE OP OASES. Dyer's Company v. King Dyke v. Taylor . . . • Dyson v. Hornby E. Eardley v. Granville (Lord) Bast Botallaok Mining Co., Be East Cambrian Gold Mining Co., lie East of England Bank, Be . East India Co. v. Keighley . V. Kynaston . Eastern Counties Railway Co., Be FA6B 270 282 465 263 646 652 98 154 306 053 Ebbw Vale Co.'s Case . 677, 678 Eocleshall (Overseers of the Poor oi),Be . . . .530 Ede V. Knowles . . 384, 387 Edelston v. Vick . . . 312 Eden v. Firth . . . 279, 421 Edenborough v. Canterbury (Arch- bishop of ) . Edmonds v. Foley Edmondson v. Harrison Edmunds v. Waugh . Edwards v. Batley T V. Cunliife V. Jones V. Martin V. McLeay V. Warwick (Countess of) Egham Burial Board, Be Eglinton (Lord) v. Lamb . Egremont, Be . V. Thompson Blderton v. Luck Eldridge, Be Electric Telegraph. Co. Elisha V. Elisha Ellerthorpe, Be . Elliott V. Inoe . 325 33 330 373 84 374 445 367 468, 469 161 541 33 579 81,88 48 80. V. Nott 48, ■ V. North Eastern Eailwa'yCo ■ V. South Devon Railway Co. Ellis «^. Medlicott V. Selby . Ellison, Be V, Ellison V. Elwin V. Sharp Blmhirst v. Spencer Elmore, Be 513 305 372 595 137 280 552 . 213 237, 238 611, 613 . 445 . 138 . 87 , . 277 635 634, Mton, Ex parte . ■ ■ 175 Elwell V. Crowther . . • 277 Ellwood «. Christy . . .306 Elworthy v. Billing . . .461 Ely (Dean of) v. Gay ford . . 93 Emmerson, Be . . . . 650 Emery v. Ware . . 440, 442 England v. Curling . . . 285 V. Downes . . . 223 English Assurance Co., Be . . 679 English V. Baring . . . 154 English Joint Stock Bank, Be . 680 Enthoven v. Cobb ... 34 Errington v. Aynesley . . 441 Erskine, i?e . . . 143,592 Esdaile v. Stephenson . 450, 465 Esaell V. Hayward . . . 175 Estate Co., Be . . . .693 Estates Investment Co., Be . 678 Estcourt V. Ewington . 135, 136 European Life Assurance Co, Be 644, 645, 647, 653 European Co., Be (Exparte Baylis) 652, 653 Evans and Howell, Be . . 554 V. Bagshaw . . . 479 V. Beer .... 103 ■ V. Bremridge 162, 163, 457 V. Evans . . . 334 V. Hogg. . . . 431 . 592 . 590 . 456, 458 149, 151, 152 . 670 Evans' Trusts, Be Everitt, Be V. Everitt Ewart V. Williams Exhall Mining Co., Be Exmouth Docks, Be . . . 683 Eton College, Ex parte . . 584 Exeter (Marquis of) v. Exeter . 368 Eyre v. Brett . . . .79 V. Marsden . . 224, 248 V. Shaftesbury (Countess of) 115, 123 F. Pairman v. Green . 115 Pairthome v. Weston . . 285 Falcke v. Gray . . 441 Pall V. Elkins . . 345 Pallowes V. Williamson 75,83 Digitized by Microsoft® TABLE OF CASES. XXXlll FAOS Family Endowment, Re . . 683 Fane v. Kichards ... 82 Faning, Be . . . .634 Fanshaw v. Eotheram . . 165 Farina v. Silverlook . . . 312 Farington v. Parker. . . . 222 Farmer v. Bean . . . 461 V. Giles . . . .425 Farr v. Sheriff . . . .222 Farrall v. Davenport . . 87, 443 Faulkner v. Bolton . . . 404 V. Daniel . . 366, 371 Fawkner v. Watts . . . 115 Featherstone v. Fenwiok . . 386 Featherstonhaugh v. Fenwick 167, 174 Feaver v. Williams ... 34 Felkin v. Herbert . . . 268 Fell V. Brown .... 420 Fellows, Se . . . 614, 616 Penton v. Brown . . . 447 Fenwick v. East London Eailway Co 279 Fenwick v. Potts . . .387 V. Eeed . . . .426 V. Reid .... 32 Ferguson v, Tadman . . ^ . 448 Ferrand v. Mayor of Bradford . 274 V. Corporation of Bradford 324 V. Wilson . . .259 Fenao's Case . . . .666 Ferrers (Earl) v. Stafford and Ut- toxeter Eailway Co. Ferriers v. Cherry Ferris v. Mullins Fiddey, JRe Field V. Moore . V. Titmuss . 557 . 82 . 385, 387 503, 515, 516 . 502 . 217 Fielden v. Buenos Ayres Co. . 493 Fielder v. Higginson . . . 462 Finch, -Be 521 «. Shaw. . . 404,405 ■!;. Winchilsea (Earl of ) 76,79 Finnigan v. James Fisher v. Dixon V. Fisher Fitzpatrick v. Mahoney Fitz William (Earl of) v. Price Flagstaff Mining Co., Be Flatcroft, Be . . . Fleetwood v. Green 308 379 584 154 372 645 604 439 PAGE Fleming v. Armstrong 224, 481 ■!). Self . . . 425,556; Flemon, Be . . , , 581 Fletcher v. Dodd . . . 343 Flight V. Cook . . . .442 V. Eobinson ... 33 Flint, Ex parte . . .155 V. Brandon . . . 442 Flockton V. Slee ... 82 Flower v. Hartop . . . 462 Fluker, Be . . . .513 Plynn v. Eohertson . . . 552 Foley, Be 513 w. Maillardet ... 5 Foligno V. Martin . . 451, 468 Foljamhe, Be . . . . 512 Follett V. Jeffrys ... 34 Fooks, Be .... 586 V. Wilts and Somerset Eail- way Co. Footner v. Sturgis Forbes v. Forbes V. Phipps Ford V. Lord Chesterfield V. Foster V. Tynte V. Wastell Ford's Charity, Be Porman v. Homfray . Porsbrook v. Porsbrook Porster v. Menzies Forster's Settled Estates Forsyth v. EUice Forteblow v. Shirley . Fortune Copper Mining Be . . . Foster, Be V. Bonner V. Dawber V. Harvey Fothergill's Case Fowler v. Bayldon V. Fosbery V. Fowler V. Garliki Pox V. Charlton V. Swerkrop . Foxoraft v. Wood Poxoroft V. Parris Foxon V. Gascoigne . . 323 . 387 222, 245 . 138 . 222 311, 312 256, 258, 259 . 390 531, 532 . 174 . 37 . 4,88 ' . 619 . 153 450, 465 Co., 650, 651 . 138 . 83 . 613 . 493 . 666 . 93 . 453 . 238 . 237 . 498 . 118 . 407 . 165 . 503 Digitized by Microsoft® TABLE OF CASES. Prance v. France Francis v. Brooking Franklin v. Howes Pranklinsld v. Ball Franklyn, Ex parte Fraser v. Burgess Prazer v. Thompson Frederick v. Ajmsoomb Freeman v. Pennington Freeman's Estate, lie French, v. Baron . . Freske. v. BuUer Prewen v. Watten Pricker's Case . Pripp V. Chard Bail way Co. Ptugil V. Blake . Fry V. Noble. Fryer, Be Fryer's Settlement, Be Fulham v. McCarthy FuUerton v. Martin . Purness v. Caterham Railway Pumess Railway Co. v. Smith Furnival v. Carew Fussell V. Elwin Pyfe V. ArbuthnOt Fyson, Be . . . G. Gabriel, Be . . . Gaitskell, Be . Gambert v. Ball Gardner v. Broadbent V. I^ondon, Chatham, Dover Railway Co . 339, V. Marshall Garey v. Whittingham Garland v. Garland . Garrard v. Prankel Garston v. Asplin Garth v. Cotton V. Townsend . Gartside, Be Gaskell v. Gaskell Gaunt V. Pynney V. Taylor Gearns v. Baker PAGE 1 483,486 1 143 381 450 581 407 113 213 79 674 370 5 154 680 344 343 491 216 5f SI, 625 79,84 . 80 Co. S4 14, 390 284 441 76 223 516 513 513 295 305 anc i ,34 I, 345, 6J )6, 697 143 136 343 457 267 1( i4, 259 457 612 4^ 9,488 2f )8, 280 223 258 Gedge, Be Gee V. Atherton V. Cottle V. Pritchard AGE . 513 . 346 135, 136 290, 314 . 461 Geldard v. Randall General Bank for Promotion of Agricultural and Public Works, Be 689 General Company for Promoting Land Credit, Be . . . 644 General Exchange Bank, Be . 653 General International Co., Be . 654 General Rolling Stock Co., Be 642, 652, 675 Gent V. Harris . Gerrard v. Dawes Gervais v. Edwards Gervis v. Gervis Gethjng, In re . Giacometti v. Prodgers . 143 . 502 284, 445 203, 214 . 304 . 143 411, Gibbins v. North Eastern Metropo- litan Asylum . 427, 438, 439 Gibbon v. Gibbon Gibbons v. Kibbry Gibbs V. Harding Gibraltar (Bank of), Be Gibson, v. D'Este V. Goldsmid . : V. Ingo ■ V. Jeyes V. Patterson . V. Seagrine Giffard v. WiUiams . Gifford, Ex parte V. Hort Gilchrist v. Cator Giles II. Wilcox Gill V. Eyton . Gilpin V. Lady Southampton Gingell v. Home Girdlestone v. Lavender Glaholm v. Barker Glassington v. Shwaites Globe (New Patent Iron Co, Gloucester (Dean of), Ex parte Glover v. Hall . Glyn V. Caulfield Goddard v. Complin Godfrey v. Sittel V. Watson . 370 . 145 438, 442 . 675 . 468 . 284 494 403 449 397 474 163 462 143 290 34 214 212 368 329 285 645 . 583 . 33 . 34 . 393 . 489 258, 371 ), -He Digitized by Microsoft® TABLE OF CASES. Goldsmid v. Tun bridge Wells Com- missioners .... 268 Goodall V. Skeeratt ... 82 Goodohild v. Terrett . . .212 Goodellw. Little ... 34 Goodenough. v. Goodenough . 491 Good Intent Society, Re . . 594 Goodman v. Sayers . . . 553 Goodsou V. Richardson . 253, 264 Goodwin, 5e .... 470 V. Clarke . . . 451 V. Fielding . . .448 Gordon v. Horsfall . . .420 V. Jesson ... 82 . V. Simpkinson . . 165 Gore Langton's Estate, Be . .585 Goring v. Farrell . . . 397 Gotch V. Arnold . . .38 V. Foster ... 38 Gough V. Latouche. . . .81 Gourlay v. Duke o£ Somerset . 550 Governesses Institution v. Eus- bridger Grace v. Newman Graham v. Fitch V. Oliver Grant, £x parte , Be V. Grant V. Taylor Graves v. Wright Gray v. Chigwell V. Gray. . 224 289, 290 . 136 . 447 . 527 . 615 20. 334, 614 . 372 . 215 . 175 . 468 Great Cwinsymlog Silver Lead Co., Be Great Northern Copper Mining Co, Be Great Northern Mining Co., Be . Great Northern Railway Co., Hx parte .... Great Ship Co., Be . Great Western Railway Co. Bennett V. Rushout Greatrex v. Greatrex . Greedy v. Lavender . 145, Green, Be . ■ • V. Green . . V. Pigot . V. Pledger 565, 651 644 653 586 . 670 V. . 259 319, 324 284, 286 211, 225 594, 635 . 266 . 442 . 267 PAGE Greenacre, Be . . . . 609 Greene. «. West Cheshire Railway Co. . . . . . 445 Greenfell v. Dean of Windsor . 345 Greening v. Beokford . . . 330 Greenough v. Gaskill ... 33 V. Shprrock ... 90 Greenwell v. Greenwell . . 115 Greenwood v. Bothwell . . 34 V. Greenwood ... 32 V. Taylor . . 217, 218 Gregg, Be . . . .493 V. Slater . . .375 V. Taylor . . .513 Gregory v. Mighell . . . 444 V. Pilkingtqn . . . 374 Gregson v. Booth . . 214, 215 Grey v. Metropolita,n Railway Co. 433 Grierson v. Eyre . . . 259 GrifBes ■!). Griffies . . .481 Griffith V. Ripketts. . . . 82 V. Vanheythusen- . 79-84 Griffiths V. Griffiths . . 494, 495 Grimstone, Ex parte . _ . . 420 Groom, Be ... . 127 Grove v. Perkins . . . 142 V. Sansom . . . 513 Groves v. Lane .... 93 Grundy v. Buckeridge . . 616 Guard v. Penswick ... 32 Guest V. Cambridge Railway Co. . 697 V. Homfray . . . 469 V. Smythe . . 461, 470 Guibert, Be . . . .613 Guilden Sutton (Incumbent of), Ex parte .... 583 GunneH v. White . . .222 V. Whitear . . .592 Gunson v. Simpson . . 596, 616 Guy V. Guy . . . . 118 Gwynne v. Edwards . . . 217 Hackett v. Baiss Hadley, Be Hagger v. Baker Haigh, Be Hair, Be . Hakewill, Ex parte 273 612 553 553 512 127 Digitized by Microsoft® c 2 TABLE OP CASES. Haldane v. Eckford . i Hale V. Webb . Haley v. Bannister V. Hammersley Halifax, Ex part^ Hall V. Hall ■ • V. Hardy V. Laver lie Hallett, Se Halliday, Be Halllwell V. Philipps . Hallows V. Pemie Hall's Charity . Halstead United Charities, Hatton V. Haywood . V. Hayward . Haly V. Barry . Hamer v. Sharp Hamer's Devisees' Case Hamilton v. Buckmaster V. Hector V. Houghton Hammersmith and City Railway Co. V. Brand . Hancock v. Attorney-' Handley v. Davies V. Parmer ■General Haney's Trusts, Be Hankey v. Vernon Hanover (King of) England Hansom v. Keating Hanson v. Derby V. Gardner Harbidge v. Wogan Harbord, Ex parte Harding, Be V. Harding FAOK 3, 189, 221, 222 . 161 . 115 . 379 . 387 105, 285 . 442 . 497 . 518 . 619 . 258 . 661 . 530 . 585 . 391 . 697 . 333 . 442 . 666 . 440 . 442 . 462 V. Metropolitan Railway Co. Hardman v. EUames . Hare v. Hare .... V. Horton V. Lea .... V. London and North West- ern Railway Co. , V. Rose .... 279 367 224 425 591 386 Bank of 611, 613 141, 142 258 257 457 584 521 208, 468 445 33 213 379 701 185, 187, 188, 324 222 Hargreave's Settled Estates, Be 618, 629 Hargreaves v. Wright. . 598, 607 Harloe v. Harloe . . . 225 i Hemings v. Pugh Harmer v. Gooding V. Plane V. Priestley Harnett v. Pielding Hareington v. Dale Harris, Be V. Hamlyn V. Ingledew V. Pepperell 432, V. Rydding V. Start Harrison, Be V. Armitage V. Boydell V. Guest V. Harrison V. Hogg V. Kennedy V. Southcote V. Taylor V. Tennant Harsluck v. Pedley Hart V. Tulk . Hartland v. Murrell Hartnall, Be Harvey v. East India Co. V. Hall . V. Harvey V. Shelton V. Tebbutt Hattatt, Be Hawkins, Be , Ex parte V. Allen V. Maltby Hay V. Palmer . Haynes v. Cooper V. Haynes Haytor Granite Co., Be Hayward v. Pile Haywood v. Cope Heald v. Hay . Healley v. Thomas Hector v. JoUiffe Heighington v. Grant Helbert v. Banner Helling v. Lumley Heming v. Pugh V. Swinnerton PAGE . 555 . 304 . 415 . 444 . 168 . 591 . 113 . 213 447, 457, 468 . 280 . 513 302, 304 . 174 343, 348 . 468 . 219 . 295 137, 402 .. 407 297, 309, 313 . 175 . 221 188, 342 . 524 . 604 . 101 . 525 . 103 553, 554 . 405 . 613 . 250 . 670 228, 238 . 441 . 161 . 498 . 166 . 689 . 82 . 448 4 . 146 . 156 . 154 664, 665 . 445 . 151 . 553 . 157 Digitized by Microsoft® TABLE OF CASES. Hemsley, Re . ^ . Hemsworth v. Brian . Henderson v. Bamber . V. Dobbs V. Lacon Henry, Ex parte ■ V. Great Northern Eailway Oo. V. Wyatt Hepburn v. Lordan . Herbert, Re ... . Hereford (Bishop of), Ex parte Hereford and South Wales Waggon Co., Re. Hering v. Lord Winchelsea Herman v. Hodges Herrett v, Reynolds Herring v. Clark • V. Cloberry PAGE 620 534 678 223 661 304 325 122 254 614 560 Hervey v. Hervey Heslop V. Metcalfe Hewetson v. Todhunter Hewitt, Re V. Loosemore V. Nanson Hewitson v. Sherwin Hext V. Gill Heygate v. Annesley Hibbert v. Hlbbert Hicks V. Hicks . Hickinbotham v. Bisgood Higgins V. Shaw Higginson v. Clowes Higgs V. Dorkiss Higgs' Case Hiles V. Moore . Hill Pottery Co., Re Hill V. Andus . V. Bonner V. Buckley V. Edmunds V. Gaunt W.Hill . V. King . V. Thompson V. Turner Hills V. McEae . V. Springett Hind V. Whitmore Hinde v. Morton . 653 . 163 380, 442 . 105 . 594 . 34 . 486 . 496 . 93 .. 599 . 388 369, 461 103, 106 . 280 . 138 . 343 . 343 . 156 . 88 . 444 . 486 . 661 342, 393 640, 668, 670 . 329 . 93 436, 447, 448 . 402 . 89 . 114 . 176 304, 305 . 123 . 171 79,81 . 135 75,89 Hindley v, Emery Hindustan (Bank of). Re , China, &o. (Bank of), Hinton, Re Hipkins v. Hipkins Hirst V. Denham V. Tolson Hirtzel v. Mules Hitchcock V. Jaques Hoare v. Osborn Hoare's Trust, Me Hobday v. Peters Hobhouse v. Courtney V. Hamilton Hobson V. Ferraby V. Sherwood Hodgens 658 513 97 311 161 169 21 229, 238, 239, 241 458, 591 . 146 4 . 314 . 457 . 479 123, 142, 144, 145 . 591 552, 553 . 675 . 347 . 98 . 163 . 612 . 216 . 493 . 290 253, 290 . 89 . 581 . 386 . 252 . 403 . 258 . 222 . 718 513, 514 . 486 77,87 . 153 . 153 . 403 . 360 . 261 . 34 Counties Eail- 282, 284 . 175 . 464 Holt V. Eochdale (Corporation of) 276 Hodges, Re Hodgkinson •!). E'emie V. Kelly Hodgson V. Davidson V. Hodgson V. Shaw Hodson, Re 1). Ball . Hogan, Re Hogg V. Kirby . V. Scott Holcombe v. Trotter Holden, Re V. Heam V. Waterlow Holdsworth v. Wakeman Hole V. Thomas HoKord V. Phipps Holland, Re V. Gwynne V. Holt HoUingshead's Case HoUis V. Bastard V. Bulpeet Holman v. Loynes Holmer v. Turner V. Upton Holmes v. Baddeley V. Eastern way Co. Holroyd v. Holroyd Wyatt PAGE 268, 449 ,Re Digitized by Microsoft® TABLE OF CASES. Holten w. Arthur . . .290 Holyford Mining Co., Be . . 681 Holywell, Re . . . .584 Home Assurance Association, Be 642, 647, 652, 653 Homev. Pattrick Honnor's Trusts, Be . Hood V. North Eastern Railway Co, r V. Oglander Hoole V. Roberts Hooper, Be V. Cooke ■V. Smart Hope, Be . Carnegie ■ V. Fox . ■ V. Hope . ■ V. Liddell Hopkins v. Worcester and Birming- ham Canal Co. Hopkinson v. Ellis V. Burleigh (Lord) Hopper, Re Horde v. Suffolk (Earl of) Horlock V. Smith . Hornby v. Holmes, : r V- Hunter Horne v. Paljick Homer v. Morton . Horsey's Claim . Horsfall v. Hulbert Horwood V. Schneider Hoskins, Be . Hoste V. Pratt . Hotham's Trusts, Be . House V. Chapman Houston V. Brisco Hovenden v. Anerley . How V. Vigures Howard, Be V. Bank of England V. Barnwell . V. Harris V. Robinson . Howarth v. Powell Howe V. MoKernan . Howel V. George Howell V. Price . Howes V. Chapman . V. McKerman. 136 242 445 440. 374 634 339 447 103 137 . 85 4, 105, 141 33, 496 4, 136, 339, 344 . 224 33, 290 553 238 521 4 152 136 142 689 120, 122 79,84 . 616 . 115 . 580 . 224 . 77 . 88 . 369 . 604 . 107 . 480 . 420 . 34 . 150 . 307 440, 442 . 214 . 248 . 33 Hoy V. Smithies .... 452 Hubbard, iJ« . . . .521 V. Hubbard . . .481 Huberts' Case . . . .123 Hubertson v. Goold ... 81 Huddersfleld (Corporation of) v. Jacomb .... 553 Hue's Trust, 5e . . .592 Hughes V. Davies . 165 V. Hughes . . . 115 rf. Key . . . .222 V. Morris . . . 369 •U.Wells . . .146 V. Williams . . .371 Hull Forge Co., Be . . . 678 Hull and Hornsea Railway Be Hulme V. Tenant Humber Ironworks, Be 643, Hunt V. Ehnes . V. Fownes V. Peacock Hunter v. Ayre Huntington v. Huntington Huntingtower v. Sherborn Hurle, Be Hurst «. Hurst Hutchings v. Smith Hutchinson, ije Button V. London & South em Railway Co. V. Mansel r V. Sealey Hyde v. Dallaway V. Hyde. V. Holland V. Whitfield I. Co., . 697 . 146 647,652,653 388 374 717 77 402 91 630 4,368 138 591 West- 268 464 368 422 218 198 333 Ilderton, Be . . . . 513 Imperial Bank of China, Be 652, 658 Imperial Gas Co. v. Broadbent . 268 Imperial Guardian Life Society, Be 642, 643, 647, 653 Imperial Mercantile Credit Associa- tion, Be . . . .658 Imperial Mercantile Credit Co., Be 681 Imperial Silver Quarries Co., Be . 643 Imperial Steam Co., Be . . 670 Digitized by Microsoft® TABLE OP CASES. XXXIX Inchball v. Barrington Ingtam v. Waskett Ingram, Re Ingrain v. Stifif Inman ■«. Wearing . 153, Innisfallen (The) In'sole, -fie International Contract Co., Be International Life Assurance ciety. Re . . . Inventors* Association, Re Iron Ship Building Co., Re . Ironmongers' Co., Re . Irrigation Co. of France 642, Isaac, Re . Isenberg v. East India House Jackson v. Davenport . V. Hobhouse . V. Jackson n. Mawby V. Petrie . 333, V. Eiga Railway Co. V. Stanhope . Jacob, Re V. Hale V. Suffolk (Earl of) James, Ex parte , Be V. Allen V. Aston V. James . 382, V. Jones V. Parnell Jameson, Re Jarrold v. Houlstone . Jarvis v. Abraham Jarvis's Charity, Re . J. C, Ex parte . Jebb V. Tugwell Jefferson v. Harrington Jefferys v. Boosey Jefeyes v. Drysdale . Jeffrys v. Evans Jenkins v. Bryant V. Hiles Jenkijison «..Makin . PAGE 269, 279 79,80 1 635 , 281 420 422 411 138 148 , 642 So- 660 643 650 662 , 242 644 675 527 528 Co. 253 450 87 146 115 . 105 443 451 79 , 267 634 21 , 374 , 451 618 , 237 93 387 ,422 416 213 , 716 290 , 616 531- 532 , 130 . 80 , 511 , 291 . 594 . 258 494 439 , 187 Jenkyn v. Eow . Jenkyns v. Bushby Jenner v. Jenner V. Morris Jennings v. Broughton V. Hopton. Jenour v. Jenour Jersey v. Jersey Jervis v. Beveridge Jervoise v. Silk . Jessel V. Tozer . Jesus College v. Bloom Jewittj Re Jewson V. Moulson Johnson, Re V. Gallagher V. Hammersley V. Horlock V. Lander ^ V. Teck Johnson's Settlement, Be Johnston v. Baker V. Swan V. Todd V. Tucker Joint Stock Coal Co., Re Joint Stock Discount Co. v. Jones, Re V. V. Brandon V. Ohappell V. Charlemont V. Creswick V. Davids ■■ — V. Geddis V. James V. Jones V. Lewis V. Mitchell V. Mudd V. Ogle . V. Powles V. Robinson V. Smith V. Tripp V. Williams Jory V, Cox Joseph, Re Joynes v. Statham Jupp V. Gearing PAGE . 367 . 34 458, 457 . 499 . 468 . 439 87, 224 . 581 . 451 . 115 . 120 164, 259 496, 497 . 141 . 580 90, 146 79,80 . 90 . 148 . 87 . 572 478, 479 . 238 48, 224 . 34 644, 672 Brown 80, 93 516, 579 . 390 4 . 260 . 26 . 374 . 163 . , 5 . 616 158, 161, 453 . 584 . 224 450, 465 160, 220 392, 393 . 447 . 346 . 403 76, 239 . 374 . 590 . 444 . 87 Digitized by Microsoft® xl TABLE OF CASES. K. Kaye v. Johnson Keane, Be Keams v. Cordwainer's Co. Keeler, Se Kekewich v. Manning Kelk V. Pearson Kelley v. Lord Bellew Kelly V. Hooper V. Morris Kelvert's Trusts Kemball v. Walduck . Kemble v. Kean Eemp V. Mackrell V. Eose Kemp V. Westbrook . Kendal v. Grainger . Kendall, Ex parte . 175, Kennard v. Kennard . Kennedy v. Lewis Kenrick v. Wood Kensington, Ex parte V. Bpuverie . Kent V. Freehold Land Co, Kentish Eoyal Hotel, Be Kemaghan v. Williams Kemick v. Kernick . Kernot v. Potter Kerr's Policy, In re . Kershaw, Be Keynsham Blue Lias Co., Be Kibble, Ex parte Kilmington v. Pratt . Kimberley v. Dick V. Jennings . Kincaird, Be Kincaird's Case King, Ex parte V. Greenhill . V. King. V. Savery V. Wilson King Edward VI.'s Almshouses, King's College, Cambridge, parte .... King's Cross Industrial Co., Be Kintrea, Ex parte Kirkby Eavensworth Hospital, parte .... PAGE 437 442 501 503 , 278 , 596 445 , 273 . 374 , 290 286 290 , 242 92 441 87 , 451 380 236 217 218 457 , 20 135 , 386 371 , 662 . 651 319 , 143 , 284 374 385 634 668 ,671 . 133 , 92 451 , 284 143 . 662 , 407 372 222 403 449 Be 581 JI/X 584 , 643 TP^ 661 £iX 236 Kitchen v. Humble Kitton, Be Knapp V. Williams Knight V. Bowyer V. Knight Knott, Ex parte V. Cottee Knowles, Be V. Chapman V. Spencer Kynaston v. East India Go. PAGE . 79 510, 513 . 344 . 418 . 142 . 392 153, 155, 460, 461 . 120 . 372 . 370 . 446 . 491 . 457 . 387 . 411 372, 373 . 411 . 678 32,34 . 657 . 440 79,84 . 221 248, 532, 539, 540 Lancashire Brick and Tile Co., Be 647 Lancashire and Yorkshire Eailway Co., Be . . . .579 Lancaster, Be . . . . 138 V. Kennington . 552, 553 Lancaster's Case, Be Albert Assur- ance Co. Lance i;. Church Lacey v. Hill Lackersteen v. Lackersteen Lacon v. Allen . V. Liffen V. Mertins Ladbrooke v. Lee Lafitte and Co., Be . Lafone v. Falkland Islands Co. Lama Coal Co., Be . Lamare v. Dixon Lambert v. Hutchinson V. Lambert . Lambeth Charities, Be Land and Sea Telegraph Co., Landall v. Baker Lane v. Debenham V. Newdigate . Lanesborough v. Jones Langdale (Lady) v. Briggs . Langdale's Settlement, Be . Langdon v. Wilmot . Langford, Be . V. Pitt . Be 679 497 218 649 481 452 285 155 38 634 382 635 439 Langham v. Great Northern Eail- way Co 268 Langley Mill Co., Be . . 642, 672 Digitized by Microsoft® TABLE OF CASES. xli Langmeade Trusts, Se Langstaff v. Meagoe . Langston, Ex parte . Langtou v. Burton - V. Horton Lanoy v. AthoU (Duke of) Lansdowne v. Lansdowne Largan v. Bowen Larkins v. Paxton Lash V. Miller . Laslett V. Cliffe . Latch V. Latch . Lathropp's Charity, Be Latimer v. Neate Law, Be . V. Hunter 185, Lawes v. Gibson Lawrence v. Austin ■ V. Campbell V. Smith Lawrence's Case Lawrie v. Banks Lawson v. Wright Lazarus v. Charles V. Mosley Lea, Be . Leather Cloth Co. v Cloth Co. V. Hirschfield V. Lorsont Leohmere v. Brasier 407 879 387 477 411 217, 218, 397 . 456 . 349 . 223 . 79 . 368 . 216 . 585 . 33 514, 624 . 152 ' . 447 . 268 . 34 . 290 . 662 406, 407 . 162 ., 297 32,33 . 599 American 311, 312, 313 . 313 283, 285 . 462 104, 105 . 223 Lechmere Charlton's Case Lee V. Brown . V. Delane . . .223 V. Heath . . .404 V. Lee .... 76 «. Milner . . .323 V.Park . . .. 214 — ■ V. Simpson . . . 292 Leech v. Schweder . . . 273 Leeds (Duke of) v. Amherst . 165, 256, 259 Leeds Banking Co., Be . .97 Lees V. Coulton . . . 487 V. Lees .... 224 Legel V. Miller .... 444 Leigh V. Thomas ... 75 Leigh's Estate, Be . . 573, 580 Leith V, Irvine .... 371 Leith's Estate . . . .407 Leningham v. Smith Lennon v. Trapper Leo V. Lambert Letham v. Hall Lethersole v. School for Indigent Blind . Lett V. Morris . Lever v. Davidson V. Heritage Lewers v. Shaftesbury (Earl Lewin, Be V. Allen Lewis V. Allenby V. Duncombe V. Pnllerton . V. Hillman V. John V. Poole V. Smith Leycester v. Leycester Lightbourne v. Holyday Like V. Beresford Lillie V. Legh . Lily (The) Lincoln v. Wright Lindsay v. Gibbon V. Gibbs Linford v. Gudgeon . Lingen, Be V. Simpson . PAOE 136 468 334 117 of) 239 58 293 26,92 449 513 . 238 . 502 287, 290 ■ 458, 591 . 375 . 402 . 314 . 83 . 86 . 145 . 443 . 326 . 443 . 491 . 411 701 527 174 278 224 458 616 226, 275, 455, Lingwood v. Stowmarket Co. Linley v. Taylor Lister v. Hodgson Little, Be Littlehampton Steamship Co., Be. 675, 676 Littler v. Thompson . . . 104 Littlewood v.. Pattison . . 582 Liverpool Borough Bank v. Turner 450 Liverpool Improvement Act, Be . 615 Liverpool Marine Credit Co. v. Wilson . . . .411 Liverpool (Mayor of) v. Chorley Waterworks Co. Livesey v. Livesey Lloyd V. Attwood V. Cheetham V. Johnes V. Lindsay V. 277, 324 58, 79, 115 . 387 . 345 . 81 . 345 . 379 Digitized by Microsoft® xlii TABLE OP CASES. Lloyd V. Whittey Llynvi Valley Coal Co. v. Brogden Locke V. Foote . Locket i;. Gary . • Lockhart v. Hardy Lockwood, Efc parte V. Ewer 262 58 . 33 . 513 . 580 379, 380 V. Smith . . .552 Lodge V. Pritchard • . . . 152 Loft V. Leigh. . hovaas., Be .... 581 London Armoury Co., Re . . 647 London (Bank of), iJe . . 683 London- Bank of Scotland, Re . 676' London and Birmingham Flint Glass Co., JJe . . .647 London and Birmingham Railway Co. V. Winter . . 432, 444 London (Bishop of ), JEx parte 578, 584 V. Webb . . .259 London, Brighton, and South Coast Railway Co., Re . . 531, 579 London-, Chatham, and Dover Rail- way Co., Bx parte . • . 566, 583 London (Corporation of). Ex parte 578, 579, 584 London Cotton Co.,- Re . . 670 London and County Coal Co., Re 642, 643 London- and Dover Biscuit Co., Re 670 London Flour Co., Re . 674, 676 London- and Hamburgh Bank (Em- merson's Case) • . . .654 London- India- Rubber Co.-, Re 649, 683 London Marine Insurance Associa- tion, fie . . . .683 London and Mediterranean Bank- ing Co., Re . . . 676, 677 London and Mercantile Discount Co., jBe . . . .675 London and North Western Rail- way Co. V. Ackroyd . . 281 V. Gamett . . . 285 V. Lancashire and York- shire Railway Co: . . . 323 London- and Paris Banking Co., Re 645 London- Quays and Warehouses Co.Re. . ■ . . . 676 London Suburban Bank, Re . 641 London and Westminster Co-ope- rative Store Co., jBe . 651, 673 London and Westminster Wine Co., iJe Long V. Stone . Longman v. Winchester LongstafiFe's Settled Estates. Lonsdale Vale Ironstone Co., 649, 650 . 93 289, 290 . 618 Re 674, 675, 676 . 223 . 33 . 412 . 221 V. Wormleighton Lorenz' Settlement, Re Loomes v. Stotherd . Lopez V. Deacon Lord Cochrane (The) . Lord V. Colvin . V. Commissioners of Sidney 277 . 497 . 634 . 480 . 661 468, 469 . 48 . 287 . 253 . 80 . 105 . 595 260, 267 Lorimer v. Lorimer . Lo's Case Lovell V. Hicks Lovett V. Lovett Low V. Ward . Lowe V. Innes . Lower v. Lower Loweth V. Norburn . Lowey's Estate, Re . Lowndes v. Bettle Lowten v. Mayor of Colchester Loyd V; Mansell Lucas V. Calcraft — '■ V. Lucas V. Peacock Ludlow Charities, Re , 87, 101 . 405 . 491 79,84 . 330 . 540 Ludlow (Corporation of) v. Green- house ..... 531 Lumley v. Wagner . 281, 284, 441 Lundy Granite Co., Ex parte Hea- ven . 671 Lupton- V. White . 151 Lush, Re . . 595 Lushington .■!;. Boldero 258, 259 Lutwych V. Winford . . 462 Lyne v. Willis . . 119 Lynn v. Beaver. . 223 Lyon V. Blenkin 114, 115 . 278 Lys V. Lee . 80 Lytton V. Great Northern Railway Co. . . . 442, 445 Digitized by Microsoft® TABLE OP CASES. xliii M. PAGE Macarthur v. Campbell . . 554 Macaulay, Ex parte . . . 579 Macdougall v. Jersey Imperial Hotel Co 325 Maoey v. Metropolitan Board of Works 278 Mackenzie v. Johnston . 150, 151 V. Mackenzie . . . 604 Mackwards y. Smith . . . 295 Mackreth v. Symmons . 406, 407 Mac Eae v. Holdswoith . 297, 298 MoAndrew v. Bassett 310, 311, 312 MoCalmont v. Rankin . , 369 MoCullook, iJe . . . 115,116 McEwen's Case . . . 664 McGregor, Ex parte . . , . 461 McHardy v. Hitclicock . . 33 McHenry v. Dayies . . . 146 Mcintosh V. Great Western By. Co. 33 McKenzie v. Praser . , . .213 McMurray v. Spicer . . . 428 McQueen v. Farquhar . . 431 McVeagh, Be . . . 633, 635 Madrid Railijyay Co., Be . . 644 Magawley, B^ ■ • ■ • 591 Magennis v. Fallon . . . 469 Mais, Be . . , . . .613 Maitland v. Backhouse . . 252 Makepeace ■;;. Eogers . . 150, 157 Maldee v. Merick . . . 468 Malet, Be .... 591 Malins v. Greenway ... 87 Mallack V. G3,lton 118, 119, 137, 401, 402 MaUam v. May . . . 285 Mallin, iJe . . . .624 Malmshury v. Malrosbury . . 456 Man V. Ricketts . . . 213 Manby, v. Be.wioke ... 33 Manceaux, Ex parte . . . 304 Manchester and London Life As^ surance Association, Be . ., 650 Manchpster New College 245, 529, 530 Manchester Queensland Cotton Co., Be ^ . . . . 675, 676 Manchester Railway Co. v. Great Northern Railway Co- • • 323, V. Worksop Board of Health 268, 277 Manchester School Case . , Manchester, ShefiBeld, and Lincoln shire Railway Co. . Mandeno v. Mandeno Manlove v. Bale Mann v. Stephens Manners v. Bligh Mansel v. Evans Mansell v. Feeney Manser v. Dix . March v. Lee . Marezzo Marble C9., Be Margetson v. Wright . Marine Investment Co., Be Marlborough Club Co., Be Marlborough v. Davis Marlborough (Duke of ), Be Marlborough School, Be Marling v. Stonehouse, and Nails- worth Railway Co. Mamer's Trusts Marsh v. Conquest V. Sibbold FAOE 245 . 579 . 459 372, 373 . 284 . 290 . 263 . 32 . 34 . 393 . 649 . 298 . 673 650, 653 . 345 . 574 . 536 Marshall, Be . V. Cane . 435 . 592 . 293 . 48 619, 620, 622 . 370 V. CoUett V. Fowler V. Glamorgan Iron Co, V. Shrewsbury. Martin^ Be . . V. Frost ■ — — -17. Hadlow_ . V. Headon — V. Martin V. Paxton V. Pycroft Martin's Case . Martyr v. Lawrence Mary Ann (The) Mason, Be . V. Broadbent ; V. Murray Massey, Be -_ V. Banner Mather v. Praser Mathew v. Bowler V. Jennans 143 662 422 . 493 . 20 82, 460 254, 270, 273, 450 . 214 . 245 . 444 . 661 . 260,267 . 412 . 592, 594 . 373 . 290 . 516 . 151 . 361, 379 . 407 . 170 Mathews v. way Co. Mathewman's Case Great Northern Rail- , 325 . 146, 667 Digitized by Microsoft® xliv TABLE OP CASES. PAGE Mathison v. Clarke . . . 370 Matlock Old Baths Co., Re . . 659 Matterson v. Blderfield . . 425 Matthews, iJe . . . .616 Matts V. Hawkins . . . 280 Maudesley,i7. Maudesley . . 701 Maw V. Pearson ... 86 Mawer's Case .... 334 Mawson v. Fletcher . . . 452 Maynard's Case . . . 666 Maxwell v. Hogg . . . 313 Meade v. Norbury . . . 165 Meaden v. Sealey . . . 342 Meddowcroft v. Campbell . . 85 Meggott V. Meggott . . . 490 Mendes v. Gruedalla ... 93 Merchant Taylors' Company, Be . 584 V. Attorney-General . 241 Merchants' and Tradesmans' Assur- ance Society, Be . . . 683 V erry wether «. Mellish . . 497 Merton College, Oxford, Be 578, 584 Mestaer v. Gillespie . . 369, 411, 447 Metcalfe v. Beckwith . . .489 Metropolitan Ccfanties Society v. Brown .... 362, 379 Metropolitan Bail way Warehousing Go., Be . . . .643 Mette's Estate, Be . . . 583 Meyrick Fund,- Be . . . 537 Michelmore v. Mudge . . 138 Michell, 5e . . . .634 Micklaw v. Elmore ... 91 Micklethwait v. Micklethwait 165, 258 V. Nightingale . . 444 Midland Counties Benefit Building Society, Be . . . .683 Midland Eailway Co. v. Ambergate Bail way Co. ■ V. Homing Middleton v. Cator V. Chichester . V. Magnay Midleton (Lord) v. Eliot Mildmay iJ. Quicke . Mildred o. Austin Miles V. Harrison V. Presland . V. Thomas Milford V. Reynolds . . 268, 324 . 554 . 237 . 103 . 437, 451 . 374 . 482, 486 . 391, 697 225, 236, 240 . 330 . 285 245 Miller, Be V. Marriott Millington v. Fox Mills V. Bowyer's Co. V. Dudgeon V. Farmer V. Finlay Milne, Be Milaes V. Gery Milward, Be Milward's Estate, Be Miner v. Grilmore Minerva Banking Corporation, Be Minet v. Morgan Minton v. Kirwood . . . 440 Mitchell w. Dors . . .259 V. Heynolds . . .285 Mitford V. Eeynolds . . .239 Mockett's Trusts, Be . . 634 Moet V. Couston . . . 313 Mogg V. Mogg .... 267 Moggridge v. Thackwell . . 238 Mole, Be 520 -■ — V. Mansfield . . . 480 Monkhouse v. Corporation of Bed- ford 405 Monro v. Taylor . . . 439 Montague v. Flockton . . 285 Monteith v. Taylor . . 76, 92 Monypenny v. Monypenny . 20, 202 Moore v. Darley . . . 554 V. Greg V. Painter Moorhouse v. Lord Mordue v. Palmer Morgan, Be V. Boult V. Puller V. Lewis V. Scudamore V. Seaward V. Shaw Morice v. Bishop of Durham V. Swaby Morison v. Moat V. Morison Morley v. Baker V. Tunstall Mornington v. Mornington Morrell v. Fisher FAOB . 330 . 481 309, 312 551, 552 89,90 . 238 . 497 . 581 . 550 . 623 . 624 . 277 659 32, 34, 266 . 442 . 370 . 221 . 552 . 591 . 553 307, 308 . 403 . 87 . 303 . 448 . 237 . 32 . 314 . 343 . 423 . 209 . 34 . 224 Digitized by Microsoft® TABLE OF OASES. xlv Morrell v. Wotton Morret v. Paske Morrice v. Bank of England Morris v. Ashbee V. BuU . Morris' Oase Morris' Settled Estates, Se Morris and Brett's Case V. Colman ■- V. McNeil V. Morris ~ V. Stephenson V. Wilson Morrison v. Morrison Morse v. Martin V. Merest V. Roach Morshead, Ee . , Ex parte Mortimer v. Shortall Mortlock V. BuUer Moscow Gas Co. v. Financial Society Moseley v. Baker V. Simpson —r-. — V. Virgin Moss, Be . Mostyn v. Emanuel Mountford, Ex parte Mouutstuart v. Mountstuart Moxey v. Bigwood Muggeridge's Trusts, Me MuUings V. Trinder Mullins V. Hussey MuUoney v. Stevens Mumford v. Creswell Mundy v. Jolliffe V. Mundy Munns v. Isle of Wight Ey. Munroe v. Douglas Munster's Case . Murray, Ee V. Benbow V. East India Co. V. Elibank V. Walter Murrows v. Wilson Mnsselbrooke v. Dunkin Mutter V. Hudson Muttlebury v. Haywood FA.OC 32 393 214 286 464 663 585 664 285 451 164, 165, 552 442 443 407 457 443 213 561, 562, 563 563 468 439, 442, 445 Ihtemational 652 425 553 442 514 86 114, 115, 386 117 . 444 634, 635, 666 . 440 . 469 . 297 . 227 . 443 . 491 . 451 . 222 . 661 . 123 . 290 . 87 . 142 32,83 . 652 . 554 . 217 . 494 Co. N. Nail V. Puntor . Nalder v. Hawkins Nancey v. Martin Napier v. Napier Nash, Be V. Nash PAGE . 146 . 118 J . 138 . 143 . 615 . 86 V. Worcester Improvement Commissioners . . . 460 Natal, &o., Co., Ee . . 642, 643 National Benefit Building Society, Be 425 National Credit Co., Ee . . 650 National Financial Association, Be 643, 679 National Savings Bank Association, Be ... . 647, 653 National Society v. School Board of London .... 535 Naylor- v. South Devon Railway Co. 325 V. Winch . . . 456 Neath «. Abbott . . .444 Needham v. Oxley . 302, 306, 307 Needham's Case . . . 664 Nelson v. Book .... 151 Nessom v. Clarkson . . . 447 Nether Stowey, Be . . . 580 Nettleship, Ex parte . . . 387 New V. Bonaker . . . 242 New Brunswick Co. ■;;. Conybeare 661 New Brunswick Railway Co. v. Muggeridge . . . 468, 661 Newberry, Ee . . . .216 V. Benson . . .151 V. James . . . 314 Newburgh v. Eickerstafife . .164 Newbury v. Marten . 113, 119, 401 Newby v. Harrison . . . 252 Newcastle (Duke of), Be . 114, 697 Newcombe v. Downe . . . 359 Newell V. Wilson . . . 305 Newland v. Attomey-Greneral . 239 Newman, Be . . . 513, 521 V. Brandling . . . 285 V. Selfe . . . .363 Newman's Settled Estates . . 624 Newport Abbey and Hereford Rail- way Co., Be . 565 Digitized by Microsoft® xlvi TABLE OF CASES. New Quebrada Co., Me New Steam Tug Co., Limited v. Singleton Newton- u. Cowie : V. Eowse Newton's Charity, Be Nias V. Northern and Eastern Rail- way Co. Nichol,'!;. Jones Nicholl V. Jones Nichols V. Somerville . V. Ward Nicholson «. Knapp . ■, V. Eevill '(/. Tatin Nightingale v. Goulbum V. Lawson Nisbet K Murray Noad V. Backhouse Noble V. Meymott ■ V. Stow Nokes V. Lord Kilmorey Norbury (Lord) v. Kitchen Norman v. Mitchell . Norrisf. Cotterill ; V. Le Neve . V. Norris ■ — ; V. Wright North British Railway Co. v, Trowsdall ... North Eastern Railway Co. v. Crossland V. Martin Northwick (Lord), Ex parte Norton. u. Cooper V. Nichols V. Pritchard . V. Turvill V. White Norway v. Eowe Norwegian Iron Co., i?e Notley V. Palmer Nott V. Riccard Nowell, He V. Nowell Noyes' Settled Estates Nugent V. Vetzera Nutbrown v. Thornton 659 328 295 161 530 . 34 . 34 . 32 . 408 135, 136 . 325 . 163 . 370 . 239 158, 161 . 224 340, 345 . 222 . 80 . 469 . 277 323, 325 5 489 218 554 297 280 150 579 372 298 . 97 . 146 . 90 . 257 . 643 80, 581 . 469 . 330 . 176 . 619 . 117 . 441 0. FAGZ Cakes v. Tarquand . . 661, 662 O'DonneU's Trusts . . .598 Ogden V. Battams . . 149, 152 V. Lowry . . . 216 Okill V. Whittaker . . . 468 Oldfield V. Cobbett . . 89, 90 Oliver, Be . . . .499 V. Richardson. . . 491 OUendorf v. Black . . .291 Ommaney v. Butcher. . 237, 239 Onslow's Trusts, Be . . .133 Onyon v. Washboume . . 344 Orange v. Pickford . . .213 Ord, Be 613 V. Noel .... 445 Oriental (The ) . . . .412 Oriental Commercial Bank, Be . 676 Oriental Inland Steam Co. Briggs . Oriental Steam Co., Be Ormerod, Be Ormond v. Townsend OiiettjUx parte Osborn, Be V. Morgan . V. Osborn Osborne, Hx parte. V. Foreman V. Harvey V. Williams Otter V. Lord Vaux Ottley V. Gilby. Ottoman Co., Be Otway V. Wing . Owen, Be. V. Davies V. Griffith Owens V. Dickinson Oxford Charities, Be V. . 442 . 671 . 594 . 338 . 387 . 596 . 142 . 481 . 425 . 460 . 342 . 154 . 440 . 223 . 680 . 136 . 594 . 275 . 164 214, 217 . 542 Pacific Steam Co. v. Gibbs Packer, Be Paokington's Case Packman & Moss, Be. Page V. Adam . Paget V, Ede . Pain V. Coombs 252 619 258 446 452 369 443 Digitized by Microsoft® TABLE OF CASES. xlvii PAGE Palin u, Gathercole . . . 314 Palk V. Clinton . . . .420 Palmers. Carlisle (Earl of). . 367 V. Danby . . .420 . V. Temple . . . 451 Palmer's Case .... 156 Will, Be . . . 695 Panama and South Pacific Co. v. Indiarubber and Telegraphic Works Co 451 Pannell v. Taylor . .' .334 Paragaussu Steam Tramroad Co., Be 654 Pare v. Clegg . . . . 341 Paris Chocolate Co. v. Crystal Palace Co. Parke's. Charity, Be Parker, Ex jaarte V. Butcher . V. Housefield V. Morrell V. Stevens Parkethman v. White Parkins. Thorold Parr v. Lovegrove Parrott v. Palmer Parry v. Geeson .V. Parry Partington v.- Eeynolds Parsons v. Beebee ■ V. Dimne . V. Euddock Parson's Case . Partington, Be . Pasmore, Be Patch V. Ward . Patent Artificial Stone Co. Patent Bread Machinery Co Patent Floor Cloth Co., Be Patent Marine Co. v. Chadbum Patent Screwed Boot Co., Be Patent Type Founding Co. v. Walter. . . . 301,306 Paterson v. Paterson . . 604, 605 Paton V. Rogers. . 439, 447, 450 Pawley v. TurnbuU . . • 451 Payne v. Hornby . . • 407 Peacock v. Peacock . . . 174 V. Penson . . .445 V. Sievier ... 26 445 . 530 . 661 . 425 387, 422 . 44 . 45 . 33 449, 468 . 439 . 257 . 75 . 202 .216, 217 388, 605 . 145 . 218 . 661 . 580 . 513 . 34 647 647 650 308 651 Be Be Peacock's Settled Estates Peacocke v. Burt Pearce «. Chamberlain V. Pearce Peareth v, Marriott . Pearly v. Smith Peafse v. Hewitt • — V. Pearse Pearson's Case . Pease i\ Coats . V. Jackson Peatfleld v. Barlow . • Peokett V. Loggon Pedder v. Pedder • . Peek V. Matthews ■ . . V. Peek . Peel's Case . . - . Peel's School, Ex parte Pegg V. Winder Pell If. -Northampton and Banbury Railway Co. . ■ Pelham (Lord) (Duohess of) Pelly V: Wathen Pemberton, Be . V. Baston V. McG-ill V. Cakes Be Be . Pender^ Be Penhale Silver Lead Co, Penhryn v. Hughes- . Peninsular, &c., Banking Co, Penn v^ Baltimore (Lord) V. Bibby Penney- v. Goode Pennington v. Alvin . . . 135 Penny v. Watts ■ . . .216 Perceval v. Perceval . . . 225 V. Phipps . . • 290, 314 Perkins, Be . . . .513 V. Ede . . 468, 469 Perring and Kymer-, Ee . : 554 V. Traill . . .240 Perrot v. Perrot . . .258 Perry v. Jenkins ... 87 V. Mitchell . . .307 V. Oriental Hotels Co. . 343 V. Phelips . . .180 V. Philips . . .214 1>. Truefit . . 311,312 PAGB 624 393 175 470 132 160 367 34 658 285 425 498 468 80,84 285 189 . 661 . 535 , 462 496, 323, 451 Newcastle 108 367 522 503 137 156 514 646 163 671 443 306, 307, 308 33 513, Digitized by Microsoft® xlviii TABLE OF CASES. Perry v. Walker . . . 371 Peruvian Eailway Co., Se . . 644 Peto V. Rye, &c., Eailway Co. . 445 Petroleum Co., Be . . . 651 Peyton's Settlement, Be 600, 604, 634 Pfleger's Trust, Be . . 576, 582 Philips, Be . 519, 576, 615, 616 Phillips o. PHllips . . 157,175 V. Silvester . . . 447 Philpott V. St. George's Hospital . 238 Phippen v. Brown . . 80, 82 Picard V. Hine . . 137, 145, 701 PicUering v. Paokhouse . . 179 V. Pickering . . . 456 Piokford v. Brown ... 80 Pidding v. How . . . 312 Piddock V. Brown . . . 367 Pierce v. Thornby . . . 142 Pigott y. Young . . . 216 Pike V. Nicholas . . . 286 Pilling V. Armitage . . . 444 Pinchard v. Fellows . . .224 Piper V. Coke . . . . • 362 Pitcher v. Hellier . . .342 Pitt, iJe 634 V. Cholmondeley . .154 W.Davis . . .438 Planche v. Colburn . . . 451 Planet Building Society, Be . 673 Plas-yn-Mhowys Coal Co., Be 668, 670 Platel V. Cradock ... 85 Playford v. Playford . . .420 Plumbe V. J'ield ... 84 Podmore v. Gunning . . . 379 Pollard V. Doyle ... 26 Pollock u. Pollock . . .221 Pool V. Sackeverell . . . 104 Poole Firebrick Co., Be (Hartley's Case) 662 V. Middleton . . . 441 V. Pass . . . .222 V. Shergold . . .448 Pope V. Curt . . . .290 V. Onslow . . .396 Porter, Be . . . 611, 612 Portarlington v. Soulby . . 443 Portland (Duke of) v. Hill . 257, 259 Postlethwaite v. Newport Harbour Trustees . . . .344 Potter, Be . . . .132 Potter V. Newman . . . 554 Potts V. Leighton . . 342, 348 W.Smith . . .201 ■ — V. Warwick Canal Co. . 344 PoweU, iJe . . . .595 V. Aiken . . 262, 267 «. Att.-Gen. . . .238 V. Elliott . . .447 V. Heather ... 79 V. Martyr . . . 465 V. Mathews . . . 595 1;. PoweU . . .487 V. Wood ... 48 Powell Duffryn Steam Coal Co. v. Taff Vale Eailway Co. . . 446 Powys V. Blagrave . . 258, 343 Pratt V. Harvey . . .238 Frees v. Coke . . . 403, 405 Preston v. Dickinson ... 5 Price, Be 612 V. Berrington . . 89, 90 V. Carver . . 118, 401 «;. Dyer. . . . 444 V. Green . . . 285 V. Great Western Ey. Co. 372 V. McBeth . . .375 — V. Salusbury . . . 443 Primrose, Be . . . . 615 V. Bromley . . . 163 Prince Albert v. Strange 290, 294, 314 Prince V. Cooper ^ . . . 460 Prince of Wales Slate Quarry Co., Be 676 Pringle, Be . . . .513 Pritchard v. Arborum. . . 238 V. Fleetwood . . . 378 V. Eoberts . . . 503 Professional, &c.. Building Society, Be ... . . 642 Progress Assurance Co., Be . . 670 Prole V. Soady . . 138 Propert, ^e . . . . 606 Pryce v. Bury . . 381 Pryer v. Gribble . 446 Pryor v. Pryor . . 486 Pryse, Be. . 694 . 37 Pudge V. Pitt . . 89 Pullen V. Eeady . 456 Pnlsford v. Eichards . . 468 Digitized by Microsoft® TABLE OP CASES. xlix PAOB 164, 259 . 445 . 115 . 445 . 515 . 440 Pulteney v. Warren . Pulvertoft V. Pulvertoft Purleaze, Ex ■parte Pye, Ex parte . Pyne, Se . Pyrke V, Waddingham Q. Quanel v. Beckford . 373, 375, 378 Queen^s Benefit Building Society, Be 683 Queen's College, Cambjidge, Ex parte ..... 560 Queensbury (Duke of) v. Sheb- beare 289 E. Eadde v. Norman Bafferty v. King . Railway Finance Co., Bam, Ex parte Eamsden v. Langley V. Dyson Bamsey v. Avison Band v. Macmahon Bandall v. Mumford Be Banelagh (Lord) v. Melton Bankin v. Huskisson r V. East India Docks Ba^hael, Be, V. Boehm ■ V. Thames Valley Bailway Co 445 Bashleigh v. Master ... . 160 Eawkifenseat v. Barker . .78 Bawlings, Be . . . . 626 EawHnson v. Moss . . . 494 Bawson v. Samuel . . . 155 Eeade v. Bentley . . 289, 290 D. Conquest . . . 293 V. Cooper . . . 493 Bede v. Cakes . . . .464 Bedmayne v. Poster . . 386, 387 Eeece, Be 515 V. Taylor . . .332 V. Trye . . . . 33 Eeed v. Don Pedro Gold Mining Co. 444 . 311 . 420 . 653 . 717 . 374 ., 444 . 155 . 213 . 76 . 610 . 449 2827285 316, 324 . 612 153, 155 Bees, Ex parte Reese Eiver Mining Co., Be (Smith's Case) V. Smith PAGE 530 468 661 662 297 128 32,33 32 Eeg. V. Pirmin Eeiby, Be Eeid V. Langlois V. Langton V. Don Pedro North Del Eey Gold Mining Co. . . 440 Eemnant v. Holt . . . 429 V. Hood . . . .225 Eenshaw, Be . . . . 687 Bevel V. Watkinson .' . , 373 Bex V. Mildenhall Savings Bank , .555 V. Eussell . . .278 V. Ward . . , 278 V. Wheeler . . . 303 Beyer v. Tombs ... 44 Beynault, Se . . . .611 Eeynell v. Sprye . . 34, 468 Beynolds v. Askew . . . 554 V. Blake . . .469 V. Godlee ... 33 V. Lowe . . , 360 Bhodes v. Mostyn . . . 378 Ehymney Bailway Co. v. Taff Vale Eailway Co. ... 261 Bice V, Gordon . . . 163 u.'Bice . . . .387 Bichards, Ex parte . . 615, 616 V. Cooper . . . 420 V. Metropolitan Bailway Co. . . . . .429 V. Millett ... 85 V. Morgan . . 369, 370 r V. Noble . . . 164 V. Platel . . .497 V. Bose . , . 280 V. Scarborough Market . 429 Eiohardson v. De Held . . 136 V. Hastings . . . 285 V. Miller . . .118 ' r v- Eusbridger. . . 224 V. Ward . . .349 Eickard v. Bobson . . . 238 Eickards v. Eiokards . . . 481 Eicket V. Metropolitan Eailway Co. 324 Eico V. Gaultier . . .333 Bidout V. Plymouth, Earl of . 343 d Digitized by Microsoft® TABLE OF OASES. Eidgway v. Clare ' . V. Sneyd V, Wharton . Eigby- V. Macnamara . Einard v. Levinstein . Eipon (Earl of) v. Hobart Kisbton v. Grissell . Eoaoli V. Garvan Eoberts, Be V. Albert Bridge Co, V, Berry V. Brett V. Croft V. Maddocks V. Price Eobertson v. Kemble . V. Norris V. Southgai^ . Eobins v. Goddingbam Eobinson v. Aston V. Cooper V. Geldard V. Governors of London Hospital V. Headley V. Litton V. Norton Eobson V, Devon (Earl of) V. WhittJngham Eoobe V. Hart . Eock V. Cook . Eockall Fishing Co., Re Eoddam v. Hetberington Eoebuok v. Chadebet Eogers, lie V. Grazebrook Eolfeu. Eolfe . EoUeston, Me . V. Morton Books V. Lord Kensington Rooper v. Harrison . Rose V. Watson Eoss V. Estates Investment V. Laughton . V. Wainman . Eoundell v. Currier . Eousell V. Morris Eow, Re . V. Eow . Eowe V, Jackson PAGE . 175 . 448 . 443 . 470 . 305 . 268 . 176 104, 115 . 611 . 105 . 468 . 411 386, 387 . 109 . 368 . 80 152, 164 . 87 494, 497 . 113 58 241 . 239 . 342 . 258 . 91 . 92 273, 450 155 . 344 . 654 333, 334 479, 486 . 634 . 372 . 285 . 629 . 390 457, 458 . 387 . 407 Co. 468, 661 . 497 . 164 . 76 . 215 . 581 209, 224 . 142 PAOK Eowe V. Tweed . • • ^^^ V. Wood . . • 378 Bowbotham v. Wilson . • 280 Eowland v. Cuthbertson . . 491 Eowley, Be . . .615, 616 Eoyal Arch (The) . . .412 Eoyal Victoria Co., Re . . 683 Budge V. Weedon . . . 135 Euffin, Ex parte . . .175 Bufford V. Bishop . . . 379 Eumbold v. Forteath . . 32 Euscombe v. Hare . . 402 Bush, iJe . . • .525 Bushforth, iJe . . . .218 Eushworth v. Barron . . 554 -y. Walden . . .717 Eussell V. Cowley . . • 306 V. East Anglian By. Co. . 344 V. Jackson ... 34 V. Luscombe . . . 174 •V.Smith . . .292 Russell's Estate, Re . . 595, 604 Butherford v. Wilkinson . 343, 345 Eutley V. Gill . . . .464 Eyan, iJe . . . .601 Eyle V. Haggle . 150 S. Saeny v. Briggs . . . 327 Sainter v. Ferguson . . . 284 Sale V. Sale . . . .118 Salomons v. Laing . . . 324 Salter v. Metropolitan District Bail- way Co. .... 315 Salvin v. North Brancepeth Coal Co. . . . ■ . 269,273 Sampson, Re V. Pattison 217 367 438 161 148 642 Samuda v. Lawford . Sandby, Ex pirte Sanger v. Sanger .... Sanderson, Re . V. Cockermouth and Work- ington Eailway Co. . 442, 445 Sanderson's Patents Association, Re 643 Sandon v. Hooper 258, 269, 363, 370, 371 Saner v. Deaven ... 89 Sargent, Re . . . .661 Sarjeson v. Cruise . . . 373 Digitized by Microsoft® TABLE OP OASES. li PAQB Saumarez, Re . . . . 616 Saunders v. Smith . . . 290 Savage v. Foster . . . 146 V. Snell .... 37 Savin, Be .... 709 Sawyer v. Shute . . . 141 Sayer v. Bennet . . 161, 17.5 Schackel, Hx parte . . .521 Scholefield v. Heafield . . 401 V. Lookwood . . 500, 503 Scholey u. Central Bail way of Vene- zuela ..... Schrubsole v. Schneider Scotland (Bank of), Ee Scott V. Liverpool (Corporation of) V. Duncombe 662 49 156 151 80 . 331 . 407 445, 450 . 143 . 290 V. Hastings V. Ifesbitt V. Eayment V. Spashett V. Stanford Sea and EiVer Marine Ins. Co., Be 642, 643 Seaman, Ex parte Seeley v. Fisher . Seixo V. Provenzende Selby V. Pomfret V. Selby SeUs V. Sells . Senior v. Pawson Sergison v. Sedley Seton V. Slade . — V. Smith Sewell V. Ashby V. Crewe Bead Shaftesbury (Earl of) v, (Duke of) . Shapland v. Smith Sharp V. Foy . V. Hullett Sharpe, Be. Sharpe, Stewart, & Co. Sharpley, Be . Shattook V. Shattock Shaw, Ex parte ,Be V. Fisher V. Ehodes ShefSeld Gas Co. v. Harrison Shelford v. Baker . 503 . 313 310, 312 . 396 . 218 . 457 271, 450 . 162 439, 449 . 189 . 216 . 239 Marlborough 339, 344 . 440 . 146 . 91 587, 591 692, 693 . 616 .,Be 146 580 625 441 345 445 80 Shelmardiae, Be, Shepard v. Brown . Shepherd v. Churchill V. Conquest . V. Oxenford . V. Titley Sheppard v. Kent Sherwin v. Shakspear PAGE . 612 . 150 473, 481 . 293 . 174 . 393 . 214 430, 447, 450, 465 Shields Marine Association, Be 648, 683 Shillibeer v. Jarvis . . . 443 Shillito V. CoUett . . .128 Ships' Case . . . .661 Shipton-under-Wychwood, Eector of. Ex parte .... 580 Shrewsbury Eailway Co. v. London and North Western Eailway Co. 445 Shrewsbury and Chester Eailway Co. V. Shrewsbury and Birming- ham Eailway Co. . Shuttleworth v. Laycook V. Lowther Sichel V. Mosenthal Sichells' Case . Sidingham, Be . Sidney v. Banger V. Sidney . 285 . 396 . 374 . 445 . 661 . 114 . 461 . 145 . 214 . 674 345, 378 486, 487 Silk V. Pryme . Silkstone Colliery Co., Be Silver v. Bishop of Norwich V. UdaU . Simmonds v. Great Eastern Eail- way Co 497 Simpson v. Bathurst . . 79, 223 7- V. Chapman 176 661 634 76 Simpson's Case Simson, Be Sinclair v. James Singer Manufacturing Co. v. Wilson 301, 306 Singleton v. Hopkins Sinnett v. Herbert Skinner, Be , Ex parte V. Warner Skip «, Harewood Skitter, Be Slade V. Barlow -«. Eigg . Sleeoh v. Thorington . 4:81 227, 228, 240 613 242 115 407 596 479 . 367, 380 . 141, 142 d 2 Digitized by Microsoft® lii TABLE OF CASES. PAGE Sleech's Case . . . .175 Sleight v.. Lawson . • 152 Sloper, Re . . ■ .616 — «. Fish. . . 440 Small V. Metropolitan Railway Co. 433 Smallwood v. Eutter . . . 118 Smart v. Morton . . . 280 Smirthwaite's Trusts, Re . 612, 616 Smith, Ex parte {Be Hildyard) , Ee (19 Beav.) -, Be (4 Beav.) Be (Weston's Ee Smith's Trusts, Ee Smith's Case Smith's Estate, Ee Smithand Blake, Be Smith, Knight & Co., Case) Smith, Knight, & Co., Smith V. Baker . — '■ — - V. Cooke r V. Dixon V. Dowling ' V. Etches — — - V. lliffe V. Jackson V. Jeyes V. Lays V. Leveaux V. Nelson V. Peters — V. Pocook V. Eeese Eiver Company . V. Eobinson . v. Smith (3 Atk.) . ^ ^. (3 Gift) . V. (L. E. 20 Eq.) . ^ V. (Receiver Order) ■ (3 Drew) Smyth, Ex parte -, iJe Snaggw. Fuzell Sneesby v. Thome Snow V. Teed . - Snowball, Ex parte Sober v. Kemp . Sobey v. Sobey . Society for the Propagation of the Gospel in Foreign Parts v. At- torney-General Sockett V. Wray 387 506 511 592 662 581 554 674 680 369 259 20 33 85 457 447 286 168 150 469 446 493 325 368 123 143 253 337 596 159 616 375 445 222 176 359 221 244 146 Solicitor-General v. Corporation of Bath 247 Soltau V. De Held . . .278 Somerset and Dorset Railway Co., Ee 707 Somerville v. Mackay . . . 174 V. Somei-ville . • 222 South Barrule Slate Quarry Co., Be 671, 672 South Eastern Railway Co., Be . 581 South Staffordshire Railway Co. v. Hall 92 South Wales Railway Co., Ex parte 585 ,Be . . . .615 V. Wythes . . 284, 445 Southey v. Sherwood . . 290, 314 Spackman's Case . . . 644 Spalding v. Ending . . 409, 411 Spargo's Case .... 666 Sparrow, Be ... . 612 V. Oxford and Worcester EailwayCo 324 Speer v. Crawter . . . 489 Spenoe's Patent Cement Go., Be . 648 Spencer v. Allen ... 97 V. Pearson . . 391, 393 Spensby's Estate, Be . . . 224 Spiller, Ee . . . 635, 663 Spilling w. Skoyles . . .186 Spirett V. Willows . 140, 143, 144 Spurrier v. Fitzgerald . . 443 Squire v. Campbell . . . 268 Stackpoole v. Beaumont . . 145 Stafford Charities, jBe. . .531 Stafford and TJttoxeter Railway Co., iJe . . . 344,703 Stagoll, ^e .... 80 Stainbank w. Penning. . . 412 V. Fernley . . . 468 V. Sbepard . . . 412 Staines v. Rudlen . . . 368 Stainford v. Hurlstone . . 267 Stainton v. Carjon Co. . 154, 157 Stanhope v. Verney . . .393 Stanley v. Bond 332 (Lady) v. Shrewsbury (Earl of) 254 Stannard v. Harrison . . . 288 Stansfleld v. Habergham . . 258 Stanton v. Hatfield . , 223 Digitized by Microsoft® TABLE OP CASES. liii Stapleton v. Haymeu . Steadman v. Smitli . Steam Stoker Co., ^e . Steel V, Gordon . Steele v. Plomes Stephens, Ea; partem . Stephenson v. Green . Stevens, Ex parte V. Benning V. Guppy V. Keating PAGE . 411 . ^80 . 644 4 5 . 155 . 415 . 585 . 289 427, 438 . 304 : V. PiUen . . .223 ■ V. Praed ... 22 V. South Devon Ey. Co. . 325 V. Savage . . . 123 V. Stevens . . . 118 V. Williams . . . 405 Steward's Estate, Be . . . 583 Stewart, Re ... . 594 r V. Graham ... . 334 :«. Stewart . . . 456 Stewart's Case . . . 661, 662 Stillwell V. Wilkins . . .379 Stirling, iJe, . . . .496 Stockb.ridge Railway Bill, Ex parte 565 Stockep V. Dawsoq . . . 407 r V. Stocken . . . 115 Stocker V. Wedderjjiirn . . 284 Stockhouse V,. Jersey (Countess of) 387 Stockley v. Stockley . , . 456 Stockport District Waterworks Co. V. Jowett .... 252 Stockport Waterworks Co. v. Mayor of Manchester . . . 824 V. Potter . . .277 Stokes V. City OfiSoes Co. . . 270 Stoke's Trusts, iJe . . .612 Stone V. Commercial Railway Co. . 323 V. Godfrey . . . 456 V. Wishart . . .343 Storer v. Great Western Ry. Co. 441, 445 Storey v. Johnson . . 479, 480 Stormont v. Wickens . . . 491 Story, j5e 518 V. Official Manager of Na- tional Insurance Co. . . 26 Stott V. Storey . . .323 Stourton v. Stourton . . . 114 Stourbridge Canal Co. v. Dudley (Earl of) . . ... 281 PAGE Straford, iJe. . . 516,517,518 Straight v. Barn . , 272 Street, .iJe ... 519, 522 Stretton V. Great Westerp Railway Co. . . . . .320 Strickland v. Strickland . 76, 83 Strike, Be . . .521 Stringer v. Harper . . 224 Strode v. Parlter . . . 374 Strong, Be . . ,. 132 V. Hawkes . . . 185 V. McGlasson . . .168 V. Strong ... 86 Strother, iJe . . . .521 Strutt V. Baker . . . .165 Stuart; Be . . . . 615 Sturoh V. Young . . . 378 Sturge V. Eastern Union Railway Co. ' 318 V. North Eastern Union Railway Co. . V. Starr . 325 . 468 Sturgis V. Champneys . 141, 142 St. Bartholomew's (Governors of), Ex parte . . . . 584 St. David's Gold Mining Co., Be . 651 St. Helen's Smelting Co. v. Tipping 268; 273 St. John's Hospital, Cirencester, Be 526, 528 St. John V. St. John . , .442 St. Mary's College, Ex parte . 581 St. Mary Magdalen, Oxford, v. At- torney-General . . . 243 St. Thomas's Hospital, v. Charing Cross Hospital . . 315, 324 Suburban Hotel, Be . ' . 644 Suffolk (Earl of) v. Lewis . . 563 Sugden V. Odling . , . 197 Suggitt's Trusts, Be . . 143, 144 Suir Island Charity . . . 530 Sutton V. Doggett . . , 223 V, Rees .... 344 Swaine v. Great Northern Railway Co. . ... , 280 Swaisland v. Dearsley . . 444 Swan's Case .... 680 Swan V. Webb . . . , 459 Swayne v. Swayne ^ . . 330 Sweet V. Benning . , . ,290 Digitized by Microsoft® liv TABLE OV OASES. Sweet V. Maugham V. Meredith —— V. Shaw . Swift, Be Sykes v. Hastings Sympsoa v. Prothero T. PAGE . 290 433, 451, 468 . 290 . 115 . 343 . 498, 503 625 325 422 284 307 32,34 Taddy, Be Taft V. Harrison Talbot V. Braddye V. Ford . V. La Roche V. Marshfield V. Shrewsbury (Earl of) 114, 115, 116 Tamworth (Lord) v. Ferrers Tanfield v. Irvine Tangye v. Stott Tanner v. Dancey Tapling v. Jones Tardrew v. Howell Tassell v. Smith Tate V. Austin . V. Leithead Tatton' V. London and Insurance Co Taylor, Be (11 Sim. 178) (18 Beav.) ; V. Beech V. Brown . V. Debar V. Fields V. Hughes V. Manning V. Eundell V. Taylor V. Taylor (_Ex V, Wheeler 342. 258 345 . ' 306 . 223 . 272 . 503 . 396 . 402 79, 83 Lancashire . 43 . 128 . 516 . 443 . 469 369, 440 . 407 . 325 . 163 . 32 . 136 parte Taylor) 618 . 369 Taylor's Estate, Be (L. E. 1 Bq. 495) 225 Taylor's Settled Estates, Be 619, 620 Taylor's Trusts, Be (L. E. 2 Ch. 536) 532 Teague, Be . . . .514 Teall V. Watts . . . 486, 487 Tebbitt v. Tebbitt . . .454 Teign Valley Railway Co., Be . 705 Telegraph Construction Co., Be 689, 693 Tempest v. Ord . V, Tempest Temple, Be Tench v. Cheese Teimant v. Storer V. Trenchard Thackeray v. Parker Thackwray v. Parker Thames Mutual Club Co., Be Thelusson v. Woodford Thetford School Case Thicknesse v. Acton . . . 136 Thistlethwaite v. Grarnier . . 37 Thomas v. Buxton ... 79 V. Bering . . .440 V. Jones . . . 223 V. Oakley . . .259 V. Secretary of State for India 34 Thompson, Be . . . . 521 ,v.C]ive. . ' . .223 v. Hudson . . . 425 V. Planet Benefit Building Society V. Stanhope • V. Symons Thomson v. Plinn V. Shakspear . Thomdike v. Hunt . Thomeycroft v. Crockett Thornhill v. Thomhill Thornton v. Court V. Hunt Thorold, Be Thorpe v. Brumfitt V. Holdsworth V. Jackson Thurgood, Be . Thynn v. Duvall Tibb's Trusts, Be Ticbbome v. Tichborne Tidd V. Lister . Tidswell, Be . Tilleard, Be . Tilley v. Thomas Times Life Assurance Co., Be Timpson v. London Western Railway Co, Tindal o. Cobham PAGE 348 241 596 329 76 399, 461 224, 484 . 356 . 651 338, 559 . 240 555 . 290 . 295 . 701 . 238 . 492 370, 371 122, 123, 348 374 482 625 280 387 175 515 162 634 105 138, 141, 397 . 552 . 524 465, 468 643, 647, 653 and North . 80 . 448 Digitized by Microsoft® TABLE OP CASES. Iv Tink V. Bundle Tinsley v. Lacy Tipping V. Clark V. Eckersley . V. Hawes V. Power V. St. Helen's Co. Titley v. Davis Tittenson v. Peat Todd V. Bielby . V. Dolman FAOB . 323 288, 292, 293 . 314 . 285 . 404 . 223 . 269 . 397 . 553 . 201 . 334 . 457 . 259 203, 214 . 153 ToUelt V. ToUett Tollemache v. ToUemache Tomes v. Eock . Tomlin v. Tomlin Tonson v. Walker . . . 290 Torre v. Torre .... 457 Tottenham and Hampstead Rail- way Co, Be . . . . 585 Toulmin v. Eeid . . . 153 Tournay, Be . . . 591 Townsend (Marquis of) v. Stan- groom ..... 444 Townsend's Settled Estates, Be . 620 Towsey v. Groves . . . 118 Tracy v. Lady Hereford . . 373 Trader's North Staffordshire Carry- ing Co., Be . . . . 670 Trappes v. Barter . . 379 Trefusis v. Clinton . . . 465 Trezevant v. Boughton . . 79 Tritton v. Foote . . .441 TroUope v. Routledge . . 224 Trowbridge Water Supply, Be . 676 Trower and Lawson's Case, Be . 680 Trueman's Estate, Be . . 653 Trumnerv. Bayne . . . 217 Trustees of British Museum v. White 239 Try t;. Try . . . .344 Tryon, Be . . . 510 Tubbs, 5e . . . .143 Tuck u. Silver . . . .252 Tucker v. Wilkins ... 87 V. Wilson . . .379 Tugwell V. Hooper ... 34 Tullett V. Armstrong . . . 146 Tullocli V. Tulloch . . .460 Tumacocori, Be . . . 643 Tunstall, i?e 612 Turner v. Burkinshaw V. Evans ■ V. Harvey V. Marriott . V. Eeynoldscn V. Sowdon V. Turner V. Wright Turpin v. Chambers . Turquand v. Kirby . Tweeddale v. Tweeddale Tweedy, Be Twiss V. Massey Twogood, Ex parte . Twynam v. Porter Tylee v. Tylee . Tyler, Be Tyrone (Earl of) (Marquis of) . u. VAOE . 157 . 282 . 468 435, 451 216, 225 5 . 20 255, 258, 259 . 452 . 666 . 396 . 616 . 175 . 155 499, 503 . 343 . 592 Waterford . 38 Udny V. Udny . . 221, 222 Underbill v. Horwood . 163 Underwood, Be . 596 V. Frost . 340 United Ports and General Insur- ance Co., Be . . 650, 678 United Service Co., Be . . 677 Unity Assurance Association, Be . 650 Universal Bank, Be . . 643, 677 Universal Disinfector Co., Be . 671 Universal Drug Association Co., Be 675 Universities of Oxford and Cam- bridge V. Richardson . . 304 Upperton v. Niokolson . . 439 Upton and Wills' Case . 108 Vale V. Davenport Vance v. East Lancashire Rally. Co, Vancouver v. Bliss Vane v. Lord Barnard Vansittart v. Vansittart Vaughan v. Vanderstegen . Venner, iJe Vernon v. Vawdry 470 324 440 258 442 146 618 154 Digitized by Microsoft® Ivi TABLE OP OASES. PAGE Vestris v. Hooper ... 91 Vestry of St. Mary Newington v. Jacobs . . . .280 Vezey v. Jamsou . . 227, 237 Viall, Be . . . . 594, 615 Vibart v. Vibart ... 80 Victoria Benefit Building Society, Re 425 Vidler v. Parrott . . .635 Viner v. Vaugban . . . 259 Vines and Hobbs, Be . .521, 522 Viney -y. Chaplin . . .444 Vint V. Padgett . . . 396 Vouillon u. Slater . . . 444 VuUiamy v. Noble . . . 155 w. Waddilove v. Taylor . Wade V. Oooper Wadham v. Eigg Wagstaff V. Kemp Wainford v. Heyl Wake V. Parker V. Wake Wakefield v. Buooleugh (Duke of) Walburn v. Ingilby . Walcot V. Walker Waldo V. Caley .... Waldron v. Francis . Walker, Be — ■ V. Brewster ■ V. Christian V. Probisher V. Shore . . . 115 V, Symonds . . . 154 V. Walker . . .443 V. Ware, Hadham, and Buntingford Bailway Co. 408, 434, 451 V. Wildman ... 32 330, 374, 494 . 398 . 217 . 354 . 146 . 135 . 598 252 32 . 290 . 238 . 223 123, 513, 589, 591 . 278, 279 333 553 ■ V. Woodward Wall V. Rogers ■; V. Tomlinson Wallace v. Pielden Waller v. Holmes Wallis V. Hodgson V. Sarel . ■;;. Wallis Walmisley v. Milne Walsh V. Gladstone 152 137 142 412 498 213 465 92 379 244 Walsham v. Stainton. . . 34 Walsingham (Lord) v. Goodrick . 33 Walworth v. Holt . . '. 174 Wandsworth Board of Works v. London and South Western Eail- way Co. .... 267 Warburton v. Hill . . . 333 Ward, Ex parte . . 582 — ^ ,Be . . . .634 and Henry's Case . .661 V. Beck . . . .411 V. Buckingham (Duke of). 441 V. Davies . . . 332 V. Dean .... 552 V. Higgs . . . 254 V. Sittingboume Baily. Co. 683 V. Swift. . . 344, 494 V. Ward ... 92 ■». Yates. . . 143,225 Warde v. Dixon . . . 452 ■ — V. Warde ... 34 Warden of Dover Harbour v. South Eastern Bailway Co. . .267 Warden, &c., of St. Paul's v. Morris 165 Ware v. Regent's Canal Co. . 268 Warlters, Be . . . .610 Warner, Ex parte . . . 386 and Powell, Be . . 551 Warran v. Buck . . . 135 Warren v. Postlethwaite . . 224 Warrender v. Poster . . . 608 Warwick Grammar School . . 245 Washoe Mining Co. v. Ferguson . 652 Waterfall v. Penistone . . 379 Waterfnrd v. Knight . . . 165 Waters v. Shaftesbury (Earl of) 33, 152 V. Taylor . . . 175 V. Waters . . .462 Watford Burial Board . 532, 541 Watmougb's Trusts . . .238 Watney v. Wells . 172, 176, 177 Watson V. Bennett . . . 551 V. Eales . . 325, 419 V. Hinsworth Hospital . 242 V. Lyon . . . 498 V. Korthumberland (Duke of) 480 Watts V. Jefferyes . . . 332 V. Kelson . . . 280 ('. Shrimpton . . . 141 Digitized by Microsoft® TABLE OP CASES. Ivii Watts V. Symes "Waugh V. Laud "Wavell, Re Wayn v. Lewis . Wayne v. Hanliam Way's Settlement, Se Webb, Be , Ex parte V. De Beauvoisin V. Manchester and Bailway Co. . V. Rose . V. Wardle V. WhifSn WebVs Charity, Re Webster v, Dillon V. Le Hunt FAOE . 396 . 399 . 514 . 368 360, 367, 380 . 591 . 141 . 662 . 224 Leeds 315, 324 . 290 . 83 . 664 . 592 . 285 495, 497 . 662 145, 176 . 223 Webster's Case . Wedderbum v. Wedderburn Wedgwood v. Adams . Weeding, iJe . . . .608 Weeks v. Howard . . . 268 Welch V. Knott . . .312 Welchman, Re . . . .143 Wellbeloved v. Jones . . . 244 Wellesley v. Beaiifort (Duke of) . 115 V. Mornington . 138, 330 — V. Wellesley . 115, 137, 138, 258, 607, 608 Wellington (Duke of), JEJx parte . 562 Wells, Re V. Kilpin V. Malbon 521, 524 390, 391, 697 . 138, 222 . 442 537, 538, 540 ■ V. Maxwell West Ham Charities West Hartlepool Iron Works Co., Re ... . 642, 648 West Eetford Church Lands . 530 West Surrey Tanning Co., Re 642, 643, 644 West V. Francis . . .295 V, Iiaing . . . 217 V. Shuttleworth ■ . .238 v. Skip . . . .407 Western Benefit Building Society, Re 651 Western of Canada Oil Co., Re 641, 672, 673 V. Walker . . .652 Western v. Russell . . .448 Westfaling v. Westfaling Westmeath v. Westmeath Westminster (Dean and Chapter of), Mx parte Westminster and Brymbro Col- liery Co. V. Clayton Westmore v: Bmberley Weston V. Collins Wetenhall v. Davis . Whaley v. Dawson . Whalley, Ex parte . , Re . V. Whalley Wharam v. Broughton Whatton v. Cradock . Wheatley v. Bastow . Wheeler, Re Whetstone v. Dewis . Whicker v. Hume Whitaker v. Newman V. Wright Whitchurch v. Bevis . White V. Cohen V. Damon V. Herrick ■ V. Peterborough (Bishop of) 340 V. White Whitehead v. Lynes . V. Whitehead Whitehouse v. Partridge Whitelegg v. Whitelegg Whiteley, Re . Whitfield, Re . V. Bewit V. Roberts Whiting, Re . Whitmarsh v. Robertson Whitmore v. Oxburrow Whittaker v-. Howe Whitton, Re . Whyte V. O'Brien Wickham v. Nicholson Wicks- u. Hunt . Wigan Glebe Act Wigham v. Measor Wilcox V. Marshall Wilde V. Gibson Wilding V. Andrews V. Bolder Wiley V. Crawford PAGE 217 442 .583 . 32 . 358 . 449 . 224 . 479 . 527 . 576 . 494 . 108 . 373 492, 493 . 615 . 12 221, 239 . 213 . 217 . 443 85, 279 . 448 . 123 161, 162, 239 . 97 . 220 333, 334 . 257 . 620 . 580 . 259 368, 374, 499 591, 592 . 222 ' . 91 283, 285, 286 587, 592 . 155 . 368 . 254 . 580 . 368 . 452 . 468 . 465 . 613 . 411 Digitized by Microsoft® Iviii TABLE OP CASES. Wilkes V. Groom Wilkinson's Case Wilkinson's Trusts, Re Wilkinson, Ex parte , -, Be . V. Barber — — — V. Charlesworth V. Hartley V. Henderson . V. Lindgren . V. Nelson Willan, He' . Willett V. Blandford . Williams v. Attenborough ■ V. Cook V. Games V. Glentou V. Hockin V. Kershaw V. Lake V. Llanelly Railway V. Piggot ■ V. Powell PAGE . 596 . 662 . 695 575, 582 124, 597, 620 . 237 . 90 . 439 . 175 . 224 . 457 . 616 . 176 . 465 . 79 483, 486 . 465 . 493 226, 237 . 442 81 403 155 Co. • V. Prince of WalesLife,&c., Co. 53 V. Rowland V. Williams . William's Estate, Be . Williamson v. Gordon ii. Jeffreys Willis V. Hunt . Willmer v. Kidd Willougbby v. Willoughby Wills, Be V. Bourne Willshire's Estate Wilson, Be — (Sir Thomas) Estate. V. Brownswiok V. Fielding V. Purness Railway V. Greenwood . V. Harman V. Heaton V. Metcalf V. Northampton and bury Junction Railway Co, ■ V. Round ■ V. Squire ; V. Whately V. Williams . 26 285, 314 . 608 118, 119, 401 79 . 153 344, 347 . 393 . 615 . 240 . 216 . 143 575 224 217 445 Be Co. 168, 461 160, 373 . 224 364, 375 Ban- . 446 . 502 . 224 37,80 . 448 Wilson V. Wilson Wilton V. Hill . Wiltshire iron Co., V. Jones Be FAQ£ 81, 343, 411, 442 135, 137 . 678 . 454 . 694 . 123 Whitway, Be . Winch V. James Winchester (Bishop of) v. Beaver 401 «. Knight . . 164,259 V. Mid Hants Railway Co. 408, 434, 451 Windsor, Dean and Canons of , 240 Wing V. Tottenham Railway Co. 408,451 Winscom, Be , . . . 128 Winter v. Anson (Lord) . . 407 Winterbottom, Be . . 513, 514 Wintle V. Bristol and South Wales Railway Co 324 Winton v. Newland . . . 488 Wise, Be 616 Wiseman, Be . . . . 615 Withy V. Cottle . . .441 Wolverhampton, &c.. Railway Co. V. London and North Western Railway Co. . Wood, Be V. Beetlestone V. Boosey V. Chart V. Downes V. Griffith V. Machin V. Scarth V. Scoles Woodcock's Trusts , Woodford «. Brooking Wood gate v. Field Woods, Be Woodward v. Conebear Woollan V. Hearne Wooldridge v. Noi'ris . V. Ryde and Newport Rail- way Co. . . . , Wootton's Settlement, Be Worcester Charities, Be Wordsworth v. Darrell V. Parkins . 324 . 581 . 606 . 293 291, 293 . 403 . 447 439, 469 . 444 172, 175, 177 . 618 . 369 153, 180, 214 . 591 . 136 . 444 . 163 Worrall v. Harford . Wortham v. Pemberton Worthing Sea House Hotel, Be . 317 577, 583 . 543 . 203 . 81 . 497 . 141 . 649 Digitized by Microsoft® TABLE OF CASES. lix Wotherspoon v. Currie Wotterbeck v. Barrow Wragg V. Denham Wren v. Kirton Wright, Be , Ux parte V. Chard V. Deeling V. Goff V. Howard V. King V, Mayer V. Morley V. St. George V. Vernon Wright's Case' . Wrottesley v. Bendish WroUt V. Dawes Wyatt V. Barnard Wycombe Eailway Co. nington Hospital Wyllie V. Lugg . PAOK 310, 311, 312 . 457 363, 370, 371 . 465 . 590 386, 387 . 146 . 555 . 444 . 278 . 494 . 32 398, 420 . 442 . 342 664, 677 . 58 405, 407 . 290 Don- . 450 . 399 , PAGE Wynn v. Morgan . . 439, 449 Wynne v. Griffith . . .448 V. HumbertSon . . 34 V. Lord Newborough . 343 V. Price . . . 441 V. Styan . . 399, 420 Wythes v. Lee .... 451 Yates V. Hambly V. Jack. Yeomans v. Helvington Yetts, Ee Yong V. Bad ford Yorkshire Fibre Co, Youl, Be . Young V. Brassey V. Femie V. Macrae V. Smith V. Young 164, 422, 425, 426 269, 272, 273 . 76 . 514 . 402 : 679 . 80 1 41, 300, 308 . 311 . 458 393, 483 Digitized by Microsoft® Digitized by Microsoft® TABLE OF ABBEEVIATIONS. AbbieviatioDs. Authorities cited. Period. Ad. & E. or A. &E. Amb. . Anstr. Atk. . Ball & B. or B. &B. y B. & Ad. B. & Aid. B. &0. Beat. . Beav. . Bing. . Bl. Com. BU. . Braith. Pr. 'Bro. C. C. or Bro. Rep. Buckley Gas. t. Tal. Ch. Rep. Ch. Oases Ch. Funds Rule Ch. Funds Ord. Chitty's Archb. CI. & F. . I Ooke Lit. . OoIL . Cons. Ord. . Coop. C. P. . Coop. G. . Coote, Mort. Cox . Adolpbus and Ellis' Reports Do. New Series Ambler's Reports . Anstrnther's Reports Atkyn's Reports . . Ball and Beatty's Reports Barnewall and Adolphus Barnewall and Alderson Barnewall and Cresswell Beatty (temp. Hart) Beavan's Reports . {Bingham Do. New Cases Blackstone's Commentaries. Bligh .... Braithwaite's Practice. Brown's Reports of Cases in Chancery Buckley on the Companies Acts (1862 and 1867). Cases in time of Lord Chancellor Talbot . Chancery Reports ..... Cases in Chancery ..... Chancery Funds Rules, 1874 .... Chancery Funds (Amended) Orders, 1874 Chitty's Archbold's Practice. Clarke and Finelly's Reports (H. L.) . . Coke on Littleton. > OoUyer's Chancery Reports .... Consolidated Orders of the Court of Chancery . (Cooper, C. P., Reports I Do. Chancery Reports .... Cooper, G., Reports Coote on Mortgages. Cox's Reports . . 1834—1841 1841—1846 .1739—1783 1791—1796 1736—1754 1807—1814 ,1830—1834 1818—1822 1823—1830 1827--: 1829 1838—1866 J.822— 1834 1834—1840 1819—1821 1778-.r-1794 1733—1737 1689—1801 1660—1678 1874 1874 1831—1846 1844—1846 1860 1837—1838 1846—1847 1815 1783—1796 Digitized by Microsoft® Ixii TABLE OF ABBREVIATIONS. Abbreviations. Cr. & P. . or C. & P. Dan. (5tli ed.) Dart . De G. & S. . De G. M. & G. De G. & J. . De G. P. & J. De G. J. & S. Dick . Dowl. . Dr.&Sm. . Dr. & W. . or Dr. & War, . Drew. . or Dr. . Dru. . E. & B. E. & E. East . Eden . Bq. C.Ab. . Ex. . Fisher. Fonblanque . Giff. . Gilb. For. Eom. Hare . H. & 0. . H. & M. . H. & N. . H. & T. . Hob. . H. L. C. . h. Ch. Rep. . Jac. . Jac. &W. . Authorities cited. Period. Craig and Phillips .... Daniel's Chancery Practice. Dart on Vendors and Purchasers (4th Edition). De Gex and Smale De Gex, Macnaghten, and Gordon De Gex and Jones De Gex, Fisher, and Jones De Gex, Jones, and Smith Dickens' Reports . iDowling's Practice Reports I Do. (New Series) . Drewry and Smale Drury and Warren Drewry's Chancery Reports Drury's Reports (temp. Sugden) Ellis and Blackburn (Q. B. Reports) Ellis and Ellis (Do.) East's Reports Eden's (Lord Henley) Reports ( Equity Cases Abridged . \ Do. (Anon.) . Exchequer Reports Fisher on Mortgages (Second Edition, 1868). Fonblanque's Treatise on Equity. Giffard's Reports .... Gilbert's Forum Eomanum. Hare's Reports - . . . Hurlstone and Coltman (Exchequer Reports) Hemming and Miller Hurlstone and Norman (Exchequer Reports) Hall and Twell's Reports Hobart, Sir H. . . _ ' " . House of Lords' Cases ..." Irish Chancery Reports . Jacob's Reports Jacob's and Walker's Reports ..." 1840—1841 1846—1850 1851—1857 1857—1859 1859—1861 1862—1865 1559^1792 1830—1841 1841^1843 1859—1865 1841—1843 1852—1857 1843 1852—1858 1858—1861 1801—1814 1757—1766 1769—1793 1732 1847—1857 1858—1864 1841- 1862- 1862- 1856- 1849- 1613- 1847- -1853 -1865 -1865 -1861 -1850 -1644 -1866 1850—1854 1821—1822 1819-^1821 Digitized by Microsoft® TABLE OF ABBREVIATIONS. Ixiii Abbreviations. AutboritieB cited. Period. J. &L. . .\ or [ Jones and Latouohe's Reports {temp. Sugden) . 1844^1846 J. &Lat. . .) Job. Hep. Johnson's Reports 1858—1860 Jud. Eules . Judicature Rules 1875 Jur. . Jurist ........ ■1837—1854 Jur. (N. S.). Jurist, New Series ..... 1855—1866 Kay . Kay's Reports 1853—1854 K. & J. Kay and Johnson . . . . 1854—1858 Keen . Keen's Reports 1836-1839 Keir . Kerr on Injunctions (1867). L. J. (Oh.) . Law Journal Reports in Ohancery . Do. (New Series) .... 1822—1831 1831—1857 L. T. . Law Times ....... 1843—1857 L. R. Oh. . Law Reports (Cbancery Appeals) 1865—1875 L. R. Eq. . Law Reports (Equity Series) . 1865—1875 L. R. Oh. D. Law Reports (Ohancery Division) . 1 Jan. 1876 L. R. H. L. Law Reports (House of Lords) 1865—1875 L.R. P.O. . 1865—1875 L. E. Q. B. . Law Reports (Queen's Bench). 1865—1875 LI. & Goo. . . ) or / Lloyd and Gould's Reports (temp. Plunkett) 1834--1836 Lloyd & Gold. . J Do. (temp. Sugden; 1845 M.&G. . or Macnaghten and Gordon's Reports . 1849—1852 Macn. & G. . Macq. Macqueen's Reports (Scotch Appeals) 1851—1854 Madd. Haddock's Reports 1815—1821 Mer. . Merivale's Reports 1815—1817 M. & 0. or Mylne and Oraig's Reports .... 1835—1841 Myl. & 0. . Myl. &K. . Mylne and Keen's Reports .... 1832—1834 M. & W. . Meeson and Welsby ..... 1836—1847 Morg. . Morgan's Chancery Practice. MoU. . Molloy's Irish Reports (temp. Hart) 1827—1828 Moo. P. 0. . Moore, B. P., Privy Oouncil Appeals 1836—1855 Mos. . Mosley's Reports (temp. King) 1726—1730 M. D. & De G. . Montague, Deacon, and De Gex 1840-1844 N. R. New, Reports ...... ,1862—1865 Ph. . . .j or [ Phillips' Chancery Reports .... 1841—1849 Phil. . . .) Digitized by Microsoft® Ixiv TABLE OF ABBREVIATIONS. Abbreviations. P. Wms. . Prec. Oh. . Powell on Mort. Lord Red. Roper . Russ. & M. Russ. . S. 0. . s. &s. or Sim. & S. Sim. . Sw. . Sch. & Lef. Sel. Oh. Ca. Seton . Sm. & G. Story . Sugd. V. & P. Taunt. T. & R. Tud. . Vern. . Ves. Sen. or Ves. . Ves. Junr. V. &B. "Web. Pat. Cas. W.N. W. R. White Wms. Esors. Woodfall . T. & 0. or Y. &C0II. . Y, & J. Authorities cited. Peere William's Reports Precedents in Chancery. I'owell on Mortgages. Lord Redesdale (Mitford) on Pleadings. Roper on Husband and Wife. Russell and Mylne's Reports . Russell's Reports ..... Same case. Simons and Stuart .... J Simon's Reports ..... ( Do. (New Series) . Swanston's Reports .... Schoales and Lefroy (Irish Chanceiy) Select Cases, Anon. (Chancery, temp. King) Seton on Decrees (Third Edition) . Smale and Giffard .... Story on Equity Jurisprudence. Sugden's Vendors and Purchasers. Taunton's Reports (Common Pleas) . Turner and Russell's Reports Tudor's Charitable Trusts. Vernon's Reports . Vesey, Senior's, Reports (temp. Vesey, Junior's, Reports Vesey and Beames' Reports Hardwicke) Webster's Patent Cases. Weekly Notes Weekly Reporter . White and Tudor's Leading Cases in Equity Williams on Executors. Woodfall on Landlord and Tenant. Younge and Collier's (.Exchequer— Equity) Do. (Chancery Cases) . Younge and Jervis (Exchequer — Equity) . Period. 1695—1735 1829—1831 1823—1828 1820—1826 1826—1850 1850-1852 1818—1819 1802—1806 1724—1733 1862 1852—1857 1807—1819 1822—1824: 1680—1719 1746—1755 1755—1817 1812—1814 1869—1875 1852—1875 1849—1850 1834—1840 1841—1844 1827—1830 Digitized by Microsoft® DECEEES AND OEDEES. CHAPTEE I. WEIT OF SUMMONS— APPEAEANCE. Summons, Eoem of. " EvEET action in the High Court shall be commenced by writ of summons, which shall be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action, and which shall specify the Division of the High Court to which it is intended that the action should be assigned " : Jud. Eules, Order 2, rule 1. " Any costs occasioned by the use of any more prolix or other forms of writs, and of indorsements thereon, than the forms hereinafter prescribed, shall be borne by the party using the same, unless the Court shall, otherwise direct": Jud- Eules, Order 2, rule 2. " The writ of summons for the coromencement of an action shall, except in the cases in which any different form is hereinafter provided, be in the form No. 1 in Part I. of Appendix (A ), with such variations as the circumstances may require " : Jud. Eules, Order 2, rule 3. " No writ of summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without the leave of a Court or judge": Jud. Eules, Order 2, rule 4. See 7mmg v. Brassey, L. E. 1 Ch. D. 277. " A writ of sunmaons to be served out of the jurisaiction, or of which notice is to be given out of the jurisdiction, shall be in Form No. 2, in Part I. of Appendix (A.), with such variations as circumstances may require. Such notice shall be in Form No. 3 in the same Part, with such variations as circumstances may require " : Jud Eules, Order 2, rule 5. InDOESEMENTS of Cl.AIlVT. The indorsement of claim 'shall be made on every writ of sumyions before it is issued": Jud Eules, Order 3, rule 1. " In the indorsement required by Order 2, rule 1, it shall not be essential to set forth the precise ground of complaint or the precise remedy or relief to which the pit considers himself entitled. The pit may, by leave of the Court or judge, amend such indorsement so as to extend it to any other cause of action or any additional remedy or relief" : Jud Eules, Order 3, rule 2. " The indorsement of claim may be to the effect of such of the forms in Part II. of Appendix (A.) hereto as shall be applicable to the case ; or if none be found B Digitized by Microsoft® 2 WRIT OP SUMMONS— APPEARANCE. applicable, then such other similarly concise form as the nature of the case may require " : Jud. Rules, Order 3, rule 3. " If the pit sues or the deft or any of the defts is sued in a representative character, the indorsement shall shew, in manner appearing by the statement in Appendix (A.) hereto. Part II., sect. 8, or by any other statement to the like effect, in what capacity the pit or deft sues or is sued " : Jud. Rules, Order 3, rule 4. " In Probate actions the indorsement shall shew whether the pit claims as creditor, executor, administrator, residuary legatee, legatee, next of kin, heir- at-law, devisee, or in any and what other character": Jud. Rules, Order 3, rule 5. In all actions where the pit seeks merely to recover a debt or liquidated demand in money, the summons is to be specially indorsed in manner provided by Order 3, rules 6 and 7. " In all cases of ordinary account, as, for instance, in the case of a partnership, or executorship, or ordinary trust account, where the pit in the first instance desires to have an account taken, the writ of summons shall be indorsed with a claim that such account be taken " : Jud. Rules, Order 3, rule 8. Service of Writ of Summons. " No service shall be required where the deft by his solicitor agrees to accept service and enters an appearance " : Jud. Rules, Order 9, rule 1. " When service is required the writ shall, wherever it is practicable, be served in the manner in which personal service is now made ; but if it be made to appear to the Court or to a judge that the pit is from any cause unable to effect prompt personal service, the Court or judge may make such order for substituted service, or for the substitution of notice for semce, as may seem just " : Jud. Rules, Order 9, rule 2. Service on Particular Defendants. On Husband and Wife. " When husband and wife are both defts to the action, service on the husband shall be deemed good service on the wife ; but the Court or a judge may order that the wife shall be served with or without service on the husband " : Jud. Rules, Order 9, rule 3. On Infant Defendants. " When an infant is a deft to the action, service on his or her father or guar- dian, or if none, then upon the person with whom the infant resides, or under whose care he or she is, shall, unless the Court or judge otherwise orders, be deemed good service on the infant ; provided that the Court or judge may order that service made or to be made on the infant shall be deemed good service" : Jud. Rules, Order 9, rule 4. On Lunatics, or Persons of Unsound Mind, Defendants. " When a lunatic, or person of unsound mind not so found by inquisition, is a deft to the action, service on the committee of the lunatic, or on the person with whom the person of unsound mind resides, or under whose care he or she is. Digitized by Microsoft® WRIT OF SUMMONS— APPEARANCE. 3 shall, unless the Court or judge otherwise orders, be deemed good service on such deft ■■' : Jud. Rules, Order 9, rule 5. On Partners and other Bodies. " Where partners are sued in the name of their firm, the writ shall be served either upon any one or more of the partners, or at the principal place within the jurisdiction of the business of the partnership, upon any person having at the time of service the control or management of the partnership business there ; and, subject to the rules hereinafter contained, such service shall be deemed good service upon the firm " : Jud. Rules, Order 9, rule 6. On Corporation, Hundred, &e. " Whenever by any statute provision is made for service of any writ of summons, bill, petition, or other process upon any corporation, or upon any hundred, or the inhabitants of any place, or any society, or fellowship, or any body or number of persons, whether corporate or otherwise, every writ of summons may be served in the 'manner so provided": Jud. Rules, Order 9, rule 7. Service in Paeticular Actions. For recovery of Land. " Service of a vprit of summons in an action to recover land may, in case of vacant possession, when it cannot otherwise be effected, be made by posting a copy of the writ upon the door of the dwelling-house or other conspicuous part of the property " : Jud. Rules, Order 9, rule 8. As to service of writ in Admiralty actions in rem, see Jud. Rules, Order 9, rules 9, 10, 11, and 12 ; and the Rules of December, 1875. Memorandum of Service. " The person serving .a writ of summons shall within three days at most after such service indorse on the writ the day of the month and week of the service thereof, otherwise the pit shall not be at liberty, in case of non-appearance, to proceed by default ; and every affidavit of service of such writ shall mention the day on which such indorsement was made " : Jud. Rules, Order 9, rule 13. Substituted Service of Writ. Upon motion, Ac, and upon reading an affidavit of, &c. [shewing grounds of application']. Let service of the Pit's summons in this action, together with a copy of this order on — [name and description'], he deemed good service on the Deft B. " If it be made to appear to the Court or to a judge that the pit is from any cause unable to effect prompt personal service, the Court or a judge toay make such order for substituted or other service, or for the substitution of notice for service, as may seem just " : Jud. Rules, Order 9, rule 2. " Every application to the Court or a judge, under Order 9, rule 2,, for an order for substituted service, or for the substitution of notice for service, shall be sup- B 2 Digitized by Microsoft® 4 WRIT OF SUMMONS— APPEARANCE. ported by an affidavit setting forth the grounds upon which the application is made ": Jud. Rules, Order 10. Under the former practice substituted service of the bill was effected under the provisions of the 15 & 16 Vict. o. 86, s. 5, and Cons. Ord. 10, rule 2. Where there is an agent in this country managing all the affairs of a deft who is abroad, and regularly communicating with him upon his affairs, or where he has an agent here specially managing the particular matter involved in the suit, the Court has ordered substituted service upon that agent : Eope v. Hope, 4 De G. M. & G. 328. And substituted service has been allowed upon stewards and agents acting in respect of property the subject of the suit where the agency has been proved : Edbhouse v. Gmrtney, 12 Sim. 140, 157 ; 6 Jur. 28 ; Cooper v. Wood, 5 Beav. 391 ; Banhier v. Poole, 3 De G. & Sm. 375. But the agency must be shewn : Cope v. Eussell, 11 Jur. 463 ; Bower v, Angier, 18 Jur. 1050 ; Hurst v. Burst, 1 De G. & Sm. 694; 12 Jur. 152. •Substituted service has been ordered on a solicitor acting under a power of attorney : Barker v. Peeh, 11 W. R. 658. And upon persons who had acted as solicitors of the absent deft, and who were in communication with him : Eeald v. Hay, 9 W. R. 369 ; Bornhy v. Holmes, 4 Hare, 306 ; 9 Jur. 225 ; Hope v. Carnegie, L. E. 1 Eq. 126. So,,too, upon a person with whom the absent deft was in communication : Bickson V. Clarke, 9 Jur. (N.S.) 636 ; 11 W. E. Where the deft had absconded, the order for substituted service had been extended to the service of all future proceedings : Forster v. Menzies, 16 Beav. 568 ; 17 Jur. 657 ; CWristie v. Cameron, 3 W. R. 146. See contra. Steel v. Gordon, 3 W. R. 158. The order directing substituted service must have been served at the same time with the bill, and it must have been stated in the order that it was to be served : Jones V. Brandon, 2 Jur. (N.S.) 437. Service of Concurrent Writ out of Jurisdiction. Upon motion, &o., hj counsel for — , and upon reading an affidavit of — , "whereby it appears that, &c. [shewinff that case comes within Order 11, rule 1, infra'] that the Deft A. is at — [or, probably may be found at — ], out of the jurisdiction of this Court, Let the Pit be at liberty to issue a concurrent writ of summons in this action against the Deft A., and to "serve a copy of such writ, together with a copy of this order, upon the said Deft A. at — aforesaid, or elsewhere in — . And the time within which the said Deft is to appear to the said summons is to be — days after such service. Sekvice out of Jurisdiction — When allowed — Evidence. "Service out of the jurisdiction of a writ of summons, or notice of a writ of summons," may be allowed by the Court or judge whenever the whole or any part of the subject matter of the action is land or stock, or other property situate within the jurisdiction, or any act, deed, will, or thing affecting such land, stock, or pro- perty, and whenever the contract which is sought to be enforced or rescinded dissolved, annulled, oi- otherwise affected in any such action, or for the breach Digitized by Microsoft® WEIT OP SUMMONS— APPEARANCE. 5 whereof damages or other relief are or is demanded in such action, was made or entered into witliin the jurisdiction ; and whenever there has been a breach within the jurisdiction of any contract, wherever made, and whenever any act or thiAg sought to be restrained or removed, or for which damages are sought to be recovered, was or is to be done or is situate within the jurisdiction ": Jud. Eules, Order H, rule 1. For cases of service of bill out of the jurisdiction under the former practice (under 15 & 16 Vict. c. 86, s. 3, and Cons. Ord. 10, rule 7), see Coohney v. Beavan, 1 De G. J. & S. 365 ; Foley v. Maiflardet, 1 De G. J. & S. 396 ; Norris v. Oot- terill, 5 N. R. ; Drummond v. Brummond, L. B. 2 Bq. 335 ; L. R. 2 Ch. 32. Leave might have been given to serve the bill upon infants and persons of unsound mind out of the jurisdiction : Anderson v. Slather, 10 Jur. 383 ; Turner V. Sowdon, 12 W. R. 522; 13 W. R. 66; 10 Jur.(N.S.) 1122. And a husband out of the jurisdiction might have been served for himself and his wife : Dan. 5th ed. 377 ; Jones v. Oeddis, 9 Jur. 1002 ; Steele v. Plomes 2 Phil. 782, n. ; 1 Mac. & G. 83. " In Probate actions service of a writ of summons, or notice of a writ of sum- mons, may by leave of the Court or judge be allowed out of the jurisdiction ": Jud. Rules, Order 11, rule 2. " Every application for an order for leave to serve such writ or notice on a deft out of the jurisdiction shall be supported by evidence, by affidavit or otherwise, shewing in what place or country such deft is or probably may be found, and whether such deft is a British subject or not, and the grounds upon which the application is made": Jud. Rules, Order 11, rule 3. Under the former practice an affidavit of merits was not expressly required : Blenkinsop v. Blenkinsop, 2 Phil. 1. But in most cases an affidavit was required shewing the present residence of the deft : Freske v. Buller, 7 Beav. 581. Service out of Jueisdiction — Time foe Appearance^ " Any order giving leave to effect such«service or give such notice, shall limit a time after such service or notice within which such deft is to enter an appearance, such time to depend on the place or country where or within which the writ is to be served or the notice given " : Jud. Eules, Order 11, rule 4. " Notice in lieu of service shall be given in tbe manner in which writs of summons are served " : Jud. Rules, Order 11, rule 5. ^ The times, under the former practice, were fixed by the registrar. Usually twice the time it ordinarily took to reach the deft's residence was allowed for appearing, and^twioe that time for answering : Chatfield v. Berchtoldt, 9 Hare, App. 28. The service need not be limited to any particular spot, and leave has been given, under the former practice, to serve " in Scotland," and " in the Grand Duchy of Baden " : Morgan, 426 ; Blenkinsop v, BlenJeinsop, 2 Ph. 1 ; Preston V. Dickinson, 9 Jur. 919. Appearahce. " Except in the cases otherwise provided for by these rules a deft shall enter his appearance in London" : Jud. Eules, Order 12, rule 1. " If any deft to a writ issued in a district registry reside or carries on business within the district he shall appear in the district registry " : Jud. Rules, Order 12, rule 2. Digitized by Microsoft® 6 WRIT OF SUMMONS— APP'BABANOE. "If any deft neither resides nor carries on business iu the district he may- appear either in the district registry or in London": Jud. Bules, Order 12, rule 3. " If a sole deft appears, or all the defts appear in the district registry, or if all the defts who appear appear in the district registry, and the others make default in appearance, then, subject to the power of removal hereinafter provided, the action shall proceed in the district registry " : Jud. Rules, Order 12, rule 4. " If the deft appears, or any of the defts appear, in London, the action shall proceed in London, provided that if the Court or a judge shall be satisfied that the deft appearing in London is merely a formal deft, or has no substantial cause to interfere in the conduct of the action, such Court or judge may order that the action may proceed in the district registry notwithstanding such appearance in London " : Jud. Eules, Order, 12, rule 5. As to mode of entering appearance, see Order 12, rules 6, 6 (a), 7, and 8. Appeaeance set aside. If the memorandum of appearance required by rules 6, 7, and 8 of Order 12 does not contain the address, and address for service required by those rules, the memorandum is not to be received ; and if any such address shall be iUusory or fictitious, the appearance may be set aside by the Court or a judge on the application of the pit : see Order 12, rule 9. " A solicitor not entering an appearance in pursuance of his written under- taking so to do on behalf of any deft shall be liable to an attachment " : Jud. Rules, Order 12, rule 14. Time foe Appeaeance — Notice. "A deft may appear at any time before judgment. If he appear at any time after the time limited for appearance, he shall on the same day give notice thereof to the pit's solicitor, or to the pit himself, if he sues in person, and he shall not, unless the Court or judge otherwise order, be entitled to any further time for filing and delivering his defence, or for any other purpose, than if he had appeared according to the writ " : Jud. Rules, Order 12, rule 15. In Probate actions and Admiralty actions in rem, persons not named in the writ may intervene and appear on filing an affidavit as provided by Order 12, rules 16 and 17. " Any person not named as a deft in a writ of summons for the recevery of land may, by leave of the Court or judge, appear and defend on filing an affidavit shewing that he is in possession of the land either by himself or his tenant " : Jud. Rules, Order 12, rule 18. Notice of such appearance must be given to the pit or his solicitor : see Jud. Rules, Order 12, rule 20. And the defence of such person may be lunited to a part only of the property mentioned in the writ : Jud. Rules, Order 12, rule 21. Default of Appearance — Infant— Person of Unsound Mind. " Where no appearance has been entered to a writ of summons for a deft who is an infant or a person of unsound mind not so found by inquisition, the pit may apply to the Court or a judge for an order that some proper person be assigned guardian of such deft, by whom he may appear and defend the suit. But no such order shall be made unless it appears on the hearing of such appli- Digitized by Microsoft® WEIT OP SUMMONS— APPBAEANCE. 7 cation that a copy of the writ of summons was duly served, and that notice of such application was after the expiration of the time allowed for appearance, and at least six clear days before the day in such notice named for hearing the appli- cation, served upon or left at the dwelling-house of the person with whom or under whose care such deft was at the time of serving such writ of summons, and also (in the case of such deft heing 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, if any, of such infant, unless the Court or judge at the time of hearing such application shall dispense with such last-mentioned service " : Jud. Rules, Order 13, rule 1. " Where any deft fails to appear to a writ of summons, and the pit is desirous of proceeding upon default of appearance under any of the following rules of this Order, or under Order 15, rule 1, he shall before taking such proceeding upon default, file an affidavit of service, or of notice in lieu of service, as the case may be " : Jud. Eules, Order 13, rule 2. In case of non-appearance by defts where the writ of summons is specially indorsed under Order 3, rule 6, final judgment may be signed, see Order 13, rules 3 and 4 ; and in cases of non-appearance by the deft to a writ not specially indorsed, where the claim is for a debt or liquidated demand only, see Order 13, rule 5. In case of non-appearance by the deft where the claim is for detention of goods and pecuniary damages, or either of them, see Order 13, rule 6. In case of non-appearance in an action for the recovery of land, see Order 13, rules 7 and 8. " In actions assigned by the 34th section of the Act to the Chancery Division, and in Probate actions, and in all other actions not by the rules in this Order otherwise specially provided for, in case the party served with the writ does not appear within the time limited for appearance, upon the filing by the pit of a proper affidavit of service the action may proceed as if such party had appeared : " Jud. Rules, Order 13, rule 9. " In default of appearance to a summons indorsed under Order 3, rule 8 (ante, p. 2), and after appearance, unless the deft, by affidavit or otherwise, satisfy the Court or a judge that there is some preliminary question to be tried, an order for the account claimed, with all directions now usual in the Court of Chancery in similar cases, shall be forthwith made " : Jud. Eules, Order 15, rule 1. " An application for such order as mentioned in the last preceding rule shall be made by summons, and be supported by an affidavit filed on behalf of the pit, stating concisely the grounds of his claim tcj an account. The application may be made at any time after the time for entering an appearance has expired " : Jud. Eules, Order 15, rule 2. Payment into Court in Satisfaction. " Where any action is brought to recover a debt or damages, any deft may, at any time after service of the writ, and before or at the time of delivering his defence, or by leave of the Court or judge at any later time, pay into Court a sum of money by way of satisfaction or amends. Payment into Court shall be pleaded in the defence, and th6 claim or cause of action in respect of which such payment shall be made shall be specified therein " : Order 30, rule 1. Digitized by Microsoft® ( 8 ) CHAPTER II. PAETIES, AND JOINDBK OF CAUSES OF ACTION. Paeties. The pit may enforce an equitaUe claim, and the deft may raise any equitable defence in any Court. The deft may enforce by way of covmter-claim against the pit any claim, legal or equitable, which he might have raised by a cross suit at law or in equity. And the deft may obtain any relief relating to the original subject of the action against any other person. See Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 24, sub-sects. 1 to 7 inclusive. Parties, who mat be joined. " All persons may be joined as pits in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative. And judg- ment may be given for such one or more of the pits as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment. But the deft, though unsuccessful, shall be entitled to his costs occasioned by so joining any person or persons who shall not be found entitled to relief, unless the Court in disposing of the costs of the action shaU otherwise direct " : Jud. Eules, Order 16, rule 1. " Where an action has been commenced in the name of the wrong person as pit, or where it is doubtful whether it has been commenced in the name of the right pit or pits, the Court or a judge may, if satisfied that it has been so com- menced through a hond fide mistake, and that it is necessary for the determinar tion of the real matter in dispute so to do, order any other person or persons to be substituted or added as pit or pits upon such terms as may seem just " : Jud. Eules, Order 16, rule 2. " All persons may be joined as defts against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judg- ment may be given against such one or more of the defts as may bo found to be liable, according to their respective liabilities, without any amendment " : Jud. Rules, Order 16, rule 3. " It shall not be necessary that every deft to any action shall be interested as to all the [relief thereby prayed for, or as to every cause of action included therein ; but the Court or a judge may make such order as may appear just prevent any deft from being embarrassed or put to expense by being required to attend any proceedings in such action in which he may have no interest": Jud. Eules, Order 16, rule 4. " The pit may, at his option, join as parties to the same action all or any of the persons severally, or jointly and severally, liable on any one contract, includ- ing parties to bills of exchange and promissory notes " : Jud. Rules, Order 16, Digitized by Microsoft® PARTIES, AND JOINDER OF CAUSES OP ACTION. 9 " Where in any action, whether founded upon contract or otherwise, the pit is in doubt as to the person from whom he is entitled to redress, he may, in such manner as hereinafter mentioned, or as may be prescribed by any special order, join two or more defts, to the intent that in such action the question as to which, if any, of the defts is liable, and to what extent, may be determined as between all parties to the action " : Jud. Rules, Order 16, rule 6.- Trustees and Executors. " Trustees, executors, and administrators may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representa- tives, without joining any of the parties beneficially interested in the trust or estate, and shall be considered as representing such parties in the action ; bat the Court or a judge may, at any stage of the proceedings, order any of Such parties to be made parties to the action, either in addition to or in lieu of the previously existing parties thereto :" Jud. Rules, Order 16, rule 7. Married Women and Infants. " Married women and infants may respectively sue as pits by their next friends, in the manner practised in the Court of Chancery before the passing of this Act ; and infants may, in like manner, defend any action by their guardians appointed for that purpose. Married women may also, by the leave of the Court or a judge, sue or defend without their husbands and without a next friend, on giving such security (if any) for costs as the Court or a judge may require " : Jud. Rules, Order 16, rule 8. " Where there are numerous parties having the same interest in one action, one or more of such parties may sue or be sued, or may be authorized by the Court to defend in such action, on behalf or for the benefit of all parties so interested" : Jud. Rules, Order 16, rule 9. " Any two or more persons claiming or being liable as co-partners may sue or be sued in the name of their respective firms, if any ; and any party to an action may in such case apply by summons to a judge for a statement of the names of the persons who are co-partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the judge may direct" : Jud. Rules, Order 16, rule 10. " Subject to the provisions of the Act and these Rules the provisions as to parties contained in section 42 of 15 & 16 Vict. c. 86, shall be in force as to actions in the High Court of Justice " : Jud. Rules, Order 16, rule 11. " Subject as last aforesaid, in all Probate actions the rules as to parties here- tofore in use in the Court of Probate shall continue to be in force " : Jud. Rules, Order 16, rule 12. Misjoinder of Parties. "No action shall be defeated by reason of the misjoinder of parties, and the Court may in every action deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court or a judge to be just, order that the name or names of any party or parties, whether as pits or as defts, improperly joined be struck out, and that the name or names of any party Digitized by Microsoft® io PARTIES, AND JOINDER OF CAUSES OF ACTION, or parties, whether pits or defts, who ought to have been joined, or whose pre- senco before the Court may be necessary in order to enable the Court effectually p,nd completely to adjudicate upon and settle all the questions involved in the action, be added. No person shall be added as a pit suing without a next friend, or as the next friend of a pit under any disability, without his own consent thereto. All parties whose names are so added as defendants shall be served with a summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedings as against them shall be deemed to have begun only on the service of such summons or notice " : Jud. Rules, Order 16, rule 13. "Any application to add or strike out or substitute a pit or deft may be made to the Court or a judge at any time before trial by motion or summons, or at the trial of the action in a summary manner": Jud. Rules, Order 16, rule 14. When Defendant added. " Where a deft is added, unless otherwise ordered by the Court or judge, the pit shall file an amended copy of and sue out a writ of summons, and serve such new deft with such writ or notice in lieu of service thereof in the same manner as original defts are served " : Jud. Rules, Order 16, rule 15. " If a statement of claim has been delivered previously to such deft being added, the same shall, unless otherwise ordered by the Court or judge, be amended in such manner as the making such new deft a party shall render desirable, and a copy of such amended statement of claim shall be delivered to such new deft at the time when he is served with the writ of summons or notice or afterwards, within four days after his appearance " : Jud. Rules, Order 16, rule 16. Defendant claiming CoNTRiBtmox oe Indemnity. " Where a deft is or claims to be entitled to contribution or indemnity, or any other remedy or relief over against any other person, or where from any other cause it appears to the Court or a judge that a question in the action should be determined not only as between the pit and deft, but as between the pit, deft, and any other person, or between any or either of them, the Court or a judge may, on notice being given to such last-mentioned person, make such order as may be proper for having the question so determined " : Jud. Rules, Order 16, rule 17. " Where a deft claims to be entitled to contribution, indemnity, or other remedy or relief over against any person not a party to the action, he may, by leave of the Court or a judge, issue a notice to that effect, stamped with the seal with which writs of summons are sealed. A copy of such notice shall be filed with the proper ofBoer and served on such person according to the rules relating to the service or writs of summons. The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the Court or a judge, be served within the time limited for delivering his statement of defence. Such notice may be in the form or to the effect of the Form No. 1 in Appendix (B), hereto with such variations as circumstances may require, and therewith shall be served a copy of the statement of claim, or if there be no statement of claim, then a copy of the writ of summons in the action " : Jud. Rules, Order 16, rule 18. See IVeleven v. Bray, 1 Ch. D. 176. Digitized by Microsoft® PARTIES, AND JOINDER OF CAUSES OF ACTION. 11 Questions in Action relating to Persons not Parties. " When under Rule 17 of this Order it is made to appear to the Court or a judge at any time before or at the trial that a question in the action should be determined, not only as between the pit and deft, but as between the pit and the deft and any other person, or between any or either of them, the Court or a judge, before or at the time of making the order for having such question deter- mined, shall direct such notice to be given by the pit at such time and to such person and in such manner as may be thought proper, and if made at the trial the judge may postpone such trial as he may think fit" : Jud. Rules, Order 16, rule 19. " If a person not a party to the action, who is served as mentioned in Rule 18, desires to dispute the pit's claim in the action as against the deft on whose behalf the notice has been given, he must enter an appearance in the action within eight days from the service of the notice. In default of his so doing, he shall be deemed to admit the validity of the judgment obtained against such deft, whether obtained by consent or otherwise : Provided always, that a person so served and failing to appear within the said period of eight days may apply to the Court or a judge for leave to appear, and such leave may be given upon such terms, if any, as the Court or a judge shall think fit ": Jud. Rules, Order 16, rule 20. " If a person not a party to the action served under these Rules appears pur- suant to the notice, the party giving the notice may apply to the Court or a judge for directions as to the mode of having the question in the action determined ; apd the Court or judge, upon the hearing of such application, may, if it shall appear desirable so to do, give the person so served liberty to defend the action upon such terms as shall seem just, and may direct such pleadings to be delivered, or suet amendments in any pleadings to be made, and generally may direct such proceedings to be taken, and give such directions as to the Court or a judge shall appear proper for having the question most conveniently determined, and as to the mode and extent in or to which the person so served shall be bound or made liable by the decision of the question " : Jud. Rules, Order 16, rule 21. Joinder of Causes of Action. " Subject to the following rules, the pit may unite in the same action and in the same statement of claim several causes of action ; but if it appear to the Court or a judge that any such causes of action cannot be conveniently tried or disposed of together, the Court or judge may order separate trials of any of such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof" : Jud. Rules, Order 17, rule 1. " No cause of action shall, unless by leave of the Court or a judge, be joined with an action for the recovery of land, except claims in respect of mesne profits or arrears of rent in respect of the premises claimed, or any part thereof, and damages for breach of any contract under which the same or any part thereof are held " : Jud. Rilles, Order 17, rule 2. " Claims by a trustee in bankruptcy as such shall not, unless by leave of the Court or a judge, be joined with any claim by him in any other capacity " : Jud. Rules, Order 17, rule 3. " Claims by or against husband and wife may be joined with claims by or against either of them separately " : Jud. Rules, Order 17, rule 4. Digitized by Microsoft® 12 PARTIES, AND JOINDER OP CAUSES OP ACTION. " Claims by or against an executor or administrator as such may be joined with claims by or against him personally, provided the last-mentioned claims are- alleged to arise with reference to the estate in respect of which the pit or deft sues or is sued as executor or administrator " : Jud. Rules, Order 17, rule 5. " Claims by pits jointly may be joined with claims by them or any of them separately against the same deft " : Jud. Rules, Order 17, rule 6. " The last three preceding rules shall be subject to rule 1 of this Order, and to the rules hereinafter contained " : Jud. Rules, Order 17, rule 7. "Any deft alleging that the pit has united in the same action several causes of action which cannot be conveniently disposed of in one action, may at any time apply to the Court or a judge for an order confining the action to such of the causes of action as may be conveniently disposed of in one proceeding " : Jud. Rules, Order 17, rule 8. " If, on the hearing of such application as in the last preceding rule men- tioned, it shall appear to the Court or a judge that the causes of action are such as cannot all be conveniently disposed of iu one action, the Court or a judge may order any of such causes of action to be excluded, and may direct the, statement of claim, or, if no statement of claim has been delivered, the copy of the writ of summons, and the indorsement of claim on the writ of summons, to be amended accordingly, and may make such order as to costs as may be just " : Jud. Rules, Order 17, rule 9. Actions by and against Lunatics and Persons of unsound Mind. " In all cases in which lunatics and persons of unsound mind not so found by inquisition might respectively before the passing of the Act have sued as pits, or would have been liable to be sued as defts in any action or suit, they may respec- tively sue as pits in any action by their committee or next friend in manner prac- tised in the Court of Chancery before the' passing of the said Act, and may in hke manner defend any action by their committees or guardians appointed for that purpose " : Jud. Rules, Order 18. An action " to establish title to land " is an action " for the recovery of land," so as to require the leave of the Court under rule 2 for its joinder with another cause of action : Whetstone v. Lewis, L. R. 1 Ch. D. 99. And an action for the administration of personal estate may be joined with an action to establish title to real estate where the pit claims both estates under a common gift in the same will : S. C. Digitized by Microsoft® (13 ) CHAPTER ni. PLEADINGS. Pleading generally. The word " pleading " includes any petition or summons, and includes the state- ments in writing of the claim or demand of any pit, and of the defence of any deft thereto, and of the reply of the pit to any counter-claim of a deft : Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 100. " Unless the deft in an action at the time of his appearance shall state that he does not require the delivery of a statement of complaint, the pit shall, within such time and in such manner as hereinafter prescribed, deliver to the deft after his appearance a statement of his complaint, and of the relief or remedy to which he claims to be entitled. The deft shall within such time and in sneh manner as hereinafter prescribed, deliver to the pit a statement of his defence, set-off, or counter-claim (if any), and the pit shall in like manner deliver a statement of his reply (if any) to such defence, set-off, or counter-claim. Such statements shall be as brief as the nature of the case will admit, and the Court, in adjusting the costs of the action, shall inquire at the instance of any p'aity into any unneces- sary prolixity, and order the costs occasioned by such prolixity to be borne by the party chargeable with the same" : J ad. Rules, Order 19, rule 2. " A deft in an action may set off, or set up by way of counter-claim against the claims of the pit, any right or claim, whether such set-o£F or counter-claim sound in damages or not, and such set-off or counter-claim shall have the same effect as a statement of claim, in a cross action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross-claim. But the Court or a judge may, on the application of the pit before trial, if in the opinion of the Court or judge such set-off or counter-claim cannot be conve- niently disposed of in the pending action, or ought not be allowed, refuse permis- sion to the Deft to avail himself thereof" : Jud. Rules, Order 19, rule 3. "Every pleading shall contain as concisely as may be a statement of the material facts on which the party pleading relies, but not the evidence by which, they are to be proved, such statement being divided into paragraphs, numbered consecutively, and each paragraph containing, as nearly as may be, a separate allegation. Dates, sums, and numbers shall be expressed in figures and not in words. Signature of counsel shall not be necessary." Forms similar to those in Appendix (C) may be used : Jud. Rules, Order 19, rule 4. " Every pleading which shall contain less than three folios of seventy- two words each "(every figure being counted as one word) may be either printed or written, or partly printed or partly written, and every other pleading, not being a petition or summons, shall be printed " : Jud. Rules, Order 19, rule 5. " Every pleading or other document required to be delivered to a party, or between parties, shall be delivered in the manner now in use to the solicitor of Digitized by Microsoft® u plbadiJtgs. every party who appears by a solicitor, or to the party if he does not appear by a solicitor, but if no appearance has been entered for any party, then such pleading' or document shall be delivered by being filed with the proper oflSoer " : Jud. Rules, Order 19, rule 6. " Every pleading in an action 'shall be delivered between parties, and shall be marked on the face with the date of the day on which it is delivered, and with the reference to the letter and number of the action, the Division to which and the judge (if any) to whom the action is assigned, the title of the action, the description of the pleading, and the name and place of business of the solicitor and agent, if any, delivering the same, or the name and address of the party delivering the same if he does not act by a solicitor " : Jud. Kules, Order 19, rule 7. " Every statement of claim shall state specifically the relief which the pit claims, either simply or in the alternative, and may also ask for general relief. And the same rule shall apply to any counter-claim made or relief claimed by the deft in his statement of defence. If the pit's claim be for discovery only the statement of claim shall shew it " : Jud. Rules, Order 19, rule 8. " Where the pit seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly. And the same rule shall apply where the deft relies upon several distinct grounds of defence, set-ofi^, or counter-claim founded upon separate and distinct facts " : Jud. Rules, Order 19, rule 9. " Where any deft seeks to rely upon any facts as supporting a right of set-off or counter-claim, he shall, in his statement of defence, state specifically that he does so by way of set-off or counter-claim " : Jud. Rules, Order 19, rule 10. " If either party wishes to deny the right of any other party to claim as executor or as trustee, whether in bankruptcy or otherwise, or in any representa- tive or other alleged capacity, or the alleged constitution of any partnership firm, he shall deny the same specifically" : Jud. Rules, Order 19, rule 11. " In Probate actions where the pit disputes the interest of the deft, he shall allege In his statement of claim that he denies the deft's interest": Jui Rules, Order 19, rule 12. " No plea or defence shall be pleaded in abatement " : Jud. Rules, Order 19, rule 13. " No new assignment shall hereafter ibe necessary or used. But everything which has heretofore been alleged by way of new assignment may hereafter be Introduced by amendment of the statement of claim " : Jud. Rules, Order 19, I'ule 14. " No deft in an action for the recovery of land who is in possession by himself or his tenant need plead his title, unless his defence depends on an equitable estate or right or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. But, except in the cases hereinbefore mentioned, it shall be sufficient to state by way of defence that he is so in possession. And he may nevertheless rely upon any ground of defence which he can prove, except as hereinbefore mentioned " : Jud. Rules, Order 19, rule 15. " Nothing in these rules contained shall affect the right of any deft to plead not guilty by statute. And every defence of not guilty by statute shall have the same effect as a plea of not guilty by statute has heretofore had. But if the deft so plead he shall not plead any other defence without the leave of the Court or a judge " : Jud. Rules, Order 19, rule 16. " Every allegation of fact in any pleading in an action, not being a petition or Digitized by Microsoft® PLEADINGS. 15 summons, if not denied speoiflcally or by necesaary implication, or stated to be not admitted in tbe 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": Jud. Rules, Order 19, rule 17. " Each party in an-y pleading, not being a petition or summons, must allege all such facts not appearing in the previous pleadings as he means to rely on, and must raise all such grounds of defence or reply, as the case may be, as if not raised on the pleadings would be likely to take the opposite party by surprise, or would raise new issues of fact not arising out of the pleadings, as for instance, fraud, or that any claim has been barred by the Statute of Limitations or has been released " : Jud. Rules, Order 19, rule 18. "No pleading, not being a petition or summons, shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact in- consistent with the previous pleadings of the party pleading the same " : Jud. Rules, Order 19, rule 19. " It shall not be sufficient for a deft in his defence to deny generally the facts alleged by the statement of claim, or for a pit 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": Jud. Rules, Order 19, rule 20. " Subject to the last preceding rule, the pit 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 " : Jud. Rules, Order 19, rule 21. " 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 sufBcient 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 much he received. And so when a matter of fact is alleged with divers circumstances, it shall not be sufBcient to deny it as alleged along with those circumstances, but a fair and substantial answer must be given " : Jud. Rules, Order 19, rule 22. " When a contract is alleged in any pleading, a bare denial of the contract by the opposite party shall be construed only as a denial of the making of the contract in fact, and not of its legality or its sufficiency in law, whether with reference to the Statute of Frauds or otherwise " : Jud. Rules, Order 19, rule 23. " Wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof unless the precise words of the document or any part thereof are material " : Jud. Rules, Order 19, rule 24. " Wherever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any person, it shall he sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred " : Jud. Rules, Order 19, rule 25. " Wherever it is material to allege notice to any persion of any fact, matter, or thin" it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice be material " : Jud. Rules, Order 19, rule 26. " Wherever any contract or any relation between any persons does not arise from an express agreement, but is to be implied from a series of letters or conver- Digitized by Microsoft® 16 PLEADINGS. sations, or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversations, or circumstances without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more con- tracts or relations than one as to be implied from such circumstances, he may state the same in the alternative " : Jud. Rules, Order 19, rule 27. "Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied. [E.g. —Consideration for a bill of exchange where the plaintiff sues only on the bill, and not for the consideration as a substantive ground of claim] " : Jud. Rules, Order 19, rule 28. " Where an action proceeds in a district registry all pleadings and other docu- ments required to be filed shall be filed in the district registry " : Jud. Rules, Order 19, rule 29. " In actions for damage by collision between vessels, unless the Court or a judge shall otherwise order, each solicitor shall, before any pleading is delivered, file v?ith the proper ofBcer a document to be called a Preliminary Act, which shall be sealed up and shall not be opened until ordered by the Court or a judge, and which shall contain a statement of the following particulars : — (a.) The names of the vessels which came into collision and the names of their masters. (6.) The time of the collision. (c.) The place of the collision. ((?.) The direction of the wind. (e.) The state of the weather. (/.) The state and force of the tide. (51.) The course and speed of the vessel when the other was first seen. (A.) The lights, if any, carried by her. (».) The distance and bearing of the other vessel when first seen. (&.) The lights, if any, of the other vessel which were first seen. Q.) Whether any lights of the other vessel, other than those first seen, came into view before the collision. (ra.) What measures were taken, and when, to avoid the collision. (ji.) The parts of each vessel which first came into contact. " If both solicitors consent, the Court or a judge may order the preliminary acts to be opened and the evidence to be taken thereon without its being necessary to deliver any pleadings " : Jud. Rules, Order 19, rule 30. Pleading Matters aeising pending the Action. " Any ground of defence which has arisen after action brought, but before the deft has delivered his statement of defence, and before the time limited for his doing so has expired, may be pleaded by the deft in his statement of defence, either alone or together with other grounds of defence. And if, after a statement of dsfence has been delivered, any ground of defence arises to any set-off or counter-claim alleged therein by the deft, it may be pleaded by the pit in his reply, either alone or together with any other ground of reply " : Jud. Rules, Order 20, rule 1. " Where any ground of defence arises after the deft has delivered a statement of defence, or after the time limited for his doing so has expired, the deft may. Digitized by Microsoft® PLEADINGS. 17 and where any ground of defence to any set-off or counter-claim arises after reply, or after the time limited for delivering a reply has expired, the pit may, within eight days after such ground of defence has arisen, and by leave ot' the Oouit or a judge, deliver a further defence or further reply, as the case may be, setting forth the same " : Jud. Rules, Order 20, rule 2. " Whenever any deft, in his statement of defence, or in any further statement of defence as in the last rule mentioned, alleges any ground of defence which has arisen after the commencement of the action, the pit may deliver a confession of such defence, which confession may be in the Form No. 2 in Appendix (B.)" to the Act, " with such variations as circumstances may require, and he may there- upon sign judgment for his costs up to the time of the pleading of such defence, unless the Court or a judge shall, either before or after the delivery of such con- fession, otherwise order " : Jud. Rules, Order 20, rule 3. Statement of Claim. " Subject to rules 2 and 3 of this order, the delivery of statements of claim shall be regulated as follows : — (a.) If the deft shall not state that he does not require the delivery of a state- ment of claim, the pit shall, unless otherwise ordered by the Court or a judge, deliver it within six weeks from the time of the deft's entering his appearance. (6.) The pit may, if he think fit, at any time after the issue of the writ of summons, deliver a statement of claim with the writ of summons or notice in lieu of writ of summons, or at any time afterwards, either before or after appear- ance, and although the deft may have appeared and stated that he does not require the delivery of a statement of claim : Provided that in no case where a deft has appeared shall a statement be delivered more than six weeks after the appearance has been entered unless otherwise ordered by the Court or a judge. (c.) Where a pit delivers a statement of claim without being required to do so, the Court or a judge may make such order as to the costs occasioned thereby as shall seem just, if it appears that the delivery of a statement of claim was un- necessary or improper": Jud. Rules, Order 21, iiile 1. " In Probate actions the pit shall, unless otherwise ordered by the Court or a judge, deliver his statement of claim within six weeks from the entry of appear- ance by the deft, or from the time limited for his appearance, in case he has made default; but where the deft has appeared the pit shall not be compelled to deliver it until the expiration of eight days after the deft has filed his affidavit as to scripts " : Jud. Rules, Order 21, rule 2. " In Admiralty actions in rem the pit shall, within twelve days from the appear- ance (rf the deft, deliver his statement of claim " : Jud. Rules, Order 21, rule 3. " Where the writ is specially indorsed, and the deft has not dispensed with a statement of claim, it shall be sufficient for the pit to deliver as his statehient of claim a notice to the effect that his claim is that which appears by the indorse- ment upon the writ, unless the Court or a judge shall order him to deliver a further statement. Such notice may be either written or printed or partly written and partly printed, and may be in the form No. 3 in Appendix (B.) " to the Act, " and shall be marked on the face in the same manner as is required in the case of an ordinary statement of claim. And when the pit is ordered to de- liver such further statement it shall be delivered within such time as by such order shall be directed, and if no time be so limited then within the time prescribed by Rule 1 of this Order " : Jud. Rules, Order 21, rule 4. Digitized by Microsoft® ^ 18 PLEADINGS. Defence. " Where a statement of claim is delivered to a deft he shall deliver his defence within eight days from the delivery of the statement of claim, or from the time limited for appearance, whichever shall he last, unless Buch time is extended hy the Court or a judge " : Jud. Eules, Order 22, rule 1. " A deft who has appeared in an action and stated that he does not require the delivery of a statement of claim, and to whom a statement of claim is not delivered, may deliver a defence at any time within eight days after his appear- ance, unless such time is extended by the Court or a judge " : Jud. Eules, Order 22, rule 2. " Where leave has been given to a deft to defend under Order 14, rule 1, he shall deliver his defence, if any, within such time as shall he limited by the order giving him leave to defend, or if no time is thereby limited, then within eight days after the order " : Jud. Rules, Order 22, rule 3. "Where the Court or a judge shall be of opinion that any allegations of fact denied or not admitted by the defence ought to have been admitted, the Court may make such order as shall be just with respect to any extra costs occasioned by their having been denied or not admitted " : Jud, Eules, Order 22, rule 4. " Where a deft by his defence sets up any counter-claim which raises questions between himself and the pit along with any other person or persons, he shall add to the title of his defence a further title similar to the title in a statement of complaint, setting forth the names of all the persons who, if such counter-claim were to be enforced by cross action, would be defts to such cross action, and shall deliver his defence to such of them as are parties to the action within the period within which he is required to deliver it to the pit": Jud. Rules, Order 22, rule 5. " Where any such person as in the last preceding rule mentioned is not a party to the action, he shall be summoned to appear by being served with a copy of the defence, and such service shall be regulated by the same rules as are hereinbefore contained with respect to the service of a writ of summons, and every defence so served shall be indorsed in the Form No. 4 in Appendix (B.) " to the Act, " or to the like effect " : Jud. Rules, Order 22, rule 6. " Any person not a deft to the action, who is served with a defence and counter- claim as aforesaid, must appear thereto as if he had been served with a writ of summons to appear in an action " : Jud. Eules, Order 22, rule 7. " Any person named in a defence as a party to a coimter-claim thereby made may deliver a reply within the time within which he might deliver a defence if it were a statement of claim " : Jud. Rules, Order 22, rule 8. " Where a deft by his statement of defence sets up a counter-claim, if the pit or any other person named in manner aforesaid as party to such covmter-claim contends that the claim thereby raised ought not to be disposed of way of counter-claim, but in an independent action, he may at any time before reply apply to the Court or a judge for an order that such counter-claim may be ex- cluded, and the Court or a judge may, on the hearing of such application, make such order as shall be just " ■ Jud. Eules, Order 22, rule 9. " Where in any action a set-off or counter-claim is established as a defence against the pit's claim, the Court may, if the balance is in favour of the deft, give judgment for the deft for such balance, or may othei-wise adjudge to the Digitized by Microsoft® PLEADINGS. 19 deft such relief as he may be entitled to upon the merits of the case " : Jud. Eules, Order 22, rule 10. , "In Probate actions the party opposing a will may, with his defence, give notice to the party setting up the will that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the witnesses produced in support of the will, and he shall thereupon be at liberty to do so, and shall be subject to the same liabilities in respect of costs as he would have been under similar circumstances according to the practice of the Court of Probate " : Jud. Rules, Order 22, rule 11. Discontinuance. " The pit may, at any time before receipt of the deft's statement of defence, or after the receipt thereof before taking any other proceeding in the action (save any interlocutory application), by notice in writing, wholly discontinue his action or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay the deft's costs of the action, or, if the action be not wholly discontinued, the deft's costs occasioned by the matter so withdrawn. Such costs shall be taxed, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action. Save as in this rule otherwise provided, it shall not be competent for the pit to withdraw the record or discontinue the action without leave of the Court or a judge, but the Court or a judge may, before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise as may seem fit, order the action to be discon- tinued, or any part of the alleged cause of complaint to be struck out. The Court or a judge may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counter-claim to be withdrawn or struck out, but it shall not be com- petent to a defendant to withdraw his defence, or any part thereof, without such leave " : Jud. Eules, Order 23. " When a cause has been entered for trial, it may be withdrawn by either pit or deft upon producing to the proper officer a consent in writing signed by the parties " : Order 23, rule 2. Eeply and Subsequent Pleadings. " A pit shall deliver his reply, if any, within three weeks after the defence or the last of the defences shall have been delivered, unless the time shall be extended by the Court or a judge " : Jud. Eules, Order 24, rule 1. " No pleading subsequent to reply other than a joinder of issue shall be pleaded without leave of the Court or a judge, and then upon such terms as the Court or judge shall think fit " : Jud. Eules, Order 24, rule 2. " Subject to the last preceding rule, every pleading subsequent to reply shall be delivered within four days after the delivery of the previous pleading, unless the time shall be extended by the Court or a judge " : Jud. Eules, Order 24, rule 3. " 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 " : Jud. Eules, Order 25. c 2 Digitized by Microsoft® 20 PLEADINGS. Amendment of Pleadings. When and how allowed. " The Court or a judge 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 statements respectively which may be scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action, and all such amendments shall be made as may be necessary for the purpose of deter- mining the real questions or question in controversy between the parties " : Jud. Eules, Order 27, rule 1. " The pit 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 delivered, at any time before the expiration of four weets from the appearance of the deft who shall have last appeared " : Jud. Eules, Order 27, rule 2. " A deft 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-eight days from the filing of his defence": Jud. Rules, Order 27, rule 3. " Where any party has amended his pleading under either of the last two pre- ceding rules, the opposite party may, within eight days after the delivery to him of the amended pleading, apply to the Court or a judge to disallow the amend- ment, or any part thereof, and the Court or judge may, if satisfied that the justice of the case requires it, disallow the same, or allow it subject to such terms as to costs or otherwise as may seem just " • Jud. Eules, Order 27, rule 4. " Where any party has amended his pleading under rule 2 or 3 of this Order, the other party may apply to the Court or a judge for leave to plead or amend his former pleading within such time and upon such terms as may seem just " : Jud. Eules, Order 27, rule 5. " In all cases not provided for by the preceding rules of this Order, application for leave to amend any pleading may be made by either party to the Court or a judge in Chambers, or to the judge at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may seem just : " Jud. Eules, Order 27, rule 6. Under the former practice if the pit obtained an order to amend after obtain- ing an interim injunction, such order was prima facie without prejudice to the injunction : Kennedy v. Lewis, 14 Jur. 166. And the order to amend need not have contained the words " without prejudice," in order to save the injunction, nor did these words if inserted preclude a deft from moving to dissolve the injunction in a proper case: Morgan, 4th ed. 411, and cases cited. Where the pit had amended his bill after giving notice of motion, the notice was gone : Martin v. Frost, 8 Sim. 199 ; Motiypenny v. Monypenny, 1 W. E. 99 ; whether the motion was for a receiver or an injunction : Smith v. Dixon, 12 W. E. 934. But a writ of ne exeat regno was not lost by the amendment of the biU : Orant V. Orant, 5 Kuss. 189. An insufficient answer, held or admitted to be such, was treated as no answer : Bird V. Husler, 1 Euss. & M. 327 ; Turner v. Tiiiner, 4 Sim. 49 ; Dapper v. Durant, 3 Mer. 465. Digitized by Microsoft® PLEADINGS. 21 An amendment of the bill after an answer had been put in, and before it was held or admitted to be insufficient, operated as an admission of sufficiency, and as a waiver of exceptions : De la Torre v. Bernalls, 4 Madd. 396 ; Jacob v. Hale, 12 Ves. 458. Under the former practice, an order for leave to amend a bill only for the pur- pose of rectifying some clerical error in names, dates, or sums might have been obtained at any time without notice : Cous. Ord. 9, rule 9. And where there was a sole deft, or where there being several defts they all joined in the same answer, the pit might after answer and before replication or undertaking to reply, have obtained under the former practice an order of course for leave to amend at any time within four weeks after the answer was to be deemed or be held' to be suflBcient : Cons. Ord. 9, rule 10. And where there were several defts who did not join in the same answer, the pit (if not precluded from amending, or limited as to the time for amend- ing by some former order) might after answer, and before replication or under- taking to reply, at any time within four weeks after the last of the answers required to be put in was to be deemed or be held to be sufficient, have obtained an order of course for leave to amend at any time within four weeks after the answer was to be deemed or be held to be sufficient : Cons. Ord. 9, rule 10 ; and see Morgan, 4th ed. 413, and cases there cited. Under the former practice a special order for leave to amend was not granted without evidence to the effect, first, that the draft of the proposed amendments had been approved and signed by counsel (now unnecessary) ; and, secondly, that such amendment was not intended for the purpose of delay or vexation, but because the same was considered to be material for the case of the plf: Cons. Ord. 9, rule 14. After the pit had filed or undertaken to file a replication, or after the expira- tion of four weeks from the time when the answer or the last of the answers re- quired to be put in was to be deemed or was held to be sufficient, a special order for leave to amend was not granted without further affidavit shewing that the matter of the proposed amendment was material, and could not with reasonable diligence have been sooner introduced : Cons. Ord. 9, rule 15. The affidavits referred to in the last- mentioned rule were' to be made by the pit and his solicitor, or by the solicitor alone, in case the pit, from being abroad or otherwise, was unable to join therein : Cons. Ord. 9, 1'ule 16. The affidavits need not have set out all the proposed amendments, but must have shewn circumstances from which the Court could itself judge as to the materiality and diligence : Morgan, 4th ed. 414, and eases there cited. Where the application under Cons. Ord. 9, rule 15, was merely for the purpose of adding parties, and not of adding new facts or cbarges, the withdrawal of the replication was not essential. And an order to amend after replication by simply adding parties has been granted ex parte : Bryan v. Wastell, 2 W. R. 335 ; but see contra, Hitchcock v. Jaques, 9 Beav. 192. Default of Amendment after Order obtained. " If a party who has obtained an order for leave to amend a pleading delivered by him does not amend the same within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall on the expiration of such limited time Digitized by Microsoft® 22 PLEADINGS. ^,s aforesaid, or of suph fourteen days, as the case may be, become igso facto void, unless the time is extended by the Court or a judge": Jud. Bules, Order 27, rule 7. Under the former practice if the pit did not amend within the period allowed for that purpose it was held that a second order of course was irregular : Dolby v. Ohallin, 11 Beav. 61. Amendments at the Heaeing. Where a cause which stood for hearing was called on, but could not be decided by reason of a want of parties or other defect on the part of the pit, and was therefore struck out of the paper, and the same cause was again set down, the deft was allowed the taxed costs occasioned by the first setting down, although he did not obtain the costs of the suit : Cons. Ord. 40, rule 21. Where a cause being in the paper for hearing was ordered to be adjourned upon payment of the costs of the day, the party to pay the same had to pay the sum of £10 unless the Court otherwise directed : Cons. Ord. 40, rule 22. Usually amendments were allowed at the hearing only for the purpose of making the record complete as to parties, or adapting the prayer to the case made by the bill : Dan. 4th ed. 380. Upon the question of allowing amendments /w other purposes, see observations of Turner, L.J., in Lord Darnley v. London, Chatham, and Dover Ry. Co., 1 De G. J. & S. 204 ; 9 Jur. (N.S.) 452. Where at the hearing an order was made for the cause to stand over, with liberty for the pit to amend within a limited time by adding parties, and in de- fault that the bill should be dismissed with costs, it was held upon default by the pit that the cause was out of Court without further order : Stevens v. Praed, 2 Cox, 374; but see S. 0. 375. Amendment, how made — Delivery of Amended Pleading. " A pleading may be amended by written alterations in the pleading which has been delivered, 'and by additions on paper to be interleaved therewith if necessary, unless the amendments require the insertion of more than 144 words in any one place, or are so numerous or of such a nature that the making them in writing would render the pleading difficult or inconvenient to read, in either of which cases the amendment must be made by delivering a print of the pleading as amended " : Jud. Rules, Order 27, rule 8. " Whenever any pleading is amended such pleading when amended shall be marked vrith 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 maimer following, viz. amended — day of — : Jud. Rules, Order 27, rule 9. " Whenever a pleading is amended, such amended pleading shall be delivered to the opposite party within the time allowed for amending the same'': Jud. Rules, Order 27, rule 10. Amendment of Summons. " The Court or a judge may at any stage of the proceedings allow the pit to amend the writ of summons in such manner and on such terms as may seem just": Ordur 27, rule 11 (February 1876). Digitized by Microsoft® 23 ) CHAPTER IV. DBMUKEEE. Demurrer allowed to Part of Pit's Statement of Claim — to Left's Defence, &g. The demurrer put in by the Deft [Pit] to the Pit's statement of claim [or, Deft's statement of defence, or, of set-off, or, of counter- claim] or to so much of the Pit's statement of claim as claims or as alleges as a breach of contract the matters mentioned in para- graph 17, or as the case may he'] coming on to be heard, &c., in the presence of counsel, &c. This Court doth hold the said demurrer to be good and sufficient, and doth therefore order that the same do stand and be allowed accord- ingly. And [unless otherwise ordered] Let the said — [party whose plead- ing is demurred to] pay to the said — [jparty demurring] his costs of the said demurrer, to be taxed, &c. Demurrer allowed to whole of Statement of Claim. The demurrer put in by the Deft to the whole of the statement of claim of the Pit in this action coming on to be heard, &c., in the pre- sence of counsel, &c., this Court doth hold the said demurrer to be good and sufficient, and doth therefore order that the same do stand and be allowed. Unless otherwise ordered : Let the Pit pay to the Deft his costs of this action (including therein the costs of the said demurrer) to be taxed, &c. If ordered: Let the Pit be at liberty within — days to amend his said statement of claim as he may be advised. Demurrer overruled. The demurrer put in by the Deft [Pit] to the Pit's statement of claim [or, Deft's statement of defence, or, of set-off, or, of counterclaim] or to so much of the Pit's statement of claim as claims [or, as alleges, &c.J coming on to be heard, &c., in the presence of counsel for, &c., this Court doth hold the said demurrer to be insufiScient, and doth therefore order that the same be overruled. Digitized by Microsoft® 24 DEMURRER. Unless otherwise ordered: Let the Deft [Pit] pay to the Pit [Deft] his costs of the said demurrer, to be taxed, &c. Demurree— By Whom— IForm of— Delivery of. " 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, to which effect can be given by the Court as against the party demurring " : Jud. Eules, Order 28, rule 1. " 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 argu- ment of the demurrer be limited to the ground so stated. A demurrer may be in the Form 28 in Appendix (0.) " to the Act. "If there is no ground, or only a frivolous ground of demurrer stated, the Court or judge may set aside such demurrer with costs " : Jud. Eules, Order 28, rule 2. iForm above referred to. In the High Court of Justice. Division. A. B. V. C. D. The deft [pit] demurs to the [pit's statement of complaint, or, deft's statement of defence, or, of set-off, or, of counter-claim], [or, to so much of the pit's statement of claim as claims or, as alleges as a breach of contract the matters mentioned in paragraph 17, or, as the case may be'], and says that the same is bad in law, on the ground that [7i«re state a grov/nd of demurrer], and on other grounds sufScient in law to sustain this demurrer. " A demurrer shall be delivered in the same manner and within the same time as any other pleading in the action " : Jud. Eules, Order 28, rule 3. Combination of Demurrer and Defence. " A deft 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 plead- ing. 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 com- bine such demurrer and other pleading " : Jud. Eules, Order 28, rule 4. Pleading and Demueiung. " If the party demurring desires to be at liberty to plead as well as demur to the matter demurred to,"iie may before demurring apply to the Court or judge for an order giving him leave to do so ; and the Court or judge, if satisfied that there is reasonable ground for the demuiTer, may make an order accordingly, or may reserve leave to him to plead after the demurrer is overruled, or may make such other order and upon such terms as may be just" : Jud. Eules, Order 28, rule 5. Entering Demurrer for- Argument — Default of Entry. " Where a demurrer either to the whole or part of a pleading is delivered, either Digitized by Microsoft® DEMURRER. 25 party may enter the demurrer for argument immediately, and the party so entering such demurrer shall on the same day give notice thereof to the other party. If the demurrer ^all not he entered, and notice thereof given within ten days after delivery, and if the party whose pleading is demurred to does not within such time serve an order for leave to amend, the demurrer shall he held sufficient for the same purposes and with the same result as to costs as if it had heen allowed on argument " : Jud. Rules, Order 28, rule 6. Pleadins pending Demueeer. " While a demurrer to the whole or any part of a pleading is pending, such pleading shall not he amended, unless hy order of the Court or a judge ; and no such order shall he made except on payment of the costs of the demurrer " : Jud. Rules, Order 28, rule 7. Demueeer allowed — Costs. " Where a demurrer to the whole or part of any pleading is allowed upon argu- ment, the party whose pleading is demurred to shall, unless the Court otherwise order, pay to the demurring party the costs of the demurrer " : Jud. Rules, Order 28, rule 8. " If a demurrer to the whole of a statement of claim he allowed, the pit, suhject to the power of the Court to allow the statement of claim to he amended, shall pay to the demurring deft the costs of the action, unless the Court shall otherwise order": Jud. Rules, Order 28, rule 9. " Where a demurrer to any pleading or part of a pleading is allowed in any case not falling within the last preceding rule, then (suhject to the power of the Covut to allow an amendment) the matter demurred to shall as hetween the parties to the demurrer he deemed to he struck out of the pleadings, and the rights of the parties shall he the same as if it had not heen pleaded " : Jud. Rules, Order 28, Rule 10. DeMUEEEE OVERRtTLED — CoSTS. "Where the demurrer is overruled, the demurring party shall pay to the opposite party the costs occasioned hy the demurrer, unless the Court shall other- wise direct " : Jud Rules, Order 28, rule 11. " Where a demurrer is overruled, the Court may make such 'order and upon such terms as the Court shall deem right for allowing the demurring party to raise hy pleading any case he may he desirous to set up in opposition to the matter demurred to": Jud. Rules, Order 28, rule 12. Entering Demueeer foe Aegument. « A demurrer shall he entered for argument hy delivering to the proper officer a memorandum of entry in the Eoim No. 29 in Appendix (C.) " to the Act : Jud. Rules, Order 28, rule 13. Digitized by Microsoft® ( 26 ) CHAPTBE V. DEFAULT OF PLEADING. Nan-delivery hy Pit of Statement of Claim — Dismissal for want of Prosecution. Upon motion, &c., by the counsel for the Deft — [If Pit appears, and upon hearing counsel for the Pit], and upon reading, &c., whereby it appears that the Pit's statement of claim in this action was not delivered to' the said Deft by the — day of — last, the time allowed for that purpose [If Pit does not appear : and an affidavit of service of notice of motion on the Pit], Let the Pit's action stand dismissed out of this Court as against the Deft B., with costs to be taxed by the taxing master, and paid by the Pit A. to the said Deft B. Default of Pleading. Non-delivery of Statement of Claim. " If tlie pit, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the deft may at the expiration of that time apply to the Court or a judge to dismiss the action with costs for want of prosecution, and on the hearing of such application the Court or judge may, if no statement of claim has been delivered, order the action to be dismissed accord- ingly, or may make such other order on such terms as the Court or judge shall seem just " : Jud. Rules, Order 29, rule 1. As to default in pleading where the claim is for a debt or liquidated demand, or for detention of goods and pecuniary damages, or for a debt or liquidated de- mand, and also for detention of goods and pecuniary damages, or pecuniary damages only, or for the recovery of land, or in Probate actions, see Jud. Eules, Order 29, rules 2-9 inclusive. Under the former practice in Chancery a deft although insolvent was entitled to have his bill dismissed with costs : Lever v. Heritage, 5 Jur. (N.S.) 215. But if the pit obtained and served an order to amend his bill, the order was an answer to the motion ; Peacock v. Sievier, 5 Sim. 553. The order to amend must have been served : Jones v. Charlemont, 12 Jur. 319. And if after service of the notice to dismiss the pit filed replication, it was an answer to the motion : Story v. Official Manager of National Insurance Co., 2 Now Rep. 351. In strictness the pit must have filed his replication and tendered costs before the hearing of the motion. But sec Williams v. Eowland, 3 Jur. (N.S.) 658 ; Pollard V. Doyle, 2 W. R. 509, where further time was given. Digitized by Microsoft® DEFAULT OF PLEADING. 27 NON-DELIVEEY BY DeFT OF DEFENCE OR DeMUEREE. " In all other actions than those in the preceding rules of this Order mentioned " (actions for a debt or liquidated demand, detention of goods and pecuniary damages, the recovery of land, or Probate actions), " if the deft makes default in delivering a- defence or demurrer, the pit may set down the action on motion for judgment, and such judgment shall he given as upon the statement of claim the Court shall consider the pit to he entitled to" : Jud. Rules, Order 29, rule 10. " Where in any such action as mentioned in the last preceding rule there are several defts, then, if oue of such defts make such default as aforesaid, the pit may either set down the action at once on motion for judgment against the deft 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 defts " : Jud. Eules, Order 29, rule 11. Non-delivery of Eeply, or Demurrer, or subseqdent Pleading. " If the pit does not deliver a reply or demurrer, or any party does not deliver any subsequent pleading or a demurrer within the period allowed for that pur- pose, the pleadings shall be deemed to be closed at the expiration of that period ; and the statements of fact in the pleading last delivered shall be deemed to be admitted " : Jud. Bules, Order 29, rule 12. Issues between Persons not Plts or Defts. " In any case in which issues arise in an action other than between pit and deft, if any party to any such issue makes default in delivering any pleading, the opposite party may apply to the Court or judge for such judgment, if any, as upon the pleadings he may appear to be entitled to. And the Court may order judgment to be entered accordingly, or may make such other order as may be necessary to do complete justice between the parties " : Jud. Eules, Order 29, rule 13. Judgment by Default set aside. " Any judgment by default, whether under this Order or under any other of these rules, may be set aside by the Court or a judge upon such terms as to costs or otherwise as such Court or judge may think fit": Jud. Eulesy Order 29, rule 14. Digitized by Microsoft® ( 28 ) CHAPTER VI. DISCOVEEY AND INSPECTION. INTEREOGATOEIES. " The pit may, at tlie time of delivering his statement of claim, or at any sub- sequent time not later than the close of the pleadings, and a delt may at the time of delivering his defence, or at any subsequent time not later than the close of the pleadings, without any order for that purpose, and either party may at any time by leave of the Court or judge, deliver interrogatories in writing for the examination of the opposite party or parties, or any one or more of such parties, with a note at the foot thereof, stating which of such interrogatories each of such persons is required to answer : Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose " : Jud. Eules, Order 31, rule 1. " The Court in adjusting the costs of the action shall at the instance of any party inquire or cause inquiry to be made into the propriety of exhibiting such interrogatories, and if it is the opinion of the taxing master or of the Court or judge that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be borne by the party in fault" : Jud. Eules, Order 31, rule 2. Interrogatories may be in the Form No. 7 in Appendix " (B.) to the Act, " with such variations as circumstances may require " : Jud. Eules, Order 31, rule 3. Interrogatories to Body Corporate or Joint Stock Company. " If any party to an action be a body corporate or a joint stock companj"-, whether incorporated or not, or any other body of persons empowered by law to sue or be sued, whether in his own name or in the name of any officer or other person, any opposite party may apply at chambers for an order allowing him to deliver interrogatories to any member or officer of such corporation, company, or body, and an order may be made accordingly " : Jud. Eules, Order 31, rule 4. Interrogatoeies struck out. " Any party called upon to answer interrogatories, whether by himself or by any member or officer, may within four days after service of the interrogatories apply at chambers to strike out the interrogatory on the ground that it is- scan- dalous or irrelevant, or is not put hona fide for the purposes of the action, or that the matter inquired after is not sufficiently material at that stage of the action, or on any other ground. And the judge, if satisfied that any interrogatory is objec- tionable, may order it to be struck out " : Jud. Eulos, Order 31, rule 5. Digitized by Microsoft® DISCOVERY AND INSPECTION. 29 Answers to Inteerogatories — Affidavit. " Interrogatories shall be answered by affidavit to be filed within ten days, or within such further time as a judge in chambers may allow " : Jiid. Eules, Order 31, rule 6. An affidavit in answer to interrogatories shall, if exceeding three folios, be printed, and may be In the Form No. 8 in Appendix (B.) to the Act, with such variations as circumstances may require : Jud. Eules, Order 31, rule 7. Objection to answering Interrogatory — Affidavit. " Any objection to answering any interrogatory may be taken, and the ground thereof stated in the affidavit " : Jud. Rules, Order 31, rule 8. " No exceptions shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court or a judge on motion or summons " : Jud. Rules, Order 31, rule 9. Omission to answer Interrogatories — Insufficient Answer — Order. " If any person interrogated omits to answer, or answers insufficiently, the party interrogating may apply to the Court or a judge, requiring him to answer, or to answer further, as the case may be. And an order may be made requiring him to answer or answer further, either by affidavit or by viva vocs examination, as the judge may direct " : Jud. Rules, Order 31, rule 10. Documents — Production on Oath. Upon the application, &c.. Let the Pit A. [or. Deft B.] on or before the — day of — [or, within — days after service of this order] make and file a fall and sufScient affidavit or affidavits [If company : to be made by their clerk or secretary], stating whether he has or has had in his possession or power any, and if any what, documents relating to the matters in question in this action, and accounting for the same. Let the Pit [or. Deft B.] at all seasonable times, upon reasonable notice, produce at the office of — , situate at — , the documents which by such affidavit shall appear to be in his possession or power, except such of the same (if any) as he may by such affidavit or affidavits object to pro- duce. Let the applicants — , their solicitors and agents, be at liberty to inspect and peruse the documents so produced, and to take copies and abstracts thereof and extracts therefrom as the applicants shall be advised, at their expense. Let the Pit H. [or. Deft B.] produce the same upon any examination of witnesses in this action, and at the hearing thereof, as the applicants shall require. And the applicants are to be at liberty to make such further application as to all or any of the documents mentioned in such affidavit or affidavits as they may be advised. Digitized by Microsoft® 30 DISCOVERY AND INSPECTION. Inspection of Documents admitted or referred to. Upon the application, &c., Let tlie Pit A. [or. Deft B.] be at liberty at all seasonable times, upon reasonable notice, to inspect at the ofSce of — , situate at — , the several documents mentioned in the affidavit of — , filed the — day of — , and admitted to be in his possession or power, and to take copies and abstracts thereof : and extracts there- from as he shall be advised, at his expense. If ordered : But previously to such inspection, the Pit A. [or. Deft B.] is to be at liberty to seal up such parts of the said documents as according to an affidavit to be made by him do not relate to the matters in question in this action. Let the Pit A. [or. Deft B.] produce the said documents upon any exami- nation of witnesses in this action and at the hearing thereof as the applicant shall require. Peodtjction bt Order — Affidavit. "It shall be lawful for the Court or a judge at any time during the pendency therein of any action or proceeding to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such action or proceeding, as the Court or judge shall think right ; and the Court may deal with such documents, when produced, in such manner as shall appear just": Jud. Rules, Order 31, rule 11. " Any party may, without fihng any affidavit, apply to a judge in chambers for an order directing any other party to the action to make discovery on oath of the documents which are or have been in his possession or power relating to any matter in question in the action " : Jud. Rules, Order 31, rule 12. The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made shall specify which, if any, of the docu- ments therein mentioned he objects to produce, and it may be in the Form No. 9 in Appendix (B.) to the Act, with such variations as circumstances may require : Jud. Rules, Order 31, rule 13. Form above referred to. " I, — , make oath and say as follows : — " 1. I have in my possession or power the documents relating to the matters in question in this suit set forth in the first and 'second parts of the first schedule hereto. " 2. I object to produce the said documents set forth in the second part of the said first schedule hereto. " 3. That \here state upon what grounds the objection is made, and verify the facts as far as may he.] " 4. I have had, but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto. "5. The last-mentioned documents were last in my possession or power on [state when.] " 6. That [here state what has become of the last-mentioned dccu- ments, and in whose possession they now are]. Digitized by Microsoft® DISCOVERY AND INSPECTION. 31 " 7. According to the best of my knowledge, information, and belief, I have not now and never had in my possession, custody, or power, or in the possession, custody, or power of my solicitors or agents, solicitor or agent, or in the possession, custody, or power of any other persons or person on my behalf, any deed, account, book of account, voucher, re- ceipt, letter, memorandum, paper, or writing, or any copy of or extract from any such document, or any other document whatsoever, relating to the matters in question in this suit, or any of them, or wherein any entry has been made relative to such matters, or any of them, other than and except the documents set forth in the said first and second schedules hereto." Notice to pkoduce Documents referred to in Pleadings or Affidavit. " Every party to an action or other proceeding shall be entitled, at any time before or at the hearing thereof, by notice in writing, to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his solicitor, and to permit him or them to take copies thereof ; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such action or proceeding, unless he shall satisfy the Court that such document relates only to his own title, he being a deft to the action, or that he had some other sufficient cause for not complying with such notice " : Jud. Rules, Order 31, rule 14. Notices to any party to produce any documents referred to in his pleading or affidavit shall be in the Form No. 10 in Appendix (B.) to the Act : Jud. Rules, Order 31, rule 15. Inspection of Docoments referred to in Notice. " The party to whom such notice is given shall, within two days from the receipt of such notice, if all the documents therein referred to have been set forth by him in such affidavit as is mentioned in rule 10, or if any of the documents • referred to in such notice have not been set forth by him in any such affidavit, then within four days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at thg office of his solicitor, and stating which (if any) of the documents he objects to produce, and on what gi-ound." Such notice may be in the Form No. 11 in Appendix (B.) to the Act, with such variations as circumstances may require: Jud. Rules, Order 31, rule 16. " If the party served witb notice under rule 15 omits to give such notice of a time for inspection, or objects to give inspection, the party desiring it may apply to a judge for an order for inspection " : Jud. Rules, Order 31, rule 17. Application for Order — Affidavit. "Every application for an order for inspection of documents shall be to a judge. And, except in the case of documents referred to in the pleadings or aSi- davits of the party against whom the application is made, or disclosed in his affidavit of documents, such application shall be founded upon an affidavit shewing of what documents inspection is sought, that the party applying is entitled to Digitized by Microsoft® 32 DISCOVERY AND INSPECTION". inspect them, aad that they are in the possession or power of the other party " : Jud. Rules, Order 31, rule 18. Discovery or Inspection reserved. " If the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the Court or a judge may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the action, or that for any other reason it is desirable that any issue or question in dispute in the action should be determined before deciding upon the right to the discovery or inspection, order that such ■ issue or question be determined first, and reserve the question as to discovery and inspection " : Jud. Rules, Order 31, rule 19. Eight to Production. The party ordered to produce documents may seal up such of the documents as by his affidavit he swears to be privileged, and the order for production will, upon his application, be qualified accordingly : Guard v. Penswick, 1 Sw. 533 ; Curd V. Curd, 1 Hare, 274 ; 6 Jur. 307 ; Mansell v. Feeney, 2 J. & H. 320 ; Tal- bot V. Marshfidd, L. R. 1 Eq. 6 ; 11 Jur. (N.S.) 901. The application for leave to seal up need not be made on the original summons for production : Talbot v. Marshfidd, L. E. 1 Eq. 6. If the affidavit contains statements at variance with each other, or the Court is of opinion that the deponent is wilfully misrepresenting his case, inspection will be ordered of the documents or the portions of them refused to be disclosed : Bower V. Fernie, 3 My. & Or. 632 ; Oreenwood v. Oreenwood, 6 W. E. 119 ; see also Westminster and Brymbro Colliery Co. v. Clayton, 12 W. E. 123. And the Court will, if necessary, unseal documents for the purpose of ex- amining them : Lafone v. Falkland Islands Co., 27 L. J. (Ch.) 25. The party against whom the discovery is sought must make the affidavit, although he insists that he cannot be compelled to produce any documents : Bumbold v. Forteath, 3 K. & J. 44; Lazarus v. Mosley, 5 Jur. (N.S.) 1119; Nicholl V. Jones, 13 W. E. 451 ; cited in Morgan, 173. An affidavit of the deponent that title deeds of which discovery is sought do not " to the best of his knowledge, information, and belief," impeach his case, is sufficient if it also states that the documents do not prove, or tend to prove, the title of his adversary: Minet v. Morgan, L. R. 8 Ch. 3(51, 365. Possession of the agent is possession of the party himself: Beid v. Langlois, 1 Mac. & G. 627 ; 14 Jur. 467 ; Murray v. Walter, Cr. & P. 114, 125 ; 3 Jur. 719 ; Morice v. Swaby, 2 Beav. 500 ; Wright v. Mayer, 6 Ves. 280 ; Fenwick v Beid, 1 Mer. 114, 123. Where a document is not in the exclusive possession of the person against whom discovery is sought production will not be ordered : Walker v. Wildman, 6 Madd. 47 ; Taylor v. Bundell, Cr. & P. 114 ; Beid v. langton, 1 Mac. & G. 627, 636 ; Morrell v. Wotton, 13 Beav. 105 ; 15 Jur. 319. ' A party objecting to produce on the ground of joint ownership is bound to shew the Court the nature of the joint ownership : Bovill v. Cowan, L. E. 5 Ch. 495 ■ see also Taylor v. Bundell, Cr. & P. 104 ; Walhurn v. Ingilby, 1 My. & K. 61, 79. The Court will not order the discovery of documents in the possession of an agent holding them on behalf of other persons besides the parties to the suit: Digitized by Microsoft® DISCOVERY AND INSPECTION. 33 Murray v. Walker, Or. & P. 114, 125 ; Lopez v. Deacon, 6 Beav. 254, 258 ; Airey V. Hall, 2 De G. & Sm. 489 ; 12 Jur. 1043 ; Edmonds v. Foley, 30 Beav. 282 ; Lord Eglinton v. Laml, 14 W. E. 170. And directors of a company will not be ordered to produce documents in which other directors have a joint interest: Penney v. Goode, X Dr. 474; Reid v. La/nghis, 1 Mac. & Gr. 627 ; Lazarus v. Mozhy, 5 Jur. (N.S.) 1120. A party must produce relevant documents in the possession of his solicitor or agent, and cannot refuse because the solicitor says they are irrelevant, unless he has inspected them : Morgan, 174 ; Mcintosh v. Great Western By. Co., 4 De G. M. & G. 544 ; Manhy v. Bewieke, 8 De G. M. & G. 476. And the solicitor cannot refuse to produce on the ground of his lien : Locket V. Gary, 10 Jur. (N.S.) 144; Sope v. Liddell, 7 De G. M. & G. 331 ; Be Came- ron's Cotdhrook By. Co., 25 Beav. 1. Documents lent to a person against whom recovery was sought, and by a person not a party, have been ordered to be produced : Bwrkethman v. White, 2 W. E. 380 ; see also Beynolds v. Godlee, 4 K. & J. 88. A party cannot object to produce letters admitted to be material but marked private and confidential, and although the sender objected to the production : Mopkinson v. Lord Burleigh, L. E. 2 Ch. 477. If documents, though relevant, are not material to the applicant's case, produc- tion will not be ordered: Smith v. Bowling, 10 Jur. 63: Mc Hardy v. Eitchcock, 11 Beav. 73. As to relevancy, the Court accepts the statement on oath of the party against whom production is sought ; but docs not accept his assertion upon the point whether they will or will not establish the applicant's case : Dan. 5th ed., 1687, and cases cited. Where a deft puis his defence upon a particular document relating to his own title and in his possession, the pit is entitled to production, and to see whether the deft has rightly stated it : Eardman v. EUames, 2 M. & K. 732, 745 ; Adams v. Fisher, 3 My. & Cr. 526, 549 ; see aLso Mcintosh v. Great Western By. Co., 13 Jur. 179 ; 1 Mac. & G. 73 ; LaJtimer v. Neaie, 4 CI. & F. 570 ; Belsham v. Percival, 10 Jur. 772. But the mere statement in an answer of the substance of a document, the contents of which the deft is not bound to disclose, does not make him liable to produce the document itself: Glover v. Ball, 2 Phil. 484 ; see also Comhe v. Corporation of London, 1 T. & C. 631, 651 ; 6 Jur. 571 ; 10 Jur. 57. Generally, a solicitor cannot be compelled, at the instance of a third party, to disclose matters which have come to his knowledge in his professional business for a client: Greenough v. Gaskill, 1 M. & K. 98, 101. Documents tending to criminate are privileged : Waters v. Earl of Shaftesbury., 14 W. R. 259 ; Bowes v. McKernan, 30 Beav. 547. So, too, cases laid before counsel on behalf of the party against whom discovery is sought involving the question in dispute : Bolton v. Corporation of Liverpool, 1 My. & K. 88, 93 ; Greenough v. Gaskdl, supra. And confidential communications between, solicitor or counsel and client, either in the progress of the suit or with reference to it piior to its commencement : Flight V. Bohinson, 8 Beav. 22 ; 8 Jur. 888 ; Beece v. Trye, 9 Beav. 316 ; Galley V. Bichards, 19 Beav. 401 , Clagett v. Phillips, 7 Jur. 31 ; Lord Walsingham v. Goodrick, 3 Hate, 122. *■ And cases after litigation commenced, or in contemplation of litigation on the same subject with other persons, with the view of asserting the same right : Comie D Digitized by Microsoft® 34 DISCOVERT AND INSPECTIOK. V. Corporation of London, 1 Y. & 0. 631 ; 6 Jur. 571 ; Holmes v. Baddeley, 1 Ph. 476, 480 ; Enthoven v. Gdbh, 5 De G. M. & G. 632 ; Jenhym v. Bushby, L. E. 2 Eq. 547. And all communications which pass hetween the solicitor and client in the course of professional business, and not those only which relate to litigation com- menced or in contemplation, are privileged : Nias v. Northern and Eastern By. Co., 3 My. & Cr. 355, 357; Herring v. Cloherry, 1 Ph. 91 ; Manser v. Dix, 1 K. & J. 451 ; 1 Jur. (N.S.) 466 ; La/one v. Falkland Islands Co., 4 K. & J. 34 ; Mornington v. Morninytcm, 2 J. & H. 697 ; Pearse v. Pearse, 1 De G. & Sm. 12 ; Lawrence v. Campbell, 4 Dr. 485, 490 ; Minet v. Margai,, L. E. 8 Oh. 361. But there is no protection as to letters between parties themselves, or from a stranger to a party, merely because such letters may have been written in order to enable the person to whom they were sent to communicate them in professional confidence to his solicitor : Ooodell v. Little, 1 Sim. (N.S.) 155 ; Olyn v. Cavl- field, 3 Mao. & G. 463 ; 15 Jur. 807 ; see also Blach v. Galsworthy, 2 Giff. 453. And even opinions of counsel and letters in which pit and deft are jointly interested must be produced : Beynell v. Sprye, 10 Beav. 51 ; Warde v. Warde, 3 Mac. & G. 365. And a trustee taking counsel's opinions in the administration of the trust, and not for the purposes of defence in a litigation against himself, is bound to produce them to the cestui que tnist : Wynne v. Humhertson, 27 Beav. 421 ; Talbot v. Marshfield, 2 Dr. & Sm. 549. And where disputes arose between two cestuis que trust,a,ni the trustee acted as solicitor for one of them, the communications between the solicitor and the cestuis que trust were held not privileged as against the other : Tugwdl v. Hooper, 10 Beav. 348. But a mere claimant to an estate is not entitled to the production of cases and opinions taken by a trustee : Wynne v. Humhertson, 27 Beav. 421. Nor is the cestui que trust entitled to the production of cases and opinions of cou nsel taken by a trustee on his own behalf and not on behalf of the trust estate : Thomas v. Secretary of State for India, 18 W. E. 312. Counsel's indorsement of an order of Court is publici juris, and must be pro- duced. But notes by counsel and insti-uctions given to him are privileged : Nicholl V, Jones, 2 H. & M. 588 ; Walsham v. Stainton, 2 H. & M. 1. And notes by a shorthand writer employed by one of the parties have been ordered to be produced so far as they merely describe what took place in open Court: Nicholl v. Janes, 2 H. & M. 588. Where a party is charged with fraud, communications between him and his solicitor with reference to the fraud are not privileged: Follett v. Jeffrys, 1 Sim. (N.S.) 1 ; 15 Jur. 118 ; Bicssell v. Jackson, 9 Hare, 387 ; Feaver v. Williams, 11 Jur. (N.S.) 902. .» Where a mortgagor executes a mortgasie deed and hands over the title deeds to the mortgagee, the mortgagor is not entitled to the inspection of the deeds without payment of principal, interest, and costs : Chichester v. Marquis of Donegal, L. K. 5 Ch. 497, 502 ; see also Oill v. Eyton, 7 Beav. 155 ; Greenwood v. Bothwell, 7 Beav. 291 ; €risp v. Platel, 8 Beav. 62 ; Johnston v. 'Pucker, 11 Jur. 382. Nor upon a bill to redeem will mortgagees be ordered to disclose accounts between themselves and other persons : Bridgewater v. De Winton 9 Jur (N S ) 1270 ; 12 W. E. 40. But the mortgagor is entitled to call for the production of the mortgage-deed itself; Patch v. Ward, L. E. 1 Eq. 436 ; but see Howard v. i?o5jnson, 4 Dr. 522. Digitized by Microsoft® DISCOVERT AND INSPECTION. 35 And a mortgagee taking a conveyance of the equity of redemption from a trustee thereof with notice of the trust cannot withhold production of the convey- ance in a suit by the cestui que trust for redemption : Smith v. Bournes, L. R. 1 Bq. 65. A party obtaining information by the production of documents in the possession of the other side is not at liberty to make it public, and an injunction will if necessary be granted to restrain him : Williams v. Prince of Wales Life, &c., Co., 23 Beav. 338. Non-compliance with Order. " If any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall be liable to attachment. He shall also, if a pit, be liable to have his action dismissed for want of prosecution, and if a deft, to have his defence, if any, struck out, and to be placed in the same posi- tion as if he had not defended, and the party interrogating may apply to the Court or a judge for an order to that effect, and an order may be made accord- ingly " : Jud. Rules, Order 31, rule 20. Service of Oedek. " Service of an order for discovery or inspection made against any party on his sohoitor shall be sufficient service to found an application for an attachment for disobedience to the order. But the party against whom the application for an attachment is made may shew in answer to the application that he has had no notice or knowledge of the order" : Jud. Rules, Order 31, rule 21. Notice of the Order by the Solicitor to his Client. " A solicitor upon whom an order against any party for discovery or inspection is served under the last rule who neglects without reasonable excuse to give notice thereof to his client shall be liable to attachment " : Jud. Rules, Order 31, rule 22. Evidence of the Answers to Interrogatories. " Any party may, at the trial of an action or issue, use in evidence any one or more of the answers of the opposite party to interrogatories without putting in the others : Provided always, that in such case the judge may look at the whole of the answers, and if he shall be of opinion- that any other of them are so connected with those put in that the last-mentioned answers ought not to be used without them, he may direct them to be put in " : Jud. Rules, Order 31, rule 23, Digitized by Microsoft® '" ^ ( 36 ) CHAPTER VII. SPECIAL CASE. " The parties may, after the writ of summons has been issued, concur in stating the questions of law arising in the action in the form of a special case for the opinion of the Court. Every such special case shall be divided into paragraphs numbered consecutively, and shall concisely state such facts and documents as may be necessary to enable the Court to decide the questions raised thereby. Upon the argument of such case the Court and the parties shall be at liberty to refer to the whole contents of such documents, and the Court shall be at liberty to draw from the facts and documents stated in any such special case any inference, whether of fact or law, wbich might have been drawn therefrom if proved at a trial " : Jud. Rijles, Order 34, rule 1. " If it appear to the Court or a judge, either from the statement of claim, or de- fence, or reply, or otherwise, that there is in any action a question of law which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to a referee or an arbi- trator, the Court or judge may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court or judge may deem expedient, and all such further proceedings as the decision of such question of law may render unneces- sary may thereupon be stayed " : Jud. Kules, Order 34, rule 2. " Every special case shall be printed by the pit, and signed by the several parties or their solicitors, and shall, be filed by the pit. Printed copies for the use of the judges shall be delivered by the pit " : Jud. Rules, Order 34, rule 3. A husband claiming to be interested in right of his wife may concur in such case in his own name and in the name of his wife where the wife has no claim to any interest distinct from her husband. A married woman claiming any in- terest distinct from her husband may in her own right concur in such case, provided her husband also concurs : 13 & 14 Vict. c. 35, s. 3. The guardian of any infant claiming to be interested may concur in the case in the name and on behalf of the infant, unless the guardian has an interest adverse to the interest of the infant : 13 & 14 Vict. c. 35, s. 4. Appointment of Guardian. The Court may, by order to be made in the matter of any lunatic not so found by inquisition, or in the matter of any infant, upon the application of any pelson on the behalf of such lunatic, or upon the application of the infant, appoint a person shewn by affidavit to be a fit person, and to have no interest adveise to the interest of the lunatic or infant, to be the special guardian of the lunatic or infant for the purpose of concurring in the case : 13 & 14 Vict. c. 35, s. 5. And an order obtained in any case without notice to the guardian of the infant may be discharged : 13 <& 14 Vict. c. 35, s. 6. Digitized by Microsoft® SPECIAL CASE. 37 Setting down Special Oase — Entering for Argument. " No special case in an action to whicii a married woman, infant, or person of imsound mind is a party shall be set down for argument without leave of the Court or a judge, the application for which must he supported by sufficient evidence that the statements contained in such special case, so far as the same affect the in- terest of such married wroman, infant, or person of unsound mind, are true " : Jud. Eules, Order 34, rule 4. And under the 13 & 14 Vict. c. 35, s. 13, if a married woman, infant, or lunatic, is a party, notice of the motion must be given to every party to the case in whom as executor, administrator, or trustee, any property in question therein is, or is alleged to be, vested in trust for the married woman, infant, or lunatic ; and also, if the application is not made by or on behalf of the married woman, infant, or lunatic, to the married woman and her husband, or the infant, or the lunatic and his committee, if any, as the case may be. And under the same Act if the Court upon hearing the application is of opinion that it is proper that the question raised should be deterinined upon the special case, but is not satisfied that the statements contained therein, so far as they affect the interest of the married woman, infant, or lunatic, are true, it may direct inquiries in chambers, and upon further application being made by motion, upon the inquiries being answered, the Court may give or refuse leave to set down the special case : 13 & 14 Vict. c. 35, s. 13. "Either party may enter a special case for argument by delivering to the proper officer a memorandum of entry in the form No. 13 in the Appendix (B.) " to the Act, " and also if any married woman, infant, or person of unsound mind be a party to the action, producing a copy of the order giving leave to enter the same for argument " ; Jud. Eules, Order 34, rule 5. Amendment of Special Case. Where after a special case had been set down an infant tenant in tail was horn, the Court on ex parte motion discharged the order which had been made ibr set- ting it down, and gave leave to amend by making the infant a party : Thistle- thwaite v. Oarnier, 5 De G. & Sm. 73 ; Savage v. Snell, L. R. 11 Eq. 264. And where one of the parties to the special case died after it had been set down, leave was given to amend the case by making his representatives. parties : Ainsworth v. Alman, 14 Beav. 597 ; but see Wilson v. Whately, 1 J. & H. 331, where under such circumstances the special case was revived. Where one of the female parries to the case married after it was set down the order settiu" it down was discharged, leave to amend given, and to set it down afresh: Atty v. Etough, L. E. 13 Bq. 462. Leave has been given at the hearing to amend the special case by altering the form of the question, and the opinion of the Court given as on the amended case, without postponement : Dan. 5th ed. 1708 ; Bell v. Gade, 2 J. & H. 122 ; Bawsm V. Dawson, L. B. 4 Bq. 504 ; ForshrooJc v. Forshrook, L. E. 3 Oh. 93. Where the facts and questions stated on the special case did not enable the Court to deterpiine the rights of parties, it has refused to make any order : Bulkeley v. Eope, 8 De G. M. & G. 36; Pryse v. Pryse, L. E. 15 Bq. 8fi, Future Eights. ' The Court has no jurisdiction to declare future rights on special cases : Lady Digitized by Microsoft® 33 SPECIAL CASE. Langdale v. Briggs, 8 De G. M. & G. 426 ; Earl of Tyrone v. Marquis of Waterford, 6 Jur. (N.S.) 567. Costs. The costs of a special case are in the discretion of the Court : 13 & 14 Vict. 0. 35, s. 18. Unless the parties are agreed as to costs, or there is a fund in Court, it has been held in Chancery that a question should be submitted to the Court in the case as to the payment of costs : Blinston v. Warhurton, 2 K. & J. 400 ; 2 Jur. (N.S.) 858 ; and that unless there was a fund in Court the Court could not provide for the costs : S. C. But the costs have been provided for by the Court, although forming no ques- tion in the case : Ootch v. Foster, L. E. 5 Eq. 311 ; Ootch v. Arnold, 18 W. E. 540; Bamahy v. Tassel, 19 W. E. 323 ; Earl Cowley v. Welleshy, 35 Beav. 635. Digitized by Microsoft® ( 39 ) CHAPTER VIII. TEANSFEES AND CONSOLIDATION. TraTisfer from one Division to another. Upon motion, &o., and upon hearing counsel for, &c., and upon reading an affidavit of, &c., Let this action, commenced in the — Division of this Court, be transferred to the — Division of this Court, if the President thereof consents. Let the costs of this application be costs , in the action. Transfer from one Court to another Court of same Division — Consent Order — Non-attenddble Petition. Upon the petition, &c., referred unto the Eight Hon. the Lord High Chancellor of Great Britain, and the solicitors of — having subscribed the said petition signifying their consent to the prayer thereof, Let this action, &c. " If any pit or petitioner shall at any time assign his cause or matter to any Division of the said High Court to which, according to the Eules of Court or the provisions of the principal Act or this Act, the same ought not to he assigned, the Court, or any judge of the said Division, upon beiag informed thereof, may on a summary application at any stage of the cause or matter direct the same to he transferred to the Division of the said Court to which according to such rules or provisions the same ought to have been assigned, or he may, if he think it expe- dient so to do, retain the same in the Division in which the same was commenced ; and all steps and proceedings whatsoever taken by the pit or petitioner or by any other party in any such cause or matter, and all orders made therein by the Court or any judge thereof before any such transfer, shall be valid and effectual to all intents and purposes, in the same manner as if the same respectively had been taken and made in the proper Division of the said Court to which such cause or matter ought to have been assigned " : Judicature Act, 1875 (38 & 39 Vict, c. 77) s. 11, sub-s. 2. •' Any cause or matter may at any time and at any stage thereof, and either with or without application from any of the parties thereto, be transferred by such authority and in such manner as Eules of Court may direct, from one Division or judge of the High Court of Justice to any other Division or judge thereof, or may by the like authority be retained in the Division in which the same was com- menced, although such may not be the proper Division to which the same cause or matter ought, in the first instance, to have been assigned " : Judicature Act, 1873 (36 & 37 Vict. c. 6f>), s. 36. Digitized by Microsoft® 40 TRANSFERS AND CONSOLIDATION. " Any action or actions may be transferred from one Division to another of the High Court, or from one judge to another of the Chancery Division, by an order of the Lord Chancellor, provided that no transfer shall be made from or to any Division without the consent of the President of the Division '' : Jud. Rules, Order 51, rule 1. " Any action may at any stage be transferred from one Division to another by an order made by the Court or any judge of the Division to which the action is assigned : Provided that no such transfer shall be made without the consent of the President of the Division to which the action is proposed to be transferred " :' Jud. Rules, Order 51, rule 2. "Any action transferred to the Chancery Division or the Probate Division shall by the order directing the transfer be directed to be assigned to one of the judges of such Division to be named in the order " : Jud. Rules, Order 51, rules. " Actions in any Division or Divisions may be consolidated by order of the Court or a judge in the manner heretofore in use in the Superior Courts of Com- mon Law": Jud. Rules, Order 51, rule 4. For orders consolidating actions, see Chitty's Forms, 10th Ed. p. 802. Digitized by Microsoft® ( 41 ) CHAFER IX. ISSUES. Questions of Fact — Common Order in Chancery, Let tte following questions of fact be tried before this Court with- out a jury [or, by a common jury, or special jury, of the county of — before this Court], that is to say, &c. [state questions; and if day for trial be fixed, add: Let the day for such trial be the — day of — . Add any special directions for production of witnesses, (£c.J— Adjourn further consideration. — Liberty to apply. Questions of Fact — Patent — Specification — Evidence. Let the tbllowing questions of fact be tried before, &o., by a special jury of the county of — : — 1. Was the Pit J. Y. the true and first in- ventor of the invention for which the letters patent of the — day of — in the Pit's bill mentioned were granted to the said J. Y. 2. Was the said invention new within the United Kingdom of Great Britain and Ireland at the date of the said letters patent. 3. Did the' specifi- cation enrolled in pursuance of the said letters patent particularly describe and ascertain the nature of the said invention, and in what manner the same was to be performed. 4. Have the Defts, Or any or either of them, wrongfully and in contravention of the said letters patent used the said invention. ' Let the Pit forthwith deliver to the solicitors for the Defts particu- lars in writing of the breaches on which they intend to rely on the trial of such questions; and Let the Defts within — days after de- livery of the particulars of such breaches deliver to the solicitors of the Pit particulars in writing of the objections on which the Defts intend to rely on the trial of the same questions. Let the parties be at liberty to re3.d the depositions and examinations made and taken in this cause of such of the witnesses as upon the trial of the same ques- tions shall be proved to be dead or unable to attend to be examined, saving all just exceptions. Let the Pit and Defts respectively be at liberty to sue out subpoenas to compel the attendance of such witnesses as they may require to give evidence on the said trial. — Liberty to apply. Young v. Fernie (L. C), 1 De G. J. & S. 353. Digitized by Microsoft® 42 ISSUES. Similar Order — Costs of Appeal Motion. Let the following questions of fact be tried before the Court without a jury :— 1. Was J. H. J. the true and first inventor of the invention for which the letters patent of the — day of — in the Pit's bill mentioned were granted to the said J. H. J. 2. Was the said invention new within the United Kingdom of Great Britain and Ireland at the date of the said letters patent. 3. Did the specification filed in pursuance of the said letters patent particularly describe and ascertain the nature of the said invention, and in what manner the same was to be per- formed. Let the Defts on or before the — • day of — deliver to the solicitors of the Pit particulars in writing of the objections on which the Defts intend to rely on the trial of the said questions. And the Pit undertaking to give notice of motion for a decree on or before the 1 st October, 1871, Let such motion be in the paper of causes for hear- ing after trial of the said question. Let the evidence taken at the said trial be read and used at the hearing of the said motion for de- cree as the parties may desire. Let the costs of the Pit and Defts of this appeal motion be costs in the cause. Arnold v. Bradbury (L. C.), July 20, 1871. Question of Fact — Nuisance. Upon motion for injunction, &c., and the Defts by their counsel undertaking not to use any additional steam hammer on the gun works in the Pits' bill mentioned until the hearing of their cause or further order, and the Pits by their counsel undertaking to try the issue hereinafter directed at Liverpool at the present assizes, and both sides desiring a special jury. Let the following question of fact be tried before a special jury of the county of — , that is to say : — Whether the Defts have worked the seven ton steam hammer lately constructed and fixed by the Defts on their premises and works situate, &c., in such a manner as to occasion a nuisance to the Pits. — Consequential direc- tions. Eadew v. Firth, 1 H. & M. 673. Question of Fact — Fire Insurance. Upon motion, &c., and this Court being desirous of having the fol- lowing questions decided by a jury, that is to say: — 1. Whether the fire mentioned in the 26th paragraph of the Pit's re-amended bill happened by accident. 2. Whether the statement on statutory decla- ration on the part of the Pit delivered to the Defts, the London and Lancashire Fire Insurance Company, on the — day of — , and in the 19th paragraph of the answer of the said Defts firstly sot forth was a false statement within the meaning of the 13th condition of the policy Digitized by Microsoft® ISSUES. 43 of insurance dated the — day of — mentioned in the 6th paragraph of the Pit's re-amended bill of complaint. 3. Whether the statement or statutory declaration on the part of the Pit delivered to the Defts the London and Lancashire Fire Insurance Company on the said 16th of January, 1867, and in the said 19th paragraph of the answer of the said last-named Defts secondly set forth, was a false statement within the meaning of the 13th condition of the policy of insurance dated the — day of — mentioned in the 9th paragraph of the Pit's re-amended bill of complaint. 4. Whether the particular and de- tailed account marked A. referred to in the 19th and 20th paragraphs of the Pit's re-amended bill, and therein stated to have been delivered by the Pit to the said Defts, the London and Lancashire Fire In- surance Company on the 20th December, 1866, was a false statement within the meaning of the said 13th condition of the said policy of insurance dated 17th April, 1866. 5. Whether the Defts J. D. W. and W. W. in the Pit's bill named, and the Pit, or some or one of them, were or was guilty of fraud in respect of the said statement and claim in respect of a policy of insurance dated 2nd July, 1866, within the meaning of the said 13th condition of the said policy. 6. Whether the Deft J. D. W. and tbe Pit, or one of them, were or was guilty of fraud in respect of the said statement and claims in respect of the said policy of insurance dated 17th April, 1866, within the meaning of the 13th condition of the said policy. 7. Whether W. W. was guilty of fraud in respect of the matters in the last issue mentioned within the meaning of the said 13th condition of the said last-named policy. 8. Whether the transfer in the 11th para- graph of the Pit's re-amended bill alleged to have been made by the Deft J. D. W. to the Pit, and mentioned to bear date the — day of — , and also the transfer in the 12 th paragraph of the Pit's re-amended bill alleged to have been made by the said W. W. to the Pit, and men- tioned to bear date the 1st day of September, 1866, were respectively fictitious and collusive. Let for that purpose a writ of summons be sued out of Her Majesty's Court of Exchequer of Pleas by the London and Lancashire Fire Insurance Company as Pits against the said M. A. D. Tatton, and the said Hodges Distillery Company, Limited, and the said J. D. W. as Defts, pursuant to the provisions of the Act 8 & 9 Vict. c. 109. Let the parties proceed to trial under the said writ of summons in the said Court of Exchequer of P]eas, in the county of Middlesex, in the first sittings of Easter Term, or such other time as the Lord Chief Baron of the Court shall think fit to appoint. Liberty to apply. Tatton v. London and Lancashire Insurance Co., W. N. (1868), 60. Digitized by Microsoft® 44 ISSUES. Question of Fact — Devisavit vel non — Special Jury. This Court being desirous of having the following question of fact decided by a jury, that is to say : — "Whether the paper writing dated, &c., in the pleadings mentioned, purporting to be the will of — , &c., is or is not the last will and testament of the said — , Let for the pur- pose of trying such question a writ of summons be sued out, &c., by the Pits against the Deft J. E. T. C. and M. his wife. And Let the parties proceed to trial under the said writ of summons at the next assizes to be holden in and for the county of — , or such other time as the Lord Chief Justice of that Court shall appoint, before a special jury. And in case a sufficient number of special jurymen shall not attend, either side is to be at liberty to pray a tales, but such trial is not to be had with less than eight special jurymen, unless by consent. And in case the said jury shall find any special matter, the same is to be indorsed on the postea. — The Deft T. T. by his counsel disclaiming all interest, &c., bill dismissed as against him with costs, to be taxed and paid, &c. — ^Further consideration adjourned until after the said trial. — Liberty to apply. Boyse v. Golclough, cited 1 Kay, 75 ; Seton, 975. Issxie as to Validity of Bond. Let the Pit and Deft proceed to a trial at the next assizes to be holden for the county of — , or such other time as the judges of those assizes shall appoint, upon the following question, namely : — 1. Whether the bond and warrant of attorney dated, &c., were fraudulently obtained from the Pit by means of false representations or improper concealment on the part of — , the four obligors in the bond, or any or either of them. And the Pit here is to be Pit at law, and the Defts J. M. and E. M. are to be Defts at law. Let a writ of summons be sued out to try the said issue. Parker v. Morrell, as varied on appeal, 2 Ph. 453. Verdict indorsed on Postea — Agreement — Jury summoned. Afteewaeds, on the — day of — and — day of — , and on this day came the parties within named by their solicitors, and a jury of the county of — being summoned also came, and tie jurors named in the schedule hereto being sworn to try the question between the parties upon their oath say, " That the Deft B. did make or enter into, or give authority to make or enter into, the alleged agreement in the pleadings mentioned, dated, &c." Beyer v. Tonibs (V.-C. W ) Jan 15 1864. Verdict on Postea— Patent — No Jury. Afterwards, on the — day of — and 4th June, 1869, came the parties within named by their solicitors, when this Court finds ;— Digitized by Microsoft® ISSUES. , 45 1. That the invention, the subject of the within mentioned letters patent was at the date of the said letters patent new within the United Kingdom. 2. That such invention was an invention of public utility. 3. That such invention was a proper subject for letters patent to be granted to protect it. 4. That the specification enrolled pursuant to the said letters patent does particularly describe and ascertain the nature of the said invention, and in what manner the same is to be performed, pursuant to the proviso in that behalf in the said letters patent contained. 6. That there has not been an infringe- ment of the said letters patent by the Deft. Parkes v. Stevens ( V.-C. J.), 1869. Verdict on Postea — Tales prayed and Jury discharged without giving Verdict. Afteewaeds on the — day of — , and this day at Lincoln's Inn, in the county of Middlesex, before the Vice-Chancellor — , came as well the within-named Defts by their solicitors, and a jury of the said county being summoned, some of them, that is to say the jurors named in the first part of the schedule hereto, come and are sworn upon that jury, and because the residue of the jurors of the same jury do not appear therefore others of the bystanders being chosen by the sheriff of the said county at the request of the Pit, and by command of the said Vice-Chancellor, are appointed anew, whose names are annexed to the within written panel, according to the form of the statute in that case made and provided, which said jurors so appointed anew, that is to say the jurors named in the second part of the said schedule, being called likewise come, who together with the said other jurors being impanelled and sworn, being sworn to try the matter in question between the said parties, and after having retired to consider their verdict at twelve o'clock at noon and returning into Court at a quarter to four o'clock in the afternoon, and stating that they were not agreed on tlieir verdict, and there was no possibility of their doing so, such jury are by the direction of the said judge, and counsel for the respective parties not opposing, discharged from giving any verdict on the said questions to be tried by them. Davenport v. Jepson (V.-C. W.), Jan. 31, 1863. Verdict on Postea after Order for New Trial — Deft not appearing. Afteewaeds by an order made in this cause dated, &c., it was ordered that the questions of fact directed to be tried by the order made in this cause dated the — day of — , should be agaiti tried on the — day of — before this Court before a special jury of the county of Middlesex; and by another order dated the — day of — it was Digitized by Microsoft® 46 ISSUES. ordered that the said question should be so tried on this day; and on this day accordingly at — , in the county of — , before, &c., came the Pits by their counsel (no one appearing for the Defts), and a special jury of the saidcounty of Middlesex, whose names appear in the schedule hereto, who being sworn to try the matter in question between the said parties, upon their oath say : That, &o. Order for New Trial — Jury having been discharged. Wheeeas by an order dated, &c., it was ordered that the following questions of fact should be tried on the — day of — , before this Court before a special jury of the county of — , that is to say [statement of questions of fact]. Now upon motion this day made unto this Court by counsel for the Pits it was alleged that such trial was accordingly had before this Court and the said special jury on the — days of — , and in consequence of the said jury not agreeing the said jury were discharged by this Court without giving any verdict, and that the Plaintiffs are desirous that the same question should again be tried before this Court befoie a special jury of the county of — , and upon reading the said order dated, &c., and an affidavit, &c., this Court doth order that the same questions of fact directed to be tried by the said order dated, &c., be again tried on the — day of — before this Court before a special jury of the said county of — . Davenport v. Jephson, (V.-C. W.), March 14, 1863. Order for New Trial — Appeal Motion — Evidence. Upon motion by way of appeal from an order dated 16th December, 1869, and upon reading an order dated 12th June, 1869, whereby it was ordered that the questions of fact therein mentioned should be tried by a special jury of the county of Middlesex before, &c., and the record for trial with the indorsement thereon, whereby it appears that the said questions of fact were tried as by the said order directed, and the jury found for the Pit on all the several questions ; and upon read- ing the particulars of breaches delivered by the Pits pursuant to the said order of the 12th of June, 1869, and the notice of objections and amended notice of objections respectively delivered by the Deft pur- suant to the said order, and such of the several specifications and documents referred to in the said notices of objections as are men- tioned in the schedules hereto, and upon reading an order dated, &c., giving leave to the Deft to amend his notice of objections, and the letters of patent, specification, and disclaimer 'referred to in the said order ; and which said particulars of breaches and notices of objection are respectively identified by the signature of the Eegistrar and filed in the report office of this said Court, Let the order of the 16th.of Digitized by Microsoft® ISSUES. 47 December, 1869, be discharged, and the parties proceed to a new trial of the said questions of fact mentioned in the said order dated the 12th of June, 1869, in the manner directed by that order. Garrington v. Nuttall (V.-C. W.), Jan. 28, 1870. Decree after Trial of Issues. Upon motion for judgment this day made unto this Court by counsel for the Pit in the presence of counsel for the Defts [or, if some of the Defts do not appear : no one appearing for the Defts E. F. and G. H., although they were duly served with notice of trial, as by the affidavit of — , filed the — day of — , appears], and the parties having on the — day of — proceeded to a trial of the questions di- rected to be tried, &c., when this Court [or — ], found, &c., and upon leading, &c., this Court doth declare, &c. and this Court doth order and adjudge, &c. Issues. " Where in any action it appears to a judge that the statement of claim or de- fence or reply does not sufficiently define the issues of fact in dispute between the parties, he may direct the parties to prepare issues, and such issues shall, if the parties differ, be settled by the judge " : Jud. Rules, Order 26. " The Court or a judge may, if it shall appear- desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which previously to the passing of the Act could, without any consent of parties, be tried without a jury " : Jud. Rules, Order 36, rule 26. " The Court or a judge may, if it shall appear either before or at the trial that any issue of fact can be more conveniently tried before a jury, direct that such issue shall be tried by a judge with a jury" : Jud. Rules, Order 36, rule 27. See " 'fBiAL," p. 59. Under the 25 & 26 Vict. c. 42, whenever any relief or remedy within the juris- at-arms attending this Court apprehend the said — and bring him to the Bar of this Court to answfer his said contempt. And thereupon such further order shall, be made as shall be just. If the serjeanbrat-arms cannot apprehend the party in contempt, the order for the serjeant-at-arms will not be discharged, nor the contempt thereupon, without a certificate under the hand of the serjeant-at-arms that his fees have been paid ; Digitized by Microsoft® ENFORCING ORDERS AND JUDGMENTS. 99 and after the order has heen drawn up and passed, no private or other agreement can be made between the party prosecuting the contempt and the person standing in contempt, or on their behalf, for a compromise of the suit or a discharge of the contempt, unless such satisfaction be made to the serjeant-at-arms, and a cer- tificate thereof be produced in Court : Cons. Ord. 30, rule 2. If the serjeant-at-arms apprehends the party, he brings him to the Bar of the Court, and he is thereupon turned over to HoUoway Prison ; and upon proof of such committal — that is, by production of the keeper's certificate — the party prosecuting the contempt may apply by motion as of course for an order for sequestration : Braith. Pr. 288. If the serjeant-at-arms finds the party already in custody, he makes a return accordingly, and thereupon the party prosecuting the contempt may apply to the Court for a habeas, upon which the party in custody will be brought to the Bar of the Court and turned over to HoUoway Prison ; and upon such committal the person prosecuting the contempt may obtain, by motion as of course, an order for a sequestration. Order to Turn Over when Prisoner brought up by Serjeant-at-Arms or by Habeas. (The Deft) A. being tMs day brought to the bar, of this Court by the serjeant-at-arms attending this Court [or if brought up by habeas, by virtue of a writ of habeas corpus cum causis directed to the sheriff of — , or, the Governor of HoUoway Prison] to answer his contempt in not [state the default in respect of which the process issued'], and still persist- ing in his said contempt. Now upon motion, &o., Let the said — be turned over [or, remanded] to HoUoway Prison, and remain there until he shall [state act required to be done] clear his contempt and this Court make other order to the contrary. • Order for Habeas when Prisoner has been detained in Custody, Whereas by an order dated the — day of — [recite so much of the order required to be performed]. Now upon motion, &c., by counsel for — , and upon reading the said order, the writ of attachment issued under the said order directed to the sheriff of — , and the return of the said sheriff indorsed upon the said writ, and whereby it appears that — is in his custody [or if order has been made for serjeant-at-arms : Whereas by an order dated the — day of — , it was ordered that the serjeant-at-arms attending this Court should apprehend — and bring him to the bar of this Court to answer his contempt in not, &c. ; and upon reading the said order and the certificate of the keeper of — prison, whereby it appears that the said — is detained in custody], Let a writ oi habeas corpus cum causis issue direct 3d to the sheriff of — [or to the keeper of — prison], at the return theiool", to bring the said — to the bar of this Court to answer the said contempt. It has been said that the party in contempt should be brought to the bar of the Court by habeas where the serjeant-at-arms returns that he is in prison, for that Digitized by Microsoft® 100 ENFORCING ORDERS AND JUDGMENTS. •Jtherwise it is not clear that a sequestration could regularly issue : Seton, 1224, citing C(mrt v. Barr, 2 S. & S. 452. But this is a doubtful proposition : see same case on appeal, 2 Russ. 161. Where a party is brought up to this Court by virtue of any writ of habeas duly issued from the office of the clerk of records and writs, and by reason of the pressure of other business, or from any other cause, the hearing of the cause or matter in which such party is concerned is postponed to a future day, a new writ of habeas may be issued for such future day, if the Court shall so direct, without payment of any fee : Cons. Ord. 30, rule 3. Where, under the provisions of the last-mentioned rule, the matter is postponed, the registrar indorses on the order for habeas : " Let another habeas issue, returu- able on the — day of — at — o'clock in the — noon :" Seton, 1223. Order for Sequestration after Order for Serjeant-at-Armg. Whereas by an order dated, &c., it was ordered [recite so much, of order as was required to he performed'], and whereas by an order dated, &o., it was ordered that the serjeant-at-arms attending this Court should apprehend — and bring him to the bar of this Court to answer his con- tempt in not complying with the said order dated the — day of — . Now upon motion, &c., by counsel for — , and upon reading the said orders dated the — day of — and — day of — , and the return of the serjeant-at-arms, whereby it appears that the said — cannot be found, Let a commission of sequestration, &c. [see page 98]. SbQUESTRATIOS^ AGirNST CoRPOEATIONS. Order Nisi. Upon motion, &c., it was alleged that a writ of distringas [and an alias and pluries distringas] having issued against — [style of corpora- tion] directed to the sheriff of — , for not [state from the writ what the corporation was ordered to do] pursuant to the said order dated, &o., the said sheriff has returned [state the return], and the said corporation persisting in their said contempt ; and upon reading the said order, writ, and return thereon, Let a commission of sequestration issue directed to certain commissioners to be therein named to sequestrate the personal estate of the said corporation, and the rents, profits, and issues of their real estate until they shall pay the said sum of £ — [or, state the act required to be done] clear their contempt, and this Court makes other order to the contrary, unless the said corporation having personal notice thereof shall within seven days after such notice shew unto this Court good cause to the contrary. Order Nisi made absolute. Whereas by an order dated, &c., [recite order nisi], Now upon motion, &c., by the counsel for — , who alleged that the said — [the corpora- tion] has been duly served with the said order, notwithst£),nding which Digitized by Microsoft® ENFORCING ORDERS AND JUDGMENTS. 101 the said — has not [state tJie act required to he performed], as by affidavit of — appears, and no cause having heen shewn against the said order as by the registrar's certificate also appears ; and upon reading the said order, affidavit, and certificate. Let a commission of sequestration issue directed to certain commissioners to be therein named to sequester the said — personal estate, and the rents, issues, and profits of their real estate, until they shall [state act required to he performed], and this Court make other order to the contrary. A decree or order may be enforced against a corporation aggregate by distringas and sequestration. The writ of distringas is directed to the sheriff, or other officer having jurisdic- tion, and commands him to distrain the lands, tenements, goods, and effects of the corporation. If the sheriff returns nulla lona, an alias distringas may be sued out, and if a similar return is made, a pluries distringas may be issued. If the sheriff returns " issues " to the first or second distringas, or " issues," or nulla hona to the third. If the corporation has property the sheriff usually levies 403. tmder the first writ, £4 under the second, and the whole property of the corporation under the third. Hinde; 140, cited in Dan. 5th ed. 402. The order nisi will be granted upon the return " issues 40s.," although the whole amount due might have been levied under the writ of distringas : Harvey v. East India Company, Reg. Lib. A. 1700, fo. 506 ; Lowton v. Mayor of Colchester, 3 Mer. 543. Enforcing by Attachment. " A writ of attachment shall have the same effect as a writ of attachment issued out of the Court of Chancery has heretofore had." Jud. Eules, Order 44, rule 1. " No writ of attachment shall be issued without the leave of a Court or a judge, to be applied for on notice to the party against whom the attachment is issued." Jud. Rules, Order 44, rule 2. Attachment for Disobedience of Order, other than Payment of Money or Costs. Whereas by an order dated, &c. [recite the part of order to he per- formed, or the act to he abstained from]. Now upon motion, &c., and upon reading the said order, an affidavit of — of service of notice of this motion on — , Let the said — be at' liberty to issue an attachment against the said — for his contempt in not having [state the act required to be done or to he abstained from].. Where any person is by a decree or order made in any suit or matter directed to do any act other than or besides the payment of money or costs, and after due service of such decree or order refuses or neglects to do such act, according to the exigency of the same decree or order, the person prosecuting such decree or order shall, at the expiration of the time limited for the performance thereof, be entitled [upon notice, see above] to a writ or writs of attachment against the disobedient person. General Order, 1870, rule 6. Digitized by Microsoft® 102 ENFOECING OEDEBS AND JUDGMENTS. The Debtors Act, 1869. AUachmenta under Sect. i. Whereas by an order dated, &o. [recite part of order to he per- formed]. Now upon motion, &c., and upon reading the said order and affidavit of, &c., and an affidavit of service of notice of this motion on — , and it appearing to the satisfaction of the Court that the said — has made default in payment of the sum of £ — directed to be paid to the said — [or, into Court to the credit of, &c.J as provided by the said order, and that such default is the default of a trustee [or, person acting in a fiduciary capacity] ordered to pay a sum in his possession or under his control within the meaning of the Debtors Act, 1869 [or, that such default is the default by an attorney or solicitor ordered to pay in a limited time costs for misconduct as such solicitor, or, to pay in a limited time a sum of money in his character of an officer of the Court], Let the said — be at liberty to issue an attachment against the said — for his contempt in not having paid the sum of £ — pur- suant to the said order. Attachment against Solicitor — On Taxation of his Bill against his Client. Whereas by an order dated, &c., it was referred to the taxing master to tax, &o., and it was ordered (inter alia) that the taxing master should certify the amount due from G. P. to E. B. (the solicitor), or from the said E. B. to the said G. P., and that the amount so to be certified should be paid within — days after service of the said order and of the taxing master's certificate. Now upon motion, &c., and upon reading the said order and taxing master's certificate, and an affidavit of service of the said order and certificate on the said E. B., and an affidavit of service of notice of this motion on — , and it appear- ing to the satisfaction of the Court that the said E. B. has made default in payment of the sum of £ — , part of the money certified, &c., and that such default is a default made by a solicitor of this Court who has been ordered to pay a sum of money in his character of an officer of this Court within the meaning of the Debtors Act, 1869, Let the said G. P. be at liberty to issue an attachment against the said E. B. for his contempt in not having paid the said sum of £ — pursuant to the said order. Teustees and Solicitors. Exceptions from Provisions of Debtors Act, 1869. The following cases are excepted from the operation of the Debtors Act, 1869, abolishing imprisonment for default in payment of a sum of money : 1. Default in payment of a penalty, or sum in the nature of a penalty, other than a penalty in respect of any contract : Digitized by Microsoft® ENFORCING ORDEES AND JUDGMENTS. 103 2. Default in payment of any sum recoverable summarily before a justice or justice of the peace : 3. Default by a trustee or person acting in a fiduciary capacity, and ordered to pay by a Court of Equity any sum in bis possession or under his control : 4. Default by an attorney or solicitor in payment of costs when ordered to pay costs for misconduct as such, or in payment of a sum of money when ordered to pay the same in his character of an officer of the Court making the order : 5. Default in payment for the benefit of creditors of any portion of a salary or other income in respect of the payment of which any Court having jurisdiction in bankruptcy is authorized to make an order : 6. Default in payment of sums in respect of the payment of which orders are in the Act authorized to be made : 32 & 33 Vict. c. 62, s. 4. "Where by any decree or order a trustee or person acting in a fiduciary capacity is ordered to pay in a limited time any sum of money in his possession or under his control, or a solicitor is ordered to pay in a limited time costs for misconduct as such solicitor, or to pay in a limited time a sum of money in his character of an officer of the Court, and such trustee, person, or solicitor, after due service of such decree or order neglects or refuses to pay siich money or costs ac- cording to the exigency of such decree or order," the person prosecuting such decree or order is, at the expiration of the time limited thereby for the perform- ance thereof, entitled [at his option either to a commission of sequestration, or] to move for an attachment: See Gen. Ord. 1870, rule 7; Jud. Rules, Order 44, rule 2. Where a trustee has made default in payment of a sum of money ordered by the Court to be paid and admitted to have been in his possession, an attachment may be ordered against him, although he may have spent the money before the order and be unable to pay : Middleton v. Chichester, L. B. 6 Ch. 152. It need not appear that the money ordered to be paid by him had at some time been in his sole possession or control : S. C. ; Evans v. Bear, L. R. 10 Ch. 76. No attachment can be issued against a trustee on an order directing payment of principal and interest not distinguished : Middleton v. Chichester, supra. A creditor who has received money from a bankrupt by way of fraudulent preference, and has been ordered to repay it to the bankrupt's estate, is not a person holding a fiduciary capacity under the 4th section : Re Chapmcm & Shaw, L. B. 8 Ch. 231. Default by a solicitor in payment of a balance found due to the client upon taxation under the common order to tax his solicitor's bill is a default within the exceptions of the Act : Re Bush, L. B. 9 Eq. 147. And where the Court has ordered a man to pay a sum of money, whether in the shape of costs or anything else, a debt is constituted within the meaning of section 5 : Eewitson v. Sherwin, L. R. 10 Eq. 53. But where the solicitor is ordered to pay costs simply as an unsuccessful litigant, no attachment will be ordered to be issued : Re ffope, L. R. 7 Ch. 523. If, however, the solicitor is ordered, in his character of a solicitor, to pay a sum of money with costs, the costs will be considered as included in the sum ordered to be paid. S. C. Where subsefluently to an order directing payment by a solicitor an arrange- ment interfering with the terms of the order was come to between the parties and broken by the solicitor, an attachment was not allowed to issue for non-compliance with the order : ffarvey v. Harvey, L. E. 16 Eq. 324. Where by any decree or order a solicitor is ordered to pay costs for misconduct as snch solicitor, without a time being limited for such payment, and does not Digitized by Microsoft® 104 ENFORCING OEDEES AND JUDGMENTS. upon due service of a'subpoena for such costs make such payment, the person to whom such costs are payable is immediately, upon such default, entitled [at his option either to a commission of sequestration, cmte, p. 98] or to move for a writ of attachment : Gen. Ord., 1870, rule 8 ; Jud. Eules, Order 29, rule 2. Committal — Contempt of Couet. Orders for Committal. Order Nisi. Upon motion, &c., and upon reading, &c., Let — stand committed to HoUoway Prison for contempt of this Court in, &o.', as appears by tlie aifidavits of, &o., unless he the said — shall shew good cause to the contrary before His Lordship — [name of jttdge] at the sitting of the Court in — on the — day of — . Order Absolute. Whereas by an order dated, &o. [recite order^, and the said — not attending this Court this day pursuant to the said order, although duly served with the said order, as by affidavit of — appears, and no cause being shewn to the contrary. Let the said — stand committed to HoUoway Prison for his said contempt. See Lechmere Charlton's Case, 2 My. & Cr. 316, 343. Order for Committal — Notice of Motion. Whereas by an order dated, &c. [recite part of order for breach of which committal is soiughL'] Now upon motion, &c. [and upon hearing counsel for — ] and upon reading an affidavit of, &c. [and an affidavit of service of notice of this motion on — ], and this Court being of opinion upon consideration of the facts disclosed by the evidence aforesaid that the said — has been guilty of a contempt of this Court by, &c.. Let the said — stand committed to HoUoway Prison for his said contempt. Where the Court itself takes notice of the contempt the order nisi has usually been made. And in other cases the order for committal has been made on notice of motion. Special Contempts. " Any one who uses violence or abusive language to a person serving the process or orders of the Court, or uses scandalous or contemptuous words against the Court, or the process thereof, shall be liable to be committed upon motion, on notice to the person so offending " : Cons. Ord. 42, r. 2. It is a special contempt to do acts disturbing the free course of justice, or to attack parties to the cause, or their witnesses : Fool v. Sacheverell, 1 P. Wms. 675 ; Anon., 2 Atk. 469 ; lioach v. Qarvan, 2 Dick. 794 ; Lechmere Cliarlton's Case, 2 My. & Cr. 316 ; Littler v. Thompson, 2 Beav. 129 ; Coleman v. West Digitized by Microsoft® ENFORCING OEDEES AND JUDGMENTS. 105 Hartlepool Sy. Co., 8 W. R. 734 ; Daw v. Eley, L. E. 7 Eq. 49 ; Tichbome v. Tichhome, 18 W. E. 621. So, too, it is a special contempt to publish while a cause is pending comments upon the evidence calculated to prejudice the parties' cases ; or to publish with or without comment the pleadings, evidence, or any petition or ex parte statement in any pending cause or matter : Dan. 5th ed. 932, and cases there cited. Service op Oeder. The service of the order to shew cause, or of the order nisi, or of the notice of motion for committal, must in general be personal : Sope v. Hope (L. JJ.), 17 W. E. 363. But substituted service may be directed : Leehmere Charlton^s Case, 2 My. & Cr. 316 ; Order, supra. DlSCHAEGE OF PbISONER COMMITTED FOR COKTEMPT. Upon motion, &c., and it appearing [«ia Where upon a bill for an account it was clear that the relief could be satisfac- torily given at common law, equity did not interfere: Dinwiddie v. Bailey, 6 Ves. 136, per Lord Eldon. And to maintain a bill for'an account it must have been shewn that the case was one in which the deft is bound to keep an account : Smith v. Leveaux, 12 W. E. 31, reversing S. C. 1 H. & M. 123. Upon a question of account where Courts of Equity and Common Law had concurrent jurisdiction, if a question arose whether the remedy for an account should be at law or in equity it was decided with a view to the most convenient mode of having the question decided : North Mastem By. Qo. v. Martin, 2 Ph. 758, per Lord Cottenham ; see also Ryle v. Haggle, 1 Jac. & W. 234 ; Mackenzie V. Johnston, 4 Mad. 373 ; Adley v. Wliitstahle Company, 17 Ves. 315 ; Shepard V. Brown, 4 Giff. 208 ; Makepeace v. Rogers, 11 Jur. (N.S.) 215. Digitized by Microsoft® ACCOUNT. 151 Courts of Equity have giveu relief, although the receipts and payments are wholly on one side : see observations in Heming v. Pv^h, 9 Jur. (N.S.) 1124. As a general doctrine in matters of account growing out of privity of contract, Courts of Equity have had a general jurisdiction where there are mutual accounts (and a fortiori where these accounts are complicated) ; and also where the accounts are on one side, but a discovery is sought, and is material to the relief : Story, vol. i. p. 449 ; Mackenzie v, Johnston, 4 Mad. 374 ; Massey v. Banner, 4 Mad. 416. But if there had been a bill for an account in respect of particular items, and the pit failed in sustaining the demand upon those particular items or any number of particular items, and the bill contained a general vague charge of voluminous and intricate accounts, the bill was open to demurrer for want of equity : Darthez V. Clemens, 6 Beav. 165. And where parties have elected to proceed at law, equity would not stay the proceedings at law simply on the ground that it could more conveniently dispose of the suit : Scott v. Corporation of Liverpool, 5 Jur. (N.S.) 105 ; 7 W. B. 153. Statute of Limitations. " No claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any Statute of Limitations :" Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 25, sub-s. 2. Mode of taking Account — Special Directions. In any case where an account is required to be taten, the Court may give such special directions as it may think fit with regard to the mode in which the account should be taken or vouched, and such special directions may be given either by the decree or order, or by any subsequent order or orders, upon its appearing to the Court that the circumstances of the case are such as to require such special directions : 15 & 16 Vict. c. 86, s. 54. And particularly it shall be lawful for the Court, in cases where it shall think fit so to do, to direct that on taking the account the books of account in which the accounts required to be taken have been kept, or any of them, shall be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised : Ibid. Under this Act the Court has power to give special directions in taking an account directed by a decree dated previously to the Act : Ewart v. Williams, 7 De G-. M. & G. 68. The chief clerk may not take books as prima facie evidence without an order of the Court : Coohes v. Cookes, 11 W. B. 871. But where the accounts had been taken in a special manner, without the authority of an order, and the parties had not objected, the Court refused to dis- charge the certificate : Newberry v. Benson, 23 L. J. (Ch.) 1003. The Court in decreeing an account may direct it to be taken with the admission of certain documents or teatimonies not having the character of legal evidence : Dan. 5th ed. 1130; Lupton v. White, 15 Ves. 432, 443. But the Act does not authorize such a substantial variation of a decree as to add a direction to make annual rests to a decree against a mortgagee in possession : Nelson V. Book, 3 Dc G. & J. 119 ; 5 Jur. (N.S.) 28. In a suit to redeem certain manufacturing premises which had been conveyed Digitized by Microsoft® 152 ACCOUNT. to the deft, and for an account, the Court ordered that the books of account kept by the deft at the manufactory, but to which the pit had access, should be taken as prima facie evidence of all moneys received or paid by the deft; with liberty to the pit to surcharge and falsify: Ogden v. Battams, 1 Jur. (N.S.) 791; Order, p. 149. And in an administration suit the accounts kept by the executor and trustee, which were accessible to the tenants for life, and had been examined and signed by their husbands, were ordered to be taken, up to the date of the signatures, as prima facie evidence in taking the income account as against the tenant for life, but not in taking the capital account as against the remainderman : Dan. 5th ed- 1131, citing Banks v. GartwrigJit, 15 W. R. 417. And the meaning of the section is, that where vouchers have been lost, or accounts cannot be taken in the ordinary way, the Court may give special direc- tions for the taking of such accounts ; but such directions will not be given merely to save expense, or unless ordinary evidence cannot be obtained: Morgan, 219; lodge V. Pritchard, 3 De G. M. & G. 906 ; Ewart v. Williams, 7 De G. M. & G. 74. The special directions have sometimes been given at the hearing : Ogden v. Battnm, 1 Jnr. (N.S.) 791 ; Sleight v. Lawson,'3 K. & J. 292. But they are more usually given in the proceedings at Chambers : Attomey-Oeneral v. Attwood, 9 Hare, App. 56, n. If any question arise as to the principle on which the account should be taken, an application to the Court may be made for special directions : Robertson v. Norris, 1 Giflf. 428. Where any account is directed to be taken the accounting party, unless the judge shall otherwise direct, shall make out his account and verify the same by affidavit. The items on each side of the account shall be numbered consecutively, and the account shall be referred to by the affidavit as an exhibit, and be left in the Judge's Chambers : Cons. Ord. 35, r. 33. Any party seeking to chnrge any accounting party beyond what he has by his account admitted to have received, shall give notice thereof to the accounting party, stating, so far as he is able, the amount sought to be charged and the par- ticulars thereof, in a short and succinct manner : Cons. Ord. 35, r. 34. As to advertisements, and claims made under them: see Cons. Ord. 35, rules 35-40; and Gen. Order, May 27, 1865. Where by any decree or order accounts are directed, each direction is to be numbered : Cons. Ord. 23 , r. 15. Where an account is directed, the certificate shall state the result of such account, and not set the same out by way of schedule, but shall refer to the account verified by the affidavit filed, and shall specify by the numbers attached to the items in the account which, if any, of such items have been disallowed or varied ; and shall state what additions, if any, have been made by way of sur- charge : Cons. Ord. 35, r. 46. Evidence at HeaTiing — Frame of Deceee. In a suit for account, the only evidence necessary at the hearing is that which proves the deft to he an accounting party. Evidence as to particular items is, as a general rule, irrelevant at the hearing : Law v. Hunter, 1 Buss. 100, 102 ; Walker v. Woodwat'-d, Ibid. 107, 110; Hwnhy v. //tinker. Ibid, 89 ; Waters v, Earl of Shaftesburg, 12 Jur. (N. vS.) 3; 14 W. R. 259. Digitized by Microsoft® > ACCOUNT. 153 But such evidence will not be rejected if brought for the general purpose of proving that the pit is entitled to an account: Tmilin v. Tomlin, 1 Hare, 241, 245. The Court will not, upou the original hearing of a suit for an account, declare that a particular property forms part of the assets: S. C. Nor, where the right or liability is in question in the cause, and not particular items of account, is it proper, for the purpose of the hearing, to examine witnesses upon particular items not specially charged in the pleadings to be erroneous '■ Forsyth v. Mlice, 2 Mac. & G. 209. It has not been incumbent upon a pit in a suit for account to offer to pay the balance if found due from him. There is sufficient jurisdiction in the Court to compel the pit to account : Clarke v. Tipping, 4 Beav. 588 ; 6 Jur. 25 ; Barker V. Walters, 8 Beav. 92; Toulmin v. Beid, 14 Beav. 499. And although a decree in a case which the pit ought himself to account is pre- faced by a submission to account, yet a bill could not be demurred to for want of such submission : Inman v. Wearing, 3 De G. & Sm. 733. But where a mortgagor obtains a decree for an account, but neither the bill nor decree contained the usual offer to pay on the part of the pit, the Court refused, upon further directions, to order the pit to pay a balance found due from him : Hollis V. Bidpeet, 13 W. R. 492. Where the proceedings have been instituted by a creditor suing on behalf of himself and the other creditors, if the executor or administrator admit assets, the general account is not directed, but an order is made for payment of the pit's debt : Woodgate v. Field, 2 Hare, 211 ; Story, 10th ed. vol. i. p. 547. No rests are made unless directed by the decree : Oould v. Tancred, 2 Atk. 533 ; Willis v. Bunt, 1 Madd. 13. Where rests are to be made a balance is struck at each rest, which is directed by deducting receipts from payments : Baphael v. Boehm, 11 Ves. 92. And where a decree directs computation of interest and rests to be made, the object of that direction is to charge compound interest, the balance of principal and interest being carried forward at each rest as an item in the amount producing interest : S. C. ; Knott v. Cottee, 16 Jur. 752., CoSTS. Where the costs are partly disposed of at the hearing, the decree reserves the further consideration of the costs. But where the Court makes no order at the hearing as to costs, it is not neces- sary that the costs should be reserved by the decree : HoUis v. Bastard, 2 W. E. 47. Where the costs of suit are given at the hearing, the subsequent costs of carrying the decree into effect are included, unless further consideration is reserved. These are general rules, and apply to all suits. Settled Accounts — Opening — Stjrchaeging — Falsifying. The direction in a decree that stated or settled accounts are not to he disturbed is generally inserted where a settled account has been insisted upon and proved at the hearing : Dan. 5th ed. 1136 ; Cole v. Gole, cited 11 Ves. 579 ; Buckeridge v. Whalley, 33 L. J. (Oh.) 649. But a general direction that stated or settled accounts arc not to be disturbed. Digitized by Microsoft® 154 AOCOUKT. applies only to accounts between pit and deft, and not to accounts between defts : Carmkhael v. Carmichael, 'A Phil. 101 ; 10 Jur. 908. Where there is no such direction in the decree, settled accounts will be disre- garded : Fitzpatrick v. Mahoney, 1 J. & Lat. 84 ; Carmichael v. Carmichael, 2 PhU. 101 ; 10 Jur. 908. Except under accounts in an administration suit : Frewen v. Wattm, 31 Beav. 315. If a party seeks to open a settled account, it is not necessary that he should at the hearing prove all the errors stated in the bill : Anon., 2 Preem. 62 ; Chambers V. Ooldwin, 5 Ves. 834, 837 ; Dawson v. Dawson, 1 Atk. 1 ; cited Dan. 5th ed. 577. Where the Court opens the account, the parties are not bound by any deduc- tions they may have originally agreed to make : Osborne v. Williams, 18 Ves. 383. If a party can shew an omission for which there ought to be credit, it will be added — which is a " surcharge " — or if any wrong charge is inserted, it will be deducted — which is a " falsification " : Pitt v. Cholmondeley, 2 Ves. 565 ; Beigh- ington v. Grant, 1 Phil. 600. Where only ereors or mistakes are shewn to exist in a settled account, the account will not be opened, but liberty will be given to " surcharge " and " falsify " it : Vernon v. Vawdry, 2 Atk. 119 ; Allfrey v. Allfrey, 11 Jur. 981 ; 1 Mac. & G. 87, 94 ; 13 Jur. 269. And where a settled account has been suggested, but not proved, the Court will sometimes order the accounts to be considered as prima fade conclusive, but with liberty to the pairties to shew error therein: English v. Baring, Seton, 108; Stainton v. Carron Company, 24 Beav. 346 ; 3 Jur. (N.S.) 1235. Where fraud is proved to have taken place in the settlement of an accoimt, the Court will open the whole account, although settled for many years : Vernon v. Vawdry, 2 Atk. 119 ; Walker v. Symonds, 3 Sw. 73 ; Allfrey v. Allfrey^ supra. But where no injustice will be done to the objecting parties, the Court will sometimes, even in cases of fraud, confine the decree to "surcharging" and "falsifying": Allfrey y. Allfrty, supra. Where upon the face of a settled account between attorney and client credit has not been given for sums received, the Court will not allow the account to stand, although no specific error may have been proved : Mathews v. Wallwyn, 4 Ves. 118, 125. So, too, in cases of account settled between principal and agent (^Beaumont v. Boultbee, 5 Ves. 485 ; 7 Ves. 599 ; 11 Ves. 358 ; Clarke v. Tipping, 9 Beav. 284), guardian and ward {Allfrty v. Allfrey, 10 Beav. 353 ; 11 Jur. 981 ; 1 •Mac. & Gr. 87 ; 13 Jur. 269), and trustee and cestui que trust: Clarke v. Farl of Ormonde, Jac. 116. Just Allowances. In taking any account directed by a decree or order, all just allowances will be made, without any direction for that purpose in the decree or order : Cons. Urd. 23, r. 16. Where a substantive claim for a specific allowance has been made by the answer, and no specific direction has been founded upon it in the decree, such an allowance cannot be made under the head of just allowances : East India Company v. Eeiyhley, 4 Madd. 16, 38, cited in Dan. 5th ed. 1136. As to payments allowed under the head of "just allowances " and for commis- sion, see Dan. 5th ed. 1134-5. Digitized by Microsoft® AGUOUNT. 165 Set-off. Independently of the Statutes of Set-off (2 Geo. 2, c. 22, and 8 Geo. 2, c. 24) Courts of Equity, in virtue of their general jurisdiction, are accustomed to grant relief in all cases where, although there are mutual and independent dehts, yet there is a mutual credit between the parties, founded at the time upon the existence of some debts due by the existing party to the others: Story, vol. i. p. 694; Lord Jjinesborough v. Jones, 1 P. Wms. 326 ; Ex parte Flint, 1 Sw. 33. As to equitable debts, or a legal debt on one side and an equitable debt on the other, there is good reason to believe that wherever there is mutual credit between the. parties touching such debts, a set-off is upon that ground alone maintainable in equity, although the mere existence of mutual debts without such a mutual credit might not, even in case of insolvency, sustain it : Story, vol. i. p. 696 ; Lord Lanesborough v. Jones, supra ; Curran v. African Company, 1 Vern. 122. The mere existence of cross demands is not sufficient : Whyte v. O'Brien, 1 S. & S. 551 ; Mawson v. Samuel, 1 Cr. & Ph. 161, 178 ; but see Clarke v. Cost, 1 Or. & Ph. 156, 160. A joint debt could not be set off against a separate debt at law; but might in equity, under particular circumstances ; as where there is a clear series of transac- tions in which joint credit has been given : Vulliamy v. Noble, 3 Mer. 618, n. ; Mx parte Stephens, 11 Ves. 24 ; but see JEx parte Slagden, 19 Ves. 464 ; jfo parte Twogood, 11 Ves. 516 ; Aldis v. Knight, 2 Mer. 121. Interest. The general rate of interest'charged in the Court of Chancery against a trustee or executor for mere negligence in not investing money which should be invested is 4 per cent. : Roche -f. Bart, 11 Ves. 58 ; Bamsay v. Avison, 3 Jui. (N.S.) 62. And where he mates an improper investment he has been charged with interest at 4 per cent., and annual rests directed : Knott v. Cottee, 16 Beav. 77. Where an executor and trustee had for several years retained funds in his hands uninvested which he ought to have invested, he was held not to be chargeable with interest at 5 per cent., or upon the principle of annual rests, but with simple interest at 4 per cent. : Attorney- General v. Alford, 4 De G. M. & G, 843. But where an intention to appropriate the trust money has been shewn, the trustee will be charged with 5 per cent., whether he had made it or not : Mayor of Berwick v. Murray, 7 De G. M. & G. 518 ; see also Maphael v. Boehm, 11 Ves. 92 ; 13 Ves. 590 ; WiUiams v. Powdl, 15 Beav. 461, 388. Appeopeiation. In the case of running accounts between parties, where there are various items of debt on one side, and various items of credit on the other side, occurring at different times, and no special appropriation of the payments is made by either party, each item of payment or credit is applied in extinguishment of the earliest items of debt standing in the account until the whole payment or credit is exhausted : Story, 451, and cases there cited. Where there are no running accounts between the parties, and the debtor himself makes no special appropriation of any payment, the creditor is generally at liberty to apply that payment to any one or more of the debts which the debtor owes him, whether it be upon an account or otherwise : Ibid. Digitized by Microsoft® 156 ACCOUNT. Where there is a running account between a partnership firm and a creditor, and the partnership dissolves by death or otherwise, the creditor continuing to keep a running account with the survivors, the estate of the deceased partner is only liable to the specific balance due to the creditor at the time of dissolution of partnership : Devaynes v. Noble (Clayton's Case), 1 Mer. 572. Under such circumstances there is no room for any other appropriation than that which arises from the order in which the receipts and payments take place, and are carried into account : S. C. per Sir William Grant ; see also Devaynes v.' Noble (Sleech's Case), 1 Mer. 539 ; Palmer's Case, 1 Mer. 624 ; Pemberton v. Oakes, 4 Euss. 154 ; Bank of Scotland, 8 CI. & F. 214. i Agency. Solicitor and Client. Let the following accounts be taken : — 1 . An acconnt of all sums paid or advanced by the Deft to or for the use or on account of the Pit. 2. An account of all sums of money received by or come to the hands of the Deft to or for the use of the Pit or otherwise in respect of any such payments and advances as aforesaid. 3. An account of all dealings and transactions between the Pit and Deft. Let it be referred to the taxing master to tax any bill of costs of the Deft which the Pit is liable to pay. Let the amount of such costs (if any) when so taxed be included in the said accounts. Let the balance due from either of the parties to the other of them be certified. — Adjourn further consideration. — Liberty, to apply. Hichinhotham v. Bisgood, 1848, A. 1019 ; Seton, 1112. Principal and Steward. Let the following accounts be taken : — 1. An account of all the rents and profits of the messuages, lands, tenements, and heredita- ments in the pleadings mentioned received by the Deft, or by any other person or persons, &c., from the — day of — to the — day of — . 2. An account of all the timber and other trees and underwood which during the said period have been cut upon the said lands or any of them, and of the value thereof, and of the moneys arising from the sale thereof. 3. An account of all dividends and interest which during the period of the Pit's being the holder of the shares in — in the Pit's bill mentioned, have been received by the said Deft, or by any other person, &c., and also of all sums for which the said Deft has had credit in account. 4. An account of the land tax which has accrued or been payable to the Pit during the period of his being entitled to the same, and of the moneys received on account thereof by the Defts, or by any other person or persons, &c. — Adjourn further consideration. —Liberty to apply. Hector v. JolUffe, 12 Sim. 398; Seton, 112. Digitized by Microsoft® ACCOUNT. 157 Company and Agent. Let an account be taken of the dealings and transactions of H. S. the testator in the pleadings named on behalf of and with the Defts, the Carron Company, from the 30th of June, 1825, down to the time of his death ;, and in taking such account the books kept by H. S. and proved in this cause are to be admitted as evidence for Pits and Defts. Let the Defts the Carron Company within six weeks from the date of this decree deliver to the Pits a list of such items appearing in the books kept by the testator as agent of the company in London as they desire to have vouched or accounted for. And in taking such account the Pits, as executors of H. S., are to be charged with the items specified, except so far as they §hall in the opinion of this Court properly discharge themselves. Thereupon Let in all other respects the accounts appearing in the said books kept by the said testator as agent of the company in London be treated as settled accounts, with liberty to the Pit and Defts to surcharge and falsify, as they may be advised. And the Defts admitting that on the account, in- tituled, &C.J the sum of £4018 10s. Id. was due from the said company to H. S. at the time of his death, this Court doth not think fit to direct any inquiry as to this account. Let an inquiry be made what shares in the company the testator was entitled to at the time of his death. Let an account be taken of what was due to him from the said com- pany in respect of dividends or bonuses on such shares, and of what has since accrued, and of what is now due from the company to his estate in respect of any such dividends or bonuses. And if on taking the accounts hereby directed it shall appear that at the end of each or any year from the 30 June, 1825, a balance remains due from H. S. to the company, or from the company to H. S., Let the amount of buch balance be stated. — Adjourn further consideration. — Liberty to apply. Stainton v. The Carron Company, 24 Beav. 346, 363. 1 Principal and Agent. It has been said that there must he mutual demands, and that each of the parties must have received and paid money on account of the other : Phillips v. Phillips, 9 Hare, 471. But a bill would lie at any time by a principal against an agent for an account : Makepeace v. Sogers, 11 Jur. (N.S.) 314 ; affirming S. C. 215. A mere general averment, however, of receipts of money by an agent was not sufficient to maintain a bill : Eemings v. Pugh^ 9 Jur. (N.S.) 424. An agent not hound by contract, express or implied, to invest the moneys of his principal, and against vphom no fraud is proved, is not chargeable, with interest upon the .balances certified to be due from him until the date of the chief clerk's certificate : Turner v. Burlcmshaw, L. B.' 2 Ch. 488. Digitized by Microsoft® 158 ACCOUNT. ACCMUKTS BETWEEN TENANT FOE LlPE AND BemAINDEEMAN. Inqmry as to Renewal Term — Computation of Interest. Let an inquiry be made what was the worth of nineteen years of STich term [renewal term twenty-eight years] at the rate E. B. [the deceased tenant for life] paid for the same on the 30th April, 1735 ; and on the sum so found Let compound interest be computed after the rate of £4 per cent, per annum till the death of the said E. B. And upon the sum thereby produced Let simple interest be computed after the like rate. Let compound interest be computed after the rate of £4 per cent, per annum on the sum of £139 5s. paid for the second renewed term of fourteen years from the 12th March, 1868, the time the same was paid, to the 2nd Febniary, 1775 [the date of the death of the tenant for life]. And on the sum so produced Let simple interest be computed at the like rate. Nightingale v. Lawson, 1 Bro. 440. Inquiry as to Menewals, Fines, and Fees. Let an inquiry be made what renewals have been made of the testator's leasehold estates respectively, and when and by whom and out of what funds the fines, fees, and expenses attending such renewals have been paid. Declare that the Deft W. J. as tenant for life ought to contribute to such renewals and to the fines, fees, and expenses attending the same in proportion to such benefit as he has derived or may derive from such renewals, and every or any of them. Let an inquiry be made what sum ought to be paid or secured to be paid by the said Deft W. J. in respect of such his proportion, and what security he ought to give in respect thereof. But this direction as to such security is to be without prejudice to the question whether the Deft W. J. may not ultimately be liable to pay more or less than the sum for which it shall be found that such security ought to be given. Jones V. Jones, 5 Hare, 440. Fines, dc— Value set on Life— Interest. Their Lordships are of opinion that the amount to be paid by the Pit for and in respect of the fines and expenses should be ascertained by reference to the actual enjoyment by W. H. [the tenant for life], and the value to be set upon the life of E. O. [the life agreed to be valued] at the death of W. H., having regard to the agreement to have a value set upon the life of F. G. at the death of W. H., and that com- pound interest should be computed during the life of W. H. at the rate of £4 per cent, per annum with annual rests on the proportion payable by the Pit, and that simple interest at £4 per cent, should be computed for what shall be found due at the death of W. H. for Digitized by Microsoft® ACCOUNT. 159 principal and interest as aforesaid till payment to the Defts [claiming tinder remainderman]. Bradford v. Brownjohn, L. K. 3 Ch. 711. Account of Fines paid on Benewal — Sale or Mortgage. Let an inquiry be made whether the sura of £6650 in the pleadings mentioned to have been paid and advanced by the Pit for the renewal of the said lease, or any other and what sum of money, having re- gard to the situation of the parties interested in the D. Estate at the time of such renewals, ought to have been paid as such fine. Let an inquiry be made what is the amount of the fees and expenses attending the said renewal which have been properly paid and ad- vanced by the Pit. Let an inquiry be made how much of the feaid fine, fees, and expenses with reference to the interest of the Pit in the said estates ought to be borne and paid by him. — Directions for pro- duction upon oath of papers, &c., and examination of witnesses upon interrogatories, &c. Let what shall be found as proper to be borne and paid by the Pit in respect of the said fine, fees, and expenses be de- ducted from what shall be found ought to have been paid for such fine, fees, and expenses upon the said renewal. Let the residue of the said fine, fees, and expenses, together with the costs of this suit [such costs to be taxed, &c.] be raised by sale or mortgage, as shall be most convenient, of the said demised estate with the approbation of the judge. And all proper parties are to join, &c., and to deliver, &c. And in case the said residue of the said fine, fees, and expenses, and the said costs, shall be raised by mortgage It is ordered that the tenant for life of the said estate do keep down the interest of such mortgage out of the rents and profits thereof. Let the money to arise by such sale or mortgage be paid into Court, &c., and be applied, &c. — Liberty to apply. Allan v. Backhouse, 2 V. & B. 70. Appoetioument. As a general rule an entire contract was not apportionable at common law unless expressly stipulated by the parties : Co. Litt. 150 a ; Cutler v. Powell, 6 T. R. 320 ; Appleby v. Bodd, 8 Bast, 300 ; Ea-, ■parte Smyth, 1 Sw. 337, n. But interest, whether the principal is secured by mortgage or by bond, notwith- standing that it is expressly made payable half-yearly, might have been appor- tioned, for though renewed at fixed periods it becomes due de die in diem : Etc parte Smyth, 1 Sw. 349, n. Where on the death of a tenant for life the lease under which the rent was reserved determined, an apportionment is provided for : 11 Peo. 4, c. 19. And all rents-service reserved on a lease by a tenant in fee or for life, or person devising under a power, and all rents-charge and other rents, annuities, pensions, dividends, moduses, compositions, and all other payments made payable or coming due at fixed periods, of every description, under any instrument executed or (in case of a will) coming into operation after the passing of that Act, are to be Digitized by Microsoft® "" 160 ACCOUNT. apportioned whenever the interest of the person entitled to the' same detemiiues by death or otherwise : 4 & 5 Will. 4, c. 22. But in the case of rent reserved by lease of lands or tenements, the apportion- ment is not to be claimed from the party liable under the lease, who is still to make payment of the whole to the party who would have been entitled if the Act had not been passed : ibid. Where the tenant under a lease has been evicted of part of the land out of which the rent issues, by a person having title paramount to that of the lessor, or where part of it has been surrendered by the tenant to the lessor, or where tlie lessor has aliened the reversion as to part, the rent will be apportioned : Co. Litt. 148 a. 'I'he old rule at common law was applicable to all periodical payments be- coming due at fixed intervals, not to sums accruing de die in diem ; and annuities therefore, and dividends on money in the funds, were formerly not apportionable : Rashleiyh v. Master, 3 Bro. C. C. 101 ; Wilson v. Barman, 2 Ves. 672 ; Pearly v. Smith, 3 Atk. 260. But now "all rents, annuities, dividends, and other periodical payments in the nature of income (whether reserved or made payable under an instrument in -writing or otherwise) shall, like, interest on money lent, be considered as accruing from day to day, and shall be apportionable iu respect of time accordingly " : 33 & 34 Vict. c. 35, s. 2. " The apportioned part of any such rent, annuity, dividend, or other payment shall be payable or recoverable in the case of a continuing rent annuity, or other such payment when the entire portion of which such apportioned part shall form part shall become due and payable, and not before, and in the case of a rent annuity or other such payment determined by re-entry, death, or otherwise, where the next entire portion of the same would have been payable if the same had not so determined, and not before " : 33 & 34 Vict. c. 35, s. 3. "The word 'rents' includes rent-service, rent-charge, and rent-seek, and also tithes and all periodical payments or renderings in lieu of or in the nature of rent or tithe. The word ' annuities ' includes salaries and pensions. The word ' divi- dends ' includes (besides dividends strictly so called) all payments made by the name of dividend, bonus, or otherwise out of the revenue of trading or other public companies, divisible between all or any of the members of such respective companies, whether such payments shall be usually made or declart'd at any fixed times or otherwise '' : 33 & 34 Vict. c. 35, s. 5. A mortgagee who is not iu possession is not an assign of the mortgagor within the meaning of the Apportionment Act of 4 & 5 Will. 4, c. 22, s. 2 : Be Marquis of Anglesey's Estate, L. R. 17 Eq. 283. Where a testator seised in fee devised real estate by a will dated before the Ap- portioimient Act, 1870, and confirmed by a codicil dated after the Act, it was held that the rents were apportionable between the executor and devisee : Gaprcn v. Capron, L. E. 17 Bq. 288. And the Act applies to all instruments, whether coming into operation before, or not till after the passing of the Act : Be Cline's Estate, L. K. 18 Eq. 213. Where a testator bequeathed the dividends and income of his share and interest in a private trading partnership to A. for life, and after his death to his daughter absolutely, and died in October, 1870, the profits realized during the year 1870 were held not to be "dividends" or "periodical payments" within the Appor- tionment Act, 1870 : Jones v. Ogle, L. K. 14 Eq. 419 ; S. C, L. 11. 8 Ch. 192. In many cases the Court of Chancery has directed an apportionment .where it Digitized by Microsoft® ACCOUNT 161 would not have been given at Common Law. Thus the premium paid by an apprentice has been ordered to be apportioned upon the bankruptcy of the master: Hale V. Webl, 2 Bro. C. C. 78 ; Ex parte Sandby, 1 Atk. 149 ; Hirst v. Tdson, 13 Jur. 596. So, too, in the case of a premium paid by an attorney under articles of clerk- ship : Newton v. Rowse, 1 Vern. 460. And where money is to be laid out in land if the party who is entitled to the land in fee when purchased dies before it is purchased, the money being in the meantime secured on mortgage, and the interest payable half-yearly, the interest will be apportioned in Chanceiy between the heir and the administrator of the party so entitled, if he dies before the half-yearly payment is due : Story, 10th ed. vol. i. p. 479 ; Edwards v. Countess of Warwick, 2 P. Wms. 176 ; affirmed 2 Bro. P. C. 494. And where portions are payable to daughters at eighteen or marriage, and until the portions are due maintenance is to be allowed, payable half-yearly at specific times, if one of the daughters come of age in an intermediate period the mainte- nance will be apportioned in equity : Hay v. Palmer, 2 P. Wms. 501. Where a leasehold for lives or years is renewed by a person having a limited interest in it, the Court wQl not allow him to retain the benefit for himself exclu- sively, and the remainderman must reimburse him : Nightingale v. Lawson, 1 Bro. C. C. 442 ; Bradford v. Brovmjohn, L. E. 3 Oh. 711. There is no difference in principle between the apportionment of fines for re- newal in leases for lives and leases for years : Jones v. Jones, 5 Hare, 440. In the absence of express stipulation to the contrary the fines and expense of renewal are to be borne by the tenant for life and remainderman in proportion to their actual enjoyment of the estate, and not in proportion to an enjoyment to be determined by a calculation of probabilities : Jones v. Jones, 5 Hare, 440; White V. White, 9 Ves. 554; Bradford v. Brmvnjohn, L. E. 3 Oh. 711 ; Order, p. 158. Compound interest is computed ou the proportion attributable to the remain- derman up to the death of the tenant for life, and simple interest from that time until payment : S. 0. Contribution. Sureties — Snit hy Surety. It being admitted that the balance due from T, D. (the principal) amounts to the sum of £3883 14«. 8d., Declare that the Pit Sir E. D., and the Defts the Earl of W. and Sir J. E., ought to contribute in equal shares to the payment of that sum. Let the Pit Sir E. D., and the Defts the Earl of W. and Sir J. E. respectively, pay the sum of £1294 lis. 7d., being one-third of the said £3883 14«. 8d., in discharge of the said sum. Upon payment let satisfaction be entered upon the record, &c. Let the bonds be delivered up, &c. Bering v. Lord WinchUsea, 1 Cox, 318. ' Sureties — Suit hy Executors of Surety. Let an account be taken of all sums of money paid by W. the testa- tor in the pleadings named and the Pits, his executors, or either of them, pursuant to the undertaking in the pleadings mentioned. Let Digitized by Microsoft® m 162 ACCOUNT. interest be computed on such sums of money at the rate of £4 per cent, per annum from the times the several payments were made. Tax the Pits their costs of this suit. Let the Deft W. pay to the Pit one moiety of what shall be certified to be due for principal and interest as aforesaid, together with their costs of this suit when so taxed, within, &c. Let the Deft W., within, &c., pay to the Pits the other moiety of what shall be certified to be due for principal and interest as aforesaid, and also pay to the Deft W. the principal and interest hereinbefore directed to be paid by him to the Pits, together with the costs of the said Deft Wi, to be taxed, &c., and also the costs which he shall pay to the Pits under the directions hereinbefore contained.— Liberty to apply. Lawson v. Wright, 1 Cox, 276 ; Seton, 662. Sureties — Joint Liability — Deed to he cancelled. Declare that the Pit is in equity discharged from all liability under the indenture dated the 22nd July, 1849, in the Pit's bill mentioned, the said indenture not having been executed by W. B. who is named as one of the sureties in the said indenture. Let the said indenture be, so far as the Pit is concerned, set aside and cancelled.^ — Defts to pay Pit's costs of suit. — Liberty to apply. Evans v. Bremridge, 2 K. & J. 174. Contribution. If a tenant in tail in possession pays off an incumbrance it will ordinarily be treated as extinguished, and the remainderman cannot be called upon for contri- bution unless the tenant in tail has done some act which imports a positive intention to hold himself as a creditor upon the estate : Story, 485. But this doctrine does not apply to a tenant in tail in remainder, whose estate may be altogether defeated by the birth of issue of another person. Nor, a fortiori, to the case of a tenant for hfe paying off an incumbrance : Ibid. "Where the tenant for life and remainderman join in a sale, the old rule was that the tenant for life should be paid one-third and the remainderman two-thirds of the purchase-money : Brent v. Best, 1 Vem. 69 ; Thynn v. Ikivall, 2 Vem. 117. But the present rule is that each party's interest should be calculated according to the tables respecting the probabilities of life. So, too, in the discharge of incumbrances the proportion to be paid by the tenant for life depends upon the value of his life, to be calculated by the tables ; Wliite V. Wiite, 4 Ves. 33 ; 9 Ves. 554 ; Allan v. Buckhouse, 2 V. & B. 70, 79 ; Jac. 631. The tenant for life of an equity of redemption is bound to keep down the interest of a mortgage debt : White v. White, 4 Ves. 24, 32. An adult tenant in tail is not bound to do so ; Chaplin v. Chaplin, 3 Atk. 234. But if the tenant in tail be an infant, the guardian or trustee is bound to keep down the interest : Sergison v. Sealey, 2 Atk. 416 ; Amesburu v Brdum 1 Ves 479. And where a mortgagee, having permitted the tenant for life to run in arrear Digitized by Microsoft® ACCOUNT. 163 for interest, purchases the estate for life, and takes possession, he is hound to apply the surplus rents and profits beyond the current interest in discharge of the arrear : Penrhyn v. Eughes, 5 Ves. 99. The doctrine of contribution amongst sureties is not founded in contract, but is the result of general equity, on the ground of equality of burden and benefit : Bering v. Lord Winchehea, 1 Cox, 318, n. Therefore where three sureties are bound by different instruments, but for the same principal and the same engagements, they are liable to contribute : S. C. As a general rule the surety is entitled to the benefit of all the securities which the creditor has against the principal. Where, therefore, a bond is given by principal and surety, and at the sailie time a mortgage is made for securing the debt, the surety if he pays the bond has a right to stand in the place of the mortgagee : Oopin v. Middleton, T. & B. 224 ; see also Hodgson v. Shaw, 3 My. & K. 183. But the rule only applies to such securities as are subsisting securities when the debt is paid. Therefore where two persons execute a bond, the one as principal and the other as surety, and no other assurance is executed at the time, the surety paying the bond debt extinguishes the debt, and ranks only as a simple contract creditor of the principal : Copin v. Middleton, supra. And an assignment of the bond executed to a trustee for the surety at the time when the surety pays off the debt, will not keep alive the instrument so as to to make the surety in equity a specialty creditor of his principal : Jones v. Davids, i Euss. 277. Where one of the sureties to a bond dies, his representatives may be made to contribute his share to the surviving surety who has paid the debt : Primrose v. Brmnley, 1 Atk. 88. If the sureties are bound by different instruments for equal portions of a debt due from the same principal, and the suretyship of each is a separate and distinct transaction, there is no right of contribution between them : Coope r. Twynam, Turn. & Buss. n. Nor is there contribution in favour of one surety by another, where the engage- ment is not as co-surety but as a distinct collateral security, limited to default of payment by the principal and the other surety : Oraythorne v. Smnburne, 14 Ves. 160. It has been said that the discharge of a surety by the creditor has not the effect of a discharge of the principal without reserve, and therefore a co-surety is not discharged : Ex parte Qifford, 6 Ves. 805. But this decision was overruled : Nicholson v. Revill, 4 Ad. & E. 675 ; Evans v. Bremridge, 2 K. & J. 174. The relief granted in equity to one of two sureties whose position has been altered by the acts of the creditor, is to have the deed delivered up to be can- celled : Underhill v. Horwood, 10 Ves. 225 ; Rice v. Gordon, 11 Beav. 265 ■ Evans v. Bremridge, 2 K. & J. 174 ; Order, p. 162. Where a security on a bond to secure a money debt was secured by another bond of indemnity entered into by the principal debtor's father, who died, the cre- ditor having appUed to the surety, the surety was held entitled to maintain a bill against the executors of the principal debtor, although the surety had made no actual payment : Wooldridge v. Norris, L. B. 6 Eq. 410. Although the giving up of a security is not in itself a release of the debt, yet when it is given up with a clearly expressed intention of releasing the debt it may amount to a release even at law : Taylor v. Manning, L E. 1 Ch. 48. And notwithstanding the rule that where there is no release of a debt at law Digitized by Microsoft® '^ 2 164 ACCOUNT. there is none in equity, there may be considerations which would prevent the debt from being enforced in equity, although subsisting at law : S. C. A surety who has executed a bond on the faith of its being executed by the principal debtor also, cannot be released from his obligation on the ground that the principal has never executed it, if the principal has executed an instrument on which the surety may sue him and become a specialty creditor of his : Cooper v. Evans, L. B. 4 Bq. 45. ACCODNT OF EeNTS AND PROFITS. Courts of Equity when resorted to for the purpose of an account of mesne pro- fits, will in many cases consult the principle of convenience, and will therefore sometimes decree it where the party has not established his right at law : 1 Fonb. Eq. ch. 3, s. 3. And where a judgment creditor has had his execution levied upon the real estate of the judgment debtor, an account of the rents and profits may be directed in order to see whether the debt has been satisfied : Story, vol. i. 520 ; Yates v. Hamlley, 2 Atk. 362 ; Owen v. Griffith, 1 Ves. 250. So too, where a stranger enters upon the lands of an infant, and takes the rents, he will be treated as a trustee or guardian for the infant, and compelled to account : Newhurgh v. Bicherstaffe, 1 Vern. 295 ; Garey v. Biaiie, 2 Vem. 342 ; Bennet v. Whitehead, 2 P. Wms. 644 ; Dormer v. Fortescue, 3 Atk. 129 ; Pulteney v. Warren, 6 Ves. 88 ; Bdbertson v. Norris, 5 Jur. (N.S.) 1238. To support a bill for an account in respect of waste the bill should have prayed for an injunction as well as the accoimt required : Jesus Gollege v. Bloome, 3 Atk. 282 ; Bichards v. Nolle, 3 Mer. 673 ; see also OaHh v. Cotton, 3 Atk. 751. And upon a bill for an account of mesne profits there must either have been a difficulty in recovering possession at law, or fraud, or concealment : Pulteney v. Warren, 6 Ves. 89 ; Bishop of Winchester v. Knight, 1 P. Wms. 406. The lord of a manor may sue for an account of ore dug or timber cut against the representations of a copyholder who has committed waste : Bishop of Win- chester V. Knight, 1 P. Wms. 406. And manorial rights are not confined to minerals. The lord of the manor has against the tenants of the manor the right not only to coal but to everything under the earth, whether it properly comes within the term " minerals " as used in the direct sense, or in the general sense : Lord Basse v. Wainmain, 14 M. & W. 859 ; S. C. on appeal, 2 Ex. 800. But upon an exception by a vendor from a grant of lands in fee of " mines and seams of coal, and other mines, metals, or minerals," a stratum of freestone (freestone being worked by quarrying in the locality) was held not to be within the exception : Bell v. Wilson, 11 Jur. (N.S.) 437 ; 12 Jur. (N.S.) 263. Where there has been an adverse possession without fraud or concealment, and upon an application to equity the pit appears entitled to an account of rents and profits, the account will be taken only from the filing of the bill : Drummond V. Dulce of St. Albans, 5 Ves. 433, 439. The tenant for life of an estate is liable to account in equity for profits derived by him from an improper use of his legal powers in committing equitable waste : Morris v. Morris, 3 De G. & J. 323, 328. But where a tenant for life without impeachment for waste pulled down the mansion-house, building another, and using the old materials, and there being no evidence of a sale or profit made by the old materials, an account against the Digitized by Microsoft® ACCOUNT. 165 tenant for life was refused : S. C. But see Morris v. Morris, 15 Sim. 505 ; 11 Jur. 196 ; Buhe of Leeds v. Amherst, 2 Ph. 117 ; Micldethwaite v. Micklethwaife, 1 De G. & J. 504. Tithes. An account of tithes is consequential upon the legal right. Therefore, where the evidence throws doubt upon that right, the account wiE not be directed till the right is established at law : Foxcroft v. Parris, 5 Ves. 221 ; Waterford V. Knight, 9 Jur. 335. If there has been an adverse retainer of tithes, and the production of old in- struments lends a colour to the title, although the grant itself is not produced, the Court will not interfere even on behalf of a spiritual rector without he prove his title at law : Fanshaw v. JRotheram, 1 Eden, 276 ; Hughes v. Davies, 5 Sim. 331, 350 ; Waterford v. Knight, supra. But mere non-payment and retainer alone are not sufficient evidence to induce a Court to presume that such a grant existed : Strutt v. Baker, 2 Ves. 625 ; Berney v. Harvey, 17 Ves. 119 ; Meade v. Norbury, 2 Price, 338 ; 8. C. on appeal, 3 Bli. 211! Evidenqp which is sufficient to imply a grant as against the pit as lay rector .will be sufficient to imply it as against a pit who is spiritual rector : 1 S. & S. 415, 418. Modus. A bill to establish a customary payment in lieu of tithes could not be main- tained where the deft has not sought to enforce his right to tithes by suit or action : Lord Coventry v. Burslem, 2 Aust. 567 ; Gordon v. Simpkinson, 2 Ves. 508. The pit in such a case is not entitled to discovery unless he is entitled to relief : Gordon v. Simpkinson, sv/pra. To a bill to establish a customary payment in lieu of tithes the ordinary must have been a party : S. C. Customary payment in lieu of tithes need not be immemorial. But the defence to a bill for tithes was not sufficient if it merely proved that a less sum than that claimed by the pit is due.' A certain less sum must be established : Warden, &c. of St. Paul's V. Morris, 9 Ves. 155 ; 14 Ves. 607. Digitized by Microsoft® ( 166 ) CHAPTER XX. PAETNEESHIP. Inquiry as to Existence. Let an inquiry be made whetlier or not there was any and what partnership between Gr. deceased in the pleadings named and the Deft, and if so when the same commenced, and whether the same ever and when determined, and under what circumstances. — Adjourn further considera,tion. Maynes v. Maynes, 1860, A. 2187 ; Seton, 541. Sale — Inquiry if beneficial, and as to Mode. Let an inquiry be made whether it will be for the benefit of all parties concerned in the works situate, &c., that the same should be sold, and in what manner, as going works, or that they should be parried on for the purpose merely of winding up the concern. Graw- shay V. Maule, 1 Sw. 529, jper Lord Eldon. Dissolution — Inquiry if beneficial to Infants. The Defts the executors, by their counsel, declining to carry on the testator's business in the pleadings mentioned. Let an inquiry be made whether it will be for the benefit of the Pits the infants that the terms offered by the Deft S. for dissolving the partnership in the pleadings mentioned should be accepted, or that such partnership should be dissolved on any and what other terms. ^Bolme v. Snout, 1827, A. 2067 ; Seton, 656. Insanity — Recovery alleged — Inquiry. Let an inquiry be made whether the Deft Bennet is in such a state of mind as to be able to conduct the business in partnership with the Pit according to the articles of partnership, and how long he has been BO. Sayer v. Bennet, 1 Cox, 107. Bankruptcy — Inquiry as to Profits made subsequently. Let an inquiry be made whether there were any and what profits made since the — day of — [the date of bankruptoyj by any or what Digitized by Microsoft® PARTNERSHIP. 167 Tise or application of or by means of the stock-in-trade and capital of the partnership business. Liberty to state specially any circnmstanees relative to the stock and capital existing on the — day of — , or as to any profits made since, or as to any contract with Government, or as to the patents, or any profits made from such contracts or by the use of the said patents. Crawshay v. Collins, 16 Ves. 230 ; Featherstonhaugh, V. F&nwick, 17 Ves. 298, 314. Decree for Accouitt. Common Form. Let an account be taken of all partnership dealings and transactions between the Pit and Deft from the — day of — . Let what on taking the said account shall be certified to be due from either of the said parties to the other of them be paid within one month from the date of the chief clerk's certificate by the party frord whom td the party to whom the same shall be certified to be due. — -Liberty to apply. Decree for Dissolution — Account. Declaee that the partnership between the Pit and Deft in the pleadings mentioned ought to be dissolved as from the — day of — , and decree the same accordingly. Let the following accounts be taken : — 1 . An account of all partnership dealings and transactions between the Pit and Deft from the — day of — . 2. An account of the credits, property, and efiects now belonging to the said partnership. Any settled account not to be disturbed. — Further consideration adjourned. — Liberty to apply. Sale — Beceiver — Special Accounts. Declare that the co-partnership property and effects in the plead- ings mentioned ought to be sold, and Let the same be sold accordingly with the approbation of the judge. Let the money to arise by such sale be paid into Court to the credit of, &c. Let, in the meantime and until such sale be had, the Deft Greenwood be appointed [upon first giving security] receiver and manager of the co-partnership property and efiects, and take and have the superintendence and carrying on of the said co-partnership trade, and get in the outstanding debts and efiects belonging to the said co-partnership, and be allowed aU. his just and reasonable costs, charges, and expenses in and about the same, but without any salary. Let an account be taken of the co- partnership dealings and transactions; and in taking such account the capital which each of the partners had in the trade at the time of the bankruptcy of William EUis, and which of the co-partnership debts have been since paid, and by whom, and out of what fund, Digitized by Microsoft® 168 PARTNERSHIP. without prejudice to any question between the parties, and with liberty for either party to apply specially as to the same. Let the Pit and the Deft "Whitaker deliver over to the Deft Greenwood all the stock, goods, effects, books, and accounts belonging to the said co- partnership. Deft Greenwood to be at liberty to bring actions, &c., and to be indemnified, &c. Balances to be paid into Court. Wilson v. Greenwood, 1 Sw. 471, 483. f Partnership in Ships — General Accounts. Let an account be taken of all dealings and transactions between the Pit and Deft relating to the ship — and the cargo on board the same, and of all sums of money received and paid by the Pit or Deft, or either of them, on account thereof. Settled accounts not to be disturbed. — Further consideration adjourned. Strong v. McGlasson (V.-C. K.), June 12, 1857 ; Seton, 559. Account of Freight and Profits. An account of all sums of money which have arisen from the freight of the ship — , and the profits made by the said ship or otherwise on account of the said ship during her voyage to — , and of the several sums of money received by — or by any other person or persons on account of such freight and profits. Harrington v. Dale, 1806, A. 868 ; Seton, 560. Inquiries as to Sales. An inquiry whether any and what sale or sales has or have been at any time or times, and when, made of the said ship, or any and what part or parts thereof, and to whom and by whom and for what price or prices respectively. An inquiry whether such sale or sales was or were a fair sale or sales, and if not what was the value of the said ship, and a fair and reasonable price to be given for the purchase thereof at the time of such sale or sales. Gox v. Ghubh, 1771, A. 430 ;. Seton, 559. Inquiry as to Commission. An inquiry whether according to the custom or usage of trade, as between shipowners or otherwise, the Pit and his late partner, as managing owners of the said ship, were entitled to be paid any and what commission in respect of duties performed by them with respect to the voyages of the said ship. Smith v. Lays, 3 K. & J. 105 ; Seton, 560. Deceased Partner — Accounts. Leu an account be taken of all partnership dealings and transac- tions between .1. W. deceased, the testator, and the Defts. Let what Digitized by Microsoft® PARTNERSHIP. 169 on taking the said account shall appear to he due from the Defts be answered by them personally, and what shall" appear to be due from the testator be answered by the Pits as the executors of his will out of his assets. And in case the Pits shall not admit assets of the testator come to their hands, Let an account be taken of the per- sonal estate of the said testator come to the hands of the Pits or either of them, or to the hands of any other person or persons by their or either of their order or use. Settled accounts not to be disturbed. — Further consideration adjourned. Similar Order — Special Accounts. Declare that the partnership between the testator F. and the Deft M. was dissolved by the death of the said F. on the — day of — . Let the following accounts be taken : — 1. An account of the partnership dealings and transactions between the testator and the Deft. 2. An account of the credits, property, and effects of the partnership at the testator's death. 3. An account of the partnership debts and liabilities at the time of the testator's death. 4. An inquiry what has since become of the partnership property, and whether any and if any what parts thereof remain in specie or outstanding and undisposed of. 5. An inquiry whether any and which of the partnership debts and liabilities have been since paid or satisfied, and by whom and out of what fund. Let such of the partnership property and effects as shall remain in specie be sold with the approbation of the judge, and the money to arise by such sale paid into Court to the credit, &c. — Adjourn further consideration. Sirtzel v. Mules, 1858, A. 1857 ; Seton, 548. Deceased Partner — Accounts and Inquiries— Sale as going Concern — Liberty to hid — Allowances. Let the following accounts and inquiries be taken and made : — 1. An account of all dealings and transactions between J. deceased, the testator in the pleadings named, and the Deft up to the death of the testator in respect of the partnership, &o., any settled account not to be disturbed. 2. An account of the receipts and payments, deal- ings, and transactions of the Deft in respect of the said partnership subsequent to the testator's death. 3. An inquiry what sums have been paid by the Deft to the Pits as the executors of the testator in respect of the said business or the testator's capital therein since the testator's death. 4. An inquiry what amount of capital the Pits, as Digitized by Microsoft® 170 PARTNBESHIP. such executors and the Deft respectively, had at the testator's death, and have since from time to time continued to have in the said business. 5. An account of the profits of the said business since the testator's death. 6. An inquiry whether the Pits, as executors of the testator, are subject to any and what liability in respect of any covenants or agreements contained in any lease or leases of the pre- mises in the pleadings • mentioned, on which the said business was carried on, and whether any and what provisions ought to be made for the indemnity of the Pits in respect of such liability. 7. An account of the leasehold property, stock-in-trade, tools, fixtures, and other property and effects belonging to the said partnership at the death of the testator, and of what the same now consist. Let the said business and leasehold property, stock-in-trade, tools, fixtures, and other property and effects belonging to the said business and the goodwill thereof be sold as a going concern. And any of the parties to this cause (except the party having the conduct of such sale) are to be liberty to bid and become a purchaser or purchasers at such sale. And in taking the said accounts the Deft is to be at liberty to sub- mit any claims as just allowances which he may be advised ought to be made to him by reason or on account of his services in managing, transacting, and carrying on the said business since the death of the testator. — Further consideration adjourned. MaOieio v. Jenncms, 1859, B. 386 ; Seton, 552. Deceased Partners — Separate Estate made liable after Payment of Separate Detts to Partnership Debts. Declare that the surplus of the [separate] estate of the testator A., after satisfying his funeral and testamentary expenses and his sepa- rate debts, was liable in equity at the time of his death to the joint debts then due from the testator and B. the surviving partner in respect of the partnership heretofore carried on by them under the firm of P. & Co. But this order is without prejudice to the liability of the said B. [the survivor] to the said joint debts as between himself and the said testator's estate. Let the following accounts be taken : — 1. An account of what was due to testator's separate creditors. 2. An account of funeral expenses. 3. An account of what was due at the death of the testator from the said partnership of P. & Co. to the creditors of the said partnership, and what is now due in respect of such debts. 4. and 5. Inquiries as to testator's leasehold and personal estate. Let the testator's personal estate be applied in payment of his separate debts and funeral expenses in a due course of administration. Digitized by Microsoft® PARTNEESHIP. , 171 and then in payment of the joint debts of the pai-tnership. If per- sonalty iDsiifficient, inquiry as to realty. Mills v. McBae, 9 Hare, 297. PartnersMp Agreement — Capitals of Partners — Division of Assets — Inquiries. Declare that according to the true construction of the articles of partnership in the pleadings mentioned the assets were applicahle and ought to he applied first in payment of all debts due and owing by the partnership other than to the partners themselves, and that subject to the payment of the said debts the assets were applicable and ought to be applied in payment to each or either of the partners of any sums which he, with the consent of the other of them, has lent or brought into the joint stock trade (not being accumulation of profits) beyond the amount of capital by the said articles agreed to be brought in, together with interest in respect thereof after the rate of £5 per cent, per annum. Declare that after payment of all the debts due and owing by the said partnership other than to the partners themselves, and after the pay- ment of all such sums as have been so lent or brought into the co-partnership as have not since been repaid, together with such interest thereon respectively as aforesaid, the surplus assets of the said partnership ought to be divided rateably between the Pit and the said Deft according to the amounts of their respective capitals in the said partnership at the date of the dissolution thereof on the 25th De- cember, 1862. Let an inquiry be made whether both or either and which of the partners did with the consent of the other of them lend or bring into the said joint stock trade in aid of the capital thereof any, and if any what, sum or sums of money, and whether any and what sum or sums has or have been and when retained by or repaid to the said partners respectively, or either and which of them, in respect of such moneys so lent or brought in as aforesaid, and what (if anything) is now due to the said partners, or either or which of them, in respect of the said moneys, having regard to the declarations aforesaid. And the Deft admitting that the sum of £1137 16s. 4d. in the chief clerk's certificate mentioned forms part of the partnership assets, Let the Deft account for the same as part of such assets accordingly. Let the £437 16«. 2d. Bank £3 per cent. Annuities^ on the credit of the cause Wood v. Scales, and the £12 18«. 4d. cash on the like credit, and any interest to accrue on the said Bank Annuities, be transferred and paid to the Deft Scoles, he undertaking to account for the same as part of the partnership assets. Let the said Deft retain the sum of £60 and interest in the articles of dissolution mentioned. Eetnrn Digitized by Microsoft® 172 PARTNBESHIP. appeal deposit. — Further consideration adjourned, to be heard before the Lord Justice S. — Liberty to apply. Wood v. Scales, L. E. 1 Ch. 369. Division of Assets — Capital of Partners. Deolaee that interest ought not t^j be allowed upon the amounts of capital of the partners on the 20th June, 1861 [date of decree for dissolution]. Let an inquiry be made how much of the £40,394 H«. lid. Bank £3 per cent. Annuities remaining on the credit of the cause of Watney v. Wells is required to pay up the capitals' of the Pit and Deft respectively, and how much of the said Bank Annuities and of £595 6«. 5d. cash on the credit of the said cause is the result of accu- mulations from dividends upon so much of the said Bank Annuities as will represent the capitals of the Pit and Deft respectively ; and the residue (if any) which will remain of thesaid Bank Annuities and cash after appropriating the said capital and accimiulations is to be certified and divided into moieties. AfBrm the declaration of the Master of the Eolls that the Pit and Deft are entitled respectively to so much of the said Bank Annuities as consists of interest and accu- mulations from the investment of their respective capitals. Declare that if after fully paying the capital of the parties respectively, and apportioning the accumulation, to the capital producing them, there shall be any surplus of the said Bank Annuities and cash, such surplus is to be divided between the Pit and Deft equally. — Adjourn further consideration. — Liberty to apply.^ Watney v. Wells, L. E. 2 Ch. 250, 254. Deceased Partner — Survivors Bankrupt — Accounts — Suit by Creditor. Accounts and inquiries in respect of the estates of testators John Devaynes and William Devaynes, and Let the following accounts be also taken : — 1. An account of what was due at the time of the death of William Devaynes, deceased, from the partnership of William Devaynes, de- ceased, J. Dawes, W. Noble, E. H. Croft, and E. Barwick, to the Pit Sir Thoriias Baring, as executor of J. Wigglesworth, and to Sir Fre- derick Standish respectively, and also what was due to all such other persons as were creditors of the said partnership at the time of the death of the said testator William Devaynes. 2. An account of what is now due from the said partnership to the Pit Sir Thomas Baring as such executor and to the said Sir P. Standish respectively, and to all such other persons as were creditors of the said partnership at the time of the death of the said William Devaynes. Directions to com- pute interest on debts carrying interest. 3. An inquiry whether the said Pits and creditors or any and which of them continued to deal with the said John Dawes, William Noble, E. H. Croft, and E. Bur- Digitized by Microsoft® PAETNEESHIP. 173 wict after the death of the said William Devaynes. 4. An inquiry what sum or sums of money was or were paid by the said surviving partners to the said Plaintiffs and creditors respectively from the death of D. to the bankruptcy of the said surviving partners, and what has been since received by the said Pits and creditors re- spectively. 5. An inquiry whether the said Pits and creditors or any and which of them have by such subsequent dealing released the estate of the said William Devaynes from the payment of their re- spective debts, or what, if anything, remains due in respect thereof. — Further consideration adjourned. Devaynes v. Noble, 1 Mer. 530. Dissolution of Partnership — Return of Premium. Let that part of the decree dated 8th December, 1866, which directs that so much of the Pit's bill as seeks a return of the premium therein mentioned should stand dismissed out of this Court without costs be reversed. And instead thereof Declare that the Pit is entitled to a return of the £556 being such a part of the £800 in the pleadings mentioned as bears the same proportion to the said £800 which the period of time between the 16th February, 1866, and the 1st January, 1871, being the day on which the term of seven years in the agree- ment in the Pit's bill mentioned would have expired, bears to the whole term of seven years. Let the £20 appeal deposit be repaid, &o. Alwood V. Maude (L.JJ.), March 11, 1868. Partners to he credited with Interest on Sums advanced — To he debited with Interest on Sums drawn — Mests. Let in taking the accounts under the decree dated, &c., the Pit and and Deft respectively, and in respect of the period antecedent to the dissolution of partnership, be credited with interest at the rate of £5 per cent, per annum on all sums from time to time during that period advanced by them respectively on account of their respective shares of the capital required for carrying on the partnership business, or ad- vanced or lent to or left in the co-partnership by either of them with the consent of the other of them. Let them in like manner be debited with interest at the same rate on all sums from time to time during the same period drawn by them respectively out of the said partner- ship for their own respective use ; such accounts in respect of the period aforesaid being taken with annual rests according to the course and usage of the said co-partnership on the 26th December in every year subsequent to the date of the last settled account, and a final rest being made on the 11th December, 1867, the day of the dissolution of the said partnership. Direct that from and after the 1 1th December, 1867, the Pit and Deft respectively are to be credited with simple Digitized by Microsoft® 174 PARTNERSHIP. interest on the balances due to them respectively from the partner- ship on the day of the dissolution, or on so much of the said balances as may not from time to time have been afterwards satisfied by moneys received and retained by them or either of them to their own respec- tive use out of the partnership assets at the rate of £5 per cent, per annum, without annual rests, Barfield v. LougJiborough, L. E. 8 Ch. 1. Paetneeship. The Court will decree specific performance of a contract to enter into a partner- ship for a specific term of time, and to furnish a share of the capital stock : Orawshay v. Maule, 1 Sw. 511, and note. And will in like manner enforce other agreements made in the partnership articles : Story, 10th 'ed. vol. i. p. 659 ; Somerville v. MacJcay, 16 Ves. 382 ; Lingen v. Simpson, 1 S. & S. 600. In most cases a Court of Equity will not decree partnership accounts unless there has been a dissolution, or a dissolution is prayed : Forman v. Homfray, 2 v. & B. 329, per Lord Eldon ; Russell v. Luscomhe, 4 Sim. 8. But see also HaYrison v. Armitage, 4 Mad. 143 ; Walworth v. Edit, 4 My. & Cr. 619 ; Shep- pwrd V. Oxenford, 1 K. & J. 491. Where the dissolution has taken place an account will not only be decreed, but if necessary a manager or receiver appointed to close the partnership business and sell : Story, 10th ed. vol. i. p. 663 ; Orawshay v. Maule, 1 Sw. 506, 523 ; Peacock Y. Peacock, 16 Ves. 57 ; Featherstonhaugh v. Femoick, 17 Ves. 298 ; Wilson v. Oreenwood, 1 Sw. 471. Where a suit is instituted for the dissolution of a partnership, and all or some of the parties have a right to dissolution, a sale may be ordered upon an interlo- cutory motion : Orawshay v. Maule, 1 Sw. 506, 523. Where no term is expressed or implied for the duration of a partnership the partnership may be terminated immSdiately by either party without previous notice subject to account: Orawshay v. Maule, 1 Sw. 508, 522; Peacock v. Pea- cock, 16 Ves. 49, 57 ; Featherstonhaugh v. Fenwick, 17 Ves. 300. But the Court will interpose by injunction to restrain a sudden dissolution when such dissolution would he injurious : Ohavany v. Van Sommer, 1 Sw. 512, note. Although a partnership be entered into for a term of years, it is previously dis- solved by the death of either of the partners unless there he express stipulations to the contrary : Orawford v. Hamilton, 3 Madd. 251 ; Orawshay v. Maule, 1 Sw. 508. And the purchase of a leasehold interest of a longer or shorter duration than the partnership term is not a circumstance from which it is to be inferred that the partnership is to continue as long as the lease : Orawshay v. Maule, supra. When a partnership is dissolved by the bankruptcy of one partner the assignees are entitled beyond an account and distribution of stock, &c., to a participation of subsequent profits made by the other partners trading with the capital as con- stituted at the time of bankruptcy : Orawshay v. Oollins, 15 Ves. 218. The consequence of a dissolution of pai-tnership where there are no articles pre- scribing the terms is a general sale and account of the joint property : Featherston- haugh V. Fenwick, 17 Ves. 298. One or more partners cannot upon dissolution of the partnership insist on taking the share of another at a valuation : S. C. Digitized by Microsoft® PARTNERSHIP. 175 Equity has jurisdiction to decree a, dissolution of partnership hefore the natural expiration of the term. Such a dissolution may be ordered upon the ground that the partnership cannot be carried on according to the true meaning of the articles of partnership : Baring V. Dix, 1 Cox, 213 ; or, owing to the conduct of the parties : Waters v. Taylor, 2 V. & B. 299 ; Harrison v. Tennant, 21 Beav. 482. Dissolution of partnership may also be ordered upon the ground of insanity of one of the partners : Anon., 2 K. & J. 441 ; Waters v. Taylor, 2 V. & B. 303 ; Sayer v. Bennet, 1 Cox, 107 ; Pearce v. Chamberlain, 2 Ves. 34 ; Besch v. Frolioh, 1 Ph. 174. So, too, in the case of gross misconduct in one of the partners : EsseU v. Hay- ward, 6 Jur. (N.S.) 690. But upon a bill to dissolve a partnership upon the ground of insanity, the Court ' will not make its decree retrospective, even to the filing of the bill : Besch v. Frolich, 1 Ph. 174. The distinction between joint and separate assets applies to the administration of the assets of a deceased partner as well as to administration under bankrupt- cies : Ridgway v. Clare, 19 Beav. 111. The creditors of the partnership are entitled to be first paid out of the joint or partnership estate, and the separate creditors to be first paid out of the separate estate of each partner. If surplus of the separate estate of either partner after paying the separate debts, such surplus is applied towards the debts of the part- nership, and vice versa : Twiss v. Massey, 1 Atk. 67 ; Ex parte Cook, 2 P. Wms. 500 ; Hx parte Elton, 3 Ves. 240 ; Ex parte Clay, 6 Ves. 833 ; Campbell v. Mullett, 2 Sw. 574 ; Gray v. Chiswell, 9 Ves. 118 ; Hutton v. Morrison, 17 Ves. 205. In the administration of the assets of a deceased partner where both partners are solvent, there is no distinction between joint and several creditors. They are all paid, and in taking the partnership accounts the joint debts thus paid will be allowed in account by the surviving partner : Ridgway v. Cla/re, 19 Beav. 111. If one of the partners dies and the survivor becomes bankrupt, the joint estate is administered in payment of the joint creditors, who until paid in fuU have a claim upon the separate estates after payment of the separate debts : Cowell v. Syhes, 2 Russ. 191 ; Campbell v. Mullett^ 2 Sw. 574 ; Ex parte Ruffin, 6 Ves. 125; Ex parte Kendall, 17 Ves. 514; Oray v. Chigwell, 9 Ves. 118. And if there bd no bankruptcy the creditors of the partnership may resort at once to the assets of the deceased partner, leaving his executors to their remedy against the surviving partner : Devaynes v. Noble, 2 Russ. & My. 495 ; see order, p. 173 ; Wilkinson v. Henderson, 1 My. & K. 582 ; Thorpe v. Jackson, 2 T. & C. 553 ; SleecKs Case, 1 Mer. 539. Land purchased during the partnership with partnership assets and for partner- ship purposes is considered as personal estate as between the heir-at-law and per- sonal representative of a deceased partner : Crawshajy v. Maule, 1 Sw. 508 ; Phillips V. Phillips, 1 My. & K. 649 ; Da/rbey v. Darbey, 3 Dr. 495 ; Eolroyd V. Hoh-oyd, 7 W. R. 426. Where the partnership articles contained a provision that sums brought in by either partner in addition to the original capital should bear interest payable before other interest, and that on dissolution the capital, stock, &c., should be divided between the partners according to their shares, it was held that the assets after payment of debts ought to be first applied in repaying to the deft with interest the additional capital brought in by him in cash : Wood v. Scales, L. R. 1 Ch. 369 ; Order, p. 171. Digitized by Microsoft® 178 PARTISTERSHIP. Where after a decree had heen made for the dissolution of a partnership, and for the sale of the property, the business was continued until sale, it was held that the interest by the partnership articles agreed to be paid to each partner was no longer payable, and that in the division of the proceeds of sale each partner would take what was found to be his share of capital at the time of dissolution : Watney v. Wells, L. E. 2 Ch. 250 ; Order, p. 172. Where a parol agreement has been entered into between partners that profits should be shared and losses borne in equal shares, although the advances of capital made by the partners be unequal, any deficiency in the assets must be borne equally : Nowell v. Nowell, L. E. 7 Eq. 538. In the absence of express or implied stipulation to the contrary partners con- tribute equally to every loss, whether that loss is a loss of the original capital brought in, or any other loss : S. 0. In the absence of fraud or gross misconduct equity will not allow one partner receiving a premium from the other to keep the whole of it if the partnership is prematurely dissolved : Bury v. Allen, 1 OoU. 589 ; Astle v. Wright, 23 Beav. 77 ; Atwood v. Maude, L. E. 3 Oh. 369, and cases there cited ; see Order, p. 173. Unless there be an express stipulation, or a particular course of practice shewn by the partnership books to the contrary, no interest is chargeable by one partner against a co-partner: Sill v. King, 9 Jur. (N.S.) 527; BisMon v. Grissell,L. E. 5 Bq. 326. In taking partnership accounts under a decree the profit and loss account in every year is properly charged with sums representing the depreciation arising from the running out of the lease and the waste of plant and machinery : Bishfon V. Grissell, supra. Profits derived from the trade carried on after the death of the testator depend upon the nature of the trade, the manner of carrying it on, the capital employed, the state of the account between the partnership and the deceased partner at the time of his death, and the conduct of the parties after his death : Willeft v Blandford, 1 Hare, 253, ^jer V.-C. Wigram. And where after the death of a partner the surviving partners admitted into the firm his son, who was the executor, but not admitted as such, the business being continued without separation of the partnership assets, the executor was held not to be liable to the testator's estate for the profits received as a partner in the bank : Simpson v. Chapman, 4 De G. M. & G. 153. For classification of the cases.in which the estate of a deceased partner is entitled to participate in the subsequent profits of a trade in which his capital has been employed, see Wedderburn v. Wedderlurn, 22 Beav. 84. MORTSAGE TO SECURE PARTNERSHIP DeBTS. For cases where mortgages of partnership property to secure separate debts of the partners have been held to be fraudulent as against the general creditors of the partnership, see Ex parte Snowball, L. R. 7 Ch. 534. Interest ok Capital after Dissolution. In taking the accounts of a partnership, interest after the dissolution will not in general be allowed to the partners on their respective capitals, though interest during the partnership with annual rests is allowed : Barfield v. Loughborough, Digitized by Microsoft® PARTNEESHIP. 177 L. E. 8 Ch. 1. See also Wood v. Scales, L. B. 1 Oh. 369; Watney v. Wells, L. E. 2 Oh. 250. But the rule may be varied by the terms of the articles, as, for example by a provision treating the capital left in by a partner as an interest-bearing loan : Barfield v. Loughborough, L. E. 8 Ch. 1. Any sum of money received after the dissolution and retained by either partner ought to be debited to him, and' applied first in reduction of the interest due to him, and then in reduction of h^s capital ; S. C, Digitized by Microsoft® ( 178 ) CHAPTER XXT. ADMINISTRATION. Will established. Declare that the will of — , the testator [is well proved, and that the same] ought to be established, and the trusts thereof performed and carried into execution. If will admitted : The Deft B., the heir-at-law of — , the testator, &c., by his defence [counsel] admitting the due execution of the testator's will dated, &c., this Court doth declare, &c. Infant heir not asking issue : And counsel for the infant Deft B. not asking for an issue upon the will of the testator, and the Court being of opinion that it will not be for the benefit of the said infant to direct such issue, Declare, &o. If will proves itself: Upon reading the will of the testator — , dated &c.. Declare that the same ought to be established, &c. Creditor's Action — Personal Estate — General Accounts. Let the following accounts and inquiry be taken and made, that is to say : — 1. An account of what is due to the Pit and all other the cre- ditors of A. deceased, the intestate [or, testator] in the Pit's action named. 2. An account of the intestate's [or, testator's] funeral ex- penses. 3. An account of the intestate's [or, testator's] personal estate come to the hands of the Defts — , the administrators of his estate [or, executors of his will], or of any or either of them, or to the hands of any other person or persons by their or any or either of their order or use. 4. An inquiry what parts (if any) of the intestate's [or, testator's] personal estate are outstanding or undisposed of. Let the intestate's [or, testator's] personal estate be applied in payment of his debts and funeral expenses in a due course of administration. — Adjourn further consideration. — Liberty to apply. Creditor's Action — Beal and Personal Estates — General Accounts. Let the following accounts and inquiries be taken and made : — An account of what is due and owing, &c., and accounts of personal estate see order, supra']. Let the intestate's [or, testator's] personal estate be Digitized by Microsoft® ADMINISTEATION. 179 applied in payment of the debts and funeral expenses in a due course of administration. And in case the intestate's [or, testator's] personal estate shall be insufficient for payment of his debts and funeral expenses, Let the following further inquiries and accounts be made and taken. An inquiry what real estate the intestate [or, testator] was seised of or entitled to at the time of his death. An inquiry what incumbrances (if any) affect the intestate's [or, testator's] real estate, or any or what part thereof [and their priorities]. An account of what is due to such of the incumbrancers (if any) as shall consent to the sale hereinafter directed in respect of their incumbrances. Let the intestate's [or, testator's] real estate, or a sufficient part thereof to make good the deficiency of his personal estate, be sold with the ap- probation of the judge, free from the incumbrances (if any) of such of the incumbrancers as shall consent to the sale and subject to the incumbrances of such of them as shall not consent. Let the money to arise by the sale of such real estate be paid into Court to the credit, &c. ; And if such money or any part thereof shall arise from real estate sold with the consent of the incumbrancers the same is to be applied in the first place in payment of what shall appear to be due to such incumbrancers according to their priorities. — Adjourn further consideration. — Liberty to apply. Creditor's Action — Beal and Personal Estate — Inquiry as to Heir. Let the following accounts and inquiries be taken and made : — An account of what is due and owing, &c., and accounts of personal estate, as in first order. — Let the intestate's personal estate be applied, &c. Let the following further inquiries and accounts be made and taken : An inquiry who at the time of the death of the said intestate was his heir-at-law, and whether such heir is living or dead, and if dead who, by devise, descent, or otherwise, is now entitled to such real estate (if any) of the intestate as descended to such heir-at-law. — Inquiries as to real estate, rents, and profits, and incumbrances, as in preceding order, — And if it shall appear that the heir-at-law of the said intestate or the representative as aforesaid of such heir-at-law is a party to this suit. Let the intestate's real estate, or a sufficient part thereof to make good any deficiency, be sold, &c. — Usual directions. Pickering v. Backhouse, (V. C. B.), Feb. 17, 1873; see also CJiathamv. Higginbottom (V.-C.W.), Feb. 11, i860. Creditor's Action for General Account — Personalty — Payment of Pit's JDeht. The Deft B., the executor [or, administrator] of A., the petitioner [or, intestate], by his defence [or, counsel or solicitor] admitting assets Digitized by l\^icrosoft® ^ ^ 180 ADMINISTRATION. of the said A. for the purposes of this suit, and that the said A. was at the time of his death indebted to the Plh in' the sum of £ — , and that the sum of £ — is now due for principal and interest in respect of such debt; Let the Deft B. (within one month from, the date of this order) pay to the Pit C. the said sum of £ — , with subsequent interest on the principal sum of £ — , part of the said £ — at the rate of £— per cent, per annum from the — day of — to the day of pay- ment. — Liberty to apply. See Woodgate v. Field, 2 Hare, 211. Creditor's Action for Pit's Debt alone— Personalty — Payment. Let the following accounts be taken : — An account of what is due to the Pit for principal and interest, &c., and for his costs of suit [such costs to be taxed, &c.]. An account of the testator's personal estate &c. Let what shall be certified to be due to the Pit for principal and interest and costs be paid to him out of the personal estate of the testator in a course of administration. — Adjourn further consideration, &c. Seton, 136; Attorney-General v. Courthwaite, 2 Cox, 44; Perry y. Phelips, 10 Yes. 38. Action by Creditor or Mortgagee — Sale — Administration of Meal and Personal Estate in case of Deficiency. Let an account be taken of what is due to the Pit for principal and interest upon his mortgage security in the Pit's bill mentioned, and for his costs of this suit, to be taxed, &c. Let the hereditaments comprised in the Pit's mortgage security be sold with the approbation of the judge. And Let the money to arise by such sale be applied in pay- ment of what shall be certified to be due to the Pit, and in the mean- time be paid into Court to the credit of, &c. Declare that in case the money to arise by such sale shall be insufficient to pay the amount due to the Pit, he is entitled to receive satisfaction for the deficiency out of the assets of D., the testator, in a due course of administration. Let the following further accounts and inquiries be taken and made : An account of what is due to all other the creditors of the testator. An account of the funeral expenses of the testator. An account of the personal estate come to the hands, &c. An inquiry what personal estate is outstanding, &c. Let the testator's personal estate be applied in payment of his debts and funeral expenses in a due course of administration. And in case the testator's personal estate shall not be sufficient for the payment of his debts and funeral expenses. Let the following further inquiries be made; that is to say : An inquiry what real estate the testator was seised of at the time of his death other than the hereditaments comprised in the Pit's mortgage ; An inquiry what Digitized by Microsoft® ADMIN ISTEATION. 181. incumbrances affect the testator's real estate and their priorities. — Adjourn further consideration. Austin v. Phelips, 1854, A. 967 ; Seton, 289. Action hy Creditor, an Equitable Mortgagee — Administration of Real and Personal Estate in case of Deficiency. Declare that the Pit, as the public registered officer of the banking company in the pleadings mentioned, is entitled to an equitable mort- gage by deposit of title deeds of, &o. Let the following accounts be taken : — An account of what is due to the Pit as such officer of the said banking company and to all other creditors of the testator. — Usual directions in creditors' decree as to personal estate. — Inquiry as to incumbrances upon realty (other than the charge hereby decreed), their priorities, and the amount due. — Declaration that the realty was liable to make good the personalty. — Adjourn further consideration. Billson V. Owen, 1861, A. 986 ; Seton, 290. Action hy Next of Kin — Personalty. Let the following inquiries and accounts be made and taken : — 1. An inquiry who were the next of kin according to the statutes for the distribution of intestates' estates of A. deceased, the intestate in the pleadings [or summons] named living at the time of his death, and whether any of them are since dead, and if dead who are their respective legal personal representatives. 2. An account of the per- sonal estate of the said intestate come to the hands of the Defts — , the administrators of his estate, or any [or either] of them, or to the hands of any other person or persons by or for the order or use of the Defts or any or either of them. 3. An account of the intestate's debts. 4. An account of the intestate's funeral expenses. 5. An inquiry what parts, if any, of the intestate's personal estate are outstanding or undisposed of. Let the intestate's personal estate be applied in payment of his debts and funeral expenses in a due course of adminis- tration. — ^Adjourn further consideration. — Liberty to apply. Action hy Legatee, hy Trustees, or Executors, or Beneficiary — Personal Estate — General Accounts. Declare that the trusts of the will of — , the testator, &c., ought to be performed and carried into execution, and order and decree the same accordingly. And the Pits by their counsel submitting to account, Let the following account and inquiries be taken and made, that is to say, — 1. An account of the personal estate not specificallj^ bequeathed of — r the testator, come to the hands of the Pits, the executors'of his will, or [any or] either of them, or to the hands of any other person or Digitized by Microsoft® 182 ADMINISTEATION. persons by or for the order or use of the Defts or any or either of them. 2. An account of the testator's debts. 3. An account of the testator's funeral expenses. 4. An account of the legacies [and an- nuities] given by the testator's will. 5. An inquiry what parts (if any) of the testator's personal estate are outstanding or undisposed of. Let the testator's personal estate not specifically bequeathed be ap- plied in payment of his debts and funeral expenses in a due course of administration, and then in payment of the legacies and annuities given by his will. — Adjourn further consideration. — Liberty to apply. Action hy Trustees, Executors, or Ben^ciaries — Seal and personal Estate- — General Accounts. Declare that the trusts of the will of — , the testator, ought to be performed and carried into execution, and order and decree the same accordingly. And the Pits by their counsel submitting to account, Let the following accounts and inquiries be taken and made : — Ac- counts of personal estate, as in last order. — Let the testator's personal estate not specifically bequeathed be applied, &c. Let the following further inquiries and accounts be made and taken ; — 6. An inquiry what real estate the testator was seised of or entitled to at the time of his death. If ordered : An account of the rents and profits of the testator's real estate received by the Pits or [any or] either of them, or by any other person or persons by their or [any or] either of their order, or for their or any or either of their use. 8. An inquiry what incumbrances (if any) affect the testator's real estate, or any and what parts thereof. 9. An account of what is due to such of the incumbrancers as shall consent to the sale hereinafter directed in respect of their incumbrances. 10. An inquiry what are the priori- ties of such last-mentioned incumbrances. If ordered: Let the testa- tor's real estate be sold with the approbation of the judge free fi-om the incumbrances (if any) of such of the incumbrancers as shall consent to the sale, and subject to the incumbrances of such of them as shall not consent. Let the money to arise by the sale of the testator's real estate be paid into Court to the credit of this [matter and] cause to an account to be intituled " Proceeds of Testator's Eeal Estates." And if such money or any part thereof shall arise from real estate sold with the consent of the incumbrancers the money so arising is to be applied in the first place in payment of what shall appear due to such incum- brancers according to their priorities. — Adjourn further consideration. — Liberty to apply. Accounts against Executor of Testator and Executors of deceased Executor. An account of the personal estate not specifically bequeathed of A. deceased, the testator, &c., come to the hands of B., the deceased exe- Digitized by Microsoft® ADMINISTRATION. 183 cutor, and of the Deft C, the surviving executor, or to the hands of any other person or persons, hy their or either of their order or use. Let what on taking the said p,oooimt shall appear to be due from the Deft C. be answered by him personally, and what shall appear due from the estate of B. be answered by the Defts D. and E., the execu- tors of his will (they having admitted assets for that purpose^ [or, if assets not admitted : out of his assets in a course of administration. And in case the said Defts D. and E. shall not admit assets of the said B., Let an account be taken of the personal estate of the said B. come to the hands of the said Defts or either of them, or to the hands of any other person or persons by or for the order or use of the Defts or either of them .J Usual other accounts of testator's estate. — Further consideration reserved. — Liberty to apply. Accounts against Executors of sole Executor. An account of the personal estate not specifically bequeathed, &c., come to the hands of B. [the deceased executor] and of the Defts C. and D., the executors of his will, or to the hands of any other person or persons by their or either of their order or use. Let what on taking the said account shall appear to be due from the said Defts be answered by them personally ; and what shall appear due from the estate of the said B. deceased be answered by the said. Defts C. and D. as such exe- cutors (they having admitted assets of the said B. for that purpose) [or, if assets not admitted : in a course of administration. And in case the said Defts shall not admit assets of the said B. for that purpose. Let an account be taken of the personal estate of the said B. come to the hands of the said Defts, or either of them, or to the hands of any other persons or person, by or for the order or use of the Defts or either of them.J Account against Executors of both Executors. An account of the personal estate of A., the testator, &c., come to the hands of B. and C, the executors of his will, or to the hands of the Defts D. and E., the executors of the will of the said B. (who survived the said C), since the death of the said B., or any of them, or of any other person or persons by their or any of their order or use. Let what on taking the said account shall appear to be due from the Defts D. and E. be answered by them personally, and what shall appear to be due from the estate of the said 0. be answered by the Defts P. and G., the executors of his will (they having admitted assets for that pur- pose) [or, if assets not admitted : out of his assets in a course of adminis- tration. And in case the Defts F. and Gr. shall not admit assets of the said C. for that purpose, Let an account be taken of the personal estate Digitized by Microsoft® 184 ADMINISTEATION. of the said C. come to the hands of the Defts F. and G., or either of them, or to the hands of any other person or persons by their or either of their order or use]. Let what on taking the said account of the per- sonal estate of the testator A. shall appear to be due from the estate of the said B. be answered by the Defts D. and E., they having admitted, &c.. [If assets not admitted : out of his assets in a course of administra- tion. And in case the Defts D. and E. shall not admit assets of the said B. for that purpose, Let an account be taken of the personal estate of the said B. come to the hands of the said Defts D. and E., or either of them, or to the hands of any other person or persons by or for the order or use of the Defts or either of them. Special Inquiries. Pure and impure Personalty. Let an inquiry be made what part of the testator's personal estate consists of pure personalty, and what part of personalty savouring of realty. Heir-at-Law. As to heirs'ttt-law : Let an inquiry be made who was the heir-at-law of the testator [or, intestate] at the time of his death, and whether such heir is living or dead, and if dead who by devise, descent, or otherwise is entitled to such real estate, if any, of the testator, as ' descended to such heir-at-law. As to customary heir : An inquiry who was the heir of B., the testa- trix, &c., according to the customs of the manors whereof her copyhold estates are respectively holden, living at the time of her death, and whether, &c. Sales and Contracts. An inquiry whether any and what parts of the testator's real estate have been sold, and if so, by and to whom, and for what sum or sums of money, and by whom the purchase-money has been received, and how the same has been applied and disposed of. Bumbold v. George, 1858, B. 1281 ; Seton, 263. And if it shall appear that any part of the said purchase-money has been received by the Defts, or any of them, or by any person or persons by or for the order or use of the Defts or any or either of them, an account of the proceeds of such sale received by the Defts, or any of them, or by any other person or persons, &c. Arnold v. Young (L. J. J. for V.-O. W.), Aug. 8, 1873. Building Contracts — Inquiry as to Liability of Estate. An inquiry whether any and what contracts weie entered into by — for building or completing the farm buildings situate at — , or for Digitized by Microsoft® ADMINISTRATION. 185 executing any and what other works on the real estates of the said — or on any and what part thereof; and whether such contracts, or any and which of them respectively, are binding and ought to he carried into execution, and if so, what is the extent of the liability of the estate of the said — under such contracts, and what sum or sums of money ought to be applied out of the personal estate of the said — for the complete performance thereof. Langton v. Burton, 1852, B. 482; Seton, 264. General Contracts by Trustee or Executor of Will — Since Testator's Death. An inquiry whether the Deft, the trustee and executor of the will of — , has since his death sold any and what part or parts of the testator's real estate devised by his will to be sold, or entered into any and what contract or contracts with any person or persons for the sale thereof, or- of any and what parts thereof, and for what sum or sums of money ; and whether any and what proposal or proposals, with a 'view to any such sale has or have been made, and when and with whom. And if it shall appear that any part thereof has been sold, an account of the money arising by such sale, and how such money has been applied or disposed of ; and if it shall appear that the said Deft has entered into any siich contract or contracts, or that any such proposal or proposals has or have been made which have not been carried into execution ; an inquiry whether such contract or contracts, or proposal or proposals, is or are proper, and for the benefit of the Pits, the infants, to be carried into execution, and whether or not with any and what modifications.. Strong v. Hawhes, 4 De G. M. & G. 1 86 ; Seton, 264. Contracts — Purchases by Testator. An inquiry whether the testator was at the time of his death under any and what contract for the purchase of any and what estate ; and if so, whether the testator paid any and what part of the purchase- money for the same, and whether the testator accepted the title thereto. And in case it shall appear that the testator had not accepted the title to the said estate at the time of his death, an inquiry whether a good title has been or could be made to the said estate. And in case the testator has accepted the title to the said estate, or that a good title has been or can be made thereto, Let an inquiry be made whether the Defts have completed the said contract, and paid any and what part of the purchase-money for the same. And if it shall appear that the Defts have completed the said contract, Let an account be taken of the rents and profits of the estate comprised in the said contract received by the Deft. Harding v. Harding ( V.-C. B.), July 30, 1870. Digitized by Microsoft® 186 ADMINISTEATION. Contracts by Testator's Hxecutors — Testator's Moneys — Incumbrances. An inquiry whether the piece of land at — , in the pleadings men- tioned, was purchased either wholly or in part, and if in part only then to what extent, out of the testator's estate. And if it shall appear that a part only of the purchase-money was provided out of the testator's estate, then by whom the rest was provided, and to whom and in what shares and proportions the said piece of land and the buildings thereon now belong. An inquiry whether the dwelling- house and buildings which have been erected on the said piece of land since its purchase were erected wholly or in part, and if in part then to what extent, out of moneys belonging to the testator's estate, and what, if any, charges or liens are now existing, and in whose favour, upon the said piece of land and the dwelling-house and buildings there- on in respect of the moneys expended in the erection of such dwelling- house and buildings, and what is due and to whom in respect of the same. An inquiry whether any and what incumbrances other than the said charges or liens are now subsisting on the said piece of land and the messuage and buildings thereon, and by whom and under what circumstances these mortgages and incumbrances were respec- tively created, and what is due and to whom in respect of the same respectively, and by|whom what is so due ought ultimately to be paid. And if it shall appear that the said piece of land and the dwelling- house and buildings thereon belong wholly or in part to the testator's estate. It is ordered that an inquiry be made what occupation rent ought to be charged against the Defts Skoyles and wife (the executors) or either and which of them in respect of the occupation thereof by them or either of them. Spilling v. Skoyles (V.-C. B.), March 22, 1872. Contract for Purchase by Testator — Purchase-money to be paid out of Personalty — Declaration as to Realty. ■Declaee that the Pit, as the heir-at-law of J. M. the intestate, is entitled to have the balance of the purchase-money for the freehold hereditaments situate, &c., agreed to be purchased by J. M., the intes- tate in the pleadings named, as in the chief clerk's certificate mentioned (but which purchase had not been completed at the time of the death of the said intestate), with interest, &c., on such balance paid and satisfied out of the intestate's personal estate, and order and decree the same accordingly. Declare that such balance is not in regard to the vendor's lien in equity for the same a sum of money with the payment of which the said hereditaments are charged by way of mortgage, and to which such hereditaments are primarily liable within the intent and meaning of the statute 17 & 18 Vict. c. 113, intituled "An Act Digitized by Microsoft® ADMINISTRATION. 187 to amend the Law relating to the Administration of Deceased Persons," or the statute 30 & 31 Vict. c. 69, intituled " An Act to explain the Operation of an Act passed in the 17 & 18 Vict. c. 113, intituled," &o. Let the said purchase he completed with the approbation of the judge. And Let the said balance and the costs and expenses of the conveyance of the said hereditaments to the Pit (such costs and expenses to be taxed by the taxing master) be paid by the receiver appointed in this cause out of the outstanding personal estate of the intestate. Sarding V. Harding (V.-C. B.), March 22, 1872. Exchange — Inquiry if beneficial. An inquiry whether it is fit and proper and for the benefit of the testator's estate, and the persons entitled thereto, that the agreements dated, &c., for the exchange of the estates and premises in the tes- tator's will mentioned should be carried into execution, and whether with or without any and what variations, and whether any and what proceedings should be taken in reference thereto Cope v. Evans, 1858, A. 1783 ; Seton, 267. Mortgages — Inquiry how created — How paid ofi. An inquiry what mortgages, securities, and charges made of or upon any part of the testator's real estate in his lifetime were owing at the time of his death, and what, if any, mortgages, securities, and charges have been made by the Defts, the trustees, &c., in pursuance of his will, and whether the same have been properly made, and whether any and what sums are now due and owing in respect of any such mortgages, securities, or charges respectively, and in whom the same are now vested respectively, and what mortgages, securities, or charges on the testator's real estate have been wholly or in part paid off by the said Defts out of the rents and profits of the said estates, or out of any and what other funds forming part of the testator's estate. JenMnson v. Makin, 1856, A. 821 ; Seton, 268. Occvpation Bent, An inquiry whether — has since the death of the testator been in the occupation of any part of the said freehold and copyhold estates, and if so. Let an annual value be set thereon by way of rent during the time the Deft was in the occupation thereof, and Let him be charged therewith. Dower — Inquiry — Sale. An inquiry whether the Deft A., the widow of the testator B., is entitled, to dower or freebench out of any and what part of the tes- Digitized by Microsoft® 188 ADMINISTEATION. tator's real estate. Let the sale hereinbefore directed be subject to such dower, if any, unless the said A. shall come in and consent to have a value set thereon. And in such case Let a value be set thereon accordingly, and the said sale be free from such dower. Let the amount of the value of the said dower be paid to the Deft out of the money to arise by such sale. And in the meantime Let the same be paid into Court to the credit, &c. Chuhh v. Witt (L. J. J. for V.-C. W.), March 8, 1873. Dower — Inquiry — Meceiver. An inquiry whether the Deft A. is entitled to dower or freebench out of any and what part of the testator's real estate. And if it shall appear that the said A. is so entitled, Let the lands out of which she is dowable be distinguished from the other lands. Let an allowance be made to the said Deft for or in respect of such dower or freebench (if any) as she may be entitled thereto. Let the receiver out of the rents and profits of the lands in respect of which the Deft A. is entitled to dower pay vsrhat shall be certified to be due to her. Harding V. Harding (V.-C. B.), July 30, 1870. Dower — Government Annuity. The Deft E., the widow of — , deceased, the intestate in the plead- ings named, being entitled to dower out of his real estate, and having consented to the sale of such real estate discharged from her dower, Let the Pit enter into- a contract with the Commissioners for the Reduction of the National Debt for the purchase of a government annuity of £ — or as near to that sum as such contract can be entered into in the name and on the life of — by a transfer of Bank 3 per Oeat. Annuities to the said Commissioners. — Consequential directions. See post, p. 195. Election. Settlement and Will. Declare that the Defts C, and A., his wife, are respectively bound to elect between the benefits of the covenant of the testator to pay the sum of £ — per annum contained in the settlement made on the marriage of — , and the benefits given to them respectively by the testator's will. Hart v. Tulk, 1852, H. 381 ; Seton, 260. Infants — Inquiry. Declare that the children of — ought to elect whether they will take according to the provisions of the indenture of settlement dated, &o., or against the same. And the said — being infants, Let an inquiry be made whether it will be for their benefit to take under Digitized by Microsoft® ADMINISTRATION. 189 the provisions of the said settlement or against the same. Seton v. Smith, 11 Sim. 59 ; Seton, 260. Testator's Widow — Inquiry as to Election. An inquiry to whom the premises situate, &c., belonged at the testator's death, and if the same helonged to his widow, or whether she elected in her lifetime to take under the testator's will. Peek t. Peek, 1859, B. 879 ; Seton, 260. Domicile. Common Inquiry. Let an inquiry be made where T. C. died, and whether or not in- testate, and where he was domiciled at the time of his decease, and who, according to the law of such domicile was at his decease entitled to his personal estate. Carter v. Carter (M. R.), April 21, 1860. Domicile — Special Inquiries, Let the following inquiries and accounts be made and taken : — 1, An inquiry where E. E. the testator, &c., was domiciled at the time of making his will, and from thence to and at the time of his decease. And in the event of its being ascertained that the said tes- tator's domicile was other than Anglo-Indian or English : 2. An in- quiry whether, according to the law of the country of the testator's domicile at the time of his death the bequests and directions contained in the said testator's will and codicil are wholly or to any and what extent valid, and what is the legal effect thereof. And in case of the testator having, according to such last-mentioned law, died to any extent intestate, who are the persons according to such law entitled to the personal estate of which he may have died intestate. 3. An in- quiry who were the next of kin of the testator living at the time of his decease according to the laws of England, Scotland, and Jersey, respectively, and whether any of them have since died, and if so, who is or are their legal personal representatives. — Usual accounts of personalty and inquiries as to real estate. — Further consideration adjourned. — Liberty f o apply. Haldane v. Echford, (V.-C. W.), July 8, 1865. Don^icile^Declaration — Accounts and Inquiries. Declare that the domicile of W. E. the testator, &c., on the 18th June, 1862, the date of the birth of the Deft W. C. D., and on the 13th August, 1863, the date of the testator's marriage with the Pit E. D., and thenceforth to the time of his death^ was in Scotland. De- clare that E. D. the Pit in the firbt-mentioned suit, the widow of the Digitized by Microsoft® 190 ADMINISTRATION. testator, is entitled to elect between her rights in his estate as the widow of a domiciled Scotchman and those tinder the testator's Eng- lish will. Let the following accounts and inquiries he taken and made : — Usual accounts of personal estate. — And the said testator's personal estate not specifically bequeathed is to be applied in payment of his debts and funeral expenses. 6. An inquiry whether the testator has had any and what children, and when they were respectively born, and whether any and which of them have died, and when, and if any of them have died, who are their respective legal personal re- presentatives. 7. An inquiry who was the heir-at-law of the testa- tor according to the law of Scotland and the law of England respec- tively at the time of his death. 8. An inquiry whether the Pit E, D. has expended any and what sums for the past maintenance of any and which of the testator's children, and whether any and what allowance ought to be made to her in respect of such expenditure, and what is a proper sum to be allowed for the maintenance and education of such children during their minorities. 9. An inquiry what the tes- tator's heritable property in Scotland consisted of at the time of his death, and whether the testator died intestate as to any and what parts thereof, and if he died intestate, on whom the same devolved, and whether the same was or was not subject to any and what claim on behalf of the testator's widow to terce, and what are the respec- tive rights and liabilities of the person or persons on whom the same devolved and of the testator's widow respectively, both as against the persons claiming under the testator's will, and as against such of the testator's children as are entitled to legitim, and what were the re- spective values of such property, or of such parts thereof as are undis- posed of by the testator. 10. An inquiry what real estate and what leasehold estate the testator was seised of or entitled to in England at the time of his death, and what were the lespective values thereof. 11. An inquiry what part of the testator's property was specifically bequeathed, and who is in possession of the same, and what was the value thereof. 12. An inquiry what at the time of the testator's death was the value of his moveable estate in England or elsewhere other than his specifi-cally bequeathed estate. 13. An inquiry what' is the nature and extent of the right (if any) of the testator's widow ac- cording to the law of Scotland in respect of her jug relicta. 14. An inquiry whether the children of the testator are entitled, according to the law of Scotland, both to the benefits given to them by the will and also to their legitim, and what is the nature and extent of the right to legitim (if any) of such children. And in case they are not so entitled, whether it will be for the benefit of such of the said children as are infants to approbate or reprobate the provisions of the Digitized by Microsoft® ADMINISTRATION. 191 said will. — Ditections for transfer of sum of stock into Court by the executor. — Further consideration adjourned. — Liberty to apply. Doug- las V. Dmglas (V.-O. W)., July 17, 1871. Common Directions. Transfer and Payment into Court. Let — on or before the — day of — transfer the £ — Consolidated £3 per Cent. Annuities [or, Eeduced £3 per Cent. Annuities, or. New £3 per Cent. Annuities] standing in the names of, &c., into Court to the credit of this cause A v. B. 1875, A. 100, and receive any dividends on the said annuities now due or to become payable to him before or after such transfer, and within — • days after such receipt pay such dividends into Court to the same credit. If ordered : Let such divi- dends when so paid in and the dividends as they accrue on such annuities, and all accumulations thereon, be invested in like annuities. Deposit in Court of Exchequer Bills. Let — on or before the — day of — deposit in Court to the credit of this cause, A. v. B. 1875, A. 100, the following Exchequer bills, admitted, &c., and amounting in the whole to £ — , that is to say, No. 100 for £500, dated, &c., and No. 90 for £100, dated, &c., or any other bills for which the same may be exchanged. Deposit in Court of Securities passing hy delivery, other than Exchequer Bills. Let — on or before the — day of — deposit in Court to the credit of this cause A. v. B., &c., the following securities, that is to say, , &c., amounting together to £ — [or, the securities mentioned in the schedule hereto amounting together to £ — ], If ordered : Let any principal money to be received in respect of any of such securi- ties be invested in, &c. [or, be placed on deposit, &c.]. Let the divi- dends as they accrue, &c., be paid, &c. [or, be invested, &c.J. Deposit in Court of Securities passing hy Deed. Let — deposit in Court to the credit, &c., the two shares of the — Company, amounting together to £ — , and execute and procure to be executed a transfer of such securities to the account of the Pay- master-General for the time being of the Chancery Division of the High Court of Justice, [or, the securities mentioned in the schedule hereto amounting together to £ — J. Let any principal money to be received in respect of any such securities be invested, &o. [or, placed on deposit, &o.], and the dividends, &c., paid, &c. Digitized by Microsoft® 192 . ADMINISTEATION. Deposit in Gourt of Plate or Jewels, and those Securities which must he ' in a Box. Let the Deft B. on or before the — day of — deposit in a box in tbe presence of the solicitors for, &c., the several articles of plate [or, jewelry, or, the certificates and other docTiments of title of the — shares in the — Company set forth in the schedule hereto]. And such box is to be indorsed " In Chancery, A. v. B., &o., " Plate" [or, " jewelry," or, " securities "]. Let the said Deft B. within the time aforesaid deposit such box in Court to the credit of this cause, A. v. B., &o. If required, add : Let such box be delivered out within fifteen days after the — day of — and the — day of — , and after the same days in each succeeding year, to the Deft B. for the purpose of receiv- ing the dividends on such securities. Let the Deft B. replace the said securities in such box in the presence of the solicitors for the Pit. Let the Deft B. on or before the — day of — and the — day of — , and the same days in every succeeding year, re-deposit such box in Court to the same credit. Let the Deft B. receive such dividends, and on or before the — day of — , and the — day of — , and the — same days in each succeeding year, pay such dividends into Court to the same credit. Bond deposited, paid off — Delivery out. Let the applicant the Deft E. C. be at liberty to remove from the box indorsed "In Chancery, Cassavetti v. Gassavetti, 1869, C. 113, Indian and Foreign Investments," and deposited in Court to the credit of this cause, Gassavetti v. Gassavetti, 1869, C. No. 113, the bond num- bered B. 1858, being one of the bonds for £500 cash of the Turkish Six per Cent. Loan, 1854, being item 7 in the schedule to the order made in this cause and dated the 23rd July, 1869, which is to be paid off. Let the said Deft E. 0. be at liberty to pay the proceeds of the said bond when received into Court to the credit of the said cause to an account to be intituled " The Account," &c. (the amount of such proceeds to be verified by affidavit). — Directions for investment and payment of income. Gassavetti v. Gassavetti (V.-C. B.), Jan. 22 1875. The following securities may be brought into Court under sects. 3, 6, and 10 of the Chancery Act, 1872, viz. : 1. Those passing by delivery, as Exchequer bills. 2. Those transferable in books, as Consols, Ueduced and New £3 per Gent. Annuities. 3. Those transferable by registered deed. The order as regards securities comprised under class 1 would be to " deposit " and under classes 2 and 3 would be to " transfer." Securities consisting of bonds or debentures which require a transfer to com- plete the title may in some cases be deposited without a box, but, Generally Digitized by Microsoft® ADMINISTEATION. 193 securities not comprised in any of the classes enumerated above, including secu- rities passing by indorsement, must be placed in a box, and tbe box deposited in Court. Transfer and Payment into Court. " Money and securities may be paid or transferred into or deposited in Court, and be placed in the books at the Chancery Pay Office to the credit of a cause or matter, on a [direction to be obtained from the Chancery paymaster, upon the written request of the person desirous of so paying, transferring, or depositing, or of his solicitor, without an order ; but no such payment, transfer, or deposit shall be so made to a separate account in a cause (except to a security for costs account) unless such separate account have been directed to be opened by an order, and such request shall be filed in the Eeport Office. This rule shall not apply to money or securities directed by an order to be paid, or transferred into, or deposited in, Court, nor shall it apply to money or securities payable or trans- ferable into Court, in pursuance of an Act of Parliament or a General Order of the Court, by which some particular authority is required to enable the payment, transfer, or deposit to be made " : Chancery Funds Bules, 1874, rule 25. " A person directed by an order to make a payment, or transfer into, or deposit in Court shall be at liberty to mak« the same without further order, notwithstanding the order may not have been served, or the time thereby limited for making such payment, transfer, or deposit may have expired : and if any further sum of money has, by reason of such default, become payable by such person for interest, or in respect of dividends, he shall be at liberty to pay into Court such further sum upon a request as provided by rule 25 ; provided that any such subsequent pay- ment, transfer, or deposit shall not affect or prejudice any liability, process, or other consequences which such person may have become subject to by reason of his default in making the same within the time so limited " : Chancery Funds Rules, 1874, rule 27. " The time for making any such payment, transfer, or deposit may be also, if necessary, extended by a supplemental order referring to the former order, but with- out repeating the directions for such payment, transfer, or deposit. Such supple- mental order may be made on an application to the judge at chambers " : Ibid. Orders on Further Consideration. Payment of Costs, Debts, and Legacies — Carryings over — Government Annuity — Debts under £10. Tax the costs of the Pits and Defts of this action, the costs of the Deft B., the executor [or, administrator], to be taxed as between solicitor and client, and including in the costs of the said Deft anj' costs, charges, and expenses properly incurred by him relating to the administration of the testator's [or, intestate's] estate [or, the execution of the trusts of his will]. Let subsequent interest be computed upon the debts of the testator [or, intestate] mentioned in the — schedule to the chief clerk's certificate dated, &c, at such rate of interest as the same respec- tively oarrj"-. Let the amount of such subsequent interest from the date of the said certificate, and the amount due to the several Digitized by Microsoft® 194 ADMINISTRATION. creditors therein named for principal and interest in respect of their debts, and the total amount thereof, be certified. Let so much of the £— Consolidated [or, Eeduced, or. New] £3 per Cent. Annuities in Court to the credit of this cause, A. v. B., &c., [as, with the £ — cash and £ — money on deposit to the like credit, and any interest to be credited in respect of the said money on deposit] will raise the said costs, when taxed, and also the total amount of the said debts and interest, be sold, and out of the money to arise by such sale [and the said cash, money on deposit, and interest] the said costs be paid as follows, &c. And thereout also Let the several amounts which shall be certified to be due to the several creditors named in the schedule to the said certificate in respect of their debts and interest be paid to them respectively. Let subsequent interest be computed on the several legacies mentioned in the — schedule to the chief clerk's cer- tificate. Let -the amount of such subsequent interest and the total amounts due to the several legatees therein named for principal and interest in respect of such legacies be certified. Let the residue of the said Consolidated [or, Eeduced, or. New] £3 per Cent. Annuities be sold. Let out of the money to arise by the said sale, and any dividends to accrue on such residue [If duty payable : the amount of the duty payable in respect of the residuary estate of — the testator (the amount to be officially assessed and verified by affidavit) be trans- ferred upon the requisition of the Commissioners of Inland Eevenue to the account of public moneys of the Eeceiver-General of Inland Eevenue. And Let out of the said moneys and dividends] the several amounts certified to be due to such legatees be paid to them respec- tively [except as hereinafter mentioned]. []/ infant legatee : Let the amount which may be certified to be due to the infant A. be carried over to the credit of, &c., to an account to be intituled "The account of the infant — (subject to duly)."] — Invest and accumulate. If share of married woman to he carried over : Let what shall be cer- tified to be due to A., the wife of B., be carried over to the credit of, &c., to an account to be intituled " The account of A., the wife of B. (subject to duty)." — Invest and accumulate. If annuity to be provided out of stoch : Let the sum of £ — , Conso- lidated £3 per Cent. Annuities, part of the £ — like annuities standing to the credit, &c., be carried over to the credit of the same cause to an account to be intituled " The account of the annuitant A. (subject to legacy duty)." Let the dividends as they accrue due during the life of the said A. upon the said Bank Annuities so to be carried over be paid to the said A. And upon the death of the said A. any persons interested in the said Bank Annuities are to be at liberty, to apply as they may be advised. Digitized by Microsoft® ADMINISTRATION. 195 If annuity to he provided out of cask : Let so much of £ — cash in Court on the credit, &o., as will purchase £ — Consolidated 3 per Cent. Annuities, be invested in Consolidated £3 per Cent. Annuities to the credit, &c., " The account of the annuitant A. (subject to legacy duty)." Let the dividends, &c.. If annuity fund deficient: Let out of the dividends as they accrue on the said £ — Consolidated £3 per Cent. Annuities the annuity of £ — be paid to the said — during her life, or until further order, by equal half-yearly payments of £ — and £ — on the — day of — , and — day of — in every year, the first payment to be made on the — day of — . And in case such dividends shall at any time be insufficient. Let so much of the said Annuities, or of the residue thereof for the time being as with the dividends thereon will raise the said half-yearly payments of £ — , be from time to time sold. Let out of the money to arise by the said sales and dividends the said annuity of £ — be paid as hereinbefore directed. If Government annuity to be purchased : Let — enter into a contract with the Commissioners for the Eeduction of the National Debt for the purchase of a Government annuity of £ — , or as near to that sum as such contract can be entered into, in the name and on the life of — by a transfer of Consolidated £3 per Cent. Annuities to the said Commissioners. Let so much of the £ — Consolidated £3 per Cent. Annuities on the credit, &c., as shall be the amount at which the Pit shall contract for the purchase of such life annuity (such amount to be verified by affidavit) be transferred to the Commissioners for the Eeduction of the National Debt as the consideration for the purchase of such life annuity. Debts under £10 : And in case any of the sums certified to be due to the creditors of the said — shall not amount to £10, Let the same be paid to M. — , the solicitor of the Pit [or, Deft], he under- taking to pay the same to the parties respectively entitled thereto. Directions for division and payment of ultimate residue. — ^Liberty to apply. Payments, hy Reference to Schedule, of ascertained Debts and Legacies, dc. Let out of the moneys to arise by the sale, &c. [or, out of the cash, &C.J, the sums mentioned in the 6th column of the first schedule hereto, amounting together to £ — , be paid to the persons whose names are in the first column of the same schedule set opposite to such sums respectively. [And thereout also Let the sum of £ — , being the assessed amount of the legacy duty payable on, &o., be upon the requisition, &c., transferred, &c.] And thereout also Let the sums mentioned in the seventh column of the second schedule hereto, amounting together to £ — , be paid to the persons whose names are in the first column of the same schedule set opposite to such sums, respectively. 2 Digitized by Microsoft® 196 ADMINISTEATION. Let the residue of the said moneys [or, cash], and any dividends to accrue, &o., he paid to the several persons named in the first cohimn of the third schedule hereto, or be carried over to the credit of this cause, &c., to the several accounts mentioned in the second column of the same schedule, in the proportions in the third column of the same schedule set opposite to the respective names of such persons or the respective titles of such accounts. Schedule ahove referred to. First Schepule. 1. Names of creditora. 2. Principal soma. 3. Total amounts ' certified. 4. Kate of interest. 6. Subsequent interest. 6. Sums payable. Second Schedule. 1. 1 Namea of legatees. 2. Amount of legacies. 3. Amounta csrtlfled to be due. 4. SBbsequent interest. S. Total of 'Principal and interest. 6. Legacy duty. 1. Sums payable. THIED SCHEDDIiE. 1. Karnes of transferees. Titles of aoeonnts. The account of A^ an infant. 3. and dividends. Hotchpot Provisions, Common Clause. Let, for the purpose of computation, the sum of £ — J the sum paid or advanced] be added to £ — [the amount of the fund divisible]. Let the total amount be divided into — equal parts, and Let out of the said £ — (fund divisible) one of such — equal parts, after deduct- ing therefrom the said sum of £ — (the sum paid or advanced), be paid to the said — . Digitized by Microsoft® ADMINISTRATION, 197 Hotckjpot Provisions— Payment into Court of Advances in excess of Shares. Let, to the residue of the moneys, cash, and interest which after the payments aforesaid will be in Court to the credit of this cause, &c,, there be added for the purposes of computation the sums of £1105 9«. 5d. and the total amount divided into six equal parts. And if it shall appear that the sum of £1106 98. 5d. ei^ceeds one of such sixth parts, Let the Deft H. S., within twenty-eight days after the date of the chief clerk's certificate to be made in pursuance of this order, pay into Court to the credit of, &c., the amount of such excess. And if it shall appear that the sum of £1105 98. 6d. is less than one of such sixths. Let out of such residue a sum equal to one of such sixths, after deducting thereout the said £1105 9s. 2d., be paid to the Deft H. S. — Usual directions for payment of the remaining sixths. Sugden V. Odling (M. E.), May 6, 1874. Hotchpot Provisions — Interest on Sums advanced — Incumbered Shares. Directions for taxation and payment of costs and duty. — ^Let the ultimate residue of the money in Court be divided among the twelve children of the testator named in his will, according to their respec- tive interests therein, after deducting any advances already madei Let the several amounts of their respective shares be certified. And for the purpose of such division Let interest be computed on the several sums paid to <3r retained by the children of the testator as mentioned in the first schedule to the chief clerk's certificate datedj &c., at the rate of 4 per cent, per annum, less income tax, from the date of such respective advances up to the date of the chief clerk's certificate to be made in pursuance of this order. Let the total amount due from such children in respect thereof be certified. Let subsequent interest be also computed on the several principal sums mentioned in the second part of the said schedule of the said certificate, dated, &c,, except, &c. Let the total amount of such advances and sums retained by the testator's children, and such interest aforesaid, be {added to the residue of the money in Court and the total amount thereof certifledj Let such total amount be divided into twelve equal parts j Let one of such twelfths be certified as the share of the Pit, one other of such twelfths, after deducting therefrom the amount due from the late Deft J. H., be certified as the share of the late Deft J. H., one other of such twelfths after deducting therefrom the amount due from the Deft W. H. be certified as the share of the Deft W. H. [Similar directions as regards the remaining twelfths.] Let interest be computed on the several incumbrances created upon the shares of E. H. and J, H, men- tioned in the 14th paragraph of the chief clerk's certificate dated, &c., at the rate of interest therein specified tip to the date of the certi- Digitized by Microsoft® 198 ADMINISTRATION. fioate to be mad© in pursuance of this order. Let the respective amounts thereof be certified. But if it shall appear that the sums advanced to any of the testator's children, together with interest as aforesaid, are greater than their shares, then such children so overpaid are to be excluded from participation in the funds dealt with by this order ; and in that case the chief clerk is to certify the amount of such overpayments. And any persons interested are to be at liberty to apply in chambers as to the recovery of such sums so overpaid and the distribution thereof; and in case of any such overpayment the said residue of the money in Court, after payment of the said costs and duty, is to be apportioned among the others of such children in the same manner as such residue is hereinbefore directed to be divided among all the said twelve children, and that the amount so appor- tioned be certified. Let out of the residue of the said money in Court the following investments and payments be made : that is to say, that ■yf^hat shall be certified to be the share or apportioned share of the Pits be invested in Consolidated £3 per Cents, to the credit of this cause, &o., the account, &c. Let the dividends be paid, &c. [Directions for investment or payment out of other shares.] Let out of what [if anything] shall be certified as the share or apportioned share of J. H., if sufB.oient, the sum of £ — , with interest at the rate of £ — per cent, from the — day of — [the amount to be certified], or the whole of such share if the same shall not be sufficient, be paid to W- H., D. L., and E.L., in the said certificate- named, and the residue (if any) of the said share to the Deft J. H. Let what if anything shall be certified to be the share or apportioned share of E. W., if the same shall not exceed £200, be paid J. W. in right of his wife the said B. W. — Liberty to apply. Syde v. Holland (V.-C. H.), Dec. 6, 1873. Hotchpot Provisions — Payments on Account of Shares in Besidue — Loss and Partial Becovery of Assets — Interest. Declare that the residue of cash and dividends which will be in Court to the credit of this cause after the several sales, payments, and carryings over aforesaid ought to be treated as consisting of a principal sum with interest thereon at the rate of £4 per cent, per annum from the death of the testator up to the date of the chief clerk's certificate. Let an inquiry be made what sum of money, with interest at the rate of £4 per cent, per annum from the death of the testator to the date of the chief clerk's certificate, would amount to such residue of cash as aforesaid, which sum of money so ascertained is hereinafter referred to as the said capital fund. And for the purpose of apportioning the said capital fund between the children of the testator or their respec- tive legal personal representatives, Let the amount of the sums of Digitized by Microsoft® ADMINISTEATION. 199 money whicli the several oMldren of the testator or their respective legal personal representatives have since the death of the testator respectively received on acconnt of their respective shares in the testator's estate, or the income thereof, or which have been carried to a separate account in respect of any such share, including the sums by the testator's will directed to be taken by them respectively on account of their shares, be certified. Declare that no child or personal representative of any child of the testator is entitled to participate in the said capital fund unless he or she shall bring into hotchpot the amount of the moneys (if any) by the testator's wiU directed to be taken by such child on account of his or her share, and the amount of the moneys received by such child, or the personal representatives of such child, since the testator's decease in respect of the share of such child in the testator's estate, or the income thereof, or carried over to a separate account in respect of such share, and in the case of the Deft E. A., unless he shall have paid the balance or sum ordered to be paid by him as aforesaid. Let the said capital sum be apportioned between the children of the testator or their respective legal personal representatives, having regard to the declaration lastly hereinbefore contained. Let the shares of the testator's children, or their legal personal representatives, or of such of them as having regard to the said declaration shall be found entitled to participate in the said capital fand, be certified. Let so much of the said cash in Court as shall be attributable to interest on the said capital fund as aforesaid be apportioned among the testator's children or their legal personal representatives, or such of them as last aforesaid, in proportion to the shares in which they shall be found entitled to the said capital fund. Let the amounts so apportioned be certified. — Liberty to apply at chambers as to the payment or carrying over of the amounts to be certified in respect of principal and interest as aforesaid, and also as to the apportionment or division of any moneys which may be received by the Defts D. A. and C. L. from the Deft E. A. in respect of the balance or sum ordered to be paid by him as aforesaid. Ackroyd v. AcJcroyd, L. E. 18 Eq. 313. Insufficient Estate. Personalty insufficient — Debts — Aj)portionment. It appearing that the testator's [or, intestate's] personal estate will not be sufficient for the payment of his debts and funeral expenses in full, tax the costs of the Pits and Defts and — (parties having liberty to attend) their costs of this action as between solicitor and client, including in the costs of the Deft B. the executor [or, admini- strator] any costs, charges, a|nd expenses properly incurred by him, Digitized by Microsoft® 200 ADMINISTRATION. &c. Let subsequent interest be computed on the debts, of the tes- tator [or, intestate] mentioned in tbe — schedule to the chief clerk's certificate, dated, &c., and at such rate of interest as the same respectively carry. Let the £ — Consolidated £3 per Cent, [or, — Eeduced, or, — New £3 per Cent. Annuities] Annuities in Court to the credit of, &o., be sold, and out of the money to arise by the said sale, and any dividends to accrue on the said annuities pre- viously to the said sale [and out of the — cash on the like credit and the £ — money on deposit on the like credit, and any interest to be credited in respect thereof], the costs be paid, &o. Let the residue of the said money, &c., be apportioned among the creditors named in the chief clerk's certificate, dated, &o., in proportion to the amounts certified to be due to them respectively. And Let the amounts so apportioned be certified, and the certified amounts paid to such cre- ditors respectively. — Liberty to apply. Note : — Where all the debts carry a uniform rate of interest, the computation of subsequent interest in the above case would be un- necessary. Abatement of Legacies — Apportionment. [Directions for taxation of costs and payment of costs and debts out of funds in Court : see p. 193.] And it appearing by the chief clerk's certificate dated, &o., that the testator's personal estate, after payment of his debts, will not be sufficient for payment of the legacies given by his will. Declare that the testator's pecuniary legacies ought to abate in proportion to the respective amounts thereof. Let the residue of the moneys, &o., be apportioned among the legatees named in the chief clerk's certificate in proportion to the amounts certified to be due to them respectively of their legacies and interest. Let the ap- portioned amounts be certified and be paid to the said legatees respectively, or to the legal personal representatives of such of them as may be dead. — Liberty to apply. Abatement of Legacies — Valuation — Sale or Movtgage, It appearing by the chief clerk's certificate dated &c., that the testator's personal estate not specifically bequeathed -will not be sufficient for the payment of his debts and funeral expenses and the costs of this suit. Declare that the said specific bequests in the testator's will mentioned ought to contribute rateably to make good the same according to the respective values thereof. And for that purpose Let a value be set thereon. And Let the proportion to be contributed by each specific bequest be ascertained and certified. Let an inquiry be made whether the amount of such deficiency ought to be raised by sale or mortgage of such specific bequests. And [if it shall be certified Digitized by Microsoft® ADMINISTRATION. 201 that such deficiency ought to be raised by sale or mortgage], Let the Batue be raised accordingly with the approbation of the judge. Parry V. Parry, January 24, 1854; Seton, 169. Abatement of Annuities — Vcduation. It appearing that the real and personal estate of the testator is in- sufficient to pay the annuities bequeathed by his will, Declare that the values of the annuities of such of the annuitants as are now dead are respectively the amounts that actually became due to them respec- tively in their respective lifetimes in respect thereof; and that the values of the said annuities of such of the annuitants as are now living are respectively the amounts that have actually become due to them respectively in respect thereof, together with the present values of their respective annuities (such values to be certified). Declare that the estate of the testator, after payment of costs and legacy duty, &c., ought to be divided amongst the several annuitants in proportion to the values of their several annuities, when ascertained as aforesaid. [Consequential directions.] Potts v. Smith, L. E. 8 Eq. 683. See also Todd V. Bielby, 27 Beav. 363. Abatement and Apportionment of Legacies — Provisions for Duty — PaymerU of Besidue, [Directions for taxation of costs, payment of costs and debts out of funds in Court, and for computation of subsequent interest on legacies.] Let the amount payable for duty in respect of each of such legacies be ascertained and deducted therefrom. And Let the amount due in respect of each legacy and interest after such deduction, an^ the total amount payable in respect of such legacy duties be certified. Let, out of the residue of the said moneys, &o., the amounts which shall be certified to be due to the several legatees in respect of their legatees and interest be paid, &c. But in case it shall appear that the said residue will be insufficient to pay the amounts due in respect of the said legacies and interest, Let the same be apportioned among the said legatees in proportion to the amounts due to them in respect of their legacies and interest, and in that cjise Let the amount payable for legacy duty on such apportionments only be ascertained and deducted. Let the amounts due in respect of such apportion- ments after such deduction, and the total amount payable in respect of such duty, be certified. Let such certified amounts be paid to the naid legatees respectively, or to the legal personal representatives of such of them as may be dead. And in case the ultimate residue of the said moneys, &c,, shall be more than suffident to pay the amounts which shall be certified to be due in respect of such Digitized by Microsoft® 202 ADMINISTBATION. legacies and interest in full, and the legacy duties thereon, Let snch residue be divided into — shares. Let the amount payable for legacy duty in respect of each share be ascertained and deducted, and Let the amount payable in respect of each share after such de- duction and the total amount of such duty payable in respect of such residue be certified. [Provisions for payment and carrying over of each share.] And Let the total amount which in any of the cases hereinbefore provided for shall be certified to be due for legacy duty in respect of legacies or apportionments [or, upon such ultimate residue if any] be transferred upon the requisition, &o. Monypenny v. Mony- penny (V.-C. W.), April 16, 1868 ; Seton, 208. Similar Order — Sums paid on Account — Duty — Government Annuity. It appearing that the personal estate of the testatrix is insufficient to pay in full the several legacies and annuities given by the testatrix's v(rill, Declare that the said legacies and annuities ought to abate pro- portionately. — Directions for taxation and payment of costs. — Let the amount of the legacy duty payable in respect of the said legacies and annuities be ascertained, distinguishing how much is payable in respect of each legacy and annuity. Let, out of the residue of the money to arise by the said sale, what shall be certified to be the total amount of the said legacy duty, be transferred, &c. Let the residue of the money to arise by the said sale be apportioned among the several legatees and annuitants of the testatrix named in the — schedule to chief clerk's certificate in proportion to their legacies and annuities respectively, regard being had in such apportionment to all sums of money wtioh such legatees and annuitants respectively have received on account of their said legacies and annuities, and regard being had to the amount of duty payable in respect of the said legacies and annuities respectively. And for the purpose of making such apportionment, Let the value of the said annuities respectively be ascertained at the date of the death of the testatrix. Let interest at £4 per cent, per annum be computed upon 'such values from the death of the testatrix down to the time at which interest shall be computed on such legacies. Let subsequent interest be computed on the several legacies mentioned in the said schedule to the said certificate. And Let the amount due for principal and interest in respect of each legacy and annuity be certified. Let the sum which, in case the principal sum to be appor- tioned in respect of the annuity of £ — had been laid out upon the testatrix's death in the purchase of a government annuity for the life of Gr., would have become payable in respect of such annuity be ascer- tained. And Let the amount received by the said G. on account of his said annuity be deducted from such sum. Let the residue (to be certi- Digitized by Microsoft® ADMINISTRATION. 203 fied) be paid to the said G. out of the amount to be apportioned in respect of the principal and interest of the said annuity of £ — . And Let the residue of the amount so to be apportioned in respect thereof be also certified, and be invested in Consolidated £3 per Cent. Annui- ties. Let the Pit W. enter into a contract -with the Commissioners for the Eeduction of the National Debt for the purchase of such an annuity as can be purchased with such Annuities, in his own name, on the life and for the benefit of the said G. half-yearly, for his separate use, &c. Let what shall be apportioned in respect of prin- cipal and interest as the legacy bequeathed to — be carried over, &c. Wordsworth v. Darrell (V.-O. K.), July 19, 1855 ; Seton, 210. Specific Legacies and Beal Estate devised to contribute rateably. [Directions for payment of costs and for getting in outstanding personal estate.] And in case it shall appear that the personal estate not specifically bequeathed is insufficient for the payment of the testator's debts and the said costs. Declare that the leasehold estate of the said testator bequeathed to D. S. B. for her life, with remainder to G. B., and the testator's real estate devised are liable to make good the deficiency according to the respective values of the same estates respectively. Let what each estate is to pay towards payment of such debts and costs be certified ; and for the purpose of ascertaining what share of the annuities should be borne by the last-mentioned leasehold estate, Let the value of the annuities of £50, £50, and £100 hereinafter mentioned be ascertained, and Let the proportion of such value, together with the proportion of the debts and costs, including therein any arrears now due of the said annuities, be contributed and borne by the same leasehold estate. Let the residue of the said debts and costs, including therein any arrears of the same annuities now due, be borne by the real estate, and raised by sale or mortgage of a sufficient part of the said real estate with the approbation of the judge, &c. Tonibs v. Boch, 2 Coll. (Ch.) 509; see also Gervis v. Gervis, 14 Sim. 654. Personalty insufficient — Specifically devised and descended Estates to contribute ratedhly. Declare that the testator's personal estate not specifically bequeathed was the primary fund for the payment of his debts, and that the real estate acquired by the testator after the date of his will was the next fund for the payment thereof. And that in case of the deficiency of such prior funds, then the one-third of his real estate of which the devise lapsed, &c., and the other two-thirds of such real estate devised to J. W. and M. B. respectively were applicable pari passu in pay- Digitized by Microsoft® 204 ADMINISTRATION. ment thereof. — Consequential directions. Wood v. Ordish, 3 Sm. & Giff. 125 ; See also Peacock v. Peacock, 34 L. J. (Ch.) 315 ; Stead v. Har- daker, L. K. 16 Eq. 176, Balance of Debts to be raised out of devised Estates rateahly. It appearing that the testator's fieehold estate and the proceeds of his real estate at — •, which descended to his heir-at-law, and the rents and profits thereof, will not he sufficient for the payment of his debts, &c., Declare that the deficiency ought as between the Defts, the respeo- tive devisees of the testator's real estates, to be raised and paid out of the several specifically devised estates rateably, in proportion to the respective value thereof at the death of the testator. Let such propor- tion be settled by the judge, and for that purpose Let a value be set upon the several estates respectively. Let an inquiry be made in what manner such proportions ought to be raised and paid [or, and Let such proportions be raised by sale or mortgage of the said estates, or of a sufficient part thereof, respectively, with the approbation of the judge.] Seton, 246. Mesidws/ry Devise of Peal Estate held specific — Pecuniary Legatee and Residuary Devisee to contribute rateably — Inquiries. Declare that the legacy of £2000 bequeathed to the Pit E. L. H. by the will of W. C, the testator in the pleadings named, and the residuary real estate devised to the Deft J. L. C, are respectively liable to contribute to the debts of the testator which his general per- sonal estate is insufficient to satisfy jjro ratd, according to the respec- tive values of the said legacy and the said residuary real estate at the death of the testator, &o. Let the following inquiries be made : — 1. An inquiry what is the amount of the deficiency of the testator's general personal estate and of the money which has arisen and to arise from the sale of the real estate by the said will directed to be sold for the payment of his debts. 2. An inquiry what messuages, lands, tene- ments, and hereditaments of whatsoever tenure passed by the said residuary devise in the testator's will contained to the Deft J. L. C. 3. An inquiry what were the relative values of the said legacy of £2000 and of the hereditaments which passed by the said residuary devise to each other (having regard to the annual sum or yearly rent •charged on the said hereditaments by the said testator) at the death of the testator, and in what proportion the said legacy of £2000 and the said residuary real estate devised to the Deft J. L. C. ought to contri- bute to make good such deficiency as aforesaid. — Reserve further con- sideration. Hensman v. Fryer, L. E. 3 Ch. 420, 427. Digitized by Microsoft® ADMINISTRATION. 205 Marshalling. Personal Estate exhausted hy Specialty Creditors. " And in case any of the specialty creditors shall exhaust any part of the personal estate, the simple contract creditors are to stand in their place and to receive satisfaction pro tanto out of the real assets." Westfaling v. Westfcding, 3 Atk. 467. Similar Order — Mortgagee — Simple Contract Creditors. Declaee that so far as the executrix of the testator E. F. had exhausted the personal estate to satisfy the mortgagee, the [simple contract] creditors have a right against the heir-at-law of the testator for satisfaction of their debts out of the said testator's real estate. Wilson V. Fielding, 2 Vem. 763. Mortgagee and Simple ContrOiCt Creditors — Mortgagee partly paid out of Personalty — Marshalling. The mortgagee J. A. W., hy his counsel, consenting to a sale of the mortgaged hereditaments, Let the same he sold, &c., and the money to arise hy the sale paid into Court, &o. Let an account be taken of what is due to the said J. A. W., for his principal, interest, and costs, and out of the money to arise by such sale Let the said J. A. W. be in the first place paid what shall be certified to be remaining due to him. And it appearing that the sum of £230 6»., part of the personal estate of the intestate, has been applied by his administratrix in pay- ment of a bond debt to B., and that £782 10s. has also been applied in part discharge of what is due to the said mortgagee J. A. W. on the said mortgage and for costs. Declare that the other creditors of the intestate who have come in and proved their debts have a right to stand in the place of the said J. A. W. on the produce of the copyhold estate for the sum of £782 10s. so paid to him as aforesaid, and also to stand in the place of the said B. on the produce of the freehold estate for the said sum of £230 5s. so paid to him as aforesaid. Let, out of the residue of the money to arise by the said sale, after payment of' what shall be certified to be due to the said J. A. W., the fol- lowing payment and carrying over be made, &c. Aldrich v. Cooper, 8 Ves. 388. Equities between Second and Third Incumbrancers — First Incumbrancer's Debt thrown rateably upon both Estates. It appearing that the £243 198. 8d. New £3 per Cent. Annuities will be insufficient for the payment in full of the amount certi- Digitized by Microsoft® 206 ADMINISTRATION. fied to be due to the Defts J, and wife for principal and interest, and costs, Let the sum of £243 19«. 8d. Bank Annuities, part of the £14,558 17«. Id. Bank Annuities on the credit of, &o. he sold, and out of the money to arise by the sale the costs of the said Defts be paid, &o., and the residue paid to the said Defts, And it appearing that the Pits are the first incumbrancers upon the estates now represented by the sum of £292 16«., further part of the said £14,558 17s., and also upon the estates represented by £13,553 12s. Bank £3 per Cents, further part of the said £14,558, and that their securities are also a further security for the debt secured by an indenture dated the 17th of April, 1792, and that if the Pits were to resort for the payment of the debt due to them to the fund represent- ing th^ estate comprised in the said indenture of April, 1792, so far as the same would extend, they would exhaust the whole thereof, and if they were to resort for payment of the debt due to them exclusi'vely to the funds representing the estate comprised in the securities of February and June, 1800, they would to a great extent disappoint the third incumbrancers on the last mentioned fund. Declare that the said Pits ought to receive payment of the amount due to them for prin- cipal, interest, and costs, out of the two funds of £292 10s. Bank Annuities and £13,553 12s. like annuities, rateably and in proportion to their respective amounts. — Consequential directions. Barnes v. Bacster, 1 Y. & C. 401, 404. Sale or Mortgage of Real Estate. Personalty Insufficient — Payment of Debts. It appearing by the chief clerk's certificate dated, &c., that the per- sonal estate of the testator is insufficient for the payment of his debts and funeral expenses and costs of this suit. Refer to the taxing master to tax the Pit and Deft their costs of this suit as between solicitor and client. Let subsequent interest be computed on the debts of the tes- tator mentioned in the — schedule to the chief clerk's certificate dated, &c. Let a sufficient sum to pay what shall be due in respect of such debts, interest, and costs, be raised by sale or mortgage of the testator's real estate mentioned in the — ^ schedule to the chief clerk's certificate, or of a competent part thereof, with the approbation of the judge. And in case the same shall be raised by mortgage, Let such mortgage be settled by the judge, and be executed by all necessary parties as the judge shall direct. Let A., the tenant for life of the said estate [and the tenant for life thereof for the time being, or — , the trustees of the will of the testator], keep down the interest of the said mortgage. Let the money to arise by such sale or mortgage be applied in payment of such debts, interest, and costs, and be in the meantime paid into the Digitized by Microsoft® ADMINISTRATION. 207 bank to the credit of this cause. [If hy sale, add : " the proceeds of the sale of the testator's real estate."] And if such money shall be raised by mortgage, Let, upon the due execution of such mortgage being cer- tified, out of the said money when so paid into Court the said costs be paid as follows, &c. And thereout also Let the amounts which shall be certified to be due to the said creditors of the testator be paid to them respectively or to the legal personal representatives of such of them as may be dead. But if such money shall be raised by sale, any of the parties are to be at liberty to apply in chambers for the appli- cation thereof as they may be advised. Raising Portions — Mortgage. Let a mortgage of the testator's estate be made to a proper trustee or trustees for securing the portions of, &o. Let such mortgage be settled by the judge and be executed by all necessary parties as the judge shall direct. Let — , the tenant for life of the said estate [and the tenant for life thereof for the time being, or — , the trustees], keep down the interest of such mortgage. Let such trustee or trustees execute a declaration of trust of the said sums so to be secured as aforesaid, such declaration of trust to be also settled by the judge. Set-off. Balance found due from Administratrix — Costs. Let it be referred to the taxing master to tax all parties their costs, &c., as between solicitor and client, including in the costs of the Deft any costs, charges, and expenses properly incurred by her as administatrix, &c. And it being certified by the chief clerk's certificate that there is due from the Deft in respect of the intes- tate's personal estate a sum of £732 Os. hd., and it being admitted that she is in possession of the household furniture, &c., unsold, and valued, as in the certificate mentioned, at the sum of £70 13s., and forming part of the outstanding personal estate. Let the Deft be allowed to retain possession of the said household furniture, &c. And Declare that in calculating the distributive share of the Deft in the intestate's residuary personal estate the Deft is to be charged with the said sums of £732 0«. 5d. and £70 13s., making together the sum of £802 13«. 5d. And in case the said distributive share shall not exceed the said sum of £802 13s. 5d., Declare that the said sum is to be retained by the Deft in satisfaction, first, of her said costs, and costs, charges, and expenses (if any) ; and, secondly, of her distributive share of and in the intestate's residuary personal estate, subject, nevertheless, to re- payment by her to the intestate's residuary personal estate of any excess occasioned by reason of the said retainer over her distributive Digitized by Microsoft® 20S ADMINISTRATION. share aforesaid. But if such distributive share shall exceed the said sum of £802 13». 5d., Let the excess be paid to her solicitor in satis- faction, so far as the same will extend, of the said costs, and costs, charges, and expenses (if any). And if such excess shall not exceed the amount of such costs, and costs, charges, and expenses, Let the whole of such excess be paid to her said solicitor in satisfaction, so far as the same will extend, of the said costs, and costs, charges, and ex- penses. And Let the residue of the said costs, and costs, charges, and expenses, be considered as satisfied out of a proportionate amount of the £802 13«. 5d. so retained by her as aforesaid. Harding v. Harding (V.-C. B.), March 22, 1872. Costs. Apportionment between Beal Estate and Personal Estate. Let it be referred to the taxing master to tax the costs of all parties of this action as between solicitor and client. Let the taxing master dis- tinguish the costs incurred in relation to the testator's real estate from the other costs of this action, and certify the respective amounts. Let, out of the £ — cash in Court to the credit of, &c., " The proceeds of sale of the testator's real estate," what the taxing master shall certify to be the amount of the costs incurred in relation to the testator's real estate, be carried over to the credit of, &c., to an account to be intituled " The costs account." Let, out of the £ — cash in Court to the credit of, &c., " The personal estate account,'' what the taxing master shall certify to be the amount of the said other costs of this action, be also carried over to the credit of, &o., " The costs account." Let out of the said sums when so carried over the said costs be paid as follows, &c. Costs out of Personalty — If deficient, out of devised and descended Realty ratedbly. Declare that the testator's debts, funeral and testamentary expenses, and the pecuniary legacies given by his will, and not thereby made payable out of any particular estate or fund, and also the costs of this suit, and the charges and expenses properly incurred by the Pits as executors or trustees of the testator's will, ought to be considered as paid in the first place out of his personal estate not specifically bequeathed, including such shares of the proceeds of the sale of the leaseholds specifically bequeathed as lapsed ; and in the event of the same being deficient, then that as between the pecuniary legatees and the testator's heir-at-law, the amount of the deficiency of such general personal estates to answer the testator's debts and the said costs ought to be bonie and made good by the proceeds of the descended shares of the real estate devised to the Pits in trust for sale, so far as the same may Digitized by Microsoft® ADMINISTRATION. 209 be sufficient for that purpose. Morley v. Tunstall (M. E.), cited in Bow V. Bow, L. E. 7 Eq. 414, 416. Costs — Costs to, he distinguished — Incumbered Shares of Besidue. Ekfee to the taxing master to tax all parties and A. W. (having liberty to attend) their costs of suit as between solicitor and client, in- cluding the costs of the summons taken out by the Pits to vary the chief clerk's certificate, and also including in the costs of the Defts J. A., W. D., and L. A. S., any costs, charges, and expenses properly incurred by them in relation to the trusts of the testator's will beyond their costs of suit. But in such taxation the taxing master is to exclude any additional costs incurred by reason of any of the parties interested in the residuary estate of the testator having assigned, mortgaged, or incumbered their shares in such residuary estate. And in such taxation the taxing master is to distinguish the costs and expenses incurred in or about the sale of the freehold premises situate, &c., from the other costs of suit, and to distinguish also the costs of the said summons to vaiy from the other costs. — Directions for discharge of receiver. — Let the £ — Consolidated £3 per Cent. Annuities in Court to the credit of, &o., " The personal estate account subject to duty," be sold. Let, out of the money to arise by such sale, and any dividends, &c., the costs hereinbefore directed to be taxed (except the costs of the said freehold premises and the costs of the said summons) be paid to the solicitors of the parties entitled thereto as hereinafter directed. Let the £ Annuities in Court on the credit of, &c., " The real estate account," be sold, and out of the moneys to arise by the sale, and any cash, &o., the costs hereinbefore directed to be taxed of the said sale of the said freehold premises be paid to the solicitors of the parties entitled thereto as hereinafter directed. — Dirfections for payment of legacy duty out of cash on the credit of the cause, " The personal estate account," and for payment of succession duty out of the cash on the real estate account. — Tax the Pits and Defts their said additional costs (if any) incurred by reason of any of the parties interested in the residuary estate of the testator having assigned, mortgaged, or incumbered their shares in the said residuary estate. Let the taxing master certify the respective amounts of such costs, and the respective shares out of which such last-mentioned costs ought to be paid. Let the ultimate residue of cash on the personal estate account be divided into eight equal parts. Let one of such eighths be carried over to the credit of, &c., " The account of the share of T. B., deceased, in testator's personal estate." Let out of such one-eighth when carried over the additional costs (if any) which the taxing master shall certify to be properly payable out of such one-eighfh be paid to the solicitors of the parties as hereinafter Digitized by Microsoft® '' 210 ADMINISTRATION. directed. Let the residue of such one -eighth be paid to — , as legal personal representative of Deft T. B. deceased. Let one other eighth of the said cash on the personal estate account be carried over to the credit of, &c., " The account of the share of the Deft C. W. and his assignees in the personal estate of the testator." Let out of such one- eighth when carried over the additional costs (if any) which the taxing master shall certify as properly payable out of such one-eighth, and also a moiety of the costs of the said summons (to be certified by the taxing master), be paid to the solicitors as hereinafter directed. — Directions for payment of mortgage debts and interest out of residue of such one-eighth, and balance to parties entitled. — Similar directions for distribution of remaining eighths, for payment of mortgage debts and interest on particular shares, and as to additional co&ts. — Directions for division into eighths of I'esidue of cash on real estate account. — Let one of such eighths be carried over to the credit of the cause, " The account of the share of the Deft T. B., deceased, in testator's real estate." Let out of the said one- eighth when carriod over the addi- . tional costs (if any) which the taxing master shall certify as properly payable out of such one-eighth be paid to the solicitors as hereinafter directed. Let the residue of the said one-eighth be paid to the Deft T. A. B. — Similar directions for distribution of remaining eighths, for payment of mortgage debts and intei est on particular shares, and as to additional costs. — Let all costs payable under the directions herein- before contained be paid as follows (names of parties and their respec- tive solicitors). — Liberty to apply as to shares on separate accounts and generally. Downing v. Burdon (M. E.), Nov. 19, 1872. Costs — Incumbered Shares of Besidue — Costs of Mortgagors to he paid to Mortgagees, &c. Tax the costs of the Pits and of the Defts (other than such of them as are assignees, mortgagees, or incumbrancers) of these suits as be- tween solicitor and client. But in taxing the costs of the Defts other than the executors the taxing master is to exclude any additional costs incurred by reason of the said Defts or any of them having as&igned, mortgaged, or incumbered their respective shares or interests in the estate of the testator. Let so much of the £— Consolidated £3 per Cent. Annuities on the credit of, &c., as will raise such costs when taxed be sold. Let the taxing master also tax the costs of the Defts, the assignees, mortgagees, and incumbrancers, of these suits as be- tween solicitor and client, and certify in respect of whose shares or interests respectively such costs have been incurred. Declare that the costs of the Defts who are assignors or mortgagors ought to be. paid to their respecitive assignees, mortgagees, and incumbrancers in or Digitized by Microsoft® ADMINISTRATION. 211 towards satisfaction of tlie costs of such assignees, mortgagees, and incumbrancers, so far as the same may be required for the payment of such costs ; but that if the costs of the Defts, the assignors or mort- gagors, shall exceed the costs of their assignees, mortgagees, or incum- brancers respectively, the amount of such excess ought to be paid to such assignors or mortgagors respectively ; and if any of the Defts are second incumbrancers on such shares, then that the excess of any of the costs of the Defts of whose shares they are such second incum- brancers, after providing for the costs of the first incumbrancers thereon, ought "to be paid to such second incumbrancers respectively, in or towards satisfaction of their costs, and that any surplus of such assignors or mortgagors' costs ought to be paid to them ; but if the costs of the assignors or mortgagors shall not be sufficient to pay the costs of their assignees or mortgagees respectively in full, that the residue of such assignees or mortgagees' costs ought to be paid to them out of the shares of which they are such assignees, mortgagees, or incumbrancers. Let out of the money to arise by the sale herein- before directed the said costs be paid as follows : the costs of the Deft B. as assignee or mortgagee of the share of A. to M., the solicitor of the said Deft ; and if the same shall be more than sufficient to pay the said costs of the Deft B. as such assignee. Let the excess be paid to M., the solicitor of the said — [mortgagor]. Eesidue to be divided into fifteen parts, and paid or applied as follows, &c. Oreedy v. Lavender, 11 Beav. 417. Costs to be raised by Mortgage — and, if necessary, by Sale. . Declare that the costs of the Pit and Deft and — having liberty to attend, &c., of this suit, including in the costs of the Defts any costs, charges, and expenses properly incurred by them as executors, &c., and also the costs of all parties of raising in manner hereinafter directed the amount of such costs, are a charge upon the property, subject to the trusts of the will of the testator S. B. Let it be referred to the taxing master to tax the said costs. Let J. C. B. and W. A., the trustees of the will of the said testator, raise the said costs by mortgage of a competent part of the trust estate, or if necessary of the whole thereof, with the approbation of the judge, with liberty to apply in chambers to have, the same raised by sale if necessary. And if the said costs be raised by mortgage. Let the money to arise by such mortgage be paid into court to the credit of this cause, C. v. B. And Let, out of the moneys so to be raised, the said costs be paid as follows [directions for payment to the solicitors of the parties]. And in case the said costs be raised by mortgage. Let the Deft M. B, [the tenant for life] keep down the interest on such mortgage. — Liberty to apply. Cooper v. Blumfield (V.-C. H.), May 6, 1874. Digitized by Microsoft® ^ - 212 ADMINISTBATION. Establishing Will. As the claim of the creditor against real estate is paramount to the title both of the heir and devisee, it is not necessary in a creditor's suit against real estate to establish the will : GoodchiU v. Terrett, 5 Beav. 398. And in such a suit the heir-at-law is not a necessary party: Bridges v. Euxman, 16 Sim. 71, overruling Brown v. Weafherhy, 10 Sim. 125. And in suits to execute the trusts of a will it shall not be necessary to make the heir-at-law a party ; but the pit shall be at liberty to make the hoir-at-law a party where he desires to have the will established against him : Cons. Ord. 7, rule 1. Where the heir admits the will the Court will establish it without declaring it well proved : Seton, 228. But the admission of a will in the separate answer of a married woman who •was the heiress-at-law has been held insufficient to enable the Court to declare the will established : Brown v. Hay ward, 1 Hare, 432. It has not been the practice to establish wills of copyhold estates against the heir-at-law; Archer v. Slater, 10 Sim. 624 ; 11 Sim. 507. Although a will cannot, either before or after probate, be set aside in equity on the ground that the will was obtained by fraud on the testator, yet where the probate has been obtained by fraud on the next of kin, equity will interfere : Williams on Executors, 523 ; Mitford, PI. 257, 4th ed. ; Bamesley v. Powell, 1 Ves. 119. The rule is the same where a will has been proved in solemn form : QingeU v. Home, 9 Sim. 539 ; Allen v. Macpherson, 1 H. L. C. 191, reversing S. C. 5 Beav. 469. Where proceedings are taken under the Probate Act for proving a will relating to real estate in solemn form, or for revoking the probate of a will on the ground of invalidity, the heir and persons interested in the real estate must be cited : 20 & 21 Vict. c. 77, s. 61. The Court of Probate now has jurisdiction to determine the validity of wills of real estate : 20 & 21 Vict. c. 77, ss. 61-5. And where the will has been proved in solemn form, or its validity otherwise decided on by the decree of the Court of Probate, the probate copy of such will, or the letters of administration with the will annexed, or an official copy, shall in all Courts and in all suits and proceedings affecting real estate (except proceedings by way of appeal or for the revocation of probate or administration) be received as conclusive evidence of the validity of the will, in like manner as probate is received in evidence in matters relating to personal estate : 20 & 21 Vict. o. 77, B. 62. In any action at law or suit in equity the probate or letters of administration, or the stamped copy, will be sufficient evidence of a will of real estate, although the same may not have been proved in solemn form and declared valid, unless notice is given that the validity of the devise or other testamentary disposition be disputed : 20 & 21 Vict. c. 77, s. 62. Thus, unless the will has been proved in solemn form, and its validity declared by decree or order so as fall within the 62nd section, it will still be necessary to produce the original will, if notice of disputing the validity be given under the 64th section : Williams on Executors, 538. If a will is a mixed will concerning both lands and goods, it must be proved Digitized by Microsoft® ADMINISTRATION. 213 entirely in the Court of Probate. But the probate will not prejudice the heirs unless they have been cited under the Probate Act : Williams on Executors, 538. At law it was sufficient to examine one witness to prove a will, if he can prove the due execution of it, unless it is impeached: Seton, 227, citing Peake's Evidence, 401. In equity, and as a general rule, in order to establish the will against the heir all the witnesses must be examined : Booth v. Blundell, 19 Ves. 505, per Lord Eldon.^ And the rule is the same in the trial of an issue devisavit vel non before a jury : Pemberton v. Perriberton, 11 Ves. 53, subject to exceptions where one of the wit- nesses is dead or out of the jurisdiction, and perhaps where the will is only par- tially in question : S. C. ; see also Lord Carrington v. Payne, 5 Ves. 404, 411 ; James v. Parnell, T. & R. 417 ; McKenzie v. Eraser, 9 Ves. 5. Where in a suit to establish a will one of the witnesses was proved to be abroad, but his handwriting was proved, and the execution of the will proved by the other witness, the Court would not declare the will well proved, but the evidence was entered as read, and the trusts of the will directed to be carried into execution : Eare v. Hare, 5 Beav. 629 ; 7 Jur. 336. And where all the witnesses cannot be examined, but the Court is satisfied as to the execution of the will, the decree will not declare the will well proved, but will direct the trusts to be performed : Bi'nfield v. Lambert, 1 Dick. 337. In order to establish a will against the heir-at-law, the sanity of the testator must be proved : Harris v. Ingleden, 3 P. Wms. 93 ; Wdllis v. Hodgson, 2 Atk. 56 ; 1 Russ. 527. The Coui't has established a will without production of the original, where cir- cumstances have rendered the production of the original impossible, and where strict proof of execution and attestation have been given : Ellis v. Medlicott, 4 Beav. 144 ; Band v. Macmahon, 12 Sim. 533, 566 ; 6 Jur. 450. A mere legal devisee might file his bill against an heir-at-law for the pui-pose of establishing the will against him, although no trusts are declared by the will, and although it is not necessary to administer the estate under the direction of the Court : Boyse v. Bossborough, 3 De G. M. & G. 817 ; 18 Jur. 205 ; 6 H. L. C. 1. The Court has no authority to direct an issue devisavit vel non, unless the heir- at-law disputes or does not admit the will ; Whitaker v. Newman, 7 Jur. 231. Wills thirty years old prove themselves ; Man v. Bicketts, 7 Beav. 93, 101 ; Orange v. Pick/ord, 4 Jur. (N.S.) 649. The Court of Chancery will on a proper occasion order, upon motion, that the original will be delivered out of the registry to the solicitor or agent of the parties proposing to establish it upon giving security : Williams on Executors ; Morse v. Boach, 1 Dick. 65 ; Frederick v. Aynscomb, 1 Atk. 627. Actions for Administkation. " Sub-section 1 of clause 25 of the principal Act is hereby repealed, and instead thereof the following enactment shall take effect ; (that is to say) in the admi- nistration by the Court of the assets of any person who may die after the com- mencement of this Act, and whose estate may prove to be insufficient for the payment of its debts and liabilities and the costs of winding up, the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annui- ties and future and contingent liabilities respectively as may be in force for the Digitized by Microsoft® 214 ADMINISTEATION. time being under tlie law of bankruptcy with respect to the estates of persons adjudged bankrupt ; and all persons who in any such case would be entitled to prove for and receive dividends out of the estate of any such deceased person, or out of the assets of any such company, may come in imder the decree or order for the administration of such estate, or under the winding-up of such company, and make such claims against the same as they may respectively be entitled to by virtue of this Act " : The Judicature Act, 1875 (38 & 39 Vict. c. 77), sect. 10. A creditor may institute proceedings for payment of his own debt alqfie, and in such suit no general accoimt of debts was usually directed, but only an account of the personal estate, and that particular debt which is ordered to be paid in a course of administration : Att.-Gen. v. Cornthwaite, 2 Cox, 44 ; Morrice v. Bank of England, Oas. t. Tal. 217 ; Anon., 3 Atk. 572. The Court had power in such suits to make a decree as upon a general creditor's bill: Martin v. Martin, 1 Ves. 213 ; Sheppard v. Kent, 2 Vern. 435 ; Anon., 3 Atk. 572 ; Ferry v. Philips, 10 Ves. 38 ; Story, vol. i., p. 546. But the usual course has been for the creditor to institute proceedings on behalf of himself and the other creditors : Be Sir Charles — , 3 P. Wms. 343 ; Owens V. Dickinson, Cr. & P. 48. Where the proceedings have been instituted by a creditor suing on behalf of himself and the other creditors, if the executors or administrators admit assets the pit is entitled to an order for payment of his own debt without a general account : Woodgate v. Field, 2 Hare, 211 ; Story, vol. i., p. 547. As soon as the decree to account is made, the executor or administrator was entitled under the former practice to an injunction to restrain any creditor suing him at law: Morrice v. Bank of England, Cas. t. Tal. 217 ; Martin v. Martin, 1 Ves. 211 ; Perry v. Philips, 10 Ves. 38. But to prevent connivance between the executor or administrator and a creditor, it has been common practice to grant an injunction only where the answer or affidavit of the executor or administrator states the amount of assets, and upon terms : Story, vol. i., p. 550 ; Oilpin v. Lady Southampton, 18 Ves. 469 ; Lee V. Park, 1 Keen, 714. Where there is a devise of real estate and bequest of specific legacies, the personal estate not specifically bequeathed being insufficient for payment of the specialty debts, the deficiency is contributed rateably by the specific le!;atees and specific devisees : Silk v. Pryme, 1 Uick. 384 ; Tombs v. Boch, 2 Coll. 490 ; Order, p. 203 ; Qervis v. Oervis, 14 Sim. 654, ovemdirg Cornewall v. Cornewall, 12 Sim. 298. If unincumbered lands and incumbered lands are both specifically devised, but expressly after the payment of all debts, they contribute proportionally in dis- charge of the mortgage : Story, vol. i., p. 570 ; Carter v. Bamardiston, 1 P. Wms. 505 ; Sowell v. Price, 1 P. Wms. 291. Where the personal assets are sufficient to pay all the debts and legacies and other charges, the heir or devisee who has been compelled to pay any debt or in- cumbrance of his ancestor or testator binding upon him, is entitled (unless there be some other equity which repels the claim) to have the debt paid out of the personal assets in preference to the residuary legatees or distributees : Story, vol. i., p. 570. Where the debt of the creditor is not satisfactorily proved at the hearing, the cause has been directed to stand over, with liberty for the pit to bring an action : Woodgate v. Field, 2 Hare 211, 217 ; Oreyson v. Booth, 5 Hare, 536. Where the pit succeeded at law, and the debt might have been proved at the Digitized by Microsoft® ADMINISTRATION. 215 hearing, the Court in malting a decree for payment of the debt with costs has excluded the costs at law : Oregson v. Booth, 5 Hare, 536. Where in taking an account it appears that the pit, the creditor, has been over- paid, the Court has jurisdiction to order the pit to bring into Coiu't the sum over- paid : Graves v. Wright, 2 D. & War. 77. G-ENEEAL Administration — Parties. " Any residuary legatee or next of kin may Without serving the remaining residuary legatee or next of kin, have a decree for the administration of the personal estate of a deceased person " : 15 & 16 Vict. c. 86, s. 42, rule 1. " Any legatee interested in a legacy charged upon real estate, and any person interested in the proceeds of real estate directed to be sold, may without serving any other legatee or person interested in the proceeds of the estate, have a decree for the administration of the estate of a deceased person " : 15 & 16 Vict. c. 86, s. 42, rule 2. " Any residuary devisee or heir may without serving any co-residuary devisee or co-heir, have the like decree]" : 15 & 16 Vict. c. 86, s. 42, rule 3. " Any one of several cestuis que trust under any deed or instniment may with- out serving any other of such cestuis que trust, have a decree for the execution of the trusts of the deed or instrument" : 15 & 16 Vict. c. 86, s. 42, rule 4. In all cases of suits for the protection of property pending litigation, and in all cases in the njtture of waste, one person may sue on behalf of himself and of all persons having the same interest " : 15 & 16 Vict. c. 86, s. 42, rule 5. " 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 " : 15 & 16 Vict. c. 86, s. 42, rule 6. Persons who under the practice previons to the 15 & 16 Vict. c. 86, were neces- sary parties, are to be served with notice of the decree ; and after such notice will be bound by the proceedings in the same manner as if they had been originally made parties to the suit : 15 & 16 Vict. c. 86, s. 42, rule 8. " In all suits concerning real or personal estate which is vested in trustees under a will, settlement, or otherwise, such trustee shall represent the persons bene- ficially interested under the trust, in the same manner and to the same extent as the executore and 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 parties beneficially interested under the trusts parties ; 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 ": 15 & 16 Vict. c. 86, s. 42, rule 9. Subject to the provisions of the Judicature Acts, and the rules of Court under them, the above-mentioned provisions are to be in force as to actions in the High Court of Justice: Jud. Kules, Order 16, rule 11 ; ante, p. 9. All persons may be joined as pits in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative. And all persons may be joined as defts against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative : Jud. Rules, Order 16, rules 1 and 3. The legal personal representative of a testator has been held to be a necessary party for the administration of the real and personal estate ; and that if not a party, no decree can be made, although an executor de son tort and trustees of real estate are before *^/5'ffWit/-^'?P5fiJfcyD^/?®' ^' ^" ^'' ^'^' ^^ ' ^^ *'^° 216 ADMINISTBATION. Penny v. Watts, 2 Ph. 149 ; Beardmore v. Gregory, 2 H. & M. 491 ; Carey v. mils, L. R. 15 Eq. 79 ; contra, Ooote v. Whitfington, L. K. 16 Bq. 534. And in a general administration suit by one executor against another, the re- maining executor, who had been merely served with notice of decree, has been held a necessary party defendant : Latch v. Latch, L. E. 10 Ch. 464. General Administeation at Chambers. Jurisdiction — Evidence — Variations. Any person claiming to be a creditor or a sijecific pecuniary or residuary legatee, or the next of kin, or some or one of the next of kin of a deceased person, may obtain an order for the administration of the personal estate of a deceased person : 15 & 16 Vict. c. 86, s. 45. And any person claiming to be a creditor of any deceased person, or interested under his will, may apply for an order at chambers for the administration of the real estate of such deceased person, where the whole of such real estate is by devise vested in trustees who are by will empowered to sell such real estate and autho- rized to give receipts for the rents and profits and for the produce of the sale of such real estate : 15 & 16 Vict. c. 86, s. 47. See also the Judicature Act, 1873 (36 & 37 Vict. c. 56, s. 39) ; Jud. Enles, Order 54, ante, p. 74. Although not strictly within the words of sects. 45 and 47 of the 15 & 16 Vict, c. 86, administration orders are granted on the application of persons claiming under the persons mentioned in those sections : Dan. 5th ed. 1071; see also Turner v. Beynoldson, L. B. 16 Eq. 37. The administration decree at chambers is only intended to apply to the common administration accounts ; Partington v. Reynolds, 4 Drew. 253. And upon a common decree for an account a trustee or executor cannot be held liable for the loss of money : Be Fryer, 3 K. & J. 317 ; see also Blakeley v. Blakeley, 1 Jur. (N.S.) 368. And where the question whether administration accounts should be taken depends upon the validity, which is disputed, of a deed, an administration summons was dismissed : Acaster v. Anderson, 19 Beav. 161. The judge has no jurisdiction upon an administration summons to make a decree directing an account for wilful default : Partington v. Beynolds, 4 Drew. 253 ; Blakeley v. Blakeley, 1 Jur. (N.S.) 368 ; Be Fryer, 3 K. & J. 317. Nor to vary or to add to the usual administration decree by directing an account for wilful default : Partington v. Beynolds, 4 Drew. 253. The two decrees are essen-, tially different in principle : Eodson v. Ball, 1 Ph. 177. And upon an administration summons an executor cannot be charged upon an admission of assets : Willshire's Estate, 8 W. R. 133. The Court may upon the application of a cestui que trust make an order for administration of personalty appointed by the will of a manied woman under a power created by deed : Sewell v. Ashby, 3 De G. M. & G. 933 ; S. C. 17 Jur. 269 ; but not where the power was contained in a will : Be Newberry, 10 W. R. 378. Real estate may be administered at chambers where the devise is made subject to the payment of debts, and the trust for sale may thereby be implied : Ogden v. Lowry, 4 W. R. 156 ; Pigott v. Young, 7 W. R. 235. And where the will only gives the executors a power to sell and give receipts, without vesting the estate in them by devise : Colman v. Turner, L. R. 10 Eq. 230; 18 W. R^ 063. Digitized by Microsoft® ADMINISTRATION. 217 So, too, where in the trust for sale there was a direction that a considerable portion of the real estate should not he sold for a period of five years ; De la Salle V. Moorat, L. E. 11 Eq. 8; 19 W. E. 88. The Court has a discretionary power in granting administration at Chambers : 15 & 16 Vict. c. 86, s. 45, 47. And where difficult questions are likely to arise the Court had refused to make an order at chambers for administration : West v. Laing, 3 Drew. 331, 333 ; see also Be Sampson, 14 W. R. 472. The order at chambers for administration is made upon proof by afSdavit of due service of the summons, or on the appearance in person or by his solicitor or counsel of such executor or administrator, and upon proof by affidavit of such other matters, if any, as the judge shall require : 15 & 16 Vict. c. 86, ss. 45, 47. . The fact that the deft is the legal personal representative or trustee of the real estate of the deceased person should be established by production of the probate or letters of administration, or by other primary evidence of the grant: Dan. 5th ed. 1074. Upon an ordinary decree in a creditor's suit the Court does not treat the decree as conclusively establishing the pit's debt, and a new case may be made in chambers and fresh evidence gone into : Gardell v. Eawke, L. R. 6 Eq. 464 ; see also Whitaker V. Wright, 2 Hare, 310; Owem v. Dickenson, Cr. & Ph. 48, 56; Field v. Tit- muss, 1 Sim. (N.S.) 218. See Evidence genbballt, ante, p. 62. The judge may make the usual order for the administration of the estate of the deceased, with such variations, if any, as the circumstances of the case may require : 15 & 16 Vict. o. 86, s. 45. Where in the prosecution of the decree or order additional accounts or inquiries are required, they may be directed by the judge : Cons. Ord. 35, rule 21 ; Mutter v. Hudson, 2 Jur. (N.S.) 34 ; Be Delevante, 6 Jur. (N.S.) 118 ; see also Wadham V. Bigg, 2 Dr. & Sm. 78. Such additional accounts or inquiries must not be at variance with the principle of the decree : Partington v. Beynolds, 4 Drew. 253 ; Ooope v. Carter, 2 De G. M. & G. 298. Marshalling. The general principle of marshalling is that if one party has a lien on or interest in two funds for a debt, and another party has a lien on or interest in one only of the funds for another debt, the latter has a right in equity to compel the former to resort to the other fund in the first instance, if necessary for satisfaction of the claims of both parties, if it can be done without injustice to the creditor and to the common debtor : Story, vol. i. p. 561 ; Qlifton v. Burt, 1 P. Wms. 678, and note ; Lenoy v. Duke of Athol, 2 Atk. 446 ; Aldrich v. Cooper, 8 Ves. 388, 395 ; Ex parte Kendall, 17 Ves. 520 ; Greenwood v. Taylor, 1 Russ. & My. 185, 187 ; Owynne v. Edwards, 2 Russ. 289. And if the creditor resorts to the fund upon which alone the other party has any security, the Court will decree satisfaction pro tanto to the latter out of the other fund : Aldrich v. Cooper, 8 Ves. 389, 394 ; Order, p. 205 ; Trumner v. Bayne, 9 Ves. 210, 211 ; Westfaling v. Westfaling, 3 Atk. 467 ; Order, p. 205. So, too, where a mortgagee exhausts the personal estate, the simple contract creditors will be allowed to stand in the place of the mortgagee as regards the real estate : Wilson v. Fielding, 2 Vern. 763 ; Aldrich v. Cooper, supra. And legatees are entitled to stand in the place of specialty creditors or mortgagee, Digitized by Microsoft® 218 ADMINISTRATION. or devisee of mortgagee, against the real assets where the personalty has been exhausted by the specialty creditors, mortgagee, or devisee of mortgagee : Aldrich V. Cooper, supra ; Selby v. Selhy, 4 Euss. 336 ; Norris v. Norris, 2 Dick. 542 ; Clifton V. Burt, 1 P. Wms. 678, note. And where legacies by will are charged upon real estate but not the legacies by codicil, the former shall resort to the real assets upon a deficiency of the personal assets to pay the whole : Hyde v. Byde, 3 Chan. Eep. 83, cited in Clifton v. Burt, supra. And the doctrine of marshalling does not depend upon assets only, although technically the term is applied to assets only. A species of marshalling applies where the parties are living : Lanoy v. DuTce of Athol, 2 Atk. 446 ; Aldrich v. Cooper, per Lord Bldon, 8 Ves. 388. The mortgagee who has two funds, as against the other specialty creditors, who have but one fund, must resort first to the mortgage security, and can claim against the common fund only what the mortgaged estate is deficient to pay : Greenwood V. Taylor, 1 Kuss. & My. 185, 187. And if A. has a mortgage upon two different estates for the same debt, and B. has a mortgage upon one only of the estates for another debt, B. has a right to throw A. in the first instance for satisfaction upon the security which he, B., can- not touch : Story, vol i. p. 560 ; Greenwood v. Taylor, supra ; Barnes v. Rackster, 1 Y. & 0. 401 ; obs. of Lord Eldon in Aldrich v. Cooper, 8 Ves. 388 ; Averall v. Wade, Lloyd & (Joold, 255. But where there are several incumbrancers the Court will not, as between the first and second mortgagees and a third incumbrancer, marshal the securitiesiso as to benefit the second incumbrancer and prejudice the third incumbrancer : Barnes V. Bacster, 1 Y. & C. 404 ; Order, p. 205. Where, therefore, A. having two estates mortgages both to B., then one to C, then both again to B., and then both to D., the Court will not, as between 0. and D., marshal the securities by directing B. to take his full payment out of one estate, so as to leave C. the first incumbrancer on the other estate, but B.'s debt must be thrown rateably on both estates : S. C. And in the election of securities such an election must bemade as will not prejudice any other persons than the representatives of the debtor : S. C. ; Aldrich V. Cooper, 8 Ves. 388. The principle of marshalling applies also to the case of one judgment creditor who has a right to go upon two funds, and another judgment creditor who has a right upon one only of them, both belonging to the same debtor: Story, vol. i. p. 561 ; Averall v. Wade, Lloyd & Goold, 264. So, too, in the case of suretyship, the surety paying the debt may be given the benefit of any securities given to the creditor : Aldrich v. Cooper, supra ; Ex parte Rushforth, 10 Ves. 410, 414; Parsons v. Ruddock, 2 Vern. 608 ; Ex parte Kendall, 17 Ves. 520. Where the personal estate is insufficient for the payment of debts and lega- cies, the residuary legatee contributes rateably as well as the pecuniary legatees : Eensman v. Fryer, L. R. 3 Clji. 420, overraling S. C, L. R. 2 Bq. 627 ; Order, p. 204. A residuary devise of real estate remains specific, notwithstanding the 24th section of the Wills Act : S. C. And where the personal estate is insufficient for the payment of the debts the specific devisee must contribute rateably with the residuary devisee : Lancefield v. Iggulden, L. E. 10 Oh. 136. Where a testator gave certain charitable legacies, and directed that they should Digitized by Microsoft® ADMINISTRATION. 219 be paid out of Ws pure personalty, those legatees are entitled to be paid out of the pure personalty in preference to the other legatees ; but in such case the debts of the testator and general administration charges are first payable out of the pure and impure personalty rateably ; Beaumont v. OUveira, L. E. 4 Ch. 310, 319 ; overruling S. C, L. E. 6 Eq. 534 ; Order p. 230. Where a testator, domiciled in England, died possessed of personal estate and of real estate in Scotland which descended to the Scotch heir, in an administration suit it was held that the liability of the Scotch real estate to the payment of the debts, as between the heir and pecuniary legatees, must be determined by the law of Scotland : Harrison v. Barriaon, L. E. 8 Ch. 342. Where the law of Scotland throws the general debts primarily on the personal estate, there is no marshalling in the English Court against the Scotch heir in favour of the pecuniary legatees : S. C. Specialty and Simple Contract Debts. In the administration of the estate of every person who shall die on or after the 1st of January, 1870, no debt or liability of such person shall be entitled to any priority or preference by reason merely that the same is secured by or arises under a bond, deed, or other instrument under seal, or is otherwise made or constituted a specialty debt ; but all the creditors of such person, as well specialty as simple contract, shall be treated as standing in equal degree, and be paid accordingly out of the assets of such deceased person, whether such assets are legal or equitable, ;my statute or other law to the contrary notwithstanding : Provided that this Act shall not prejudice or affect any lien, charge, or other security which any creditor may hold or be entitled to for the payment of his debt : 32 & 33 Vict. c. 46. Legacy and Succession Duty. Whenever any suit is pending in any Court for the administration of any pro- lierty chargeable with duty under the Succession or Legacy Duty Acts, the Court is to provide out of any property which may be in its possession or control, for the payment of duty to the Commissioners : 16 & 17 Vict. c. 51, s. 53. " Every order du-ecting the payment of money, or the transfer or delivery of securities in Couit, in respect of which duty shall be payable to the revenue under the Acts relating to legacy or succession duty, shall, unless such order expressly provides for the payment of the duty, also direct the Chancery Paymsister to have regard to the circumstance that such duty is payable ; atid when by an order money or securities in respect of which such duty may be chargeable are directed to be invested, carried over, or placed to a separate account, the words ' subject to legacy duty,' or ' subject to succession duty,' as the case may be, shall be added in the order to the title of the account thereby directed to be raised. Every order providing for payment out of money or the proceeds of securities in Court of any duty payable under the Acts relating to legacy or succession duty shall direct that the amount of such duty shall, upon the requisition of the Com- missioners of Inland Revenue, be transferred to the account of Inland Revenue at the Bank " : Chancery Funds Eules, 1874, r. 14. Where the amount of the duty is small it is sometimes ordered to be paid to the soUcitor on his undertaking to ap[)ly it. If a fund is paid out of Court without providing for duty which is chargeable upon it, the person chargeable may, upon the application of the Attorney-General, be ordered to pay the amount : Bryan v. Mansion (b. C), 3 Jur. (N.S.) 473. Digitized by Microsoft® 220 ADMINISTRATION. Interest on Debts and Legacies. "Where a decree or order is made directing an account of the debts of a deceased person, unless otherwise ordered interest shall he computed on such debts, as to such of them as carry interest, after the rate they respectively carry, and as to all others after the rate of £4 per cent, per annum from the date of the decree or order " : Cons. Ord. 42, rule 9. " A creditor whose debt does not carry interest, who comes in and establishes the same before the judges in chambers under a decree or order of the Court or of the judge in chambers, shall be entitled to interest upon his debt at the rate of £4 per cent, per annum from the date of the decree or order, out of any assets which may remain after satisfying the costs of the suit, the debts established, and the interest of such debts as by law carry interest " : Cons. Ord. 42, rule 10. All judgment debts carry interest at the rate of £4 per cent, per annum from the time of entering up the judgment : 1 & 2 Vict. c. 110. As to allowance for interest on the arrears of annuities : See Dan. 5th ed. 1104, and cases there cited. " Where a decree or order is made directing an account of legacies, interest shall be computed on such legacies after the rate of £4 per cent, per annum from the end of one year after the testator's death, unless otherwise ordered, or unless any other time of payment or rate of interest is directed by the will, and in that case according to the will" : Cons. Ord. 42, rule 11. In the case of legacies charged upon or directed to be raised out of the rents and profits of real estate or by mortgage interest is chargeable from the death of the testator : Pearson v. Pearson, 1 Sch. & Lef. 10 ; Spurway v. Glynn, 9 Ves. 483 ; Shirt V. Westly, 16 Ves. 393. Where real estates are devised upon trust for sale, and out of the proceeds to pay legacies, interest is payable from the period of a year after the testator's death : Turner v. BucTc, L. E. 18 Bq. 301. Appoetionment of Income — Appoetionment Act, 1870. " All rents, annuities, dividends, and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise) shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly ": 33 & 34 Vict. 0. 35, s. 2. The word " rents " includes rent-service, rent-charge, and rent-seek, and also tithes and all periodical payments or renderings in lieu of or in the nature of rent or tithe. The word " annuities " includes salaries and premiums. The word " dividends " includes (besides dividends strictly so called) all pay- ments made by the name of dividend, bonus, or otherwise, out of the revenue of trading or other public companies, divisible between all or any of the members of such respective companies, whether such payments shall be usually made at any fixed time or otherwise : 33 & 34 Vict. c. 35, s. 5. The income arising from personalty specifically bequeathed has in certain cases been held not apportionable under the Apportionment Act, 1870, as between the specific legatee and the estiite of the testator : Whitehead v. Whitehead, L. R. 16 Eq. 528 ; Jones v. Ogle, L. R. 8 Oh. 192. But as a general rule a specific devise or bequest appears to be apportionable : Capron v. Oapron, L. R. 17 Eq. Digitized by Microsoft® ADMINISTRATION. 221 288 ; Pollooh v. Pdlook, L. R. 18 Eq. 329 ; Earduck v. Pedley, L. R. 19 Eq. 271. The apportioned part of any such rent, annuity, dividend, or other payment shall be payable or recoverable in the case of a continuing rent, annuity, or other such payment, when the entire portion of which such apportioned part shall form part shall become due and payable, and not before, and in the case of a rent, annuity, or' other such payment determined by re-entry, death, or otherwise, when the next entire portion of the same would have been payable if the same had not so determined, and not before : 33 & 34 Vict. c. 35, s. 3. Ne Exeat in Administration Suit. A ne exeat may be obtained against a deft ordered to pay money in an adminis- tration suit, upon evidence that he is about to leave the country before the day of payment has arrived : Sohey v. Sdbey, L. R. 15 Eq, 200. Account between Tenant foe Life and Eemaindeeman. In adjusting the accounts of a testator's estate between tenant for life and re- mainderman the debts and legacies are to be taken as having been paid, not out of capital only, but with such portion of that capital as, together with the income of that portion for one year, is sufficient for the purpose : Allhusen v. Whittell^ L. R. 4 Eq. 293. And the rule is not affected by the circumstance that the debts and legacies have been paid before the expiration of a year from testator's death : Lambert v. Lambert, L. R. 16 Eq. 320. Outstanding Estate. "Every decree or order for an account of the personal estate of a testator or in- testate shall contain a direction for an inquiry what parts (if any) of such personal estate are outstanding or undisposed of, unless the Court shall other- wise direct : Cons. Ord. 23, rule 14. DOMICIL. The domicil of every individual as soon as he is born is the domicil of his father if the child be legitimate, and the domicil of the mother if illegitimate. This is the domicil of origin. Other domioils, including domicil by operation of law, as on marriage, are domicils of choice : Udny v. Udny, 1 H. L., Sc. 441. Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time : S. C. See also Haldane v. Echford, L. R. 8 Eq. 631, 640. The evidence must be stronger to shew abandonment of original domicil than to shew retention of original domicil : Lord v Colvin, 4 Dr. 366 ; Whicker v. Rvnm, 7 H. L. C. 124. And to establish a change of domicil of origin it is necessary to shew that the person whose domicil is in question intended to change his domicil as distin- guished from his nationality and allegiance : Moorhouse v. Lmd, 10 H. L. C. 272. Digitized by Microsoft® 222 ADMINISTRATION. But an intention to change the civil status has been held unnecessary : L. E. 12 Bq. 617. In order to effect a change of domicil it is sufficient that there should be a change of residence of a permanent character voluntarily assumed : Ealdane v. Echford, L. R. 8 Eq. 631. The intention required to effect a change of domicil (as distinguished from the acts embodying it) is an intention to settle in a new country as a permanent home : Douglas v. Douglas, L. R. 12 Bq. 617. But the residence must be freely chosen, and not prescribed or dictated by any external necessity, and it must be residence fixed, not for a limited period or particular purpose, but generally, and indefinite in its future contemplation Udny V. Udny, 1 H. L., Sc. 441. A man cannot, at least with reference to the law of succession to personal estate, have two domioils : Somerville v. Somerville, 4 Ves. 749 ; Forbes v. Forbes, Kay, 341. The domicil of an infant cannot be changed by his own act : Forbes v. Forbes, Kay, 341, 353. An acquired domicil is not lost by mere abandonment, but continues until a subsequent domicil is acquired : Munroe v. Douglas, 5 Madd. 379. And the strongest intention of abandoning a domicil, and actual abandonment of residence, will not deprive a man of that domicil, unless he has acquired another : Forbes v. Forbes, Kay, 341. The determination of a man's domicil is not affected by the circumstance that the choice of residence had been made in deference to the wishes of his wife: Aitchison v. Dixon, L. E. 10 Bq. 589. Costs out of Estate. Generally, wherever an estate or fund is administered by the Court, the costs of all necessary and proper parties are the first charge : Bare v. Rose, 8 Ves. 558 ; Ford V. Lord Ghesterfield, 21 Beav. 426; Barnwell v. Iremonger, 1 Dr. & Sm. 255. Trustees, executors, and administrators are entitled to their costs out of the estate, except in cases of misconduct or vexatious conduct : Ourteis v. Candler, 6 Mad. 123 ; Poole v. Pass, 1 Beav. 600 ; Eolford v. PUpps, 3 Beav. 434, 440 ; 4 Beav. 474 ; Whitmarsh v. Robertson, 6 Jur. 921 ; Noble v. Meymott, 14 Beav. 471 ; King v. King, 1 De G. & J. 663 ; Farington v. Parker, L. E. 4 Bq. 316. If trustees or persons holding a fiduciary position sever in the institution of pro- ceedings or in their defence, they will only be entitled, except imder special circumstances, to one set of costs : Farr v. Sheriff, 4 Hare, 528 ; 10 Jur. 630 ; Hughes v. Key, 20 Beav. 395 ; Snoiu'v. Teed, L. E. 9 Bq. 622. Where the trustees have not joined in instituting the proceedings, and the pit's costs, independently of the question of severance, have been properly incurred, the costs of the deft trustee, if he o^ght to have been made a co-pit, are deducted from the pit's costs ; and that if the deft trustee has refused to join as a co-pit, his costs should be deducted : Dan. 5th ed. 1274 ; Hughes v. Key, 20 Beav. 395. Where a trustee ought to have paid the fund into Court under the Trustee Eelief Act, he will only be allowed such costs as he would have been entitled to if the fund had been so paid in : Wells v. Malbon, 31 Beav. 48 ; 8 Jur. (N.S.) 249 ; Gunnell v. Wliite, 18 W. E. 883. If trustees or persons holding a fiduciary position by their neglect or mis- Digitized by Microsoft® ADMINISTRATION. 223 conduct occasion the proceedings, they will not be entitled to costs out of the estate : England v. Dmvnes, 6 Beav. 279 ; Gockroft v. SuicUffe, 2 Jur. (N.S.) 323 ; Fyfe V. Arhuthnot, 3 Jur. (N.S.) 651 ; Simpson v. Bathurst, L. E. 5 Ch. 193. But mere neglect of duty, such as the omission to remit balances, if unaccom- panied by fraud, does not disentitle them to the general costs of suit, although it may subject them to the costs of so much of the suit as was occasioned by their neglect : Dan. 5th ed. 1277, n., and cases cited. Where proceedings are instituted either by creditors or legatees for a general administration, the personal representatives of the testator or intestate are en- titled to their costs out of the estate. And even where the assets are insufficient for the payment of the debts, the costs constitute the first charge upon the fund arising from the personal estate : Oaunt v. Taylor, 2 Hare, 413, 420 ; OtUey v. Oilby, 8 Beav. 602 ; Tanner v. Dancey, 9 Beav. 339, 342 ; Stevens v. Pillen, 12 Jur. 282. But in proceedings by a creditor against a personal representative for payment of that creditor's debt only, the Court makes no order for payment of the costs of the personal representative, although, if the creditor succeeds, the payment of his debt as well as his costs will be ordered out of the estate. Where a suit for administration has been properly instituted, the coats of the pit and all necessary parties ai-e considered as expenses in administering the estate, and are a first charge upon it : Dan. 5th ed. 1286 ; Loomes v. Stotherd, 1 S. & S. 458 ; Larhins v. Paxton, 2 My. &, K. 320 ; Barher v. Wardle, 2 My. & K. 818. If the estate is insufficient for the payment of all the costs, the executor's costs are first payable ; then the pit's ; and then those of the other parties : Tipping v. Power, 1 Hare, 405, 411 ; 6 Jur. 434 ; Tanner v. Dancey, 9 Beav. 339. In suits by a creditor on behalf of himself and other creditors, if the estate proves insufficient, the pit is entitled to his costs as between solicitor and client : Sutton V. Doggett, 3 Beav. 9 ; Brodie v. Bolton, 3 My. & K. 168 ; Stanton v. Hatfield, 1 Keen, 358, 362 ; Thomas v. Jones, 1 Dr. & Sm. 134; 6 Jur. (N.S.) 391 ; see also Larhins v. Paxton, 2 My. & K. 320. So, too, in suits by a legatee, where the estate is sufiioient to pay the debts, but insufficient to pay the legacies in full : Gross v. Kennington, 11 Beav. 89 ; Waldron v. Francis, 10 Hare, App. 10 ; Thomas v. Jones, 1 Dr. & Sm. 134 ; 6 Jur. (N.S.) 391 ; Burrell v. Smith, L. E. 9 Eq. 443. Where there was no personalty, and the suit had been instituted by creditors to administer the realty, which proved deficient, the costs of all parties taxed as between party and party were directed to be paid pari passu out of the fund ; the balance then remaining to be applied in payment of the pit's extra costs as between solicitor and client ; and then in payment of debts : ffenderson v. Dobbs, L. E. 2 Eq. 532; Dan. 5th ed. 1301. Where the pit's claim fails, or the estate is exhausted by prior demands, so that he does not obtain payment of his demand, he is nevertheless entitled to his costs if the Court has been enabled to administer the estate through his exertions : Wedgwood v. Adams, 8 Beav. 103, But where a person claiming as legatee fails to establish his claim, he will not in general be allowed his costs out of the estate : Dan. 5th ed, 1289 ; Lynn v, Beaver, T. & E. 63, 69 ; Lee v. Bdane, 4 De G. & Sm. 1, 6 ; 14 Jur. 861 ; see also Lee v. Brown, 4 Ves. 362, 369 ; Ottley v. OUby, 8 Beav. 602 ; Thompson v, Olive, 11 Beav. 475. Where any doubt arises with reference to any bequest or devise which has Digitized by Microsoft® 224 ADMINISTRATION. occasioned the proceedings, the costs of suit are usually paid out of the residuary- personal estate: Nisbet v. Murray, 5 Ves. 149, 158; Wilson v. Brownsvnck, 9 Ves. 180 ; Wilson v. Squire, 13 Sim. 212 ; Ecmdley v. Bavies, 5 Jur. (N.S.) 190 ; Wilkinson v. Lindgren, L. R. 5 Ch. 570. And this is the rule although the testator charges his debts and testamentary expenses upon a specific fund : Browne v. Oroonibridge, 4 Madd. 495, 502 ; Linley v. Taylor, 1 Griflf. 67 ; Stringer v. Harper, 26 Beav. 585 ; 5 Jur. (N.S.) 401. But where a specific part of a testator's property was charged with his debts in exoneration of the residue, the costs of the suit were held payable out of the part charged : Morrell v. Fisher, 4 De Gr. & Sm. 422 ; see also Wilsmi v. Eeaton, 11 Beav. 492. So, too, where a specific part was charged with the debts and the costs of exe- cuting the trusts of the will : Alsop v. Bell, 24 Beav. 451 ; Webb v. Be Beavr- voisin, 9 Jur. (N.S.) 369 ; 11 W. R. 132. Where the costs of suit are payable out of the general residue, no distinction exists between the cases in which it is disposed of and those in which it is not : Eyre v. Marsden, 4 My. & Or. 244 ; Nisbett v. Murray, 5 Ves. 149 ; Souse v. Chapman, 4 Ves. 542 ; Barton v. Cooh, 5 Ves. 461. Where a testator devised the whole of his real estate to trustees upon trusts, some of which were void for remoteness, and the will contained no residuary devise, the personalty being insufficient, the costs were, as between the heir and devisee, ordered to be borne primarily by the real estate descended : Eow v. Row, L. B. 7 Eq. 414. In the latter case, the whole estate being vested in trustees and the costs of suit being costs incurred in the execution of the trusts, the rights of the heir-at- law were not such rights as would attach to an heir having a clear legal estate : see observations of V.-O. J. in S. 0. 417. Where a particular fund has been severed from the residue, and the question is simply between persons claiming it, the costs come out of that fund : Jenour v. Jenour, 10 Ves. 562, 573 ; Wilson v. Squire, 13 Sim. 212 ; Dugdale v. Dv,gdah, 12 Beav. 247, 251 ; Governesses Institution v. Busbridger, 18 Beav. 467 ; Bichardson v. Busbridger, 20 Beav. 136. Where real and personal estates ai-e administered in one suit, the costs may be apportioned between the two estates : Jones v. , Mitchell, I S. & S. 290, 295 ; Dixon V. Dawson, 2 S. & S. 327, 340 ; Bennett v. Foster, 7 Beav. 540, 544 ; Johnston v. Todd; 8 Beav. 489, 492 ; Eopkinson v. Mlis, 10 Beav. 169, 176. And they may be apportioned between appointed and unappointed parts of a fund : Trollope v. Boutledge, 1 De G. & Sm. 662, 671 ; Warren v. Postlethwaite, 2 Coll. 116, 123. By consent the Court has made orders charging the costs of an administration suit on the real estate, and directing a sale : Thackeray v. Barker, 1 New Hep. 567 ; Coventry v. Coventry, 34 Beav. 572 ; Fleming v. Armstrong, 34 Beav. 109 ; Cox V. Cox, 3 K. & J. 554. But the Court has no jurisdiction to charge such costs on the property being administered against the wish of a beneficiary who offers to pay his share of those costs : Lees v. Lees, L. R. 15 Eq. 151. In an administration suit by a mortgagee who has obtained an order for sale for payment of his debt, the executors of the testator have been given their costs, charges, and expenses in priority to the pit's costs : Re Spensby's Estate, L. R, 15 Bq. 16 ; see also Wetenhall v. Davis, 33 Beav. 285. But see contra Cook v. Hart, L. R. 12 Eq. 459, 463; Pinchard v. Fellows, h. R. 17 Eq. 421. Digitized by Microsoft® ADMINISTRATION. 225 In an administration suit by a legatee, others in the same class served with notice of the decree and attending the proceedings are not, except under special circumstances, allowed their costs of attending : Be Taylor's Estate, L. E. 1 Eq. 495 ; Armstrong v. Armstrong, L. R. 12 Eq. 614. A direction in the will of a testator to pay testamentary expenses and debts, includes the costs of an administration suit : Harloe v. Sarlof, L. E. 20 Eq. 471 ; Miles v. Harrison, L. R. 9 Ch. 316. Costs of Incumbered Shares. Where parties entitled to a share in an estate being administered have incum- bered such share, they and their incumbrancers will only be entitled to one set of costs between them out of the estate, and the extra costs will be thrown upon the share itself: Greedy v. Lavender, 11 Beav. 417, 420 ; Order, p. 210 ; Remnant V. Hood, 27 Beav. 613 : Ward v. Tates, 1 Dr. & Sm. 80. And in such case the costs of the mortgagors which are payable out of the estate will, if necessary, be ordered to be paid to the incumbrancers in order of priority : S. C. ; Perceval v. Perceval, L. E. 9 Eq. 386, 394. County Court Jurisdiction. The County Courts held under the Act 9 & 10 Vict. c. 95, are to exercise all the power and authority of the Court of Chancery (J,nter alia) : 1. In all suits by creditors, legatees (whether specific, pecuniary, or residuary), devisees (whether in trust or otherwise), heirs-at-law, or next of kin, in which the personal or real, o r personal and real, estate against or for an account or administration of which the demand may be made shall not exceed in amount or value the sum of £500. 2. In all suits for the execution of trusts in which the trust estate or fund shall not exceed in amount or value the sum of £500 : 28 & 29 Vict. c. 99, g. 1. The County Courts have power under this Act to entertain administration suits instituted by the assignees and representatives of the persons enumerated in those classes : Turner y. Reynoldson, L. B. 16 Eq. 37. But the Acts conferring equitable jurisdiction on the County Courts do not prohibit a pit from instituting proceedings in the Court of Chancery : Brown v. Bye, L. B. 17 Eq. 343, Any one of the Vice-Chancellors on application at Chambers may transfer the same to the Court of Chancery upon such terms, if any, as to security for costs or otherwise, as he may think fit : 28 & 29 Vict. c. 99, s. 2. Where during the progress of any proceedings it appears that the subject matter exceeds the limit in point of amount to which the jurisdiction of the County Court extends, the validity of any order or decree made is not to be affected, but the suit or matter is to be transferred to the Court of Chancery ; and any party may apply that, notwithstanding such excess in the amount of such limit, the suit or matter may be prosecuted in chambers : 28 & 29 Vict. c. 99, . s. 9. Proceedings for the administration of the assets of a deceased person are to be taken in the County Court within the district of which the deceased person had his last place of abode in England, or in which the executors or administrators of any one of them shall have their or his place of abode : 28 & 29 Vict, c, 99, s. 10. Where any suit or proceeding shall be pending in the Court of Chancery which Digitized by Microsoft® - Q 226 ADMINISTBATIOJr. might have been commenced in a County Court, any party may apply at chambers to have the same transferred to the County Court in which the pro- ceedings might have been commenced : 30 & 31 Vict. c. 142, s. 8. A transfer under 30 & 31 Vict. c. 142, s. 8, is matter for discretion of the judge before whom the suit is pending, with which the Court of Appeal will not interfere : lAnford v. Oudgeon, L. B. 6 Ch. 359. " The provisions contained in the 5th, 7th, 8th, and 10th. sections of the County Court Act, 1867 (30 & 31 Tict. o. 142), shall apply to all actions commenced or pending in the said High Court of Justice, in which any relief is sought which can be given in a County Court " : Judicature Act, 1873 (36 & 37 Vict. o. 66), s. 67. Charities. Gifts to Charities — Preliminary Inquiries. Accounts of testator's personalty. — Let an inquiry be made whether any and vsrhat part of the testator's estate consisted of personal estate invested on the security of land or connected vrith land, and whether any and what parts thereof consisted of personal ^estate unconnected with land, and what were the respective values thereof at the death of the testator. Cahiert v, Sebright, 1847, A. 194 ; Seton, 331. Similar Order. Accounts of testator's personalty. — And in taking the said accounts Let that part of the personal estate which consisted or now consists of leasehold hereditaments, or of money secured upon mortgage, or upon the deposit of title deeds, or in anywise connected with any interest in real estate, be distinguished from that part of the testator's personal estate which has been or now is in nowise connected with any interest in real estate. Let an inquiry be made what was the value of such part of the said personal estate as did not consist of money at the time of the testator's death, and has not since been converted into money. Williams v. Kershaw, 1835, B. 165 ; Seton, 331. Preliminary Accounts of Personalty — Administration without prejudice to validity of Charitable Bequests. Inquieies as to parties and next of kin. — Accounts of testator's per- sonalty. — Let an inquiry be made of what particulars the testator's personal estate consisted at the time of his death, distinguishing such parts thereof as have arisen from or are connected with land from the ■ other parts of his said personal estate. — Inqiiiry what were the values of such respective parts of the testator's said personal estate at his death. — Accounts of debts, funeral expenses, and legacies, and inquiry what parts of personal estate are outstanding. — Let the testator's per- sonal estate not specifically bequeathed be applied in payment of his Digitized by Microsoft® ADMINISTRATION. 227 debts and funeral expenses in a due course of administration, and then in payment of the legacies and annuities given by tis will, but sub- ject and without prejudice to any questions whether any and which of the charitable legacies given by the testator are Valid charitable be- quests, and if so, whether the same or any of them may to any and what extent be void under the statute 9 Geo. 2, c. 36, intituled, &c., and to the apportionment thereof.- Mumford v. Creswdl, 1860, B. 1631 j Seton, 330. Prelimi'mry Inquiry as to Charities referred to in Testator's Will. Let an inquiry be made what are the institutions referred to in the will of the testatrix F. M. as the Dominican convent at Carisbrook, and the Sisters of Charity of St. Paul at Selley Oak, and whether they are charitable institutions within the meaning of the Mortmain Act. Gochs V. Manners (V.-G. W.), Nov. 5, 1870 ; cited_L. E. 12 Bq. 674. Similar Order. An inquiry whether there was any church answering the description in the will of the testatrix M. M. of " an additional church at Aberyst- with" being erected- or being about to be erected at the time of the death of the testatrix. Sinnett v. Herbert (V.-C. B.), May 7, 1869. Gifts declared void. DecIiAjee that the charitable gifts contained in the will of the testator A., or in the indenture dated, &c., so far as the same are payable out of the testator's real estate or personal estate savouring of realty, are null and void [or, that the bequest of £ — contained in the wiU of the testator A. to — , to be applied, &c., is null and void], as being con- trary to the statute passed in the ninth year of the reign of His late Majesty King George the Second, intituled " An Act to restrain the disposition of Lands whereby the same become unalienable." Gift void — Objects indefinite. Declare that the residuary bequest contained in the will and codicil of J. v., otherwise V., the testator in the pleadings named, is void for uncertainty. — Consequential directions. Vezey v. Jamson, 1 Sim. & Stu. 69. Gift void — Fever Hospital. Declare that the gift to the Pit C. H. by S. D. the intestate of the sum of £5000 to build a fever hospital, and the trusts of the fund: declared by the Pits in and by the deed-poll of the 3rd of April,. 1866, being for the erection after the decease of the said S. D., and Q 2 Digitized by Microsoft® 228 ADMINISTRATION. for the future maintenaTrce and support of a fever hospital at Chel- tenham, are respectively void, as being contrary to the statute passed in the ninth year of the reign of His late Majesty King George the Second, intituled, &c. — Directions for taxation and payment of costs. EawMm v. Allen, L. E. 10 Eq. 246. Gift void as to Land — Chief Cleric's Certificate varied — Legacy to abate in proportion which Realty and Personal Estate savouring of Realty hear to pure Personalty. It appearing from the chief clerk's certificate and the first schedule thereto that the aggregate value at the time of the testatrix's death of such parts of her personal estate as had arisen from or were connected with land was the sum of £2448 15s. 5d., and that the aggregate value at the same period of such parts of her personal estate as had not arisen from and were not connected with land was the sum of £9047 19«. 9d. ; and his Lordship being of opinion that in the said sum of £2448 15«. 5d. three items were improperly included, viz., those numbered respectively 1, 4, and 5, in the said schedule, the aggregate value of which amounts to £634 2s. Id., and that such last-mentioned sum should be subtracted from the said £2448 J6s. 5d., whereby the same will be reduced to £1914 13«. 4(Z. and added to the said £9047 19s. 9d., whereby the said £9047 19«. 9d. will be increased to £9582 Is. lOd., Declare that the legacy of £3000 bequeathed by the will of the said testatrix to the Deft K. and to the Pit upon trust tO' be by them applied " in aid of an endowment for the Welsh church now in the course of erection at Aberystwith " ought to abate to the extent of £500, being the proportion, namely, one-sixth, which the said sum of £1914 13s. 4d. bears to the whole of the personal estate set forth in the first and second parts of the said schedule. — Trustees to- be at liberty to retain the sum of £2500, the unabated proportion of the said legacy of £3000 and interest at £4 per cent, from one year after testatrix's death out of her estate, and to be applied subject to duty upon the trusts declared of the said legacy. — Directions for taxation and payment of costs and payment of general legacies out of fund in Court. Sinnett v. Herbert, L. E. 7 Ch. 232, reversing Si C.,- L. E^ 12Eq. 574. Gifts, some void, some valid— repair of Monument, Vault, and Stained Window, <&c. Directions for transfer into Court of £640 Bank £3 per Cent. An- nuities and for taxation and payment of costs. — Declare that the bequest of £600 contained in the will or testamentary appointment of A. F. the testatrix for keeping in good repair, order, and condition for ever th& Digitized by Microsoft® ADMINISTEATION. 229 monument of the testatrix's mother in Hungerton Church, the vault in Hungerton [churchyard] in which she is interred, and the orna- mental painted window in Hungerton Church, is as to the said monu- ment in Hungerton Church and the said ornamental painted window in Hungerton Church a valid charitable bequest, but is as to the said vault in Hungerton [churchyard] invalid and void. And the Court being of opinion that the direction contained in the said will for the application of the surplus of the dividends arising from the investment of the said sum of £600 towards keeping in repair and ornamenting the chancel of the said church is a valid charitable gift to the extent of the surplus dividends arising from the investment of two-thirds of the said £600, but void as to the dividends arising from the invest- ment of one-third thereof. Let two-thirds of the residue of the said Bank Annuities be carried over to the credit of the cause, " The Hun- gerton Monument, Ornamental Painted Window, and Chancel Eepair and Ornament Fund. — Directions for payment of income to the minister and churchwardens of the parish of Hungerton, to be applied in good repair, &c., of the monument and window, and any surplus to be applied in ornamenting and repair of chancel. Hoare v. Oshorn, L. E. 1 Eq. 585. , Charitable Gifts, some void, some valid — Apportionment of Costs — Scheme. Declare that the bequest of the £6200 contained in the will of the testator to the Defts upon trust that they should place the same out at interest on such mortgage security, &c., is void, as being within the intent and meaning of the Act 9 Geo. 2, c. 36, intituled, &c. Declare that the bequest of the residue of the testator's estate for charitable purposes is void under the said Act so far as such residue consists of any interest in land or money payable out of or secured on land. Declare that the Hibernian mining shares and Anglo-Mexican mining shares in the report mentioned are not such an interest in lands as that the bequest thereof for charitable purposes is within the operation of the said Act. Declare that the funeral and testamentary expenses, debts, and legacies (except the £6200 legacy), and the costs of all parties of this suit as between solicitor and client ought to be paid Tpro rata out of the mixed personalty and pure personalty. — ^Eeference to apportion the same accordingly. — Declare the Pits entitled as next of kin to so much of the mixed personalty as shall remain after paying its proportion of such funeral and testamentary expenses, debts, lega- cies, and costs. — Tax and pay all parties their costs of suit. — Let a scheme be approved for an application of so much of the pure per- sonalty as shall remain after paying its proportion of such funeral and testamentary expensegyjte^f ,J^o,i^jS,,^!^|jigts. Let the costs of and 230 ADMINISTEATION. incident to such scheme be paid exclusively out of the pure personalty. BaJcer v. Sutton, 1 Keen, 224, 234. Declaration as to Charitable Bequests — Inquiry as to pure and impure Personalty. Declare that according to the true construction of the will of the testator W. M. the leasehold property in the county of Kent belonging to the testator in the fourth schedule to the chief clerk's certificate mentioned, formed part of the residue of the personal estate. Declare that the School for the Indigent Blind is not entitled to any share in the leasehold estates of the testator, or the proceeds thereof. Declare that the residue of the testator's pure personal estate is divisible, subject to the direction hereinafter contained, in equal sevenths among the following charities, &c. Let an inquiry be made how much of the personal estate of the testator consisted at the death of the testator of pure personalty, and how much of personalty savouring of realty, having regard to the declaration herein contained, and what is the value thereof respectively. Declare that the pecuniaiy legacies to the said charities failed in the proportion that the personalty savouring of realty bears to the whole personalty, &c. Chester v. Chester, Feb. 25, ]867, cited L. E. 12 Eq. 446. Gifts to Societies for the advancement of Objects of public utility declared charitable, and within the Mortmain Act — Costs and Administration Charges payoMe out of the pure and impure Personal Estate. Affiem so much of the order dated, &c., as declares that the five several legacies of £4000 bequeathed to the respective treasurers for the time being of the Eoyal Society, the Eoyal Geographical Society, the Eoyal Humane Society, the Marylebone School for Grirls, and the Albert Orphan Asylum, were given for charitable purposes within the intent and meaning of the statute 9 Geo. 2, c. 36, and as declares that the sum of £806 12s. 6^. in Court to the credit of the cause, being the proceeds of the sale of the property at Madeira mentioned in the chief clerk's certificate, and £15, being the rent which had been received in respect of the said property since the death of the testator, were not such an interest in land as that a bequest thereof for charitable pur- poses was within the operation of the said Act. Vary the rest of the said order, and instead thereof, Declare that the costs and funeral and testamentary expenses and debts of the testator are payable rateably out of the pure and impure personal estate, and the proceeds and rents of the Madeira property ; and that, subject thereto, the said five legacies of £4000 each, being charity legacies, are payable out of the testator's pure personal estate in preference to his other legacies, and his other Digitized by Microsoft® ADMINISTRATION. 231 legacies out of his impure personal estate, the charity legacies being by law excluded from participation therein. And Declare that the charity and other legacies so fax as they are not paid out of the pure and impure personal estate as aforesaid ought to participate in the proceeds and rents of the Madeira property ; but that in such par- ticipation the charity legacies, so far as they are unpaid as aforesaid, ought to abate in the proportion which the testator's impure personal estate bears to the proceeds and rents of the Madeira estate. Becmmont V. Olivdra, L. E. 4 Ch. 319 (Minute of Order), Declaration thai whole Property is applicable to Charitable Purposes — Acccmnf. Declare that the whole of the rents in the information mentioned are applicable for the purposes pointed out by the will of Thomas Bussell the testator therein named, or to some other like charitable purpose. Let an account be taken of the rents and profits of the charity estates in the pleadings mentioned received by the Defts the Drapers' Company since the filing of the information, or by any other persons or person, &c. Let an inquiry be made of what the charity property consists. Let a proper scheme for the future administration of the charity and for the application of the income and funds which shall be found due from the Defts be settled, &c. Let the Defts the company pay to the solicitor of the informant his costs of suit, to be taxed, &c. — Eeserve further consideration and subsequent costs. — Liberty to apply. Att.-Oen. V. Drapers' Co., 2 Beav. 608. Similar Decree — Payment into Qowrt — Aceovmt. Declare that the messuage, tenement, mills, and appurtenances, called, &c., and all other the lands and hereditaments in the informa- tion in this cause mentioned, with the rents and profits thereof, are applicable to, and ought to be applied to, and distributed and employed for, the relief and maintenance of the poor people inhabiting^ within Bod- min not receiving parochial relief, as in and by the indenture of the 18th May, 1624, in the pleadings mentioned and directed. — By consent of the Attorney-General, Let the mayor, aldermen, and burgesses of the borough of Bodmin pay the sum of £321, the balance of £400 received as a fine on granting a lease into Court to the credit of the cause. — Invest and accumulate. — Let an account be taken of the rents and profits, &o., received by the Defts, or by any other person or persons, &c., in respect of the said premises since the filing of the information. — Let proper persons be appointed trustees, and to administer the charity. Let a proper scheme for the future management of the said property and the due administration and application of the future rents and Digitized by Microsoft® 232 ADMINISTRATION. profits of the said £321 when so paid into Court, and the interest thereof when laid out, and of sums found due on the account of rents be settled, &c. — Costs of Attorney-General to be taxed by the taxing- master as between solicitor and client and paid by the Defts. — ^Liberty to apply. Att.-Gen. v. Mayor of Bodmin (M. E.), July 7, 1840. Decree on Information — Declaration that Income was not wholly given to Charity — Apportionment of Surplus Bents. Declare that according to the true construction of the wUl of the testator forty undivided forty-seven parts of the rents and profits of the estate in Gilden Morden were applicable, and ought to be applied to and for the charitable intents and purposes in the said will declared concerning the same, without any deduction therefrom for or in respect of the necessary ordinary expenses of taxes and repairs, or the costs of management of the said estate ; and that the remaining seven un- divided forty-seven parts of the said rents and profits were applicable and ought to be applied in the first place in payment of all necessary ordinary expenses of taxes, repairs, and costs of management of the whole estate, and subject thereto belonged to the Defts, the mayor, aldermen, and burgesses of the town of Beverley, for their own use and benefit. Declare that forty undivided forty-five parts of the rents and profits of the estate at Over were applicable and ought to be ap- plied to and for the charitable intents and purposes by the said will declared concerning the same, without any deduction therefrom for or in respect of the necessary ordinary expenses of taxes and repairs or the costs of management of the said last-mentioned estate, and that the remaining five undivided forty-five parts of the said last- mentioned rents and profits were applicable and ought to be applied in the first place in payment of all necessary ordinary expenses, taxes, repairs, and costs of management of the whole of the said last mentioned .estate, and subject thereto belonged to the said Defts the mayor, aldermen, and burgeSses of the town of Beverley, for their own use and benefit. Att.-Gen. v. Corporation of Beverley, 6 De G. M, & G. 256, 269 ; see also Att.-Oen. v. Drapers' Co., 2 Beav. 508. Similar Dearee— Specific Annual Payments to Charity— Contrihution^An- nual Payments for Bepairs— Surplus Bents to Corporation heneficiaUy. Declake that accoi-ding to the true construction and efiect of the instrument called the will of Sir A. J., the master, wardens, and com- monalty of the mystery of Skinners of London became and now are entitled for their own use and benefit to the rents and profits of such of the messuages and premises devised by the said inetrument as con- sist of the several particulars eet forth, &c., subject to the payment Digitized by Microsoft® ADMINISTRATION. 233 thereout of such only of the several specific sums in the said will men- tioned as hereinafter set forth, that is to say : 4s. to he paid weelsly to the six almsmen at St. Helen's in manner and form as in the will is directed ; the yearly sum of 10s. to the renter warden of the company ; the annual sum of 25s. 4d. for coals to he distrihuted among the six almsmen as in the will is directed ; and also subject to a contribution towards the sum of £150, which has been annually allowed to the Defts in taking their accounts in this cause for the expenses of visiting the School at Tonbridge in times past, and also towards the sum of £200 allowed for that purpose by the scheme for the establishment of the school ; such contribution for repairs, and for the past and future expense of visiting the school, to be apportioned and made according to the relative anniial value of the said messuages and premises de- mised by the instrument or will of Sir A. J., with the annual value of the messuages and premises mentioned to have been purchased of J. G. and J. T., such present annual values to be ascertained, &o. Ait.- Gen. V. Skinners' Co., 2 Euss. 407, 447. Lease declared void — Account — Occupation Bent — Costs. Declare that the lease dated, &c., of the charity lands and premises in the pleadings mentioned called, &c., is void, and decree the same accordingly. Let the Defts deliver up the said lease to the relators, W. G. M. and W. A., the churchwardens of the parish of — , to be can- celled. Let the Defts deliver up possession of the said charity lands, with the appurtenances, and all other the premises comprised in the said lease, to the said W. G. M. and W. A., as such churchwardens aforesaid. Let an account he taken of the rents of the said lands and premises which have accrued since the — day of ^ — , and which have been received by the Deft, or by any other person or persons, &c. And in case it shall appear upon taking the said account that the said Defts, or any or either of them, have been in the occupation of any part of the said lands and premises since the — day of — , or if it cannot be ascer- tained what rents have been, received in respect of such lands, the said Defts are to be charged in taking the said account according to a valuation to be set thereon, &o. ; and Let the Defts be charged there- with accordingly. Let what shall he found due on. taking the said account be paid by the said Defts toW. G. M. and.W. A., as such church- wardens aforesaid. Let an inquiry be made whether the said Defts or any of them have in their or any of their possession, custody, or power, any and what deeds, documents, books, accounts, evidences, or writings belonging to the said lands. Let the said Defts deliver the same to the said churchwardens. Defts to pay to the relators their costs of suit, to be taxed, &c. Att.-Gen. v. Lord Eotham, T. & E. 209, 220. Digitized by Microsoft® 234 ADMINISTRATION. Similar Decree — Accounts — Lasting Improvements — Costs. Declare that the indenture of lease dated, &c., in the pleadings men- tioned is an improvident lease, and ought to be set aside, and order and . decree the same accordingly. Let the following accounts and inquiries be taken and made : — 1. An account of the rents and profits of such part of the ohariiy property in the pleadings mentioned as was be- queathed to the Deft J. from the — day of — ; and as to the other Defts, an account of the rents and profits of the rest of the said charity property received by them subsequent to the filing of the infor- mation, or by any other person or persons, &c. 2. An inquiry of what the said charity property consists. 3. An inquiry whether any and what substantial improvements have been made to such part of the charity property as was bequeathed to the Deft J. subsequent to the — day of — , and whether any and what substantial improvements have been made by any and which of the other Deft* subsequent to the filing of the said information, to the residue of the said charity property, and whether any and what sum or sums ought to be allowed in respect of such improvements. — Costs of relators up to the decree to be taxed as between solicitor and client, and paid out of first moneys belonging to the charity which shall be received. — Liberty to apply. Att.-Gen. v. Bmey, 19 Beav. 527. Decree on Information — Leases to he made at Mack-rents — Renewal of Leases — Past Outlay. Declare that it will be fit and proper, and for the benefit of the above-mentioned hospital, that the Defts, the master, company, brethren and sisters of the said hospital, should not for the future let any of the charity property on fines or for long terms, or otherwise than at the best rents which can be procured. — Let an inquiry be made of what the estates and property belonging to the said charity consist, and upon what leases the same are let, and who is or are entitled to or interested in such leases. Let a scheme be settled for the future admininistration of the said charity and the application of the income thereof, having regard to the aibove-mentioned declaration. — Continue until further order injunction awarded against the Defts, the master, brethren, and sisters, to restrain them until the hearing from granting any fresh leases of the property of the said charity by way of renewal or otherwise for lives, or upon fines, or for long terms of years, or otherwise than at the best rent they can procure. — Let the order dated, &c., for the maintenance of the objects of the charity be continued. But neither the above declaration nor the said injunction is to extend to prevent any renewal of leases which may be found to be necessary or proper for the purpose of carrying this decree into effect; and in acting on Digitized by Microsoft® ADMINISTRATION. 235 this provision regard is in the first instance to be had to the leases of lessees other than the petitioners who may have expended money upon the said estates upon the faith of their leases being renewable, and Who may not have had sufficient enjoyment under their leases to recompense them for the money so expended. — Further consideration adjourned.— Liberty to apply. Att.-Gen. v. St. John's Hospitcd, L. K. 1 Ch. 92. Marshalling — Direction to reserve Pure Personalty for Charity — Costs. , Let, the order dated the 9th June, 1873, so far as the same declared that the debts, funeral and testamentary expenses of the testator J. M., given or bequeathed, and directed to be invested as therein mentioned, and the costs, charges, and expenses by the said order direbted to be taxed and paid, were payable out of such portions of the testator's personal estate as had arisen from or were otherwise connected with any interest in land, and out of such portions of the said testator's personal estate as were in nowise connected with any interest in laud, pro rata according to the respective amounts and values of the said respective portions of the testator's personal estate respectively, and that the Defts, the executors of the will of the testator, should be allowed in their accounts what they should so retain and pay as in the said order directed, and that the said Defts should pay the ultimate residue of any balance in their hands after such retainer and payment thereout as aforesaid into Court, &c., be varied. And in lieu thereof, Let the debts and funeral and testamentary expenses of the said testator, and the several legacies and sums of money by the said will and codicil given or bequeathed or directed to be invested as therein mentioned, except the legacy of £100 to the Westmoreland Society Schools, in the county of Surrey, and the costs, charges, and expenses by the safd order directed to be taxed and paid, and the costs of the Defts, the executors, hereby directed to be taxed and paid, be paid out of such portions of the said testator's personal estate as have arisen from or are otherwise connected with any interest in land in exonera- tion of such portions of the said testator's personal estate as are in nowise connected with any interest in land. And as to the said legacy of £100 to the Westmoreland Society Schools, in the county of Surrey, Declare that such proportion thereof as is payable out of such portions of the personal estate of the testator as have arisen from or are other- wise connected vrith any interest in land is void, as being contrary to the statute 9 Geo. 2, c. 36, but that such proportion thereof as is pay- able out of such portions of the personal estate of the testator as are not in anywise connected With any interest in land is valid and payable thereout in priority to the legacies given to the appellants and to the Digitized by Microsoft® 236 ADMINISTRATION. Society for Promoting Christian Knowledge. And Let the same be paid accordingly. — Appeal deposit to be repaid to the appellants. — Directions for taxation of costs of all parties of the appeal. — Costs of appellants to be paid out of such portions of the testator's personal estate as are connected with any interest in land. — Costs of Defts, the executors, out of such portions as have arisen from or are otherwise connected with land, and the costs of the other Defts and other re- spondents to be paid by the executors out of such portions of the personal estate as have arisen from or are otherwise connected with any interest in land. — Ultimate residue after such payment to be paid into Court to the credit of the cause. Miles v. Harrison, L. E. 9 Ch. 316. MoETMAia ACT, 9 Geo. 2, c. 36. No manors, lands, tenements, rents, advowsons, or other hereditaments, cor- poreal or incorporeal, whatsoever, nor any sum or sums of money, goods, chattels, stocks in the public funds, securities for money, or any other personal estate whatsoever to be laid out or disposed of in the purchase of any lands, tenements, or hereditaments, shall be given, granted, aliened, limited, released, transferred, assigned, or appointed, or any ways conveyed or settled to or upon any person or persons, bodies politic or corporate, or otherwise, for any estate or interest what- soever, or any ways charged or incumbered by any person or persons whatsoever, in trust or for the benefit of any charitable uses whatsoever ; unless such gift, conveyance, appointment, or settlement of any such lands, tenements, or here- ditaments, sum or sums of money or personal estate (other than stocks in the public funds), be and be made by deed, indented, sealed, and delivered in the presence of two or more credible witnesses twelve calendar months at least before the death of such donor or grantor (including the days of the execution and death), and be inroUed in the High Court of Chancery within six calendar months next after the execution thereof ; and unless such stocks be transferred in the public books usually kept for the transfer of stocks six calendar months at least before the death of such donor or grantor (including the days of the transfer and death) ; and unless the same be made to take effect in possession for the charitable use intended immediately from the making thereof, and be with- out any power of revocation, reservation, trust, condition, limitation, clause, or agreement whatsoever, for the benefit of the donor or grantor, or of any person or persons claiming under him : 9 Geo. 2, c. 36. The above provision is not to extend to purchases or transfers made for valuable consideration : sect. 2. Gifts, grants, conveyances, and transfers, &c., made contrary to the Act to be absolutely void : sect. 3. But the Act not to extend to the two universities or the colleges of Eton, Winchester, or Westminster : sect. 4. The statute 43 Eliz. c. 4, commonly called the Statute of Charitable Uses, has become obsolete : JEx parte Kirhhy Bavensworth Eospital, 15 Ves. 305. But the recitals in the Act are still important, as the Court has reference to it iu deciding what is to be deemed a charitable purpose : Dan. 5th ed. 1760 ; Ken- dal V. Grainger, 6 Beav. 300, 302; Att.-Gen. v. Corporation, of Bhewsbury, 6 Beav. 220. Digitized by Microsoft® ADMINISTRATION. 237 Charities excepted from Mortmain Act. Many public charities and institutions have been excepted either wholly or partially from the operation of the Act of 9 Geo. 2, c. 36 : — the Foundling Hospital, ]J Geo. 2, o. 29 ; the British Museum, 26 Geo. 2, o. 22, s 14 ; 5 Geo. 4, c. 39 ; the Bath Infirmary, 19 Geo. 3, c. 23 ; Queen Anne's Bounty, 43 Geo. 3, c. 107 ; the Eoyal Naval Asylum, 51 Geo. 3, o. 105 ; Commissioners of Green- wich Hospital, 10 Geo. 4, o. 25, s. 87 ; St. George's Hospital, 4 Will. 4, o. 38, ». 1 (local and personal Acts) ; Seaman's Hospital Society, 3 & 4 Will. 4, c. 9 ; Mu- seums of Art and Science in large towns, 13 & 14 Will. 4, c. 65. See Tudor's Charitable Trusts, 97. By the custom of London, confirmed by Magna Charta, citizens and freemen of London may devise in mortmain : 9 Hen. 3, c. 9 ; 8 Co. 129. But the custom must be clearly confined to lands in the City of London : Tudor's Charitable Trusts, 97, citing Middleton v. Cater, 4 Bro. C. C. 409. Lands not exceeding five acres, or goods and chattels not exceeding £500, may by deed inrolled or by will, under certain conditions, be given to promote the building or repairing of churches, chapels, and houses for the residence of minis- ters of the Church of England : 43 Geo. 3, c. 108. Any person or body corporate may by deed inrolled under 22 Hen. 7, c. 16, in the case of hereditaments (but without deed in the case of goods or chattels), or by will, vest in the Ecclesiastical Commissioners the hereditaments, goods, and chattels for the endowment or augmentation of the income of ministers or perpetual curates of the Church of England : 6 & 7 Vict. c. 37. Any person by will or otherwise, or any bodies politic, or corporate or com- panies, may give any sum or sums of money for the redemption of land tax charged on hereditaments settled to any charitable uses: 42 Geo. 2, c. 116, s. 22. Construction of Gifts to Charities, Where the purpose of a bequest is uncertain or indefinite, and might compre- hend objects not falling within the meaning or spirit of 43 Eliz. c. 4, the legacy cannot be supported as if given to a charitable purpose : Tudor's Charitable Trusts, 230. A bequest in trust for such objects of benevolence and liberality as the trustee in his discretion shall approve will not be supported as a charitable legacy, as being too indefinite : Morice v. Bishop of Durham, 9 Ves. ; affirmed 10 Ves. 540 ; Williams v. Kershaw, 5 L. J. (Ch.) 84. Nor a bequest to trustees to dispose of at their pleasure,, either for charitable or public purposes, as the laws of the land would admit of, or by any persons in such shares as the trustees in their discretion should think fit : Vezey v. Jamson, 1 S. & S. 69 ; Order, p. 227. Nor a bequest of personalty to trustees " to be applied for the relief of domestic distress, assisting indigent but deserving individuals, or encouraging undertaldnga of general utility ": Kendall v. Grainger, 5 Beav, 300. See also James v. Allen, 3 Mer. 17 ; Ellis v. 8elby, 7 Sim. 352 ; Fowler v. Garlihi, 1 Buss & My. 232 ; Browne v. Yeall, 7 Ves. 50 ; Ommoney v. Butcher, T. & B. 260 ; Wilkinson v. Barber, L. R. 14 Eq. 96. And a bequest to trustees of a sum of money " to be laid out by them as they shall think fit, with the concurrence of the trustees of Shakespeare's house, in forming a museum at Shakespeare's house in Stratford, and for such other purposes as the testator's trustees in their discretion should think fit and Digitized by Microsoft® 238 ADMINISTEATION. desirable for giving -effect to the testator's wishes," was held^pot to be a charit- able gift, and to be void for uncertainty : Thomson v. Shahspeare, 6 Jur. (N.S.) 118,281. ' And where a bequest is made for charitable purposes, and also for purposes of an indefinite character which are not charitable, the whole bequest will be void : Ellis v. Selhy, 7 Sim. 352 ; 1 My. & Or. 286 ; cited in Tudor, 223. A gift for the repair of a grave or tomb, without reference to the distinction whether in a church or not, is void, not being a charity, and tending to perpetuity : Bickard v. Bdbson, 31 Beav. 244 ; Fowler v. Fowler, 33 Beav. 616 ; Eoare vi Osborn, L. E. 1 Eq. 586 ; Order, p. 228. A gift of money to be applied in building for any charitable purpose upon land not already in mortmaih, and where no words are used expressly excluding the application of the money given in the acquisition of land, implies a direction to purchase land, and is therefore void under the Mortmain Act: Att.-Oen. v. Davies, 9 Ves. 544, per Lord Bldon ; Pritehard v. Arborwm, 3 Buss. 456 ; Att.- Oen. V. Eall, 9 Hare, 647 ; Dunn v. Bownas, 1 K. & J. 596 ; Philpott v. St. George's Hospital, 6 H. L. 0. 338 ; Watmough's Trusts, L. E. 8 Eq. 272 ; Sawkinis V. Allen, L. E. 10 Eq. 246 ; Order p. 227 ; Pratt v. Earvey, L. E. 12 Bq. 544. But charitable bequests are not void on the ground of being made to a class generally : Powell v. Att.-Q-en. 3 Mer. 48; Moggridge v. Thackwdl, 7 Ves. 36 ; Mills V. Farmer, 1 Mer. 55, per Lord Eldon ; AU.-Oen. v. Drapers' Co., 2 Beav. 508, Order, p. 231. A bequest to the widows and children of seamen belonging to the town of Liverpool was Held a good charitable bequest: Powell v. Att.-Oen., supra. So, too, a bequest "to the poor inhabitants of" St. Leonard, Shoreditch, "for ever": Att.-Oen. v. Clarke, Amb. 422. And a bequest to the parish of Great Creaton was held to be a good charitable bequest to be applied for the benefit of the poor of that parish : 1 Cases in Chancery, 134. A bequest of personalty for suoh religious and charitable institutions and pur- poses within the kingdom of England as in the opinion of the trustees should be deemed proper, is a good charitable bequest : Baker v. Sutton, 1 Keen, 224. And a bequest to trustees " for the benefit of such public or private charities as they in their discretion might think fit ": Johnston v. Siuan, 3 Madd. 457 ; Lewis v. AUeriby, L. E. 10 Eq. 668. Where annual sums were bequeathed to testators wife for life, to be applied to charitable purposes generally at the discretion of the wife, with the advice and assistance, but not under the control of the trustees, the disposition of the fand was held to be at the absolute disoretion__of the vndow, and no scheme was directed, but liberty to apply was reserved : Waldo v. Oaley, 16 Ves. 206. So, too, where income was directed to be applied by the legatee either to pri- vate individuals or public institutions, the legacies were held not to fail, and a scheme to be unnecessary : Horde v. Earl of Suffolk, 2 My. & K. 59. A bequest to certain charitable purposes named by the testator " and other charitable purposes, as I do intend to name hereafter," the testator making no subsequent disposition, is not void for uncertainty, and a scheme will be directed; Mills V. Farmer, 19 Ves. 482 ; see also Moggridge v, Thackwell, 7 Ves. 39 ; Att.-Gen. v. Syderim, 1 Vern. 224. A bequest " to promote the knowledge of the Catholic Christian religion among the poor and ignorant inhabitants " of particular districts, was held to be valid : West V. Shuttleworth, 2 My. & K. 684. So, too, a bequest " for the use of Roman Catholic priests in and near London '': Att.-Gen. v. Gladstone, 13 Sim. 7. Digitized by Microsoft® ADMINISTRATION. 239 And a gift " for the benefit, advancement, and propagation of education and learning in every part of the world, as far as circumstances will admit :" Whicker V. Hume, 14 Beav. 509. See also Gurtis v. Button, 14 Ves. 537. A bequest " for charitable and other pious and good uses " at the discretion of the trustees, was held to be a valid charitable bequest : AU.-Qen. v. College of William and Mary, 1 Ves. 243. So, too, a bequest " to the Queen's Chancellor of the Exchequer for the time being to be appropriated to the benefit and advantage of Great Britain ": Nightin- gale V. Ooulburn, 5 Hare, 484 ; 2 Ph. 594. A bequest to the Government of , Bengal for the express purpose of that Government applying the amount to charitable, beneficial, and public works at Deoca : Mitford v. Beynolds, 1 Phil. 185, 706. And a bequest of stock " to Her Majesty's Government in exonera- tion of the National Debt"; Newland v. Att.-Oen., 3 Mer. 684. So, too, a be- quest for putting out " our poor relations " apprentices : White v. White, 7 Ves. 422. A devise to the British Museum : Trustees of British Museum v. White, 2 S. & S. 594. And a gift of residue " to found at Washington an establishment for the increase of knowledge among men :" 7 H. L. C. 124. A gift for the repair of a memorial window forming part of the fabric of the church and for the repair of a monument in the church is a good charitable gift : Boare v. Oshorn, L. R. 1 Eq. 586. So, too, a bequest towards the erection of a new chapel where there was land duly vested in trustees at the date of the testator's will on which a new chapel could be built : Booth v. Ca.rter, L. R. 3 Eq. 757. And a bequest towards building a parsonage-house where there was glebe on which the house could be built : SeiDell v. Crewe-Bead, L. R. 3 Eq. 60. Funds supplied from the gift of the Crown, or from the Legislature, or from private gift, for any legal, public, or general purpose, are charitable funds : Att.- Gen. V. Eeelis, 2 S. & S. 76. Bequests of pure personalty to the Eoyal Society, the Royal Geographical, or Eoyal Humane Society, are charitable legacies : Beaum,ont'v. Oliveira, L. R. 6 Eq. 524 ; L. R. 4 Ch. 309 ; Order p. 230. And bequests to a convent and to sisters of charity are good as to pure personalty : OocJcs v. Manners, L. R. 12 Eq. 574. A gift to the Dominican Convent at C, being a voluntary association of women' for the purposes of religious exercises, was held not to be a gift for charitable . purposes, nor void as a gift on a perpetual trust : S. C. Religious purposes are charitable only when religious services tend directly or indirectly towards the instruction or edification of the public : S. C. ; Jones V. Williams, Amb. 651 ; Att.-Oen. v. Saberdashers' Co., 1 My. & K. 420 ; Ommaney v. Butcher, T. & E. 260. A provision that a charitable corporation might, notwithstanding the Statutes of Mortmain, " have, take, hold, and enjby " real estate does not remove the disability imposed on testators by 9 Geo. 2, c. 36, so as to enable them to devise lands to the charity : Robinson v. Governors of London Eospital, 10 Hare, 19. And where by private Act of Parliament a charitable institution is empowered to receive and retain any sums of money paid, given, " devised, or bequeathed " by any person for the charity, and to hold lands for the purposes of the charity, it does not enable a testator to devise to the charity any interest inland : Ldhersole v. School for Indigent Blind, L. R. 11 Eq. 1 ; Chester v. -Chester, L. R. 12 Eq: 444. But see Perring v. Traill, L. R. 18 Eq. 88. Digitized by Microsoft® 240 ADMINISTRATION. And where, in addition to such provisions, a private Act authorizes the surplus funds of the charity to he invested on mortgage, a bequest by a testator of debts secured to his estate by equitable mortgage of leaseholds is void : Chester v. Chester, L. B. 12 Bq. 444. A provision in a private Act which empowers a charity to purchase and hold lands " vrithout incurring the penalties or forfeitures " of the Statutes of Mort- main, does not pro tanto repeal those statutes : S. C. A gift for the endowment of a future church is not void under the Mortmain Act : Sinmtt v. Herhert, L. E. 7 Ch. 232, reversing S. C. 12 Bq. 201; Order, p. 228. Whether the Court will hold a fund for an indefinite time which has been given for a charitable object when there is no reasonable prospect of carrying it into execution, jMoere : S. C. Where a testator gave the residue of his personal estate to trustees upon trust to sell and pay debts and legacies, including a legacy of £100 to a charity school, and bequeathed all the residue of his personal estate to three charities equally, such residue to be paid out of such part of the personal estate as could be lawfully applied to the payment, it was held that such a direction was equivalent to a direction to marshal the assets in favour of the three charities ; and that the debts and legacies other tha,n the legacy to the school must be paid primarily out of the impure personalty : Miles v. Harrison, L. E. 9 Ch. 316 ; Order, p. 235 ; see also Wilis v. Bourne, L. E. 16 Bq. 487. Chaeities — Increase of Ihcome. If the income of lands devoted to charitable purposes is apportioned by the founder of the charity in certain proportions amongst different objects, each object of the charity will be entitled to participate in the increased income in the same proportion, subject to the discretion of the Court of Chancery in settling a scheme to make alterations in certain cases and within certain limits : Deem and Canons of Windsor, per Lord Kingsdown, 8 H. L. C. 452. If, on the other hand, lands are given to a body which itself may be an object of charity, but subject to the payment of specific sums to other objects of charity, then the increased income will belong to the body which is entitled to the lands, and the other objects can claim nothing beyond the specific charges : S. 0. And see Thetford School Case, 8 Co. Eep. 130; Att.-Oen. v. Corporation , of Bristol, 2 Jac. & W. 317 ; Att.-O-en. v. Skinners' Co., 2 Buss. 407, 435, 447; Order, p. 232; Att.-Gen. v. Smythies, 2 Buss. & My. 717; Att.-Oen. v. Fi^sh- mongers' Company, 5 My. & Cr. 11 ; Att.-Oen. v. Corporation of Beverley, 6 H. L. C. 310, reversing S. C, 6 De G. M. & Gt. 256; Order, p. 232; Att.-Oen- V. Corporation of South Molton, 5 H. L. C. 1. And where the general purposes of a gift or conveyance is declared to be charity, and the particular payments do not exhaust the whole fund, any surplus vdll belong to the charity, unless there are other circumstances from which a coijtrary intention can be collected: Att.-Oen. v. Drapers' Co., 2 Beav. 508, n.; and see oases cited above. But it is a question to be determined by the particular words of each will whether a gift of " surplus " or " residue " moans surplus or residue properly so called, or a mere proportional share of a particular fund : Att.-Oen. v. Corporatim of South Molton, 5 H. L. C. 1. And where a testator gives to A. an estate or rents in trust to make certain Digitized by Microsoft® ADMINISTBATION. 241 payments to charities, and speaks of an overplus which he does not specifically bequeath, A. is entitled to the increased income after making the specified pay- ments : Att.-Qen. v. Corporation of Burnley, 6 H. L. C. 310. i And where after making a specific devise of land upon charitable trusts the residue of rents was to be applied in repairs, and the overplus to go to trustees to be disposed of at tbeir will, the trustees were held entitled to the overplus of the increased rents for their own benefit : Att.-Oen. v. Skinners' Co., 2 Euss. 407'; Order p. 232. So, too, where specific payments are directed by a testator to be made to a corporation out of income, and the residue to be expended in repairs, with a gift over to his next of kin in default of the corporation, the whole income was not considered as dedicated to charity, and the corporation was held entitled to tho surplus rents for their own benefit: Ati.-Oen. v. Wax Chandlers' Co., L. R. 8 Eq. 452 ; S. C. L. R. 5 Oh. 503. But see Merchant Taylors' Co. v. Att.-Oen. L. E. 11 Eq. 44 ; S. C. L. R. 6 Ch. 512, where the construction put upon the charitable devise was that the lands are given, not upon the condition of paying certain sums to the charity, but upon trust to apply the whole income, and the company were held bound to apply the whole for charitable purposes. Where property had been devised in the sixteenth century for the perpetual sustentation of an almshouse for the poor within the city of R., and to provide a certain amount of sleeping accommodation for wayfarers, an administration of the charity which made no increase in the number of wayfarers relieved was held not to be proper: Att.-Qen. v. Corporation of Bochester, 5 De Gr. M. & G. 797. No length of usage will warrant deviation from the terms of a trust which the Court regards as plain : S. C. ; Att.-Oen. v. Corporation of Beverley, 6 De G. M. & G. 256. Where charitable legacies are directed by a testator to be paid out of his pure personalty, the debts, funeral, and testamentary expenses and costs of suit ought not to be thrown upon the mixed personalty in exoneration of the pure personalty, but will be apportioned rateably : Beaumont v. Oliveira, L. E. 4 Oh. 309 ; Order, p. 230 ; see also Bdbinson v. Oeldard, 3 Mac. & G. 735 ; Tempest v. Tempest, 2 K. & J. 635 ; 7 De G. M. & G. 470. Where one or more of the charitable objects is bad, the Court will either, by directing an inquiry, ascertain the proportion of the fund attributable to each object, or if that is not possible, will divide the fund equally between the different objects : Ait.-Gen. v. Doyley, 7 Ves. 58 ; Brown v. Miggs, 4 Yes. 708 ; Eoare v. Oshorn^ L. E. 1 Eq. 585. Where a testator had directed his real and personal estate to be sold, and after payment of debts a charitable legacy to be paid out of the proceeds, the pure personalty being insufBcient for payment of the debts, held that the charitable legacy did not fail altogether, and an apportionment was directed according to the proportion which the value of the pure personalty bore to the mixed fund : Briggs v. Clia/mherlain, 18 Jur. 56. Investment of Charity Moneys. It is contrary to the policy of the Mortmain Acts and to the usual practice of the Court to allow money belonging to a charity to be invested in land, even for the purpose of enlarging the charity : Att.-Oen. v. Wilson, 2 Keen, 680, n. But charity moneys have been ordered to be invested in land for the purpose of erecting additional buildings in furtherance of the objects of the charity, the Digitized by Microsoft® r 242 ADMINISTEATION. land not being purchased as a mere investment : Att.-Gen. v. Earl of Mansfield, 11 Sim. 601 ; Re Sonnor's Trusts, 3 W. E. 429. Administration Ct-pebs. Where a literal execution becomes inexpedient or impracticable, the Court will execute it as nearly as it can according to the original purpose, or cy-pres : Story, vol. ii. p. 405; Att.-Gen. v. Oglander, 3 Bro. 0. C. 166; Att.-Oen. v. Oreen, 2 Bro. 0. C. 492; Att.-Qen. v. PeacocTc, Eep. temp. Finch, 245; Att.-Oen. v. Ironmongers^ Go., 2 Beav. 313; 1 Cr. & P. 508, 522; Att.-Gen. v. Corporation of Rochester, 5 De G. M. & Gr. 797 ; Re Lambeth Charities, 22 L. J. (N.S.) 958 ; Re Ashton's Charity, 27 Beav. 117. And if the object of the gift be certain but not at present in existence, yet if its existence may be expected hereafter, the Court will neither consider the gift lapsed nor apply it to a different use : Fonblanque on Equity, vol. ii. ch. 1 ; Aylet V. Dodd, 2 Atk. 238 ; Att.-Gen. v. Lady Downing, Amb. 571. ■. And where in a gift to a charity the object of the gift is imperfectly described, evidence of the donor having been interested in a particular society is admissible : Kelvert's Trusts, L. E. 12 Kq. 183. But the Court will not apply the doctrine of cy-pres where there is an entire absence of intention to give in general charity : Clarke v. Taylor, 1 Drew. 642 ; New V. Bonaher, L. R. 4.Eq. 655. In the absence of any direction in the instrument creating the charity as to the disposition of the surplus there is no resulting trust for the donor or his repre- sentatives : Tudor's Charitable Trusts, 267, citing Att.-Gen. v. Coopers' Co., 19 Ves. 189. Charity Estates^Leases. In certain cases leases for such a term as 999 years, and even an absolute alienation of charity lands, has been sanctioned by the Court: Att.-Gen. v. Hungerford, 8 Bli. 457 ; 2 CI. & F. 374 ; Att.-Gen. v. Pilgrim, 12 Beav. 57 ; Att.-Gen. v Warrm, 2 Sw. 302. Where a lease is sought to be set aside on the ground of undervalue, the under- value must be considerable in amount : Att.-Gen. v. Cross, 3 Mer. 541 ; Ex parte Skinner, 2 Mer. 457. The founder's intention, although generally followed, will not be binding where he directs that the rents of the charity estates are not to be raised : Watson v. Hinsworth Hospital, 2 Vern.^96, cited in Tudor's Charitable Trusts, 305. But the founder's direction, when given, as to the duration of the leases must be followed, unless varied by Act of Parliament : Att.-Gen. v. Mayor of Rochester, 2 Sim. 34 ; Att.-Gen. v. Griffiths, 13 Ves. 565. Where no direction has been given by the founder as to the duration of the leases, it is in general laid down that when the trustees of a charity grant a lease of the property for a longer term than is consistent with proper management, the lease will be set aside : Tudor's Charitable Trusts, 307 ; Att.- Gen, v. Green, 6 Ves. 452; Att.-Gen. v. Backhouse, 17 Ves. 283; Att.-Oen. \. Pilgrim, 12 Beav. 57, affirmed 2 H. & T. 186. The Court will, when a proper case is made, authorize leases for long terms of years : Re Cross Charity, 27 Beav. 592. Although in general building leases for longer terms of years than ninety-nine years are not sanctioned by the Court : , Att.-Gen. v. Wood, 6 Beav. 290 ; Att.-Gen. v. Owen, 10 Ves. 560. Digitized by Microsoft® ADMINISTRATION. 243 And as a general rule an agricultural lease for such a term as ninety-nine years at a fixed rent cannot stand: Att.-Qen v. Lord Sotham, 1 T. & R. 216; Ait.- Oen. V. Ball, 16 Beav. 388. And an agricultural lease for 500 years has been set aside, although a large outlay may have been made in lasting improvements and repairs : Att.-Qen. v. JJavey, 19 Beav. 521 ; Order; p. 234. Where the custom of an ancient charity had been that the lessees should have renewals of leases on easy and beneficial terms, and the practice had been sanc- tioned by the Court, the Court nevertheless in settling a new scheme directed the land to be let in future at a rack rent. But directed that in granting fresh leases regard should be had to the claims of those lessees who had expended money upon the faith of the renewals : Att.-Qen. v. St. John's Hospital, L. R. 1 Ch. 92 ; Order, p. 234. Where a lease is set aside, and there has been no actual fraud, an allowance will be made for permanent improvements: Tudor's Charitable Trusts, 313; Att.-Qen. v. Qreen, 6 Ves. 452 ; Att.-Qen. v. Kerr, 2 Beav. 420; see also Att.- Qen. V. Mayor of Stamford, 2 Sw. 592 ; AU.-Qen. v. Dixie, 13 Ves. 540. Where a charity lease is set aside, the date to which the account of rent is carried back differs. In aggravated cases it is directed from the date of the lease, in other cases from the commissioners' report ; but generally from the filing of the information. A corresponding inquiry as to substantial improvements will be directed during the same period: Att.-Qen. v. Davey, 19 Beav. 527. But the allowance for lasting improvements can only be co-extensive with the period of accounting : Att.-Qen. v. Earl Oraiten, 21 Beav. 392. The right of the Attorney-General to question the validity of an improvident lease after twenty years' enjoyment is barred by 3 & 4 Will. 4, c. 27 : St. Mary Magdalen, Oxford v. Att.-Qen., 6 H. L. C. 189; 3 Jur. (N.S.) 675. Arid where a lease had been granted for 500 years at a fixed rent, the Statute of Limitations was held to bar a suit to set aside the lease : Att.-Qen. v. Davey, 4 De G. & J. 136. Charities administered — Goiavnon Decree for Scheme. Let a scheme for the future regulation and management of the charity in the pleadings mentioned, and the application of the present and future income thereof, he settled by the judge. Similar Decree — Trustees — Accounts and Inquiries. Let a scheme for the future regulation, &o., be settled by the judge. Let new trustees be appointed for the management of the said charity, and of the estates [funds] and property thereof; and Let pro- vision be made for the future appointment of trustees. Let the fol- lowing accounts and inquiries be taken and made : — An inquiry of what the property of the said charity consists, and where the same is situate, and what is the income and annual value thereof, and how and by whom and under and upon what terms, rents, and conditions the same, and every part thereof, is let and is now held. An account of the rents and profits of the charity estates received by the Defts, or by any other person, &c., and of the application thereof, from the — R 2 Digitized by Microsoft® 244 ADMINISTRATION. day of — , tbe date of the filing of the information in this cause. Att.-Gen. v. Corporation of Ilchester (M.E.), July 19, 1855; Seton, 342. Inquiries as to Rents and Profits — Letting — Scheme — Costs up to Decree. Lkt the following accounts and inquiries he taken and made: — 1. An inquiry what were the estates subject to the charitable uses created by the deeds dated, &c. 2. An account of the rents and profits of such estates, and of the fines taken for the renewals of the leases thereof, come to the hands of the Defts, or either of them, or of any other person, &c. 3. An inquiry at what time such fines were re- ceived, and in what manner the same and the rents and profits thereof have been applied. 4. An inquiry whether the said estates have been properly let. 5. And if it shall appear that the same have not been properly let, an inquiry whether it will be proper, to take any, and if any what steps to set aside any leases improperlj' made. Let a scheme be settled for the future regulation and management, &c. Let proper persons be appointed to be trustees of the charity estates. — ^Eelator's costs of suit to this time to be taxed and paid by Defts out of money in hand on account of the charity. Let the consideration of how such costs should be ultimately paid and the further consideration of cause be adjourned. Att.-Gen. v. Corporation of Exeter (M. E.), March 22, 18i3 ; affirmed on appeal, March 7, 1822 ; Seton, 344. Charity Schemes — Order adopting Scheme. Let the scheme dated, &c., which has been affirmed by the judge and filed in the report office of this Court, be the scheme for the future regulation and management of the charity in the pleadings mentioned [and for the administration of the estates, funds, or property thereof]. If Scheme to be set out in Order. Let the scheme for the regulation and management, &c. [and for the administration, &o.J, set forth in the schedule to this ordei-, be carried into effect. Charity Schemes. Where a fund is given to a corporation in England for a charitable purpose, the Court of Chancery may order it to be paid to the corporation without the Bettlement of a scheme : Society for the Pt'opagation of t/te Oospel in Foreign Paris V. Att.-Oen., 3 Kuss. 142 ; Walsh v. Gladstone, 1 Ph. 290. But where a legacy is given to the treasurer or other officer of a charitable institution not as part of its general funds, but for permanent charitable purposes, the Court will order a scheme to be settled : Wellbeloved v. Jones, 1 S. & S. 40, 43 ; Corporation of the Sons of the Clergy v. Mose, 9 Sim. 610. Where a bequest is made to a charity out of tlie jurisdiction, the Court will iu Digitized by Microsoft® ADMINISTRATION. 245 general order the funds to be paid to the trustees named by the founder, without a scheme : Tudor's Charitable Trusts, 259 ; Forbes^. Forbes, 18 Beav. 522 ; Mil/ord V. Reynolds, 1 Phil. 185 ; Martin v. Pwdm, 1 Russ. 116. But where funds are bequeathed by a British subject to a charity, whether British or foreign, and there is no hand to receive the funds, the Court will order the funds to be carried to a separate account: Att.-Oen. v. Sturge, 19 Beav. 597; Att.-Oen. V. Lepine, 2 Sw. 181. In settling a scheme for a grammar school, where the head master is to be a graduate of Oxford or Cambridge and in holy orders, the Court will give no specific directions as to religious instruction or discipline : Warwick Orammar School, 1 Ph. 564. There is no general rule against the admission of hoarders in a grammar school: Att.~ Gen. v. Bishop of Worcester, 9 Hare, 328. But the number of boarders admitted ought not in any manner to affect the admission of free boys : S. C. The teaching of writing and arithmetic may he properly introduced into a scheme for the management of a free grammar school: Att.-Oen. v. Gascoiyne, 2 My. & K. 647. A general scheme for a grammar school is imperfect without some positive direction respecting religious instruction : Ohehnsford Grammar School, 1 K. & J. 543. But special clauses as to instruction in the catechism, liturgy, doctrine, and discipline of the Church of England, or as to the exemption of scholars from such instruction, will not be directed by the Court, but left to the charity authorities : S. C. Where an acadeiny for the education of English Presbyterians had been esta- blished in the country, arid the original object of the charity appeared to be to benefit that part of the kingdom, which was totally deficient in academies, the trustees were held entitled to remove the academy to London, the locality being regarded as a secondary consideration : Manchester New College, 16 Beav. 610. Where the income of a free grammar school had become insufiBcieut to carry out a scheme of education settled by the Court, the Court has sanctioned the admis- sion of an additional number of boys at an annual payment. But both classes to be considered as on the foundation ; and no competitive examinations to be imposed upon the free scholars : Manchester School Case, L. R. 1 Eq. 55 ; L. E. 2 Ch. 497 ; se^ also Berhhampstead School Case, L. K. 1 Eq. 102. The Court will not alter a scheme deliberately settled without weighty reasons :, Att.-Gen. v. Bishop of Worcester, 9 Hare, 328, 361. But will do so where the income of the school has become insufficient to carry out such scheme : Man- chester School Case, supra. In framing a scheme for the a;dministration of the funds of a charity, the Court will not apply such funds to the purposes of education until the primary objects of the testator are first carried into effect: 22 L. J. (N.S.) 959. For forms of schemes, see Tudor's Charitable Trusts, 547. Costs. Charity Funds — Costs, Charges, and Expenses of Pits, the Relators. Let the Defts, the Coopers' Company, reimburse to the petitioners, the relators, out of the charity funds the costs and expenses incurred by the petitioners in this cause over and beyond the costs which have Digitized by Microsoft® 246 ADMINISTRATION. been paid by the Defts the Coopers' Company as between party and party. —Eeferto the taxing master to tax any costs and expenses properly incurred by the petitioners other than the costs of this cause, relating to the matters in question. Let the Defts, the Coopers' Company, pay the amount, if any, which the taxing master shall certify to have been so properly incurred out of the said charity funds. AU.-Oen. v. Coopers' Go., 3 Beav. 29 ; Seton, 350. Deft Corporation to pay Costs of Suits of Attorney-General and Defts the Trustees. Let the Defts, the corporation of Chester, pay to Her Majesty's Attorney-General, the informant, and to the Defts, the trustees of the charity, the following costs, to be taxed by the taxing master as between party and party, that is to say, &c. Eeference to tax other costs of the informant and Defts, the trustees of the charity, as between solicitor and client. — Directions for raising last-mentioned costs out of charity funds in Court. Att.-Gen. v. Corporation of Chester, 14 Beav. 338. Informant and Relators' Costs as between Solicitor and Client charged on Properly the Subject of the Information. Vary the decree dated, &c., so far as regards the direction to the taxing master to tax the costs, charges, and expenses of the informant and relator of and incidental and preparatory to these causes properly incurred. Let it be referred to the taxing master to tax the costs of the informaEt and relator of these causes as between solicitor and client. Declare that such costs, when taxed, are to be a charge upon the trust property in question in this cause, and not upon the whole charity property in the pleadings mentioned. Let the said costs be raised by sale or mortgage of the said trust estate, the subject-matter of this suit, &c. — Consequential directions. Att.-Gen. v. Kerr, 4 Beav. 297. Costs payable by Attorney-General under 18 d: Id Vict, c. 90 — Liberty to apply. Let it be referred to the taxing master to tax the costs of the Defts W., E., H., and Let the same, when taxed, be paid to the said Defts W., E., H., in manner directed by the Act of Parliament of the 18th and 19th years of the reign of her present Majesty Queen Victoria, c. 90 [with liberty for the last-named Defts, or any of them, to apply to this Court as they may be advised with respect to the said costs]. Att.- Gen. v. Hanmer, 4 De G. & J. 205, 217. Digitized by Microsoft® ADMINISTEATION. 247 Costs payable to Attorney-General under 18 d 19 Vict. c. 90. Let the costs of the Deft A. of this suit he paid to him in the manner directed by the Act of Parliament 18 & 19 Vict. c. 90, such costs to he taxed, &o. Att.-Gen. v. Mathias (V.-C. W.), Deo. 23, 1858 ; Seton, 351. Costs. The relator in a charity information was not entitled to costs as between soli- citor and client as a matter of right : Att.-Qen. v. Fishmongers' Co., 1 Keen, 492 ; Att.-Oen. V. Kerr, 4 Beav. 302. But the relator, where there was nothing to impeach the propriety of the suit, and no special circumstances to justify a special order, was entitled, upon obtain- ing a decree for the charity, to his costs as between solicitor and client, and to be paid the difference between the amount of such costs and the amount of the costs which he might recover from the defts out of the charity estate : Att.-Oen. v. Kerr, 4 Beav. 297, 303, per Lord Langdale. And in general where the object of the suit is to establish a charity, and the estate is ample, the costs of all parties will be taxed as between solicitor and client : Dan. 5th ed. 1301. There may be special cases in which the relator may be entitled to charges and expenses in addition to his costs of suit as between soUcitor and client; but such cases depend upon their peculiar circumstances : Att.-Oen. v. Kerr, 4 Beav. 297. The extra costs of a charity information instituted in respect of one only of several gifts to the charity should in the first instance at least fall on the property which is the subject of the information : S. C. Where the trustees of a charity, defts to an information, had been guilty of some neglect in respect of investments, but the information failed as to its greater part, the defts were ordered to pay the costs as between party and party, and the relators were refused their extra costs out of the charity fand: Att.-Oen. v. Fishmmgers' Go., 1 Keen, 492, 501. Where an heir-at-law is made a deft to the information he is generally entitled to his costs as between solicitor and client : 4 Bro. Eep. 177 ; Currie v. Pye, 17 Ves. 462 ; Att.-Oen v. Kerr, 4 Beav. 299. And where no improper point is raised on behalf of the next of kin they are entitled to their costs as between solicitor and client : Carter v. Oreen, 3 K. & J. 591. Where the relators are allowed their costs of proceedings which the Attomey- Qeneral has attended separately by his own solicitor without an order of the Court, the Attorney-General will not be allowed his separate costs: Att.-Oen. v. Dove, T. & R. 328. But costs are often made payable to the Attorney-General in interlocutory matters independently of the relator : 1 S. & S. 397. The costs of an information must have been paid by a company in which a charitable fund is vested if by their neglect the charity has fallen into desuetude and the general estate of the company has profited by the non-application of the charity funds: Att.-Oen. v. Mercers' Co., 2 My. & K. 654. Where a corporation has been guilty of a breach of trust, but the charity had benefited by the acts of the corporation, no costs of suit were given to the corpo- ration: Sdicitor-Oen. v. Corporation of Bath, 13 Jur. 866. Digitized by Microsoft® 248 ADMINISTEATION. The lessees will be ordered to pay the costs of a suit to set aside an improvident lease of charity land: Att.-Oen. v. Lord Botham, T. & R. 220; Aft.-Qen. v. Owen, 10 Ves. 562. The Court will, in some cases, order the costs to be raised by mortgage -of a portion of the charity estates : -Be Lamhelh Charities (L.JJ.), 22 L. J. (N.S.) 958. And has sometimes ordered a sale for that purpose : Att.-Oen. v. Nethercoat, cited 1 Hare, 400. But the Court will not order a sale for that purpose except in extreme oases, nor even direct as of course an inquiry whether a sale would be beneficial : Att.-Oen. v. Mayor of NewarJc, 1 Hare, 395 ; Att.-Gen. v. Buller, Jac. Rep. 412, jper Lord Bldon; see also Att.-Gen. v. Mayor of Bristol, 2 Jac. & W. 294. In all informations, actions, suits, and other legal proceedings on behalf of the Crown against any corporation or persons in respectof lands, hereditaments, goods, or chattels belonging to the Crown, and the proceeds of which are carried to the Consolidated Fund, the Attorney-General is entitled to recover costs on behalf of Her Majesty : 18 & 19 Vict, c 90, s. 1. And the deft is entitled to costs if successful against the Crown, such costs lo be paid by the Treasury Commissioners : sect. 2, Where upon a charity information filed by the Attorney-General, the decree directed inquiries to be made, and the information was held by the House of Lords wholly to fail, costs were given against the Attorney-General up to the original hearing : Att.-Gen. v. Mayor, &c., of Southmolton, 5 H. L. C. 1, 39. But where the charity information has been filed by the Attorney-General upon an address from the Crown, although dismissed, no costs will be given against the Attorney-General : Att.-Oen. v. Dean and Canons of Windsor, 8 H. L. C. 369? 404 ; nee also observations of Attorney-General in S. C. p. 459. In suits instituted by the Attorney-General without a relator costs might have been ordered to be paid by one deft to another; Att.-Gen. v. Corporation of Chester, U Bea,v. 338 ; Order, p. 246. There might have been substantial grounds for an appeal on the part of the deffs to a charity information to exempt them from payment of costs : Att.-Oen- v. Corporation of Rochester, 5 De G. M. & G. 797. Although interest is recoverable under the 1 & 2 Vict. c. 110, ss. 17, 18, on costs ordered to he paid by one party to another, the Act does not apply to costs directed to be raised out of a charity estate: Att.-Oen, v, Nethereote, 11 Sim. 529. In cases in which part of the property given to a charity becomes undisposed of from being within the Mortmain Act, the costs are paid pro rata out of the part so undisposed of and the property well bequeathed to the charity : Att.-Oen. V. Lord Winchelsea; 3 Bro. Rep. 373 ; Att.-Oen. v. Hurst, 2 Cox, 364; Eowse v. Chapman, 4 Vea. 542 ; Eyre v. Marsden, 4 My. & Cr. 244. Account of Debts and Liabilities. 13 & 14 Vict. c. 35 ; 23 & 24 Vict. c. 38. Upon motion, &c. [or, upon the application of], A., the executor of the -will [or, administrator of the estate of B.] deceased, and upon [hearing the solicitors for the applicant], and upon reading the pro- bate of the will [dr, letters of administration of the estate of] the said Digitized by Microsoft® ADMINISTRATION. 249 B., granted on the — day of — to the said A., and an affidavit of the said A. that no proceedings are pending to administer the estate of the said B., Let an account be taken of the debts and liabilities afiect- ing the personal estate of the said B. And in taking such account debts are to be distinguished from liabilities, and liabilities certain from liabilities contingent. And the personal estate of the said B. is to be applied in payment and satisfaction of such debts and liabilities in a due course of administration. — Liberty to apply. Tlie Court may ujjon the application of the executors or administrators of any deceased person direct an account to be taken of the debts and liabilities affecting the personal estate of such deceased person. But no such order is fo be made pending any proceedings to administer the estate of such person : 13 & 14 Vict. c. 35, s. 19. The order may be made immediately or at any time after probate or letters of administration shall have been granted ; and may be made either upon motion or petition of course or at chambers: 23 & 24 Vict. c. 38, s. 14. The Court or judge may upon application by motion or summons restrain or suspend until the account directed by such order shall have been taken' any pro- ceedings at law against such executors or administrators upon such terms as to tbe Court or judge shall seem just : Ibid. In taking the account the judge is at liberty upon the application of the ex- ecutors or administrators to direct that the particulars only of any claim brought in pursuance of such order shall be certified by his chief clerk without any adjudication thereon : Ibid. Notices for creditors to come in have the same force and effect as notices given by executors under the 22 & 23 Vict. c. 35, s. 29. Under the latter Act, v?here an executor or administrator has given such or the like notices as would have been given by the Couit of Chancery in any ad- ministration suit, at the expiration of the time limited in the notices the executor or administrator is entitled to distribute the assets : 22 & 23 Vict. c. 35, s. 29. After notices under the last-mentioned Act and distribution of the estate a suit cannot be brought against the executor or administrator: Glegg v. Rotoland, L. E. 3 Eq. 868 ; Cuthhert v. Wharmby, W. N. (1869), 12. The apphcation for an order under the 13 & 14 Vict. c. 35, must be supported by production of the probate of the will or letters of administration to the estate of the deceased person, and by an affidavit of the sole executor or administrator, or some or one of the executors or administrators, that there are no proceedings pending to administer the estate : Re Brown, 6 W. E. 5. Any person who has come in under the order and claimed to be a creditor, or to have any demand upon the estate by reason of any liability, but whose debt or claim has not been wholly allowed, may within four clear days after the certifi- cate has been signed take the judge's opinion thereon ; and may within eight clear days after the filing of such certificate apply by summons or motion to discharge or vary it : 13 & 14 Vict. c. 35, s. 20. Similar provision is made enabling the executor or administrator to apply that any debt or claim allowed may be disallowed : Ibid. Where any debt or any certain hability has been allowed, and is not within fourteen days after the certificate has become binding paid or provided for, the Court may order payment of such debt or a provision to be made for such liability. Digitized by Microsoft® 250 ADMINISTBATION. or may direct an account of the debts and certain liabilities allowed but remaining unpaid or unprovided for : 13 & 14 Vict. c. 35, s. 22. In cases of contingent liability the Court may order the appropriation of a certain sum of money to meet such liability : 13 & 14 Vict. c. 35, s. 23 ; Be Hawkins, 10 Hare, App. 83 ; Be Forest, W. N. (1868) 194. After filing the certificate the Court may upon the application of the executors or administrators of the deceased restrain by injunction any proceedings taken against them in respect of any debt or liability : 13 & 14 Vict. c. 35, s. 24. Note. —The practice under this Act has become obsolete. And see now Judicature Rules, Order 15. Digitized by Microsoft® ( 251 ) CHAPTER XXII. INJUNCTIONS. IlSTEEIM OrDEES, Ex PAETE. Upon motion, &c., by counsel for the Pit, and upon reading, &c. [evidence], and the Pit by his counsel undertaking to abide by any order this Court may hereafter think fit to make as to damages in case the Court shall be of opinion that the Defts have sustained any by reason of this order which the Pit ought to pay. Let the Deft B., his workmen, servants, and agents [or, his solicitors and agents], be restrained until over the — day of — from, &c. [If ordered : Let the Pit be at liberty to serve the Deft B. with notice of motion for the — day of — for an injunction.] Interim Order on Notice. Upon motion, &c., by counsel for the Pit, and upon hearing counsel for, &c., and upon reading [evidence] and [if party served does not appear, an affidavit of service of notice of this motion on — ] and the Pit by his counsel undertaking to abide by any order this Court may hereafter think fit to make as to damages, &c., Let the Deft B., his [workmen] servants and agents [or, his solicitors and agents], be restrained until over the — day of — from, &c. Injunction, Ex parte. Upon motion, &o., and upon reading, &o. [evidence], and — [the party moving] by his counsel undertaking to abide by any order this Court may think fit to make as to damages, &c. [If ordered, and to accept short notice of motion to dissolve the injunction hereby awarded] Let an injunction be awarded against — , to restrain him, his [workmen] servants and agents [or, solicitors and agents], untU the hearing of this action or further order from, &c. Injunction, on Notice. Upon motion, &c., by counsel for • — , and upon hearing counsel for — , and upon reading [evidence] [and an affidavit of service of notice Digitized by Microsoft® 252 INJUNCTIONS, of this motion on — ], and — [party moving] by his counsel under- taking, &c. [undertaking as to damages], Let an injunction be awarded against — to restrain him, his [workmen] servants and agents [or, his solicitors and agents], until the hearing of this action or further order from, &c. Undertaking as to Damages. The undertaking is required in all interlocutory applications for interim orders or injunctions as well on notice as ex parte : Chappell v. Davidson, 8 De G. M. 6 G. 1 ; Tuck V. Silver, Job. 218 ; Wakefield v. Duke of Buccleugh, 11 Jur. (N.S.) 523. It is usually given by counsel, and forms part of the order. Where the order is granted in Vacation, the written undertaking may be inserted in the registrar's book, and signed by the pit or his solicitor. Where a limited company is pit, the undertaking must be signed by some re- sponsible person : Anglo-Danvhian Co. (^Limited) v. Sogerson, 10 Jur. (N.S.) 87. Where there was no ofSoer of the company resident in London, the under- taking was permitted to be given on a separate piece of paper and transmitted to the registrar : Daniell, 5th ed. 1519 ; Pacific Steam Go. v. Gibbs (V.-O. W.-), 14 W. E. 218. Where a married woman is pit she may be required to give the undertaking in respect of her separate estate : Eolden v. Waterlow (L.JJ ), 15 W. R. 139. Where the undertaking as to damages has been given, and the suit is subse- quently dismissed, the Court can still enforce the undertaking : Newhy v. Harrison, 7 Jur. (N.S.) 981 ; 9 W. E. 849. Injunction on Payment into Court — Money lodged to Chancery Suspense Account. Upon motion, &c., and it appearing by the receipt of one of the cashiers of the bank that the Pit A. has lodged at the bank, to the credit of a Chancery suspense account, the sum of £ — , Let an injunc- tion be awarded, &c. Let the Pit A., on or before the — day of — , do all necessary acts pursuant to the 31st of the Chancery Funds Con- solidated Kules, 1874, for the purpose of having the said sum of — transferred by him into Court to the credit of this cause, A. v. B., &c. Where conflicting claims are set up to a fund, the Court will in some cases make the injunction dependent on the money being brought into Court : Stock- port District Waterworks Co. v. Jowett (L. C), 13 W. R. 977. But where there there is no probability that the money is in danger, or that the parties would be injured if the injunction be ill founded, the Court will not make the injunction dependent on the money being paid into Court : Maitland V. Backhouse (L. C), 16 Sim. 58, 69 ; 12 Jur. 45. Where it is desired to bring money into Court without waiting the time neces- sary to obtain a direction for the bank to receive such money, it may be lodged at the bank to the credit of a Chancery suspense account (subject to being dealt with as hereinafter mentioned, and not otherwise) upon a written application signed by the person desiring to lodge the same, or his solicitor, &c. : Chancery Funds Rules, 1874, rule 31. Digitized by Microsoft® INJUNCTIONS. 253 Injunctions and Interim Orders, when granted — Terms. " No cause or prooeeding at any time pending in the High Court of Justice, or before the Court of Appeal, shall be restrained by prohibition or injunction ; but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained, if this Act had not passed, either unconditionally, or on any terms or conditions, maybe relied on by way-of defence thereto : Provided always, that nothing in this Act contained shall disable either of the said Courts from directing a stay of proceedings in any cause or matter pending before it if it shall think fit ; and any person, whether a party or not to any such cause or matter, who would have been entitled, if this Act had not passed, to apply to any Court to restrain the prosecution thereof, or who may be entitled to enforce by attachment or otherwise any judgment, decree, rule, or order contrary to which all or any part of the proceedings in such cause or matter may have been taken, shall be at liberty to apply to the said Courts respectively, by motion in a summary way, for a stay of proceedings in such cause or matter, either generally, or so far as may be necessary for the purposes of justice ; and the Court shall thereupon make such order as shall be just " : Judicature Act, 1875 (36 & 37 Vict. c. 66), s. 24, r. 5. " A mandamus or an injunction may be granted by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or conve- nient that such order should be made; and any such order may be made either imconditionally 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 in- junction 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 : " 36 & 37 Vict. c. 66, s. 25, sub-s. 8. An application for an order under this sub-section " may be made to the Court or a judge by any party." If the application be by the pit for an order under the said sub-sect. 8 it may be made either ex parte or with notice. Judicature Eules, Order 52, rule 4. Mandatory Injunctions. The Court will grant a mandatory injunction where it is the only suiBScient remedy for the injury sustained : Isenherg v. MoLst India House Go., 3 De G. J. & S. 263 ; 33 L. J. (Ch.) 392 ; Durtll v. Pritchard, L. R. 1 Ch. 244 ; City of London Brewery Go. v. Tennant, L. E. 9 Ch. 212, 218, 219 ; Ooodson v. Mickard- son, L. E. 9 Ch. 221 ; Eogg v. Scott, L. E. 18 Eq. 444 ; Smith v. Smith, L. E. 20 Eq. 20. There is no rule which prevents the Court from granting a mandatory injunc- tion where the injuiy sought to be restrained has been completed before filing the bill : Durell v. Pritchard, L. E. 1 Ch. 244. Where the injury can be compensated by a pecuniary sum the Court will not grant a mandatory injunction, but will either direct an inquiry as to the damages sustained, or give liberty to the pit to proceed at law: Deere v. Quest, 1 My. & Cr. 516 ; Isenherg v. Sast India House Go., 33 L. J. (Ch.) 392 ; Lowe v. Innes, Digitized by Microsoft® 254 INJUNCTIONS. 10 Jnr. (N.S.) 1037 ; Durell v. Pritchard, L. E. 1 Ch. 244 ; Martin v. Seadon, L. E. 2 Eq. 425 ; Bower v. Law, L. E. 9 Eq. 636 ; Lady Stanley v. Earl of Shrewsbury, L. E. 19 Eq. 616. And the Court lias power to give damages although a building complained of is completed before proceedings are instituted and a mandatory injunction is not granted : City of London Brewery v. Tennant, L. E. 9 Oh. 212, 218. ,A mandatory injunction maybe obtained upon an interlocutory application : Bervey v. Smith, 1 K. & J. 392 ; Att.-Gen. v. Metropolitan Board of Works, 1 H. & M. 312 ; Hepburn v. Lordan, 2 H. & M. 352. The right to a mandatory injunction is gone if there has been unreasonable delay, and mischief would be caused thereby to the deft : Kerr, 232 ; Wicks v. Hunt, Job. Eep. 372 ; Ward v. Higgs, 12 W. E. 1074. WASTE. Ornamental Trees — Trees growing for Protection or Shelter — Young Trees. Let an injunction te awarded to restrain the Deft D., her agents, servants, and workmen, from cutting down any timber or other trees growing on the estate in the Pit's bill mentioned, which are planted or growing thereon for the protection or shelter of the several mansion- houses belonging to the said estate or for the ornament of the said houses, or which grow in lines, walks, vistas, or otherwise for the orna- ment of the said houses, or of the gardens, or parks, or pleasure grounds thereunto belonging ; and also to restrain the Deft D., her servants, workmen, and agents from cutting down any timber or other trees except at reasonable times and in a husbandlike manner ; and likewise from cutting down saplings and young trees not fit to be cut as and for the purposes of timber until, &c. Champerlayn v. Bummer, 1 Bro. 0. C. 166 ; Seton, 890. Unripe and Ornamental Timber — Inquiries as to Timber cut— Account. Declare that the Deft W. W. is entitled to fell all such timber on the devised estates as is mature and fit to be cut, except such as has been planted or left standing for ornament or shelter with reference to the occupation of the mansion-house at Brattleby ; but that he is not entitled to fell any unripe timber on the said estate, or any timber which was planted or left standing for ornament or shelter with reference to the occupation of the mansion-house at Brattleby. Continue the injunction until further order. The Pit undertaking to be answerable as the Court shall direct in respect of any damage thereby occasioned to the Deft W. W. Inquire whether any and which of the trees marked on the Brattleby estate for cutting are timber planted or left standing for ornament with reference to the occupation of the said mansion-house. Inquire whether and what ornamental or sheltering or immature timber or trees have been cut by the said Deft on the estates at Brattleby and North Kilsey, or Digitized by Microsoft® INJUNCTIONS. 255 either of them, which he ought not to have cut having regard to the aforesaid declaration ; and if any have heen so cut, Let an account be taken of the value of the trees so improperly cut. — Adjourn further consideration. — ^Liberty to apply. Turner v. Wright (V.-O. W.), 6 Jur. (N.S.) 647. Ornamental Trees and Trees for Shelter not confined to Trees contiguous to Mansion-house. Let an injunction be granted to restrain the Deft until, &c., from cutting down or felling any trees or timber standing or growing for ornament or shelter of the mansion-house and buildings at Ombersley Court, or any other houses or buildings on the settled estates, or which grow for ornament in any of the vistas, avenues, walks, pleasure grounds, or plantations belonging to Ombersley Court, or to any part of the estates, hereditaments, and premises late belonging to Edwin Lord Sandys, deceased, settled and conveyed by the indenture of settlement to the use of the Pit, and from cutting down or felling saplings growing on any part of the said estates not proper to be felled. Marquis of Downshire v. Lady Sandys, 6 Ves. 107. Inquiry as to Trees planted for Ornament or Special Purposes — .Bepairs, d-c. Let an inquiry be made whether the woods called Long Thicket, Chick's Thicket, and Ford's Coppice, or any or either or which of them, and the six elm trees and one oak tree on Lovedere Farm, and the oak trees and elm trees on the pastiire land on West Bower Farm, which have been marked for cutting, or any or either and which of such trees, were or was or have or has been planted or left standing by any owner in fee or in tail of the Hallswell estate, or any part thereof, for the orna- ment or shelter of the mansion-house of the said estate, or of the gardens, park, or pleasure grounds thereto belonging, or of any road or roads, path or paths leading thereto, or for the purpose of intercepting the view of any object or objects intended to be kept out of sight from the said mansion-house, gardens, and park or pleasure grounds, or any part thereof. And in case it shall be so found as to the said woods, or any or either of them, then Let further inquiry be made whether the trees therein have ordinarily, or otherwise and under what circumstances, been cut for repairs or for sale, and what estate or interest the person or persons by whom or by whose order or direction the same were so cut had in the said Hallswell estate at the time of the cutting thereof; and whether the trees in the said woods, and the said other trees which have been marked for cutting, or any or either and which of such trees, injure or impede the growth of any other trees adjoining or near Digitized by Microsoft® 256 INJUNCTIONS. thereto, which are of so much importance to the purposes of ornament or shelter to the said mansion-house, gardens, parks, or pleasure grounds as that the removal of the trees so marked for cutting is essential to such purposes of ornament or shelter. Ford v. Tynte (L. J J.), 10 Jur. (N.S.) 429. Timber — Decree in Adminislration Suit — Account. Declaee that the personal estate of the late Duke of Leeds is liable to account to the Pit for all the benefit and profits received by him from or by means of the acts of equitable waste complained of in the bill, and committed by him on the family estate at Keeton, with inte- rest on the ainount at £4 per cent, per annum from the 10th July, 1838, the day of the late duke's death. Let an account be taken of all sums of money received by the late duke, or by any person or persons by his order or for his use, arising from the sale of the materials of Keeton Hall and the of&ces, outbuildings, hothouses, and other build- ings belonging thereto. Let an inquiry be made what timber and other trees on the estate in question which were planted or growing for the protection or shelter of Keeton Hall, or for the ornament of the said house, or of the gardens, park, or pleasure-grounds belonging thereto, or which grew in lines, walks, or vistas, for the ornament of the house or of the gardens, park, or pleasure-grouads thereto belong- ing were felled by the late duke, and also what saplings and young trees not fit to be cut were felled by him. Let an account be taken of all sums of money received by the late duke, or by any person or per- sons by his order or for his use, from the sale of such timber and other trees so cut down, andto compute interest on such sums at £4 per cent, from the day of the decease of the late duke. And in case the Defts his executors shall not admit assets, &c.. Let an account be taken of the personal estate of the late duke not specifically bequeathed come to the hands of his executors, &c. Let the late duke's personal estate be applied in payment of his funeral expenses and debts, including what the master shall find to be due for principal and interest in taking the accounts hereinbefore directed in a due course of admiaistration. And in case the personal estate shall be insufficient for that purpose : Declare that the deficiency ought to be raised by sale or mortgage of the late duke's real estates. And in that case Let an inquiry be made what real estate the late duke died seised and possessed of, &c. — Direc- tions for taxation and payment of costs of suit. Duke of Leeds v. Lord Amherst, 14 Sim. 357, 364; 2 Ph. 116. Mines — Injunction — Inspection — Account. Let an injunction be awarded, &c., from digging or getting any coals, culm, or other minerals or soil from under the E. estate in the Digitized by Microsoft® INJUNCTIONS. 257 Pit's bill meutioned, or in any manner digging under the same, and also from destroying or taking away the pillars or supports which have been left or erected in the workings under, &e., or any part thereof, and also from using such parts of the communications called, &c., or any part thereof. Let the Pits or a proper person to be appointed by them for that purpose be at liberty, upon reasonable notice being given, to inspect the workings of the Defts under the said E. estate. Let the following accounts be taken : — 1. An account of the several quantities of coal, culm, and other minerals worked, raised, or procured by the Defts or any of them, or by any other person or persons by their or any of their order or use, out of or from the said E. estate or any part thereof. 2. An inquiry how and in what manner, and at what time or times, and for what sum or sums of money the same and every part thereof have or has been sold, applied, or disposed of. Baynton v. Leonard (M. E.), Feb. 15, 1853 ; Seton, 900. Minerals under Copyholds — Account — Injunction. Lbt an account be taken of all the coals and minerals which have been raised or dug by the Deft T. H., or by his licence or authority, from underneath the piece of copyhold land within and parcel of the manor of B., situate, &c., and of the value of such coal and minerals, and of all money received by the Deft T. H., or by his order or for his use, from the sale of or otherwise in respect of such coal and minerals. Let a perpetual injunction be awarded against the Deft T. H. to restrain him, his agents, servants, and workmen, from raising, dig- ging, or working, or in any way interfering with the coal or other minerals lying underneath the said piece of copyhold land, or under any other copyhold lands of the Deft T. H. within the said manor, being old enclosures, or which have been allotted to him as copyholds out of the open arable fields. Deft to pay costs of suit. — Adjourn further consideration. — Liberty to apply., Duke of Portland v. Hill, L. E. 2 Eq. 765. Waste. A man who applies for an injunction against waste is required to shew a par- ticular title. An affidavit generally that the pit is entitled in fee, or an affidavit as to information and belief, is not sufficient : Kerr, 237 ; Whiielegg v. Whitelegg, 1 Bro. C. C. 57 ; Davies v. Leo, 6 Ves. 784. And pit's affidavit should state some actual violation of right : Gibson v. &mith, 2 Atk. 182 ; Hanson v. Qa/rdner, 7 Ves. 309. Beasonable diligence must be used in making application for an injunction : Bagot V. Bagot, 32 Beav. 509 ; Barry v. Barry, 1 Jac. & W. 651 ; Norway v. Rome, 19 Ves. 159 ; Parrott v. Palmer, 3 My. & K. 635 ; Olegg v. Edmondson, 8 De G. M. & G. 808. The intervention of an intermediate estate for life does not deprive the owner Digitized by Microsoft® s 258 INJUNCTIONS. of the inheritance, or a remainderman for life of his right to an injunction : Perrot V. Perrot, 3 Atk. 94; Rdbinsm v. Litton, 3 Atk. 210; Davies v. Leo, 6 Ves. 784 ; Blagrave v. Blagrave, 1 De Gr. & Sm. 252. A mortgagee in possession with a sufficient security may not commit waste, and he is bound to do necessary repairs : Godfrey v. Watson, 3 Atk. 518 ; Sandon V. Hooper, 6 Beav. 246. When a mortgagee in possession pending a redemption suit committed waste, he was ordered on motion to deliver up the premises to the mortgagor : Sanson V. Derh/, 2 Vem. 392. In general the Court of Chancery will not interfere to restrain permissive waste, such as neglecting repairs : Powys v. Blagrave, 4 De G. M. & G. 448. But will do so under special circumstances : Caldwell v. Baylis, 2 Mer. 408. Although a tenant for life may hold his estate without impeachment of waste, the Court of Chancery has not allowed an unconscientious use of the legal power ; see observations of L. J. Turner in Micklethwait v. Micklethwait, 1 De G. & J. 504, 524. And now " an estate for life without impeachment of waste shall not confer or be deemed to have conferred upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right shall expressly appear by the instrument creating such estate " : Jud. Act, 1873 (36 & 37 Vict. c. 66), sect. 25, sub.-sect. 3. The Court will restrain by injunction a tenant for life from pulling down family mansions or farmhouses : Vane v. lord Barnard, 2 Vem. 738 ; Aston v. Aston, 1 Ves. 264, 266 ; cutting down timber of too young growth : Chamberlayne v. Bummer, 1 Bro. C. C. 166 ; Order, p. 254 : Turner v. Wright, 6 Jur. (N.S.) 647, 809; Order, p. 254 ; cited in Dan. 5th ed., 1479 ; ornamental trees and trees for shelter : Pachmgton's Case, 3 Atk. 215 ; Lord Downshire v. Lady Sandys, 6 Ves. 107 : Order, p. 255 ; Stansfeld v. Habergham, 10 Ves. 273 ; Wellesley v. Wellesley, 6 Sim. 497 ; Campbell v. Allgood, 17 Beav. 623 ; Micklethwait v. Micklethwait, 1 De G. & J. 504; 3 Jur. (N.S.) 1279; Halliwell v. Philipps, 4 Jur. (N.S.) 607 ; Ford v. Tynte (L.JJ.), 10 Jur. (N.S.) 429 ; Order, p. 255 ; plantations, vistas, avenues, and rides: Lord Tamworfh v. Ferrers, 6 Ves. 419; and trees planted for special purposes: Day v. Merry, 16 Ves. 375, cited in Daniell, 5th ed., 1479. See also Honywood v. Honywood, L. R. 18 Eq. 306. It is not necessary that timber should be contiguous to a house or park in order to entitle it to the protection of the Court as being ornamental: Marquis of Downshire v. Sandys, 6 Ves. 110, cited in Kerr, 272. The cutting of saplings or young trees or underwood at unseasonable times has been held to be a malicious destruction : Hole v. Thomas, 1 Ves. 589 ; Aston v. Aston, 1 Ves. 264. But the Court will permit ornamental timber, or timber forming shelter to a mansion-house, to be felled where it is decaying, or injurious to young trees, or necessary for the comfort of the house : Lushington v. Boldero, 6 Madd. 149 ; Att.-Oen. V. Duke of Marlborough, 5 Madd. 280; Campbell v. Allgood, 17 Beav. 637, cited in Kerr, 280. And a landowner who has demised for a term of years the right of shooting over his land is not thereby prevented from cutting timber in the ordinary course of management, although injurious to the shooting : Oeams v. Baker, L. R. 10 Ch. 355 ; Jeffryes v. Evans, L. R. 18 Eq. 259. Tenants in tail after possibility of issue extinct are subject to the same restric- tions as tenants for Ufe without impeachment of waste. Digitized by Microsoft® INJUNCTIONS. 239 And the doctrine of equitable waste applies where estates were limited by means of executory devises over, to go in succession : Turner v. Wright, 6 Jur. (N.S.) 647. There is no difference whether the property goes by way of executory devise or remainder : S. 0. The report of an expert, to whom a reference has been made by the Court under the 15 & 16 Vict. c. 86, s. 42, to report as to timber, is not final and conclusive : Ford V. Tynte, 10 Jur. (N.S.) 429. If there is any timber on the estate which is overripe, or in a state of decay, or which ought for any other reason to be cut down, the Court of Chancery will, on the application either of the tenant for life or the remainderman, order It to be cut down and sold, imposing terms upon the fund produced by the sale : Bewick V. Whitfield, 3 P. Wms. 268 ; ToUemache v. Tdlemache, 1 Hare, 457 ; Ferrand v. Wilson, 4 Hare, 382, cited in Kerr, 278. A tenant for life will not be allowed to derive any benefit from timber impro- perly and wilfully cut by him : Cfarth v. Cotton, 3 Atk. 751 ; 1 Dick. 185 ; Lushington v. Boldero, 15 Beav. 1 ; Bagot v. Bagot, 82 Beav. 509. But where a long period has elapsed before bill filed, the Court will deal leniently with the tenant for life in directing inquiries: Ba^ot v. Bagot, 32 Beav. 509. And although the Court will grant an injunction to restrain cutting down ornamental timber, yet where the timber has been felled the amount of damages can 6nly be measured by the damage done to the inheritance: Buhh v. Yelverton, L. E. 10 Eq. 465. In all cases in which a bill for an injunction will lie to restrain future waste, a Court of Equity will give an account of past waste : Kerr, 284 ; Jesus College v. Bloom, 3 Atk. 263 ; Duke of Leeds v. Lord Amherst, 14 Sim. 357, 364 ; 2 Phil- lips, 117. And after the determination of the tenant's estate a bill will lie for an account of equitable waste, although no injunction is prayed by the bill : Oarth v. Cotton, 1 Dick. 183; Smith v. Cooke, 3 Atk. 381 ; Grierson v. Eyre, 9 Ves. 346. As to waste generally, in the cases of mines and minerals, see Bishop of London v. Webb, 1 P. Wms. 528 ; Whitfield v. Bewit, 2 P. Wms. 240 ; Clavering V. Clavering, 2 P. Wms. 389 ; Mitchell v. Dors, 6 Ves. 147 ; Viner v. Vaughan, 2 Beav. 469 ; Bagot v. Bagot, 32 Beav. 509 ; Eanrl Cowley v. Wellesley, L. R. 1 Bq. 656 ; Glegg v. Rowland, L. E. 2 Eq. 160. An account of profits will be directed in the case of mines and collieries, with- out reference to the question whether or not an injunction will lie : Bishop of Winchester v. Knight, 1 P. Wms. 406 ; Pulteney v, Warren, 6 Ves. 89 ; Thomas V. Oakley, 18 Ves. 184. A lease of lands (without mentioning mines) will entitle the lessee to work open, but not unopened, mines. If there be open mines, a lease of land with the mines therein will not extend to unopened mines : Olegg v. Rowland, L. R. 2 Eq. 160. In lands held by copy of court roll, not at the will of the lord, but according to the custom of the manor, the freehold is in the lord; and in the absence of custom (the onus of establishing which lies upon the tenant) the tenant will be restrained from working the minerals, and an account directed : Duhe of Portland V. EUl, L. E. 2 Eq. 765; see Order, p. 257. A railway company, on purchasing land under the Lands Clauses Act, 1845, does not become entitled to the mines under the land : Oreat Western By. Co. v. Bennett, L. E. 2 H. L. 27, Digitized by Microsoft® s 2 260 INJUNCTIONS. The property in minerals severed from'tlie inheritance vests in a manner similar to that of severed trees. The owner of the inheritance is entitled to the proceeds' as against persons having estates in remainder prior to the ultimate limitation in fee vested in him : Kerr, 283 ; Bell v. Wilsm, L. E. 1 Ch. 303. The lessee of land who erects huildinga thereon without the consent of his lessor does not commit waste unless it is proved that they are an injury to the inheritance : Jones v. Chappell, L. E. 20 Eq. 539. The owner or lessee of houses let or sub-let to weekly tenants cannot maintain a suit to restrain a temporary nuisance, such as the noise of machinery in adjacent premises. BemMe, such a suit could be maintained by a weekly tenant if the nuisance were of such a nature as to be injurious to his health or comfort : S. C. TEESPASS. Threatened Trespass — Injunction. Let a perpetual injunction be awarded against the Defendant, his servants, agents, and v^orkmen, from paring, cutting, or otherwise injuring any grass, turf, or sods upon the Whaddon estates in the Pit's bill mentioned, or any part thereof, and from cutting, felling, or otherwise injuring any of the timber or timber-like trees, brushwood, underwood, or shrubs now growing, standing, and being on the said Whaddon estates, and each and every part thereof. Lowndes v. Betile (V.-C. K.), 10 Jur. (N.S.) 226 ; 12 W. E. 399. Trespass — Hoof of Building — Mandatory Injunction. Let an injunction be awarded against the Deft G. L. to restrain the Deft from permitting the room or building in the Pit's bill men- tioned, or any part thereof, to remain on the flat lead roof of the Pit's shop and premises comprised in the indenture of lease of the 18th December, 1861, in the bill also mentioned. Let the Deft Gr. L., his servants, agents, and workmen, be in like manner restrained from in any manner interfering vrith the said flat roof of the Pit's said shop and premises, or any part of such roof, during the subsistence of the terms demised by the said indenture of lease. Defendant to pay costs of suit. Martyr y. Lawrence (V.-O. W.), afBrmed 2 De G. J. & S. 261. Trespass — Buildings — Surface Water — Mandatory Injunction. Let a perpetual injunction be granted against the Defts the trustees of the Wazley, Armley, and Bramley district of road, in the county of York, in the bill mentioned, and their workmen, servants, and agents, from encroaching upon the lands of the Pit to the north of the road, so constructed as in the bill mentioned, by making or building any buttresses or other works thereon, or in any other manner, and from continuing the said road in such a state and condition as to cause the surface water therefrom to flow upon or over the Pit's lands, or to Digitized by Microsoft® INJUNCTIONS. 261 cause the water upon the Pit's lands to he thrown back upon the Pit's said lands. Holmer v. JJptm (per Lord Cottenham), Eeg. Lib. A. 1840, fo. 169, cited L. E. 9 Ch. 214. Mines — Trespass — Inquiries as to Goal gotten — Injimction. Declare Deft Garrett to be answerable in manner hereinafter men- tioned in respect of all coals gotten or removed from under the closes or lands mentioned in the lease of March, 1848, by means of work- ings carried on from the North Side Colliery and Malago Vale Colliery, or either of them, prior to the 29th of May, 1854. , Declare Stuokey's Banking Company, and the Defts Aiken and Coles as public ofSoers of the same, to be chargeable in manner hereinafter mentioned in respect of all coal gotten or removed from under the closes and lands in the said lease mentioned, by means of workings carried on from the said collieries, or either of them, since the 29th May, 1864. Inquire what coals were so gotten and removed before the 29th May, 1854 ; and what coals were so gotten or removed since that date. Let it be stated in the certificate to be made under this order whether any and what quantity of coal has been gotten or removed from under the said closes the precise time of getting or removing which cannot be ascer- tained. An account of the value of all coal in respect of which the said Defts are respectively declared to be chargeable according to the market price of such coal at the pit's mouth at the time of the sale or other disposition thereof, or as nearly thereto as can be ascertained. All just allowa;nces to be made to the said Defts in respect of their charges and expenses on account of such coal. The aforesaid declarations and inquiries to be without prejudice to any question whether Garratt and Aiken and Coles, or either of them, are subject to be charged in respect of the coal (if any) which may have been gotten or removed, but the precise time of getting or removing which cannot be precisely ascertained as being either before or after the 29th May, 1854. Let a perpetual injunction be awarded to restrain the Defts Stuckey's Banking Company from digging or getting coals in or under any or either of the collieries, closes, or lands comprised in the said indenture of the 27th March, 1848, other than Moffat's land, or in any manner digging under the same, and from carrying on any workings in the said collieries of the Pits, or any or either of them, or under the said closes or lands, or any or either of them. And also to restrain the said Defts from continuing to use the air courses or level roads Tinder the said closes or lands mentioned in the said indenture. Let the Defts Aiken and Coles and Stuckey's Banking Company give and allow to the Pits, their servants, workmen, and agents, access through their pits and the air courses and roads in their collieries, in Digitized by Microsoft® 262 INJUNCTIONS. order that the Pits may stop and close the air courses in the bill men- tioned, and stop up or remove the roads in the Pits' mines. Powell v. Aiken, 4 K. & J. 343. Mines — Leases — Bight to Support — Injunction. Declare that the Defts are not entitled under the indenture of lease, dated, &c., to work any coal or mineral, or to execute any works upon the portion of land coloured red upon the plan attached to the said lease, or to search for any coal or mineral therein. — Injunction accord- ingly. — ^Declare that the Defts are entitled to have a sufficient support for the upholding of the mansion-house, offices, and buildings called " Brymbo Hall," situate, &c., and that the Defts are not entitled to remove any of the earth or soil necessary for such support from any part of the demised premises. — Inquiry whether any and what part of the lands comprised in the said lease other than such portion of land coloured red affords such support to the said mansion-house, offices, and buildings as to render it necessary that the same or any and what part thereof should be left undisturbed for the purpose of such support. — Liberty for Pits to bring action in respect of past workings. — Liberty for Pits to have access to the mines for the purpose of making such supports as may be necessary for upholding the mansion-house, &c. Dugdale v. Robertson, 3 K. & J. 695. Contiguous Mines-T— Injunction — Inquiry as to Value at Pit's Mouth — Damages. Let (1) An inquiry be made what was the market value at the pit's mouth of all the coal worked and gotten by the Defts from the Pits' mine at Colgnant in the Pits' bill mentioned, and the aggregate amount thereof, after making to the Defts all just allowances for the costs and expenses incurred by them in bringing such coal to the pit's mouth, and all other just allowances, but not including the costs of severing such coal. Let the Defts within one month from the date of the chief clerk's certificate of the result of such inquiry, pay such aggregate amount as aforesaid to the Pits the Llynvi Valley Coal and Iron Company, Limited. Let the following further inquiry be made : (2) An inquiry whether the Pits have sustained any, and if any what, damage by reason of the Defts having broken through the boundary between their mine of Tywith in the pleadings mentioned, and the Pits' said mine of Colgnant. Declare that the Defts are liable to pay to the Pits the amount (if any) which shall be certified to be payable in respect of such damage. Defts to pay costs up to hearing. — Adjourn further consideration. — Liberty to apply. Llynvi Valley Coal Co. v. Brogden, V.-O. B., Nov. 15, 1870, Digitized by Microsoft® INJUNCTIONS. 263 Workings for Coal, Culm, or Fire-clay — Injunction — Inspection. The Pits by their counsel undertaking, &c., Let the Deft W. E., his agents, servants, and workmen, be restrained until over the 23rd January, 1873, from making, continuing, or using for any purpose any levels or level drifts, or drift workings, or excavations under the farms and lands of the Pit C. M. in the Pits' bill mentioned, or any of them, or any part thereof, or under the eastward half of the road in the Pits' bill mentioned, where it runs parallel to the said farms and lands, and from getting or disturbing any coal, culm, fire-clay, or other minerals, out of or under the said farm and lands, or any of them, or any part thereof. And also to restrain the Deft until over the 23rd January, 1 873, from permitting or suffering the three levels driven by him, as in the Pits' bill mentioned, or any of them, to remain open or pervious to water any longer than the Pits may reqxiire the same to be left open for the purposes of inspection and measurement hereinafter mentioned. Let, for the purposes of measuring the Defts' alleged wrongful workings, and ascertaining the quantities of coal, culm, and fire-clay respectively gotten, severed, or wasted, as in the Pits' bill mentioned, the Deft permit the Pits, their surveyors, Agents, servants, and work- men, at all seasonable times, upon one day's notice, to have full and free access thereto by the Defts' pit and workings in the Pits' bill mentioned, and for that purpose to use the machinery, tackle, and appliances of the Deft. Mamel v. Evans (V.-C. B.), Jan. 16, 1873. Infection of Workings — Plans — Gostg. Upon motion, &c. Let the Pits or their agents be at liberty, at all seasonable times, upon giving one clear day's notice, to descend as far as may be necessary into the Deft's mines in the Pits' bill mentioned, in order to ascertain whether the Deft has worked into the Pits' land in the bill mentioned, and if so, how far and to what extent. Let the Pits, or their agents and surveyor, be at liberty to do all such acts in the way of measuring, dialling, or latching, and to make all such plans or surveys as may be necessary for the foregoing purpose. Let the Pits pay to the Deft any expenses to be incurred or occasioned by such inspection. Bennitt v. Whitehouse, 28 Beav. 119 ; Eardley v. Lord Granville (M. R), June 3, 1875. Highway — Wat&- Pipes — Mandatory Injmction. Let a perpetual injunction be awarded to restrain the Deft Eichard Eichardson, his servants, workmen, and agents, from allowing any pipes which have been already laid by the Deft in or though the land or Digitized by Microsoft® 264 INJUNCTIONS. soil beneath the surface of the highway adjoining the Pit's lands in the bill mentioned (to one undivided moiety whereof the Pit is entitled as in the bill is also mentioned) to remain therein. Deft to pay Pit's' costs of suit. Goodson v. Bichardson (M..'R.), Deo. 3, 1873; affirmed, L. E. 9 Ch. 221. Bights of Common — Inclosures — Injunction. Thb Deft T. H. having disclaimed at Bar, Let the Pits' bill be dis- missed against the said Deft with costs, to be taxed and paid by the Pits. Declare that the Pits and the other owners and occupiers of lands and tenements lying within that part of the Forest of Essex, in the county of 'Essex, now known by the name of Epping Forest, other than the waste lands of the said Epping Forest, are entitled in right of and as appurtenant to their several lands and tenements within the said Epping Forest to a right of common of pasture upon all the waste lands of the said Epping Forest for all manner of cattle, that is to say, neat beasts and horses, commonable within the forest, levant and couchant upon their respective lands within the said Epping Forest, according to the assizes and customs of the said Epping Forest ;\ and Let the Pits be quieted in the possession and enjoyment of their said rights. And the Pits (having regard to the provisions of the Epping Forest Act, 1871, the Epping/Forest Amendment Act, 1872, and the Epping Forest Act, 1878), by their counsel not asking for any injunction as regards lands wliich on the 14th August, 1871, were actually covered with buildings, or actually enclosed and used as the gardens belonging to or curtilages of buildings, or as regards lands which were actually inclosed on or before the 14th August, 1871. Declare that the Pits are entitled to an injunction to restrain the Defts respectively, other than the Attorney-General and the Deft T. H., and their respective servants and agents, from permitting or suffering to be or to remain inclosed or built upon any of the waste lands of the said Epping Foi'est other than and except lands which on the 14th August, 1871, were actually covered with buildings, or actually inclosed and used as the gardens belonging to or curtilages of buildings or lands actually inclosed on or before the 14th August, 1851. Let an inquiry be made what waste lands of the said Epping Forest in the possession of or belonging to the Defts respectively, other than the Attorney-General and the Deft T. H., for any and what estate or interest, are inclosed or built upon other than and except as aforesaid. Liberty to apply for an injunction or injunctions in pursuance of the declaration of right hereinbefore mentioned. Let a perpetual injunction be awarded to restrain the Defts respec- Digitized by Microsoft® INJUNCTIONS. 265 tively (other than the Attorney-General and the Deft T. H.), and their respective servants, agents, and workmen : — 1. From building upon any part of the waste lands of the said Epping Forest which have heen inclosed since the 14th August, 1851, except such parts thereof as were on the 14th August, 1871, actually covered with buildings, or actually inclosed and used as the gardens belonging to or the curtilages of buildings, and from carrying away or destroying the loam or soil of any part of such waste land except as aforesaid, and from destroying or injuring the pasture thereof, or herbage being or growing thereon, so as in any manner to prevent, disturb, or interfere with the exercise by the Pits, or the other persons entitled as aforesaid, or any of them, of their said rights hereinbefore declared over the said lands, where the same shall become uninclosed. 2. From inclosing or building upon any part of the waste lands of the said Epping Forest now uninclosed, or which shall for the time being be uninclosed, and from carrying away or " otherwise destroying the loam or soil of the said waste lands now uninclosed, or which shall for the time being be uninclosed, or the pasture, turf, or herbage being or growing thereon, so as in any manner to prevent, disturb, or interfere with the exercise by the Pits, or the other persons entitled as aforesaid, or any of them, of their said right hereinbefore declared in and over the waste lands of the said Epping Forest now uninclosed, or which shall for the time being be uninclosed. 3. From otherwise preventing, disturbing, or interfering with the exercise by the Pits, or the other persons entitled as aforesaid, or any of them, of their said right in and over the waste lands of the said Epping Forest now uninclosed, or which shall for the time being be uninclosed. Let the Defts (except the Attorney-General and T. H.) pay to the Pits their costs of this suit, to be taxed, &c. — ^Liberty to apply. Commis- sioners of Sewers v. Glasse, L. E. 19 Eq. 134, 164. Bights of Common— Undertaking — Deed of Arrangement. The Deft C. A. M. as lord of the manors of Dartford, Dartford Perry, and Temple Dartford, in the county of Kent, by his counsel admitting that the Pits and Defts W. D. S., M. S., D. P., and G. H. as owners of Baldwyn's estate in the Pits' bill mentioned, and all other, owners of freehold lands and tenements now held freely of the said manors, are entitled as appendant or appurtenant to their several tenements aforesaid to a right of common of pasture upon Dartford Common or Heath for all manner of commonable cattle and sheep levant and couch ant upon their said tenements, and the said Deft C. A. M. by his counsel undertaking that he will not in any one year dig, excavate, cut, or pare any greater quantity or area of Dartford heath aforesaid than — For gravel 2b., for sand 3p., for loam Digitized by Microsoft® 266 INJUNCTIONS. iR. 20p., for peat 2e. 2p., and for turf 2a. : and that he will observe the following provisions relative to such digging, excavation, cutting, and paring, that is to say : (a.) No digging, excavation, paring, or cutting, except digging for gravel or sand, to take place during the next two years. (6.) All excavations for loam and peat and cutting or paring for turf to be restricted to supplying the inhabitants of the parishes of Dartford, Wilmingtoii, Bexley, and Crayford, all in the county of Kent, and to be conducted so as to do as little damage as possible to the pasturage of the said common or heath, (c.) No loam to be dug to a greater depth than nine inches, (d.) No turf to be pared on ten acres of the heath at the north west comer used as a cricket ground. And the said Deft C. A. M. by his counsel also undertaking that he will not cause, sanction, or permit any further inclosure of or building upon Dartford Heath except temporarily for the purpose of digging and excavating as aforesaid, and that he will enter into a deed of arrangement with the Pits and Defts other than himself embodying the above terms, in which deed the Eight Hon. C. M. E., Baron Tre- degar, and his sons G. N. and F. C.' N. who are the persons now respectively entitled in remainder to the said manors are to be made parties, to concur (so far as they are respectively interested) in the general provisions made by this order. Let the said deed of arrangement be settled by the judge in chambers in case the parties differ. Let the said Deft C. A. M. cause the said deed of arrangement when completed to be entered on the court rolls of the said manors at the Pits' expense. Let all further proceedings be stayed, each party paying their, his, or her own costs. Minet v. Morgan (M.' E.), June 9, 1874. Trespass — Wife's Separate Estate— Injunction. Let an injunction be awarded to restrain the Deft Green and his agents from receiving or taking any proceedings to recover possession of the money in the savings bank, or the interest thereof, and from taking any further and other proceedings by distress or otherwise against the tenants or occupiers of the pieces or parcels of ground, messuages, or tenements, hereditaments, and premises, or other the trust estates; and from receiving the rents and profits thereof, or otherwise inter- meddling or interfering with the trust estates, furniture, effects, moneys, and premises ;■ and from continuing in possession of the house and premises situate, &c., until, &c., or further cider. Green v. Green, 6 Hare, 401, n. Digitized by Microsoft® INJUNCTIONS. 267 Trespass. Where a deft is in possession of an estate, and a pit claiming possession seeks to restrain him from acts of spoliation, the Court will not grant an injunction unless the acts are so flagrant as to justify it in departing from the general principle : Lowndes v. BeUle, 10 Jur. (N.S.) 226 ; 12 W. R. 399 ; 33 L. J. (Ch.) 451 ; Order, p. 260. Where a pit is in possession the Court has left him to his remedy at law against a stranger committing such acts, unless they tended to the destruction of the inheritance : S. 0. But where the pit in possession seeks to restrain the deft claiming title, the tendency of the Court has been to grant the injunction. And where a pit in posses- sion filed a bill against a deft claiming possession and who threatened to come upon a property and cut timber, &c., the Court granted a perpetual injunction : S. C. ; see also Stanford v. Hurlstone, L. E. 9 Ch. 116. If the trespass does not amount to destructive trespass, but is a case of mere ordinary naked trespass, the Court of Chancery has declined to interfere, the Courts of ordinary jurisdiction being competent to deal with the matter : Mogg v. Mogg, 2 Dick. 670; Oarston v. Asplin, 1 Madd. 152; Jackson v. Stanhope, 15 L. J. (Oh.) 446, cited in Kerr, 293. The Court wiU interfere by mandatory injunction against trespass : See Man- datory Injunction, ante, p. 253. The fact that the act complained of is completed, does not prevent the interference of the Court by injunction : Powell V. Aiken, 4 K. & J. 343 ; Order, p. 261 ; Bowser v. Madeam, 2 De Gr. F. & J. 415. This Court will interfere by injunction to restrain acts of trespass by public companies and public bodies : Blakemore v. Gla/morganshire Canal Navigation, 1 My, & K. 154. But not where the remedy by damages is sufficient, or where the injury is slight : Warden of Dover Earhour v. South Eastern By. Co., 9 Hare, 497 ; Wandsworth Board of Works v. London and South Western By. Co., 8 Jur. (N.S.) 691. Where a trespass was committed on the pits' mine, and an air course and level roads made through it underground, the Court interfered by injunction restrain- ing the defts from continuing the use of the air-course or roads : Powell v. Aikin, 4 K. & J. 343. And where water pipes had, without the consent of the owner of the soil, been laid in the soil of a highway, an injunction to restrain the continuance of the pipes was granted : Qoodson v. Bichardson, L. R. 9 Ch. 221 ; Order, p. 263. The owner in fee of a garden over which the tenants of his adjoining houses had rights of enjoyment and management, has been granted an injunction re- straining trespass involving nuisance committed by a person acting under colour of a contract with the tenants : Allen v. Martin, L. E. 20 Eq. 462, The Court has granted a mandatory injunction restraining a man from per- mitting a building erected on the roof of a neighbour's house to remain there : Martyr v. Laurence, 3 De G. J. & S, 261, cited in Kerr, 331 ; Order, p, 260. And a man has beenrestrainei at the suit of his wife from continuing in pos- session of a house which formed part of her separate estate : Qreen v. Pledger, 5 Hare, 400, n. ; Order, p. 266, The Court will enforce by injunction the provisions of the 115th and 117th sections of the Railways Clauses Consolidation Act as regards engines improper Digitized by Microsoft® 268 INJUNCTIONS. to he used, and carnages belonging to another company : Midland By. Co. v. Ambergate By. Co., 10 Hare, 359 ; Bhymney By. Co. v. Taff Vale By. Co., 29 Beav. 153 ; 9 W. E. 362. NUISANCE. General Eights to Injunctiok. The Court will not interfere by injunction if the damage is slight, and the nuisance merely of a temporary character: Kerr, 338; AU.-Gen. v. Sheffield Gas Co., 3 De G. M. & G. 304 ; Qoldsmid v. Tunhridge Wells Commissioners, L. E. 1 Ch. 349 ; Att.-Oen. v. Borough of Birmingham, 4 K. & J. 546 ; Durell t. Pritchard, L. E. 1 Oh. 244 ; St. Helen's Smelting Co. v. Tipping, 11 H. L. 0. 650; Gaunt v. Finney, L. E. 8 Oh. 8. And will not interfere to restrain damage caused by a public company in the construction of their works, if the injury is the necessary result of the exercise of their statutory powers : Sutton v. London omd South Western By. Co., 7 Hare, 259 ; Langham v. Oreat Northern By. Co., 1 De G. & Sm. 485 ; Imperial Oas Co. V. Broadbent, 7 De G. M. & G. 459. But where proper care is not shewn an injunction will lie : Ware v. Begent'b ■Canal Co., 3 De G. dc J. 227. Bills to restrain nuisances have been entertained in the following cases, cited in Kerr, 348 : Drainage Commissioners, Earl of Bipon v. Eohart, 3 My. & K. 169 ; Commissioners of Woods and Forests, Squire v. Camphell, 1 M. & 0. 459 ; Con- servators of the Thames, Att.-Oen, v. Conservators of Thames, 1 H. & M. 1 ; Boards of Health, Manchester By. Co. v. Worksop Board of Health, 23 Beav. 198 ; Trustees of Turnpike Eoads, Weeks v. Howard, 10 W. B. 577 ; the Secre- tary at War, Felkin v. Herbert, 30 L. J. (Ch.) 604 ; Metropolitan Board of Works, Att.-Gen. v. Metropolitan Board of Works, 33 I;. J. (Ch.) 377 ; 11 W. E. 820; 2 N. E. 312 ; and Highway Boards, Att.-Gen. v. Bichmond, L. E. 2 Eq. 306. Upon an information to restrain a public nuisance, properly so called, it must be shewn that the nuisance is actual and existing, not merely prospective, how- ever strongly the apprehension of injury may be supported by scientific evidence : Att.-Gen. v. Mayor of Kingston, 11 Jur. (N.S.) 596 ; 13 W. E. 888. After the establishment of the right at law, and the fact of its violation, a man is entitled to a perpetual injunction in the absence of special circumstances : Im- perial Oas Co. V. Broadbent, 7 H. L. C. 612. A person seeking an injunction to restrain an injury to his legal rights must apply to the Court without delay. Where the injury has been completed at the time of filing the bill the Court has left the parties to their remedy at law : Deere v. Guest, 1 M. & 0. 516 ; Lawrence v. Austin, 11 Jur. (N.S.) 576 ; 13 W. E. 981. But where the damage done is great, the mere fact that the injury was com- pleted before the filing of the bill does not disentitle the pit to a mandatory injunction : Dwrell v. Pritchard, L. E. 1 Ch. 244 ; City of London Brewery Co. V. Tennant, L. E. 9 Ch. 212. And where a pit has come in time as to part of his case, an inquiry has been ■directed as to damages occasioned by so much of the injury as was completed previously to the filing of the bill : Hindley v. Emery, 11 Jur. (N.S.) 878 ; 14 W. R. 25. The fact of a man having " come to a nuisance " does not disentitle him to an Digitized by Microsoft® INJUNCTIONS. 269 injiiDotion : Tipping v. St. Helen's Co., L. E. 1 Ch. 66 ; 11 H. L. C. 642 ; Order, p. 270. And where a vendor sold land witli the knowledge that the purchasers intended to erect copper works upon it, the vendor and persons claiming under him were held not debarred from equitable relief in respect of the nuisance occasioned to other parts of the property : S. C. But where a pit seeks, on the ground of smoke nuisance, to stop a large com- mercial work, the evidence must shew a present injury visible or sensible to ordinary persons, and such an injury as would entitle a jury to give substantial damages : Salvin v. North JBrancepeth Coal Co., L. R. 9 Oh. 705, 707 ; see also St. Helen's Smelting Co. v. Tipping, 11 H. L. 0. 642. If the evidence is satisfactory, the Court will grant an injunction against a nuisance without having the question whether there is a nuisance tried before a jury : Jnchball v. Barrington, L. B. 4 Ch. 388. Light and Aie. Light and Air — Injunction — Beferences to Chambers as to pulling down Buildings erected. Let a perpetual injunction be awarded to restrain the Deft Charles Jack, his agents, workmen, and servants, from erecting any building upon the site of the premises known as Downes Wharf in the pleadings mentioned, so or in such manner as to darken, injure, or obstruct any of the ancient lights or windows of the Pits' messuage known as Nos. 3 and 4, Lower East Smithfield, as the same ancient lights and windows were enjoyed previously to the taking down of the ancient buildings which formerly stood on Downes Wharf aforesaid. And the Pits and Deft respectively are to be at liberty to apply as they may be advised to the judge at chambers with reference to the pulling dovrai of any of the buildings which have already been erected by the Deft, so as to darken, injure, or obstruct any of the said ancient lights or windows, as the same were enjoyed previously to the taking down of the said ancient houses or buildings, and with reference to the erection of any buildings on the Deft's property, but not so as to infringe the said injunction. Deft to pay to Pits their costs of suit up to and including decree. Yates v. Jack, L. E. 1 Ch. 295. Similar Order — Reference to Chambers as to erection of New Buildings.- Let a perpetual injunction be awarded to restrain the Defts the City Offices Company (Limited), their agents, servants, and workmen, from erecting any building in front of the messuages Nos. 11 and 12, Clement's Lane, Lombard Street, London, so or in such manner as to darken, injure, or obstruct any of the ancient lights or windows of the said messuages, as the same ancient lights or windows were enjoyed previously to the taking dovro of the ancient houses or buildings which formerly stood in front of the same messuages. And the Defts Digitized by Microsoft® 270 INJUNCTIONS. are to be at liberty to apply to the judge at cbambers as they may be advised with respect to the erection of any building on their property, but so as not to infringe the said injunction. Let the Defts the City OfiSces Company pay to the Pits their costs of suit, to be taxed, &c. — Liberty to apply. Stokes v. City Offices Go. (V.-C. W.), 11 Jur. (N.S.) 660. Light and Air — Injunction. Let an injunction be awarded against the Deft to restrain him, his servants and agents, until further order from erecting any building on the land leased to him by the Merchant Taylors' Company as in the Pits' bill mentioned, so as to darken, hinder, or obstruct the free access of light and air to the windows of the Pits' building mentioned, as such access was enjoyed by the Pits and their predecessors in title and other the occupiers of the said building previously to the taking down by the Deft of the houses or buildings which formerly stood on the ground so leased to the Deft as aforesaid. Deft to pay costs of suit. Dyers' Co. v. King (V.-C. J.), Feb. 9, 1870. Air — Noxious Vapours — Injunction. Let an injunction be awarded against the Defts the St. Helen's Smelting Company (Limited) to restrain the said company, their servants, workmen and agents, from and after the 10th November, 1865, from using, or causing or permitting to be used, the copper smelting works in the Pit's bill mentioned, or any part of them, so and in such manner as that any vapour or smoke may be emitted therefrom to the injury or damage of the timber, plantations, gardens, pleasure grounds, and crops upon the Bold Hill estate in the Pit's bill mentioned, or any of them. Tipping v. St. Helen's Co. (V.-C. W.), July 21, 1865 ; L. E. 1 Ch. 66. lAglit and Air — Injury completed^-Declaration of Bight to Damages — ^Inquiry. Declare that the Pit is entitled to compensation for the damage which he has sustained and- may sustain by reason of the erection by the Deft of the walls and house in the Pit's bill mentioned, and decree the same accordingly. Let an inquiry be made what is the amount of the damage so sustained by the Pit. Let the Deft John Headon pay to the Pit Alfred Martin what shall be found due to him for such damages, and also his costs of this suit, including therein the costs of and relating to the applications for an injunction, &o., to be taxed, &c. Martin v. Headon, L. E. 2 Eq. 425. Digitized by Microsoft® INJUNCTIONS. 271 lAgM and Air — Injury completed — Inquiry as to Compensation. Declare that the Defts having caused damage and injury to the Pit by the ohstruction occasioned by their buildings, and having interfered with the access of air and light to the ancient windows of the Pit's house, called the Mulberry Tavern, at Sheffield, an inquiry ought to be made what amount of compensation should be paid to the Pit in respect of that damage and injury. Let an inquiry be made accordingly what proper sum should be paid to the Pit in compensation, such sum to be certified and to be paid to the Pit within one month from the date of the chief clerk's certificate. Deft to pay costs. — Liberty to apply. Senior v. Pawson, L. E. 3 Eq. 330. Light and Air — Injunction — Inquiry — Removal of Buildings. Let a perpetual injunction be awarded against the Defts to restrain them, their servants, &c., from erecting any building so as to darken, hinder, or obstruct the free access of light and air to the ancient windows of the Pits as such access was enjoyed previously to the taking down by the Defts of the houses or buildings which formerly stood on the ground of the Defts adjoining to the property of the Pits. Let an inquiry be made whether any and what buildings have been erected by the Defts which materially interfere with the access of light and air to any of the windows in the Pits' messuage. Order the Defts to remove such buildings (if any) under the direc- tion of the judge in chambers. Let the Defts be at liberty to apply to the judge in chambers as they may be advised with respect to the erection of any buildings on their property, but so as not to infringe the said injunction. Defts to pay costs of suit. — General liberty to apply. Bent v. Avuition Mart Co., L. E. 2 Eq. 238. Air — Noxious Vapours — Injunction. Let an injunction be awarded to restrain the Defts, their directors, managers, engineers, and servants, from and after the 1st January, 1837, and thenceforth during the continuance of any interest of the Pit in the premises under the lease dated the 13th November, 1850, in the pleadings mentioned, from manufacturing gas or coke in or upon any retort-house, building, or site situate nearer to the Pit's premises than the retort-house used by the Defts previously to the year 1851, in such manner as to allow the escape of any steam, gas, or other matter noxious to the vegetation in the Pit's ground demised by the said lease. Broadbent v. Imperial Gas Co. (V.-C. W.), 7 De G. M. & G. 436. Digitized by Microsoft® 272 INJUNCTIONS. Light and Air — Noiae — Mandatory Injunction. Let an injunction be awarded against the Defts A. B., A. W., and W. D., to restrain the said Defts from permitting so much of the shed erected by them as in the bill mentioned, on the piece of land separated from the rear of the chapel of which the Pits are trustees, as in the bill mentioned, by the passage of 13ft. 9in. wide, to remain as intercepts or obstructs the free and uninterrupted passage of light and air to the Pits' premises in the bill mentioned, so as to interfere with the com- fortable enjoyment of such premises as they were enjoyed before the erection of the said shed, and perpetually to restrain the said Defts, their servants, agents, and workmen, from carrying on the business of the Defts in the bill mentioned in such a manner as to interfere with the reasonable use of the said chapel and premises by the Pits or persons claiming under them, and in particular from allowing to be made or continued any noise substantially interfering with the due carrying on of the religious services and ceremonies, and the due holding of meetings and day and Sunday schools on such premises, and the due user of such premises for such other purposes as the said premises may lawfully be used for ; but such injunction is not to be issued until after the 26th February, 1876. Defts to pay costs of suit. Baxter v. Bower (V.-C. B.), Jan. 26, 1875. Liglit and Air. Where the access and use of light to and for any dwelling-house, workshop, or other building, shall harye been actually enjoyed therewith for the full period of twenty year.s without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by any deed or writing : 2 Will. 4, c. 71, s. 3. The right conferred by this Act is an absolute indefeasible right to the enjoy- ment of light without reference to the purpose for which it has been used : Tates V. Jack, L. E. 1 Ch. 298 ; Order p. 269 ; Oalcraft v. Thompson, 15 W. R. 387. The right when acquired is not lost by a temporary intermission of enjoyment not amounting to abandonment : TapKng v. Jones, 11 H. L. C. 290. The statute 2 & 3 Will. 4, c. 71, does not take away any of the modes of claiming easements which existed before the Act, and the title to access of light may be proved by enjoyment of it from time immemorial independently of the statute : Aynsley v. Glover, L. E. 18 Bq. 544 ; L. R. 10 Ch. 283. And where the right is proved to the entry of light to ancient windows the enlargement of those windows does not vitiate the right of entry of light to the old part : S. C. See also TapUn v. Jones, 11 H. L. 0. 290 ; Straight v. Bicrn, L. E. 5 Ch. 163, 167. To constitute at common law an illegal obstruction of light by building it is not sufficient that the pit has less light than before, or that the part of his house principally affected cannot be used for all its original purposes : Back v. Stacey, 2 C. & P. 465, Digitized by Microsoft® INJUNCTIONS. 273 Unless the abridgment of light is not only a substantial injuiy, but an injury not capable of being properly and adequately compensated by damages, the Court of Chancery will not interfere : Ourriers' Co. v. Oorlett, 11 Jur. (N.S.) 719 ; Bent V. Auction Mart Go., L. B. 2 Eq. 238 ; Robson, v. Whittingkam, L. R. 1 Ch. 442. But there is no rule which prevents the Court from granting a mandatory in- junction when the injury sought to be restrained has been completed before the filing of the bill. And there is no difference in this respect between an injury to easements and other rights: Durell v. Pritchard (L. J. S.), L. B. 1 Ch. 244; Martin v. Htadon, L. E. 2 Eq. 425. Where a house was in a populous town, the Court took that fact into consi- deration in estimating the damage done by obstructing an ancient light : Glarhe V. Olarh, L. B. 1 Ch. 16. But it has been subsequently held that there is no distinction between the right to light and air in regard to town houses and country houses : Yates v. Jack, L. E. 1 Oh. 295 ; Dent v. Amtion Mart Co., L. B. 2 Eq. 238 ; Mwrtin v. Eeadon, L. E. 2 Eq. 425 ; Orders, p. 269, 270, 271. The Court will not restrain the erection of a building merely because it deprives an ancient window of some portion of light : Clarke v. Clark, L. E. 1 Ch. 16. But will do so where the obstruction is to sufficient light for the comfortable use and enjoyment of the house as a dwelling-bouse, if it be a dwelling-house, or for the beneficial use and occupation of the house, if it be a warehouse, shop, or other place of business ; Clarke v. Clark, L. B. 1 Ch. 16 ; Yates v. Jack, L. E. 1 Ch. 295 ; Kelk v. Pearson, L. E. 6 Ch. 809 ; City of London Brewery Co. v. Tennant, L. E. 9 Oh. 212 ; Hackett v. Baiss, L. E. 20 Eq. 494. A greater amount of evidence is needed to prove a material injury to light by lateral or oblique obstruction than is necessary in a case of direct obstruction : Clarke v. Clark, L. E. 1 Oh. 16 ; City of London Brewery Co. y. Tennant, h. E. 9 Oh. 212, 220. There is no general rule that there can be no material injury to light if forty- five degrees of sky are left open. But if forty-five degrees are left, it is prima facie evidence that the light is not seriously obstructed : Beadel v. Perry, L. E. 3 Eq. 465 ; City of London Brewery Co. v. Tennant, L. E. 9 Ch. 212, 220. The Court, when considering (as a jury) whether sufficient damage is proved to sustain an injunction, is not bound by the finding of the Appeal Court upon somewhat similar facts to the same extent as it is bound by a decision on a point of law : Bent v.' Auction Mart Co., L. B. 2 Eq. 238. Where the Court was not satisfied from the evidence whether a wall proposed to be built by a deft would be a material obstruction to the pit's lights," a tempo- rary screen was ordered to b6 erected to the height of the proposed wall, and a surveyor appointed to report : Leech v. Schweder, L. E. 9 Ch. 463. There is no difference in 'the right of an owner of land to the ordinary easement of light, whether it is acquired by twenty years' user or by grant from the owner of the servient tenement : S. 0. In an action for nuisance to property arising from noxious vapours, the injury, to be actionable, must be such as visibly or sensibly and substantially injures the property : >S*. Bfelen's Smelting Co. v. Tipping, 11 H. L. 0. 642 ; Salvin v. North Branoepeth Coal Co., L. B. 9 Oh. 705. Where a pit has proved his right to an injunction against a nuisance it is no part of the duty of the Court to inquire in what way the deft can best remove it : Att.-Oen. V. Golney Hatch Lunatic Asylum, L. E. 4 Ch. 146. Digitized by Microsoft® '^ 274 INJUNCTIONS. And a reference to an expert under 15 & 16 Vict. e. 80, s. 42, is improper : Att.-Gen. v. Golney Hatch Lunatic Asylvm,, L. E. 4 Ch. 146. When the difficulty of removing the injury is great, the operation of the in- junction is often suspended : S. C. Water. Corporation — Brcdnage — Injimction — Liberty to apply. Let the Defts be restrained nntil furtlier order from opening any- additional main or branch pnhlic sewer into either of the main sewers in the bill and information and affidavits mentioned. Liberty for either party to apply. And in the event of the Defts not proceeding forthwith to take such steps as may be necessary and proper (due time being allowed for that purpose) to prevent the continuance of the nuisance complained of by the information and bill (that is to say), to prevent the pollution of the Eiver Tame, so to render it injurious to the health of the inhabitants of the lands adjoining its course, and also to prevent it being so polluted as to become offensive and unfit for use or injurious to health where it passes through the grounds of the Pit and relator, the Pit to be at liberty to apply on the first day of Michaelmas Term for an extension of the injunction. Att.-Gen. v. Borough, of Birmingham, 4 K. & J. 528. Corporation, — Diversion of Stream — Lands Glauses Act — Injunction. Let an injunction be awarded against the Defts the mayor, alder- men, and burgesses of the borough of Bradford, to restrain them, their servants, agents, and workmen, until the hearing of this cause or further order, from diverting, abstracting, taking, or using, or con- tinuing to divert, abstract, take, or use, any of the water of the Swain Eoyd Stream in the Pit's bUl mentioned without first making pay- ment to the Pit of the purchase-money or compensation payable for the Pit's interest in such stream, in case the same shall have been agreed upon or duly ascertained, or making such deposit by way of security, and giving such bond, as under the Lands Clauses Consolida- tion Act, 1845, must be made and given by the promoters of an undertaking in order to entitle them to enter upon and use lands without the consent of the owners or occupiers before paying the purchase-money or compensation agreed or awarded in respect thereof. Ferrand v. Mayor of Bradford, 21 Beav. 412. Bunning Stream — Refuse — Injunction. Let a perpetual injunction be awarded against the Defts the Stow- market Cfompany to restrain the said Defts, their servants, agents, and workmen, from discharging from their works in the Pit's bill men- Digitized by Microsoft® INJUNCTIONS. 275 tioned into the river or stream in the said bill also mentioned, so as to cause it to flow to the Pit's land, messuage, and mills therein also mentioned in a state less pure than that in which it flowed there pre- viously to the establishment of the said worts, to the injury of the Pit, any such refuse or other matter as was discharged by the Defts from the same works into the said river or stream previously to the filing of the said bill, or any noxious fluids or other fecal matters whatever. Lingwood v. Stowmarhet Co., L. E. 1 Bq. 77, 336. Bunning Stream — Sewage and Gas Works — Injvmction. Let a perpetual injunction be awarded against the Defts to restrain them, their agents, servants, and workmen, from allowing any sewage from the County Lunatic Asylum at Colney Hatch to pass or flow down their drains or pipes into the stream called Pim's or Pymm's Brook in the bill mentioned so as to be a nuisance. But the injunc- tion hereby awarded is to be suspended until the first day of Trinity Term next. And the Defts are to be at liberty to apply before that day, that the said injunction may be further suspended. Att.-Gen. V. Colney Hatch Lunatic Asylum, L. E. 4 Ch. 146. Bunning Stream — Diversion of Water — Perpetual Injunction. Let a perpetual injunction be awarded against the Deft E. D. and the local board of health of the town of Barmouth, in the county of Merioneth, to restrain the said Deft and the said local board, their contractors, servants, workmen, and agents, from abstracting and diverting the water from the stream or brook called or known as Oeil- wart Brook, in the Pit's bill mentioned, in any manner so as to inju- riously aficct the said stream or brook, or the Supply of water flowing in it, into, over, and through the Pit's farm and lands called Ceilwart 1 ssa, and a cottage called the Mill Cottage, situate in the parish of Llanaber, in the county of Merioneth aforesaid, in the Pit's bill mentioned. Let the operation of the said injunction be suspended until the — day of — . Owen v. Bavies (M. E.), July 24, 1874. Biver Water — Biparian Proprietors — Injunction — Inquiry as to Damages- Let an injunction be awarded against the Defts Thomas Lightowler, Joseph Lightowler, John Lightowler, James Collerton, and Dickinson Collerton, their servants, workmen, and agents, from causing or sufiering any foul water to flood from their dye-works in the Pits' bill mentioned into the Eiver Hibble above or within the limits of the land adjoining the said river purchased by the Pits from the Defts Eobert Edleston and Dickinson Edleston so as to afiect the water opposite to the said land to the damage and injury of the Pits as Digitized by Microsoft® ^ 2 276 INJUNCTIONS. owners of the said land and a moiety of the said river opposite thereto. [And also to restrain the said Defts, their servants, workmen, and agents, from causing or suffering any foul water to flow from their said works into the said Eiver Hibble so as to affect the water drawn by the Pits from the said river for the use of their dye-works at Dean Clough Mills in the said bill mentioned, to the damage or injury of the Pits.] Let an inquiry be made whether any and what damage has been sustained by the Pits by reason of the said Defts permitting or causing any such foul water to flow from their said works since the 19th May, 1866. — Direction for payment of costs of suit by Deft up to hearing. Crossley v. Lightowler (V.-C. W.), Nov. 13, 1866, varied on appeal by omitting clause bracketed, L. K. 2 Ch. 473. Canal Company — Stagncmt Water — Injunction. Let a perpetual injunction be awarded against the Defts, the com- pany of proprietors of the Bradford Navigation, Jeremiah Crowther, and Samuel Dixon, to restrain them, their servants, workmen, and agents, from diverting into the canal from Bradford to join the Leeds and Liverpool Canal at WindhiU, in the township of Idle, in the county of York, or allowing to pass into the same, or collecting or keeping or continuing therein any filth, sewage, or polluted matter or water, so as to be a public nuisance. But the injunction hereby awarded is not to take effect until the 8th November next. —Direction for payment of costs of suit by Deft. Att.-Qen. v. Bradford Canal Co., L. E. 2 Eq. 71. Corporation — Sewer — Statutory Bights of Owner — Injunction. Let the Defts be restrained until, &c., from causing or permitting any sewer or drain to be opened into the new sewer in Yorkshire Street, or any other new sewer to open or drain into the Eiver Eoche at any point above the Town Mill Weir, and from allowing any new sewer to open or drain into the Lordburn, in the bill mentioned. Holt V. Corporation of Bochdale, L. E. 10 Eq. 354, 358. Metropolitan Board of WorJcs — Main Drainage — Injunction. Let an injunction be awarded to restrain the Defts the Metropolitan Board of Works, their agents, workmen, and servants, from making any further connection of any drain with either the High Level Sewer or the Middle Level Sewer in the bill mentioned until the hearing of this cause or further order. And the said Defts by their counsel undertaking by dredging or other proper means to keep the Eiver Lea from all obstructions to navigation occasioned by an increased deposit Digitized by Microsoft® INJUNCTIONS. 277 of sewage matter arising from the connection made since the month of February, 1863, of any sewers with either the High Level Sewer or the Middle Level Sewer, Let the further hearing of this motion stand over until the hearing of this cause, with liberty for either party to apply in the meantime, especially in respect of any injury that may be apprehended from the unhealthy effluvia arising from the increase of sewage matter brought down the Middle Level Sewer. Ait.-Gen. v. Metropolitan Board of Works, 11 W. E. 820 ; 2 N. E. 312. Board of Health — Side Sewer — -Injunction. Let an injunction be awarded to restrain the Defts until, &c., from permitting to remain open and from opening or permitting to be opened any side sewer or other sewer into the main sewer in the Pits' bill mentioned so long as the said main sewer shall flow through the covered drain in the Pits' bill mentioned or otherwise discharge itself into the canal of the Pits. Let the Pits be at liberty to bring such action as they may be advised, such action to be brought within a year from this date. Manchester By. Co. v. Worlcsop Board of Health, 23 Beav. 198. Water — Bunning Streams, <&c. The continuous enjoyment as of right of a watercourse, or the use of water as an easement, over or from any land or water for twenty years next before the commencement of some suit or action in which the claim has been brought in question, without interruption, acquiesced in for a year, is evidence from which' a jury is justified in presuming a right : 2 & 3 Will. 4, c. 71, ss. 2, 4. Prima facie every proprietor of land along the margin of a river or stream of running water above tide water is the proprietor of land covered by the water up to the middle thread of the stream : Kerr, 377. The diversion by a riparian proprietor of any portion of the stream without returning the water to its natural channel before it leaves his land is an illegal user : Bealey v. Shaw, 6 East, 208. The right of a riparian proprietor does not depend upon the ownership of the soil covered by the water, but is appurtenant to the ownership of the bank : Lord V. Commissioners of Sidney, 12 Moo. P. 0. 473 ; Stockport Waterworks Co. v. Potter, 3 H. & 0. 300. Every riparian proprietor has a right to use the water flowing past his land for any purpose, or an <-xtraordinary use, provided he does not interfere with the rights of proprietors above or below. Subject to this condition he may dam up the stream for the purpose of a mill, or divert it for the purpose of irrigation, bi^t he has no right to interrupt the regular flow of the stream if he thereby interferes with the lawful use of the water by other proprietors and inflicts upon them a sensible injury : Miner v. Oilmour {per Lord Kingsdown), 12 Moo. P. 0. 131. See also Elmliirst v. Spencer, 2 Mac. & G. 45 ; Mayor, &c., of Liverpool v. Charley Waterworks, 2 De G. M. & G. 852 ; Elwell v. Crowlher, 8 Jur. (N.S.) 1004; 10 W. E. 615 ; Bichett w. Morris, 12 Jur. (N.S.) 803 ; Lord Norhury v. Kitchen, 9 Jur. (N.S.) 132. And a riparian proprietor has a right to have the water of a natural stream run Digitized by Microsoft® 278 INJUNCTIONS. through his land in a natural state of purity : Beaky v. Shaw, 6 East, 208 ; Wright V. Howard, 1 Sim. & Stu. 190 ; Grossley v. Lightowler, L. E. 3 Bq. 279 ; L. E. 2 Ch. 478 ; Order, p. 275 ; Lingwood v. Stowmarket Company, L. E. 1 Bq. 77 ; Order, p. 274. Mere non-user, for less than twenty years, of a prescriptive right to foul a stream is not in itself a proof of abandonment. But actual disuser of the ease- ment for twenty years destroys the right to it : Crossley v. Lightowler, L. E. 3 Eq. 279 ; L. E. 2 Ch. 478. For cases of encroachments in navigable tidal rivers, see Hex v. Mussdl, 6 B. & C. 566 ; Rex v. Ward, 4 Ad. & B. 384 ; Brownlow v. Metropolitan Board of Worhs^lZ C. B. (N.S.) 768 ; 16 C. B. (N.S.) 546; Kearna v. Cordwainers' Go., 6 C. B. (N.S.) 388 ; Macey v. Metropolitan Board of Works, 33 L. J. (Ch.) 377 ; Att.-Oen. V. Conservators of Thames, 1 H. & M. 1 ; Att.-Qen. v. Terry, L. E. 9 Ch. 423 ; Lyon v. Fishmongers' Co., h. E. 10 Ch. 679. The owner of land at the side of a public navigable river has no right to erect on the bed of the river for the benefit of his trade any structure, whether an actual obstruction to navigation will be thereby occasioned or not : Att.-Qen. v. Terry, L. B. 9 Oh. 423. The owners of land on the banks of tidal rivers have only rights to the river as one of the public, and have no easements or private rights similar to those of owners of land on the banks of inland streams : Lyon v. Fishmongers' Co., L. E. 10 Ch. 679. Noise and Noisy Trades. Music and Fireworlea — Injimction. Let a perpetual injunction be awarded to restrain the Deft Joseph Shaw Brewster, his servants, workmen, and agents, from continuing to hold and from, permitting to be held upon the grounds in the Pit's bill mentioned as being in the occupation of the said Deft any public exhibition or other entertainment whereby a nuisance may be occa- sioned to the annoyance or injury of the Pit. WaLher v. Brewster (V.-C. W.), L. E. 5 Eq. 25. Bell-ringing — Injunction. Let an injunction be awarded to restrain the Deft De Held, and all persons acting under his direction or by his authority, until, &c., from tolling or ringing the bills in the Pit's bill mentioned or any of them, so as to occasion any nuisance, disturbance, and annoyance to the Pit and his family residing in his dwelling-house at Park Eoad, Clapham, in the Pit's bill mentioned. SoUau -v. Be Meld, 2 Sim. (N.S.) 133. Circus — Injunction. Let an injunction be awarded against the Deft J. B. to restrain him, his servants, workmen, and agents, from using the circus in the Pit's bill mentioned, or any other erection or building erected or built, or to be erected or built, in the Fair Field in the Pit's bill mentioned Digitized by Microsoft® INJUNCTIONS. . 279 for any equestrian performance or other public entertainment, whereby a nuisance or annoyance may be occasioned to the Pit. Inchhald v. Barrington (V.-C. M.), Dec. 15, 1868 ; affirmed L. E. 4 Ch. 390. Noise, and Noisy Trades. Mere noise, as well as the conduct of a, noisy trade, may be subject for an in- junction : White v. Gohen, 1 Drew. 313 ; Eaden y. Mrth, 1 H. & M. 573 ; Crump V. Lambert, L. E. 3 Eq. 309, So, too, bell ringing may be a nuisance and proper subject for injunction : Soltau v. De Held, 2 Sim. (N.S.) 133 ; Order, p. 278. So, too, a circus : Inchbald v. Barrington, L. E. 4 Ch. 390 ; Order, p. 278 ; and the erection of mortar mills, steam engines, and pumps : Fenwich v. East London By. Co., L. E. 20 Eq. 144 ; and the unusual use of a house : Ball v. Bay, L. E. 8 Ch. 467. The collection of a crowd of noisy and disorderly people, to the annoyance of the neighbourhood, outside grounds in which entertainments with music and fire- works are given for profit, is a nuisance liable to injunction : Waiker v. Brewster, L. E. 5 Eq. 25 ; Order, p. 278. The Lands Clauses Consolidation Act and the Eailways Clauses Consolidation Act do not contain any provisions under which a person whose land has not been taken for the purposes of a railway can recover statutory compensation from the railway company in respect of damage or annoyance arising from vibration occa- sioned (without negligence) by the passing of trains, after the railway is brought into use, even though the value of the property has been actually depreciated thereby (diss. Lord Cairns) : Hammersmith and City By. Oo. v. Brand, L. E. 4 H. L. 171. Nuisance to Sight of Way. Declaee that the Pit and the Defts have an equal and reciprocal right to the use of the roadway from — to — -, and that the persons interested therein have not, nor have any of them, any preferential right of way, and that the necessity or urgency of their particular trade or business does not give them any right to occupy the said roadway by stationary obstruction, when the passage is required by any other person having the right of using such roadway. Declare that it is the duty of all the parties interested in the said right of way so to arrange the use of the same as best to facilitate the use of it for the others interested therein; and that the said persons in- terested therein are not entitled to place or leave any stationary obstruction in such roadway, except at such times as the use thereof is not required for any other of the persons interested therein ; and if when so occupied the use of the roadway is required by any other person entitled to use the same, the person placing such obstruction in the roadway is bound forthwith to remove the same. Let an injunction be awarded to restrain the Defts and any persons interested in the said roadway, their respective servants and agents, from placing or leaving any stationary obstruction in the said road- Digitized by Microsoft® 280 INJUNCTIONS. way, except at sucli time as the use thereof is not required for any other of the persons interested therein, and from making use of the said roadway in any manner inconsistent with the meaning of the said declarations. Thorpe v. Brumfitt (M. E.), 1873 ; affirmed L. K. 8 Gh. 650. For cases in respect of nuisances to rights of way, see Vestry of St. Mary, Newington v. Jacobs, L. R. 7 Q. B. 47; Swaine v. Great Northern By. Co., 4 De a. J. & S. 211 ; Watts v. Kelson, L. E. 6 Ch. 166 ; Eext v. aUl, L. E. 7 Oh. 699, 711 ; Oaunt v. Fynney, L. E. 8 Ch. 8 ; Thorpe v. Brumfitt, L. E. 8 Ch. 650; Order, supra. Nuisance in respect of Eisht to Suppoet. Mailway Company. Let a perpetual injunction be awarded to restrain the Deft from working any of the minerals referred to in his notice in the pleadings mentioned, or any other minerals tO the support of which the Pits are entitled under their contracts dated, &c., in such a manner as to occasion damage to the railway or works of the Pits by the abstraction of such minerals. North, Eastern By. Co. v. Grostland, 2 J. & H. 666 ; 32 L. J. (Ch.) 357. Bight to Support. The right to the support of land in its natural state, vertically by the subja- cent strata, and laterally by the adjacent soil, is a right to which the owner of the surface is of common right entitled : Kerr, 366 ; Bowbotham v. Wilson, 8 H. L. C. 348 ; Elliott v. North Eastern By. Co. 10 H. L. 0. 333. And a right to support of soil in excess of the ordinary common law right arises by implication of law, where the owner of the land has granted the surface, reserving to himself the subjacent minerals ; or has granted any part of his land, retaining the adjoining part : Kerr, 369 ; Caledonian By. Co. v. Sprott, 2 Macq. 449. A landowner who has conveyed land to a railway company for the purposes of the line, although reserving to himself the minerals, cannot derogate from his own conveyance and let down the surface : North Eastern Ry. Co. v. Grassland, 2 J. & H. 565; 32 L. J. (Ch.) 357; Order, supra; Elliott v. North Eastern By. Co. 10 H. L. C. 333. But the parties may in granting a piece of land agree to reserve the minerals to the grantor, and allow him so to work them as to damage the surface. It is a question of contract, and of contract not repugnant to law : Harris v. Bydding, 5 M. & W. 60 ; Smart v. Morton, 5 B. & B. 30 ; ffext v. Chill, L. R. 7 Ch. 699 ; Duke ofBuccleugh v. Wakefield, 4 H. L. C. 377 ; Aspden v.Sedden, L. E. 10 Ch. 394. As to right of support between adjoining houses, see Bichards v. Bose, 9 Ex. 218. As to party walls, see Matfs v. Hawkins, 5 Taunt. 20 ; Cnhitt v. Palmer, 8 B. & C. 257 ; Steadman v. SmUh, 8 E. & B. 1 ; Kerr, 376. See also Metro- politan Buildings Act, 18 & 19 Vict. c. 122. Digitized by Microsoft® INJUl^CTIONS. 281 For cases where railway companies have power to stop workings when within a certain distance of the surface, and to purchase the rights of the owner of the minerals, but have declined to do so, see Dudley Canal Co. v. Orazehrook, 1 B. & A. 59 ; Stourbridge Canal Co. v. Earl of Dudley, 3 E. ijc B. 409 ; London and North Western By. Co. v. Ackroyd, 38 L. J. (Oh.) 588. See also Railways Clauses Consolidation Act, 8 & 9 Vict. c. 20, ss. 77-79. BREACH OF AGREEMENT OR COVENANT. Negative Govenant — Professional Services at Opera^ Let an injunction be awarded to restrain the Deft Johanna Wagner from singing or performing at the Eoyal Italian Opera, Covent Garden, or at any other theatre, without the sanction or permission in writing of the Pit during the existence of the agreement dated the 9th Nov., 1851, in the pleadings mentioned, and to restrain the Deft Frederick Gye in like manner from accepting the professional services of the said Dft Johanna Wagner as a singer and performer or singer at the said Eoyal Italian Opera, Covent Garden, or at any other theatre, and from permitting her to sing and perform or to sing at the said Eoyal Italian Opera, Covent Garden, during the existence of the said agree- ment of the 9th Nov., 1851, with the Pit, without the permission or sanction of the said Pit. Tjumley v. Wagner 1 De G. M. & G. 604. Agreement — Monthly Magazine — Injunction. Let an injunction be awarded against the Deft Eichard Bentley to restrain the said Deft, his servants, agents, and workmen, from pub- lishing, carrying on, or conducting the ' Temple Bar Magazine,' in the Pit's bill mentioned, until the hearing of this cause or further order. But this ordet is to be without prejudice to the publication of the said magazine until the hearing of this cause, so as that the name of the Deft Eichard Bentley do not appear either on the title-page or other- wise of the said publication, or in any of the advertisements of the sai^ publication. And this order is to be without prejudice to the right, if any, of the Pits to damages or profits in respect of any publi- cation of the said work. Ainsworth v. Bentley (V.-C. W.), 14 W. E. 630. Agreement — Daily Newspaper — Name or Style of — Injunction. Let an injunction be awarded against the Deft to restrain him and his agents from printing, publishing, or selling any newspaper or other periodical under the name of The Daily London Journal, or under any other name or style, of which the words London Journal should form part, and from doing or committing any act or default that might tend to lessen or diminish the sale or circulation of the Pit's periodical called The London Journal. Ingram v. Stiff (V.-C. W.), Digitized by Microsoft® 282 INJUNCTIONS. June 3, 1859 ; affirmed on appeal, but undertaking added as to damages : S. C. 6 Jur. (N.S.) 947. Agreement— Buildings — Commissioners of Woods — Injunction. Let an injunction be awarded to restrain the Defts the Commis- sioners of Woods and Forests, their agents and workmen, from con- tinuing the projected buildings, or commencing any other buildings whatever, on the garden or plot of ground described in the pleadings of this cause, or any part thereof; and also from permitting such part of the said buildings as have been already erected on the said garden or plot of ground from remaining thereon until the Defts shall fully answer the Pit's bill or further order. Bankin v. Huskisson, 4 Sim. 13. Agreement — Bailway Company — Book Stalls — Injunction. Let an injunction be awarded against the Defts the Eastern Coun- ties Eailway Company to restrain them, their directors, servants, and agents, from evicting the Pits from the book stall at the Bishopsgate Street Station, or any other book stall existing at the date of the agreement at any station comprised in the agreement. Let an injunc- tion be awarded against the said Defts to restrain them their direc- tors, servants, and agents from removing any advertisement, &o., affixed, exhibited, or published pursuant to the provisions of the agreement. Holmes v. Eastern Counties By. Co., 3 K. & J. 676. Covenant — Assignment or Underlease — Injunction. Let an injunction be awarded against the Defts Taylor and Cannan to restrain them, their solicitor and agents, until the hearing of this cause or further order, from selling, assigning, or underletting, or otherwise disposing of or parting with the possession of the messuage, farm lands, hereditaments, and premises demised by the indenture of lease of the 26th April, 1866, in the Pit's bill mentioned, or any' of them, or any part thereof respectively, without such consent as in the said indenture mentioned first bad and obtained. Dyke v. Taylor, 2 Giff. 666. Covenant — Business not to he carried on — Injunction. Let a perpetual injunction be awarded against the Deft T. H. B. to restrain him, his partners and agents, from either directly or indirectly setting up, embarking in, or carrying on the business or trade of a wine or spirit merchant at the town of Carnarvon, or at any other town or place within the three counties of Carnarvon, Anglesey, and Merioneth. Turner v. Emns, 2 De G. M. & G. 740. Digitized by Microsoft® INJUNCTIONS. 283 Similar Order — Trade Business. Let an injunction be awarded against the Deft to restrain him, &c., until, &c., from resuming or carrying on the business of a stuff mer- chant at or in the immediate neighbourhood of Bradford, either alone or in partnership with any other person or persons whatsoever, under the style or firm of J. D. & Co., or in any other manner holding out that he is carrying on the business of a stuff merchant in continua- tion of or in succession to the business carried on by the late firm of J. D. & Co. Churton v. Dmglas, 5 Jur. (N.S.) 887. Similar Order — Trade Secret. Let a perpetual injunction be awarded against the Deft to restrain him, &o., from carrying on any manufactory for the production of Crockett's Leather Cloth in the bill mentioned, and from being engaged in any company for the sale of the said cloth, or any cloth or any pro- duction similar thereto, and from in any manner holding himself out as the manufacturer of such Crockett's Leather Cloth or any production similar thereto. The Leather Cloth Co. v. Lorsont, L. E. 9 Eq. 345. Agreement — Partnership — Solicitor's Business — Boohs and Documents, Let an injunction be awarded against the Deft to restrain him, &c., until the hearing, &c., from detaining and keeping possession of the books, &c., removed by him or by his order from the chambers occu- pied by the Pits (and for retaining which no written authority has been produced by the Deft), or any or either of them (except the five boxes not claimed by the Pits), and from permitting the same, or any or either of them, except the five boxes, to remain away from the office of the Pits, and from parting with the books, deeds, documents, and papers removed by the said Deft or by his order from the chambers occupied by the Pits, or any or either, &c,, except the five boxes not claimed by the Pits, to any person or persons other than the Pits, and from destroying, mutilating, or obliterating the said books, deeds, documents, and papers, or any or either of them, except as aforesaid, or any part or parts thereof respectively, or any entry or entries therein, and from making any alteration, interlineation, or erasure in the same, or any or either of them. WhittaJcer v. Howe, 3 Beav. 388. Agreement — Partnership — Trade Business — Bills of Exchange, do. — Boohs and Papers. Let an injunction be awarded against the Deft T. G. to restrain him, &c., until, &c., from drawing any cheques or cheque on the bankers of the co-partnership in the bill mentioned in the name of Digitized by Microsoft® 284 INJUNCTIONS. C. G. & Sons, and from drawing, making, accepting, indorsing, or negotiating any bill of exchange, promissory note, or other security ■wliatever in the name of the co-partnership firm 0. G. & Sons, and from receiving any of the debts or other moneys due to the said part- nership, or any cheque, note, bill, or security belonging thereto ; and from hindering or preventing the Pits, or either of them, from having access to the books of the said partnership and liberty to inspect or transcribe the same, or any of them, when they, or either of them, shall think proper ; and from placing and depositing or keeping the said partnership books, or any of them, or permitting them, or any of them, to be placed, deposited, or kept at any other place than the place of business of the said partnership without the consent of the Pits. Greatrex v. Oreatrex, 11 Jur. 1052. Breach of Ageeement oe Covenant. Unless the whole agreement can be specifically enforced, the Court will, as a general rule, decline to interfere by injunction : Stacker v. Wedderhurn, 3 K. (te J. 393 ; Gervais v. Edwards, 2 D. & War. 80 ; South Wales By. Co. v. Wythes, 5 De G. M. & G. 880. The Court will not interfere partially, except in cases in which the parts of the agreement which cannot be specifically enforced are independent of those which may be specifically enforced : Kerr, 492 ; Oroome v. Lediard, 2 M. & K. 251 ; Qihson v. Goldsmid, 5 Do G. M. & G. 757 ; Kernot v. Potter, 3 De G. F. & J. 447. The interference of the Court by way of interlocutory injunction against breach of covenant or agreement being in aid of the legal right, the party applying lor an injunction must shew a good p^imd facie legal title : Capes v. Button, 2 Kuss. 357 ; Sainter v. Ferguson, 1 M. & G. 289, cited in Kerr, 493. If the covenant or agreemeot is of such a character that the Court cannot enforce its specific performance, or if an adequate remedy can be given at law, the Court will not interfere by injunction : Furness By. Go. v. Smith, 1 De G. & S. 299. The party seeking the injunction must shew that he has carried out, as far as possible, his own part of the agreement : Stacker v. Wedderhurn, 3 K. & J. 4u5. But where the remedy at law would bo inadequate, the Court has gi'anted tlie relief, although not entirely satisfied with the conduct of the pit : Holmes v. Eastern Counties By. Co., 3 K. & J. 675 ; Order, p. Z82. In cases where a covenant is affirmative, the remedy in equity is by way of specific performance. If it is a negative one, the remedy is by way of injunction : Kerr, 503, 521. The Court will not enforce by injunction a covenant which is vague, indefinite, or uncertain in its terms : Eimherley v. Jennings, 6 Sim. 340 ; Mann v. Stephens, 15 Sim. 379 ; or which is harsh and oppressive : Eimherley v. Jennings, supra ; Talbot V. Ford, 13 Sim. 173. Where an agreement contains both affirmative and negative stipulations form- ing but one contract, the Court will interfere by injunction to prevent the violation of the negative stipulation, although not able to enforce the specific performance of the enliio contract: Lumley v. Wagntr, 1 Do G. M, & G. 604, Digitized by Microsoft® INJUNCTIONS. 285 per Lord St. Leonards ; Order, p. 281. See also Montague v. Mochton, L. E.16 Eq. 189. Where the importation of a negative quality into an afflrmative agreement is not against the meaning of the agreement, a Court of Equity will import the negative quality, and restrain an act inconsistent with the agreement: Kerr, 521 ; Wiib- ster V. Dillon, 3 Jur. (N.S.) 432 ; Tipping v. Echersley, 2 K. & J. 270. In exercising the jurisdiction by way of mandatory injunction against acts in violation of contract, covenant, or agreement, the Court looks to the express stipulation of the agreement, and is not, as in cases of trespass or nuisance, influenced hy considerations as to the nature or extent of the damage, or the comparative convenience or inconvenience of granting an injunction : Kerr, 533 ; Lane v. Newdigate, 10 Ves. 192 ; Newman v. Brandling, 3 Sw. 99 ; Rankin v. BusMsson, 4 Sim. 13 ; Whittaker v. Howe, 3 Beav. 383 ; Order, p. 283. For cases where injunctions have been granted under covenants in restraint of trade : see Avery v. Langford, Kay, 663 ; Turner v. Evans, 2 De G. M. & G. 740 ; Order, p. 282 ; Whittaker v. Howe, 3 Beav. 383 ; Rolfe v. Rolfe, 15 Sim. 88 ; Williams v. Williams, 2 Sw. 253; Churton v. Douglas, 5 Jur. (N.S.) 887; Order, p. ,283 ; Leather Glott, Go. v. Lorsont, L. E. 9 Eq. 345 ; Order p. 283. A restraint on trade is not good unless it is reasonable : Mitchell v. Reynolds, 1 P. Wms. 181. In respect of time the restriction may be unlimited. But in respect of space the restraint must be confined within reasonable limits : Kerr, 509, 510. and oases there cited. And the reasonableness or unreasonableness of the restriction in respect of space depends in great measure on the nature of the business, and the mode in which it is carried on : Ibid, A covenant not to use a house as a " public-house, for sale of beer, wine, malt liquor, or spirits,'' is not broken by taking out an ordinary excise licence for the sale of beer not to be drunk on the premises: Fease v. Coats, L. K. 2 Eq. 688. A covenant not to use a house as " a beerhouse " is not broken by the sale, under a licence, of beer by reta,il to be consumed off the premises : Ldndon and North Western Ry. v. Qarnett, L. R. 9 Eq. 26. An agreement in restraint of trade is divisible. Where an agreement of the sort contains a stipulation which is capable of being construed divisibly, and one part is void as unreasonable and the other is not, the latter will be upheld, and the contract will not be held void altogetlier : Kerr, 513 ; Mallam v. May, 11 M. & W. 664 ; Price v. Green, 13 M. & W. 696 ; 16 M. & W. 346. A vendor who has taken from each of several purchasers of plots of land, formerly the same estate, a covenant to build only in a specified manner, and has permitted breaches of the covenant to be committed by some of the purchasers, cannot obtain an injunction compelling the observance of the covenant by another purchaser : Peek v. Matthews, L. E. 3 Eq. 515. The Court wiU restrain by injunction partners of a firm doing acts contrary to the partnership articles or agreement, or from interfering in the proper discharge of the duties of a co-partner: Fairthome v. Weslon, 3 Hare, 387; Morris v. Golman, 18 Ves. 437; Gharlton v. Poulter, 19 Ves. 147, n. ; Richardson v. Hastings, 7 Beav. 301 ; Miles v. Thomas, 9 Sim. 606 ; England v. Curling, 8 Beav. 129 ; Hail v. Hall, 12 Beav. 414 ; Shrewsbury and Chester Ry. Co. v. Shrewsbury and Birmingham Ry. Co., 1 Sim. (N.S.) 423 ; Qlassmgton v. Thwaites, 1 Sim. & Stu. 124. Digitized by Microsoft® 286 INJUNCTIONS. And in suits for dissolution of a partnership, partners have been restrained from interfering with the partnership business, from parting with the books of a partnership, and from drawing cheques and negotiating the bills of the partner- ship : Smith v. Jeyes, 4 Beav. 503 ; Whittalcer v. Howe, 3 Beav. 388 ; Order, p. 283 ; Oreatrex v. Oreatrex, 11 Jur. 1052 ; Order, p. 283. COPYRIGHT. Literary Copteight. Directories. Let a perpetual injunction be awarded against the Deft to restrain Mm, his workmen, servants, and agents, from publishing, printing, selling, delivering, or otherwise disposing of, or causing or know- ingly permitting to be published, printed, sold, delivered, or otherwise disposed of, any copies or copy of his book, called ' The Imperial Directory of London, 1866,' in the Pit's bill mentioned, containing the divisions headed Streets, Official, Parliamentary, Court, Civic, Parochial and Clerical, Customs, Banking and Insurance, Legal, Postal, Public Institutions, Conveyance, and Miscellaneous, or any or either of them, or any part thereof respectively. Deft to pay Pit's costs of suit, to be taxed, &c. Kelly v. Morris (V.-C. W.). L. E. 1 Eq. 697. Directory — Paid-for Insertions — Advertisements. Let a perpetual injunction be awarded against the Defts to restrain them, their respective workmen, servants, and agents, from printing, publishing, selling, delivering, or otherwise disposing of the book called, ' The Merchants' and Manufacturers' Pocket Directory of London, 1868,' already printed and published by the Defts, as in the Pit's bill mentioned, or any copy or copies of any pirated portion thereof, and from copying or pirating any portion of the Pit's book called ' The Business Directory of London,' in the bill mentioned, or any part thereof, and from selling, or otherwise disposing of any book containing such pirated matter as aforesaid. But this injunction is not to extend to any advertisements which appeared at the end of the Left's said book, or on any separate pages thereof, as distinct from the list of names in the body of the said book. Defts to pay costs of suit, to be taxed, &o. Morris v. Ashhee, L. R. 7 Eq. 34. Topographical Dictionary. Let the Deft, his agents, servants, and workmen be restrained, &c., from further printing, publishing, selling, or otherwise disposing of any copy or copies of a book called ' A New and Comprehensive Gazetteer,' containing any articles or article, passages or passage copied, Digitized by Microsoft® INJUNCTIONS. 287 taken, or colourably altered from a book called ' Tlie Topographical Dictionary of England,' published by the Pits. Lewis v. Fullarton, 2 Beav. 6, 14. Portion of Worh protected. The Pit by his counsel undertaking as to damages, &c., Let the Defts, their servants and agents, be restrained until the hearing of this cause or further order from printing, publishing, selling, deliver- ing, or otherwise disposing of, any of the copies of the book or work called ' The Guardian Angel ' in the Pit's bill mentioned, printed or caused to be printed by the Defts, as in the bill mentioned, or any other copy or copies of the said book or work containing the six last chapters of the said book or work printed and published by the Pit as in the bill mentioned, or any parts of such six last chapters. Low V. Ward, L. E. 6 Eq. 415. Hand-Boole — Injunction. Let the Defts S. & Co. and T. & Co., their servants, workmen, and agents, be restrained until, &c., from printing, publishing, selling, or otherwise disposing of ' The Livalids' and Visitors' Hand-Book ' in the Pit's bill mentioned, or any copy thereof, or any part of the work ' Spas of England ' published by the Pit, or any work written or composed by the Deft Dr. Q. of a similar nature or description to the work so published by the Pit, or to any part thereof. Let the Deft Dr. G., his servants, workmen, and agents, be re- strained until, &c., from assigning or otherwise disposing of to the Defts, or any of them, or any other person, &c., the copyright of the same work, or of any part thereof, and from being concerned in 'any work of a similar description to, or which might interfere with the value of the copyright of, the work so published by the Pit. Col- burn V. Simms, 2 Hare, 543. niuslrated Booh — Engravings — Injunction. Let the Defts, their servants, agents, and workmen, be restrained until, &o., from printing, or publishing, or selling, or exposing for sale or hire, or otherwise disposing of any further or other copies or copy of a book called ' The Comical History and Tragical End of Eeynard the Eox,' or any other book, work, publication, or thing containing any passage, article, print, woodcut, engraving, matter, or thing contained in the book of the Pits intituled, &c. Bogue v. Houlston, 5 De G. & Sm. 267; 16 Jur. 372. Essay — Selections from Poem — Injunction. Let an injunction be awarded against the Defts to restrain them, their servants and agents, until. &c., from selling or exposing for sale Digitized by Microsoft® 288 INJUNCTIONS. any further copies of the work or volume called ' Book of the Poets — The Modern Poets of the Kineteenth Century,' in the Pit's bill men- tioned, or such part or parts thereof as consists or consist of the Pit's original compositions comprised between pages 233 and 261, both inclusive, of the said volume, and from printing or publishing the same, or any other of the Pit's compositions, in any other volume or work, or otherwise, without the Pit's leave first obtained thereto. Pit to bring such action as he may be advised. — Costs of motion reserved. Campbell v. Scott, 11 Sim. 31 ; see also Tinsley v. Lacy, 1 H. & M. 747 ; 11 W. E. 876 ; Order, p. 292. Essay — Injunction — Damages. Let a perpetual injunction be awarded against the Deft T. N. to restrain the said Deft, his servants and agents, from selling or disposing of, or causing to be published, sold, or disposed of, any copies or copy of the Deft's book intituled, 'The Pedigree of the English People,' in its present state, or of any book containing the 7th section of chap. 1 of part 3, or sect. 1 of chap. 5, part 3, of the Deft's said book. Let the Deft deliver up to the Pit the above mentioned portions of the said book to be cancelled. Let the Deft T. N. within twenty-one days after service of this order pay to the Pit L. P. the sum of £70, as the ascertained amount of damages sustained by the Pit by sale of the number of copies of the Deft's book. Deft to pay costs of suit. Pike v. Nicholas (V.-C. J.), April 24, 1869 ; reversed L. E. 5 Ch. 251. Map — Injunction — Inquiry as to Damages. Let a perpetual injunction be awarded against the Defts to restrain them, their servants, agents, and workmen, from printing, publishing, selling, or otherwise disposing of, and from offering or exposing for sale the ' Bird's-eye View or Plan of Paris and its Fortifications,' in the Pit's bill mentioned to have been published by the Defts. Let the Defts deliver up to the Pits all unsold copies of the said view or plan now in their possession or power. Let an inquiry be made what sum of money is proper to be awarded to be paid by the Defts to the Pits in respect of any damage which has been sustained by the Pits by reason or on account of the publication or sale of the said view or plan by the Defts. Defts to pay to Pits the sum certified within one month after date of chief clerk's certificate. Defts to pay costs of suit. — Liberty to apply. Stannard v. Harrison (V.-G. B.), Nov. 19, 1870. Illustrated Catalogue of Designs — Injunction. Let a perpetual injunction be awarded to restrain the Deft, his servants, agents, and printers, from publishing, printing, selling, Digitized by Microsoft® INJUNCTIONS. 289 delivering or otterwise disposing of the sheet of monumental designs in the bill mentioned, or any other sheet in the compilation of which the Pit's book of monumental designs has been used, and from copying or pirating any parts of the said book. Let the Deft on or before the 2nd of April, 1875, deliver to the Pit upon oath (if required) any such sheets in the power or custody of the Deft for the purpose of being destroyed. — Deft to pay costs of suit. Grace v. Newman, L. E. 19 Eq. 623. Literary Copyright — Duration of — Meaning. " The copyright in every book which shall after the passing of this Act be pub- lished in the lifetime of its author shall endure for the natural life of such author, and for the further term of seven years, commencing at the time of his death, and shall be the property of such author and his assigns : Provided always, that if the said term of seven years shall expire before the end of forty-two years from the first publication of such book, the copyright shall in that case endure for such period of forty-two years ; and that the copyright in every book which shall be published after the death of its author shall endure for the term of forty-two years from the first publication thereof, and shall be the property of the pro- prietor of the author's manuscript from which such book shall be first published, and his assigns " : 5 & 6 Vict. c. 45, s. 3. The term " copyright " shall mean the sole and exclusive liberty of printing or otherwise multiplying copies of any subject to which the said word is in the Act applied : 5 & 6 Vict. c. 45, s. 2. The term "book" means and includes every volume, part or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart, or plan separately published : 5 & 6 Vict. c. 45, s. 2. The word "assigns" means and includes every person in whom the interest of an author in copyright shall be vested, whether derived from such author before or after the publication of any book, and whether acquired by sale, gift, bequest, or by operation of law or otherwise : 5 & 6 Vict. c. 45, s. 2. To come within the protection of the copyright statutes, a work need not consist of new or original matter. Compilations of old materials, or of materials which are common to all men, may be the subject of copyright : Kerr, 450. Copyright is personal property : 5 & 6 Vict. c. 45, s. 25. And an agreement by publishers with an author to print, reprint, and publish a work by him at their own risk, on the terms that the profits should be equally divided, and the author make the necessary alterations, &c., in another edition, is an agreement of a personal nature, not assignable without the author's consent : Stevens v. Benning, 6 De Gr. M. & G. 223 ; see also Eeade v. Bentley, 3 K. & J. 271 ; 4 K. & J. 656. Subjects of Literary Copyright. There may be copyright in encyclopjedias, reviews, magazines, and other pe- riodicals : 5 & 6 Vict. c. 45, s. 18 ; in histories, Duke of Queensbury v. Shebbeare, 2 Eden, 329 ; in road or guide books, Gary v. Longman, 1 East, 3 ; Gary v. Faden, 5 Ves. 23; Longmmi: v. Winchester, 16 Ves. 269, 271; in directories, u Digitized by Microsoft® 290 INJUNCTIONS. Kelly V. Morris, L, E. 1 Bq. 697 ; Order, p. 286 ; Edly v. Hooper, 1 T. & C. (Ch.) 197 ; 4 Jur. 21 ; Lewis v. Fullerton, 2 Beav. 6 ; Order, p. 286 ; in lectures, 5 & 6 Will. 4, 0. 65 ; in books of statistics, Scott v. Stanford, 16 L. T. (N.S.) 51 ; Cornish V. Upton, 4 L. T. (N.S.) 862; in manuscript treatises and letters having the character of literary compositions, Webb v. Eose, 2 Bro. P. C. 138 ; Pope v. Ourl, 2 Atk. 341 ; Thompson v. Stanhope, Amb. 737 ; Perceval v. Phipps, 2 V. & B. 19 ; Gee V. Pritchcurd, 2 Sw. 418 ; see also as to letters, Bopkinson v. Lord Bwghley, L. E. 2 Ch. 447 ; in descriptive catalogues of curiosities or works of art or of designs, Hogg V. Kirby, 8 Ves. 215, 221; Prince Albert v. Strange, 2 De G. & Sm. 652 ; 1 Mac. & G. 25 ; Order, p. 294 ; Hotten v. Arthiir, 1 H. & M. 603 ; 32 L. J. (Ch.) 771 ; Orace v. Newman, L. E. 19 Eq. 627 ; but not in mere catalogues of articles for sale, Cobbett v. Woodwa/rd, L. E. 14 Bq. 407 ; in court calendars, Longman V. Windtester, 16 Ves. 269 ; in books of elementary lessons in science, Jarrold v. Houlstone, 3 E. & J. 708 ; in additions, corrections, or original notes to an old work, Tonson v. Walker, 3 Sw. 672 ; Gary v. Longman, 1 Bast, 358 ; Mason v. Murray, Ibid. ; Gary v. Faden, 5 Ves. 23, 25 ; in abridgments, Bell v. Walker, 1 Bro. C. 0. 451 ; Giles v. Wilcoa, 2 Atk. 143 ; in law reports. Sweet v. Shaw, 1 Jur.'917 ; Sweet y. Maugham,, 11 Sim. 51 ; see also Saunders v. Smith, 3 My. & C. 711, 729 ; in head-notes or the side or marginal notes of law reports. Sweet v. Penning, 1 Jur. (N.S.) 543 : in translations, Wyatt v. Barnard, 3 V. & B. 77. And the Crown has, by virtue of its prerogative, the exclusive right to the publication of Acts of Parliament, proclamations, Orders of Council, liturgies, books of divine service, the translation of the Bible, &o. : Kerr, 461, citing Basket v. University of Cambridge, 1 W. Bl. 105 ; Basket v. Cunningham, 2 Eden, 137 ; Mamners v. Bligh, 3 Bli. (N.S.) 402. There is no copyright in works of libellous, immoral, or irreligious character : Wcdcot V. Walker, 7 Ves. 1 ; Gee v. Pritchard, 2 Swan. 413 ; Southey v. Sher- wood, 2 Mer. 435 ; Murray v. Benbow, 1 Jao. 474 ; Lawrence v. Smith, 1 Jac. 471. Eegisteation — ^Assignment. The proprietor of copyright in any book is to register the title of the book, and the time of the first publication, &c. : 5 & 6 Vict. c. 45, s. 13. A newspaper requires no registration under the 5 & 6 Vict. c. 45. But the proprietor can sue in respect of a piracy : Cox v. Land amd Water Journal, Law Eep. 9 Bq. 324. The assignment of a copyright must be in writing : 5 & 6 Vict. c. 45, s. 15 ; but does not require attestation : Cumberland v. Gopeland, 9 Jur. (N.S.) ; 253 ; 10 W. E. 581. A licence to publish is not an assignment of a copyright : Reads v. Benthy, 4K. &J. 656. Limitation of Actions, &c. All actions, suits, &c., for any offence committed against the Copyright Act must be commenced within twelve calendar months next after the ofiience committed : 5 & 6 Vict. c. 45, s. 26. But this section does not apply to prevent a suit for an injunction to restrain a piracy of copyright by sale of a book published more than twelve months before bill filed : Hogg v. -Scott, L, E. 18 Eq. 444. Digitized by Microsoft® INJUNCTIONS. 291 International Copyeisht in Books. Her Majesty may, by Order in Council, direct that as respects all books to be defined in suoli order, which shall after a future time, to be specified in such order, be first published in any foreign country, the authors shall have copyright therein during such period as shall be defined in such order : 7 & 8 Vict. c. 12, s. 2. If the Order in Council applies to books, the copyright law asi to books first published in this country shall apply to the books to which the Order relates,, with certain exceptions: 7 & 8 Yict. c. 12, s. 3. No author of any book is to be entitled to the benefit of the Act or the Order in Council unless such book is registered with the Company of Stationers : 7 & 8 Vict. c. 12, s. 6. Copies of books wherein copyright is subsisting printed in foreign countries other than those wherein the book was first published, are prohibited to be imported : 7 & 8 Vict. c. 12, s. 10. Authors of works first published in foreign countries are not entitled to copy- right except under the Act : 7 & 8 Vict. c. 12, s. 19. Her Majesty may, by Order in Council, direct that the authors of books pub- lished in foreign countries may, for a limited time, prevent unauthorized trans- lations, and the law of copyright is to extend to prevent such translations: 15 & 16 Vict. c. 12, ss. 2, 3. For cases of literary copyright under these Acts, see Ollendorf v. Blach, 4 De G. & Sm. 209 ; 14 Jur. 1080; Cassdl v. Stif, 2 K. & J. 279; Jefferys v. Boosey, 4 H. L. C. 817; 1 Jur. (N.S.) 615. AU articles of political discussion published in any newspaper or periodical in a foreign country may be re-published or translated unless the author has notified his intention to reserve the right : 15 & 16 Vict. c. 12, s. 7. No author is entitled to the benefit of the 15 & 16 Vict. c. 12, or of any Order in Council issued in pursuance thereof, in respect of the translation of any book, unless the requisitions of the Act as to registration of the original work and of the translation are complied with : 15 & 16 Vict. c. 12, s. 8. The translation sanctioned by the author, or a part thereof, must be published either in the country mentioned in the Order in Council by virtue of which it is to be protected, or in the British dominions, not later than one year after the regis- tration and deposit in the United Kingdom of the original work, and the whole of such translation must be published within three years of such registration and deposit : 15 & 16 Vict. c. 12, s. 8, sub-s. 3 ; see Wood v. Chart, L. R. 10 Eq. 193 ; post, p, 293. All pirated copies of any work of literature or art are prohibited to be im- ported : 15 & 16 Vict. c. 12, s. 9. The provisions of the Act are to apply to translations of books published in France: 15 & 16 Vict. o. 12, s. 11. Dramatic and Musical Copyeight. Opera Magatdrte — Pianoforte Music. Let an injunction be awarded against the Deft to restrain him,, his servants, agents, and workmen until, &c., from selling or otherwise disposing of the portion of No. Ill of the 'Pianista, or Italian Opera u 2 Digitized by Microsoft® 292 INJUNCTIONS. Promenade Concert Magazine of Pianoforte and Vocal Music,' contain- ing three pianoforte solos from Mendelssohn's original composition of music to Shakespeare's ' Midsummer Night's Dream ' called respec- tively the ' Scherzo,' the ' Nottumo,' and the ' Wedding March,' and also from reprinting or multiplying any further copies of the said No. Ill of the 'Pianista' which shall contain the said pieces or any of them, and also from printing, publishing, or selling any portion of the said work or composition of music to Shakespeare's ' Midsummer Night's Dream ' composed and arranged by Felix Mendelssohn Bar- tholdy, except the overture thereof. Buxton v. James, 5 De G. & Sm. 80. Dramatised Novel. Let a perpetual injunction be awarded against the Deft to restrain him and his agents from further printing, publishing, selling, or otherwise disposing of any copies of the drama called ' Lady Audley's Secret ' in the Pit's bill mentioned, without first omitting therefrom all passages identical with, or copied or taken or only colourably differing from the book called 'Lady Audley's Secret' in the Pit's bill mentioned, published by the Pit's firm; and also from further printing, publishing, selling, or otherwise disposing of any copies of the drama called ' Aurora Floyd ' in the Pit's bill mentioned, without first omitting therefrom all passages identical with, or copied or taken or only colourably differing from the book called ' Aurora Floyd,' pub- lished by the Pit's firm. Deft to pay Pit's costs of suit. — Liberty to apply. Tinsley v. Laey, 32 L. J. (Ch.) 535 ; 11 W. E. 876 ; 1 H. & M. 747. The words " dramatic piece '' mean and include every tragedy, comedy play opera, farce, or other scenic, musiical, or dramatic entertainment • 5 & 6 Vict. 0. 45, s. 2. The provisiona of the 3 Will. 4, apply to musical compositions, and the sole liberty of representing or performing, or causing or permitting to be represented or performed, any dramatic piece or musical composition, is to endure and be the property of the author thereof and his assigns for the term provided for the dura- ■ tion of copyright in books ; aud the provisions enacted in respect of the property in such copyright, and of registering the same, are to apply to the liberty of representing or performing any dramatic piece or musical composition, except that the first public representation or performance of any dramatic piece or musical composition is to be deemed equivalent to the first publication of any book: 5 & 6 Vict..c. 45, s. 27. A Bong which describes feelings in words of passion is dramatic in its nature • JSussell V. Smith, 12 Q. B. 217. And a pantomime is within the statutes : lee v. Simpson, 3 C. B 871 • cited in Kerr, 463. " ' To publish in the form of quadrilles and waltzes the airs of an opera of which there exists an exclusive copyright is an act of piracy : D'Almaine v. Boosey 1 Y. & C. 288 ; see also Ohapell v. Shea/rd, 1 Jur. (N.S.) 996. ' Digitized by Microsoft® INJUNCTIONS. 293 The English assignee of the copyright of a foreign musical composer is within the protection of the statutes relating to copyright : D'Almaine v. Boosey, 1 Y. & 0. 288. And the man who adapts words of his own to an old air, and adds thereto a prelude and accompaniment also his own, acquires a copyright in the combina- tion: Kerr, 463 ; Lever v. Davidson, 1 C. B. (N.S.) 182. Novels may be dramatized and acted upon the stage : Eeade v. Oonqitest, 9 0. B. (N.S) 755 ; 9 W. E. 434; 7 Jur. (N.S.) 265. But the drama may not be printed : Tinstey v. Lacy, 82 L. J. (Ch.) 535 ; 11 W. E. 876 ; 1 H. & M. 747 ; Order, p. 292. The pianoforte score of an opera may be the subject of copyright: Wood v. Boosey, 2 Q. B. 340 ; 15 W. E. 309 ; 15 L. T. (N.S.) 530 ; 3 Q. B. 223. As regards registration, it is sufficient if the title, the name and place of abode of the author or composer, the name and place of abode of the proprietor, and the time and place of its first representation, be registered : 5 & 6 Vict. c. 45, s. 20. In Wood V. Boosey, supra, it was held that the arranger of the pianoforte score and not the composer of the opera, must register. The assignment of the right to represent a dramatic piece or perform a musical composition must be in writing, but need not be by deed : Kerr, 463 ; Shepherd V. Conquest, 17 0. B. (N.S.) 427 ; Marsh v. Gonguest, 17 C. B. (N.S.) 418. International Copyright in Dramatic Pieces. Her Majesty may, by an Order in Council, direct that authors and composers of dramatic pieces and musical compositions first publicly represented and per- formed in foreign countries shall have copyright therein : 7 & 8 Vict. c. 12, s. 5. Her Majesty may, by an Order in Council, direct that authors of dramatic pieces first publicly represented in any foreign covmtry may, for a limited time, not extending beyond the expiration of five years from the time at which the authorized translation of such dramatic piece is first published or publicly repre- sented, prevent the representation in British dominions of unauthorized transla- tions : 15 & 16 Vict. c. 12, s. 4. The Act is not to apply to fair imitations and adaptations to the English .stage of any dramatic piece or musical composition published in any foreign country : 15 & 16 Vict. 0. 12, s. 6. No author is to be entitled to the benefit of the Act in respect of the transla- tion of any dramatic piece without complying with the requisitions thereby made as to registration of the original work and its translation : 15 & 16 Vict. c. 12, s. 8. In the case of dramatic pieces the translation sanctioned by the author must be published within three calendar months of the registration of the original work : 15 & 16 Vict. c. 12, s. 8, sub-s. 6. A translation such as is required by the Act must be a translation of the whole work, not merely what the author should sanction as a translation : Wood v. Chart, L. B. 10 Eq. 193. For cases of musical composition under these Acts, see BiKctmvY. James, 5 De G &Sm. 80; 16 Jur. 15. Digitized by Microsoft® 294 INJUNCTIONS. Prints, Engeavings, and Etchings. Etchings, Let the Deft W. S., his servants, agents, and workmen, be restrained until, &o., from exhibiting the gallery or oollectiou of etchings in the bill mentioned, or any of such etchings, or from making or permitting to be made any engravings or copies of the same or any of them ; and from publishing the same or any of them, or from parting with or disposing of the same or any of them, and from selling or in any manner publishing and from printing the descriptive catalogue in the Pit's bill mentioned, or any work being or purporting to be a catalogue of the etchings made by the Pit as aforesaid. Prince Alhert v. Strange, 2 De G. & Sm. 652, 656 ; 1 Mac. & G. 25 ; 13 Jur. 109. Same Case-^Order on the Hearing. Deolaee that the Pit is entitled to have delivered to him the im- pressions (by the answer of the Deft J. admitted to be in his posses- sion) of such of the several etchings in the pleadings mentioned as in the catalogue and in the pleadings are stated to have been etched by the Pit, that is to say [describing them by reference to the numbers in the catalogue]. Let the Deft J., within four days after service of this decree deliver up the above impressions above specified on oath, and deposit them with the clerk of records and writs. Let the Deft S. within the like period deliver to the clerk of records and writs at the said office the twenty-three copies of the descriptive catalogue men- tioned in the order dated, &c. [Similar direction against Deft Judge as regards six other copies.] Let the clerk of records and writs destroy the said copies of the catalogue, giving notice to the solicitors of the several parties of the time and place, &c. Let the Defts, their servants, agents, and workmen, be restrained, &c. [injunction in terms of interim order above]. — Directions for payment of costs by Deft J. — Liberty to apply. Prince Albert v. Strange, 2 De G. & Sm. 652, 717 ; 1 Mac. & G. 26 ; 13 Jur. 109. Copyright in Prints, Unga/vings, Etchingg. " Every person who shall invent and design, engrave, etch, or work in mezzo- tinto or chiaro^scMro, or from his own works and inventions shall cause to be designed and engraved, etched, or worked in mezzotinto or ckiaro-oscuro, any historical or other print or prints, shall have the sole right and hberty of printing and reprinting the same for the term of fourteen years (extended to twenty-eight years by 7 Geo. 3, c. 38, s. 7), to commence from the day of the first publishing thereof, which shall be truly engraved with the name of the proprietor on each plate, and printed on every such print or prints " : 8 Geo. 2, c. 13. " All and every person or persons who shall invent or design, engrave, etch, or Digitized by Microsoft® INJUNCTIONS. 295 Work in mezzotinto or chiaro oscuro, or from his own work, design, or invention shall cause or procure to he engraved, etched, or worked, any historical print or prints, or any print or prints of any portrait, conversation, landscape, or archi- tecture, map, chart, or plan, or any other print or prints whatsoever, shall have the benefit of the 8 Geo. 2, c, 13 and of this Act " : 7 Geo. 3, c. 38, s. 1. Her Majesty may by Order in Council direct that as regards prints and other works of art, to be defined in such Order, which shall be first published in any foreign country, the author or inventor may have copyright therein, and the English Copyright Law is to apply : 7 & 8 Vict. c. 12, ss. 2, 3. The benefit of the Copyright Act extends to lithographs : 15 & 16 Vict. c. 12, s. 14. Prints and engravings forming part of a book are protected by 5 & 6 Vict. c. 45, and need not comply with the requisitions of the 8- Geo. 2, c. 13, and 7 Geo. 3, c 38. By sect. 6 no inventor, designer, or engraver of any foreign print is to be en- titled to the benefit of the Act or of the Order in Council unless the same shall have been registered according to the mode prescribed in the Act. The provision contained in the 8 Geo. 2, c. 13, as to the date and name of the proprietor being engraved on the plate, must be strictly complied with : Thompson, V. Symons, 5 T. B. 41 ; Mackmurdo v. Smith, 7 T. E. 518 ; Sarrison v. Sogg, 2 Ves. Jun. 323; Newton y. Oowie, 4 Bing. 324; S. 0. 12 J. B. Moore, 457; Brooks V. OocJe, 3 Ad. & E. 138 ; Colnaghi v. Waxed by the taxing master). — Adjourn further consideration. — Liberty to apply. Betts v. De Vitre (V.-C. W.), Jan. 25, 1865 ; affirmed, L. E. 3 Ch. 429 ; varied, L. E. 5 H. L. 1, by making pit elect between account of profits and damages. Gom Mills — Injtmction — Inquiry as to Damages. Let a perpetual injunction be awarded to restrain the Deft A. C, his servants, agents, and workmen, for the residue of the term as mentioned in the letters- patent of the 6th of June, 1863, in the pleadings mentioned, from in any manner using, exercising, or putting in practice, or continuing to use, exercise, or put in practice, at his mills at Winchester or elsewhere, the Pit's invention and improve- ments for which the letters patent of 1849 and 1863 in the pleadings mentioned were granted, or any material part thereof, or any means, apparatus, or arrangement merely colourably difltering therefrom. Let the following account and inquiry be made and taken, viz. : I. An account of aU com ground, or caused to be ground, by the Deft, his servants, agents, or workmen, in his said mills or elsewhere, by means of any machinery or apparatus erected or applied on the principle protected by the Pit's said letters patent, or only colourably differing therefrom. 2. An inquiry what damage the Pit has sustained by reason of the user by the Deft of the Pit's said invention without the Pit's licence. Let the Deft A. C, within twenty-one days after the chief clerk shall have made his certificate of the result of such account and inquiry, pay to the Pit the amount which shall be certi- fied to be due to him. Let the Deft A. 0. pay to the Pit his full costs, charges, and expenses of this cause, to be taxed by the taxing master as between solicitor and client. — Liberty to apply. Bovill v. Crate (V.-C. W.), June 14, 1867. Paraffine Oil — Perpetual Injvmction after Trial at Law — Account — Certificate that Validity of Patent came in question. Let a perpetual injunction be awarded against the Defts to restrain them, their servants, agents, and workmen, during the continuance of the letters patent of the — day of — , in the pleadings mentioned, or during any extension o:^ the term thereof, from manufacturing, selling, or exposing for sale any paraffine oil, or oil containing paraffine, or paraffine made according to the invention or specification of the Pit, or in the manufacture or production of wbich any part of the said Digitized by Microsoft® 300 INJUNCTIONS. invention is used, and from in any manner infringing the rights and privileges granted by the said letters patent. Let an account be taken of all the paraffine oil or oil containing paraifine and paraffine manufactured according to the said invention of the Pit, which have been sold by the Defts or any of them, and of the profits of any such sales. Defts to pay within one month after certificate amount certified to be the amount of such profits. Let the Defts deliver up to the Pit all the paraffine oil and oil containing paraffine and paraffine in Defts' possession, which have been made or manufactured according to the said invention or any part thereof. Let a certificate be given pursuant to the Act 5 & 6 Will. 4, o. 83, s. 3, and the 5 & 6 Vict. c. 97, and the 15 & 16 Viet. c. 83, that the validity of the said letters patent came in question. — Directions for payment of costs by Defts. Toung v. Femie (V.-C. S.), June 1, 1864 ; L. E. 1 H. L. 63. Inquiry as to Damages — Further Consideration adjourned. Let an inquiry be made what damages the Pits have sustained by the sale by the Deft John Eylands within six years prior to the filing of the Pits' bill of any articles manufactured before the 13th Novem- ber, 1865, the day of the expiration of the patent in the Pits' bill mentioned, pursuant to the process the exclusive use of which was granted by the letters patent in the Pits' bill mentioned. — Direction for taxation of costs and payment by Deft. — Further consideration adjourned. — Liberty to apply. Davenport v. Byldnds, L. E. 1 Eq. 302. Inspection of Patent — Machinery — Samples. Let the Pits, on or before the 22nd of December instant, deliver to the solicitor of Deft Henry Jepson particulars in writing of the breaches complained of, and that the Deft Henry Jepson do, on or before the 24th of December instant, deliver to Pit's solicitor par- ticulars in writing of any objections on which he means to rely at the trial hereby directed. Let the Pits and Deft Henry Jepson, by their solicitors and scientific witnesses, be at liberty from time to time, upon giving three days' notice of their intention so to do, mutually inspect the machinery heretofore used by the Pits and the said Deft in the manufacture of chenille, and that the same niachine be put to work upon such inspection ; and that the Pits and the said Deft do, by their said witnesses and solicitors, be at liberty to take samples of the chenille made or to be made upon the said machines. Let the Pits by their solicitor and witnesses as aforesaid, be at liberty, upon the like notice, to inspect the machinery or exhibits marked Y and Z 1, pro- duced by the said Deft, and referred to as exhibits in certain affidavits Digitized by Microsoft® INJUNCTIONS. 301 made in this case by William Smith, filed respectively the 24th of No- vember and the 2nd of December, 1862, and to put his last-mentioned machines to work, and to take samples of the product thereof. Bwoen- port V. Jephson (V.-C. W.), 1 New Eep. 173. Inspection of Patent — Machinery to he verified. Upon motion for an injunction, &o.. Let the Deft W. W., on or before the — day of — , or within seven days after service of this order, make and file an affidavit stating the several kinds of machines sold or exposed for sale by him since the 21st June, 1864. Let the said Deft within four days after filing such affidavit produce one of each kind of machine at the office of — , his solicitor, situate, &c. Let the Pits, their solicitors and agents, together with J. B. and A. N., be at liberty at all seasonable times, upon reasonable notice, to inspect the machines so produced. Singer Manufacturing Co. v. Wilson, 13 W. E. 660 ; 5 New Eep. 505. Inspection of Patent — Samples for Analysis. Let the Deft J. W. give to J. J. and E. F., the agents of the Pits, liberty to inspect the type used in printing The Times newspaper, and deliver to the said J. J. and E. P. a competent part of such type (not ex- ceeding four ounces in weight) which has been so used in the printing- ofBce of the said newspaper, the Pits by their counsel undertaking to abide by any order this Court may make as to compensation. — Costs of application costs in the cause. — Liberty to apply. Patent Type Founding Co. v. Walker, Joh. Eep. 727. Machines — Injunction — Affidavit — Machines to he marleed — Certificate. Upon motion for a decree, &c., after the parties had proceeded to a trial, &c.. Let an injunction be awarded against the Deft to restrain him, his agents, servants, and workmen, during the subsistence of the Pits' patent, in the bill mentioned, or any extension thereof, from manufacturing, or selling, or disposing of, or using any machine of the same construction as that supplied by him to the Westminster Brewery Company in the bill mentioned, or only colourably differing therefrom, or any other machine constructed according to the Pits' patented invention, or only colourably differing therefrom, or being an infringement of the Pits' said patent, and from in any way infringing the Pits' said patent. Let the Deft, within seven days after service of this order, make and file an affidavit stating what machiaes of the same construction as that supplied by him to the Westminster Brewery Company, including such machine, are in his possession or power. And the Pits are to be at liberty to inspect and mark the same for the Digitized by Microsoft® 302 INJUNCTIONS. purpose of identification. Let an account be taken of the profits made by tte Deft by making, using, selling, or disposing of the macHne supplied by him to the said Westminster Brewery Company, or any other machine of the same construction therewith, or otherwise by an infringement of the Pits' said patent. Deft to pay within one month after date of certificate the amount certified. Let a certificate be given, pursuant to the Act 5 & 6 Will. 4, c. 83, 5 & 6 Vict. c. 97, and 15 & 16 Vict. c. 83, that the validity of the Pits' patent came in ques- tion in this cause. Deft to pay Pits their costs of this cause up to and including this hearing, and their costs of the trial by jury of the ques- tions of fact directed to be tried by the order dated, &c., including the costs of a special jury. — Liberty to apply. Needham v. Oxhy, 11 W. E. 852. Injmiction refused — Accourtt to be Icept. Upon motion for an injunction, &c., and the Defts by their counsel undertaking to keep an account of all the soldered cartridges or sol' dered cartridge-cases sold by them, Let the said motion stand over until the hearing of the cause. Daw v. Eley, W. N. (1868), 232. Letters Patent — Order to seal. Let the letters patent applied for by the petitioner, and mentioned in the warrant dated, &c., be sealed to him as of the 29th January, 1874, and the time for filing the petitioner's final specification thereon be extended until the 29th day of August, 1874, Let the Eespondent H. W. pay to the Petitioner J. H. his costs occasioned by the said notice of objection and of this application, and consequent thereon, such costs to be taxed by the taxing master of the Court of Chancery. Be Harrison, L. E. 9 Ch. 631. Patents — How obtained — Specifications. "All monopolies, and all commissions, grants, licences, charters, and patents heretofore made or granted, or hereafter to be made or granted, to any person or persons, hodies politic or corporate whatsoever, of or for the sole buying, selling making, working, or using of any thing within this realm .... shall be utterly void and of none effect, and in no wise to be put in use or execution " : 21 Jac. 1 c. 3, s. 1. " Provided nevertheless that any declaration before mentioned shall not extend to any letter patent and grants of privilege for the term of fourteen years or under hereafter to be made of the sole working or making of any manner of new manufactures within this realm to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patent and grants shall not use, so as also they be not contrary to law nor mischievous to the state by raising prices of commodities at home, or hurt of trade, or generally Digitized by Microsoft® INJUNCTIONS. 303 inconvenient : the said fourteen years to be accounted from the date of the first letters patent or grant of such privilege hereafter to be made " : 21 Jac. 1, c. 3, s. 7. Charters granted to corporations and letters patent that concern printing, salt- petre, gunpowder, casting ordnance, or shot for ordnance, and letters patent of any office, are saved from the operation of sect. 1 of the Act 21 Jac. 1, c. 3, ss. 9 and 10. The word " manufacture," in the Act 21 Jac. 1, c. 3, not only comprehends anything made, but also the mode, method, and process of making a thing, apart from its produce and results, such as a new machine, or a new combination of machinery, or a new process, or an improvement of an old process : Kerr, 410, citing Crane v. Price, 4 Mac. & G. 580 ; Morgan v. Seaward, 2 M. & W. 544 ; Rex V. Wheeler, 2 B. & Aid. 345 ; Balstm v. Smith, 11 H. L. C. 223. Under the 15 & 16 Vict. c. 83 (Patent Law Amendment Act), s. 1, the com- missioners of patents for inventions are appointed. By sect. 4 every petition for the grant of letters patent and a provisional specification has to be left at the ofBce of the commissioners. These applications are referred to one of the law ofBcers (sect. 7), who, if satisfied that the nature of the invention is rightly described, may give a certificate of his allowance, which upon filing confers provisional protection (sect. 8), or a complete specification may be deposited (sect. 9). The applications for letters patent must be advertised (sect. 12), and the specifications and objections (if any) are then referred to the law officer, who has power to order by or to whom the costs are to be paid (sects. 13 and 14). The law officer has power to cause a warrant to be made for the sealing of letters patent ; the Lord Chancellor has similar power with respect to the warrant ; and the writ of scire facias lies for the repeal of any letters patent issued under the Act in the like cases as the same would lie for the repeal of letters patent issued under the Great Seal (sect. 15). Letters patent issued under the Great Seal are valid for the whole of the United Kingdom, the Channel Islands, and the Isle of Man (sect. 16). But no letters patent (except in lieu of those lost, &c.) are to be issued after the explica- tion of the protection conferred imder the Act (sect. 20). AE letters patent to be granted under the Act (except letters patent granted after filing complete specification) require the specification thereunder to be filed in the Court of Chancery instead of being inroUed (sect. 27). AU letters patent to be granted under the Act, except letters patent granted after filing complete specification, require the specification to be filed in the Court of Chancery instead of being inrolled. The specification must so describe the invention as to place the public on a footing of equality of knowledge with respect to it with the patentee ; and the whole of the patentee's knowledge and every improvement in practice by him up to the time of specification must be given : Kerr, 419. If the specification omits anything which the patentee knows to be useful or necessary, or does not communicate to the public the most beneficial mode known to him of exercising the subject of the patent privilege, or if it is calculated in any way to mislead, or is, on a fair interpretation, equivocal in its terms, or is too broad and general, or if the process described in the specification does not produce that which the patent professes to produce, the specification is bad, and the patent is altogether void : Ibid. The specification of a patent may describe the process to be adopted so insuffi- Digitized by Microsoft® 304 ' > INJUNCTIONS. ciently as -to invalidate the patent, and yet disclose enough to shew that what is claimed hy a subsequent patent is not new : Betts v. Neilson, L. B. 3 Ch. 429. In testing the specification knowledge and means may be employed which have been acquired since the date of the patent : S. C. It is no objection to the grant of a patent that another person has been making experiments and working towards a similar invention : Ex parte Henry, L. B. 8 Ch. 167. The deposit of a complete specification is not equivalent to the grant of letters patent under the Great Seal, and does not prevent any other person who had previously applied for a patent for a similar invention from obtaining such patent : Ux parte Henry, L. E. 8 Ch. 167. Where a patent has actually been sealed a second patent will not usually be granted to another inventor, and the Lord Chancellor will not entertain the ques- tion whether or not some one else who had previously applied was a prior inventor : Hx parte Bates, L. B. 4 Ch. 577 ; but see Scott v. Young, L. B. 6 Ch. 274. And where the law officer has reported that part of an invention is identical with part of an invention the subject of an existing patent, a second patent will not, except under special circumstances, be granted for that part : JEx parte Manceaux, L. E. 6 Ch. 272. Where rival applicants had applied on the same day for patents, and afterwards agreed to withdraw opposition to each other, letters patent dated the day of application were granted to one applicant although letters patent of the same date had been granted to the other : In re Qething, L. B. 9 Ch. 638. Where applications had been piade for two patents alleged to be similar, and the patent of the second applicant had been sealed, the letters patent of the first applicant were subsequently ordered to be sealed, the specifications shewing that the inventions were not substantially similar : In re Harrison, L. B. 9 Ch. 631. On the hearing of a petition for the Great Seal to be affixed to letters patent, witnesses may be examined viva voce : In re Oething, L. B. 9 Ch. 633. Patents — Injukctions, when granted. Under the former practice it was not necessary that the validity of the patent should be established at law before the Court interfered by injunction. Where there has been a certain length of exclusive enjoyment the injunction was granted: Universities of Oxford and Cambridge v. Richardson {per Lord Eldon), 6 Ves. 689, 706 ; Earmer v. Plane, 14 Ves. 130 ; Sill v. Thompson, 3 Mer. 622. Long and uninterrupted possession is to be considered such prima facie evidence of title as to justify the Court in granting the injunction until the invalidity of the patent, if it be invalid, is established : Stevens v. Keating (per Lord Cotten- ham), 2 Ph. 333. But if the evidence as to exclusive possession is not satisfactory, or if from the nature of the alleged invention, or the conflicting evidence as to its novelty, its validity appears doubtful, the Court did not grant an injunction until the title was established at law : Collard v. Allison (per Lord Cottenham), 4 My. & Cr. 487. Where the patent is recent the Court has declined to act upon the presumed validity or invalidity of the patent without the right being ascertained by a previous trial : Hill v. Thompson, 3 Mer. 622. But the recency of the patent did not render it as of course to require the Digitized by Microsoft® INJUNCTIONS. 305 establishment at law of tlie title. The Coivrt will have regard to the case made upon the pleadings and evidence : Gardner v. Broadbent, 2 Jur. (N.S.) 1041 ; Clark V. Ferguson, 1 Giff. 184 ; Electric Telegraph Go. v. Nott, 2 Coop. C. C. 49 ; Sinard v. Levinstein, 10 L. T. (N.S.) 177. Where the patent has been the subject of different suits all terminating favour- ably to the patentee, in a fresh suit it was held that the patentee was entitled to an injunction pending the trial of the legal right : Newell v. Wilson, 2 De G. M. & Gr. 282. And this although a fresh fact was brought forward tending to impeach the novelty of the invention : S. C. But where a motion for new trial at law has been made lona fide, and there has seemed some ground for granting a new trial, the Court has directed the motion for injunction to stand over : Sill v. Thompson, 3 Mer. 622. So, too, where a bill of exceptions has been tendered to the verdict at law : Gollard v. Allison, 4 My. & Cr. 487 ; Sridson v. McAlpine, 8 Beav. 229. But the Court will consider the whole circumstances of the case, and will not withhold an injunction merely because a motion for new trial is made or bill of exceptions tendered : Bridson v. Benecke, 12 Beav. 7. Where the motion for an injunction is ordered to stand over until after the title at law is established, the defts are usually put upon terms as to keeping accounts : HiU v. Thompson, 3 Mer. 622 ; Bridson v. McAlpine, 8 Beav. 229. Where a patent is once fairly established, and there is a clear case of infringe- ment, the Court will before the hearing grant an interlocutory injunction : Daven- port V. Jephson, 1 N. E. 178. But an interim injunction will not be granted to restrain infringement of a patent several years old but never established by legal proceedings, unless there has been actual user of the patent for a considerable time : Plympton v. Malcolm- son, L. E. 20 Eq. 37. Where an injunction is applied for ex parte in patent cases it is incumbent on the party making the application to swear as to his belief that he is the original inventor, and that the invention had not been practised at the time when the Ijatent was granted : Hill v. Thompson, 3 Mer. 625 ; Gardner v. Broadbent, 2 Jur. (N.S.) 1041. When the Court has granted an injunction upon the terms of the pit bring- ing an action, it will deprive the pit of the injunction if he does not commence and proceed with his action with due promptness. But it will not do this if the deft has been supine in the cause : Bickford v. Skewes (L. 0. Cottenham), 4 My. & Cr. 498. And where an interlocutory injunction to restrain an infringement of a patent was moved for in a suit in which the bill was filed in July, and it appeared that the pit wrote complaining of the infringement in the preceding Novem- ber, and knew of the deft's proceedings in the previous August, the injunction was refused on the ground of delay : Bovill v. Grate (V.-C. W.), L. E. 1 Eq. 388. Where a pit has succeeded in shewing that at the filing of the bill he was entitled to an injunction, the Court will not at the hearing refuse him an inquiry as to damages under the 21 & 22 Vict. c. 27, although the patent has expired pending litigation : Davenport v. Bylands, L. E. 1 Kq. 302 ; Order, p. 300. But where a biU was filed immediately before the patent expired, so that it was plainly a decree to procure damages in Chancery rather than at Common Law, it was dismissed : Belts v. Gillois, L. E. 10 Eq. 392. Digitized by Micrasott® ^ 306 INJUNCTIONS. Peepetual Injunction in Patent Cases. In patent cases, unless the pit takes steps to bring the- matter before the Court by motion before the hearing, he will not in general be entitled to a perpetual in- junction at the hearing : Bacon v. Jones, 4 M. & 0. 433 ; Patent Type Founding Co. V. Walter, Joh. Eep. 727. Inspection op Patent. The Court has jurisdiction in a patent suit to order inspection of the deft's premises and machinery ; and, if necessary, to order that samples be taken : Mast India Co. T. Kynasion, 3 Bli. 153 ; Sussell v. Cowley, 1 Web. Pat. Cas. 457 ; Patent Type Founding Company v.' Walter, Joh. Eep. 727 ; Order, p. 301 ; Daven- port V. Jepson, 1 New Rep. 308 ; Order, p. 300 ; Singer Manufacturing Co. v. Wilsm-, 13 AV. R. 560 ; 5 New Rep. 505 ; Order, p. 301 ; Needham v. Oxley, 11 W. E. 852 ; Order, p. 301 ; Batley v. Kynock, L. R. 19 Bq. 90 ; Jud. Rules, Order 52, rule 3. But the Court will not order inspection of a deft's works and machinery unless satisfied that the inspection is essential to the pit's case : Batley v. Kynock, supra. Desteuction oe Deliveey of Articles. All articles in possession of the deft made in violation of the patent may be ordered to be delivered up or destroyed : Tangye v. Stott, 14 W. R. 386 ; Betts V. De Vitre, 34 L. J. (Ch.) 289. Bxit where a patent for a combination of machinery only has been infringed, the Court will order the machines to he marked, not destroyed or broken : Need- ham V. Oxley (V.-C. W.), 11 W. R. 852 ; Order, p. 301. Account of Profits — Damages. The right to an account of profits in respect of articles manufactured or sold in violation of a patent privilege, is incident to the right to an injunction to restrain future infringements : Kerr, 435. The account is of all profits which the deft has actually made by the infringe- ment of the patent for six years prior to filing the hill : Crossley v. Derby Gaslight Co., 4 L. J. (N.S.) Oh. 25. But if the pit be an assignee, the account will be taken from the date of the registration of the assignment : Ellwood v. Christy, 18 C. B. (N.S.) 494 ; cited in Kerr, 436. An inquiry as to damages may be directed under the 21 & 22 Vict. c. 27. And the form of inquiry in patent cases as to damages is, " what damage the pit has sustained," and not "what damage, if any": Davenport v. Rylands, L. R. 1 Bq. 302, 308 ; Order, p. 300. And the Court may grant the inquiry as to damages, although the patent has expired during the litigation : S. C. An account of profits has been directed against the manufacturer infringing the patent, and an inquiry as to damage against the person using the patent article : Penn v. Bihby, L. B. 3 Bq. 308. The rule that upon a decree against a party for the infringement of a patent the patentee is not entitled (under the 21 & 22 Vict. c. 27, ss. 2, 5) to have both an Digitized by Microsoft® INJUNCTIONS. 307 account of profits and an inquiry into damages is now established, and applies to every case of infringement : De Vitre v. Betts, L. R. 5 H. L. 1 ; varying S. 0. L. E. 3 Ch. 429 ; Order, p. 301. When a pit neglected to ask for damages until a jury trying the issues had given its verdict, the Court exercised its option by directing an account of profits : Needham v. Oodey, 11 W. E. 852 ; Order, p. 301. The deft must, if required to do so for the purposes of the account or the in- quiry as to damages, set out the price, and profit, and names of the purchasers of the patent articles, and the names and addresses of all persons from whom he has received sums of money in respect of royalties or licences : Kerr, 436 ; Bowe V. McKeman, 30 Beav. 547 ; Delarue v. Dickenson, 3 K. & J. 388 ; Crossley v. Stewart, 1 New Eep. 426. Costs in Patent Suits. The judge may certify on the record that the validity of the letters patent came in question ; and the record with such certificate being given in evidence in any suit or action for infringing the letters patent, shall entitle the pit in any such suit or action, on obtaining a decree, to his full costs, charges, and expenses, as between solicitor and client, unless the judge shall certify that he ought not to have such full costs : 15 & 16 Vict. c. 83, s. 43 ; Davenport v. Eylands, L. E. 1 Eq. 302 ; Order, p. 300. i But the Act does not apply to the costs of a first trial (whether at law or of issues of fact in the Court of Chancery), but only to the costs of a second trial : Penn v. Bibby, L. E, 3 Bq. 308. Trial of Issues as to Patent. The pit in any action must deliver with his declaration particulars of the breaches complained of in the said action, and the deft must deliver to the pit particulars of any objections to the validity of the patent on which he means to rely at the trial : 15 & 16 Vict. c. 83, s. 41. See Perry v. Mitchell, Web. Pat. Cas. 269 ; Morgan v. Fuller, L. E. 2 Eq. 297 ; Needham v. Oxley, 1 H. & M. 248 ; Talbot v. La Boche, 15 C. B. 310 ; BatleyM. Eynoch (No. 2), L. E. 19 Eq. 229. At the trial of such action no evidence shall be allowed to be given in support of any alleged infringement, or of any objection impeaching the validity of the letters patent, which shall not be contained in such particulars : 15 & 16 Vict. c. 83, s. 41. The place or places at or in which, and in what manner the invention is alleged to have been used or published prior to the date of the letters patent, must be stated in the particulars, and by the deft : Ibid. And the deft's objections must state with precision the case which the pit has to meet : Daw v. Eley, L. E. 1 Eq. 38 ; Penn v. BiVby, Ibid. 548. But the deft will not be required to deliver particulars of his objections to the patent where replication has been filed, and the Court has refused to direct issues : Bovill V. Goodier, L. E. 1 Eq. 35. Where the patent is impeached on the ground of want of novelty and prior user of the invention, the deft will not be allowed in the course of the hearing before the Court, without a jury, to introduce evidence of prior user not disclosed by the particulars of objection, although such evidence may have only come to Digitized by Microsoft® ^ ^ 308 INJUNCTIONS. his knowledge since the delivery of the particulars of objection. Semble that the Court will give the deft leave, on short notice of motion, to amend his particulars of objection so as to introduce such newly-discovered evidence : Daw v. Eley L. E. 1 Eq. 38 ; Bovill v. Smith, L. R. 2 Eq. 459. See also as to order for amendment of deft's objection : Penn v. Bibby, L. R. 1 Eq. 548. A deft will not be allowed to add a totally new issue of fact not in any way suggested by his answer to the issues already directed for triaL Semble, that in order to raise such new issue the deft must file a supplemental answer : Morgan V. Fuller (1), L. R. 2 Eq. 296. In the absence of special circumstances, the ordinary issues in a patent suit will be tried before the Court itself without a jury : Me Patent Marine Company V. Ohadburn, L. E. 16 Eq. 447. The practice prescribed by the 15 & 16 Vict. c. 83, s. 41, with respect to actions at law for the infringement of letters patent, ought to be followed in Chancery suits as nearly as possible: Finnegan v. James, L. E. 19 Eq. 72. For form of issue in patent case, see Young v. Fernie, 1 De G. J. & S. 353 ■ Order, p. 299 ; and as to issues generally, a/nte, p. 41. TRADE-MARKS. Newspaper — Injunction. Let the Defts, their servants, workmen, and agents, be restrained until, &c., from printing, publishing, or continuing to print or publish any newspaper or other periodical paper with or under the name or style of The Penny Bell's Life and Sporting News ; or with or under any name or style of which the name, style, or words of BelTs Life shall form a part or in any way occur ; and from using the said name, style, or title of Bell's Life by way of name, style, or title to any news- paper or periodical without the licence or consent of the Pit. Clement V. Maddich, 1 Giff. 98. Newspaper — Injunction — Undertaking to change Name. Let a perpetual injunction be awarded against the Deft to restrain him, his servants, agents, and workmen, from printing, publishing, or continuing to print or publish, any newspaper or other periodical paper with or under the name Or style of The Iron Trade Circular, or with or under any name or style of which the words Iron Trade Circu- lar form part, in such a manner as to differ only colourably from the name or style of the Pit's newspaper in the Pit's bill mentioned as appearing thereon, as in the said bill mentioned, or otherwise so con- trived as to lead the public to believe that the Deft's newspaper in the said bill mentioned is the same as the Pit's said newspaper, or from applying any such name or style as aforesaid to any newspaper or periodical publication without the consent of the Pit. And the Df:ft, by his counsel, undertaking to change the title of his said Digitized by Microsoft® INJUXCTIONS. 309 newspaper to Griffithi' Iron Trade Circular, stay all furtlier proceedings. No costs on either side. Cornsr. Griffiths (V.-C. M.), May 3, 1873. Trade-marh — Steel Bars — Injunction. Let the injunction granted in this cause on the — day of — to restrain the Defis and each of them, their and each {>f their servants and agents, until, &c., from stamping or impressing, or causing to he stamped or impressed, oa any hars of steel or other pieces of steel the names Crowley Millington, or either of them, or any of the names or marks, or any matei ial part of any of the marks in the Pits' bill men- tioned to be stamped by the Pits on bteel manufactured by the Pits, and from manufacturing or causing to be manufactured, and also from sell- ing or contracting to sell, any bars of steel or other pieces of steel stamped with any of the said names or marks, or any material part of any of the said marks, or any name or mark in imitation of any of the said names, or any material part of any of the said marks, be made perpetual against the said Defts respectively and their respective ser- vants and agents. Millington v. Fox, 3 My. & Cr. 338. Song — Title-page — Injunction. Let an injunction be awarded against the Defts Charles Sheard and James Atken to restrain them, their servants, and agents until, &c., from printing, publishing, selling, exposing for sale, or otherwise dis- posing of the song ' Minnie Dale,' of any copy or copies thereof, or any other publication containing a colourable imitation of the name, title, or title-page of the Pit's said song, and from otherwise pirating the said song ' Minnie,' or infringing the copyright of the Pits therein. Chappdl V. Slieard, 2 K. & J. 122. Trade-mark — Figure — Injunction. Let an injunction be awarded to restrain the Defts, their agents, servants and workmen, from and after the 31st May, 1865, and until, &o., from selling or otherwise disposing of or exposing for sale any packages of mustard to which the Pits' trade-mark, or the figure of an ox, or any other figure or mark in imitation of the Pits' trade-mark, or any label containing any such imitative mark or figure, has been or shall be affixed, and also from printing or circulating, or causing to be printed or circulated, any notices or other documents containing such imitative mark. Let so much of the Pits' hill as seeks an account against the Defts stand dismissed. Let the Defts Henry Taylor and John Taylor pay to the Pits Eobert Harrison and Jacob Harrison their costs of suit, to be taxed, &o. Harrison v. Taylor (V.-C. W.), May 1, 1865. Digitized by Microsoft® 310 INJUNCTIONS. Trade-mark — Liquorice — Injunction. Let the Defts, their agents and servants, be restrained until, &c., from stamping or marking, or causing or permitting to be stamped or marked, upon any liquorice manufactured or prepared by them the word ' Anatolia,' or from colourably using any other word, and also from selling or offering for sale any liquorice marked Anatolia, not being of the Pits' manufacture ; and also from selling or offering for sale any liquorice or preparation of liquorice not being of the Pits' manufacture, so as to represent that the same has been manufactured by the Pits. McAndrew v. Bassett (V.-O. W.), 33 L. J. (Ch.) 561. Trade-marh — Wines — Injunction. Let the Defts be restrained until, &c., from affixing or causing to be afBxed to any casks of wine shipped to their orders the brand or mark of a crown and the word " Seixo," or any other combination of marks or words so contrived as by colourable imitation or otherwise to repre- sent the marks or brands of the Fit, and from employing any marks or words which should be so contrived as to represent or induce the belief that such wines were Crown Seixo, or the produce of the Quinta do Seixo,. 01- otherwise using the word Seixo without clearly distin- guishing the same from the wine produced by the Quinta do Seixo. Seixo V. Provezende (V.-C. W.), Jan. 17, 1865; L. E. 1 Ch. 192. Trade-marh — Glenfield Starch — Injunction. Let an injunction be awarded to restrain the respondent (the Deft), his servants and agents, &c., from using the word " Glenfield " in or upon any labels affixed to packets of starch manufactured by or for him, and from in any other way representing the starch manufactured by or for him to be " Glenfield Starch,'' and from selling or causing the same to be sold as " Glenfield Starch," and from doing any act or thing to induce the belief that starch manufactured by or for him is " Glenfield Starch," or starch manufactured by the Appellants.— Ee- spondent to pay costs of Appellants in the Courts below. Wotherspoon V. Gurrie, L. E. 5 H. L. 509, 523. Trade-marh — Eureka Shirts — Injunction. Let a perpetual injunction be awarded against the Defts to restrain them, their agents, servants, and workmen, from applying the mark or title " Eureka" to any shirts manufactured by the Defts, or to any shirts sold by them, unless such shirts be manufactured by the Pit, and from selling or disposing of any shirts already marked with the mark or title "Eureka," unless such mark shall have been applied by the Pit Digitized by Microsoft® INJDNCTIONS. 311 and with. Ms sanction, and from issuing any boxes or packages con- taining Bhirts upon or in whicli the mark or title " Eureka " shall he applied to shirts not of the Pit's manufacture. Let an account be taken of the profits made by the Defts in manufacturing and selling and in selling shirts under the mark or title of " Eureka" since the 22nd February, 1870, the date of the filing of the Pits bill. Defts to pay to Pit the amount certified to be due within fourteen days after date of certificate. Directions for payment by Defts of the cost of suit other than the costs of the appeal, and for return of appeal deposit. Ford v. Foster, L. E. 7 Ch. 61] . Teabe-marks. " In every case in any suit at law or in equity against any person for forging or counterfeiting any trade-mark, or for fraudulently applying any trade-mark to any chattel or article, or for selling, exposing for sale, or uttering any chattel or article with any trade-mark falsely or wrongly applied thereto, or with any forged or counterfeit trade-mark applied thereto, or for preventing the repetition or con- tinuance of any such wrongful act, or the committal of any similar act, in which the pit shall obtain a judgment or decree against the deft, the Court shall have power to direct every such chattel and article to be destroyed or otherwise dis- posed of; and in every such suit in a Court of law the Court shall or may upon giving judgment for the pit award a writ of injuDction or Injunctions to the deft commanding him to forbear from committing, and not by himself or otherwise to repeat or commit, any offence or wrongful act of the like nature as that of which he shall or may have been convicted by such judgment, and any disobedience of any such writ of injunction or injunctions shall be punished as a contempt of Court ; and in every such suit at law or in equity it shall be lawful for the Court or a judge thereof to make such order as such Court or judge shall think fit for the inspection of every or any manufacture or process carried on by the deft in which any such forged or counterfeit trade-mark, or any such trade-mark as aforesaid, shall be alleged to be used or applied as aforesaid, and of every or any chattel, article, and thing in the possession or power of the deft used or intended to be or capable of being used for producing or making any forged or counterfeit trade-mark alleged to be forged or counterfeit, or for falsely or wrongfully applying any trade-mark ; and any person who shall refuse or neglect to obey any such order shall be guilty of a contempt of Court " : ^5 & 26 Vict. c. 88, s. 21. No man is allowed to use names, marks, letters, or other indicia by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person : Ferry v. Truefitt, 6 Beav. 73. The name of the manufacturer, or any symbol or emblem, however unmeaning in itself, or any system of numbers, may become the subject of a trade-mark : Leather Cloth Co. v. American Cloth Co., 11 H. L. C. 523, per Lord Kingsdown ; see also Young v. Macrae, 9 Jur. (N.S.) 822 ; Ainsworth v. Walmsley, L. E. 1 Eq. 518 ; Wotherspoon v. Currie, L. E. 5 H. L. 508 ; Order, p. 310 ; Ford v. Foster, L. E. 7 Ch. 611 ; Order, p. 310; Eirst v. JDenham, L. E. 14 Eq. 542. And the name of the place of origin from which an article has been produced may be the subject of a trade-mark : McAndrew v. Bassett, 33 L. J. (Ch.) 561 ; Order, p. 310 ; Wotherspoon v. Carrie, L. R. 5 H. L. 508 ; Eadde v. Norman, L. E. 14 Eq. 348. Digitized by Microsoft® 312 INJUNCTIONS. And a fancy name which designates a particular kind of article may be in general use in price lists which circulate between manufacturers and retail dealers without prejudicing the right of the inventor to the exclusive use of the fancy name as a trade-mark in the sale of the article to the public : Ford v. Foster, L. R. 7 Ch. 611. It must he made out that the person sought to be restrained is selling his own goods to persons who purchase them as being the goods of another : Burgess v. Burgess, 3 De G. M. & Gr. 904 ; Graft v. Day, 7 Beav. 85 ; Farina v. Silverlock, 1 K. & J. 517 ; 6 De a. M. & G. 214 ; Welch v. Knott, 4 K. & J. 747 ; 8&ixo v. Provezende, L. R. 1 Ch. 192 ; Order p. 310. An injunction will be granted against the use of a trade-mark although such use may originally have taken place in ignorance of the rights of the owner : MilUngton v. Fox, 3 My. & Cr. 338 ; Order, p. 309 ; see also Francks v. Weaver, 10 Beav. 297 ; McAndrew v. Bassett, 10 Jur. (N.S.) 496. Where a trade mark is not actually copied, the existence of a fraudulent inten- tion is a necessary element in the consideration of the case. The party com- plained of must he proved to have done tlie act with the frauduleut design of passing off his own goods as those of the pit: Wotherspoon v. Currie, L. R. 5 H. L. 508. It is not necessary, however, to shew an exact resemblance between the original and the counterfeit. It is sufficient if there is sufficient resemblance as will mislead an unwary purchaser : S. C. If a trade-mark represents an article as protected by a patent, when, in fact, it is not so protected, such a statement prima facie amounts to a misrepresentation of an important fact, which would disentitle the owner of the trade-mark to relief in a Court of Equity : Leather Cloth Co. v. American Cloth Co., 11 H. L. C. 523 ; per Lord Kingsdown ; see also Perry v. IVuefitt, 6 Beav. 73 ; Bidding v. How, 8 Sim. 477. But if a patent had existed, but since expired, and the term is not used as indicating the existing protection of a patent, but as the name by which the article has become known, misrepresentation would not be implied : Leather Cloth Co. V. American Cloth Co., 11 H. L. C. 523 ; see also Edelsfen v. Vick, 11 I-Iare, 87. By a recent Act, after the 1st July, 1876, a person shall not be entitled to institute any proceeding to prevent the infringement of any trade-mark as defined by the Act until registration in pursuance of the Act : 38 & 39 Vict, c. 91, s. 1. And the trade-mark must be tegistered as belonging to particular goods or classes of goods, and registration of a trade-mark is to be deemed to be equivalent to public use of such mark : 38 & 39 Vict. c. 91, s. 2. For the purposes of the Act a trade-mark consists of one or more of the follow- ing essential' particulars ; that is to say, a name of an individual or firm printed, impressed, or woven in some particular and distinctive manner; or a written signature, or copy of a written signature, of an individual or firm ; or a distinctive device, mark, heading, label, or ticket ; and there may be added to any one or more of the said particulars any letters, words, or figures, or combination of letters, words, or figures ; also any special and distinctive word or words, or combination of flgurt'3 or letters used as a trade-mark before the passing of this Act, may be registered us such under this Act : 38 & 39 Vict. c. 91, s. 10. See Tkade- Marks Rkqistration Act, 1875, ^os*, p. 742. Digitized by Microsoft® INJUNCTIONS. 313 Account of Profits — Damages. A man whose trade-mark has been taken is entitled to an account of profits : Burgess v. Hills, 26 Beav. 2M ; Burgess v. Eatchey, 26 Beav. 249 ; Gartier v. Carlisle, 31 Beav. 292 ; Harrison v. Taylor, 11 Jur. (N.S.) 408. But where a person innocently sells goods bearing a spurious trade-mark, although he will be restrained by injunction he will not be made to account : Moet V. Couston, 33 Beav. 578. A foreigner has a remedy by suit in this country for an injunction and account of profits, although the goods may not have been manufactured or sold in this country : Collins Co. V. Brmim, 3 K. & J. 423. On an inquiry whether any and what damage has accrued to the pits from the unlawful use by the deft of a trade-mark, the onus lies upon the pit to prove special damage by loss of custom or otherwise : Leather Cloth Co. v. Hirsch- field, L. E. 1 Eq. 299. If a trade-mark is not only a trade-mark properly .so called, but contains state- ments materially affecting the value of the goods to which it is affixed, these statements must be judged like statements made in separate labels or advertise- ments : Leather Cloth Co. v. American Cloth Co., 11 H. L. 0. 523, 543, per Lord Kingsdown. A publisher or author has either in the title of his work, or in the application of his name to the work, or in the particular marks which designate it, a species of pro- j;erty similar to that which a trader has in a trade-mark : Kerr, 478 ; Lord Byron v. Johnstone, 2 Mer. 29; Seeley v. Fisher, 11 Sim. 581; Clement v. MaddicJc, 1 Giff. 98 ; Chappellv. Sheard, 2 K. & J. 117 ; Ohappell v. Davidson, 2 K. & J. 123 ; Maxwell v. Hogg, L. R. 2 Oh. 307. As to the mode of taking the accounts see Cartier v, Carlisle, 31 Beav. 292 ; Dent V. Turpin, 2 J. & H. 139 ; Leather Cloth Co. v. Eirschfidd, L. R. 1 Eq. 299. CONFIDENTIAL COMMUNICATIONS, &c. Solicitor — Confidential Information — Injunction. Let an injunction be awarded until further order to restrain the Pits Daniel Davies and Kohert Davies from employing Eichard Humphrey- Jones and John Francis Belwood Fay, solicitors of this Court, or either of them, as their solicitor or solicitors in this suit ; and also to restrain the said E. H. Jones and J. F. B. Fay from acting as solicitor or solicitors for the said Pits in this suit ; and also to restrain the said E. H. Jones from communicating to the said Pits D. Davies and E. Davies, or either of them, their or his counsel, clerks, attorneys, or agents, any information relating to the agreements ia the pleadings men- tioned which came to the knowledge of the said E. H. Jones as solicitor to the Deft Amelia Marie Clough. Davies v. Clough, 8 Sim. 262, 269. Trader — Becij>e — Injunction, Let an injunction be awarded to restrain the Deft Moat, his agents, servants, and workmen, until, &c., from selling or causing or pro- curing to be sold under the title or designation of ' Morison's Universal Digitized by Microsoft® 314 INJUNCTIONS. Medicine ' or of ' Morison's Vegetable Universal Medicine,' any medi- cine made or manufactured by him the said Deft, or by or under his order or direction, and also to restrain the Deft, his agents, servants, and workmen, from making or compounding any medicines according to the secret recipe or prescription in the bill mentioned, and from in any manner using the said secret recipe or prescription of or for compounding the said medicines or any part thereof. Morison V. Moat, 9 Hare, 241. Confidential Communications — Letters — Manu scripts. The right and property of an author or composer of any work, whether of literature, art, or science, in any such work unpublished, entitles the owner to withhold the same altogether from the knowledge of others : Prince Albert v. Strange, 1 Mao. & G. 25 ; Order, p. 294 ; Tipping v. Olark, 2 Hare, 393. And the Court will interfere by injunction to prevent a title being set up arising out of a violation of such right : Prince Albert v. Strange, supra ; Gee V. Pritchard, 2 Sw. 402. A man by sending a letter to another gives him a right to read and keep the letter, ^but does not give him the right to publish its contents to the world: Kerr, 187 ; Percival v. Phipps, 2 Yes. & B. 19,29 ; Palin v. Gather cole, 1 Coll. 565. The right to an injunction in the above cases does not depend solely upon pro- perty, but has its foundation in a bireach of trust, confldence, or contract: see observations of Oottenham, L.O., in Prince Albert v. Strange, supra ; Abemethy v. Hutchinson, 3 L. J. (Ch.) 209. The Court will restrain a solicitor employed by a client to conclnde an agree- ment from acting, as the solicitor of a person who had filed a bill to set aside the agreement and from communicating any information relating to it : Davies v. aough, 8 Sim. 262, 269 ; Order, p. 313. i The injunctipn goes to restrain the client from employing the solicitor as well as -the solicitor from being employed : Ibid. : Biggs v. Head, Sau. & So. 335 ; Hobhouse v. Hamilton, Ibid. 359, n. The Court will also restrain a solicitor from communicating to a person suing a former client documents or matters of evidence in possession of the solicitor in respect of such employment : Lewis v. Smith, 1 Mac. & G. 417. The Court will not interfere where the work, the publication of which is sought to be restrained, is of an injurious tendency : Southey v. Sherwood, 2 Mer. 435. The Court will not restrain a person from divulging a trade secret : Newberry v. Jamles, 2 Mer. 451 ; Williams v. Williams, 3 Mer. 160. But the Court will restrain such person if he has entered into a contract, either express or implied, upon the subject : Morison v. Moat, 9 Hare, 241 ; 21 L. J. 248; Order,, p. 313. I INJUNCTIONS AGAINST EAILWAY AND OTHER COMPANIES AND CORPORATIONS. Mailway Company — Oompulsory Purchase of whole of Hospital — Injunction. Let an injunction be awarded against the Defts the Charing Cross Railway Company to restrain them, their servants and agents, until Digitized by Microsoft® INJUNCTIONS. 315 the hearing of this cause or further order, from issuing their warrant for summoning a jury for all or any of the purposes in the notice dated the 22nd of January, 1861, referred to in the Pit's hill men- tioned ; and also from taking any proceedings whatever for acquiring compulsorily the portion only of St. Thomas' Hospital referred to in the said notice and in the Pit's bill mentioned. St. Thomas' Hospital V. Charing Cross By., 1 J. & H. 400. Bailway Compcmy — Nursery Garden — Whole of Land to be taken — Let an injunction be awarded against the Defts the Metropolitan District Eailway Company to restrain them, their attorneys, contrac- tors, servants, and agents, until, &c., from entering upon or taking possession of, and from proceeding to construct their railway or works upon any part of the Pits' premises in the hill mentioned, until they have paid to the Pits or properly secured the amount of the purchase- money or compensation payable in respect of the whole of the said premises, and from taking any proceedings in pursuance of the notice dated the -^ day of — in the bill mentioned, or otherwise, to ascer- tain the purchase-money or compensation payable in respect of part only of the said premises. Salter v. Metropolitan District By. Co., ii. R. 9 Eq. 432. Bailway Company — Land not bond fide required for Undertaking — Injunction. Let an injunction be awarded against the Defts the Manchester and Leeds Eailway Company to restrain them, their solicitors and agents, until the further order of the Court, from proceeding before a jury to assess the value of and take under the powers of the Acts of Parlia- ment in the pleadings mentioned, any larger or other part of the land in the pleadings mentioned than will be required to enable the said Defts to form a slope next to the said railway at the rate of two feet horizontal to one foot perpendicular, besides twelve feet in breadth, along the whole length of the said field. Webb v. Manchester and Leeds By. Co., 4 My. & Cr. 116. Bailway Company — Station to be erected — Injunction. Let the Defts the Salisbury and Dorset Junction Eailway Company within three calendar months from the date of this decree make and erect a station at Alderholt,' in the parish of Cranbourne, in the county of Dorset, in the Pit's hill mentioned. Let the Defts the Salisbury and Dorset Junction Eailway Company and the London and South "Western Eailway Company be restrained Digitized by Microsoft® 316 INJUNCTIONS. until further order from allowing the said Salisbury and Dorset Junc- tion Eailway to remain without a station for the reception, transmis- sion, egress, and ingress of passengers and goods along their said line of railway according to the terms of the covenant contained in the indenture dated, &c., in the Pit's hill mentioned. But the operation of the said injunction is to he suspended until after the expiration of three calendar months from the date of this decree. Let the Defts the companies pay to the Pit his costs of suit, to he taxed, &c. Churchill V. Salisburtj and Dorset By. Go. (V.-C. B.), March 4, 1875. Bailway Company — GoTwpensation to Owners — Injimction. Let an injunction be awarded to restrain the Defts the East and West India Docks and Birmingham Junction Eailway, their servants, workmen, and agents, from keeping possession of the land and premises in the Pits' bill mentioned and described, or any part thereof, and from prosecuting the works of the said intended railway upon the said land and premises, until the value of the rights and interests of the Pits therein have been ascertained and due payment of such value made or secured to the Pits in manner by the companies' respective Acts of Parliament required, or until the said Defts shall have fully answered the Pits' bill, or until further order. Banhen v. East India Bocks, 12 Beav. 298. Bailway Company — Compensation to Ovmers — Injunction. Let the Defts the East London Eailway Company, their servants, agents, and workmen, be restrained until, &c., from digging or break- ing up the soil of any part of the strips of lands situate, &c., in the Pit's bill mentioned, and from excavating any tunnel or other under- ground workings through or in any part of the same, and from re- moving or carrying away from the said lands any sand or gravel, and from erecting or constructing any machinery, apparatus, or other matter or thing on any part of the said lands, or otherwise committing or doing any waste or damage thereon, or in or to the ground or soil thereof, and from further disturbing, intermeddling, or interfering with the possession or enjoyment of any part of the said land, until the compensation payable to the Pit in respect of his right in the soil thereof has been ascertained and paid or secured in accordance with the provisions of the East London Eailway Act, 1865, and the Acts incorporated therewith. Golebrooke v. East London By. Co. (M. R.), April, 10, 1875. Digitized by Microsoft® INJUNCTIONS. RIT Bailway Company — Undertaking to treat — Motion to stand over. Upon motion for an injunction, &o., and the Defts the railway com- pany by their counsel undertaking to serve the Pits on or before the — day of — with notice to treat under the Lands Clauses Consolida- tion Act, 1845, for the purchase of the land in the bill mentioned, and forthwith to apply to the Board of Trade for the appointment of a valuer, and also undertaking within forty-eight hours after the date of the certificate of the said board to deposit in the bank under the provi- sions of the said Act the amount to be mentioned in the certificate of the said board, the Court doth not think fit to make any order upon the said motion, except that the costs thereof be costs in the cause. Wooldridge v. Byde and Newport By. Co. (M. E.), Oct. 14, 1874. Bailway Company — Injury to Adjoining House — Inquiry as to Damages. Let an inquiry be made what sum of money ought to be paid by the Great Eastern Eailway Company to the Pits in respect of the injury done to the Pits by the said company having commenced operations to pull down the messuage 24 High Street, Shoreditch, in the pleadings mentioned, and to dig, excavate, and remove the ground or soil on the south side of the said messuage, without taking in the first instance all necessary precautions to prevent injury to the Pits' premises in the bill mentioned. Defts to pay within a" month from date of certificate the amount certified to be due. — Directions for taxation and payment of costs. Biscoe v. Great Eastern By. Co., L. E. 16 Eq. 636. Bailway Company — Begatta — Injunction. Let a perpetual injunction be awarded against the Defts the North Stafibrdshire Eailway Company to restrain them, their tenants, of&cers, servants, and agents, and every of them, from holding, keep- ing, or celebrating any regatta or other public amusements on the lake or reservoir called or known by the name of the Eudyard Eeser- voir, situate in Eudyard Vale, near Leek, in the county of Stafibrd, in the pleadings mentioned ; and from using or employing any steam- boats or other boats or vessels on or upon the said lake or reservoir for the purpose of any such regatta or other public amusements ; and also to restrain the said Defts, their tenants, officers, servants, and agents, from letting out boats on the said lake or reservoir for hire, and from using the said reservoir for any other purpose to the injury or preju- dice of the Pits, or for any other purpose than the purposes mentioned in the Act intituled " An Act to enable the Company of Proprietors, &o. to make a Navigable Canal," &c. Bostock v. North Staffordshire By. Co., 3 Sm. & G. 283. Digitized by Microsoft® 318 INJUNCTIONS. Railway Gompany-^Arreara of Dividends — Injunction. Let an injunction be awarded to restrain the Eastern Union Eail- way Company and Sir Samuel Bignold, T. B., &o., or other the direc- tors of the said company for the time being, until the hearing of this cause or further order, from declaring or paying any dividend on the ordinary shares or stock of the said company without first paying or satisfying the arrears of dividends due, as in the bill mentioned , at the time of the passing of the Eastern Union Bail way Amendment Act, 1853, in respect of the preference stock or shares in the bill men- tioned. And this order to be without prejudice to any question as to the arrears of dividends between the time of the passing of the said Act and of the redemption of such preference stock or shares. Sturge V. Eastern Union By. Go., 7 De G. M. & Q. 168, 169. Bailway Gdmpany — Extension of Bailway — Expenses — Injunction. Lb:t an injunction be awarded to restrain the Defts G. E., H. G. B., &o., and the Defts the Oxford, Worcester, and Wolverhampton Bail- way Company, until, &c., from using or applying the funds and moneys of the said company for or towards the payment of any 'COsts, charges, or expenses of or relating to, or in any manner occasioned by the scheme for an extension railway in the Pits' bill mentioned, or the soliciting or promotion thereof, or the bill introduced or about to be introduced into Parliament as in the Pits' bill mentioned, or in any- wise connected therewith, or from or by reason of any other bill or scheme for the like purpose, and in particular from entering into any contracts, agreements, or engagements in the name or on behalf of the said railway company with reference to the proposed undertaking, or any other scheme for the like purpose, or the promotion thereof, or with reference to the said bill, or any other bill for the like purpose, or the soliciting or promotion of any such bill ; And also from excluding S. B., E. P. B., T. B., E. P., H. S., and T. W., or any of them, or any other of the Great Western Railway Company's directors of the Oxford, Worcester, and Wolverhampton Eailway Company, from full and free access to and inspection of, and obtaining full and complete information touching and concerning all agreements, contracts, reports, ' correspondence, proceedings, acts, matters, and things made, done, received-, passed, entered into, or had by any of the directors, or officers, servants, or agents of the said company relating to or concerning the said proposed scheme or under- taking, or the solicitation or promotion of the said bill or any matter preliminary thereto or connected therewith ; and also from excluding the said S. B., F. P. B., &c., or any of them, or any other of the Great Western directors of the said Oxford, Worcester, and Wolverhampton Digitized by Microsoft® INJUNCTIONS. 319 Eailway Company from their full and free participation in, , and management of the affairs of the said Oxford, Worcester, and Wolver- hampton Eail-way Company, and from fuU and free access to all hooks and papers and proceedings of the same company, and of the officers, servants, and agents thereof, and from receiving fall information in all respects as to the resolutions, deliberations, and proceedings of all and every the committees of the same hoard of directors appointed and to be appointed. Great Western By. Co. v. Bushout, 5 De G. & Sm. 290. Bailway Company — Costs of Suit not instituted hy it — Injunction. Let an injunction he awarded against the Defts to restrain them and the Dublin Trunk Connecting Eailvsray Company, their servants and agents, until, &c., from paying or applying any moneys or funds of or belonging to the said company, which are now in their or any of their hands, or under their or any of their control, or which shall or may be received by or come into their hands, or under their or any of their control, for or towards the costs, or costs, charges, and ex- penses of the Pits of or in the suit of W. v. 0. in the bill men- tioned. Kemaghan v. Williams, L. E. 6 Eq. 288. Bailway Company — Capital Account wrongly charged — Injunction. The Court being of opinion that one moiety of the charges for the directors and auditors and office expenses has been improperly charged on former occasions of dividends being declared to capital account, and that interest on the difference between £449,3:30 and £1,331,320 debentures is not, nor is any part thereof, properly chargeable to capital account, and that the statement and account issued by the directors this day is founded upon accounts making the same charges to capital account, and the Pit undertaking, &c.. Let an injunction be awarded against the Defts the Metropolitan Eailway Company to restrain them and the Defts, directors of the said company, from declaring or paying any dividend except so far as the profits and other income of the said company may be applicable to such dividend, regard being had to the provisions of the special Acts authorizing the several undertakings of the said company, and those of the Companies Clauses Consolidation Act, 1845. Bloxam v. Metropolitan By. Co., L. E. 3 Ch. 337, 346. Bailway Companies — Bunning of Trains — Inquiries — Injunction. The Court being of opinion that the Pit is entitled in the first mentioned ■ suit to an injunction as prayed against the Defts the railway companies, with reference to the running of trains over his Digitized by Microsoft® 320 INJUNCTIONS. land, or otherwise using the same for their purposes without his con- sent, an4 the Pit submitting in lieu of such injunction to have paid to him the present value of the land recovered by him in ejectment, such value to be ascertained by the Court, including what is proper to be paid for mesne profits in respect of the user of such land by the Defts the railway companies for six years before the filing of the bill in the first-mentioned suit up to the settlement of the amount of such mesne profits as hereinafter, and the alternative being ofiered by the Court to the Defts the railway companies either to have such an injunction as aforesaid granted, or to pay to the Pit such value and mesne profits as aforesaid, and the Defts the railway companies preferring the latter of such alternatives : 1. Let an inquiry be made what is the present value of the land of the Pit recovered by him in the said ejectment. 2. An inquiry what further sum is proper to be allowed and paid to the Pit as and for mesne profits in respect of the user by the Defts the railway com- panies, or either of them, of the Pit's land since the — day of — , being the commencement of six years next preceding the filing of the Pit's bill in the said first-mentioned suit. Directions for payment of amount certified. Judgment obtained by Pit against the Defts the Great Western Kailway Company to stand as a security for amount due in respect of such value of land and mesne profits. Upon pay- ment by the Great Western and Brentford Eailway Company to the Pit J. S. of the amount certified to be due, the Pit and all proper parties, at the expense of the Defts, the said company, to convey the said land and vacate the said judgment. Let an injunction be awarded in Ihe second-mentioned suit to restrain the Defts the said company from further proceeding in the matter of the inquiry before the jury in the bill referred to. — ^Directions for payment of costs. Stretton v. Great Western By. Go. (V.-C. B.), July 21, 1870. Bailway Company — Manufacture of Locomotive or Rolling Stock for Sale or Hire — Injunction. Let an injunction be awarded against the London and North Western Eailway Company to restrain them, their directors, servants, and agents, until, &c., from manufacturing locomotive engines or other rolling stock for sale or hire, or for any other purpose except for the purpose of being used by the London and North Western Eailway Company upon any railway worked and used by them or some part thereof; and also from letting for hire any locomotive engines or other rolling stock except for the purposes of the traffic on another railway in extraordinary emergencies ; and from repairing any locomotive engines or other rolling stock not belonging to the London and North Digitized by Microsoft® INJUNCTIONS. 321 Western Railway Company except when required by the exigencies of their traffic. But this injunction is not to extend to prevent the London and North "Western Eailway Company from occasionally letting for hire locomotive engines or other rolling stock manufactured, or purchased, or otherwise acquired by them for their own use to contractors work- ing on the company's line of railway, or on any line worked by the London and North Western Eailway Company, or to the proprietors of collieries and works adjoining their railway, or any railway worked by them. Nor is this injunction to extend to prevent the said railway company from building locomotive engines and other rolling stock for and selling them to the Manchester and South Junction and Altrin- cham Eailway Company for use on the line of railway of the last men- tioned company. Defts the company to pay costs of suit. — Liberty to apply. The Attorney-General v. London and North Western Bailway Oomjpany (M. E.), Dec. 16, 1875. Corporation — Special Lease — Injunction. Declare that the Defts, the mayor, aldermen, and burgesses of the borough of Great Yarmouth, are not authorized under the provisions of the Act made and passed, &c., to grant the lease in question to the Deft Charles Moore, in consideration of such fine, at such rent, and for such term as are in the pleadings mentioned. Let an injunction be awarded to restrain the said Deft Charles Moore from accepting, and the Defts, the mayor, aldermen and burgesses of Yarmouth from execut- ing, the said lease. Att.-Gen. v. Corporation of Yarmouth, 24 Beav. 625. Corporation — Charity — Renewal of Leases and Fines — Injunction. Let an injunction be awarded to restrain the Defts the master and brethren of the Hospital of St. Cross, near Winchester, and the Deft Francis Earl of Guildford from making any further leases of any part of the possessions, hereditaments, and property of the said hospital, and from renewing any subsisting leases of any part thereof upon fines, and from taking or receiving any sum in respect of any fines to be taken upon any grants by copy of court roll of any of the said manors, lands, possessions, and property, and also to restrain the said Defts from receiving any part of the rents and profits and income of, or arising from, any part of the said lands, hereditaments, and property which belongs to the said Hospital of St. Cross, or to the said Hospitel or Almshouse of Noble Poverty. Att.-Oen. v. St. Cross Hospital, 17 Beav. 435. Corporation — Public Recreation Ground — Injunction. Declare that according to the true construction of the Act of Parliament made and passed in the 7th and 8th years of the reign of Y Digitized by Microsoft® 322 INJUNCTIONS. her present majesty Queen Victoria, intituled, &c., the piece of land in the said Act and in the said information mentioned and described as the north-western portion of the Marsh, and now known as the Cricket Ground, ought to he used for the purposes of public recreation only, and be subject to such rights of common and of recreation and other public rights as are mentioned in the said Act, and that it is a breach of trust in the Defts to remove the fair called the Above Bar Fair in the sai^ information mentioned to, or permit the same to be held in or upon the said piece of ground called the Cricket Ground, or any part thereof, or in or upon the road called the Itchen Bridge Eoad in the said Act, and order and decree the same accordingly. Let a perpetual injunction be awarded to restrain the Defts, the mayor, aldermen, and burgesses of the borough of Southampton, their workmen, servants, and agents, from removing the said Fair called " Atiove Bar Fair " to, or holding or permitting the same to be holden upon the said piece of ground, being the north-western portion of the Marsh mentioned in the said Act, and now called or known as the Cricket Ground, or any part thereof, or upon the said road called the Itchen Bridge Eoad, and from letting the said ground, or any part thereof, to any person for the purpose of erecting booths, stands, or other buildings, or permitted to be erected thereon any booth, stand, or other building for the purposes of the said fair, and from letting out the said piece of land, or any part thereof, for, or as, or permitting the same to be used for, or as standing room for, any waggons, carts, or other vehicles, or for the exhibition or sale ot horses, oxen, sheep, or other cattle for the purposes of the said Fair. — Defts to pay costs of suit. Attorney-General v. Mayor of Southampton, 1 Giff. 363. Beligious Bodies — Incumbent improperly appointed — Injunction. Let an injunction be awarded against the Deft F. M. to restrain him until, &o., from performing divine service in the church of St. Mary, Shrewsbury, and from reading therein the articles and other matters required to be read by a curate licensed to a church on taking posses- sion thereof ; and from doing or causing to be done any act, matter, or thing to put himself into possession of the said curacy under or by virtue of the said election, nomination, and licence, or any of them. Attorney-General v. Earl ofPowis, Kay, 186. Beligious Bodies — Preachers — Injunction against Interference with. Let an injunction be awarded to restrain the Defts S., &c., from taking possession of the pulpit in the chapel at, &c., vested in the trustees of the indenture dated, &c., and from excluding the preacjiere. Digitized by Microsoft® INJUNCTIONS. 323 or any of them, duly appointed by the major part of the trustees acting ip the trusts of the said indenture to preach and officiate in the said chapel, from preaching or officiating in the said chapel, and from in any manner disturbing or interfering with the performance of divine worship in the said chapel; and from in any manner intermeddling or interfering with the trust premises : Stott v. Storey (V.-O. W.), July 18, 1860 ; Seton, 938. Incorporated Company — Forfeitwre of Shares — Injunction. Let an injunction be awarded to restrain the Defts Mitchell, Bell, Bagshawe, &c., and the Chartered Bank of India, Australia, and China, until farther order, from forfeiting or declaring to be forfeited any shares in the said company on the ground either of non-payment of any call or of non-execution of the deed of settlement in the pleadings mentioned, and from selling or disposing of as forfeited on either of such grounds any shares or share in the said company, and to restrain the Defts H. and B. from executing the said deed of settle- ment on behalf of the Pits, or the other subscribers to the said company, or any of them. Norman v. Mitchell, 5 De G. M. & G. 648. Incorporated and other Companies — Corporations. All compames incorporating the Lands Clauses Act (8 Vict. c. 18) and the Railways Clauses Consolidation Act (8 Vict. c. 20) with their Special Act, and taking possession of lands under their summary powers, may be restrained by in- junction as trespassers, if possession is not taken in strict accordance with the Acts : Foolcs v. Wilts and Somerset By. Co., 5 Hare, 199 ; Manchester By. Co. v. Oreat Northern By. Co., 9 Hare, 284 ; -Stone v. Commercial By. Co., 4 My. & Cr. 122, cited m Kerr, 304. If the lands are in possession of a receiver or committee of lunatics appointed by the Court, and the company proceeds without the sanction of the Court, an injunction may be obtained : Tinh v. Bundle, 10 Beav. 318. A company wiU be restrained from entering upon land until the moneys awarded have been paid or deposited as required by the 84th clause of the Rail- ways Clauses Act : Lee v. Milner, 2 T. & 0. (Ex.) 617. But where a company let into possession of the land required for their railway, and having given a bond for payment of the purchase-money, made default, it was held that the landowner was not entitled, upon a bill for specific performance, to have an injunction : Pell v. Northampton and Banbury By. Co., L. B. 2 Ch. 100, overruling Cosens v. Bognor By. Co., L. R. 1 Ch. 594. "Whether the landowner might not be entitled to a receiver, or to have the purchase-money paid into Court, guoere. But a bill will lie to restrain a railway company from placing an obstruction partly on a public footway and partly on land belonging to a rival railway, where access to the station of the former is stopped : London and North Western By. Co. V. Lane 'Mre and Yorkshire By. Co. L. B. 4 Eq. 174. Y 2 Digitized by Microsoft® 324 INJUNCTIONS. The diversion of a stream is a " taking " within the meaning of the 85th clause of the Lands Clauses Act : Ferrand v. Gorporation of Bradford, 21 Beav. 412. Where a person is willing to sell to a company the whole of a house, building, or manufactory, under the 94th section of the Lauds Clauses Act, the Court will restrain the company from compulsory purchase of only a part of such premises : St. Thomas' Hospital v. Charing Gross By. Go., 1 J. & H. 400 ; Order, p. 314 ; Sparrow v. Oxford and Worcester By. Co., 2 De G. M. & G. 94. Where a company has entered into possession under the 85th clause of the Lands Clauses Act without making compensation to the mortgagees, the Court will restrain the further proceedings of the company: Banken v. East India Docks Co. 12 Beav. 298 ; Order, p. 316. A railway ccfcapany will be restrained from taking lands under their parlia- mentary powers not lona fide required for the purposes of their undertaking : Webb V. Manchester and Leeds By. Co., 4 My. & Cr.-,116 ; Order, p. 315. The Court will enforce by injunction the provisions of the 115th section of the Bail way Clauses Consolidation Act as regards engines improper to be used : Midland By. Co. v. Amhergate By. Co., 10 Hare, 359. In the execution of their works railway companies must take reasonable pre- cautions for the safety of adjoining houses: Bicket v. Metropolitan By. Co., L. R. 2 H. L. 175 ; Biscoe v. Great Eastern By. Co., L. R. 16 Eq. 636 ; Order, p. 317. For cases where the Court has enforced by injunction working agreements between railway companies, see Wolverhampton, &c.. By. Co. v. London and North Western By. Go. (L. C. for M. R.), L. R. 16 Eq. 433. But a private person who applies for an injunction to restrain a company from violating the provisions of an Act of Parliameat must satisfy the Court that he will suffer substantial injury from the act complained of : Mayor of Liverpool v. Charley Waterworks Co., 2 De G. M. & G. 860 ; Wintle v. Bristol and South Wales By. Co., 10 W. R. 210; Stockport Waterworks Go. v. Mayor of Man- chester, 9 Jur. (N.S.) 266 ; cited in Kerr, 544. Companies incorporated for special purposes exist for those purposes only, and if they exceed the limits of their jurisdiction may be restrained by injunction : Frewin v. Lewis, 4 My. & Cr. 254 ; Mayor of Liverpool v. Charley Waterworks, 2 De G. M, & G. 860 ; Stockport Waterworks Co. v. Mayor, &c., of Manchester, 9 Jur. (N.S.) 266 ; Sare v. London and North Western By. Co., 2 J. & H. 109 ; Bostock V. North Staffordshire By. Co., 3 Sm. & G. 283. Railway companies have been restrained from carrying on business as coal merchants: Att.-Qen. v. Great Northern By. Co., 1 Dr. & Sm. 154; from the manufacture of locomotive engines or rolhng stock for sale or hire: Att.-Gen. v. London and North Western By. Go. ; Order, p. 320 ; from applying the funds of a company towards a steam packet company in connection with the railway : Caiman v. Eastern Counties By. Co., 10 Beav. 1 ; from the purchase of shares in another railway : Salomons v. Laing, 12 Beav. 339 ; from applying the funds of the company to an extension railway, or the promotion of a Bill in Parliament for that purpose: Great Western By. Co. v. Bushout, 5 De G. & Sm. 290; Order, p. 318 ; Vance v. East Lancashire By. Co., 3 K. & J. 50 ; from applying moneys raised to complete a branch to the purposes of the main line : Bagshaw v. Eastern Union By. Co., 2 Mac. & G. 389 ; Cohen v. Wilkinson, 12 Beav. 134 ; 1 Mac. & G. 486 ; from letting out boats for hire : Bostack v. North Staffordshire By. Co., 3 Sm. & G. 283 ; Order, p. 317. Digitized by Microsoft® INJUNCTIONS. 325 So, also, they have been restrained from paying dividends on the ordinary stock until arrears of dividends on the preference shares have been paid : Sturge v. North Eastern Union By. Co., 7 De Gr. M. & 6. 158 ; Order, p. 318 (see also Craw- ford V. North Eastern Bailw. Co., 3 E. & J. 723 ; Stevens v. South Devon By. Co., 9 Hare, 325 ; Henry v. Ch-eat Northern By. Co., 1 De Gr. & J. 607 ; Mathews V. Great Northern By. Co., 28 L. J. (Oh.) 373); and from the payment of interest to shareholders out of capital or borrowed moneys before any profits had been realized : Mucdougall v. Jersey Imperial Hotel Co., 2 H. & M. 528. They have also been restrained from paying dividends except so far as the profits and income of the company were properly applicable, having regard to the charges and expenses attributable to income and not to capital : Bloocam, V. Metropolitan By. Co., L. R. 3 Ch. 337 ; Order, p. 319. So, also, from entering into illegal agreements with one another for amalgama- tion : Charlton v. Newcastle and Carlisle By. Co., 5 Jur. (N.S.) 1097. Injunctions have been granted to restrain the illegal forfeiture of shares: Naylm' v. South Devon By. Co., 1 De Gr. & Sm. 32 ; Watson v. Bales, 23 Beav. 300 ; Norman v. Mitchell, 5 De Gr. M. & Gr. 648 ; Order, p. 323 ; the insertion of a man's name on the register of shareholders : Taylor v. Hughes, 2 J. & Lat. 24 ; the illegal suspension of a shareholder from his rights : Adley v. Whitstahle Co., 17 Ves. 315 ; 19 Ves. 304 ; and to restrain a company from making calls upon one of its mem- bers : Taft v. Sa/rrison, 10 Hare, 489 ; Smith v. Beese Biver Co., L. R. 2 Bq. 264. The ownership acquired in land by a public company under their compulsory powers for the purpose of their works is a qualified ownership, to be restricted to purposes expressed in the Act. The landowner is entitled to an injunction to restrain the use of the land for other purposes : Bostoch v. North Staffordshire By Co., 3 Sm. & G. 283 ; Order, p. 317. If corporate property be affected by a trust, the power and jurisdiction of the Court to enforce and execute the trust attaches equally as it does upon other property similarly circumstanced : Kerr, 570. The application of the funds of municipal corporations to purposes not autho- rized by their Acts has been restrained by injunction : Att.-Gen. v. Mayor of Wigan, Kay, 274; Att.-Oen. v. Corporation of Norwich, 16 Sim. 225 ; 21 L. J. (Ch.) 139; Att.-Qen. v. Corporation of Yarmouth, 21 Beav. 625; Order, p. 321. And a vestry has been restrained from applying one class of rates and receipts in supplying the deficiencies in another class of rates : Att.-Oen. v. Corporation of Thetford, 8 W. B. 467. In the case of eleemosynary corporations, where the visitor commits a breach of trust, the Com't has interfered by way of injunction: Att.-Qen. v. St. Cross Hospital, 17 Beav. 435 ; Order, p. 321 ; Daugan v. Bivas, 28 Beav. 233 ; Att.- Oen. V. Smythies, 2 My. & Cr. 135. In the case of spiritual or ecclesiastical corporations where there is a trust the Court will interfere by injunction to restrain breaches of it: Att.-Oen. v. St. Cross Hospital, 17 Beav. 435 ; Order, p. 321 ; Att.-Oen. v. Earl of Powis, Kay, 186 ; Order, p. 322. Where the right of nomination to a benefice is in question, injunctions may be granted restraining the presentation : Edenborough v. Archbishop of Canterbury, 2 Russ. 93 ; Att.-Oen. v. Cuming, 7 Jur. 187, 191 ; 2 Y. & C. 139 ; Nicholson V. Knapp, 9 Sim. 326. And the Court has restrained the bishop of the diocese from taking advantage of a lapse pending the suit : Nicholson v. Knapp, 9 Sim. 326. Digitized by Microsoft® 326 INJaNCTIONS. THID MERCHANT SHIPPING ACTS, 1854 to 1875. Sale of Ship prohibited. Upon' motion, &c., by counsel for J. E. de W., a member of the firm of De W. & Co. of Liverpool, and upon reading, &o., and the said J. E. de W. undertaking as to damages, &c., in case the Court should here- after be of opinion that any person or persons shall have sustained any by reason of this order -which the said J. E. de W. ought to pay, this Court doth prohibit any dealing with the British ship Lily for six weeks from this time or until further order. Se Hie Lily{V.-G. W.), Feb. 18, 1866. Payment into Court — Inquiries — Injunction. Let the Pit on or before the 16th December, 1867, pay into the bank to the credit of this cause £4700 11«. 6d. (being £4488 128. 6d. for tonnage, calculated at the rate of £8 per ton for every ton, of 661 tons and eight-hundredths of another ton, the gross tonnage, without deduction on account of engine-room, of the ship Velasquez in the bill mentioned, and £211 19s. for interest on such amount at the rate of £4 per cent, per annum from the 11th October, 1866, up to the 16th December, 1867). Invest and accumulate. Let an inquiry be made to ascertain what persons are entitled to claim in respect of the loss of the barque Star of Ceylon in the bill men- tioned, and of the goods, merchandise, and things on board of her at the time of the collision with the said ship Velasquez as in the bill mentioned, and in respect of the damage or loss (if any) to any goods, merchandise, or things on board the said ship Velasquez at the time of the said collision, and for what amounts respectively ; and for that purpose Let advertisements be published in the London Gazette and such other public papers as the judge shall think fit for all persons claiming in respect of the said barque Star of Ceylon, or of the goods, merchandise, and things on board her at the time of the said colli- sion with the said ship Velasquez, or in respect to the damage or loss to any goods, merchandise, or things on board the said ship Velasquez at the time of the said collision, to come in before the judge and make out their claims. Let a peremptory day be fixed for that purpose. Let an inquiry be made how any bank annuities and cash on the credit of this cause ought to be apportioned amono- the Defts and other claimants who shall establish their claim in respect of the matters aforesaid. Pit to pay Defts' costs of certain proceedings in the Admiralty Court. Upon payment Let an injunction be awarded against the Defts to restrain them, their attorneys and agents, from further prosecuting the proceedings in the High Court of Admiralty commenced by them against the said ship Velasquez and her freight, Digitized by Microsoft® INJUNCTIONS. 327 and from commencing or prosecuting any other action or actions in respect of the loss of the barque Star of Ceylon in the Pit's bill men- tioned, and any goods, merchandise, and things on board her respect- ively. Adjourn further consideration. — Liberty to apply. Saeny v. Briggs (V.-C. W.), Nov. 16, 1867. Similar Order — Apportionments to he paid. The Pits by their counsel alleging that the gross tonnage, without deduction on account of engine room, of the steam tug Betriever in the bill mentioned is SOO/^"^, and that the limit of the amount which they are liable to pay in respect of the losses in the fourth paragraph of the Pit's bill mentioned, calculated at the rate of £8 per ton, is the sum of £2402 8«., Let the Pits the New Steam Tug Company, Limited, on or before the — day of — pay into Court to the credit of, &c., the sum of £2435 Is. od., such sum being made up of the said sum of £2402 8s., together with £32 13s. 5d. for interest at the rate of £4 per cent, per annum from the 9th May, 1874, to the 10th Septem- ber, 1874. Invest and accumulate. Let an injunction be awarded to restrain the Defts W. S. and E. D., their proctors, solicitors, and agents, from commencing or prosecuting any suit or action in respect of the collision in the bill mentioned, or any loss or damage occasioned thereby (otherwise than in respect of any loss of life or personal injury) until further order. 1. Let an inquiry be made what persons are entitled to claim against the Pits as owners of the said steam tug Betriever in respect of the said collision, or any loss or damage occa- sioned thereby, otherwise than in respect of loss of life or personal inquiry, and for what amounts respectively. Let, for the purposes of such inquiry, advertisements be issued, &c. 2. Let an inquiry be made what is the gross tonnage of the said steam tug Betriever with- out deduction on account of engine room, and what is the amount at the rate of £8 per ton on such gross tonnage of the Pit's liability in respect of the damage done by the said steam tug as in the 4th paragraph of the bill mentioned. And if it shall appear upon the result of such inquiry that such amount exceeds the said sum of £2435 Is. 5d. to be paid into Court as aforesaid. Let the Pits the New Steam Tug Company, Limited, within twenty-one days after the date of the chief clerk's certificate pay into Court to the like credit such further sum of cash as shall be certified to be required with the said sum of £2436 Is. 3d. to make up such amount. Let the amount hereinbefore directed to be purchased be, upon the production of the chief clerk's certificate of the result of such inquiry, sold, and out of the money to arise by such sale, and the said money on deposit, and any interest to be credited in respect thereof, and the said cash (if any), the several amounts certified to be due to the several claimants upon the result of fi^^lfRmSb^yikf^Sfti) *° *^® several persons 328 INJUNCTIONS. to whom such amounts shall be certified to be due ; and that the residue thereof be paid to the Pits the New Steam Tug Company, Limited. But if the said money, interest, and cash (if any) shall not be sufficient. Let the same be apportioned among the several claimants in proportion to the amounts of their respective claims, and Let such apportioned amounts be certified and paid fo such claimants respectively. Pit to pay Defts' costs of suit, and to pay the claimants who shall make out their claims such sums for costs as shall be certi- fied to be due. — Liberty to apply. New Steam Tug Co., Limited, v. Singleton (M. R.), July 31, 1874. The Merchant Shipping Acts, 1854 to 1875. Whenever any property in a sWp or share in a ship becomes vested by trans- mission, on the death of any owner or on the marriage of a female owner, in any person not qualified to be an owner of British ships, the Court of Chancery may, if the ship is registered in England, upon the application of the unqualified per- son, order such property to be sold, and the proceeds to be paid to the person entitled under such transmission or otherwise, as the Court may direct : 17 & 18 Vict. c. 104, s. 62. The order must contain a declaration vesting the right to transfer the ship or share in some nominee of the Court : 17 & 18 Vict. c. 104, s. 63. The application for sale must be made within four weeks after the occurrence of the event on which the transmission has taken place, or within such further time, not exceeding a year from such date, as the Court may allow; and if no such application is made within such period, or the Court refuses to accede thereto, the ship or share so transmitted is to be forfeited : 17 & 18 Vict. c. 104, s. 64. , The Court may, upon summary application of any interested person made either by petition or otherwise, and either ex parte or upon service of notice on any other person as the Court may direct, issue an order prohibiting for a time to be named in such order any dealing with such ship or share ; and it shall be in the discretion of such Court to make or refuse any such order, and to annex thereto any terms or conditions it may think fit : 17 & 18 Vict. c. 104, s. 65. The liability of a shipowner in damages in respect of loss of life or personal injury, either alone or together with loss or damage to ships, boats, goods, mer- chandise, or other things, is limited to £15 per ton of the ship's toimage ; and in respect of loss or damage to ships, goods, merchandise, or other things, whether there be in addition loss of life or personal injury or not, to £8 per ton of the ship's tonnage : 25 & 26 Vict. c. 63, s. 54. Where any liability is alleged to have been incurred by any owner in respect of loss of life, personal injuiy, or loss of or damage to ships, boats, or goods, and several claims are made 6r apprehended in respect of such liability, proceedings may be entertained at the suit of any owner for the purpose of determining the amount of such liability, and for the distribution of such amount rateably amongst the several claimants, and the Court of Chancery has power to stop all actions pending in any other Court in relation to the same subject-matter : 17 & 18 Vict. c. 104, s. 514. See also 34 & 35 Vict. c. 110 ; 35 & 36 Vict. c. 73 ; 36 & 37 Vict. c. 85 ; 38 & 39 Vict. c. 88. Digitized by Microsoft® INJUNCTIONS. 329 The shipowner must pay into Court the amount for which he is liahle, together with interest on the sum found due for damages : Straker v. ffartland, 2 H. & M. 570; 10 Jur. (N.S.) 1143. He also pays, in the absence of special circumstances, the costs of all claimants whose claims are established, including the costs of actions at law commenced by any of such claimants but stayed by injunction : The African Steamship Co. V. Swanzy, 2 K. & J. 660. As to the amount of the liabilities of the shipowner, see Merchant Shipping Amendment Act (25 & 26 'Vict. c. 63, s. 54) ; Glaholm'v. Barker, 34 Beav. 305 ; affirmed L. R. 1 Uh. 223 ; S. C, L. B. 2 Bq. 598. In an application under sect. 514 of 17 & 18 Vict. c. 104, the shipowner must aver that he has incurred liability ia respect of some damage : Hill v. Andus, 1 K. & J. 263. STOP ORDERS. Common Form. A. [the assignee] by his counsel [or solicitor] submitting to be bound by the provisions of the Cons. Ord. xxvi., rule 1, Let no part of [or of the share or interest of — in] the sum of £ — Consolidated 3 per Cent. Annuities in Court to the credit of, &c., the account, &c. [or in the sum of — cash on the credit of, &c.], or in any interest to accrue on the said sum of stock, be sold, transferred [paid out], or otherwise disposed of without notice to the said A. [If the sum of cash is to be invested : Let no part of [the share or interest of — in] the sum of cash standing to the credit of, &o„ be paid out except for the purchase of Bank 3 per Cent. Annuities, and Let no part of the Bank Annuities to be purchased therewith be sold, transferred, or otherwise disposed of without notice to the said A.] Assignee of Person who had obtained Stop Order. B. the assignee of A. submitting, &c., Let B. be substituted for the said A. as the person to whom notice is to be given before any sale, transfer, payment, or other disposition of the Bank Annuities and cash in the order dated the — day of — mentioned. Tench v. Clieese (M. E.), Jan. 26, 1865. Stop Order continued on Fund. to be carried over. Let — in Court to the credit of, &c., be carried over to the credit of, &c. And the said Bank Annuities [cash] and interest so to be carried over are to continue subject to the restraint imposed by the order dated the — day of — . Chancery Paymaster's Cheque. Let C. be restrained until further order from receiving the cheque for £— drawn by the Chancery Paymaster in favour of — pursuant to the Digitized by Microsoft® 330 INJUNCTIONS. order dated, &c., or The cheque for £ — drawn, by the — in favour of — pursuant to an order dated, &c., is not to be delivered out by the Chancery Paymaster until further order. A stop order does not decide the rights of parties : Lucas v. Peacock, 9 Beav. 118. And it is unnecessary to state in the order that it is made " without pre- judice": S. 0. But where the fund has been paid in under the Trustee Relief Act the order was made " without prejudice to the trustee's lien for costs " : Be Blunt, 10 W. E. 379. An incumbrancer who has obtained a stop order and served it upon the Ac- countant-General thereby obtains priority over an incumbrancer who has not done so : Oreening v. Beckford, 5 Sim. 195 ; Swayne v. Swayne, 11 Beav. 463. Prospective stop orders have been made : Cleveland's Harte Estates (V.-C. K.), Jan. 17, 1862. But a similar order was refused where there was no certainty that the fund would be brought into Court : Wellesley v. Mornington, 11 W. E. 17. Where the assignor and assignee concur the stop order is obtained at chambers : Mdmondson v. Earrison, 1 W. E. 140. If the assignor does not concur the apphoation is by petition : Be Miller, 6 W. E. 238 ; Be Nowell, 11 W. E. 896. The order for payment of an incumbrancer's claim should include the costs of obtaining the stop order, otherwise those costs will be disallowed : Waddilove v. Taylor, 6 Hare, 307. Where a fund is sought to be charged (see CHAKGruG Okdbbs) a stop order must be obtained to complete the creditor's title : Miles v. Presland, A My. & Cr. 431 ; 2 Beav. 300. Writs of Distringas. " Any person claiming to be interested in any stock transferable at the Bank of England standing in the name of any other person may sue out a writ of dis- tringas pursuant to the statute 5 Vict. c. 8 [guoere, c. 5], as heretofore. Such writ to be issued out by any officer of the High Court in London, where writs of summons are issued " : Judicature Eules, Order 46, rule 2. Where a writ of distringas has been placed upon stock standing in the name of a person or body politic or corporate in the books of the Bank of England, the bank is not authorized to refuse to transfer after eight days from a request made by the person in whose name the stock is standing : Cons. Ord. xxvii., rule 4. And the writ of distringas may be discharged by an order of the Court : Cons. Ord. XXVII., rule 3. CHAEGING OEDERS. ■ (1 & 2 Vict. 0. 110 ; 3 & 4 Vict. c. 82.) Let the £ — Consolidated 3 per Cent. Annuities standing to the credit of, &o., stand charged with the payment to — of the sum of £ — with interest at £ — per cent, from the — day of ■ — until payment, unless the Deft B. shall within one calendar month after service of this order [or on or before the — day of — ] shew unto this Court good cause to the contrary. And the applicant A. by his counsel submitting Digitized by Microsoft® INJUNCTIONS. 331 to he bound by the provisions of the Cons. Ord. xxvi. rule 1, Let no part of the said Consolidated Annuities be sold, transferred, or other- wise disposed of without notice to the applicant A. until this order shall be made absolute or be discharged. Order Absolute. Let the order dated, &c., be made absolute. Let the £ — Bank 3 per Cent. Annuities standing to the credit of, &o., stand charged with the payment to the Petitioner A. of the sum of £ — with interest at £4 per cent, from, &o., until payment. Order Nisi charging Bank Annuities [not in Gourt\ with Taxed Costs. Lfit the £ — Bank 3 per Cent. Annuities standing in the name of the Deft B. in the books of the Governor and Company of the Bank of England stand charged with the sum of £ — , being the amount of the taxed costs of the Pit of, &c., by the order dated, &c., directed to be paid by the Deft B. to the Pit A., together with interest on the said sum at the rate of £4 per cent, from the — day of — until payment, unless the Deft B. shall within one calendar month after service of this order [or on or before the — day of — ] shew unto this Court good cause to the contrary. And Let the Governor and Company of the Bank of England be restrained from permitting a transfer of the said Bank Annuities in the meantime and until this order be made or be discharged. Order Nisi charging Barik Annuities in Court. Let the £ — Bank 3 per Cent. Annuities standing to the credit of the cause A. v. B. stand charged with the payment to — of the sum of £ — together with interest at the rate, &c., from the — day of — to the day of payment, unless, &c. And the said — by his counsel sub- mitting to be bound by the provisions of the Cons. Ord. xxvi., rule 1, Let no part of the said Bank Annuities be sold, transferred, or other- wise disposed of without notice to the said — . Scott v. Hastings, 4 K. & J. 633. Order Nisi — Fund in Court charged with Sums ordered to he paid in another Cause — Stop Order. Let the interest hereafter to accrue during the life of the Deft A. J. C. on the £220 Bank £3 Per Cent. Annuities standing to the credit of. W. v. D., the account of the Defts A. J. C. and L. W. and the children of the said L. W., stand charged with the payment to the Petitioner the Pit T. W. of the sums of £2197 19«. 8d. like annuities, and £1089 12«. Eeduced Annuities by the decree made in the cause of Digitized by Microsoft® 332 INJUNCTIONS. W. V. C, dated 19 DecemlDer, I860, ordered to be transferred to the Petitioner, and with interest thereon at the rate of — per cent, per annum from the said 19 December, 1860, till payment, unless the said Deft A. J. 0. shall within one calendar month from the service of this order shew good cause to the contrary. And the Petitioner the Pit by his counsel submitting, &o.. Let no part of the share or interest of the said Deft A. J. C. of and in the said £220 Bank Annuities, or any interest to accrue during the life of the said Deft A. J. C. in respect thereof, be sold, paid out, or otherwise disposed of without notice to the petitioner until this order shall be made absolute or discharged. Ward V. Bavies (V.-C. W.), Jan. 19, 1872. Order discharged on shewing Cause. Tax a. [the party having obtained the order nisi] his costs of and consequent upon the order dated, &c., and of this order. Let B. pay to A. the said costs when taxed. Let upon such payment being made the said order dated, &c., be discharged. Stanley v. Bond, 7 Beav. 386. Chaeginq Okdees. " An order charging stock or shares may be made by any divisional Court or by any judge, and the proceedings for obtaining such order shall be such as are directed, and the effect shall be such as is provided by 1 & 2 Vict. c. 110, ss. 14 and 15, and 3 & 4 Vict. c. 82, s. 1 " : Jud. Rules, Order 46, rule 1. Judgments entered up against any person in any of the superior Courts at Westminster operate as a charge upon all real estate : 1 & 2 Vict. c. 110, s. 13. But no judgment creditor is entitled to proceed in equity to obtain the benefit of the charge until after one year from the time of entering up such judgment : Ibid. He may, however, obtain an order to restrain the debtor from receiving the dividends on the fund charged : Watts v. Jefferyes, 3 Mac. & Gr. 422 ; 15 Jur. 435 ; see also Beece v. Taylor, 5 De G. & Sm. 480. Decrees and orders of Courts of Equity for the payment of any sum of money or of costs have the effect of judgments : 1 & 2 Vict. c. 110, s. 18. But no land is to be affected by them until it has been delivered in execution by a writ of elegit: 27 & 28 Vict. o. 112, s. 1. Charging orders may be made by any of the superior Courts against stock and shares in public funds and public companies belonging to the debtor and standing in his own name or in the name of any person in trust for him : 1 & 2 Vict, c. 110, s. 14. But no proceedings can be taken to have the benefit of the charge until after six calendar months from the date of the order : Ibid. The provisions of the 1 & 2 Vict. o. 110, are extended to any interest of the judgment debtor in funds standing in the name of the Acoountant-General [Chancery Paymaster] of the Court of Chancery or the Aocountant-General of the Court of Exchequer : 3 & 4 Vict. c. 82, s. 1. But no order of any judge as to funds standing in the name of the Accountant- General of the Court of Chancery or Court of Exchequer is to prevent the Digitized by Microsoft® INJUNCTIONS. 333 governor and company of the Bank of England, or any public company, from per- mitting transfers in such manner as the Court shall direct : 3 & 4 Vict. c. 82, s. 1. Every order of a judge charging any stock, funds, or annuities or shares in any public company is to be made in the first instance ex parte ; 1 & 2 Vict. c. 110, s. 15. And the order, if any government stock, funds, or annuities standing in the name of the judgment debtor in his own right, or in the name of any person in trust for him, is to be affected by the order, shall restrain the Governor and Com- pany of the Bank of England from permitting a transfer until the order is made absolute or discharged : Ibid. A similar provision is made as to shares in public companies : Ibid. Every judgment debt is to carry interest at the rate of £4 per cent, per annum from the time of entering up judgment : 1 & 2 Vict. s. 17. But interest is not recoverable on costs directed to be raised out of an estate : Att.-ffen. V. Nethercote, 11 Sim. 529. Notice of a charging order to the Accountant-General [Chancery Paymaster] is of no avail against a stop-order afterwards obtained by a subsequent purchaser without notice : Warburion v. Sill, Kay, 470. Where the charging order is made by the Court of Chancery the stop-order may be added to the orders nisi and absolute : see Order, p. 331. A charging order when made absolute operates from the date of the order nisi ; Ball/ V. Barry, L. E. 3 Ch. 452. WEIT OP NE EXEAT REGNO. Common Order. Upon motion, &c., and upon reading, &c., and the Pit by his counsel undertaking as to damages, &c , Let a writ [or, one or more writs] of ne exeat regno issue against the Deft A. imtil this Court make other order to the contrary. And the said writ [or writs] is [or are] to be marked for security in the sum of £ — in words at length and not in figures. When and how obtained. The application for a writ of ne exeat is made by ex parte motion, and might have been made before service of the copy of the bill. Dan. 5th Ed. 1543. The application must be supported by evidence ot the existence of the debt and of the intention of the party to go abroad. See JRoddam v. Eetherington, 5 Ves. 91, 95. The demand must not only be equitable, but it must be a pecuniary demand, and the money must be actually due : Whitehouse v. Partridge, 8 Swanst. 365, 377 ; Whitehead v. Bennet, 10 Jur. 3. The affidavit in support must be positive ; and an affidavit as to information and belief will not be sufficient : Boddam v. Eetherington, supra ; Barley v. Nicholson, 1 D. & War. 66. But in a suit for account it is sufficient if a pit swear that, according to the best of his belief, a particular sum would be found due upon taking the account ; Bico V. Qaidtier, 3 Atk. 501 ; JacJcson v. Petrie, 10 Ves. 164. The writ will not be issued where the pit is resident abroad : Hyde v. Whitfield, 19 Ves. 342 ; Walker v. Christian, 7 Sim. 367. Digitized by Microsoft® 334 INJUNCTIONS. ' The writ may be issued against a party who is going abroad in the course of his ordinary business ; Stewart v. Graham, 19 Ves. 313. But it will not be granted against a feme coverfe administratrix: Pannell v. Taylor, 1 Dick, 107; 3 Atk. 409, per Lord Eldon. In general the writ will only be issued upon the application of the pit, and was only granted upon a bill filed : Ex parte Brancker, 3 P. Wms. 312 ; Anon. 6 Mad. 276, Whether it can be obtained by a deft against a pit, qucere : see Whitehouse v. Partridge, 3 Sw. 365, 374. But in a suit for account it may be obtained by a deft against a co-deft : 2 Eq. 0. Ab. 5 ; Bone's Case, 1 P. Wms. 263. And it may be obtained against a contributory under the Winding-up Acts : Mawer's Case, 4 De G. & Sm. 349. Writ discharged — Inquiry as to Damages. Let the writ of ne exeat regno issued against the Deft M. pursuant to the order dated, &c., and the said order be discharged with costs in- cluding the costs of this application, to he taxed, &c., and paid by the Pit S. to the Deft M. Let an inquiry be made what damages have been sustained by the said Deft by reason of the said order dated, &o., having been made. Let the Pit S. pursuant to the undertaking con- tained in the said order pay within one month after the date of the chief clerk's certificate of the result of the said inquiry what shall be certified to be due in respect of such damages to the said Deft M. — Liberty to apply. Todd v. Dolman (V.-C. J.), Jime 23, 1870. Writ discharged — Deft to give Security. Upon the Deft M. giving security to the amount of £1000 with two sureties (such security to be approved by the judge) to answer such sum as may be found due from him in this cause. Let the writ of ne exeat regno issued under the order dated, &c., be discharged. And Let the said order dated, &o., be also discharged, except so much thereof whereby it is ordered that the Deft should pay to Pit his costs of the suit, to be taxed, &o. The Court will discharge the writ upon tlie merits when it appears either that the pit has no case, or that the deft is not going out of the jurisdiction : Leo v. Lambert, 3 Buss. 417 ; Eechell v. Saphael, 4 L. T. (N.S.) 114. The order may be discharged upon the deft giving security : Boddam v. Bether- ington, 5 Ves. 91, 95 ; Boon v. Collingwood, 1 Dick. 115 ; or upon the delt paying the sum into Court ; Evans v. Evans, 1 Ves. J. 96 ; Stewart v. Graham, 19 Ves. 313, 314. When an application to discharge the writ is granted, the discharging order ought, it is said, to restrain the person from bringing an action for false imprison- ment : Barley v. Nicholson, 2 D. & War. 86. The writ will not be discharged upon the mere ground that since it was ordered the pit Jhas amended his bill, unless the amendments have varied the pit's case : Grant v. Grant, 5 Euss. 189. Digitized by Microsoft® ( 335 ) CHAPTER XXIIT. EECEIVEE. Receiver — General Form, Let a proper person be appointed to receive [or. Let A. of, &c., upon first giving security, be appointed to receive] the rents and profits of the real [or, freehold, or leasehold] estates [and to colleot and get in the outstanding personal estate] of — the testator [or, intestate] in tke pleadings [or, summons] named [or, the rents and profits of the real estates comprised in the indenture dated, &c.]. And the tenants of the said real [freehold, or leasehold] estates are to attorn and pay their rents in arrear and growing rents to such receiver. [If ordered : Let — deliver over to such receiver all securities in their hands for such outstanding personal estate, together with all books and papers re- lating thereto.] Let such receiver from time to time pass his accounts and pay the balances which shall be certified to be due from him into Court to the credit of, &c. Let such balances, when so paid in, be in- vested in Consolidated~3 per cent. Annuities upon the like credit, and let the dividends as they accrue upon such Annuities, and all accumu- lations of dividends, be invested in like manner. Receiver named mthout Reference to Chamherg. This Court doth hereby appoint — , of, &c., upon his first giving security [or, without giving security] to receive the rents and profits of, &c. [and to collect and get in the outstanding personal estate], in the pleadings named. And the tenants of, &c., are to attorn, &c. [If ordered : Let — deliver over to such receiver all securities, &c., and all books, &c.] And the said — is, on the — day of — next, and the same day in each succeeding year, to leave at the chambers of the judge his accounts as such receiver ; and is, within — days after the date of the chief clerk's certificate of the allowance of each account, to pay the balance which shall be certified to be due from him, or such part thereof as shall be certified to be proper, into Court to the credit, &o. [Invest and accumulate.] Order made in Chambers after Reference from Court. Upon the application, &c., and upon hearing the solicitor, &c., and upon reading, &c., ^T^^^j^^SS^Vdros^oM^^ ~ ^^^ °^ ~ ^^^^^^ 336 RECEIVER. into by — , together with — and — as his sureties, which said recog- nizance has been approved by the judge and duly inrolled, the judge doth hereby appoint the said — to receive the rents and profits, &c., or to collect and get in, &c. llangimge from first order]. Let the said — , on the — day of — next, and the same day in each succeeding year, leave at the chambers of the judge his account as such receiver ; and within fourteen days after the date of the chief clerk's certificate of the allowance of such account, pay the balance which shall be certi- fied to be due from him, or such part thereof as shall be certified tp be proper, as directed by the said order dated, &c. Order made in Chambers without previous Order — Recognizance prepared beforehand. Upon the application, &c., and upon reading a recognizance dated, &c., which has been approved by the judge and duly inrolled, the judge doth hereby appoint — ■, of, &c., to receive, &c. [and to collect, &c.]. And the tenants of the said real [freehold, or leasehold] estate are to attorn, &c. Let the said — , on the — day of — next, and the same day in each succeeding year, leave in the chambers of the judge his accounts as such receiver ; and, within — days after the certifi- cate of allowance of each account, pay the balance which shall be certified to be due from him, or such part thereof as shall be certified to be proper, into Court to the credit, &c. [Invest and accumulate.] Mortgaged Estate. Let a proper person be appointed, &c., without prejudice to the rights of any mortgagees or mortgagee of the said estates, or any or either of them. Prior Incumbrances — Inquiry — Interest. Let a proper person be appointed, &c., " But the appointment of such receiver is not to afiect any prior incumbrancers upon the said estates who may think proper to take possession of the said estates by virtue of their respective securities." Tenants to attorn, &o. Inquiry as to incumbrances and priorities. Let such receiver out of the rents and profits to be received by him keep down the interest and pay- ments in respect of the said incumbrances according to their priorities, and be allowed the same in passing his accounts. Directions to pass accounts and pay in balances. Davis v. Duhe of Marlborough, 2 Sw. 115; Seton, 1027. Seceiver [and Manager"] of Trade or Business. Let a proper person be appointed to collect, get in, and receive the debts now due and outstanding belonging to the [partnership] trade Digitized by Microsoft® EECEIVER. 837 or business in the pleadings mentioned, carried on by — in the pleadings named [and to manage the said business]. And such re- ceiver is, out of the first moneys to be received by him to pay the debts due from the said trade or business. [And either the Pit or Deft is to be at liberty to propose himself as such receiver and mana- ger without salary.] Let the Pit and Deft respectively deliver over to such receiver all the stock-in-trade, goods, and effects of tlie said [partnership] trade or business, and also all securities for such outstanding debts and effects, and all books and papers relating thereto. Directions to pass accounts, to pay in balances, and balances to be invested. Beceiver of Colliery Business— Dehts to be put in Suit. [Decree for dissolution of partnership and for accounts.] Let a proper person be appointed to take and have the management of the colliery business, stock, and effects in the pleadings mentioned, until the sale thereof hereinbefore directed, and to have the direction and superintendence of the works of the said business, and to collect and get in the outstanding debts and effects belonging to the said business. And any of the Defts are to be at liberty to propose themselves as such manager and receiver. Let the Pit and Defts deliver over to such manager and receiver all securities in their hands for such outstanding partnership debts and effects, together with all stock, goods, effects, books, and accounts belonging to the said partnership. And in case it shall be necessary to put any of the debts in suit for the recovery thereof, the same is to be done with the approbation of the judge. And such manager and receiver is to be at liberty to make use of the names of the Pit and Deft who are to be indemnified therein out of the stocks, goods, and effects of the said business, and out of the money to be received in respect of the said debts by such manager and receiver. Let such manager and receiver pay the debts due and to accrue due from the said business, and from time to time pass his accounts ; and after retaining in his hands such sum as shall be deemed sufficient for carrying on the said colliery, pay the bal3,nces which shall be certified to be due from him into Court, &o. Glegg v. Fishwick, 1 Mac. & G,' 294; Seton, 1031. • Beceiver of Solicitor's Partnership Business — Special Glauses as to delivery of Client's Papers. Let a proper person be appointed to receive, collect, and get in the outstanding debts due to the partnership, &c. Let the Pit and Deft deliver to such receiver all partnership effects and securities in their hands respectively for such outstanding partnership estate, and all z Digitized by Microsoft® 338 EECEIVER. deeds, books, and papers relating thereto. Let such receiver ont of the money to be received pay the debts due and to become due from the partnership, and from time to time pass his accounts and pay the balances into Court, &c. Let the Deft on or before the — day of — deliver to the Pit a list of the several deeds, books, papers, and writings removed by him from the office of the late partnership. Let previously to the appointment of the said receiver any of the deeds, books, papers, and writings in possession of either of them, the Pit and Deft, be delivered to the other in case the person or persons to whom such deeds, books, and papers belong shall signify in writing his or their wish that the same should be so delivered. Let the re- ceiver after he shall have been so appointed, and after the said deeds, books, and writings belonging to the said late partnership shall have been delivered to him, in like manner on receiving such written authority deliver the same to either of them, the said Pit and Deft. But such delivery is to be subject to any lien the said late partnership may have on such deeds, books, papers, and writings, or any of them. SmUh V. Smith, 1854, B. 148; Seton, 1032. For special clauses as to clients' papers, and preparation by receiver of bills of costs, see Clift V. WaiJcin (M. K.), Nov. 11, 1875; Ormond v. Townsend (M. E.), Deo. 16, 1875. Becewer of Manor. Let a proper person be appointed, &c. Let such courts as have been usually held and are proper to be holden for any manor or manors vested in — as trustees of the will of the testator be from time to time held by the Said receiver in the name or names of the person or persons in whom the legal estate may be. Let the said receiver bring into his account all such fines or other profits as shall be taken by them in respect of the said manors. Thelusson v. Woodford, 1852, B. 1156 ; Seton, 1024. Let a proper person be appointed to hold courts for the manor of — . Let the Pit and Deft join in giving proper authorities to the person so to be appointed to hold the said courts. Let the court rolls and other necessary books and papers for holding the said courts be delivered to him for that purpose. Barker v, Mariot, 1 767, A. 429 ; Seton, 1025. Receiver of Heir-looms. Deft to pay into Court a deposit by way of security to a separate account. In default of payment, Let a proper person be appointed to have the care and custody of the several articles at B. particularly specified and set out in the inventory in the bill mentioned, and which are specifically bequeathed by the will and codicil of G., late Duke of Marlborough, upon the trusts therein contained. Directions for Digitized by Microsoft® RECEIVEB. 339 allowance to receiver, and for his giving security to " take due care of such articles, and to deliver up the same as the Court -shall here- after direct." Earl of Shaftesbury v. Dulce of Marlborough, 1820, A. 792 ; Seton, 1025. Beoeiver of Canal. Declaration that the Pit and all others the mortgagees of the Defts, the company of proprietors of the Worcester and Birmingham Canal Navigation Company, are entitled to a. charge upon the naviga- tion and rates of the Defts, payable by virtue of the Acts in the bill mentioned, or any of them, for the repayment to the Pit and such other mortgagees as aforesaid of the amounts of principal and interest due, (fee, and are entitled to have such rates applied in or towards payment of what shall be due to them. Account of what is due, &o. Let a proper person be appointed to receive the income arising from the said navigation, and from all and singular the rates granted to the Defts the company by the said Acts of Parliament, or any of themi, and now comprised in or subject to the said mortgage securities. Let the person so to be appointed from time to time apply the income arising from such navigation and rates as aforesaid in the first place in payment of the current expenses attending such navigation, and in the second place in the payment of the rents, interest, and other annual charges payable in respect of the said navigation, or any part thereof, or of any charges or incumbrances having priority over the said mort- gages, in the third place in payment of the costs of the Pit and Defts of this' suit [to be taxed, &c.], and in the fourth place in keeping down the interest on the said mortgage securities. Usual directions. EJop- hins V. Worcester and Birmingham Canal Co., L. E. 6 Eq. 437. Beceiver of Bailway. Lkt — , upon their respectively entering into such recognizances as the judge shall direct, be appointed to receive the tolls and sums of money arising upon or out of the said general undertaking. Let the said receivers, out of the moneys received by them, pay all expenses proper and necessary for the maintenance, management, and working of the said general undertaking.— Directions for the receivers to pass their accounts and pay their balances into Court. — Liberty to apply in Chambers as to any payments to be made by the receivers and generally. Gardner v. London, Chatham, and Dover By. Co. (V.-C. S.), July 12, 1866. Beceiver of Market. Let a proper person be appointed to receive the tolls, dues, and stallages of the Defts the mayor, aldermen, and burgesses of Brecon, Digitized by Microsoft® z 2 340 EECEIVEB. payable tinder and by -virtue of the Act of Parliament in the Pit's bill mentioned, and to collect and get in any sums due or to become due in respect thereof until further order. Let the said receiver be at liberty to let the stalls, shops, standings, places, shambles, benches, and other conveniences in the several markets in the said Act mentioned, not disturbing any existing lease or holding. — Usual directions. De Winton v. Mayor, &c., of Brecon, 26 Beav. 533 ; 5 Jur. (N.S.) 882. Receiver of Docks. Let a. W. P., the chairman of the trustees of the Birkenhead Docks, be appointed receiver of the rates and tolls in the Pit's bill mentioned, and of the rents and profits of the property therein mentioned, without salary and without giving security. Directions for payment into Court half-yearly of balances of the payment of costs, charges, and expenses of carrying on the business of the Defts, and the arrears of interest due and the interest to accrue due on the preferential mort- gages in the bill mentioned. — Liberty to apply. Ames v. Trustees of Birkenhead Docks, 20 Beav. 332. Meceiver of Bectory. Let a proper person be appointed to collect, get in, and receive the tithes, issues, and profits of the rectories in the pleadings mentioned. Let the receiver out of what he shall so receive pay and keep down what is or may become due and payable for or in respect of the incum- brances according to their respective priorities, &c. While v. Bishop of Peterborough, 3 Sw. 109. Meceiver of Pension. Let a proper person be appointed to receive the arrears and grow- ing payments of the annual service pension of £500 in the Pit's bill mentioned, &c. — Usual directions. Noad v. Backhouse, 2 Y. & C. 529. Beceiver and Manager — Agent abroad. Let a proper person be appointed to receive the rents and profits, &o. Let such receiver, with the approbation of the judge, appoint a proper person or persons as his agent or agents in New South Wales, or elsewhere, to receive such rents and profits, and to remit the same to such receiver in this countiy, and to make such agent or agents a proper allowance in respect thereof. Beceiver to pass accounts, and pay in balances, &c. Underwood v. Frost, 1857, B. 643 ; Seton, 1038. Digitized by Microsoft® RECEIVER. 341 New Security. Let the Deft, as the receiver appointed in this cause by the order dated the 10th June, 1867, give a new security duly to account for what he shall receive under the said order (such security to be settled by the judge). Let the said Deft as such receiver pass his accounts of receipts and payments as such receiver up to the date of such new security, and pay the balance (if any) which shall be certified to be due from him into Court to the credit of, &g., pursuant to the said order. And upon such new security being given and payment made as aforesaid. Let the recognizance dated the 16th May, 1867, be vacated. New Security — Surety deceased. The judge having directed H. T., the receiver in this cause, ap- pointed by the said order dated the 4th July, 1862, to give a new security in the place of George Tinker, deceased, the surety named in the recognizance dated the 14th July, 1862 : And the said H. Tinker having given such new security by entering into a recognizance together with G. G. and T. B. as his sureties, dated, &c., which has been approved by the judge and duly inrolled, the judge doth hereby continue the appointment of the said H. Tinker as such receiver, and doth direct him to pass his accounts and pay the balance that may be due from him, as directed by the said order. Let the said H. T. pass his accounts up to the date of giving such new security, and pay the balance which may be found due from him, as directed by the said order dated the 4th July, 1862. And thereupon Let the recognizance entered into by the said Henry Tinker together with — and — as his sureties, dated, &c., be vacated. Gharlesworth v. Maigh (M. E.), Feb. 6, 1871. EeCETVER — WHEJf APPOINTED. " A receiver may be appointed by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that such order should be made ; and any such ordtr may be made either imconditionally or upon such terms and conditions as the Court shall think just" : 36 & 37 Vict.i c. 66, s. 26, sub-s. 8. An application for an order under the above sub -section may be made to the Court or a judge by any party. If the application be by the pit it may be made either ex parte or with notice, and if it be by any other party, then on notice to the pit, and at any time after appearance by the party making the application : Jud. Rules, Order 52, rule 4. Except in the cases of infants, the Court had no power under its original juris- diction to appoint a receiver unless a suit was pending ; and if the application was made before decree it was not granted unless a bill had been filed containing a specific prayer for a receiver : Dan. 5th ed. 1582 : Pare v. Glegg, 7 Jur. (N.S.) 1136 J 9 W, R. 216 . Digitized by Microsoft® 342 RECEIVER. And a receiver could not be appointed before decree upon the motion of a deft : Bobinson ^r.Heudley, 11 Beav. 614. But a receiver might have been appointed before answer : Pitcher v. HelUer, 2 Dick. 580 ; Duckworth v. Traffwd, 18 Ves. 283 ; Davis v. Buke of Marl- lorough, 2 Sw. 115 ; Aberdeen v. Chitty, 3 Y. & C. 379 ; and in cases of urgency before appearance : Tanfield v. Irvine, 2 Buss. 149 ; Meaden v. Sealey, 6 Hare, 620 ; Hart v. Tulle, Ibid. 611. And at the hearing oi- after decree a receiver might have been appointed although not prayed by the bill, if circumstances required it : Osborne v. Harvey, 1 Y. & 0. 116 ; Bowman v. BeU, 14 Sim. 392 ; Wright v. Vernon, 3 Drew. 112. After decree the application for a receiver may be made by one deft against a co-deft: Hiles v. Moore, 15 Beav. 175. After an administration decree a receiver might have been appointed in a suit commenced by summons : Be Bywater, Sargent v. Johnson, 1 Jur. (N.S.) 227 ; Brookes v. Brookes, 3 Sm. & G. 475. Where a deft absconded to avoid service the appointment of a receiver has been made on an ex parte motion : Bowling v. Hudson, 14 Beav. 423. At the hearing of a redemption suit the Court would not, on the application of the deft, grant a receiver against the pit, a mortgagee in possession, none being prayed by the bill : Barlow v. Gains, 8 Beav. 329. A receiver has been appointed upon the motion of the vendor of an estate pending a reference as to title : Boehm v. Wood, 2 Jac. & W. 236. So, too, upon 'the motion of the purchaser to rescind a contract for purchase of a coal mine upon the ground of misrepresentation : Qibbs v. David, L. R. 20 Eq. 373. Security — Salary — ^Accounts. Where an order is made directing a receiver to be appointed, unless otherwise ordered the person to be appointed shall first give security, to be allowed by the judge and taken before a person authorized to administer oaths in Chancery, duly to administer, &c. And the person so to be appointed shall be allowed a proper salary for his care and pains ; Cons. Ord. 24, rule 1. The allowance is generally £5 per^cent. upon the amount received, but this percentage may be either increased or diminished : Day v. Graft, 2 Beav. 488 ; 4 Jur. 429. And special allowances, beyond his salary may be allowed to a receiver : Potts V. Leighton, 15 Ves. 276. Where an application by a deft against a receiver was refused with costs, and the deft was unable to pay the costs, the. receiver was held entitled to deduct his costs as between solicitor and client from the balance in his hands : Courand v. Hanmer, 9 Beav. 3, cited in Dan. 5th ed. 1596. The judge shall fix the days upon which receivers shall ^annually or at larger or shorter periods at his discretion) leave or pass their accounts, and also the days upon which such receiver shall pay the balance appearing due on the accounts so left, or such part thereof as the chief clerk shall certify as proper to be paid by them : Cons. Ord. 24, rule 2. And with respect to such receivers as shall neglect to leave and pass their ac- counts, and pay the balances, the judge may not only disallow the salary, but also charge the receiver with interest at the rate of £5 per cent, per annum upon the balances neglected to be paid. Ibid. A receiver who keeps money in his hands even for a quarter of a year after the Digitized by Microsoft® EECEIVEE. 343 proper time will be charged with interest : Fletcher v. Dodd, 1 Ves. Jun. 85 ; 15 Ves. 273. And the interest may be charged, although the accounts have been settled or the receiver discharged : Eicks v. Hicks, 3 Atk. 274 ; Harrison v. Boydell, 6 Sim. 211. Where the receiver, who had been discharged, had not paid in his balance, he was charged with interest, both upon the balance and upon his salary : Harrison, V. BoydeU, supra. Upon a receiver's account being left in judge's chambers to be passed, a sum- mons to proceed thereon shall be taken out ; and the account when passed shall be entered by the solicitor of the receiver in books as heretofore ; and the affidavit verifying the account so passed shall refer to it as an exhibit, and not be annexed to it: Cons. Ord. 24, rule 3. Upon an application at chambers to appoint a receiver, the expenses of a certifi- cate, in addition to an order, may be saved by the recognizance being completed and inrolled before the order is drawn up : Dan. 5th ed. 1589 ; Order, p. 336. When a receivership has been completed, the book containing the accounts shall be deposited in the office of the clerks of records and writs : Cons. Ord. 24, rule 4. Where the partira in the cause name the receiver, the Court will by consent appoint him upon his own recognizance only: Countess of Carlisle v. Lord Berkley, Amb. 599 ; Bidout v. Harl of Plymouth, 1 Dick. 68 ; Wilson v. Wilson, 11 Jur. 793 ; see also Hibbert v. Hihhert, 3 Mer. 681. But the Court will not dispense with the usual security unless all parties are «m juris and consent : Tylee v. Tylee, 17 Beav. 583. The sureties must be resident within the jurisdiction : CocJcburn v. Raphael, 2 S. & S. 453. The receiver may at any time apply to the Court to pay in balances in his hands : Shaw v. Rhodes, 2 Euss. 539. Where a manager is appointed of colonial property, security must be given, except under special circumstances : Rutherford v. Wilkinson, Seton, 1036, 1038 ; Dan. 5th ed. 1618. Consignees appointed by the Court in an administration suit have a charge on the property for payments sanctioned by the Court, in priority to incumbrances created before the suit; and will be allowed interest on the balance due to them : Dan. 5th ed. 1618 ; Morison v. Morison, 7 De G. M. & G. 214 ; 1 Jur. (N.S.) 1100; 2 Sm. & Giff. 564. The Persons appointed Eeceivees. A party to the suit may by special leave be appointed receiver: Davis v. Barrett, 13 L. J. (Oh.) 304. But unless by consent and by express order he must act without salary : Powys v. Blagrave, 18 Jur. 462. A trustee who is a party to the cause will not generally be appointed : FrugU v. Blake, 2 Moll. 50 ; Sykes v. Hastings, 11 Ves. 363 ; Anon., 3 Ves. 515 ; nor as a general rule vrill the Court appoint the next friend of an infant : Stone v. Wishart, 2 Mad. 64 ; nor a solicitor in the cause : Oarland v. Garland, 2 Ves. 137. As to the ap- pointment of members of parliament or peers of the realm, see Wynne v. luord Newborough, 15 Ves. 283 ; Att.-Oem. v. Oee, 2 V. & B. 208. Where a receiver is ordered of property being wound up by the Court, the liquidator is generally appointed the receiver : Perry v. Oriental Hotels Co.i L. E. 5 Oh. 420. Digitized by Microsoft® 344 RECEIVER. Evidence. The application for a receiver must be supported by evidence of the facts relied upon, and must, if the application was made before decree, have been founded upon the allegations of the bill : Dan. 5th ed, 1584 ; Dawson v. Yates, 1 Beav. 301, 306 ; 2 Jur. 960. The answer of the deft was for the purposes of evidence on the application to be regarded merely as an affidavit of the deft ; and affidavits may be received and read in opposition thereto : 15 & 16 Vict, c. 86, s, 59, Effect of Appointment. The possession of a receiver is deemed to be that of the Court, and any attempt to disturb it without the leave of the Court is a contempt of Court, aud may be restrained by injunction : Daniell, 5th ed. 1592, and cases cited. Any undue interference with the receiver may also be punished by committal : Broad v. Wichham, 4 Sim. 511 ; Ward v. Swift, 6 Hare, 312. See also Arms v. Trustees of Birkenhead Docks, 20 Beav. 332. As against parties to the suit the direction in an order that a receiver be ap- pointed is equivalent to the order appointing him : Defries v. Creed, 11 Jur. (N.S.) 360 ; 13 W. B. 632. Where a sheriff has taken property, part of which is claimed by the receiver, the latter will be ordered to give a list of the property claimed by him to the sheriff, who will be ordered to withdraw from possession : Willmer v. Kidd, Seton, 1002 ; Dan. 5th ed. 1592 ; see Order, p. 346. The sheriff will not be permitted to execute process after notice of the appoint- ment of a receiver : Try v. Try, 13 Beav. 422 ; Hock v. Cooh, 2 De G. & Sm. 493 ; Onyon v. Washlowne, 14 Jur. 497. Where the furniture of a house had been sold by the receiver, the landlord, not having distrained for rent due, was held to have no priority over other creditors in the proceeds of the sale : Sutton v. Bees, 9 Jur. (N.S.) 456. The Peoperty of ■which Eeceivkr may be appointed. A receiver may be appointed of the rents aud profits of real estate, and also of all personal estate which is capable of being reduced into possession : Dan. 5th ed, 1577 ; Kei-r on Receivers, 87-92. And in favour of equitable creditors the Court will appoint a receiver of all property against which a legal creditor might obtain execution : Davis v. Duke of Marlborough, 2 Sw. 132, cited in Dan. 5th ed, 1577. A receiver may be appointed of heir-looms : Earl of Shaftesbury v. Duke of Marlborough, Seton, 1025 ; Order, p. 338 ; of railways, Russell v. East Anglian By. Co., 3 Mac. & G. 104 ; Furness v. Caterham, By. Co., 25 Beav, 614 ; 4 Jur, (N.S.) 1213 ; Re Stafford and Uttoxeter By. Co., W, N, (1868) 113; Gardner v. London, Chatham, and Dover By. Co. (V.-C. S.) ; Order, p. 339 ; of canals, Fripp V. Chard By. Co., 11 Hare, 241; 17 Jur. 887; Potts v. WarwicJe Canal Co., Kay, 142, 143 ; Bophins v. Worcester and Birmingham Canal Co., L. R. 6 Eq. 437 ; Order, p. 339 ; of docks, Ames v. Trustees of Birkenhead Docks, 20 Beav. 332 ; Order, p. 340 , Postlethwaite v. Maryport Barbour Trustees, W. N. (1869) 37 ; of turnpikes, Knapp v. Williams, 4 Ves. 430 ; Dumville v. Ash- brooke, 3 Russ. 982 ; Lord Crewe v. Edleston, 1 De G. & J. 93 ; of markets De Digitized by Microsoft® RECEIVER. 345 Winton V. Mayor of Brecon, 26 Beav. 533 ,• Order, p. 339 ; of a pension, Noad V. Backhouse, 2 Y. & C. 529 ; Order, p. 340 ; Carew v. Cooper, 4 Giff. 619 ; but see Lloyd v. Cheetham, 3 Giff. 171 ; Davis v. Duke of Marlborough, 1 Sw. 74, 84 ; S. C. 2 Sw. 108 ; of a canonry, Qrenfell v. Dean of Windsor, 2 Beav. 544. A receiver and manager may be appointed of property abroad. And in some of such cases be has been appointed receiver and manager with authority to ap- point an agent abroad, and in others, he has been appointed receiver or manager, with directions to consign to some person resident in England : v. Lind- say, 15 Ves. 91 ; Cockbum v. Raphael, 2 S. & S. 453 ; Rutherford v. WUkinson, Seton, 1036. The word " receiver " includes consignee and manager : Prel. Ord, 10, rule 7. The person who has recovered judgment in an action on a contract entered into after the passing of the Companies Act, 1867 (30 & 31 Vict. c. 127), or in an action not on a contract commenced after the passing of that Act, may obtain the appointment of a receiver, and, if necessary, of a manager of the undertaking : 30 & 31 Vict. c. 127, s. 4. But a manager will not be appointed in a suit by a debenture-holder : Oar- diner V. Chatham and Dover Ry. Co., L. R. 2 Ch. 201 ; Bowen v. Brecon Ry. Co., L. R 3 Eq. 541, 545. Every order appointing a receiver under the last-mentioned Act is to direct such accounts and inquiries as the Court may think fit for ascertaining the debts of the company, and the rights and priorities of the persons interested in the moneys to come to the hands of such receiver or manager : Cons. Ord. 1868, rule 32. Mortgaged Property. The Court will on motion appoint a receiver for an equitable creditor, or a person having an equitable estate, without prejudice to persons who have prior estates ; in this sense without prejudice to persons having prior legal estates, that it will not prevent their proceeding to obtain possession if they think proper : Marlborough v. Davis, 2 Sw. 137, per Lord Eldon. And in order that prior equities may not he disturbed, the Court directs in- quiries to determine priorities among equitable incumbrancers : Ibid. Where a receiver has been appointed of a moi-tgaged estate, the mortgagee must obtain the leave of the Court to bring an ejectment : Bryan v. Cormick, 1 Cox, 422; Anon., 6 Ves. 287 ; 9 Ves. 335. The Court will not allow a prior incumbrancer to object to the appointment of a receiver by anything short of a personal assertion of his legal right and taking possession : Silver v. Bishop of Norwich, 3 Sw. 112, n., per Lord Cottenham. The Court will grant a receiver at the instance of a second incumbrancer in all cases in which the first incumbrancer is not in possession of the property ; and the circumstance of the party creating the incumbrance being abroad, and re- fusing to appear to the suit, will not deprive the second incumbrancer of his right to a receiver : Dan. 1565 : Tanfield v. Irvine, 2 Russ. 149 ; Coward v. Chadwick, 2 Russ. 150, n. ; Browne v. Blount, 2 Russ. & My. 83. The mortgagee of an undivided share may, in a suit for foreclosure and partition, obtain the appointment of a receiver of his undivided share : FcUl v. Mkins, 9 W. E. 861 ; Morgan, 499. Where any principal money is secm-ed or charged by deed on any heredita- ments of any tenure, or on any interest therein, the person to whom such money Digitized by Microsoft® 346 RECEIVBE. shall for the time being be payable, his executors, administrators, or assigns, shall at any time after the expiration of one year from the time when the principal money shall have become payable, or after any interest shall have been in arrear for six months, or after aay omission to pay a premium on any insurance, &c., have the power (inter alia) " to appoint or obtain the appointment of a receiver of the rents and profits of the whole or any part of the property " : 23 & 24 Vict. c. 145, s. 11. Any person entitled to such receiver may appoint any one named in the deed of charge for that purpose, or if no person named, then may by writing delivered to any one entitled subject to the charge, or affixed on some conspicuous part of the property, require him to appoint a receiver, and if no such appointment be made within ten days after requisition, then may in writing appoint any person he may think fit: 23 & 24 Vict. c. 145, s. 17. Every receiver appointed under the Act is to be deemed to be agent of the person entitled to the property subject to the charge, who is to be solely responsi- ble for his acts or defaults, imless otherwise provided for in the charge : 23 & 24 Vict. c. 145, s. 18 ; see Jones v. Smith, 1 Hare, 43, 72. Every receiver appointed under the Act has power " to demand and recover and give effectual receipts for all the rents, issues, and profits of the property of which he is appointed receiver by action, suit, or distress, or otherwise," &c. : 23 & 24 Vict. c. 145, s. 19. " Every receiver appointed as aforesaid may be removed by the like authority, or on the like requisition, as before provided with respect to the original appoint- ment of a receiver, and new receivers may be appointed from time to time " : 23 & 24 Vict. c. 145, s. 20. Every receiver appointed under the Act is to pay and apply all the money re- ceived in the first place in discharge of all taxes, rates, and assessments, and in payment of his commission, and of the premiums or insurances, if any, and in the next place, in payment of interest due in respect of any piincipal money, and subject thereto is to pay the residue to the person entitled : sect. 22. Directions by the Court to the EECEiyEs. To ddstram. Let — the receiver of the rents and profits of — , be at liberty to distrain upon the goods and chattels of the several tenants named in the affidavit of — , for the several amounts of rent due and owing from the said tenants, and Let such distraints be made in the name of — , in whom the legal estate in the said — is vested : Gee v. Atherton, Seton, 1013. Receiver to give Sheriff Statement of Property claimed — Sheriff to give up Let p., the receiver appointed in this cause, within seven days after notice hereof, deliver to the sheriff of S. a statement in writing speci- fying what part of the goods and chattels now in possession of the said sheriff the said receiver claims as the property of the testator K. Let the sheriff withdraw from the possession of such parts of the Digitized by Microsoft® RECEIVER. 347 said goods and chattels as the receiver shall so specify. WiUmer v. Kidd (V.-C. W.), July 14, 1853 ; Seton, 1002. Seceiver to bring Ejectment or defend Actions. Let — the receiver, &o., he at liherty to bring an action of eject- ment against — , in the Coiirt of — , for the recovery of the premises situate, &c. [or, be at liberty to defend the action brought against him by — , in the Court of — .] And the said receiver is to be allowed his costs and expenses of bringing the said action of eject- ment [or, of defending the said action] in passing his accounts. Beeeiver to sanction Expenditure. Let — the receiver, &c., be at liberty to expend a sum not exceed- ing the sum of £ — in executing the works [or, repairs] specified in the affidavit of — , and the said receiver is to be allowed the sum which shall be expended under the direction hereinbefore contained in passing his accounts. Similar Order — Certificate. Let the works and repairs on the land and premises situate, &c., mentioned in the affidavit of — , be done and executed according to the specifications and estimates contained in the exhibits K. and L. as in the said affidavit referred to, and under the direction and superin- tendence of — , the receiver. Let, upon the said works and repairs being certified to have been properly executed according to the said several specifications and estimates, the said receiver be at liberty to pay the amount expended upon such works and repairs under the directions hereinbefore contained to the person or persons entitled to receive the same. And the said receiver is to be allowed such sums on passing his accounts. 'Receiver — To talce Legal Proceedings — Bankrupt's Estate. Let G. S., the receiver appointed in this cause, be at liberty to commence, continue, and carry on proceedings at law against the several persons named in the schedule hereto, to recover from them the amounts due from them to the partnership estate which are respectively set opposite their names in the second column of the said schedule. Let the said receiver be at liberty, at the expense of the said estate, to convene a meeting of all the creditors of the said estate for the purpose of laying before them a. statement of the partnership estate and assets, and of the proceedings in this suit. Hodgson v, Davidson, schedule (V.-C. B), Feb. 21, 1871. Digitized by Microsoft® 348 EECEJVER. After tlie tenants have attorned to the receiver he may distrain in his own name for rent accrued during such tenancy without an order: Dan. 5th ed. 1596, and cases cited. But a distress for rent accrued before that time must be made in the name of the person who has the legal right to the rent. : Ibid. ; Woodfall, 51, 393. And if the rent be in arrear for more than a year an order is necessary : Bran- don V. Brandon, 5 Madd. 473. But a minute of the directions given by the chief clerk is sometimes made without an order being drawn. A receiver is not permitted to expend any considerable sum of money in repairs or rebuilding without the sanction of the Court: Att.-Qen. v Vigor, 11 Ves. 563 ; Thornhill v. Thornhill, 14 Sim. 600 ; see also Tempest v. Ord, 2 Mer. 55. Meceiver to iring in Acccnmt. Let — , the receiver appointed, &o., and pursuant to the order dated, &c., on or before the — day of — [or, within — days after service of this order] leave in the chambers of the judge his- account as such receiver. [If ordered : Let the said — , receiver, pay the costs of this application, to be taxed, &c.J Recognizance to he pat in Suit. Upon the' application, &c., and upon hearing the solicitor for [or, upon reading an affidavit of service, &o., on] — , the receiver, and — , the sureties, the said — be at liberty to put in suit the recog- nizance dated, &c., and entered into by the said — , the receiver, together with the said — and — as his sureties. Where a receiver who had been discharged did not pay in his balance by the appointed time, he was ordered to pay in the same, and also the amount allowed for his salary with interest : Harrison v. Boydell, 6 Sim. 211. In a similar case the interest charged was not upon each sum from the time it was received, but as an executor would be charged : Potts v. Leighton, 15 Ves. 273. Seceiver discharged — Payment — Secognizanee vacated. Let — , the receiver appointed by the order dated, &o., be discharged. Let him pass his final account of receipts and payments, and pay the balance which shall be certified to be due from him into Court to the credit, &o. [or, to A. B.]. And upon such payment being made. Let the recognizance dated, &c., be discharged. Payment hy Executor of deceased Seceiver — Secognizanee vacated. Let — , the executor or administrator of — , the receiver, be at liberty to carry in and pass the account of receipts and payments of the said — as such receiver from the foot of his last account to the time of his decease ; and pay the balance which shall be certified to Digitized by Microsoft® EECEIVEE. 349 be due from the said — into the bank, &o. [m; to A. B.]. And upon such payment being made, Let the recognizance dated, &c., be vacated. Discharge of Eeceiver. The application to discharge the receiver and vacate his recognizance is some- times made upon motion in Court, or by summons in chamhers. The direction may also he given in the decree or order on further consideration. The receiver is entitled to the costs of his application to he discharged : Eichard- son V. Ward, 6 Madd. 266. The receiver will not he discharged upon the ex parte application of the person at whose instance he was appointed : Largan v. Sowen, 1 Sch. & Lef. 296 ; Davis V. Duke of MartborougJi, 2 Sw. 108 ; cited in Dan. 5th ed. 1612. Digitized by Microsoft® ( 350 ) CHAPTER XXIV. MORTGAGES. Foreclosure. Common Decree — Mortgagor in Possession. [If security has been disputed : Declare that the indenture dated, &c., in the pleadings, mentioned is a good and valid security.] Let an account be taken of what is due to the Pit for principal and interest on his mortgage in the pleadings mentioned, and for his costs of this action (such costs to be taxed by the taxing master). Let, upon the Deft paying to the Pit what shall be certified to be due to him for principal, interest, and costs as aforesaid within six calendar months after the date of the chief clerk's certificate, at such time and place as shall be thereby appointed, the Pit re-convey [re-assign, or re- surrender] the hereditaments and premises comprised in the said indenture, free and clear of and from all incumbrances effected by him or any person or persons claiming by, from, or under him. [If Pit he the representative of the original mortgagee, add, or by those under whom he claims], and deliver up upon oath all deeds and wi'itings in his custody or power relating thereto to the Deft, or to whom ho shall appoint. But in default of the Deft paying to the Pit what shall be so certified to be due to him for such principal, interest, and costs as aforesaid by the time aforesaid, the Deft is from thenceforth to stand absolutely debarred and foreclosed of and from all right, title, interest, and equity of redemption of, in, and to the said mortgaged premises. — Liberty to apply. Foreclosure — Mortgagor in possession — Debt admitted. The Deft by his counsel admitting that the sum of £ — is now due and owing from him to the Pit for principal on his several mortgages in the pleadings mentioned, and the sum of £ — for interest thereon up to this day, making together the sum of £ — , Let, upon the Deft paying to the Pit the said sum of £ — , together with the further sum of £ — for subsequent interest on the said principal sum from this day up to the — day of — , being six calendar months from this time, making together the sum of £ — ; on the said — day of — , at the Digitized by Microsoft® MORTQAGES. 351 Chapel of the EoUs, Chancery Lane, London, between the hours of twelve and one in the forenoon, the Pit re-convey [re-surrender, or re-assign, &c.j, and deliver up, &c. But in default, &o., the Deft is from thenceforth to stand absolutely debarred and foreclosed, &c. Foreclosure — Mortgagee in possession. Let the following accounts be taken, that is to say : — 1. An account of what is due to the Pit for principal and interest on his mortgage in the pleadings mentioned, and for his costs of this action (to be taxed by the taxing master). . 2. An account of the rents and profits of the hereditaments com- prised in the said mortgage received by the Pits, or either of them, or by any other person or persons, by the order or for the use of the Pits, or either of them, or which without the wilful default of the Pits or either of them might have been so received. Let what shall appear to be due on such account of rents and profits be deducted from what shall appear to be due to the Pits for principal, interest, and costs as aforesaid. And upon the Deft paying to the Pits what shall be certified to remain due to them for principal, interest, and costs as aforesaid, after such deduction, within six calendar months, &c., at such time and place, &c., Let the Pit re- convey [re-surrender, or re-assign, &c.], &c., and deliver up, &c. But in default, &c., the Deft is from thenceforth to stand absolutely debarred and foreclosed, &c. Foreclosure — Mortgagee in possession — Account of Bents and Profits — Mepairs and lasting Improvements. Let the following accounts be taken : — 1. An account of what is due to the Pits for principal and interest on the mortgage in the pleadings mentioned, and for their costs of this action (to be taxed by the taxing master). 2. An account of all sums of money laid out by the Pits in necessary repairs and lasting improvements in the hereditaments com- ( prised in the said mortgage. Let interest be computed on the sum which shall appear to have been so laid put in lasting improvements after the same rate of interest as the said mortgage carries ; and Let what shall appear due on the account numbered 2 be added to what shall appear due to the Pits on the account numbered 1. 3. An account of the rents and profits of the mortgaged heredita- ments received by the Pits or either of them, or by any other person or persons, by the order or for the use of the Pits or any [or either] of them, or which without the wilful default of the Pits or any [or either] of them might have been so received. Digitized by Microsoft® 352 MOETGAGES. Let what shall appear due on the last-mentioned account be de- ducted from what shall appear due to the Pits on the accounts num- bered 1 and 2. And, upon the Defts or either of them paying to the Pits what upon the balance of the said accounts shall be certified to be due to them, within six calendar months, &c., Let the Pits re-convey, [re-surrender, or re-assign], &c., and deliver up, &o. But in default, &c., the Defts are from thenceforth to stand absolutely debarred and foreclosed, &c. Successive Foreclosures — First Mortgagees v. Second and Mortgagor. 1 . Let an account be taken of what is due to the Pits for principal and interest on their mortgage in the pleadings mentioned, and for their costs of this action (such costs to be taxed, &c.). Let, upon the Deft K. (second mortgagee) paying to the Pits what shall be certified to be due within six calendar months after, &o., at such time, &c., the Pits re-convey the mortgaged hereditaments free and clear, &c., and deliver all deeds and writings, &c. But in default of the Deft K. paying to the Pits what shall be certified to be due to them for such principal, interest, and costs as aforesaid by the time aforesaid, the Deft K. is from thenceforth to stand absolutely debarred and foreclosed, &c. And in case of such foreclosure. Let the Pits' subsequent iuterest be computed ; and Let their subsequent costs be taxed by the taxing master. And upon the Defts W. F. and J. F. (mortgagors) paying to the Pits what shall be certified to be due to them for principal, interest, subsequent interest, and costs as~ aforesaid within three calendar months after the Chief Clerk shall have made his subsequent certificate, at such time and place, &c., Let the Pits re-convey the said mortgaged premises free and clear, &c., and deliver all deeds, &c., to the Defts W. F. and J. F., or as they shall appoint. And in default of the said Defts W. F. and J. F. paying to the Pits what shall be cer- tified to be due to them as aforesaid by the time aforesaid, the said Defts W. F. and J. F. are from thenceforth to stand absolutely debarred and foreclosed, Ac. But in case the Deft K. [second mortgagee] shall redeem the Pits the said mortgaged hereditaments. Let subsequent interest be computed on what the Deft K. shall have so paid to the Pits, and Let an account be taken of what is due to the Deft K. for principal and interest on his said mortgage, and for his costs of this action, to be taxed, &c. And upon the Defts W. F. and J. F. [mortgagors] paying to the Deft K. what he shall have so paid to the Pits, together with what shall be certified to be due to the Deft K. for principal aid interest and subsequent interest on his said mortgage and for his costs as aforesaid within three calendar months, &c., at such time and place, &c.. Let the Deft K. fe- convey, &c., and deliver all deeds, &c., to the said W. F. and J. F. Digitized by Microsoft® MORTGAGES. 353 [mortgagors], or as they shall appoint. But in default of the Defts W. F. and J. F. paying to the Deft K. what shall be certified to be due by the time aforesaid, the said Defts W. F. and J. F. are from thenceforth to stand absolutely debarred and foreclosed, &c. — Liberty to apply. Successive Foreclosures — First Mortgagee y. Second and Third Mortgagees and Mortgagor. Let an account be taken of what is due to the Pits W. and B. [first mortgagees] for principal and interest under and by virtue of the in- denture, dated, &c., in the bill mentioned, and for their costs of this suit, to be taxed, &c. And upon the Defts H. and E. [second mort- gagees] paying to the Pits what shall be certified to be due within six calendar months, &c., at such time and place, &c., Let the Pits re- convey, &c., and deliver up all deeds, &c. In default Let the said Defts stand foreclosed, &c. And in case of such foreclosure Let the Pits' subsequent interest be computed, and the subsequent costs of the Pits of this suit be taxed. And upon the Deft L. [the third mort- gagee] paying to the Pits what shall be certified to be the total amount due for principal, interest, and costs as aforesaid, within three calendar months, &c., at such time and place, &c.. Let the Pits re-convey, &c., and deliver up, &c. But in default, &c., Let the said Deft stand fore- closed, &c. And in case of such foreclosure Let the Pits' subsequent interest be computed, and the subsequent costs of the Pits of this suit be taxed, &c. And upon the Deft K. [the mortgagor] paying within three calendar months what shall be certified to be the total amount due for principal, interest, and costs, as aforesaid, at such time and place, &c., Let the Pits re-convey, &c., and deliver up, &c. And in default, &c.. Let the said Deft K. be foreclosed, &c. But in case the Defts H. and E. [second mortgagees] shall redeem the said hereditaments and premises, Let subsequent interest be computed on what the said Defts shall pay to the Pits, and Let an account be taken of what is due to the said Defts for principal and interest on their mortgage security, dated, &c., and for their costs of this suit, to be taxed by the taxing master. And upon the Deft L. [third mortgagee] paying to the said Defts H. and E. what they shall have so paid to the Pits, together with what shall be certified to be due to the said Defts H. and E. for principal and interest and subsequent interest on their mortgage security, dated, &c , and for their costs as aforesaid, within three calendar months, at such time and place, &c., Let the said Defts H. and E. re-convey, &c., and deliver up, &g. And in default, &c,, Let the said Deft L. stand foreclosed, &c. And in case of such fore- closure, Let subsequent interest be computed on what shall be certi- Digitized by Microsoft® ^ ^ 354 MORTGAGES. fied to be due to the said H. and K., and let their subsequent costs be taxed. And upon the Deft K. paying to the Defts H. and E. what they shall have so paid to the Pits, together with what shall be certified to be due to the said Defts H. and E. for principal and interest and sub- sequent interest, and for their costs as aforesaid within three calendar months, &o., at such time and place, &c., Let the said Defts H. and E. re-convey, &c., and, deliver up, &c. But in default, &c.. Let the said Deft K. stand foreclosed, &c. But in case the Deft L. [third mortgagee] shall redeem the Pits or the Defts H. and E., Let subsequent interest be computed on what the said Deft L. shall pay to the said Pits or the said Defts H. and E., and Let the following farther account be taken : An account of what is due to the said Deft L. for principal and interest on his mort- gage security dated — , and for costs of suit, to be taxed, &o. And upon the Deft K. [mortgagor] paying to the said Deft L. what he shall have paid to the Pits, or to the said Defts H. and E., together with what shall be certified to be due to him for principal and interest and subsequent interest, and for costs as aforesaid, within three calendar months, &c., at such time and place, &c.. Let the said Deft L. re-convey, &c., and deliver up, &c. In default, &c.. Let Deft K. stand foreclosed, &c. Wagstaff y. Kemp (M.K.), Kov. 11, 1873. Successive Foreclosures — Third Mortgagees v. Assignees of First Mortgagee and Owners of Equity of Bedemption and Representatives of Second Mortgagee. Let an account be taken of what is due to the Deft W. B. [assignee of first mortgagee] for principal and interest in respect of the several mortgage surrenders in the Pit's bill mentioned, and for his costs pro- perly incurred in consequence thereof, and for his costs of suit to be taxed, &c. An account of the rents and profits of the mortgaged premises received by the Deft W. B., or by W. W., under whom the said Deft W. B. claims, or by any other person or persons, by his or their order, or for his or their use, or which without his or their wilful neglect or default might have been received. Let what shall be owing on such last-mentioned accounts of rents and profits be deducted from what shall be found due to the Deft W. B. for principal, interest, and costs as aforesaid. Let upon the Defts S. L. and E. his wife [personal representa- tives of second mortgagee] paying to the Deft W. B. [assignee of first mortgagee] the balance which shall be remaining due to him for such principal, interest, and costs as aforesaid after such deduction as afore- said, within six calendar months, &c., at such time and place, &c., the Deft W. B. surrender and re-assign the mortgaged premises comprised Digitized by Microsoft® MORTGAGES. 355 in the said mortgage surrenders free and clear, &o., and deliver up on oath all deeds, &o. But in default of the said Defts S. L. and E. his wife paying to the said Defendant W. B. such balance as aforesaid, by the time aforesaid, Let them stand absolutely debarred and foreclosed, &o. And in case of such foreclosure, Let the subsequent interest of the Deft W. B. be computed, and his subsequent costs of this suit be taxed. And upon the Pits T. T. and M. T. [third mortgagees] paying the said Deft W. B. what shall be certified to be due to him for principal, interest, and costs as aforesaid, after such deduction as aforesaid, within three calendar months, &c., at such time and place, &c.. Let the Deft W. B. surrender and re-assign the said mortgage premises free and clear, &c., and deliver upon oath, &c. But in default of the said T. T. and M. T. paying to the Deft W. B. what shall be found due to him as aforesaid, by the time aforesaid. Let them stand absolutely debarred and foreclosed, &c. And in case of such foreclosure, Let the subsequent interest ef the Deft W. B. be computed, and his subsequent costs of this suit be taxed. And upon the Defts J. S. C. and Jane his wife [owners of equity of redemption] paying to the Deft W. B. what shall be certi- fied to be due for principal, interest, and costs as aforesaid, within three calendar months, &c., at such time and place, &c.. Let the Deft W. B. surrender and re-assign, &c., and deliver up, &c. But in default of the said J. S. C. and Jane his wife paying to the Deft W. B. what shall be certified to be due for principal, interest, and costs. Let the said J. S. 0. and Jane his wife stand absolutely debarred and fore- closed, &c. But in case the Defts S. L. and E. his wife and M. G. [repre- sentatives of second mortgagees] shall redeem the said Deft W. B. as aforesaid, by the time aforesaid. Let an account be taken of what is due to the said S. L. and E. his wife, as the executors of T. M. deceased, for principal and interest on his mortgage securities in the pleadings mentioned, and for what the said S. L. and E. his wife shall so pay to the Deft W. B. for principal, interest, and costs as aforesaid, and for interest thereon, and for costs of suit (to be taxed by the taxing master). And upon the Pits T. T. and M. T. [third mortgagees] paying to the said S. L. and E. his wife what shall be found due to them for- such principal, and interest, and costs as aforesaid, within three calendar months, &c.. Let the said S. L. and E. his wife surrender and re-assisn the said mortgaged premises, &c. But in default of the said T. T. and M. T. paying, &c. And in case of such foreclosure Let the subse- quent interest of the said Defts S. L. and E. his wife, and M. C, ou their said mortgage, and on what they shall have paid to the said Deft W. B., be computed, and Let their subsequent costs of this suit Digitized by Microsoft® 2 a 2 356 MORTGAGES. be taxed. And upon the Defts J. S. C. and Jane his wife paying, &c., within three calendar months, &c.. Let the said Defts S. L. and E. his wife surrender and re-assign, &c. But in default of the said J. S. C. and Jane his wife paying, &o. But in case the said Pits T. T. and M. T. [third mortgagees] shall redeem the said Defts S. L. and E. his wife, Let an account be taken of what is due to the said Pits T. T. and M. T. for principal and interest on their mortgage securities, and for what the said Pits T. T. and M. T. shall so pay to the said Defts S. L. and E. his wife for principal, interest, and costs as aforesaid, and for interest thereon, and for the Pits' costs of this suit and at Law, to be taxed, &c. And upon the Defts J. S. C. and Jane his wife [owners of equity of redemption] paying to the said T. T. and M. T. what shall be found due to them for such principal, interest, and costs as aforesaid, after such deduc- tions as aforesaid, within three n^onths, &o. Let the said T. T. and M. T. surrender and re-assign, &c. But in default of the said Defts J. S. C. and Jane his wife paying to the Pits T. T. and M. T. what shall be remaining due to them for such principal, interest, and costs as aforesaid, by the time aforesaid, the said Defts J. S. C. and Jane his wife are from thenceforth to stand absolutely debarred and fore- closed, &c. Thachwray v. Bell (L. C), Feb. 1, 1840. Suit hy Mortgagee — Questions of Priority {not affecting Pit) raised between Go-Defts — Bedemption hy Time stated. Let an account be taken of what is due to the Pit under and by virtue, &c. And upon the Defts ■ — , or any of them, paying to the Pit what shall be certified to be due, &c., within six calendar months, &c., at such time and place, &c.. Let the Pit execute all proper and necessary deeds, &c., and deliver up upon oath all the title deeds, &o., to the said Defts, or to such one or more of them as shall so redeem the Pit, or as he or they shall direct, such conveyances to be settled, &o. And in case the said Defts, or any or either of them, shall so redeem the Pit, the Defts or Deft so redeeming the Pit are or is to be at liberty to apply to this Court as he or she may be advised, and on such application it is not to be inciimbent on the Deft or Defts so applying to give to the Pit notice thereof. But this order is to be without prejudice to any question which may arise as to the rights or interests of the said Defts as between themselves to or in the said hereditaments and premises. And in default of the said Defts or any or either of them so redeeming the Pit by the time aforesaid. Let them stand absolutely debarred and foreclosed, &o. And this decree i§ also to be without prejudice to tbe rights of the Crown as regards the leasehold premises comprised in the Pit's mortgage security. And in Digitized by Microsoft® MORTGAGES. 357 case of such fureclosure aforesaid, the Pit is to be at liberty to hold the said leasehold premises until the Crown shall think fit to redeem the same, and to be at liberty to apply in chambers for a sale of the said leaseholds. And this decree is to be also without prejudice to the paramount titles set up by the Defts E. P. and S. P. as regards the premises affected or alleged to be affected thereby. —Stay of proceed- ings against some of the Defts.— Liberty to apply. Bartleit y. Bees, L. E. 12 Eq. 395. Changes in Interest of Mortgagor — Equity descended on co-Heirs — One an Infant, the other Bankrupt. Let an account be taken of what is due to the Pit for principal and interest, &c., and for costs, &c., such costs to be taxed, &c. Let, upon the Defts K. and S. paying to the Pit what shall be certi- fied, &c., the Pit re-convey the one undivided moiety of the mortgaged hereditaments to the Deft K., and the other undivided moiety to the Deft S., free and clear, &c., and deliver up all deeds, &c. But in default, &c., both Defts to be foreclosed. And in case the Defts shall redeem the said premises, the undivided moiety thereof which shall be conveyed to the Deft S. is to be for the benefit of the creditors of B. in the pleadings named. And this decree is to be binding on the infant Deft K., unless, &c. Seton, 423. Change in Interest of Mortgagor— Mortgagor seised of Estates 1, 2, 3, and 4, subject to Legacy, Mortgages 1, 3, and 4 — Marriage Settlement — Mortgages No. 2 — Becomes Bankrupt. Let interest be calculated from the — day of — (the date of filing the bill) on the legacy of £800 bequeathed by the will of — to B. — Account of what is due to the several incumbrancers. — Let, on the Pit {creditor's assignee of mortgagor] and Deft X. [tenant in tail under the marriage settlement] paying to the Defts the incumbrancers respectively what shall be certified, &c., the said Defts release and convey the estates comprised in their several mortgages, according to the respective interests of the several parties, free and cl6ar, &c., that is to say : — ^As to the estate 2 (unsettled), to the Pit and the Deft X., or to such of them as shall so redeem the same, and as to estates 1, 3, and 4 (settled), upon the trusts of the settlement dated, &c. (Delivery of deeds, &c.) But in default of the Pit and X., or either of them, redeeming the said mortgaged premises within the time aforesaid. Let the Pit's bill be dismissed with costs, to be taxed, &c., and paid by Pit. ChappeU v. Bees, as affirmed on appeal, 1 De 6. M. & G. 393. Digitized by Microsoft® 358 MORTGAGES. Change in Interest of Mortgagee — Mortgage devised to Trustee— xA Deft dowable — Apportionment of Mortgage-money. An account of what is due on the lands comprised in the mort- gage security dated, &c., to A., the testator, devised hy the will of the said testator to the Pit B. in trust for the benefit of the other Pits. Let, upon the Defts C. and D., or either of them, paying to the Pit B. what shall be certified, &c., the Pit B. re-convey, &c., and deliver all deeds, &c. But in default the Defts C. and D. are to stand absolutely foreclosed, &o. But such foreclosure is to be without prejudice to the dower of the Deft E. in respect of the said lands, and subject to the declaration and further directions hereinafter mentioned. And in case the Defts C. and D., or either of them, shall redeem as aforesaid, let an account be taken of what is due to the Pits severally, other than the Pit B., for their respective proportions of the principal money and interest due on the said mortgage. And Let the proportion thereof which shall be found due to the said Pits respectively be paid to them accordingly. But in case of such foreclosure declare that the Pit B. is to be deemed a trustee of the said mortgaged hereditaments for the benefit of the other Pits, according to their respective proportions of the said mortgage money. — ^Liberty to apply. Westmore v. Emherley, Seton, 424. Foreclosure of one-fourth of a Mortgaged Property — The remaining three- fourths having been purchased by and conveyed to Mortgagee. J. M. and D. having released the equity of three-fourth parts of the mortgaged estate to the Pit, and having conveyed to him the fee simple and inheritance of ihree-fourths of the said estate, and the Pit by his counsel declaring that he is content to accept such release and conveyance in full satisfaction of three-fourths of the money due on the said mortgage, Let an account be taken of what is due to the Pit for principal and interest on the said mortgage, as if the deed dated, &c. [releasing the equity of redemption in the three-fourths] had not been executed. Tax the Pit his costs of suit. — Account of the rents received by the Pit, amount to be deducted. — Let what shall be taxed for the Pit's costs be added to one-fourth part of what shall be certified would have been due for principal and interest on the said mortgage if the said deed had not been executed. Let, upon the Deft paying to the Pit one-fourth part of what would have been due for principal and interest on the said mortgage and the said costs within ^ix calendar months, &c., the Pit re-convey one-fourth Digitized by Microsoft® M0ETGAGE8. 359 part of the said mortgaged premises, &o. But in default of the Deft paying, &c., one-fourth part, &o., the Deft is from thenceforth to stand absolutely debarred and foreclosed, &o. — ^Liberty to apply. Newcomle v. Bowne (M. E.), Feb. 15, 1777 ; Seton, 425. Foreclomre of several Estates — Of one of which Pit is Purchaser — Specific Performance of Agreement for Purchase. Declare that the agreement for the sale of W. ought to be specific- ally performed and carried into execution, and decree the same accordingly. Let Deft K., as devisee and legal personal representative of the testator [mortgagor and vendor] convey W. to the Pit, or as she shall direct. Let an account be taken of what is due to the Pit for principal and interest, and for costs, &c. Upon payment by Deft B. [second mortgagee of estates X., T., and Z.], Let the Pit assign the premises comprised in her said mortgage other than W. free from incum- brances, &c., and deliver up deeds, &o. In default, &o., B. to stand foreclosed. Like directions as to Deft L. [third mortgagee], and Deft K. [representative of mortgagor]. In case B. shall redeem, an account of what is due, to him for prin- cipal and interest and costs, &c., and upon payment by L. let B. assign the premises comprised in his mortgage and in the mortgage to the Pit other than W., free from incumbrances, &c., and deliver up deeds, &o. In default foreclose L. Like directions as to K. If L. should redeem, account of what is due to him, and directions for redemption by or foreclosure of K. — Liberty to apply. Sober v. Kemp, 6 Hare, 160, note. A. mortgages whole Estate to Pit B., and dies, leaving two co-Heirs — one of whom mortgages Ms Moiety to Pit B. 1. An account of what is due to the Pit for principal and interest on the mortgage dated, &c. [first mortgage], and for costs, &c. Upon payment by the Defts [representing the two co-heirs of mort- gagor], or either of them, of what is certified to be due on that mort- gage within, &c., at such time and place, &o., the Pit to re-convey to Deft P., at the expense of the said Deft, one undivided moiety of the mortgaged hereditaments. But in default both Defts to be foreclosed. Declare that in case of such redemption the other moiety of the mortgaged hereditaments will remain in the hands of the Pit, subject to redemption by the Deft L. on payment of what shall appear due on the mortgage No. 2' made by S. And in case of such -redemption, 2. An account of what is due to the Pit for principal and interest Digitized by Microsoft® 360 MORTGAGES. on second mortgage. On payment by Deft L. [representing co-heir S.] Pit to convey. In default Deft L. to be foreclosed. In case the Deft P. shall pay off what is due on mortgage No. 1, Pit to re-convey the whole to Deft P., subject as to one moiety to declaration, that Pit, as standing in the place of S., is entitled to redeem one moiety on payment of a moiety of what shall be certified to be due on first mortgage, with subsequent interest and costs. In that case compute subsequent interest on a moiety of the money which shall have been paid by Deft P., and tax his subsequent costs. Upon Pit paying to the Deft P., &c., the Deft P. to convey one undivided moiety, &c., to Pit. But in default Pit's bill as against Deft P. to stand dismissed with costs. In case Pit shall redeem Deft P. as to last-mentioned moiety, com- pute subsequent interest on what Pit shall pay Deft P., and also on what shall be certified to be due from Deft L. on mortgage made by S., and tax Pit's subsequent costs. Upon Deft L. paying to Pit what he shall have paid Deft P., with subsequent interest and costs, and also what shall be certified to be due for principal, interest, and costs on mortgage made by S., Pit to re-convey last-mentioned moiety to Deft L. In default Deft L. to be foreclosed. Beynolds v. Lowe (L. C), May 14, 1748; Seton, 426. BIOETGAGES OF PERSONALTY. Pure Personalty — Stock — Foreclosure. Let an account be taken of what is due to the Pits for principal and interest on their mortgage security in the pleadings mentioned . and for costs of suit (such costs to be taxed by the' taxing master) : And upon the Defts Jeans and Jenkins, or either of them, paying to the Pits what shall be certified to be due within six months, &c., at such time and place, &c., Let the Pits assign, &o. But in default, &c., they are to stand absolutely debarred and foreclosed, &o. Wayne V. Hanham, 16 Jur. 606. Similar Order — Fund in Court — Foreclosure. Let an account be taken, &c. And upon payment, &c., Let the Pit assign, &c. But in default, &o., let the Deft stand absolutely de- barred and foreclosed of, in, and to the £ — Bank 3 per cent. Annuities standing to the credit of, &c., and of and in any dividends that may accrue on the said Bank annuities. Chattels — Fixtures — Foreclosure. Deolaee that the Pits are entitled under their' mortgage deed of the 23rd August, 1854, in the bill mentioned, to the hereditaments, steam Digitized by Microsoft® MORTGAGES. 361 engines, steam boilers, mill gear, millwright work, and machinery at the date of the said deed or thereafter fixed to the said hereditaments, and that such description comprehends all the articles mentioned in and described in the 12th paragraph of the bill, except those num- bered 122, 226, 567, 687, 708, 709, 710, and 717. Let it be referred to the taxing master to tax the Pits their costs of this suit, includ- ing the costs of the motion for an injunction so far as the same have been occasioned by the dispute between the Pits and Defts, John Frazer, Philip Thomson, and James Wigan, as to the articles com- prised in the said security. Let the said Defts pay the same to the Pits out of the funds in their hands as assignees. And all the Defts, by their counsel, declining to redeem the Pits' mortgage, let the said Defts from thenceforth stand absolutely de- barred of and from all right, title, interest, and equity of redemption of, in, and to the said mortgaged premises. Mather v. Fraser, 2 K. & J. 536. Chattels — Fixtures — Account. Declare that all the articles of machinery and fixtures in the Pit's bill mentioned which were attached to the freehold of the heredita- ments and premises in the bill mentioned, were included in and formed part of the Pit's mortgage security therein mentioned. And that all the articles of machinery and fixtures in the pleadings men- tioned, except the lots originally numbered 51, 56, 57, 58, and 88 in the printed catalogue of sale were so fixed, and therefore form part of the Pit's said security. Let an account be taken of any moneys received by the Defts in respect of the said articles of machinery and fixtures, in case the parties differ about the same. Let the Defts B., H., and R., in case any such account be taken, pay to the Pit W. C. within ten days from the date of the chief clerk's certificate what shall be certified to have been so received in part discharge of the principal and interest due to him on his said mort- gage security. Let the Pit be at liberty to add his costs of this suit to his mortgage debt (such costs to be taxed by the taxing master in case the parties differ). — Liberty to apply. CuUwicJc v. Swindell, L. E. 3 Eq. 249. Chattels— Fixtures — Costs — Set-off. Declare that the Pits as mortgagees are entitled to the steam ham- mer, lathe, engine, furnace, boiler, and other disputed articles, except the cutters and bed plates belonging thereto, and the straightening plates, and such part of the metal flooring as was added after the date of the indenture of mortgage of the 18th February, 1857, to which ex- cepted articles His Honour doth declare that the Defts are entitled. Let the taxing master tax both parties their costs of the suit. Let Digitized by Microsoft® 362 MORTGAGES. the Pits pay to the Defts such of the said costs as have been occasioned by the Pits claiming the cutters and bed plates belonging thereto, the straightening plates, and any portion of the metal flooring which has been placed in the mill and premises subsequently to the said in- denture of mortgage, and also so far as the bill seeks to rectify the said indenture.— Defts to pay the remaining costs.— One set of costs to be set off against the other.— Liberty to apply. Metropolitan Counties Society v. Brown, 26 Beav. 454. Chattels IrougU upon the mortgaged Estate after Mortgage. Let the Deft henceforth stand absolutely debarred and foreclosed of and from all right, interest, and equity of redemption of, in, and to the leasehold land and property comprised in the indenture dated, &o., in the pleadings mentioned. Let the Deft do all such acts and execute all such deeds as may be necessary for vesting in the Pits, freed and discharged from all equity and right of redemption, such of the buildings, machinery, plant, utensils, materials, stock, and other things on the said leasehold lands as may have been erected or made thereon or brought upon the same or added thereto since the date of the said indenture (such deeds to be settled by the judge in case the parties differ). — Liberty to apply. Chisholm v. Ferguson (V.-C. "W.), May 5, 1855 ; Seton, 406. Pure Personalty — StocJc to he replaced — Foreclosure. Let an account be taken of what is due to the Pits for principal and interest in respect of the £ — Bank 3 per cent. Annuities in the pleadings mentioned, and for his costs of suit, to be taxed, &c. Let, upon the Defts transferring what shall be certified to be due to the Pits in respect of the principal of the said sum of £ — , and paying to them what shall be certified to be due to them for interest and costs as aforesaid within six calendar months, &o., at such time, &c., the Pits assign, &o., and deliver up, &o. But in default of the Defts transferring to the Pits what shall be certified to be due in respect of the principal of the said £ — Bank 3 per cent. Annuities, and paying to them what shall be certified to be due for interest and costs by the time aforesaid, the Defts are from thenceforth to stand absolutely debarred and foreclosed, &o. — Liberty to apply. Piper v. Coie (L. C), Nov. 14,- 1832, B. 425 ; Seton, 402. Special Accounts and Inquiries. Inquiry as to Incumbrances. Let an inquiry be made what incumbrances affect the hereditaments comprised in the mortgage security dated the — day of — , in the Digitized by Microsoft® MOBTGAGES. 363 pleadings mentioned, and what is due for principal and interest thereon respectiTely, and what are their respective priorities. Similar Inquiry, and as to Parties interested. Inquiry as to incnmhrances affecting the hereditaments com- prised, &o., and what is due for principal and interest on such incum- brances, and who are the parties now interested by assignment or otherwise thereon, and what is the nature and amount of their respective interests in such incumbrances respectively, and what are their priorities. Seton, 397. Occu/pation Bent. It appearing that the Pit has been in the actual possession and enjoyment of the hereditaments comprised in the mortgage security dated, &c., from the — day of — , Let an annual value by way of occupation-rent be set thereon as from such date, and be settled by the judge in chambers ; and Let the Pit be charged therewith ; and Let the same be deducted from what shall appear to be due for principal, interest, and costs as aforesaid. Inquiry as to Deterioration — Waste. Let an inquiry be made whether the hereditaments comprised in the mortgage security dated, &c., have been deteriorated since the Pit has been in possession thereof by his wilful neglect in not re- pairing the same, and to what extent ; Wragg v. Denham, 2 Y. & C. 117 ; or by improperly allowing the building at — , part of the mort- gage security, to fall down ; Batchelor v. Middleton, 6 Hare, 85 ; or by pulling down the buildings at, &c. Sandon v. Hooper, 6 Beav. 260. Account as to Insurance Premiwms — Fines. Let an account be taten of the sums paid by the Pit, or by any person or persons on his behalf, for premiums on the policy of insurance in the pleadings mentioned, with interest thereon at the same rate as the mortgage carries. Let the amount which shall be certified to have been so paid be added to the amount which shall be certified to be due for principal, interest, and costs as aforesaid. An account of the fines paid by the Pit, or any person or persons on his behalf, in respect of fines on the renewal of leases of the said mortgaged hereditaments, and for interest thereon at the same rate, &c. Let the amount which shall be certified to have been so paid be added, &c. Digitized by Microsoft® 364 MOETGAGES. Inquiry as to Repairs and Lasting Improvements. Let an account be taken of all sums laid out by the Pits in necessary repairs and lasting improvements on the hereditaments comprised in the said mortgage. Let interest be computed on the sums which shall appear to have been so laid out in lasting improve- iaents after the same rate of interest as the said' mortgage carries. And Let what shall appear due on this account be added to what shall appear due to Pits for principal, interest, and costs. Account with, Rests. Let annual rests be made in the account of the rents received by, and on the occupation-rent accrued due from, the late Ann Tress in her lifetime ; and also on the rents received by, and occupation rent accrued due from, the said Defts, or any of them, since the death of Ann Tress. Let interest be computed after the rate of £4 per cent, per annum upon such rents and occupation-rents respectively. Let the master distinguish and state what part of such interest has become due from the said Defts, or any of them, since the death of Ann Tress : Wilson v. Metcalf, 1 Euss. 530. Or, Take an account, &c., and in taking the said account make annual rests of the clear balance ; and compute interest on such respective balances at £5 per cent. ; and in making such annual rests, except the first, include in the balance then stated the interest of each preceding balance, so as to charge the Deft with compound interest thereon. Cotham v. West (M. E.), Nov. 15, 1836. Sale instead of roEECLOsuRE. Common Form. Let an account be taken of what is due to the Pit for principal and interest on his mortgage in the pleadings mentioned, and for his costs of this action (such costs to be taxed by the taxing master). Let, upon the Deft paying to the Pit what shall be certified to be due to him for principal, interest, and costs as aforesaid, within six calendar months after the date of the chief clerk's certificate, at such time and place as shall be thereby appointed, the Pit re-convey [re-surrender, or re-assign] the hereditaments comprised in the said mortgage free and clear of and from all incumbrances effected by him, or any persons claiming by, from, or under him [or by those under whom the Pit claims], and deliver up on oath all deeds and writings in his custody or power relating thereto to the Deft, or to whom he shall appoint. But in default of the Deft paying to the Pit what shall be so certified to be due for such principal, interest. Digitized by Microsoft® MORTGAGES. 365 and costs as aforesaid, ty the time aforesaid, It is ordered tliat the said mortgaged premises, or a competent part Ihereof, be sold with the approbation of the judge. And let the money to arise by such sale be applied in payment of what shall appear to be due to the Pit for principal, interest, and costs as aforesaid, and be in the mean- time paid into Court to the credit of the cause. Adjourn further consideration, &c. Sale at Bequest of Mortgagor — Deposit — In Defaidt of Deposit, Foreclosure. An account of what is due to the Pit on his mortgage in the plead- ings mentioned, and for costs of this suit (including the costs of taking the accounts, but excluding the costs of the sale if any hereby directed). Let, on the Defts C. and L., &c., or any of them, paying the sum of £ — into Court to the credit of this cause, within one week after the date of the chief clerk's certificate of the result of the said account, to be dealt with as the Court shall direct, the hereditaments comprised in the Pit's mortgage be sold with the approbation of the judge. Let the money to arise by such sale be paid into Court, to the credit of this cause, B. v. C, to the end that the same may be applied in the first place in satisfying what shall appear due to the Pit as aforesaid. But in case the said sum of £ — shall not be so paid into Court by the time aforesaid, or in case the same shall be so paid, but the said mortgaged hereditaments (or a sufficient part thereof to raise what shall appear to be due to the Pit as aforesaid) shall not have been sold within four calendar months from the date of the said certificate, Let, upon the Defts paying to the Pit what shall be certified to be due for such principal, interest, and costs, or so much thereof as shall remain due after the application of the money arising by such sale as aforesaid, within six calendar months from the date of the said chief clerk's certificate, at such time and place, &c., the Pit re-convey the said mortgaged hereditaments (or such part thereof as may not have been sold) free and clear, &c., and deliver up deeds, &c. But in default, &c., Defts to be foreclosed. Liberty to apply as to the £ — , if paid in, and otherwise as advised. And in case of a sale adjourn F. C, and of his costs attending any such sale, or not hereinbefore provided for. Bellamy v. Cockle (V.-C. W.), 18 Jur. 465 ; Seton, 365. Similar Order — Special Terms as to Beserve Biddings and Lots. Let an account be taken of what is due, &c.. And the Pit having admitted that be has been in receipt of the rents and profits of the leasehold premises comprised in the indentures of mortgage, dated, &c., Let an account be taken of the rents and profits of the said leasehold « Digitized by Microsoft® 366 MORTGAGES. premises received by the Pit, or by any other person or persons by his order or for his use, or which without his default might have been received. Let what shall appear due on the last-mentioned account be deducted from what may be due on the first-mentioned account, and let the balance be certified. Let, upon the Defts or any of them pay- ing the sum of £100 into Court to the credit, &c., to an account to be entitled " Security Fund," within fourteen days from the date of the certificate to be made on taking the said accounts, the leasehold premises comprised in the said indenture of mortgage be sold with the approbation of the judge. And in reference to such sale a reserved bidding is to be fixed not less than the amount of such balance and the estimated expenses of such sale, and such property is to be sold in one lot, or if not sold in one lot then to be sold in two lots, the sale of the first of which is to be contingent upon the second lot being also sold. Let the money to arise by such sale be paid into Court to the credit of this cause : L. v. L. 1^73, £40, and be applied in the first place in satisfying what shall be certified to be the amount of such balance. And in case any one or more of the said Defts shall deposit the said sum of £100 directed to be deposited as aforesaid, Let as between the said Defts, any or either of them respectively, the deposit so made be without prejudice to the question by whom the same shall ultimately be borne. But in case the said sum of £100 shall not be so paid into Court as aforesaid by the time aforesaid, or in case such payment into Court sh-all be so made, but' the said leasehold premises shall not have been sold within four calendar months from the date of the said certi- ficate, Let, upon the Defts or any of them paying to the Pit what shall be certified to be the amount of the said balance within six calendar nionths from the date of such certificate at such time and place, &c., the Pit re-assign the said premises free and clear, &c., and deliver up, &c., to the Defts or Deft so redeeming or as he or they shall direct, but without prejudice to any question which may arise as to the rights or interests of the said Defts as between themselves in the said premises. In default of payment Defts to be foreclosed. And in case of sale further consideration adjourned. Loft v. Leigh (V.-C. H.), Nov. 17, 1874. Form of Deckee. The decree will be prefaced (in a redemption suit) by a declaration that the right of redemption is still subsisting, or (in a suit for foreclosure or sale) that the seourity is valid, where those matters have been in dispute: Eolmer v. Turner, 7 Hare, 369, note ; Faulkner v. Daniel, 3 Hare, 199 ; Caslon v. Forhes, 8 Beav. 526 ; cited in Fisher, vol. ii., p. 987. Though the mortgagee submit to depart from the common form of the decree in one particular, as if the decree direct an account and then reserve further directions, instead of the usual order for payment or foreclosure, yet he retains his Digitized by Microsoft® MORTGAGES. 367 right to have the further decree made in the usual form : Fisher, vol. ii., p. 979 ; Dunstan v. Patterson, 2 Ph. 341 ; 1 De 6. M. & G. 242. The mortgagee is entitled to an immediate account of his principal, interest, and costs, and to have a day fixed for payment or foreclosure : Pearse v. Hevdtt, 7 Sim. 471. The production of the security is generally ^n'ma/acie evidence of the existence of the debt : Piddoch v. Brown, 3 P. Wms. 289. But where there are manifest signs of fraud there must be proof of actual payment. S. C. Where there are several mortgagees, and the first is also part owner of the equity of redemption, the decree directs that upon payment to the first mortgagee of all that is due to him by the second, the former shall convey the whole estate, subject to his right to redeem the part in the equity of redemption whereof he is interested. In default of payment the second mortgagee is foreclosed in the usual manner : Fisher, vol. ii., p. 981. Where a puisne mortgagee of estates, distinct portions of which have been pre- viously mortgaged to several persons, seeks redemption, and to foreclose the mort- gagor, he is entitled to a decree providing that he may redeem both or either of the estates. If he redeem both, he may foreclose the mortgagor unless he also redeem both ; if he redeem but one, the mortgagor must redeem that one or be foreclosed ; and as to that which the pit does not redeem his bill will be dismissed : Fisher, vol. ii., p. 982 ; Pelly v. Wathen, 7 Hare, 371. Where questions as to priorities not affecting the pit are raised between co- defts, the Court will fix a day certain for all to redeem or be foreclosed, without prejudice to the rights of the several defts inter se : Bartlett v. Rees, L. E. 12 Eq. 395 ; Order, p. 356 ; Edwards v. Martin, 7 W. E. 30. Where part of the mortgagor's interest is vested in the Crown, the Coiirt will not decree foreclosure in respect thereof, but will give the pit liberty to apply in Chambers for a sale : Hancock v. Att.-Oeneral, 33 L. J. (Ch.) 661 ; Bartlett V. Bees, L. E. 12 Eq. 395. FORECLOSUEB — SaLE. The mortgagee may commence his suit for foreclosure or sale of the mortgaged estate without taking possession : 5 Ves. 106. A power of sale in a mortgage deed does not affect the right of foreclosure : Slade V. Bigg, 3 Hare, 35 ; Wayne v. Eanham, 9 Hare, 62. A person interested in part only of a sum due on mortgage cannot sue for foreclosure of a corresponding part of the estate : Palmer v. Earl of Carlisle, 1 S. & S. 423. Where two mortgagees take distinct shares in the mortgage money the mort- gagee filing a bill for foreclosure must make the other mortgagee a deft : Daven- port V. James, 7 Hare, 249 ; 12 Jur. 827. A conveyance of an estate to pit in trust that the same should stand charged with a sum of money and interest, and subject thereto in trust for a person therein named, with a power of sale by A. on default in payment, gives no right of foreclosure : Sampson v. Pattison, 1 Hare, 533. Where the security for the advance is simply an assignment in trust for sale and not a mortgage, the Court will not foreclose the equity of redemption : Jen- kin V. Row, 5 De G. & Sm. 107. In such cases the Court will merely aid in effecting the sale : S. C. Digitized by Microsoft® 368 MOETGAGES. " The Court may, in any suit for the foreclosure of the equity of redemption in any mortgaged property, upon the request of the mortgagee or of any subse- quent incumbrancer, or of the mortgagor, or any person claiming under them respectively, direct a sale of such property, instead of a foreclosure of such equity of redemption, on such terms as the Court may think fit to direct, and, if the Court shall so think fit, without previously determining the priorities of incum- brancers, or giving the usual or any time to redeem ; provided that if such request shall be made by any such subsequent incumbrancer, or by the mortgagor, or by any person claiming under them respectively, the Court shall not direct any such sale without the consent of the mortgagee, or the persons claiming under him, unless the party making such request shall deposit in Court a reasonable sum of money, to be fixed by the Court, for the purpose of securing the performance of such terms as the Court may think fit to impose on the party making such request." (15 & 16 Vict. c. 86, s. 48.) The mortgagees may, under this section, institute a suit for an account of what is due to them and for a sale, although the mortgage contains a power of sale and a foreclosure is not prayed for by the bill : Button v. Sealey, 6 W. E. 350. But where a sale would be clearly of injury to the mortgagor or other parties interested, the Court will exercise a discretion, and give the common decree for foreclosure and redemption : Hv/rst v. Hurst, 16 Beav. 375 ; Oator v. Reeves, 16 Jur. 1004 ; Roberts v. Price, 1 W. E. 303. A sale has been ordered at the request of the first and second mortgagees and mortgagor, notwithstanding the third mortgagee insisted on a decree for foreclo- sure and redemption : Wiokham v. Nicholson, 19 Beav. 38. And the order for sale may be made instead of foreclosure, notwithstanding that the mortgagor insists on a decree for foreclosure : Newman v. Selfe, 33 Beav. 522 ; 10 Jur. (N.S.) 251. The Court has power to direct an immediate sale : Newman v. Bdfe, supra,; but will not, as a general rule, or iit the absence of the mortgagors, direct an im- mediate sale, but, as in case of foreclosure, will fix a day for payment, and in de- fault direct a sale : Smith v. Robinson, 1 Sm. & GiEF. 150 ; Lloyd v. Whittey, 17 Jur. 754. The usual time limited for payment is six months : ParJces v. Eousefield, 2 My. & K. 419 ; Lloyd v. Whittey, 17 Jur. 754 ; but when the sale is manifestly for the benefit of all parties payment has been ordered within a month : Staines V. Rudlin, 9 Hare, App. 53. And sometimes an immediate sale is ordered : Wigham v. Measor, 5 W. E. 394. The Court has no power to order a sale on an interlocutory application, but only at that period of the suit when, before the Act, foreclosure might have been decreed : Wayn v. Lewis, 1 Dr. 487 ; 22 L. J. (Oh.) 1051. And after a decree for foreclosure has been made the Court has refused to vary the decree by directing a sale : Girdlestone v. Lavender, 9 Hare, 53 ; 16 Jur. 1081. But where the pit, the first mortgagee, applied, with the consent of the repre- sentatives of the mortgagor, an order for sale was made, notwithstandin<' the objection of a puisne incumbrancer : Laslett v. OUffe, 2 Sm. & Giff. 278. Where the sale is made at the request of the mortgagor without the consent of the mortgagee, the deposit required by the statute is indispensable, whatever the value of the estate : Bellamy v. Cockle, 18 Jur. 465 ; Order, p. 365. The amount of the deposit is generally fixed with reference to the probable expenses of an abortive attempt to sell : Bellamy v. Cockle, 18 Jur. 465 ; Whit- field v. Roberts, 5 Jur. (N.S.) 113. Digitized by Microsoft® MORTGAGES. 369 Where in a foreclosure suit instituted by the first mortgagee against the mortr gagor and subsequent incumbrancers, the second mortgagee asking for a sale but objecting to the deposit, the Court gave the common foreclosure decree, with liberty for the second mortgagee to apply in chambers for a sale upon such terms as the Court should direct : Burmester v. Moxon, 35 Beav. 310. Where the pit was the second mortgagee the conduct of the sale was given to the first mortgagee on account of his possession of the deeds: Hewitt y. Nanson, 28 L. J. (Ch.) N.S. 49. . • After a decree for foreclosure, but before it was drawn up, a sale was directed on the application of a deft puisne mortgagee, with the consent of the prior mortgagee in the absence of the mortgagor, against whom the bill had been taken pro corifesso : Woodford v. Brooking, L, E. 17 Eq. 425. The Court has jurisdiction to make a foreclosure decree in respect of a mort- gage between an English mortgagor and mortgagee of lands out of the jurisdic- tion : faget v. Ede, L. E. 18 Eq. 118. Defective and Imperfect Assurances. It is said that either the legal or equitable mortgagee has a general right to a sale where the security is scanty : Fisher, vol. i., p. 524. He may have this relief if he institute his suit after the mortgagor's death, stating that the personal estate is deficient : Daniel v. Skipwith, 2 Bro. C. 0. 154. The mortgagee of a reversion has been held entitled to a sale on account of the unproductiveness of his security : How v. Vigures, 1 Ch. Eep. 18. If a mortgage valid in equity be defective as to its intended legal operation — as a feoffment for want of livery, or a surrender of copyholds for want of pre- sentment — the Court will make good the defect against the mortgagor : Mestaer V. Gillespie, 11 Ves. 623 ; Taylor v. Wlieeler, 2 Vern. 565. But no relief will be given to a prior mortgagee or judgment creditor where the subsequent security is a mortgage duly executed without notice of the other : Fisher, vol. ii., p. 641. If the mortgagor's title be altogether defective, and he afterwards acquire a good title, the new title may be applied to make good the defective conveyance : Smith V. Baher, 1 Y. & C. Ch. 223 ; Taylor v. DeboA; 1 Ch. Ca. 274. As to defective insurances by tenants in tail, see Fisher, vol. ii., p. 643. There is no equitable relief on the defective transfer of a ship : McCalmont v. Banhin, 2 De G. M. & G. 403. And a contract not perfected by the indorsement of the certificate of registry or its recital cannot be made good in equity : Mestaer V. Gillespie, 11 Ves. 621 ; Htujhes v. Morris, 2 De G. M. & G. 349. EepAIRS. The piortgagee in possession is bound to do such repairs as he can pay for out of the rents received after his interest is paid : Bichards v. Morgan, 4 Y. & 0. App. 570, He will be allowed for repairs necessary for the support of the property : San- don V. Hooper, 6 Beav. 246. - The grantee of a rent-charge who.has entered into possession and into receipt of the rents under a power, is also entitled to be allowed moneys expended by him in repairs : Hooper v. CooTce, 20 Beav. 639. The mortgagee, if he has had the acquiescence of the mortgagor, will also be Digitized by Microsoft® ^ 370 MOETGAGES. allowed for money laid out in increasing the value of the property : Sandon v. Hooper, 6 Beav. 246. But the improvements must not be such as to cripple the mortgagor's power of redemption.: S. 0. A mortgagee in possession will be allowed the expenses of buildings substituted for decayed old buildings, even though the new erections should be upon an im- proved scale : Marshall v. Gave, 3 L. J. (Oh.) 57. But he is not obliged to rebuild or to lay out large sums beyond the rent : Eich- a/rds V. Morgan, 4 Y. & 0. App. 570. Nor is he bound to repair even if there be surplus rents after paying his interest, if the premises were in such a state of repair when he took possession that he could not repair without pulling down and rebuilding : Moore v. Painter, 6 Jur. 905. Though he will be allowed sums expended in substantial improvements, he will not be allowed sums expended in changing the nature of the property : Moore v. Painter, 6 Jur. 903. To entitle a mortgagee in possession to an inquiry at the hearing of the cause as to money expended by him' in substantial repairs and lasting improvements, some proof must be given of an expenditure having been incurred : Sandon v. Hooper, 6 Beav. 246. The words "just allowances" in a decree did not authorize an allowance for improvements : Knowles v. Spencer, Mos. 226. The cost of repairs to the mortgaged premises done by the mortgagee in pos- session is a debt payable by his executrix out of his general estate, and is not chargeable to the legatee of the mortgage : Qibbon v. Oibhon, 17 Jur. 416. Where the mortgagee in possession is charged with deterioration of the pro- perty for non-repair or improper cultivation, an inquiry has been directed : Wragg V. Benham, 2 Y. & 0. 117. So, too, where charged with improperly allowing mortgaged buildings to fall down : Batchelor v. Middleton, 6 Hare, 85 ; and with having pulled down buildings : Sandon v. Hooper, 6 Beav. '250. Upon an inquiry as to money expended in repairs and lasting improvements, it may be found that mines have been opened and worked: Thorneycroft v. Crockett, 16 Sim. 445. Allowances. The Court will not make an allowance to the mortgagee for his trouble in receivmg the rents of the estate, notwithstanding an agreement with the mort- gagor : French v. Baron, 2 Atk. 120. And where a mortgagor had conveyed his property to trustees for the benefitof his creditors, subject to certain mortgages, a mortgagee employed by the creditors to receive the rents was not allowed a commission out of them : Nicholson v. Tutin, 3 K. & J. 160 (V.-C. W.) ; 3 Jur. (N.S.) 235. The Court will not allow a person to put himself in a position where his interest - will be inconsistent with his duty : Ibid. ; Broughton v. Brouqhton, 5 De G. M. &G. 160. So, too, where a mortgagee was member of a firm, who sold for him under a power in the mortgage-deed, the firm were not allowed their commission for con- ducting the sale : Mathison v. Clarke, 3 Drew. 3 ; 18 Jur. 1020. A mortgagee cannot be paid as receiver. But where the nature of the estate is such that great time and trouble must be sacrificed in the receipt of the rents. Digitized by Microsoft® MORTGAGES. 371 the mortgagee may appoint a receiver, who will be allowed commission out of the rents : Davis v. Bendy, 3 Madd. 170. And persons in the position of mortgagees selling under the direction of the Court are not deprived of the remuneration to which they, would ordinarily be entitled because they are mortgagees of the same property : Arnold v. Oarner, 2 Ph. 231 ; Fisher, vol. ii., 891. Where a receiver or bailiff is required, the mortgagee in possession may employ him, and debit the estate with what is necessary to pay him, but cannot credit himself with such payments for his own trouble if he does the business himself : Godfrey v. Watsm, 3 Atk. 518. As regards commissions allowed in respect of mortgages upon West India pro- perties, see Ltith v. Irvine, 1 My. & K. 277 ; Faulhner v. Daniel, 3 Hare, 218. The mortgagee will be allowed expenses incurred by him in supporting the mortgagor's title when impeached ; Ood/rey v. Watson, 3 Atk. 517 ; Sandon v. Hooper, 6 Beav. 246. Where a mortgagee in possession has without authority opened and worked mines on the mortgaged estate, he will be charged with his receipts, but dis- allowed his expenses : Thomeyeroft v. Crockett, 16 Sim. 445 ; Httghes v. Williams, 12 Ves. 493. Wilful Default. Where a mortgagee is in possession as mortgagee, the account directed against him is of moneys which without wilful default might have been received. No special case need be made out to support that form of inquiry : Kensington v. Bouverie, 7 De G. M. & G. 156 ; 1 Jur. (N.S.) 581. To charge a mortgagee in possession actual fraud is not necessary. It is sufficient if there be obvious and gross negligence : Hughes v. Williams, 12 Ves. 493. He may be made to account for loss occasioned by negligence in respect of bad cultivation and non-repair : Wragg v. Denham, 2 Y. & 0. 117. Where a prima facie case of gross negligence is made out, the Court will direct an inquiry : S.O. But a mortgagee in possession is at liberty to take the fair rents and profits. He is not bound to enter into any speculation or adventure. And if the mort- gagor knows the estate to be underlet he should give notice to the mortgagee : Hughes v. W^iams, supra. The price at which the mortgagor proves the estate to have been let whilst in the hands of the mortgagee will be taken to be the rate at which it was let during the whole time of his possession unless he shews the contrary : Fisher, 883 ; Blacklock v. Barnes, Sel. Ch. Ca. 53. Where a tenant is permitted to remain several years in possession without pay- ing rent, and none being demanded by the mortgagee, he is liable for wilful default as to such rent : Brandon v. Brandon, 10 W. R. 287. The onus lies prima facie on the party chai^ng wilful default in not letting to prove it. But if he shews that the property can be let, or has been let, the onus is transferred to the mortgagee : S.C. Where unfinished buildings were mortgaged by way of underlease, the deed empowering the mortgagee to sell, and apply the proceeds and rents in repairs, the mortgagee in possession was held liable to make good the loss occasioned by the forfeiture (for non-completion) of the mortgagor's lease : Perry v. Wfdker, 1 Jur. (N.S.) 746; 24 L. J. (Ch.) 319. Digitized by Microsoft® 2 b 2 372 MOBTGAGES. LiND Tax — Insurance Monet — Fines. The mortgagee will be- allowed moneys paid for the renewal of leases, although the mortgagor may not have covenanted that he will renew : Lacon v. Mertins, 3 Atk 4 ; Manlove y. Bak, 2 Vern. 84. He will also be allowed moneys paid for the redemption of the land tax : Knowles v. Chapman, cited in Seton, 468. And premiums paid by him on insurances which the mortgagor has covenanted to keep up : Barl FitzwilUam v. Price, 4 Jur. (N.S.) 889, The person to whom any principal money secured or charged by deed on any hereditaments shall for the time being be payable, his executors, administrators, and assigns, are empowered (unless the power be negatived in the security) at any time after any omission to pay any preinium on any insurance which by the terms of the deed ought to be paid by the person entitled to the property subject, to the charge, to insure and keep insured the property, and to add the premiums " paid to the principal money secured : 23 & 24 Vict. c. 145, ss. 11, 32. Where the mortgagor and mortgagee have effected a joint insurance, the mort- gagee paying the premium, the mortgagor having induced the insurance company to pay him the money insured, upon a bill filed by the mortgagee against the assignees of the mortgagor, the, Court ordered the money to be brought into Court : Rogers v. Orazebrooh, 12 Sim. 557. Interest. Upon bond and mortgage debts interest is payable, though it be not ex- pressly reserved, and whether the mortgage be legal or equitable: Anon.,^Ta.\mt. 876 ; Ashwdl v. Staunton, 30 Beav. 52. And an agreement to pay interest up to a certain time does not exclude a contract to pay it after that time : Price v. Great Western Railway Company, 16 M. & W. 244 ; King v. Qreenhill, 6 M. & G. 59. Interest has been allowed upon sums expended by the mortgagee in working mines where he was authorized by the deed to work them : Norton v. Cooper, 25 L. J. (Ch.) 121. But it is not the practice generally to allow interest upon money expended by the mortgagee in repairs : Elisha v. Elisha, M. E., 14 Feb. 1812 ; Seton, 384. As a general rule, interest is not allowed upon arrears of an annuity, though it be charged upon land, except under special circumstances, and the. security of a bond raises no equity for interest on the arrears : Booth v. Leycester, 3 My. & Cr. 459 ; Grant v. Taylor, 3 My. & K. 302. Bond debts generally carry no interest either at law or in equity beyond the amount of the penalty. But the conduct of the obligor, the interference of the Court, and other special circumstances, make exceptions to this general rule: Fisher, 914, and cases there cited. Every judgment debt in England bears interest at the rate of £4 per cent. ■ per annum until satisfaction from the entering up of the judgment : 1 & 2 Vict, c. 110, s. 17. And every debt due on a judgment not confessed or recovered for any penal sum, for securing principal and interest in Ireland, bears the same rate : 3 & 4 Vict. c. 105, s. 26. For cases of conversion of interest in arrear into principal, see Fisher, vol. ii., p. 916-921. By 3 & 4 Will. 4, c. 27, s. 42, no arrears of interest in respect of any sum of Digitized by Microsoft® MOETGAGES. 373 money charged upon or payable out of any land or rent can be recovered by any distress, action, or suit but within six years next after the same respectively shall have become due, unless the case can be brought within the exceptions contained in sect. 25 of that Act. See also 3 & 4 Will. 4, c. 42, and 3 & 4 Vict. c. 105, s. 32. But where the proceeds of sale of mortgaged premises sold under a power by the trustees of the mortgagee were paid into Court .in a suit to administer the mortgagee's estate, and the trustees petitioned for payment to satisfy twenty years' aiTears of interest, it was held that the petition was not a suit to recover aiTears of interest within the Acts, and that the trustees were entitled to more than the six years' arrears : JEdmunds v. Waugh, L. B. 1 Bq. 418, questioning Mason v. Broadbent, 33 Beav. 296. A prior incumbrancer is not by mere laches in enforcing payment of his interest deprived of his right to that interest as against the puisne incumbrancer : Aston v. Aston, 1 Ves. 263. An infant tenant in tail is bound, as in the case of a tenant for life, to keep down the interest of the charge during the continuance of his estate to the extent of the rents and profits : Sarj'eson v. Cruise, 1 Ves. 477, 480 ; £evel v. WatMn- son, 1 Ves. 93 ; Ameshury v. Brown, Ibid. 477. But an adult tenant in tail of an incumbered estate is not bound to keep down the interest : Chaplin v. Chaplin, 3 Atk. 234. If, however, the tenant in tail has died without barring the entail after keeping down the interest, or taking an assignment of the mortgage, the personal represen- tatives of the tenant in tail have no equity to charge the reversion with interest accrued during his life : Fisher, vol. ii., p. 905 ; Ameshury v. Brown, 1 Ves. 477. A reversioner or succeeding tenant, for life is entitled to compel payment by the tenant for Ufe of the interest out of the rents : 5 Ves. 116 ; Revel v. Watkin- son, 1 Ves. 93. If an estate has been partly in possession of a tenant for life, and partly of a person who takes under the limitations of a prior settlement (as a jointress), the tenant for life must discharge the arrears which accrued in the time of the para- mount estate out of the additional rents received at its expiration : Eevel v. Wat- kinson, 1 Ves. 93 ; Tracy v. Lady Eerefm-d, 2 Bro. C. 0. 128. Interest arises on a mortgage from day to day : Wilson v. Barman, 2 Ves. 672. But it is said to be a rule of the Court of Chancery in Ireland that it ought not to run in the case of a general and national calamity : Basil v. Achescm,, 2 Eq. C. Ab. 611. In the latter case it was ordered by the House of Lords that in taiing the account such abatements or allowances were to be made for interest as were iTsiially made in Ireland, on account of rebellion or other public calamities happen- ing to affect estates in mortgage : Fisher, vol. ii., p. 901. Interest will be allowed upon fines paid by the mortgagee (Manlove v. Bale, 2 Vem. 84 ; Lacon v. Merttns, 3 Atk. 4), upon premiums on life policies forming part of the security (Bellamy v. Brickenden, 2 J. & H. 137) ; upon money laid out in supporting mortgagor's title {Quarrel v. Beckford, 1 Madd. 281); upon money laid out in redemption of land tax (Seton, 467) ; where the principal laid out is allowed. Subsequent Interest. In suits for administration, where the mortgaged estate has been sold, it is the practice to compute subsequent interest on the principal only : Whatton v. Cra- dock, 1 Keen, 267 ; Bre^JtkS^^f^ l^i^f&^(M^ 374 MORTGAGES. And in foreclosure suits, when the time for redemption is enlarged on payment within a short time of interest and costs, subsequent interest can of course be given upon the principal only: Fisher, vol. ii., p. 922; Edwards v. Gunliffe, 1 Madd. 287 ; Jones v Oreswick, 9 Sim. 304. But if the Court should enlarge the time without imposing this condition, or requiring payment of interest on the whole principal, interest, and costs, it will be payable on the principal and costs only : Whitfield v. Roberts, 7 Jur. (N.S.) 1268. Where interest runs on the whole sum found due by a certificate, it so runs only from the confirmation of the certificate, and up to that time on the principal only : Jacob v. Earl of Suffolk, Mos. 27 ; Kdley v. Lord Bellew, 4 Bro. P. (!. 495. Eatb of Interest. If the mortgagee stipulates for a higher rate of interest in default of punctual payment, he must reserve the higher rate as the interest payable under the mort- gage, and provide for its reduction in case of punctual payment : Strode v. Parker, 2 Vem. 316 ; Jory v. Cox, Prec. Ch. 160. Where no rate of interest is fixed by the parties, the Court can fix it, and will adopt the current rate of £5 per cent. : Ashwell v. Staunton, 30 Beav. 52 ; and in the case of further advances the interest is generally given at the same rate as upon the moneys originally lent : Gregory v. Pilkington, 8 De G. M. & G. 616. Where a simple contract debt has been secured by deposit of title deeds, unac- companied by any stipulation as to interest, the mortgagee is entitled to interest at £4 per cent. : In re Kerr's Policy, L. E. 8 Eq. 331. Costs. The general rule is that the principal, interest, and costs of a mortgagee go together ; and the circumstance of there being a decree for sale instead of fore- closure does not prima faeie change the rights of the parties. If the decree directs an account of the principal and interest due on the mortgages, and in the same sentence directs taxation of the costs of the mortgagees, the costs must be payable in the same priority as the principal and interest. If a decree for sale is conceded upon terms in order to prevent the operation of the general rule, the terms must appear : Barnes v. Bacster, 1 Y. & C. 401, 403. The Court permits the mortgagee to add to his debt all such costs as have been reasonably and properly incurred by him in any action of ejectment or other proceeding at law for the recovery of the estate, or for the establishment or defence of the mortgage title : Detillin v. Gale, 7 "Ves. 583 ; Dunstan v. Patter- son, 2 Ph. 341 ; Lord Midleton v. Eliot, 15 Sim. 531. The costs will be allowed to the mortgagee of taking out administration to the mortgagor, or to a person interested under his will as a necessary party : Ramsden V, Langley, 2 Vem. 536 ; Hunt v. Fownes, 9 Ves. 70. And of obtaining a stop order upon fund in Court, the subject of the mort- gage : Hoole v. Roberts, 12 Jur. 108. But there must be a special direction to the taxing master to allow the mortgagee his costs of obtaining the stop order : Waddilove v. Taylor, 6 Hare, 307. But it is essential to the claim of the mortgagee that his proceedings should have been reasonable, for the allowance of the costs is in the discretion of the Court : Fisher, 957 ; and the moi'tgagee may, in cases of misconduct, be made to pay costs : Shuttleworfh v. Lowther, cited 7 Ves. 586 ; Baker v. Wind, 1 Ves. 160 ; Thornton v. Court, 4 De G. M. & G. 293. Thus, if havins onlv£);^^fe^& Sl^^'ytf/c'?&^65?^= °" °"""" " '""' '^" *^" MORTGAGES. 375 legal owner for tlie recovery of the estate : Dryden v. Frost, 3 My. & Or. 670 ; 2 Jur. 1090. Or, if he sue for rent in the name of a person who has no right to sue : Burke v. O'Connor, i Jr. Ch. Rep. 418. Nor is the moi-tgagee entitled to costs against the devisees of the equity of redemption of an action against the mortgagors executor for recovery of money due from the mortgagor's personal estate : Lewis v. John, 9 Sim. 366. And if, upon taking the accounts in a redemption suit, the mortgagor proves that nothing was due to the mortgagee at the time of fiUng the bill, the mort- gagee will he made to pay the costs of suit : Barlow v. Gains, 28 Beav. 244. But prima facie the mortgagee in possession has a right to the costs of a^ suit instituted to take the account : Snagg v. Fuzell, 3 J. & Lat. 383, cited in Fisher, vol. ii., 950. A direction in the decree to tax the mortgagee his costs of suit amounts to a direction to pay him his whole costs without stopping at any part of the cause, although the mortgagee may have raised an improper defence : Quarrell v. Bschford, 1 Mad. 269; Wilson v. Metcalfe, 1 Buss. 530. The objection to the form of decree as regards the payment of mortgagee's costs should be made at the hearing ; Price v. McBeth, 10 Jur. (N.S.) 579. The costs of and incident to preparing the mortgage are not mortgagee costs, the payment of which may be insisted upon in a foreclosure suit : Gregg v. Slater, 2 Jur. (N.S.) 246. But if the mortgagee, after the time for payment has passed, assigns or executes sub-mortgages, and then files a bill of foreclosure against the sub-mortgagees, the original mortgagee is entitled to add their costs to his debt : Smith v. Chichester, 2 D. & War. 393 ; Bartle v. Wilkins, 8 Sim. 239. But if the assignment or sub-mortgage be made after decree, the mortgagor will not be charged with the costs of the supplementary proceedings by which the assignee or sub-mortgagee is brought before the Court: Barry y. Wrey, 3 Russ. 465. The same rule appears to apply where the assignment or sub-mortgage occurs before decree, but after the institution of the suit : Coles v. Forrest, 10 Beav. 552. And where an order was made in a foreclosure suit to revive against an assignee after decree, it was ordered to he specified that the costs should be paid by the pit : James v. Earding, 24 L. J. (Oh.) 749 ; Fisher, vol. ii., 964. But where, pendente lite, the pit in a foreclosure suit obtained a transfer from the second mortgagee, the costs of the transfer were held properly chargeable against the estate : Coles v. Forrest, supra. A purchaser ^enrferefe lite comes into Court pro hono et malo, and may become liable for the whole costs of suit : Anon. 1 Atk. 89. Where the decree directs an account of what is due for principal and interest under the mortgage deed, without any special direction as to the costs of legal proceedings taken by the mortgagee, he may carry in a claim for those costs,, either as principal moneys due upon the security, or under the head of just allowances : Blackford v. Davis, L. R. 4 Ch. 304. A mortgagee will not be deprived of his costs in a redemption suit because he has overstated the amount due to him : Cotterell v. Stratton, L. R. 8 Bq. 295. Ee-Conveyance — Costs. The costs of re-conveyance are borne by the mortgagor, as well in ordinary cases as where the estate has been settled or devised by the mortgagee, or has Digitized by Microsoft® 376 MORTGAGES. descended : Fisher, vol. ii., p. 965 ; 6 Hare, 475 ; 1 De G. M. & G. 436 ; except in the case where the mortgagee is of unsound mind : Se Townshend, 2 Ph. 348 ; Be Wheeler, 1 Be G. M. & G. 434 ; Hawkins v. Ferry, 3 De G. M. & G. 439; 4 W. E. 686. On tender by a person having a partial interest giving a right to redeem, the mortgagee is bound to convey, but the conveyance should reserve the equities of the other persons interested : Pearce v. Morris, L. R. 5 Oh. 227. " The legal personal representative of a mortgagee of a freehold estate or of a copyhold estate to which the mortgagee shall have been admitted, may, on payment of all sums secured by the mortgage, convey or surrender the mortgaged estate, whether the mortgage be in form an assurance subject to redemption, or an assurance upon trust " : The Vendor and Purchaser Act, 1874 (37 & 38 Vict. 0. 78), s. 4. Costs of DiscLAiMma Parties. In suits for foreclosure or redemption where a deft disclaims in such a manner as to shew that he never had and never claimed any interest, or, having an in- terest, that he disclaimed, or offered to disclaim, before the institution of the suit, he is also entitled to his costs : Ford v. Earl Chesterfield, 16 Beav. 516. But where a deft having an interest neither disclaimed nor offered to disclaim, until he put in his answer or disclaimer, he was not entitled to his costs : S. 0. These rules were approved by V.-C. Wood in Bellamy v. Brickenden, 4 K. & J. 670. Where a deft disclaiming in proper form, and by his disclaimer offering to be dismissed without costs, is yet brought to a hearing, he will be entitled to his costs incurred subsequent to the disclaimer : Davis v. Whitmore, 28 Beav. 617 ; Dillon V. Ashwin, 10 Jur. (N.S.) 119 ; Ward v. Shakesha/t, 1 Dr. & Sm. 269. But where a party not content with disclaiming, put in an answer and ap- peared simply for the purpose of claiming costs, he was not entitled to any costs : Maxwell v. Whitwick, L. E. 3 Eq. 210. It is not necessary that the offer to disclaim should contain also an offer to pay the costs of the disclaimer : Lock v. Lomas, 15 Jur. 162. Where a deft assigns his interest before answer he ought not under the former practice to have filed an answer and disclaimer without communicating to the plaintiff's solicitor ; otherwise he will have no costs : Fisher, vol. ii., p. 974 ; Hawkins v. Oardiner, 17 Jur. 780. On the other hand, the pit ought not, under such circumstances, to strike out the deft by amendment before moving to dismiss ; and if he occasion the deft any costs by so doing, the deft will be entitled to be indemnified in respect of such costs : S. C. Adding Costs to Debt aftek Decree. Where after a decree for foreclosure and afler the accounts had been taken the mortgagee incurred further costs in another proceeding, a petition to add to the decree by providing for such costs was refused: Barron v. lancfield, 17 Beav. 208. Costs of lost Deeds. If upon the mortgagor's refusal to repay the debt by reason of the non- production of the deeds, aud the mortgagee's refusal to give a satisfactory indem- Digitized by Microsoft® MORTGAGES. 377 nity, a bill of foreclosure be filed, or an ejectment brought, the mortgagee will have to pay the costs of those proceedings : Stohoe v. Bolson, 19 Ves, 385 ; Lord Midkton v. Eliot, 15 Sim. 531 : Fisher, vol. ii., p. 963. So, too, upon a bill to redeem by mortgagor where he requires a re-conveyanoe, upon non-production of the deeds the mortgagee will be made to pay the costs of suit : Lord Midleton, v. Eliot, supra. Account with Eests. The usual mode of taking accounts against the mortgagee in possession is to set aside the total amount of rents and profits received by or found to be charge- able to him, against the whole amount due upon the mortgage debt, viz., in discharge successively of the interest of the mortgage debt, of money advanced for costs and improvements, and then of the principal of the same moneys : Fisher, vol. ii., p. 894 ; Well v. Bocke, 2 Sch. & Lef. 661. The account with rests is applicable to the case of mortgagees in possession of real estate, but not of personal estate : BoUnson v. Cumming, 2 Atk, 410. Where the annual excess of rents is applicable to sinking the principal, the annual rests are not given as of course, but only under special circumstances, and they will not be directed for broken periods of time : Davis v. May, Coop. 240 ; 19 Ves. 382 ; Qould v. Tancred, 2 Atk. 533. But rests may be directed from the time at which the accounts show that the principal of the mortgage money was paid off: Wilson v. Metcalfe, 1 Buss. 530. Generally, annual rests are not directed against a mortgagee in possession where the interest is in arrear at the time he took possession : Wilson v> Oluer, 3 Beav. 136 ; Nelson v. Booth, 3 De G. & J. 119. Where half a year's interest of the mortgage money was in arrear the mort- gagee was held exempted from an account with rests: Moore v. Painter, 6 Jur. 903. And in the absence of special circumstances, if not liable to account with annual rests when he enters into possession, he does not become so liable until the whole mortgage debt is paid off : Wilson v. Cluer, 3 Beav. 136. But where the mortgagee comes to an account with his mortgagor whereby all arrears of interest were converted into principal, the Court has directed annual rests : S. C. And there may be other circumstances in a case which, although no interest might have been in arrear when the mortgagee took possession, may induce the Court not to take the accounts against the mortgagee with annual rests : Patch V. Wild, 30 Beav. 102. Aimual rests may be directed in an account of occupation rent as well as in an account of rents and profits received : Wilson v. Metcalfe, 1 Buss. 530. Generally, rests will not be made in taking the accounts unless directed by the decree : Qould v. Tancred, supra ; Webler v. Sunt, 1 Madd. 13. And where omitted in the decree they cannot be directed in Chambers under 15 & 16 Vict, c. 86, s. 54, or under Cons. Ord. xxxv. r. 19: Nelson v. Booth, 3 De G. & J. 119. But where upon taking the accounts the principal money appears to have been paid off from that period, a subsequent order of the Court (not made in Chambers) may direct the rests : Wilson v. Metcalfe, supra ; Patch v. Wild, 30 Beav. 102. Digitized by Microsoft® 378 MOKTaAGBS. Eeceivee. A power to appoint a receiver of the rents and profits of hereditaments of any tenure_upon which any principal money is secured hy deed may be exercised (un- less the power be negatived by express declaration in the security) by the mort- gagee or his representatives after the expiration of a year from the time the money became payable, or after any interest shall have been in arrear for six months, or after an omission to pay premiums on insurance : 23 & 24 Vict. ss. 11, 32. A mortgagee having the legal estate is not entitled to a receiver appointed by the Court, although the tenants may be numerous and the rents difiScult to collect : Stwrch v. Toung, 5 Beav. 557. And a receiver was refused to an equitable incumbrancer where there was a power of entry and distress : Buxton v. Monkhovse, Coop. 41. A puisne mortgagee or other equitable incumbrancer is generally entitled to a receiver where the prior mortgagee is not in possession : Dalmer. v. Dashwood, 2 Cox, 378 ; Golman v. Duke of St. Albans, 3 Ves. 32 ; Anderson v. Kemshead, 16 Beav. 329. And the Court will grant a receiver against a prior mortgagee in possession where his conduct renders it impossible to say whether anything is due : Cod- rington v. Parker, 16 Ves. 470. The Court will not grant a receiver against a prior mortgagee in possession where anything is due to him : Quarrell v. Beckford, 13 Ves. 377 ; Codrington v. Parker, 16 Ves. 470. If there be any prior incumbrancer not in possession, the receiver will be ap- pointed without prejudice to the right of such person to take possession : Bryan V. Gormick, 1 Cox, 422 ; Berney v. Sewell, 1 Jac. & W. 647 ; Davis v. Duke of Marlborough, 2 Sw. 137 ; Rhodes v. Mostyn, 17 Jur. 1007. Where the receiver has been appointed in the absence of the prior mortgagee, the latter may apply as of course to bring ejectment : Bryan v. Cormick, 1 Cox, 422. But the ejectment cannot be brought without leave of the Court where there is a receiver : Angell v. Smith, 9 Ves. 335. Where a person takes a conveyance of a legal estate .subject to equitable interests, he must satisfy those interests, or he may be subjected to a receiver: Pritchard v. Fleetwood, 1 Mer. 54. Although the Court will not by the appointment of a receiver deprive a prior mortgagee having the legal estate of his right to possession, he must himself take possession if he objects to the appointment : Silver v. Bishop of Norwich, 3 Sw. 112, n. And if after the appointment of a receiver such mortgagee does not avail him- self of his legal rights he will not be permitted to take the benefit of the receiver: Anon. 6 Ves. 287 ; Angel v. Smith, 9 Ves. 335, 338. As between mortgagees in possession and persons having subsequent interests, the Court will not appoint a receiver against the prior mortgagees' statement on oath thdt something is due : Bowe v. Wood, 2 Jac. & W. 553, 557. But if the incumbrancer applying for the receiver offers to pay oflf the prior mortgagee upon his own statement on oath of the amount of the debt, the receiver will be appointed, and the mortgagor must give security to refund if, upon taking the account, he shall have been overpaid : Chambris v. Ooldwin, cited 13 Ves. 376 ; Quarrell v. Beckford, Ibid. Digitized by Microsoft® MORTGAGES. 379 And if the prior mortgagee will not supply any evidence as to the amount due, the r-eceiver will be Appointed : S. . Where fraud can he proved the Court will grant a receiver against the legal title : Lloyd v. Passingliam, 16 Ves. 70. But in such case evidence must be given that there is danger to the interme- diate rents : Ibid ; see too Stilwell v. WilMns, Jac. 280, 283 ; 6 Madd. 49 ; Pod- more V. Ounning, 5 Sim, 485. Fixtures and Chattels. As a general rule, by the mortgage of land, fixtures, consisting of ordinary house and trade fixtures, belong to the mortgagee : Ex parte Barclay, 5 De G. M. & G. 403. And distinctions are not generally made between the case of machinery placed upon land for the purpose of trade or manufacture, and that of machi- nery placed upon land for the mere purpose of better enjoying the land : Fisher V. Dixon, 1 CI. & F. 312. The principle upon which the rule of law that fixtures pass with the soil is relaxed in favour of trade has no application where the parties who affix the machinery are themselves owners in fee of the soil : Mather v Fraser, 2 K. & J. 536 ; Order, p. 360. And where fixtures are added by the mortgagor after the mortgage they will vest in the mortgagee, whether they be or he not such as are reasonable between landlord and tenant: Walmsley v. Milne, 6 Jur. (N.S.) 125 ; Suffordv. Bishop, 5 Russ. 346. Trade fixtures will also pass to the mortgagee when annexed to the freehold after the mortgage deed by a firm in which the mortgagor is a partner: Fx parte Cotton, 2 M. D. & D. 725 ; CullwickY. Swindell, L. E. 3 Eq. 249 ; Order, p. 361. Where, however, a mortgage enumerates various fixtures but does not refer to the fixtures in dispute, the Court has held that they were intentionally omitted from the mortgage deed, and therefore did not pass by it : Trappes v. Barter, 2 C. & M. 153. And if two kinds of property be mortgaged with the fixtures in one of them the principle, Fxpressio unius est exclusio alterius, holds good : Fisher, vol. i., p. 27 ; Hare v. Horton, 5 B. & Ad. 715. The rule as to vesting fixtures in the mortgagee of the buildings or soil to which they are annexed extends to the mortgages of leasehold as well as of real estate -.^ Langstaff v. Meagoe, 2 Ad. & B. 167; Ex parte Barclay, 5 De G. M. & G. 403. As to the extent of the term " fixtures," see Mather v. Fraser, 2 K. & J. 536 : Haley v. Hammersley, 7 Jur. (N.S.) 765 ; Walmisley v. Milne, 6 Jur. (N.S.) 125 ; Metropolitan Counties Society v. Brown, 26 Beav. 454. It is not necessary to register, under the Bills of Sale Acts, a conveyance or contract by which a legal or equitable interest in fixtures or other chattels as mere adjuncts to the land is passed : Mather v. Fraser, 2 K. & J. 536. But trade fixtures, not permanent adjuncts to the land, are within the Acts when separately assigned : Waterfall v. Penistone, 3 Jur. (N.S.) 15. The mortgagee of stock or personal chattels may proceed to a sale without bringing his bill for foreclosure : Tucker v. Wilson, 1 P. Wms. 260 ; Lockwood v. ^iwe", 2.Atk. 303. Digitized by Microsoft® 380 MORTGAGES. But lie is also entitled to bring Us suit for foreclosure. The mortgagee of a reversionary interest in stock in the public funds cannot be made to submit to a decree for sale. He is entitled to a foreclosure decree in the common form : Slade V. Sigff, 3 Hare, 35 ; Wayne v. Eanham, 15 Jur. 506. Stock and personal chattels may also be redeemed in equity where it is neces- sary to take an account of what is due on the security; Kemp v< WestbrooJe; 1 Ves. 278 ; Demainbray v. Metcalf, 2 Vern. 690,. 698. Although stock may be redeemed the privilege will be sparingly allowed if the bill be brought on account of an accidental increase in the value of the pledge : Lockwood V. Ewer, 2 Atk. 303. EQUITABLE MORTGAGES. Agreement to mortgage — Conveyance. Declaek that the agreement, dated, &c., made between, &c., ought to be specifically performed and carried into execution, and decree the same accordingly. Let the Deft execute to the Pit a proper indenture of mort- gage of his property mentioned in the said agreement according to the terms of the said agreement. Let all proper parties join therein as the judge shall direct. And Let such indenture of mortgage be settled by the judge in case the parties dilFer. Let the Deft deliver up on oath to the Pit the title deeds and documents of title relating to the said estate which are now in his possession or power. Let the Deft pay to the Pit his costs of this suit (including the costs of such indenture of mortgage), such costs to be taxed by the taxing master in case the parties diffeT. — Liberty to apply. Ashton v. Corrigan, L. E. 13 Eq. 76 ; Herman v. Hodges (L.O. for M.E.), L. E. 17 Eq. 18. Deposit of Deeds — Conveyance. Declare that the title deeds relating to the estate in question having been deposited by A., the bankrupt, in the hands of the Pit, the Pit is entitled to be considered in this CoTjrt as if he were a mortgagee of the hereditaments therein comprised, and decree the same accordingly. Let an account be taken of what is due for principal m.oney advanced on the said deposit, and for interest thereon, and for (Josts of this suit (such costs to be taxed, &c.). Declare that such principal, interest, and costs are to be considered as a charge upon the said hereditaments. Let, upon the Deft T. paying to the Pit within six calendar months, 09. Thus, a judgment creditor prior to 1 & 2 Vict. c. 110, buying in the first mortgage upon an estate, there being a mesne mortgage, was held not entitled to tack, his judgment debt not having been advanced upon the credit of the estate : Jirace v. Duchess of Marlborough, supra. Digitized by Microsoft® MOETaAGES. 393 But debts which form a Men upon the estate, as debts by mortgage and further charge ; and judgment debts when advanced upon the credit of the estate, have been tacked against the mortgagor, his sureties, and all others claiming under him, including mesne incumbrances : Brace v. Duchess of Marlborough, 2 P. Wms. 494 ; £arnett v. Weston, 12 Ves. 130 ; Ex parte Cox, 2 M. D. & De G. 486. And an equitable mortgagee has protected his security by getting in a prior legal incumbrancer : Ooddard v. Complin, 1 Ch. Ca. 119. The right to tack also depended upon the possession of, or dominion over, a prior legal interest. But actual possession was not always necessary. Thus, the custody of deeds creating a term, accompanied by a declaration of the trust of it in favour of a second incumbrancer, without notice of the prior mortgage, has been held to give priority over the first incumbrancer : Stanhope v. Mtrl Verney, 2 Eden, 81. The prior mortgagee, when he acquired the subsequent security, and the puisne incumbrancer, when he originally lent his money, must be without notice of the incumbrance which by virtue of the legal estate he claimed to postpone : Fisher, 661 ; Morret v. Paske, 2 Atk. 52 ; Wilhughly v. Will April 19, 1856. Similar Order — Insufficiency of Mortgagor's Estate to redeem. The; Pit by his counsel offering to pay to the Defts their costs of this suit as between solicitor and client upon having an absolute .de- cree for foreclosure, and the Deft C. L., by her counsel, disclaiming all interest in the estate comprised in the indenture of mortgage in the pleadings mentioned and consenting to an absolute decree, and the infant, David Lever, not asking for liberty to redeem the mort- gaged hereditaments, or for an account of what is due to the Pit : And it appearing by the affidavit of the Deft 0. L., the widow of H. L., the mortgagor, that the said H. L. died without leaving any personal property of any value, Declare that it will be for the benefit of the infant to accept the offer of the Pit, Let the Deft henceforth stand absolutely debarred and foreclosed, and Let the Pit pay to the Defts respectively their costs of this cause, to be taxed, &c. Croxon v. Lever, 10 Jur. (N.S.) 87 ; 12 W. E. 237. Infants may be foreclosed, or a sale directed against them. The provisions of the 11 Geo. 4 & 1 Will. 4, c. 47, s. 10, do not aflfect the right of the infant to the six months' time after coming of age to shew cause : SchoUfleld V. Eeafidd, 7 Sim. 669 ; Ibid. 470 ; Price v. Carver, 3 M. & 0. 157. Nor is that right affected by the provisions of the Trustee Act, 1850 : New- bury V. Marten, 15 Jur. 166 ; see also Boiura v. Wright, 4 De G. & Sm. 265 ; 15 Jur. 981. But where the Court is satisfied that the mortgaged property is not worth the money, and the mortgagee has offered to pay the infant his costs of suit, orders have been made by consent directing immediate foreclosure : Billson v. Scott (V.-C. W.), April 19, 1856; Croxon v. Lever, 10 Jur. (N.S.) 87 ; 12 W. R. 237 ; Orders, supra. Where sales are made of mortgaged estates in suits for payment of debts under the 11 Geo. 4 & 1 Will. c. 47, s. 12, or under the 2 & 3 ?ict. c. 60, s. 1, or the 11 & 12 Vict. c. 87, s. 1, the infant is not entitled to a day to shew cause : see 3 M. & 0. 163. The effect of giving the day to shew cause in foreclosure suits was not to enable the infant to dispute the account, nor to give him a new right of redemp- tion, but only to shew error in the decree : Mallacle v. Oalton, 3 P. Wms. 352 ; Bishop of Winchester v. , Beaver, 3 Ves. 314 ; Williamson v. Gordon, 19 Ves. 114. Maeeied Womens' Estate. Account — Foreclosure. Let an account be taken of what is due, &c., for piincipal and interest on his mortgage in the pleadings mentioned and for his costs 2 D Digitized by Microsoft® 402 MORTGAGES. of this suit (such costs to be taxed, &o.). And upon the Dofts Poole and wife paying what shall be certified, &o., within six months, &o., Let the Pits re-assign, &o. But in default, &o., Let the Defts Poole and wife stand absolutely debarred and foreclosed, &o. Leieis v. Poole, 3 Giff. 636. A married woman with the consent of her husband. may mortgage her interest, whether in possession or reversion, in lands, in money subject to be invested in lands, and in the proceeds of land directed to be sold : Fines and Recoveries Act, 3 & 4 Will. 4, c. 74, s. 77 ; Briggs v. Ohamherlain, 11 Hare, 69 ; 18 Jur. 56. The husband and wife, or the husband alone, may during coverture dispose by sale or mortgage of the wife's term of years, whether legal or equitable : Bates v. Dandy, 2 Atk. 207 ; 3 Russ. 72, n. ; Fisher, vol. i. p. 234. Every married woman may by deed, made with the concurrence of the hus- band, and acknowledged by the married woman, dispose of any future or rever- sionary interest, -whether vested or contingent, of her, or her husband in her right, in any personal estate to which she shall be entitled under any instrument made after the 31st December, 1857 (except a settlement on marriage or agreement for a settlement) : 20 & 31 Vict. c. 57. If the equity of redemption is in feme coverte owner, against whom and her husband a bill is brought to foreclose, no day is given to her or her heirs to redeem after the determination of coverture : Mallack v. Qalton, 3 P. Wms. 352 ; Lewis V. Poole, 3 Giff. 636 ; see Order, supra. An immediate order for absolute foreclosure is not usually made, even by consent : Barrison v. Kennedy, 10 Hare, App. 51. But see Billson v. Scott, ante, p. 401. Where the husband and wife join in a mortgage of the wife's estate to secure the husband's debt, and the equity of redemption be limited to the wife, her heirs and assigns, the wife, on the bankruptcy of the husband, may redeem, the assignees waiving their prior right : Fisher, vol. ii. p. 984 ; Huntington v. Huntington, 2 Vern. 437 ; Tate v. Austin, 1 P. Wms. 264. If the mortgage of the wife's estate be executed by her and her husband, part of the money having been advanced to her before marriage, and the equity of redemption being reserved to husband and wife, the decree for foreclosure will be against both : Lewis v. Poole, 3 Giff. 636. Where the husband is seised of the legal estate Jure uxoris, and husband and wife join in a mortgage of the estate, reserving the equity of redemption to the husband, the husband has that equity only jure uxoris : Buscombe v. Hare, 6 Dow. 20. In the latter case, the heir-at-law of the wife was after the death of the husband and upon a bill filed against his representative and mortgagee held entitled to redeem. Ibid. ; see also Hill v. Edmunds, 16 Jur. 1134 ; 5 Do G. & Sm. 603, said to be misreported. The equity of redemption of the wife's real estate remains with her in ordinary cases as part of the inheritance. If the husband and wife join in mortgaging her chattel leaseholds, and the hus- band survive, the redemption will belong to him as against the representatives of the wife : Yong v. Eadford, Hob. 3. If the wife survive the right of redemption will remain with her : Powell on Mort. 714. Digitized by Microsoft® MOEXaAGBS. 403 SOLICITOR AND CLIENT. AccouTd — Bills of Costs. Let an account be taken of what is due to the Deft L., as executor of W., deceased, for principal and interest on the mortgage made to the said W. in the pleadings mentioned, and for his costs of suit, to be taxed by the taxing master. And in case any part of the Deft's de- mand consists of bills of costs, Let the same be taxed by the taxing master, Declare that as to that part of the Deft's demand the mort- gage is to stand as a security only for what, if anything, shall appear due to the Deft on such taxation. Morgan r. Lewis (M. E.), 29 Nov. 1811; Seton, 416. Deed to stand as Security for Sums advanced — Account. Deolaee, that the agreement of the 24th October, 1789, and the 27th January, 1790, ought to be delivered up to be cancelled, and de- cree the same accordingly. Declare, that the indentures dated the 24th and 26th March, 1790, are to stand as a security for the balance, if any, due upon the accounts hereinafter directed. Let the following accounts be taken, &c. Wood v. Downes, 18 Ves. 130. If a solicitor obtain a benefit from his client, the solicitor must shew that he has taken no advantage of his professional position. In default of proof the deed will only stand as a security for the amount found to be due : Oibson v. Jeyes, 6 Ves. 266 ; Cutts v. Salmon, 16 Jur. 623 ; King v. Savery, 1 Sm. & G. 271 ; hut see Bolman v. Loynes, 18 Jur. 839 ; Frees v. Coke, L. R. 6 Ch. 645. Beneficial contracts and conveyances obtained by an attorney from his client during their relation as such will in equity only stand as a security for the money advanced : Wood v. Downes, 18 Ves. 120. It is a weU-established rule that a solicitor cannot take a mortgage from his client as a security for costs not yet incurred : Booth v. Cresvyicke, 8 Jur. 323 ; Jones V. Tripp, Jac. 322. But where an existing debt is included in a security for future costs the security will be good as to the debt if due: Eoldsworth v. Wakemam,, 1 Dowl. 532 ; WilUaTns v. Piggott, Ibid. 598. PINAL FORECLOSURE. Common Order. Upon motion, &c., and upon reading an order dated, &c. [the order directing the accounts, &o.], the chief clerk's certificate dated, &o., and an affidavit of the Pit filed, &o., whereby it appears that he did [or an affidavit of — , whereby it appears that he did by virtue of a letter of attorney from the Pit] attend on the — day of — , at — , &c., from 2 D 2 Digitized by Microsoft® 404 MOETGAGBS. before the hour of — till after the hour of — of that day, in order to receive from the Deft the sum of — , but the said Deft did not, nor did any person on his behalf, attend to pay the said sum, and it appearing by the said affidavit [and also by an affidavit of the Pit] that the said sum has not nor has any part thereof been since paid to the Pit [or to the said — ], but that the whole thereof still remains due and owing: Let the said Deft from henceforth stand absolutely de- barred and foreclosed of and from all right, title, interest, and equity of redemption of or in the said mortgaged premises comprised in the indenture dated, &c., in the said decree and certificate particularly mentioned or referred to. Enlarging Time for Payment. Upon motion, &c., and upon reading, &c.. Let the Deft B. pay to the Pit A. his costs of this application, to be taxed, &c. Upon the Deft B. paying to the Pit A. on or before the — day of — [the day fixed by the chief clerk's certificate for payment of principal, interest, and costs] the sum of £ — , certified to be due to the Pit for interest in re- spect of his mortgage in the said decree dated, &o., mentioned, and for his costs of this suit, the time for the Deft's redeeming the heredita- ments comprised in the said mortgage be enlarged for six calendar months. Upon such payment being made. Let the Pit's subsequent interest be computed, and his subsequent costs of this cause taxed [if account of rents directed hy the decree, add : And that the account of the rents and profits of the mortgaged hereditaments be carried on, and the amount due in respect thereof be deducted, &c.]. Let a new time and place be appointed for payment of what shall be certified to re- main due to the Pit in respect of his said mortgage, and for subsequent interest and costs as aforesaid [after such deduction as aforesaid]. But in default of the Pit paying to the Deft the said sum of £ — by the time aforesaid, the said Deft is to stand absolutely debarred and fore- closed, &o. Pinal roEECLosaEE. The Court will upon a proper case in a foreclosure suit either postpone the day of payment of the mortgage money or open the foreclosure : Lee v. Heath, 9 Sim. 307, n. ; Alden v. Foster, 5 Beav. 592. But in a redemption suit special circumstances must be stated : Faulkner v. Bolton, 7 Sim. 319 ; Tipping v. Eawes, 17 Ves. 417. The period granted upon first apphcations of this nature is usually six months. The ordinary terms upon which the time is enlarged are payment of the sum found due for interest and costs, carrying on the account of subsequent interest and costs, and the payment of the costs of the apphoatiori : Finch v. Shaw, 20 Beav. 555 ; Coombe v. Stewart, 13 Beav. 111. Where the right to redeem is in dispute, and time is required to prosecute an appeal, the terms imposed have been the payment into Court of principal and Digitized by Microsoft® MOETGAGBS. 405 arrears of interest, and consent to a receiver ; Monkhoxtse v. Corporation of Bed- ford, 17 Ves. 380 ; Finch y. Shaw, 20 Beav. 555. Where the time is enlarged hy reason of the act of the mortgagee, the mort- gagor is not put upon the terms of immediate payment of the interest and costs : Btichanan v. Qreenway, 12 Beav. 355. And if the mortgagee having first proceeded by foreclosure, and finding the estate insufficient, sues the mortgagor on his bond or covenant, equity will give the mortgagor a further time to redeem : Cook v. Sadler, 2 Vem. 285. The foreclosure will also be opened if the decree has been obtained by false evidence or fraudulent practice : Loyd v. Mansdl, 2 P. Wms. 73 ; Harvey v. Tebhutf, 1 Jac. & W. 197, cited in Fisher, vol. ii. p. 999. An incumbrancer of doubtful means seeking to open the foreclosure and to redeem upon the ground that he was not a party to the suit has been ordered to give security for costs in case he did not redeem : Bird v. Oandy, 2 Eq. Ca. Ab. 251, n. ; Stevens v. WiUiams, 1 Sim. (N.S.) 545. A foreclosure is not complete until the final order is made, and the final order cannot be obtained if the rents have been received by the mortgagee since the account was taken : Frees v. CoTce, L. K, 6 Oh. 645. LIENS. Vendor's Lien— Unpaid Purchase-money. , Declare that the Pits are entitled to a lien on the freehold and copyhold hereditaments comprised in the indenture in the pleadings mentioned for the sum of £968 18s. 9d., and interest thereon at the rate of £5 per cent, from the llth October, 1853, and for their costs of the suit to be taxed, &c. Let the Deft Dawes on or before the 29 th September next pay to the Pits the said sum of £968 18s. 9d., interest and costs. In default of payment, Let the said freehold and copyhold premises be sold. And in that case Let the money to arise from such Bale be. applied in or towards payment to the Pits of the said sum of £968 18s. 9d., interest and costs. — Liberty to apply. Wrout v. Dawes, 4 Jur. (N.S.) 396. Vendor's Lien — BeversUm — Sale or Mortgage. Declaee that the Pit has a lien upon the reversion of the said free- hold, copyhold, and leasehold estates for the money paid by the Pit to Manners, or his representatives, in discharge of the several bonds entered into by him and Martindale in the bill named, dated, &c., and decree the same accordingly. Let an account be taken of what is due to the Pit for principal and interest in respect of the money so paid by the Pit in satisfaction and discharge of the said bonds. Let the Deft pay to the Pit what shall be certified to be due to him within one calendar month, &c., at such time and place, &c. And in case the Deft shall not pay to the Pit what shall be certified to be due, &c.. Let the same be raised Digitized by Microsoft® 406 MORTGAGES. by mortgage or sale of tte reversion of the said freehold, leasehold, and copyhold estates with the approbation of the judge. Let the money to be so raised be paid into the bank to the credit of this cause, and be applied in payment of what shall be certified to be due, &o. No costs on either side up to the hearing. Order to be without prejudice to Pit having his subsequent costs as mortgagee. — Liberty to apply. Mackreth v. Symmons, 15 Ves. 329. Agency Lden — Fimd in Oourt. Declare that the Petitioners, the Defts Edward Cane and Maurice Kane, are entitled to a lien upon the £642 Os. lid.. Bank 3 per Cent. Annuities, standing to the credit of this cause, for the sum of £150 14«. 2d., the amount of the moneys advanced by them to the Deft Henry Eldon George Banks, and interest thereon. Let so much of the said £642 0«. Hi., Bank 3 per Cent. Annuities, as will raise the said sum of £150 14s. 2d., with interest thereon at the rate of 5 per cent, per annum from the 14th February, 1855 (the amount to be verified by affidavit), be sold, and the moneys to arise by the said sale be paid to the Petitioners in satisfection of the moneys so advanced by them. Keference to tax Petitioners' costs, and direc- tions for payment out of residue of fund in Court. Lawrie v. Banks, 4 Jur. (N.S.) 299. Liens in the Nature of Sahage — Premiums of Policy paid by Married Woman out of Her separate Estate. It appearing that Henry Winchester did during his life, and after the bankruptcy of William Kow, pay four several sums of £119 18«. ?:d. each, as and for premiums on the two policies in the pleadings mentioned, which said several sums were properly due from and pay- able by the said William Eow on his estate ; and it being admitted that the said Henry Winchester has been fully repaid the said four several sums of £119 18«. 8d!. each by the Pit Sarah Burridge, and that his estate has not any claim or interest therein which has not been paid and satisfied by the said Sarah Burridge, Declare that in respect of, and in satisfaction for, each of such four sums, together with interest thereon respectively after the rate of £4 per cent, per annum from the respective times of the payment of such said four sums by Henry Winchester, in the events that have happened, the Pits, in right of Sarah Burridge, have a lien upon the capital of the aforesaid sum of £5592 178 4i., Bank 3 per Cent. Annuities, in reversion immediately expectant on the said life interest of Sarah Burridge. Burridge v. Bow, 1 Y. & C. Ch. 183. Digitized by Microsoft® MOETaAGBS. 407 Vekdor's Lien. The vendor's right in equity against real estate is independent of possession, and exists as well after as before conveyance : Wrout v. Dawes, 2 Giff. 381 ; 4 Jur. (N.S.) 397 ; Order, p. 405 ; Machreth v. Symmons, 15 Ves. 328 ; Order, p. 405 ; Winter v. Lord Anson, 3 Russ. 492 ; Mathew v. Bowhr, 6 Hare, 110 ; Harrison v. Boutlicote, 2 Ves. 392. If purchase-money is paid prematurely, it will be a lien upon the estate in the hands of the vendor for the purchaser or his personal representatives: Fisher, 123 ; 2 Sugd. V. & P. 11th ed. 857 ; ,15 Ves. 345. And there is a lien for the deposit-money and interest on unpaid purchase- money : Bose v. WaUwi, 10 Jur. (N.S.) 297 ; 33 L. J. (Ch.) 385 ; 10 H. L. C. 672. The lien does not exist if the purchaser has abandoned the contract through his own default. Partnership Liens. On the dissolution of a partnership by the death or retirement of a partner, the retiring partner, or the representatives of the deceased, have a lien on the partner- ship estate for demands arising out of the joint business prior to the dissolution : West v. Skip, 1 Ves. 239, 456 ; Skip v. Harewood, 2 Sw. 586 ; Taylor v. Fields, 4 Ves. 398. See also Ex parte King, 17 Ves. 115 ; Slacken v. Dawson, 9 Beav. 239 ; Payne v. Hornby, 25 Beav. 280 ; 4 Jur. (N.S.) 446 ; Be Langmea^s Trusts, 20 Beav. 20 ; 7 De G-. M. & G. 353. Agency and other Liens. An agent who has advanced money has a lien upon the property in respect of which the advances were made : Lawrie v. Banks, 4 Jur. (N.S.) 299 ; Order, p. 406 ; Foxcraft v. Wood, 4 Euss. 487 ; Bristowe v. Whitmore, 9 H. L. C. 391 Deane v. Byrnes, 13 W. E. 299. Where advances have been made in the nature of salvage, viz., such as are made for the redemption of property or for renewal fines, the person making the pay- ment has a lien upon such property : Kerr, 130. And a married woman, who out of her separate estate has paid the premiums on policies effected as a provision under her marriage settlement, is also entitled to such a lien : Burridge v. Bow, 1 Y. & C. Ch. 183. A lien is also allowed to the managers of certain undertakings for expenses incurred in their management and working : Fraser v. Burgess, 13 Moo. P. C. 314 ; 6 Jur. (N.S.) 327, per Lord Kingsdown. See also Scoff v. Nesbitt, 14 Ves . 438, per Lord Bldon ; Be Leith's Estate, L. E. 1 P. C. 296 ; Moirison v. Morrison, 7 De G. M. & G. 214. Vendor's Lien against Eailwat Company. Where a railway company took land, made a railway thereon, and afterwards leased the railway to another company, part of the purchase-money remaining un- paid, the first company were ordered to pay, and in default both companies were restrained from using the land : Oosens v. Bognor By. Co., L. E. 1 Ch. 594. The owner of land taken by a railway company has a lieu upon the land for the purchase-money. Be is not deprived of the lien by a deposit and bond under the 85th section, and the .Court will enforce the lien by sale, although the rail- Digitized by Microsoft® 408 MORTGAGES. way has been made and opened for public use : Walker v. Ware, Hadham, and Buntingfwrd By. Co., L. B. 1 Eq. 195. A vendor of land to a railway company, who have used it for the purposes of their railway, is entitled to the same lien on the land for unpaid purchase-money as an ordinary vendor. And in default of payment, after decree in a suit for specific performance, the vendor is entitled to a sale, although the railway is opened for a-affic: Wing v. Tottenham Hy. Co., L. R. 3 Ch. 740. In a suit for specific performance by unpaid vendors against two railway com- panies and their lessees in possession, a decree was made for specific perfonnance, a lien was declared as against both companies, and in default of payment leave was given to apply for an injunction and receiver : Bishi^ of Winchester v. Mid- Hants Ry. Co., L. B. 5 Eq. 17. MERCHANT SHIPPING ACTS. Lien — Mortgage to he executed — Account — Bill of Sale. Declaee that the Pit., as the executrix of William Evans Nichols, is entitled to a lien on the shares of the Defts in the ship Oden in the Pit's hill mentioned for the sum of £300, and interest thereon at the rate of £10 per cent, per annum from the 22nd February, 1867, until payment, and for £15 for commission, as in the Pit's hill mentioned. Let the Defts Somerville and Langdon execute to the Pit Georgiana Frederick Nichols proper mortgages of their respective interests in the said ship, in conformity with the provisions of the Merchant Shipping Acts, and be settled by the judge in case the parties differ. Let, upon such mortgages being executed and duly registered by the Pit, an account be taken of vfhat is due to the Pit for principal and interest under such mortgages, and for her costs of this cause (such costs to be taxed by the taxing master). Let, upon the Defts or either of them paying to the Pit what shall be certified by the chief clerk to be the total amount of principal, interest, and costs within six calendar months from the date of the certificate, at such time and place as shall be thereby appointed, the Pit Georgiana F. Nichols deliver up such mortgages with a proper receipt for the mortgage money thereby respectively secured indorsed thereon, and also all deeds and covenants relating thereto, upon oath to the said Defts, or such one of them as shall pay the same. But in default of the Defts or either of them paying to the Pit what shall be so certified to be due to her as aforesaid by the time aforesaid. Let the said Defts exe- cute to the Pit a bill of sale of their interest in the shares of the said ship, but subject to the mortgage of the share of the Deft Somerville to Edward E. Cummins in the Pit's bill named. Let the injunction awarded, &c., be continued. — Liberty to apply. Nichols v. Somerville (V.-C. M.), March 10, 1869. Digitized by Microsoft® MOETGAGES. 409 Stoppage in Transitu — Account — Payment. Let the following accoTints be taken : — ■ 1. An account of all sums of money received by the Deft E. in respect of the cargo of wheat in the pleadings mentioned. 2. An account of his costs and charges in respect of the said cargo and the sale thereof. 3. An account of what is due to the Deft for principal and interest in respect of the bill of exchange for £1000 in the plead- ings also mentioned. Let what shall appear due on the two last- mentioned accounts be deducted from what shall be certified to be due on the account numbered 1. Let what shall be certified to be the balance of the said accounts after such deductions be paid by the Deft E. to the Pits. Deft to pay Pits' costs of suit. — Liberty to apply. Spalding v. Btiding, 6 Beav. 376. Charge on Freight — Account. Declare that the Pit is entitled to a charge on the freight payable under the charterparty dated the 27th November, 1863, in the pleadings mentioned, of the ship Pharamond, in priority to the claim of the Deft George Tanner therein. Let the following accounts be taken : 1. An account of what is due from the Defts P, & K. for and in respect of the freight of the said ship under the said char- terparty, after deducting any sums properly advanced or expended by them. 2. An account of what is due to the Pit under or by virtue of her charge upon the said freight of the said ship. Let what on taking the last-mentioned account shall be found due to the Pit be paid to him by the said Defts P. & K. out of the moneys which shall be found due from them in respect of the freight so far as the same shall extend. Let the costs of the Pit and of the Defts P & K. of this suit be taxed by the taxing master. Let the Pit pay to the Defts P. & K. their said costs when so taxed. Let the Deft T. pay to the Pit his costs when taxed, including what he shall have paid to the Defts P. & K. — Liberty to apply. Broum v. Tanner, L. E. 2 Eq. 806 ; reversed, L. E. 3 Ch. 597. The Meechant Shipping Acts. A registered ship, or any share therein, when disposed of by persons qualified to be owners of British ships, must be transferred by bill of sale, and such trans- fer and the transmission of interests by death, bankruptcy, or marriage must be registered in manner provided by the Merchant Shipping Acts, 17 & 18 Vict. c. 104, and 17 & 18 Vict. c. 120. By the Act 17 & 18 Vict. c. 104, a registered ship or any share therein may be made a security for a loan or other valuable consideration, and the mortgage must be in the form mentioned in the schedule to the Act. On production of such instrument the registrar of the port at which the ship is to record the same in the register book : sects, 66 and 67. Digitized by Microsoft® 410 MOETGAGES. Whenever any registered mortgage has been discharged an entry is to be made in the register book on production of the mortgage deed : sect. 68. Where the discharge of a mortgage has been duly registered under this section the mortgage cannot be revived on an allegation that the discharge was given by mistake : Bell v. Blyth, L. R. 6 Eq. 201 ; S. 0. 4 Ch. 136. A registered mortgage of any ship or share in a ship may be transferred, and the transfer registered : 17 & 18 Vict. c. 120, s. 73. The transmission of interest of mortgagees in consequence of death, bank- ruptcy, marriage of female mortgagee, or by any other lawful means other than by transfer under the Act, is to be authenticated by declaration and evidenced according to the Act : sects. 74 and 75. Any registered owner, if desirous of selling or mortgaging the ship or share therein at any place out of the country or possession in which the port of regis- try is situate, may obtain from the registrar certificates giving powers of sale or mortgage : sects. 76, 77, 78, 79. The power has to be exercised conformably with the directions contained in the certificate, and no mortgage lond fide made thereunder can be impeached by reason of the death before the making of the mortgage of the person by whom the power was given : sect. 80 (1), (2), (3). New certificates may be issued upon proof of loss or obliteration of original certificates : sect. 83. The registry of any ship may be transferred from one port to another upon the application of parties, whether as owners or mortgagees. And such transfer of registry will not affect the rights of persons interested : 17 & 18 Vict. c. 120, sects. 89, 91. Although the latter Act contains no provision negativing validity of a mort- gage made otherwise than according to the tenns of the Act, the whole scope of the Act is to that effect, -and an equitable mortgage not complying with the terms of the Act as to registration was held invalid : Liverpool Borough Bank v. Turner, IJ. & H. 159 ; 2 De G. F. & J. 502. No notice of any trust, express, implied, or constructive, is to be entered on the register, and, subject to any rights and powers appearing by the register book to be vested in any other person, the registered owner of any ship, or share therein, has power absolutely to dispose of the same : 17 & 18 Vict. c. 104, s. 43. Under this section it has been held that the assignees in bankruptcy of the owner of a ship cannot claim it against a mortgagee whose mortgage made before the completion of the ship was registered after it was completed, and registered by the owner : Bell v. Banh of London, 3 H. & N. 730, cited in Fisher, vol. i. p. 65. The expression " beneficial interest " whenever used in the second part of the principal Act (17 & 18 Vict. c. 104) includes interest arising under contract, and other equitable interests ; and the intention of the said Act is that without pre- judice to the provisions contained in the said Act for preventing notice of trusts from being entered in the register book, and without prejudice to the power of disposition conferred by the said Act on registered owners and mortgagees, and without prejudice to the provisions contained in the said Act relating to the exclusion of unqualified persons from the ownership of British ships, equities may be enforced against owners and mortgagees of ships in respect of their interest therein : 25 & 26 Vict. c. 63, s. 3 (Merchant Shipping Amendment Act, 1862). Under this section it has been held that although a mortgage transaction in order to operate as a valid transfer must be a complete satisfying the terms of 17 & 18 Vict. 0. 104 {Liverpool Borough Banh, supra), it is open to the owners of Digitized by Microsoft® MORTGAGES. 411 a ship to shew that the transfer, though ahsolute in its terms, was intended as a security only : Ward v. Beck, 9 Jur. (N.S.) 912 ; The InnisfaUen, L. K. 1 A. & E.72. And where a. deposit of title deeds has been made under circumstances which rendered compliance with the statute as to registration impossible, the Court of Chancery has declared the mortgagees entitled to a lien upon the sale moneys of a ship : Lacon v. lAffem, 9 Jur. (N.S.) 13 ; see also Stapleton v. JSaymen, 10 Jur. (N.S.) 497. Under the 50th section of 17 & 18 Vict. c. 104, a pledge by the master and sole owner of a ship, of the certificate of registry, although for a sufficient consideration, is illegal and void : Wiley y. Crawford, 7 Jur. (N.S.) 1296 ; and an action will lie by the master and owner against the person detaining it. The right of an insurer of ships who is, but does not appear on the register as, the mortgagee to the proceeds of the policies, is not affected by the Acts : Lad- hrooke v. Lee, 4 De G. & Sm. 106 ; Fisher, vol. i. p. 66. It is not necessary to comply with the Acts in order to make a valid assign- ment of the present or future (Douglas v. JRusseU, 4 Sim. 524 ; 1 M. & K. 488) freight of the ship, provided the object be carried out by a distinct contract : Fisher, voL i. p. 67 ; Mestaer v. QiUespie, 11 Ves. 621 ; Langton v. Horton, 1 Hare, 549 ; Oibson v. Ingo, 6 Hare, 112. Although the mortgagee of a ship is entitled to the freight earned by it, the mortgagor is, in the absence of any contract between himself and the mortgagee, entitled to the cargo : Alexander v. Simms, 18 Beav. 83. The freight to be earned by a particular voyage may be effectually assigned, although the ship and the freight generally may have been previously mortgaged : Lindsay v. Gibhs, 22 Beav. 522. The mortgagee of a ship is entitled to all the rights and liable to all the duties of an owner &om the time of taking possession, and he is entitled to receive all freight remaining due when possession is taken : Brown v. Tanner, L. E. 3 Ch. 597 ; Wilsim v. Wilson, L. E. 14 Eq. 32. See also Cato v. Irving, 5 De G. & Sm. 210 ; Bdberts v. Brett, 11 H. L. C. 337. Where the owner of a ship assigned the freight, not yet earned, and three days afterwards, with the knowledge of the assignee, mortgaged the ship, and the mort- gage was registered, the assignee who had omitted to give notice of his claim upon the freight was not entitled to set up his right against the mortgagees : Wilson V. Wilsm, L. E. 13 Eq. 32. The first registered mortgagee of a ship, by taking possession of her before the freight is completely earned, obtains a legal right to receive the freight, and to retain thereout not only what is due on his first mortgage, but also the amount of any subsequent charge which he may have acquired on the freight, in priority to every equitable charge of which he had no notice: Liver^ol Marine Credit Company v. Wilson, L. E. 7 Ch. 507. It makes no difference that a subsequent incumbrancer was the first to give notice to the charterers of his charge on the freight : S. C. The transfer of goods for valuable consideration by a consignee for a limited purpose does not destroy the consignor's right of stoppage in transitu, ultra the particular lien of the transferee : Spalding v. Ending, 6 Beav. 376 ; Order, p. 409 ; Coventry v. Gladstone, L. E. 6 Eq. 44. Digitized by Microsoft® 412 MORTGAGES. Bottomry. Bottomry, or the security by which the fabric, rigging, and stores of a ship are charged with the repayment of money advanced for her repairs, or for other purposes necessary for the prosecution of her voyage, is a negotiable instrument. The form of a bond is not necessary for the validity of the instrument. The power to make a valid contract of bottomry is generally vested in the master of the ship alone, and the power is based upon the necessity of acting by an agent where no contract can be made by the owner : see Fisher, vol. i. p. 76. The power of raising money on bottomry is not confined to the ship and freight. In case of necessity the master may also hypothecate the cargo : Ibid. 76 ; The Lord Cochrane, 8 Jur. 714. The shipowner remains liable to the owner of the cargo for whatever the latter may have had to pay by reason of the insufficiency of the ship and freight to pay the sum due on the bond : Benson v. Duncan, 1 Ex. 537. The repayment of money due on a bottomry bond is made to depend upon the safe arrival of the ship, and the contract will be avoided by a condition for pay- ment on other terms : Stainhanh v. Fenning, 15 Jur. 1082 ; Stainbank v. Shepard, 17 Jur. 1032. The security is not rendered invalid by reason of the alleged illegality of the voyage : The Mary Ann, L. E. 1 A. & E. 13. The money may be raised for the repairs of the ship, and for payment of all necessary charges in and about the ship and crew to enable her to prosecute her voyage, and for salvage : The Royal Arch, Swabey, 269, cited in Fisher, vol. i . p. 78 ; Wallace v. Fielden, 7 Moo. P. C. 398. The master must, before he borrows money on a bottomry, commimicate, if possible, with the owner of the ship : The Oriental, 7 Moo. P. C. 408. And before hypothecating the cargo the master should, if possible, commimi- cate with the owner or consignee of the cargo: The Bonaparte, 8 Moo. P. C. 459 ; 14 Jur. 605 ; Cargo ex Sultan, 5 Jur. (N.S.) 1060. The essence of a bottomry security is that there shall be a maritime risk to be ascertained from the contents of the instrument : L. E. 1 Ad. 14. The repayment of the money advanced is made to depend upon the safe arrival of the ship, and the contract will be avoided by a condition for payment upon other terms : Stain- banh v. Fenning, 17 Jur. 1032. Respondentia applies to the cargo alone : Cargo ex Sultan, 5 Jur. (N.S.) 1060. Respondentia securities, unlike such as are made on bottomry, bind the owners personally : 2 Bl. Com. 458 ; Busk v. Fea/ron, 4 East, 819. If justice requires that before payment of the bond a more complete investiga- tion should he made into the circumstances under which it was given than the forms of the Admiralty Court will allow, and there are equities which the Court of Chancery only can determine, it will restrain proceedings on the bond in the Court of Admiralty : Fisher, 86 ; Duncan v. McOaimont, 3 Beav. 409. EEDEMPTION SUIT. Mortgagee in Possession — Common Decree. [If right of redemption has been in dispute : Declare that the right of redemption in the premises comprised in, &c., is still subsisting.] Let the following accounts be taken : — Digitized by Microsoft® MORTGAGES. 413 1. An account of what is due to the Deft for principal and interest on his mortgage in the pleadings mentioned, and for his costs of this stiit (such costs to be taxed by the taxing master). 2. An account of the rents and profits of the hereditaments received by the Deft or by any other person or persons by his order or for his use, or which without his or their wilful default might have been so received. Let what shall appear due on such last-mentioned account be deducted from what shall appear due to the Deft for principal, interest, and costs on the account numbered 1. Upon the Pit paying to the Deft what shall be certified to be due to him for principal, interest, and costs, after such deductisn as afore- said, within six calendar months, &c., at such time and place, &o., Let 'the Deft re-convey [re-surrender, or re-assign] the said mortgaged hereditaments free and clear, &c., and deliver up all deeds [Court rolls], documents, and writings, &c. But in default of the Pit paying to the Deft what shall be certified to be due for such principal, interest, and costs after such deduction as aforesaid, by the time aforesaid. Let the Pit's bill from thenceforth stand dismissed out of this Court, with costs to be taxed, &o., and paid, &c. — Liberty to apply. Special Accounts and Inquiries. Repairs, Let an account be taken of all sums of money laid out by the Deft in necessaiy repairs or lasting improvements on the premises com- prised in the said mortgage. Let interest be computed on the sums which shall appear to have been so laid out after the same rate of interest as the mortgage carries. Let what shall appear due on such account be added to what shall appear due for principal, interest, and costs. Sents and Profits. Let an account be taken of the rents and profits received by the Deft or by any other person or persons by his order or for his use, or which without the wilful default of the said Deft might have been so received. Let what shall appear due on such account be deducted from what shall appear due for principal, interest, and costs. Occupation Ment. Let an inquiry be made whether the Deft has been in actual pos- session and enjoyment of the mortgaged premises, and for what period ; and if it shall appear that he has been in such possession and enjoy- ment. Let an annual value by way of occupation rent be set thereon for such period, and be settled by the judge in chambers. Let the Deft Digitized by Microsoft® 414 MOETGAGES. be charged therewith ; and Let the same be deducted from what shall appear due for principal, interest, and costs. Insurance Premiums — Fines. Let an account be taken of the sums paid by the Deft for premiums on the policy of insurance in the pleadings mentioned, with interest thereon at the same rate as the mortgage carries. Let the amount which shall be certified to have been so paid be added to the amount which shall be certified to be due for principal, interest, and costs. Annual Bests. Let an account be taken of rents and profits, &c. ; and in taking the said account Let annual rests be made of the clear balances, and Let interest be computed on such respective balances at the rate of £5 per cent, per annum. And in making such annual rests, except the first, the interest of each preceding balance is to be included in the balance then stated, eo as to charge the Deft with compound interest thereon. Bedemption Suit — Tender of Money due — Payment into Court. Let the Pit on or before the — day of — pay the sum of £600 into Court to the credit of, &c. Let, upon such payment being made, the Defts P. deliver up aU deeds, &c. Let an account be taken of what, on the — day of — [date of tender], was due to the Defts for principal and interest in respect of their mortgage security dated, &c., and for the costs, charges, and expenses as are secured thereby, or as they are entitled to under their said mortgage security, such costs, charges, and expenses to be taxed, &c. And if it shall appear on taking the said account that the amount due to the Defts for such principal, interest, and costs did not exceed on the — ■ day of — the sum of £670 (the sum tendered). Let the Pit's costs of this suit be taxed by the taxing maste;r, and amount be deducted. Let the balance remaining due to the Deft be paid out of the said sum of £600 when so paid in. And thereupon Let the Defts re-convey, &c., and Let the residue of £600 be repaid to the Pit. But if the Pit shall not pay in the £600, upon the Pit paying to the Defts the amount found due within six calendar months, &c.. Let the Defts re-convey, &c., and deliver up, &c. But in default of such last-mentioned payment. Let the Pit's bill be dismissed with costs, to be taxed and paid, &o. But in case it shall appear on taking the said accounts, &o., that the amount due to the Defts on the — day of — did exceed the sum of £570, Let subsequent interest be computed from the said — day of — and added to what shall appear due as aforesaid. Tax the Defts' costs of suit, amount to be added ; and what shall Digitized by Microsoft® MOETGAGES. 415 be certified to be due to be paid out of the £600, and the residue to the Pit. If the £600 be insufficient, the whole to be paid to the Defts in part-payment, and the balance to be paid by the Pit ; and thereupon Defts to re-convey, &o. And in case the Pit shall not pay in the £600, usual directions for redemption, or bill to be dismissed with costs. Harmer v. Priestley, 16 Beav. 569 ; Seton 462. Medemption Suit — Suit hy Mortgagor against Transferee of Mortgage and Derivative Mortgagee. Let the following accounts be taken : — 1. An account of what is due to the Deft G. (transferee of mort- gage) on the mortgage in the pleadings m.entioned made to F. by indenture dated, &c., and afterwards assigned to the Deft G. by in- denture dated, &c., and " for costs, &c." — Accounts as to rents, repairs, and occupation-rent. — An account of what is due to the Deft H. (the derivative mortgagee) for principal and interest in respect of the derivative mortgage from the Deft G., and for costs of this suit, to be taxed, &c. Let what shall appear due for such principal, interest, and costs be deducted from what shall appear due to the Deft G. on his several accounts hereinbefore directed. Let what shall be certified to be due to the Deft H. be paid to him, and what shall be certified to remain due to the Deft H. be paid to him. Upon the Pit paying to the Defts G. and H. respectively what shall be certified to be due to them on the said accounts, within six calendar months, &c., at such time and place," &c., Let the Defts G. and H. re-convey and re-assign, &c., and deliver up all deeds, &c. But in default, &c., Let the Pit's bill from thenceforth stand dismissed, &c. — Liberty to apply. Stephen- son V. Green, 1801, B. 674; Seton, 473. Successive Bedemptions — Suit hy Second Mortgagee v. First and Third and Mortgagor. Let the following accounts be taken : — 1. An account of what is due to the Deft B. [first mortgagee] for principal and interest, &c., and for costs to be taxed, &c. Upon payment by Pit of the amount certified. Deft B. to convey, &c., and deliver up, &c. In default of payment bill to be dismissed with costs, to be taxed and paid, &o. And in case of such payment. Let interest be computed on what the Pit shall so pay, and Let an account be taken of what is due to the Pit on his own mortgage dated, &o., for principal and interest and for costs of suit, such costs to be taxed, &c. Upon pay- ment by Deft C. [third mortgagee] within three calendar months, &c.. Let Pit convey, &c., and deliver up, &c. In default of payment Deft C. to be foreclosed. In case of such foreclosure Pit's subsequent interest to be computed, and subsequent costs taxed. And upon pay Digitized by Microsoft® 416 MORTGAGES. ment by Deft D. [mortgagor] of what the Pit shall have paid Deft B., and subsequent interest and costs, and of amount due on Pit's mort- gage, within three calendar months, &c., Pit to convey, &c. In default Deft D. [mortgagor] to be foreclosed. In case the Deft C. redeem the Pit, an account of what they shall pay Pit with interest, and of Deft C.'s own mortgage debt, interest, and costs, &c. Upon payment by Deft D., Deft C. to convey. In default of payment Deft D. to be foreclosed. — Liberty to apply. Suit in Nature of Redemption Suit — Deft claiming to he Equitable Mortgagee — Charged with Waste. Let the following accounts be taken : — 1. An account of what is due for principal and interest to Stephen Jones deceased and to the Deft respectively under the trusts of the indenture of the 17th May, 1849, and the security of the equitable mortgage transferred to the Deft by Evan Jones in the pleadings mentioned, and Let such account be taken upon the footing»of the sum of £650, being the total principal sum to be discharged under the trusts of the said indenture of the 17th May, 1849. 2. An account of the rents and profits, &c., received by the said Stephen Jones deceased, and by the Deft or either of them, or which without their wilful default, &c. Let a value by way of annual rent be set on the farm called Bronhonnant during the occupation thereof by the Deft from the 25th March, 1862, to the 29th September, 1862, and Let the Deft be charged with such value in the said account of rents and profits. Let what shall from time to time be charged against the said Stephen Jones and the Deft, or either of them, in taking the accounts aforesaid, be applied in accordance with the trusts of the said indenture dated 17th May, 1849, and in discharge of the amount which shall be certified to be due on the security of the said equitable mortgage. Directions for appointment of receiver. Let so much of the Pit's bill as relates to waste to the stock, crops, implements, and effects) &c., be dismissed without costs. Let the Pit's costs of suit up to the hearing, save in so far as such costs may have been incurred by such parts of the bill as are dismissed, be taxed by the taxing master and paid by the Deft. Adjourn further consideration. — Liberty to apply. Jaines v. Jones (V.-C. B.), Feb. 21, 1871. Bedemption and Foreclosure Decree — Suit by Judgment Creditor — Payment into Court. Let the following accounts be taken : — 1. An account of what is due to the Deft Eichard Buckley, and to the Defts Eichard Buckley and William Preston Bradbury, as the legal personal representatives of the Digitized by Microsoft® MORTGAGES. 417 Deft Thomas Buckley, deceased, and to William Ellison Highams Bott and Thomas Lewis as his trustee, for principal and interest on their respective mortgages and charges in the pleadings mentioned, and for their respective costs as mortgagees and of this suit, such costs to be taxed by the taxing master, who in taxing the same is to allow only one set of costs as between the Defts William Ellison Highams Bott and Thomas Lewis, And upon the Pit paying to the Deft Eichard Buckley and the Defts Eichard Buckley and William Preston Bradbury, as such legal personal representatives as aforesaid, what shall be certified to be due to them respectively for principal, interest, and costs, as aforesaid, and paying into Court to the credit of this cause, B. v. B., what- shall be certified to be due to the Deft WiUiam Ellison Highams fiott or the Deft Thomas Lewis as his trustee for principal and interest (if any) as aforesaid, and paying to them what shall be certified to be due to them for costs as aforesaid, within six calendar months after the date of the chief clerk's certificate, at such time and place, and in such iflanner as shall be thereby appointed, Let the Defts other than the Deft William Bott convey the said mortgaged hereditaments free and clear of and from all incumbrances made by them respectively, or any persons claiming by, from, or under them respectively, and deliver up all deeds and writings, &c., upon oath to the Plaintiff, or as he shall direct. But in default of the Pit paying to the said Defts and into Court as aforesaid what shall be certified to be due to the Defts respectively for -such principal, interest, and costs as aforesaid. Let the Pit's bill from thenceforth stand dismissed with costs, to be taxed, &c., and paid, &c. And in case the Pit shall redeem the said mortgaged premises. Let the sum which the Pit shall so pay into Court as aforesaid be in- vested in Consolidated £3 per cent. Annuities to the credit of this cause, B. v. B., to an account to be intituled. The mortgage account of the Deft Thomas Lewis as trustee for the Deft William Ellison Highams Bott. And Let subsequent interest be computed on what the Pit shall have so paid to the said several Defts (other than the Deft William Bott) and into Court as aforesaid. And Let an account be taken of what is due to the Pit upon or by virtue of his judgment in the bill mentioned, and for his costs of suit, to be taxed, &c. Let, upon the Deft William Bott paying to the Pit what he shall have so paid to the Defts other than the Deft William Bott and into Court as aforesaid, together with what shall be certified to be due to him in respect of such subsequent interest thereon as aforesaid, and also what shall be certified to be due to the Pit upon or by virtue of his said judgment, and for his costs as aforesaid, within three calendar months after the date of the chief clerk's certificate, at such time and place as 2 E ' Digitized by Microsoft® 418 . MORTGAGES. shall be thereby appointed, Let the Pit re-convey the said mortgaged premises, and deliver up all deeds, &o., upon oath to the Deft William Bott, or as he shall appoint. Let the dividends to accrue during the life of William Bott upon the Consolidated £3 per cent Annuities, to be purchased as hereinbefore directed, be paid to the Deft William Bott untn further order. But in default of the Deft William Bott paying to the Pit what shall be certified to be due to him within the time aforesaid, the Deft William Bott is from thenceforth to stand absolutely debarred and foreclosed, &c. And in that case Let the dividends as they accrue during the life of the Deft William Bott upon the said Con- solidated Annuities be paid to the Pit Samuel Becket or his legal personal representative. — ^Continue the receiver. — Liberty to apply after the death of Deft WUliam Bott as to payment of the said Con- solidated Annuities. Beckett v. Buckley, L. E. 17 Eq. 435. Bedemption of an Aimuity. Declare the Pit M. entitled to redeem the annuity of £ — in the pleadings mentioned upon payment of the principal sum of £ — and interest thereon after the rate of £ — per cent, per annum. Let the following accounts be taken : — 1. An account of what is due to the Defts as executors of the testator (the annuitant) for principal and interest after the rate, &c., and for their costs of this suit, such costs to be taxed, &o. 2. An account of the sums which the] said testator in his lifetime or the Defts, his executors, since his decease, have received on account of the said annuity. Let what shall appear to have been so received on account of the said annuity be applied first in discharge of the interest of the said sum of £ — and then in reduction of the principal. Upon the Pit paying to the Defts what shall be certified to remain due for principal, interest, and costs within, &c.. Let the Defts deliver up on oath to the Pit his securities for the payment of the said annuity, and release and assign the said annuity to the Pit, or to whom he shall appoint, such release and assignment to be settled by the judge, &c. But in default of such payment, Let the Pit's bill stand dismissed. — Liberty to apply. Knight v. Bowyer, 1857, A. 1705 ; Seton, 480. Bedemption Suit by Mortgagee of Shares — Galh made before and subsequent to Mortgage — Sale. Declare that the Pits are entitled to the 216 shares in the North Frances Mines Company (which were transferred to them by Peter Digitized by Microsoft® MORTGAGES. 419 Stainsby in the pleadings named by way of mortgage for securing the sum of £1700 and interest), subject to the payment of the several calls of 10s. per share made by the said company on the said shares since such transfer, and that subject to such payment the North Frances Mines Company have a lien npon such shares for the amount of calls (if any) due upon such shares from the said Peter Stainsby previously to his executing to the Pits the transfer of the said 216 shares. Let the Pits pay to the Defts, the committee of management of the said mine, the sum of £648, being the amount of the said calls of 10s per share made by the said company on the said 216 shares since the said transfer. By consent of the said Defts, Let the said shares be sold with the approbation of the judge. — Money to be paid into Court. Let an account be taken of what is due to the Pits for principal and interest on the said £1700, and for costs of suit (such costs to be taxed, &c.), including the sum of £648 hereinbefore directed to be paid by the Pit for calls as aforesaid. Let the amount found due be paid to the pits out of the said moneys when so paid into Court. If moneys not sufficient, the whole to be paid towards liquidation of the debt, and balance remaining due to be certified. An account of what is due from the estate of Peter Stainsby to the company for calls made prior to the transfer of the shares to the Pits, the amount found due, and in that case the Defts' costs of suit to be paid out of residue of moneys in Court, ultimate residue to be paid to official assignee of Stainsby. If nothing found due to Defts their costs of suit reserved. — Liberty to apply. Watson y. Holes, 23 Beav. 294. Bedem'ption Suit hy Mortgagee of Beversion — Unreasonable Bargain — Interest at £5 per Gent. Declaee that the bond dated, &o., the promissory note dated, &c., and the indenture of mortgage dated, &c., and all other securities (if any) assigned, deposited, or given, to the Deft by E. B. in the bill named, ought to stand as a security only for such sum or sums (if any) as the said Deft actually advanced to the said E. B. on the security thereof, together with interest on such advance or advances at the rate of £5 per cent per annum from the date of such advance or advances to the day of payment. Let an account be taken of aU moneys actually advanced by the Deft to the said E. B. on the security of the said bond, promissory note, and mortgage and other securities (if any), together with interest thereon at the rate of £5 per cent, per annum from the date of such advance or advances to the day of payment.— Let the Pit pay to the Deft what shall be certified to be due.— Directions for delivery by Deft Digitized by Microsoft® 2 e 2 420 MORTGAGES. to Pit of the securities. — Deft to pay costs of suit. — ^Liberty to apply. Beynon v. CooJc (M. E.) Feb. 15, 1875 ; affirmed, L. E. 10 Ch. 389. The Eight to redeem. • The estate in mortgage may be redeemed not only by the persons specified in tke proviso for redemption and their representatives, but also by all persons having any interest in or lien upon the estate : Fisher, vol. i. p. 293. The equity of the wife's real estate remains with her in ordinary cases as part of the inheritance. With respect to her chattel leaseholds, if the husband and wife mortgage, and the husband survive, the redemption will belong to him. But if the wife survive, the right of redemption will remain with her : Ibid. A surety is entitled to redeem the estate charged : Ex parte Crisp, 1 Atk. 608 ; Wright v. Morhy, 11 Ves. 12. Any one of joint tenants, or tenants in common, may redeem each as against an incumbrancer, and subject to account with his co-tenant : Wynne v. Styan, 2 Ph. 306. But one cannot redeem his o^-n moiety only. Tenants in tail of the equity of redemption and the tenant for life may I'edeem : Playford v. Playford, i Hare, 546 ; Aynsley v. Read, 1 Dick. 249. But a remainderman cannot redeem without the consent of the tenant for life if the latter has procured an assignment of the mortgage : Rafferty v. King, 1 Keen, 601. A jointress and a dovsrress may redeem : Howard v. Harris, 1 Vem. 33 ; Fisher, 307. The guardian of an infant heir and committee of a lunatic may redeem out of rents and profits : Palmer v. Danhy, Free. Oh. 137 ; Ex parte Orimstone, Amb. 706. Parties. No puisne incumbrancer can redeem a prior mortgagee adversely without bringing the mortgagor before the Court : Fell v. Brown, 2 Bro. C. C. 276 ; Palk V. Clinton, 12 Ves. 48. Therefore, in a suit by the second mortgagee to redeem the first, the mortgagor is a necessary party. But although a second mortgagee seeking to redeem the first must make the mortgagor, or his heir, a party, he may foreclose the mortgagor and third mort- gagee without bringing the first mortgagee before the Court : Richards v. Cooper, 5 Beav. 304 ; Arnold v. Bainhrigge, 2 De G. F. & J. 92. In the latter case if the prior mortgagee be made a party, the second mortgagor must offer to redeem him : Gordon v. Horsfall, 5 Moo. 393 ; 11 Jur. 569. See Parties, ante, p. 8. Offer to redeem. A mortgagor cannot make a mortgagee a party to a suit in respect of his mort- gage estate without offering to redeem him : Dalton v. Hayter, 7 Beav. 313, 319 ; Inman v. Wearing, 3 De G. & Sm. 729. But It is not usual to insert in the decree the pit's offer to redeem : Jnman v. Wearing, supra. Digitized by Microsoft® MORTaAGES. 421 Time foe Eedemption — Moetgagee in Possession. When a mortgagee has obtained possession or receipt of the profits of any land, or the receipt of any rent comprised in his mortgage, the mortgagor or person claiming through him shall not bring a suit to redeem but within twenty years next after the time at which, the mortgagee obtained such, possession or receipt, unless in the meantime an acknowledgment of the title of the mortgagor has been giyen : 3 & 4 Will. 4. c. 27, s. 28. But the following provisions of the " Eeal Property Limitation Act, 1874," come into operation on the 1st January, 1879 : — " Where a mortgagee shall have obtained the possession or receipt of the profits of any land or the receipt of any rent comprised in his mortgage, the mortgagor, or any person claiming through him, shall not bring any action or suit to redeem the mortgage but within twelve years next after the time at which the mort- gagee obtained such possession or receipt, unless in the meantime an acknowledg- ment in writing of the title of the mortgagor or of his right to redemption shall have been given to the mortgagor or some person claiming his estate, or to the agent of such mortgagor or person, signed by the mortgagee or the person claim- ing through him": 37 & 38 Vict. c. 57, s. 7. " And in such case no such action or suit shall be brought but within twelve years next after the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given " ■ Ibid. " And where there shall be more than one mortgagor or more than one person claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors or persons, or his or their agent, shall be as effectual as if the same had been given to all such mortgagors or persons ; but where there shall be more than one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage money or land or rent by, from, or under him or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the person or persons entitled to any other undivided or divided part of the money or land or rent" : Ibid. " And where such of the mortgagees or persons aforesaid as shall have given such acknowledgment shall be entitled to a divided part of the land or rent com- prised in the mortgage, or some estate or interest therein', and not to any ascertained part of the mortgage money, the mortgagor or mortgagors shall be entitled to redeem the same divided part of the land or rent on payment with interest of the part of the mortgage money which shall bear the same proportion to the whole of the mortgage money as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage " : Ibid. "No action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent at Law or in Equity, or any legacy, but within twelve years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, shall have Digitized by Microsoft® 422 MORTGAGES. been paid, or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent ; and in such case no such action or suit or proceeding shall be brought but within twelve years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one, was given": 37 & 38 Vict. c. 57, s. &. The possession of the mortgagee must under the 3 & 4 Will. 4, c. 27, have been adverse during the whole period : Corbett v. Barker, 1 Anstr. 138 ; Syde V. Dallaway, 2 Hare, 528. '- So long as the mortgagor holds possession of any part of the estates no lapse of time will bar his right: Fisher, 283. Time will not run in the case of common mortgage until the day of redemption has arrived, except in cases where an unreasonable time has been fixed : Fisher, 284:; ^Talbot v. Braddyl, 1 Vern. 183, 394. Welsh mortgages are redeemable after any length of time until the mortgagee has been fully paid and has held over for twenty years : Tates v. Ecmihly, 2 Atk. 360 ; Alderson v. White, 2 De G. & J. 97. Suits fok Possession of Land bt Moetgagoe. *' A mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land, as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person" : Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 25, sub-s. 5. Dismissal of Kedemption Suit. If a mortgagor institutes a suit for the redemption of a legal mortgage, and it is dismissed for any reason except want of prosecution, the dismissal operates as a decree for foreclosure : Cons. Order, 23, r. 13 ; Oholmley v. Countess of Oxford, 2 Atk. 267 ; Inman v. Wearing, 3 De G. & Sm. 729 ; Farher v. Eousejield, 2 My. & K. 419 ; James v. James, L. E. 16 Eq. 153 ; Marshall v. Shrewsbury, L. E. 10 Ch. 250. But this rule has no application to the case of an equitable mortgage by deposit of title deeds: Marshall v. Shrewsbury, L. E. 10 Ch. 250. Benefit Building Societies. Probable Duration of Society to be calculated. The Pit by Ms bill admitting that he is not entitled to receive any- thing in respect of profits on his twelve shares and a half in the Equit- able Provident Association in the pleadings mentioned : Let an account be taken of all subscriptions, redemption-moneys, and other payments due and ovying and payable, and hereafter to become due, ovying, and payable by the Pit as a member of the said association to the Defts B., K., and C, as the trustees of the said asso- Digitized by Microsoft® MORTGAGES. 423 elation, in respect of the said shares, under and by virtue of the indenture dated, &c., and the rules and regulations of the said asso- ciation therein also mentioned. And in taking the said account Let the probable duration of the said association according to the said rules and regulations be calculated ; Let all moneys which having regard to such probable duration might at any time hereafter become due from the Pit be considered as due at the time of taking such account. Eefer to the taxing master to tax the Defts their costs of this suit, &c. Let the total amount due to the said Defts for such subscriptions, redemption-moneys, and other payments as aforesaid, and costs, be certified. Let an account be taken of the moneys received by the Defts from the sale of part of the premises and from the rents, &c., and deduct the amount from the amount found due for subscrip- tions, &c., and costs. Let the Pit pay to the Defts as the trustees of the association the balance within six calendar months, &o. And thereupon Let the Defts the trustees indorse a receipt or acknowledg- ment of payment on the said indenture dated, &c., pursuant to the Act of Parliament in that behalf, and according to the rules and regu- lations of the sa;id association, and deliver up to the Pit all deeds, &c. And thereupon also Let the Defts the trustees re-convey at the ex- pense of the Pit the freehold hereditaments comprised in the said indenture free and clear, &c. But in default of payment, &o., Pit's bill to stand dismissed with costs, &c. — Liberty to apply. Mosley v. Baker, 6 Hare, 87 ; 3 De Gr. M.' & G. 1032 ; Seton, 481. Duration of Society not to he calmlated — Bonuses. Let an account be taken of all subsori'ptioiis, redemption-moneys, and other payments which upon the 21st day of August, 1855 [the d^te of payment under protest by Pit] were due, owing, and payable by the Pit as a member of the society in the bUl mentioned to the Defts the trustees of the said society in respect of the Pit's thirty-six shares in the said society under and by virtue of the indenture dated, &c., in the bill mentioned, and the rules and regulations of the said society therein also mentioned. And in taking the said account the longest period during which the said society could possibly last having regard to its net assets, and the amount of monthly subscriptions and redemption-moneys then still continuing payable, and to the number of shares in the said society then to be provided for is to be calculated. And the Pit is to be charged with all subscriptions and redemption- moneys which would, on the 21st August, 1855, become due and pay- able by him, assuming the said society to endure for the whole of that period, such moneys to be treated as a debt then personally due from him : Declare that the Pit was entitled on the said 21st August, 1866, Digitized by Microsoft® 424 MORTGAGES. to tLe same share of profits or bonus in respect of Lis said shares as was at that time allowed by the said society or the directors thereof to withdrawing members. Eefer to the taxing master to tax the Pit his costs of suit, including the costs of taking the account hereby directed And in taking the said account the Pit is to be credited with the sum of £23 on each of his shares, being the amount of bonus payable to the withdrawing member on the said 21st August, 1855, and with the amount of the said costs. Let the Pit pay to the Defts as the trustees of the said society what if anything shall be certified to be due to them for such subscriptions, redemption-moneys, and other payments, after deducting the said share of profits or bonus and costs within one calendar month, &c., at such time and place, &c. In default of pay- ment Pit's bill to be dismissed, &c. And in case it shall appear that the sum of £1007 16«. 3d. and £5 5s. for costs paid by the Pit to the Defts on the 21st August, 1855, exceeded the amount which was on that day due from the Pit to the Defts, Let the amount of such excess be certified. And in that case. Let the Defts the trustees within one calendar month after the date of the chief clerk's certificate pay to the Pit out of the funds and moneys of the said association the amount which shall be certified to have been unpaid with interest thereon (less the amount of the Pit's costs to be taxed as aforesaid) after the rate of £4 per cent, per annum from the 21st day of August, 1853, to the day of payment. — Liberty to apply. Archer v. Harrison, 7 De G. M. & G. 404 ; Seton, 483. Benefit Building Societies. The Building Societies Acts, 1874 and 1875 (37 & 38 Vict. c. 42 ; 38 & 39 Vict. c. 9). Any number of persons may establish a society under these Acts, either termi- ijating or permanent, for the purpose of raising by the subscriptions of the members a stock or fund for making advances to members out of the funds of the society upon security of freehold, copyhold, or leasehold estate, by way of mort- gage ; and any society under these Acts shall, so far as is necessary for the said purpose, have power to hold land with the right of foreclosure, and may from time to time raise funds by the issue of shares of one or more denominations, either paid up w^ full or to be paid by periodical or other subscriptions, and with or without accuniulating interest, and may repay such funds when no longer required for the purposes of the society : 37 & 38 Vict. c. 42, s. 13. But any land to which any such society may become absolutely entitled by foreclosure, or by surrender, or other extinguishment of the right of redemption, shall, as soon afterwards as may be conveniently practicable, be sold or converted into money : Ibid. The liability of any member of any society in respect of any share upon which no advance has been made, shall be limited to the amount actually paid or in arrear on such share, and in respect of any share upon which an advance has been Digitized by Microsoft® MORTGAGES. 425 made, shall be limited to the amount payable thereon imder any mortgage or other security, or under the rules of the society : 37 & 38 Vict. c. 42, s. 14. Unless there is a provision in the deed that the payments in case of sale or redemption are to be calculated- according to the probable duration of the society the direction will be to ascertain the longest period during which the society can possaiy last : Mosley v. Baker, 6 Hare 87 ; 3 De G. M. & G. 1032 ; Order, p. 422 ; Archer v. Harrison, 7 De G. M. & G. 404 ; Order, p. 423 ; Fleming v. Self, 3 De G. M. & G. 997. If according to the rules the mortgagor become entitled upon redemption to bonus or profits on his shares, he will on redemption be entitled to credit for the same amount of bonus as had been paid to withdrawing members : Fleming V. Self, supra ; see also Thompson v. Hudson, L. E. 2 Ch. 255. As to the rebate or discount to be allowed in respect of subscriptions not due at the time of a sale made under the provisions of the mortgage deed : see Matterson V. ElderfiMd, L. E. 4 Ch. 207. In a redemption suit by a member of a building society, the pits may be ordered to pay a sum foimd due from him to the society, though it may be in excess of the amount secured by the mortgage : Eandley v. Farmer, 29 Beav. 362. ' The mortgagor cannot redeem without paying the fines which are properly due from him : Parher v. Butcher, L. E. 3 Eq. 762 ; see also Farmer v. Qiles, 8 W. E. 649; Ex parte Osborne, L. E. 10 Ch. 41. As to the liabilities under the Winding-up Acts of advanced and unadvanced shareholders in benefit building societies : see Doncaster Building Society, L. E. 3 Eq. 458 ; L. R. 4 Eq. 579 ; Victoria Benefit Building Society, L. E. 9 Eq. 597. After a mortgage by a member of a building society to the trustees of that society, and an equitable charge in favour of the pit, the defts, the trustees of another similar society, paid off the first mortgage, and received the deeds without notice of the pit's charge : — Held, that the defts had a better equity than the pit, and that the legal estate had passed to the defts : Pease v. Jackson, L. E. 3 Ch. 576. A benefit building society has no power to borrow money unless its rules specially authorize it to do so : Be National Benefit Building Society, L. R. 5 Ch. 309. Welsh Mortgage. Bedemjption Suit. Declaee that according to the terms of the mortgage deed the Pit is entitled to the redemption of the two houses, &c. Let an account be taken of the rents of the said houses received by the Deft or William Hambly the mortgagee, such rents to be applied in paying the interest, and then in sinking the principal, and annual rests to be made. Upon the Pits paying to the Deft what shall appear due to him for principal, interest, and costs the Deft is to re-convey the mortgaged premises to the Pit, and deliver up possession, &c. Tales V. Hambly, 2 Atk. 359. In a Welsh mortgage the estate is conveyed absolutely to the creditor with- out condition, and there is no covenant on the part of the mortgagor to pay : Fisher, 8. Digitized by Microsoft® 426 MORTGAGES. The security carries a right to redeem but none to foreclose: Balfe v. Lord, 2 D. & "War. 480. No time is limited for redemption, but the mortgagee is left to pay himself the sum for which the estate is pledged out of the rents and profits of the estate : Fenwick v. Heed, 1 Mer. 125 ; Yates v. EarrMy, 2 Atk. 359 ; Order, S'wpra , p. 425 ; Alderson v. White, 2 De G. & J. 97. If there is a covenant to pay the principal and interest by a certain time, and no stipulation for the receipt of the rents and profits by the mortgagee, the security will not have the character of a Welsh mortgage : Fisher, 9. Digitized by Microsoft® ( 427 ) CHAPTER XXV. SPECIFIC PEEFOEMANCE. Suit hy Vendor — Contract disputed. ■ Declare that the agreement dated, (fee, in the pleadings men- tioned ought to be specifically performed and carried into execution, and order and decree the same accordingly. Let an inquiry be made whether a good title can be made to the lands [messuages, heredita- ments] and premises situate, &c., in the said agreement mentioned. Adjourn further consideration. — Liberty to apply. Stevens v. Gwppy, 3 Kuss. 182. Suit hy Vendor — Title alone in dispute — Common Reference. Declare that the agreement dated, &o., in the pleadings mentioned ought to be specifically performed and carried into execution in case a good title can be made to the hereditaments comprised therein, and order and decree the same accordingly. Let the following inquiries be made : (1) Whether a good title can be made to the lands [messuages, hereditaments] and premises situate, &o., in the said agreement men- tioned. And in case it shall appear that a good title can be made to the said lands, (2) an inquiry -when it was first shewn that such good title could be made. Adjourn further consideration. — Liberty to apply. Gibhins v. Nwth Eastern By. Co., 11 Beav. 6. Suit by Vendor — Decree after Order directing Inquiries as to Title, and after Certificate finding good Title. Let interest be computed at the rate of £ — per cent, per annum on the sum of £ — , the purchase-money for the premises comprised in the said agreement dated, &c. \[If costs are given : Let the Pit's costs of this suit be taxed by the taxing master.] Let an account be taken of the rents and profits of the said premises received by the Pits, or any of them, or by any other person or persons, by the order or for the use of the Pits or any of them. Let what shall appear due on the said account of rents and profits be deducted from the amount of the said purchase-money and interest [and costs]. Upon the Pits executing a Digitized by Microsoft® 428 SPECIFIC PBRFOEMANCE. proper conveyance [assignment, or surrender] of the said premises to the Deft, or to whom he shall appoint, according to the said agreement (such conveyance, &o., to be settled by the judge in case the parties diifer), and delivering to the Deft upon oath all deeds and writings in their custody or power relating to the said premises. Let the Defts pay the balance which shall be certified to be due to them in respect of such purchase-money, interest [and costs] after such deduction as aforesaid. — Liberty to apply. Suit hy Vendor — Title declared to have heen accepted as to Part. Declaee that the Deft has accepted the title of the Pit to the slip of land called Mill Field in. the pleadings mentioned, being part of the estate mentioned in the agreement dated, &c., in the Pit's bill men- tioned, and that the Deft is bound to accept the title of the Pit to the residue of the said estate, subject to the requisitions contained in the opinion dated the 14th June, 1863, in the pleadings mentioned, which were sent to the Pit's solicitors with the letter from the Deft's solici- tors dated the 24th June, 1863, in the pleadings also mentioned ; and subject also, as regards such part of the said purchased premises as at the time of making the said agreement the Pit was under an agreement to purchase from H. & B., the Pit making out such title as he was by his agreement with his vendors bound to accept from them, and as should be contained in a deed of enfranchisement of the copyhold part of the said property. Declare that the Pit is entitled to a specific performance of the said agreement provided that he can make a good title to the property comprised in the said agreement subject to the foregoing declarations. Let the following inquiries be made : (1.) An inquiry whether a good title can be made to the property comprised in the said agreement other than and except the said strip of land called Mill Field, having regard to the above declaration. And in case it shall appear that such good title can be made, (2) when it was first shewn that such good title could be made. Let the Deft Spicer pay to the Pit Murray his costs of this suit up to and includ- ing the hearing thereof. Eeserve further consideration. — Liberty to apply. MoMmray v. Spicer (V.-O. M.), Jan. 17, 1868. Suit hy Vendor — Preliminary Order on Motion — Inquiries as to Delivery of Abstract and Objections. Let the following inquiries be made : (1.) An inquiry whether the Pit can make a good title to the property in question in this cause agreed to be purchased by the Defts, having regard to the agreement for sale in the pleadings mentioned, and when it was first shewn that such good Digitized by Microsoft® SPECIFIC PERFORMANCE. 429 title could be made. (2.) An inquiry whether the Pit ever and when delivered or caused to be delivered to the Defts an abstract of his title, and whether the same was a perfect abstract, or in any and what respects deficient ; and, if deficient, whether the same was ever and when perfected. (3.) An inquiry whether the Defts ever, and, at what time or times, delivered any and what objections to the Pit's title, or made any and what requisitions upon or with respect to the same, or the abstract thereof, or the conveyance or assignment of the property in question agreed to be purchased by the Defts. (4.) An inquiry whether the Pit at any or what time or times returned any and what answers to such objections and requisitions. Usual directions for pro- duction of deeds and documents on oath and esamination of parties on interrogatories. Liberty to state any circumstances specially. Bem- nant v. Holt, 1847, B. 33 ; Setoife 594. Suit by Vendoi — Title accepted — Common Form. Deolaee that the agreement in the Pits' bill mentioned dated, &c., ought to be specifically performed and carried into execution, and order and decree the same accordingly. Let interest be computed at the rate of £ — per cent, per annum on the sum of £ — , the purchase- money for the premises comprised in the said agreement. [If costs are given : and Let the Pits' costs of this suit be taxed by the taxing master.] Let an account be taken of the rents and profits of the said premises received by the Pits, or any of them, or by any other person or persons by the order or for the use of the Pits or any of them. Let what shall appear due on the said account of rents and profits be deducted from the amount of the said purchase-money, interest [and costs]. Upon the Pits executing a proper conveyance [assignment, or surrender] of the said premises to the Deft, or to whom he shall appoint according to the said agreement (such conveyance, &c., to be settled by the judge in case the parties differ), and delivering to the Deft upon oath all deeds and writings in their custody or power relating to the said premises, Let the Deft pay the Pits the balance which shall be certified to be due to them in respect of such purchase-money, interest [and costs], after such deduction as aforesaid. — Liberty to apply. Bichards v. Metropolitan By. Co. (M. E.), July 9, 1869. Suit by Vendor — Title accepted — Special Inquiries. Decree specific performance, &c., compute interest, &c. Let an inquiry be made what was the value of the timber-trees, labour, seeds, and dressings on the said estate on the — day of — . Let interest be computed on such value from the — day of — , after the like rate of interest, &c. Let an annual value by way of occupation rent be set on the said estate from the — day of — , and Let the Pit be charged Digitized by Microsoft® 430 SPECIFIC PERFORMANCE. therewith accordingly. Let the amount of such occupation rent be deducted from the said purchase-money, and interest, &o. And upon the Pit executing a proper conveyance, &c., and delivering, &c., the Deft do pay to the Pit the balance which shall be certified to be due after the deductions aforesaid. No costs on either side. — Liberty to apply. Bradford v. Belfield, 1828, A. 1919 ; Seton, 609. Suit by Vendor — Special Inquiries as to Bents — Occupation Bent. Declare that the agreement dated the 20th June, 1853, should be specifically performed and carried into execution, and order and decree the same accordingly. Let the Deft S. on or before the 4th August next, pay into Court to the credit of, &c., £72,600, being the balance of his purchase-money. Let interest upon the said sum of £72,500 after the rate of £4 per cent, per annum from the 31st July, 1847, to the day of payment be computed, and Let the following inquiry and account be made and taken. (1.) An inquiry when the Deft first entered into the possession or the receipt of the rent and profits of the leasehold part of the said estate, or any and what part thereof. (2.) An account of the rents and profits of the freehold parts of the estate and of the leasehold parts (other than those parts of which the Deft had had the possession or been in receipt of the rents and profits) accrued from the 31st July, 1847, down to the day of payment of the £72,500 into the bank ; and also of such part of the leasehold of which the said Deft should under inquiry No. 1 have been found to have been in possession or in the receipt of the rents and profits from the 31st July, 1847, down to the day when the said Deft should be found to have been in such possession or receipt, come to the hands of the Pits, or either of them, or to the hands of any other person or persons, &c. Let an annual charge by way of occupation rent be set on such parts (if any) of the said estates of which the Pits, or either of them, have been in occupation. Let what shall appear due on the said account and in respect of such occupation rent be set off against what shall appear due for such interest ^s aforesaid, and the balance certified. If the balance be found payable by the Deft, Let the Deft Shakspear within ten days after the date of the certificate pay such balance into Court to the credit of, &o. And the last-mentioned amount when paid in is not to be paid out without notice to the Deft. But if the balance of the said account shall be certified to be payable to the Deft, Let the Pits Sherwin and Hartopp within ten days after the date of the certificate pay the same to the Deft, or as he shall direct. Sherwin v. Shahspear, 5 De G. M. & G-. 517; L. E. 2 Eq. 957. Note. — This order shews the variations made on appeal. Digitized by Microsoft® SPECIFIC PEBPOEMANOE. 431 Suit by Vendor — Defective Ti&e as to Part — Compensation. 1. Let an inquiry be made whether the Pit can make a good title to the estate in question agreed to be purchased by the Deft, or to any and what part thereof. And in case it shall be found that the Pit can make a good title to part only of the said estate, then (2) Let an inquiry- be made whether such part (if any) of the said estate as to which the Pit cannot make a good title is material to the enjoyment of the remainder, and if such part of the said estate is not material, (3) an inquiry what deduction ought to be made from the purchase-money in respect thereof. Usual directions for production of deeds and examina- tion of witnesses. Further coixsideration adjourned. — Liberty to apply. Evans v. Hogg, 1805, A. 440. Similar Decree- — Without prejudice. Let an inquiry be made whether the Pit can make a good title to the estate situate, &c. And in case it shall appear that the Pit can make a good title to the said estate, except, &c., containing six acres, &c., Let an inquiry be made whether the said six acres, &c., are material to the possession and enjoyment of the rest of the estate, and what compensation ought to be made to the Deft in respect of the said six acres, .&c., in case it shall appear that the same are not material to the possession and enjoyment of the said estate. And such last-mentioned inquiry is to be without prejudice to the question whether such six acres, &c., are material to the possession and enjoy- ment of the rest of the said estate. Further consideration adjourned. — Liberty to apply. McQueen v. Farquhar, 11 Ves. 467 ; Seton, 618. Suit by Vendor — Mistake. The Court being of opinion that the Pit did not intend by the indenture of the 13th February 1866, in the pleadings mentioned, to convey to the Deft more than the piece of land upon which the two houses, Nos. 1 and 2, Park Terrace, in the pleadings mentioned, are built, together with the outbuildings, yards, and appurtenances to the said houses to the depth of 111 feet from the high road to Teddington village, and with a right of way at the rear of the said premises of the width of ten feet : And the Court offering to the Deft his option either to rescind the contract for the said sale or to rectify the said conveyance, and the Deft by his counsel electing that the said con- veyance should be rectified : Declare that the beneficial interest in so much of the said hereditaments comprised in the said indenture as was not intended to be conveyed as aforesaid did not pass thereby, and that the Deft is a trustee for the Pit, within the meaning of the Digitized by Microsoft® 432 SPECIFIC PERFORMANCE. Trustee Act, 1850, of the legal estate of and in such portion of the said hereditaments as was not intended to be so conveyed. Let the Deft execute a reconveyance of such portion of the said hereditaments to the Pit, or as he shall direct, such reconveyance to be settled by the judge in case the parties differ. No order as to costs. — Liberty to apply. Harris v. Pepperell, L. E. 6 Eq. 1. Suit hy Vendor — Specific Performance — Parol Variation. Declaee that the Pits are entitled to a specific performance of the agreement in the pleadings mentioned. And the Pits by their counsel now undertaking to pay for the timber (if any) taken by the Pits upon the land in question, and to pay the expenses in the cross deposi- tion of John Griffin mentioned to have been understood between himself and the Pits' agent, if not yet paid Let the agreement in the pleadings mentioned be specifically performed and carried into execution. Eefer it to the taxing master to tax the Pits their costs of suit, and to ascertain the value of the timber (if any) taken by the Pits on the piece of land in the pleadings mentioned, and the amount of the aforesaid expenses in case the parties differ. Let the Deft pay to the Pits their costs of this suit. Let the injunction granted in this suit be continued. — Liberty to apply. London and Birmingham My. Co. V. Winter, 1 Or. & Ph. 67. Suit hy Vendor-^Default hy Purchaser — lAen — Sale. It being admitted by the answer of the Deft that there are no assets of E. M. P. for the payment of purchase-money, interest, and costs, and his other debts, and the Deft C. P. the heir-at-law, declining to complete the purchase at his own expense. Declare that the Pit has a lien upon the hereditaments and premises in the pleadings men- tioned for the amount of such purchase-money, interest, and costs. Let the said hereditaments and premises be sold with the approba- tion of the judge, and the money to arise by the sale paid into the Court to the credit of the cause, and be applied in satisfaction of the purchase-money, interest, and costs under the decree dated the 3rd March, 1843, and the Pits' costs of this suit. Tax the Pits their said costs. Declare that the Pits are entitled to stand as judgment credi- tors of the said E. M. P. under the former decree for the amount (if any) by which the purchase-money shall be insufficient to pay the principal, interest, and costs payable under the said decree. Defts to have their costs out of the estate of E. M. P. Further consideration reserved. — Liberty to apply. Duloe of Beaufort v. Philipps, 1 De G. & Sm. 321. Digitized by Microsoft® SPECIFIC PEBPORMANCE. 433 Suit by Vendor — Default hy Purchaser — Contract rescinded — Damages. Let the contract mentioned in the pleadings of the first-mentioned canse, and set forth in the 3rd, 6th, and 7th paragraphs to the Pits' bill therein, he rescinded. Let all further proceedings in the canse be stayed except as to any application which may be made to this Court to award and assess the damages which the Pits have sustained by reason or in consequence of the breach of the said contract. Let the Deft Meredith pay to the Pits their costs of this application, to be taxed, &c. Siueet v. Meredith, 4 Giff. 207. Suit by Vendor — Bailway Company — Title accepted — Payment into Court. The 'Defts the Metropolitan Eailway Company by their counsel declaring themselves content with the title, &c.. Declare that the agreement dated, &c., in the Pits' bill mentioned, ought to be speci- fically performed and carried into execution, and order and decree the same accordingly. Let the Defts the company, pursuant to the provisions of the Lands Clauses Consolidation Act, 1845, on or before the — day of — , pay the sum of £ — , the balance of the purchase- money for the premises comprised in the said agreement, and also interest at the rate of £ — per cent, per annum from the — day of — till the day of payment (the amount to be verified by affidavit) into Court to the credit of Ex parte The Metropolitan Eailway Company. In the Matter of the Trusts of the Settlement, dated, &o., Let the Defts the company pay to the Plaintiff his costs of this suit, to be taxed by the taxing master in case the parties differ. — Liberty to apply. Grey V. Metropolitan By. Co. (M. E.), March 5, 1868 ; Small v. Metropolitan By. Co. (M.E.), March 11, 1870. Suit by Vendor — Bailway Company — Lien. Declare that the agreement dated the 18th of October, 1864, in the pleadings mentioned, ought to be specifically performed and carried into execution, and order and decree the same accordingly. Let the Defts the Eailway Company, on or before the 6th of February, 1868, pay to John Deverell, the treasurer of "William Symonds' Charity in the bill mentioned, the principal sum of £1364, the purchase-money for the hereditaments comprised in the said agreement, together with interest at the rate of £5 per cent, per annum from the 25th of March, 1866, until payment. Let, upon such payment being made, and upon payment of the costs hereinafter directed to be taxed, the Pits or other the trustees for the time being of the said charity, execute and deliver a proper conveyance of the premises comprised in the said agreement to the Defts, the Eailway Company, or to whom they shall Digitized by Microsoft® 2 f 434 SPECIFIC PERFORMANCE. appoint, such coaveyance to be settled, &c. and deliver up all deeds, &o. Let the Defts the Eailway Company pay to the Pits their costs of suit, to be taxed, &o., and to include the costs mentioned in the 5th paragraph of the agreement of the 18th of October, 1864. Declare that the Pits or other the trustees for the time being of the said charity- are entitled to a lien upon the hereditaments comprised in the said agreement in respect of the said purchase-money, together with in- terest thereon at the rate of £6 per cent, per annum from the 26th ■of March, 1866, until payment, as also in respect of the Pit's costs aforesaid. In default of payment the Pits or other the trustees for the time being to be at liberty to apply to the Court to enforce such lien as they may be advised. — General liberty to apply. BisJwp of Win- chester V. Mid-Hcmts By. Ca., L. E. 5 Eq. 17. Suit by Vendor — Bailway Company — Lien — Sale. Declare that agreement should be specifically performed. — Direc- tions for payment and conveyance as in last order. — Declare that the Pit has a lien as unpaid vendor on the lands in the pleadings mentioned for the principal money and interest in the pleadings men- tioned, or for so much thereof as shall not be otherwise paid by the company, and that the said lien ought, if necessary, to be enforced by sale of the said lands or otherwise under the direction of the judge. Let an inquiry be made what is the amount due to the Pit for such principal money and interest and for costs of" this suit (to be taxed, &c.). Let the Defts the company pay the amount certified to be due into Court to the credit of this cause within six months after the date of the chief clerk's certificate. In default of payment Let the lands be sold with the approbation of the judge. Costs of Deft H. to be taxed and paid by the Pit and included in his own. — Further consideration adjourned. — Liberty to apply. Walker v. Ware, dc. By. Go., L. E. 1 Eq. 195. Suit by Vendor' — Bailway Company — Lien— Liberty to apply. Declare that the agreements dated, &c., ought to be specifically performed, and that.the Stonehouse Company have accepted the Pit's bills and waived their right to an inquiry. Let the company on or before the — day of — pay the balance with interest at 5 per cent, and Pit's cost of suit, to be taxed and paid by the Defts. Upon pay- ment of the balance, interest, and costs, the Pit to convey, the convey- ance to be settled, &c. Declare that the Pit is entitled as agaiiist both companies to a lien on the estate and interest of the Pit in the hereditaments comprised in the agreements for the said amounts. In case the sums are not paid, the Pit to be at liberty to apply to rescind the contracts, or the enforcement of the lien by sale, for the appoint- Digitized by Microsoft® SPECIFIC PERFORMANCE. 435 ment of a receiver, or injunction, as he shall be advised. Ma/rling V. Stonehouse and Nailsworth By. Co., W. N. (1869), 60. Suit hy Vendor — Title defective — Lien of Purchaser for Deposit and Interest and Costs — BiU dismissed. Let it be referred, &c., to tax the Deft his costs of suit, and Let the same be paid by the Pit G. H. T. to the Deft C. B. M. Let the Pit G. H. T., within fourteen days after service of this order (to be veri- fied, &c.), pay to the Deft C. B. M the deposit of £450 paid by Deft as deposit, and in part payment of the purchase-money, together with interest at £4 per cent, per annum, from the — day of — until pay- ment (the amount to be verified by affidavit). Declare that the Deft is entitled to a lien on such estate or interest as the Pit has in the hereditaments comprised in the agreement dated, &c., for the amount of the said costs, and for the said £450 and interest as aforesaid. Liberty for Deft to apply at Chambers to give efifeot to such declaration. And thereupon Let the Pit's bill stand dismissed out of this Court. Turner V. Marriott, L. E. 3 Eq. 744. Suit by Pv/rchaser — Title accepted. Common Order. Declare that the agreement in the Pit's bill mentioned ought to be specifically performed and carried into execution, and order and decree the same accordingly. Let interest be computed at the rate of £ — per cent, per annum on the sum of £ — , the purchase-money for the premises comprised in the said agreement, from the — day of — . Let an account be taken of the rents and profits of the said premises received by the Defts or any of them, or by any other person or per- sons by the order or for the use of the Defts or any of them \if costs are given : and Let the Pit's costs of this suit be taxed]. Let the amount of the said rents and profits [and costs] be deducted from the said principal money and interest. Upon the Pit paying to the Defts the balance which shall be certified to be due to them in respect of such principal and interest after such deduction as aforesaid. Let the Defts execute a proper conveyance [assignment, or surrender] of the said premises to the Pit, or to whom he shall appoint, and deliver to the Pit upon oath all deeds and writings in their custody or power relating to the said premises. — Liberty to apply. Suit hy Purchaser — Title accepted — Abatement for Deficiency. Declaee that the Pit is entitled to specific performance of the agree- ment, &'c., and to an abatement from the purchase-money and interest, but to the amount only of what would be the worth of the deficiency Digitized by Microsoft® 2 f 2 436 SPECIFIC PERFOBMANCB. of the soil mentioned in the pleadings, covered with wood, after deducting the value of the wood thereon, and decree the same accord- ingly. Let such abatement be settled by the judge. Compute interest on the residue of the purchase-money. Upon Pit paying to the Defts the amount certified to be due after such abatement, Let the Defts convey, &o. Hill v. Buckley, 17 Vee. 394 ; Seton, 619, Suiit by Purchaser — Limited Interest — Misrepresentation — Compensation. Declare that the Pit is entitled to a specific performance of the agreement in the Pit's bill mentioned against the Deft to the extent of all the interest of J. S. in the said bill named in the property com- prised in the said agreement (being the said J. S.'s estate therein for the life of H. W. in the pleadings named), and for such estate as by the curtesy he may become entitled to therein ; and that such agree- ment ought to be specifically performed and carried into execution, and order and decree the same accordingly. Let an inquiry be made what is the amount to be paid by the Pit for the purchase-money of the said property comprised in the said agreement for the said in- terest of the said J. S., having regard to the declaration aforesaid. Let an account be taken of the rents and profits of the said premises received by the said Deft or by any other person or persons by the order or for the use of the Deft accrued since the 1st May, -1868, the date fixed for the completion of such purchase. Let the amount of the said rents and profits be deducted from the amount of purchase-money and from the amount of interest thereon at the rate of £5 per cent, per annum from the said 1st May, 1868, the balance to be certified. Let the Pit pay to the Deft the amount of such balance with subsequent interest thereon at the same rate. Let, upon such payment being made, the Deft and all proper parties execute a proper conveyance of the said premises for the said estate of the said J. S. therein to the Pit, or to whom he shall appoint, free from incumbrances, such con- veyance to be settled by the judge. Deft to pay Pit's costs of suit. — ■ Liberty to apply. Barnes v. Wood, L. E. 8 Eq. 424. Suit by Purchaser — Defective Title— Lien — Inquiries. The Deft admitting that a good title cannot be made, declare that the Pit is entitled to a lien on such estate or interest as the Deft has in any of the property and effects mentioned in the agreement to secure the repayment of all moneys paid by him on the faith of and pursuant to the agreement, together with his costs. — Inquiry, what moneys have been expended by the Pit.' — Inquiry under what circum- stances the mill was closed by the Pit, and whether there has been any deterioration of the premises, and to what amount and under Digitized by Microsoft® SPECIFIC PEBFOEMANCE. 437 wbat circumstances. Deft to pay costs up to hearing. Continue the injunction. Adjourn further consideration. Middletmi v. Magnay, 2 H. & M. 237. Suit hy Lessor. Declare that the agreement dated, &c., ought to be specifically performed, &c. Upon the Pit executing a lease to the Deft of the premises in the Pit's bill mentioned according to the terms of the said agreement, and tendering the said lease to the Deft, Let the Deft execute a counterpart thereof, such lease to be settled by the judge in case the parties differ. iSiMt'i hy Lessor — Building Contract — Damages. Let the Plt-s' bill stand dismissed as against the Deft Company, Limited, without costs. Declare that the agreement in the Pits' bill mentioned dated the 22nd of October, 1861, ought to be specifically performed by the remaining Defts, and carried into execution, and order and decree the same accordingly. Let a proper lease of the here- ditaments comprised in the said agreement be executed by the Pits to the said remaining Defts. Let the said Defts execute a counterpart of the said lease to the Pits, such lease to be settled by the judge in case the parties differ. Let an inquiry be made whether any and what damages have been sustained by reason of the said remaining Defts not having specifically performed their agreement to erect good and substantial buildings as in such agreement provided. Let the said remaining Defts within one month after the date of the chief clerk's certificate pay to the Pits Kay and Dewhurst what if anything shall be certified to be the amount of such damages. Let the Defts, except the company, pay Pits' costs of suit. — Liberty to apply. Kay v. Johnson, 2 H. & M. 118. Suit hy Lessee. DECitiEE that the agreement for a lease dated, &c., ought to be speci- fically performed, &c., and order and decree the same accordingly. Let the Deft execute a lease of the premises comprised in the said agreement, at the yearly rent and subject to the covenants and stipu- lations contained in the said agreement (such lease to be settled by the judge in case the parties differ). Let the Pit execute to the Deft a counterpart of the said lease. — Liberty to apply. Suit hy Lessee — Repairs — Damages. Declare that the agreement dated the 25 Teb., 1862, ought to be specifically performed and carried into execution, and order and decree the same accordingly. Let the Deft execute a lease, &c., to be settled. Digitized by Microsoft® 438 SPECIFIC PERFOEMANCB. &c., and Let the Pit execute to the Deft a counterpart of such lease. Let an inquiry be made whether the repairs referred to in the said agreement and in the exhibits to the affidavit of the Pit filed the 14 June, 1862, marked A and B, have been executed by the Deft, and if not what damage the Pit has sustained thereby. Let Defts Lawford and Kelly pay to Pit Samuda his costs of suit to be taxed &c. Samuda V. Lawford, 8 Jur. (N.S.) 739. Sushand and Wife — Deed of Separation. Declaee that the agreement dated the 5 July, 1866, in the pleadings mentioned ought to be specifically performed and carried into execu- tion, and order and decree the same accordingly. Let a proper deed of separation containing all usual and proper clauses and to secure a sum of £40 a year for the life of A. H. to commence from the date of the said agreement, and to be paid by the Deft T. A. H. by equal quarterly payments for the maintenance of his wife and child, be settled by the judge, the costs of such deed to be borne by the Pit G. and Deft T. A. H. in equal moieties, and Let such deed be executed by the Pit G. and the Deft T. A. H. respectively. Let an account be taken of the amount due in respect of the said annuity from the — day of — . Let the Deft T. A. H. within fourteen days from the date of the certificate pay to J. G., the next friend of the Pit, what shall be certified to be due on taking the said account. Deft T. A. H. to pay costs of suit. — Liberty to apply. Gibha v. Harding, L. E. 8 Eq. 490 ; L. E. 5 Ch. 336. Note. — This order incorporates the variation made on appeal, although in fact a distinct order was drawn upon the appeal. Frame of Decree — Title. I'here have teen two ways of framing a decree in a suit for specific performance. The one was to declare that the pit was entitled, &c., if a good title could be shewn, and then to direct a reference as to title. The other was, first, to refer the title, and then to make the declaration that if a good title was shewn the agreement ought to he specifically performed : Stevens v. Ouppy, 3 Euss. 182, per Lord Eldon : Order, p. 427. The declaration that pit is entitled to specific performance of an agreement " in case a good title can he shewn " has been objected to : Clive v. Beaumont, 1 De G. & Sm. 408. But that form of declaration is now generally adopted : see also Pitt V. Davis, 3 Euss. 182, note. And where by reason of the contract itself having been disputed, the cause is heard hefore a reference is made as to title, the decree first declares that the pit is entitled to specific performance, and then directs the reference as to title : Gibhins v. North Eastern Metropolitan Asylum, 11 Beav. 5. The terms of the general inquiry are not whether the vendor could make a good title at the time of entering into the contract, but whether he can at the time of Digitized by Microsoft® SPECIFIC PBEPOEMANCE. 439 the inquiry make such a title : Langford v. Pitt, 2 P. Wms. 629 ; Parr v. Love- grove, 4 Drew. 170. Where an inquiry is directed in general terms whether the vendor can make a good title, it means a good title having regard to the terms of the contract : Upperton v. NicMson, L. R. 6 Ch. 436, reversing S. C, L. R. 10 Bq. 228. But if the vendor wishes to prevent objections which have heen waived before the suit from being renewed under the inquiry, he should ask for a special decree based upon such waiver : S. C. " The inquiry when the title was first shewn " is only directed when the title alone is in dispute : OibMns v. ^orth Eastern Metropolitan Asylum, 11 Beav. 5 ; Morris v. Wilson, 5 Jur. (N.S.) 168. The reference of title may extend to all that concerns the title, but not toother matters : Jennings v. Eopton, 1 Madd. 211 ; Bennett v. Bees, 1 Keen, 405. If the vendor can make a good title at any time before the result of the in- quiry he will be entitled to a decree in his favour : Mortlock v. Buller, 10 Ves. 292. And if when the cause comes on to be heard for further directions the defects in title can be remedied, specific performance has been decreed : Baton v. Sogers, 6 Madd. 256. But where the vendor has not been able to make out his title before the decree, the point will have an important bearing upon the question of costs: Seton v. Slade, 7 Ves. 279 (per Lord BIdon). And the rule is that a vendor is not entitled to costs except from the time when his title is certified to be good : Wilkinson v. Hartley, 15 Beav. 183 ; Wynn v. Morgan, 7 Ves. 206. But time where a good title is shewii is not conclusive upon the question of costs, being subject to the general rule that the costs must be paid by the person who caused the litigation : Dan. 5th ed. 852 ; Monro v. Taylor, 8 Mac. & G-. 713, 725 ; Ahhott v. Sworder, 4 De Gr. & Sm. 448 ; Parr v. Lovegrove, 4 Drew. 170. In consequence of the rule as to costs, the order, except where the contract is disputed, directs an inquiry at what time the good title was shewn. In some cases the order for inquiry is, whether a good title can be made " sub- ject to the conditions of sale": Wood v. Machin, 5 Hare, 158, 162. So, too, an inquiry may be directed whether the deft ever and when required of the pit any and what evidence in proof of a point material to the title : Bennett V. Bees, 1 Keen, 408. The Court will not in general permit the question whether a good title can he made or not to be argued before it in the first instance ; even though no objections to the title are stated in the pleadings. Dan. 5th ed. 851 ; Jenkins v. Hiles, 6 Ves. 654. A purchaser may preclude himself from his right to a reference as to title by exercising right of ownership over the property : Fleetwood v. Green, 15 Ves. 594 ; Anspack v. Noel, 1 Madd. 310, 315 ; Brown v, Stenson, 24 Beav. 631. Objections to the abstract of title must be made in a reasonable time or they will be considered waived : Brown v. Stenson, 24 Beav. 631. But if a vendor does not deliver the abstract of title within the time specified in the conditions of sale, the purchaser is not bound to send in his objections within the time limited for that purpose, even though it is stipulated that time in this respect is to be of the essence of the contract : Upperton v. Nickolsrm, L. R. 6 Ch. 436. An inquiry as to title might have been directed before or after answer on motion by consent ; and after answer on motion adversely, if it appears clearly that the Digitized by Microsoft® 440 SPECIFIC PBEFORMANCE. title is the only question in dispute : Bennett v. Se-es, 1 Keen, 405 ; Dan. 5th ed. 1112 ; JReid v. Don Pedro North Del Rey Gold Mining Go., 9 Jur. (N.S.) 865. But all questions affecting the validity of the contract, or whether it is one which can be enforced, can only be determined at the hearing : Eood v. Oglander, 34 Beav. 518. The Court will not compel a purchaser to take a doubtful title : Shapland v. Smith, 1 Bro. 0. C. 75 ; VoMcouver v. Bliss, 11 Ves. 458, 465 ; Sicker v. Fish, 2 V. & B. 145 ; Pyrke v. Waddingham, 10 Hare, 1. If the doubts as to a title arise upon a question connected with the general law, the Court is to judge whether the general law on the point is settled or not : Pyrhe v. Waddingham, 10 Hare, 1. If the law be not settled, or if doubts as to the title may be affected by ex- trinsic circumstances which neither the purchaser nor the Court can satisfactorily investigate, specific performance will be refused; S. C. ; see also Mullings v. Trinder, L. B. 10 Eq. 454. And where a bill by vendor for specific performance has been dismissed in the Court below upon a question of title, it requires a strong case for the Court of Appeal to force the title upon the purchaser : Collier v. McBean, L. B. 1 Ch. 80 ; 12 Jur. (N.S.) 86. But a purchaser must accept a title which appears good to the Court of Appeal, although thought to be bad by the Court of first instance : Beioley v. Carter, L. E. 4 Ch. 230. The fact that one of the conveyancing counsel has reported adversely to the title is not in itself sufiBcient to induce the Court to refuse specific performance : Hamilton v. Buckmaster, L. R. 3 Eq. 323. And where the vendor has entered into a contract for sale bond fide mistaking his title and having a less interest than that contracted to be sold, the Court will not enforce specific performance : Sowel v. George, 1 Madd. 1. A vendor will be compelled to convey his interest, although imperfect, if the purchaser choose to accept it without compensation : Dart, 4th ed. 974 ; Bradley V. Muriton, 15 Beav. 460 ; Barrett v. Bing, 2 Sm. & Gr. 43 ; Lord Bolinghroke^s Case, 1 Sch & Lef. 19 ; and to make good the contract out of any interest he has subsequently acquired : Taylor v. Debar, 1 Ch. Ca. 274 ; Otter v. Lord Vaux, 1 K. & J. 650 ; 6 De G. M. & G. 638, cited in Dart, 4th ed. 741 ; and to obtain the concurrence of proper parties : 1 Madd. 11 ; Crop v. Norton, 2 Atk. 74 ; Minton V. Kirwood, L. E. 1 Eq. 449 ; affirmed, L. E. 3 Ch. 614. In a decree for specific performance a direction that the vendor shall convey has the same effect as a direction that the vendor and all other necessary parties shall convey : Minton v. Kirwood, L. E. 3 Ch. 614. But a vendor will not be ordered to procure the concurrence of parties whose concurrence he has no right to require : Emery v. Ware, 8 Vcs. 505, 514 ; Eowel v. George, 1 Madd. 1, 6 ; Thomas v. Bering, 1 Keen, 729. A decree for specific performance of a contract cannot be accompanied by an inquiry whether a matter which was a consideration for entering into the contract has been or can be properly performed : Lamare v. Dixon, L. E. 6 H. L. 414. Eight to Decree. As a general rule specific performance of contracts respecting goods, chattels, stock, choscs in action, and other things of a merely personal nature will not be decreed : Story, 10th ed. vol, i. pp, 716-17. Digitized by Microsoft® SPECIFIC PERFORMANCE. 441 But where pecuniary damages would not he an adequate consideration, specific performance of contracts for sale of personal chattels will be decreed : Fahke v. Gray, 5 Jur. (N.S.) 645 ; 4 Drew. 651, 658 ; Coquet v. GtTison, 33 Beav. 557 ; JDarhey v. Whitiaker, 4 Drew. 134 ; Bowling v. Setjemann, 8 Jur. (N.S.) 538 ; Cooper V. Hood, 26 Beav. 293; Charingbould v. Curtis, 21 L. J. (Cb.) 541; Coquet V. Gibson, 33 Beav. 557. And although specific performance of an agreement for the sale of the goodwill of a business has been refused {Corslake v. Till, 1 Russ. 376), it has been decreed where the goodwill was sold in connection with the property to which it was attached : Barley v. Whittaker, 4 Drew. 134, 140. So, too, in contracts of a different nature. Thus, where a covenant was made in a lease of alum works to have a certain stock upon the premises specific per- formance was decreed : Ward v. Duke of Brtckingliam, 3 Atk. 385 ; 10 Ves. 161 ; Story, 10th ed. vol. i. p. 719. In cases of covenants between landlord and tenant specific performance is virtually enforced by an injunction being granted to prevent a breach of such covenants. Where a railway company undertook to build and maintain an archway on the pleasure grounds of the pit, specific performance has been decreed : Siorer v. Great Western Sy. Co., 2 Y. & 0. (Ch.) 48, 53. Upon the like ground — inadequate remedy at law — specific performance has been ordered of covenants for a lease : Fumival v. Carew, 3 Atk. 83, 87 ; Tritton V. Foote, 2 Cox, 174; and other contracts relating to personal property. So, too, in cases of covenant not to carry on a particular trade : Kemble v. Kean, 6 Sim 633 ; Lumley v. Wagner, 6 Jur. 871. As a general rule the Court of Chancery will not enforce the specific perform- ance of a contract for the transfer of public stocks for the delivery of personal chattels : Cudd v. Butter, 1 P. Wms. 570 ; Errington v. Aynesley, 2 Bro. C. C. 341. But will order the specific delivery of a chattel the value of which is not to be estimated by damages at law : Nufbrovm v. Tliornton, 10 Ves. 159. And specific performance has been ordered of a contract for the purchase of Government stock, where the delivery of the certificates was prayed by the bill : Boloret v. Bothschild, 1 S. & S. 597. Where the contract is to transfer shares in a particular concern, limited in number and not easily procured in the market, specific ^performance has been decreed : Buncro/t v. Mbrechf, 12 Sim. 199 ; Shaw v. Fisher, 2 De G. & Sm. 11 ; Wynne v. Price, 3 De G. & Sm. 310. And where the contract was to accept the transfer of particular shares, for which no consideration had been paid, but which were liable to calls, specific performance was decreed : Cheale v. Kenward, 3 De G. & J. 27. A contract for the sale of an annuity payable out of the dividends of stock may be enforced : Withy v. Cottle, 1 S. & S. 174. Specific performance will not be decreed for the transfer of shares in a public company when by means of transfer to some third party the privity of contract between pit and deft is destroyed : Shaw v. Fisher, 5 De G. M. & G. 596. Specific performance has also been ordered of a contract for the sale of shares, notwithstanding the refusal of the directors to allow the transfer : PocHe v. Mid- dleton, 29 Beav. 646. The fact of a call, of which the purchaser has no notice, having been made at the date of the purchase of shares does not invalidate the contract : Hawkins Digitized by Microsoft® 442 SPECIFIC PERFORMANCE. V. Maltby, L. R. 3 Ch. 188, reversing V.-C. W., L. E. 4 Eq. 572; L. R. 4 Ch. 200. Specific performance of covenants to rebuild or to repair have been refused, as there can be full compensation at law : Moseley v. Virgin, 3 Ves. 184 ; Flint v. Brandon, 8 Ves. 159 ; Moore v. Qreg, 12 Jur. 952 ; Kay v. Johnson, 2 H. & M. 118. But a distinction has been drawn where the building or other work is by way of easement or accommodation : Lytton v. Great Northern By. Co. 2 K. & J. 394 ; Sanderson v. Gocherrmmth By. Co. 11 Beav. 497 ; Wdls v. Maxwell, 32 Beav. 408 ; 9 Jur. (N.S.) 1021. As a general rule specific performance will not be decreed where the contract is wholly or principally for the erection of buildings, but where the contract has been partly performed, or the work is only a subsidiary term of the contract, specific performance will be decreed : Dart, 4th ed. 905. Specific performance will be decreed of express and even of implied contracts where no actual injury has been sustained, but is only apprehended : 1 Madd. Pr. Ch. 178, 179 ; Might v. Cook, 2 Ves. 619 ; Green v. Pigot, 1 Bro. Ch. 108. It seems doubtful how far the Court can decree specific performance of a cove- nant made by a husband that his wife shall do a particular act, e.g., convey his property : Hall v. Hardy, 3 P. Wms. 189 ; Hovxll v. George, 1 Madd. 9 ; Emery V. Ware, 8 Ves. 514 ; Mortloch v. BuUer, 10 Ves. 305 ; Morris v. Stephenson, 7 Ves. 4Y4. An agreement between husband and wife living together, providing for their future separation is illegal : Westmeath v. Westmeath, Jac. 126. And the Court will not enforce an agreement for separation under which the father divests himself of his proper authority over his children : St. John v. St. John, 11 Ves. 532 ; Vansittart v. Vansittart, 2 De G. & J. 249. Nor will the Court, enforce an agreement for separation without consideration, or an agreement between husband and wife without the intervention of a tmstee, unless the husband and wife are in a hostile position : Bateman v. Countess of Boss, 1 Dow. 235. But the Court will decree specific performance of an agreement of separation if the provisions are not repugnant to the policy of law : Wilson v. Wilson, 1 H. L. C. 558 ; 5 H. L. 0. 40; Gibbs v. Harding, L. R. 8 Eq. 490 ; L. E. 5 Ch. 336; Order, p. 438. And there is no illegality in providing a fund for the maintenance of the children : Gibhs v. Harding, supra. See also Hamilton v. Hector, L. R. 6 Ch. 701. When an offer in writing is made by the owner to sell an estate on specified terms, and this is unconditionally accepted, there is a binding contract which neither party can vary. But until the proposition is accepted the owner is at liberty to add new terms to his proposal : Story, 10th ed. vol. i. 734. Upon a written request by an owner of freehold property to an estate agent to procure a purchaser and advertise it at a certain price, the agent has no authority to enter into an open contract for sale : Hamer v. Sharp, L. R. 19 Eq. 108. Letters will not constitute an agreement which will be specifically performed, unless the answer is a simple acceptance without the introduction of a new term : Story, 10th Ed. vol. i. 734 ; Wright v. St. George, 12 Ir. Ch. 226 ; Oriental Inland Steam Company v. Briggs, 8 Jur. (N.S.) 201. See also Orossley v. Maycoch, L. R. 18 Eq. 160. In order to satisfy the Statute of Frauds the cofitracting parties and the subject- matter of the contract must bo clearly shown : Williams v. Lake, 2 E. & E. 349 ; Digitized by Microsoft® SPECIFIC PERFORMANCE. 443 29 L. J. (Q.B.) 1 ; 9 Jur. (N.S.) 363 ; Morris v. Wilson, 5 Jur. (N.S.) 168 ; Potter V. Duffidd, L. R. 18 Eq. 4; Gommins v. Scott, L. R. 20 Eq. 11. If the parties are resident within the jurisdiction, it is. not necessary in order to maintain a suit for the specific performance of a contract respecting land, that the land should be situate within the jurisdiction of the Court : Penn v. Loi-d Baltimore, 1 Ves. 444 ; Portarlington v. Soulby, 3 My. & K. 104 ; Archer v. Preston, 1 Vern. 77 ; Jackson v. Petrie, 10 Ves. 164 ; Good v. Good, 33 Beav. 314. The Court will decree specific performance of an agreement to mortgage, although containing an absolute power of mortgage : Ashton v. Gorrigan, L. R. 13 Eq. 76 ; Herman v. Hodges, L. R. 17 Eq. 18. As regards parol agreements, all interests in lands, tenements, and heredita- ments, except leases for three years, not put in writing and signed, have only the effect of leases on estates at will : The Statute of Frauds, 29 Car. 2, c. 3. And actions in respect of such interests must be brought within one year from the making of the contract, unless the agreement is in writing and signed : Ibid. But the Court will enforce specific performance of a contract within the statute, although not in writing, if the answer of the deft admits the parol agreement : Att.-Otn. V. Sitwell, 1 Y. & 0. 583 ; Spurrier v. Fitzgerald, 6 Ves. 548. If, however, the answer admits the parol agreement, but sets up the Statute of Frauds as a defence, specific performance will not be decreed : Gooth v. Jackson, 6 Ves. 37, per Lord Eldon ; Powe v. Tweed, 15 Ves. 375 ; Blagden v. Bradbear, 12 Ves. 466, 471. Where a deft admits an agreement, if he means to rely on the fact of its not being in writing and signed, and so being invalid by reason of the Statute of Frauds, he must say so ; otherwise he must be taken to mean that the admitted agreement was a written agreement good under the statute, or else that on some other ground it is binding on him. But where he denies or does not admit an agreement, he need not plead the Statute of Frauds ; the burden of proof is alto- gether on the pit, who must then produce a valid agreement capable of being enforced : Ridgway v. Wha/rton, 3 De Gr. M. & G. 677. Specific performance will be enforced of a parol contract, if such contract has been partly carried into execution : Att.-Oen. v. Bay, 1 Ves. 221 ; Walker v. Walker, 2 Atk. 100 ; Taylor v. Beech, 1 Ves. 297 ; Buckmaster v. Earrop, 7 Ves. 346 ; Mundy v. JolUffe, 5 My. & Cr. 167 ; Pain v. GoorrAs, 1 De G. & J. 34 ; LiUie v. Legh, 3 De G. & J. 204 ; ShilUheer v. Jarvis, 8 De G. M. & G. 79 ; Farrall v. Davenport, 3 Gifl. 363. So, too, if fraud has prevented the pit from complying with the statute : Whitchurch v. Bevis, 2 Bro. C. C. 565 ; Morse v. Merest, 6 Madd. 26 ; Lincoln v. Wright, 4 De G. & J. 16. But payment of a deposit or of part of the purchase-money is not such an execution of the contract as to take it out of the Statute of Frauds : Butcher v. Butcher {per Sir William Grant), 9 Ves. 362. See also Glincm v. Gooke, 1 Sch. & Lef. 40. In order to take a case out of the Statute of Frauds upon the ground of part performance of a parol Contract, the contract must be proved to be clear and definite in its terms: Glinan v. Goolce, supra; Forster v. Eah, 3 Ves. 712; Price V. Saiusbury, 32 Beav. 446, 459. And the general ground is, that nothing is to be considered as a part performance which does not put the party into a situation which is a fraud upon him unless the agreement is fully performed : Story, 10th ed. vol. i. p. 757, et seq. If a man under a verbal agreement with a landlord for a certain interest in Digitized by Microsoft® 444 SPECIFIC PBEFORMANCE. land, or under an expectation created or encouraged by the landlord tliat he shall have a certain interest, takes possession of such land, with the consent of the landlord ; and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of Equity will give effect to such promise or expectation : Eamsden v. Dyson, L. E. 1 H. L. 129, 170 (per Lord Kingsdown). See also Gregory v. Mighell, 18 Ves. 328. If, on the other hand, a tenant being in possession of land, and, knowing the nature and extent of his interest, lays out money upon it in the hope and expec- tation of an extended term, or an allowance for expenditure, then, if such hope or expectation has not been created or encouraged by the landlord, the tenant has no claim which law or equity can enforce : Bamsden v. Dyson, sjipra. See also' Olavering's Case, 5 Ves. 690 ; Pilling v. Armitage, 12 Ves. 78 ; Bankart v. Tennant, L. B. 10 Eq. 141, 146. Where a pit alleges a written agreement with a parol variation in favour of the deft, and offers to perform the agreement with the variation, the Court will decree specific performance, although the deft insists upon the statute : Martin V. Pycroft, 2 De G. M. & G. 785 ; Vouillon v. States, 2 Jnr. (N. S.) 847. Where the defence to the suit is that by fraud or mistake the agreement is in terms different from what the deft supposed it to be at the time of execution, this, if proved, will negative the right to specific performance, except with a variation : Dart, 4th ed. 949 ; Sugden, 14th ed. 215 ; Joynes v. Statham, 3 Atk. 888 ; Woollan v. Eearne, 7 Ves. 211 ; Marguis Townshend v. Stangroom, 6 Ves. 238 ; Wood v. Scarth, 1 Jur. (N. S.) 1107 ; 2 K. & J. 33 ; Wright v. Goff, 2 Jur. (N. S.) 845. The same rule holds good where the defence is that by fraud or mistake the deft executed the agreement under a reasonable misapprehension as to its effects : Dart, 4th ed. 947, citing Calverly v. Williams, 1 Ves. J. 210 ; Bigginson v. Glomes, 15 Ves. 516 ; Olowes v. Higginson, 1 V. & B. 524 ; Mvanley v. Kinnaird, 2 Mac. & G. 8 ; Wood v. Scarth, 1 Jur. (N.S.) 1107 ; Neap v. Ahlott, 1 C. P. Coop. 333 ; Swaisland v. Dearsley, 29 Beav. 430 ; Moxey v. Bigwood, 8 Jur. (N.S.) 803. And where the conduct of the vendor is suspicious and vexatious, specific per- formance will not be decreed : Viney v. Chaplin, 2 De G. & J. 468. A parol promise to vary the terms of the written agreement has been admitted as a defence to a suit for specific performance : Glark v. Grant, 14 Ves. 519 ; Micklethwaite v. Nightingale, 12 Jur. 638. See also Legal v. Miller, 2 Ves. 299 ; Price V. Dyer, 17 Ves. 356. The Court will admit parol evidence on the part of a deft in support of a varia- tion in the agreement where fraud or mistake has been satisfactorily proved : Joynes v. Statham., 3 Atk. 388 ; Tonmsend v. Stangroom, 6 Ves. 328 ; London and Birmingham By. Co. v. Winter. See also Price v. Dyer, 17 Ves. 356 ; Vouillon v. States, 2 Jur. (N.S.) 847 ; The London and Birmingham By. Co. v. Winter, 1 Cr. & Ph. 57. Where mistake is the defence set up, it must be clearly proved : Clay v. Buf- ford, 14 Jur. 803. Specific performance will not be decreed if the prior rights of other parties are affected by it : Beed v. Don Pedro GoU Mining Co., 10 L. T. (N.S.) 668 ;, Har^ nett V. Yielding, 2 Sch. & Lef. 549. Nor where there are mutual rights incapable of being enforced by an immediate decree : Blacltett v. Bates, L. R. 1 Ch. 117, reversing S. C, 2 H. & M- 270. Digitized by Microsoft® SPECIFIC PERFORMANCE. 445 The Court will not, as a general rule decree specific performance of agreements for partnership : Sheffidd Gas Co. v. Harrison, 17 Beav. 294 ; Sichel v. Mosen- thal, 30 Beav. 371; 8 Jur. (N.S.) 275; Scott y. Bayment, L. R. 7 Eq. 112; Lindley on Partnership, 2nd ed. p. 947. Where great hardship would result from enforcing specific performance the Court has, in certain cases, refused to interfere : Peacock v. Penson, 11 Beav. 355 ; Eelling v. Lumley, 3 De Gr. & J. 493. Nor will a contract be enforced which involves a breach of trust : Mortloch v. Butter, 10 Ves. 292, 313 ; Ord v. Noel, 5 Madd. 438 ; Sneesby v. Thorne, 7 De G. M. & Gr. 399 ; Shrewsbury By. Co. v. London and North Western By. Co., 4 De G. M. & G. 115. The Court will not decree speoiBc performance of part of a contract if unable to enforce its material terms : Oervais v. Edwards, 2 D. & War. 80 ; Counter v. Macpherson, 5 Moo. P. 0. 83 ; Paris Chocolate Co. v. Crystal Palace Co., 1 Jur. (N.S.) 720 ; 3 Sm. & G. 119 ; South Wales By. Co. v. Wythes, 1 K. & .J. 186 ; 5 De G. M. & G. 880. Nor a contract for sale where the price is to be fixed by arbitration, unless the arbitrators have actually fixed the price : Darhey v. Whitaker, 4 Dr. 134. The Court does not interfere to enforce contracts not founded upon valuable consideration : Ex parte Pye, 18 Ves. 149 ; Ellison v. Ellison, 6 Ves. 662 ; Pul- vertoft V. Pulvertoft, 18 Ves. 98 ; Edwards v. Jones, 1 My. & Cr. 226. But will give effect to transfers and conveyances which have been completed at law, although derived from voluntary acts : Ex parte Pye, 18 Ves. 149 ; Ed- wards V. Jones, 1 My. & Or. 226 ; Donaldson v. Donaldson, Kay, 711 ; Eehewich V. Manning, 1 De G. M. & G. 176. Where the character and conditions of the property have so altered that the terms of the contract are no longer applicable to the existing state of things, specific performance will not be decreed : Story, 10th ed. vol i. p. 746 ; DuTce of Bedford v. British Museum, 2 My. & K. 552. And where the terms of the contract are such that the Court cannot super- intend the execution so as to secure full performance on the part of the pit, specific perfonnance will not be decreed : Story, 10th ed. vol. i. p. 782 ; Pelo v. Bye U. By. Co., 9 L. T. 237 ; 1 H. & M. 468 ; South Wales By. Go. v. Wythes, I K. & J. 186; 5 De G. M. & G. 880. But in case of railway companies taking land under their compulsory powers, neither want of mutuality nor want of consideration has been held to be a suflBcient defence to a bill for specific performance : Bedford and Cambridge By. Co. v. Stanley, 2 J. & H. 746. A railway company after notice to treat has been given and the price of the land fixed, is in the same position with regard to the landowner as an ordinary purchaser, and may be compelled to complete their purchase : Harding v. Metro- politan By. Co., L. R. 7 Oh. 154. The Court has enforced against railway companies covenants in respect of station accommodation : Hood v. North Eastern By. Co. L. R. 8 Eq. 666 ; L. R. 5 Ch. 525 ; and covenants to construct arches and suitable approaches : Storer V. Chreat Western By. Co. 2 T. & 0. Ch. 49 ; covenants to construct roads and wharves : Wilson v. Furness By. Co., L. R. 9 Eq. 28 ; and covenants to con- struct roads and approaches : Sanderson v. Cockermouth and Workington By. Co., II Beav. 497 ; Baphael v. Thames Valley By. Co., L. R. 2 Ch. 147 ; Lytton v. Great Northern By. Co. 2 K. & J. 394 j Greene v. West Cheshire By. Co., L. R. 13 Eq. 44. Digitized by Microsoft® 446 SPECIFIC PElRPOEMANCE. Where a railway company having agreed to erect a station in a specified place suhstituted one in another place, damages being considered a sufficient remedy, an inquiry as to damages was directed instead of specific performance : Wilson v. Northampton and Banbury Junction By. Co., L. E. 9 Ch. 279. The Court will not decree against a railway company specific performance of an agreement which involves the performance of continuous acts for an indefinite period, such as working signals: Powell Duffryn Steam Coal Co. v. Taff Vale By. Co., L. E. 9 Oh. 331. An agreement for compromise of a suit cannot be enforced by motion in that suit if the agreement extends to matters beyond the scope of the suit : Pryer v. Qribble, L. E. 10 Ch. 534. Sale op Land — Boot of Title — ^Eequisitions, &c. — 37 & 38 Vict. o. 78. " In the completion of any contract of sale of land made after the 31st Decem- ber, 1874, and subject to any stipulation to the contrary in the contract, forty years shall be substituted as the period of commencement of title which a pur- chaser may require in place of sixty years, the present period of such commence- ment ; nevertheless earlier title than forty years may be required in cases similar to those in which earlier title than sixty years may now be required " : " The Vendor and Purchaser Act, 1874" (37 & 38 Vict. c. 78), s. 1. And in the completion of any such contract, and subject to any stipulation to the contrary in the contract, the obligations and rights of vendor and purchaser shall be regulated by the rules stated in sect. 2 of the same Act. " A vendor or purchaser of real or leasehold estate in England, or their repre- sentatives respectively, may at any time or times and from time to time apply in a summary way to a judge of the Court of Chancery in England in Chambers, in respect of any requisitions or objections, or any claim for compensation, or any other question arising out of or connected with the contract (not being a question affecting the existence or validity of the contract), and the judge shall make such order upon the application as to him shall appear just, and shall order how and by whom all or any of the costs of and incident to the application shall be borne and paid " : sect. 9. Vendors or purchasers of real or leasehold estate in Ireland may, in like manner and for the same purpose, apply to a judge of the Court of Chancery in Ireland : Ibid. See under section 9, Be Packman and Moss, L. E. 1 Ch. D. 214. Mandatory Order. The Court has jurisdiction to make any interlocutory order reasonably ancillary to the administration of justice at the hearing : Smith v. Peters, L. E. 20 Eq. .511. And where an agreement had been entered into for the sale of a house at a fixed price, and of the fixtures and furniture at a valuation, upon the refusal of the vendor to permit the valuation, a mandatory order has been made to compel the vendor to allow entry upon his premises for the purposes of the valuation : S. 0. See also Kynaston v. East India Go., 3 Sw. 248. Eents — "Wilful Default, A vendor who has to account to the purchaser for rents and profits from the time fixed for completion is not, unless a special case be made, liable to account Digitized by Microsoft® SPECIFIC PERFORMANCE. 447 for sums which he might have received but for his wilful default, nor entitled to an inquiry as to repairs or lasting improvements : Sherwin v. Skakspear, 5 De G. M. & G. 517. Occupation Eent — Eests, Where a common leasehold estate is sold, and possession is not delivered to the purchaser, if any delay occurs the vendor must pay a rent in respect of his occu- pation, the purchaser being charged with interest on the purchase-money : Dy&r V. Eargreaves, 10 Ves. 505 ; Fenton v. Browne, 14 Ves. 144. Where an occupation rent is charged against the vendor, the order does not direct an allowance to be made for income tax : Sherwin v. Shahspear, 5- De G. M. & G. 517. Where fixtures agreed to be taken at a valuation are of great value, the pur- chaser, if let into possession after the time at which the valuation ought to he, but before it is made, ought to pay an occupation rent for the intermediate period : Dart., 4th ed., 581. Where an occupation rent is set upon an estate, interest is sometimes deducted at £5 per cent, upon the deposit : Smith v. Jackson, 1 Mad. 618. Where a purchase was set aside on the ground of fraud, and the purchaser was directed to pay an occupation rent, and to be repaid his purchase-money and interest, and the rents exceeded the interest, annual rests were directed, so that the excess of rent beyond the interest might go in reduction of the capital : Sugden, 14th ed. 642 ; Donovan v. Fricker, Jac. 165. After the annual rent had liquidated the principal, the account was directed of rent without interest : Ibid. But rests are not made in the account unless a special case he shewn for them : Nessom v. Clarkson, 4 Hare, 97. Outgoings. On a sale of leaseholds, a condition being that all outgoings up to a day named should be cleared by the vendors, it was held that an apportioned part of the current rent was an outgoing, and must be allowed to the purchaser : Lawes v. Gibson, L. R. 1 Eq. 135. In the absence of express stipulation, the expenses and outgoings of property, such as the repairs and renewals of premises and machinery in the case of mills, must be borne by the vendors down to the period when a good title was shewn : Story 10th ed. 769; Oarrodus v. Sharp, 20 Beav. 56. Compensation — Abatement. In suits by purchasers for specific performance the general rule is that the pur- chaser if he chooses is entitled to have the contract specifically performed so far as the vendor can perform it ; and to have an abatement out of the purchase-money, or compensation for any deficiency in title, quantity, quality, description, or other matter relating to the estate : Story, 10th ed. vol. i. p. 786 ; Paton v. Sogers, 1 V. & B. 351 ; Hill v. Buckley, 17 Ves. 394 ; Mestaer v. Qilhspie, 11 Ves. 640 j Graham v. Oliver, 3 Beav. 124, 128 ; Wood v. Griffith, 1 Sw. 543 ; Harris v. PeppereU, L. R. 5 Eq. 1; Order, p. 431; Barnes v. Wood, L. R. 8 Eq. 424; Order, p. 436 ; Castle v. Wilkinson, L. E. 5 Ch. 534 ; Hooper v. Smart, L. E. 18 Eq. 683 ; PhiUips v. Silvester, L. R. 8 Gh. 173 ; Powell v. Elliott, L. R, 10 Ch. 424. Digitized by Microsoft® 448 SPECIFIC PERFOEMANCE. Where a purchaser liad filed Ms bill for specific performance, and an order had .directed a general reference as to title, without adding, as the Court had directed, " without prejudice to the question of compensation," the vendor obtained com- pensation for a want of title as to part : Wilson v. Williams, 3 Jur, (N.S.) 810, cited in Sug. 14th ed. 314. And if the vendor by wilful acts or mere negligence cause or permit the pro- perty to deteriorate the purchaser is entitled to compecsation : Dart, 4th ed. 596, and cases there cited. And although in the agreement there may be provision for compensation in case of error or mistake, such provision is no bar to specific performance in the event of such error or mistake occurring : Hoy v. Smythies, 22 Beav. 510. In cases of deficiency in quantity the xjurohaser's right is strictly to com- pensation, and not necessarily to an abatement of purchase-money proportionate to the surface deficiency: Dart, 4th ed. 603; Hill v. Buckley, 17 Ves. 394; Order, p. 435. If the vendor has received the purchase-money he must pay interest upon it in refunding the amount of the abatement : Ferguson v. Tadman, 1 Sim. 530. Consideration Monet. Inadequacy of consideration is a good defence by a vendor in a suit for specific performance if fraud, misrepresentation, or improper concealment on the part of the purchaser can be established : White v. Damon, 7 Ves. 30 ; Ooles v. Treco- thicJe, 9 Ves. 246 ; Burrowes v. Lock, 10 Ves. 470 ; Western v. Sussed, 3 Ves. & B. 187; CaSman v. Homer, 18 Ves. 10; 1 Mad. 81; OoodwinY. Fielding,^ De G. M. & Gr. 90 ; see also Davies v. Cooper, 5 My. & Cr. 279. But no purchase made bond, fide, and without fraud or imfair dealing, of any reversionary interest in real or personal estate, is to be opened or set aside merely upon the ground of undervalue : 31 Vict. c. 4. Excess in value may in some few cases be a good defence by the purchaser to the vendor's bill : Sugden, 14th ed. 273 ; Poole v. Shergold, 2 Bro. C. C. 199 ; Haywood v. Cope, 25 Beav. 140 ; Ridgway v. Sneyd, Kay, 627. Payment of Purchase-money into Coitet. A purchaser in possession may upon motion, and even before answer, be ordered to pay the purchase-money into Court : Dixon v. Astley, 1 Mer. 133 ; Bun-oughs V. Oakley, Ibid. 52, 376. But payment into Court will not be ordered, first where possession is taken under the contract, or is consistent with it, and the purchaser has not dealt im- properly with the estate.' But if possession by the purchaser without payment of the money is contrary to the intention of the parties, or is held according to it, but improper acts of ownership have been exercised, the Court will compel the purchaser to pay his money into Court : Sugden, 14th ed. 231. But where a purchaser has been long in possession, e.g. three years, he will be required either to give up possession or pay in his purchase-money : Dart, 4th ed. 1001 ; Tindal v. Cobliam, 2 My. & K. 385 ; Clarke v. WUson, 15 Ves. 317 ; Morgan v. Shaw, 2 Mer. 138 ; Bradshaw v. Bradshaw, 2 Mer. 492. Where a vendor in possession files a bill for specific performance, and to restrain the purchasers from proceeding at law for his deposit, he can generally obtain the injunction only upon the terms of paying his deposit into Court : Dart, 1003; Wynne v. Griffith, 1 S. & S. 147, 149. Digitized by Microsoft® SPECIFIC PERFORMANCE. 449 CoNTEACT — Time. In equity the time appointed for the completion of a contract is not as at law as of the essence of the contract ; but it may be so from the nature and circum- stances of the contract, or be made so by direct stipulation or by implication : Wynn v. Morgan, 7 Ves. 202 ; Gibsm v. Patterson, 1 Atk. 12 ; Seton v. Slade, 7 Ves. 265 ; Ring v. W&m, 6 Beav. 124 ; Parkin v. Thorold, 16 Beav. 59. And either party may by notice insist upon the contract being completed within a reasona,ble time : Parkin v. Thwold, 16 Beav. 59. And if the contract was merely the option of purchase within a certain period, time will be considered the essence of the contract : Lord Bandagh v. Melton, 10 Jur. (N.S.) 1141 ; Westrni v. Cdllims, 11 Jur. (N.S.) 190. So, too, where the contract was that a railway company should make the line and certain crossings over it within a certain time : Darnhy v. London, Chatimm, and Dover By. Co., 9 Jur. (N.S.) 452. And if time was not originally of the essence of the contract, it may become so by notice after improper delay : King v. Wilson, 6 Beav. 124. In ordinary cases if the vendor can remedy a defect in his title within reason- able time, equity will give him the benefit of a decree for specific performance : Sugden, 14th ed. 260, 261. Dkceee constitutes Judgment Debt. A decree for specific performance, with a reference to compute principal and interest, tax costs, and directions for payment by deft when ascertained, constitute a judgment debt, although the inquiries may not have been made. Damages. In all cases in which the Court of Chancery has jurisdiction to entertain an application for the specific performance of any covenant, contract, or agreement, it shall be lawful for the same Court, if it shall think fit, to award damages tq the party injured, either in addition to or in .substitution for such specific per- formance, and such damages may be assessed in such manner as the Court shall direct : 21 & 22 Vict. o. 27, s. 2. The damages may be assessed by the Coiu-t itself, either with or without a jury, or at Nisi Prius, or at the assizes, or before the sheriff, or by an inquiry in Chambers: 21 & 22 Vict. c. 27, ss 36. The Court need not grant relief in any suit concerning a matter in which a Court of Common Law has concurrent jurisdiction, if the matter has been impro- perly brought into equity : 25 & 26 Vict. c. 42, s. 4. Damages will not be given in cases where previously to the Act the Court would not have ordered an injimction or decreed specific performance. See cases cited in Dan. 5th ed. 946 ; Morg. 4th ed. 262 ; Eindley v. Emery, L. R. 1 Eq. 62 -. Dmell V. Pritcha/rd, L. R. 1 Ch. 244 ; Lewers v. Earl of Shafleshury, L. R. 2 Eq . 270. Under 21 & 22 Vict. c. 42, it is discretionaiy with the Court whether it will award damages : Dv/rdl v. Pritchard, L. R. 1 Ch. 244. Where the pit had at the time of filing his bill no ground for equitable relief, the Court of Chancery has left the question of damages to a Court of Law. S. C. To entitle a pit to damages he must shew substantial injury : Owrriers' Co. V. Corbett, 13 W. R. 1056. Digitized by Microsoft® ^ '^ 450 SPECIFIC PERFORMANCE. Damages may be granted in substitution for equitable relief : Senior v. Pawson, L. R. 3 Eq. 330 ; Isenberg v. Hast India Co., 12 W. R. 450 ; Gurriers' Co. v. Oorbett, 13 W. R. 1056; Martin v. Beadon, L. R. 3 Eq. 425 ; OaUmY. Wyld, 32 Beav. 266. See also observations of the M. R. in Franhlmsld v. BM; S3 Beav. 560. Where the plaintiff should have proceeded at law, the Court of Chancery has under the former practice declined to assess the damages, and the bill has been dismissed without prejudice to the pit's right to proceed at law : Wycomhe Ry. Co. Y. Bonington Sospital, L. R. 1 Ch. 268 ; BdbsonY. Whittingham, L. R. 1 Ch. 442 5 Clarke v. GlarJc, L. R. 1 Oh. 16 ; Scott v. Bayment, L. R. 7 Eq. 112 ; Cooke v. Forhes, L. R. 5 Eq. 166. Damages at the suit of a purchaser for specific performance will not be awarded in respect of a mere lapse of time : Ohinneck v. Marchioness of Ely, 11 Jur. (JST.S.) 32 ; 2 H. & M. 220. Interest. A purchaser who has been in possession is only bound to pay interest on the purchase-money, and to take the rents and profits from the time when a good title was fijst shewn : Jones v. Mudd, 4 Russ. 118. Whilst a material objection to the title remains to be cleared up, a purchaser is justified in declining to take possession, and the Court will not compel him to pay interest : Sugden, i4th ed. 630 ; Forteblow v. Shirley, 2 Sw. 223. Interest on timber to be taken at a valuation will only commence from the valuation : Sugden, 14th ed. 631. Upon the sale of an estate in possession under an order of the Court the pur- chaser is entitled to the possession or rents from the quarter-day preceding his purchase, paying his money before the following one. But he will not be»allowed to deduct property tax. A purchaser does not pay interest upon his deposit, although the vendor may have been prevented by the default of the purchaser from receiving it from the auctioneer : Bridges v. Robinson, 3 Mer. 694. As a general rule, when specific performance is decreed the vendor is entitled to 4 per cent, interest from the time that the money was contracted to be paid, and the purchaser to the rents and profits from the time possession was to have been- delivered : Esdmle v. Stephenson, 1 S. & S. 123 ; Baton v. Rogers, 6 Mad. 256. Where the conditions of sale provide that interest shall be paid from a certain day, if the purchase be not then completed, the vendor's delay will not relieve the purchaser from payment of interest : Esdaile v. Stephenson, 1 S & S. 123. But where there is no such stipulation, and the interest exceeds the rents and profits, the Court will, in case of unnecessary delay by the vendor, give him no interest, but leave him in possession of the interim rents and profits : S. C. ; Jones V. Mudd, 4 "Russ. 118. Where conditions of sale provide that interest shall be paid by the purchaser from a fixed time if the completion be delayed "by any cause whatever," delay occasioned by the state of the title, and not wilful on the part of the vendor, falls within the provision : Sherwin v. Shalcspeare, 5 De G. M. & G. 517 ; Order, p. 430. Lien on Vendoh's Estate for Deposit and Costs Where in a suit for specific performance by vendor a good title is not deduced, and a deposit has been paid, the Court has dismissed the bill mth costs ordered Digitized by Microsoft® SPECIFIC PERFORMANCE. 451 the return of the deposit with interest, anrl gi-anted a lien for the amount of deposit and interest : Lord Anson v. Hodges, 5 Sim. 227 ; Wythes v. Lee, 3 Drew. 396. And the lien has heen extended to the costs of suit : Middleton v. Magnay, 2 H. & M. 233 ; Turner v. Marriott, L. E. 3 Bq. 744 ; Order, p. 435. Default in Payment by Pcechaser. Where after decree forspecific performance the deft, the purchaser, made default, the contract was, upon the application of the pit, ordered to he rescinded, and further proceedings stayed, with liberty for the pit to make application as to damages : Foligno v. Martin, 16 Beav. 586 ; Sweet v. Meredith, 4 Giff. 207 ; Order, p. 433. But if the pit is unwilling to rescind he is entitled to a declaration of his lien for the unpaid purchase-money and costs, and to an order for sale : Walker v. Ware, Hadham, and Buntingford By. Go., L. B. 1 Bq. 195 ; Bishop of Winchester, V. Mid Hants By. Co., L. E. 5 Bq. 17 ; Orders, p. 433, 434. And the Court will enforce the lien by sale, although the railway has been made and opened for public traffic : Walker v. Ware, &c.. By. Co., supra ; Wing v. Tottenham My. Go.,~h.KiGh.li.(i. But after decree made for specific performance in which no charge had been declared upon the land, an application by petition to enforce a lien on the land was dismissed : Att.-Qen. v. Sittinghourne and Sheerness By. Co., L. R. 1 Bq. 636. After a decree for specific performance against a railway company and an order for sale of the land and payment of the deficiency, an injunction restraining the company from running engines over the land was dissolved, as making the land useless to both parties, and a receiver was appointed vrith a direction to the company. to give him immediate possession: Munns v. Isle of Wight By. Co., L. B. 5 Ch. 414. See also Cosens v. Bognor By. Co., L. B. 1 Ch. 594'; Pell v. Northampton and Banbury By. Co., L. E, 2 Ch. 200. Where land purchased by a railway company is sold to enforce the vendor's lien for unpaid purchase-money, it is sold free from all claim of the public to use it as a highway : S. C. A writ of ne exeat lies against the purchaser who has not paid his purchase- money upon his threatening to go abroad, if the vendor's title has been accepted : Goodwin v. Clarke, 2 Dick. 497 ; Jackson v. Fetrie, 10 Ves. 164 ; Sugden, 14th ed. 241. So, too, if there has been a decree for specific performance after the title has been investigated : Boehm v. Wood, T. & B. 332 ; Morris v. NcNeil, 2 Buss. 604. Eescinding Contract. Where either of the parties to the contract has procured the other to enter into it by means of a misrepresentation or concealment, which a Court of Equity considers fraudulent, it will not merely decline to enforce, but will even rescind the contract, unless the party defrauded elect to have the misrepresentation made good : Dart, 4th ed. 95 ; Ex parte James, 8 Ves. 337, 345 ; Blanche v. Colburn, 8 Bing. 14 ; Palrner v. Temple, 9 A. & B. 508 ; Kemp v. Bose, 1 Giff. 258 ; Pawley v. Turnbull, 3 Giff. 70 ; Blair v. Bromley, 2 Ph. 354 ; Kimberley v. Bick L. B. 13 Bq. 1 ; Jervis v. Beveridge, L. R. 8 Ch. 351 ; Dunne v. English, L. R. 18 Eq. 524 ; Panama and South Pacific Co. v. India Bubber and Tele- graph Works Co., L. R. 10 Ch. 525. " ^ Digitized by Microsoft® 2 6 2 452 SPECIFIC PEEFORMANCE. As regards a purchaser's right to rescind upon the ground of delay : See Dart, 4th ed. 87, et seq. A condition that the vendor may annul the contract and return the deposit if objections are made by the purchaser and not removed within a fixed time, enables the vendor to avoid the sale if the purchaser, under a mistake in law, raise an objection which cannot be maintained : Sugden, 14th ed. 20 ; Page v. Adam, 4 Beav. 269 ; Lane v. Debenham, 17 Jur. 1005. See also Turpin v. Chambers, 30 L. J. (N.S.) 470 ; 19 Beav. 104 ; Eoy v. Smithies, 22 Beav. 510 ; Mawson v. Fletcher, L. R. 10 Bq. 212 ; L. R. 6 Ch. 91 ; Denny v. Han- coch, L. R. 6 Ch. 1. But the vendor cannot make use of the condition for a fraudulent purpose, e.g., on account of the inadequacy of price : Sugden, 14th ed. 20. If the vendor file a bill for specific performance he cannot rescind his con- tract without his bill he first dismissed with costs : Warde v. Dixon, 28 L. J. (N.S.) 315. County Court Jueisdiction, Proceedings for the specific performance, or the delivery up or cancelling of agreements, shall be taken in the County Court within the district of which the defts or any one of them reside or resides, or carry on or carries on business : 28 & 29 Vict. c. 99, s. 10. Under this Act it was held that the County Courts can entertain a suit for the specific performance of an agreement to grant a lease : Wilcox v. MarshaU, L. R. 3 Bq. 270. And the jurisdiction may be exercised in all suits for specific performance of or for the reforming, delivering up, or cancelling of any agreement for the sale, purchase, or lease of any property, where in the case of a sale or purchase the purchase-money, or in the case of a lease the value of the property, shall not exceed £500 : 30 & 31 Vict. c. 142, s. 9. Digitized by Microsoft® ( 453 ) CHAPTER XXVI. EECTIFIOATION OF DEEDS. Settlement rectified — Fresh Deed to he executed. Directions for will to he established. Declare that the settlement made pursuant to the testator's will as regards the trusts for, &c., and the powers therein contained of changing and appointing new trustees, and exchanging the lands thereby released, is proper and in conformity with the said will, except that the last-mentioned power ought to have been a power of sale and exchange, without any restriction as to any part of the testator's estates. Declare that until a proper settlement can be executed the said estates are to be held and enjoyed in like manner as if such power of sale and exchange were contained in the said settlement. Directions to approve a proper settlement, having regard to the said declaration. Jones V. Jones, 5 Hare, 440 ; Seton, 498. Covenant in Settlement rectified. Declare that the indenture of settlement dated, &c., ought to be rectified as to the covenant for settling future property therein con- tained by inserting the words following, namely, " one equal moiety or half part or share of and in " between the word " that " and the words " all the estate, property, and effects " in the forty-third line of the third skin of the said settlement, and by inserting, &c., so as to make the said covenant agree with the recital in the said settlement contained of the agreement, &c. And any of the parties are to be at liberty to indorse the aforesaid declaration upon the said indenture of settlement. Costs of all parties to be taxed as between solicitor and client, to be paid and retained by the trustees out of the trust fund. — Liberty to apply. Fowler v. Fosbery, Eeg. Lib. 1856, A. 614; Seton, 497. Settlement rectified without fresh Deed. [Directions for the appointment of new trustee.] Declare that the indenture of settlement dated, &c., is not in all respects in conformity with the provisions of the articles dated, &c., and that the said in- denture ought to stand altered and rectified in manner hereinafter Digitized by Microsoft® 454 EBOTIFIOATION OF DEEDS. directed. Declare that the trusts in the said indenture expressed for the investment of [the trust funds] in any of the Parliamentary stocks or public funds of Great Britain, or at interest upon Govern- ment or real securities in England, but not in Ireland, and for the alteration, variation, and transposition of the same, ought to be and do stand altered and rectified so as to authorize the investment of the said [trust funds] in any of the Parliamentary stocks or public funds of Great Britain, or upon Government securities in England only, and so as to authorizfr the alteration, variation, and transposition of the same for or into other stocks, funds, or securities, of the like nature only. , Declaration as to the trusts of the fund for the children of the marriage, and declare that thesaid indenture of settlement ought to "be and do stand altered and rectified accordingly. Declare that the words . . . [stating them'] ought to be struck out and erased from the feaid indenture. Declare that the power [stating power to appoint new trustees'] ought to be and do stand varied and rectified in such manner as to authorize, &c. Declare that the trusts of the said inden- ture of settlement, varied and rectified as aforesaid, ought to be car- ried into execution in like manner as if the same had been so varied and rectified before the execution of the said indenture by any of the parties thereto. Tebbitt v. Tebhitt, 1 De G. & Sm. 506, 510. Settlement rectified as to Period of raising Charges. The Court being satisfied that the &ve several sums of £87 each due from the Pit to E. D., M. L. C, E. C, E. C, and L. H. C, men- tioned in the settlement dated the I8th August, 1866, in the Pit's bill mentioned, were by mistake in the said settlement made raiseable on the death of the Pit instead of on the death of the Pit's mother, E. C. Declare that such sums became raiseable and payable to the said persons entitled thereto respectively upon the death of the said E. C, which took place upon the 28th February, 1869, and that the Deft C. J., as trustee of the said settlement, is authorized and em- powered forthwith to raise the said sums and interest thereon at the rate of £5 per cent, per annum from that date until payment by a sale or mortgage" of the hereditaments and premises comprised in or subject to the trusts of the said settlement, and to pay over the same to the several persons entitled thereto respectively. ■ Let the costs of all parties of this cause be taxed by the taxing master, aind he raised and paid by the said Deft C. J. as such trustee. Let a copy of this order be indorsed upon the said indenture of settlement. —Liberty to apply. JViltshire v. Jones (V.-C. J.), April 24, 1869. Digitized by Microsoft® RECTIFICATION OP DEEDS. 455 Mistake in Settlement — Petition under Trustee Belief Act. The Court being of opinion that the words " in case the said Hen- rietta his wife shall he such survivor " were inserted by mistake in the settlement dated, &o., in the petition mentioned. Let the sum of £ — , part of the sum of £ — in Court to the credit of " In the Matter of the Trusts of the Settlement," &c., be transferred and paid to the legal personal representatives of Villiers De La Touohe, and Let the sum of £ — , the residue of the said cash, be transferred and paid, subject to duty, to the petitioner C. T. Be De La Tmche's Settlement, L. E. 10 Eq. 599. Voluntary Settlement rectified — Deed cancelled. '■ Declake that the deed-poll dated, &c., in the Pit's bill mentioned, is void, and that the same ought to be delivered up to be cancelled. Let Deft H. deliver up the said deed-poll to the Pit L.- Let the Deft H. on or before the — day of — pay to the Pit L. the sum of £900, with interest thereon at £4 per cent, from the -— day of — to the day of payment, less the sum of £3 paid on account of such interest. Let the certificate for the £300 Consolidated Stock of the British and Magnetic Telegraph Company dated, &c., and "the certifi- cate for £420 £4 per Cent. Stock of the Great Eastern Railway dated, &c., deposited by the Deft H. with the Clerk of Eecords and Writs pursuant to an order dated, &c., be delivered out to the Deft H. Tax the Deft D. her costs of suit. Pit L. to pay such costs, and add them to his own. Deft H. to pay to Pit his costs, including what he shall have paid the Deft D. Lister v. Hodgson (M. E.), March 12, 1867. Settlement — Form of Sale rectified — Be-conveyance. Declare that the settlement dated, &c., is not conformable to the contract between the parties so far as the power of sale and exchange therein contained is made exercisable at the request, &c., &c. ; and that such power of sale and exchange ought to have been framed by the insertion in the seventh line of the fourteenth skin of the same in- denture, immediately after the words "at the request and by the direction," of the words following : " of J. H. Viscount P., E. A. J. H., and C. A. H. respectively, from time to time during their respective natural lives as and when they respectively shall under and by virtue of the limitations hereinbefore contained be in the actual possession or entitled to the rents, issues, and profits of the said manors and hereditaments hereinbefore limited in use to the said J. E., Earl of Malmesbury, for his life, such request and direction to be signified by writing under their respective hands and seals ; and if and when there Digitized by Microsoft® 456 RECTIFICATION OP DEEDS. shall not be any such tenant for life, at the request and by the direc- tion." And that such indenture ought to be construed and take effect as if the same had been so framed. Let a copy [notice] of this decree be indorsed on the said indenture. Let all proper parties execute and do such conveyances and acts as may be necessary and as the judge shall approve for the purpose of giving legal effect to the above decla^ ration, and for creating in the hereditaments comprised in the said indenture, or devised by the ■will of the said late Earl to the uses of the said indenture, or received in exchange by the trustees of the said power of sale and exchange, in the intended execution of the said power of sale and exchange, a power of sale and exchange conformable to the aforesaid declaration, and for giving effect to such sales and exchanges as have already been made and completed of any hereditaments com- prised in or subject to the uses of the said indenture in intended execution of the power of sale and exchange contained in such inden- ture. Declare the infant Deft a trustee, and appoint E. E. N. in his place to execute or concur in executing such conveyances as the judge shall approve and direct. Malmeshury v. Malmesbury, 19 Beav. 407, 419. Voluntary Settlement — Deed set aside — Imjprovidence. Declare that the indenture dated, &c., is void, and ought to be set aside, and Let the Defts J. E. and A. E. deliver up the said indenture of settlement to the Pit to be cancelled. Tax the costs of the Defts of the suit as between solicitor and client, including costs, charges, and expenses properly incurred as trustees, and in relation to the transfer of mortgage hereinafter mentioned. Let the said Defts join in and execute a proper transfer of the mortgage dated, &c., in the bill mentioned to — , or to whom he shall appoint (such transfer to be settled by the judge, &c.) and deliver up, &c. Upon the due execu- tion of the transfer the Pit to pay Defts their said costs. Everitt v, Everitt, L. E. 10 Eq. 405. Eectification of Deeds, &c. Agreements entered into in good faith but under a mistake in law, are gene- rally obligatory upon the parties : Pullen v. Ready, 2 Atk. 591. But where a person acting in ignorance of plain law has been induced to give up his property the Court has given relief : Naylor v. Winch, 1 Sim. & Stu. 555 ; Landsdowne v. Landsdowne, Jao. & W. 205 ; Stockley v Stockley, 1 V. & B. 31 ; Oann v. Cann, 1 P. Wms. 727. Where parties whose rights are questionable have equal knowledge of facts and of the means of ascertaining their rights, agreements are binding. Sectis, where the parties have not been on equal terms : Pickering v. Pickering, 2 Beav. 31, 56. See also Stewart v. Stewart, 6 CI. & F. 911 ; Stone v. Godfrey 5 De Gr. M. & G. 76. Digitized by Microsoft® RECTIFICATION OF DEEDS'. 457 The relief granted in case of mistake is not confined to mere executory con- tracts. In preliminary contracts for conveyances and settlements, &c., the Court reforms the preliminary contract itself, and decrees a due execution of it as re- formed, if no conveyance in pursuance of it has been executed. If the conveyance has been executed, the Court reforms the latter also : Story, 10th ed., vol. i. 155. The Court has decreed the surrender of a bond to be cancelled where it had not been executed by all who were meant to be bound by it : Mvans v. Bremridge, 2 K. & J. 174. The Court in rectifying a contract can annex a condition not in the contempla- tion of the parties at the time of the contract : Garrard v. Franlcel, 8 Jur. (N.S.) 985 ; 30 Beav. 445. In order to enable the Court to rectify a settlement, it must be proved that it was drawn in its existing form by a mistake common to all the parties to it : Books V. Lord Kensington, 2 K. & J. 753 ; Sells v. Sells, 1 Dr. & Sm. 42. If the evidence be such as to make it doubtful whether this was so or not, the utmost the Court will do is to direct an inquiry : Books v. Lord Kensington, supra. But the rule that the Court will not interfere to rectify an instrument unless it is proved that the mistake was common to both parties, does not apply to the case of a contract between vendor and purchaser: Harris v. PeppereU, L. R. 5 Bq. 1. As to the power of the Court to rectify a settlement and the modes of rectify- ing it : see Solson v. Ferrahy, 2 Coll. 412 ; Earhidge v. Wogan, 5 Hare, 258 ; WotUrbeck v. Barrow, 23 Beav. 423 ; Torre v. Torre, 1 Sm. & G. 518 ; Smith v. Iliffe, L. R. 20 Eq. 666 ; Cogan v. Buffield, L. B. 20 Eq. 789. In applications to rectify a settlement, or to reform a contract on the ground of mistake, the question to be considered is not what the parties would have done, but what was their intention at the time of the contract : Wilkinson v. Nelson, 7 Jur. (N.S.) 480 ; 9 W. R. 393. And in suits to rectify written contracts, where no written instructions for them have been given, the Court has accepted parol evidence as to the intention of the parties : Lachersteen v. Laxkersteen, 6 Jur. (N.S.) 1111 ; 30 L. J. (Oh.) 5. The Court has rectified the execution of a power of appointment by the insertion of a hotchpot clause : Wilkinson v. Nelson, svpra. And has rectified deeds in the execution of powers in favour of children: Tollett V. Tollett, 2 P. Wma. 490 ; Chapman v. Gibson, 3 Bro. C. C. 299 ; Morse V. Martin, 34 Beav. 500 ; Kenruwd v. Eennard, L. R. 8 Ch. 227. In favour of purchasers or children the Court relieves against the defective execution of a power, provided it sufBciently appears that there was an intention on the part of the donee to give the property the subject of the power : Kennard V. Kennard, L. R. 8 Ch. 227. But there must be a distinct intention to[^execute the power : Garth v. Town- send, L. R. 7 Eq. 220. And it is competent to a settlor to make the nature and character of the in- strument by which the power he creates shall be executed of the essence of the power, without observing which no execution of the power is to be valid: Cooper v. Martin, L. R. 3 Ch. 47, 57. Where there is a manifest discrepancy between the recital in a settlement and the operative part of the deed, the recital being clear as to what was intended, and the conveyance going beyond the recital, the conveyance will have to be restricted : Jenner v. Jenner, L. E. 1 Eq. 364. Digitized by Microsoft® • 458 -RBCTIFIOATION OP DEEDS. On a bill filed praying a declaration that a legal estate did not pass by a settle- ment, or if it did, that the settlement might be rectified, the Court, although of •opinion that the legal estate did not pass, had no jurisdiction to declare the legal right : Roohe v. Lord Kensington, supra ; Jenner v. Jenner, supra. In the latter case the decree was, " The Court being of opinion that the estate did not pass, dismiss the bill without costs :" Jenner v. Jenner, supra. , Parol evidence is admissible to make out a case for rectificataon of a settlement : Barrow v. Barrow, 18 Beav. 529. The erroneous belief of both husband and wife on their maniage that a par- ticular property was already settled, is no ground for rectifying a settlement so as to include it : S. 0. The Court will not rectify a voluntary deed, imless all parties consent : Brown V. Kennedy, 9 Jur. (^N.S.) 1163 ; 33 Beav. 133. The Court will not generally interfere to enforce a contract between parties for -the due execution of a voluntary deed : lAster v. Hodgson, h, B. 4 Eq^ 30. , A mistake made in a marriage settlement, and which upon the face of the deed was repugnant to the sense of it, may be rectified by petition. The order may cure the mistake without the settlement itself being rectified: De la Touche's Settlement, L. E. 10 Bq. 599 ; Order, p. 455 ; Be Soare's Trusts, 4 Gifl'. 254 ; Lewis V. SUlman, 3 H. L. 0. 607. A voluntary settlement made by an unmarried lady shortly after attaining twenty-one, although made bona fide, was set aside as being improvident in. its provisions for her benefit : Everitt v. Everitt, L. E. 10 Eq. 405 ; Order, p. 456. In a marriage settlement containing the recital of an agreement that the after- acquired property of the wife should be settled, the correspoiwiing operative part was a covenant by the husband alone, and the Court declined to introduce into the settlement a covenant to settle the after-acquired property : Taung y. Smith, ;L. E. 1 Eq. 180. A party to a deed is not estopped in equity from offering evidence to contradict a recital therein contrary to the fact, which has been introduced into the deed by mistake of fact and not through fraud or deception : Brooke v. Eaynes, L. R. 6 Eq. 25. Digitized by Microsoft® ( 459 ) CHAPTER XXVII. SALES BY THE COUET, Inquiry as to Incumbrances — Sale. Let the following inquiry and account be taken and made : 1. An inquiry whether any and what incumbrances affect the real [or, leasehold] estate of — the testator [or, intestate] situate, &o. [or, the lands, &c., comprised in the indenture dated, &c.], or any and what parts thereof, and the priorities of such incumbrances. 2. An account of what is 'due to such of the incumbrancers as shall consent to the sale hereinafter directed in respect of their incumbrances. Let the said real [or, leasehold] estate be sold with the approbation of the judge, free from the incumbrances (if any) of such of the incumbrancers as shall consent to the sale, and subject to the incumbrances of such of them as shall not consent. Let the money to arise by such sale be paid into Court to the credit of, &o.' And if such money, or any part thereof, shall arise from pro- perty sold with the consent of incumbrancers, the same is to be applied in the first place in payment of what shall appear due to such incum- brancers according to their priorities. [If order made on the hearing : Adjourn further consideration. — Liberty to apply.] Sale without Inquiry as to Incumbrances. Let the real [or, leasehold} estate of — the testator [or, intestate], situate, &c. [or, the lands, &e., comprised in the indenture dated, &c. or, mentioned in the chief clerk's certificate, &c.], be sold with the approbation of the judge. Let the money to arise by such sale be paid into Court to the credit of, &o., " Proceeds of Sale," &c.— Adjourn further consideration. — Liberty to apply. Peopeety, when sold. If after a suit has been instituted in relation to any real estate it appears to the Court that it will be necessary or expedient that such real estate, or any part thereof, should be sold for the purposes of the suit, the Court may direct the same to be sold at any time after the institution thereof; and such sale will he as valid to all intents and purposes as if directed to be made by a decree or decretal order on the hearing of such cause : 15 & 16 Vict. c. 86, s. 55. 9ufc the Court has no jurisdiction to sell real estate in cases where the jurisdic- tion did not previously exist : Mandeno v. Mandeno, Kay, App. 2; Svjan v. Digitized by Microsoft® 460 SALES BY THE COURT. Webb, 1 W. R. 90 ; Martin v. Eadlow, Ibid. 101 ; Prince v. Cooper, 16 Beav. 546 : Dan. 5th ed. 1149. As to sales before the hearing 'when made for the benefit of the estate, see Tulloch V. Tulloch, L. B. 3 Eq. 574. " In any suit for the foreclosure of the equity of redemption in any mortgaged property, the Court may, upon the request of the mortgagee, or of any subsequent incumbrancer, or of the mortgagor, or any person claiming under them respec- tively, direct a sale of such property, instead of a foreclosure of such equity of redemption, on such terms as the Court may think fit to direct ; and, if the Court so thinks fit, without previously determining the priorities of incumbrancers, or giving the usual or any time to redeem ; but if such request is made by any such subsequent incumbrancer, or by the mortgagor, or by any person claiming under them respectively, the Court is not to direct any such sale without the consent of the mortgagee, or the person claiming under him, unless the party making such request deposit in Court a reasonable sum of money, to be fixed by the Court, for the purpose of securing the performance of such terms as the Court may think fit to impose on the party making such request" : 15 & 16 Vict. c. 86, s. 48., As to sales under this Act, see Mortgages, ante, p. 364. Peopkety, how sold. Where in any case a decree or order is made, whether in Court or in Chambers, directing any property to be sold, unless otherwise ordered the same must be sold with the approbation of the judge to whose Court the cause or matter is attached, to the best purchaser that can be got for the same, to be allowed by the judge ; and all proper parties are to join in the sale and conveyance as he may direct : Cons. Ord. 35, rule 13. Unless a sale is specially ordered to be " out of Court " the order should direct that the property " be sold with the approbation of the judge " : Nash v. Worces- ter Improvement Commissioners, 1 Jur. (N.S.) 973. A sale directed by the Court is usually by public auction. But the sale may be by private contract, in which case proposals may be made as well before as after the property has been put up for sale by public auction (see Gen. Ord. July 16, 1851, rules 3 and 4 ; Cons. Ord. 35, rule 61) ; or the property may be offered for sale by public tender to the highest bidder : Barlow v. Osborne, 4 Jur. (N.S.) 367 ; 6 H. L. C. 556 ; S. C. Osborne v. Foreman, 8 De G. M. & G. 122. Paeticulaes of Sale. The particulars or conditions of sale by auction of any land shall state whether such land will be sold without reserve, or subject to a reserved price, or whether a right to bid is reserved ; if it is stated that such land will be sold without re- serve, or to that effect, then it shall not be lawful for the seller to employ any person to bid at such sale, or for the auctioneer to take knowingly any biddino' from any such person : 30 & 31 Vict. c. 48, s. 5. Conduct of Sale, The conduct of the sale is usually given to the pit, or the person having the conduct of the cause: Knott v. Cottee, 27 Beav. 33; Cobden v. Maynard 1 New Rep. 354 ; Dale v. Hamilton, 10 Hare, App. 7. Digitized by Microsoft® SALES BY THE COURT. 461 But the conduct may be given to any other party : Dixon v. Pyner, 7 Hare, 331 ; 14 Jur. 217 ; Bewitt v. Nanson, 7 W. R. 5 ; Knott v. Cotter, 27 Beav. 33. Where a sale is directed instead of foreclosure, the conduct may be given to the first mortgagee : Hewitt v. Nanson, 7 W. R. 5. Conveyancing Counsel. Before any estate or interest is put up for sale under a decree or order, an abstract of the title thereto is, with the approbation of the Court, to be laid before some conveyancing counsel, to be approved by the Court, for the opinion of such counsel thereon, to the intent that the Court may be the better enabled to give such directions as may be necessary respecting the conditions of sale of such estate or interest, and other matters connected with the sale thereof; and a time for the delivery of tl;ie abstract of title thereto, to the purchaser or his soli- citor, is to be specified in the conditions of sale; 15 & 16 Vict. c. 86, s. 56. Leave to bid. If in the particulars or conditions of sale by auction of any land it is stated that such land will be sold without reserve, or to that effect, it shall not be law- ful for the seller to employ any person to bid at such sale, or for the auctioneer to take knowingly any bidding from any such person : 30 & 31 Vict. c. 48, s. 5. And where any sale by auction of land is declared either in the particulars or conditions of such sale to be subject to a right for the seller to bid, it shall be lawful for the seller, or any one person on his behalf, to bid at such sale : 30 & 31 Vict. o. 48, s. 6. Any party to a suit who desires to bid at a sale directed by the Court should obtain an order to that effect : Elworthy v. Billing, 10 Sim. 98. And on any sale under the Partition Act, 1868, the Court may, if it thinks fit, allow any of the parties to bid upon such terms as to the Court seems reasonable : 31 & 32 Vict. c. 40, s. 6. But the sale will not necessarily be set aside because a person has bid without leave : Wilson v. Greenwood, 10 Sim. 101, h. ; Mworthy v. Billing, 10 Sim. 98. Leave to bid will not be given to the party conducting the sale t Sidney v. Ranger, 12 Sim. 118; Ex parte McGregor, 4 De G. & Sm. 603. Except under special circumstances an executor will not be allowed to bid: Oeldard v. Randall, 9 Jur. (N.S,) 1085. If any of the cestuis que trust object, a trustee of an estate, though also a mort- gagee, will not be allowed to bid at a sale by the Court : Tennant v. Trenchard, L. E.4Ch. 537. But if the estate is not sold at the sale, the trustee jnay be allowed to 'become the purchaser under proposals to the Court : S. C. But by consent, and the Court being of opinion that the parties interested would be benefited, leave to bid has been given to a trustee: Farmer v. Deem, 32 Beav. 327. As to the right of a solicitor, not being the solicitor to any of the parties to the cause, to bid: see Quest v. Smythe, L. R. 5 Oh. 551. Deposit. Where a deposit has been received at the sale, the certificate appoints a day for payment into Cour^, and if paid in by that day no order is necessary. If not Digitized by Microsoft® 462 SALES BY THE COURT. paid in by the appointed titne, an order for that purpose may be obtained ; or by consent, instead of a separate order a direction for such payment may be added to the purchaser's order for payment in of the balance of purchase-money : See Dan. 5th ed. 1162. A purchaser is entitled to interest on his deposit ; and if the residue of the pur- chase-money has being lying ready without interest being made by it, he is entitled to interest on that; and also to interest on money borrowed by him and kept idle to answer the purchase : Sug. V. & P. 14th ed. 237. Investigation of Title. In sales under a decree the purchaser must satisfy himself, not only that the title to the property is good, but also that the Court had jurisdiction to direct the sale : Dan. 5th ed. 1164, citing Calvert v. (Godfrey, 6 Beav. 97, 107 ; Sug. V. & P. 209 ; Lechmere v. BraHer, 2 Jao. & W. 287, 290. It is a suflSoient objection to a title that there is nothing to shew that the Court had jurisdiction to sell : Waters v. "Waters, 15 W. E. 191. Where there is a sale by the Court it is a necessary part of the title to set forth in the abstract so much of the pleadings as shews the jurisdiction to sell : S. C. But a purchaser cannot take an objection that the Court has miscarried in the exercise of its jurisdiction : Ibid. ; see also Lutwych v. Winford, 2 Brown's Eep. 248. The purchaser must also see that all the persons who are necessary to convey are before the Court ; for if he takes a title which a decree in an imperfect suit does not protect, he must abide the consequences : Dan. 5th ed. 1165 ; Ooldougli V. Sterum, 3 Bli. 181 ; Hamilton v. Houghton, 2 EH. 169 ; Oifford v. Hort, 1 Sch. & Lef. 386 ; Bennett v. Hamill, 2 Sch. & Lef. 566. Where there is jurisdiction to sell, and all persons interested are before the Court, mere irregularity does not invalidate the order directing a sale : Lloyd v-, Jdhnes, 9 Ves. 37 ; Bowen v. Evans, 1 J. & Lat. 178, 258 ; Bennett v. Hamill, 2 Sch. & Lef. 566, 579 ; Curtis v. Price, 12 Ves. 89 ; Calvert v. Godfrey, 6 Beav. 97; Beioley v. Carter, L. E. 4 Ch. 230, 23S. Tnquiey as to Title. Let an inquiry be made whetlier a good title can be made to tie hereditaments, &c,, comprised in Lot — , whereof A. B. has been certi- fied by the chief clerk's certificate dated, &c. [or, order dated, &c.j to be the purchaser, and being [part of] the property directed to be sold by the order dated, &o. Questions in dispute as to title may be decided at chambers, or adjourned into Court: .fegg v. Winder, 16 Jur. 1105. But in cases of importance the hearing of the questions in dispute is ordinarily postponed until a formal order for inquiry as to title has been obtained : Dan. 5th ed. 1166. The purchaser is entitled to his costs of the inquiry where the title is found to be good on grounds not appearing on the abstract : Fielder v. Higginson, 3 V. & B. 142. And where it is proved to be good on grounds appearing on the abstract he will not bo ordered to pay the vendor's costs of the inquiry (Camden v. Benson, 1 Keen, 671 ; Flower v. HaHop, 8 Beav. 200) unless his objections are frivolous and vexatious: Dan. 5th ed. 1166. Digitized by Microsoft® SALES BY THE COURT. 463 Uader the Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78), forty years are now substituted for sixty as the root of title in contracts for sale of land made after the 31st of December, 1874, but earlier title than forty years may be re- quired in cases similar to those in which earlier title than sixty years may now be required : see Specific Pbrfoemancb, ante, p. 427. Payment into Court. Common Order — Title accepted. Upon the application of — tlie person by the chief clerk's certificate ^ated, &c., certified to be the purchaser of the premises comprised in Lot — , part of the estate sold tinder the order dated, &c. ; and upon hearing the solicitors for the applicant and for, &c., and upon reading, &c., and the applicant by his solicitor declaring himself content with the title to the premises, it is ordered that the applicant A. B. do on or before the — day of — pay the sum of £ — , the purchase-money for the said premises, and the sum of £ — for interest thereon at the rate of £ — per cent, per annum from the — day of — to the — day of — into Court to the credit of, &c. And upon such payment being made. Let the applicant be let into possession of the premises,, and into the receipt of the rents and profits thereof from the — day of — . And all, proper parties are to give in and execute a proper, conveyance of the premises to the applicant, or as he shall direct, such conveyance to be settled by the judge. And at the request of — by his solicitors. Let the said sum of £ — be invested in Consolidated £3 per Cent. Annuities, and the dividends on such annuities, and all accumulations thereof, notwithstanding that the same may not amount to £100, be invested in like annuities. And the said sum of £ — is not to be paid out (except for the purchase of such annuities) and such: annuities are not to be sold, transferred, or otherwise disposed of without notice to the applicant. Separate Purchaser g — Schedule. Upon the application of A., B., and C, &c. the persons named in the first column of the schedule hereto, and by the chief clerk's certificate dated, &c., certified to be the purchasers of the hereditaments respect- ively comprised in the several lots set opposite their respective names in the second column of the said schedule, being [part of] the estate sold under the order dated, &o., and upon hearing the solicitors for, &c., and upon reading, &o., and the applicants by their solicitors re- spectively declaring themselves content with the title to the heredita- ments comprised in the lots so purchased by them. Let the applicants A., B., and C. respectively, on or before, &o., pay into Court to the credit, &c., the several sums of money set opposite their respective names in the third column of the said schedule, being the respective Digitized by Microsoft® 464 SALES BY THE COURT. purchase-moneys for the said several lots set opposite their respective names in the second column of the said schedule, and amounting in the whole to the sum of £ — . Let upon such payments respectively being made the applicants be respectively let into possession of the hereditaments comprised in the lot or lots purchased by them and into the receipt of the rents and profits thereof from, &c. [directions for corir veyance and investment]. And the said several sums are not to be paid ont [except for the purchase of such annuities], and such annuities are not to be spld, transferred, or otherwise disposed of without notice to the applicants by whom the said sums shall have been respectively paid in. (Schedule.) Private Contract confirmed. Let the contract dated, &c., entered into between, &c., for the sale of the hereditaments and premises comprised therein, being [part of] the property dit-ected to be sold by the order dated, &c., for the sum of £ — ■ upon the terms and conditions mentioned in the said contract, be carried into effect pursuant to the said order. If ordered : And A. [the purchaser] by his solicitor declaring himself content with the title to the said premises [directions for payment in, possession, conveyance, a/nd investment. See last form.] Payment into Court. Separate purchasers may join in one application for payment in of their purchase- moneys. If the conditions of sale do not provide that the purchaser may deduct property tax from the interest payable by him, the purchaser is not entitled to deduct it ; Hol/royd v. Wyatt, 1 De Q-. & Sm. 125 ; Dawson, v. Dawson, 11 Jur. 984. It is the rule of the Court, on a special case being made out, to receive from a purchaser his purchase-money without compelling him to accept the title : De Visme v. De Visme, 1 Mac. & G. 336, n. ; JRutley v. Gill, 3 De G. & Sm. 640 ; Morris v. Dull, 12 Jur. 4 ; Dempsey v. Dempsey, 1 De G. & Sm. 691. Where a property subject to a trust is sold conjointly with a property not sub- ject to a trust the sale must be made so that the proceeds to be attributed to the trust property can be settled upon a proper basis : Sede v. Oakes, 4 De G. J. & S. 505, 513. But mere technical objections of a purchaser on this ground are discouraged by the Court : Cavendish v. Cavendish, L. R. 10 Ch. 319. Possession. But a purchaser will not be allowed to take possession " without prejudice to objections to title," even upon payment of his purchase-money into Court : Button V. Mansel, 2 Beav. 260 ; Dempsey v. Dempsey, 1 De G. & Sm. 691 ; Morris v. Bull, 12 Jur. 4. Where no time is fixed in the conditions of sale at which the purchaser is to be Digitized by Microsoft® SALES BY THE COURT. 465 let into possession, the usual rule in the case of a fee simple estate is to give the profits from the quarter day preceding the time when the chief clerk's certificate of his being the purchaser Is confirmed, he paying his purchase-money into Court before the following quarter day : Dart, 4th ed. 1101 ; Anson v. Towgood^ 1 Jac & W. 637, per Lord Bldon. But this rule does not apply to the case of a colliery, which is treated as an article of trade, the profits accruing daily : Wren v. Eirton, 8 Ves. 502 ; Williams V. Attenborough, 1 Turn. 70. If a purchaser enters into possession of the estate without the sanction of the Court, he will be considered to have accepted the title, and he compelled to pay the money into Court at once : Dan. 5th ed. 1171 ; Wilding v. Andrews, 1 Coop. C. P. 380 ; Sug. V. & P. 14th ed. 105. The purchaser of a reversionary interest is usually ordered to pay interest on his purchase-money from the time of the purchase : Trefuds v. Lwd Clinton, 2 Sim. 359 ; Bailey v. Gollett, 18 Beav. 179 ; see also WalKs v. Sarel, 5 De Gr. & Sm. 429. Where a contract for purchase provides that possession shall be given by a certain day, the word " possession " must be understood to mean possession with a good title shewn : TUley v. Thomas, L. E. 3 Ch. 61 ; Boehm v. Wood, 1 Jac. & W. 420. Interest. If a time be fixed for the completion of the contract, and there be delay attributable to the purchaser, he must from that time -pay interest upon his purchase-money, although it has been lying idle and appropriated to the pur-^ chase : Dart, 4th ed. 576 ; see also Sug. V. & P. 14th ed. 628. If, on the other hand (a time being fixed for completion), there be delay at- tributable to the vendor, the purchaser, if he has been in actual possession or in receipt of the rents and profits, must pay interest, unless and until his money has been appropriated to the purchase and lying idle, and notice of such being the case has been given to the vendor : Dart, 4th ed. 676 ; see also Powell v, Martyr, 8 Ves. 146 ; Sug. V. & P. 14th ed. 628. A purchaser (not in possession) will be charged with interest from the time when a gopd title was shewn : Binhs v. Lord Roheby, 2 Sw. 222 ; FortMow v. Shirley, cited 2 Sw. 223 ; Jones v. Mudd, 4 Euss. 118 ; De Visme v. De Visme, 1 Mac. & G. 336. Where the conditions of sale provide for the payment of interest from a certain day, the purchaser does not relieve himself frOm payment by delay (not wilful) in com pleting on the part of the vendor : Esdaile v. Stephenson, 1 S. & S. 122 ; JoTies V. Mudd, 4 Euss. 118, 123 ; Sherwin v. Shahspear, 5 De G. M. & G. 517. But where a vendor fails to complete by the time appointed, the purchaser by appropriating money for the pm-pose of the purchase and giving notice to the vendor that it is lying idle, may free himself from payment of subsequent interest ; Dyson v. Hornby, 4 De G. & Sm. 481 ; see also De Visme v. De Visme, 1 Mac. & G. 336, 352 ; Williams v. Glenton, L. E. 1 Ch. 200. The purchaser of a life interest in the public funds is liable to interest from the time of the contract, and is entitled to a dividend becoming due on the following day : Anson v, Towgood, 1 Jac. & W. 637, per Lord Eldon. On the sale of an annuity the purchaser is considered as entitled to the annuity from the day on which the certificate of the result of sale becomes binding ; he 2 H Digitized by Microsoft® 466 SALES BY THE COUET. paying interest from that day : Dan. 5tli ed. 1171 ; Twigg v. Fifield, 13 Ves. 517 ; Visey v. Elwood, 3 D. & War. 74. In sales by the Court the purchaser is not considered as entitled to the benefit of his contract till the chief clerk's certificate of the result of sale has become binding: Dan. 5th ed. 1164; Sug. V. & P. 101. Conveyance. All proper parties are to join in the conveyance as the judge shall direct : see Cons. Ord. 35, rule 13. Where infants are or may be interested in the estate sold, the conveyance must be settled by the conveyancing counsel of the Court, and in that case the order, directs the conveyance to be " settled by the judge " : Calvert v. Godfrey, 2 Beav. 267 ; Be Eyre, 4 K. & J. 268, 269. And the rule is still more binding in a sale under the Settled Estates Act: Be Eyre, 4 K. & J. 268. Where land is to he sold in lots, and one conveyance has been settled by the conveyancing counsel, it may be adopted by the chief clerk for all the rest, in the absence of special circumstances : Be Eyre, 4 K. & J. 268." All persons having a legal interest in the property, whether parties to the suit or not, should concur in the conveyance ; but the purchaser is not entitled to the concurrence of any persons being parties to the suit, or otherwise bound by the proceedings therein, whose interests are merely equitable : Dan. 5th ed. 1172 ; Cok V. Sewell, 17 Sim. 40 ; Be Williams, 5 De G. & Sm. 515 ; Davidson's Conv. 248, n. And a vesting order of the equity of redemption in an infant's estate, against whom in a foreclosure suit a decree for sale had been made, has been refused, the mortgagee having the legal estate, and all the equities being bound by the decree for sale : Be Williams, 5 De Gr. & Sm. 515. The purchaser will not be compelled to accept an equitable title without the legal estate being got in, except, perhaps, in a case where a dry legal estate is outstanding in an infant : Freeland v. Pearson, L. R. 7 Eq. 246. Title Deeds. Let the several deeds, documents, and writings deposited witli the clerk of records and writs pursuant to the order dated, &c.,be delivered out to — , the purchaser of Lot — , or to W. — , his solicitor. If the deeds have been deposited in Court the solicitor conducting the sale usually applies that they be delivered to the purchaser. Dealing with Puechase-money. Where a purchaser has obtained his conveyance he ought not to appear on an application to deal with his purchase-money, and he will not be allowed, under ordinary circumstances, his costs of so doing : Barton v. Latour, 18 Beav. 526 ; bat see Bowley v. Adams, 16 Beav. 312 ; Strong v. Strmg, 4 Jur. (N.S.) 943 ; Nolle v. Stow, 30 Beav 272. Where the purchaser has not obtained his conveyance he will be allowed his costs of appearmg, although he appears for the purpose of consenting : Bamford v. Watts, 2 Beav. 201 ; Dan. 5th ed. 1177. Digitized by Microsoft® SALES BY THE COURT. 467 Where the purchaser has had his conveyance the Court requires evidence that notice has been given to him of the application, and proof that he has had his conveyance. Ee-SALB. Purchaser's Default. Let a., the person by the chief clerk's certificate [or, order] dated, ^fec., certified to he the purchaser of the (premises comprised in Lot — , part of the) estate sold under the order dated, &c., on or before the — day of — , pay into Court to the credit, &c., the sum of £ — , the purchase-money for the said premises. And in default of the said A. paying the said sum of £ — into Court by the time aforesaid, Let the said premises be re-sold with the approbation of the judge. And in case no purchaser shall be found for the same at such re-sale, or in case the same shall be sold for less than the sum of £ — , Let the said A. within eight days after service of the chief clerk's certificate of the result of such re-sale pay the said sum of £ — in case the said premises shall not be re-sold, or the diflference between the said £ — ■ and the amount for -which the said premises shall be so re-sold, in case the same shall be re-sold for less than the said £ — (the amount to be paid in to be certified) into Court to the credit, &o. Let the said A. pay to — their costs of the order dated &o. [original order to pay in] and of this order, and their costs and expenses of such re-sale (such costs to be taxed by the taxing master in case the parties difier). Contract rescinded — Vendor's Application. Upon motion, &c., and upon reading, &c., Let the contract dated, &c., in the pleadings mentioned be rescinded, and Let all further pro- ceedings in this cause be stayed, except as to any application which may be made to this Court to award and assess the damages which the Pits have sustained by reason or in consequence of the breach of the said contract. Deft to pay Pits their costs of application. Sweet v. Meredith, 4 Giff. 207. Discharge of Purchaser — Purchaser's Application. "Dpon the application of A., the person by the chief clerk's certificate certified to be [or, by the order dated, &c., allowed] the purchaser of the hereditaments comprised in Lot — (part of) the estate directed to be sold by the order dated, &o., and upon hearing, &c., and upon read- ing, &c., Let the said A. be discharged from being such purchaser. Let the costs, charges, and expenses of the said A. occasioned by his bidding for and being allowed the purchaser of the said hereditaments, and also his costs of the reference as to title, afid of all proceedings Digitized by Microsoft® 2 h 2 4:68 SALES BY THE COURT. conBequent thereon, and of and incident to this application, he taxed hy the taxing master. [Direction for payment of costs out of fund in Court.] Perhins v. Ede, 16 Beav. 268. Ee-sale. In default of payment by the purchaser of his purchase-money application may he made for a compulsory order for payment, or for an order that in default of payment a re-sale may he directed to make good the deficiency in price and pay the costs occasioned by his default : Oray v. Gray, 1 Beav. 199 ; Harding v. Harding, 4 My. & Or. 514 ; 3 Jur. 1164. In default of payment of the purchase-money application may be made by the vendor to rescind the contract : Froligno v. Martin, 16 Beav. 586 ; Sweet v. Mere- dith, 4 Giff. 207 ; 9 Jur. (N.S.) 569. Where either of the parties to the contract has procured the other to enter into it by means of a misrepresentation or concealment which a Court of Equity con- siders to be actually fraudulent, the contract may be rescinded : Dart, V. & P. 4th ed. 95 ; citing Turner v. Sarvey, Jac. 169 ; Edwards v. McLeay, Coop. 308 ; Berry v. Armistead, 2 Keen, 221 ; Lovdl v. Eichs, 2 Y. & C. 46 ; Stain- lank V. Fernley, 9 Sim. 556 ; Attwood v. Small, 6 CI. & P. 232 ; Gibson v. B'Este, 2 Y. & C. 542 ; Wilde v. Gibson, 1 H. L. C. 605 ; Eeynell v. Sprye, 8 Hare, 222 ; 1 De a. M. & G-. 660 ; Pulsford v. Richards, 17 Beav. 95 ; Jen- nings V. Brovghton, 17 Beav. 234 ; 5 De G. M. & G. 126, affirmed 23 L. J. 999 ; Bartlett v. Salmon, 6 De G. M. & G. 33 ; 1 Jur. (N.S.) 277 ; Conybearev. New Brunswick By. Co., 1 De G. P. & J. 578 ; New Brunswick By. Co. v. Mugge- ridge, 1 Dr. & Sm. 363. So, too, where misrepresentations have been made upon a contract between an individual and a public company : Central By. Co. of Venezuela v. Kisch, L. R. 2 H. L. 99 ; Be Beese Biver Mining Co., L. R. 2 Oh. 604 ; Boss v. Estates Invest- ment Co., L. R. 3 Eq. 122 ; S. C. 3 Oh. 682. And gross or wilful delay by either party will entitle the other to avoid the contract : Lennon v. Trapper, 2 Sch. & Lef. 682 ; Parkin v. Tliorold, 16 Beav. 59 ; Bolerts v. Berry, 3 De G. M. & G. 284, 289 ; Tilley v. Thomas, L. R. 3 Oh. 61. The vendor after conveyance has no remedy if the property prove to be, as respects either quantity or value, more valuable than was imagined : Dart, 4th ed. 679 ; Okill v. Whittaker, 2 Ph. 338 ; 1 De G. & Sm. 83 ; Maiden v. Merick, 2 Atk. 8 ; Marshall v. Oollett, 1 Y. & C. 232 ; Sturge v. Starr, 2 My. & K. 195. But if the mistake has been mutual relief will be given by the Court, even after conveyance : Beaumont v. Bramley, T. & R. 41 ; Marquess v. Marchioness of Exeter, 3 My. & Or. 321 ; Mortimer v. Shortall, 2 D. & W. 363; Harris v. Pepperell, L. R. 5 Eq. 1 ; Earl of Bradford v. Earl of Bomney, 30 Beav. 431. Mere inadequacy ot consideration, unless shewn to be the result of fraud, sur- prise, or misrepresentation, and unless a fiduciary relation exists between the parties, is not ground for relief; Sug. V. & P. 14th ed. 244 ; Dart, V. & P. 684 ; Peckett v. Loggon, 14 Ves. 215 ; Beynell v. Sprye, 8 Hare, 222 ; 1 De G. M. & G. 660 ; Denton v. Donner, 23 Beav. 285. The non-emplpyment of ^ solicitor on the vendor's behalf does not make a sale impeachable for undervalue, if the vendor be fully aware of the nature of the transaction : Harrison v. Guest, 6 De G. M. & G. 424 ; 8 H. L. 0. 481. Digitized by Microsoft® SALES BY THE COUET. 469 But the purchase from an illiterate sick man shortly before his death, at an undervalue and without proper protection, was set aside at the instance of his heir-at-law : Glwrh v. Malpas, 31 Beav. 80 ; 8 Jur. (N.S.) 734. Even after conveyance, where the vendor relied upon information furnished to him by the purchaser, and materially incorrect, relief has been given in equity : Oarpmael v. Powis, .11 Jur. 158 ; 10 Beav. 36. And as a general rule, where it is clearly shewn that through mutual mistake, or by reason of fraud, the conveyance fails to express the intention of the parties, and what that intention really was, a Court of Equity will rectify it : Dart, 4th ed. 695 ; Brougliam v. Squire, 1 Drew. 151 ; Marquis of Breadalhane v. Marquis of aiMTidos, 2 My. & Or. 711. No purchase made lonafide, and without fraud or unfair dealing, of any rever- sionary interests in real or personal estate shall in future be opened or set aside merely on the ground of undervalue : 31 Vict. c. 4. , If the title prove on inquiry to be bad, the purchaser is entitled to be dis- charged from his purchase, and to be paid his costs, charges, and expenses pro- perly incurred, occasioned by his bidding for and being allowed the purchaser of the property, and also the costs of the reference as to title, and of all proceedings consequent thereon : Perkins v. Ede, 16 Beav. 268 ; see also Reynolds v. Blake, 2 S. & S. 117 ; Att.-Gen. v. Corporation of Newark, 8 Sim. 71 ; Mullins v. Eussey, L. E. 1 Eq. 488. Where the purchaser makes good his objections, and there is no fund in Court, the pit will be ordered to pay them without prejudice to the question how they are ultimately to be borne : Smith v. Nelson, 2 S. & S. 557 ; see also Berry v. Johnson, 2 Y. & C. Ex. 564; A purchaser cannot in general determine his contract without due previous notice : Taylor v. Brown, '2 Beav. 180 ; Wood v. Machin, 5 Hare, 158 ; Quest V. Bamfray, 5 Ves. 818 ; see also Nott v. Biccard, 22 Beav. 307. And time, although of the essence of the contract by original agreement, or made inoperative by equity by subsequent notice, may be enlarged or waived by subsequent agreement, or by conduct of the parties amounting to waiver : Dart, 4th ed. 390 ; Cutis v. Codley, 13 Sim. 206 ; Nohes v. Lord Kilmorey, 1 De G. & Sm. 444. Any alteration of the subject-matter of the contract by the vendor in any par- ticular which does not admit of compensation or reinstatement wiE entitle the purchaser to abandon the contract: Dart, 4th ed. 406; Magennis v. Fallon, 2 Moll. 588. And alterations by a purchaser may deprive him of his right to rescind the contract : Sug. V. & P. 14th ed. 254, 255 ; Dart, 4th ed. 405. If the purchaser has a right to rescind the contract, he may bring an action to recover back his purchase-money : Sug. V. & P. 14th ed. 237. And where, pending the investigation of a point upon title, the vendor and his solicitor induced the purchaser to pay the purchase-money, and fraud was estab- lished, the contract was rescinded, and the vendor ordered to repay the purchase- money with interest, costs, charges, and expenses, and costs of suit : Edwards v. McLeay, Coop. Eep. 318 ; Lovell v. Hicks, 2 Y. & C. 51. But there are few cases in which a purchaser can get relief from his contract on the ground of the purchase-money being exorbitant : Sug. V. & P. 14th ed. 245, 273. Nor does a vendor easily obtain relief on the ground of inadequate consideration : Ibid. 245. Digitized by Microsoft® 470 SALES BY THE COUET. The practice of opening the biddings on any sale by auction of land under or by virtue of any order, &c., shall from and after the time appointed for the com- mencement of this Act, be discontinued, " and the highest hand fide bidder at such sale, provided he shall have bid a sum equal to or higher than the reserved price (if any), shall be declared and allowed the purchaser, unless the Court or judge shall, on the ground of fraud, or improper conduct in the management of the sale, upon the application of any person interested in the land (such applica- tion to be made to the Court or judge before the chief clerk's certificate of the result of the sale shall have become binding), either open the biddings, or dis- charge him from being the purchaser, and order the land to be resold upon such terms as to costs or otherwise as the Court or judge shall think fit " : 30 & 31 Vict. c. 48, s. 7. Where the purchaser under a sale by the Court stands in such a fiduciary position as to be disqualified from purchasing, the holdings may be opened or the purchase set aside : Qv^st v. Smythe, L. R. 5 Ch. 551, 556. To establish a case for opening the biddings, or for a re-sale, on the ground of improper conduct in the management, there must have been such impropriety as seriously to depreciate the property : Brown v. Oakshot, W. N. (1869) 207. Substituted Purchaser. Upon the application of, &c., Let B. [substituted purchaser] he at liberty on or hefore the — day of — to pay into Court to the credit of, &c., the sum of £ — . And upon such payment being made. Let the said B. be substituted as the purchaser of the premises, &c., in place of A., and be let into possession, &c. [Directions for conveyance, investment, &c.] If after becoming the bidder for an estate, the purchaser is desirous of being discharged from his contract, and of substituting another person in his stead, the Court will make an order to that effect on the application by summons of the original and sub-purchasers, or of either of them, with the consent of the other : Dan. 5th ed. 1181. The Court will not make the order against the desire of the original purchaser and vendors : Be Goodwin, 8 Jur. (N.S.) 1173 ; 4 Giff. 90. And the order is conditional upon the purchase-money being paid : Bigby v. Macnamara, 6 Ves. 515. The Court will not make the order without an affidavit that there is no under bargain : Bighy v. MacnaTnara, 6 Ves. 515 ; Vale v. Davenport, 6 Ves. 614. After the certificate of the chief clerk has become binding, the purchaser may re-sell at an advanced price for his own profit : Dewell v. Tu/nell, 1 K. & J. 324. If a purchaser re-sells behind the back of the Court before the certificate is binding, the second purchaser is considered a substituted purchaser, and must pay the additional price into Court for the benefit of the parties to the suit : Dan. 5th ed. 1182 ; Sug. V. & P. 100; Dart. 1087. Where a purchaser under a sale by the Court, whose purchase had been con- firmed, agreed to re-^ell to D., and died leaving an heir who was abroad, D. was (by consent) substituted as purchaser : Pearce v. Pearce, 7 Sim. 138. Digitized by Microsoft® SALES BY THE COURT. 471 Sales of Goods, Merchandise, &c. " It shall be lawful for the Court or a judge, upon the application of any party to any action, to make any order for the sale, by any person or persons named in such order, and in such manner, and upon such terms as to the Court or judge may seem desirable, of any goods, wares, or merchandise which may be of a perishable nature, or likely to injure from keeping, or which for any other just and sufficient reason it may be desirable to have sold at once : " Jud. Rules, Order 52, rule 2. The application may be made by any party. If the application be by the plaintiff it may be made after notice to the defendant at any time after the issue of the writ of summons, and if it be by any other party, then on notice to the plaintiff, and at any time after appearance by the party making the application : Jud. Bules, Order 52, rule 4. Digitized by Microsoft® ( 472 CHAPTER XXVIII. PAETITION. Inquiries — Parties — Shares. Let an inquiry be made who are the parties respectively entitled to the lands [messuages] and premises in the pleadings mentioned, and for what estates or interests respectively, and in what shares and pro- portions, and whether they are respectively parties to this action. — Adjourn further consideration. — Liberty to apply. Inquiries — Partition in Chambers, Let an inquiry be made who are the parties respectively entitled to the lands [messuages] and premises in the pleadings mentioned, and for what estates or interests respectively, and in what shares and pro- portions, and whether they are respectively parties to this action. And if it shall be certified that all the parties entitled to or interested in the said lands [messuages] and premises are parties to this cause, Let a partition be made of the same into as many parts as the same shall be certifi.ed to be divisible into. And Let such shares be allotted to the parties to whom the same shall be certified to belong in such proportions and for such estates and interests as shall be certified. And such parties are to hold and enjoy their respective shares and proportions of the said hereditaments in severalty according to such allotments, and to their respective estates and interests therein. Let the Pits and Defts execute mutual conveyances to each other according to their respective interests therein, such conveyances to be settled by the judge [If no infants or married women interested, add : in case the parties differ]. Let all deeds and writings relating to the said heredi- taments in the custody or power of any of the parties be produced upon oath before the judge as he shall direct. And Let such parts thereof as relate to the premises which shall be allotted to each of the said parties be delivered to them respectively. [If infant Pit or Deft : Let such deeds and writings relating to the said hereditaments in the custody or power of any of the parties as exclusively relate to such part of the said hereditaments as shall by such partition be allotted to the infant Pit [or, Deft] be deposited with the clerk of records and writs in safe custody on behalf of the infant Pit [or, infant Deft] until Digitized by Microsoft® PA-BTITION. 473 further order.] If parties jointly interested : Let such deeds and writings as relate to any part of the said hereditaments which shall be allotted to one of the said parties jointly with other parts allotted to the other or others of them, be also deposited with the clerk of records and writs until further order.] — Liberty to apply. Partition in Chambers — Infant. Declare that each of the Pits and Defts is entitled to an equal undivided — part of the lands [messuages] and premises in the plead- ings mentioned. And Let the said hereditaments be partitioned, divided, and allotted accordingly. Let the Pits and Defts hold and enjoy their respective shares in severalty according to such allotment, and execute mutual conveyances to each other according to their re- spective interests therein, such conveyances to be settled, &c. [If Pit or Deft is an infant : Declare that the Pit H. or Deft B. is a trustee within the Trustee Act, 1 850, of his undivided — part of the said lands [messuages] and premises. Let — the guardian of the said infant Pit \_or, Deft] execute mutual conveyances to each other, to be settled by the judge, &c.] — Directions for delivery of deeds, &c. Partition — General Declaration of Trust — Trustee appointed. Declare that (except as regards their own respective allotments) the several persons parties to this suit having any undivided interest in the estate, &c., are respectively trustees within the meaning of the Trustee Acts as regards the premises in their undivided state for the several parties to whom the same have respectively so been allotted in severalty. And it being expedient to appoint one new trustee in their place for the purpose of assigning the said allotted premises in severalty to the respective parties entitled to the same, and it being inexpedient or impracticable to appoint such new trustee without the assistance of this Court, Let A. A. G. be appointed sole trustee of the said leasehold hereditaments in the place of the several parties so hereby declared to be trustees thereof. And Let the said heredita- ments so held in trust vest in him for all the residue of the term. Let A. A. G. assign the said divided premises to the said parties to whom the same have so respectively been allotted as follows [specify- ing the particulars']. Shepherd v. Churchill, 3 Beav. 23. Partition without Reference — Plan. Declare that each of the Pits is entitled to an equal undivided sixth part of the lands and hereditaments situate, &c., and that the infant Deft J. 0. is entitled to the two remaining undivided sixths of the said hereditaments as to one of such sixths in his own right, and Digitized by Microsoft® 474 PARTITION. as to the remaining sixth as heir-at-law of C. deceased. Declare that it will be for the benefit of the infant Deft J. C. that the said heredi- taments should be partitioned, divided, and allotted according to the allotment delineated and appearing in and by the map or ground plan thereof marked A., verified by the affidavit of — . Let the said heredi- taments be partitioned, divided, and allotted accordingly. Let the Pits and the said Deft hold and enjoy their respective shares in severalty according to such allotment. Declare that the infant Deft is to be deemed a trustee within the meaning of the Trustee Acts of his share in the premises in their undivided state for the several parties to whom the same had been allotted in severalty. Let — , the guardian of the infant Deft and the Pits, execute mutual convey- ances, &c., to be settled by the judge. — Directions as to title-deeds. — Liberty to apply. Gollinson v. Collinson, 1856, A. 1085 ; Seton, 572. Partition after trial of disputed Title — Payment of Bent by Defts to Pits. Declare that the Pit W. P. Gr., as tenant for life in possession, and the Pit T. C. G-., as tenant for life in remainder, and the Pit W, E. H., in right of his wife the Pit C. H. as tenant in tail in remainder, are entitled to one moiety, and the Deft R. W. and C. M. his wife are entitled to the other moiety of a certain field situate, &c., in the pleadings mentioned. Let, having regard to the above declaration, a partition be made of the said fi.eld by the judge in chambers, and any of the parties are to be at liberty to lay proposals before him as to such partition. Let the said field be divided into moieties, and Let one moiety' thereof be allotted as the share of the said Defts. Let the said Pits and Defts hold and enjoy their respective moieties in severalty Recording to such allotments, and execute mutual conveyances to each other according to their respective interests therein, such con- veyances to be settled by the judge. Let the Defts E. W. and C. M. his wife pay to the Pit W. P. G. the sum of £22, being his amount of the rent at the rate of £2 per annum from 25th March, 1861, paid for the Pit's moiety of the said field to the tenant of suc!^ moiety, and received by the said Defts E. W. and C. M. his wife. Let the Deft C. (the mortgagee) be at liberty to add his costs of this cause (to be taxed by the taxing master as between solicitor and client in case the parties differ) to his security.— Liberty to apply. Oiffard v. Williams (V.-C. W.), March 17, 1872. Advowson — Alternate Presentations. Declaee that the Pit is entitled to have a partition of the advow- son of the vicarage of the parish church of W., in the county of Kent, into moieties, to present by alternate turns. Let a partition be Digitized by Microsoft® PARTITION. 475 accordingly made thereof into moieties between the Pit and the Deft S. Let the Pit and the Deft S. execute mutual conveyances to each other so that the Pit may hold one moiety of the said advowson to him and his heirs, and that the Deft S. may hold the other moiety thereof to her and her heirs as tenants in common in severalty re- spectively. And in such conveyance Let a clause be inserted that the Pit and his heirs and the Deft S. and her heirs shall present to the said vicarage in alternate turns. Let the conveyances be settled by the judge in case the parties differ. And Let the charges of the con- veyances be borne equally between the Pit and the Deft S. And it appearing that J. S., under whom the Deft S. claims, hath since the agreement for a partition of the premises presented upon the last avoidance of the said vicarage. Let the Pit present on the next avoidance. Sodicoate v. Steers, 1 Dick. 69. Partition hy Commission. Let a commission issue directed to certain commissioners to be therein named to divide the estate in question into moieties. Let one moiety thereof be allotted as the share of the Pits, and the other moiety thereof as the share of the Defts. Let the Pits and Defts hold and enjoy their respective moieties in severalty according to such allot- ments, and execute mutual conveyances to each other of such respec- tive moieties according to their respective interests therein, such conveyances to be settled by the judge. [If no infants or married women, add : in case the parties differ about the same]. Let all deeds and writings relating to the said estate in the custody or power of any of the parties be produced before the commissioners upon oath as they shall require. Let the commissioners be at liberty to examine witnesses upon oath, and take the depositions in writing, and return the same into the commission. — Liberty to apply. Seton, 571. Partition hy Commission — Manor and Advowson — Infant — Trustee out of Jurisdiction — Title-deeds. Directions for commission to divide the manor and advowson of the rectory of H. in the Pit's bill mentioned, and the hereditaments and premises thereto belonging, into — shares. Let — shares be allotted to the Defts J. T. and T. J. respectively, according to their respective estates and interest therein, but subject to and charged with one equal third part of the mortgage debt or sum of £— and the interest thereon, secured by the indenture dated, &c., in the pleadings mentioned. — Like directions as to two other shares subject to the other thirds of the mortgage debt. Let — shares be allotted to the Defts H. J. and E. P., the surviving trustees of the indenture dated, &c., upon the Digitized by Microsoft® ^76 PARTITION. trusts of the said indenture.— Like directions as to the other shares, — Pits and Defts to hold and enjoy their respective allotments in sever- alty. Let the Pits and Defts interested in the said respective shares other than the Deft T. J. execute mutual conveyances to each other and to the said infant of such respective shares, according to their re- spective interests therein. — Declaration that the infant and. party out of the jurisdiction are trustees within the Act, and one of the parties appointed to convey. — Directions to produce documents and for exam- ination of witnesses. — And after the commissioners shall have made their certificate, and the same shall have been returned and confirmed. Let such of the said deeds and writings as shall relate exclusively to any particular allotment be delivered to the owner or owners of such allotment. Let all deeds and writings relating to two or more allot- ments be delivered to the owner or owners of that allotment or that portion of the allotment affected by such deeds and writings which shall be of the greatest value. Let such owner or owners enter into covenants with the owner or owners of the other allotment or allot- ments for the production and delive];y of copies, abstracts, or extracts, and the safe keeping of such deeds and writings. Let such covenants be settled by the judge in case the parties differ. Let the Pits and Defts respectively, other than the Deft H. J. the trustee, bear their own costs prioi'to the issuing of the said commission. Let the costs of issuing, executing, and confirming the commission be borne by the several parties rateably and in proportion to the value of their respec- tive shares. Let the costs properly incurred of the Deft H. J., the trustee, be paid by the Defts respectively and rateably, and in propor- tion to the value of their said several shares, such costs to be taxed in case the parties differ. — Liberty to apply. Broohe v. Brooke (V.-C. W.), July 8, 1854 ; Seton, 586. Partition hy Commission — Metes and Bounds — Special Provision as to Title-deeds. LiiT the Deft convey the legal estate vested in him of and in the one-seventh of the legal estate in the hereditaments and premises situate, &o., to the Pit, his heirs and assigns, such conveyance to be settled, &c. Let a commission of partition issue directed to certain commissioners to be therein named to divide the said hereditaments and premises in question into seven equal parts, and to make such partition in metes and bounds when they shall see occasion. Let six- sevenths thereof be allotted as the share of the Pit, and one-seventh as the share of the Deft E., who are to hold and enjoy the respective shares and proportions of the said estates in severalty according to such allotment, and execute mutual conveyances of such respective shares or proportions according to their respective interests therein. Digitized by Microsoft® PARTITION. 477 and as they may respectively direct, such. conveyaHce to be settled, &c. Let the Deft E. be appointed to convey the said hereditaments in the place and stead of E. H. W., and Let the said Deft E. convey the same accordingly. Let all deeds and writings in the custody or power of any of the parties be produced before the commissioners upon oath as they shall require, and the said commissioners are to be at liberty to examine witnesses upon oath, and take the depositions in writing and return the same with the commissioners' report. And after making such partition and division, Let such of the title-deeds and writings as shall appear to relate solely to any distinct part of the said heredita- ments and premises which shall be allotted to either party be deli- vered to such party. Let the Pit be at liberty to retain the rest of such title-deeds and writings, he undertaking to abide by any order which this Court may make as to the same. And either party is to be at liberty to apply to this Cotirt for directaons concerning the same. Let the charges of such partition be borne rateably and in proportion to the estates so to be allotted to them. — Liberty to apply. Jones v. Bohinson, 3 De G. M. & G. 910. Partition hy Commission — Deposit of Deeds — Infant. Let a commission of partition issue, &o. Usual directions for allotment and conveyance, and for production of deeds and examination of witnesses. And after such partition shall have been so made and conveyances executed. Let such deeds, writings, surveys, and muni- ments, or other evidences of title relating to the said messuages, &c., in the custody or power of any of the parties as exclusively relate to such part of the said real estate as shall by such partition be allotted to either of the Pits alone, be allotted to them respectively. Let such deeds and writings, surveys and muniments, or other evidences of title relating to the said messuages, &c., in the custody or power of any of the parties as exclusively relate to such part of the said real estate as shall by such partition be allotted to the infant Pit be deposited with the clerk of records and writs for safe custody on behalf of the infant Pit until further order. Let such deeds and' writings, surveys and muniments, or other evidences of title (if any) as relate to any parts of the said real estates that shall be allotted to one of the said parties jointly with other parts allotted to the other or others of them, be also deposited with the clerk of records and writs until further order. — Liberty to apply. Langton v. Burton, 1853, B. 851 ; Seton, 581. (. Advowson — Presentation — Sale. J- Dbclaee that the right of presentation to the rectory of G. men- tioned in the will of J. the testator in the petition n amed, upon the avoid- Digitized by Microsoft® 478 PARTITION. anoe thereof by the death of the testator's son W., the last inciimhent thereof, passed by the will of the testator J., and that such right of presentation is now vested in the Deft J. L. (the surviving executor of the win and devisee of the trust estates of the Deft L., deceased, who was the surviving trustee of the will of the said testator J.), for the benefit of the following seven persons, that is to say, &o. And such persons not agreeing upon the clerk to be nominated for presentation to the said living by the said J. L., Let such seven persons, or their respective solicitors on their behalf, draw lots before the judge which of them shall nominate a clerk to be presented to the said living. Let the said J. L. present to the said living upon the said avoidance such clerk as shall be nominated by the person who shall be certified by the chief clerk as the person entitled to nominate such clerk. Let, as soon as may be after such presentation shall have been made, the advowson of the said rectory of C, and the testator's messuages, lands, and hereditaments situate in the parish of C. in the county of S., be sold with the approbation of the judge. — Money to be paid into Court. — Directions as to costs. — Further consideration of peti- tion adjourned. Johnstone v. Baber, 6 De Gr. M. & G. 439 ; Seton, 587- Partition and Sale — Title of Parties proved — Trustee Act, 1850. Declare that each of the Pits are entitled to a sixth, &c. And the Pits and Deft E. C. by their counsel respectively desiring that a par- tition should be made of such parts only of the said hereditaments as are comprised in the first schedule to the affidavit of J. L., and that the hereditaments comprised in the second and third schedules to the said affidavit, being the remaining parts of the said copyhold heredita- ments, shall be sold, and the Court being of opinion that a sale of the said hereditaments comprised in the said second and third schedules and a distribution of the proceeds will be more beneficial to the infant Deft than a partition of the said premises. Let a partition of the hereditaments comprised in the said first schedule be made by the judge in Chambers. — Directions for allotment of the respective sixths. — Let the Pits and Defts respectively hold and enjoy their respective shares in severalty according to such allotments. Declare that infant Deft B. is a trustee within the meaning of the Trustee Act, 1850. Appoint J. B. to surrender and assure, &c. — Mutual surrenders and as- surances to be executed. — Let the hereditaments comprised in the second and third schedules be sold with the approbation of the judge, and the money to arise by sale paid into Court to the credit of the cause. Declare that upon such payment the infant Deft will be a trustee of her undivided sixth of the hereditaments comprised in the said second and third schedules within the meaning of the Trustee Act, 1850. Let J. B. be appointed to surrender and assure the same Digitized by Microsoft® PARTITION. 479 on her behalf. — Liberty to apply in chambers for payment of costs of suit out of proceeds of sale, and for distribution of the said proceeds, and generally. Boebuch v. Chadehet, L. E. 8 Eq. 127. Partition. Partition at law has operated hy the judgment of a Court of law and deliver- ing up possession in pursuance of it. Partition in equity has proceeded upon conveyance to be executed by the parties ; and if the parties he not competent to execute the conveyances the partition cannot be effectually had : Lord Red. p. 120 ; Whaley v. Dawson, 2 Sch. & Lef. 371, 372. In cases of infancy the infant is declared a trustee within the Trustee Act, 1850 (see sects. 7 and 30) of such portions as are awarded to the other parties: Bmura v. Wright, 4 De G. & Sm. 265. Where there are no suspicious circumstances, hut the title was clear at law, the remedy for a partition in equity was as much a matter of right as at law : Story, 10th ed. vol. i. 648. A suit for partition camiot he maintained by a person interested as a joint tenant or tenant in common in reversion or remainder : Evans v. Bagshaw, L. B. 8 Eq. 469 ; affirmed L. R. 5 Ch. 340. Nor where the title being purely legal the main purpose of the suit was not partition but to prove the legal title : Bolton v. Bolton,' L. B. 7 Eq. 298, n. ; Slade V. Barlow, L. B. 7 Eq. 296 ; Cfiffard v. Williams, L. R. 5 Ch. 546 ; cited in Dan. 5th ed. 1022. If a pit has no title to maintain his suit at the time when the bill was filed he cannot carry on the suit by subsequently acquiring a title and amending the bill : Evans v. Bagshaw, L. R. 5 Ch. 340. The partition is binding only upon those parties who are before the Court : Agar v. Fairfax, 17 Ves. 544. But the decree is binding upon remaindermen not in esse, as they are considered to be represented by the tenant for life : Oaskdl v. Oaskell, 6 Sim. 643 ; Brooks V. HeHford, 2 P. Wms. 518. The Court will in some cases direct a reference whether it will be for the benefit of the remainderman that the partition should be carried into execution, and. whether with any variations : Gashell v. Gaskell, 6 Sim. 643. And where the different interests in a property have been dealt with, the par- tition will be made having regard to those dealings : Storey v. Johnson, 1 Y. & C. 538; S. C. 2 T. & C. 586. Where the defts in a partition suit desired that there should be no partition of their shares, the partition was confined to the aliquot share of the pit : Hohson v. Sherwood, 4 Beav. 184. It is not necessary that every, part of the estate to be partitioned be divided, provided each person has his share of the whole : Earl of Clarendon v. HorTlby, 1 P. Wms. 446 ; Sug. 918. In the case of an advowson, the practice has been not to issue a commission^ hut to make the partition by the decree : Bodicote v. Steers, 1 Dick. 69 ; Order, p. ^74:; Johnstone v. Baher, 22 Beav. 562; 6 De G. M. & G. 439; Order, p. 477. And where an advowson had teen devised to trustees in trust for sale upon the death of the incumbent, and to divide the proceeds between seven persons as tenants in common, the tenants in common not agreeing in their choice the pre- sentation was ordered to be by lot : Johnstone v. Baler, supra. Digitized by Microsoft® 480 PARTITION. Peconiary Compensation. Courts of Equity may decree a pecuniary compeusation to one of the parties for equality of partition : Calmady v. Calmady, 2 Ves. Jun. 570 ; Earl of Clarendon V. Eornby, 1 P. Wms. 446, 447. But commissioners appointed under a decree cannot award a sum to be paid for owelty of partition : Mole v. Mansfield, 15 Sim. 41. Where one tenant in common has been in the exclusive perception of the rents and profits on a bill for partition and account, an account will be decreed : Larimer V. Larimer, 5 Madd. 363 ; Storey v. Johnson, 1 Y. & C, 538 ; S. C. 2 Y. & C. 586. So where one tenant in common supposing himself to be legally entitled to the whole has erected valuable buildings, he will be entitled either to an equitable partition or to compensation : Story, 10th ed. vol. i. p. 649. Commission. It has been said that where the partition is to be by commission, the commission ought not to be embodied in the decree on the hearing, but should be postponed till after the reference and until further consideration; Ode v. Sewell, 15 Sim. 284. But this is not the present practice, and where the title of the parties is proved the Court will at the original hearing order a commission of partition to issue without previous inquiry. The Court will if necessary direct an inquiry to ascertain the shares in which the parties are entitled, and by the same order direct a commission to issue after that inquiry has been made: Agar v. Fairfax, 17 Ves. 533, 553. But the inquiries are made at chambers, not by the commissioners, and the decree adjourns further consideration: S. C. Where commissioners of partition are directed to divide lands equally between the parties entitled, their duty after dividing the lands into proportions of equal value in the market is to assign them to those parties respectively to whom they would be of most value with reference to their respective situations in relation to the property before the partition took place : Storey v. Johnson, 1 Y. & C. (Ex.) 538, n. The names of the commissioners should be agreed upon between the parties. Not less than four names will be inserted in the commission, unless the Court otherwise directs : Dan. 4th ed. 1073 ; Cons. Ord. 3, r. 1 ; Watson v. Duke of Northumberland, 11 Ves. 153, 163; Howard v. Barnwell, 2 N. E. 414. If the witnesses are to be examined upon interrogatories, a direction to that eBFect must be inserted in the decree and commission : Braithwaite's Pr. 234. Usually also the decree directs that all deeds and writings relating to the estate and in the custody of any of the parties be produced upon oath as the commis- sioners shall require. When the commission has been returned and filed in the Report Ofiioe, an order nisi, and afterwards an order absolute confirming the certificate, are obtained upon motion. Where gross errors in judgment have been committed by the commissioners, the Court will set aside the adjudication : Storey v. Johnson, 1 Y. & C. (Ex.) 538. Injunction after Decree in Partition Suit. After a decree in a partition suit, the Court has jurisdiction to grant an injunc- tion to restrain a deft from destroying or wasting the property : Bailey v. ffobson, L. R. 5 Ch. 180. Digitized by Microsoft® PARTITION. 481 But where after decree for sale in a partition suit a deft, who was in occupation of the property, hut bound by no contract of tenancy, proposed to sell crops off the land, a motion for an injunction was refused : S. C. Costs. " In a suit for partition the Court may make such order as it thinks just re- specting the costs up to the time of hearing " : 31 & 32 Vict. c. 40, s. 10. Usually no costs are given up to the hearing ; nor is it usual to direct that the costs of making out the title be borne in proportion to the respective interests. But the costs of issuing, executing, and confirming a commission of partition, or of a partition by the Court, or of a sale in Ueu of partition, are ordered to be borne by the parties in proportion to the value of their respective interests : Agar v. Fairfax, 17 Ves. 533, 557, per Lord Bldon ; Landell v. Baker, L. R. 6 Bq. 268. But the costs of suit up to the hearing, as well as the subsequent costs, have been ordered to be borne by the several parties in proportion to their interests, as declared by the decree : Cannon v. Johnson, L. R. 11 Bq. 90. See also Osborn V. Osborn, L. R. 6 Eq. 338 ; Miller v. Marriott, L. B. 7 Bq. 1. The costs of infants and married wornen, including costs incurred before decree, may be ordered to be a charge upon his or her share : Agar v. Fairfax, supra ; Shepherd v. Churchill, 25 Beav. 21 ; Cox v. Cox, 3 K. & J. 554 ; Fleming V. Armstrong, 34 Beav. 109, where a sale was ordered. So too in case of a luna- tic : Singleton v. EopJcins, 1 Jur. (N.S.) 1199 ; 4 W. R. 107. Where it has appeared to the Court to be for the benefit of infants, orders have been made for sale for the purpose of raising costs : Richards v. Richards, 15 W. R. 380 ; Eubbard v. Euhhard, 2 H. & M. 38 ; Griffies v. Griffies, 11 W. R. 943. But this practice would appear to be superseded by the provisions of the Parti- tion Act, 31 & 32 Vict. c. 40. This Act has not altered the practice of the Court with respect to the costs of a partition suit : Landell v. Baher, h. R. 6 Bq. 268. The Paetition Act, 1868. 31 & 32 Vict. c. 40. Sale — Order under Sect. 3. The Pits [or, — ] by their counsel requesting a sale of the lands and premises situate, &o., and it appearing to the Court that by reason of the nature of the said property [or, of the number of the parties alleged to be interested or presumptively interested therein, &c.,] a sale of the property and a distribution of the proceeds will be more beneficial for the parties interested than a division of the property between or among them, Let an inquiry be made who are the parties interested in the said lands and premises, and in what shares and proportions, and for what estates and interests. And if it shall be certified that all the parties entitled to or interested in the undivided shares in the said hereditaments are parties to this cause, and that — [the parties re- questing the sale] are some of such parties, Let the said lands and premises be sold with the approbation of the judge. — Directions for Digitized by Microsoft® 2 i 482 PARTITION. payment into Court of purchase-money. — Adjourn further considera- tion. — Liberty to apply. Mildmay v. Quicke (M. E.), L. E. 20 Eq. 537 ; Brinkwater v. Batcliffe, L. E. 20 Eq. 628. Sale — Order under Sect. 4. The Pits [or, — ] who claim to he interested to the extent of a moiety or upwards of the property hereinafter mentioned, by their counsel requesting a sale of the said property, and a distribution of the proceeds, instead of a division of the said property between the parties interested. Let an inquiry be made who are the parties inter- ested in the lands situate, &c., and in what shares and proportions, and for what estates and interests. And if it shall be certified that all the persons interested in the said hereditaments and premises are parties to this suit, and that the Pits [or — ] requesting the sale are interested to the extent of one moiety or upwards in the said property. Let the said hereditaments be sold with the approbation of the judge. — Directions for payment into Court of purchase-money. — Adjourn further consideration. — Liberty to apply. Thornton v. Hunt ( V.-G. H.), Feb. 13, 1875. Sale — Order under Sect. 5. The Defts W. G., G. G., and E. P., by their counsel undertating to purchase the one-seventh share to which the Pits are entitled of the mes- suages and lands situate, &c., and also the one-seventh shai-e of the said premises to which the Deft J. L. is entitled, at a valuation. Let a valuation be made in Chambers of such shares respectively accord- ingly. And in case the said Defts W. G., G. G., and K. F., shall require the same. Let an inquiry be made whether a good title can be made to the said shares respectively. And in case the said Defts shall not require such inquiry, or in case it shall appear that a good title can be made, Let the Defts W. G., G. G., and E. F., within ten days after the date of the chief clerk's certificate pay to such persons as shall be certified to be entitled to receive the same the respective amounts of such valuation. And thereupon Let the Pit and the Deft J. L., or such of them as shall be necessary, and all other necessary parties, execute a proper conveyance of the said shares respectively to the Defts W. G., G. G., and E. F. (such conveyance to be settled by the judge), and Let the costs of such valuation be paid by the said W. G., G. G., and E. F. (such costs to be taxed, &o., in case the parties differ). Let the following further inquiry be made : An inquiry who, having regard to the directions hereinbefore contained, and upon the comple- tion of the purchase hereinbefore directed, are or will be the parties respectively entitled to the said premises, and for what estates and Digitized by Microsoft® PARTITION. i'iS interests, and in what shares and proportions. And if it shall be cer- tified that all the persons entitled to or interested in the said premises are parties to the snit, Let a partition be made in chambers of the said messuages, lands, and premises between the parties interested therein. And Let the several portions which shall be allotted to the parties in respect of their respective shares and interests, be held by them respectively in severalty according to such allotments, but subject to the settlements and incumbrances affecting the same respectively. Let the parties execute mutual conveyances of the said allotments (such conveyances to be settled by the judge).— No order as to costs of suit up to and including the hearing thereof. — Liberty to apply. Williams v. Garnes (M. E.), Feb. 20, 1874; reversed, L. E. 10 Ch. 204. Sale of Advowson — Costs to be a Charge — Title of Parties proved. Deolaee that the advowson, direction, and perpetual right of presen- tation in and to the vicarage of the parish church of Newchurch, in the Isle of Wight and county of Southampton, is divisible among the Pit and Defts (as the co-heiresses-at-law of W. Y., deceased, the intes- tate in the bill named), in equal third parts. Eefer it to the taxing master to tax the Pit and Defts their costs of this suit. Declare that the costs of the infant Pit and Defts be a charge on their respective fihares in the said advowson. And it appearing -^hat for the purpose of raising the said costs, and by reason of the nature of the said property, a sale of the said advowson, and a distribution of the pro- ceeds thereof, after payment of such costs, will be more beneficial for the parties interested than a partition of the property between them. Let the said advowson be sold with the approbation of the judge, and the money to arise from the sale paid into Court to the credit, &c. — Liberty to apply. Young v. Young, L. E. 13 Bq. 175, n. ; France v. France, L. E. 13 Eq. 173 ; but not followed as to costs in Bavey v. Wiellislacl, L. E. 16 Eq. 426. Sale — Title of Parties proved — Trustee Act, 1850 — Tnfants— Costs made a Charge. Declare that the hereditaments situate at, &c., are divisible into moieties, and that the Pit is entitled to one moiety thereof, and the Defts to the other. moiety thereof. Declare that the costs of the infant Deft of this suit, up to and including the hearing thereof, are a charge on the share of the said hereditaments belonging to the said infants. And it appearing to be for the benefit of the said infants that the whole of the said hereditaments should be sold for the purpose of paying the said eosts of the infants out of their shares, and the Pits by their bill Digitized by Microsoft® 2 i 2 484 PABTITION. praying a sale instead of a partition thereof, Let the said hereditaments situate, &c., he sold accordingly, with the approhation of the judge, for the purpose of paying the said costs of the infants out of the shares of the said infants. And Let the money to arise by such sale be paid into Court to the credit of this cause. — Adjourn further consideration. Thackeray v. Parker, 1 New Eep. 567 ; Davis v. Turvey, 2 NewEep. 161 ; 9 Jur. (N.S.) 954. Sale out of Court — Title of Parties proved — Trustee Act, 1850 — Costs to Trustees — Application of Purchase-money. The Court heing of opinion that a sale of the hereditaments in the parish of Dovedale devised by the will of the testator A. P. and the distribution of the proceeds of such sale, will he more beneficial for the several persons who now are or who may hereafter hecorae in- terested therein than a partition of the said hereditaments, and the Pits and Defts by their counsel requesting a sale, order and decree that the Defts W. L. and P. be at liberty to sell the messuage, farm lands, and hereditaments in the said parish devised by the will of the said testator, and in such lot or lots, manner and way, and subject to such particulars, conditions and provisions as they may think fit. Declare that upon such sale the Pits and Deft P., as one of the co- heirs of the testator, will be the trastees of their respective estates and interests in the said hereditaments for the said purchaser or purchasers thereof, within the meaning of the Trustee Act, 1850. Declare that the interests of the unborn children and issue of the Pit E. B. C. are the interests of persons who on coming into existence would be trustees within the meaning of the Trustee Act, 1 850. And the Court doth, pursuant to the Trustee Act, 1850, herehy appoint the Defts W. L. and P. to convey the said hereditaments for the estates therein of the Pit and of the Deft P., as such co-heirs, who are respectively out of the jurisdiction, and for all such estate and interest as any unborn children and issue of the Pit E. 0. would on coming into existence be seised of or entitled to in the said hereditaments. Let the Defts W. L. and P. receive the purchase-moneys to arise from the sales of the said' hereditaments, and execute the conveyances thereof accordingly. And this Court doth hereby appoint the Defts L. and J. T. L. trustees of the Pits' moiety of the moneys to be produced by the sale of the said hereditaments, and pf sucih residue as hereinafter mentioned of the said share of the Deft M. D. in the other moiety of the said moneys. — Direction to tax, as between solicitor and client, the costs of suit of the Pits and Defts, and any charges properly incurred by them prepara- tory thereto, and of the said J. W. T. L. and J. T. L., as trustees of the Pits' moiety (including the costs of the said J. W. T. L. and P. Digitized by Microsoft® PARTITION. 485 of the sale hereby directed). — Defts L. and P. to retain their own costs and pay to the Pits and remaining Defts their costs, when taxed, out of the purchase-moneys to he received by them. Let the Defts L. and P. pay one moiety of the net residue of the said purchase-moneys to the said Defts L. and J. T. L., as such trustees, to be held upon trust to apply the same to some one or more of the purposes mentioned in the 23rd section of the Settled Estates Act, 1856, without any application to this Court, and in the meantime to invest the same in or upon any stocks, funds, or securities in or upon which, pursuant to the General Orders of the Court, cash under the control of the Court ■ may be invested. Let the said trustees pay the income of the said moiety and of the investments thereof to the Pit E. B. 0. during his life, and subject thereto hold the said moiety and the investments and income thereof for the benefit of the other persons interested under the limitations in the testator's wiU contained of and concerning that moiety of the said hereditaments devised by the said will to E. B. C. for life. — Directions for payment of remaining fifths of purchase- money. — Liberty to apply. Chubb v. Petipher (V.-O. M.), June 25, 1870. Sale instead of Paetition. " In a suit for partition where if this Act had not been passed a decree for partition might have been made, then if it appears to the Court that by reason of the nature of the property to which the suit relates, or of the number of the parties interested therein, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the Court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the default or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions": 31 & 32 Vict. c. 40, s. 3. " In a suit for partition where if this Act had not been passed a decree for partition might have been made, then if the party or parties interested individually or collectively to the extent of one moiety or upwards in the property to which the suit relates request the Court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly, and give all necessary or proper consequential direc- tions": 31 & 32 Vict. c. 40, s. 4. " In a suit for partition where if this Act had not been passed a decree for partition might have been made, then if any pairty interested in the property to which the suit relates requests the Court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between or among the parties interested, the Court may if it thinks fit, unless the other parties interested in the property or some of them undertake to purchase the share of the party requesting a sale, direct a sale of the property, and give all necessaiy or proper consequential directions ; and in case of such undertaking being given, the Court may order a valuation of the share of the party requesting a sale, in such Digitized by Microsoft® 486 PARTITION. manner as the Court thinks fit, and may give all necessary or proper consequential directions": 31 & 32 Vict. c. 40, s. 5. The 3rd and 4th sections of the Act are not controlled in their operation hy the 5th section, which applies to a case not provided for either by the 3rd or 4th sections, where the Court sees no reason for preferring a sale to a parti- tion : Brmktmter v. Batdiffe, L. E. 20 Bq. 528. See obs. of M. E. Any party, whether pit or deft, may apply for a sale under the 5th section ; and is entitled to ask for a sale, unless somebody is about to buy: S. C. But a part owner cannot be compelled tinder the 5th section to sell against his will : Williams v. Games, L. E. 10 Ch. 204. And if a part owner does apply for a sale under the 5th section, and an offer to buy the part owner's share is made, the application for sale may be withdrawn : S. 0. But the 5th section is not in the nature of a proviso that no sale is to be directed under the 3rd and 4th sections if any other party interested shall under- take to buy the share of the parties asking for sale : Brinkwater v. Batdiffe, L. E. 20 Eq. 528, 531. See obs. of M. R. commenting on Pemberton v. BarTies, L. R. 6 Ch. 693. The Court can, under the Act, make a decree for sale instead of partition at the request of a /erne coverte pit : Eiggs v. Dorkiss, L. R. 13 Bq. 280. And may make a declaration of the rights of parties, and direct a sale at the request of infant pits : France v. France, L. R. 13 Eq. 173 ; Davey v. Wietlisbach, L. R. 15 Bq. 269. A decree for sale may be made although one of the parties interested is out of the jurisdiction ; but the decree must be served on the absent party before the sale is proceeded with : Silver v. Udall, L. R. 9 Bq. 227 ; TeaU v. Watts, L. E. 11 Bq. 213. Where a person entitled to the legal estate was out of the jurisdiction and had not been served, and no attempt made to serve him, an order for sale was refused : Eervey v. Eervey, L. R. 10 Bq. 346. And where an order for sale had been made in the absence of parties who were out of the jurisdiction, the Court refused to allow the decree to be acted upon in th«ir absence, but directed notice to be given to them of the decree by advertise- ments, with liberty for the pit to apply after advertisement : Peters v. Bacon, L. R. 8 Bq. 125. In a suit for sale under the Act the bill ought to have prayed for partition as well as sale : Teall v. Watts, L. R. 13 Eq. 213 ; EoUand v. EoU, L. R. 13 Bq. 406. The Court may direct a partition of part and sale of the rest : Boehuck v. Chadehet, L, R. 8 Eq. 127 ; Order, p. 478. Where a decree for partition has been made before the Partition Act, the Court cannot under that Act order a sale : Pry or v. Pry or, L. R. 19 Eq. 595 ; L. R. 10 Ch. 469. Form of Decree. An order for sale of real estate under the Partition Act, 1868, cannot be made at the hearing unless all persons interested in the property are parties to the cause : Mildmay v. Quieke (per M. R.), L. E. 20 Bq. 537 ; Order, p. 481 ; Brinkwater v. Batdiffe, L. E. 20 Bq. 528. And if all persons interested are not parties, then the 9th section of the Act applies, and a sale can only be ordered " on further consideration " : S. C. See also Buckingham v. Sellick (V.-C. J.), 22 L. T. (N.S.) 370. Digitized by Microsoft® PAETITION. 487 Where the title of all the parties has been proved at the hearing an immediate decree for sale has been made without the usual prelimiijary inquiries : Lees v. OouUon, L. E. 20 Eq. 20. But the usual practice is to prove the title of the parties in Chambers. Where the decree has directed the usual inquiries as to the persons interested, and a sale is dependent upon the result of those inquiries, a certificate ought to be made before the sale is effected : Powell v. Powell, L. R, 10 Ch. 130. And where the sale took place before the certificate the purchaser was held entitled to be discharged : S. 0. The undertaking to purchase mentioned in the 5th section of the Act cannot be given by a married woman whose husband does not join in the imdertaking : Drinkwater v. Eatcliffe, L. R. 20 Bq. 528. Parties. " Any person who if this Act had not been passed might have maintained a suit for partition, may maintain such suit against any one or more of the parties interested, without serving the other or others (if any) of those parties ; and it shall not be competent to any deft in the suit to object for want of parties'' : 31 & 32 Vict. c. 40, s. 9 ; see also 38 & 39 Vict. c. 70 ; ante, p. 8. InQUIEIES at the HEAEINa. "At the hearing of the cause the Court may direct such inquiries as to the nature of the property and the persons interested therein, and other matters, as it thinks necessary or proper, with a view to an order for partition or sale being made on further consideration": 31 & 32 Vict. c. 40, s. 9. See also Jud. Rules, Order 33. Service of Notice op Decree. " All persons who if this Act had not been passed would have been necessary parties to the suit, shall be served with notice of the decree or order on the hearing, and after such notice shall be bound by the proceedings as if they had been originally parties to the suit, and shall be deemed parties to the suit " : 31 & 32 Vict. c. 40, s. 9. Silver v. UdoB, L. R. 9 Eq. 227 ; Tecdl v. Waffs, L. R. 11 Eq. 213. Libertt to bid. " On any sale under this Act the Court may,.if it thinks fit, allow any of the parties interested in the property to bid at the sale, upon such terms as to non- payment of deposit, or as to accounting for the purchase-money, or any part thereof, instead of paying the same, or as to any other matter, as to the Court may seem reasonable " : 31 & 32 Vict. c. 40, s. 6. Application op Trustee Act, 1850. " Sect. 30 of the Trustee Act, 1850, shall extend and apply to cases where in suits for partition the Court directs a sale instead of a division of the property " : 31 & 32 Vict. c. 40, s. 7. Independently of this section, wherever the Court has jurisdiction to make a decree for sale the decree binds in equity the interests of all persons not in Digitized by Microsoft® 488 EAETITION. existence : Barnett v. Moxon, L. R. 20 Bq. 182. See also Oaskell v, Qaskell, 6 Sim. 643 ; Beioley v. Carter, L. B. 4 Ch. 230. Application of Peoceeds of Sale. " Sections 23 to 25 (both inclusive) of the Act to facilitate Leases and Sales of Settled Estates shall extend and apply to money to be received on any sale effected under the authority of this Act : " 31 & 32 Vict. c. 40, s. 8. County Court Jurisdiotion. The County Courts have jurisdiction under the Act where the value of the pro- perty in question does not exceed £500 : 31 & 32 Vict. c. 40, b. 12. BOUNDAEIES. Commission — Delivery of Possession. LET-'a commission issue directed to certain commissioners to be therein named to distinguish the several lands and hereditaments situate, &c., in the possession of the Deft, from the several lands and hereditaments situate, &c., also in the Deft's possession. Let the said commissioners set out, distinguish, and ascertain the said several lauds, &c., hy proper metes and bounds. — Usual directions for production of deeds and examination of witnesses. — And after the lands shall be so set out respectively, the Deft is to deliver possession thereof to the Pit, and he and his heirs are to hold and enjoy the same against the Deft and his heirs or any'person or persons claiming under him. — Adjourn further consideration. Winton v. Newland, 1813, B. 1510 ; Abergavenny V. Thomas, 1739, B. 294; Seton, 590, 591. Confusion of Boundaries — Beffs Land to he set out — Account of Bents. Let a commission issue directed, &c., to distinguish and set out, &e. Let such commissioners set out, distinguish, and asceitain the said several lands by proper metes and bounds. And if by reason of confusion of boundaries, alteration of names, or other circumstances, the said commissioners shall not be able to ascer- tain the particular lands comprised, &c., they are to set out an equal quantity of the lands now in the possession of the Deft C. P., or as near as may be, of equal value with the lands comprised, &c., or so much thereof as cannot be distinguished as aforesaid [and after the said lands shall be so set out, the Deft is deliver possession* thereof to the Pit], and they are to be held and enjoyed by the relators in lieu of the said lands [which cannot be ascertained]. Let the following accounts be taken : — 1. An account of the rents and profits of the lands com- prised, &c., which have accrued or been i-eceived by the Deft 0. P. since Digitized by Microsoft® PARTITION. 489 IHe — day of — [whea the Deft entered into possession], or by any other person or persons by his order or for bis use. 2. An account of all timber and other trees (if any) which have been out upon the lands and hereditaments comprised, (fee. by the order of or for the use of the said Deft since the — day of ■ — , and of the value thereof. — Usual directions for production of deeds and examination of witnesses. — Ad- journ further consideration. Att.-Gen. v. Penruddoch, 1856, A. 1302 ; Seton, 589 : see also Lord Abergavenny v. Thomas, 1739, B. 294. * Note. — The clause in brackets is not in the original order, but should have been inserted. Suit to ascertain Boundaries. In a suit to ascertain bound^iries the decree generally directs a comniission to issue for that purpose. But the question may be tried before the Court itself with or without a jury, or before a Court of Common Law : Dan. 4th ed. 1033 ; Godfrey v. LUtdl, 1 Buss. & My. 59, 63 ; 25 & 26 Vict. c. 4, ss. 1, 2. The decree does not order mutual conveyances as in case of a partition. But should direct that the deft deliver possession to the pit of the lands set out : Lord Abergavenny v. Thomas, Seton, 591 ; Norris v. Le Neve, 3 Atk. 82. Where, through the default of a tenant or copyholder the boundaries are con- fused, the Court directs so much of the deft's land to be set out as is equal to the quantity originally granted or leased : Lord Abergavenny v. Thomas^ 1 West, 649 ; Order, supra; Speer v. Crawter, 2 Mer. 410, 418; Att.-Oen. v. Fullertcm, 2 V. & B. 263. It is the duty of the tenant (whether for life, or for years, or at will) who has adjoining land of his own to keep the boundaries clear and distinct : Att.-Gen. v. Stephens, 6 De G. M. & G. 111. But to make a deft liable to make good land the boundaries of which cannot be distinguished, it must be shewn that he is in possession of such land : S. 0. Where it is owing to no fault of the pit or deft that the boundaries have become confused, the Court will order the costs of suit to be borne by them equally, and not in proportion to their respective interests : Norris v. Le Neve^ 3 Atk. 82 ; and see Metcalfe v. Beckwith, 2 P. Wms. 376. DOWER. Inquiries as to Land — Possession — Account of Bents. Let the following inquiries be made: — 1. An inquiry what free- hold lands the said M. died seised of wherein the Pit is dowable. 2. An inquiry what copyhold or customary lands the said M. died seised of wherein the Pit is entitled to dower, or any other estate by the custom of the manor wherein the said copyhold or customary lands or any of them lie. Let the Pit be assigned her dower in such free- hold lands and tenements, and also her dower or widow's estate in such copyhold or customary lands and tenements. And Let particular lands and tenements be assigned and set out for that purpose. Digitized by Microsoft® 490 PARTITION. And after the lands and tenements shall be set out and ascertained, Let the Deft deliver possession to the Pit of the lands and tenements that shall be so set out and ascertained for the said dower of the Pit. And the tenants of tho said lands and tenements are to attorn and pay their rents to the Pit. Let an account be taken of the rents and profits of the said freehold and copyhold or customary lands and tenements whereof the said M. died seised, accmed since the death of the said M., received by the Deft or by any other person by his order or for his use. Let one third part of what shall be coming on the said account of rents and profits of such freehold lands and tenements be paid to the Pit by the Deft in respect of her dower out of such lands and tenements. And Let such part of what shall be coming on the said account of rents and profits of the said copyhold or customary lands and tenements as the Pit shall be certified to be entitled to in respect of her dower or other widow's estate in such copyhold or customary lands and tenements be paid to the Pit by the Deft. — Deft to pay Pit's costs of suit up to this time. — Further consideration adjourned. Meggot v. Meggot, 2 Dick. 749 ; 2 Ves. 127 ; Seton, 671. Like Decree — Account of Bents — Occupation Sent Inquiries, assignment of dower, and delivery of possession, as in pre- ceding order. Let an account be taken of the rents and profits of the estates whereof the said B. became so seised, accrued from the — day of — (being six years prior to the time of filing the Pit's bill in this cause) to such time as such lands and tenements sliall be so set out and assigned, received by the Defts or any of them, or by any other person or persons by their or any of their order or use. Let an inquiry be Taade whether any and which of the Defts have or has been in the occupation of any of the said estates. And if so, Let an annual sum by way of occupation rent be set thereon ; and Let such Defts be charged therewith. Let the Defts respectively, within — days after the date of the chief clerk's certificate, pay to tbe Pit one-third of the amount of such rents and profits, which shall be certified to have been received by them respectively. — No costs on either side. — Liberty to apply. JBam- ford V. Bamford, 1845, B. 2302 ; 5 Hare, 203 ; Seton, 672. DOWEE. The Court of Chancery either directs the inquiry as to right of dower and the assigument of it to be made in chambers, or orders a commission to issue. The order for commission is nearly in the form of an order for a commission of partition : see p. 475. Digitized by Microsoft® PARTITION. 491 It forms part of the decree that upon the assignment of dower possession of the land he delivered to the doweress : Goodenough v. Ooodenough, 2 Dick. 795. The widow is entitled to an account of the arrears of her dower. And her right to the rents accrued from the death of her hushand is not limited to the time of filing the hill : Curtis v. Curtis, 2 Brown's Sep. 620 ; Mundy v. Mundy, 2 Ves. 122, 128 ; Oliver v. Richardson, 9 Ves. 222. But the widow is not entitled to interest upon arrears of dower : Lindsay v. Oibbon, cited 3 Brown's Eep. 495. Upon a hill to assign dower, Tisnallj no costs are given to either side : Bwmford V. Bamford, 5 Hare, 203, 205; Lucas v. Caloraft, 1 Bro. C. 0. 134. But where the right to dower has been disputed, and upon grounds which have failed, costs have been given : Fry v. Nolle, 20 Beav. 598 ; aEBrmed 7 De G. M. & G. 687 ; Stormont v. Wickens, 14 W. R. 192. " No widow shall be entitled to dower out of any land which shall have been absolutely disposed of by her hushand in his lifetime or by his will " : Dower Act (3 & 4 Will. 4. c. 105), s. 4. " Where a husband shall devise any land out of which his widow would be entitled to dower if the same were not so devised, or any estate or interest therein, to or for the benefit of his widow, such widow shall not be entitled to dower out of or in any land of her said husband unless a contrary intention shall be declared by his will": s. 9. For cases under these sections : see Bending v. Bending, 3 K. & J. 257 ; Bow- land V. CutlAertsm, L. E. 8 Bq. 466 ; Lacey v. Eill, L. E, 19 Eq. 346. Digitized by Microsoft® ( 492 ) CHAPTER XXIX. SOLICITOES. Solicitor struck off the Eolls. Solicitor' B Application, • Upon motion, &c., by counsel for A. (one, &c.), and upon reading an affidavit of the said A. filed, &c. [affidavit should state thai there is no proceeding or application against the solicitor in the Court as such, and that he does not apprehend that any will he made]. Let the said A. be struck off the rolls of solicitors of this Court. Seton, 865. Solicitor struck off the Bolls — Misconduct — Order Nisi. Upon motion, &c., tod upon reading, &c., Let — be struck off the . roll of solicitors of this Court, unless he shall on the — day of — shew unto this Court good cause to the contrary. See Wheatley v. Bastow, Be Collins, 7 De G. M. & G. 558. Order Absolute. Upon motion, &c., by counsel for — , and upon reading an order dated, &c. [the order nisi], and an affidavit of — of service of the said order on B. [the solicitor], and no cause having this day been shewn to the contrary, Let the said B. be struck off the roll of solicitors of this Court. Solicitor suspended. Let W. C. B. in the petition named, and who was admitted on the — day of — , be suspended from practising as a solicitor of this Court until after the expiration of — Term, 18 — , with liberty for the said W. C. B. to make such application to the judge in the meantime as he shall be advised. Let a memorandum of this order be entered on the roll of solicitors of this Court. Be Brutton (M. E.), June 20, 1871. Solicitoes struck off the Eolls. Where a solicitor is guilty of misconduct he may be struck off the roll of soli- citors by order of Court: 2 Atk. 173 ; Be Chandler, 22 Beav. 253 ; 2 Jur. (N.S.) 366 ; Be Oheslyn Hall, 2 Jur. (N.S.) 633 ; Thorndihe v. Hunt, 5 Jur. (N.S.) 879. And he may be struck of the roll for fraudulently abusing the confidence of his Digitized by Microsoft® SOLICITORS. 493 client, notwithstanding that the client may have been willing to compromise : Re Martin, 6 Beav. 337. Where a solicitor who without authority instructed counsel to appear for parties interested in money in Court, and to consent to its payment out, he was ordered to he struck off the rolls : Wheadey v. Bastow, Re Collins, 7 De G. M. & G. 558 ; 1 Jnr. (N.S.) 1125 ; Order, p. 492. As to misconduct imputed to solicitor by afBdavits of the client being sworn before him (the solicitor) or his clerk or his agent : See Re Eogan, 3 Atk. 812 ; Read v. Coo/per, 5 Taunt. 89 ; Williams t. Eockin, 8 Taunt. 435 ; Foster v. Harvey, 2 New Eep. 443 ; 3 New Kep. 98 ; Re Oregg, L. R. 9 Eq. 137. As to payment by the solicitor of costs of the proceedings in a suit where he had been guilty of misconduct : See Cockle v. Whiting, 1 Russ. & My. 43 ; Bun- gey V. Angove, 2 Ves. Jun. 304 ; Fielden v. Buenos Ayres Co., 18 W. R. 729 ; 19 W. R. 361 ; Bromage v. Davies, 4 Jur. (N.S.) 683 ; Re Oregg, supra. Where application is intended to be made to any Court for an order or rule to strike the name of any attorney or solicitor (not being an attorney or solicitor making the application) off the roll of attorneys or solicitors of such Court, or for an order or rule to compel him to answer the matters of an afBdavit, notice in writing shall be given to the Registrar (" The Registrar of Solicitors," see Judi- cature Act, 1875, sect. 14) of such intended application fourteen clear days at the least before such application shall be made : The Attorneys and Solicitors Act, 1874 (37 & 38 Vict. c. 68), s. 7. " Copies of all afBdavits intended to be used in support of such application shall be delivered to the Registrar with the notice" : sect. 8. " The Court shall not entertain any such application, except upon production of an afBdavit proving that the notice required by this Act has been duly given, and that copies of all such afBdavits have been duly delivered to the Registrar " : sect. 9. " The Registrar may appear by counsel upon the hearing of any such appli- cation, and upon any other proceedings arising out of or in reference to the appli- cation, and may apply to the Court to make absolute any rule nisi which may have been granted by the Court in the matter of such application, or make an order that the name of the attorney or solicitor be struck off the roll of attorneys or solicitors of the said Court, or, as the case may be, to order the attorney or solicitor to answer the ^ matters of the afBdavit, or such other order as to the Court may seem fit " : sect. 10. " And it shall be lawful for the Court to order the costs, charges, and expenses of the Registrar of and relating to any of the matters aforesaid, to be paid by the attorney or solicitor against whom any such application is made, or was intended to be made, or by the person by or on whose behalf the application is made or was intended to be made, or partly by the one and partly by the other " : Ibid. The Registrar may draw up rules and orders not drawn up by the applicants : see sect. 11. Negligence of Solicitor. There is no jurisdiction in the Court of Chancery to compel a solicitor to make good losses sustained by the client through ordinary negligence in the investi- gation of a title, although under special circumstances and in cases of fraud there may be such jurisdiction : Smith v. Pocoeke, 2 Drew. 197 ; Chapman v. Chapman, L. R. 9 Eq. 276 ; Craig v. Wilson, 8 Beav. 427 ; Sixon v. Williamson, 4 De G. & J. 508 ; British Mutual Investment Compvny v. Cobbold, L. R. 19 Eq. 627. Digitized by Microsoft® '494 SOLICITOKS. Change of Solicitor. Upon motion, &o. [or, upon petition of, &c.J, for the Pit [or. Deft] Let the Pit [or. Deft] be at liberty to change his solicitor [or, agent] in this cause by appointing — as such solicitor instead of — , the present solicitor of the said Pit [or. Deft] (or, — agent for the Pit [or, Deft] instead of — ). " A party suing or defending by a solicitor shall not be at liberty to change his solicitor in any cause or matter without an order of the Court for that purpose, which may be obtained by motion or petition as of course; and until such order is obtained and served, and notice thereof given to the clerk of records and writs, the former solicitor shall be considered the solicitor of the party " : Cons. Ord. 3, rules. And a solicitor desiring to change his agent must obtain an order, which is also as of course : Daniell, 5tb ed. 1723 ; Braith. Pr. 564. Order of course for the change of solicitors or agents will be discharged if ob- tained upon a misstatement or suppression of material facts : Richxirds v. Scar- borough Market Co. 17 Beav. 83 ; Jenkins v. Bryomi, 3 Drew. 70. The order to change operates as a discharge by the client : Webster v. Le Hunt, 9 W. R. 804 ; Ward v. Svnft, 6 Hare, 310, cited in Morgan, 4th ed. 386. The client may employ a new solicitor without obtaining an order to change where petition is presented for payment out of Court of fund standing to separate account, or where the solicitor dies pending the suit : WaddUove v. Taylor, 17 L. J. (Ch.) 384 ; WhxMey v. Whattey, 22 L. J. (Ch.) 632. If the solicitor of a party dies, proceedings taken by the new solicitor are regular without an order to change : WhaUey v. WhaUey, 17 Jur. 254. But an order has been said to be necessary where the solicitor enters into part- nership subsequent to his appointment as solicitor : MviUebury v. Haywood, 8 Jur. 1085, The retirement from business of one of two solicitors in partnership operates as a discharge of the client, who is thereupon entitled to require the delivery to the new solicitor of the papers necessary to prosecute the cause upon the usual un- dertaking for saving the lien of the discharged solicitor : Qriffiths v. Griffiths, 2 Hare, 587 ; RavHinson v. Moss, 7 Jur. (N.S.) 1053. If the solicitor of a party dies, and the client neglects to appoint a new one, he may be served with a suhpaina to name a new solicitor : Gibson v. Ingo, 2 Ph. 402. Where there has been a change of solicitors within the meaning of the Cons. Ord. 3, rule 3, without an order, service of notice of proceedings in the suit upon the old solicitors is regular : Wright v. King, 9 Beav. 161 ; Davidson v. Leslie, Ibid. 104. Where a solicitor applied to his client for funds to caiTy on a suit, and upon the client not furnishing any, declined to continue the conduct of the litigation, and the client appointed a fresh solicitor : held that this was a discharge by the solicitor : Robins v. Ooddingham, L. R. 13 Eq. 440; And that the solicitor might be called upon to deliver to the new solicitors the papers relating to the matters in question on an undertaking to hold them without prejudice to lien, to return them within a limited time, and to allow the former solicitor access to them : S. 0. Digitized by Microsoft® SOLICITOES. 495 Delivery of Briefs and Papers hy former to new Solicitor to prosecute Suit — Lien of former Solicitor — Undertaking to return. Let Messrs. G. & C. [former solicitors] respectively within seven days from the date of this order deliver up on oath to H., the present solicitor of the petitioner, all brief?, office copies of answers, cases for the opinion of counsel, opinions of counsel, and all other papers and, writings whatsoever in or connected with this cause in the possession or custody of the said G. & C. or either of them as the solicitors of the petitioner F. which upon inspection the said H. may deem necessary on behalf of the petitioner on the hearing of this cause, the said H. undertaking to receive and hold all such papers and writings without prejudice to any right of lien thereon to which the said G. & C. or either of them are or is or may be entitled, and to return the same undefaced to the said G. & C. within fourteen days after the hearing of this cause. Chriffiths T.Grifp,ths, 2 Hare, 587. Similar Order for the purpose of an Appeal — Lien— Undertaking, Let E. M. within three days after service of this order deliver over to E. C. B., the present solicitor of the Pits and Defts, all the deeds, books, documents, papers, and writings in these causes now in his • custody, possession, or power, for the purposes of the appeal from the decree dated, &c., the said E. C. B. heieby undertaking to hold the same subject to such lien as the said B. M. shall be lawfully entitled to thereon, and to return all the said deeds, books, documents, papers, and writings within ten days after the disposal of such appeal. Webster v. Le Eunt, 9 W. E. 804. Delivery of Deeds hy Solicitor to Client — Payment into- Court — Lien. Let G. L. and T. W., or one of them, on or before the — day of — pay into Court to the credit of this matter the sum of £160, to- an account to be intituled the account of G. L., T. W., and F. H. J., without pre- judice to the taxation of the bill of fees and disbursements of the said F. H. J., directed by the order dated, &o. Let F. H. J. within two days after notice to him of such payment into Court, deliver up to the said J. L. and T. W., or one of them, or to their solicitors, all deeds, books, papers, and writings in his custody or power belonging to the said G. L. and T. W. in manner directed by the said order dated, &c., the said G. L. and T. W. by their counsel undertaking to produce to the taxing master, at all proper times and seasons, all or any of such deeds, books, papers, and writings as they shall be required. But this order is without prejudice to the lien (if siny) of the said F. H. J. upon such deeds, &c., for costs alleged to be due to him from the estate of Digitized by Microsoft® 496 SOLIiDITOKS. C. H. L. deceaspd. No order as to the costs of F. H. J. of application. Be Jewitt, 34 Beav. 22. Delivery hy Solicitor of Order to the Segistra/r for completion — Iden^^ Costs. Let G. B. within two days after service of this order leave the order dated, &c., with the proper officer of this Court in order that the same may be entered. Let the said order when entered be delivered back to the said G. B. And W. H. D., the solicitor for the Pit J. C, consenting, Let him pay to G. B. 20«. for his attendance at the registrar's office for the purpose of entering the said order and for the fees of such entry. But this order is to be without prejudice to any lien the said G. B. has [upon the said order]. And at the request of G. B. by his counsel, and by the consent of the Pit, Declare that G. B. is entitled to a lien upon any cash or funds which may here- after be standing to the credit of this cause belonging to the Pit for the bill of costs of the said G. B. in this cause. Clifford v. Turrill, 2DeG. &Sm. 1. Ddivery of Office Copies, dec, to new Solicitor — In default Money to he refunded. Let L. [former solicitor] deliver to 0. M. and J. M. [new solicitors] the several office copies, copies and papers mentioned in the schedule to the Master's report dat6d, &o., or such of them as are in his posses- sion or power. And in case the said L. shall not deliver all the office copies, copies and papers mentioned in the said schedule. Let the said L., on or before the — day of ; — , refund to the said 0. M. and J. M., or one of them, such sum or sums of money as have been charged by him for such of the office copies and papers as are mentioned in the said schedule, and which he shall not so deliver. Costs of application to be paid by paid by L. Bromhead v. Hunt, 1828, A. 92; Seton, 853. Lien of Solicitor on Deeds. The solicitor's lien upon papers in his possession is not limited to the occasion on which they were delivered, without special agreement : Be Stirling, 16 Yes. 258 ; lie Pemberton, 18 Ves. 282. But although the solicitor's lien applies to all his bills of costs, and he has a right to retain the client's papers, the lien cannot be actively enforced : Bozon v. BoUand, 4 My. & Or. 354 ; Heslop v. Metcalfe, 3 My. & Or. 183. Where the production of a document is required by any party to a suit for the purpose of proving his case it cannot be resisted on the ground of the solicitor's lien : Brassington v. Brassington, 1 S. & S. 455 ; Hope v. LiddeU, 7 De Gr. M. & G. 331 ; 1 Jur. (N.S.) 665. Nor is the lien of the solicitor allowed to prejudice the rights of third parties claiming adversely to the client : Daniell, 5th ed. 1715, and cases there cited. Digitized by Microsoft® SOLICITORS. 497 The Court will order ihe solicitor to deliver to the client his papers upon pay- ment into Court of a sum sufBoient to cover the amount for which the solicitor has a lien : Mills v. Finlay, 1 Beav. 560 ; Re Beoan and Whiting, 33 Beav. 439 ; but see Richards v. Platel, 1 Cr. & P. 79, 82. And pending taxation the Court has ordered delivery by the solicitor to the client of his papers, on the client's undertaking to produce them and giving security for the amount claimed : Re Jewitt, 34 Beav. 22 ; Order, p. 495. The Court will not allow the solicitor's lien upon a deed to occasion loss to the property comprised in it, as in the case of a policy of insurance : Richards v. Platd, 1 Cr. & P. 79. Nor to impede proceedings in a suit in which an order has been made to change the former solicitor, who had a lien : Webster v. ie Hunt, 9 W. R. 804 ; Order, p. 495 ; see also Merrywether v. Mellish, 13 Ves. 161 ; Cane v. Martin, 2 Beav. 584. The solicitor, notwithstanding his lien, is bound to produce icipal Corporations Act : see 5 & 6 Will. 4, c. 76. No order for filling up vacancies in the number of trustees will be made unless the Court is satisfied that the existing number of trustees is practically insufficient : Dan. 4th ed. 1783 ; Re Worcester Charities, 2 Phil. 284. Section 4 of "The Municipal Corporations Act, 1859 " (16 & 17 Vict. c. 137), is repealed : 34 & 85 Vict. c. 67. Ineolmektt of Deeds. Charitable Uses Acts. Upon the application, &o., and Tipon reading an affidavit of — , Let the indenture dated, &c., made between, &o., he inroUed in this Court within six calendar months from the date of this order, notwithstanding the time limited by law for that purpose has expired. Chaeitable Uses Acts. Where the charitable uses of any deed of conveyance of lands for charitable uses are declared by any separate deed, the deed of conveyance is to be void unless the separate deed be inrolled within six months from the making or perfecting it in the Court of Chancery : 24 Vict. c. 9, s. 2. No past conveyance or assurance of land for any charitable uses made upon valuable consideration is to be void for any reason if made to take effect in pos- session, or inrolled within twelve months from the 17th of May, 1861 : 24 Vict. c. 9, s. 3. The time limited for the inrolment of these past deeds and assurances has been extended by subsequent Acts. Where it is impossible to inrbl the original deed creating a chariiiable trust by reason of the same having been lost or destroyed by time or accident, but the trusts of the charity sufficiently appear by some subsequent deed appointing new trustees o# reciting the trusts created by the original deed, the Court of Chancery may upon the application by summons of any trustee or other person interested order the inrolment of such subsequent deed. And such inrolment is to have the same force and effect as the inrolment of the original deed : 27 & 28 Vict. c. 13, s. 3. Any trustee, governor, director, or manager of any charity, or other person in- terested in any charitable trust, may by summons in a summary way, and without service thereof, apply to the Court for an order authorizing the inrolment of any deed or instrument relating to any charitable trust where such deed or instrument has not been inrolled within the time limited by law ; or (where such deed or instrument has been lost or destroyed by time or accident and the trusts suffi- ciently appear by some subsequent deed) : 29 & 30 Vict. o. 57, s. 1. And if the Court is satisfied by affidavit or otherwise that such deed or instrument was made londflde for full and valuable consideration, and the omission to inrol arose from ignorance or inadvertence, or from the destruction of the deed by time or accident, the Court may authorize the inrolment, and the same shall thereupon Digitized by Microsoft® 544 STATUTORY JURISDICTION. be iiirolled accordingly within six calendar months from the date of the order, and no acknowledgment shall be necessary prior to the inrolment : 29 & 30 Vict, c. 57, s. 2. The last-mentioned Act is not to apply to any deed or instrument as to which any action or proceeding shall be pending for setting the same aside or asserting any right founded on its invalidity : 29 & 30 Vict. c. 57, s. 4. By a subsequent Act, if the Clerk of Inrolments in Chancery for the time being shall be satisfied by affidavit or otherwise that the deed, &c., conveying or charging the hereditaments for charitable uses, was made really and hm&fide for valuable consideration, &c., and that at the time of the application to the said Clerk of Inrolments possession or enjoyment is held under such deed, &c., and that the omission to inrol the same in proper time has arisen from ignorance or inadvertence, or from the destruction thereof by time or accident, it shall be lawful for the said Clerk of Inrolments to inrol the deed, &c. : 35 & 36 Vict. c. 24. Digitized by Microsoft® ( 545 ) CHAPTER XXXII. AEBITKATION. 9 & 10 Will. 3, c. 15 ; 17 & 18 Vict. c. 125. Agreement or Siibmission made an Order of Court. Upon motion, &o., hj counsel for — , and upon producing articles of agreement dated, &o., under the respective hands (and seals) of [parties executing], [or, a submission to arbitration, dated, &o., and signed by the above-named, &c.J, as by affidavit of — , now produced and read, appears. Let (by consent) the said agreement [or, submission to arbi- tration] be made an order of this Court, to be observed and performed by all parties, according to the tenor and true meaning thereof. Be Haigh (V.-C. K.), Nov. 20, 1866 ; Seton, 1123. Agreement under Lands Glavses Ad. Upon motion, &c., Let the submission to arbitration contained in the following documents : namely, a notice dated the 28th of January, 1874, given by T. E. H. to the Great Eastern Eailway Company ; an appointment in vrriting dated the 25th of February, 1874, of J. S., as arbitrator on behalf of the said T. E. H. ; and an appointment in writing dated the 24th of April, 1874, signed by the said arbitrators of H. E. M. as their umpire, be made an order of this Court, to be observed and performed by all parties, according to the tenor and true meaning thereof. Ex parte Harper, L. E. 18 Eq. 539. Award wade an Order of Court. Upon motion, &c., by counsel for — [and upon hearing counsel for — ], and upon reading an award dated, &c., under the respective hands and seals of — , and — ; an affidavit of — , verifying the exe- cution of the said award [and an affidavit of service of notice of this motion on — ], Let the said award be made an order of this Court, to be observed and performed by all parties thereto, according to the true tenor and meaning theteof. Reference of Suit — Single Arbitrator. By consent, Let all matters in difference in this action between the parties be referred to the arbitrament of — , who is to make his award Digitized by Microsoft® 2 n 546 STATUTORY JUEISDICTION. in writing on or before the — day of — , or such farther day as the Baid A. shall appoint. And by the like consent, Let all deeds, books, and papers in the custody or power of either of the parties relating to the matters in question be produced before the said arbitrator as he shall direct, to be ascertained by the oaths of the respective parties producing the same. And the parties and their witnesses, being first sworn, are to be examined as the said arbitrator shall direct ; and by the like consent, the costs of this action, and of this application, and of this reference are to be costs in the discretion of the said arbi- trator ; and by the like consent, no action is to be brought by either of the parties against the said A. for any matter or thing he shall do in, about, or touching any of the matters hereby referred to him ; And by the like consent the said arbitrator is to have power from time to time to enlarge the time for making his award as he shall think fit. Seference — Two Arbitrators — Vm/pire. Let all matters in difference in this action be referred to B., of, &c., a person for this purpose nominated by the Pit, and of C, of, &c., a person for this purpose nominated by the Deft, or in case of their not agreeing to an award, then to the arbitraiaent of such umpire as shall be appointed by them the said B. and C, in manner hereinafter mentioned ; and the said arbitrators are to make their award in writing on or before the — day of — , or on or before such further day as they the said arbitrators shall from time to time by any writing under their hands appoint ; and in case of the said arbi- trators not agreeing in an award, the said umpire is to make his award in writing within the period hereinafter mentioned, that is to say, within three calendar months after the expiration of the time within which the power of the arbitrators to make an award shall have ceased, or within such extended time after the expiration of the said period of three calendar months as the said umpire shall from time to time by any writing under his hand appoint. Let all deeds, &o., be produced, &c. And the costs of this suit and of this application, are to be in the discretion of the said arbitrators and umpire, or of such of them as shall award upon the matters in difference. And [no bill is to be filed, and] no action is to be brought by either of the parties against the said B. and C. for any matter or thing they shall do in or about or touching any of the matters hereby referred to them. And before the said arbitrators shall enter upon the matters referred to them they are by writing under their hands to appoint some person approved of by them to be such umpire as aforesaid ; and such umpire shall by writing under his hand signify his acceptance of such appointment. — Libei-ty to apply. Edwards v. Edwards (V.-O. S.), July 28, 1856 ; Seton; 1122. Digitized by Microsoft® ARBITRATION. 547 Similar Be/erence — Costs reserved-^Stay of Proceedings. Directions for reference to two arbitrators and umpire as in preced- ing order, and for production of documents, &c., and prohibition from action against arbitrators. And the said arbitrators and umpire are to have power from time to time to enlarge the period for making their award as they shall think fit. And before such arbitrators shall enter upon the matters referred to them, they are by writing under their hands to appoint some person approved of by them to be such umpire as aforesaid. And such umpire shall by writing under his hand signify his acceptance of such appointment. Costs of cause reserved until after arbitrators or umpire have made an award. — Let in the meantime all further proceedings in this cause be stayed. — Liberty to apply. Newton v. Taylor (M. E.), April 23, 1874. Keference to Arbitration. Parties may agree that their submission of the suit to the award of any person be made a rule of any Court of Record : 9 & 10 Will. 3, c. 15. The authority of aa arbitrator appointed by the Court, or under an agreement that the submission be made a rule of Court, is irrevocable, except by leave of the Court; and the arbitrator is bound to proceed with the reference notwith- standing any such revocation, and to make his award, although the person making the revocation does not afterwards attend the reference : 3 & 4 Will. 4, c. 42, s. 39. " Every agreement or submission to arbitration by consent, whether by deed or instrument in writing not under seal, may be made a rule of any one of the superior Courts of Law or Equity at Westminster on the application of any party thereto, unless such agreement or submission contain words purporting that the parties intend that it should not be made a rule of Court ; and if in any such agreement or submission it is provided that the same shall or may be made a rule of one in particular of such superior Courts, it may be made a rule of that Court only " : 17 & 18 Vict. c. 125, s. 17 (Com. Law Procedure Act). " And if, when there is no such provision, a case be stated in the award for the opinion of one of the superior Courts, and such Court be specified in the award, and the documents authorizing the reference have not, before the publication of the award to the parties, been made a, rule of Court, such document may Ije made a rule only of the Court specified in the award " : Ibid. '•And where in any case the document authorizing the reference is, or has been, made a rule or order of any one of such superior Courts, no other of such Courts shall have any jurisdiction to entertain any motion respecting the arbitration or award " : Ibid. The apphcation to make the agreement or submission a rule of Court must be on notice, unless the submission provides that either party may make it an order of the Court without notice to the other party. The submission is filed in the Report OfiSoe, and a note of the filing made on the order before the order is passed : Cons. Ord. 23, rule 23. Neither the want of an appeal, nor the inability of the arbitrator to grant an . 2 N 2 Digitized by Microsoft® 548 STATUTORY JURISDICTION. injunction, forms a valid objection to a reference under an agreement to refer : WiUesford v. Watson, L. R. 14 Eq. 572 ; R. 0. L. E. 8 Ch. 473. An agreement to submit the affairs of a partnership to arbitration, and that the submission shall be made a rule of a Court of Common Law, cannot be pleaded in bar to a suit in equity seeking discovery, complaining of the pit being sued in actions, and praying for a receiver ; although arbitrators have been appointed before the bill is filed, and the submission has since been made an order of the Court : CooJce v. Cooke, L. B. 4 Eq. 77. The jurisdiction of the superior Courts in such a case is not ousted by the provisions of the Common Law Procedure Act : S. C. If the agreement to submit also contains a covenant not to take proceedings at law or in equity, whether in that case the submission may be pleaded in bar of any proceedings in any superior Court except that before which the reference is pending, quiere: S. C. But where there has been an agreement to refer under the Railway Companies Arbitration Act, 1859, the jurisdiction of the Court is taken away : Watford and Eickmansworth By. Co. v. London and North Western My. Co., L. E. 8 Eq. 231. And where, in a reference under the Arbitration Act of Will. 3, an award has been made, the jurisdiction in the matter of the award of every superior Court, except that before which the reference is pending, is excluded : Cooke v. Cooke, L. E. 4 Eq. 77. A submission to arbitration under the Lands Clauses Act, 1845, is not a " sub- mission by consent " within the meaning of the Common Law Procedure Act, 1854, B. 17 : Be Harper, L. R. 20 Eq. 39, explaining Be Harper, L. R. 18 Eq. 539. See also Be Newbold, 14 C. B. (N.S.) 405 ; Shades v. Airedale Drainage Commissioners, L. R. 9 0. P. 508. Where a submission is made a rule of Court under sect. 36 of the Lands Clauses Act, the Court has the same jurisdiction as in the case of submissions under the 9 & 10 Will. 3, c. 15 : Be Harper, L. R. 20 Eq. 39. ' Stay of PEOCKiDiNas. " Whenever the parties to any deed or instrument in writing to be hereafter made or executed, or any of them, shall agree that any then existing or future differences between them, or any of them, shall be referred to arbitration, and any one or more of the parties so agreeing, or any person or persons claiming through or under him or them, shall nevertheless commence any action at law or suit in equity against the other party or parties, or any of them, or against any person or persons claiming through or under him or them in respect of the matters so agreed to be referred, or any of them, it shall be lawful for the Court in which th^ action or suit is brought, or a judge thereof, on application by the deft or defts, or any of them, after appearance and before plea or answer, upon being satisfied that no sufBoient reason exists why such matters cannot be, or ought not to be, re- ferred to arbitration according to such agreement as aforesaid, and that the deft was, at the time of the bringing of such action or suit, and stilL is, ready and willing to join and concur in all acts necessary and proper for causing such matters so to be decided by arbitration, to make a rule or order slaying all proceedings in such action or suit, on such terms as to costs and otherwise as to such Court or judge may seem fit : Provided always, that such rule or order may at any time after- wards be discharged or varied as justice may require " : 17 & 18 Vict. c. 125, a. 11. Digitized by Microsoft® ABBITBATION. 543 The Court has no jurisdiction to stay the proceedings unless the instrument on which the action is brought contains an agreement to refer the differences to arbitration : Blyihe v. Lafone, 5 Jur. (N.S.) 364. The proceedings will be stayed wherever the application is made lonafide by a party who has always been ready to refer, and there are matters in dispute within the meaning of the agreement : Dan. 5th ed. 1907 ; Bussdl v. Pellegrini, 6 E. & B. 1020; 3 Jur. (N.S.) 183, 185; Hirsch v. Im Thurn,4: C. B. (N.S.) 569; 4 Jur. (N.S.) 587 ; WickhamY. H(wdy, 5 Jur. (N.S.) 871, Ex. ; Lury v. Pewrsm, 1 0. B. (N.S.) 689 ; Wheatley v. Westminster Brymbo Colliery Co., 2 Dr. & Sm. 347 ; 11 Jur. (N.S.) 232 ; Willesford v. Watsm, L. E. 14 Bq. 572 ; S. 0., L. E. 8 Ch. 473 ; GilUtt v. Thornton, L. E. 19 Eq. 599. And the Court has left it to the arbitrators to decide whether the matters in dispute between the parties were within the agreement to refer ; Wellesford v. Watson, L. E. 14 Eq. 572; S. C, L. E. 8 Ch. 473. Any deft has the right to apply for stay of proceedings under sect. 11 : S. C. EVIDENCB OF AeBITEATORS. The Court will admit the evidence of arbitrators in explanation of their awards* And where they have admitted by afBdavit the mistakes made, the Court has power to send back the matter for reconsideration or to set award aside : Eobson V. Bailston, 1 B. & A. 723 ; Hutchinson v. SMpperton, 13 Q. B. 955 ; Mills v. Bowyer^ Co., 3 K. & J. 66 ; Re Dwre Valley By. Co., L. E. 6 Eq. 429. Failure of Parties, or Arbitrators, oe Eeferemce. " If in any case of arbitration the document authorizing the reference provides that the reference shall be to a single arbitrator, and all the parties do not, after difficulties have arisen, concur in the appointment of an arbitrator, or if any ap- pointed arbitrator refuse to act, or become incapable of acting, or die, and the terms of such document do not shew that it was intended that such vacancy should not be supplied, and the parties do not concur in appointing a new one ; or if where the parties or two arbitrators are at liberty to appoint an umpire ov third arbitrator — such parties or arbitrators do not appoint an umpire or third arbitrator or if any appointed umpire or third arbitrator refuse to act, or become incapable of acting, or die, and the terms of the document authorizing the reference do not shew that it was intended that such a vacancy should not be supplied, and the parties or arbitrators respectively do not appoint a new one — then in every such instance any party may serve the remaining parties or the arbitrators, as the case may be, with a written notice to appoint an arbitrator, umpire, or third arbitrator respectively " : 17 & 18 Vict. c. 125, s. 12, " And if within seven clear days after such notice shall have been served no arbitrator, umpire, or third arbitrator be appointed, it shall be lawful for any judge of any of the superior Courts of Law, or Equity at Westminster, upon summons to be taken out by the party having served such notice as. aforesaid, to appoint an arbitrator, umpire, or third arbitrator, as the case may be ; and such arbitrator, umpire, or third arbitrator respectively shall have the like power to act in the reference, and make an award, as if he had been appointed by consent of all parties " : Ibid. This section does not apply where the reference is to three arbitrators, one to be appointed by each of the parties, and the third to be chosen by the two so appointed " : Gumm v. Hallett, L. E. 14 Bq. 555, Digitized by Microsoft® 550 STATUTORY JURISDICTION. " Where the reference is, or is intended to be, to two arbitrators, one appointed by each party, it shall be lawful for either party, in case of the death, refusal to act, or incapacity of any arbitrator appointed by him, to substitute a new arbi- trator, unless the document authorizing the reference shew that it was intended that the vacancy should not be supplied " : 17 & 18 Vict. c. 125, s. 1 3. " And if on such a reference one party fail to appoint an arbitrator, either originally or by way of substitution as aforesaid, for seven clear days after the other party shall have appointed an arbitrator, and shall have served the party so failing to appoint with notice in writing to make the appointment, the party who has appointed an arbitrator may appoint such arbitrator to act as sole arbitrator in the reference, and an award made by him shall be binding on both parties as if the appointment had been by consent ; provided, however, that the Court or a judge may revoke such appointment on such terms as shall seem just" : Ibid. " Where the reference is to two arbitrators, and the terms of the document authorizing it do not shew that it was intended that there should not be an umpire, or provide otherwise for the -appointment of an umpire, the two arbitrators may appoint an umpire at any time within the period during which they have power to make an award, unless they be called upon by notice as aforesaid to make the appointment sooner " : 17 & 18 Vict. c. 125, s. 14. Where a suit in equity is referred and the reference proves abortive, the suit proceeds as if there had been no such reference : Cooh v. Jackson, 6 Ves. 11 ; Crawshay v. Collins, 3 Sw. 90. And the rule seems to have been similar at common law : see Russell on Arbitration, 4th ed. 699. And where the reference fails through the fault of a party to the submission equity has interfered and enforced the contract against him : Morse v. Merest, 6 Mad. 26. But where the arbitrators are to decide that which is the essence of the con- tract, and they fail to do so, and there has been no part performance, neither the submission nor the contract can be carried out ia equity : Russell on Arbitration, 4th ed. 700 ; see also Cooth v, Jackson, 6 Ves. 11 ; Earl of Damley v. London, Chatham, and Dover By. Co., 3 De G. J. & S. 24 ; S. C, L. R. 2 H. L. 43. But equity has upon failure of the reference enforced an agreement which was to sell at a fair valuation : Milnes v. Oery, 14 Ves. 400. And if the matter of the submission was not of the essence of the contract, or, if there had been a part performance of it, equity has enforced it notwithstanding the failure of the reference : Cheslyn v. Dolby, 2 Y. & C. 170 ; Oourlay v. Duke of Somerset, 19 Ves. 429. Award — Time enlarged. Upon motion, &c. and npon reading, &c., Let the time for A. and B., the arhitrators named in the order dated, &o. [the order of reference], for making their award pursuant to the said order, be enlarged until the — day of — . " The arbitrator acting under any such document or compulsory order of refer- ence as aforesaid, or under any order referring the award back, shall make his award under his hand and (unless such document or order respectively shall contain a different limit of time) within three months after he shall have been appointed, and shall have entered on the reference, or shall have been called Digitized by Microsoft® AEBITRATION. 551 upon to act by a notice in writing from any party, but the parties may by con- sent in writing enlarge the term for making the award ; and it shall be lawful for the superior Court of which such submission, document, or order is or may be made a rule or order, or for any judge thereof, for good cause, to be stated in the rule or order for enlargement, from time to time to enlarge the time for making the award " : 17 & 18 Vict. o. 125, s. 15. " And if no period be stated for the enlargement in such consent or order for enlargement, it shall be deemed to be an enlargement for one month " : Ibid "And in any case where an umpire shall have been appointed it shall be lawful for him to enter upon the reference in lieu of the arbitrators, if the latter shall have allowed their time or their extended time to expire without making an award, or shall have delivered to any party or to the umpire a notice in writing stating that they cannot agree " : Ibid. The order enlarging the time may be made after the expiration of the time for making the award: Watsons. Bennett, 6 Jur. (N.S.) 637 ; 8 W. R. 612; Be Warner and Powell, L. R. 3 Eq. 261 ; Be Dare Valley By. Co., L. E. 4 Ch. 554. Award remitted. Let it be referred back to J. D., J. K., and T. W., the umpire and referees, or any two of them, to reconsider and redetermine the several matters referred to them for their determination by the order dated the — day of — . Let the further consideration of the costs of this application be reserved until after the said umpire and referees, or any two of them, shall have made their further award. — Liberty to apply. Mais V. Bowyers' Co. (V.-C. W.), 3 K. & J. 66. Similar Order— r-Undertdking^ The applicants by their counsel undertaking not to make any claim beyond the sum of 6«. for damage done to the surface of the land taken and purchased by the Dare Valley Eailway Company, Let it be referred back to the said J. 0. (the umpire), to reconsider and rede- termine the matters referred to him by the order dated the — day of — . Be Dare Valley Bailway Company (V.-C. G.), L. E. 6 Eq. 429. " In any case where a reference shall be made to arbitration as aforesaid the Court or a judge shall have power at any time, and from time to time, to remit the matters referred, or any or either of them, to the reconsideration and redeter- mination of the said arbitrator, upon such terms as to costs and otherwise as to the said Court or judge may seem proper ": 17 & 18 Vict. c. 125, s. 8. The object of this section was where any error, formal or otherwise, had occurred which would vitiate the award, to enable the Court to send it back, if they thought fit, to the arbitrator to corrfect such error, instead of setting the award wholly aside : Mills v. Bowyers' Co., 3 K. & J. 66. The 8th section of the 17 & 18 Vict. c. 125, does not authorize the Court to remit the award on any ground except such as before the statute would have induced the Court to set aside the award or treat it as a nullity : S. C. The fact that the submission contains a clause empowering the Court to refer back the award in case of a motion to sot the award aside, does not exclude the Digitized by Microsoft® 552 STATUTOEY JURISDICTION. • general power to remit the award, although no motion be made to set it aside ; Morris v. Morris, 6 E. & B. 383 ; S. C, 25 L. J. (Q.B.) 261 ; cited in Eussell, 445. And where the award is bad on its face, tiot being sufficiently final or certain, the award will be remitted : S. 0. ; Se Tidiwell, 33 Beav. 213 ; 10 Jur. (N.S.) 143. So, also, where although good on its face it is invalid : Awning v. Ea/rtley, 27 L. J. (Ex.) 145. An arbitrator having signed his award is functui officio, and cannot alter the slightest error in it. The proper course where the error is technical or trivial is to obtain an order to refer the award back to the arbitrator : Ward v. Dean, 3 B. & Ad. 234; Re Dare Valley, L. R. 6 Eq. 429 ; Mordue v. Palmer, L. E. 6 Ch. 22. Where the arbitrator himself admits a mistake of law or fact, the case may be remitted to him : Mills v. The Bowyers' Co., 3 K. & J. 66 ; Flynn v. Bdbert- son, 4 0. P. 324; Lochwood v. Smith, 10 W. R. 628. But an award will not be sent back to the arbitrator on the ground of mistake either of law or fact, except where the arbitrator himself admits the mistake : Lancaster v. Eemington, 4 Ad. & E. 345 ; Hodgkinson v. Fernie, 3 0. B. (N.S.) 189 ; 26 L. J. (O.P.) 217 ; Dumn v. Blahe, L. E. 10 C. P. 388. Award set aside. Let the award dated the — day of — , made by D, G., of — , &o., pursuant to the' order dated, &c., be set aside and discharged. Award under Lands Clauses Consolidation Act set aside — Order Nisi. Upon motion, &c., by counsel for B. V. E., it was alleged that by an order made in these matters dated, &c., it was upon production of certain submissions to arbitration dated, &c., ordered that the said submissions should be made an order of this Court. That — made his award in writing dated, &o., and the said B. V. E. is ad- vised that the same ought to be set aside on the following grounds [stating thern]. It was therefore prayed that the said South Devon Eailway Company might on the 20th January next shew cause why the said award should not be set aside. Whereupon, and upon read- ing the said order, the said award, and the copy memorandum thereto annexed, and an affidavit of, &c., Let the said award be set aside unless the said South Devon Eailway Company do on or before the 27th January next shew unto this Court good cause to the contrary. Elliot V. South Devon Railway Company, 2 De G. & Sm. 17. AWAED SET ASIDE. Under the recent practice, if the reference had been by order of the Court of Chancery made in a suit in that Court, the proper mode of impeaching the award has been by motion supported by affidavits : Crawshay v. Collins, 3 Sw. 90 ; Dick v. Milligan, 2 Ves. Jun. 23. Digitized by Microsoft® AEBITEATION. 553 And on a reference under the 9 & 10 Will. 3, o. 15, where the submission pro- vided for its being made a rule of Chancery, the proceeding has been by motion : Dawson v. Sadler, 1 S. & S. 537. And generally when the objections to the award are such as can be conveni- ently and effectually discussed on motion, the jurisdiction by bill has been doubt- ful : Eeming v. Swinnerton, per Lord Cottenham, 1 Coo. C. C. 386 ; 2 Phill. 79. Where.an arbitrator receives evidence on one side in the absence of the other the award may be set aside : Walker v. Frobisher, 6 Ves. 70 ; Ddbson v. Groves, 6 Q. B. 637. So, too, where he improperly rejects evidence : Be Eaigh, 3 De G. P. & J. 157. But an award will not be set aside where the arbitrator erroneously rejects admissible, or receives inadmissible, evidence : Sagger v. Baker, 14 M. & W. 9, cited in Eussell on Arbitration, 647. Nor will it be set aside (if good on its face) on the ground of mistake either of fact or law : Lancaster v. ffemington, 4 A. & B. 345 ; Hodgkinson v. Femie, 3 C. B. (N.S.) 189 ; 26 L. J. (C.P.) 217 ; Binn v. Blake, L. R. 10 0. P. 388. An award may be set aside upon any of the grounds of corruption, partiality, misconduct, or irregularity in the course of the proceedings of the arbitration : Ooodman v. Bayers, 2 Jac. & W. 259, per Sir WiUiam Grant ; Tittenson v. Peat, 3 Atk. 529. It has been set aside on the ground of interviews between the arbitrator and one party in the absence of the other : Ea/rvey v. Bhelton, 7,Beav. 455. And on the ground that the arbitrator has improperly delegated his anthority : Be Eastern Counties By. Co., 3 De G. J. & S. 610 ; Be Ea/igh, 3 De G. P. & J. 157. But where an award is sought to be set aside on the ground of the misconduct or corruption of the arbitrator, there must be something more than mere sus- picion : Be Eopper, 2 Q. B. 375 ; Crossley v. Clay, 5 C. B. 581 ; Moseley v. Simpson, L. R. 16 Bq. 226. Irregularities in the mode of conducting an arbitration may be waived by oontiniiing the arbitration after they have been discovered : BeSalkeldand Slater,, 12 Ad. & B. 245 ; Bignell v. Oale, 2 Man. & G. 364 ; Be Tunno and Birdi 5 B. «& Ad. 488 ; Moseley v. Simpson, L. R. 16 Bq. 226. An award made by the umpire and one of two arbitrators in the absence of the other is a bad award and will be set aside : Morgan v. Boult, 11 W. E. (Q.B.) 264. Where an award is not final, or uncertain, it may be set aside : Russell, 650-2. And where the arbitrator exceeds his authority the award is bad in all cases, unless the bad parts are clearly separable from the rest of the award and do not affect the good parts : Ibid. Limit of Time foe Motion to bet aside Award. Awards procured by corruption or undue means shall be adjudged to be void and be set aside, provided "complaint of such corruption or undue practice be made in the Court where the rule is made for submission to such arbitration or umpirage before the last day of the next term after such arbitration or umpirage made and published to the parties " : 9 & 10 Will. 3, c. 15, s. 2. The notice of motion and filing an affidavit in support is a complaint within the meaning of this section : Corporation of Euddersfidd v. Jacomb, L. R. 10 Ch. 92. Digitized by Microsoft® 554 STATUTOEY JURISDICTION. There is no " publishing to the parties " until they have notice that the award has been made : Brooke v. Mitchell, 6M. & W. 473 ; Potter v. Newman, 4 Dowl. 504, cited in Eussell on Arbitration, 636. And as to what constitutes publication of notice, see Russell, 63, citing Mussd- Wooke V. Dimkin, 9 Bing. 605 ; Macarthvr v. Camphell, 5 B. & Ad. 518 ; Brooke V. Mitchell, 6 M. & W. 473 ; Moore v. Barley, 1 C. B. 445. Thfe time will run from the date of such notice, although it be not until long after the party has intimation of th? contents of the award, or is served with a copy of it : Semsworth v. Brian, 7 M. & G, 1009. It seems to have been doubtful at common law whether the Courts had dis- cretionary power to extend the time prescribed by the statute of 9 & 10 Will. 3, c. 15. See Be Perring and Kymer, 3 Dowl. 98 ; Be Smith and Blake, 8 Dowl. 133 ; S. C, 2 Jur. 10i5 ; Be Eocma and Eowell, 4 M. & G. 767 ; Midland By. Co, V, Beminq, 11 Jur. 658 ; North British By. Co. v. Trmadall, L. E. 1 0. P. 401. But in equity the time limited by the statute has been enlarged : Harvey v. Shelton, 7 Beav. 455. The reference of a cause by agreement out of Court is a reference under the statute, and not at common law, and therefore the motion to set aside the award must without fail be made within the time giveli by the statute : Russell, 640 ; Bushworth v, Barron, 3 Dowl. 317 ; Beynolds v. Askew, 5 Dowl. 682. The reference of a cause by an order of the judge, or an order of nisi prius, or by a rule of Court, is not a_ reference under the statute, but, by the common law power of the Court, and the statutable limitation of time does not necessarily apply : Russell, 641, and cases cited. Where the reference is compulsory under the Common Law Procedure Act, 1854, " all applications to set aside any award made on a compulsory reference under this Act shall and may be made within the first seven days of the term next following the publication of the award to the parties, whether made in vacation or tenu ; and if no such application is made, or if no rule is granted thereon, or if any rule granted thereon is afterwards discharged, such award shall be final between the parties ": 17 & 18 Vict. o. 125, s. 9. Deliveet op Possession. " Where any award made on any such submission, document, or order of reference as aforesaid directs that possession of any lands or tenements capable of being the subject of an action of ejectment shall be delivered to any party, either forthwith or at any future time, or that any such party is entitled to the possession of any such lands or tenements, it shall be lawful for the Court of which the document authorizing the reference is or is made a rule or order to order any party to the reference who shall be in possession of any such lands or tenements, or any person in possession of the same claiming under or put in possession by him since the making of the document authorizing the reference, to deliver possession of the same to the party entitled thereto, pursuant to the award " : 17 & 18 Vict. c. 125, s. 16. " And such rule or order to deliver possession shall have the effect of a judgment in ejectment against every such party or person named in it ; and execution may issue, and possession shall be delivered by the sheriff as in a, judgment by ejectment." Digitized by Microsoft® ARBITRATION. 555 Peoductiok of Documents. Where a submission to arbitration has been made a rule of the Court of Chancery, the Court does not thereby acquire jurisdiction to order the production of documents without suit : lie Anglo-Austrian Bank, 10 L. T. (N.S.) 369, Fkiendlt Societies, BEifEFiT, and Boilding Acts. 37 & 38 Vict. c. 42 ; 38 & 39 Vict. c. 9. Where the rules of a society under the 87 & 38 Vict. c. 42, direct disputes to be referred to arbitration, the arbitrators are to be named and elected in the manner such rules provide, or, if there be no such provision, at the &st general meeting of the society, none of the said arbitrators being beneficially interested directly or indirectly in its funds, &c. : 37 & 38 Vict. c. 42, s. 33. " And should either of the parties to the dispute refuse or neglect to comply vfith or conform to such award within a time to be limited therein, the Court upon good and sufficient proof being adduced of such award haying been made, and of the refusal of the party to comply therewith, shall enforce compliance with the same upon the petition of any person concerned : Ibid. " Where the parties to any dispute arising in a society under this Act agree to refer the dispute to the Registrar, or where the rules of the society direct disputes to be referred to the Registrar, the award of the Registrar shall have the same effect as that of arbitration " : Ibid. The Court may hear and determine a dispute in the following cases : — (1) If it shall appear to the Court upon the petition of any person concerned, that application has been made by either party to the dispute to the other party, for the purpose of having the dispute settled by arbitra- tion under the rules of the society, and that such application hasnot within forty days been complied with, or that the arbitrators have refused, or for a period of twenty-one days have neglected to make any award : (2) Where the rules of the society direct disputes to be referred to the Court or to justices : 37 & 38 Vict. c. 42, s. 35. " Every determination by arbitration, or by the Court, or by the Registrar, under this Act of a dispute shall be binding and conclusive on all parties, and shall be final to all intents and purposes, and shall not be subject to appeal, and shall not be removed or removable into any Court of Law, or restrained or restrainable by the injunction of any Court of Equity ; but a case may be stated for the opinion of the Court : 37 & 38 Vict. c. 42, s. 36. The Courts, both of Equity and Common Law, are averse to the exercise of any jurisdiction in the internal disputes of benefit building societies, or to interfere with the particular mode provided by the Legislature for the settlement of such disputes : Harmer v. Ooodvng, 3 De G. & Sm. 407 ; Armitage v. Walker, 2 K. & J. 21 1 ; Fleming v. Self, Kay, 518 ; 3 De G. M. & G. 997 ; Thompson v. Planet Benefit Building Society, L. R. 15 Eq. 333 ; Crisp v. Banhury, 8 Ring. 394 ; Rex V. MildenhaU Savings Bank, 6 A. & B. 952 ; Wright v. Deelmg, 4 H. & C. 209. Aebiteation under Lands Clauses Consolidation Act— Sect. 25. " When any question of disputed compensation by this or the special Act or any Act incorporated therewith, authorized or required to be settled by arbitra- Digitized by Microsoft® 556 STATUTORY JURISDICTION. tion, shall have arisen, then unlesa both parties shall concur in the appointment of a single arbitrator, each party on the request of the other party shall nominate and appoint an arbitrator to whom such dispute shall be referred " : 8 Vict. c. 18, s. 25. " And every appointment of an arbitrator shall be made on the part of the promoters of the undertaking under the hands of the said promoters, or any two of them, or of the secretary or clerk, and on the part of any party under the hand of such party, or if such party be a corporation aggregate, under the common seal of such corporation ; and such appointment shall be delivered to the arbitrator, and shall be deemed a submission to arbitration on the part of the party by whom the same shall be made " : Ibid. The submission to arbitration " may be made a rule of any of the Superior Courts, on the application of either of the parties " : sect. 36. And "no award made with respect to any question referred to arbitration under the provisions of this or the special Act shall be set aside for irregularity or error in matter of form ": sect. 37. Costs. When a cause alone, or a cause and all matters in difference are referred, and nothing is said in the submission respecting costs, the- arbitrator has an implied authority to adjudicate respecting the costs of the cause, but not of the reference or award : Russell, 354, and cases cited. And each party must bear his own expenses of the reference, and is liable to half the costs of the award : Ibid. At common law an arbitrator has no power to give costs as between solicitor and client, unless specially authorized so to do : Whitehead v. Frith, 12 East, 165. But in equity where the costs have been referred, the arbitrator has power to award costs as between solicitor and client : MordiMe v. Palmer, L. E. 6 Ch. 22. In compulsory references imder the Common Law Procedure Act, where the order of reference is silent as to costs, the arbitrator has no power over the costs, either of the cause or reference. The costs of the cause or reference do not abide the event, and each party bears his own costs : Russell, 355, and cases cited. In references under the Lands Clauses Act, 1845, " all the costs of any such arbitration and incident thereto, to be settled by the arbitrators, shall be borne by the promoters of the undertaking, unless the arbitrators shall award the same or a less sum than shall have been offered by the promoters of the undertaking, in which case each party shall bear his own costs incident to the arbitration, and the costs of the arbitrators shall be borne by the parties In equal proportions " : sect. 34. The coats of the reference and award under the Lands Clauses Act are now taxed by the taxing master if required : 32 & 33 Vict. c. 18, s. 1. The costs of and attending arbitrations under the Railways Clauses Consolida- tion Act, 1845 (8 & 9 Vict. c. 20), are to be in the discretion of the arbitrators. So, too, under the Companies Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20). Under the Railway Companies Arbitration Act, 1859 (22 & 23 Vict. c. 59), " except where and as the companies otherwise agree, the costs of and attending the arbitration and the award shall be in the discretion of the arbitrator, and the arbitrators, and the umpire respectively " : sect. 27. Digitized by Microsoft® ARBITRATION. 557 And " except and as the companies otherwise agree, and if and so far as the award does not otherwise determine, the costs of and attending the arbitration and award, shall be borne and paid by the companies in equal shares, and in other respects the companies shall bear their own respective costs " : sect. 28. Where the purchase-money of land taken by a railway company has been ascertained by arbitration under the Lands Clauses Act, 1845, the vendor is not entitled to a hen on the land sold for the costs of the arbitration payable by the company : Earl Ferrers v. Stafford and Uttoxeter By. Co., L. R. 13 Bq. 524. LiBEETY TO APPLY. " Liberty to apply " authorizes, if an award be made, proceedings on the award, and if the arbitration does not proceed, an application as if the reference had not been made : Orawshay v. Collins, 3 Sw. 90. Digitized by Microsoft® ( 558 ) CHAPTER XXXIII. THE COPYHOLD ACTS, 1841, 1843, 1852, and 1858. 4 & 5 Vict. c. 35; 6 & 7 Vict. c. 23; 15 & 16 Vict. c. 51 ; 21 & 22 Vict. c. 94. Investment of Compensation Money — Interest to Tenant for Life. Upon the petition, &o., Let the sum t)f £ — in Court to the credit of " Ex parte The Copyhold Commissioners," The account, &o., he invested in Consolidated £3 per Cent, Annuities to the credit of, &c.. Let the dividends as they accrue upon such Consolidated Annuities when pur- chased be paid to the petitioner — during his life or until further order. \If forty shillings costs have not been tendered and the Commissioners appear : Let the petitioner — pay to the Copyhold Commissioners their costs of this application, to be taxed, &c.] [If costs to he paid out of fund] : Tax the costs of the petitioner [and of the Copyhold Commis- sioners] of this petition and consequent thereon.] Let out of the £ — cash in Court to the credit of, &c., the said costs, when taxed, be paid, &c. Let the residue of the said cash be invested in — Annuities to the credit of, &c., and Let the dividends as they accrue upon such annuities be paid, &c. , Suit — Inquiry if Enfranchisement he heneficial — Consequential Directions. Let an inquiry be made whether it will be beneficial for the trust estate in question in this cause that the copyhold portion thereof holden of the manor of — should be enfranchised under the provisions of the Copyhold Act, 1852 ; and if so, whether the Copyhold Commis- sioners, under the provisions of the 22nd section of the said Act, have approved of the title of the lord of the said manor, or have directed that the enfranchisement consideration shall be invested as by the said Act directed ; and if it shall appear that the Copyhold Commis- sioners have approved of such title, or have directed such investment, an inquiry what sum or sums of money will be due to the lord and steward of the said manor as compensation for such enfranchisement. And Let, upon the due execution of the deed or deeds of enfranchise- ment by such person or persons as the said Commissioners shall Digitized by Microsoft® THE COPYHOLD ACTS. 559 require being certified, so mtich of £ — in Court to the credit of, &o., as will raise the amount certified to he due besold. And Let the money to arise by such sale be paid to such person or persons, or be carried over to the credit of " Ex parte The Copyhold Commissioners," under the provisions of the 39th section of the said Act as shall be certified [to be proper]. Thellusson v. Woodford (M.E.), Nov. 24, 1855 ; Seton, 1094. Payment into Court. Whenever the person for the time being entitled to any rights extinguished by means of the Copyhold Acts is entitled thereto for a limited estate or interest only, or as a trustee for sale or otherwise, without power to give an effectual discharge for the same, or is under any legal disability, or is a corporation not authorized to sell such rights otherwise than under the provisions of the Acts, or refuses to re- ceive such compensation, or does not prove his title to the satisfaction of the Commissioners, the compensation payable for such rights is (unless it is under £20, or being under £200, is directed to be paid to trustees) to be paid into Court to an account, " Ex parte The Copyhold Commissioners." See 4 & 5 Vict, c. 35, ss. 73, 74, 75 ; 6 & 7 Vict. c. 23, s. 14 ; 15 & 16 Vict. c. 51, s. 39 ; Daniell, 1928. " Money hereafter paid into Court pursuant to the Copyhold Acts shall be placed in the books at the Chancery Pay Office to the credit of " Mx parte The Copy- hold Commissioners," as directed by the said Acts, and in addition thereto, to the account of the particular manor in respect of which the money shall be so paid in ; and in the request for a direction to receive such money the name and locality of such particular manor shall be stated " : Chancery Funds Eules, 1874, rule 33. Application of Money. Such compensation may, by an order of the Court, obtained on petition, be applied in the purchase or redemption of the land tax, or the discharge of any debt or incumbrance affecting the rights in respect of which such compensation was paid, or affecting other hereditaments settled therewith to the same or the like purposes, or in payment to any party becoming absolutely entitled to such money ; and be in the meantime invested in Consols or Reduced Annuities or Grovemment or real securities, and the dividends and annual income ordered to be paid to the party entitled : 15 & 16 Vict. o. 51, s. 39. The order for the application of the compensation is made upon the petition of the person for the time being entitled to the enjoyment of the manorial rights : 4 & 5 Vict. c. 35, s. 73 ; 15 & 16 Vict. c. 51, s. 39. Where any ecclesiastical corporation within the meaning of the Episcopal and Capitular Estates Act, or the Ecclesiastical Commissioners, have only a reversion- ary interest in any manorial rights extinguished by enfranchisement, the con- sideration of such enfranchisement is to be dealt with in manner directed by the 15 & 16 Vict. c. 51, until the time when such reversionary interest would, if the same had not been extinguished, have come into possession, when the considera- tion, or any Government securities in which it may have been invested, is, upon petition to the Court of Chancery, to be paid or transferred to the Church Estate Commissioners, who are to be considered the parties absolutely entitled to such money : 21 & 22 Vict. c. 94, s. 5. Where any of the Universities of Oxford and Cambridge and Durham respec- Digitized by Microsoft® 560 STATUTORY JURISDICTION. tively, or any college therein respectively, or the College of St. Mary of Win- chester, or King Henry the Sixth's at Eton, have only a reversionary interest in any manorial rights extinguished under the Copyhold Acts, and the compensation moneys have not heen paid to trustees, such compensation moneys are to he dealt with in manner directed by the 15 & 16 Vict. c. 51, due notice of any such dealing being previously given to the university or college, until the time when the reversionary interest of such university or coUege in such manorial rights would, if the same had not been extinguished, have come into possession ; when the said consideration moneys, or any securities in which the same may have been invested, are, upon petition to the Court of Chancery, to be paid or transferred to the Copyhold Commissioners, to the account of the university or college entitled thereto, and to be applied by them according to the provisions of the Universities and Colleges Act, 1858, sect. 1 : 24 & 25 Vict. c. 59, s. 4. Notice of petitions dealing with the enfranchisement moneys of Crown manors must be served upon the Commissioners of Woods, Forests, and Land Revenues : 15 & 16 Yiot. 0. 94, ss. 43, 44. Costs. The petitioner is entitled to have his costs of the petition out of the fund : Ea; parte the Archbishop of Oanterhury, 1 Coll. 154. And the Commissioners are entitled to their costs: Ex parte Bishop of Eere- ford, 5 De G. & Sm. 365 ; Ex parte Qiteens' College, Cambridge, 4 Jur. (N.S.) 19. But if forty shillings are tendered they will, in ordinary cases, have to hear their own costs of appearance : see Be Oore LangtorHs Estate, L. R. 10 Ch. 328 ; post, p. 585. Digitized by Microsoft® ( 561 ) CHAPTER XXXIV. THE DEFENCE ACTS, 1842 to 1873. 5 & 6 Vict. c. 94; 23 & 24 Vict. c. 112 ; 27 & 28 Vict. c. 89. Investment of Oom^ensation-money — Interest to Tenant for Life — Costs. Let the £ — cash in Court to the credit of, &c., be invested in Consolidated 3 per Cent. Annuities. Let the dividends as they accrue upon the said annuities during the life of A. [the tenant for life] be paid to the said A. or to his legal personal representatives. Let Her Majesty's principal Secretary of State for the War Department pay to the petitioners their costs of and incidental to the agreement dated, &c., in the petition mentioned, and of the deduction and verification of the title to the lands in the said agreement mentioned [and of this ap- plication and consequent thereon]. Let such costs be taxed by the taxing master in case the parties differ. Trustees appointed to receive Purchase-money — A,pplication to Purposes mentioned in Act. Let the £2370 cash in Court to the credit of In the matter of the Defence Act, 1860, The account, &c., be paid to C. D. E. and W. H. S., they undertaking to hold the same upon such trusts as having regard to the respective natures of the properties vfill correspond most nearly to the uses upon which the said lands and hereditaments comprised in the notice of the — day of — in the petition mentioned, and whereof the petitioner H. P. D. is tenant for life under the said indenture of the — day of — , are now settled. Be Delme (M. K.), Jan. 21, 1865 ; Be Morshead, 33 Beav. 265. Betainer hy Tenant in Tail out of Compensation-money of Amount expended in Permanent Improvement. It appearing that the applicant W. has expended the sum of £1819 88. in the erection of a steam-engine, with suitable machinery and additional buildings for the reception and proper use thereof, at — , to make good the deficiency in the supply of water to the said mill occasioned by the diversion and impounding of water through opera- tions carried on undenJthe.. direction of the War Department, and the 562 STATUTORY JURISDICTION. judge being of opinion that the said eteam-engine, machinery, and buildings are of a permanent character, Let the applicant W. be at liberty to retain for his own use, in part satisfaction of the said sum of £1319 8«. expended by him, the sum of £920 received^ by him of the said principal Secretary of State in discharge 6f the like amount by the award dated, &c., awarded as compensation for the damage and loss occasioned by the said diversion and impounding, &o. Ex parte Duke of Wellington, 3 De G. F. & J. 13 ; Seton, 1091. Atplication of Compensation-money. Where the compensation for any land or interest therein taken for the purposes of the Defence Acts amounts to or exceeds £200, and the land or interest therein belongs to any person under any disability or incapacity, or not having the abso- lute interest therein, or if it belongs to any person who by reason of absence is pre- vented from treating for the lands, or who cannot be found, or who refoses to ' accept the compensation, or neglects or fails to make out a title to the lands, or the interest claimed therein, or to any person or corporation not having power under these Acts to agree as to the amount of such compensatioQ, or to sell and convey such land or interest therein, it must be paid into Court in the matter of these Acts, and of the persons claiming to be interested therein (naming them) : 5 & 6 Vict. c. 94, s. 25; 22 & 23 Vict, c 21, s. 8 ; 27 & 28 Vict. c. 89 ; Dan. 1984. The Court is empowered to appoint a trustee or trustees for the purpose of re- ceiving the purchase-money and applying it for any purpose mentioned in the Act: 5&6 Vict. c. 94, s. 26. The lands required to be taken by the Secretary of State, after payment of the compensation-money, vest in the said Secretary of State on behalf of Her Majesty, discharged of all estates, rights, and interests whatsoever : 23 & 24 Vict. c. 112, s. 30. The Court may make such orders for paying the compensation-money, or any I)art of the same, or for placing out snch part thereof as shall be principal in the public funds, or upon Government or real securities, and for payment of the dividends or interest to the persons entitled, or for laying out the principal, or any part of it, in the purchase of other lands, &c., for the benefit of the persons entitled to or interested in the same respectively, or for appointing any person or persons to be trustee or trustees for all or any of such purposes as the Court shall think jiist and reasonable : .5 & 6 Vict, c. 94, s. 26 ; 22 & 23 Vict. c. 21, s. 8. Where pending arbitration damage was occasioned by the works of the Ordnance Department to part of the settled property being taken, and the owner of a limited interest in it repaired the damage at his own expense, erecting build- ings of a permanent character, the sum expended was allowed to be retained out of the compensation-moneys : Mx parte Duke of Wdlinyton, 3 De G. F. & J. 13 ; Order, supra. And the Court has ordered the payment out of Court of the compensation- moneys to trustees to be administered by them : Re Morshead, 33 Beav. 254 ; 10 Jur. (N.8.) 61. Where the compensation is less than £200, but exceeds £20, it may, at the option of the persons entitled for the time being to the rents and profits of the land, either be paid into Court or to trustees : 5 & 6 Vict. c. 94, s. 27. Digitized by Microsoft® THE DEFENCE ACTS. 563 Where the compensation is less than £20 it is to be applied to the use of the persons entitled for the time being to the rents and profits of the lauds : 5 & 6 Vict. c. 94, s. 28. To the compensation required to be paid into Court the sum of £30 is to be added as an equivalent for expenses consequent on such payment ; and the Court of Chancery may allot to any tenant for life, or for any particular or qualified estate, in respect of any expenses of investment incurred by him, any portion of such compensation and additional sum as the Court may deem just : 23 & 24 Vict. e. 112, s. 21. Interest upon the compensation- moneys is only payable from the time of taking actual possession : 23 & 24 Vict. c. 112, s. 32 ; and see Earl of Suffolk v. Lewis, 1 H. & M. 369. In cases of delay on the part of the owner in making out a title to the satisfac- tion of the Secretaiy of State, the latter may pay the amount of compensation (without the addition) into Court ; and upon application for payment of such money to the party entitled, the Court, if of opinion that there was no unreason- able delay, or that a good title was shewn, may order all or any costs occasioned by such payment into Court to be paid by the Secretary of State : 23 & 24 Vict, c. 112, s. 22. All orders and directions in relation to any money paid into Court under the Defence Act, 1860, or the securities upon which the same may be invested, or the dividends thereon, may be made and given upon summonses at chambers : 23 & 24 Vict. c. 112, s. 23 ; but see Be Morshead, 33 Beav. 254; 10 Jur. 61. Service of Petition. The Secretary of State need not be served with petitions dealing with the com- pensation-moneys : i?e Morshead, 33 Beav. 254. Costs. - The costs of and incidental to any agreement with the Secretary of State con- cerning the compensation for lands taken or affected under the provisions of the 23 & 24 Vict. c. 112, and the costs of the deduction and verification of the title, are to be paid by the Secretary of State ; and will be taxed by the taxing master at the request and expense of the Secretary of State : 23 & 24 Vict. c. 112, s. 24 ; see also s. 22, supra. Sale by Skceetary of State for War. Her Majesty's Principal Secretary of State for the War Department may from time to time as he may deem it expedient sell any lands vested in him or under , his control as such Secretary of State, subject to the condition that the lands are " for ever thereafter to be kept free from buildings and other obstructions " : 36 & 37 Vict. c. 72, s. 1. Digitized by Microsoft® 20-2 ( 564 ) CHAPTER XXXV. PAELIAMENTAEY DEPOSIT ACT, 9 & 10 Vict. c. 20. Order wnder Sect. 5. Upon the petition, &c., and upon reading a certificate of the Chair- man of Committees of the House of Lords [or. Speaker, or Deputy- Speaker, of the House of Commons] wherehy it appears, &c. [recite certificate shewing that the hill has heen withdrawn, or not allowed to pro- ceed, or rejected, or tlmt the Act has received the royal assentl^, the cer- tifi.cate of payment [or, transfer into] Court of the sum of £ — and the certificate of the fund in Court, Let the £ — cash in Court to the credit of Ex parte, &c., be paid to [or, the £ — Consolidated.^ per Cent. Annuities in Court to the credit, &c., and any dividends, &c., he trans- ferred and paid to] the petitioners [names of depositors] or to — [the nominees of the depositors, or of the majority of them]. Order on Certificate of Board of Trade. Upon the petition, &c., and upon reading a certificate of — the secretary of the Commissioners, &c., of the Board of Trade, ■whereby it appears [recite certificate shewing that it has heen proved to the satisfac- tion of the Board of Trade that the company home paid up half their capital and expended an equal sum for the purposes of the Act] an aflSdavit of — verifying the signature to the said certificate, the certificate of pay- ment [or, of transfer] into Court, and the certificate of fund. Let the £ — cash in Court to the credit of Ex parte an undertaking, &c., be paid to [or, the £ — Consolidated 3 per Cent. Annuities on the credit, &c., and any dividends, &c., be transferred and paid to] the petitioners [names of depositors] or to — • the nominees of the depositors [or, of the majority of them]. Payment into Couet — Invfstment — Payment out. In all cases in which any sum of money is required by any standing order of either House of Parliament to be deposited by the subscribers to any work or undertaking which is to be executed under the authority of an Act of Parliament, the clerk in the office of the Clerk of Parliaments with respect to money required by any standing order of the House of Lords, and the Clerk of the Private Bill Digitized by Microsoft® PAllLIAMENTARY DEPOSIT ACT. 565 Office in the House of Commons, may, by warrant or order, direct the same to be paid into Court : 9 & 10 Vict. c. 20, s. 2. The money so paid into Court is to be placed to an account. Ex parte the work or undertaking mentioned in the warrant or order, If Bank Annuities, Eeduced Annuities, or Exchequer bills previously purchased with the sum required, the same to be transferred to the like account : 9 & 10 Vict. c. 20, s. 3. If the persons named in the warrant, or the survivors or survivor, desire invest- ment of the cash paid in, or of the dividends on the stock, the Court may, upon petition, order investment in the 3 per Cent. Consolidated, or 3 per Cent. Reduced Bank Annuities, or any Government security or securities: sect. 4. See Be Newport, Abergavenny, and Hereford By. Co., 11 Jur. 160. The fund can only be invested in the securities prescribed in the Act, and cannot be invested in the other securities sanctioned by the general order of the Court : Ex parte Great 'Northern By. Co., L. E. 9 Eq. 274, cited in Dan. 5th ed. 1858. On the termination of the session of Parliament in which the petition or bill for the purpose of making or sanctioning the work or undertaking shall have been introduced into Parliament, or if such petition or bill shall be rejected, or finally withdrawn, or not allowed to proceed, or if the person or persons by whom' the said money was paid or security deposited shall have failed to present a petition, or if an Act is passed authorizing the making of such work or undertaking, the Court may, on the application by petition of the person or persons named in such warrant or order, or the survivor or survivors of them, or the majority of such persons, order the sum of money paid in pursuance of such warrant or order, or the stocks, funds, or securities upon which the same may have been invested, and the interest or dividends thereof, or the Exchequer bills, stocks, or funds so de- posited or transferred as aforesaid, and the interest and dividends thereof, to be paid or transferred to the party so applying, or to any other person or persons whom they may appoint in that behalf : 9 & 10 Vict. c. 20, s. 5. But no such order shall be made in the case of any such petition or bill being rejected, or not being allowed to proceed, or being withdrawn, or not being pre- sented, or of an Act being passed authorizing the making of such work or under- taking, unless upon the production of the certificate of the Chairman of Com- mittees of the House of Lords with reference to any proceeding in the House of Lords, or of the Speaker of the House of Commons with reference to any prooeed- ino- in the House of (Commons, that the said petition or bill was rejected, or not allowed to proceed, or was withdrawn during its passage through one of the Houses of Parliament, or was not presented, or that such Act was passed, which certificate the said Chairman or Speaker shall grant on the application in writing of the person or persons, or the majority of persons named in such warrant, or the survivor or survivors of them : Ibid. The partial withdrawal of a bill does not come within the meaning of the 9 & 10 Vict. c. 20, s. 5, so as to authorize the payment out of Court of so much of the deposit as represents the abandoned part of the undertaking : Be Aberyst- with By. Co., 3 De G. F. & J. 201 ; 7 Jur. (N.S.) 564. The certificate referred to in the 5th section of the Act, if signed by the Deputy-Speaker, will be sufficient : Ex parte the Stockbridge Bailway Bill, L. K. 2 Eq. 364. If the petition is presented by those who paid the money into Court, or by the majority of them, and their signatures to the petition verified by affidavit, the Court will order payment to the nominees. Digitized by Microsoft® 566 STATUTOEY JURISDICTION. And payment to the nominees has been ordered where the signatures were attested by the solicitor without afladavit : Ex parte Brompton Waterworks, 8 W. R. 636, n. But the present practice is to verify the signatures by affidavit. Where the petition for payment out is presented by a public company, tinder the seal of the company, no verification of the seal is necessary for payment out to the nominee : JSx parte London, Ohatham, and Dover Sy. Co., 8 W. E. 636. But the petition itself must be sealed : lie Dartmouth and Torbay Uy. Co., 9 W. E. 609. There is to be inserted in every railway bill, unless the committee to whom it is referred makes other provisions for ensuring the completion of the works, a clause rendering the company liable to certain pecuniary penalties (to be paid into Court), or a clause providing that, notwithstanding the 9 & 10 Vict. c. 20, the stock or sum deposited, and the interest -thereof, is not to be transferred or paid out unless the company shall complete the work within the period limited, or prove to the satisfaction of the Board of Trade that they have paid up half their capital, and expended an equal sum for the purposes of the Act ; and that if the said period shall expire before the railway has been opened, or such proof has been given, the deposit shall be applied as thereinafter mentioned, and the cer- tificate of the Board of Trade that such proof has been given shall be sufficient evidence of the fact so certified, and it shall not be necessary to produce any evi- dence of the Act having been passed : Standing Orders relating to Private Bills, 1871, House of Lords, No. 184; and House of Commons, No. 155 ; cited in Dan. 1859. Where either of such last-mentioned clauses is inserted, there is to be inserted immediately following such clause a further clause providing that the deposit (or the sum of money so recovered by way of penalty) shall be applicable, and after due notice in the London Gazette shall be applied, towards compensating any landowners or other persons whose property may have been interfered with, or otherwise rendered less valuable, by the commencement, construction, or abandon- ment of the railway, or any portion thereof, or who may have been subjected to injury or loss in consequence of the compulsory powers of taking property con- ferred upon the company by the Act, and for which injury or loss no compensa- tion, or inadequate compensation, shall have been paid ; and shall be distributed in satisfaction of such compensation as aforesaid, in such manner and in such proportions as to the Court of Chancery may seem fit : Ibid. If no such compensation shall be payable, or if a portion of the deposit or of the penalty shall have been found sufficient to satisfy all just claims in respect of such compensation, then the deposit or penalty, or such portion thereof as may not be required as aforesaid, shall be paid (or transferred) to, or on the ap- plication of, the person or persons, or the majority of the persons, named in the warrant or order mentioned in the 9 & 10 Vict. c. 20, s. 2, or the survivor or survivors of them, or the company from whom such penalty was recovered : Ibid. Where a warrant for the abandonment of any railway is granted, any money remaining deposited as security for the completion of the railway, or the stocks funds, or securities in which the same is invested, or any Bank Annuities, stocks, funds, securities, or Exchequer bills remaining deposited as such security ; or in case the abandonment authorized is of part only of a. railway, then such propor- tionate part as the Board of Trade thinks fit, of such money, stocks, &c., shall be paid, Iraijsfurrcd, or delivered out to the peisons who would be entitled to receive Digitized by Microsoft® PARLIAMENTARY DEPOSIT ACT, 567 the same if the railway had been completed and opened for public traffic ; and the Court of Chancery will, on the application of those persons, order payment, trans- fer, or delivery out thereof accordingly, on a certificate of the Board of Trade certifying that a warrant for abandonment has been granted : 30 & 31 Vict. 0. 127, s. 34. Where the warrant is granted on condition that the funds or securities shall be applied as part of the assets of the company, and the company is being wound up, the Court may order the funds or securities, or so much thereof as is required to be applied as assets of the company, to be paid, transferred, or delivered out to the official liquidator ; and unless the Court is satisfied that the same, or any part thereof, are not required to be applied as assets, the Court is not to order the same, or any part thereof, to be paid, transferred, or delivered out to any other person : 32 & 33 Vict, c, 114, s. 6. Digitized by Microsoft® ( 508 ) CHAPTEE XXXVI. LANDS CLAUSES CONSOLIDATION ACTS, 1845 and 1860. (8 & 9 Vict. c. 18 ; 23 & 24 Vict. c. 106.) Investment of Purchase-money — Land — Sect. 69. The Court being of opinion that the purchase of the freehold [or, copyhold] lands situate, &c., in the petition mentioned, is a fit and proper purchase wherein to invest the sum of £ — , to he raised as hereinafter mentioned, Let an inquiry he made whether a good title can be made to the said freehold [or, copyhold] lands [or, if Court directs inquiry as to the propriety of purchase as well as to title : Let an inquiry be made whether the purchase, &o., is a fit and proper pur- chase wherein to invest, &c., and if so, Let an inquiry be made whether a good title, &c.] And in case a good title can be made to the said lands and premises. Let a proper conveyance [or, surrender] thereof be settled by the judge. And upon the due execution thereof by such parties as the judge shall direct being certified. Let so much of the £ — in Court to the credit of, &c., as will raise the said sum of £ — be sold ; and Let the money to arise by the said sale be paid to such person or persons as shall be named in the chief clerk's cer- tificate [and in such proportions as shall be therein mentioned]. If ordered : Let the interest as it accrues during the life of A. [the tenant for life] upon the residue of the said annuities, after the said sale, be paid to the said A., or to his legal personal representative. Directions for payment of costs according to the Act. See form, p. 577. Investment of Purchase-money — Enfranchisement of Copyholds — Same Section. The Court being of opinion that the enfranchisement of the copy- hold lands situate, &c., held of the manor of — , is a fit and proper investment for the sum of £ — , to be raised, &c., Let an inquiry be made whether a valid enfranchisement can be made thereof. And if a good title can be made to the said manor, Let a proper deed for effecting the said enfranchisement be settled by the judge. Usual consequential directions. — Directions for payment of costs according to the Act. Digitized by Microsoft® LANDS CLAUSES CONSOLIDATION ACTS. 569 Enfranchisement of Copyholds — Inquiry as to Title (ind as to Sum Let an inquiry be made whether a valid enfranchisement of the copyhold lands and hereditaments in the petition mentioned can be made, and if so, what sum will be required to effect such valid en- franchisement. And upon the certificate of the chief clerk that such valid enfranchisement can be made. Let the sum of £ — , part of the £ — in Court to the credit of, &c., be paid to the petitioner T. C. And thereout Let the petitioner pay the sum required for such en- franchisement of the said copyhold hereditaments, and the purchase of the freehold and inheritance therein, as in the petition mentioned. Let the residue of the said £ — after such payment be held by the petitioner T. C, the treasurer of the college, on behalf of him- self and the petitioners T. M., F. H., &c., as the acting trustees of Cheshunt College, or such persons as shall be the acting trustees thereof for the time being. — Directions for taxation and payment of costs. Be Cheshunt College, 1 Jur. (N.S.) 995. Enfranchisement of Copyholds — Enfranchisement approved — Order made in Suit and tmder the Act. Let the petitioners, the Defts W. S. and L. J., execute the deed of en- franchisement of the copyhold estate of T. J., the testator, approved by the chief clerk, and mentioned in his certificate dated, &c. Let so much of the £ — annuities in Court to the credit of, &c., as will raise £1786, the consideration money and interest, &c., from the — day of — to the — day of — [the total amount to be certified] be sold, and out of the money to arise by such sale the said £1786 and interest be paid, &c., upon the lords of the said manor delivering to the petitioners, as devisees under the will of T. J., the said deed of enfranchisement (the delivery of such deed to be verified by affidavit). — Directions for taxation according to the Act of the costs of petition and of the enfranchisement, and for payment by the Great Northern Eailway Company. — Directions for taxation of costs of suit and for payment out of fund in Court. Dixon v. Jackson, 25 L. J. (Ch.) 588. Investment of Purchase-money — Redemption of Land Tax — Same Section. The Court being of opinion that the purchase or redemption of the land tax upon the hereditaments and premises situate, &c., in the contract dated, &c., in the petition mentioned, is a fit and proper purchase wherein to invest the sum of £ — , to be raised in manner hereinafter mentioned, Let, out of the said £ — cash in Court to the credit of, &o., the sum of £ — be invested in Consolidated £3 Digitized by Microsoft® 570 STATUTORY JUEISDICTION, per Cent. Annuities upon tlie like credit. And Let such Bank Annui- ties when purchased be transferred to the Commissioners for the Eeduction of the National Debt, as the consideration for the said land tax. — Directions for payment of costs according to the Act. Investment of Purchase-money — Discharge of Incumbrance— Same Section. The Court being of opinion that it is fit and proper that the sum of £ — to be raised in manner hereinafter mentioned should be applied in discharge of the incumbrance dated, &c., in the petition mentioned, Let a proper reconveyance [or, re-assignment] of the hereditaments [or, premises] comprised in the said indenture be settled by the judge. And upon the due execution thereof by such parties as the judge shall direct being certified, Let, out of the £ — cash in Court to the credit of, &c., the sum of £ — be paid [or, if stock to be sold : Let so much of the £ — £3 per Cent. Annuities on the credit, &c., as will raise the sum of £ — be sold, and Let the money to arise by such sale be paid] to such person or persons, &c. And thereupon Let A., the mortgagee, deliver over to the petitioners upon oath the said indenture dated, &o., and all documents in his possession or power relating to the pre- mises comprised in the said indenture dated, &c. — Directions for pay- ment of costs according to the Act. Similar Order — Special Provision for Costs of Mortgagee. The Court being of opinion, &c., Let a proper reconveyance of the mortgaged premises in the petition mentioned be settled by the judge. And upon the due execution thereof by such parties as shall for that purpose be named in the chief clerk's certificate being certified, Let, out of the sum of £1310 cash, part of the £4876 2s. cash, at the credit of Ex parte the Great Eastern Eailway Company, In the matter, &c., the sum of £700, and interest thereon at the rate of £ — per cent, per annum from the — day of — to the — day of — , be paid to such person or persons as shall be certified by the chief clerk entitled to receive the same. And thereupon, and upon payment to the said mortgagees of any costs, charges, and expenses properly incurred by them under the provisions of their mortgage security, Let W. S., J. E., and W. S. the younger [the mortgagees] deliver up on oath all deeds and documents, &c., to the petitioners, or as they shall appoint. Let the residue of the said £1310 be invested in Bank £3 per Cent. Annuities to the credit, &c. Let the dividends as they accrue upon such Bank Annuities be paid to the petitioners, the trustees of the testator's will. Let, pursuant to the 80th section of the Lands Clauses Consolida- tion Act, the Great Eastern Eailway Company pay to the petitioners their costs of the said reconveyance (including therein all reasonable Digitized by Microsoft® LAKDS CLAUSES CONSOLIDATION ACTS. 571 pharges and expenses incident thereto, and including what the peti- tioners shall have paid to the said mortgagees for their costs of such reconveyance), or which have been incurred in consequence thereof (other than such costs as are by the said Act otherwise provided for) and of obtaining this order and all proceedings relating thereto [to be taxed by the taxing master in case the parties differ]. Let the petitioners pay to the said mortgagees their costs of this petition [to be also taxed by the taxing master in case the parties differ]. Be Wilkinson (V.-C. M.), Dec. 22, 1871. Similar Order — Equitable Mortgage. The Court being of opinion, &o. [last order'\, Let out of the cash, &o. [or, Let so much of the £ — Annuities, &c., as will raise, &c.] be sold, and the moneys to arise by such sale] be paid to — , the mort- gagee. And upon such payment being made, Let the said — deliver ' up to — , the mortgagor, the said indenture dated, &o., and all deeds and documents, &c. — ^Directions for payment of costs. Investment of Purchase-money — Bemioving or replacing Bmldings — Inquiries —Sect. 69. Let an inquiry be made whether it is fit and proper that any and what part of the £ — cash in Court to the credit of, &c., should be applied in removing [or, replacing] the buildings taken by the said company [or, injured by the proximity of the works of the said com- pany, or, in substituting other buildings for the buildings taken, &c., or injured, &c.] as in the petition mentioned, and in what man- ner. And in case it shall appear that it is fit and proper that any part of such cash should be so applied, Let the petitioner be at liberty to remove [or, replace] such buildings [or, substitute other buildings for the buildings taken, &c., or injured, &c.] in such man- ner as shall be certified to be fit and proper. Let, upon such removal [or, replacing, or, substitution] being completed, the sum which shall be certified to be fit and proper to be applied as aforesaid be paid out of the said sura of £ — cash to such person or persons, &c., as shall be named in the chief clerk's certificate as entitled to receive the same. Investment — Buildings — Certificate of Completion. The Court being of opinion that it is fit and proper that £1300 should be expended in erecting the nine several houses or cottages and erections and buildings intended to be erected and built upon the land in the petition mentioned, and in the manner specified by the affidavits of — , Let the petitioner be at liberty to erect the said houses in the manner so specified. Let, upon the completion of the said houses being Digitized by Microsoft® 572 STATUTORY JURISDICTION. certified, so much of the £ — , on the credit, &c., as will raise the sum of £1300, and also any expenses properly incurred as relate to the said houses, and to be certified, he sold. Let, out of the money to arise by such sale, the said £1300, and the amount which shall be certified in respect of the said expenses, be paid to such person or persons, &c. — Directions for taxation and payment of costs. Be Bummer's Trusts, 2 De G. J. & S. 515 ; 11 Jur. (N.S.) 615. . Similar Order — Advances during Progress of Works. This Court being of opinion, &o. [see last order]. Let the petitioner be at liberty, &c. And during the progress of the said works Let such sum as shall from time to time be certified to be proper to be paid in respect of the amount actually laid out or expended, or such part thereof as shall be approved of as proper to be expended in removing [or, leplacing], &g., not exceeding the sum of £ — , be paid out of the £ — cash in Court to the credit of, &c., to such person or persons, &c. And upon the completion of the said works being certified, Let the residue of the said sum, the amount thereof to be certified, be paid, &c. Investment — Business diverted — Taking down Trade Buildings — Erecting Dwelling-howes. Directions for carrying over a sum of £1454 16s. to a separate account. Let an inquiry be made as to the amount which will be fit and proper to lay out in the alterations and permanent improvements of the property mentioned in the — paragraphs of the affidavit of — filed the — day of — , according to the specifications and contracts men- tioned and referred to in the — paragraphs of the said affidavit, and with any and what modifications thereof. Let, out of the said cash when so carried over, the amount which shall be certified to be proper to be laid out in such alterations and permanent improvements accord- ing to the specification and provisional contracts in the petition men- tioned, or with such modification thereof as shall be approved by the judge, be paid to the persons to be named in the chief clerk's certificate of approval, and in such proportions, if any, as shall be therein mentioned. — Directions for investment of residue of cash, pay- ment of interest, and for taxation and payment of costs. Be Johnson's Settlement, L. R. 8 Eq. 348. Alterations and Additions to. Mansion-house and Offices, and Outlay upon Farm Buildings and Premises not sanctioned hy the Court — Bemainder- man opposing — Petition dismissed. Upon the petition of H. R. L. on the — day of — , preferred, &c., praying that £651 Qs. lid. Bank 3 per Cent. Annuities on the credit, Digitized by Microsoft® LANDS CLAUSES CONSOLIDATION ACTS. 573 (fee, and the £490 lite annuities on the credit, &c., and the £762 like annuities on the credit, &c., might respectively^ be sold, and that out of the' money to arise by sxioh sales the following sums might be re- paid to the petitioner as being sums expended by him in permanent and substantial improvements of the — mansion-house and grounds, that is to pay, £1680 in the construction of fire-tank, hot-air engine, hot-wafer apparatus for bath-room and house, for gasworks, and for repairing the vineries and for constru(!ting a new conservatory and hot-houses; and the sum of £142 6«. expended by the petitioner in the erection of a new hop kiln and buildings adjoining at — Farm, part of the said estate ; and that out of the said moneys there might also be paid what should be expended in putting the roof of the said mansion-house into proper repair ; and that thereout also there might be paid the amount which might properly be expended (not exceeding £350) in erecting and constructing the servants' rooms, and in the re- pairs, improvements, and alterations (not exceeding £450) in the buildings at — Farm, also part of the said estate ; and a sum not ex- ceeding £350 in certain improvements at — Farm, also part of the said estate ; and the sum of £ — in building new cottages at — ; and upon hearing counsel for the petitioner [the tenant for life], and for E. L. P., E. L. P., &c. [the remaindermen], and for J. H. and T. C. W. [the trustees of settlor's will], this Court doth not think fit to make any order as upon the said petition. Tenant for life to pay costs of the remaindermen of appearing on petition. Costs of railway com- pany and of trustees out of the estate. Be Leigh's Estate (V.-C. B.), April 29, 1871 ; affirmed L. E. 6 Ch. 887. Intenm Investment — Bank Annuities or Beduced Annuities — Interest to Party ^entitled — Sect. 70. Let the sum of £ — [part of the] cash in Court to the credit of, &c., be invested in Consolidated 3 per Cent. Annuities [or, Eeduced An- nuities] to the credit of Ex parte, &c., the account, &c., such invest- ment to be made without deducting brokerage in respect of the same, the petitioners by their counsel undertaking to pay to the Chancery broker such brokerage as may be due upon such investment. Let the interest to accrue during the life of A. upon the said Consolidated 3 per Cent. Annuities \or, Eeduced Annuities] be paid to the said A., or to his legal personal representatives [or, if the rector of parish, to — , so long as he shall continue rector of the parish of — , and to his successors, rectors for the time being of the said parish, to be verified by affidavit ; or, if to corporation sole, to — , so long as be shall continue, &c., and to his successors — , for the time being, &o.] — Directions for payment of costs. Digitized by Microsoft® 574 STATUTORY JURISDICTION. Interim Investment — Mortgage — Same Section. The Court being of opinion that it is fit and proper that the sum of £ — hereinafter mentioned should be invested upon the real security in the petition mentioned, Let an inquiry be made whether a good title can be made to the [freehold] hereditaments situate, &c., in the peti- tion mentioned [or, if Court directs inquiry as to property as well as to title : Let an inquiry be made whether it is fit and proper that the sum of £ — hereinafter mentioned should be invested upon the real security in the petition mentioned ; and if so, Let an inquiry be made whether a good title, &o.]. And in case a good title can be made to the said [freehold] hereditaments, Let a proper conveyance, &c., be settled, &c. — Consequential directions. See p. 668. Compensation under Sect. 73 — (^Injury, Inconvenience, or Annoyance) — In Let an inquiry be made whether any and what portion of the £ — cash in Court to the credit of, &c. [or, £ — annuities, &c.], ought to be allotted pursuant to the 73rd section of the Lands Clauses Consolida- tion Act, 1845, to the petitioner — , the tenant for life in the petition named, as compensation for any injury, inconvenience, or annoyance which he may be considered to have sustained, independently of the actual value of the lauds as taken, and of th.e damage occasioned to the lands held therewith, by reason of the taking of the lands and the making of the works in the petition mentioned. Let the further con- sideration of the petition be adjourned, &c. Compensation under same Section — New Road. Let an inquiry be made how much of the £5260, part of the £9443 16s. cash in Court to the credit of, &c., ought to be paid to the petitioner — in respect of the expenses to be incurred in making a' new road from his residence, situate, &c., towards the railway station at — , and building lodges thereon. Adjourn further consideration of petition. Be DuJce of Marlborough, 13 Jur. 738. Compensation — Copyholds — Inquiry as to Fines payable under 21 & 22 Vict. 1. Let an inquiry be made whether the petitioner as tenant for life of the manor of — , in the petition mentioned, is entitled to any royalty upon the bricks made from the clay of the freehold lands purchased by the railway company as in the petition mentioned, and if so, what is the proportion of the sum of £ — on the credit, &c., ' which represents the amount of such royalty. 2. An inquiiy whether under the circumstances in the petition mentioned any fines would Digitized by Microsoft® LANDS CLAUSES CONSOLIDATION ACTS. 575 have become due and payable under tbe 6th section of 21 & 22 Vict. c. 94, from such of the copj' holders as were admitted prior to the 1st of July, 1853, to the copyhold lands purchased by the said railway com- pany, and whether the petitioner, as s,uch tenant for life, is entitled to such fines (if any) as aforesaid, and if so, what is the proportion of the said £11,050 which repi'esents the amount of such fines. Let out of the said £11,700 the sum of £450 and £200, being the amounts paid by the company for temporary occupation and temporary injury, and for sand, making together £750, be paid to the petitioner T. W. [the tenant for life.] Let £11,050, the residue of the £11,700, be invested, &c., and the dividends paid to the tenant for life. Further hearing adjourned. JJe Sir Thomas Wilson's Estate, 1861, B. 2168; Seton, 1068. Tenant for Life declared not entitled to Compensation in respect of Fines from Copyholders under 21 & 22 Vict. c. 94. , Upon the further hearing of the petition of Sir T. W. &c., Let the paragraph No. 2, in the chief clerk's certificate dated, &c., mentioned be varied, and as varied be as follows : " Under the circumstances in the said petition mentioned no fines would have become due and payable under the 21 & 22 Vict. c. 94, s. 6, from such of the copy- holders in the petition named as were admitted prior to the 1st July, 1853, to the copyhold lands purchased by the railway company as in the petition mentioned, and the petitioner Sir T. W. as tenant for life, &c., is not entitled to any such fines." — Directions for taxation and payment of costs. He Sir Thomas Wilson, 1862, B. 2117. Compensation under Sect. 74 — (Leases for Lives or Years, dc.) — Leasehold insufficient to pay Annuity charged. Lifr the sum of £1100 be carried over to the credit oi Ex parte, &c., to an account to be intituled " The account of F. P. and A. F., the trustees of the will," &c. Let out of such sum when carried over £150 be paid to petitioner on account of her annuity of £52 up to the 20th October, 1849. Let £950, the residue of the £1100, be invested in Bank £3 per Cent. Annuities, and out of the interest as it accrues due on such annuities Let the said annuity of £52 be paid to the petitioner by equal half-yearly payments, &c. — Directions for sale of capital from time to time to make good a deficiency of income. Ex parte Wilkinson, 3 De G. & Sm. 633. Compensation under Sect. 74 — Government Annuity. Directions for carrying over a sum of £600 to a separate account and for investment in Bank £3 per Cents. — Let the petitioner enter Digitized by Microsoft® 576 STATUTORY JURISDICTION. into a contract with the Commissioners for the Eeduction of the National Deht for the purchase of a Government annuity of £26, or as near to that snm as such contract can be entered into, in the name and on the life of the petitioner, by a transfer of Bank £3 per Cent. An- nuities to the said commissioners. Let so much of the said Bank Annuities to be so purchased with the said £500 as shall be the amount at which the petitioner shall contract for the purchase of such life annuity (the amount to be verified by afBdavit) be trans- ferred to the Commissioners for the Eeduction of the National Debt as the consideration for the purchase of the said annuity. Let the interest to accrue on the residue of the said annuities, after such transfer, and all accumulations of interest, be invested in like manner. — Liberty to apply. — Directions for taxation of costs and payment by the Metro- politan Board of Works. Be Pfleger's Trusts, L. E. 6 Eq. 426. Compensation under same Section — Leaseholds in Settlement — Tenant for Life to receive same Income as would have arisen from Leaseholds. Directions for taxation and payment of costs. — ^Let the residue of the £680 cash, &c., be paid to the petitioners J. F. and T. H., to he by them invested in their names in Bank £3 per Cent. Annuities. Let the said J. F. and T. H. in each year until the year 1893, provided F. F. P. in the petition named shall so long live, and his interest therein remain unforfeited, sell so much of the Bank Annuities so to be purchased as with the interest which will in each of the said years accrue on the said Bank Annuities make up the annual sum of £35. Let the petitioners pay the said sum of £35 to the said F. F. P. by half-yearly payments of £17 10«. as from the — day of — , the first payment to be made on the — day of — . Let the petitioners on the death of the said F. F. P. before the year 1893, or the forfeiture of his interest, apply the residue of the said Bank Annuities, and the interest as it accrues thereon, in the same manner as the rents of the leasehold premises comprised in the will of the testator W. P. are directed to be applied. Be Phillip's Trusts, L. E. 6 Eq. 250. Leaseholds let at less than Bach Bent — Dividends to Tenant for Life only to equal Beserved Bent — Sect. 74. Liberty for the petitioner M. A. W. out of the £687 cash paid to her by the L. B. and S. C. E. for interest upon purchase-money to retain a sum of £51 5s. for certain costs, and the sum of £1 1 9«. 9c?., on account of arrears up to the — day of — , in respect of the annual sum of £10, &c. — Directions for transfer by the trustee of the settle- ment of £ — Bank Annuities [the sum in which the residue of interest had been invested] into Court to separate account. — Directions for in- Digitized by Microsoft® LANDS CLAUSES CONSOLIDATION ACTS. 577' vestment of cash in Court representing principal of purchase-money to similar account. — Let, out of the interest from time to time to accrue during the life of the petitioner M. A. W., the annual sum of £10, less income tax, he, on or after the 29th September, 1866, and on or after the same day in each succeeding year, paid M. A. W., up to and in- cluding the 29th September, 1877, or until further order. — Directions for investment and accumulation of residue of interest, and for taxation and payment of costs. Be Wootton's Settlement, L. E. 1 Eq. 589. Investment or Payment out of Bepomt-money — Sect. 87. Let the sum of £ — [part of the £ — ] cash in Court to the credit, &c., be invested in £3 per Cent. Annuities to the credit of, &c. Let the interest from time to time to accrue thereon, and all accumulations of interest, be invested in like annuities. If payment out to promoters : Let the sum of £ — [part of the £ — ] cash on the credit, &c., be paid to the petitioners [the promoters of the company] or to — on behalf of the petitioners, &c. — Directions for payment of costs. Costs. Cogta of Purchase — Investment — Beinvestment — Sect. 80. PnESUANT to the 80th section of the Lands Clauses Consolidation Act, 1846, Let [if required hy the company : upon the due execution of the conveyance of the lands in the petition mentioned] the said com- pany pay to the petitioners — their costs of the following matters, that is to say \_If of purchase : the costs of the purchase or taking of the lands in the petition mentioned, or which shall have been in- curred in consequence thereof, other than such costs as are by the said Act otherwise provided for :] and [If of investment in Government or real securities : of the investment of the said money in the said [Bank] Annuities or real securities :] and [If of reinvestment in land : of the re- investment of the money in the petition mentioned in the purchase of the lands therein also mentioned :] and [If of orders obtained for amy of the purposes aforesaid : of the orders dated, &c., and of this order, and of all proceedings relating thereto : If litigation has been suggested : except such costs as are occasioned by litigation between adverse claimants.] Let it be referred, &c., to tax, &c. [in case the parties differ]. Costs of Beinvestment — Land taken from one Owner by several Gompa/nies. . Eefer to the taxing master to tax and settle the costs of the peti- tioner of the following matters, including therein all reasonable charges and expenses incident thereto, that is to say, his costs of the investment of the £15,480 in the purchase of the lands in the petition mentioned, and of obtaining this order, and of all proceedings relating Digitized by Microsoft® ^ ^ 578 STATUTORY JURISDIGTION. thereto (except STicli costs, if any, as are occasioned by litigation between adverse claimants). And in such taxation the taxing master is to dis- tinguish the costs of the ad valorem stamp upon the assignment or conveyance of the property [and the surveyor's fee in the petition mentioned] fr&m the other costs. Let the said companies pay to the petitioner his said costs, charges, and expenses when taxed (except such costs as are hereinbefore directed to be distinguished) in equal propor- tions, and do pay the costs so to be distinguished rateably in propor- tion to the amount which the moneys to arise by the sale of the several sums of stock standing to the several accounts aforesaid, together with the cash on the like accounts, are to contribute to make up the said £15,480 [the amount of such equal and rateable proportions to be certi- fied by the taxing master]. Mc parte Bishop of London, 2 De G. F. & J. 14; Be Merton College, Oxford, 33 Beav. 257 ; affirmed 10 Jur. (N.S.) 222 ; Ex parte Corporation of London, L. E. 5 Eq. 418. Costs of Conveyance of Land purchased — Sects. 81-3. Let it be referred to the taxing master to tax and settle the said bill. Let the petitioners and all other parties produce before the master upon oath as he shall direct all books, papers, and writings in their custody or power respectively relating to the matters hereby referred, or any of them ; and that they be examined touching the same matters, or any of them, as the said master shall direct. And if one-sixth of such bill be disallowed on such taxation, Let the taxing master tax the petitioners their costs of such taxation ; and if one-sixth part of such bill be not disallowed on such taxation the master is to tax the said S. M. his costs of such taxation. Let the master certify the amount due in respect of the said bill, having regard to the costs of such taxation so to be taxed as aforesaid. Investment of Ptjechase-monet. Sections 69 and 70. . " If the purchase-money or compensation which shall be payable in respect of any lands, or any Interest therein, purchased or taken by the promoters of the undertaking from any corporation, tenant for life or in tail, married woman seised in her own right or entitled to dower, guardian, committee of lunatic or idiot, trustee, executor, or administrator, or person having a partial or qualified interest only in such lands, and not entitled to sell or convey the same except under the provisions of this or the special Act, or the compensation to be paid for any per- manent damage to any such lands, amount to or exceed the sum of £200, the same shall be paid into the bank in the name and with the privity of the Ac- countant-General of the Court of Chancery in England, if the same relate to lands in England or Wales, or the Accountant-General of the Court of Exchequer in Ireland, if the same relate to lands in Ireland, to be placed to the account there Digitized by Microsoft® LANDS CLAUSES CONSOLIDATION ACTS. 579 of such Accountant-General ex parte the promoters of the [describing them by their proper name] in the matter of the special Act [citing it] ; and such moneys shall remain so described until the same be applied to some one or more of the following purposes (that is to say) : — In the purchase or redemption of the land tax, or the discharge of any debt or incumbrance affecting the land in respect of wliich such money shall have been paid, or affecting the lands settled therewith to the same or the like uses, trusts, or purposes ; or In the purchase of other lands to be conveyed, limited, and settled upon the like uses, trusts, and purposes, and in the same manner as the lands in respect of which such money shall have been paid stood settled ; or If such money shall be paid in respect of any buildings taken under the authority of this or the special Act, or injured by the proximity of the works, in removing or replacing such buildings, or substituting others in their stead, in such manner as the Court of Chancery shall direct ; or In payment to any party becoming absolutely entitled to such money ": 8 & 9 Vict c. 18, s. 69. Land Tax — Debts and Ikcumbrances. A tenant for life who has redeemed the land tax under the Land Tax Acts may reimburse himself out of the proceeds of the land purchased by the company : Ex parte Lord Northwick, 1 Y. & C. Ex. 166 ; Be London, Brighton, and South Coast By. Co., 18 Beav. 608. A leasehold interest has been held to be an incumbrance within the meaning of the 69th section : Me Manchester, Sheffield, and Lincolnshire By. Go., 21 Beav. 162 ; 2 Jut. (N.S.) 31 ; Ex parte Corporation of London, L. B. 5 Bq. 418 ; Be Brasher, 6 W. R. 406 ; cited in Dan. 5th ed. 1863. Where the money to be reinvested represented the purchase-moneys of several companies, the surveyor's fee as well as the ad valorem stamp on the conveyances was ordered to be paid by the companies and public bodies rateably : Ex parte Corporation of London, L. E. 5 Bq. 418. Purchase of other Lands. Money paid in respect of freehold or leasehold lands may be laid out in the purchase of copyhold lands : Be Cann, 15 Jur. 3 ; Be Browne, 16 Jur. 158, cited in Dan. 1864. And the purchase-money of freehold or copyhold lands may be laid out in the enfranchisement of copyholds : Cheshimt College, 1 Jur. (N.S.) 995 ; see Order, p. 569 ; Dixon v. Jackson, 25 L. J. (Ch.) 588. But the purchase-money of freehold or copyholds will not generally be laid out in leaseholds : Be Lancashire and Yorkshire By. Co., 2 W. E. 667 ; Ex parte .Macaulaif,2W.'R. 667. The money may be laid out in land, altliough the applicants are absolutely entitled : Be Jones, 18 W. E. 312, cited in Dan. 1864. If after investment of the purchase-money the balance does not exceed £20, it may be ordered to be paid to the tenant for life : Be Lord Egremont, 12 Jur. 618 ; Be Baternan, 21 L. J. (Ch.) 691, cited in Dan. 5th ed. 1864. Digitized by Microsoft® 2 p 2 580 STATUTORY JURISDICTION. EeMOVING OB EEPLACING BUILDINGS — PERMANENT IMPROVEMENTS. The purchase-money arising from land taken by a railway company has been ordered to be applied in the erection of new buildings, upon evidence that such an application would be for the benefit of the estate : Ex parte Sliaw, 4 Y. & 0. 506 ; Ee Partington, 11 W. R. 160 ; Be Dummer, 11 Jur. (N.S.) 615 ; 3 De G. J. & S. 515 ; see Order, p. 571 ; Be Davis, 3 De G. & J. 144. Where the effect of a purchase by a railway company had been to divert busi- ness from certain trade buildings on another part of the estate, and to render them useless for trade purposes, the special circumstances were held to justify the Court in laying out the purchase-money in taking down the trade buildings and erecting dwelling-houses : Be Johnson, L. R. 8 Eq. 348 ; Order, p. 571. And the money has been applied in the repairs of a building limited to the same uses as the land purchased : Wigan Glebe Act, 3 W. R. 41. The purchase-money of glebe land taken by a railway company has been paid to the incumbent for the purpose of building a parsonage-house : Be Whitfield, 1 J. & H. 610. So, too, in the case of rebuilding a parsonage-house : Be Lord Sotliam's Trusts, L. R. 12 Eq. 76. And in the case of improvements in or additions to the house : Ex parte Bector of Claypole, L. R. 16 Eq. 574. The Court will not, however, unless in exceptional cases, authorize an invest- ment of the purchase-money in buildings which will produce no income : Ex parte Corporation of Liverpool, L. R, 1 Cb. 596, 598 ; Be Leigh's Estate, L. R. 6 Ch. 887 ; Order, p. 573 ; Brunshill v. Caird, L. R. 16 Eq. 493 ; Drake v. Trefusis, L. R. 10 Ch. 364. And it has been held that the direction to lay out personal estate in the pur- chase of land does not authorize the Court to lay out any part of it in repairs and permanent improvements, however necessary : Brunshill v. Caird (L. 0. for M. R.), L. R. 16 Eq. 493. And that where a portion of the glebe lands had been sold to redeem the land tax, the surplus moneys could not be applied under the Land Tax Redemption Act to the i-epairs and improvements of the vicarage-house : Be Nether Stowey Vicarage, L. R. 17 Eq. 156. But an outlay in the erection of new buildings, whether by way of addition to or in substitution for those which are ruinous, will be sanctioned by the Court when proved to be beneficial to the estate: Drake v. Trefusis, L. R. 10 Ch. 364. Where there was definite evidence of the advantage to be gained, the Court sanctioned the application of purchase-money arising from glebe land in the erection of farm buildings for the use of the rest of the land : Ex parte Bector of Shipton- under-Wychwood (L. C), 19 W. R. 549. Where under an Inclosure Act lands had been allotted to a rector, who had a power of selling to pay expenses, and under a Railway Act compensation-money had been paid into Court in respect of other lands of the rectory, the Court sanc- tioned the application of the money in payment of the expenses of the inclosure : Ex parte Lockwood, 14 Beav. 158. Payment to Persons entitled^ Affidavit of Title. " In the case of petitions under Acts of Parliament authorizing the sale of property for public purpoiies, where the purchase-money is directed by any such Digitized by Microsoft® LANDS CLAUSES CONSOLIDATION ACTS. 581 Acts of Parliament to be paid into Court, the petitioners claiming to be entitled to the money so paid in must make an affidavit, not only verifying their title, but also stating that they are not aware of any right in any other person, or of any claim made by any other person, to the sum of £ — in the said petition mentioned, or to any part thereof, or if the petitioners are aware of any such right or claim they must, in such affidavit, state or refer to and except the same " : Cons. Ord. 34, rule 3. As a general rule this affidavit is required, modified according to circumstances of the case, where the application is for the payment only of the interest to the tenant for life for the accumulation of interest, or for carrying fund to separate account : Re Milne, 8 L. T. (N.S.) 199 ; St. Mary's College, 14 W. R. 788. But under special circumstances the Court will not insist upon the tenant for life making the affidavit : Be Smith's Estate, 14 W. E. 949. And the Court may dispense with the affidavit heitig made by all the peti- tioners : Jersey v. Jersey, W. N. (1866), 78. Where the land taken formed part of charity property the affidavit of the clerk to the trustees was held sufficient : Be King Edward VI.' s Almshouses : 16 W. R. 841. Disentailing Deed. Where the property taken by the company is entailed, it is necessary for the purposes of payment out under the Act of the purchase-money that a disentailing deed should be executed : Be Butler's Will (L. C. for M. R.), L. R. 16 Eq. 480 ; Be Broadwood's Settled Estates, L. R. 1 Ch. D. 438 ; contra. South Eastern By. Co., 30 Beav. 215 ; Notley v. Palmer, L. R. 1 Eq. 241 ; Be Eolden, 10 Jur. (N.S.) 308 ; Be Wood, L. K. 20 Eq. 372 ; Be Bow, L. R. 17 Eq. 300. And under the present practice a disentaiUng deed has to be executed. Interim Investment — Sect. 70. Until the money can be applied to one of the purposes mentioned in the 69th section it may be invested by order made upon petition in the purchase of «' 3 per Cent. Consolidated Annuities, or Reduced Bank Annuities, or in Governrnent or real securities ; and the interest, dividends, and annual proceeds thereof paid to the party who would for the time being have been entitled to the rents and profits of the land" : 8 & 9 Vict. c. 18, s. 70 ; see Order, p. 573. The purchase-money may be invested in any of the investments in which cash under the control of the Court may be invested : Be Fryer's Settlement, L. R. 20 Eq. 468. Where an inquiry had been directed whether it would be for the benefit of the parties interested that purchase-money arising from lands taken by a railway company should be invested upon mortgage of real estate, and the master had reported against the security upon general grounds, the Court confirmed the report: Ex parte FranhVyn, 1 De G. & Sm. 528. But the Court commonly directs a temporary investment in real securities : Be Smith's Estate, L. E. 9 Eq. 178 ; Be Lomax, 34 Beav. 294 ; Be Flemon, L. R. 10 Eq. 612. Where hovvever, there has been an interim investment in stock the investment upon mortgage security will be treated as a permanent investment, and the com- pany will not be liable to pay the costs of a subsequent investment in the purchase of land : Be Flemon, 10 Eq. 612. The reinvestment of purchase-money upon a mortgage security is not treated Digitized by Microsoft® 582 STATUTORY JURISDICTION. as a permanent investment under sect. 80, and tte company is liable to the costs of such reinvestment without any condition as to the costs of any iuture permanent investment : Re Blyth's Trusts, L. R. 16 Bq. 468. Compensation — Injury, Inconvesiience, Annoyance — Sect. 73. All sums exceeding £20 payable by the promoters of the undertaking under a contract, are to be paid into Court, or (in certain cases) to trustees (see sects. 71, 73), and the sums so paid are not to be retained for the use of the contract- ing party : " Provided always, that it shall be in the discretion of the Court of Chancery in England, or the Court of Exchequer in Ireland, or the said trustees, as the case may be, to allot to any tenant for life, or for any other partial or qualified estate for his own use, a portion of the sum so paid into the "bank, or to such trustees as aforesaid, as compensation for any injury, inconvenience, or annoyance which he may be considered to sustain, independently of the actual value of the lands to be taken, and of the damage occasioned to the lands held therewith by reason of the taking of such lands and the making of the works " : 8 & 9 Vict. c. 18, s. 73. Compensation — Leases for Lives and Years, &o. — Sect. 74. Where any purchase-money or compensation paid into Court shall have been paid in respect of any lease for a life or lives or years, or for a life or lives and years, or any estate in lands less than the whole fee simple thereof, or of any reversion dependent on any such lease or estate, it shall be lawful for the Court of Chancery in England, or the Court of Exchequer in Ireland, on the petition of any party inte- rested in such money, to order that the same shall be laid out, invested, accumulated, and paid in such manner as the said Court may consider will give to the parties interested in such money the same benefit therefrom as they might lawfully have had from the lease, estate, or reversion in respect of which such money shall have been paid, or as near thereto as may be : 8 & 9 Vict. c. 18, s. 74. Lessors and lessees should deal separately with the company in respect of their interests, for the Court has no jurisdiction to apportion the capital of the purchase- money between them : Ex parte Ward, 2 De G. & Sm. 4, cited in Morgan, 41. Whfere the income of purchase-money arising from leaseholds taken under the Lands Clauses Act is insufScient to give the tenant for life the same income that would have arisen if the lease had continued in existence, the Court has directed the deficiency to be made good out of the corpus : Jefferys v. Connor, 28 Beav. 328 ; Be Pfleger, L. R. 6 Eq. 426 ; Order, p. 576. In such a case the Court has directed a Government annuity equal to the net income of the leaseholds to be purchased, and if the fund were insufficient for the purpose, then that the dividends should be paid to the tenant for life, and the principal half-yearly divided by the number of years unexpired of the term, with directions for sale of part of the stock invested: Re Ffleger, supra; see also lAttlewood V. Pattison, 10 Jur. (N.S.) 873. And the Court may make an order referring it to an actuary to ascertain the proper proportions : Re Ghamberlain, Morgan, 4th ed. 41, n. ; Re Phillips, supra. So, too, where leaseholds were charged with an annuity, and the purchase- money was insufficient to discharge it, the annuity was ordered to be kept down by the sale from time to time of part of the fund: Hx parte Wilkinson, 3 De G, & Sm. 633 ; Order, p. 575. Digitized by Microsoft® LANDS CLAUSES CONSOLIDATION ACTS. 583 Where a company has taken land subject to a building lease granted at less than a rack rent, and compensation for the reversion subject to the lease has been paid into Court, the Court will only direct payment to the tenant for life of so much of the dividends as equal the reserved rents, directing the remainder to accumulate till the end of the lease, with liberty then to apply : Be WooUon's Settlement, L. E. 1 Eq. 589 ; Order, p. 576. A similar rule is adopted where the land purchased was at the time of purchase subject to a beneficial lease : Ex parte Dean of Oloucester, 15 Jur. 239. So, too, where a lease originally granted at a rack rent has become more valu- able : Be Mette's Estate, L. E. 7 Eq. 72. But where a lease was granted at less than a rack rent in consideration of a covenant to lay out money in repairs and improvements, the tenant for life was held entitled to the whole dividends of the purchase-money : Be StetvarcPs Estate, 1 Drew. 636. , Where in consequence of renewable leaseholds being under notice to be taken by a company the lease was not renewed, but the company proved abortive, and another company purchased the leaseholds, the vendors were held not to be entitled to any part of the purchase-money as compensation for the fine which they had omitted to take in consequence of the notice from the first company : Ex parte Dean and 0/iapter of Westminster, 18 Jur. 1113. Costs. Costs of Purchase, Investment, and Beinvestment — Sect. 80. In all cases of moneys deposited in the bank under the provisions of this or the special Act, or any Act incorporated therewith, except where the moneys shall have been deposited by reason of the wilful refusal of the party entitled thereto to receive the same, or to convey, or release, &c., the Court may order the costs of the following matters, including therein all reasonable charges and expenses inci- dent thereto, to be paid by the promoters of the undertaking, (that is to say,) the costs of the purchase or taking of the lands, or which shall have been incurred in consequence thereof (other^ than such costs as are by the Act otherwise provided for), and the costs of the investments of such moneys in Government or real securities, and of the reinvestment thereof in the purchase of other lands, and also the costs of obtaining the proper orders for any of the purposes aforesaid, and of the orders for the payment of the dividends and interest of the securities upon which such moneys shall be invested, and of all proceedings relating thereto, except such as are occasioned by litigation between adverse claimants : 8 & 9 Vict. c. 18, s. 80. As to the meaning of " the Special Act," see Morgan, 47, 32. As to what is considered " wilful refusal," see cases cited in Dan. 1874. And as to costs, which are comprised in the words, " costs, charges, and expenses incident thereto," see Dan. 1076 ; Morgan, 48. The common form of order for taxation and payment of costs by a company ought not to be varied, although under the order prospective and periodical sales of stock will be necessary : Ex parte London, Chatham, and Dover By. Co., 14 W. E. 507. And the costs payable by a company under the 69th section includes the costs of a power of attorney given by persons entitled to the income of the purchase- money : Ex parte Incumbent of Guilden Sutton, 8 De G. M. & G. 380. Digitized by Microsoft® 584 STATUTOEY JUEISDICTION. And where on a sale of stock for the purpose of investnlent in land the broker- age had been deducted from the fund, it was ordered to be repaid by the company to the petitioners : Expa/rte Earbord, 17 Jur. 1045 ; citdd in Dan. 1877. As to reinvestment, the company must also pay the costs of applying the purchase-money to the redemption of land-tax, the enfranchisement of copyholds, and permanent improvements. But the company is not liable to pay the costs of applying the purchase-money in discharge of an incumbrance on other lands : Ex parte Corporation of London, L. E. 5 Eq. 418. Where sums paid in by different companies are invested in one estate, the usual order is that companies do pay the costs of the reinvestment equally, except the costs of the ad valorem stamp and surveyor's fee, which will be apportioned between the purchase-moneys : Hx pwrte Bishop of London, 2 De G. F. & J. 14 ; Ee Merton Coll., Oxfmd, 33 Beav. 257 ; 10 Jur. f N.S.) 222 ; Ex parte Corporation of Lmdon, L. E. 5 Eq. 418. Where there is great inequality in the amounts to be contributed the Court has ordered the costs of the reinvestment to be apportioned rateably : Ex parte Dean of Christ Church, 9 W. E. 474 ; Ex jjarte Governors of St. Bartholomew's Hospital, L. E. 20 Eq. 369. And where a larger sum is invested than the sum paid in by the company, the Court will direct that the costs payable by the company shall not be increased by it : Ex parte King's College, Cambridge, 5 De G. & Sm. 621. The costs of one application only for reinvestment in land will be allowed unless it appear to the Court that it is for the benefit of the parties interested in the moneys that the same should be reinvested in the purchase of lands in different sums and at different times ; in which case the Court, if it think fit, may order the costs of any such reinvestment to be paid by the promoters of the undertaking : 8 & 9 Vict. c. 18, s. 80. The costs of three successive reinvestments in land have been ordered to be paid by the company : Jones v. Lewis, 2 Mac. & G. 163 ; Merchant Taylors' Company, 10 Beav. 485. The company is entitled to have the words " upon the approval and execution of the conveyance " inserted in the order for payment of costs : Ex parte Eton College, 7 W. E. 710. The omission of the usual words " except such costs as are occasioned by litiga- tion between adverse claimants," ought not to be ordered except it is quite clear that no costs could have been occasioned by such litigation : Be Cant, 1 De G. F. & J. 153 ; 6 Jur. (N.S.) 183 ; Be Courts of Justice Commissioners, W. N, (1868), 124. The word " such " refers not to proceedings, but to costs ; Be Cant, supra. The company must pay any costs occasioned by the lands taken being the subject of an administration suit : Dan. 5th ed. 1876, and cases there cited. And where the object of the petition is only to transfer the fund to the credit of a cause, the petitioner should apply without serving the other parties : Ibid. Where the fund has been carried to the credit of the cause, but the account was not also intituled in the matter of the Act, the Court has no jurisdiction to order the company to pay costs : Brown v. Eenwick, 14 W. E. 257 ; Fisher v. Fisher, 17 Eq. 340. The company must pay the costs of an attempted reinvestment in land, although it may have failed through a defect of the vendor's title : Be Holywell, U Jur. (N.S.) 579 ; 2 Dr. & Sm. 463. Digitized by Microsoft® LANDS CLAUSES CONSOLIDATION ACTS. 585 And have been ordered to pay the costs of an order directing the application of the purchase-money in improving the supply of water, to a town where the pro- perty purchased was situate : Lathropp's Charity, L. E. 1 Eq. 467. Where the tenant for life had refused the amount of purchase-money offered by the company, and the matter had been referred to arbitration, the arbitrator awarding less than the sum offered, the tenant for life was held entitled out of the purchase-money to his costs inctirred of and incident to the arbitration : Re Avhrey's Estate, 17 Jur. 1874. Upon a petition for investment of the purchase-money and payment of the income to the tenant for life, persons having charges prior to the life estate need not be served ; and if served the costs will not be allowed against the company : Re Morris' Settled Estate, L. B. 20 Eq. 470. And in general upon a petition simply for the reinvestment of money in land, where there are mortgagees or annuitants whose rights are not otherwise affected by the petition, the proper course is to serve such parties with a copy of the petition, and to pay them forty shillings costs : Re Qore Langton's Estate, L. E. 10 Ch. 328. And the rule applies to cases of payment out of Court to persons entitled sub- ject to incumbrances : Re Ealstead United Charities, L. E. 20 Eq. 48. Costs of C&nteyance — Sect. 83. If the promoters of the undertaking and the party entitled to the costs of con- veyances of land purchased under the Land Clauses Act, or the special Act, or any Act incorporated therewith, shall not agree as to the amount, such costs are to be taxed by one of the taxing masters, upon an order to be obtained upon petition in a summary way by either of the parties ; and the promoters of the undertaking shall pay what the master shall certify to be due, &c. See sects. 81, 82, 83 ; Order, p. 578. Investment by Promotbes of Undektaking. Jiejpayment of Deposit — Sect. 87. The promoters of the undertaking are allowed to enter upon lands before pur- chase, on making deposit by way of security and giving bond (sect. 85). The money so deposited is to be paid into Court (sect. 86), " and the same may on the application by petition of the promoters of the undertaking be ordered to be invested in Bank Annuities or Government securities, and accumulated ; and upon the condition of such bond being fully performed, it shall be lawful for the Court of Chancery in England or the Court of Exchequer in Ireland, upon the like application, to order the money so deposited in the funds in which the same shall have been invested, together with the accumulations thereof, to be repaid or trans- ferred to the promoters of the undertaking, or if such conditions shall not be fully performed it shall be lawful for the said Court to order the same to be applied in such manner as it shall think fit for the benefit of the parties for whose security the same shall have been deposited ": 8 & 9 Vict. c. 18, s. 87. The landowner is entitled to his costs of appearing on the petition for repayment of the deposit ; and he must either be made a co-petitioner or the petition must be served upon him: Dan. 5th ed. 1885, citing Ex parte Stevens, 2 Ph. 772; Ex parte South Wales Ry. Co., 6 By. Cas. 151 ; and see Re Tottenham and Hamp- shire Ry. Co., 14 W. E. 669. Digitized by Microsoft® 586 STATUTORX JDRISDICTIOK. But on application by the promoters for investment, the landowner need not be served: Ex parte Carmarthen and Cardigan By. Co., 2 New Rep. 515. The deposit is not subject to any lien for costs of the vendor : Mx parte Stevens, a Ph. 772 ; 16 Sim. 165. And although an award made under the Act may be disputed by the land- owner, the deposit will be paid out to the promoters : He Fooks, 2 Mac. & G. 357 ; see, too, Ex parte Great Northern Ry. Co., 16 Sim. 169. Where the order for payment of the deposit is made to the secretary of the pro- moters, the seal of the company to the petition need not be verified : Ex parte London, Chatham, and Dover Ry. Co., 8 W. R. 636. Digitized by Microsoft® C 587 CHAPTER XXXVII. THE TEUSTEE BELIEF ACTS. 10 & 11 Vict. c. 96 ; 12 & 13 Vict. c. 74. Costs of Trustee and Tenant for Life — Payment of Income to Tenant for Life. , Let it be referred to the taxing master to tax B. [the trustee] his costs, charges, and expenses properly inciirred [in, ahout, and prelimi- nary to the transfer of the funds hereinafter mentioned into Court, and to tax the petitioner A. [the tenant for life] and the said B. their costs of this petition, and consequent thereon, as between solicitor and client. Let so much of the £ — annuities in Court to the credit of, &c., as will raise the said costs, and costs, charges, and expenses of the said B., of the transfer into Court of the said funds, be sold, and out of the money to arise by such sale the said costs be paid to Mr. — , the solicitor of the said B. Let, out of the interest as it accrues due on the said annuities and on the residue thereof, the said costs of this petition be paid, &c. Let the residue of the said interest, and the in- terest as it accrues due on the residue of the said — ■ annuities, during the life of the petitioner A., be paid to the said A., or to his legal per- sonal representatives, until further notice. Be Whitton, L. R. 8 Eq. 352. Inquiry as to Parties interested. Let an inquiry be made who are the parties entitled to the — annuities [or, — cash] in Court, to the credit, &c., in the petition men- tioned, and in what shares and proportions. Adjourn further hearing of petition until after inquiry shall have been made. Inquiry mthout prejudice to Suit. Let an inquiry be made (but without prejudice to the rights of the petitioners to file such bill as they may be advised) who are the par- ties entitled to the sum of £2000 cash, on the credit, &c. Adjourn further hearing of petition until after inquiry made. Be Sharpe, 15 Sim. 470. Digitized by Microsoft® 588 STATUTORY JURISDICTION. Inquiries — Next of Kin — Persons designated by Testator — Appointment to represent Estates of Deceased Persons. Let tLe following inquiries be made : — 1. Whether Samuel Eybold Allen, the son of the testator, William Allen, is dead, and when he died, and whether he left any and what child or children, and if dead [if dead] whether he has any [legal] personal representatives or representative. 2. Who were the next of kin of the testator William Allen living at the time of his decease, and whether any and which of them have since died, and who are the legal personal representatives of such of them as are dead. 3. Whether there were any and what children of A. B. deceased. 4. Who were the persons meant by the names and descriptions of — , &c. 6. When and in what manner A. B. and C. D. became possessed of the sum of £ — and £ — transferred into Court and standing to the credit of, &c., and from what sources the same respectively arose. Appoint the petitioner A. B. to represent the testator William Allen, and P. H. to represent the estate of C. A., for the purposes of these inquiries. Me Allen, Kay, App. 51. Go-Trustee incapable of transferring — Order for Transfer into Court. It appearing to the satisfaction of the Court that the petitioners T. B. and J. J. B. are jointly with the Eev. J. B. in the petition named trustees under the vsdll of the testator T. B. of the sum of £33,708 14s. Sd. Bank £3 per Cent. Annuities, and £10,742 like An- nuities, standing in the names of the petitioners T. B. and J. J. B. and the Eev. J. B. in the books of the Governor and Company of the Bank of England, and the Eev. J. B. is incapable through illness of joining in a transfer thereof. Let the right to transfer the said £ — Bank Annuities, and to receive the dividends and income thereof, vest in the petitioners T. B. and J. J. B. Let the petitioners T. B. and J. J. B. be at liberty to transfer the said £33,708 14«. 6d. Bank Annuities into Court to the credit of, &o. Be Broadwood, 8 L. T. (N.S.) 632. Similar Order — Co-Trustee Lunatic — Taxation and Payment of Costs. Eefer to the taxing master to tax petitioners their costs as between solicitor and client of the application, including therein any costs, charges, and expenses properly incurred by them in relation to the fund, (fee, petitioners to give credit for any sum already paid on ac- count of costs. — ^Balance to be paid and retained out of dividends if sufficient, and if insufficient out of stock. — And it appearing to the satisfaction of the Court that the petitioners E. W. and T. E. M. are jointly with E. H. M. in tho petition named executors of the will of Digitized by Microsoft® THE TRUSTEE RELIEF ACTS. 589 E. H. the testator, and are trustees of the sum of £896 16*. lOd. Bank £3 per Cent. Annuities standing in the name of E. H., of — , in the books of the Governor and Company of the Bank of England, and that the said E. H . M. is incapable of making a transfer of such Bank Annuities, Let the right to transfer the said Bank Annuities and to receive the dividends and income thereof vest in the peti- tioners G. W., and Eebecoa his wife, and'T, E. M. Let the petitioners G-. W., and E. his wife, and T. E. M., be at liberty to transfer the said sum of £895 16«. Wd. Bank £3 per Cent. Annuities, or the balance thereof after the said sale, for costs (in the event of such sale), and the balance of any dividends, &c., into Court to the credit of, &c. Be Walker (M. E.), Feb. 22, 1873. Payment into Couut — Affidavit. All trustees, executors, administrators, or other persons having in their hands any moneys belonging to any trust whatsoever, or the major part of them, are to be at liberty, on filing an affidavit, to pay the same into Court ; and all trustees or other persons having any annuities or stocks standing in their names in the books of the Governor and Company of the Bank of England, or of the East India Company, or South Sea Company, or any Government or Parliamentary securities standing in their names, or in the names of any deceased persons of whom they shall be personal representatives, upon any trusts whatsoever, or the major part of them, are at liberty to transfer the same into Court : 10 & 11 Vict. c. 96, s. 1. If upon the petition presented it appear to the judge that any moneys, an- nuities, stocks, or securities are vested in any persons as trustees, executors, or administrators, or otherwise, upon trusts within the meaning of 10 & 11 Vict. c. 96, and that the major part of such persons are desirous of transferring or pay- ing the same into Court, but that for any reason the concurrence of the other or others of them cannot be had, the judge shall order the transfer or payment to be made by the major part of such persons without the concurrence of the other or others of them ; and where any such moneys, or Government or Parliamenfciry securities are deposited with any banker, broker, or other depositary, the judge may order a payment or delivery of such moneys, Government or Parhamentary securities to the major part of such trustees, executors, administrators, or other persons as aforesaid, for the purpose of being paid or delivered into Court, &c. : 12 & 13 Vict. 0. 74. " A trustee or other person desiring to pay money or transfer securities into, or to deposit securities in Court, under the Act 10 & 11 Vict. c. 96, shall file an affidavit intituled In the matter of the same Act, and In the matter of the trust, and setting forth : (1.) His own name and address. (2.) The, place where he is to be served with any petition, summons, or order, or with notice of any proceeding relating to such money or securities. (3.) The amount of money, and description and amount of securities which he proposes to pay or transfer into or deposit in Court, and the credit to which he wishes it to be placed ; and if such money or securities Digitized by Microsoft® 590 STATDTOEY JUEISDICTION. are chargeable with legacy or succession duty, a statement whether such duty, or any part thereof, has or has not been paid. (4.) A short description of the trust, and of the instrument creating it. (5.) The names of the persons interested in or entitled to the money or securities, and their places of residence, to the best of his knowledge and belief. (6.) His submission to answer all such inquiries relating to the application of the money or securities paid or transfeired into or deposited in Court under the same Act, as the Court or judge may make or direct. (7.) A statement whether the money so to be paid into Court, or the divi- dends on the securities so to be transferred into or deposited in Court, and all accumulation of dividends thereon, are desired to be invested in Consolidated £3 per Cent. Annuities, or Eeduced £3 per Cent. An- nuities, or New £3 per Cent. Annuities, or whether it is deemed unnecessary so to invest the same, or to place the same on deposit" : Chancery Funds Eules, 1874, rule 34. The fund should be paid or transferred to a separate account ; and it should not be paid to the general account of an estate, or to the account of the trusts of a will : Dan. 5th ed. 1788 ; Re Joseph, 1 1 Beav. 625 ; Ee EvereU, 12 Beav. 485 ; He Wright, 15 Beav. 367. Discharge of Trustee. Where a trustee pays into Court a sum of money under the Act, he is only discharged as to the money so paid in ; the payment in does not deprive the persons entitled of their right to file a bill for the purpose of having their rights declared; and the payment in ought not to be made where the trustee has notice that it is intended to file a bill against him : Dan. 5th ed. 1789, and cases cited. Notice by Trustee. The person having made the payment, transfer, or deposit, shall forthwith give notice thereof to the several persons named in his affidavit as interested in or entitled to the fund : Chancery Funds (Amended) Orders, 1874, rule 5. Petition — Summons — Service. The persons interested, or any of them, may apply by petition, or, in cases where the trust fund does not exceed £300 cash or £300 stock, by summons, as occasion may require, respecting the investment, payment out, or distribution of the fund, or of the dividends or interest thereof: Chancery Funds (Amended) Orders, 1874, rule 6. The person who has made the payment or transfer shall be served with notice of any application made to the Court or to the judge in Chambers respecting the fund, or the dividends or interest thereof, by any person interested therein or entitled thereto : Chancery Funds (Amended) Orders, 1874, rule 7. The persons interested in or entitled to the fund shall be served with notice of any application maHe by the trustee to the Court or to the judge in Chambers respecting the fiiml in Court, or the interest or dividends thereof: Chancery Funds (Amended) Orders, 1874, rule 8. Although a trustee may present the petition for payment out, the cestuis qm Digitized by Microsoft® THE TRUSTEE RELIEF ACTS. 591 trust are the proper pei-sons to make the application, and the Court will dis- courage applications by the trustee : Be Gazneau, 2 K. & J. 249 ; Be Hutchinson, 1 Dr. & Sm. 27. And in making the order upon the petition of the trustee, the Court has given him only respondent's costs : Ibid. ; and although the petition of the trustee was presented at the request of one of the beneficiaries: lie Hutchinson, supra. Where an executor who had paid the balance of his testator's assets into Court under the Acts afterwards discovered that there were numerous debts unpaid, the Court ordered the money to be paid out to him on his undertaking properly to apply the fund : Be Tmrnay, 3 De G. & Sm. 677. Where the cestuis que trust are numerous, the Court has dispensed with service of the petition being made upon aU of them : Be Colson, 2 W. R. Ill ; Be Hodges, 6 W. K. 487. Upon an application for payment of income to the tenant for life, the remain- derman need not be served : Be Whiting, 7 Jur. (N.S.) 754 ; 9 W. R. 830. The Court has jurisdiction to order service of the petition out of the jurisdic- tion : Be Hatiey's Trusts, L. R. 10 Ch. 275. Effect of Oeder — Soit — Jueisdiction of Court upon Petition. Such orders as shall seem fit shall from time to time be made by the Court of Chancery in respect of the trust moneys, &c., so paid in, &o., and for the ad- ministration of any such trusts generally, upon a petition, &o. ; " and every order made upon any such petition shall have the same authority and effect, and shall be enforced and subject to rehearing and appeal, in the same manner as if the same had been made in a suit regularly instituted in the Couit ; and if it shall appear that any such trust funds cannot be safely distributed without the institution of one or more suit or suits, the Lord Chancellor or Master of the Rolls may direct any such suit or suits to be instituted": 10 & 11 Yict. c. 9C, s. 2. The Court may decide upon petition between the litigated rights of parties and the validity of a deed, when satisfied that the case can be properly presented to the Court by way of petition : Be Bloyes' Trusts, 1 Mac. & G. 488 ; 14 Jur. 49 ; Lewis V. Hillman, 3 H. L. C. 607 ; Be Walker, 16 Jur. 1154; Be Balton, 1 De G. M. & G. 265 ; may direct inquiries : Be Woods, 15 Sim. 469 ; Be Sharpe, Ibid. 470 ; Order, p. 587 ; Be Magawley, 5 De G. & Sm. 1, 6 : Be Morgan, 2 W. R. 439, cited in Daniell, 1793 : and may direct an issue to try any question as to security, or the like : Be Allen, Kay, App. 51 ; Order, p. 588 ; and deeds may be reformed and mistakes in a settlement rectified where the proper parties are before the Court : Be Hoards Trust, 4 Giff. 254 ; Be De la Touche, L. E. 10 Eq. 599 ; Order, p. 455 ; see also observations in Be Malet, 8 Jur. (N.S.) 288. But where the questions arising have to be determined upon other grounds than those appearing in the affidavits, the Court will not decide upon the validity of the deed : Be Way's Settlement, 10 Jur. (N.S.) 1166 ; Be Bloyes' Trusts, supra. The Act only empowers the Court to authorize a suit when desirable for the satisfaction of the Court : Be Harris, 18 Jur. 721. Costs. Where the trustee has not deducted his costs of paying the fund into Court, his costs, charges, and expenses properly incurred in, about, and preliminary Digitized by Microsoft® 592 STATUTORY JURISDICTION. to the payment into Court are payable out of the capital of the fund. His costs of appearance on a petition for payment of dividends to tenant for life are payable out of income : Re WTiitton, L. R. 8 Bq. 352 ; see Order, p. 587. The trustee is entitled upon an application for payment out to his costs as between solicitor and client : Ee Gawthorne, 12 Beav. 56 ; Re Ersldne, 1 K. & J. 302 ; 1 Jur. (N.S.) 156. And where an assurance company having received notice of conflicting claims to policy-moneys, paid the same into Court under the Acts, they were held entitled to their costs of appearance as between solicitor and client : Re Webb's Charity, L. R. 2 Eq. 456 ; Re Cohbe, 15 W. R. 29. Where upon payment into Court the trustee had retained a sum in discharge of costs incurred, it was ordered to be set off against the costs allowed by the Court of his appearance upon the petition for payment out, and the whole costs were directed to be taxed : Re Hue's Trust, 27 Beav. 337. Where a trustee who ought to have paid a fund into Court under the Acts did not do so, and caused the institution of a suit, he was allowed out of the funds only such costs as he would have been entitled to if he had paid the funds into Court, and the costs of appearing on the petition : Ounndl v. Wlvitear, L. R. 10 Eq. 664. And if the title of the persons interested is clear, the trustees may be deprived of their costs : Dan. 5th ed. 1795 ; Re Cull's Trusts, L. R. 20 Eq. 561. The costs of petitions by tenants for life for payment of income are payable out of income : Re Marner's Trusts, L. R. 3 Eq. 432 ; Re Whitton's Trusts, L. R. 8 Eq. 352 ; Re Smith's Trusts, L. R. 9 Eq. 374 ; Re Mason, L. E. 12 Eq. Ill ; Re Evans' Trusts, L. E. 7 Ch. 609. And the rule applies to the costs of the trustee, and all other necessary parties to such petition: Re Mason's Trusts, L. R. 12 Eq. Ill ; Re Evans' Trusts, L. R. 7 Ch. 609. Where the title of the tenant for life is clear, the trustees ought not to appear upon a petition merely affecting income : Re Evans' Trusts, swpra. And in such cases the remainderman ought not to be served : Re Whiting, 7 Jur. (N.S.) 754. Parties served come to the Court at the peril of costs : Re Tyler, 2 Jur. (N.S.) 927 ; 4 W. R. 524; Re Smith, 3 Jur. (N.S.) 659. Duty. Every petition for dealing with money or securities in Court, chargeable with duty payable to the revenue under the Acts relating to legacy or succession duty, or the dividends on such securities, shall contain a statement whether such duty or any part thereof has or has not been paid : Chancery Funds (Amended) Orders, 1874, rule 11. Digitized by Microsoft® ( 593 ) CHAPTER XXXVIir. THE TEUSTEE ACTS, 1850 and 1852. 13 & 14 Vict. c. 60 ; 15 & 16 Vigt. c. 55. Lunatics — Persons of Unsound Mind. The jurisdiction usually vested in the Lord Ckancellor or in the Lords Justices of Appeal in Chancery, or either of them, in relation to the custody of the persons and estates of idiots, lunatics, and persons of unsound mind, is not transferred to or vested in the High Court of Justice : Judicature Act, 1873 (36 & 37 Vict. 0. 66), s. 17. " When any lunatic or person of unsound mind shall he seised or possessed of any lands upon any trust, or by way of mortgage, it shall be lawful for the Lord Chancellor, intrusted by virtue of the Queen's sign manual with the care of the persons and estates of lunatics," (and Lords Justices by 15 & 16 Vict. c. 87, s. 15) " to make an order that such lands be vested in such person or persons, in such manner and for such estate as he shall direct ; and the order shall have the same effect as if the trustee or mortgagee had been sane, and had duly executed a conveyance or assignment of the lands in the same manner for the same estate " : 13 & 14 Vict. c. 60, s. 3. When any lunatic or person of unsound mind shall be entitled to any contin- gent right upon any trust, or by way of mortgage, it shall be lawful for the Lord Chancellor, intrusted as aforesaid, to make an order wholly releasing such lands from such contingent right, or disposing of the same to such person or persons as the said Lord Chancellor shall direct ; and the order shall have the same effect as if the trustee or mortgagee had been sane, and had duly executed a deed so re- leasing or disposing of the contingent right : 13 & 14 Vict. c. 60, s. 4. " When any stock shall be standing in the name of any deceased person whose personal representative 4s a lunatic or person of unsound mind, or where any chose in action shall be vested in any lunatic or person of unsound mind as the personal representative of a deceased person, it shall be lawful for the Lord Chancellor, in- trusted as aforesaid, to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in any person or persons he may appoint" : 13 & 14 Vict. c. 60, s. 6. " Where any lunatic or person of unsound mind shall be solely entitled to any stock or to any chose in action upon any tnost, or by way of mortgage, it shall be lawful for the Lord Chancellor, intrusted as aforesaid, to make an order vesting in any person or persons the right to transfer such stock, or to receive the divi- dends or income thereof, or to sue for and recover such chose in action, or any in- terest in respect thereof ; and when any person or persons shall be entitled jointly with any lunatic or person of unsound mind to any stock or chose in action upon any trust, or by way of mortgage, it shall be lawful for the said Lord Chancellor Digitized by Microsoft® 2 q 594 STATUTORY JURISDICTION. to make an order vesting the right to transfer such stock, or to receive the divi- dends or income thereof, or to sue for and recover such chose in action, or any in- terest in respect thereof, either in such person or persons so jointly entitled as aforesaid, or as such last-mentioned person or persons, together with any other person or persons the said Lord Chancellor may appoint " : 13 & 14 Vict. c. 60, s. 3. There is jurisdiction, although the lunatic may not have heen so found hy in- quisition and the lunacy is contested : Be Viall, 8 De Gr. M. & G. 439 ; see also 25 & 26 Vict. c. 86. Where there is no other disahihty except unsoundness of mind, the application must he made in lunacy : Dan. 5th ed. 1803, citing Re Ormerod, 3 De Gr. & J. 249 ; Be Qood Intent Society, 2 W. E. 671 ; Jeffryes v. Drysdale, 7 Jur. (N.S.) 657 ; 9 W. R. 428 ; Herring v. OlarJc, L. R. 4 Ch. 167. And where an order for the appointment of new trustees of the property of a lunatic, or person of unsound mind, is required, the application should he made in Chancery as well as in Lunacy : Be Arrowsmith's Trusts, 6 W. E. 642 ; 4 Jur. (N.S.) 1123; Be Stewart, 8 W. E. 297; Be Boyce, 12 W. R. 359; Herring v. Clark, L. E. 4 Ch. 167 ; Be Owen, L. R. 4 Ch. 782 ; Be Mason, L. E. 10 Ch. 273. And in such case service of the petition on the trustee of unsound mind is not necessary : Be Green, L. E. 10 Ch. 273. Land. Bare Trustees — Married Women. " Upon the death of a bare trustee of any corporeal or incorporeal heredita- ment of which such trustee was seised in fee simple, such hereditament shall vest like a chattel real in the legal personal representative from time to time of such trustee " ; but this provision does not apply to lands registered under the Land Transfer Act : 38 & 39 Vict. c. 87, s. 48. " When any freehold or copyhold hereditament shall be vested in a married woman as a bare trustee, she may convey or surrender the same as if she were a feme sole" : Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78), s. 6. Land. Infant Trustee or Mortgagee^Trustee Act, 1850, sects. 7, 8. Let the lands, &o., comprised in tlie indenture dated, &c. [or, subject to tlie trusts of the will of A.], whereof the infant A. is seised [or, pos- sessed] upon a trust [within the meaning of the Trustee Acts, 1850 and 1 852] [or, by way of mortgage] vest in B. for all the estate of the said A. therein. If contingent right of infant to he released, add : Let the lands, &c., he wholly released from the contingent right to which the infant A. is entitled upon trust [or, by way of mortgage], as in the petition mentioned. If contingent right of infant to vest, add : Let the contingent right to which the infant A. is entitled upon trust [or, by way of mortgage] vest, &c. Legal Estate vested to Uses in Bar of Dower — Sect. 7. Let the closes, pieces, or parcels of land situate, &c., vest in J. H. G. and his heirs to such uses, for such estates, and in such manner as the Digitized by Microsoft® THE TRUSTEE ACTS, 1850 and 1852. 595 said J. H. G. shall by any deed or deeds appoint : and in default of and imtil such appointment, and so far as no sncli appointment sha^l extend, to tie use of the said J. H. G. and his assigns during his life without impeachment of waste ; and after the determination of that estate by any means in , his lifetime to the use of J. W. and his heirs during the life of J. H. G. in trust for him and his assigns ; and after the determination of that estate to the use of the said J. H. G., his heirs and assigns for ever. Ue Lush, 5 De G. & Sm. 436. "Where any infant shall be seised or possessed of any lands upon any trust, or by way of mortgage, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons, in such manner and for such estate as the said Court shall direct ; and the order shall have the same effect as if the infant trustee or mortgagee had been twenty-one years of age, and had duly exe- cuted a conveyance or assignment of the lands in the same manner and for the same estate " : 13 & 14 Vict. c. 60, s. 7. The Court has made an order under this section vesting the legal estate in a purchaser to uses in bar of dower : £e Lush, 5 De Gr. & Sm. 436 ; Order, p. 594 ; Davey v. Miller, 1 Sm. & Gr. App. 19. And to vest the legal estate in the petitioners to such uses as they should appoint, and in default to the use of the petitioners in fee : lie Powell, 4 K. & J. 338. Where the legal estate was outstanding in the infant heir of an intestate mort- gagee, and the mortgagor had devised the equity of redemption charged with a legacy, an order was made vesting " subject to the legacy " : £e Mlerthorpe, 18 Jur. 669. A vesting order will, if consented to by the protector of the settlement, bar all estates in remainder, and not pass a mere base fee : Powell v. Mathews, 1 Jur. (N.S.) 973. Where a vendor agrees to sell real estate to a company and dies, having devised his real estate to an infant devisee, the infant is a trustee within the meaning of the Act, and a vesting order may be made on petition under the Act : Se Lowey's Will, L. E. 15 Eq. 78 ; see also Se Eussell's Estate, 12 Jur. (N.S.) 224. " Where any infant shall be entitled to any contingent right in any lands upon any trust, or by way of mortgage, it shall be lawful for the Court of Chancery to make an order wholly releasing such lands from such contingent right, or dis- posing of the same to such person or persons as the said Court shall direct ; and the order shall have the same effect as if the infant had been twenty-one years of age, and had duly executed a deed so releasing or disposing of the contingent right" : 13 & 14 Vict. c. 60, s. 8. Where a covenant had been entered into by A. to surrender copyholds to the use of B., and until the surrender should be made A. was to stand seised of the copyholds " upon trust for and to surrender the same to B.," upon A. going out of the jurisdiction" without surrendering the case was held to be one of express trust, and a person appointed under sects 8 and 20 to surrender without a decree for specific performance : Be ColUngwood, 6 W. E. 536 ; see also Re Gumvng, L. E. 5 Ch. 72. Digitized by Microsoft® 2 CHAPTER XLVI. THE EAILWAT COMPANIES ACT, 1867. 30 & 31 Vict. c. 127. Beceiver of Undertaking — Sect. 5. Let E. D. N., the secretary of the Stafford and TJttoxeter Eailway Company, upon fir.st giving security, be appointed to manage the general undertaking of the said railway company as defined or referred to in the Stafford and TJttoxeter Eailway Act, 1862, and the Stafford and TJttoxeter Eailway Act, 1865, and the works and property comprised in such general undertaking or connected therewith, and to receive the tolls and sums of money accruing upon or out of the said general undertaking. Let the said manager and receiver out of the money to be received by him pay all expenses proper and necessary for the maintenance, management, and working of the said general under- taking. — Directions to pass accounts and pay balances into Court. — Liberty to apply as to payments to be made by receiver. — Let the fol- lowing account and inquiry be made : — 1. An account of what is due to the petitioners for principal, interest, and costs upon their judgment debt in the petition mentioned. 2. An inquiry whether there are any other and what debts of the company, and whether the same or any any which of them are incumbrances on the said undertaking, or the tolls or money arising therefrom, or any and what parts thereof respec- tively; and how the said incumbrances were respectively created, and what are the rights and priorities of the persons for the time being interested therein. — Adjourn further consideiation. — Liberty to apply. Be Stafford and Uttoxeter By. Co., W. N. (1868), 113. Peoteotion of Eolling Stock and Plant. " The engines, tenders, carriages, trucks, machinery, tools, fittings, materials, and effects constituting the rolling stock and plant used of provided by a com- pany for the purposes of traffic on their railway, or of their stations or work- shops, shall not, after their railway or any part is open for public traffic, be liable to he taken in execution at law or in equity at any time after the passing of this Act and before the 1st of September, 1868 (extended by 31 & 32 Vict. c. 79, s. 1 and 33 & 34 Vict. c. 103), where the judgment on which execution issues is re- covered in an action on a contract entered into after the passing of this Act, or in Digitized by Microsoft® 704 STATDTOEY JURISDICTION. an action not on a contract commenced after the passing of this Act" : 30 & 31 Vict. c. 127, s. 4. " But the person who has recovered any such judgment may obtain the appoint- ment of a receiver, and, if necessary, of a manager of the^ undertaking of the com- pany, on application by petition in a summary way to the Court of Chancery in England or in Ireland, according to the situation of the railway of the company ; and all money received by such receiver or manager shall, after due provision for the working expenses of the railway and other proper outgoings in respect of the undertaking, be applied and distributed under the direction of the Court in pay- ment of the debts of the company, and otherwise, according to the rights and priorities of the persons for the time being interested therein " : Ibid. The petition should be served on the company only ; but the Court may order service on such parties as the Court thinks fit : Gen. Ord. Jan. 24 1868, mle 30 ; see Beddgekrt Go. 19 W. B. 427. Every order appointing a receiver or manager under the 4th section is to direct such accounts and inquiries as the Court may think fit for ascertaining the debts of the company and the rights and priorities of the persons interested in the moneys to come to the hands of such receiver or manager : Gen. Ord. Jan. 24, 1868, rule 31. Scheme foe Arrangement. " Where a company are unable to meet their engagements with their creditors, the directors may prepare a scheme of arrangement between their company and their creditors (with or without provisions for settling and defining any rights of shareholders of the company as among themselves, and for raising, if necessary, additional share and loan capital, or either of them), and may file the same in the Court of Chancery in England or in Ireland, according to the situation of the prin- cipal office of the company ; with a declaration in wiiting under the common seal of the company to the effect that the company are unable to meet their engage- ments with their creditors ; and with an affidavit of the truth of such declaration made by the chairman of the board of directors, and by the other directors, or the major part in number of them, to the best of their respective judgment and belief : 30 & 31 Vict. c. 127, s. 6. Every scheme must be filed in the office of the clerk of records and writs, and the declaration and affidavit required by sect. 6 must be annexed to such scheme, and filed at the same time therewith : Gen. Ord. Jan. 24, 1868, rule 5. " Notice of the filing of the scheme shall be published in the Gazette " : 30 & 31 Vict. c. 127, s. 8. The notice must be signed by the solicitor of the company or his London agent ; and must state whether the scheme contains any provisions for settling and defining any rights of shareholders among themselves, or for raising any and what amount of share or loan capital ; and must set forth the name and address of the solicitor and London agent (if any) of the company: Gen. Ord. Jan. 24, 1868, rule 12. " After the filing of the scheme the Court may, on the application of the com- pany, on summons or motion iu a summary way, restrain any action against the company on such terms as the Court thinks fit" : 30 & 31 Vict. o. 127, s. 7. But no order for restraining an action against the company by reason of a scheme having been filed is to be made, except upon an undertaking by the com- pany to be answerable in such damages (if any) as the Court or judge at chambers may think fit to award in the event of the plaintifl' being ultimately held entitled Digitized by Microsoft® THE RAILWAY COMPANIES ACT, 1867. 705 to proceed with such action ; and on such further terms (if any) as the Court or judge may think reasonable : Gen. Ord. Jan. 24, 1868, rule 14. After, publication of notice of the filing of the scheme in the Gazette, "no exe- cution, attachment, or other process against the property shall be available without leave of the Court, to be obtained on summons or petition in a summary way " : 30 & 31 Viet. c. 127, s. 9. And after publication the creditors of the company will not be allowed without leave of the Court to issue execution upon a writ of sci.fa. obtained under sect. 36 of the Companies Clauses Act, 1845, against shareholders of the company : He Devon and Somerset By. Co., L. R 6 Eq. 610 ; see also Re Teign Valley By. Co., 17 W. E. 817. " The scheme shall be deemed to be assented to by the holders of the mortgages or bonds issued under the authority of the company's special Acts when it is as- sented to in writing by three-fourths in value of the holders of such mortgages or bonds, and shall be deemed to be assented to by holders of debenture stock of the company when it is assented to in writing by three fourths in value of such stock " : 30 & 31 Vict. c. 127, s. 10. " Where any rent-charge or other payment is charged on receipts of, or is pay- able by the company in consideration of the purchase of the undertaking of another company, the scheme shall be deemed to be assented to by the holders of such rent-charge or other payment when it is assented to in writing by three- fourths in value of such holders": 30 & 31 Vict. c. 127, s. 11. " The scheme shaE be deemed to be assented to by the guaranteed or preference shareholders of the company when it is assented to in writing as follows : — If there is only one class of guaranteed or preference shareholders, then by three- fourths in value of that class ; and if there are more classes of guaranteed or pre- ference shareholders than one, then by three-fourths in value of each such class " : 30 & 31 Vict c. 127, s. 12. " The scheme shall be deemed to be assented to by the ordinary shareholders of the company when it is assented to at an extraordinary general meeting of the company specially called for that purpose " j 30 & 31 Vict. o. 127, s. 13. Where the company are lessees of a railway the scheme shall be deemed to be assented to by the leasing company when it is assented to as follows : — In writing by three-fourths in value of the holders of mortgage bonds and debenture stock of the leasing company : If there is only one class of guaranteed or preference shareholders of the leasing company, then in writing by three-fourths in value of that class, and if there are more classes of guaranteed or preference shareholders in the leasing company than one, then in writing by three-fourths in value of each such class : By the ordinary shareholders of the leasing company at an extraordinary general meeting of that company specially called for that purpose " : 30 & 31 Vict. c. 127, s. 14. " Provided that the assent to the scheme of any class of holders of mortgages, bonds, or debenture stock, or of any class of holders of a rent-charge or other pay- ment as aforesaid, or of any class of guaranteed or preference shareholders, or of a leasing company, shall not be requisite in case the scheme does not prejudicially affect any right or interest of such class or company " ; 30 & 31 Vict. c. 127, s. 15. Digitized by Microsoft® 2 z 706 STATUTORY JURISDICTION. Petition to confirm Scheme. " If at any time within three months after the filing of the scheme, or within stich extended time as the Court from time to time thinks fit to allow, the directors of the company consider the scheme to be assented to as by this Act required, they may apply to the Court by petition in a summary way for confirmation of the scheme, notice of aay such application when intended shall be published in the Gazette": 30 & 31 Vict. c. 127, s. 16. " Every petition for the confirmation of a scheme shall be presented by the directors or the major part of them. Such petition shall not set forth the scheme, but only refer thereto ": Gen. Ord. Jan. 24, 1868, rule 15. " The petitioners presenting such petition as aforesaid shall, for the pur- poses of such petition, be treated as representing the company, and the company shall not otherwise appear on the hearing of such petition " : Gen. Ord. Jan. 24, 1868, rule 16. " When any petition to confirm a scheme is presented, the directors must apply to the judge in chambers to appoint the day on which the same is to come into the paper for hearing : such day not to be before the expiration of three weeks from the time of such application : and must cause a notice of the presenta- tion thereof to be inserted as follows ; (that is to say,) — (1.) In the case of a company whose principal ofiioe is within ten miles from the General Post Ofiice, in the London Gazette, and in such two London daily morning newspapers as the judge in chambers shall direct : (2.) In the case of any other company, in the London Gazette, and in such two local newspapers circulating in the district where the principal office of such company is situate as the judge in chambers shall direct : Such notice shall state the day on which the scheme was filed, and the day on which the petition was presented, and the day on which the same is directed to come into the paper for hearing, and the name and address of the sohoitor and London agent (if any) of the company " : Gen. Ord. Jan. 24, 1868, rule 17. " The petition shall not come on to, be heard until at least fourteen clear days after the insertion of such notice as aforesaid. Such notice shall at least once in every entire week, reckoned from Sunday morning to Sunday evening,' which shall have elapsed between the time of the first insertion thereof and the day on which the petition is directed to come into the paper for hearing, be again inserted in such two London or local newspapers as aforesaid on such day or days as the judge in chambers shall direct " : Gen. Ord. Jan. 24, 1868, rule 18. Appearances. " Any creditor, shareholder, or other party whose rights or interests are affected by the scheme, and who is desirous to be heard in opposition to the con- firmation thereof, may at least two clear days before the day on which the petition for confirmation is directed to come into the paper for hearing, enter an appearance at the, office of the clerk of records and writs ; and in default of so doing he will not be entitled to be heard unless by special leave of the Court ; and having entered an appearance he will be deemed to have submitted himself to the jurisdiction of the Court as to the payment of costs and otherwise " : Gen. Ord. Jan. 24, 1868, rule 19. " Any person so entering an appearance shall he deemed to have submitted himself to the jurisdiction of the Court as to the payment of costs and otherwise " • Gen. Ord. Jan. 24, 1868, rule 20. Digitized by Microsoft® THE RAILWAY COMPANIES ACT, 1867. 707 Outside creditors have a right to appear on the petition to confirm the scheme and to oppose the confirmation : Be Somerset and Dorset Ry, Co., 18 W. E. 337 ; Bristol and North Somerset By. Co., L. E. 6 Bq. 448. And where the scheme contains a clause seriously aflecting the rights of outside creditors, the Court wiil require the assent in writing of every such outside creditor before it confirms the scheme : Be Bristol and Ncyrth Somerset By.. Co., L. E. 6 Eq. 448. Order on Petition. " After hearing the directors, and any creditors, shareholders, or other parties, whom the Court thinks entitled to be heard on the application, the Court, if satisfied that the scheme has been within three months after the filing of it, or such extended time (if any) as the Court has allowed, assented to as required by this Act, and that no sufBcient objection to the scheme has been established, may confirm the scheme " : 30 & 31 Vict. c. 127, s. 17. Inrolment of Scheme. " The scheme when confirmed shall be inroUed in the Court ; and thenceforth the same shall be binding and efiectual to all intents ; and the provisions thereof shall against and in favour of the company, and all parties assenting thereto or bound thereby, have the like effect as if they had been enacted by Parliament " : 30 & 31 Vict. c. 127, s. 18. " No scheme shall be deemed to have been confirmed by the Court of Chancery until an order for confirming the same has been inrolled " : Gen. Ord. Jan. 24, 1868, rule 21. "Notice of the confirmation and inrolment of the scheme shall he published in the OazeUe " : 30 & 31 Vict. c. 127, s. 19. Notice of Order. " Notice of any order confirming a scheme, shall at least once' in every entire week, reckoned from Sunday morning to Saturday evening, which shall elapse between the pronouncing of such order and the expiration of thirty days from the pronouncing thereof, be inserted in such two newspapers as • shall have been appointed by the judge for the insertion of advertisements under the 17th rule " : Gen. Ord. Jan. 24, 1868, rule 22. Inrolment of Order confirming Scheme. " No order for confirmino a scheme shall be Inrolled until the expiration of thirty days from the day of the same having been pronounced, exclusive of vaca^ tions " : Gen. Ord. Jan. 24, 1868, rule 23. "No caveat shall be entered to stay the inrolment of any order confirming a scheme, but every such order may be inrolled at the expiration of thirty days from the day of the same being pronounced, unless in the meantime a petition for a rehearing shall have been presented, and an order for setting down such petition obtained and served ; such thirty days to be exclusive of vacations " : Gen. Ord. > Jan 24, 1862, rule 24. Digitized by Microsoft® 2 z 2 708 STATUTORY JURISDICTION. Petition op Reheaeing. " No petition for a rehearing, either before the same jvui'^e, or before the Lord Chancelloi" or the Lords Justices, of the case on which any order for confirming, or order refusing to confirm, a scheme has been made, shall, unless by special leave of the Lord Chancellor or the Lords Justices, be presented after the expiration of thirty days, exclusive of vacations, from the day on vphich such order was pro- nounced, notwithstanding that such order may not have been inroUed " : Gen. Ord. Jan. 24, 1868, rule 25. " Where an order has been made for confirming a scheme, no person who has neither entered an appearance as aforesaid, nor by virtue of such special leave as aforesaid been heard in opposition to the confirmation of the scheme, is to be at liberty to present a petition for rehearing before the same judge, or before the Lord Chancellor or the Lords Justices, unless the Lord Chancellor or the Lords Justices shall by special order, to be applied for by motion, on notice to the com- pany, to be served on their solicitor, or at their principal office, give leave to such person to present a petition for a rehearing " : Gen. Ord. Jan. 24, 1868, rule 26. " Where any petition for a rehearing of a petition for confirmation of a scheme is presented, the same certificate of counsel, the same subscription by the peti- tioner or his solicitor with respect to costs, .and the same deposit are requisite as are required for a rehearing when a decree has been made at the hearing of a cause " : Gen. Ord. Jan. 24, 1868, rule 27, Digitized by Microsoft® ( 709 ) CHAPTER XLVII. THE LIQUIDATION ACT, 1868. 31 & 32 Vict. c. 68. Division of Assets in Specie — Scheme. " If in any case of bankruptcy, aiTangement, or winding-up within this Act it appears to the liquidators that it will be for the benefit of the estate in liquidation that any part of the assets thereof should be divided in specie, or be otherwise disposed of without sale, they may prepare and file in the Court of Chancery a scheme in that behalf" : 31 & 32 Vict. c. 68, s. 6. " Where such scheme relates to assets of a company which is being wound up under the Companies Act, 1862, and any Act amending the same, by the Court of Chancery, or under the supervision of the Court of Chancery, the scheme shall be marked so as to be attached to the Court of the judge to whose Court the matter of such winding-up is attached " : Gen. Ord. April, 1869, rule 3. " Every such scheme shall be filed in the office of the clerks of records and writs, and shall have indorsed thereon the name and address of the solicitor and London agent (if any) of the liquidators, and also the address for service of such solicitor in cases where an address for service is required by the General Order of the Court " : Gen. Ord. April, 1869, rule 5. " A scheme may in any case provide that any class of secured creditors shall take in or towards discharge of their claims on the estate the securities held by them at a value to be determined by the Court, or in such manner as the Court shall direct" : 31 & 32 Vict. c. 68, s. 6. • Where the debtor had executed an inspectorship deed under the Bankruptcy Act, 1861, the ascertained value of the securities held by the secured creditors was held applicable to the reduction of principal and interest due to the secured creditors at the date of the inspectorship deed, and not to be applicable by the creditors in payment, in the first place, of interest accrued on their debts since the date of the inspectorship : Be Savin, L. E. 7 Ch. 760. Affidavit. " Except in cases where an affidavit verifying a lists of creditor shall already have been filed, or a list of creditors shall have been made out under the direction of the Court, the liquidators on the day on which the scheme is filed, or within such further time as the judge shall allow, shall file in the office of the clerk of records and writs an affidavit made by some person competent to make the same, verifying a list containing the names and addresses of the creditors, and the amounts due to them respectively so far as the same can be ascertained, and 'eave the said list and an office copy of such affidavit at the chambers of the judge " : Gen. Ord. April, 1869, rule 7. Digitized by Microsoft® 710 STATUTORY JURISDICTION. Notice of filing Scheme. " Copies of the scheme and copies of the list of creditors containing the total amount due to them, but omitting the amounts due to them respectively, or (if the judge shall so direct) complete copies of such list, shall be kept at the offices of the solicitor of the liquidator and the London agent (if any) ; and any person claiming to be interested as creditor or contributory may at any time during the ordinary hours of business inspect and take extracts from such scheme and copy list on payment of the sum of one shilling " : Gen. Ord. April, 1869, rule 8. " The liquidators shall within seven days after the filing of the scheme, or within such further time as the judge may allow, send to each creditor whose cause is entered in the said list, or to such of them as the judge shall think fit, and in cases of winding-up to such of the contributories as the judge shall think fit, a notice of the filing of the scheme. Such notice shall state the time when the scheme was filed, and the place or places where the scheme may be in- spected, and copies thereof obtained, and shall be sent through the post in a prepaid letter addressed to each of the persons to whom the same is to be sent at his last-known address or place of abode " : Gen. Ord. April, 1869, rule 9. " Notice of the filing of the scheme may also, if the judge shall think fit, after the filing thereof, be published at such times and in such newspapers as the judge shall direct. Every such notice shall contain such particulars as are mentioned in the preceding rule " : Gen. Ord. April, 1869, rule 10. Confirmation of Scheme — Petition. " At such time after the filing of the scheme as General Orders under this Act direct, the liquidators may apply to the Court in a summary way for confirmation thereof" : 31 & 32 Vict. c. 68, s 8. " After the expiration of one calendar month from the filing of the scheme, or at such earlier time as the judge shall think fit, the liquidators may present a petition for confirmation of the scheme. It shall not be necessary in such petition to set forth the scheme, but it shall be sufiBcient to refer thereto": Gen. Ord. April, 1869, rule 11. '•When any petition to confirm any such scheme is presented, the liquidator shall apply to the judge in chambers to appoint the day on which the same is to come into the paper for hearing, such day not to be before the expiration of three weeks from the time of such application, and shall cause a notice of such pre- sentation' to be inserted in such two newspapers as the judge in chambers shall direct. Such notice shall state the day on which the scheme was filed, and the day on which the same is directed to come into the paper for hearing, and the name and address of the solicitor and Loudon agent (if any) of the liquidator " : Gen. Ord. April, 1869, rule 12. " The petition shall not come on to be heard until at least fourteen clear days after the first insertion of such notice as aforesaid. Such notice shall, at least, once in every entire week, reckoned from Sunday morning till Saturday evening, which shall have elapsed between the first insertion thereof and the day on which such petition is directed to come into the paper for hearing, be again inserted in such newspapers, as aforesaid, on such day or days as the judge in chambers shall direct" : Gen. Ord. April, 1869, rule 13. Digitized by Microsoft® THE LIQUIDATION ACT, 1868. 7H Order confirming Scheme. " After hearing the liquidators and any creditors, or other parties, whom the Court thinlcs entitled to be heard on the application, the Court, if satisfied that no sufBcient objection has been established to the scheme, may confirm the scheme, with or without alteration or addition " : 31 & 32 Vict. c. 68, s. 9. " Any creditor, contributory, or other person, whose rights or interests are affected by such scheme, and who shall be desirous to be heard in opposition to the confirmation thereof, shall at least two clear days before the day on which the petition for confirmation is directed to come into the paper for hearing, enter an appearance in the office of clerk of records and writs, and in default of so doing, shall not be entitled to be heard unless by special leave of the Court " : Gen. Ord. April, 1869, rule 14 "Any person so entering an appearance shall be deemed to have submitted himself to the jurisdiction of the Court as to payment of costs, and otherwise " : Gen. Ord. April, 1869, rule 15. Inrolment of Order — Caveat. " No order for confirming a scheme, whether with or without alteration or addition, shall be inrolled until after the expiration of thirty days from the day of the same having been pronounced, exclusive of vacations " : Gen. Ord. April, 1869, rule 16. " No caveat shall be entered to stay the inrolment of any order for confirming a scheme, with or without alterations or additions ; but every such order may be inrolled after the expiration of thirty days from the day of the same being pro- nounced, unless in the meantime a petition for a rehearing shall have been pre- sented, and an order for setting down such petition obtained and served upon the liquidators, such thirty days to be exclusive of vacations " : Gen. Ord. April, 1869, rule 17. Petition for Eehearing. " No petition for a rehearing, either before the same judge or before the Lord Chancellor, or the Lords Justices, of the case on which any order confirming a scheme, with or without alterations or additions, or order refusing to confirm a scheme has been made, shall, unless by special leave of the Lord Chancellor or the Lords -Justices, be presented after the expiration of thirty days, exclusive of vacations, from the day on which such order was pronounced, notwithstanding that such order may not have been inrolled" : Gen. Ord. April, 1869, rule 18. " When an order has been made for confirming a scheme, with or without alterations or additions, no person who neither has entered an appearance as afore- said, nor has by virtue of such special leave been heard in opposition to the con- firmation of the scheme, nor is the legal personal representative of a person who has entered an appearance or been heard in opposition as aforesaid, shall be at liberty to present a petition for rehearing before the same judge, or before the Lord Chancellor or the Lords Justices, unless the Lord Chancellor or the Lords Justices shall, by special order, to be applied for by motion on notice to the liquidators, to be served on their solicitor or London agent, give leave to such person to present a petition for a rehearing" : Gen. Ord. April, 1869, rule 19. Chamber Orders. " All orders made in chambers under the Liquidation Act, 1868, shall be drawn Digitized by Microsoft® 712 STATUTORY JURISDICTION. up in chambers, unless specially directed to be drawn up by the registrar, and shall be entered in the same manner and in the same office as other orders drawn , up in chambers " : Gen. Ord. April, 1869, rule 20. Effect of Scheme. " The scheme as and when confirmed by the Court shall be binding and effectual to all intents (any rule of law or equity, or course of procedure in any Court notwithstanding), and the liquidators and debtors and others affected by that scheme shall conform with the conditions thereof, and accordingly shall (subject to the directions of the Court) execute and do all deeds and things neces- sary or proper for transferring or vesting any portion of the assets of the estate in accordance with the scheme " : 31 & 32 Vict. c. 68, s. 10. Meetings of Ceeditoes. The Court in determining on the confirmation of a scheme, and in all proceed- ings and matters under or relating to a scheme, may have regard to the wishes of the creditors, or of separate classes of creditors, as proved to the Court by any sufficient evidence ; and the Court may, if it thinks it expedient for the purpose of ascertaining their wishes, direct meetings of creditors, or classes of creditors, to be summoned and lield, which meetings shall be re°:ulated in such manner as the Court thinks fit (regard being always had to the value of the debts due to the several creditors and to the nature and amount of their respective securities, if any) and may appoint a person to act as chairman of any such meeting, and to report the result thereof to the Court : 31 & 32 Vict. c. 68, s. 11. FoRECLOSaEE BY NOTICE. For facilitating the settlement of claims of secured creditors, the following pro- visions shall have effect : — (1.) In any case of bankruptcy, arrangement, or winding-up within this Act, any person being, or claiming to be, a creditor on the estate in liquida- tion, and holding or claiming a security, charge, or lien on the assets of the estate, may without suit give notice in writing to the liquidators arid debtor, stating his debt or demand, and the security, charge, or lien which he holds or claims, and requiring payment of his debt or demand within a time therein specified, not being less than six months from the delivery of the notice. (2.) Unless the liquidators within the time specified either comply with the notice, or give to the creditor a counter-notice to the effect that they dispute his right to the security, charge, or lien held or claimed by him, then from and after the expiration of the time specified the creditor shall be entitled and bound to retain and accept in full and final satisfaction of the debt or demand stated in his notice, that portion of the assets on which he holds or claims the security, charge, or lien, and all right and title of the liquidators and debtor therein shall thenceforth be fore- closed. (3.) The liquidators and debtor shall, at the cost of the estate, execute and do all deeds and things necessary or proper for vesting in the creditors such portion of the assets as aforesaid, free from all right of redemption by such liquidators or debtor : 31 & 32 Vict. c. 68, s. 12. Digitized by Microsoft® ( 713 ) CHAPTER XLVIII. METEOPOLITAN BOAED OF WOEKS ACT, 1869. 32 & 33 Vict, c. 102. Eeckiver. " Any person or body corporate entitled to any consolidated stock, or to any security granted by the Board, may, if default be made for a period of not less than two months after demand in writing, in payment of dividend of such stock, or of interest on any such security, apply to the Court of Chancery in a summary way for the appointment of a receiver ; and the Court of Chancery may, if it think fit, on such application, appoint a receiver on such terms and conditions and with such powers as the Court thinks fit " : 32 & 33 Vict. c. 102, s. 40. "Such person shall have the same power of collecting and receiving and applying all moneys liable to be carried under this Act to the Consolidated Loans Fund, and of assessing and raising the Metropolitan Consolidated Rate for the purpose of obtaining such moneys as the Board or any officer thereof may have ; and shall apply all such moneys, after payment of expenses and costs, under the direction of the Court, for the purposes of and in conformity with this Act " : Ibid. " The Court may at any time discharge such receiver, and shall have full juris- diction over such receiver, and the applicant, and all persons and bodies interested in the acts of the receiver, in the same manner and to the same extent as if a Siiit had been duly instituted for the administration of the affairs of the Board, 3,nd/i receiver had been appointed in such suit": Ibid. Digitized by Microsoft® ( TU ) CHAPTER XLIX. THE LIFE ASSUEANCE COMPANIES ACTS, 1870, 1871, 1872. 33 & 34 Vict. c. 61 ; 34 & 35 Vict. c. 58 ; 35 & 36 Vict. c. 41. Payment of Deposit into Coukt. " Every company established after the passing of this Act within the United Kingdom, and every company established or to be established out of the United Kingdom, which shall after the passing of tiiis Act commence to carry on the business of life assurance within the United Kingdom, shall be required to deposit the sum of £20,000 with the Accountant-General of the Court of Chan- cery, to be invested by him in one of the securities usually accepted by th6 Court for the investment of funds placed from time to time under its adminis- tration, the company electing the particular security and receiving the income therefrom ; and the Registrar shall not issue a certificate of incorporation imless such deposit shall have been made; and the Accountant-General shall return such deposit to the company so soon as its life assurance fund accumulated out of the premiums shall have amounted to £40,000" : 33 & 34 Vict. c. 61, s. 3. Investment of Deposit. " Every sum required by the Life Assurance Companies Act, 1870, to be deposited with the Accountant-General of the Court of Chancery shall be paiii into the Court of Chancery; and orders with respect to the payment of su(3j* money into and out of Court, and the investment and return thereof, and thf payments of the dividends and interest thereof, may be from time to time made,' altered, and revoked by the lilje authority and in the like manner as ordered with • respect to the payment into and out of Court, and the investment of other money, and the application of the dividends and interest thereof" : 34 & 35 Vict. c. 58, s. 1. " The said deposit may be made by the subscribers of the memorandum of association of the company, or any of them, in the name of the proposed com- pany ; and such deposit, upon the incorporation of the company, shall be deemed to have been made by and to be part of the assets of the company : " The said deposit shall, imtil returned to the company, be deemed to form part of the Life assurance fund of the company, and shall be subject to the pro- visions of sect. 4 of the Life Assurance Companies Act, 1870, accordingly. The Board of Trade may, from time to time, make, and when made, revoke, alter, or add to rules with respect to the payment and repayment of the said deposit, the investment of or dealing with the same, the deposit of stocks or securities in lieu of money, and the payment of the interest or dividends from time to time accruing due on such investment, stocks, or securities in respect of such deposit. Any rules made in pursuance of this section shall have "uch terms as the registrar thinks fit. " Any person aggrieved by any order of the registrar under this section may appeal in the prescribed manner to the Court, which may annul or confirm the order of the registrar with or without modification. " If any person disobeys any order of the registrar made in pureuance of this section, the registrar may certify such disobedience to the Court, and thereupon such person, subject to such right of appeal as aforesaid, may be punished by the Court in the same manner in all respects as if the order made by the registrar were the order of the Court" : sect. 71. " A person shall not be registered as proprietor of land until, if required by the registrar, he has produced to him such documents of title as will in the opinion of the registrar, when stamped or otherwise marked, give notice to any purchaser or other-person dealing with such land of the fact of the registration, and the regis- trar shall stamp or otherwise mark the same accordingly, or until he has other- wise satisfied the registrar that the fact of such registration cannot be concealed from a purchaser or other person dealing with the land " : sect. 72, Costs — Disobedience to Order of Eegistrar. " All costs, charges, and expenses that are incurred by any parties in or about any proceedings for registration of land shall, unless the parties otherwise agre«' Digitized by Microsoft® THE LAND TRANSFER ACT, 1875. 735 be taxed by the taxing officer of the Court of Chancery as between solicitor and client, but the persons by whom and the proportions in which such costs, charpes, and expenses are to be paid shall be in the discretion of the registrar, and shall be determined according to orders of the registrar, regard being had to the fol- lowing provision ; namely, that any applicant under this Act is \iah\e prima, facie to pay all costs, charges, and expenses incurred by or in consequence of his application, except in a case where parties object whose rights are sufficiently secured without their appearance, or where any costs, charges, or expenses are incurred unnecessarily or improperly, and subject to this proviso, that any party aggrieved by any order of the registrar under this section may appeal in the prescribed manner to the Court, which may annul or confirm the order of the registrar, with or without modification. " If any person disobeys any order of the registrar made in pursuance of this section, the registrar may certify such disobedience to the Court, and thereupon such person, subject to such right of. appeal as aforesaid, may be punished by the Court in the same manner in all respects as if the order made by the registrar were the order of the Court " : sect. 73. Doubtful Questions arising on Title. "Whenever, upon the examination of the title to any land the registrar enter- tains a doubt as to any matter of law or fact arising upon such title, he may, upon the application of any party interested in such land, refer a case for the opinion of any of Her Majesty's superior Courts, with power for the Court to direct an issue to be tried before any jury for the purpose of determining any fact ; the registrar may also name the parties to such case, and the manner in which the proceedings in relation thereto are to be brought before the Court to which such case is referred" : sect. 74. " The opinion of any Court to whom any case is referred by the registrar shall be conclusive on all the parties to such case, unless the Court before whom such case is heard permits an appeal to be had " : sect. 75. " Where any infants, married women, idiots, lunatics, persons of unsound mind, persons absent beyond seas, or persons yet unborn, are interested in the land in respect of the title to which any question arises as aforesaid, any other persons interested in such land may apply to 'the Court,' as defined by this Act, for a direction that the opinion of the Conrt to whom the case is referred under this Act shall be conclusively binding on such infants, married women, idiots, lunatics, persons of unsound mind, persons beyond the seas, or unborn persons " : sect. 76. " ' The Court ' as defined by this Act shall hear the allegations of all parties ap- pearing before it. It may disapprove altogether, or may approve, either with or without modification, of the directions of the registrar in respect to any case referred as to the title of land ; it may also, if necessary, appoint a guardian or other person to appear on behalf of any infants, married women, idiots, lunatics, persons of unsound mind, persons absent beyond seas, or unborn persons ; and if such Court is satisfied that the interests of the persons labouring under disability, absent, or unborn, will be sufficiently represented in any case, it shall make an order declaring that all persons, with the exceptions (if any) named in the order, g,re to be conclusively bound, and thereupon all persons, with such exceptions (if any) as aforesaid, shall be conclusively bound by any decision of the Court havin'' cognizance of the case in which such persons are concerned" : sect. 77. Digitized by Microsoft® 736 STATUTOBY JURISDICTION. Land Certificates, Office Copies of Leases, and Certificates of Charge. " If any land certificate or office copy of a registered lease or certificate of charge is lost, mislaid, or destroyed, the registrar may, upon being satisfied of the fact of such loss, mislaying, or destruction, grant a new land certificate or ofSce copy or certificate of charge in the place of the former one " : sect. 78. See Land Transfer Act Rules, rule 35. , " The registrar may, upon the delivery up to him of a land certificate or of an ofiSce copy of a registered lease or of a certificate of charge, grant a new land certificate or office copy of a lease or certificate of charge in the place of the one delivered up " : sect. 79. " Any land certificate or certificate of charge shall be prima facie evidence of the several matters therein contained, and the office copy of a registered lease shall be evidence of the contents of the registered lease " : sect. 80. " Subject to any registered estates, charges, or rights, the deposit of the land certificate in the case of freehold land, and of the office copy of the r^stered lease in the case of leasehold land, shall, for the purpose of creating a lien on the land to which such certificate or lease relates, be deemed equivalent to a deposit of the title deeds of the land" : sect. 81. Special Hereditaments. " The registrar may register the proprietor of any advowson, rent, tithes, im^ propriate, or other incorporeal hereditament of freehold tenure, enjoyed in gross also the proprietor of any mines or minerals where the same have been severed from the land, in the same manner and with the same incidents in and with which he is by this Act empowered to register land, or as near thereto as cir- cumstances permit. " The registrar may also in the prescribed manner register any fee, farm grant, or other grant, reserving rents or services to which the fee simple estate In any freehold land about to be registered, or registered, may be subject, with such particulars of the land or services, and the conditions annexed to the non-payment or non-performance or otherwise of such rent and services as may be prescribed, and any record so made shall be conclusive evidence as to the rents, services, and conditions so recorded, and such fee simple estate as last aforesaid shall be subject thereto accordingly " : sect. 82. See Land Transfer Act Rules, rule 32. General Provisions, "The following enactments shall be made with respect to registration of title:— (1.) There shall not be entered on the register or be receivable by the registrar any notice of any trust, implied, express, or constructive ; and (2.) No person shall be registered as proprietor of any undivided share in any land or charge, and a number of persons exceeding the prescribed number shall not be registered as proprietors of the same land or charge ; and if the number of persons shewing title exceeds such prescribed number, such of them not exceeding the prescribed number as may bo agreed upon, or as the regisU'ar may in case of diflerence decide, shall be regis- tered as proprietors ; and Digitized by Microsoft® THE LAND TRANSFER ACT, 1875. 737 (3.) Upon the occasion of the registry of two or more persons as proprietors of the same land or of the same charge, an entry may, with their consent, be made on the register, to the effect that when the number of such pro- prietors is reduced below a certain specified number, no registered dis- position of such land or charge shall be made except under the order of the Court ; and (4.) Where land is registered in the names of husband and wife as co-pro- prietors, no registered disposition of such land shall take place until the wife, if alive, has been examined in the prescribed manner and has assented to such disposition after full explanation of her rights in the land and of the effect of the proposed disposition ; and* (5.) Registered land shall be described in such manner as the registrar thinks best calculated to secure accuracy, but such description shall not be conclusive as to the boundaries or extent of the registered land ; and (6.) No alteration shall be made in the registered description of land, except under the order of the Court or by way of explanation ; but this pro- vision shall not be construed to extend to registered dealings with regis- tered land in separate parcels by the registered description although such land was originally registered as one estate ; and (7.) Previously to registering any proposed purchaser as first proprietor of any land or to registering any disposition of land, it shall be the duty of the registrar to ascertain that all such stamp duties have been satisfied as would be payable if the land had been conveyed by an unregistered dis- position to such proposed purchaser, or the disposition to be registered had been an unregistered disposition : (8.) The provisions of this Act with respect to the liability of registered land to succession duty and to the grant of a certificate by the Commissioners of Inland Revenue in respect of the exemption from succession duty, and to the notification of such exemption on the register, and to the effect of such notification, shall apply with the necessary variations to a registered charge under this Act " : sect. 83. Annexation of Conditions to Kesistered Land. " Where any land is about to be registered, or any registered land is about to be transferred to a purchaser for valuable consideration, there may be registered as annexed thereto, subject to general rules and in the prescribed maimer, a con- dition that such land or any specified portion thereof is not to be built on, or is to be or not to be used in a particular manner, or any other condition running with or capable of being legally annexed to land, and the first proprietor and every transferee, and every other person deriving title from him, shall be deemed to be affected with notice of such condition ; nevertheless, any such condition may be modified or discharged by order of the Court, on proof to the satisfaction of the. Court that such modification will be beneficial to the persons principally interested in the enforcement of such condition": sect. 84. See Land Transfer Rules, rule 31. The Trustee Act, 1850. " All the provisions of the Trustee Act, 1850, and of any Act amending the same, shall apply to land and charges registered under this Act, but this enact- ment shall not prejudice the applicability to such land and charges of any pro- visions of such Acts i-eh,0tgjtiilgi^^ fiffmJSdf^ " '■ ^ect. 85. 738 STATUTORY JURISDICTION. Indemnity op Eegistrar. " The registrar shall not, nor shall the assistant registrar nor any person acting under his authority, or under any order or general rule made in pursuance of this Act, be liable to any action, suit, or proceeding for or in respect of any act or matter lonafide done or omitted to be done in the exercise or supposed exercise of the powers of this Act ; or any order or general rule made in pursuance of this Act": sect. 86. Maeeied Woman. " Where a married woman, ^entitled for hei; separate use, and not restrained from anticipation, is desirous of giving any consent, or becoming party to any proceeding under this Act, she shall be deemed to be an unmarried woman, but when any other married woman is desirous of giving any consent, or becoming party to any proceeding under this Act she shall be examined in the prescribed manner, and it shall be ascertained that she is acting freely and voluntarily, and the Court may, where it sees fit, appoint a person to act as the next friend of a married woman for the purpose of any proceeding under this Act, and may from time to time remove or change such next friend " : sect. 87. See Land Transfer Act Rules, rule 60. Infants and Lunatics. " Where any person who (if not under disability) might have made any appli- cation, given any consent, done any act, or been party to any proceeding in rela- tion to any land or charge under this Act, is an infant, idiot, or lunatic, the guardian or committee of the estate respectively of such person may make such applications, give such consents, do such acts, and be party to such proceedings, as such person respectively, if free from disability, might have made, given, done, or been party to, and shaU otherwise represent such person for the purposes of this Act ; where there is no guardian or committee of the estate of any such person as aforesaid, being infant, idiot, or lunatic, or where any person is of un- sound mind or incapable of managing his affairs, but has not been found lunatic under an inquisition, it shall be lawful for the Court to appoint a guardian of such person for the purpose of any proceedings under this Act, and from time to time to change such guardian": sect. 88. ' As TO Notices. " Every person whose name is entered on the register as proprietor of land or of a charge, or as cautioner, or as entitled to receive any notice, or in any other character, shall furnish to the registrar a place of address in the United King- dom " : sect. 89. " Every notice by this Act required to be given to any person shall be served personally, or sent through the post in a registered letter marked outside ' Office of Land Registry,' and directed to such person at the address furnished to the registrar, and unless returned, shall be deemed to have been received by the person addressed within such period, not less than seven days, exclusive of the day of posting, as may be prescribed " : sect. 90. " Her Majesty's Postmaster-General shall give directions for the immediate return to the registrar of all letters marked as aforesaid, and addressed to any person who cannot be found, and on the return of any letter containing any Digitized by Microsoft® THE LAND TRANSFER ACT, 1875. 739 notice, the registrar shall act in the matter requiring such noticfc to be given in manner prescribed " : sect. 91. "A purchaser for valuable consideration shall not be affected by the omis- sion to send any notice by this Act directed to be given, or by the non-receipt thereof " : sect. 92. Specific Performance — Costs. " Where a suit is instituted for the specific performance of a contract relating to registered land, or a registered charge, the Court having cognizance of such suit may by summons, or by such other mode as it deems expedient, cause all or any parties who have registered estates or rights in such land or charge, or have entered up notices, cautions, or inhibitions against the same, to appear in such suit, and shew cause why such contract should not be specifically performed, and the Coiwt may direct that any order made by the Court in such suit shall be binding on such parties or any of them " : sect. 93. " All costs incurred by any parties so appearing in a suit to enforce against a vendor specific performance of his contract to sell registered land or a registered charge shall be taxed as between solicitor and client, aiid unless the Court other- wise orders, be paid by such vendor " : sect. 94. Eectification of the Eegistee. " Subject to any estates or rights acquired by registration in pursuance of this Act, where any Court of competent jurisdiction has decided that any person is entitled to any estate, right, or interest in or to any registered land or charge, and as a consequence of such decision such Court is of opinion that a rectification of the register is required, such Court may make an order directing the register to be rectified in such manner as it thinks just " : sect. 95. " Subject to any estates or rights acquired by registration in pursuance of this Act, if any person is aggrieved by any entry made or by the omission of any entry from the register under this Act, or if default is made, or unnecessary delay takes place in making any entry in the register, any person s^grieved by such entry, omission, default, or delay may apply to the Court in the prescribed manner for an order that the register may be rectified, and the Court may either refuse such application with or without costs, to be paid by the applicant, or ft may, if satis- fied of the justice of the case, make an order for th§ rectification of the register " : sect. 96. " The registrar shall obey the order of any competent Court in relation to any registered land on being served with such order or an of&cial copy thereof": sect. 97- Appeals. " Upon any application to the Court being made on the requirement of or appeal from the registrar, or for the rectification of the register, under the 96th section, a statement shall be prepared by the applicant and settled and signed by the registrar, and forwarded to the Court through the office before the hearing ; " All applications to the Court and appeals from the registrar shall be by summons ; " No appeal from a decision or order of the registrar, or of the Court, shall affect any dealing for valuable consideration duly registered before a notice in Digitized by Microsoft® 3 b 2 740 STATUTORY JURISDICTION. writing of such Appeal has been lodged in the oflSce on the part of the appellant, and a note thereof on his application, in the register ; " No appeals shall be brought from a decision or order of the registrar, or of the Court, after twenty-eight days from the date of such decision or order, with- out leave of the Court " : Land Transfer Act Rules, rule 59. " Service of any order or official copy order of any Court on the registrar shall be made by leaving the same in the office, and an application shall be left at the same time for the rectification of the register being made, or any other act being done in accordance with such order, and the matter shall be proceeded with as the registrar shall direct " : Ibid. As TO Fraud. " Subject to the provisions in this Act contained with respect to registered dis- positions for valuable consideration, any disposition of land or of a charge on land which if imregistered would be fraudulent and void, shall, notwithstanding regis- tration, be fraudulent and void in like manner " : sect. 98. See also sects. 99^103. Inspection of Eegister. " Subject to such' regulations and exceptions and to the payment of such sums as may be fixed by general rules, any person registered as proprietor of any land or charge, and any person authorized by such proprietor, or by an order of the Court, or by general rule, but no other person, may inspect and make copies of and extracts from any register or document in the custody of the registrar relating to such land or charge " : sect. 104. See also Land Transfer Act Rules, rule 57. Description and Powers of "the Court." " For the purposes of this Act, ' the Court ' shall mean the Court of Chancery or the County Courts, according as the one or other of such Courts may be pre- scribed by the General Rules made for carrying into effect this Act. " The County Court shall, in cases where it has jurisdiction under this Act, have, for all the purposes of such jurisdictioiv, all the powers of the Court of Chancery. " Any jurisdiction of the Court of Chancery or County Court under this Act may be exercised by any judge of the said Court, whether sitting in open Court or in chambers " : sect. 114. " The Lord Chancellor may from time to time assign the duties vested in the Court of Chancery in relation to matters under this Act to any particular judge or judges of that Court " : sect. 115. " Any person aggrieved by any order of a judge of a County Court may, within the prescribed time and in the prescribed manner, appeal to the Court of Chancery. " The Court on hearing such appeal may give judgment affirming, reversing, or modifying the order appealed from, and may finally decide thereon, and make such order as to costs in the Court below and of the appeal as may be agreeable to justice ; and if the Court alter or modify the order, such order so altered or modified shall be of the like effect as if it were the order of the County Court. The Court of Chancery may also, in cases where the Court thinks it expedient so to do, instead of making a final order, remit the case, with such directions as the Court may think fit, to the Court below " : sect. 116. Digitized by Microsoft® THE LAND TRANSFER ACT, 1875. 741 " Any person aggrieved by an order made under this Act by the Court of Chancery otherwise than on appeal from a County Court, may appeal within the prescribed time, in the same manner and with the same incidents in and with which orders made by the Court of Chancery on cases within the ordinary juris- diction of such Court may be appealed from " : sect. 117. DisTEioT Eegisteies [See sect. 122]. Local Eegisteies [See sect. 128]. Eepeal. "The seventh section of the Vendor and Purchaser Act, 1874, is hereby repealed, as from the date at which it came into operation, except as to anything duly done thereunder before the commencement of this Act " : sect. 129. Digitized by Microsoft® ( 742 ; CHAPTER LII. THE TEADE MAEKS EEGISTEATION ACT, 1875. 38 & 39 Vict. c. 91. Ebqistbation of Trade Marks. " A register of trade marks as defined by this Act, and of the proprietors thereof shall be established under the superintendence of the Commissioners of Patents, and from and after the first day of July, one thousand eight hundred and seventy-six, a person shall not be entitled to institute any proceeding to prevent the infringement of any trade mark as defined by this Act until and unless such trade mark is registered in pursuance of this Act " : sect. 1. Application for Registry. A person, whether a British subject or an alien, desiring to register a trade mark shall apply to the registrar by sending to him a statement accompanied by such declaration as is mentioned in mle 9, and the prescribed fee : Trade Marks Eegistration Act, rule 5. ' The statement is to contain the particulars enumerated in rule 6. The nature and size of representation of trade marks are specified in rule 8. Advertisement of Application [See Eules 12-15.] EEaiSTRATION OF TrADE MaEKS. Disputed Glaim — Befereme to the Court. " Where each of several persons claim to be re^stered as proprietors of the same or a nearly identical trade mark, in respect of the same goods, or goods belonging to the same class, the registrar shall use his discretion as to registering all or any of such trade marks, either unconditionally or on the condition of the introduction of such variations (if any) or otherwise as he thinks fit, or the registrar may, if in any case he thinks it expedient, submit or require the claimants to submit their rights to the Court " : rule 17. Characteristics of Eeqistered Trade Mark. " A trade mark must be registered as belonging to particular goods, or classes of goods ; and when registered shall be assigned and transmitted only in con- nection with the goodwill of the business concerned in such particular goods or classes of goods, and shall be determinable with such goodwill, but subject ag aforesaid j:egistration of a trade mark shall be deemed to be equivalent to public use of such mark " : sect. 2. Digitized by Microsoft® THE TRADE MAEKS REGISTRATION ACT, 1875. 743 Title op Peopeietoes. " The registration of a person as first proprietor of a trade mark shall be prima fade evidence of his right to the exclusive use of such trade mark, and shall, after the expiration of five years from the date of such registration, be conclusive evidence of his right to the exclusive use of such trade mark, subject to the provisions of this Act as to its connection with the goodvfill^ of a business " : sect. 3. " Every proprietor registered in respect to a trade mark subsequently to the first registered proprietor shall, as respects his title to that trade mark, stand in the same position as if his title were a continuation of the title of the first registered proprietor " : sect. 4. Eectification of Kegistee. " If the name of any person who is not for the time being entitled to the exclusive use of a trade mark in accordance with this Act, or otherwise in accordance with law, is entered on the register of trade marks as a proprietor of such trade mark, or if the registrar refuses to enter on the register as proprietor of a trade mark the name of any person who is for the time being entitled to the exclusive use of such trade mark in accordance with this Act, or otherwise in accordance with law, or if any mark is registered as a trade mark which is not authorized to be so registered under this Act, any person aggrieved may apply in the prescribed manner for an order of the Court that the register may be rectified ; and the Court may either refuse such application, or it may, if satisfied of the justice of the case, make an order for the rectification of the register, and may award damages to the party aggrieved. " Where each of several persons claims to be registered as proprietor of the same trade mark, the registrar may refuse to comply with the claims of any of such persons until their rights have been determined by the Court, and the registrar may himself submit or require the claimants to submit in the prescribed manner their rights to the Court. " The Court may, in any proceeding under this section, decide any question as to whether a mark is or is not such a trade mark as is authorized to be registered under this Act, also any question relating to the right of any person who is party to such proceeding to have his name entered on the register of trade marks, or to have the name of some other person removed from such register, also any other question that it may be necessary or expedient to decide for the rSctification of the register. " The Court may direct an issue to be tried for the decision of any question of fact which may require to be decided for the purposes of this section. '' Whenever any order has been made rectifying the register, the Court shall by its order direct that due notice of such rectification be given to the registrar": sect. 5. See Teade Maeks Eegisteation Acts Eules, 35-39. Applications to the Couet. Motion — Special Case. The Court for the purposes of this Act is hereby declared to be the Chancery Division of Her Majesty's High Court of Justice " : rule 42. Digitized by Microsoft® .1) ,0 744 STATUTOEY JURISDICTION. " An application to the Court under the Act, and these Rules may, subject to the Rules of Court under the Supreme Court of Judicature Act, 1875, be made by motion or by application in chambers, or in such other manner as the Court may direct " : rule 43.' " Where the registrar refuses to comply with Ihe claims of any person until their rights have been determined by the Court, the manner in which the rights of such claimants may be submitted by the registrar, or if the registrar so require, by the claimants, to the Court, shall, unless the Court otherwise order, be by a special case ; and such special case shall be filed and proceeded with in like manner as any other special case submitted to the Court, or in such other manner as the Court may direct " : rule 44. " The special case may be agreed to by the parties, or if they differ may be settled by the registrar " : rule 45. Eestkictions on Kegistet op Trade Maeks. " The registrar shall not, without the special leave of the Court, to be given in the prescribed manner, register in respect of the same goods or classes of goods a trade mark identical with one which is already registered with respect to such goods or classes of goods, and the registrar shall not register with respect to the same goods or classes of goods a trade mark so nearly resembling a trade mark , already on the register with respect to such goods or classes of goods as to be calculated to deceive. \ " It shall not be lawful to register as part of or in combination with a trade mark any words the exclusive use of which would not, by reason of their being calcu- lated to deceive or otherwise, be deemed entitled to protection in a Court of Equity ; or any scandalous designs" : sect. 6. Eemoval of Teade Maek. A trade mark is removed after the expiration of fourteen years unless an additional fee is paid by the proprietor : see rules 30-33. " The Court may on the application of any person aggrieved, remove any trade mark from the register on the ground, after the expiration of five years from the date of the registry thereof, that the registered proprietor is not engaged in any business concerned in the goods with respect to which a trade mark is registered ": rule 34. Eegistee Office and General Eules. A register office is to be established from and after such time (not being later than the first day of January one thousand eight hundred and seventy-six), in such manner, &c., as the Lord Chancellor may, with the consent of the Treasury, direct ; and the Lord Chancellor may from time to time, with the assent of the Treasury as to fees, make, and when made, alter, annul, or vary, such general rules, &c., as he may deem expedient. " Any rules made in pursuance of this section shall be laid before both Houses of Parliament if Parliament be then sitting, or if not then sitting, then within ten days from the then next assembling of Parliament, &c." : sect. 7. Certificate of Eegistrae. " The certificate of the registrar as to any entry, matter, or thing which he is authorized by this Act, or any general rules made thereunder, to make or do, Digitized by Microsoft® THE TRADE MARKS REGISTRATION ACT, 1875. T45 shall be evidence of such entry having been madfe, and of the contents thereof, and of such matters and things having been done or left undone " : sect. 8. The Cutlers' Company and Sheffield Corporate Marks. " With respect to the master, wardens, searchers, assistants, and c6mmonalty of the Company of Cutlers in Hallamshire, in the county of York (in this Act called ' the Cutlers' Company '), and the marks or devices (in this Act called ' Sheffield corporate marks ') assigned or to be assigned by the master, wardens, searchers, and assistants of that company, be it enacted as follows : (1.) Within the prescribed time and in the prescribed manner the Cutlers' Company shall at their own expense deliver to the registrar under this Act copies of all Sheffield corporate marks in force at the time of such delivery : (2.) When any person, after the passing of this Act, applies to the said master, wardens, searchers, and assistants to assign to him any mark or device, notice of such application, with a copy of such mark or device, shall, within the prescribed time and in the prescribed manner, be delivered to the registrar under this Act ; and such mark or device shall not be assigned until after the expiration of the prescribed period from the giving of such notice. In like manner, when any person applies for the registration under this Act of a trade mark as belonging to any goods or class of goods specified in section two of the Cutlers' Company's Act of 1860, notice of such application, with a copy of such trade mark, shall, within the prescribed time and in the prescribed manner, be deli- vered to the Cutlers' Company ; and such trade mark shall not be regis- tered until after the expiration of the prescribed period from the giving of the last-mentioned notice : (3.) Upon the assigning of any such mark or device, or the registration of any such trade mark as aforesaid, notice of the assignment or registration shall, within the prescribed time and in the prescribed manner, be given to the registrar under this Act, or to the Cutlers' Company, as the case may be : (4.) The registrar under this Act, without th? special leave of the Court, to be given only in cases where the applicant proves his right, shall not in respect of any goods or classes of goods with respect to which a Sheffield coi'porate mark shall have been assigned and actually used, and of which mark a copy or description or notice of the assigning whereof shall have been delivered or given to the registrar as aforesaid, register a trade mark identical with such Sheffield corporate mark, or so nearly resem- bling the same as to be calculated to deceive : (5.) The master, wardens, searchers, and assistants of the Cutlers' Company shall not assign to any person a mark or device identical with any trade mark registered under this Act, and notice of the registration whereof shall have been given to the Cutlers' Company as aforesaid, or so nearly resembling the same as to be calculated to deceive : (6.) Any person to whom a Sheffield corporate mark legally belongs shall be entitled to have the same mark registered also as a trade mark under this Act, in respect of any particular goods or classes of goods, in the same manner and upon the same terms and conditions in and upon which he might have registered the same if it were not a Sheffield cor- porate mark : ^jgj^j^^^ ^y Microsoft® 746 STATUTORY JURISDICTION. (7.) Nothing in this Act shall prejudice or affect the rights and privileges of the Cutlers' Company, nor, save as is otherwise in this Act expressly pro- vided, shall any of the provisions of this Act apply to or in the case of any ShefBeld corporate mark " : sect. 9. See Trade Marks Eeqistration Act Rules, 46-56. Definitions. " For the purposes of this Act : — A trade mark consists of one or more of the following essential particulars ; that is to say, a name of an individual or firm printed, impressed, or woven in some particular and distinctive manner ; or a written signature or copy of a written signature of an individual or firm ; or a distinctive device, mark, heading, lahel, or ticket ; and there may be added to any one or more of the said particulars any letters, words, or figures, or combina- tion of letters, words, or figures ; also any special and distinctive word or words or combination of figures or letters used as a trade mark before the passing of this Act may be registered as such under this Act. ' Prescribed ' means prescribed by General Rules made in pursuance of this Act ; and ' Court ' means any of Her Majesty's superior Courts of Law or Equity at Westminster, or any Court to which the jurisdiction of such Courts may be transferred, or any one or more of such Courts which may be declared to be the Court for the purposes of this Act by such General Rules as aforesaid ; but the provisions of this Act conferring a special jurisdiction on the Court as above defined shall not, excepting so far as such jurisdiction extends, affect the jurisdiction of any Court in Scotland or Ireland in causes, actions, suits, or proceedings relating to trades marks ; and if the register requires to be rectified in consequence of any proceedings in any such Court in Scotland or Ireland, due notice of such requirements shall be given to the registrar, and he shall rectify the register accordingly " : sect. 10. Digitized by Microsoft® ( 747 ) CHAPTER LIII. THE COPYEIGHT OF DESIGNS ACT, 1875. 38 & 39 Vict. c. 93. Teansfee of Powers to Commissioners of Patents. " On and after the commencement of this Act^ all powers, duties, and authori- ties vested in, imposed on, or to be exercised by the Board of Trade under the Acts mentioned in the schedule to this Act shall be transferred to, vested in, and imposed on the Commissioners of Patents for Inventions, and the said Acts shall be construed as if the said Commissioners of Patents were throughout substituted for the Board of Trade or the Lords of the Committee of the Privy Council for the consideration of all matters of trade and plantations" : sect. 2. " The said Commissioners of Patents may from time to time make, and when made revoke and alter General Eules for regulating registration under the Acts mentioned in the schedule hereto, and this Act, and on and after the commence- ment of this Act any discretion or power vested in the registrar under the said Acts shall be subject to the control of the Commissioners of Patents and shall be exercised by him in such manner and with such limitations and restrictions (if any) as may be prescribed by the said General Rules, and any provisions contained in the said Acts as 'to the copies, drawings, prints, descriptions, information, mat- ters, and particulars to be furnished to the registrar prior to registration, and as to the mode in which registration is to be conducted by the registrar, and gene- rally as to any act or thing to be done by the registrar, may be modified by such General Rules in such manner as the said Commissioners of Patents may think expedient. " General Rules made in pursuance of this section shall be laid before Parlia- ment within one month after they are made if Parliament be then sitting, or if not, within one month after the commencement of the then next session ; and if either House of Parliament resolve within one month after such rules have been laid before such House that any of such rules ought not to continue in force, any rule in respect of which such resolution has been passed shall, after the date of such resolution, cease to be of any force, without prejudice, nevertheless to the making of any other rule in its place, or to anything done in piursuance of any such rules before the date of such resolution" : sect. 3. " The office of registrar under the Acts mentioned in the schedule to this Act shall cease to exist as a separate paid office, and the Commissioners of Patents may from time to time make arrangements as to the mode in which and the person or persons by whom the duties of registrar and other duties under the said Acts are to be performed, and may from time to time delegate to any such person or persons all or any of the duties of the registrar, and any person Digitized by Microsoft® 748 STATUTOEY JURISDICTION. or persons to whom such duties may be delegated shall, in so far as such dele- gation extends, be deemed to be the registrar within the meaning of the said Acts. " Any arrangement or delegation of duties to the clerk or other officer of the Commissioners of Patents made by the Board of Trade shall be as valid as it would have been if this Act had been passed at the date of such arrangement or delegation, and the same had been made by the Commissioners of Patents " : sect 4. Digitized by Microsoft® INDEX. Note. — The Itcdics represent Forms of Orders. ABATEMENT, cases under recent practice in Chancery, 75-77 Judicature Bules as to : See Chanqbs of Inteeest, 75. ABSTRACT OP TITLE, Inquiry as to delivery of, at suit of vendor, 428 ACCOUNTS, appropriation in, 155 bill for account, when open to demurrer, 151 Company and agent, between, 157 Contribution — Sureties — Suit by surety, 161 Suit by executors of sureties, 161 Joint liability — Deed to be cancelled, 162 when account will be directed, 162, 163 Dealings and transactions, of, 149 and for payment, 149 Special directions — Boohs prima facie evidence, 149 Surcharge and falsify, liberty to, 149 Debts and liabilities (13 & 14 Vict. c. 25, and 23 & 2A Vict. c. 38), 248 Decree for account, as to form of, 152 costs of, 153 evidence at bearing of, what necessary, 152 Executors — Sole executor deceased, 183 both executors deceased, 183 one of two executors deceased, 182 falsifying — opening — surcharging, 153 fraud, opening account on proof of, 154 interest, when chargeable in accounts, 155 Judicature Eules as to accounts and inquiries, 152 account, when, may be ordered, 150 if writ indorsed (under Order 3, rule 8), 7 mode of taking, 151 just allowances in, 154 Partnership dealings and transactions, of: See Paetnbbship, 167 Digitized by Microsoft® 750 INDEX. ACCOUNTS— continued. Principal and stewa/rd, between, 156 rents and profits, of, when directed, 164 Settled accoimts, to stand, 150 to he opened, 150 with payment of costs relating to accounts set aside, 150 set-off, as to, 155 Solicitor and client, between, 156 Statute of Limitations, when not available, 151 ACTION, dismissal of, Proceedings, not obtaining order to carry on, 88, 89, 90, 91, 92 but present practice doubtful, 88 Statement of claim, non-delivery of, 26 Judicature Eules, causes of, may be joined, 11 but not for recovery of land without leave, 11 commencement of, 1 consolidation of, 40 discontinuance of, on notice by pit, 19 on payment of deft's costs, 19 but no defence to subsequent action, 19 dismissal of — discovery or inspection, pit not complying with order for, 35 interrogatories, pit not answering, 35 withdrawal of, after entry for trial, 19 ADMINISTEATION, actions for, 214 administration decree, usual declarations in. Will established, 178 if mil admitted, 178 if will proves itself, 178 Infomt heirs not ashing issue, 178 County Court jurisdiction in, 225 Creditor's action — Personal estate — General accounts, 178 Personal estate — Payment of pit's debt, 179 Action for pit's debt alone — Personal estate — Payment, 180 Seal and Personal estate — Inquiry as to heir, 179 Creditor's or mortgagee's action — Sale — Administration, 180 Creditor's action — Eguitable mortgagee — Seal and personal estate, 181 creditor's decree — cases as to form of, 214 establishing will, when not necessary, 212 delivery out of original will for purpose of, 213 heir-at-law, when not necessary party, 212 probate, when evidence of validity of will, 212 debts — interest on, when, and at what rate, 220 specialty and simple contract debts, 219 no priority after 1st January, 1870 . . 219 duty — legacy and succession, to be provided for, 219 default of, who chargeable, 219 Digitized by Microsoft® INDEX. 751 ADMINISTEATION— coniiJiwerf. establishing will, 212 income — apportionment of, as to, 220 when payable or recoverable, 221 Legatees, trustees, and executors, actions hy — Personal estate, 181 Beal and personal estate, 182 tenant for life and remainderman — accounts, mode of adjusting, 221 General AcconuTa in Deceee, Sole executor deceased, 183 Both executors deceased, 183 One of two executors deceased, 182 Special Inquiries in Decree, Building contracts — Liability of testator's estate, 184 Contracts hy trustee or executm — Since testator's death, 185 Domicile, common inquiry, 189 Special inquiries, 189 With declaration — Special accounts and inquiries, 189 cases as to, 221-222 Dower — Inquiry — Sale, 187 Inquiry — Recewer, 188 Government annuity, 188 Exchange, inquiry if beneficial, 187 Ileir-at-law — Customary heir — Inquiry as to, 184 Mortgages, inquiry haw created — How paid off, 187 Occupation rent, inquiry as to, 187 Personalty — Pure and Impure — Inquiry as to, 184 Purchase hy testator — Purchase-Tnoney to be paid out of personalty — Declaration as to realty, 186 Purchases by testator, inquiry as to contracts, 185 by testator's executors — Inquiry whether out of testator's money, 186 Sales and contracts — Inquiry as to, and disposal of purchase-money, 184 outstanding estate — decree to contain inquiry as to, 221 Further Considbeation (General Administration), Costs — Debts — Legacies — Payment of, 193 Similar order — by schedule, 195 PuETHEB Consideration (Insufficient Estate) Personalty insufficient — Debts — Apportionment, 199 Abatement of legacies — Apportimiment, 200 Abatement of legacies — Valuation — Sale or mortgage, 200 Abatement and apportionment of legacies — Duty — Besidue, 201, 202 Abatement of annuities — Valuation, 201 Contribution, by devised estates rateably, 204 by pecuniary legatee and residuary devisee, 204 by specific legacies and real estate, 203 by specifically devised ami descended estates, 203 Sale or mortgage of real estate — Payment of debts, 206 Hotchpot provisions — Common form, 196 Advances in excess of shares, 197 Interest on sums advanced — Incumbered shares, 197 Payments on account of shares, 198 Digitized by Microsoft® 752 INDEX. ADMim&TnAIIO'S— continued. MarshaMing — Personalty exhausted ly specialty creditors, 205 Personalty exhausted by mortgagee — Simple contract creditors, 205 Mortgagee and simple contract creditors — Mortgagee partly paid out of personalty, 205 Equities between first, second, and third incumbrancers, 205 general principle as to, 217 Mortgage, raising portions by, 207 parties, in actions for, 215 Set-off — Balance due from administratrix^ Costs, 207 ADMIRALTY COURT, Judicature Rules as to, appearance, default of, to actions in rem, 7 ' writ, service of, in actions in rem, 8 ADMISSIONS, documents, admission of, no relief from proving, 57 evidence, when admissions used in, 58 infant, answer of, though containing admissions not evidence against himself, 58 Judicature Rules as to, 57 notice of admission by either party, 57 notice to admit documents — ^Form of notice, 57 ADVOWSON, Partition of : See Paetition, 474 Sale 0/ (under Partition Act, 1868).. 483 AFFIDAVITS, Evidence, when may he given by, 62, 63 AGENT, Account of dealings of, with company, 157 solicitor not to change his, without order, 494 Taxation of bill of, on application of solicitor, 510 AGREEMENT (BREACH OF), injunctions as to, 281 ALIENS, cases as to, 77-78 AMENDMENT, at the hearing under recent practice, 22 Judicature Rules as to, when and how allowed, 20, 22 default of, after order obtained, 21 delivery of amended pleading, 22 APPEAL (COURT OF), absence of a Judge of the High Court, during. Judge of, may sit for, 69 additional Judge of division, Judge of, may act as, 69 < amendment, powers of, 70-71 Digitized by Microsoft® INDEX. 753 APPEAL (COURT OF)-continued. constitution of, 68 final and interlocutory orders, on hearing of, 09 jurisdiction of, 67 ( power of single judge, 69 APPEALS, Affirming order or judgment, 67 County Courts, from, 70X motion, by way of, 701 special case, by way of, 702 Judicature Rules as to, 70 amendment, powers of, 70 cross appeal, notice by way of, 72 omission to give notice, 72 deposit on, under special circumstances, 7l effect of, on proceedings appealed from, 72 evidence on, 70, 71, 72 execution, not stayed by, 72 further evidence on questions of fact, 70 setting down, mode of, 70 time for appealing, — from ex parte applications refused by Court below, 71 from interlocutory orders, 71 from winding-up orders, 71 orders, from, made by High Court, 68 made by inferior Courts, 69 when not subject to appeal, 68 Reversing or varying order, orjvdgment, 67 APPEARANCE, Judicature Rules as to, 5 default of, 6 by infant — by person of unsound mind, 6 mode of proceeding, after, 7 entry of, 5 time for — notice of, 6 setting aside, 6 APPORTIONMENT ACT, 1870 "annuities " — " rents" — definition of, under, 160 apportionment, what subject to, 159 when recoverable, 160 fines and renewals, of, how borne, 161 income, when not apportionable under, 220 apportioned part of, when payable or recoverable, 221 provisions of, 220 APPRENTICESHIP, Infant, of-^Artided pupil, 117 APPROPRIATION, accounts, in, 155 Digitized by Microsoft® 3 o 754 INDEX. ARBITRATION, Agreement or submission made an order of Court, 545 Lands Clauses Act, under, 545 Arhitrator — Appointment of single, 545 of two — and umpire, 546 Costs reserved — Stay of proceedings, 547 Award, made an order of Court, 545 evidence of arbitrator, in explanation of, 549 Making, time for, enlarged, 550 notice of award having been made, effect of, 554 Bemitted, 551 when will be, 552 Set aside, 552 Lands Clauses Acts, under — Nisi, 552 time for motion, limit of, 553 whenjwill be set aside, 553 Companies Act, under, 658 costs, authority of arbitrator as to, 556 documents — Production of, not without suit, 555 failure of parties, or arbitrator, or reference, 549 Friendly Societies, Benefit and Building Acts, under, 555 Lands Clauses Consolidation Acts, under, 555 possession, as to delivery of, pursuant to award, 554 stay of proceedings, when will be directed, 548 ASSESSORS, Judicature Rules as to, 61 ATTACHMENT, Debtors Act, under : 8te Debtors Act, 102 interrogatories, for non-compliance with order to answer, 35 mandamus, to enforce obedience to writ of, when issued, 109 referee's order not enforceable by, 62 solicitor, against, for not giving notice to client of order for production, 35 ATTAINDER, cases as to, 77 ATTORNEY-GENERAL, Costs, payable to {under 18 & 19 Vict. c. 90), 247 payable by, 246 AUDITA QUERELA, proceedings by, abolished, 96 AWARD, Made an order of Court : See Arbitbation, 545 BANKRUPTCY, Partnership, inquiry as to profits of, made subsequent to, 166 Proceedings after, compulsory orders to carry on, 91, 92 but present practice doubtful, 88 Digitized by Microsoft® INDEX. 755 BENEFIT BUILDING SOCIETIES, Decree for account — Probable duration of society calculated, 422 Duration not calculated — Bonuses, 423 liability of member, limit of, 424 BOTTOMRY, contracts of, to secure repayment of money advanced for repairs, &c., 412 BOUNDARIES, Commission to distinguish-r-Delivery of possession, 488 Confusion of boundaries — Land to be set out — Rents, 488 Costs of suit, generally borne equally, 489 BOX, Delivery out of Court of, 192 Deposit in Court of, 192 BUILDINGS, Inquiries as to erections : See Injunctions, 269 as to pulling down, 269 Pwchase-money under Lands Clauses Act, investment of, in, 571 Restraining : See Injunctions, 282. BUILbiNG CONTRACTS, Charity Commissioners, sanction of, must be obtained, 541 Inquiries as to, 184 BURIAL ACTS, 1852 to 1871, provisions of, 540 CALL, Order for, discharged: See Companies Acts, 660 CANAL, Receiver of, 339 CARRY ON PROCEEDINGS, Com/monform of order to, 81 Assignment or devise of interest, on, 86 Bankruptcy of pit or deft, on, 86 Birth of party interested — Applicatiorir of pit, 83 Death of sole pit — Application of representatives, 82 of one pit — Application of other pit, 83 151 LIQUIDATION ACT, 1868, affidavit verifying list of creditors to be filed, 709 assets, when divided in specie, 709 creditors, meetings of, 712 foreclosure by notice, 712 orders to be drawn in chambers, 711 petition for confirming scheme, 710 Digitized by Microsoft® INDEX. 781 , LIQUIDATION ACT, 1858— continued. rehearing, petition for, limit of time for, 711 wlio may apply for, 711 scheme, mode of appUeation by, 709 confirmation of, how effected, 710, 711 effect of, 712 how marked, when assets are being wound up under Companies Act, 709 notice of filing, 710 order confirming, 711 inrolment of, 711 LIQUIDATOE, call, mode of enforcing, by, 97 costs, when personally liable for, 654 official, appointment of, 654 powers of, 656 removal of, 655 aecmity of, mode of giving, 655 Possession, sheriff to deliver up, to, 667 provisional, appointment of, 654 winding-up petition, not entitled to appear upon, 654 LUNATICS AND PERSONS' OF UNSOUND MIND, actions, by and against. Judicature Rules as to, 12 jurisdiction of L. 0. and L. JJ.'s as to, not transferred to High Court, 593 MANDAMUS, when granted by interlocutory order, 109 when enforced by attachment, 109 MANOR, Beceiver of, 338 MARRIED WOMEN, actions by and against, Judicature Rules as to, 134-139 answer of, default of, 135 — refusal of, 136 appeal of, by next friend, 137 ixi forma pcmperis, 137 compromise of suit, by, 137 contempt, liability of, for, 136 costs, liability of, for, 137 Defend, to, separately from her husband, 134 Judicature Rules as to, 9 Examination of, ly Commissioners, 144 Court, ly, recital of, irt order, 144 Settled Estates Ad, under 618 foreclosure, against, when may be made, 137 Decree of, against husband wnd wife : See Mortgages, 401 forma pauperis, right to sue in, 138 leases of, or by (under 11 Geo. 4 & 1 Will. 4, c. 65), 123 See Pbopbktt Law Amendment Act. Digitized by Microsoft® 782 INDEX. MAREIED WOMEN— co?i