\ c: .- ':iyri ^ Xt (•: v: - * ' -r,:T.,-;.^>-r^ri-;'-.;:*r-:t'---U'"'M''l>" Olnrn^U Kam ^rl^nnl ICtbrary ilaraliaU iEquttg (EoUertton (f&tft of IE. 3J- iMatralfaU. ILffi. 1. 1S94 CORNELL UNIVERSITY LIBRARY 3 1924 084 257 801 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084257801 THE ©rtrets, g)tatutes antr i^egulations AFFECTING THE PEACTICE THE COUET OF CHAT^CEEY; WITH NOTES. BY HOMERSHAM COX, M.A., BARBISTEB-AT-LA'W, Author of the " Britisli Commonwealth" and Treatises on the Differential and the Integral Calculus. LONDON: HENRY SWEET, 3, CHANCERY LANE, EalD 13oa{t«ener anit IPuiiUefjer. 1861. LONDON : PRINTED BY C. ROWORTU AND SONS, BELL YARD, TEMPLE BAR. PREFACE. The General Orders regulating the practice of the Court of Chancery have so greatly increased in number by suc- cessive additions during five centuries, that the want of an authorized co(Je and digest of them has long been seriously felt. Many learned writers on the practice of the Court have complained of the extreme difficulty of reconciling with each other successive Orders of different Lord Chancellors, and of determining how far earlier Orders may be considered as repealed by later Orders, or a current of contrary practice. In one of his judgments (a). Lord Eldon acknowledged that much of modern practice was " inconsistent with subsisting Orders, without any contradictions of them by subsequent Orders ;" and, in adverting to this judgment, Mr. Beamesj in the Preface to his Collection of the Genei'al Orders, insists that this anomaly ought to be corrected, and that " a com- plete revisal of the Orders, expunging the incompatible and obsolete and making the whole one uniform consistent body, accompanied by the declaration that the collection should be considered always in full force until repealed by future written Orders, would be a work of incalculable benefit to the public." The extent to which the General Orders had accumulated previously to the late consolidation, and the unsystematic way in which they were accumulated, were not only serious grievances to the Practitioner, but often worked injustice to the suitors, by reason of mistakes in the practice of the Court being nearly unavoidable. The collection of Orders from which the recent consolidation has been made is that pub- Co) Boehm v. De Tastet, 1 V. & B. 328. a2 iv PEEFACE. lished by Mr. Sanders in 1845, which occupies 1,024 closely- printed octavo pages, and extends over a period of nearly 500 years, commencing vsfith the reign of Richard II. It is true that some of these Orders partake of a private character,- and that many of these Orders are wholly or partially repealed or obsolete ; but Mr. Sanders considered the publication of the whole collection necessary, " for the purpose of supplying an important first step towards making a complete and authorized digest and consolidation, under a proper arrange- ment, of aU the General Rules and Orders which are intended to remain in force relating to the process and practice of the Court, and thereby constituting a code of practice which is so earnestly and justly desired." He adds, " I have reason to believe that such a digest and consolidation has long been in contemplation, and that the efforts now making to improve the practice of the Court will not be considered as complete without it," The anticipation here expressed of a speedy consolidation of the Chancery Orders was not realized. The Consolidated General Orders, of which the following Work is an edition, were published at the commencement of the year 1860. The work of consolidation was intrusted/ by Lord Chancellor Chelmsford, to two members of the Chancery bar, Messrs. Josiah Smith and H. Cadman Jones, who were instructed by him to consolidate the Orders in Sanders's collection, and the subsequent Orders, omitting those which were expressly or virtually abrogated and retaining the remainder, with no further alteration (except where the style was very anti- quated) than should " be deemed necessary for the purpose of consolidating the same and of adapting them to the present practice, so as to form a harmonious and well-arranged col- lection, and for the purpose of determining the most expedient practice where there is a conflict of authority on the words of an Order" (o). The work of the Consolidators was submitted to the prin- (a) First Report of the Consolidators of the Chancery Orders. PEEFACE. cipal officers of the Court, who made various suggestions, which, by subsequent instructions from Lord Campbell after his acceptance of the Great Seal, were referred to the Con- solidators. Some further alterations of the proposed consoli- dation were thereupon made, and subsequently, at a meeting of the Equity Judges on tlie 1st of December, 1859, the Consolidated Orders were finally settled and agreed upon (a). It will be observed that, by the terms of the instructions above mentioned, the work of consolidation was confined to the existing Orders of the Court of Chancery, so as to exclude all the rules of its procedure established by Statutes, and all innovations in the 'practice of the Court. In a few instances, however, the Consolidators have made some alterations to correct inaccuracies and remove ambiguities ; and some few Rules (generally denoted by asterisks) introduce new practice. The Preliminary Order abrogates all the previous General Orders, with some exceptions. These relate to the Account- ant-General's Office and to certain provisions which are of a temporary character, or which are of subordinate importance, or which do not afiect the general practice of the Court. By one of the Rules of the Preliminary Order the general abrogation is not to affect any existing practice of the Court which originated in any of the former Orders, except so far as such practice may be inconsistent with anything therein- after contained. One of the objects of this Rule was to guard " against the consequences of the possible omission of an Order by accident or inadvertency ;" but the Rule itself is not free from difficulty, as it may give rise to questions as to the extent of the abrogating clause. It seems a reasonable construction of that clause and the Rule in question, that those only of the former Orders are abrogated which have already become obsolete or been abrogated by usage, or are repugnant to some Rule of the Consolidated Orders. An instance of a former Order, sanctioned by existing practice but not incorporated in the consolidation and not repugnant (a) Second Report of the Consolidators of the Chancery Orders. a 3 Vi PREFACE. to any of its Rules, appears to be the Order 43 of 26th August, 1841; by which certain documents may be proved by affidavit instead of being proved viva voce at the hearing of a cause. One of the most valuable features of the Consolidated Orders is their methodic arfangement. All the Rules which relate to a particular subject are, in general, collected in one Order, and the succession of the Orders is, for the most part, arranged with reference to the successive stages of a suit. It would probably tend to preserve the Orders of the Court from relapsing into their former state of confusion if future Orders were regularly arranged under the titles adopted in the Consolidation. It may be useful here to refer to some of the works relating to Chancery Orders which have been in use of late years. By far the most extensive collection is that o{ Mr'. Sanders, already noticed. In this collection the Orders are printed verbatim, with only a few notes, principally of a historical nature. The earlier work of Mr. Beames omitted, for the most part, those Orders which appeared to be super- seded or repealed at the time of its publication. This Work was annotated by brief references to cases relating to the Orders. The Ordines Cancellarise of Mr. Charles Beavan (12mo. 1846) contains all the Orders issued subsequently to the date of the last of those published by Beames (1814) up to the year 1846, without notes of decisions on the Orders. " The Orders of the High Court of Chancery, from Hilary Term, 1828, to Trinity Term, 1845, as at present applicable to the Practice, with the Cases decided under each Order," by Mr. R. Levinge Swift, (12mo. 1846,) adopts an alphabetic arrangement of titles, under which corresponding parts of the Orders and notes of decisions upon them are collected, with an Appendix of Orders printed in extenso. The edition of " All the effective Orders of the High Court of Chancery, from Hilary Term, 1815, to the present time; with Notes of the Decisions thereon, and the Statutes regulating the Prac- tice of the Court," by Mr. Tenison Edwards, (12mo. 1848,) PREFACE. gives the Orders from 1815 to 1848, and some Statutes of the present and preceding reign, and a considerable number of Notes of Cases. The first volume of the Code of Practice of Mr. Thomas Kennedy (12mo. 1852) contains, among other things, chronological tables of all the Statutes and Orders regulatuig the practice of the Court of Chancery, from a very early period up to the time of pubUcation ; with the General Orders fi-om 1814 to 1845, in extenso. The second volume, published in 1853, continues the collection to the commence- ment of that year, and gives several of the then recent Sta- tutes relating to th^ practice of the Court, The notes to this Work refer to very few of the cases decided on the Orders. Since the issue of the Consolidated Orders a valuable edition of them has been published by Mr. George Osborne Morgan. In referring to that work, I may explain that before it was published I had, in pursuance of an agreement with the Pub- lisher of the present Volume, written a considerable part of it, and that I had been engaged for several years previously in collecting, with a view to their ultimate publicatioti,- a large part of the materials of this Work. It may be added, that the subject here treated upon is so vast that two independent labourers may be usefully employed in the work of illustrating it. In this Work the Consolidated Orders are reprinted with- out alteration ; and under each Rule which relates to matters regulated by Statute the corresponding enactment is given in externa. The object of this arrangement has been to present to the reader at one view all the Orders of Court and Sta- tutory Rules regulating each branch of practice. I was at first apprehensive that this arrangement would necessitate a repetition of enactments in more places than one ; but on examination I found that very little inconvenience would arise from this cause, and that the enactments regulating the practice of the Court could be embodied in the manner mentioned with very little repetition. The number of cases here cited is, I believe, the largest number that has been col- lected in a work of this kind. To say that I have in every PREFACE. case verified the references to these cases would give but an inadequate idea of the labour bestowed on this Volume ; for excepting a very few accidental exceptions, which are denoted in the present Work by references to other authorities than the Reports, I believe that I have carefully examined every case here cited, and, where the decision for which the case was cited was not indicated with sufficient clearness or con- ciseness by the marginal note, 1 have given my own note of the case. It will be observed that the notes in the present Work are extremely brief, but that brevity was necessary in order to bring the Work within the required limits ; and it is assumed that the Practitioner will use the notes merely as a guide to the cases referred to. For the purpose of these notes the Reports published up to November, 1860, have been carefully examined. It has been thought advisable in several cases to advert to the decisions as repealed Orders where they appeared to afford aid in construing the existing Orders. A chronological list (a), prefixed to this Volume, gives the dates of those of the abrogated Orders which are incorporated in the Consolidated collection. A brief reference to some of these dates may not be without historical interest. The earliest of the Orders incorporated relates to the sig- nature of bills by counsel, and is taken from the consolida- tion of the Orders of the Court, intituled, " Renovacio Ordinum Cancellarie cum novis addicionibus et Reforma- cionibus eorundem ;" which, from intrinsic evidence, is pre- sumed by Mr. Sanders (page 1) to be of the reign of Henry V. Passing over three Orders of the sixteenth cen- tury here incorporated, we come to the important series of Ordinances made by Lord Chancellor Bacon for the general regulation of the practice of the Court, and which were (o) J have to express my sincere thanks to the learned Consolidators of the Chance^ Orders for their courteous permission to make use of the table in the authprize^ edition from which this list is abridged, and of the rest of the tables and the marginal notes in that edition. Those marginal notes have, in this edition, been used as headings of the several rules. PEEFACE. probably intended to form a complete code. The date ascribed to these Ordinances is 29th January, 1618, when they are said to have been published in open Court (a). The next considerable series of Orders are liiose of the Lord Keeper Coventry, in 1635, none of which, however, appear in the Consolidated Orders. Many, however, of the Orders of 1635, are repeated in the subsequent Orders of Lord Clarendon. In the year 1649, during the interregnum, the Lords Com- missioners Whitelocke and Keble, with the assistance of the Master of the Rolls, Lenthall, made a body of Orders, which was a collection of former Orders with alterations and addi- tions. ■ Of these Orders of the Lords Commissioners none appears in the present collection, and the greater part of them -were either virtually repealed by or repeated in Lord Claren- don's Orders. Sir Edward Hyde, made Lord Chancellor in 1660, created Earl of Clarendon in April, 1661,, issued, in May, 1661, with the assistance of Sir Harbottle Grimston, Master of the Rolls, another general collection of existing Orders, with alterations and additions, intended " for reforming of several abuses in the said Court, preventing multiplicity of suits, motions and unnecessary charges to the suitors, and for their more expe- ditious and certain course for relief." These Orders revived some of those previously made by Lord Bacon and Lord Coventry, and repeat verbatim many of the Orders of the Commissioners during the interregnum. A considerable number of Lord Clarendon's Orders are incorporated in the present consolidation. From the time of Lord Clarendon until the issue of Lord Lyndhurst's Orders, in 1 828, no general collection or con- solidation appeared; but in the interval several important Orders relating to particular branches of the practice were issued. Among these may be noticed the continual efforts made to regulate and reform the abuses of the Six Clerks' Office. As that office is now abolished none of the regula- (a) Beames, p. 1 ; Sanders, 109. PREFACE. tions affecting it appears in the present consolidation, except so far as duties formerly imposed on the Six Clerks are re- quired to be performed now by the Record and Writ Clerks. The Orders of 1725, which, by the present Consolidated Orders (a), remain unabrogated, rekte to a remarkable event in the history of the Court,— the establishment of the Accountant- General's oflSice. Previously the Masters, who received the suitors' money, had in many instances converted large sums out of it to their own use, and corrapt biargains were made for nominations to the office of Master, Lord Chancellor Mac- clesfield, for his share in these transactions, was impeached and deprived of his office in 1725, and fined 30,000/. ' In the same year Orders of the Court were made for the delivery of the suitors' effects into the Bank of England, and were followed by the Statute appointing the Accountant-General. Among the most important Orders made during the last cehtury may be mentioned Lord Hardwicke's Orders of 1741 ; made for the purpose of regulating the filing of supple- mental bills in the nature of bills of review, a practice having become prevalent of filing such bills vexatiously. No great general change, however, in the prafctice of the Court was made for more than a century and half Until, in 1828, Lord Lyndhurst, with the assistance of Sir John Leach, Master of the Rolls, and Sir Lancelot Shadwell, Vice-Ohancellor, issued^ in pursuance of the recommendations of the Repbrt of a Chancery Commission, an extensive series of General Orders intended to remedy many notorious defects in the practice of the Court and to expedite its proceedings. A considerable part of these Orders are retained in the present consolidation, and relate principally to costs, times of procedure, and pro- ceedings in Chambers. The Chancery Regulation Act, 3 & 4 Will. IV. c. 94, made numerous important alterations in the offices of the Court, appointing the Registrars- and certain other officers, whose duties have since been transferred to the Registrars (a) Preliminary Order, r. 3. PBEFACB. xi and the Record and Writ Clerks (a). In pursuance of that Act a series of Orders was issued in 1833, in the Chancellor- ship of Lord Brougham, making various regulations respect- ing the offices referred to and the Masters' and Accountant- General's offices, and several of the details of practice. Three important series of Orders, the former issued by Lord Cottenham, in 1841, and the latter two by Lord Lynd- hurst, in 1842 and 1846, were made for carrying into effect an Act of 1840 (ft), by which extensive powers were gi\ren to the Judges of Court to regulate the practice respecting writs and process of the Court, the mode of pleading and taking evidence, and the fees and business of offices. A large part of these Orders is retained in the Consolidated Orders ; and of all former collections of Orders, that which has contributed most extensively to the present consolidation is the series of 1845. An important change in the practice took place by the issue of Orders by Lord Cottenham, in April, 1860, which provided a mode of proceeding by what were called " Claims." This form of pleading, though at first much used, was deprived of its peculiar advantages by the sub- sequent alterations in the practice respecting bills, and is now abolished. In November, 1 860, a series of Orders, most of which are retained in the present consolidation and relate to the practice respecting exceptions, was issued by Lord Truro in pursuance of Sir George Turner's 'Act of that year. In 1862 the most extensive alteration which has at any time been effected in the practice of the Court of Chancery took place. In pursuance of the recommendations of the Chancery Commission appointed in December, 1860, the Acts 15 & 16 Vict. c. 80, abolishing the Masters' offices, and 16 & 16 Vict., amending the practice and course of procedure in the Court of Chancery, were passed. The former of these Statutes founds the important jurisdiction of the Judges at Chambers, and a course of procedure there, the details of (o) See notes to Ord. 1, rr. 18, 39. (J) See first note to the Prelim. Ord. PKEFACE . which were subsequently regulated by the Orders of Lord St. Leonards of October 16 and October 23, 1862. The Chan- cery Amendment Act of 1852, among other great improve- ments, provided for the printing of bills ; improved the form of them ; simplified the complex and oppressive Rules as to parties to suits ; extended the power of amending bills ; ren- dered cross bills rarely necessary ; amended the practice as to injunctions, and made a complete change in the practice of taking evidence. The details of the improvements thus effected are regulated by Lord St. Leonards' Orders of 7th August, 1852, made in pursuance of the Statute. To complete this note upon the history of the Orders up to the present time, it may be added, that since the Consoli- dated Orders were issued some important sets of Orders have appeared. The Orders of March 6, 1860, provide for the printing Answers. The Orders, August 23, 1860, relieve the remaining Masters in Chancery from their offices. The Orders under 22 & 23 Vict. c. 128, for carrying into effect the recommendations of the Chancery Evidence Commis- sioners, 1869, have not yet been issued. HOMERSHAM COX. TABLE OF CONTENTS. The figures in brackets [ ] r^ to the pagination of the authorized edition of lite Consolidated Orders, and to figttres in brackets on the corresponding pages qfthis book. The figures not in breakets r^er to the pagination qf this book. Tlie Rules to which asterisks are prefixed are wholly or partially new. For the Statutes contained in Viis book, see Index of Statutes. Preliminary Order. PAGES 1. Abrogation of prior Orders — Exceptions .. .. .. [1] 2 (1.) Orders as to the Masters, or their reports, or the business of their offices, or further proceedings on their reports .. [1] 2 (2.) Orders of 5 May, 1837, and 11 November, 1841, as to selec- tion of Court in the case of old suits .. •. .. [2] 3 (S.) Orders relating to the Suitors' Fund and Fee Fudd ; Orders as to the custody of suitors' money and effects ; Orders as to Exchequer orders and bills, Exchequer powers of attoriiey, and Income Tax ; Orders as to certain office routine ; and Orders as to drainage of settled estates ■ . [2] 3 (4.) Orders relating to fees not provided for by subjoined regu- lations . . . • . . . . . . . • [2' (S.) Orders relating to fees incurred before Feb. 1, 18S7 .. [3 (6.) Orders of a personal or temporary character (7.) Orders relating to the Law side of Court .. .. 2. Regulations not affected .. .. .. .. •- [3^ S. Old Suits, &c., to be governed by the same practice by which they are now governed .. .. .. .. .. .. fS] 4 4. Practice peculiar to Claims .. .. .. .. [3] 4 5. Established practice originated in or sanctioned by Orders hereby abrogated .. .. .. .. ■■ .... [3] 4 6. No revival of things abolished by abrogated Orders .. .. [4] 5 7- Construction and operation of Consolidated Orders, where there is no variation . . . . . . . . . . .... [4] 5 8. Construction and operation thereof, where there is variation . . [4] 5 9. Time when new Orders shall take effect . . . . . . [4] 5 10. Interpretation Clause •■ .. ■• .. .. .. [5] 6 •11. Preservation of General Orders — Index thereto .. .. [6] 7 [3] 3 [3] 4 GENERAL ORDERS. I. Officers of the Cocrt. I. Accountant-General. •1. Money ordered to be paid to women who afterwards marry .. [7] 8 •2. Stocks, funds, shares, or securities ordered to be transferred or deli- vered to women who afterwards marry . . . . . . [8] 9 *S. Money to be paid, and stocks, funds, shares, or securities, to be transferred or delivered to women who afterwards marry . . [8] 9 4 — 6. Payments to surviving personal representatives .. [8,9] 10 C. C XIV TABLE OF CONTENTS. PAGES [9] 10 [io] 11 [10] 11 [10] 11 [11] 12 [11] 13 [12] 13 [12] 13 [13] 14 [13] 14 '13] 15 ;i4] 15 [14] 16 7. Transfer or delivery to surviving personal representatives 8, 9. Within what time probate or letters of administration must have been granted in cases under the 6th and 7th rules . . 10. Payment to a partner or partners . . . . . • 11. Investment of dividends on stoclc purchased by the Accountant- General, pursuant to the Legacy Duty Acts, 36 Geo. 3, c. 52, is. 32, and 37 Geo. 3, c. 135 12. Investment of interest and dividends by the Accountant-General, under an order directing the same .. ... .. / .. 13. Purchase of Exchequer bills or bonds 14. Accountant-General to declare trust, without any direction in the order of investment or transfer . • 15. Accountant-General to draw on the Bank according to the Act and Orders, without any direction 16. Proceedings on sale of stocks, funds, shares, or securities .. II. Examiners. (See Order XIX. on Evidence.) III. Registrars. 17. Attendance of Registrars .. .. .. 1 8. Entry of Decrees, Orders, &c. . . 19. Indexes to entries — Access thereto 20. Documents to be left with the Registrar by person bespeaking a decree or order . . , . 21'. Time for bespeaking decree or order, and leaving documents with Registrar 22. Consequence of default 23. Appointment of a time for settling draft decree or order 24. Service of a copy of such appointment — Attendance at the time appointed with documents 25. Mode of service of appointment 26. Production to the Registrar of proof of service 27. Appointment of time for passing the decree or order — Service thereof— Production to the Registrar of proof of service . . 28. Default in attending appointment with documents 29. Form of appointment . . < . . , . . , 30. Filing thereof . . 31. Adjournment of an appointment ., .. 32. Liberty to settle or pass decree or order without appointment or notice . . . . . . , . . . 33. Meetings of Registrars IV. Taxing Masters. (See Order XL. on Costs.) V. Chief Clerics of the Judges. (See Order XXXV. on Proceedings in Chambers.) •34. Meetings of Chief Clerks ,. .. .. .. [17] 21 VI. Clerk of the Inrolments in Chancery, and Clerks cf Records and Writs. 35. Clerks of Records and Writs to perform (inter alia) duties which were performed by six clerks, sworn clerks, and waiting clerks, except as solicitors .. .. .. .. .. [17] 2I *36. Erasure, blotting, interlineation, improper mode of writing, or disfigurement, in plea, answer, or affidavit .. ,. [18] 22 87. Practice as to Writs . . ., .. .. .. ,, [ig] 23 38. Security for costs .. .. .. ., .. [19] 23 [14] 17 [14] 18 [14] 18 14] 18 15] 18 15] 18 15] 19 15] 19 16] 20 16] 20 16] 20 [16] 20 [17] 20 PAGES [19] 23 19" 24 '19' 24 >o: 24 [20] 24 "20] 24 !2o; 25 TABLE OF CONTENTS. 39. Swearing pleas, answers and affidavits . . 40. Acknowledgments for inroUing documents . . 41. Transmission of inrolments to the Public Record Office . . 42. Removal of records or documents .. .. ., 43. Deposit to answer fees on attendance with records, and under- taking to pay further fees . . 44. Filing of certificates, petitions, admissions of evidence, submissions to arbitration and awards — Transmission to the Report Office — Time for delivering out office copies 45. Date of filing proceedings . . . • . . . . , , 46. Indexes to reports, certificates, exceptions to reports, petitions, admissions of evidence, &c.— Access thereto . . . . [20] 25 47. Entry of time of delivering certificate, with name of cause, and date of certificate — Entry of time of delivery of other documents — Access thereto.. .. .. .. .. .. [21] 25 48. Reference to record to be affixed to all documents .. .. [21] 25 49. Dates of decrees, ord^s, reports and certificates to be entered in cause-books .. .. .. .. .. .. [21] 26 50. References to dates and folios of Registrar's book . . . . [21] 26 51. Limitation of application of rules .. .. .. .. [21] 26 52. Applications to Court of Exchequer for documents, records, &e., in Exchequer Causes transferred into Chancery . . . . [21 ] 26 53. Certificate of proceedings in a cause or matter .. .. ., [22] 26 II. Conveyancing Counsel op the Court. 1. How and by whom business referred to conveyancing counsel to be distributed . . . . . . . . . . [22] 27 2. Duty of person making the distribution . . . . . . [22] 28 3. Proceedings for obtaining opinion, &c. of the conveyancing counsel .. .. .. .. .. .. [23] 28 4. Inability or refusal of counsel in rotation . . . . . . [23] 29 5. Liberty to direct or transfer reference to any one of such counsel [23] 29 III. Solicitors and Parties acting in Person, and Serivce ON THEM respectively. 1 . Solicitors and parties acting in person to perform duties formerly discharged by the sworn clerks and waiting clerks as solicitors . [24] 29 2. Solicitor to indorse his name or firm and place of business and address for service, and, where he is only agent, the name or firm and place of business of the principal solicitor 3. Change of solicitor 4. Service, where there is no address for service — Where there is address for service . . • • 5. Parties suing or defending in person to indorse name and residence, and address for service. . 6. Service, where there is no address for service — Where there is address for service ■ • 7. Service on town solicitor of person not a party . . • • 8. Service on defendant who has not entered an appearance 9. Notice of appearance, answer, demurrer, plea, or replication •• 10. Liability of solicitors signing certain documents.. 1 1. Agreement, by solicitor as to cause . . IV. Commissioners to administer Oaths in Chancery. Sphere of duty — Expression of time and place t • . . . • [27] 37 V. Official Attendance and Vacations. 1. Official attendance .. .. .. .. .. [28] 38 c 2 [24] 30 [25] 31 [25] 31 [25] 32 [26] 33 26' 33 [26" 33 [27' 34 :27: 34 [27] 35 Xvi TABLE OP CONTENTS. PAGES 4. Vacations. .. .. .. .. •• •• •"t^y?? 6. Lord Chancellor may vary times for attendance and vacations . . [29J SV VI. Selection of Coukt. 1. How bills are to be marked . . • • • • • • [3"] 39 2. How Record and Writ Clerk's certificate is to be marked . . . . [30] 40 3. Causes not to be set down unless certificate be so marked . . [30J 40 4. Before whom pleas, demurrers, exceptions, and causes shall be set down •• [30] 40 5. Motions, petitions, rehearings, and further proceedings in causes [31] 41 6. How notices of motions and petitions not in any cause, and peti- tions, and motion papers, under Stat. 13 & 14 Vict. c. 35, s. 19, and orders thereon, are to be marked . . .. •• •• [31] 41 •7. Provision for the case of a Vice-Chancellor ceasing to hold his ofiice •■ [31] 42 8, Registrars to keep distinct lists . • . . . . . . [32] 42 9. Application for orders of course ■ . • • . • • • [32] 42 10. Applications to discharge, reverse, or alter orders of course .. [32] 42 11. Applications for special orders during vacations — Proviso as to rehearing same . . . . ■ . • • • • • • [32] 43 12. Applications to stay proceedings on decree or order appealed from .. .. .. [32] 43 13. New trial of issue . . . . . • . . . . • • [33] 44 VII. Parties, Pebsoss under Disability, and Paupers. I. Parties generally. 1. Heir-at-law .. .. .. .. .. .. [33] 52 2. Parties jointly and severally liable . . . . ■ . . . [33] 52 II. Infants and Persons of Unsound Mind. 3. Default in appearing or answering, by an infant or person non compos mentis — Assignment of solicitor ashis guardian .. [33] 53 4. Swearing plea or answer of infant . • . . . . ■ ■ [34] 56 5. Service of notice of decree or order, in case of infants or persons of unsound mind . . . . . . . . . . [34] 56 6. Guardians ad litem for infants or persons of unsound mind who shall be served with notice of decree or order . . . . . . [34] 56 7. Such guardians appointed during proceedings at Chambers . . [34] 56 III. Paupers. 8. No person admitted to sue in formd pauperis without a certificate of counsel ., .. ,. ,, .. ., [35] 57 9. Remuneration to counsel or solicitors .. .. .. .. [35] 58 10. Refusal of counsel and solicitor assigned .. .. .. [35] 58 • 1 1. Process of contempt at the suit of a pauper, and notices of motion or petitions on his behalf .. .. .. .. .. [35] 58 VJII. Pleadings and Written Proceedings generally. 1. Signature of counsel .. .. ,. ,, ,, [36] 59 2. Perusal by counsel — Brevity— Scandal .. .. .. [36] 59 3. Filing of proceedings .. .. .. ,. .. [36] 60 *4. Abolition of claims . , . . , . , , . . [36] 60 IX. Bills. I. Bills generally, 1. Value of subject matter .. .. .. .. .. [36] 60 2. Form of bill — Indorsement on bills .. .. ,. ., [37' gl •3. Mode of printing bills ., ,. .. .. ,, [37' 64 TABLE OF CONTENTS. PAGES [37] 64 sr 65 [37] 65 [38] 66 38 66 38] 67 [38] 68 38] 69 '38] 69 38 70 39] 70 '39] 71 39] 72 ,39] 72 [39] 73 '40] 73 40] 73 40] 73 40] 74 [40] 74 4. Consequences of not filing a printed copy of a bill 5. Defendant limited to ten copies . . 6. Suits to perpetuate testimony . . . . . . . , II. Amendment <(f Hills. 8. Order to amend before answer 9. Clerical errors . . . . . . . . 1 0. Time for order of course for leave to amend, where one answer . . 1 1. Time for order of course for leave to amend, where more than one answer 12. Order of course for leave to amend after notice of motion to dismiss .. .. .. .. ,, .... 13. Order of course for leave to amend after answer 14. Affidavit in support of special application to amend 15. Where further affidavit required .. 16. By whom such affidiy?its to be made .. .. .'. ;. 17. Time for amendment . . " . , . . , , 18. Modeof amending bill 19. Marking date of order to amend and of amendment on record — Entry of sunendment, with date of amendment and of order — Date of filing . . . , . . _ . . 20. Service of amended bill . . . .' . . . . 21. Service on the solicitor .. 22. Service at address for service . . . . . . . . 23. Limitation of operation . . 24. Default of amendment X. Servioe of Copy of Bill, and Appearance. 1. Usual mode of service .. .. .. .. .. [41] 74. I. In the case of Parties generally. 2. Substituted service . . . . . . . . .... 3. Time for appearance 4. Where appearance may be entered by plaintiff for defendant within jurisdiction . • . . , , . , .... 5. Not if defendant an infant or non compos mentis ., 6. Where appearance may be entered by plaintiff for defendant ab- sconding .. .. .. .. .. .... 7. Service of copy of bill and of interrogatories on defendant out of jurisdiction, and entering appearance for him . . 8. Affidavits of service .. .. .. .. .... 9. Appearance entered by defendant after appearance entered for bim .. .. .. .. .. .... *10. Attachment, Messenger, and Serjeant-at-Arms to compel ap- pearance .. .. .. •> .. .... II. In the case of Formal Parties. 1 1. Service of copy of bill on formal parties 12. Memorandum of service of copy of bill to be entered 13. Effect of serving defendant with copy of bill .. 14. Party served with copy of bill may enter common appearance, and have suit prosecuted in ordinary way — Costs 15. Such party may enter special appearance, and be served with notice of all proceedings — Costs 16. Order for entering common or special appearance — Party entering same bound by prior proceedings .. .. .... 17. Time for service of copy of bill .. .. •. .. 18. Service out of time of copy of bill .. .. .. .. [41] 75 [41J 77 [41] 77 [42] 79 [42] 79 [43] 80 [43] 84 [43] 85 [44] 85 [44] 89 [44] 91 [45] 92 [45] 92 [45] 93 [45] 93 [46] 93 [46] 94 Xviii TABLE OF CONTENTS. XI. Interrogatories. pages 1. Form ''ltl]lt 2. Time for filing interrogatories • . . . • • .... *o J »^ 3. Leave to file interrogatories after eight days . . . • _• • [*' J '''' 4. Delivery of interrogatories, where defendant appears in proper time — Copy delivered to be examined and marked as an office copy . . [47 J 9o 5. Delivery of interrogatories, where defendant does not appear ^" ^ . proper time .. .. ■■ •• .... [47 J Wo XII. Process for want of Answer. 1. Attachment for want of answer . . . . ■ • • • [^^J ^^^ 2. Discharge of defendant in custody of Serjeant-at-Arms or Mes- senger — New attachment .. .. .. .... 3. Discharge of defendant in prison— New attachment .. •. 4. Pauper defendant in custody for want of his answer— Assignment of a solicitor and counsel . . . . . . .... 5. Pauper prisoners in contempt . . . . • • 6. Sequestration on return non est inventus to attachment for want of answer.. .. .. .. .. . .•' " 7. Resuming former process of contempt, in case answer is insuffi- cient .. .. .. .. .. •• XIII. Traversing Note. 1. To original bill, or supplemental bill, or hill amended before an- swer . . . . . . . . '. • .... 2. To bill amended after answer . . . . . . • ■ 3. Where further answer not put in . . . . .... 4. Where demurrer or plea to whole bill overruled . • • . 5. Service of copy of traversing note . . . • .... 6. Effect thereof . . 7. After service thereof, defendant cannot plead, &c., without special leave . . . . . • . . ■ • .... XIV. Demurrers and Fleas. 1. Demurrer ore tenus .. . . . . • • 2. Pleas when upon oath . . . . . . 3. Signature to pleas • . . . . . 4. Outlawry, how pleaded . . . . 5. Where plea of outlawry is good — Where it may be set down for argument .. .. .. .. 6. Plea of a former suit depending . . • • 7. Flea of a suit depending in another Court . . . • 8. Demurrers and pleas not covering so much as they might . • 9. Demurrers and pleas covering a part to which the answer extends 10. Petitions for setting down plea or demurrer. . 11. Setting down demurrers and pleas .. .. 12. Costs of overruling of plea or demurrer 13. Costs on allowing demurrer .. 14. Where demurrer to whole bill to be held sufficient, without being set down — Costs 15. Where demurrer to part of a bill to be held sufficient without being set down — Costs . . 16. Costs on allowing a plea — Dismissal of bill on allowing plea 17. Where plea to be held sufficient, without being set down for argument— Costs — Dismissal ofbill when plea so held sufficient [54] 118 18. Undertaking to reply to plea .. .. .. .. [55] 118 XV. Answers. 1. Form of answer .. .. .. .. .. .. [55] 121 2. Denial of a fact . . . . . . . . . . • . [55] 122 [48 102 *K' 103 [49] 103 [49] 104 [49] 105 [49] 105 [50] 106 50 lor 50 107 51" 51 107 107 51 108 [51] 108 52' 110 52 52 111 111 52; 111 [52] 111 52 112 S3 112 53; 113 ;53: 114 53- 114 53 53' 115 115 53: 116 [54] 116 [64] 117 [54] 117 TABLE OF CONTENTS. 3. Defendant not bound to answer except to interrogatories which he is required to answer— Statement of ignorance of matter as to which he is not interrogated . . 4. Defendant by answer declining to answer 5. Signature .. .. •• 6. Oath .. .. .. .. .. .... XVI. Exceptions. 1. Mode of objecting for insufficiency 2. Mode of objecting to scandal 3. Exceptions to be filed, and notice given . . 4. Relevancy or materiality to be considered • • 5. Filing exceptions nunc pro tunc ■ . . . • • • • 6. Time for filing exceptions for insufficiency 7. No exceptions after replication . . 8. Time for submission to exceptions . . . . . . . • • 9. Time for further answer, where exceptions submitted to before they are set down . . . . . • ■ • • • 1 0. Preliminaries to setting down exceptions 11. Earliest time for setting down exceptions for insufSciency • . 12. Latest time for setting them down . . 13. Time for setting down the old exceptions 14. Time for further answering after exceptions are set down 15. Default in further answering 16. Where answer deemed sufficient .. •• 1 7. Notice of particular matter to which further answer required . . 1 8. From what time answer to be deemed sufficient or insufficient . . 1 9. Third insufficient answer — Costs . . 20. Time for setting down exceptions for scandal — Costs 21. Expunging scandalous matter .. -. •• XVII. Replication and Joining Issue. 1. Replication even where no answer 2. Abolition of suiptena to rejoin — One replication— Form thereof — How issue joined .• .- •• •• •• XVIII. Affidavits. 1. To be expressed in the first person . . . • • • 2. No costs allowed when not so expressed 3. Sources of knowledge to be stated . . 4. Costs where sources of knowledge not stated 5. Filing of affidavits XIX. Evidence generally. 1. Extent to which evidence is to be entered into — Costs 2. Hearing on bill and answer . . . ■ 3. As to taking evidence orally or by affidavit 4. Decrees and depositions in other Courts 5. Depositions in another cause . . . . • • • • . • " •6. Reading answer to cross bill for discovery or to interrogatories for plaintiff's examination 7. Notice of witness to be examined . . • • 8. Time for his re- examination . ■ • • _ • • 9. Notice of examination or cross-examination of a witness 10. Application of Orders to evidence taken after the hearing 11. Special directions as to evidence after the hearing 12. Affidavit or deposition before issue joined 13. Closing of evidence 14. Mode of administering oaths [55] 55" ■56" [56: 123 123 124 125 [56] 56 ■56' '57 127 127 127 128 57' 128 '57' 128 57' 129 :57: 129 [57] S7 129 130 68' 58' 130 130 58' 131 58' 131 58 59' 59 131 132 1.32 59' 132 59' 59^ 59! 132 133 134 [60] 134 [60] 135 [61 138 '61 138 '61' 61 138 138 ;6i 138 [62 '62 62 139 139 140 62 142 ;62 143 63 ] 143 68 '63 144 148 '63 148 63 149 63 149 '64 149 '64 150 64] 154 TABLE OF CONTENTS. XX. Preliminary Acooumts and Inquiries [64], 155. XXI. Setting Down and Hearing. 1. Time for setting down, and serving subpoena — Consequence of default . . ■ > . . • • 2. Preliminary to setting down causes . . . • 3. Preliminary to suipfsna to hear judgment .. 4. Causes set down and subpcena returnable out of term • • 5. When subpcena returnable and served . . 6. Advancement of foreclosure causes 7. Abatement or compromise after setting down .. 8. ' Causes abated or standing over 9. Preliminary to setting down causes for further directions, and on equity reserved, and pleas, demurrers and exceptions to Master's reports 10. Preliminary to setting down causes for further consideration . . 11. Solicitors to attend at the hearing 12. Cause deferred through neglect of solicitor .. .. 13. No pleas, &c. to stand over indefinitely . . • • • • 65 65 '65 '66 66 66 156 158 158 158 158 159 66] 159 '66 '" 159 159 _66] 160 [68] 161 [68] 161 161 XXII. Taking Bills fro confesso. I. Preliminary Proceedings, 1 . Notice of motion that hill be taken pro eonfesso after attachment for want of answer . . . . • • 2. Where defendant not answering shall be deemed to have ab- sconded to avoid process, or to have refused to obey process . . 3. Notice of motion that bill be taken pro confesso, where such de- fendant has appeared for himself 4. Or, wh6re he has had appearance entered for him . . • • 6. Defendant in custody submitting to have the bill taken pro confesso .. .. .. .. .. .. II. Hearing — Decree. 6. Hearing .. .. .. ,. .. .... 7. Rights of defendant at hearing . . . . . . . . 8. Decree where absolute 9. Power to order receiver, or sequestration, and payment to plain- tiff.. .... 10. Passing and entering decree . . 11. Service of copy of decree and notice as to application for leave to answer, and set aside decree, where not absolute under the 8th Rule 12. Time for making application 13. Leave of Court before execution of decree . . 14. Rehearing 1 5. Where a decree, not absolute under the 8th Rule, may be made absolute 16. Application for leave to answer bill where decree not absolute under the 8th or the 15th Rule .. .. .. 17. Representative of parties — New interests .. [68] 170 [69] 170 [69] 172 70] 172 [70] 173 [71] 174 71] 174 71] 174 [71] 175 72] 175 [72] 175 [72] 176 [72] 176 [72] 177 [73] 177 [73] 178 74] 178 XXIII. Decrees and Orders. 1. Meaning of the words, "The Judge," "The Taxing Master," " The Clerk of Records and Writs," as used in any special order [74] 179 2. Contents of decrees and orders . . . . . . . . [74] igo 3. Money, securities or effects to be specified in words at length — Ascertaining residues and shares of residues .. ., [75] 182 4. Residues to be verified and specified in words at length .. [75] 182 TABLE OF CONTENTS. XXI [??] IS'l- 184 5. Description of persons by or to whom money, securities or effects are to be paid, &c. .. .. .. .. .. [76] I8S 6. Time for payment of periodical payments to be specified at length .. .. .. .. .. .... [76] 183 7. Where amounts may be stated in a schedule to an order . . [76] 183 8. Direction as to payment of a proportion of interest or dividends to personal representatives of tenant for life . . 9. Legacy or succession duty on fund in Court . . . • 10. Decrees and orders to state the time for doing the act required — Memorandum of consequences on copy served . . 1 1. Decree saving the rights of absent parties . . . . . . 12. Decree on default of defendant 13. Dismissal on plaintiff's application or default .. .. 14. Inquiry as to personalty outstanding or undisposed of . . • • 1 5. Directions as to accounts and inquiries to be numbered 16. Just allowances .. .. .. .. •• 17. Drawing up, passiif|; and entering of orders of course at the Rolls .. .. .. .. .. .. .. [79; 18. Time for motion to add to a decree .. .. .. [80; 19. Service of notice of decree to be entered . . 20. How such notice entitled and indorsed . • . . 21. Clerical mistakes or accidental slips ,. 22. Breach of conditional decree or order •• •. .. [81^ 23. Filing of petition, &c., before order made .• •• •• [81 24. Contents of inrolment — Certificate by the Record and Writ Clerk as to the correctness of the statements .. .. [81] 25. Inrolment within six months .. .. •• •• .82] 193 26. Inrolment after six months .. •• .. •• ^82 194 27. Caveat against inrolment .. •• .. -• .. [82] 194 28. Inrolment within five years — Enlargement of time for inrol- ment •• [83] 196 29. Transmission of the inrolment to the Public Record OfSce .. [83] 197 78] 185 '78] 187 79] 188 79] 188 79] 189 79] 189 [79] 189 189 190 '80] 190 '80] 191 81] 191 192 192 193 XXIV. Receivers. 1. Security for Receivers — Salary .. .. .. •• [83] 197 2. Fixing days for Receivers to leave and pass their accounts and pay their balances — Neglect of Receivers .. .. .. [84] 199 3. Summons to proceed upon account — Entry of account — Affi- davit verifying the same . • . • . . ■ • [84] 200 4. Deposit of account .. •• •• •■ •• [84] 200 XXV. Injunctions. Injunction to stay proceedings at law • . [85] 200 XXVI. Stop Orders. 1 . Costs occasioned thereby . . 2. Service of petition or summons for Stop Order .. [85] 202 [85] 205 XXVII. Distringas. 1. Form of writ . . . . • • 2. Sealing of writ — Effect thereof 3. Discharge of writ — Costs 4. Effect of request to Bank to allow transfer or pay dividends [86 [86' [87' [87' 205 206 207 207 XXVIH. SUBPCENAS. 1. Prtecipe' 2. Form of mbpcena [87] 208 [88] 208 [88] 208 88^ 209 :88: 88 209 209 88 '88 209 210 ;89: 210 89] 210 :89] 211 [89] 211 [90: 213 XXll TABLE OF CONTENTS. 3, 4. Number of persons in a subpcena . . • • • • 5. Correcting and resealing «a6p Serjeant — No such order, nor the contempt, to be discharged, nor the suit compromised, without payment of his fees .. [93] 219 3. New writ of habeas .. .. .. .. ,, ..[94]2]9 4. Abolition of writ of execution to enforce Decrees or Orders . . [94] 220 5. Writs of attachment with proclamations and rebellion abolished. . [94] 220 XXXI. Proceedings to reverse, alter, or explain Decrees AND Orders. I. Rehearings and Appeals. . . , . 220 1. Time for appeals and rehearings — Enlargement of time .. .. [94] 216 2. Rehearing not to stop proceedings on Decree or Order appealed from .. .. .. .. .. .. [95] 227 3. Contents of petitions of rehearing .. .. .. .. [95"] 228 4. Deposits on appeal or rehearing .. .. .. .. [95] 229 5. Appeal deposit account . • . . . . , . . . [95] 230 6. Court to be supplied with copy of the bill and of the petition of rehearing .. .. .. .. .... [95] 231 TABLE OF CONTENTS. 7. Non-appearance of party served with order for appeal 8. Rehearing of or appeal from Decree or Decretal Order made on motion .. .. ., .... II. Bills of Review and other Bills of that nature. 9. Where necessary 10. Grounds of bill of review or bill in the nature of a bill of review 11. Leave of Court .. .. .. .. ,. 1 2. Deposit in the case of a bill of review . . 1 3. Deposit in the case of a bill in nature of a bill of review li. Performance required before such bill, except in particular cases XXXI I. Revivor and Supplement. 1 . Application to discharge order to revive . . . . . . 2. Supplemental statement 3. Contents of bills to revive or supplemental bills 4. Revivor against legal representative of plaintiff. . xxiu PAGES [96] 231 [96] 231 232 [96] 232 [96] 233 [96] 234- [97] 234 [97] 235 [97] 235 [97] 285 98] 239 '981 241 98] 241 10. 11. 12. 13. »1. 2. •3. XXXIII. Motions. I. Notices (if Motion. Notices of motion must name the Judge . . . . " . . [99"] 242 Time for service of notices of motion . . . . . . . , [99] 244 Time for service of notice of motion for a guardian to defend suit [99] 245 II. Motion for Decree under the Stat. 15 f 16 Vict. c. 86, s. IS Notice .. ,. ,, Plaintiff's affidavits .. .. .. Defendant's affidavits . . Plaintiff's affidavits in reply — Costs . . . . Further evidence . • . . . . . . Entering of notices of motion — Order of hearing III. Motions to dismiss Bills .. Time for motion to dismiss for want of prosecution . . Order to amend becoming void . . . . . Time for motion to dismiss for want of prosecution, where bill amended after answer, and no answer required to amendments [101] 253 Time for motion to dismiss for want of prosecution, where no answer required or put in , . XXXIV. Petitions. Statement as to persons to be served virith petition . Time for service . . . • Affidavits in support of petitions under Acts of Parliament au- thorizing sale for public purposes . . S.15 245 .. [99" 246 .. 199' 247 '■ 199': 248 .. [99 248 .. [100] 248 .. [100] 248 249 .. [100] 2Si .. [lor 253 [101] 254 [102] 255 [102] 256 [102] 257 XXXV. Proceeoings in Chambers. 1. Business to be disposed of in chambers .. 2. Form of summons by Judge .. .. .. 3. Form of administration summons 4. Form of summons by Chief Clerk 5. Preparing, sealing, and leaving of summons •• 6. Filing duplicate of summons, and stamping copy served 7. Time for service of summons . . • . . . 8. Appointment of new time 9. Appearances 10. Proceeding ez parte .. •• 11. Re-consideration of e* parte proceedings— Costs 12. Exclusion of claimants 13. Sale 103 104] 267 104 104' [104' [104' [105" [105] [105" [105' [105; [106; [106] 263 268 271 271 271 272 272 272 272 273 273 274 XXIV TABLE OF CONTENTS. FACES 14. Further attendances .. .. .. .. •• [1061277 15. Leaving copy of decree or order .. •• .. •• [106] 277 16. Summons to proceed with accounts and inquiries — Evidence of service of parties — Directions.. .. .. •• [107] 277 17. Settling deed in case parties differ .. .. .. .. [107] 279 18. Dispensation with service of notice of decree or order, or suhsti- 107 280 107} 280 108] 280 108] 281 tution of something else 19. Further accounts or inquiries— Consideration in open Court 20. Only one solicitor for a class . . . . 21. Distinct solicitor required 22.'Delayin bringing in decree or order directing accounts or inquiries [108] 281 *23. Neglect of Receiver, or delay in prosecuting any proceeding inchainbers '.. .. .. .. .. .. [108] 282 24. Summons and Appointment Book •• .. •• [109] 28.S 25. Lists of matters— Order of hearing .. .. .. .. [110] 284 26. Proceeding to be the same as upon motions — Documents to be used .. .. .. .. .. .. [110] 2J4 27. Notice of intention to use affidavit .. .-. .. .. [110 284 28. Affidavits used in. Court .. .. .. .. [110] 284 29. iSuipcena for attendance of witness .. .. •• .. [110' 284 30. Examination by the Chief Clerk.. .. .. ..[110] 284 31. Filing of examinations and depositions — Copies thereof . . .. [Ill] 286 32. Entering of Orders made in chambers .. .. .. [Ill] 286 33. Verification of accounts — Numbering items, and referring to and leaving accounts .. .. .. .. .. [Ill] 286 34. Surcharging .. .. .. .. .. .. [Ill] 287 35. Number of advertisements .. .. .. .. .. [Ill] 287 36. By whom prepared and signed ,. .. .. ..[Ill] 287 37. Appointment of day for hearing claimants — Form of advertise- ment .. .. .. .. .. .. .. [112] 287 38. Claims to be entered — Notice thereof, and of affidavit .. °112] 288 39. Office copies of affidavits of claimants .. .. ., [112] 288 .40. Adjournment — Closing further evidence — Mode of adducing same .. .. .. .. .. .. [112] 288 41. Claim entered and affidavit filed before adjournment day .. [112] 288 42. Debts not exceeding 52. 112] 289 43. Exclusion of claims .. .. .. .. .. [112] 289 44. List of claims allowed .. , .. .. .. ,. 113] 289 45. Computation of interest, or apportionment of fund .. ., 113] 289 46. What the certificate is to state in cases of account — Transcript of account as altered — Filing of accounts and transcripts .. [113] 289 47. Certificate only to refer to order, documents or evidence .. [113] 290 48. Form of Chief Clerk's certificate — Transcript thereof .. .. [114] 290 49. Time for takiftg opinion of Judge before he has signed certi- ficate .. .. .. .. [114] 291 50. Summons for taking such opinion .. ^.. ,. .. [114] 291 51. Signing, by the Jutlge, of the Chief Clerk's certificate .. [114] 291 52. Time for* applying to discharge or vary certificate signed by Judge.. .. .. .. .. .. .. [115] 292 53. When Chief Clerk's certificate to be acted upon byAccountant- General without' fiirther order, may be signed by Judge — Time for applying to discharge or vary same when signed .. [US' 54. Certificates on passing Receivers' accounts .. .. .. [115' 55. Filing of certificate and accounts .. .. .. fll5' 56. Filing of certificates of Chief Clerk which require no signature byJudge .. .. .. .. .. .. [115] 291 57. Registrar of proceedings .. ,. .. .. [115 295 58. Issuing summonses in the vacation .. .. .. .. [US' 295 294 294 294 TABLE OF CONTENTS. XXV 59. Signing and adopting certificate of Chief Clerlt of another Judge, and prosecution of decree or order of another Judge . . [1 161 295 60. Scandal.. .. .. .. .. ,, ,^ 11161 295 61. Judge in chambers to have powers of the Masters .. .. [116] 296 62. Power of Court or Judge as to time and course of proceeding . . [117] 297 XXXVI. Copies. I. Copies to be made by Officers ijf the Court. 1. Copies to be made by the officers of the Court .. .. [117] 297 •2. Office copies to be signed by Clerks of Records and Writs — Costs of copies not so signed .. .. .. ., [117] 298 II. Copies to be made by Parties or Solicitors. 3. How copies are to be made, delivered, charged and paid for .. [118] 298 4. Application for copies, and undertaking to pay charges.. .. [118] 299 5. By whom copy is to be supplied .. .. .. [118' 299 6. When copy is to be ready — Delivery .. .. .. [118] 299 7. Copies of bills of costs .. .. .. .. [118] 299 8. Numbering of folios of copies, and indorsement — Party or soli- citor answerable for their accuracy . . .. .. .. [118] 299 9. Time for delivery of copies of affidavits, in cases of ex parte injunctions and writs ne exeat regno .. .. .. [119] 800 10. Production of office copies .. .. .. .. ., [119] 300 11. Manner in which copies are to be made .. .. .. [119] 300 12. Default in supplying copies .. .. .. .. [119] 300 13. Disallowance of costs of copies . . .. .. .. [119] 300 XXXVII. Time. I. Time generally. 1. Times same in town and country causes . . . . . . [120] 301 2. Time of the day for service of proceedings not requiring per- sonal service .. .. .. ... ., [120] 301 3. Time for demurring alone . . . . . . . . . . [120] 802 *4. Time for putting in plea, answer or demurrer, where defendant required to answer . . . . . . . . . . [120] 303 *5 Tiine where defendant not so required .. .. .. [120 303 *6. Time for answer to amendments and exceptions together . . [120^ 303 *7- Time for answer to amendments, where no answer required .. [12r 304 8. Further time to answer .. .. .. ,. [121] 305 II. Computation of Time. 9. How to compute limited time . . . . . . , . [121] 306 10. Months .. .. .. .. .. .. [122] 306 * 1 1 . Exclusion of Sundays and close days •• .. .. [122] 306 12. Time expiring on Sunday or close day .. .< .. [122] 307 13. Where vacation not to be reckoned in computation of time . . [122] 307 14. Where time for giving security for costs not to be reckoned .. [122] 308 1 5. Extension of time, where the period allowed for certain purposes expires in the Long Vacation . . . . . . . . [123] 308 16. Additional time for proceeding in consequence of default of solicitor in delivering any copy .. .. .. .. [123] 308 III. Power qfthe Court as to Time. 17. Power to enlarge or abridge time .. .. .. [123] 309 18. Further enlargement of time .. .. .. .. [124] 309 XXXVIII. Solicitors' Fees. 1. Costs before Feb. 1, 1857 .. .. .. .. [124] 310 2. Costs on and ^ter Feb. 1, 1857 .. .. .. ..[124] 310 TABLE OF CONTENTS. XXXIX. Court Fees. 1. Fees before Feb. 1, 1857 2. Fees on and after Feb. 1, 1857 3. Fees to b.e collected by stamps — Amounts thereof . • 4. Inland Revenue Commissioners to provide the same — Payment into the Bank of proceeds of sale of stamps 5. Mode of using stamps . . • • • • 6. Defacing stamps . . 7. Number of stamps 8. Fees where costs payable out of a fund in Court XL. Costs, Charges and Expenses generally. 1. Duties and powers of Taxing Masters 2. To whom references to be made 3. Taxing Masters to assist each other . . . . • • 4. Solicitor who is guardian ad 2i2e>n .. .. .. 6. Party suing or defending in /ornai poiipera 6. Security for costs , . . . . • . . • • 7. Amendment of bill . . . . . ■ • • 8. Unnecessary amendment . . 9. Pleadings, &c. improper or of unnecessary length 10. Impertinent or unnecessary matter in statements, afSdavits, &c. used in Judge's Chambers . ■ • • • • 11. Time for applying for costs of impertinent matter .. .. 12. Separate answers 6r proceedings by same solicitor . .' 13. Costs of insufficiency where exceptions submitted to 14. Bill of discovery filed by defendant .. 15. Appearance entered by plaintiff . . 16. Costs of requiring formal party to appear and answer . . 17. Expenses of having affidavits prepared or settled by counsel .. 18. Costs of written copy or brief of a bill 1 9. Payment for printed copies . . . . . . . . 20. Two counsel 21. Cause struck out for defect on part of plaintiflF, and again set down .. .. .. ., ., .... 22. Costs of the day to be 102. *23. Abandoned motion .. *24. Establishing a debt 25. Taxation of costs by direction of a Judge 26. Transmission of books, papers and documents, by the Judge's Chief Clerk to the Taxing Master — And return thereof 27. Memorandum of transmission and return thereof . . 28. Parties attending Chambers without leave 29. Counsel attending Chambers *30. Costs where drafts are settled by other counsel in addition to the conveyancing counsel of the Court 31 . Costs occasioned by absence of party, where Judge does not proceed ex parte 32. Expenses to he allowed where costs are taxed as between party and party . . . . . . . . .... 33. Objection to an allowance or disallowance by the Taxing Master 34. Review of taxation upon application for a warrant to review or upon the return thereof . . . . , , 35. Motion or petition for order to review taxation . . 36. Evidence thereon . . . . , , . . 37. Gross sum in "lieu of taxed costs 38. Where no order for taxation necessary — Recovery of costs 39. Taxation of costs, in case parties differ about the same 40. Stating amount of costs .taxed , , ■ . . • . . [125] 310 [125] 310 [125] 311 [125] 312 [126] 312 [126] 312 [126] 313 [127] 313 [127] 314 [127] 315 [128] 315 [128] 315 [128] 316 316 320 320 322 [128 [128 [129 [129] 321 [129] [130] 322 322 323 324 325 325 325 325 326 [130 [130' 131 131 '131 '131' 131 132 ;i32] 326 132] 327 132] 327 132] 328 132] 329 133] 330 [133] 330 [133] 330 331 331 [1.34 [134; [134] 331 [134] 332 [134] 332 [135] 334 334 334 335 335 335 336 .. :i35] 136 '136 '136' 136 ;i87: 137" TABLE OF CONTENTS. XXVU XLI. Proceedings under the Statutory Jurisdiction of the Court. PACES 337 [137] 343 [138J 3+4. I. Proceedings under the Trustee Relief Act, 10 ^ 11 Vict. c. 96, 1. Affidavit of trustee 2. Payment, transfer or deposit 8. Additional statement in affidavit, where investment not de- sired — Investment by Accountant-General where no such statement .. .. .. .. .. .. [138] 345 4. Notice of payment, transfer or deposit ,. .. .. [139] 345 5. Application by petition or summons .. .. .. [189J 345 6. Notice to trustee of application by cestui jueinest .. .. [139] 346 7. Notice to the cestui que trust of application by the trustee . . [139] 346 8. Place for service on petitioners .. .. .. .. 139' 9. Title of petitions, summonses and affidavits . . . . . . [139 II. Proceedings under the Statute 16 .f 17 f^ct. c. 137, relating to ' Charitable Trusts 347 347 ] 0. Application to be by summons — Form of summons . . 11. Fees 1 2. Fees and costs . . . . . . 13. Appeal .. .. .. ,. .. III. Proceedings under the Statute 19 S; 20 Vict. c. 120, relating to Leases and Sales of Settled Estates .. •• 14. Name, address, and description of, and place for service on petitioner .. .. .. .. .. 15. How petitions, notices, affidavits, and proceedings entitled — Marking of petition . . . . . . 16. Directions as to advertisements .. 17. Time for motions under s. 20— Service of order made thereon. . 1 8. Application for copy of petition . . . . • • 19. Delivery and payment .. •. .. .. 20. Time for hearing of petition 21. Evidence of no previous application to Parliament . . , . 22. Evidence as to parties interested, and as to expediency of sale . . 23. Special directions under s. 36 24. Order to specify on what documents notice under s. 22 indorsed 25. Fees and allowances IV. Proceedings under the Statute 21 ^ 22 Fict. c. 27, relating to the Amendment of the Procedure in the Court of Chancery • . 26. Question to be tried to be reduced into a certain form, copied and called the " Record for Trial," and filed and entered for trial 27. Direction for special jury 28. Entering for trial — And marking same — Day for trial . . 29. Obtaining and serving Order for common jury — Form of Order 30. Obtaining and serving an order for special jury, where directed by the Court - Expense of special jury 31. Obtaining and serving an order for a special jury, where not di- rected by the Court — Expense of special jury 32. Summoning common jury in addition to special jury 33. Return of Order and jury panel — Leaving same with the Clerk of Records and Writs, to be annexed to the Record 34. Making up special jury from common jurymen where special jury directed by the Court 35. Making up special jury where special jury not so directed 36. Summons for a view — Naming a shower — Form of Order 347 [140] 350 [140] 350 [140] 350 [140] 350 351 [140] 361 [141] "141 [141: "141 141 141 141 142] 363 142] 363 142] 363 "142] 363 361 362 362 362 362 362 362 142 148] 868 143 143 367 368 368 [143] 868 [144] 369 [144] 369 [144] 369 145 145 369 370 ;i45] 370 TABLE OP CONTENTS. 37. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. SO. SI. S2, Statement of place of view and distance thereof— Deposit — Scale of Charges . . . . . . .. • • Nominating and reducing special jury, and proceedings after the order for a view Form of notice to admit documents . . . . Payment of money into Court in respect of damages — Costs of trial or inquiry . . . • Record, Sheriffs return and jury panel to be transmitted to Registrar, and copy left for Ju^e Caviling jurors and administering oath to them — Administering oath or declaration to witnesses .. .. .. Addresses to the jury or the Court . . . . • • Usher to take charge of jury — His oath Indorsement and signature by the Registrar — Return of Record for Trial and jury panel Notice of application for a new trial , . . . . . . . Writ of inquiry of damages Notices of inquiry . • Form of return to writ of inquiry — Filing of such writ and the return . . . . . . . . , , Applicaiion to set aside verdict or inquisition . . Subpoenas ad testificandum and duces tecum . . Use of forms with variations .. .. .. 1. Privilege from arrest 2. Improper conduct 3. Deposit of documents . . 4. Production of documents XLII. Miscellaneous Points. 1. Contempt. II. Documents. 12. Time for inrolment 13. To whom given . . 14. Vacating recognizances V. Recognizances. [145] 370 [146] 371 [146] 371 [146] 371 [147] 372 [147] 372 [147] 372 [148] 372 [148] 373 "148] 373 148] 373 149] 373 149] 373 149] 374 149] 374 149] 374 [150] 374 [150] 375 [ISO] 376 [ISO] 381 III. Election. 5. Where compelled by a defendant whose answer is not excepted to .. 6. Where compelled by a defendant whose answer is excepted to •7. Where compelled by a defendant from whom an answer is not required .. .. ,. *8. Moving to discharge Order to elect . . . , . , IV. Interest. 9. Computation of interest on debts . . . . . , 10. Payment of interest on debts not carrying interest .. 11. Interest on legacies .. [150] 381 [151] 382 [151] 383 [151] 383 [151] 384 [151] 384 [152j 385 [152] 385 [162] 386 [162] 386 SCHEDULES. (A.) Form of Bill, [153] 387. (B.) Form of Interrogatories, [156] 388. (C.) Form of Answer, [157] 389. (D.) Form op Orderinq Accounts and Inquiries, [168] (E.) Writs of Subpcena. 1. Subpoena to beax judgment .. ., ,. ,, 390. [159] 390 Table op Contents. xxix FAGUS 2. Subpoena to testify vivi voce in Court or before Commissioners, to examine witnesses, and suipoBBd duces *ecun> .. .. [160] 391 3. Subpoena ad testificandum, ajii mbpoena duces tecum ,, .. [160] 391 4. JufipcBno for costs .. .. .. .. .. .. [161] 391 5. •Ju^Hfna to name a solicitor .. .. ,. .. [161] 392 6. Subpoena for an infant, on coming of age, to shew cause against decree .. .. .. ., .. .... [162] 392 (F.) Writs of Fieri Facias. 1. Writ o{ fieri facias, on a decree or order of the Court of Chan- cery for payment of money .. .. .. .. [162] 392 2. Writ of fieri facias, on a decree or order of the Court of Chancery for payment of money and interest .. .. .. .. [163] 393 3. Writ of fieri facias, on a decree or order of the Court of Chancery for payment of money and costs .. .. .. [164] 393 4. Writ of fieri facias, on a decree or order of the Court of Chancery for payment of money, interest, and 'costs .. .. .. [165] 394 5. Writ of fieri facias, on a decree or order of the Court of Chancery for payment of costs .. .. .. .. .". [166] 395 (G.) Writs of Elegit. 1. Writ of elegit, on a decree or order of the Court of Chancery for payment of money, or money and interest . . . . . . [167] 395 2. Writ of elegit, on a decree or order of the Court of Chancery for payment of costs . . . . . . . . - . . [169] 396 3. Writ of elegit, on a vdecree or order of the Court of Chancery for payment of money and costs .. .. .. .. [171] 397 4. Writ of elegit, on a decree or order of the Court of Chancery for payment of money, interest, and costs .. .. .. [173] 399 (H.) Writ of Venditioni Exponas, [175] 400. (J.) Writ of Fieri Facias de bonis Ecclesiasticis AND SeQUESTRARI FaCIAS. 1. Writ of fieri facias de bonis eccUiiasticis .. .. .. [176] 400 2. Writ of fieri facias to the archbishop, de bonis eccksiasticis, during the vacancy of a bishop's see .. .. .. .. [177] 401 5. Writ of sequesfrari facias de bonis ecelesiaslicis .. .. .. [177] 401 (K.) Summonses. 1. Form of general summons .. ., .. .. [178] 402 2. Form of administration summons .. .. .. .. [179] 403 3. Form of summons by chief clerls .. .. .. [180] 403 (L.) Form OF Advertisement, [181] 404. (M.) Form of Certificate of Chief Clerk, [182] 404. (N.) Forms connected with Juries. 1 . Form of Record for trial of a question or questions of fact .. [184] 405 2. Form of Record for trial as to amount of damages .. .. [184] 405 3. Form of Order to summon a common jury ., .. [184] 406 4. Form of Order for a special jury .. .. .. ,. [185] 406 5. Form of Order for a view .. .. .. .. [186^ 406 6. Form of Notice to admit and inspect.. .. .. .. [187] 407 7. Form of Oath to be administered to the jurors .. .. [188] 408 8. Form of Oath to be administered to a witness .. .. .. [189] 408 9. Form in case the witness has a conscientious objection to take an oath .. .. .. .. .. .. [189] 408 10. Form of Oath to be taken by the Usher of the Court, on Jury retiring to consider their Verdict .. .. .. .. [189] 408 c. d XXX Table of Contents. 1 1. Form of Writ of Inquiry before the SherifiF • . 12. Form of Writ of Inquiry to a County Palatine . . 13. Form of Inquisition on Writ pf Inquiry .. •• 14. Form of Writ of Inquiry of damages to be executed before the Justices of Assize . . . . . . • • •• PAGES [189] 408 [190] 409 [191] 409 [191] 410 EEGULATIONS. I. Regulation as to Special Examiners' Fees and Charges, [195] II. Regulations as to Solicitobs' Fees and Charges. 1. Lower Scale of Solicitors' fees .. .. .. ..[195] 411 2. Higher Scale of Solicitors' fees .. .. .. •• [196] 412 3. Other fees .. [196] 412 III. Regulations as to Court Fees. 2. Rule for determining whether Court fees are to be paid accord- ing to the Lower or the Higher Scale . . . . • • 3. Certificate for Lower Scale . . • • 4. Effect thereof . . . . . • . . .... 5. De6ciency of Court fees where Solicitor entitled to Higher Scale . . . . . . - . . . .... 6. Excess of Court fees where Solicitor entitled to Lower Scale only •• .. .. .. .. 7. Stamps .. IV. Regulations as to Charges for Copies delivered BY Parties and Solicitors. 1. General rule . . .. .. .. .. .. 2. Charges for copies of pleadings, proceedings, and documents, furnished to a person suing Or defending informd pauperis . . 3. Charges for the same when furnished by such person 4. Mode of reckoning length of copies . . . . . . SCHEDULES. I. Special Examiners' Fees and Charges, [199] 415. II. Fees and Charges to be allowed to Solicitors. [197] 413 [197] 413 [197] 413 [197] 413 [197] 413 [198] 414 [198] 414 [198] 414 [198] 414 [199] 415 Instructions The Preparation of Pleadings and other Documents Perusals . . Copies .. .. Attendances .. .. .. Writs Notices and Services . . . . . . Oaths and Exhibits Term Fee 200] 415 201] 416 202] 417 '203] 417 "204] 417 209] 420 210] 421 211] 421 211] 421 III. Other Fees to be allowed to Solicitors, [212] 422. IV. Fees to be collected by means of Stamps. In the Judges' Chambers .. .. .. In the Masters' OfSces In the Registrars' Office .. .. In the Examiners' Office .. In the Record and Writ Clerks' Office, and Report Office ■ In the Taxing Masters' Office In the Lord Chancellor's Principal Secretary's Office In the Office of the Secretary at the Rolls . . . . In the Office of the Accountant-General . . .. _212] 422 213] 423 "213]' 423 214 214' 423 423 216] 424 '■217] 425 217' 425 217] 425 V. Amounts of Stamps for collecting Fees, [218] 425. Table of Contents. APPENDIX. Orders of the Sth of May, 1837, as to Selection of Court. PAGES 1. Bills, &c. to be marked . . . . . . . . [219] 426 2. Certificateof Pleadings to be marked .. .. .. [219] 426 3. Causes in Court, but not yet set down . . . . . . [219] 426 4. Setting down Causes . . . . . . . . . . [220] 427 5. Petitions to set down Pleas and Demuirers . . . . [221] 427 6. Causes, &c. not yet set down, wbicb are to be set down before tbe Lord Chancellor .. .. .. .. .. [221] 427 7. Petitions and Motions under liberty to apply, which are to be set down before Lord Chancellor or Vice-Chanoellor . . [221] 428 8. Causes, &c. as set down before Lord Chancellor, to be subject to same Rules as Causes set down before Lord Chancellor have heretofore lieen.. .. .. .. .. [221] 428 9. Interlocutery Petitions and Motions, which are to be set down before Lord Chancellor or Vice- Chancellor . . . . . . [222] 428 10. Causes, &c. not yet set down, which are to be set down before Master of the Rolls .. .. .. .. .. [222] 429 11. Petitions and Motions, under liberty to apply, which are to be set down before Master of the Rolls . . . . . . [223] 129 12. Interlocutory Petitions and Motions which are to be set down before Master of the Rolls . . . . . . . . [223] 430 13. Orders as to Interlocutory Applications not to extend to Orders of course .. .. .. .. ;. .. [224] 430 14. Orders of course to be made as heretofore; but proviso, as to showing cause upon Orders Nisi obtained as of course, and as to Exceptions on References obtained as of course . . [224] 430 15. Application for Special Orders during Vacations ; proviso as to re-hearing same . . . . . . . ■ . . [224] 431 16. Matters under Acts of Parliament .. .. .. .. [225 J 431 Fourth Order of the 11th of November, 1841, as to Selection of Court. 4. How and by whom notice is to be given of selection of Court — Which of the notices is to determine .. .. .. [225] 432 Order of the 1st of August, 1741, as to Exchequer Orders and Bills. Monies of Suitors— Order of 26th May, 1725 (it Geo. I.)— Order of 4th November, 1725 (12 Geo. I.)— Act of 12 Geo. I. c. 39 . . . . . . . . . . . . [226] 432 Order, that Bank send all Exchequer Orders belonging to Suitors to the Exchequer — Officers of Exchequer to enter and indorse same .. .. .. [227] 432 Further Order, this Order to be published .and hung up .. . . [227] 432 Order of the 28th of August, 1828, As to Exchequer Orders and Bills. Exchequer Bills — Bank may receive interest and exchange same for new Bills, or receive principal and interest, withiaut any direction from the Accountant-General ; and Bank to certify the particulars to the Accountant-General — This Order to be entered .. .. .. .. .. .. [227] 433 d2 XXXll Table of Contents. Order of the 1st of November, 1841, as to Exchequer Powers of Attorney. Abolition of Accountant-General of Exchequer (Act of 5 Vict. u. 5) — Order authorizing the Accountant-General in Chancery and the Bank to act as Powers of Attorney given in the Exchequer . . . . - . . [229] 434 Order op the 8th of July, 1842, as to Income Tax. Income Tax (Act of 12 Geo. I. c. 32 ; Act of 5 & 6 Vict. c. 35)— Order that the Accountant-General draw only for amount ordered, minus sevenpence in the pound . • ■ • [229] 435 Order of the 27th of July, as to certain Office Routine [231] 436 Order op the 4th of March, 1846, as to the Drainage of Settled Estates. 1. Petition . , . . . . . . . . . . . • 2. How marked . . . . . • 3. Order on Petition . • .. .. .• 4. Evidence .. .. .• .• .. •• 5. Persons to he served 6. Special directions, or special circumstances 7. Proceedings on the reference . . . ■ 8. Filing of Report . . . . . . . . 9. Petition for Review of Report 10,11,12. Proceedings thereon 13. Petition for confirmation of Report, and leave to make improve- ments . . 14,15. Proceedings thereon 16. Order confirming Report, and giving leave to make the im- provements . . . . . . . , 17, 18. Certificate by the Master .. 19, 20. Inquiry as to money expended — Endorsement on Certi- ficate . . . . . . . . . . 21. How Orders may be discharged or varied . . .. ,. 231] 437 '233] 438 '233] 438 "234] 439 234] 439 234] 439 234] 439 234] 439 "234] 439 234] 440 [235] 440 [235] 440 [236] 441 [236] 441 [237] 442 [238] 442 EEGULATIONS To be observed in the conduct of Business at the Chambers of the Mastfer of the Rolls and the Vice-Chanoellors, by Order of the Right Honor- able Sir John Romilly, Master of the Rolls ; the Honorable the Vice- Chancellor Sir Richard Torin Kindersley ; the Honorable the Vice- Chancellor Sir John Stuart; and the Honorable the Vice- Chancellor Sir William Page Wood; this 8th day of August, 1857 .. .. 443 Schedule 1. Affidavit of Service of Summons originating Proceedings in Chambers . . . . . . . . . . 447 2. Affidavit of Service of Summons, not being a Summons origi- nating Proceedings in Chambers.. .. .. .. 447 3. Affidavit as to Production of Documents, pursuant to an Order in Chancery , , . . . . , , 44g Table of Contents. xxxiii PAGE Schedule 4. Account of Personal Estate . . . . . . . . 449 5. Account of Rents and Profits., •. .. ,. 430 6; Affidavit verifying Accounts, and answering usual inquiries as to Real and Personal Estate .. .. .. .. 451 7. Ordinary Conditions of Sale . . . . . . , . 453 8. Affidavit of result of Sale . . . . . . . • • . 454 9. List of Debts allowed . . . . . . . . 456 10. List of Legacies remaining unpaid . . .. .. .. 457 11. List of Annuities and Arrears due .■ .. .. 457 12. List of Apportionments among Creditors or Legatees .. 45S 13. Receiver's Recognizance . . . . . . • • 459 14. Receiver's Account . . . . • . • . • . 460 1 5. Receiver's Costs of Appointment on passing Accounts .. 462 16. Plaintiff's or Defendant's Costs of passing Receiver's Account .. .. .. •• •• .. 463 17. Affidavit verifying Receiver's Account .. .. .. 463 18. Affidavit verifying Abstract.. .• .. .. 464 19. Affidavit verifying Engrossments of Deeds .. .. .. 464 REGULATIONS Of the Registrars of the Court of Chancery respecting the transaction of Business in their Office, issued 15th March, 1860. Setting down Causes, Pleas, Demurrers and other Matters for Hearing. 1. Generally . . . . . . . . . . . . . • 465 2, 3, 4. Pleas and Demurrers . . . . . . . . . . 465 5. Exceptions for insufficiency or scandal . . . . • • • • 465 6. Motions for decree . . . . . . . . • . . . 466 7. Original causes . • . . . . . . . . . ■ 466 8. Special cases . . . . . . • • • • .... 466 9. Causes for further consideration . . . . . . . . 467 10. Marking causes and motions for decree " short " .. .. .. 467 11. Appeal motions .. •• .. .. .. .. 467 12. Rehearings and Appeals . . .. .. .. •• .. 467 jidjournment. 13. Causes standing over .. .. .. .. ■• 468 14. Petitions standing over . . . . . • • • . . ■ ■ 468 Documents to he left on bespeaking Decrees or Orders. 15. Generally .. .. .. .... .. ..468 16. Whenever any fund in Court is to be dealt with .. .. .. 468 1 7. Where payment out of Court is ordered to legal personal representative 468 18. Legacy or Succession Duty' .. .. .. .. .. 468 1 9. Reference to the Record . • . . . . . . . 468 20. Lower scale of fees . . . . . . . . • • • • 468 21. In all cases of non-appearance ,. .. .. .. 469 22. Decrees .. .. .. .. •• .... 469 23. If any Admissions are to be entered as read •• .. .. 469 24. If a memorandum has been entered of service of a Copy of the Bill on any defendant . . . . . • ■ • • • . ■ 469 25. If a Traversing Note has been filed and the defendant does not appear at the hearing . . . . . . . ■ • • • • 469 26. If the Bill has been taken pro confesso . . . . . . . . 469 27. If any Affidavits have been read at the hearing . . . . . . 469 28. If any Documents have been granted at the hearing viv& voce or by Affidavit .. .. .. .. .• .... 469 29. Orders on further consideration .. .. •• •• 470 30. If the Order deals with any Purchase Money . . . . . . 470 31. Orders on Motions . . . . • • . . • • • . 470 xxxiv Table op Contents. 32. Orders on Petitions .. ,, 33. Under the Settled Kstates Act 34. Orders under Acts authorizing Public Works 35. Orders for Winding-up Companies 36. Orders vacating Receiver's Recognizances . • 37. Fees and Stamps . . • • > • • * 38. Decrees or- Orders engrossed on impressed stamps to duly paid for . . . . • . 39. Registrar' s Certificates of Sah, Transfer or Delivery 40. Certificates under the Consolidated Order I., Rule 8 te cancelled if not PAGE ,. 470 . 470 ,. 470 ,. 470 .. 470 ,. 470 471 471 471 ORDEES OF COURT. March 6th, 1860. 1. Answers not to be engrossed 2. Certified copy of answer 3. Printing from certified copy 4. Time for delivery of office copy . . . . 5. Filing printed answer .. •• •• 6. Stamping office copy 7. Stamped copy delivered to plaintiff . . 8. Additional printed copies . . . . • • 9. Copies for co-defendants . • • • 10. Office copies of schedules . • • • 11. Answer by plaintiff -. .. •• 12. Alterations and interlineations 13. Costs of written answer .. •• .. 14. Solicitors' fees •• •• •• •• 1.5. Saving where parties sue in /orm4 ponperts .. 16. Bills, &c., now to be written .. Schedule . . ■ • ■ • • • March 20th, 1860 August 23rd, 1860 .. 120 .. 120 ., m .. 298 .. 120 .. 298 .. 298 .. 298 .. 299 .. 299 .. 143 .. 120 .. 326 .. 422 .. 120 .. 120 .. 422 .. 504 .. 504 Chronological List ot Incorporated Orders .. Synopsis of Contemporaneous Chancery Reports Index of Statutes .. Table of Cases •• .. ,. •• Addenda et Corrigenda .. •. «. XXXV xl xliii xlix Ixxv General Index 505 ( XXXV ) CHRONOLOGICAL LIST INCOEPOEATED OEDEES(«). Abro- Consoli- Abro- Consoli- Abro- Consoli Abro- Consoli- ^*!f* dated Rule. gated dated Rule. gated dated Rule. gated dated Rule. Order. Order. Order. Order. Order. Order. Order. Order. Henry V. 1640. 1661. 1685. 17 8 1 Pec.31. 15 6 May 25 ^ July 13. 3 11 1556. 1646-7. 300 8 1 30 2 Nov.12 9 6 HilTermi 300 300 300 16 19 40 1 2 13 1685. 1574. 2 21 3 May 26. 15 6 Dec.25. 1 42 1647. 304 19 5 1686. 1596. Apr.26. 23 23 306 30 1 May 12. 31 2 June 23 . 36 2 1656. 308 308 310 29 42 4 4 2 1686. 1618-9. Oct. 9. 4 June 9. 1 '41 Jan. 29. 1658. June 25. 21 312 7 9 1687. 1 1 31 31 9 10 3 312 313 7 7 10 11 May 27. 23 1688. July 4. 7 1689. 23 1 3 4 31 31 31 11 14 14 1660. Nov. 15. 1 18 36 5 1666. July 18 1 36 8 13 IS 31 9 9 1 . 1661. 1667-8 . Oct.23. 81 6 58 14 2 May22. HiLTerm. 1694. S9 14 4 Sand. (a). 7 36 2 June 12. 30 2 62 64 71 16 19 19 7 2 4 296 8 297 1 297 8 2 45 3 1670. Nov. 9. 9 7 1697-8. Mar.l9. 3 11 73 9 6 297 10 2 1673. 1699. 77 42 2 298 8 298 14 1 M4y8. Oct.25. 7 4 86 42 I 1 4 8 3 1621-2. Feb.18. 21 3 298 14 298 8 299 14 5 1 6 8 1674. 21 3 1700-1. M.w.\1. 31 12 1622. 299 14 7 July 22. 42 12 Oct. 2 36 2 299 15 299 19 2 1 1674. Nov. 4. 80 2 1741. Oct.l7. 81 31 10 11 1623. (o) The Order being 1676. 31 13 May 28. 21 3 ▼eiy long, the pages o( Sanders' Orders in Apr.lO. 19 14 1748. 1626. vhich it is printed are 1676. Apr.27. 14 3 June 30. 21 3 here referred to. 1 July 3. 1 41 15 5 (a) Abridged with some corrections from the authorised edition,^ Cheonological List of Abro- Consoli- Abro- Consoli- Abro- Donsoli- Abro- Consoli- gated dated Rule. gated dated Rule. gated dated Rule. gated dated t Order. Order. Order. Order. Order. Order. Order. Order. 1794. 1831. 1839. 1842. Feb.7. 31 4 Nov.23. 40 39 May 10 Apr.ll. 24 12 7 4 29 9 3 3 1796. 76 3S 17 5 29 10 6 30 Apr.23. 24 2 82 21 4 1839. 6 11 40 29 1833. Dec. 7. 23 4 12 23 1807. Dec.21. Feb. 16. 1 1 2 28 1 1841. 1842. 3 28 1 Apr. 3. 26 1 Aug. 5. 6 1814. 4 28 6 26 2 Deo.] 3. 33 1 5 28 3 1841. Aug.26. 6 7 9 10 13 IS 16 23 24 25 1842. 1815. 6 27 28 1 4 17 30 10 5 10 Oct.26. 1 1 Jan.l8. 21 11 27 23 2 3 1 27 23 23 12 30 6 4 4 1 1818. 28 23 3 5 16 Aug. 5. 1828. Apr. 3. 24 27 40 12 40 23 7 12 28 28 28 29 30 30 23 23 23 23 4 5 6 17 18 19 29 29 16 10 10 10 5 2 3 11 12 13 6 7 7 8 9 10 1 1 IS 1 40 40 28 29 30 40 40 40 13 7 8 30 30 30 44 46 47 26 27 29 10 10 40 14 15 16 12 13 14 40 40 40 32 14 12 33 4 31 7 1 15 40 33 40 20 32 7 14 2 16 3 34 40 21 1835. 36 37 8 g 17 3 35 40 22 Jaii.29. 21 13 14 18 3 36 21 12 38 15 4 19 3 39 21 7 1837. 40 23 11 20 3 40 40 6 Mays. 42 19 6 21 3 42 31 4 1 6 1 44 23 12 23 3 43 1 S3 2 6 2 45 23 14 24 16 44 3 7 4 6 3 46 42 10 25 3 45 23 21 5 14 10 47 40 24 26 19 46 6 12 6 6 4 49 32 3 28 40 47 6 13 9 6 S 50 31 3 30 1 S3 35 10 12 6 5 1843. 54 35 11 14 6 9 1841. Mar.l7 23 55 40 31 15 6 11 Nov.ll. 56 35 23 16 6 6 2 g 2 1844. 63 24 2 5 6 s Dec.6. 12 65 69 73 35 35 35 28 29 60 1838. May 12 1839. 9 19 6 7 6 6 6 8 1845. Mays. 5 5 74 16 4 May 9. 1841. 6 5 76 40 39 4 21 6 Nov. 17. 7 5 77 35 21 5 20 1 2 27 27 1 2 8 9 5 5 1828. 1839. 3 27 3 10 5 jBly4. 84 3 May 10 29 6 4 27 4 11 12 37 37 1831. 2 29 7 1841. 13 37 Aug. 3. 31 7 3 29 8 Dec. 10. 27 2 14 37 Rule. 11 39 6 43 1 2 25 26 27 3 1 2 3 4 5 -6 9 3 10 7 4 S2 24 1 2 3 4 S 6 9 10 12 13 I NCORP ORAIE D URDERS. xxxvu Abro- Consoli- Abro- Consoli- Abro- Consoli- Abro- Consoli- gated dated Rule. gated dated Rule. gated dated Rule. gated dated RiUe. Order. Order. Order. Order. Order. Order. Order. Order. 1845. 1845. 1845. 1850. May 8. May 8. May 8. Nov.2. 15 37 14 46 14 14 124 40 38 17 16 It 16 37 1 47 14 15 125 40 14 17 16 15 48 14 16 126 18 1 18 16 16 Articles of Ord. 16. | 49 14 17 128 18 2 19 16 17 H) 28 9 50 14 18 20 16 18 (2) 10 17 51 42 6 1846. 21 16 41 (3) 10 3 51 42 8 Jan. 31. 30 3 22 16 19 (5) 10 16 52 13 1 23 16 2 (10) 37 3 53 13 2 1847. 24 16 20 (15) 37 6 54 13 3 Apr.l3. 9 12 25 16 21 (17) 14 14 ¥ 13 4 26 6 10 (18) 14 15 is 13 5 1848. 27 6 6 (19) 14 17 57 13 6 June 10. (21) 42 6 58 13 7 1 41 1 1851. (32) 9 10 63 32 4 2 41 2 Oct. 29. (331 9 11 64 9 8 3 41 4 2 6 1 (34) 33 11 65 9 9 4 41 5 7 6 5 (34) 9 17 66 9 13 5 41 6 7 6 6 (37) 33 10 67 9 14 6 41 7 (38) 37 7 68 9 15 7 41 8 1852. (39)^ 69 9 16 8 41 9 May 4. 1 11 (40)' f 33 12 70 9 24 (41 )J 70 33 11 1849. 1852. (45) 21 1 72 12 1 DeclO. 40 5 May 7. 41 3 (45) 33 10 73 12 2 (46) 21 5 74 12 3 1850. 1852. (47) 33 2 75 12 4 Feb.23. 21 2 July 28 1 4 (47) 34 2 76 22 1 21 9 (48) (48) 7 33 3 3 77 78 22 22 2 3 1850. June 3. 1852. Aug. 7. (49) 22 1 79 22 4 1 35 22 Istset. Ord. 80 22 5 2 35 6 35 7 40 8 40 9 40 14 I 20 1 9 3 18 37 8 81 22 6 10 31 2 40 18 20 37 18 82 22 7 3 9 4 21 37 17 83 22 8 31 5 40 19 24 1 37 84 22 9 10 6 9 5 24 28 2 85 22 10 33 7 9 18 25 28 5 86 22 11 9 9 20 26 9 21 87 22 12 1850. 10 9 21 26 28 7 88 22 13 July 4. 1 17 11 9 22 27 16 15 89 22 14 12 9 23 28 10 18 90 22 15 1850. 13 28 10 29 10 4 91 22 16 Nov.2. 14 9 2 30 10 5 92 22 17 4 37 13 15 11 1 31 10 6 93 17 2 6 16 5 16 11 2 32 7 3 114 33 10 7 42 5 17 11 4 33 10 7 114 33 11 8 16 6 18 11 5 34 10 8 115 33 12 9 16 8 19 37 4 34 28 8 116 21 1 10 16 9 19 37 8 35 40 15 117 23 13 11 16 11 20 11 3 36 10 9 119 23 22 12 16 10 21 15 1 37 10 16 120 40 32 13 42 6 22 33 4 44 14 12 122 40 9 14 16 12 23 33 5 45 14 13 123 40 37 16 16 13 24 33 6 Cheonological List of Abro- Couaoli- gated dated Rule. Order, Order. 1852. Aug. 7. Istset. 25 26 27 28 29 30 34 35 37 38 40 41 42 43 44 45 46 1852. Aug.7. 2dset 1852. Oct.l6. 1 2 3 4 5 6 7 8 9 10 11 12 13 15 16 17 18 19 17 33 40 19 19 19 19 19 23 23 35 32 32 25 37 35 35 35 35 35 35 35 23 35 42 42 35 24 42 35 35 35 35 7 8 9 1 13 11 9 8 9 9 10 18 19 3 1 2 17 1 31 1 2 23 25 3 23 26 4 23 27 5 23 28 6 23 28 6 31 1 1852. Sept.7. 39 3 39 4 2 4 5 6 7 8 9 15 12 9 11 13 1 13 14 15 16 18 Abro- gated Order. 1852. Oct 16. 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 50 51 52 53 54 55 56 67 58 59 Consoli- dated Order. 35 85 35 35 35 19 35 35 35 35 35 24 24 35 35 35 35 35 35 35 35 35 35 35 35 35 35 35 35 35 1 35 35 35 35 35 40 40 42 35 Rule. 19 24 25 26 27 11 30 31 32 33 34 3 4 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 44 55 62 56 64 57 28 29 3 61 62 1852. Oct.25. 1&2 36 1 1 36 3 Articles of Ord. 1. (2) (3) (4) (6) (7) (8) (9) 36 36 36 36 36 36 4 5 6 7 8 9 10 Abro- Conaoli-- gated dated Rule. Order. Order. 1852. Oct.25. Ord. 2 2 3 4 36 36 36 37 39 39 39 1852. Nov.9. 2 1 1852. Dec. 3. 1 1 2 1852. Dec. 4. 2 2 39 39 39 39 1852. Dec. 10. 31 1852. Dec.l6. 1 2 3 4 5 1853. Mar.4. 21 1853. Aja-.12. 23 1853. Jane 3. 1 1853. July 26. 35 1853. Dec. 9. 41 41 41 41 1854. Mar.9. 23 1 11 12 16 13 3 4 6 8 18 1 2 3 4 5 10 12 69 10 11 12 13 Abro- Consoli- gafed dated Order. Order. 1854. June 1. 1 2 4 5 6 7 8 11 12 13 14 15 1855. Jan.l3. 4 5 5 6 8 9 10 37 35 42 35 7 7 7 23 40 40 40 40 40 19 19 37 19 18 18 18 1855. Nov.30. 1 4 IS56. Aug. 1. 2 1856. Nov.12. 35 1856. Nov.15. Rule. 15 58 4 53 5 6 7 20 17 33 34 35 36 13 15 12 3 4 3 1855. July 26. 39 3 39 4 48 49 50 61 1 41 14 2 41 15 3 41 16 4 41 17 5 41 18 6 41 19 7 41 20 8 41 21 9 41 22 Incorporated Orders. Abro- Consoli- Abio- ConsoH Abro- ConsoU Abro- Consoli- gated dated Rule. gated dated Rule. gated dated Rule. gated dated Rule. Order. Oid6r. Order. Order. Order. Order. Order. Order, 1856. 1857. 1859. 1859. Nov.lS . Feb. 2. 37 2 Mar.30. Aug.22 . 10 41 23 1857. July 18. 23 16 34 1 7 1 7 11 12 41 41 24 25 10 17 29 1 , 8 9 1 1 8 9 1857. Jan. 30. 1 1 38 38 1 2 29 2 29 3 29 4 29 1 23 3 11 12 13 10 1859. Apr. 4. 1-29 1859. 41 26—52 10 11 12 13 14 15 16 1 23 23 40 1 23 23 10 8 3 40 13 7 16 1 1 4 39 39 38 1 2 1 1858. July 12. 31 8 Aug. 22 2 3 1 1 14 15 4 38 2 1851 4 1 16 17 18 19 42 23 21 14 1 8 4 39 1 Mar.30. 5 1 4,5 4 39 2 2—15 1 20—32 6 1 4—6 REGULATIONS Subjoined to the Consolidated Orders. Abrogated Order. Regulation. 1807. Feb. 26 Sch. 3 1845. May 8. Ord. 110 .. Reg. 1 1852. Sep. 7 Sch. 5 Oct. 25. Ord. 1. Art. 5. Reg.4, r. 1 Oct. 25. Sch. 1, Part 2. . Sch. 4 Dec. 3 Sch. 5 Dec. 4. Ord. 1 . . 1853. Nov. 29. Ord. 1 1854. June 1. Ord. 9.. June 1. Ord. 103 June 21. Ord. 1 June 21. Ord. 2 . . Sch. 4 .. Sch. 4 Reg. 4, r. 2 3 4 .. Sch. 4 Abrogated Order. Regulation. 1855. Feb. 2 . . .. Sch. 2 July 26.. . . Sch. 5 1857. Jan. 30. Ord. 1.. Reg. 2, r. 3 2.. 1 3.. 2 4.. Reg. 3, r. 1-6 Sch. 1 . . . . Sch. 2 2.. 3 3.. 4 1857.July 18. Ord.5.. .. Sch. 2 Ord. 5r. .. Sch. 4 ( ^1 ) SYNOPSIS OF CONTEMPORANEOUS CHANCERY REPORTS. 1832. 1 M. & K. (L. C); 2 M. & K. (L. C); 3 M. & K. (L. C.) ; Younge (Exc.)i 2.H. & M. (L. C.)i S Sim. (V.-C. Shadwell). 1833. 5 Sim. (V.-C. Shadwell) ; 6 Sim. (V..C. Shadwell) ; 2 R. & M. (L. C.) ; 1 M. & K. (L. C); 2 M. & K. (L. C.)i 3 M. 8r K. (L. C); 1 Y. &-C0II. (Exc). 1834. 5 Sim. (V.-C. Shadwell); 6 Sim. (V.-C. Shadwell); 7 Sim. (V.-C. Shadwell); 1 M, & K. (L. C); 2 M. & K. (L. C); 3 M. & K. (L. C.) ; 1 Y. & Coll. (Exc). 1835. 5 Sim. (V.-C. Shadwell); 6 Sim. (V.-C. Shadwell); 7 Sim. (V.-C. Shadwell) ; 2 Ph. (L. C.) ; 2 M. & K. (L. C.) ; 3 M. & K. (L. C.) ; 1 M. & C. (L. C.) i 1 Y. & Coll. (Exc.) ; 2 Y. & Coll. (Exc). 1836. 6 Sim. (V.-C. Shadwell); 7 Sim. (V.-C. Shadwell); 8 Sim. (V.-C. Shadwell) ; 1 M. & C. ( L. C.) ; 2 M. & C. (L. C.) ; 1 Keen ( M. R.) ; 2 Keen (M. R.); 1 Y. & ColL (Exc); 2 Y. & Coll. (Exc) ; '3 Y. & Coll. (Exc). 1837. 7 Sim. (V.-C. Shadwell); 8 Sim. (V.-C. Shadwell); 9 Sim. (V.-C. Shadwell); 2 M..& C. (L. C); 3 M. & C. (L. C); 1 Keen (M. R.); 2 Keen (M. R.) ; 1 Beav. (M. R.) ; 2 Y. & Coll. (Exc) j 3 Y. & Coll. (Exc). 1838. 8 Sim. (V.-C. Shadwell); 9 Sim. (V.-C. Shadwell) ; 3 M. & C. (M. R.); 4. M. & C. (M. R.); 2 Keen (M. R.); 1 Beav. (M. R.); 7 Beav. (M. R.); 2 Y. & Coll. (Exc) ; 3 Y. & Coll. (Exc). 1839. 8 Sim.(V.-C. Shadwell); 9Sim.(V.-C. Shadwell); 10 Sim. (V.-C. Shad- well) ; 1 Ph. (L. C.) ; 4 M. & C. (L. C. ) ; 5 M. & C. (L. C.) ; 1 Beav. . . (M. R) ; 2 Beav. (M. R.) ; 3 Y. & Coll. (Exc.) ; 4 Y. & Coll. (Exc). 1840. 9 Sim. (V.-C. Shadwell); 10 Sim. (V.-C. Shadwell); 11 Sim. (V.-C. Shadwell); 1 Ph. (L. C); 2 Ph. (L. C.)j 4 M. & C. (L. C); 5 M. & C. (L. C); 2 Beav. (M. R.) ; 3 Beav. (M. R.); 3 Y. Si Coll. (Exc); 4 Y. &Coll.(Exc). 1841. 1 Y. & Coll. C. C. (V.-C. Bruce); 10 Sim. (V.-C. Shadwell); 11 Sim (V.-C. Shadwell); l2 Sim. (V.-C. Shadwell); 1 Ph. (L. C); 5 M & C. (L. C); 1 Hare (V.-C. Wigram); 3 Beav.(M.R.); 4 Beav (M. R.); 5 Beav (M. R.); 7 Jur. ; 4 Y. & Coll. (Exc). 1842. 1 Y. & Coll. C. C. (V.-C. Bruce) ; 2 Y. & Coll. C. C. (V.-C. Bruce) ■ 10 Sim. (V.-C. Shadwell); 11 Sim. (V.-C. Shadwell); 12 Sim. (V C Shadwell); 13 Sim. (V.-C. Shadwell); 1 Ph. (L. C); 1 Hare(V-c' Wigram); 2 Hare (V.-C. Wigram); 4 Beav. (M. R.); 5 Beav' (M. R.); 6 Beav. (M. R.); 7 Jur.; 8 Jur.; 12 L. J.; 4 Y. & Cou' (Exc). 1843. 2 Y. 8c Coll. C. C. (V.-C. Bruce); 11 Sim. (V.-C. Shadwell)- 12 Sim (V.-C. Shadwell); 13 Sim. (V.-C. Shadwell); 1 Ph. (L. C)- 2 Haro (V.-C. Wigram): 3 Hare (V.-C. Wigram); 6 Beav. (M RV fi Beav. (M. R.); 7 Beav. (M. R.) ; 7 Jur.; 8 Jur.; 9 Jur. ;' 12 L. J> ; 13 L. J. Synopsis of Contemporaneotjs Chancery Reports. xli « 1844. 1 De G. Bank. Cases (Bank.); 12 Sim. (V.-C,'Shadwell) j 13 Sim. (V.-C.Shadwell); 14 Sim. (V.-C. Shadwell) ; 1 Ph. (L. C); 3 Hare (V-C. Wigram) ; 4 Hare (V.-C. Wigram) ; 1 Coll. (V.-C. Bruce)f 6 Beav. (M. R.) ; 7 Beav. (M. R.) ; 8 Beav. (M. R.) j 8 Jur. ; 9 Jur. ; 10 Jur. J 13 L.J.J 14 L.J. 1845. 1 De G. Bank. Cases (Bank.); IS Sim. (V.-C. Shadwell); 14 Sim. (V.-C. Shadwell); 15 Sim. (V.-C. Shadwell); 1 Ph. (L. C); 4 Hare (V.-C. Wigram); 5 Hare (V.-C. Wigram); 1 Coll. (V.-C. Bruce); 2 Coll. (V.-C. Bruce) ; 8 Beav. (M. R.) ; 9 Beav. (M. R.) ; 9 Jur.; 10 Jur.; 11 Jur. ; 14 L. J.; 15 L. J. 1846. 1 De G. Bank. Cases (Bank.) ; 14 Sim. (V.-C. Shadwell) ; 15 Sim. (V.-C. Shadwell) ; 1 Ph. (L. C.) ; 2 Ph. (L. C.) ; 4 Hare (V.-C. Wigram); 5 Hare (V.-C. Wigram) ; 8 Hare (V.-C. Wigram); 1 De G. & S. (V.-C. Bruce); 2 Coll. (V.-C. Bruce); 9 Beav. (M. R.) ; 10 Beav. (M. R.) ; 10 Jur. ; 12 Jur.; 15 L. J. ; 16 L. J. 1847. 1 De G. Bank. Cases (Bank.) ; 14 Sim. (V.-C. Shadwell) ; 15 Sim. (V.-C.Shadwell); 16 Sim. (V.-C. Shadwell); 1 Ph. (L. C); 2 Ph. (L.C.); 5 Hare (V.-C. Wigram); 6 Hare (V.-C. Wigram); 1 De G. 6 S. (V.-C. Bruce) ; 2 De G. & S. (V.-C. Bruce) ; 10 Beav. (M. R.) ; 11 Jur.; 12 Jur.; 16 L. J.; 17 L. J. 1848. 2 De G. & S. (V.-C. Bruce); 1 De G. Bank. Cases (Bank.); 15 Sim. (V.-C. Shadwell); 16 Sim. (V.-C.Shadwell); 2 Ph. (L. C); 6 Hare (V.-C. Wigram); 7 Hare (V.-C. Wigram); 8 Hare (V.-C. Wigram); 1 De G. 8r S. (V.-C. Bruce); 4 De G. St S. (V.-C. Bruce) ; 11 Beav. (M. R.); 12 Jur.; 13 Jur.; 14 Jur. ; 17 L. J. ; 18 L. J. 1849. 2 De G. & S. (V.-C. Bruce); 16 Sim. (V.-C. Shadwell); ]7Sim.(V.-C. Shadwell and V.-C. Kindersley); 2 Ph. (L. C); I M. & G. (L. C.) ; 2 M. & G. (L. C); 6 Hare (V.-C. Wigram) ; 7 Hare (V.-C. Wigram) ; 8 Hare (V.-C. Wigram); 1 De G. & S. (V.-C. Bruce); 3 De G.& S. (V.-C. Bruce); 4 De G. & S. (V.-C. Bruce); 11 Beav. (M. R.); 12 Beav. (M. R.) ; 13 Jur. ; 15 Jur. ; 18 L. J. ; 19 L. J. 1850. 1 Sim., N. S. (V.-C. Cranworth); 17 Sim. (V.-C. Shadwell and V.-C. Kindersley); 1 M. &G.(L. C); 2M. & G. (L. C); 3 M. & G.(L. C); 7 Hare (V.-C. Wigram); 8 Hare (V.-C. Wigram); 3 De G. & S. (V.-C. Bruce); 4 De G. & S. (V.-C. Bruce); 12 Beav. (M. R); 13Beav. (M. R.); 14 Jur.; IS Jur.; 19 L. J.; 20 L. J. 1851. 2 De G. & S. (V.-C. Bruce); 1 Sim., N. S. (V.-C. Cranworth); 2 Sim., N. S. (V.-C. Cranworth) ; 3 M. & G. (L. C.) ; 9 Hare (V.-C. Turner) ; 3 De G. 8z S. (V.-C. Bruce) ; 4 De G. 8i S. (V.-C. Bruce) ; 5 De G. 8! S, (V.-C. Parker) ; 1 De G., M. ft G. (Appeal) ; 13 Beav. (M. R.) ; 14 Beav. (M. R.); 15 Beav. (M. R.); 15 Jur.; 16 Jur. ; 20 L. J. ; 21 L. J. 1852. 2 Sim., N. S (V.-C. Cranworth); 17 Sim. (V.-C. Shadwell and V.-C. Kindersley); 1 S. & G. (V.-C. Stuart); 2 S. & G. (V.-C. Stuart); 3 M. 8c G. (L. C.) ; 9 Hare (V.-C. Turner) ; 10 Hare (V.-C. Turner and V.-C. Wood) ; 1 Drew. (V.-C. Kindersley) ; 4 De G. 8j S. (V.-C. Bruce) ; 5 De G. Sj S. (V.-C. Parker) ; 2 De G., M. & G. (Appeal) ; 14 Beav. (M. R.); 15 Beav. (M. R.) ; 16 Beav. (M. R.); 16 Jur.; 17 Jur/; 21 L. J.; 22 L. J.; 1 W. R. 1863. 1 S. & G. (V.-C. Stuart) ; 2 S. & G. (V.-C. Stuart) ; 1 Kay (V.-C. Wood); 9 Hare (V.-C. Turner); 10 Hare (V.-C. Turner and V.-C. Wood); 11 Hare (V.-C. Wood); 1 Drew. (V.-C. Kindersley); 2 Drew. (V.-C. Kindersley); 3 De G., M. & G. (Appeal); 4 De G., M. & G. (Appeal) ; 16 Beav. (M. R.) ; 17 Beav. (M. R.) ; 18 Beav. (M. R.) ; 17 Jur. ; 18 Jur. ; 22 L. J. ; 23 L. J.; 1 W. R. ; 2 W. R. xlii Stnopsis of Contempoeasteous Chancekt Eepokts. 1854. 2 S. & G. (V.-C. Stuart) ; 3 S. & G. (V.-C. Stuart) j 1 Kay & John. (V.-C. Wood).; 1 Kay (V.-C. Wood) ; 2 Drew. (V.-C. Kindersley); 3 Drew. (V.-C, Kindersley) i 3 De G., M. & G. (Appeal) ; 4 De G., M. & G. (Appeal) ; 5 De G., M. & G. (Appeal) ; 6 De G., M. & G. (Appeal); 17 Beav. (M. R.); 18 Beav. (M. R.); 19 Beav. (M. R.); 20Beav,(M.K.); 18Jur.; lJur.,N.S.; 23 L. J.; 24L.J.; 2W.R.; 3W. R. 1855. 1 Kay & John. (V.-C. Wood) ; 2 Kay & John. (V.-C. Wood) ; 3 S. &G. (V.-C. Stuart); 3 Drew, (V.-C. Kindersley) ; 4 De G., M. & G. (Ap- peal); 5 De G., M. & G.'•''• 39 & 40 Geo. 8, c. 36.... Tranter of stock Ord. 27, r. 1. 45 Geo. 3. c. 124, s. 6 BUls of discovery Ord.22,r.l62. 48 Geo. 3, c. 123 Discharge from imprisonment for small debts Ord. 29, r. 4. 6 Geo. 4, c. 87, s. 20 Oaths abroad Ord. 4. 7 Geo. 4, c. 46, s. 9 .... Suits by and against Banking Com- panies Ord. 32, r. 1. 1 Will. 4, c. 36, s. 3 Absconding defendant , Ord. 22. s. 4 .... Performance of decree pro corrfesso Ord. 22. s. 5 .... Serving decree taken pro corfesso Ord. 22. ss. 6, 7, 8 . Rehearing after decree pro confesso Ord. 22. s. 9 .... Absence beyond the seas Ord. 22. s. 10.... Jurisdiction Ord. 22. s. 11.... Appeeirance for defendant in custody Ord.l0,r.l0. s. 12.... Privilege of parliament Ord. 10, r. 4. s. 13.... Privilege of parliament Ord. 22. B. 14 . . . . Bill pro confesso evidence Ord. 22. s. 15,rr. 1 & 2 Attachment for want of answer Ord. 12. rr. 3,4,5,7,8,13 Process of contempt Ord. 10, r. 10. r. 4.. Remand Ord. 22. r. 6. . Solicitor assigned to prisoner .... Ord. 12, f. 4. r. 9. . Lunatic prisoners Ord. 7, r. 3. r. 10 Amendment after attachment .. .. Ord. 12. r, 11 Answer put in by plaintiff or de- fendant Ord. 1 2. r. 12 Answer Ord. 22, r. 5. r. 13 Default of taking pro confesso .... Ord. 22. f. 17 Costs of contempt Ord. 12. r. 19 Writ of assistance Ord. 29, r. 5. r. 20 Answer or affidavit sworn in prison Ord. 12. ss. 16, 1 7 Costs of contempt Ord. 12. 8.18.... Jurisdiction ,.. Ord. 12. 2 Will. 4, c 33 Service of process Ord. 10, r. 7. 2 Will. 4, c. 58 Discharge from contempt Ord. 12. 3 & 4 WiU. 4, c. 42, s. 28 Interest on debts Ord. 42. 3 & 4 Will. 4, c. 49 Affirmation instead of oath Ord. 19, r. 14. 3 & 4 Will 4, c. 94, s. 2. . Registrars Ord. 1, s. 3. s. 10. Decrees Ord. 23, r. 2. S.19. Copies Ord. 36. 4 & 5 Will. 4, c. 82 .... Service of process Ord.lO, rr.2,7. 1 Vict. v. 45, s. 2 Publication of notices in churches Ord. 22. xliv Index op Statutes. Statute. Subject. Reference. I & 2 Vict.c.ll0,s.l3 .. Effect of Judgments Ord.29, rr.6,7. ss.14,15 Charging orders Ord. 26, r. 1. BS.18,19,20 Judgment creditors Ord. 29, r. 6. 3 &4 Vict, t.82, ». 1.... Charging orders Ord. 26. 3 & 4 Vict. c. 94, s. 1.... General orders \ Prelim. Ord. I first note. 4&5Vict.c.52 General order, j Prelim. Ord. ( first note. 5 Vict. c. 5, ss. 4, 5 Distringas Ord. 27. S.30 Transfer of causes Ord. 6. s. 38 Registrars Ord. 1 , art. 3. 5 & 6 Vict. c. 69 Bills to perpetuate testimony .... Ord. 9, r. 6. 5 & 6 Vict. c. 103, s. 3 . . Clerk bf inrolments, clerk of records and writs Ord. 1, art. 1. 6 & 7 Vict. c.73,ss.37— 43 Taxation Ord. 43. 8&9Vict. c. 18 Lands clauses Ord. 34, r. 3. 8 & 9 Vict. c. 105, s. 1 . . General orders 5 Prelim. Ord. I first note. 10 & 11 Vict.c.96 (Trustee Relief.) s. 1 Payment into court Ord. 41. s. 2 Application of fund paid Ord. 41. s. 3 AccOuntant-General Ord. 4. r Prelim. Ord. s. 4 General orders < first note, I. Ord. 41. II & 12 Vict. c. 45, s. 52 SuitsagainstJointStockCompames Ord. 32, r. 1. 12 & 13 Vict. c. 74 Relirf of Trustees Extension Act ... . Ord. 41. 13 & 14 Vict. c. 35 (Sir G. Turner's Act.) ss.14,15 Special case Ord. 23, i. 1. s. 19 .. Administration; taking accounts., i „ .• ?' '" ^• ^ \Ord. 35, r. 3. s.20-24 Administration Ord. 35, j. 3. s. 27 . . Exceptions for scandal, &c. ...... Ord. 16. s. 29 . . Orders of course Ord. 6, r. 10. ».30.. General orders S Prelim. Ord. J first note. 13 & 14 Vict. c. 60 Trustee Act, 1850 Page 473-95. s. 1 . . Repeal of Acts. s. 2 . . Interpretation. ss. 3 — 6 Lunatic trustees and mortgagees. ss. 7 — 8 Infant trustees and mortgagees. s. 9-12 Trustees out of the jurisdiction. s. ] 3 . . ' Uncertainty as to survivor of trus- tees. s. 14 .. Uncertainty as to trustee being alive. s. 15 .. Trustee without heir. s. 1 6 . . Unborn trustee. ss. 17-18 Refusal to convey. s. 1 9 . . Deceased mortgagee. B. 20 . . Persons appointed to convey or transfer. s. 21 . . Lancaster and Durham. ss. 22-26 Trustees of stock. s. 27 . . Chose in action. s. 28 .. Copyholds. s. 29 . . Trustees of lands decreed to be sold. B. 30 . . Trustees of lands decreed to be con- veyed. Index of Statutes. xIt statute. Subject. Reference. 13&HVict.c.60— (coM<.) s. 31 .. Transfer of stock, ss. 32-36 New trustees, ss. 37-42 Application to the court, s. 43 , . Orders in a cause, s. 44 . . Orders to be evidence, s. 4-5 . . Trustees of charities, ss. 46-47 Escheat. B. 48 . . Payment into court of money of infants, &c. s. 49 , , Decree in absence of trustee, s. 50 . . Powers of the master. s. 51 .. Costs, s. 52 . . Writ de lunatico. s. S3 . . Suit may be directed. 55.54, 56 Colonies. 55.55, 57 Ireland, s. 58 . . Title. s. 59 . . Commencement of act. 14& 15 Vict c. 83, S.I— 7 Court of Appeal in Chancery Ord. 31. s. 8 . . Assistance of common law judges in Chancery Ord. 31. ss.9-12 Court of appeal Ord. 31. s. 13... Jurisdiction of Lord Chancellor .. Ord. 31. s. 14.. Lords Justices may sit for Master of the Rolls or Vice-Chancellor . Ord. 31. s. 21 . . Registrars Ord. 1, s. 3. 15 & 16Vict. C.3, s 3.. .. Suits by or against Solicitor of Treasury Ord. 32, r. I. 15 & 16 Vict. c. 51 .... Succession Duty Ord.23,r.9. 15 & 16 Vict c. 55 .... Trustee Extension Act Page 495-9. s. 1 . . Vesting order after decree, s. 2 . . Trustee refusing to convey. s. 3 . . Infant trustee, ss. 4—7 Refusal to transfer stock, ss. 8-10 New trustees. s. 11.. Jurisdiction as to lunatics. s. 12.. Construction of the act. s. 13.. Stamp duty. IS & 16 Vict c. 80 {Masters in Chancery Abolition.) s. 7-9. . Business pending beforethe Masters Ord. 35, r. 61. s. 10 .. Discontinuance of references to Masters Ord. 35. ss. 1 1- 12 Sitting of judges at chambers .... Ord. 35. s. 13 .. Power of judges at chambers .... Ord. 35. s. 14 .. Orders at chambers drawn up by )Ord. 1, art. 3. chief clerks or registrars ) Ord. 35. s. 15 . . Force of orders at chambers Ord; 35. ss. 16-25 Offices of chief clerks and junior clerks Ord. 35. s. 26 . . Business at chambers /H""^- J?' ■"■ |^- \Ord. 35, r. 1. a. 27 .. Adjournment to and from chambers Ord. 35, r. 1. s. 28 . . Procedure at chambers Ord. 35, i. 2. s. 29 .. Judges to direct chief clerks .... Ord. 35, r. 2. s. 30 . . Chief clerks may administer oaths, 1 Ord. 35, rr. 4. &c / and 30. s. 31 .. Attendance before chief clerk .... Ord. 35, r. 30. s. 32 . . Certificate at chambers Ord. 35, r. 47. C. e xlvi Index of Statutes. Subject. Reference. Exceptions to certificate Ord. 35, r. 49. Discharge of certificate Ord. 35, r. SA Masters in ordinary O™-. 35. '• "l- General orders n''j o ' 1 Conveyancing counsel Ord. 2, i. 1. Conveyancing counsel Ord. 2, 1. 1. Conveyancing counsel Ord. 2, i. 1. ( Chancery Amendment.) Bills Ord.9,r.2. Bills Ord.9,r.5. Bills Ord.9,r.l8. Bills Ord.9,r.2. Next friend. Interrogatories Ord. 11, r. 1. Answers Ord. 15. Motion for decree Ord. 33. Exceptions Ord. 16, r. 1. Documents Ord. 42, r. 3. Discovery by plaintiff Ord. 19, r. 6. Documents Ord. 42, r. 3. Swearing pleas, &c Ord. 4. Replication Ord. 17. Motion to dismiss ' Ord. 33, r. 1 3. Witnesses Ord. 19, i. 3. Evidence Ord. 19, r. 8. Evidence Ord. 19, r. 3. Examiners — Depositions Ord. 1 9, r. 7. Evidence by affidavit Ord. 1 9, r. 3. Affidavits Ord. 18. Evidence Ord. 19, r. 13. Witnesses Ord. 19,r. 13. Witnesses Ord. 19, r. 13. Evidence Ord. 13, r. 10. Parties 5 S'Hn „ ( Ord. 10, r. 11. Administration Ord. 35, r. 3. Sale instead oflforeclosure Ord. 35, t. 13. Misjoinder Ord. 7. Declaratory decree Ord. 23. Parties Ord. 7. Revivor Ord. 32, r. 1. Supplement Ord. 32, r. 2. Accounts \ Ord. 35, r. 16. Sale by order or decree Ord. 35, r. 13. Conveyancing counsel Ord. 2, r. 1. Allowance of income Ord. 35, r. 1. s. 58 . . Common injunction Ord. 25. s. 69 . . Evidence by answer 5 Order 15, first I note. o. 60 . . Mistake as to practice \ Prelim. Ord. ( first note. ^s. 61 .. Questions of law Ord. 31. o. 62 .. Legal title Ord. 31. ss. 63, 64 General orders \ ^^f™' ?'"^- ( iirst note. s. 65 . . Examiners' salaries Ord. 19, r. 7. s. 66 .. Interpretation S Ord. 9, r. 2. *^ I Ord. 18. Statute. 15&16Vict.c.80- ■{cmt.) s. 33 .. s. 34 .. ss. . 35-37 s. 38 .. s. 40 .. s. 41 .. B. 43 .. 15 & 16 Vict. c. 86, s. i— 6 s. 7 .. s. 8 .. s. 9,10 s. 11 .. s. 12 .. ss .13,14 ss. .15,16 s. 17 .. s. 18 .. 8. 19 .. s. 20 .. ss. 21-25 s. 26 .. B. 27 .. s. 28 .. s. 29 .. s. 30 .. s. 31-35 s. 36 .. s. 37 .. s. 38 .. s. 39 .. s. 40 .. fi. 41 .. ss. 42-44 ss, , 45-47 s. 48 .. s. 49 .. s. 50 .. s. . 51 .. 8. 52 .. s. 53 .. s. , 54 .. s. , 55 ., s. 56 .. s. .57 .. Index of Statutes. xlvii statute. Subject. Reference. 1S&16 Vict.c. 87.. (Suitors' Reli^.) ss. 6,U,37 General Orders \ Prelim. Ord. < first note. ss. 6-12.. Stamps Ord. 39, r. 3. s. 15 ... . Jurisdiction in Lunacy Page 476. ss. 27, 29. Affidavit office Ord. 1, r. 39. B. 34. . . . Countersigning Accountant-Gene- } Ord. 1, Part 3, ral's cheques \ App. 437. S.41 , . , , Deposit on setting donn appeals and exceptions Ord. 31. ss.SI,S3,54 Suitors-fund f Prelim.^ Ord. 16 & 17 Vict. c. 22 Examiners Ord. 19,' r. 7. 16 & 17 Vict. c. 78 ( Oaths i7> Chancery.) s. 1 . . ^ Commissioners to administer oaths Ord. 4. &. 2 . . London commissioners Ord. 4. s. 3 . . Oath in Channel Islands Ord. 4. B. 5 .. Fees, &c ,.... Ord. 4. B. 6 . . Application of the act to Registry offices Ord. 4. s. 7 • • Chancery of Lancaster Ord. 4. 16 & 17 Vict. u. 137 Charitable trusts Ord. 41, a. 2. 17 & 18 Vict. c. 25 Suits concerning Industrial Societies. Ord. 32, i. 1. 17 & 18 Vict. c. 82 Chancery of Lancaster Ord. 31. 17 & 18 Vict. c. 125 .... (Common Law Procedure.) s. 20 . Affirmation instead of oath Ord. 19, r. 14. 18 8£ 19 Vict. c. 42 Oaths taken abroad Ord. 4. 1 8 & 1 9 Vict. c. 43 Infants' Settlement Act Page 499. s. 1 . . Infants may make marriage settle- ments. 9. 2 . . Proviso as to infants dying iBider age. s. 3 . . Petition to Court — Guardian, s. 4 .. Not to apply to males under 20, &c. 18 & 19 Vict. c. 134, s. 5 . Master of reports and entries .... App. 437. s. 6 . Entering clerks Ord. 1, r. 18. B. 16 Orders at chambers Ord. 35, i. 1. 19 & 20 Vict, u 120 .... SettUd Estates Ord. 41. B. 1 .. Interpretation clause. ss. 2 — 4 Covenants, &c. in leases under the act. B. 5 . . Surrender and new leases. B. 6 • . Contracts, s. 7 . . Trustees of leasing powers, s. 8 .• Evidence. s. 9 . . Execution and effect of leases, s. 10 .. Trustees of leasing powers, s. 1 1 . . Sale. s. 1 2 . . Sale for building purposes, s. 13 . • Minerals, s. 14 .. Streets, &c. s. 15 . . Execution and effect of conveyance. B. 16 .. Petition. ss. 17-18 Consent to petition. B. 19 .. Notice to trustees, s. 20 . . Advertisements ; who may be beard on petition. B. 21 . • Prior application to parliament, s. 22 . . Orders under the act to be recorded. e2 xlviii Index of Statutes. statute. Subject. Reference. 19&20Vict.c.l20— (coni.) ss. 23-25 Purchase money, ss. 26-27 Effect and intention of the settle- ment, s. 28 . . Validity of lease or sale, s. 29 . . Costs. „„ ^ , , ( Prelim. Ord. «.30 .. Generalorders >^ firstnote. B. 31 .. Generalorders Ord. 41. ss. 32-3* Leases for not more than 21 years, s. 35 . . Acts repealed, s. 36 . . Infants lunatics and bankrupts, s. 37-39 Married women. E. 40 . . Act not compulsory. s. 41 . . Interpretation. 8. 42 . . Reversion vested in the crown, s. 43 . . Copyholds, s. 44-46 Extent and duration of the act 20 & 21 Vict. c. 77, s. 70 . . Administration pendente Ule } ^"^ ^' ^'^^' '^ ( note. 21 & 22 Vict. c. 27 Chancer!/ Amendment Act, 1858 ... . Ord. 41. s. 1 . . Commencement and short title, ss. 2—6 Damages. ss. 3, 4, 6 Trial by jury, s. 7 . . Admissions. 8. 8 , , Application of act to Ireland, s. 9 .. Generalorders. 8. 10 . . Chancery of Lancaster. S3. 11-12 Generalorders. 21 & 22 Vict, c. 77 Settled Estates Extension Act Ord. 41. 8. 1 . . Interpretation. 8. 2* . . Building leases. 8. 3 . . Copyholds. s. 4 . . Building leases. s. 5 . . Surrender. 8. 6-8 . Married women. s. 7 . . General order. 22 & 23 Vict c. 35 Law of Property, ^c. Page 500-2. ss. 4—9 Relief against forfeiture. «. 30 ,, Administration on petitions or sum- mons, s. 32 . . Investment. 22 & 23 Vict c. 63 Cases for opinion of courts as to foreign law Ord. 31 23 & 24 Victc. 38 Law of Property, ^c Page 502. s. 9 . . Judicial opinion — counsel. s. 10-12 Investment 8.14 . . Administration of estates. 23 & 24 Victc. 128 Evidence in Chanceru OrH 1Q i- . Alcock .. .. .• 319 Aldborough (Lord) o. Burton .. 317 Aldridge V. Westbrook .. 281,323 Aldworth v. Robinson - . . . . 159 Alexander «. Osborne .. 170,175 Allan o. Holden .. .. 53,116 Allen, Re 343 D. Loder 80 V. Spring .. .. ■• 321 Allfrey ». AUfrey . . 133, 147, 278, 322 Allibonet). Jones .. .. 100,101 Alpha V. Payman . . . . . . 1 22 Alsop D.Bell 239 V. Lord Oxford . . . . 334 Altree v. Sberwin . . • . . . 145 Alvanley (Lord) v. Kinnaird 275, 282 Ambrose v. Nott . . . . ■ • 382 Ames V. Ames . . . . • ■ 246 Amory 1). Brodrick . . .. •• 382 Amyot, Ex parte 206 Anderson V. Johnson .. 83,108 O.Lewis.. .. .. 76 ' V. Palmer . . . . 328 PAGE Anderson v. Stather. . 84, 106, 107, 137 Anderton v. Yates . . . . 137, Ixxv Andrews ti. Walton . . 193, 212, 375 Angell V. Haddon 273 V. Westcombe . . . . 306 Angelo, Re . . . . . . . . 475 Angerstein v. Clarke . . Ixxv Anning v. Lavers . . . . . . 277 Anon.(13 Beav. 420) .. .. 24 (9 Hare, App. 27) . . . . 54 (2J. &W. 553) .. ..56 (11 Jur. 28) .. .. 83,108 (18 Jur. 742) .. .. 260 ^— (18 Jur. 770) .. .. 54 (20 Jur. 324) .. ..75 (1 Jur., N. S. 974) .. ..338 (3 Jur., N. S. 434, 584) . . 249 (3 Jur., N. S. 839) .. .. 9 (4 Jur., N. S. 583) .. ..171 (23L. J. 24) .. 149,285 (2 Madd. 395) .. ..382 (1 Myl. & Cr. 78) .. ..134 (2 Peere Wms. 283) .. 233 (12 Sim. 262) .. ..318 (9 Ves. 221) 116 (12 Ves. 287) .. ..318 (2 Ves.jun. 332) .. ..97 (1 W. R. 12) .. .. 222 (IW. R. 115) .. .. 34 (3 W. R. Dig. 72(L. T.)) .. 95 V. Bridgewater Canal Co, . . 244 Ansdell ». WhitBeld .. ..88 Anstey V. Hobson .. .. ..171 Archer v. Hudson . . . . 44, 228 Armistead v. Durham . . 72, 74 Armitage v. Askham . . . . 494 Armstrong, Ex parte . . . . 483 Arnold v. Arnold . , . . 43, 69 Arrowsmith, Re .. .. .. 498 Ashmall v. Wood 50 Ashton o. Ashton 147 V. Wood 293 Askew «. Pedder .. .. .. 191 V. Peddle 381 V. Poulterers' Company . . 142 1 Table of Cases. PAGE Atkins ». Cooke 318 Atkinson «. Flint .. .. 89,104 • i ». Oxford, &e. Railway- Company .. 151,309 «. Parker .. ..238 Atlee ». Gibson .. .. •• 130 Att.-6en.«. Alford .. ••338 ». Asliburnham.. .. 313 J,. Attwood .. 266,278 ^—^^ V. Brooke ■ • . • 229 ». Bro.wn .. ..110 ». Burch 324 1). Carlisle, Mayor of .. 302 . ». Carrington . . 333, 334 V. Clapham . . 144, 380 V. Cooper . . 66, 67, 1 14 . V. Corporation of Exeter 225 D, of Leices- ter . . 52 1). of Lon-. don.. 71,72,313 V. . of Thet- ford 216 t...Cradock .. 109,111 . V. Donnington Hospital 93, 122 — 0, Dove — ». Drapers' Company — V. Fellows . . — V. Fishmongers' Co. — W.Foster.. — », Hanmer — V, Henderson . . — V. Hill . . . Hudson 313 313 161 .. 71 241, 321 222, 313 .. 125 .. 327 .. 125 - V. Leatliersellers' Co. . . 374 — D.Lewis.. .. .. 138 — II. Marsh . . . . 137 — !), Matthias .. ..222 — V. Mayor of Carlisle . . 302 — V. Monro . . 227, 326 — vt Murdoch . . . . 494 — V. Nethercoat 68, 69, 334, 335 — V- Newbury Corporation 306 — ». Newcombe .. •• 71 - V. Pearson . • . . 52 146 75 222 319, 375 72 u. Poole Corporation ^-^— — V. Stamford, Earl of V. St. Cross Hospital V. Skinners' Co. — ^ — i>. Wakeman i ». Ward 488 , p. Wilson . . . . 208 Attree I). Hordern . . ■• ..113 Aubrey v. Hoper . . . . . ■ 336 Austen V. Smithson . . . . 323 Australian Co. ». Fleming.. 319,320 Aveling ». Martin 174 Ayleso. Cox .. •• 485,490 B. Back, Ex parte . . • • 258, 259 Backhouse «. Wylde .. ..196 Bacon «. Gri6ath 164 Badcock, Re .. .. 476,489 Baddeley ». Curwen .. .. 124 Bailey o. Bailey, • . . . 105, 133 !j. Dnnkerley .. .. 381 ». Gundry.. .. ■■ 316 V. Taylor 60 ». Threlfall .. ..92 Bailey's Trust, Re 338 Baillie v. Jackson . . . . . . 37 Bainbridge v. Moss . . 115, 323 Bainbrigge, Re .. .. ..215 V. Baddeley . . 67, 71, 72, 74, 113, 228, 234, Ixxv D.Blair .. ..198 Baker «. Dean •• .. .. 171 V, Holmes • • . . . . 75 . ». Keen 162 Baldwin 0. Damer . . .. •• 252 Balfour ». Farquharson .. .. 133 Balguy V. Chorley . . 195, 196 Ball D.Carter 142 Bally ». Kenrick .. .. 123,128 Bampton D. Birchall .. 117,237 Band V. Randle •• .. ..50 Bangley, Re 341 Bankroft ». Wentworth . . . . 127 Barber D. Barber .. .. ..110 Barber's Trust 339 Barbridge V. Robinson .. .. 379 Barfield 1). Nicholsoti .. .. 161 Barham v. Longman . . 65, 324 Barker D. Dumaresque .. .. 382 !). Smark 382 D. Wyld .. .. 135,140 Barklay v. Lord Reay . . 90, 1 87 Barley v. Pearson . . . . . . 1 24 Barlow d. Osborne . . . . 275 Barnard v. Hunter . . , . 380 Barnes «. Ridgway . . . . 67 ■ D.Taylor .. .. 109,114 V. Tweddell . . . . 208 V. Wilson 195 Barnewell (Viscountess) u. Cooke 168 Barham v. Longman . . 65, 66 Barrack r. M'CuUoch . . , . 247 Barraud D. Archer .. .. 151 Barrett K. Buck .. .. .. 156 D.White .. .. ,, 237 Barrington, Re 256 Barrington's Settlement, Re . . 501 Barritt D. Barritt 305 Bartholomew, Re 34,1 Bartlett v. Harton . . . . 167, 257 Bartley d. Bartley , . . . 377, 488 Barton, Re 22 TaSle of Cases. PAGE Barton v. Barton . • . . . . £2 V. Kock 249 ». Latour . . . . . . 256 ». Whitcombe . . 34, 80 Bass, Ex parte, Re Stephen . . 256 Bate V. Bate 95 Bateman v. Cooke . . . . 37, 46 ». Margerison .. 48,52,91 Bates o. Brothers 254 V. Christ's College, 124, 127, 379 V.Frost .. 89,103,169,170 Bauer v. Mitford 228 Baugham, Re 346 Baxter's Will 483 Bayley «. DeWalkiers .. ..125 V. Corporation of Leo- minster . . Ixxvi Baylies ». Baylies . . •• ..198 Baynes v. Ridge . . . . 63, 84 Bazalgette «. Lowe .. •• 173 Bean «. Griffiths 43 Beavan v. Burgess . . . . 22 1). Carpenter . . 65, 66, 324 «. Lord Oxford .. ..217 1). Mornington .. 196,226 Beckitt V. Bilborough . . . . 60 Bedwell v. Prudence . . 150, 248 Beecher v. Whitmore . . . . 156 Beetham v. Berry . . . . . . 84 Belcher D. Whitemore .. .. 155 Bell V. Hastings 94 B. Hornby .. .• •• 189 Bellamy ». Coekell .. ..276 Bellchamber 0. Giani .• •• 328 Belton, Ex parte 1S6 Benbow o. Davies . . ..176 Bendyshe, Re .. .. 342,361 Benison o. Wortley . . . . 55 Bennet v. Lee . . . • • • 233 Bennett, Re .. 28,267,314 V. Baxter . . . . • ■ 282 «. Button 192 o. Chudleigh .. 99,103 V. Honeywood . • • • 70 V. Powell 215 Benson 1). Hadfield .. ..116 ». Vernon .. .• .• 195 Bentley «. Craven 264 «. Mercer . . . • • • 255 O.Robinson- •. •■ 55 Bernasconi v: Atkinson • . ■ • 246 Berry, Re 255,340 Bertie v. Lord Abingdon . . 199, 200 Bertolacci B. Johnson •. 68,71 Berwick (Mayor of) v. Murray . . 53 Beseraeres v. Besemeres . . . . 153 Bessant v. Noble 50 Bethune v. Kennedy . • . ■ 203 Betts r. Clifford .. .. 243,327 FAQE Betts V. Menzies . . . . . . 378 Bickford v. Skews . . . . 84 Biddle, Re 476 Biddulph V. Dayrell . . . . 54 ». Lord Camoys 54, 83, 84, 128, 129 Biedermann 1). Seymour .. 70,71,327 Biggs, Re 344 ». Penn .. .. S3, 187 Bilton V. Bennett 164 Bingham v. Hallam . . . . 41 «). Warren .. ..59 Birch V. Cropper . . . . . . 487 Birch's Legacy, Re 256, 341, 342 Birdi;. Heath 191 V. Hustler . . . . 66, 68 V. Littlehales . . . . 213 Birkenhead Docks (Trustees of ) v. Birkenhead Dock Company, 180, 223 V. Chester and Shrews- bury Railway 326 Bishop ». Willis .. •• Ixxv Bituminous Shale Company, Re.. 261 Black V. Colnaghi 249 Blackborough v. Ravenhill . . 265 Blackburn v. Jepson . . . . 225 Blackmore v. Glamorgan Canal Co. 137 ^-^— ^ v. Howett .. .. 55 Blake, Re .. .. 186,212 ». Blake . . . . 41, 68, 69 D.Cox 246 Blake's Settlement,' Re .. .. 362 Blakeley v. Blakeley . . . . 270 Blakeney V. Dufaur .. .. 317 Bland V. Davison 239 K. Larrtb 57 Blannv. Belt 225 Blanshard v. Drew . . 249, 250 Blathwayt ». Taylor .. ..180 Blaxland v. Blaxland . . . . 28 Blenkinsopp v. Blenkinsopp 83, 84 Bligh B. Tredgitt 319 Bloomar, Re . . . . 486, 498 Blount V. Burrow . . . . 323 Bloxham v. Whipham . . 226, 293 Bloye, Re 337 Bloye's Trust, Re . . . . 340, 343 Boddington 8. Woodley . . 66, 304 Boddy II. Kent 41 Boden, Re 481 Boehm v. De Tastet 5, 7, 105, 133 Boger, Re ; 33,64, 76 Bolton, Re 191 1). Ridsdale .. 71,240 1). Stannard .. ..48 Bones v. Angler . . . . . . 76 Bonfil B. Purchas 237 Booth V. Booth 382 B. Tomlinson . . . . 142 lii Table of Cases. Boreham v. Bignall Borough V. Whichcote Botliomley v. Fairfax V. Squires PAGE 90, 91, 93 .. 143 .. 385 116, 307 254 Bottoraley v. Squire Bourdillont).Baddeley, 151, 153,248, 308 Bousfield «. Mould .. ..135 Boutcher v. Branscombe . . . . 95 Bowen v. Price . . . . 95, 96 Bower !). Cooper .. .. 186,213 Bowmer, Re 487 Bowra I). Wright .. .. •■ 486 Boyce v. Cokell 380 Boycott, Re 487 Boyd V. Heinzelman . . ■ ■ 382 V. Jaggar . . . . . . 249 V. Mills 127 V. Moyle 90 Boydell v. Manby 276 Boyes «. Liddell 156 Boys V. Morgan 302 Boyse t). Cockell .. .. 130,131 «. Colclough .. 113,150 Bracltenbury v. Brackenbury Bradberry v. Brooke Bradbury v. Booker Bradley, Re ——^— V. Bevington ■ V. Munton . . 192 230 129 210 367 494 483 279 78,128 64,311 .. 425 .. 227 4, 136 .. 60 .. 483 .. 488 71 Bradshaw, Ex parte V. Bradshaw Bradstock v. Whatley Brain v. Brain Braithwait's Trust, Re Brandon v. Brandon Brandt v. Epps . . Branker v. Massey Brass's Trust, Re . . Brassey v. Chalmers Brattle v. Waterman Bray s. Woodran .. .. ..157 Braye, Re 260 Brealy's Trusts, Re .. 360,361 Breareliffi). Dorrington .. 204,216 Breeze v. English . . . . 66, 156 Brenan v. Preston . . . . 6, 144 Brend ». Brend 181 Brent's Trusts, Re 343 Brett, Re 270 Brewster w. Thorpe .. 245,306 Brlckwood v. Harvey . , . . 164 Bridger v. Penfold 274 Bridget v, Hames . . . . • • 4? Brierley v. Ward 165 Bristed v. Wilkins . . . . 204 Bristow ». Whitmore .. .. 180 Bristowe u. Needham •■ ..198 Broadbent v. Imperial Gaslight Co. 222 Broadstock «. Whatley .. 34,301 FACE Broard v. Wickham . . • . 375 Brocas ». Lloyd .. .. 145,152 Broderip o. Phillips . . ..110 Bromley v. Holland . . . • 375 Bromley II. Smith .. .• 112 Brook V. Brook . . . . . . 488 V.Evans .. .. .. 375 Brooke v, Todd . . . . Ixxvi Brooker ». Brooker . . . . 270 Brookfield B. Bradley .. ..191 Brookman, Re .. .. .. 255 Brooks V. Joblin . . . . . . 54 V. Levey . , . . . . 37 ». Purton .. 110,243,305 Broomhead ti. Smith .. .. 138 Broughton v. Broughton .. ..92 Brown, Re 268 W.Brown .. >. •■ 150 V. Butter 254 V. Dawson . . . • . . 35 e. Douglas.. .. ..110 V. Higgs 225 0. Home .. .. 170,177 K.Keating.. .. .. 127 ». Lee 305 V. Robertson . . . . 243 V. Stanton . . . . . . 84 Browne, Re.. .. .. .. 314 V. Home .. .. .. 174 t). Lockhart .. ..159 Bruce ». Alien . . . . . . 303 ». Taylor 60 Bruiton v. Birch . . . . . . 50 Brunswick (Duke of) v. King of Hanover . . . . . . 75, 77 Bryan ». Wastell .. .. 67,71 Bryson v. Warwick and Birming- ham Canal Company .. ..146 Buckeridge v. Whalley , , . . 285 Buckley, Re . . . . . . 340 B.Cooke .. .. .. 146 Buckley's Trust, Re . . . . 338 Budge ». Budge .. .. .. 113 Bugden I). South 373 Bulkeley v. Earl of Berkeley . . 494 ". Eglinton . . 487 Bull K. Falkner .. .. 104,216 Bullock «. Perkins . . .. .. 320 , V. Richardson . . . . 95 Bunn, Ex parte '. . .. .. 267 , Re Electric Co. of Ireland 285 Bunnett ». Foster . . .. .. 51 Bunyan v. Mortimer . . . . 97 Burch V. Coney . . . . . . 52 V. Rich 59 Burchell, Re ., ,. .. 344 D.Giles .. .. ., 321 Burdin's Will, Re . . . . 350 Burke, Re 34,3 Table of Cases. liii PAGE Burnet V. Theobald .. .. 195 Burney 1). Macdonald .. .. 313 V. Morgan . . . . . . 242 Burrell v. Nicholson . . . . 2, 7 Burry Port Company v. Bowser . . 57 Burt, Re . . . . 475, 477, 494 Burton, Re 321 V. Mattons.. .. .. 164 V. Robertson 110, 302, Ixxvi Busk ». Beetham .. ..15,216,317 Butchardt ». Dresser .. .. 194 Bute's Will, Re Marquis of . . 478 Butler, Re 341 1). Gardener . . . . 243 Butterworth v. Bailey . . 143, 324 Buttler B. Matthews .. .. 171 Byam b. Byam . . . . . . 488 B.Sutton .. .. 10,50 Byde v. Masterman . . 127, 321 Byne, Ex parte . . . . . . 375 B. Potter 157 Byng B. Clark 305 C. Cable or Cabel, Re . . . . 342 V. Cooper ■ . . . . . 142 Caddick's Settled Estates, Re . . 361 • Settlement, Re .,. 28 Cadle B. Fowie . . . . 226, 231 Caillaud's Co. o. Caillaud . . 319, 320 Caillaud B. Caillaud .. ..198 Callender v. Teasdale . . . . 342 Calvert B. Day 317 B. Gandy . . . . . . 1 B. Godfrey 279 Cameron Coalbrook Conjpany, Re 377 B.Cameron -. .. 83 Campbell, Re 314 ' B. Andrews .. .. 317 V. Beaufoy . . 109, Ixxv B.Campbell .. 40,303 B. Moxhay . . . . 276 Candler B. Partington .. ..127 Cane B.Martin ., .. 282,426 Canham b. Neale . . . . . . 40 B. Vincent . . . . 241 Cannan B. Edwards .. ..284 ■ B. Evans 287 Cant, Ex parte 494 Cantley, Re 475 Carew, Ex parte 245 B. Davis 380 Carew's Estate, Re . . . . 275 Carlisle (Lady) b. Lord Berkeley. . 198 B. South Eastern Railway 52 Carnac B. Grant .. •• •. 318 Carpenter, Re . . . . . • 475 Carr ». Paulett .. .. 165,168 FACE Carrick e. Young 382 Carter v. Bernard 326 o. Du Brune .. .. 75 B. Sanders.. .. ..51 Carthew B. Barclay .. .. 159 Cartwright, Ex parte . . 487, 494 B. Shepheard . . . . 237 B. Smith .. 43,115 Cartwright's Trust, Re . . . . 490 Carvick B. Young . . .. .. 158 Carwick v. Young . . . . . . 382 CastB. Poyser .. 147,154,285 Cater's Trust, Re 3+2 Catliii, Re . . . . 269, 288, 3^4, 335 Caton V. Lewis . . . . . . 379 CatorB. Butler 80 B. Reeves . . . . . . 276 Catterall b. Purchase . . . . 233 Cauty K. Houlditch .. ..138 Cawthorne, Re .. .. 340,341 Cazneau, Re . . . . 345, 346 Chadwick b. Chadwick . . 124, 128 Chaffers v. Baker .. 156, 173, 249 V. Headlam . . 49, 50 Chalie b. Pickering . . . . 375 Chalk B. Raine 140 Chalmer b. Bradley . . . . 278 Chalmers b. Laurie . . 47, 56 Chamberlain, Re . . . . . , 340 B. Chamberlain . . 28 Chambers's Settled Estates, Re . . 360 Champneys B. Buchan .. .. 71 Charitable Donations (Commis- sioners of )». Hunter .. .. 226 Charlton B. Richmond .. 117,118 Charlton's Case 376 Charman B. Cbarman .. .. 195 Charton b. Allen 189 Chatfield v. Berchtolilt . . 63, 84 Cheshunt College, Re . . . . 338 Chesterfield (Earl of) B. Bond .. 75 Chichester B. Chichester .. . 153 «. Hunter .. ..241 Chilton B. Campbell .. ..201 Cholmondeley b. Clinton .-. . . 324 Chowick B. Dimes .. .. .. 241 Christian v. Devereux . . . . 203 Christie i>. Cameron . . 55, 77 Christmas, Re .. .. ..19 Christopher b. Cleghorn . . . . 90 -Christ's Hospital v. Granger . .4, 70, 72 Chuck B. Cremer . . . . . . 41 Church V. Marsh 316 Clares. Wood 142 Clark, Re 230,335 B.Clark .. ..88,103,165 i;. Dunn 157 B. Fergusson . . .. .. 317 B. GUI .. .. 148,152 liv Table of Cases. PAGE Clark V. Jaques . . . • . . 243 V. Phillips 280 V. Waters . . . . . . 55 Clark's Devisees, Re . . . . 266 Clarke ■;. Bruges 226 V. Clarke .. 47,56, 171, 191 • V. Law . . 138, 148, 152 V. Mayor of Derby . . 71,74 — D. Tipping 90 ■ V. Woodward . . . . 9 J). Wyburn 230 Clarkson v. Eldridge . . . . 78 Clayton v. Gresham . . ■ • 9 Clegg V. Edmonson . . 122, 378 Clement «. Bowes .. .■ .. 51 -B.Griffith .. 137,139 Clements v. Beresford . . . . 200 ClifFe «. Wilkinson .. 317,320 Clinton, Re.. 260 Cochrane 11. Fearon .. ..318 1). Phillips .. .. 238 Cockburn v. Raphael . . . , 157 Cooks V. Foley 60 C.Stanley .. .. ..95 Codner 0. Hersey .. .. .. 125 Coe's Settlement, Re .. .. 338 Coffin ». Cooper .. .. ..134 Co6eld, Ex parte . . . . 258, 259 Coke V. Fountain .. ., .. 142 Colclough V. Evans . . . . 240 Colebrooke D. Jones .. .. 317 Coleman ». Mellersh .. .. 278 V. Rackham . . . . 92 V. Sarell 192 V. West Hartlepool Rail • way Company . . . . . . 375 Col^s J). Gurney .. .. ..75 Colgrave «. Manley .. .. 282 Collard v. Roe . . 225, 237, 478, 491 Collettt). Preston .. .. 69,70,71 Colley V. Candler 88 CoUingham, Ex parte. Rector of . . 28 Collingwood, Re . . . . 475, 485 Collins V. Collyer . . 103, 164, 165, 170, 175 .— ^— V. Greaves . . . . . . 250 V. Price . . . . Ixxvi «. Stutely 367 Collinson v. CoUinson . ■ 490, 494 Colman v. Northcote . . . . 55 Colne Valley Railway, Re . . 502 Colquhoun, Re . . 281, 316, 323, 335 Colson, Re 346 Colwall V. Child . . Combes v. Proud . . Commerell v. Bell . . B.Hall.. Compton B. Huber. Congreve, Re .. 35 .. 181 237, 240 237, 240 .. 292 334, 335 FACE Conybeare, Ex parte .. .. 488 Conyer's School, Re . . . . 349 CookB. Bolton 282 ». Brorahead.. .. .. 161 B.Hall .. .. 141,142 Cooke- B. Bamfield 233 B.Turner 327 ». Westall 121 Cookson B. Lee • . 55, 197, 227 Coombe v. Ramsay . . . . 70 Cooper B. Dodd . . . . . . 194 B. Earl of Powis .. ..110 B. Everett 292 V. Jones . . . • . . 485 B. Knox . , . . . . 43 V. Lewis . . . . 43, 255 B. Purton 318 B.Taylor 226 B.Wood 76 Cooper's Settlement, Re . . . . 487 Cope B. Parry .. .. ., 121 • B. Russell 80 Coppeard v. Mahew . . . . 59 Cormack B. Beisley .. .. 31 Corry v. Curlewis . . . . . . 250 Coster V. Coster 264 Cotton, Re 333 Cottrell B. Watkins . . ... 285 Coulson's Trust, Re . . . . 344 Coulsting V. Coulsting . . . . 57 Courage B. Warden .. 168,171 Courloy B. Vincent .. .. 204 Course b. Humphrey . . . . 323 Court Grange Mining Co., Re .. 261 Courtney B. Stock .. .. .. 161 Courtois, Re .. .. .. 321 Courtois's Trust, Re . . . . 340 Cousins B. Vas^y . . . . 246, 247 Coventry, Re Justices of . . . . 266 B. Bentley . . . . 324 Covington's Trust, Re . . . . 341 Cowdell V. Tatlock . , Ixxvi Cowper B. Earlof Cowper.. .. 294 B. Scott . . . . 225, 230 Cox ». AlUngham . . .. 71,72 B. Bannister . . . . . . 83 B.Barnard .. .. 47,187 "• Cox 338 B. Taylor go B. Toole . . . . . . 277 Coyle B. Allayne .. 129,130,134 Crabbe b. Moubery . . . . gg Cradock b. Owen . . , . igi^ 292 Craig, Ex parte ' 69 . B. Bolton . , . . ..318 Cramer, Ex parte so V. Cramer . . . . 483, 496 Crawley B. Clarke 187 Creswell b. Bateraan . . , , 237 Table of Cases. Iv PAGE Cresy V. Beavan .. .. ..114 Crewe K. Mertin .. .. .. TJ Cridland v. De Mauley . . 72, 74 Croft V. Beavan 272 Crofts u. Middleton .. 141,145 Crompton v. Wombwell . . . . 239 Crook V. Crook . . . . 23, 137 Cropper v. Mellersh . . . . 48 Cross K. Maltby .. 277,291,293 V. Thomas . . . . 78, 239 Crosse v. Crosse . . , . . . 80 Crouch ». Hickin . . .. 109,110 • ». Waller .. .. 58,319 Cuddy V. Waldron 323 Cunyngham v. Cunyngham . . 225, 229 Curd «. Curd .. «. ..156 Curling v. Marquis of Townshend 121 ». Perring.. .. .. 377 Curzon, Ex parte Viscount . . 333 V. Lord De la Zouch . . 303 Cust V. Southee . . . . . . 63 D. Daglay v. Crump . . . . • • 122 Dakins v. Garrett . . . . . . 96 Dale V. Hamilton 274 V. Hayes . . . . . . 436 Dalton, Re 340,500 V. Hayter . . 69, 130, 252 Dando v. Daudo . . . . . . 264 Danford v. Cameron . . 77, 209 Daniel v. Lord Falmouth . . . . 70 Darbishire v. Home . . . . 156 ' Davenport v. Davenport. . 134, 266, 275, 319 o. Stafford .. 1 8, 1 9, 22 1 ^ 227 Davenport's Charity, Re • . 349, 492 Davey V. Durant .. .. •■ 152 V. Miller 477 David o. Frowd . . . . 264, 273 Davidson, Re 498 1.. Leslie .. 31,245 V. Marchioness of Hast- ings .. .. 75,77 Davies, Ex parte . . . . • ■ 493 . , Re . . . . 206, 487, 494, 495 V. Davies . . . . 140, 255 Davis V. Barrett 243 «. Bluck 234 u. Boulcott . . . . 49, 50 ». Chanter .. 487,488,498 V. Combermere . . • • 385 V. Cripps . . . . . . 321 V. Davis 90 V. Earl Dysart . . 326, 333 V. Hammond . . . • 98 ». Hole 84 ». Lord Combermere .. 279 PAGE Davis I). Prout .. ,. 68,91 ». Rcid 147 ». South-Eastern Railway.. 829 V. Tollemache . . 102, 305 Davis's Estate, Ro 260 Davison ». Robinson .. ..194 Dawson v. Jay . . . . . . 243 B. Newsome . . , . 243 Days. Bezzel 136 ». Croft .. 198,205,256 Dean ». Lethbridge .. ..31 V. Thwaite 278 Dearman V. Wych . . . . ..195 Deaville ti. Deaville .. .. 153 De Balinhard v. Bullock 47, 56, 266, 280 De Beauvoir's Trust, Re . . . . 260 Deeks v. Stanhope. . . . 135, 239 Deerhurst «. Jones . . . . 222 Deering, Ex parte 437 De Geneve v. Hannam . . . . 250 De la Torre v. Bernales . . . . 67 Delevante, Re 270 I). Child 267 Dell V. Barlow 230 V.Hale .. .. ..114 De Micknurtz ». Udney . . . . 305 Dendy v. Dendy 238 Denis ». Rochussen .. 96,126 Dennis's Will, Re 502 Densem v. Elworthy . . . . 48 Dent V. Wardel 320 Denys V. Locock .. .. •■ 114 Derbyshire Railway Company o. Bainbrigge .. .. ..216 Devaynes v. Morris . . 242, 321 V. Robinson . . 49, 52 De Visme v. De Visme .. .. 275 Devonsher «. Newenham .. 109,113 Devoy ». Devoy .. .. 491,496 Dew 1). Clark 100 Dewell ». Tuffnell 274 Dick V. Butler 177 Dickinson, Re . . . . . . 487 Dickson, Re 341 Digby 1). Boycutt . . • • • • 264 Dillon V. Francis .. .. -.59 Dipple V. Corles . . 267, 377, 379 Dixon V. Pyner . . . . . . 274 1). Shum 157 Dobede ». Edwards . . 72, 251 Dodd,Re 37,222 V. Webber ^3 Dodsworth, Re 340 Dolder v. Bank of England 122, 127 Dolly V. Challin . . . . 66, 68, 70 Dolman, Re 318 Donald v. Bather 50 Donee. Read 121 Ivi Table of Cases. PAGE Donevan v. Needham . . . . 385 Donlevy , Ex parte . . . . . . 374 Donne v. Lewis .. .. .,15 Doody V. Higgins 47, 48, 51, 190 Doubtfire v. Elworthy . . . . 256 Douglas V. Archbutt . . . . 150 V. London and North West- ern Railway . . . . . . 259 Dowden V. Hook .. ■• ..57 Dowling V. Hudson .. .. 198 Downing College Case . . . . 326 Dowson V. Solomon ISO, 157, 253 Drake ». Drake .. 124,181,228 i). Symes 123 Dresser v. Morton . . . . 57, 176 Drever II. Maudesley .. .. 318 Drew V, Long . . • • , . 249 Drewery, Re . . . . . . 340 Drought V. Redford . . . . 293 Dryden v. Frost . . . , . . 1 46 V. Walford . . . . 241 Dubois D.Holl .. .. 75,97 Dudgeon ». Corley . . ., .. 323 Dufaur, Re 186 V. Sigel .. ..• .. 322 Duffleld t). Elwes .. .. 186,220 i;. S (urges.. .. 135,246 Duifort V. Arrowsmith . . . . 40 Dugdale v. Johnson . . 328, 329 Duncan !). V arty .. ,. .. 381 Duncombe V. Davis .. ..126 B.Levy ,. .. 90 t/. Lewis .. 67,69 Dunster, Re . . . . . . 345 Durdant «. Redman .. .. 110 Durham (Bishop of) ». Liddell . . 235 Dyer t). Dyer .. .. .. 129 Dyott o. Dyott ,. .. 126,318 Dyson ». Benson . . . , , , 303 Eade V. Lingood ,, .. ..142 Eades D. Harris .. .. ,. 51 V. Williams ,, ,, ,. 142 Earl's Trusts, Re 37 Earp I). Lloyd ., .. 126,324 Bast Anglian Railway ». Goodwin 152 East Lancashire Railway v. Hat- tersley 139 Ecoles V. Liverpool Bank . , 328, 329 Eden t). Earl of Bute ,. ..181 Edge ». Duke . . . . 67, 70 Edgson t>. Edgson . , . . . , 75 Edington v. Banham . . . . 90 Edmeade's Estate, Re , . . . 259 Edmonds II. Nicoll.. .. .. 78 Edmonson ». Harrison . . 204, 265 PAGE Edwards, Re .. 341,342,344 V. Batley .. ..237 ». Edwards . . . . 249 Egremont D. Cowell .. •• 116 V. Egremont . . . . 54 Electric Telegraph Company of Ireland, Re, Ex parte Bunn ,, 285 Electric Telegraph Company v. Nott 139,154 Ellerthorpe, Re 477 Ellice V, Goodson ,. .. 114,330 Elliot V. Halmarack . . . . 375 V. Ince • . . . 58, 320 Ellis, Re 476,497 V.King .. .. 157, 188 Ellison's Trust . , . . 487, 489 Elmslie, Re . . . . . . 41 Elston !>. Elston .. .. 123,158 Elt V. Islington Burial Board . . 326 Eltoft V. Brown . . , .79, 173, 177 Ely (Dean of) t). Edwards 49,237 o. Gayford . . 49, 50 Emerson ». Dallison . . . . 60 p. Emerson .. .. 250 Emery 0. Newson .. .. ..106 Emmott ». Mitchell .. ..114 Empringham ». Short .. ., 212 Empson 11. Bowley.. .. .. 96 England b. Downs . . . . 322, 325 English I). Hayman . . . , 238 Enraght D. Fitzgerald ,. ,. 196 Erskine, Re 341 Esdaile v. Molyneux 43, 114, 127, 129 Esgair Mwyn Mining Company,Re 286 Estcourt V. Ewington . . . . 97 o. Tanner 60 Etty V. Bridges 207 Evans ». Davies .. .. .. 215 V. Evans . . 109, 157, 188 V. Hughes . . . . 68, 69 II. Williams.. 107,108,188 Evelyn M. Chippendale .. ,, 317 Everett, Re 344 ». Prythergch .. ..134 Everson-u. Matthew .. ..57 Ewart M. Williams 278 Eyies V. Ward . . . . 243, 294 Eyre v. Barrow . . . . . . 374 tj. Saunders .. ,, .. 360 Eyre's Settled Estates , . . . 359 F. Fagg's Trust, Re .. ., .,342 Fainhorne t), Weston .. .. 124 Falkland Islands Co. v. Lafone . . 121 Falkner v. Grace . . . . . . 222 Farebrother v. Welchman . . " 201 Farlyt). Child 59 Table of Cases. Ivii PAGE Farquharson V. Balfour .. .. 133 V. Pitcher . . . . 328 o. Seton .. ..113 Farr ». Slieriffe 323 Farrant, Re 487 Farrell o. Smith . . . . . . 273 Farrow v. Rees . . . . . . 333 Faulderc. Stewart.. .. ..95 Faulkner v. Daniel . . . . 50, 1 87 Fearon v. Desbrisay . . . . 232 Feistelt). King's College .. .. 203 Fellowes v. Deere . . . . 66, 320 Fellow's Settlement, Re . . 490, 493 Fellows V. Barrett 319 Fehham, Re . . . . 339, 341 II. Clark . . ! . 92, 187 Fenhoult v. Passevant .. ..134 Fennall r. Brown 139 Fennings v. Humphrey . . . ■ 382 " Fenton v. Clayton . . . . 91 , 94 1). Crickett 334 Fermor o. Pomfret 282 Femes ». Hutchinson .. .. 251 Ferrand v. Corporation of Bradford 2, 64, Ixxv Field, Ex parte 206 , Re 341 ». Titmuss 288 Field's Mortgage, Re . . . . 475 Fieske v. Buller 83 Finch V. Shaw 228 Finden t>. Stephens .. .. 116 Fiott V. Mullius 380 Fisher, Re 478 ». Coffey 137 V. Mee 383 Fitton V. Earl of Macclesfield . . 235 Fitzgerald ». Bult 201 Flack's Trusts, Re 340 Fleet Market, Re, Ex parte Shears 260 Fleming B. East 286 Fletcher, Re 341 r. Dodd 200 ■%. Rogers .. ..180 Flight V. Marriott . . . Ixxv Flintoff 11. Haynes . . . . 329, 385 Flitcroft, Re 485 Flockton V. Slee 238 Fluker, Re 315 Footner ». Figes .. •• 41,44 Ford ». Clough 97 V. De Pontes 377 V. Dolphin 379 I). Wastell 196 Ford's Charity 350 Forman v. Gray . . ■ . . . 69 Forster's Settled Estates . . . . 360 Trusts, Re . . . . 145 Forsyth ». Manton . • . . 243 Fort V. Bank of England Fortescue v. Hallett Foster, Re . . V. Cautley . . V. Menzies. . Fosbrooke ». Balguy Fothergill o. Kendrick Fowler v. Bayldon.. V. Reynal . . V. Reynolds V. Roberts . . 1). Wyatt . . Fox V. Bleu K.Hill V. Mackreth . . Fozard's Trusts Francklyn v. Colhoun Frank v. Basnett . . Frankland ». Overend Frazer v. Gordon . . ■ J). Thompson ', Freeman v. Carmick Freeston v. Clayton French v. Dear Friend v. Solly Frith V. Hopkins . . Fromow's Trust, Re Frost, Re ' . . V. Hamilton Fry V. Man tell i: Richardson Fryor, Re . . Fulham, Re Fullerton v. Martin Fulton V. Gilmore . , Furze v. Hennet . . V. Sharwood . . Fussell V. Elwin Fyler v. Fyler 53, FAOE .. 318 88,103 .. 58 54,55 78, 239 .. 304 .. 385 48,49 .. 52 .. 328 .. 201 .. 119 .. 317 .. 202 .. 229 343, 346 31,212 .. 382 .. 122 .. 327 16, 323,lxxvi .. 75 250, 252 .. 59 327, 333, 334 .. 78 .. 502 .. 488 .. 155 121, 132 .. 117 .. 270 476,493 .. 237 .. 122 .. 269 .. 327 71, 327, Ixxv .. 191 G. Gaffee, Re . . Gandee v. Stansfield Gainsborough (Countess ford Gage B. Lady Stafford Garcias ». Ricardo . . Gardiner v. Downes Gardner v. DangerHeld V. Rowe . . of Garey v. Whittingham Garle v. Robinson . . Garlick v. Lawson . . Garnum v. Marshall Garrard v. Lord Dinorben Garrod v. Holden . . Gartside v. Isherwood Gartside's Estate, Re ) «. Gif- 340 380 122 .. 320 .. 228 .. 494 .. 377 .. 138 97, 323 .. 201 .. 180 .. 75 .. 385 89, 104 .. 234 .. 48s Iviii Table of Cases. PAGE .. 135 .. 374 75, 377, 378 .. 180 75,78 .. 152 281,323 .. 165 367, 382 97,164 .. 181 Gasooign v. Chandler Gascoyne's Case . . Gaskell v. Chambers I). Holmes . . Gathercole v. Wilkinson Gaunt V. Johnson . . V. Taylor . . Geary u. Sheridan . . Gedye v. Duke of Montrose Gee V. Cottle V. Gurney . . George v. Whitmore Gibbsv.Gibbs .• «. Phillipson.. Gibson v. D'Este .. V. Haines . . V. Ingo . . — — ^ V. WeHs u.Woolard 28 Giddings I). Giddings .. .. 318 Gilbert v. Tomlinson . . • • 238 Gill V. Gilbard 22 ». Gillard 137 V. Rayner . . 66, 136, 249, 255 Gillespie v. Alexander . . . . 273 Girdlestone v. Lavender • • . • 276 Glazbrook v. Gillatt . . 205, 255, 256 Gloucester (Corporation of) v. Wood (Mayor of) v. Wood .. 367 .. 412 .. 375 .. 333 90,91 31, 83,209 .. SO Glover v. Cockerell S.Hall V. Powell . . Goddard v. Haslam V. Parr Godson r. Cook V. Hall . . Godwin v. Bell . . V. Coulson . . Golden v. Newton • • Golding V. Castle . • Goldsmid v. Stonehewer Goldsmith v. Goldsmith Gompertz v. Pooley Gooch V. Mars'hall . . Good V. Blewitt . . Goodall V. Gawthorn V. Little . . ». Skerratt.. Gpoday v. Sleigh . . Goodchild t;. Terrett Goode B. West Goodes V. Williams Goodfellow, Re Goodwin v. Archer Gordon v. Jesaon . . Gore »■ Bowser . . V. Purdon . . 228 228, 313 .. 91 378 4, 136, 250 .. 50 .. 134 .. 327 .. 91 .. 63 176,177 .. 290 .. 48 66,67 .. 382 187,211 .. 273 .. 147 .. 378 ,. 236 .. 249 .. 62 .. 337 .. 187 .. 265 .. 317 237, 238 .. 147 .. 232 PAGE Gorely ». Gorely .• -. •■ 328 Gosling f. Gosling 180 Gough V. Brill 385 . D.Davis .. .. ..313 Gould V. Tancred . . 221, 233, 234 Gouldner ». Camm .. .. 187 Gower (Countess) v. Earl Gower. . 293 Graham v. Fitch 97 v. Graham •• .. 331 Grane v. Cooper . . . . . . 377 Grant, Re 290 t). Hibbert 164 V. Stone .. ., ..199 Graver v. Temple . . . . . . 164 Great Northern Railway, Re, Ex parte Mayor of Lincoln . . 269 Greaves, Re . . . . 54, 65 D. Greaves.. .. .. 174 Greedy v. Lavender . . . . 323 Green v. Briggs . . . . . . 326 «. Charnock 318 ti. Harrison .. •• •• 177 i>. Jenkins . . . . . . 233 V. Low 246 ». Meares 328 V. Pledger. . . . . . . 34 Green's Trust, Re. . . . 266, 501 Greenaway i>. Rotherham.. .. 319 Greening ». Greening . . 88, 103 Greenland, Re 346 Greenwood ». Churchill . . , . 334 B.Sutherland.. .. 180 Gregory ». Spencer . . . . 250 Gregson, Re . . . , 377, 378 Greig v. Somerville , . . . 273 Gresley v. Mousley . . , . 380 GreviMe i>. Greville , . . . 331 Grey v. Jenkins 360 Grey-Coat Hospital (Governors of ) V. Westminster Commissioners. . 76, 241 Griffith V. Ricketts . . . . 241 U.Wood 121 Griffiths*. Cowper.. .. *186, 210 V. Griffiths . . . . 282 t). Hatchard . . . . 275 o. Tanner 367 Grimes ». Harrison .. .. 412 Grimsby v. Webster . . . . 204 Grimston «. Oxley 237 Grimwood B. Shave .. .. 230 Grissell v. Peto 275 Gristing v. Hore 59 Groom v. Attorney- General . . 164 D. StiHton 195 Grote V. Bing . . . . . . 265 Grove v. Levi . , , . . . 49 Groves v. Groves . . . , . . 380 ». Lane . . . . 49, 50 Table of Cases. lix PAGE Guibert, Re 483 Guilden Sutton, Ex parte, Incum- bent of 266 GumWeton, Ex parte . . . . 154 Gwyer v. Peterson . . . . . . 40 Gwyn v. Letbbridge . . 44, 227 Gwynne t). Edwards .. .. 221 GwyoB V. Gwyon . . . . . . 246 H. Hackwood v. Lockerby . . . . 84 Haddon B. Pegler . . .. 251,254 Hadland's Settlement, Re . . 341 Hadley, Re.. .. .a .. 487 Hadwen, Re . . . . . . 360 Haggitt V. Iniff 37 Haigh, Re 335 O.Dixon .. .. ..91 Hail V. Camp . . . . Ixxv Hakewell, Ex parte . . . . 58 «. Webber .. ..188 Hales. Ogle 171 Hall V. Austin S3 ». Clive . . . . 238, 239 Halliley v. Henderson . . 289, 291 Ham's Trust, Re 341 Hambrook ti. Smith . . . . 127 Hamby «. Northage .. .. 60 Hammersley, Re . . . . . . 341 Hammond «. Messenger .. ..116 Hamond v. Walker . . . . 76 Hanbury v. Ward 239 Hancock v. Rollison . . . . 250 Hancox ». Spittle . . .. 482,496 Handfield ». Wildes .. 98,105 Handford 0. Handford .. ..181 ». Storie 249 Handley ». Davies. . .. .. 342 Hankey o. Morley . . . . 342 Hanman v. Riley . . . . . . 48 Hannay ». M'Entire .. ..102 Hansford, Re 346 Hanson's Trusts . . . . . . 266 Hardman v. EUames . . . . 378 Harford «. Lloyd .. .. 133,380 Hargrave B. Hargrave .. 19,195 Har^eave's Trust, Re .. 443,446 Hargreaves v. Wright 478, 480, 482 Harmer ». Harris .. .. ..281 Harris, Re 343 «. CoUett 201 • V.Davison.. .. .. 216 o. DeTastet .. ..381 V. Gaudy 40 ». Hamlyn.. .. ..316 1). Cewis . . . . . . 243 Harrison v. Borwell .. .. 185 PAGE Harrison v. Boydell . . . . 200 t'. Corbold . . . . 150 V. Corporation of South- ampton . , . . 194 1). Delmont .. 59,122 V. Mayor of Southampton 148 J). Stewardson .. 4, 46, 171 Harrison's Trust, Re . . 483, 489 Harrold, Re 268 Hart V. Tulk 20, 240, 244, 283, 301 Harte Estate, Re . . 256, 259, 361 Hartnall, Re . . . . 483, 497 Harvey, Re.. .. .. .. 480 ». Brook 28 V. Clark 360 «. Renon .. .. 161,327 !). Smith 329 ». Towell 157 Harvey's Settlements, Re.. .. 314 Hasluck !). Stewart .. ..83 Hatch V. SearJes 288 ». Series 329 Haw V. Vickers . . . . . . 50 Hawes v. Bamford . . . . 137, 243 Hawke v. Kemp . • . . . . 243 Hawker B. Buncombe .. ..191 Hawkes, Re 346 Hawkins v. Day 293 ». Gatheroole ..80,212,218 B.Hall 88 B. Perry . . , . . . 476 Hay B. Willoughby . . . . 222 Haynes b. Ball ..88, 103, 164, 165, 175 Haywards. Hayward 133,147,262,285 — ». Price 133 Hazeldine, Re . . . . 487, 498 Head b. Godlee . . . . 227, 232 HeadingtoUr Re ..~ .. 341,342 Heanly B. Abraham .. .. 136 HeapsB. Commissioners of Churches 230 Hearn b. Way 116 Hearne B. Ogilvy .. .. .< 164 Heath, Re V. Chapman B. Lewis .. Hedges v. Blick . . V. Cardonnel V. Clarke . . B. Harp'ur Hele B. Lord Bexley HemingB. Swinnerton Hemingway, Re V. Fernandes Hemming, Re V. Dingwall Hendersons. Henderson 8. Meggs r, Philipson 221,487 . . 237, 240 34, 63, 106, 162, 239, 240, 241 .. 227 .. 225 .. 9 .. 227 .. 49 .. 204 .. 360 .. 305 339, 341 .. 150 .. 113 .. 165 .. 145 Ix Table of Cases. Hening v. Dingwall • • . . 32ir Henley v. Stone 192 Henna II. Dunn ., .. .. 381 Herbert's Will, Re . . . . 488 Herring w. Clobery .. 124,228 Herritt ». Reynolds .. ..105 Hertford Charity, Re .. ..256 (Marquis of), Re .. 206 1). Lord Low- ther .. 385 I). Suisse . . 43, 78, 253 Hervey v. East India Company . . 212 V. Smith 329 Heslop V. Metcalf 282 Heward I/. Wheatley .. ..222 Hewetson v. Lloyd . . . . 49 V. Todhunter . . 49, 50, 137 Hewitt, Re 481 V. Nanson . . . . . . 277 Hewitt's Estate, Re .. .. 494 Hextall 0. Cheatle .. 4, 141, 149, 152, 286 .. 485 .. 198 .. 66 .. 200 .. 185 .. 127 .. 140 .. 50 .. 327 .. 48 110, 317 77,^3 Hey's Will, Re . . Hibbert v. Hibbert Hichens v. Congreve Hicks V. Hicks V. Keat Higginson v. Blockley Hill II. Binney V. Bonner .. V. Kirwan . . II. Ledbrook .. 1). Reardon • . ti. Rimel -II. The Great Northern Rail- way Hills II. M'Rae Hind o. Whitmore.. Hindson v. Weatherhill Hiorns ii. Holtom . . Hipkins v. Hipkins Hitch II. Wells Hitchcock V. Carew V. Jaques Hobhouse ti. Courtney Hobler, Re ... Hobson (I. Sherwood Hoby V. Hitchcock Hodder v. Haines . . Hodge V. Rexworthy Hodges, Re «. Hodges' Settlement, Re Hodgson, Re ■ V. Hodgson Hodson, Re V. Ball II. Cash Hogan, Re . • .. 53 .. 58 .. 153 .. 276 212, 215 54, 55 .. 142 67,71 76,77 181, 193 203, 212 .. 317 .. 102 .. 290 266, 272 340, 346 341, 487 .. 212 .. 347 .. 234 281, 323 .. 37 Holbrook's Will, Re Holcombe v. Antrobus V Trotter Holden u. H olden.. Kynaston PAGE 491, 497 255 75 153 243 488 119 260 110 43 124, 377 109, 115 .. 268 .. 181 Holder ii. Durbin Holding V. Barton . . Hollick, Ex parte . . Hollingsworth ». Shakeshaft Holloway v. Phillips Holmes u. Baddeley u. Waring - • Hood, Re . . . . • • V. Cooper Hook V. Dorman . . . . • ■ 109 Hooper, Re 360,361 II. Paver 42 Hope II. Hope . . . . 75, 76 II. Liddell . . 143, 163, 154, 378 II. Threlfall .. 150,153,226 Hopkin I). Hopkin.. .. .. 37 Hopkinson K. Love .. ..198 Hordern, Ex parte 259 Horlocku. Wilson 108 Hornby ». Holmes.. .. .. 76 Home ». Barton .. .. 225,227 Horry ii. Calder 94 Horsley v. Fawcett . . 52, 67 Hough V. Riley . . . • . . 9 Howard, Re .. 314,315,477 II. Howard . . . . 142, 285 V. Prince . . . . . . 255 I). Robinson . . . . 378 II. Sewell 149 II. Wheatley . . . . 222 Howell II. Keightly .. ..293 II. Taylor 333 II. WiUiams .. 119,247 Howkins, Re 268 Huddlesea v. Nevile • • . . 68 Hudson II. Carmichael . . 267, 291 ». Dungworth .. ..91 V. Martin 78 Hue, Re 342 Hughes v. Chester and Holyhead Railway .. ..222 V. Clarke 336 II. Gurner .. .. ..195 II. Jones .. .. .. 192 II. Key .. .. 281,322 II. Lewis 250 II. Lipscomhe 95, 106, 135 Huguenin ii. Baseley . . . . 41 Hulkes II. Day 204 Humble ii. Shore 135 Humphrey, Re 487 Humphreys ji. Pensam .. ..142 Hungate ii. Gascoyne . . 233, 234 Hungerford, Re . . . . 258, 259 Table of Cases. Ixi PAGE Hungerford's Trusts, Re . . . . 259 Hunt ti. Elmes 378 o. Niblett 108 Hunter o. Ayre .. .. ..112 ». Nockolds .. 112,305,384 Huntingtower (Lord) ti. Sherborne 208 Hurst V. Hurst . . . . 76, 276 o.Padwick .. .. 316,317 Hutcheon ». Mannington . . .. 37 H-utchinson, Re . . . . . . 345 V. Stephens . . 159, 483 Hutton V. Hepworth . . . . 245 ». Sealey 277 V. Smith 64 Hyde o. Edwards 258 Hyder «. Colman .. .'. ..321 «. Foster .. .. ..75 I. Ingham V. Ingham . . .. 122,133 Inglis V. Campbell . . . . 178, 209 Ingram, Re.. .. .. .. 341 r. Stiff or Stiffee . . . . 367 Innes v. Mitchell 83 Isaac, Re .. .. 186,210,256 Issauchaud, Ex parte . . . . 259 Ivison t>. Grassiot .. .. .. 141 J. Jacobs V. Hooper . . . . ..117 Jacklin v. Wilki^s.. .. 31, 77, 243 Jackson v. Cassiday . . . . 138 V. North Wales Railway 109, 226 V. Norton 110 V. Riga and Dunaburgh Railway .. ..237 V. Turnley . . . . 180 ».Ward 238 V Welch 232 James v. Aston . . . . . . 50 «. Cresswicke .. ..168 V. Dore .. .. 57, 165 V. Gwynne . . . . 283, 291 V. Herriott 249 r. Rice 178 Jaquet V. Jaquet .. .• •• 267 Jarvis's Charity, Re . . 338, 350 Jebb V. Tugwell 237 Jeffray v. McCabe . . . . 1 29, 1 3 1 Jenkin v. Vaughan. . 34, 150, 156, 157 Jenkins V. Bryant .. .. 31,lxxv Jenkyn v. Vaughan . . 157, 253 Jennings v. Devey . . . . . . 33 Jephson, Re . . . . ■ ■ 343 Jervis's Charity, Re . . 338, 350 Jesse V, Bennett . . . . 47, 49 C. PAGE Jesson V. Brewer .. .■ ,.15 Jeudwine V. Agate.. .. .. 282 Joad V. Ripley . . . . . . 266 Job, Re 187,209 Jodrell t). Slaney . . . . . . 123 John ap Edward «. Jenkin . . 59 Johns V. Dickinson .. .. 156 Johnson v. Barnes . . . . 77, 208 V. Compton . • • • 71 o. Tucker 34 Jones, Re .. .. 28,341,342 t). Alephsin .. .. •■ 102 «. Bailey • 277 „. Batten .. .. 64,311 V. Beach • • • . • • 222 u. Brandon .. .. 77, 173 „. Davids HO O.Davis .. .. ..167 z,. Fawcett 319 B. Geddes .. .. 75,83,84 D.Griffith .. .. :. 140 1). How .. .. 47,187 V. Howell . . . . 245, 306 V. James . . . . 46, 47 D.Jones .. 34,71,252,378 ti. Lewis . . . . . . 255 B. LordCharleraont.. 66,69 V. Morgan . . . . . . 250 V. Morrall 270 B. Pugh 124 V. Rose 374 B. Segueira .. •• •• 113 B. Wattier 117 Jones's Settled Estates, Re 28, 275, 359 , Re Morgan 332 Jopling B. Stuart 164 Joseph, Re 344 B.Tyndall.. .. 83,173 Judd B. Wartnaby . . • • • • 192 Kay B.Smith .. .. 153,194 KayeB. Wall .. .. 124,126 Keeling b. Hoskins . . • • 821 Keen, Re 240 Kellaway v. Johnson . . . . 52 Kelson v. Kelson 267 Kemball B. Waldrick .. ..251 Kemp B. Latter 176 V. Squire .. .. •. 195 Kennedy v. George . . 298, 380 Kenrick v. Clayton . • . . 303 Kent, Ex parte 203 B. Jacobs . . . . . . 92 B. Waterhouse .. ■• 133 Kerr b. Gillespie . . . . . . 317 / Ixii Table of Cases. PAGE Kerrick V. Saffery ., .. 71 Kershaw f>. Kalow .. 163,312 Kidd, Ex parte . . . . 190, 233 v. Cheyne .. .. 190,233 Kidger v. Worswick . . 95, 380 Killigfrew K. Killigrew .. ..112 Kimber ti. Ensworth .. .. 187 Kinder 1). Forbes .. .• ..75 King v. Bryant .. .. .. 177 V. King 342 ^. Smith 476 King of Spain ». Hullett .. 68 V. Machade . . 228 Kingsford v. Swinford . . . . 382 Kinsey 1). Kinsey .. .. ..113 Kinshela v. hee ., . . . . 155 Kirkley v. Burton . . . . 59 Kirkman v. Honnor . . . , 76 Kirkpatrick v. Mears • . . . 305 Knatchbull v. Fearnhead . . . . 273 Knight, Re . . . . 338, 342 ■ ». Cawthorn . . . . 90 ». Knight.. .. 264,266 D. Marjoribanks .. 117,118 V. Pocock 90, 190, 237, 241 ■ ». Waterford .. ..126 U.Young .. ■. ..166 Knott V. Cottee, or Coitee 212, 274 Knowles, Re 342 ' II. Broome .. .. 164 ^-^—— V. Rhydefefed Company 112,250,252 Knox II. Brown . . . . . . 249 L. Ladbroke v. Bleadon . . . . 40 Lafone s. Falkland Islands Com- pany 121,144,306,377,379,380 Lainson v. Lainson . . . , 384 Lamb v. Orton 379 Lambe ». Orton . . . . 291, 293 Lambert ti. Hill .. .. 196,243 ti. Hutchinson .. 51,202 II. Lomax .. 64,95,311 ti. Newark . • . . 256 La Mert V. Stanhope ,. .. 251 Lancashire and Yorkshire Railway Company v. Evans . . . . 250 Lancashire Railway, Re, Ex parte Smith 259 Lancaster, Re . . . . . . 57 II. Evors .. .. 124 Lander II. Parr .. .. .. 319 Landon ti. Ready 164, 165, 166, 175 Lane ». Hardwicke . , . . 76 II. Hobbs 191 PAGE Lane II. Oliver •• •• 186,211 Langdale (Lady) ». Briggs ..180 II. Gill 240 Langham n. Great Northern Rail- way 244 Langford ». May . . . . 153, 225 Langley u. Fisher 147, 151, 167, 321 Langstaff II. Nicholson .. 232,234 Lanham «i. Pirie . . 34, 61, 77, 157 Lansdowne v. Elderton . . . . 302 Lantour v. Holcombe .. .. 319 Larmouth v. Simmons . . . . 201 Lash ti. Miller . . . . 238, 239 Lashley v. Hogg . . . . 249, 273 Laslett «. Cliffe 276 Latimer ». Neate .« .. .. 378 Law II. London Life Policy Com- pany .. .. 123,379,380 Lawrence u. Campbell . . . . 377 II. Maule .. 142,145 V. Richmond . . . . 15 Lawriev. Burn 32,108 Lawton v. Lawrence . . . . 201 Lay V. Prinsep . . . . . . 92 Lazarus, Re .. .< .. 342 V. Moseley . . . . 380 Lea, Re 481 Leaden v. Lewin . . . , . . 1 56 Leaman ii. Brown . ■ . . . . 95 Ledwick, Ex parte . . • . 374 Lee 0. Dawson . . . . 120, Ixxvi II. Lee .. .. 241,242 . V. Pasooe 302 II. Read 306 V. Ryder . . . . . . 55 1). Shaw 156 Leeds ii. Lewis , . . . . . 267 Leete v. Jenkins . . . . . . 56 Legard ». Sheffield . . ' . . 140 Legge's Estate, Re . . . . 260 Settled Estates, Re . . 361 Leicester, Ex parte . . . ■ 1 64 Leigh, Ex parte . , . . . . 336 Lenaghan v. Smith . . 47, 52, 97 Lester v. Archdale - . . . . 250 Lethley ii. Taylor . . . . . . 85 Lett V. Randall .. .. 164,175 Levett, Re . . . . 340, 346 Levi (or Lever) ti. Heritage . . 260 Lewellen ». Mackworth . . 232, 233 Lewes, Re .. .. .. .. 476 Lewin a. Moline .. .. ,, 159 Lewis ». Armstrong . . . . 328 II. Baldwin . . . . 75, 77, 83 ti. Clowes . . . . . . 47 II. Cooper .. ., .. 115 ». Evans .. .. ..89 11. Hilman , , . . . . 343 V. Hinton .. .. 195,196 Table of Cases. Ixiii PAGE Lewis V. Pennington 124, 377, 378 Lidbetter v. hofig . . . . . . 226 Like V. Berresford , . . . 243 LiHey's Trusts, Re . . . . 259 Lillie V. Legh . . . . , . 230 V. LilHe 317 Lincoln Chapel, Re . . 349, 492 Lincoln (Ex parte, Mayor of), Re Great Northern Railway . . 259 Lind e. Isle of Wight Ferry Co. 3S1 Lindsay v. Tyrrell . . . . 57 Lingrin o. Lingrin . . . . 55 List's Case.. .. .. .. 375 Lister v. Bell 329 V. Leather . . .*. . . 249 u. Lister .. .. 204,213 Lister's Hospital, Re .. 338,350 Liverpool (Corporation of J v. Chip- pendall .. 133 Livesey v. Harding . . . . 204 Llantrissant, Re Parishes of . . 381 Lloyd, Re 75,186 D.Adams .. .. .. 201 O.Clark .. .. 129,132 O.Lloyd .. .. 90,175 V. Smith . . . . 47, 53 V. Solicitors' Assurance Co. 34 1). Waring.. .. 210,238 D.Whitley .. ..277 ». Whitty 153 Lloyd's Trusts, Re . . 338, 343 Lockhart v. Hardy . . . . 279 D. Riley .. .. ..55 Lodge V. Pritchard . . . . 278 Logan D. Baines . . . . . . 156 D.Grant 167 Loinsworth o. Rowley . . . . 247 London, (Ex parte Bishop of ) .. 260 London and Birmingham Railway Company, Re . . 285 Blackwall Railway f, Limehouse Board of . Works 244, 329, 335 — ^— ^— Brighton Railway d. Shropshire Union Railway .. ..260 • County Assurance Company, Re . . 286 -^^—^— Eastern Banking Cor- poration, Re . . 296 Edinburgh Banking Corporation, Re .. 261 — — North Western Rail- way and Lady Bray, Re . . 260 London, Chatham and Dover Rail- way, Ex parte . . . . 260 (City of) D. Perkins . . 142 GaS' Company v. Spottis- vroode 53,249 / FAQE Londonderry (Marchioness of) d. Brarawell .. .. 151,248 Long D. Storie .. .. 49,50 LongstaiFe's Settled Estates, Re 361, 443, 446 Lonsdale (Earl of) D. Beckett .. 487 Lopdell V. Creach .. .. ..181 Lord V. Colvin . . 145, 148, 223, 297 Lorimer, Re .. .. .• 341 Lorton D. Kingston .. 83,91 Loubier ». Cross .. .. 234,235 Lovell, Re 186,212 V. Blew . . . . 4, 136, 25P f. Galloway .. ..201 Lowe D. Watson .. .. •• 238 V. Williams 34 Lowes D. Lowes . . 237, 238, 247 Lowndes v. Robertson . . . . 319 Lowry ». Fulton .. .. 71,327 Lowten v. Mayor of Colchester 192, 212 Loy D. Duckett 273 Lubiere 1). Genon .. .■ ■• 142 Lucas V Peacock . . 202, 203, 333 Ludgater t). Channell .. -. 199 Ludlow Charities, Leohmere Charl- ton's Case, Re . . . . 375, 376 Lund D. Blandshard . . 47, 62 Lush, Re 477 Lynch D. Lecesne .. 95, 121, Ixxvi M. M'CulIoch V. Gregory . . . . 275 M'Dermott o. Kealy .. 196,232 Macdonald v. Macfarlane . . . . 238 M'Gachen D. Dew .. .. .. 53 M'Greeor D. Shaw. . .. •• 318 Mackenzie D. Claridge .. .. 117 V. Mackenzie 137, 484, 497 M'Keone D. Seaber .. ..120 Mackerel! v. Fisher . . ..69 D.Hunt.. .. •. 66 M'Keverakin d. Cort . . . . 54 Mackreth 1'. Nicholson .. 77,209 M'Intosh V. Great Western Rail- way Company . . 4, 71, 142, 380 Macintyre D. Connell .• •> 110 Maclaren v. Stainton . . . . 75 Maclean v. Dawson 49, 50, 84, Ixxv M'Leod D. Annesley .. ..46 V. Lyttleton . . . . 70 M'Mahon ». Burohell .. ..181 Macnaghten v. Boehm . . . . 44 M'Nsill I). Acton .. .. 145,266 Macrae i>. Elderton . . ■ • 276 Magawley's Trust, Re . . . . 343 Magdalen College D. Sibthorpe .. 71 Ixi^ Table of Cases. PAGE Magnay v. Davidson . . . . 50 D. Mines Royal Company 201 Mainwaring, Re . . . . . 489 Mais, Re 483 Maitlandi). Roger 174 Major V. Arnot . . . . . . 63 I). Major .. ,, ..19 Makepiece v. Romieux . . . . 134 Malcolm D. O'Callaghan .. ..198 V. Scott 227 Malins t;. Price .. .. .- 326 Malone v. Geraghty . . 226, 229 Man V. Ricketts 43, 195, 238, 275, Ixxv Manby v. Bewicke 15, 143, 153, 181, 317, 378 Manchester Railway, Re 259, 321 Company v. Worksop Board of Health . . 305 V. Great Nor- thern Railway 222 Manchester and Sheffield Railway V. Worksop Board of Health 130, 131 Mandeno V. Mandeno .. .. 274 Maniere V. Leicester .. 108,246 Mann v. Hart 318 V. King . . . . 243, 303 Manners V. Furze . . .. .. 198 Manning's Trust, Re . . . . 488 Mansfield (Earl of) «. Ogle .. 292 Mansell v. Bowles . . . . Ixxvi Mapp V. Alcock . . . . . . 244 Marber v. Kempster • . . . 60 March v. Russell 264 Marchant v. Marchant . . . . 385 Marke v. Locke or Turner . . 90 Markwell, Re 350 Marrow, Re . . . . 256, 476 Marsden II. Blundell .. .. 210 Marsh V, Hunter .. f. Ixxvi Marshall v. Mellersh . . 159, 321 Martin, Re 28 V. Hadlow . , 236, 237, 274 11. Norman.. .. .. 108 V. Persse 323 V. Pycroft . . 153, 225, 230 Martin's Case 375 Mash, Re 314 Mason 1). Franklin .. .. 327 1). Wakeman .. 123,126 Masselin's Will, Re . . . . 346 Massie II. Drake .. .. 315,333 Masterman v. Midland GreatWest- ern Railway Company of Ire- land 71 Mather v, Shelmerdine . . . . 57 Mathews v. Chichester . . . . 34 Matthews ». Matthews .. ..188 Matthews's Settlement, Re 488, 491 Maude v. Copeland . . , . ' 93 PAGE Maude v. Maude . . • • • ■ 256 Maund v. Harries 377 Mavor v. Dry 320 Maw D. Topham .. •• •• 275 Mawhood «. Labouchere .. ..91 May ». Biggenden.. .• •• 152 D. Prinsep .. .. ■• 137 ». Selby .. ..48,52,187 Maya's Will, Re 341 Maybery v. Brooking . . 47, 188, 225 Mayer v. Spence . . 154, 243, 382 Maynard, Re .. .. 487,490 Mazzaredo t). Maitland .. 160,161 Mead !i. Lord Orrery .. -.199 Meaden v. Sealey . . . . 198, 244 Mears ». Best 276 Medhurst v. Allison . . . . 1 Meek v. Ward . . 37, 246, 247, 248 Meiklan v. Campbell . . 84, Ixxv Meinertzhagen v. Davis . . 155, 156 Meliorucchy ». Meliorucchy .. 318 Melling v. Bird . . . . . • 259 Mellish I). Williams . ■ • • 233 Mendizabel !J. Hullett .. ..68 Menham v. Robinson . . . . 238 Mennard or Mesnard v. Welford . . 483 Mortens v. Haigh . . . . . . 377 Messer v. Boyle . . . . • . 277 Metcalfe. Archbishop of York .. 218 Meuxu. Bell 290 Meyrick, Re 481 Midland Railway, Re .. ..259 V. Brown .. 326 Mildmay B. Methuen .. 261,384 Miles V. Lingham , . . . . . 55 II. Presland 204 Miles's Will, Re 502 Millar ti. Craig 278 u. Elwin 173 Miller, Re 338 II. Huddlestone .. 46,48 ». Priddon 156 Miller's Trust, Re . . 204, 265 Millican v. Vanderplank . . . . 275 Milligan ti. Mitchell .. ..71 Mills V. Dudgeon .. .. .. 242 ti. Fry 382 Miisington (Lord) v. Earl of Port- more .. ,. ,. •• 75 Miltown (Lord) ». Stuart .. 154,244 Minchin's Estate, Re . . . . 481 Minter, Re 186, 212 Mitchell I). Bailey 327 Mockett, Re 602 Molesworth v. Howard . . . . 124 Mollett V. Enequist . . 201, 202 Monck V. Earl Tankerville . . 320 Mondey v. Mondey . . . . 276 Money, Re . . . . . . . . 340 Table' OF Cases. Ixv PAGE Monkhouse v. Corporation of Bed- ford 228,229 Montefiore o. Guedalla . . . . 24-0 Monypenny v. . . . . 2 13 V. Monypenny 222, 228 Monypeny «. Dering .. .. 197 Moody V. Hebberd . . . . 243 Moore, Re 202, 268 V. Booth . . . , . . 375 • t). Moore . . , . 229, 231 V. Platel 54 V. Smith 321 Moreau ti. Polby . . . . , , 202 Morehouse v. Newton . . . . 278 Mores 1). Mores .. ., 51,187 Morgan, Re 494 t). Higgins 278 ' V. Jones . . . . 54, 75 V. Morgan . . 78, 113, 226 V. Shaw . . . . . . 147 Morison o. Morison . . . . 228 Morley t). Morley . . . . . . 154 V. Rennoldson .. .. 187 V. Richardson . . . . 51 Mornington, Ex parte .. 481,486 (Earl of) II. Smith 251, 252 ■ «. Keane .. " ..316 Morrell ». Tinkler 261 B. Wootten 379 Morrice v. Swahy 379 Morris v. Owen 253 Morritt o. Walton . . 238, 242, 310 Morse v. Tucker 385 Morshead v. Reynolds . . . . 330 Mortimer o. Hartley .. ..109 Moss V. Brown .. .. ..165 II. Buckley . . . . 32, 106, 108 Mountain v. Young . . . . 342 Mourilyan, Re 210 Mousely v. Basnett . . . . 382 Muckleston ti. Brown . . . . 95 Muggeridge's Trust, Re . . . . 501 Munch V. Cockerell . . . . 47 Mundel's Trust, Re 479, 488, 489 Murray ti. Shadwell .. ..113 —^— V. Vipart . . • . . . 76 V. Walter 379 Murrell «. Clapham .. ..319 Murrow ». Wilson . . .. ..318 Muskett II. Hill 335 Mutter V. Hudson . . . . 267, 280 Muttlebury ». Hayward .. .. 31 Mynn ii. Hart 318 Nail ti. Punter 122 Naylor ii. Byland . . . . . . 85 PAGE Naylor v. Wright 73 Neale, Re 272 ti. Norris .. .. ..161 Neate ti. Duke of Marlborough .. 216 V. Pink 156 Neck ». Gains .. 115,117,118 Needhani v. Needham 103, 174, 186, 212, 220 V. Smith . . . . . . 55 Neilson v. Cordell 278 Nelson v. Booth . . 270, 279, 280 V. Seaman . . . . . . 49 Nelthorpe ii. Wright . . . . 98 Nevil V. Johnson . . . . . . 142 Ne?ille v. Fitzgerald . . . . 140 Nevison ti. Stables .. .. 229 New River Company, Re.. .. 260 Newbegin, Re 340 Newberry ii. Benson . . . . 278 Newcastle Bank, Re .. .•261 Newenham v. Pemberton . . . . 75 Newhouse V. Mitford .. .. 191 Newman v. White . . . . . . 305 Newton ». Askew . . . . 203, 375 «. Chorlton .. ..301 0. Dymes.. .. 123,126 ti. Earl of Egmont .. Ill ti. Thompson . . 30, 32 Newton's Will, Re .. ..137 Nicholls II. Haslam . . . . 326 II. Ward.. .. 97,104 Nicholson ti. Jeyes .. 28,332 o. Norton .. ..192 II. Peile . . . . 66, 72, 74 Nicklinu. Patten 129 Nedby ». Nedby . . 243, 264, 302 Noad II. Backhouse . . . . 77 Noble «i. Stow .. .. 232,234 Nokes ». Gibbon .. .. 147,152 Norman v. Mitchell . . . . 222 Normanville v. Stanning .. 154, 244 Norris v. Le Neve . . . . • • 233 Norton ii. Cooper . . . . 225, 230 II. Fisk 78 V. Steinkopf . . . . 246 1.. White 242 Norway !i. Rowe .. .. .. 321 Notley ti. Palmer 237 Nowcll V. Whitaker . . . . 57 Noyes, Re . . ■ . . . . > 361 Nye V. Maule . . . . . ■ 265 Oats 0. Chapman .. .. ,.116 O'Connor ». Sierra Nevada Co. .. 319 Odd Fellows of Manchester, Re . . 483 Ixvi Table of Cases. PAGB Ogden II. Battams . . . . . . 279 1'. Lowry 271 Ogilby ». Gregory . . . . . . 145 Ogilvie B. Heme .. 113,166,232,320 Oglander v. Oglander . . 487, 488 Oldakerti. Hunt 222 Oldalei). Whitcher .. ..316 Oldfield V. Cobbett . . 57, 242, 328, 382 Oldham I). Oldham 102 Oliver 1). Wrigjit 152 Omerod v. Hardman . . . . 225 Ommaney, Ex parte . . . . 476 Onyon u. Washbourne .. .. 215 Ord's Trust, Re 489 Ormerod, Re 498 Ormoqd (Lady) V. Hutchinsons .. 143 Ormsby, Re 198 Orton V. Ricljdale . . . . . . 68 Osbaldiston, Re 270 V. Crowther . . 55, 57 Osborne, Re 314 ti. Foreman . . . . 48 V. Juilion . . 109, 302, 305 Otte ». Castle 346 Ovey V. Leighton . . . . . . 126 Owen V, Dickenson . . . . 288 Page I). Bennett 500 Palmer V. Hendrie.. .. .. 382 Panton ti. Labertouche .. ..317 Parker, Re 340 1). Dee 195 II. Great Northern Railway 244 V. Lloyd . . . . . . 83 .». Morell .. .. ..181 ». Peet 278 Parkinson, Ex parte •• .. 57 ■ e. Chambers .. 57,378 p.Hanbury ..' 35,57 V.Ingram .. Ixxv Parkyn v. Cape . . . . 292, 335 Parnell v. Hingston . . . . 51 Parri). Lovegrove .. .. ..291 Parrot v. Pawlet 60 Parry, Re . . . . . . 338, 342 Parsons v. Groome . . . . . . 205 ' ». Hardy 135 V. Robertson . . . , 377 ». Steel 92 Partington v. Reynolds 234, 270, 318 Partridge II. Usborne .. .. 235 Passmore, Re .. .. .. 318 Patrick ti. Blackwell . . . . 1 22 Patterson II. Slaughter •• .. 122 PAGE Payne «. Little .. 70, 71, 145,319, 411 Peacock V. Duke of Bedford. . 119, 122, 125 II. Sievier ^, •■ 68 Pearce ii. Lindsay . . . . 196, 327 II. Wrighton .. ..251 Pearse 0. Miller 63 Pearson II. Wilcox.. .. ..137 Peart, Re 341 Feck II. Beechy .. .. .. 265 Pedderti. Pedder.. .. ..237 Peers, Re .. ., .. .. 335 Pegge II. Wisden . . . . . . 276 Peile II. Stoddart . . . . 67, 70, 377 Pellatt II.- Nichols 247 Pemberton ii. Langmore . . . . 90 II. M'Gill .. ..97 Pender, Re . . . . 325, 327, 333 Pendergast r. Lushington.. .. 227 Penfold II. Ramsbottom .. .. 115 Penney ii. Goode . . . . . . 379 Percival 1). Caney . . .. 119,122 Perkins II. Bradley 313 Perrot II. Novelli 317 Perry ii. Knott 52 . . . . . 237 Phipps II. Henderson . . . . 296 Pickance, Be 491 Pickard II. Matheson .. .. 191 Pickett ». Loggan . . .. 189,195 Pickford v. Brown . . . . 237, 239 V. Hunter .. .. 113 Picton II. Lockett .. .. ..110 Piddocke D. Smith.. .. 54,261 Pierson II. Barclay.. .. ,. 53 Pieters 11. Thompson . . 121, 382 Piggott 11. Garraway .. .. 182 V. Young . . . . 265, 271 Pigott, Re 202 Pillan 11. Thompson ., ..145 Pinfold v. Pinfold 251 Pinkus II. Peters 53 Table of Cases. Ixvii PAGE Piper V. Gittens 250 Pitt t>. Bonner 199 Pitts o. Short 110 Pitts' Will, Re 502 Player o. Anderson .• .. 317 Plenty v. West 487 Plestow V. Johnson .. .. 319 Plomer v. M'Donald . . . . 43 ■ V. Macdonough . . . . 375 Plyer, Re 478 Pole ti. Joel 153,226 Pollard I). Doyle .. .. 243s 251 Poole V. Gordon 324 V.Wood 199 Pooley V. Quilter . . .j, . . 230 Port Phillip Company, Re ..261 Porter, Re 488 Portman v. Mill 230 Portsmouth v. Lord Effingham . . 233 Potter ». Potter 140 Potts v. Leighton .. .. 198,199 ». Whitmore..71,99,169,170,174 Powell, Re . . . . . . . . 478 V. Aiken 278 ». Calloway . . ..159 o. Cockerell..91, 92, 110, 243, 302 I). Corfield 118 ». Heather 238 ». Martin .. .. 157,188 • V. Matthews . . 475, 478 ». Prentice 97 Powell's Trust, Re 384 Pratt V. Walker 243 Prentice v. Mansel . . . . . . 293 V. Phillips . . 377, 380 I/. Prentice .. .• 51 Preston t>. Collett . . 68, 252, 301, 306 V.Dickenson .. 83,84 Price V. Berrington . . 242, 327 V. Carver 276 o. Dewhurst . . . . 34, 230 • V. Gardner . . . . . . 43 V. Hamblett 239 ti. Webb . . 31, 33, 66, 85, 208 Prichard ». Norris . . .. ..261 Primrose, Re .. .. 487,493 Prince v. Cooper . , . . . . 274 V. Howard . . . . . . i9 Prince of Wales Co. v. Palmer . . 60 Proctor, Re 360 Propert,Re 475 Prothero ». Phelps 382 Pudge V. Pitts 242 Pugh V. Pugh 98 Purcell V. Manning .. .. 293 Pycroft V. Williams . . . . 1 86 Pyke V. Halcombe . • . . . . 63 Q. Quarman o. Williams Queen's College, Ex parte Quilter, Ex parte . . PAQE . 202 . 342 . 315 R. Rabbeth v. Squire • • Radford v. Roberts Raistrick v. Elsworth Ramsdale v. Ramsdale Ramshay, Re •• Randall, Re Ranger «. Great Western Company Ranken v. Harwood Rashleigh v. Mount RatcliiF V. Roper . . Rattenbury o. Fenton Rattray v. George . . Raven v. Kerl . . Rawlins ». M'Mahon V. Wickham Raworth v. Parker . . Rawson v. Samuel . , Rayner v. Julian . . Read v. Barton . . V. Smith Reade v. Bentley . . V. Sparkes . . ■ ». Woodroofe Record and Writ Clerks, Re Reecet). Reece V. Taylor Reedv. Barton .. V. Prest • . Reedley, Re .. Reeve ». Hodson . . V. Richer Reeves v. Baker 242 Rehden or Rheden v. Wesley . . 247 Reid V. Langlois • • ■ • • • 379 Remnant, Re 335 Reynault, Re 487 Reynell v. Sprye . . . . 378, 379 Reynolds ». Godlee . . . . 378 V. Nelson . . . . 250 Rhodes v. Ibbetson . . . . 293 Richards v. Curlewis . . . . 248 ». Platel 230 V. Scarborough Market Company V. Watkins ». Wood . . . 121 . 78 . 254 . 293 . 476 . 483- Railway .. 379 .. 215 .. 329 .. 31 .. 230 ■■ 816 .. 290 10,50 112, 145 .. 247 .. 159 .. 110 .. 121 .. 329 310,412 .. 323 122, 12S .. 37 .. 44 .. 204 76, 306 49, 145, 266 .. 360 22, 143 .. 48 Richards's Tr,ust, Re Richardson v. Bank of England V. Hastings ■ . 31 379 196 490 228 109 Ixviii Table of Cases. PAGE Rickford v. NedrifF . , . . 75 Ridgway ti. Gray . . . . . . 275 V. Newstead . . . . 293 Ridley v. Tiplady 29fi Rigby V. Rigby . . i07, 304, Ixxvi Rigg ». Wall . . 157, 188, 189 Rippin ». Dolman .. .. 286,381 Ritchie v. Humberston . . . . 269 Roberts ». Ball . . . . 214, 342 U.Hartley 305 ■ V. Lloyd 316 Robertson, Re 340 Robey v. Whitewood . . . . 88 Robins «. Mills .. .. 41,426 Robinson, Re . . . . . . 487 1). Anderson ,. ..126 V. Aston.. .. .. 316 «. Brutton .. .. 319 . I). Harrison .. 256,311 V. Hewetson , , . . 240 . ' — B.Lord Bokeby .. 75 V. Milner . . 42, 426 0. Newdick .. .. 195 D.Stanford .. 101,168 V. Thompson • ■ ..109 r V. Wall 324 . — V. Wood 204 Robinson's Trust, Re • ■ . • 344 Robson ». Cranivell .. 195 ■ t). Earl of Devon . . .. 171 Roby ti. Scholes 186 Rochdale Canal Co. v. King . . 380 Rochfort V. Lambert . . • . 186 Rockv. Cook 215 Roddam v. Morley 222 Rogers :>. Challis 367 V. Fryer 67 ». Goore 188 ■ u. Hooper .. .. 135,145 ' V.Jones .. .. 49,50 V. Kirkpatrick .. ..165 0. Mort . . 146, 285, 286 Rolle's Charity, Re .. ..350 Rooke V. Lord Kensington .. 180 Rooper v. Harrison . . 34, 95, 135 Ross, Re .. 341 Rotherham v. Bateson . . . . 293 Routh V. Tomlinson 142, 149, 152, 154, 286 Rowland V. Sturgis .. ..140 Rowlatt V. Cattell 243 Rowley ». Adams . . 228, 256, 475, 479, 481, 490, 496 1). Burgess . . . . . . 264 D. Eccles 109 V. Ridley 146 Royal Bank of Australia, Re .. 222 ' British Bank, Re . . , . 266 Royce ». Cokell .. .. ,.380 PAGE Royle V. Wynne . . • • • • 382 Rumbpld V. Forteath 267,331, 378, 380 Rump 1). Greenhill.. 110, 265,269,270 Rumsey v. Rumsey . ■ ■ • 28 Rundle «. Rundle 40 Russel V. Buchanan •• .. 335 Russell, Ex parte . . . . 483, 489 V. Asby . . . . . . 102 ». Dight 133 V.Lucy .. •• ..187 D. Nicholls.. .. 327,333 Rutley B.Gill 275 Rye's Trusts, Re .. .. 266,346 St. Giles, &c. Trust, Re 338 — John (Lord)«. Lady St. John. . 13* — Thomas's Hospital, Ex parte.. 259 — Victor V. Devereux . . 43, 57 Sale V. Kitson 48 Saloman V. Stalman .. .. 137 Salmon «. Dean .. .. 109,114 «. Green .. . ..92 Sampson v. Pattison . . . . 277 Sanders V. Benson . . .. ..110 I.. Homer 496 Sanderson v. Walker .• .. 192 Sandys v. Long .. .. .. 316 Saner ». Deavin .. .. 159,241 Sarum (Mayor of) v. Episc. of Sarura .. .. .. .. 125 Saumarez, Re . . . . 476, 490 Saunders «. Druce.. .. 109,293 V. Richardson . . . . 228 V. Walter. . 55, 261, 262, 267, 278, 280, 292 Savage v. Hutchinson . . 22, 137 Savory v. Barber . . . . . . 48 Saward V. Macdowell .. ..261 Sawyer v. Birchmore . • . . 147 Say «. Creed 180 Sayers, Re 340 Sayre v. Cramp . . . . . , 223 Schneider t). Lizardi .. 109,116 Scolto ti. Stone . . . . . . 40 Scott, Re 194 V. Jackman . . . ■ . . 275 I). Liverpool Corporation 150, 222 ». Miller 124 V. Platel 199 V. Wheeler . . . . 32, 108 Sea Fire and Life Assurance Com- pany, Re The . . . . 194, 222 Seddon v. Connell . . . . 49 Seidler, Ex parte Slg Seilaz ». Hanson 318 SenWouse 1). Earl 113 Table of Cases. Ixix PAGE Senior ». Pritchard .. .. 201 • V. Wilkes 41 V. Wilks 426 Sergison v. Beavan . . 76, 201 Sewell V. Ashley . . . . 266, 269 (i.Godden 78 ». Moxoy 269 Sharp J). Carter .. .. 176,213 Sharpe, Re ,. .. 339,341 o. Blondeau . . . . 63 Sharpley's Trusts, Re . . . . 51 Sharshaw «. Glbbs . . . . 256 Shaw V. Forest 243 I). Hardingham . . . . 49 Shears, Ex parte, Re Fleet Market 260 Sheffield Town Trnstees, fix parte 260 Shelley v. Shelley . . . . 328 Shepherd v. Churchill . . 482, 486 Sheppard v. Harris . . . . 54 Sherwin D. Shakespeare .. 194,275 Sherwood I). Beveridge .. 181,275 ■ ». Rivers .. .. 91 1). Vincent .. 4,142 Shewell B. Jones 200 ti. Shewell . . . . 264 Shine v. Gough 232 Shipton «. Rawlins ..52,53,187 " Shirley v. Earl of Ferrars . . . . 381 Short V. Downer .. .. •* 164 Shrewsbury and Birmingham Rail- way V. Stour Valley Railway . . 223 Shrewsbury School, Re .. .. 256 Shrine v. Powell . . . - .,65 Sliuttleworth v. Shuttleworth . . 55 Sibbald v. Lowrie 144 Sibbering ». Earl Balcarras .. 316 Sidden V. Liddiard.. .. ..381 Sidebottom v. Adkins . . . . 96 V. Sidebottom . . 40 Sidgier v. Birch . . . . 374, 375 . t). Tyte 164 Siffken v. Davis . . . . 48, 276 Silver o. Stein 49 Simes jj. Eyre . . . . . . 62 Simmonds B. Wood .. ..165 Simmons v. Heavyside . . . . 244 0. Wood . . 106, 168, 170 Simpson ti. Barton .. ..170 B. Sadd 382 Simpson's Trusts, Re - . . . 502 Skarf». Soulby 1S6 Skidmore's Trust ■• .. •• 321 Skeffington v. • . Ixxv Skegg V. Simpson . . . . 186, 209 Skey ». Garlike 114 Skitter's Mortgage, Re . . . ■ 478 Skrine B. Powell .. .. 65,324 Skrymsher B. Northcote .. .. 191 Slack V. Evans 321 PAGE Sladden i'. De Lasaux . . . . 238 Sleight V. Lawson . . . . 270, 278 Sloggatt B. Viant 318 Sloggett 11. Collins . . . . 66 Sloper, Re 490 Smallwood v. Rutter . . . . 343 Smith, Re .. .. 314, 326,342 , Re Compton . . . . 329 , Ex pane, Re Lancashire Railway .. ..259 V. Acton . . . . 182, Ixxv — V. Andrews . . . . 49 r. Armstrong . . . . 292 B. Boucker .. 486,491 V. Bryan .. 109, 110, 119 V. Earl of Effingham .. 326 u. Groves . . . . . . 90 r. Guy . . 40, 279, 281, 282 B. Hammond .. .. 316 V. Harwood .. ..193 B. Horsfall .. ..238 B. Hurst 216 V. Lakeman . . . . 375 ». Officers of State for Scot- land 313 V. Pawson . . • • . . 57 B. Robinson . . . ■ 277 V. Smith . . 63, 320, 478 B. Spilsbury .. ..269 V. Swansea Dock Co. 139, 154 8. Target 60 B. Webster • . . . 2 B.Wells 157 Smyth, Re 490 Smyth's Settlement, Re . . 489, 497 South Eastern Railway CompanyB. Submarine Telegraph Co. 249, 324 South Wales Railway, Re . . 494 Southwaite b. Spensley . . . . 292 Sowdon V. Marriott . . . . 227 Sowry B. Sowry . . . . . . 260 Spearing b. Lynn . . • . . . 232 Spencer, Re 342 -V. Allen 215 B. Mostyn 243 Spicer b. Dawson . . . . . . 148 Spooner b. Payne . . . . . . 170 Spooner's Estate, Re . . . . 332 Sprye b. Russell 254 Stacey b. Southey 264 Stafford ». Higginbotham . . .. 316 Stahlschmidt B. Lett .. ..157 Staines b. Rudlin . . . . 276, 277 Stainton B. Carron Company . . 279 V. Chadwick 44, 124, 228 Standish b. Radley . . . . 232, 233 Stanhope v. gtanhope . . . • 437 Stanley ». Bond . . 63, 166, 175, 204 V. Heane . . . . . . 92 Ixz Table of Cases. PAGE Stansfield v. Hobson . . . . 48 Stanton ». Percival.. .. 135, HO Staples, Ex parte .. .. •• 258 — , Re 34,1 Starteu o. Bartholomevr . .40, 319, 426 Stebbing v. Atlee . . . . 149, 286 Steed V. Calley 55 Steedman v. Poole 250 Steel «. Gordon 77 ■ V. Parsons . . . . . . 92 Steele v. Plomer . . 75, 77, 79, 84 B. Stewart .. .. 124, 377 Stent ». Wickens 126 Stephen, Re, Ex parte Bass . ■ 256 Stephens, Ex parte . . . • 259 ». Guppy .. 195,196 V. Heathcott . . . . 248 • V. Lord NewborougU . . 137 V. Wanklin .. .. 146 Stephenton v. Gardiner . . . . 302 ». Mackay .. .. 251 Stevens, Ex parte .. .. •. 256 V. Keating 243 V. Lord Newborough . . 327 D.Williams .. ..319 Stewart, Re . . 49, 489, 498 ■ D.Stewart 318 Stinton «. Taylor . . 69, 136, 252, 307 Stobart t). Todd 146 Stocken «. Stocken,. .. .. 225 Stone ». Davis 73 V. Van Heythusen . . . . 282 Storer ». Great Western Railway Company .. .. 98,105 Storey B. Lord J. G. Lennox .. 379 Storr B. Pannell , . . . . . 54 Starrs B. Benbow .. .. .. 226 Streetin B. Whitmore .. 212,215 Strickland b. Strickland . . 109, 320 Strong, Re 500 B. Moore . . . . 47, 270 Strother, Re 314 ». Button 156 Stroud B. Norman . . . . . . 343 Stroughill 11. Gulliver . , 267, 293 Strutin ». Whitmore .. ..186 Stuart, Re 490 B.Lloyd .. ..70,71,250 Stubbs B. Mollineux .. ..881 B. Sargon . . . . . . 225 Stupart B. Arrowsmith . . . . 51 Sturge, Re 340 8. Dimsdale . . 327, 335 Sturgeon v. Hooker . . . . 229 Sturges B. Morse . . . . . . 148 B. Paley 255 B. Williams .. ..218 Stutely, Ex parte 343 FACE SuflBeld (Lord) B. Bond . . . . 34 Suisse B. Lord Lowther .. 113,227 Sullivan b. Sullivan . . . . 40 Summerfield B. Pritchard . . .. 377 Sunderland, Ex parte Freemen and Stallingers of 259 Sutherland v. De Virenne . . 49, 50 Sutton Harbour Company b. Hit- chins 249 Swallow B. Binns . . . ■ 49, 50, 51 V. Day 122 Swan B. Webb 274 Swanzy B. Swanzy.. .. .. 318 Swayae v. Swayne . . . . . . 203 Swift B. Grazebrook . . . . 227 Swinborne B. Nelson .. .. 124 Symonds v. James . . . • 202, 203 T. Tanner B, Strutton 132 Tarbuck b. Greenall . . . . 48 ». Tarbuck .. ..315 B. Woodcock .. 117,323 Tarleton b. Barnes . . . . ..112 Tarlton b. Dyer 85 Tarrant b. Lloyd . . . . . . 50 Tate B. Leitbead 237 Tatham B. Parker . . .. ..213 Taylor, Re 186,212 B. Ansley . . . . 54, 55 V. Attwood . . . . 209 B. Fisher 305 B.Jardine.. .. 189,215 B. Milner . . , . 182, 303 B.Oldham.. .. .. 40 B. Rundell 379 B.Salmon.. .. 105,379 B.Sharp 232 V. Southgate . . . . 225 V. Taylor . . . . 97, 234, 235 Teague V. Richards .. ..156 Teed v. Beere 288 Telford B. Ruskin 121 Temple, Ex parte . . .. ,. 375 Tench b. Cheese 321 Teuton b. Clayton 94 Tewart b. Lawson . . . . . . 275 Thatcher v. Lambert . . . . 121 Thickuesse b. Acton . . . . 97 Thomas, Re 499 B. Bernard . . . . . . 246 B. Dunning .. ..48 B. Earl of Jersey . . 75, 83 B. Montgomery . . . . 264 B. Rawlings . . 324, Ixxvi . Hyde 71 . V. Jefferyes . . . . 204, 216 B.Penny 324 . V. Watts 238 Waugh, Re 476 Wayv. Foy 228 Wayn ». Lewis . . . . . . 276 Webb ti. Byng 222 ■ ». Grace . . . . . . 41 — ^ t). London and Portsmouth Railway .. .. ■■ 194 B.Salmon .. .. 76,77 Webster, Re 259 B.Taylor .. ..213 PAGE Webster b. Threlfall . . . . 59 Wedderburn t). Wedderburn 113,261 Weeding, Re . . . • 475, 494 Weightman b. Powell 67, 99, 164, 172 Welch B.Welch .. .. 91,92 Welford B. Daniell.. .. 104,168 WellesleyB. Duke of Beaufort .. 376 V. Lord Mornington 57, 144 B. Wellesley .. 57,109,196, 230, 316 Wells B.Wales 198 B.Wood 122 West B. Laing 269 B. Smith 266 ». Swinburne . . . . 40 Westby b. Westby . . 204, 212, 216 Westfield «. Skipwith . . . . 324 Westhead b. Sale 493 Weston B. Filer 486 B. Haggerston . . . . 232 V. Jay .. .. .. 133 Wetherhead v. Blackburn . . 302 Weymouth b. Lambert . . . . 76 Whalley B. Whalley .. .. 31 Wharton u. Swann.. .. 68,71 Wheal Virtue Mining Company . . 261 Wheat V. Graham . . 131, 304, 305 Wheatcroft b. Hickman . . . . 226 Wheatley ». Wheatley ..4,136,2.51 Wheeler, Re . . . . 476, 490 Whittuck B. Lysaght .. .. 148 Whistler b. Aylward . . . . 186 Whitaker B. Leach . .. ..195 White B. Gobbold 122 B. Greathead .. ..317 17. Lady Lincoln .. ., 199 B. Tussell . . . . 146, 225 Whitehead v. Cunliife . . 59, 122 B. North .. 191,282 Whitehouse ». Partridge . . . . 102 Whitelocke b. Baker . . . . 57 Whitfield B. Lequeutre 171, 253, 275 B. Prickett . . . . 204 B. Roberts . . 276, 277 Whitlock B. Marriot . . . . 59 Whiteman b. Wheelton . . , . 247 Whitmore b. Ryan . . . . 83, 84 n. Sloane .. .. 129 Whittingham b. Wooler . . . . 60 Whittington ». Edwards . . . . 270 B.Gooding .. ..49 Whitton B. Jennings .. .. 164 WhitworthB. Whitworth .. 4,251 B. Whyddon . . . . 226 Wickenden n. Rayson 196, 273, 277 Wickham ». Nicholson . . . . 277 Wigan B. Rowland . . 153, 208, 2+7 Wigham b. Measor . . 276, 277 Wight's Estate, Re . . . . 260 Table of Cases. Lxxiii PAGE Wightman ». Wheelton 119, 120, 149, 154, 247 Wilcocks V. Butcher . . . . 385 Wild ». Gladstone Ill ti. Hobson .. .. .. 113 Wilding V. Bolder . . . . . . 488 1). Richards . . , . 237 Wiles ». Cooper 323 Wilford 0. Beaseley .. .. 142 Wilhelm «. Reynolds . . 153,208,247 Wilkin o. Nainby. . 99, 162, 255, 302 Wilkins «. Reeves.. .. ..48 V. Stevens 41, 186, 210, 426 Wilkinson v. Stringer .. .. 152 t). Fowkes . . . . 53 Wilks V. Groom . . . . 478, 482 Willan V. Willan 227 Willes V. Levett 382 Williams, Re .. 28, 332, Ixxv f. Broadbead . . . . 1+3 I). Davis . . . . . . 241 V.Douglas .. 134, Ixxv V. Goodchild . . . . 225 - V. Jackson - V. Jones . . - V. Mellish - V, Newton - V. Page . . - V. Parkinson 239, 240 88,375 ..235 .. 170 52,195,196,251 ..89,104,168 ■ V. Prince of Wales Assur- ance Company 377, 378 V. Roker . • V. Rowland V. Salmond V. Thompson ti. Townshend V. Williams Williams's Estate, Re Settlement, Re Trusts, Re 478 251 51 164 88 145, 153, 247 475, 477, 478, 491, 500 .. 338 .. 342 .. 296 .. 182 126, 324 .. 192 .. 33 .. 55 .. 155 Williamson ». Jeffreys V. Parker . Willis V. Childe . . B. Parkinson Willoughby's Charity, Re Willyams v. Hodge Wilson V. Applegarth ». Bates 102 . I). Eden 222 V, Edmonstone . . . . 55 W.Foster 258 ■ V. Goodman . . . . S3 - i>. Maddison . . . • 385 V, Ouchterlony . . ■ . 238 I). Wilson .. ..68,181,198 Wilson's Estate Bill, Re . . 361, 363 Wilton V. Clifton 125 Wilton «. Hill 53 ». Jones . . . , . , 48 v. Longdon .. ., 211 V. Rumball . . . . 157 V. Rumbolt . . . . 93 Wiltshire, Re 270 Wimborne Union (Guardians of) v. Masson . . . . . . . . 68 Winchelsea », Garrely .. .. 202 Wing U.Harvey 379 Winnall v. F^atherstonehaugh ..4, 70 Winteringham's Trusts, Re 480, 491 Winthrop v. Elderton . . 111,152 Winthrop «. Murray .. 67,250 Wise, Re 485 Wisewold, Re 186 Withara t). Salvin 91 „. Witham .. .. 375 Withey u. Haigh 328 Withington v. Withington . . 48.'5 Wood V. Beetlestone . . 486, 491 ■;. Farthing . . . . 44, 228 ...Griffith .. 220, 229, Ixxv u. Harper 37 t. Hitchings .. .. 128 V. Midgeley 109 0. Scarth .. .. 148,152 D.Story .. .. .. 154 V. Vincent 202 Woodburn v. Grant . . . . 247 Woodburn's Trust, Re 340,341,493 Woodcock V. King . . . . 249 V. Oxford Railway . . 328 Woodgate's Settlement, Re . . 488 Woodroffe b. Daniel 123, 127, 377 Woods, Re 339 ». Woods .. 127,196,321,323 Woodward v. Conebeer . . 88, 89 Woollard's Trusts, Re . . . . 343 Wormsley v. Sturt . . . . 286, 287 Wortley i. Birkhead .. 113,234 Wragg ». Wragg .. .. 136,150 Wright, Re 340 V. Angle . . . . 34, 250 V. Barlow . . . ." . . 249 V. Green . . . . . . 98 D.Irving .. .. 41,426 B. King .. .. 31,245 1). Pickstock . . . . 237 K. Tatham 249 V. Wilkin . . . . 146, 147 Wright's Trust, Re . . 343, 344 Wrixon w. Vize .. .. ..177 Wroe I). Clayton . . . • . . 88 Wrottesley v. Bendish . . . . 56 Wroughton v. Colquhoun . . . . 333 Wyatt V. Sadler 282 Wycherley v. Barnard . . . . 293 Ixxiv Table of Cases. PAGE Wyllie V. EDice . . . 114,318 Wylly's Trusts, Re .. 342 Wynne v. Hughes .. 113 *. Humberston . . 378, 380 Yarnall v. Rose . . Yarroway v. Hand Yates, Re . . V. Lighthead V. Plumbe Yearsley v. Budgett 7). Yearsley Yeatesj Re 115,117 .. 72 .. 500 64, 237 .. 28 .. 171 41,43 .. 259 PAGE Yeatman «. Mousley . . . . 63 Yeoman ». Haynes . . 288, 329 York and North Midland Railway v. Hudson .■ 293,386 Young, Re 346 V Goodson . . . . 75 1). Keighley .. ..233 V Quincey . . . • . . 250 ii.Ward .. .. 48,49 Younghusbaud v. Gisborne . • 216 Yow o. Townsend . . . . 232 Zulueta ». Vinent 78, 171, 305 ( Ixxv ) ADDENDA ET CORRIGENDA. Preliminary Order, . As to the power of the Court to relax General Orders, and as to such Orders becoming obsolete, see Wood v. Grif- fith, 19 Ves. -550 ; Cooper, P. C. 465 ; Pariinson v. In- gram, cited 8 Ves. 359 ; Man v. Rickeits, 1 Ph. 530 ; I* hi J. 255 ; 9 Jur. 543 ; Bainbrigge v. Baddeley, 3 Mac. & G. 414. The case of Ferranrf V. Corporation of Brad- ford is also reported 21 Beav. 422. P. 15, line 33 For " 3 Smith," read " Sid. Smith." Ord. 1, r. 20 The Court will act on notes on counsel's briefs if they all agree, although no entry or corresponding minute ap- pears in the Registrar's book, Anderton v. Tates, 15 Jur. 833. Ord. 1, 1. 32 Order drawn up in the Registrar's office in the absence of defendant not to he set aside, unless error shown, Smith V. Acton, 26 Beav. 559. n il 9 1 OR f-4/''*''"As to the settlement of leases under the Settled r ofl ^' \ Estates Act," instead of" See Ord. 41, r. 24," read " See "°* ■^'' t Ord. 41, p. 359, and Re Williams, 8 W. R. 678." Ord. 8, r. 3 Order of course for change of solicitor, which had been ob- tained at the Rolls, on suppression of material facts, was discharged with costs, Jenkins v. Bryant, 3 Drew. 70. Ord. 6, r. 5 Where, by decree on appeal, the Lord Chancellor reserved further consideration, the cause is not to be set down on further directions before him, Flight v. Marriott, 12 Jur. 487. Ord. 7 Note to 15 & 16 Vict. c. 86, s. 44, Maclean v. Dawson is also reported 27 Beav. 21 ; on appeal, 4 De G. & J. 150. Ord. 7, r. 2 FasseU v. Elwin is also reported 7 Hare, 29. Ord. 8, r. 1 Irregularity of bill or answer, being without signature of counsel, cannot be waived by taking a step in the cause, Wall V. Stuhbs, 2 V. & B. 358. Solicitor who inserted scandalous matter in an answer, and put counsel's signa- ture to it without authority, committed and ordered to pay costs, Bishop v. Willis, cited in note to Williams v. Doug- las, 5 Beav. 83. Ord. 9, r. 1 Original defendants, under the former practice, were not served with subpoena to appear and answer amended bill, except where further answer was required from them, Skeffingtan v. , 4 Ves. 66 ; Angerstein v. Clarke, 1 Ves. jun. 150 ; Hail v. Camp, 1 Dick. 108. Ord. 10, r. 3 As to conditional appearance, see Maclean v. Dawson, 4 De G. & J. 250 ; 7 W. R. 438 ; 5 Jur., N. S. 663 j 28 L. J. 742; Pirie v. Webb, 2 Hare, 511. Ord. 10, r. 7 Maclean v. Dawson is also reported 27 Beav. 25 ; on ap- peal, 4 DeG. & J. 150. After " Meiklan v. Campbell, 24 Beav. 100," add " See as to administration of the estate of a testator domiciled abroad, Campbell v. Beau- foy, 1 John. 320." Ixxvi Adhenda et Cobeigenda. Ord. 10, r. 8, note..For "Thesameruleas to service of affidavits," read "The same rule as to .service of suSpoeno." Ord. 1 0,r. 10, note.. For "As to compelling attendance of Attorney-General," read " As to compelling answer of Attorney- General." Ord. 1 2, i. 6 Instead of " Ibid. 345," read " An order for vfhich was for- merly of course after the issue of the writ, Daniell, Ch. Pr. 315." Ord. 14, r. 8 Defendant not required to answer may demur to part of the bill without answering the rest. Burton v. Robertson, 1 John. & H. 38. Ord. 15, first note. ."Zee v. Dawson is also reported 1 John. & H. 37. Answer to amended ■ bill should be intituled " To the amended bill of complaint," Rigby v. Rigby, 9 Beav. 311. Ord. 15, r. 1 /ifter " Lynch v. Lecesne, 1 Hare, 626," add " See contra, Marsh v. Hunter, 3 Mad. 437." Ord. 19, r. 1 As to costs on dismissal on bill and answer, see Ord. 27 April, 1748 (not incorporated in the consolidation); Cowdell v. Tatloek, 3 V. & B. 19j Bayly v. Corporation of Leominster, 1 Ves. jun. 476 ; Mansel v. Bowles, 1 Brown, C. C. 403 ; 2 Dick. 646. Ord. 21, r. 8 Order for a cause to stand over till an infant attained his majority, Brooke v. Todd; 6 Jur., N. S. 664. Ord. 21, I. 12 .. ..Jfter " Harvey v. Renon, 12 Jur. 455," add " of solicitor who was ill, Collins v. Price, C. P. Coop. 494." Ord. 22 By 22 & 23 Vict. c. 149, s. 1, the Masters in Ordinary are relieved from the duties of visiting prisons. By sects. 2, 3, the solicitor to the Suitors' Fund, or some other person appointed by the Lord Chancellor, is to periodi- cally examine prisoners confined in the Queen's Prison for contempt. By sects. 4, 5, 6, provisions are made for the relief of defendants brought to the bar of the Court, and persons committed to any prison other than -the Queen's Prison, under any writ or order of Chancery. Sect. 13 regulates the jurisdiction of the Lords Justices and other Chancery Judges under the Act. P. 169, line 22 .... Fir " relating," read " relate in." Ord. 23, r. 2 For "3 &' 4 Will. 4, c. 34, s. 10 " read " 3 & 4 Will. 4, c. 94, s. 10." Ord. 23, r. 9 For " returned as false statements," read " returned on false statements." Ord. 25 For "on a bill of discovery payable by defendant," read " payable by defendant to a bill of discovery." Ord. 31, r. 2 For " Monhhouse v. Corporation of Bra4ford," read " Monk- house V. Corporation of Bedford." Ord. 35 By 22 & 23 Vict. c. 149, s. 10, an additional Chief Clerk to the Master of the Rolls is appointed. Ord. 40, r. 4 Fraxer v. Thompson is reported also 29 L. J. 402. Ord. 42, r. 3 Statement in answer that defendant received communi- cations "whilst acting as the solicitor," or " either as creditor or as the solicitor," will not protect from dis- covery, Thomas v. Rowlings, 27 Beav. 1 40. Ord. 42, 1.9 See Earl ((f Mansfield v. Ogle, cited in note to Ord. 35, r. 51. Ord. 42, r. 14 .. ..See as to the practice as to vacating Receiver's recogni- zances, Seton on Decrees, 549. Page 476, line 30. .For " interested " read " intrusted." Preliminary Order. The Right Honorable John Lord Campbell, Lord High Chancellor of Great Britain, by and with the ^advice and assistance of The Right Honorable Sir John Romilly, Master of the Rolls, The Right Honorable the Lord Justice Sir James Lewis Knight Bruce, The Right Honorable the Lord Jus- tice Sir George James Turner, The Honorable the Vice- Chancellor Sir Richard Torin Kinderslet, The Honor- able THE Vice-Chancellor Sir John Stuart, and The Honorable the Vice-chancellor Sir William Page Wood, Doth hereby, in pursuance and execution of all powers and autho- rities enabling lum in that behalf, order and direct in manner following : — By the Act to amend the Practice, &c., of Chancery (15 & 16 Vict. c. 86, s. 63), the Lord Chancellor, with the advice and assistance of the Chancery Judges, or any three of them, may, from time to time, make General Rules and Orders for catrying the purposes of that Act into effect, and for certain other purposes relating to the Act, and, so far as may be found expedient, for altering the course of proceeding thereinbefore described ; such Rules and Orders may be from time to time rescinded or altered by the like authority, and all such Rules and Orders shall take effect as General Orders of the Court. By sect. 64, all General Rules and Orders of the Lord Chancellor, with such advice and assistance as aforesaid, are to be laid before Parliament, and may be annulled by a resolution of either House within a given time. The Orders of August, 1841, were made in pursuance of 3 & 4 Vict. c. 94 and 4 & 5 Vict. c. 52, and thereby became binding as if enacted by Parliament, subject to the power of either House to annul them within a given time. In CaUert v. Gandy, 1 Phil. 518, Lord Chancellor Lyndhurst reluctantly held that he could not relax one of these Orders on his own authority ; adding, that to avoid this difficulty his Orders of 1328 were issued as Orders of the Court only. The Act 8 & 9 Vict. u. 105, enacted that Rules and Regulations made under the Acts just mentioned and that Act should be deemed General Rules and Orders of the Court of Chancery, and thereby enabled the Court to relax the terms of the Orders of 1841, Medhurst v. Allison, 4 Hare, 479. See First Report of the Consolidators of the Chancery Orders. By 13 & 14 Vict, c 35 (An Act to diminish delay, &c., in Chancery), the General Orders thereby authorized take effect as enactments subject to the power of either House to annul them in a given time. Other enactments enabling the Lord Chancellor to make Orders in pursuance of them are 10 & 11 Vict. >;. 96 E. B d 2 Pkeliminaet Obdee. [I] (Trustee Relief), s.i; IS & 16 Vict c. 80 (Masters in Chahcery Abolition), s. 38 ; 15 & 16 Vict. ^. 87 (Suitors Relief), ss. 6, 14, 37 : 19 & 20 Vict c. 120 (Settled Estates), s. 30. See as to the power of judges to enlarge or abridge time, Ord. 37, r. 17. By Order 44, Lord Chancellor Bacon's Orders of 1618—19, "Where any order upon the special nature of the case shall be made against those General Rules, there the Register shall plainly and expressly set down the particulars, reasons and grounds moving the Coart to vary from the General Rule." Beames' Orders, 22; Sanders, 115. And this practice is recognized by Ord. 23, r. 2. By sect 60 of the Chancery Amendment Act, 15 & 16 Vict c. 86, "In case any directions herein contained with respect to the practice and course of proceeding in the said Court of Chancery, shall, by mistake of the parties, fail to be followed in any suit or proceeding in the said Court, it shall be lawful for the said Court, if it shall think fit, upon payment of such costs as such Court shall direct to make such Order, giving effect to and rectifying such pro- ceedings as may be justified by the merits of the case." See note on Prelimi- nary Order, Art. 5 ; and Smith v. IVebster, 3 M. & Cr. 244. The Orders are not absolutely imperative, Burrell v. Nicholson, 6 Sim. 212. The Court has power to dispense with General Orders, Ferrand v. Corporation of Bradford, 20 Jur. 360. Abrogation of prior Orders. 1 (a). Prom and after the fourteenth day of February, 1860, all the (3^eneral Orders of the High Court of Chancery which have been at any time heretofore made, shall be abrogated ; and in lieu thereof, the Orders hereinafter expressed shall constitute the Creneral Orders of the said Court ; except that — Exceptions. (1.) All the Orders now in force relating to or connected with the Masters in Ordinary of the said Court, or their reports, or the business of their offices, or the further pro- ceedings upon their reports, unless otherwise regulated by the now existing practice, shall, so far as such Orders relate thereto, continue in full force until the same sfiaH be other- wise abrogated, or until the business of the offices of the said Masters shall be finally closed, and the matters arising thereon wound up and determined, when all such Orders shall there- upon become ipso facto totally abrogated. See Ord. 35, r. 61, as to the transfer of the Masters' power to the Judges at Chambers. (o) Each paragraph to which an arable numeral, not inclosed in parenthe- tical marks, is prefixed, is designated a Rule ; and each paragraph of a Ruls to which an arable numeral, inclosed in parenthetical marks, is prefijsed, is designated an Article. There are very few instances, however, of the subdi' vision of a Rule into Articles. The Rules to which asterisks are prefixed are wholly or partially new. At the top of each page of this book the correspond- ing page of the authorised edition of the Consolidated Orders is indicated by figures in brackets. [2] Preliminary Order. 3 (2.) The Orders of the 6th of May, 1837, so fbi- as regards suits or matters commenced or Originated before the 20th of May, 1837, and the 4th Order of the llth of November, 1841, so far as regards suits or matters commenced or originated before that day, shall, as respects the ascertainment or selec- tion of the Court to which such causes or matters are or ought to be attached, remain unaffected by the abrogation herein- before made (6). (3.) The abrogation aforesaid shall not extend to or affect any of the following Orders : — The Orders relating to the Suitors' Fund, or the Suitors' Fee Fund, or the Solicitor to the Suitors' Fund. • The Orders of the 26th of May and 4th of November, 1725 (as to the custody of suitors' money and effects), ■which ai-e recited in the statute 12 Geo. L c. 32. And the Orders of the 1st of August, 1741, and the 28th of August, 1828 (as to Exchequer Orders and Bills),— the Order of the 1st of November, 1841 (as to Exchequer Powers of Attorney), — the Order of the 8th of July, 1842 (as to Income Tax), — the Order of the 27th of July, 1852 (as to certain office routine),— and the Orders of the 4th of March, 1846 (as to the drainage of settled estates) (6). The First Report of the Consolidators of the Chancery Orders, states that as the Orders relating to the Suitors' Fund and Suitors' Fee Fund, which are very numerous, do not affect general practice they are not incorporated in the Consolidated Orders, but left unabrogated. See as to Solicitor to Suitors' Fund, 15 & 16 Vict. c. 87 (Suitors in Chancery Relief), ss. 51, S3, 54. See also Ord. 12, r. 5 (Pauper Prisoners in Contempt), and Ord. 35, r. 23 (Pro- ceedings in Chambers). The statute 12 Geo. I. c. 32, relates to the constitution of the office of the Accountant-General. The Orders recited in that statute are mentioned in the Order of August 1, 1741, which is here retained unabrogated. (4.) So far as any Order relates to any fee now payable in any office, or to any officer, of the said Court, and no pro- vision is made by the Regulations subjoined to these Orders as to fees in such office, or to such officer, such Order shall not be affected by the abrogation aforesaid. [3] (5.) So far as any Order made before the 30th of January, 1857, and then in force, relates to Court fees or Solicitors' fees, such Order shall continue in force, for the purpose only of regulating Court fees and Solicitprs' fees incurred before the 1st of February, 1857. (6.) Orders of a merely personal or temporary character shall not be affected by the abrogation aforesaid. (i) These Orders are printed in the Appendix. b2 4 Peeliminaby Obdek. [3] (7.) Orders relating exclusively to the Common Law side of the Court shall not be hereby affected. Megulations not affected. 2. The abrogation hereinbefore made shall not be deemed to extend to any rules put forth by the authority of the Judges of the said Court, not purporting to be General Orders, but purport- ing to be mere Regulations. Old Suits, SiC, to be governed hy the same practice ly which they are now governed. 3. All suits and proceedings instituted at any time or times heretofore, and now governed by a practice of an earlier date than the present practice, shall continue to be so governed, except so far as these Consolidated Orders introduce any new practice. In some cases, however, old suits will not be governed by the Consolidated Orders which introduce new practice : thus by Ord. 9, r. 23, bills filed before Nov. 2, 1852, and amended subsequently are exempted from the operalion of Orders prescribing a new mode of printing bills. As to the effect of discharging former Orders and the effect of New Orders on existing practice, see Wheatley v. Wheailey, 7 Beav. 577 ; Christ's Hospital V. Granger, 10 Jur. 37 ; Winnall v. Featherstonehaugh, 9 Jur. 1054 j and 10 Jur. 235 : Lovell v. Blew, 13 Sim. 492; S. C. 9 Jur. 1002. In Brandt v. Epps, 4 Hare, 343, it was held, that where a party had acquired a right under an Order, its repeal did not take that right away. But in Whitworth v. Whitworth, 10 Jur. 3, it was held, that in such case the party was thrown back upon the practice prior to the repealed Orders. But see Glocer \. Powell, 9 3 nr.lObi. See also Harrison v. Stewardsoa, 2 Hare, 533. In Sherwood v. Vincent, 9 Hare, App. 19, oral examination of aparty not allowed under a decree made before the Chancery Procedure Act, 1852, came into operation. Evidence directed to be taken in accordance with that Act in a cause at issue before it came into opera-' tion, M'Intosh v. Great Western Railway, 1 Sm. & G. 4 ; Hextall v. Cheatle, ibid. 78. Practice peculiar to Claims. 4. The practice peculiar to Claims shall continue in force with respect to Claims filed, or to be filed, before the fifteenth day of February, 1860. (See Ord. 8, r. 4.) Established practice originated in or sanctioned by Orders hereby abrogated. 5. Notwithstanding anything hereinbefore expressed, the abro- gation hereinbefore made shall not affect any practice of the said Court, or any practice or usage of, in, or connected with any of the offices of the said Court, or the officers thereof, which origi- nated in, or was sanctioned by, any of the Orders hereby abro- gated, and is now existing, except so far as the same may be [3] Peeliminaet Order. S inconsistent with anything hereinafter contained. (See First Report of the Consolidators.) In Boehm v. De Tastet, 1 Ves. & Beam. 324, the Lord Chancellor observed that much of modern practice was inconsistent with subsisting Orders without any contradiction of them by subsequent Orders; and that repeated decisions forming a series of practice against an Order amounted to a reversal of it. [4] No revival of things abolished hy abrogated Orders. 6. Where any of the Orders hereby abrogated were intended to abolish any oflBce, writ, practice, matter, fee or thing, such abro- gation shall not have the effect of reviving the same. Construction and operation of Consolidated Orders, where there is no variation. 7. Every Order or part of an Order hereinafter contained which is a repetition, without variation, of an Order or part of an Order hereby abrogated, shall receive the same construction as was put on such abrogated Order or part of an Order, and shaU. operate, not as a new Order, but in the same manner, whether as to the time of operation or otherwise, as such abrogated Order or part of an Order would have operated if this consolidation had not been effected. (See First Report of the Consolidators.) Construction and operation thereof, where there is variation. 8. Every Order or part of an Order hereinafter contained which is a repetition, with variation, of an Order or part of an Order hereby abrogated, shall receive the same construction as was put on such abrogated Order or part of an Order, and shall operate, not as a new Order, but in the same manner, whether as to the time of operation or otherwise as such abrogated Order or part of an Order would have operated if this consolidation had not been effected, except so far as such variation indicates a contrary intention. And where the variation is of such a character as to be reasonably attributable, not to a variation of intention, but simply to a design to harmonise the style or language of the several Orders hereinaiter incorporated, such variation shall not be deemed to indicate any such contrary intention. Time rvhen new Orders shall take effect. 9. All such Orders or parts of Orders hereinafter contained as are entirely new Orders or parts of Orders, and all such Orders or parts of Orders hereinafter contained as, having regard to the last preceding Rule of this Preliminary Order, shall be properly deemed to be new Orders or parts of Orders, shall take effect on 6 • Preljiunaby Osdi:b. C^J the fifteenth day of February, 1860, as to suit9 and matters now depending or hereafter to be commenced or originated. Interpretation Clause, .: 10. In these Orders the following words have the several mean- ings hereby assigned to them, over and above their several ordinary meanings, unless there be something in the subject or context re- pugnant to such construction, viz. : — (1.) Words importing the singular number include the plural number, and words importing the plural number include the singular number. (2.) Words importing the masculine gender include females. f- (3.) The word "person" or "party" includes a body politic or corporate; and the word "person" means any person, whether a party to a suit or proceeding or not. (4.) The word "bill" includes information. (5.) The word "plaintiff" includes informant. (6.) The word "affidavit" includes affirmation and attesta- tion upon honour; and the word "sworn" includes afltened and attested upon honour. (7.) The word "receiver" includes consignee and ma- nager. The term " manager" or " consignee" is sometimes used instead of " receiver" with respect to certain kinds of property — as mines, collieries and West Indian estates. See Brenan v. Preston, 2 De G., M. & G. 813 ; see p. 840, and Daniell's Ch. Pr. 1018. (8.) "The Accountant-General" means the Accountont- General of the High Court of Chancery. (9.) The "Bank" means the BaoJ^ of England, or the Governor and Company of the Bank of England. (10.) The word "decree" or "order" includes a dismission. (H.) In the Eules at the end of which the Orders of the 30th of March, 1859, are referred to, the word "party" means any person appearing at the hearing of the cause, or of the application respectively, as the case may be ; and when any period is therein specified, the same shall (except as to decrees and orders made in vacations) be computed exclusive of vaca- tions. (30th March, 1859; Ord. 1.) The Rules here referred to are Ord. 1, rr. 20 — 32. [6] (12.) In the Eules at the end of which the Orders of the 22nd of August, 1859, are referred to, the word "money" includes interest or dividends on stock or securities, or any accumulations of interest or dividends. (22nd Aug 1859 • Ord. 1.) vs. The Eules here referred to are Ord. 1, rr. 4, 5, 6, 8, 10, 18 — 16; Ord. 23, rr. 3 and 7 ! Ord. 40, r. 40. [6] Preliminary Order. _ 7 Preservation of General Orders. — Index thereto. •11. For the better preservation of these and all future General Orders of the said Court, (except Orders relating to the Suitors' Fund, or to the Suitors' Fee Fund, or to the Solicitor of the Suitors' Fund, or to mere tr&nsfers of causes specified by name, and Orders of a merely temporary or personal character,) the originals as signed by the Judges, and (where the originals are in writing) correct printed copies thereof, authenticated by the signature of the senior Eegistrar for the time being, shall henceforth be deposited and kept in an iron chest provided for the purpose ; and the Clerks of Records and Writs for the time being shall take care that an Index be made of such Orders according to their dates in a book to be fcept for that purpose^ and deposited in the said chest, and the said chest shall be kept at the Record and Writ Clerks' Office locked up ; and the key thereof shall be in the custody of the Clerks of Records and Writs for the time being ; and a duplicate of the said book and duplicate printed copies of such Orders shall be kept at the Report Office, and be accessible in the same manner as the other Indexes and Orders there kept. And two copies pf the collection of Orders by John Beames, Esq., published by Reed and Hunter, in the year 1815, and two copies of the collection of Orders by George WUliam Sanders, Esq., published by A. Max- well and Son, in the year 1845, and two printed copies of each of the Greneral Orders made subsequent to the date of the latest of the Orders contained in the said last-mentioned collection down to the present time, (except Orders relating to the Suitors' Fund, or to the Suitors' Fee Fund, or to the Solicitor of the Suitors' Fund, or to mere transfers of causes specified by name, and Orders of a merely personal or temporary character,) shall also be deposited and kept in the said chest. In Boehm v. Oe Tastet, 1 Ves. & Beam. 324, Lord Eldon stated that a maquscript book of the written orders had been handed by Lord Loughborough to him, and would be transmitted by him to his successor. [7] GENERAL ORDERS. Order I. OFFICEES OF THE COURT. See further as to Officers of the Court, IS & 16 Vict. c. 87, o. 1— 3 (Salaries), s. 12 (Stamps), s. 44 et seq. (Salaries, Compensation, &c.). 1. Accotjntant-General. The office of the Accountant-General was created by 12 Geo. I. c. 32. The Orders, 26th May, 1725, and 4th Nov. 1725, recited in that statute are left unabrogated by the Consolidated Orders. See Prelim. Order, Rule 1, Art. 3. See further as to the Accountant-General, 15 & 16 Vict c. 87 (Suitors in Chan- cery Relief) ; the Trustee Relief Acts, 6th Cons. Ord. (Vacations) ; 23rd Cons. Ord. (Decrees and Orders); 26th Cons. Ord. (Stop Orders); 31st Cons. Ord. (Appeal Deposit); 41st Cons. Ord. (Trustee Relief ) ; Cons. Orders, Regula- tions, Fourth Schedule ; Unabrogated Orders, 28th August, 1828 (Exchequer Bills); Nov. 1st, 1841 (Exchequer Powers of Attorney); July 8th, 1842 (In- come Tax) J 27th July, 1852 (Office Routine). Money ordered to he paid to Women who afterwards marry. *1. Where the Accountant-General is directed by any decree or order to pay any sum or sums of money to an unmarried woman, and such decree or order does not extend to the transfer or delivery to such woman of any stocks or securities, and such woman marries before payment of such sum or sums of money, the Accountant- General, if such sum of money does not, or such sums of money in the whole do not, exceed 2001. of principal money or 10/. in annual payments, may draw for such money in favour of such woman and her husband, upon proof of the marriage, and upon an affidavit of such woman and her husband, that no settlement or agreement for a settlement whatsoever has been made or entered into, before upon or since their marriage, or in case any such settlement or agreement for a settlement has been made or entered into, then upon an affidavit of such woman and her husband, identifying such settlement or agreement for a settlement, and stating that no other settlement or agreement for a settlement has been made or entered into as aforesaid, and an affidavit of the solicitor of such woman and her husband, that such solicitor has carefully perused such settlement or agreement for a settlement, and that according to the best of his judgment such sum or sums of money is not or are not, [7] Accountant-General. 9 nor is nor are any part or parts thereof, subject to the trusts of such settlement or agreement for a settlement, or in any manner comprised therein or affected thereby. (16th Feb. 1807.) By the Order, 16th Feb. 1807, here referred to, the married woman and her husband were to make an afBdavit stating that no settlement or agree- ment for a settlement had been made affecting the sum to be paid. The Court requires a positive affidavit that the sum has not been in any manner settled, Hough y. Riley, 2 Cox, 1S7 ; Clayton v. Gresham, 10 Ves. 288. On applications for funds in Court belonging to married women, affidavits of no settlement have in some circumstances been dispensed with, Clarke v. Wood- icard, 25 Beav. 455 ; Hedges v. Clarke, 1 De G. & S.354. In /^non., 3 Jur.,N.S. 839, affidavit by wife only of uo settlement allowed on proof of husband's refusal to join in the affidavit. i, [8] Stocks, Funds, Shares or Securifies ordered to he transferred or delivered to Women who afterjvards marry. *2. Where the Accountant-G-eneral is directed by any decree or order to transfer or deliver any stocks, funds, shares or securities to an unmarried woman, and such decree or order does not extend to the payment to such woman of any money, and such woman marries before the transfer or delivery of such stocks, funds, shares or securities, and the same do not in the whole exceed in value 200/. sterling, there, upon proof of the marriage, and upon an affidavit of such woman and her husband that no settlement or agreement for a settlement whatsoever has been made or entered into before, upon, or since their marriage, or in case any such settlement or agreement for a settlement has been made or entered into, then upon an affidavit of such woman and her husband, iden- tifying such settlement or agreement for a settlement, and stating that no other settlement or agreement for a settlement has been made or entered into as aforesaid, and an affidavit of the solicitor of such woman and her husband, that such solicitor has carefully perused such settlement or agreement for a settlement, and that according to the beat of his judgment such stocks, funds, shares or securities are not, nor is any part thereof, subject to the trusts of such settlement or agreement for a settlement, or in any manner comprised therein or affected thereby, the Registrar may issue a certificate authorizing the transfer or delivery of such stocks, funds, shares or securities to such married woman and her husband ; and the Accountant-General may thereupon transfer or deliver the same to them accordingly. Money to he paid, and Stochs, Funds, Shares or Securities to he tramferred or delivered to Women who ajterwards marry. *3. A similar course to that mentioned in the 1st and 2nd Rules of this Order shall be adopted in the case of money directed to be paid, and of stocks, funds, shares and securities directed to be transferred or delivered to a woman who afterwards marries, where 10 Order I.— Ofpicees op the Couet. [8] the aggregate value of such money, stocks, ftmds, sharee and se- curities does not exceed 2001. Payments to surviving Personal Representatives. 4. Where any money is directed to be paid out of Court to per- sons to be named in the Report of a Master or in the certificate of the Chief Clerk of a Judge, and a sum is reported or certified to be due to any persons as legal personal representatives, the same or any portion thereof for the time being remaining unpaid, may, upon proof to the Accountant-General of the death of any of them, be paid to the survivors or survivor of them. (28th July, 1852. See also 5th and 6th Ord. of 22nd Aug. 1859.) In this Rule and others of this Order, at the end of which the Orders of 22nd August, 1859, are referred to, the word "money" includes interest or dividends on stock or securities, or any accumulations of interest or dividends. See onte, Prelim. Ord. r. 10, art. 12. The 4*th sect, of 15 & 16 Vict c. 86, does not apply to payment of money out of Court without a representative, Rawlins v. M'Mahon, 1 Drew. 255 ; nor to a representative appointed in the suit, Byam v. Sutton, 19 Beav. 646. [9] 5. Where any money is directed to be paid out of Court to the legal personal representatives of any person, or to any persons as legal personal representatives, the same or any portion thereof for the time being remaining unpaid, may, updn proof to the Account- ant-General of the death of any of such legal personal representa- tives, whether before, on, or after the day of the date of the decree or order, be paid to the survivors or survivor of them. (22nd Aug. 1859; Ord. 5.) 6. Where any money is directed to be paid out of Court, to any person named in the decree or order, or named or to be named in any Report or Certificate, or his legal personal representatives, the same or any portion thereof for the time being remaining unpaid, may, on proof to the Accountant-General of the death of such person, whether before, on, or after the day of the date of the decree or order, be paid to such legal personal representatives, or the survivors or survivor of them. (22nd Aug. 1859; Ord. 6.) Transfer or delivery to surviving Personal Representatives. 7. Where any stocks, funds, shares, or securities, are directed to be transferred or delivered out of Court to the legal personal representatives of any person, or to any persons as legal personal representatives of any person, the Registrar may, upon proof of the death of any of such representatives, whether before, on, or after the day of the date of the decree or order, issue a Certificate authorizing the transfer or delivery of such stocks, funds, shares, or securities, to the survivors or survivor of them ; and where any stocks, funds, shares or securities are directed to be trans- ferred or delivered out of Court to any person, or his legal per- sonal representatives, the Registrar may, upon proof of the death ■[10] Accountant-general. 11 of such person, whether before, on, or after the day of the date of the decree or order, issue a Certificate authorizing the transfer or delivery of such stocks, funds, shares or securities to such legal personal representatives, or the survivors or survivor of them. And in any of the cases hereinbefore mentioned, such stocks, funds, shares or securities may be transferred or delivered accordingly. (22nd Aug. 1859; Ord. 7.) Within what time Probate or Letters of Administration must have been granted in Cases under the 6th and 7th Rules. 8. No principal sum of money, nor any stocks, funds, shares or gecurities shall, under the 6th or 7th Rule of this Order, be paid, transferred or delivened out of Court to the legal personal repre- sentatives of any person under any Probate or Letters of Admi- nistration purporting to be granted at any time subsequent to the expiration of six years from the day of the date of the decree or order directing such payment, transfer, or delivery. (22nd Aug. 1859 ; Ord. 8.) 9. No interest or dividends shaU, under the 6th Eule of this Order, be paid out of Court to the legal personal representatives of any person under any Probate or Letters of Administration purportmg to be granted at any time subsequent to the expiration of six years after the day of the date of the decree or order directing such payment, or after the last receipt of such interest or dividends under such decree or order which shall last happen. (22nd Aug. 1859; Ord. 9.) Paj/ment to a Partner or Partners. 10. Where any money is directed to be paid out of Court to any persons named or to be named in a Master's Report or Chief Clerk's Certificate, and such money shall by such Report or Cer- tificate be certified to be due to them as partners, the same may be paid to any one or more of such partners. (22nd Aug. 1859; Ord. 10.) Investment of Dividends on Stoch purchased by the Accountant- Oeneral, pursuant to the Legacy Duty Acts, 36 Qeo. HI. c. 52, s. 32, and 37 Geo. III. c. 135. 11. Where any money paid into the Bank with the privity of the Accountant-General, pursuant to the stat. 36 Geo. III. c. 52, s. 32, and 37 Geo. HI. c. 135, is laid out by the Accountant- General pursuant to the said statutes in the purchase of Bank £3 per Cent. Annuities, the Accountant-General, (unless he shall have received on behalf of some person claiming to be entitled, notice in writing of an intended application to tibe Court or to a Judge in Chambers, for disposing of the fund, or for otherwise applying the dividends thereof,) may from time to time, without any formal request for that put^ose, lay out and invest the divi- 12 Ordek I. — Officees of the Couet. [H] dends on such stock when so purchased, and all accumulations thereon, as the same shall accrue due in the purchase of like stock in trust in the same matter and account to which the original sum of stock stands. (4th May, 1852.) The 32nd sect of 36 Geo. III. c. 52, provides for payment into tlie Bank with the privity of the Accountant-General of legacies, which cannot be paid to the legatees by reason of their absence or infancy. 37 Geo. III. t. 135, provides for filing of the Accountant-General's certificates of such payments. By these Acts the legacies are to be laid out without any formal request. By the Order, 4th May, 1852 (referred to in this Rule), this is extended to the interest and accumulations of interest thereon. A somewhat similar provi- sion is made for investment in proceedings under the Trustee Relief Act, Ord. 41, r. 3. Investment of Interest and Dividends hy the Accountant-General, under an Order directing the same. 12. Where any decree or order directing the investment from time to time of any interest or dividends accruing upon any stocks, funds, shares or securities standing in the name of the Accountant-General in trust in or to the credit of any cause, matter or account, or upon any stocks, funds, shares or securities which may be directed to be transferred into the name of the Accountant-General or to be carried over from one account to another, or upon any stocks, funds, shares, or securities which may be directed to be purchased with any cash in Court or with any cash to be paid into Court with his privity, is brought to the Accountant-General for the purpose of having such direc- tion for investment carried into effect, the Accountant-General may from time to time, until he shall receive notice of a decree or order to the contrary, without any ftirther request, invest the in- terest or dividends so directed to be invested, together with all accumulations of interest or dividends thereon, as soon aa conve- niently may be after they shall accrue due and have been received, in the purchase of the particular description of stocks, funds, shares or securities named in the decree or order directing such invest- ment, and place such stocks, funds, shares or securities when purchased to the credit of the cause, matter or account respec- tively, as may be directed by such decree or order. (3rd June, 1853.) When cash has been paid into Court, it cannot generally be invested by the Accountant-General without an order authorizing it. Usually, when the Order for payment is obtained, application is made by the plaintiff or party interested in the money, that a direction be inserted in the Order for the investment of the money when paid in. If the sum be large, or if it be likely to remain in Court for some time without any person being entitled to the dividends or interest- accruing on it, application should be made that the interest and dividends upon [11] Accountant-General. 13 it invested also. Daniell's Ch. Prac. 1309 (3rd ed.). But the Rule as to the Accountant-General not investing without an Order has exceptions. See pre- ceding Rule and Orders under Trustee Relief Acts. Purchase of Exchequer Bills or Bonds. 13. Where, by any decree or general or special order, any money is directed to be laid out with the privity of the Accountant- General in the purchase of Exchequer BiUs or Bonds to be depo- sited in the Bank to the credit of any cause, matter or account, and where any Exchequer Bills or Bonds shall be deposited in the Bank, with the privity of the Accountant-General, to the credit of any cause, matter or account, any principal money or interest which may thereafter be received and paid into the Bank in respect of such bills or bonds, or of any bills or bonds to be pur- chased with principal money or interest in pursuance of this Rule, or in respect of any exchanged bills or bonds, shall (unless the decree or order shall otherwise direct), from time to time as the same shall be so received and paid into the Bank, be also laid out in the purchase of Exchequer Bills or Bonds with the privity of the Accountant-General, and such Exchequer BiUs or Bonds when so purchased shall be deposited in the Bank with the privity of the Accountant-General, and placed to the credit of the same cause, matter or account, subject to the further order of the Court. (22nd Aug. 1859; Ord. 14.) See as to Exchequer Bills the Orders of August 1st, 1741, and August 28th, 1828. [12] Accountant-General to declare Trust, without any direction in the order of Investment or Transfer. 14. Where, under or in pursuance of any decree or general or special order, any money shall be invested in the name of the Accountant-General, and with his privity in the purchase of any stocks, funds, shares or securities, or any stocks, funds, shares or securities shall be transferred into his name and with his privity in the books of the Bank or of any other public company, he shall declare the trust thereof to be to attend the order of this Court, without any direction for that purpose in the decree or order directing such investment or transfer. (22nd Aug. 1859; Ord. 2.) Accountant-General to draw on the Bank according to the Act and Orders, without any direction. 15. For the purpose of any payment or investment to be made under any decree or general or special order of or out of any mo- ney in the Bank on the credit of any cause, matter or account, the Accountant-General shall (without any direction for that purpose in such decree or order) draw on the Bank according to the form prescribed by the Act of Parliament made and passed in the twelfth year of the reign of his Majesty King George the First, 14 Oeder I. — Officers of the Court. [13] intituled "An Act for the better securing the Monies and Effects of the Suitors of the Court of Chancery, and to prevent the coun- terfeiting of East India Bonds and Indorsements tiiereon, and like- wise Indorsements on South Sea Bonds," and the General Rules and Orders of this Court in that case made and provided. (22nd Aug. 1859; Ord, 3.) Proceedings on Sale of Stocks, Funds, Shares or Securities. 16, Where any stocks, funds, shares or securities standing in the books of the Bank or of any other public company, in the name of the Accountant-General, in trust in or to the credit of any cause, matter or account, are by any decree or order directed to be sold, the same shall be sold vrith the privity of the Acoonnt- ant-General, and one of the cashiers of the Bank shall have notice to attend and receive the money to arise by such sale, and upon receipt thereof shall forthwith pay the same into the Bank with the privity of the Accountant-General, to the credit of the cause, matter or account in trust in or to the credit of which such stocks, flinds, shares or securities were standing immediately before the sale, without any direction for that purpose in the decree or order directing such sale. (22nd Aug. 1859; Ord. 4.) n. EXAMINEIIS. (See Order XIX. on Evidence. m. Be6istrars. By 3 & 4 Will. IV. c. 94, the then four deputy registrars and the two entering clerks were constituted Registrars of the Court. By 5 Vict. c. 5, s. 38, the number of Registrars was increased to ten, and by 14 & 15 Vict. o. 83, s. 21 an additional Registrar may be appointedL By 16 & 16 Vict c. 80, s. 14, Registrars may be required to attend at Judges' Chambers, and draw up Orders made there, 15 & 16 Vict o. 87, s. 84 j and the Unabrogated Order of 27th July, 1852, relates to countersigning by Registrars of notes and cheques drawn by the Accountant-General. See further as to Registrars, Ord. 1, rr. 2, 7 (Certificate for Payment) ; Ord. 2, r. 1 (Ccoiveyaneing Counsel); Ord. 6, rr. 3, 8 (Setting down Causes); Ord. 16, r. 10' (Setting down Exceptions); Ord. 21 (Setting down and Hearing) ; Ord. 23 (Decree* and Orders) ; Ord. 30, t. 2 (Order for Ser- jeanl^at-Arms) ; Ord. 31, rr. 4, 5 (Appeal Depdsit) > Ord. 33, i. 9 (Motion for Decree) ; Ord. 35, r. 32 (Orders in Chambers) ; the unabrogated Order of 27th July, 1852 (Office Routine). Attendance of Megistrars. 17. The Registrars shall attend the several Courts of the Lord Chancellor, the Lords Justices of the Court of Appeal, the Master of the Rolls and the three Vice-ChancellorB, in rotation, week by [13] Regisxkars. 15 \r6ek, on alternate days. (21st Dec. 1833; Ord. 27. 4tli July, 1850.) Entry of Decrees, Orders, ^c. 18. All decrees and orders drawn up by the Registrars or by the Chief Clerks to the Judges, and all praecipes for attachments, and such other documents (if any) as according to the present practice or the practice for the time being ought to be entered by the Entering Clerks to the Registrars, shall be entered by them without abbreviations and in a clear and legible hand, under the direction of the Senior Registrar for the time being, within one clear day after the same shall be left for entry ; and all such entries shall be examined by one of the said Entering Clerks and be marked with his initials, to denote such examination. (21st Dec. 1833; Ord. 30. 16th Oct. 1852; Ord. 28. 9th Nov. 1852; Ord. 2.) By 18 & 19 Vict c. 134, s. 6, such part of the business of the Report Office as is transacted by the Entering Clerks shall be conducted by such Entering Clerks, (who shall be thenceforth styled " the Entering Clerks to the Regis- trars,") under the superintendence, direction and control of the Senior Re- gistrar. Previously to the abolition of the office of the Master of Reports and Entries by that statute all Decrees and Orders of Chancery were entered by the Clerks of Entries under his direction, by 30th Order of December 21, 1833. When the decree or order is passed, the Registrar inserts his initials in the margin at the foot of the last page, as an authority to the Entering Clerk to enter it in the Registrar's book. Seton on Decrees, 584 (2nd ed.) By 30th Order of Dec. 21, 1833, Decrees and Orders were to be entered within one week after being left for entry : the time allowed by this Rule is one clear day. By this Rule Orders to enter decrees nunc pro tunc (which might be obtained after a long interval, Lawrence v. Richmond, 1 Jac. & W. 241 ; Donne v. Lewis, 11 Ves. 601 i Jesson v. Brewer, 1 Dick. 370), are rendered unnecessary, 3 Smith, 460, n. By Ord. 35, r. 32, Orders made at Chambers are to be similarly entered. All proceedings under a Decree or Order before it is entered are irregular and void, Token v. Jervis, 8 Beav. 364. Appeal from decree not drawn up, on production of minutes signed by the Registrar, Manby v. Bewicke, 20 Jur. 671. As to the necessity of marking on Orders, on which it is intended to sue out fi. fa. or elegit, the dates of leaving them for entry, see Ord. 29, r. 7. Order made to enter nunc pro tunc, the date of leaving an Order for entry. Busk V. Beetham, 9 L. J., N. S. 54. An office copy of a decree, signed by the Registrar, is effective for every purpose of proceeding in the cause, Daniell's Ch. Pr. 782. After decree passed and entered ordinarily it can only be altered on a re- hearing. See as to this rule, Seton on Decrees, 588 (2nd ed.). [14] Indexes to Entries.— Access thereto. 19. Proper calendars or indexes of such entries shall bemads by the said Entering Ckrks, so that the same may be conveniently 16 Order I.— Officers of the Court. [14] referred to when required. And such calendars or indexes, and the books in which such entries are made, shall, when completed, be transmitted to the Report Office, to be there preserved under the direction of the Clerks of Records and Writs, and shall, at all times during office hours, be accessible to the public, on payment of the usual fee. (21st Dec. 1833 ; Ord. 30. And see fourth schedule.) Documents to be left with the Registrar hy 'person bespeaking a Decree or Order. 20. At the time of bespeaking a decree or order, the party be- speaking the same shall leave with the Registrar his counsels' briefs and such other documents as may be required by the Regis- trar, for the purpose of enabling him to draw up the same. (30th March, 1859 ; Ord. 2.) As to the interpretation of the word "party" in this and other Rules of this Order, at the end of which the Order of 30th March, 1 859, is referred to, see Preliminary Order, Rule 10, Art 11. Papers and documents to be left, on bespeaking Minutes of Decrees and Orders, in the Registrar's office. Counsel's brief of the pleadings and the correct title of the cause, the names of the several defendants being corrected from their answers; and the names of the guardians of any infants in- serted. If a memorandum of service of copy bill on any of the defendants has been entered, the Order to enter the memorandum and the Record and Writ Clerk's certificate of the entry thereof, and of no appearance by the same defendants. If a traversing note has been filed and the defendant does not appear at the hearing, the Record and Writ Clerk's certificate, that the note has been filed, an affidavit of service of copy of the note and of subpoena to hear judgment, ffthe bill has been taken pro confesso, the Order for the Record and Writ Clerk to attend at the hearing with the record of the bill, and all previous Orders as to the contempt. If exhibits proved in the cause are to be entered as read, a list and correct description of each. If any admissions are to be entered as read, the original paper of admissions, signed by the parties or their soli- citors, must be produced to be endorsed by the Registrar, and must be filed in the Report Office before the Order is left to be passed. If any documents have been proved at the hearing vivd voce, or by affidavit, the Order authorizing them to be so proved, with the office copies of the affidavits (if any), and the documents proved. Minutes of Order on further directions or consideration. — Counsel's brief, the original decree and supplemental decrees or orders (if any), or the Order reserving the further directions or consideration on which the cause is heard, and any subsequent Orders to revive, the office copy of the Master's report and the Order confirming the same absolutely, or Chief Clerk's certificate. If a memorandum of service of copy bill has been entered, a certificate of no appearance having been entered. If the order deals with any purchase- money, consent briefs for the purchaser, or an affidavit of notice of the intended application of the purchase- money, and that the conveyance to the purchaser has been duly executed and delivered. Minutes and Orders on Moliom.—Coun'- [14] Registkaks. 17 sel's brief, with endorsement of the Order inade, the notice of motion (if any) annexed, and office copies of the affidavits, and the other evidence used on the hearing of the motion. Minutes and Orders on Petition.— The original petition and counsel's brief, with his endorsement of the Order made, any evidence used on the hearing, and any decree, order or office copy report on which the petition is founded. Minutes and Orders under Acts authorizing Public Works. — Where the Order deals with any money paid into Court by the promoters of any public undertaking to the credit of such undertaking, not standing to any separate account, the Accountant-General's certificate of the payment into Court of the sum sought to be dealt with, and also his certificate of the fund in Court to the credit of the undertaking ; and when the Order directs the carrying over the money to a separate account or payment of the same out of Court to any person absolutely entitled thereta: also an affidavit of the petitioner- verifying the petition, and of no adverse interest or claim. Minutes and Orders vacating Receiver's Recognisances. — An office copy of the Receiver's recognizances from the Clerk of Enrolments. Order absolute under Winding-up Acts. — The affidavit of the service of the petition, and the " London Gazette" and newspapers con- taining the advertisement thereof. Orders on Summons in Chambers.— The summons, duly endorsed, with a minute of the Order and evidence signed by the Chief Clerk. Whenever any fund in Court is to be dealt with, the Account- ant-General's certificate; and if the funds are restrained by any Order, the restraining Order or an office copy thereof; and if legacy or succession duty has been paid, the receipt of the proper officer of the Stamp Office. When payment out of Court is ordered to executor or administrator, the probate or letters of administration. In all cases of the non-appearance of any party or person served at the hearing of any cause, matter, petition or motion, an affidavit of service on such party or person. Generally, any documents or evidence required to be produced to the Court. (From notice issued by the Registrars. See Seton on Decrees, S85 (2nd ed.) ; Smith's Chancery Practice, 456 (6th ed.).) See Regulations of the Registrars of March 15th, 1860, infra. Time for bespeaking Decree or Order, and leaving Documents with Registrar. 21. Every decree or order shall be bespoken, and the briefs and such other documents as are mentioned in the next preceding Rule shall be so left with the Registrar, within seven days after the decree or order is pronounced or finally disposed of by the Court. (30th March, 1859; Ord. 3.) By the 37th of Lord Bacon's Ordinances the Registrar is required to set down the orders as they are pronounced in Court. (Beames' Orders, 20.) In strictness, this should always be done. A note of the decree or order pro- nounced is taken down by the Registrar, from which minutes are prepared and copies issued to the solicitors of the parties. The party entitled to the carriage of the decree should, immediately after it is pronounced, leave his papers at the Registrar's office, to enable the Registrar to draw up the decree ; and should proceed therein. Otherwise the Registrar may draw it up at the instance of the other party and deliver it to him. (Seton on Decrees, 583 (2nd ed.).) E. C 18 Okdee L — Officees of the Coukt. [14] Sometimes counsel on both sides sign a draft of minutes to be handed to the Registrar; and where orders are taken by arrangement, the minutes should always b? signed by counsel. (lb. 588.) In strictness, every word of the decree should be pronounced by the Court ; but this being impracticable, the Kegistrar allows such alterations by consent as he believes the Court would sanction. {Davenport v. Stafford, 8 Beav. fi03.) Consequence of Default. 22. In case any decree or order is not bespoken, and the briefs and other requisite documents are not left with the Kegistrar, Tdthin the time prescribed by the next preceding Rule, the Regis- trar may decline to draw up the decree or order, without the leave of the Court. (30th March, 1859 ; Ord. 4.) Appointment of a Time for settling Draft Decree or Order. 23. At the tune of delivering out the draft of any decree or order which requires to be settled by the Registrar in the presence of the parties, the Registrar shall deliver out, to the party on whose application the draft has been prepared, an appointment in writing of a time for settling the same. (30th March, 1S59 ; Ord. 5.) Service of a Copy of such Appointment — Attendance at the Time appointed with Documents. 24:. A copy of such appointment shall be served on the opposite party one clear ol. In Croak v. Crook, 19 Jur. 654, affidavit not received where sums were stated m figures instead of words, see Ord. 18 ; in Foruieig y. Sarvieissi, 3 W. R. 259, affidavit containing unauthenticated interlineation of christian names allowed to be filed. Practice as to Writs. 37. The Clerks of Records and Writs shall keep a seal, in such form and bearing such impression as the Lord Chancellor shall approve ; and any person desirous of suing out any of the writs specified at the end of this Rule, may prepare the same in the pre- sent form, mth 8uch»alterations and variations as circumstances may require, and may present such writ for sealing to the Clerks of Records and Writs ; and such writs shall be open writs, and it shall not be necessary for the Lord Chancellor to sign any such writ. And the Clerks of Records and Writs, upon any such writ ■being presented for sealing, shall ascertain whether such writ is correct in form, and whether the person presenting the same is, according to the course and practice of the Court, entitled to sue out the same ; and in case it shall appear that such writ is cor- rect in form, and that the person is entitled to sue out the same, such writ shall be forthwith sealed with such seal as aforesaid, pud shall, when so sealed, have the same force and validity as such writ had when sealed with the great seal, (26th Oct. 1842 ; Ord. 4. 8th May, 1845; Ord. 24.) The writs above referred to in this rule are the following :— Writ of Assistance, Writ of Attachment, Commission to assign a Guardian, Commission to examine Witnesses, Writ of Distringas, Writ of Elegit, Writ of Fieri Facias, Writ of Habeas Corpus, Writ of Injunction, Writ of Ne Exeat Regno, Writ of Dower, Commission of Partition, Commission to distinguish and divide Lands, Writ of Sequestration, Writ of Subpoena, Writ of Vendi- tioni Exponas, Writ of Fieri Facias de Bonis Ecclesiaaticis, Writ of Sequestrari Facias de. Bonis Ecclesiasticis, and Writ of Inquiry of Damages. [19] Security for Costs. 38. Where security for costs is directed to be given, such secu- rity shall be given to the Clerk of Records and Writs in whose division the cause or matter is. (26th Oct, 1842 ; Ord. 6.) See further as to security for costs, Ord. 37, r. 14 ; Ord. 40, r. 6. Swearing Pleas, Answers and Affidavits. 39. Pleas, answers and affidavits may be sworn before any Clerk of Records and Writs, or before the Clerk of Inrolments in Chancery, as occasion may require. (26th Oct. 1842; Ord. 7.) See liirtfaer as to talking pleas, answers and affidavits, Ord. 4. By the stat. 15 & 16 Vict. u. 87, s. 27, the offices of the Clerk of Affidavits, the Assistant 24 Ordek I.— Officers of the Court. [19] Clerk of Affidavits, and the Second Assistant Clerk of Affidavits were abolished, and by sect. 29 the duties of the Affidavit Office were directed to be performed by the Clerks of Records and Writs ; but affidavits or affirmations may be (.worn, affirmed or attested upon honour and declarations made before" the Clerk of Inrolments for the time being, as the occasion may require for the better despatch of business. * Acknowledgments for Inrolling Documents. 40. All acknowledgments required for the purpose of inrolling any deed or other document in Chancery may be made before the Clerk of Inrolments in Chancery, or before any Clerk of Records and Writs, as occasion may require. (26th Oct. 1842; Ord. 1.) See preceding note. Transmission of Inrolments to the Public Record Office. 41. The Records of all Deeds and Recognizances inrolled shall be sent by the Clerk of the Inrolments to the Public Record Office, Rolls Yard, within two years from the time of the inrolment thereof. (3rd July, 1676. 9th June, 1686.) Removal of Records or Documents. [20] 42. No person shall carry away any record from the Public Record Office, Rolls Yard, to any other place, without the direc- tion of the Master of the RoUs, nor take out of the office of the Clerks of Records and Writs any record or document filed there, except by the direction of the Court. (25th Dec. 1574.) Deposit to answer Fees on attendance with Records, and under- taking to pay further Fees. 43. Any Clerk of Records and Writs, being required to attend with any record or document at any Assizes or at any Coui-t or place out of the Court of Chancery or the offices thereof, shall be entitled to require that the solicitor or party desiring his attend- ance, shall deposit with hjm a sufficient sum of money to answer his just fees, charges and expenses in respect of such attendance, and undertake to pay any further just fees, charges and expenses which may not be fully answered by such deposit. (26th Oct. 1842 ; Ord. 8.) Clerks of Records and Writs attend when necessary with records before the Judges at Chambers, or in Court, to take a bill pro confesao, or at assizes upon indictments for perjury or for any other purposes allowed by the Court. To induce the Court to order the production of an original record, it must be shown that an office copy will not suffice. Anon. 13 Beav. 420. See note to Ord. 1, r. 35. Filing of Certificates, Petitions, Admissions of Evidence, Sub- missions to Arbitration and Awards — Transmission to the Report Office — Time for delivering out Office Copies. 44. All certificates of the Chief Clerk of a Judge (after the [20] Clerks of Eecokds aj^d Writs. 25 same shall have been signed by the Judge in cases where his sig- nature is required) and all petitions and written admissions of evidence whereon any order is founded, and all submissions to arbitration and awards made orders of this Court, shall be trans- mitted to and left at the Report Office, to be there filed or pre- served under the direction of the Clerks of Records and Writs. And all office copies thereof, or of any part thereof, that may be required^ shall be ready to be delivered to the party requiring the same, within forty-eight hours after the same shall have been be- spoken. (21st Dec. 1833; Ord. 30. 16th Oct. 1852; Ord. 50.) As to the necessity of filing petitions, &c., see Ord. 23, r. 23. Date of filing Proceedinys. 45. Upon every pleading or other proceeding which is filed under the direction of the .Clerks of Records and Writs, the date of filing the same shall be printed or written. (See Ord. of 22nd May, 1661 ; Sanders, 297.) Indexes to Reports, Certificates, Exceptions to Reports, Peti- tions, Admissions of Evidence, ^c. — Access thereto. 46. Proper indexes or calendars to the files or bundles of the reports, certificates, exceptions to reports, petitions, admissions of evidence, and all other documents filed at the Report Office, shall be kept by the Clerks of Records and Writs ; so that the same may be conveniently referred to when required. And such indexes or calendars and documents shall, at aU times during office hours, be accessible to the public, on payment of the usual fee. (21st Dec. 1833 ; Ord. 30. See infra, fourth schedule.) [21] Ent7"y of Time of delivering Certificate, with name of Cause, and date of Certificate — Entry of Tim^ of delivery of other Docu- ments — Access thereto. 47. The Clerks of Records and Writs shall also enter in the books kept by them for that purpose, the time when any certifi- cate is delivered to them to be filed, with the name of the cause and the date of the certificate. And the like entry shall be made of the time of delivery of every other document filed at the Report Office. And such books shall, at all times during office hours, be accessible to the public, on payment of the usual fee. (21st Dec. 1833 ; Ord. 30. See infra, fourth schedule.) Reference to Record to he affixed to all Documents. 48. Every decree, order, report, certificate, petition or document, made, presented, or used in any cause in this Court, shall be dis- tinguished by having plainly written or stamped on the first page of such decree, order, report, certificate, petition or document, the 26 Obdee L— Officers op the Coukt. [21] year, the letter, and the number by which the cause is distinguished in the cause books kept by the Clerks of Records and Writs. (30th Nov, 1855 ; Ord. 1.) Dates of Decrees, Orders, Reports and Certificates to be entered in Cause Books. 49. The Clerks of Eecords and Writs shall, in addition to the entries formerly made by them in their respective cause books, enter therein respectively the date of every decree, order, report and certificate, which shall be made in each cause. (30th Nov. 1855 ; Ord. 2.) References to Dates and Folios of Registrar's Booh. 50. The entry of every such decree and order in such cause books shall contain a reference to the date and folio of the Kegis- trar's book in which such decree or order shall have been entered. (30th Nov. 1855 ; Ord. 3.) Limitation of Application of Rules. 51. The last preceding three Rules of this Order shall not apply to any cause commenced before the first day of Michaelmas Term, 1852. (30th Nov. 1855 ; Ord. 4.) Applications to Court of Exchequer for Documents, Records, <^c. in Exchequer Causes transferred info Chancery. 52. The Clerk of Records and Writs in whose division any cause transferred from the Court of Exchequer to the Court of Chancery may be, shall, upon request of any of the parties thereto, apply to the Court of Exchequer for the records or other docu- ments in such cause not before brought into the Court of Chan- cery. (26th Oct. 1842 ; Ord. 30.) [22] Certificate of Proceedings in a Cause or Matter. 53. For the purpose of enabling all persons to obtain precise information as to the state of any cause or matter, and to take the means of preventing improper delay in the prc^ess thereof, any Clerk of Records and Writs shall, at the request of any person, whether a party or not in the cause or matter inquired after, but on pay- ment of the usual fee, give a certificate, specifying therein the dates and general description of the several proceedings which have been taken in such cause or matter in the Record and Writ Clerks' Office. (3rd April, 1828 ; Ord. 43. And see infra, fourth S(diedule.) [32] CdNVETAKCING COUNSEL, 27 Order II. CONVEYANCING COUNSEL OF THE COURT. How and by whom business referred to Conveyancing Counsel, to be distributed. 1. The business to be referred to the Conveyancing Counsel nominated by the Lord Chancellor, under the Stat. 16 & 16 Vict. c. 80, 8. 41, shall be distributed among such counsel in rotation by the first clerk to the Registrars for the time being, and during his occasional or necessary absence by the second clerk to the Riegis- trars for the time being, and during the occasional or necessary absence of both such clerks, then by such one of the other clerks to the Registrars as the Senior Registrar for the time being may nominate for that purpose. (16th Dec 1862; Ord. 1.) This Order is made to carry out the provisions of the 40th and 41st sections of 15 & 16 Vict c. 80. By the 40th section, " It shall be lawful for the Court, or for any Judge thereof when sitting at Chambers, to receive and act upon the opinion of conveyancing counsel in actual practice to be nominated as herein- after mentioned, in all cases in which, according to the present practice of the Court and of the Master's ofSce, it has been usual for the Master to require or receive the opinion of conveyancing counsel for his aid and assistance in the investigation of the title to an estate, with a view to an investment of money in the purchase or on mortgage thereof, or with a view to a sale thereof, or in the settlement of a draft of a conveyance, mortgage, settlement or other instru- ment, or otherwise, and in such other cases as the Lord Chancellor shall by any General Order direct ; but it shall be competent for any party to object to any opinion of any such counsel when he shall deem it open to objection, and thereupon the point in dispute shall be disposed of by the Court, or by the Judge sitting in Chambers, according to the nature of the case." By section 41. " It shall be lawful for the Lord Chancellor to nominate any number of conveyancing counsel in actual practice not less than six, who shall have practised as such for ten years at least to be the conveyancing counsel, upon whose opinion the Court, or any Judge thereof, may act in any of the cases last before mentioned, and to supply vacancies in such list from time to time, and to distribute the business among such counsel in such order and manner as to the Lord Chancellor shall seem fit." By 15 & 16 Vict c. 86, u. 56. " Before any estate or interest shall be put up for sale under a Decree or Order of the Court of Chancery, an abstract of the title thereto shall, with the approbation of the Court, be laid before some con- veyancing counsel to be approved by the Court for the opinion of such counsel thereon, to the intent that the said 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 when an estate or interest shall be so put up for sale, a time for the delivery of the abstract of title thereto to the purchaser or his solicitor shall be specified in the said conditions of sale." See as to sale under decree or order, Ord. 35, r. 13. 28 Obder n. — Conveyancing Counsel. [22] On application under the Lands Clauses Act for the re-investment of pur- chase-money, the opinion of conveyancing counsel was required, He Martin, 22 L. J., Ch. 248 ; 17 Jur. 30. Opinion required by Judge in Chambers, Yates v. Plumbe, 2 Sma. & Giff. 174. Abstract of title of estate to be sold under a Decree laid before conveyancing counsel, see Rumaey v. Ramsey, 21 Beav. 40 ; but the Court may dispense with the opinion of conveyancing counsel, Gibson v. Woolard, 24 L. J., Ch. 56 i 3 W. Rep. 94 ; Re Jones, 24 L. J., Ch, 504; 1 Jur., N. S. 817 i 3W. Rep. 564. The deeds directed by 15 & 16 Vict. c. 80, to be settled by conveyancing counsel relate to re-investment in land, Blaxland v. Blaxland, 9 Hare, App. 68 ; Ex parte Rector of Collingham, ib. 12. As to the settlement of other deeds the cases seem to differ. In Nicholson v. Jeyes, 1 Sma. & Giff. App. 13, settlement by conveyancing counsel was required ; in Blaxland v. Blaxland, 9 Hare, 68, and in Chamberlain v. Chamberlain, 1 Sma. & Giff. App. 28 (where a small sum in Court was to be settled), it was not required. When a deed is directed to be settled by conveyancing counsel, the cause is adjourned for the purpose, Harvey v. Brook, 9 Hare, App. 11 ; iJe Caddick's Settlement, 9 Hare, App. 9; 16 Jur. 965; 22 L.J. 10. A short minute of such direction is signed by the Registrar or Chief Clerk. It seems the practice to send the conveyance to Chambers and thence to the conveyancing counsel. Re Bennet, 18 Jur. 33 ; Re Jones's Settled Estates, ubi supra. When the deed has been settled, the Judge's approval is certified by the Chief Clerk on the engrossment ; otherwise the Court requires an affidavit that the draft has been settled by the conveyancer. Sid. Smith, 508 ; Harvey v. Brook, 9 Hare, App. 11. See Re Caddick's Settlement, 9 Hare, App. 85. As to settlement of leases under the Settled Estates Act, see Ord. 41, r. 24. As to costs of drafts settled by other counsel, see Ord. 40, r. 30. By 15 & 16 Vict. u. 80, s. 43, the allowances in respect of fees to conveyancing counsel are to be regulated by the taxing master, subject to an appeal to the Court. The costs of laying an abstract before counsel are entirely in the discretion of the Taxing Master, Rumsey v. Ramsey, 21 Beav. 40. Duty of Person making the Distribution. > 2. The clerk making such distribution shall be responsible for the business being distributed according to regular and just rota^- tion, and in such manner as to keep secret from all persons the rota or succession of Conveyancing Counsel to whom such busi- ness may be referred ; and it shall be his duty to keep a record of such references, with proper indexes, and to enter therein all such references, with the dates when the same are made. (16th Dec 1852 ; Ord. 2.) [23] Proceedings for obtaining Opinion, ^c. of the Conveyancing Counsel. 3. When the Court or a Judge at Chambers directs any business to be referred to any such Conveyancing Counsel, a short memo- randum or minute of such direction shall be prepared and signed [23] Conveyancing Counsel. 29 by the Registrar, if the same shall have been given in Court, or by the Judge's Chief Clerk, if given in Chambers ; and the party prosecuting such direction, or his solicitor, shall take such memo- randum or minute to the Registrar's Clerk, whose duty it is to make such distribution as aforesaid ; and such clerk shall add at the foot thereof a note specifying the name of the Conveyancing Counsel in rotation to whom such business is to be referred ; and such memorandum or minute shall be left by the party prosecuting such direction, or his solicitor, with such Conveyancing Counsel, and shall be a sufficient authority for him to proceed with the business so referred. (16th Dec. 1852 ; Ord. 3.) Inabiliiy or refusal of Counsel in rotation. 4. In case the Conveyancing Counsel in rotation shall from illness or from any other cause be unable or decline to accept any such reference, the same shall be offered to the Other Conveyancing Counsel appointed as aforesaid, successively, according to their seniority at the Bar, untU some one of them shall accept the same. (16th Dec. 1852; Ord. 4.) Liberty to direct or transfer Reference to any one of such Counsel. 5. The preceding Rules of this Order are not to interfere with the power of the Court, or of the Judge at Chambers, to direct or transfer a reference to any one in particular of the said Convey- ancing Counsel, where it appears to the Court or the Judge to be expedient. (16th Dec. 1852 ; Ord. 5.) [24] Order III. SOLICITORS AND PARTIES ACTING IN PERSON, AND SERVICE ON THEM RESPECTIVELY. Solicitors and Parties acting in Person to perform Duties formerly discharged hy the Sworn Clerks and Waiting Clerks as Soli- citors. 1. The solicitors of this Court in aU cases where the parties sue or defend by solicitors, and the parties themselves in all cases where they sue or defend in person, shall perform all such duties as were formerly performed by the sworn clerks and waiting clerks, as attorneys, solicitors or agents of the parties, in relation to the several matters hereinafter mentioned, viz. : 30 Obdeb in. — Solicitors and Pasties, and Sektice. [24] The making out of writs. The serving and being served with writs, notices, ardfiFS, war- rants and other documents, proceedings and written commu- nications, in causes and matters depending in Court . The eigning of elections and a^eements to proceed at law (gc in equity. The signing of petitimis of re-hearing and appeaL The entering of appearances and consents with the Begistrar. The signing of consents to petitions. The tender and acceptance of costs. The joining in eonunission and striking of commissioners' names. The signing of notices by paupers ; And all other duties fprjura-ly perfowned by the pwom clerks and waiting clerks, as attorneys, solicitors or agents of the parties in suits or matters in equily. (26th Oct. 1842; Ord. 16.) As to the making out of writs, see Ord. 1, i. 37 ; as to elections to proceed at law or ii; equity, see Ord. 42, r. 5 ; as to sigmpg petitions of reh^^ring an appeal, see Ord. 3, r. 10 ; as to signing consents, ilnd. ; sfi to signing notices by paupers, ibid., and Ord. 7, r. 8 ; as to entering appearances and consents, see Ord. 1, r. 35. See as to service on solicitor or agent, Ord. 3, r. 2. Solicitor to indorse his Name or Firm and Place ofBiuiness and Address for Service, and, where he is only Agent, the Name or Firm and Place of Business of the Principal Solicitor. 2. Every solicitor of a party suing or defending by a solicitor, shall cause to be written or piijited upon every writ or summons which he shall sue out, and upon every bnl, demurrer, plea, answer, or other pleading or proceeding, and all exceptions, which he may leave with the Clerks of Becords and Writs to be filed, and upon aU instructions which he may give to the Clerks of Records and Writs, for any appearance or other purpose, his name or firm and place of business, and also (if his place of business sh^ be more than three miles from the Record and Writ Clerks' Office) another proper place, (to be called his address for service,) which shaU not be more than three miles ftonj the said office, w\)fiVP 'writs, notices, orders, summonses, warrants, and other documents, proceed- ings and -written ccnaununications may be Irft for him. And where any such solicitor shall only be the agep.t of any .other solicitor, he shall add to his own name or firm and place of business, the name or firm and place of business of the principal solicitor. (26th . Oct. 1842 ; Ord. 17.) See as to service of copy of a bill, &c., Ord. 10. Service of a notice of motion at the solicitor's address for service, though the place mentioned in such address was then untenanted, was held sufficient in a case in which a defendant was out of the jurisdiction, and his solicitor had absconded, Newton v. Thompson, 16 Jur. 1008 ; 22 L. J. 10. Omission in a subpoena of the address for service does not necessarily make the writ void, but the Court will stay process till [25] SOUCITOES AND PaKTIES, AND SeRVICB. 31 that reqaisition of the Order is complied with, Price v. Webi, 2 Hare, 511. Though parties and their attorneys may be served with notice under this Order, it is still necessary to obtain special leave to serve notice of motion on a de- fendant before appearance, Jacklin v. Wilkins, 6 Beav. 607. Notice of motion for a serjeant-at-arms pK^erly served on a London agent, Thorneyoroft v. Crockett, 15 L. J. 344. Change of Solicitor. 3. 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 raay 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 Becords and Writs, the former solicitor shall be considered the solicitor of the party. (26th Oct. 1842 ; Ord. 18.) Until a solicitor of a party be changed by order of the Court, notices served on him, though he has ceased to act for the party, are regular, Wright V. King, 9 Beav. 161 ; Davidson v. Leslie, 9 Beav. 104. Where a. solicitor to a party dies, no order is required for appointment of a new solicitor, Whalley v. Whalley, 22 L. J. 632. Under the former practice, if on the death of the Clerk in Court of a party, he refused to appoint another solicitor, such party must have been served with a subpoena to appoint a Clerk in Court, Ratclif v. Roper, 1 P. Williams, 117; Francklyn v. Colhoun, 12 Ves. 2. On non-compliance substituted service may be ordered, (see Sid. Smith, Ch. Pr. 61,) or accounts taken in liis absence, Dean v. Lethbridge, 26 Beav. 397. Where defendant had left the jurisdiction, and his solicitor died pending taxation of costs decreed against him, leave was given to serve at defendant's last place of residence in England, a notice to appoint a new solicitor, such service to be good service on the defendant, Gibson v. Ingo, 2 Ph. 402 ; 12 Jur. 105. See Ord. 3, r. 6. Where a fund has been cairied to the separate account of one of the parties he may petition for payment out of Court by a new solicitor without an order to change, Waddilove v. Taylor, 12 Jur. 598. Where three out of four plaintiffs in a suit filed a supplemental bill against the fourth, this Order held not to entitle solicitor in former suit to act in the latter. Ward T. Sw0, 6 Hare, 309. Change of name of firm of solicitor is within this rule, Muttlebury v. Hayward, 8 Jur. lOSj. Change of solicitor cannot be obtained by order of course where there has been a special agreement with the solicitor, as where by a mortgage deed he had powers to conduct the suit, Jenkins v. Bryant, 3 Drew. 70 ; 18 Jur. 992 ; 3 W. R. 30. Order of course obtained without disclosing such special agreement discharged with costs, Richards v. Scarborough Market Company, 17 Jur. 294 ; 22 L. J. 759. As to priodty of retiring solicitor's claim for costs, Cormack v. Beisley, 3 De G. & J. 157. Service, mhere there is no Address for Service — Where there is Address for Service. 4. Where a party sues or defends by a solicitor, and no address 32 Okder III.— Solicitoks and Pabtibs, and Service, [25] for service of such solicitor shall have been written or printed pursuant to the directions of the 2nd Rule of this Order, all writs, notices, orders, summonses, warrants, and other documents, pro- ceedings and written communications, not requiring personal ser- vice upon the parly to be affected thereby, shall, unless the Court shall otherwise direct, be deemed suflS.ciently served upon such party, if served upon his solicitor at his place of business. But if an address for service of such solicitor shall have been written or printed as aforesaid, then all such writs, notices, orders, sum- monses, warrants and other documents, proceedings and written communications, shaU. be deemed sufficiently served upon such party, if left for his solicitor at such address for service. (26th Oct. 1842 ; Ord. 19.) Where a defendant failed to appear, and plaintiff entered an appearance for him under the 8th Order of 26th August, 1841 (as to which, see note to Ord. 10, r. 4, post), and consequently the traversing note could not be served in the manner directed by Orders 19 and 21 of 26th Oct. 1842, Lord Cottenham made - an order for service of the note on the defendant personally, Moss v. Buckky, 2 Phillips, 628 ; see Lawrie v. Burn, 6 Hare, 308. The 19th and 21st Orders of 26th Oct. 1842, are nearly the same as the 4th and 6th Rules of this Order respectively. As to the service of traversing notes in the manner directed by the 4th and 6th Rules of this Order, see Ord. 13, r. 5. Service in a supplemental suit upon the solicitor in the original suit held good service, Scott v. Wheeler, 13 Beav. 239. Service at solicitor's address for service allowed where he had absconded, and the place mentioned was untenanted, Newton v. Thomson, 16 Jur. 1008 j 22 L. J. 10. [26] Parties suing or defending in Person to indorse Name and Resi- dence, and Address for Service. 5. Every party suing or defending in person shall cause to be written or printed upon every writ which he shall sue out, and upon every bUl, demurrer, plea, answer or other pleading or pro- ceeding, and all exceptions, which he may leave with the Clerks of Records and Writs to be filed, and upon all instructions which he may give to the Clerks of Records and Writs for any appear- ance or other purpose, his name and place of residence, and also (if his place of residence shall be more than three miles from the Record and Writ Clerks' Office), another proper place, (to be called his address for service,) which shall not be more than three miles from the said office, where writs, notices, orders, summonses, warrants and other documents, proceedings and written communi- cations, may be left for him. (26th Oct. 1842 ; Ord. 20.) See notes on Rules 2 and 4. Where a place of residence, more than three miles distant, was indorsed on the bill, but no address for service was endorsed on it or on the subpcena to appear and answer, this omission did not render the [26] Solicitors and Parties, and Service. 33 writ irregular or void, but the Court would withhold from the plaintiflF the benefit of the subpcena until he endorsed the address for service, Price v. Webb, 2 Hare, 511. Service, where there is no Address for Service— Where there is Address for Service. 6. Where a party sues or defends in person, and no address for service of such party shall have been written or printed pursuant to the directions of the 5th Rule of this Order, or where a party has ceased to have a solicitor, all writs, notices, orders, summonses, warrants and other documents, proceedings and written communi- cations not requiring personal service upon the party to be affected thereby, shall, unless the Court shall otherwise direct, be deemed to be sufficiently served upon such party, if served upon him per- sonally, or at his place of residence. But if an address for service of such party shall have been written or printed as aforesaid, then all such writs, notices, orders, summonses, warrants and other documents, proceedings and written communications, shall be deemed sufficiently served upon such party, if left for him at such address for service. (26th Oct. 1842 ; Ord. 21.) See notes on the 4th Rule. Service on Town Solicitor of Person not a Party. 7. Where a person who is not a party appears in any proceed- ing, either before the Court or in Chambers, service upon the solicitor in London, by whom such party appears, whether such solicitor act as principal or agent, shall be deemed good service, except in matters of contempt requiring personal service. (Srd AprU, 1828 ; Ord. 44.) The respondents in a charity petition are parties to it, and therefore not within the Order on which this rule is founded, Re Willoughhy's Charity, 6 Sim. 18. The Order 44 of 3rd of April, 1828, which is substantially the same as this Rule, has been held to apply only to cases in which a person not a party to the suit appears, and continues to have an interest in the suit. In other cases there must be special application for substituted service on the solicitor, supported by an afiidavit that he continues to be the solicitor, Jennings v. Devey, 4 Jur. 858 ; In Be Boger, 3 Jur., N. S. 930, the Court would not sanction sub- stituted service where special leave had not been previously obtained. Service on Defendant who has not entered an Appearance. 8. The plaintiff shall, without special leave of the Cotirt, be at liberty to serve any notice of motion, or other notice, or any peti- tion or summons, personally or at the dwelling-house or office of any defendant, who, having been duly served with a copy of the bill, shall not have caused an appearance to be entered within the time limited for that purpose. (11th April, 1842 ; Ord. 3.) This Rule is substantially the same as Ord. 3 of 11th April, 1842. The words "a copy of the bill" being here substituted for "subpoena to appear to E. D 34 Order in.— Solicitors AjmoPABTiEs, AND Seevicb. [27] and answer the bill." Where a party out of the jurisdiction had been served with subpoena to appear, the leave of the Court was held necessary for serving him out of the jurisdiction with notice of motion, Green v. Pledger, S Hare, 165. Notice of Ajppearance, Answer, Demurrer, Plea, or 'Replication. 9. Where any solicitor or party causes an appearance to be en>. tered, or an answer, demurrer, plea, or replication to be filed, he shall, on the same day, give notice thereof to the solicitor of the adverse party, or to the adverse party himself, if he acts in person. (26th Oct. 1842 ; Ord. 23.) See, also, as to solicitor serving notice, Ord, 3, i. 1. See, as to filing replication, Ord. 17. Where a month elapsed between filing the replication and serving the notice, the replication was ordered to be taken off the file, Johnson v. Tucker, IS Sim. 599; 11 Jur. 466. But in Wright v. Angle, 6 Hare, 107 i H Jur. 987; and Lloyd V. Solicitors' Assurance Company, 24 L. J. 704 ; 3 W. Rep. 640, the irregu- larity was corrected not by taking the replication off the file, but by extending the time for thp next step. As to waiver of the irregularity of not giving notice on same day, see Mathews v. Chichester, 5 Hare, 207, reversed on appeal, 11 Jur. 49 ; 16 L. J. 160. A party relieved fi:om the effect of the irregularity on payment of costs, Broadstock v. Whatley, 6 Beav. 61 j Lord Suffield v. Band, 10 Beav. 331. Advertisements of notice of replication, directed where appear- ance had been entered for an absconding defendant. Barton v. JVhitcombe, 16 Beav. 205; 22 L. J. 523; 17 Jur. 81 ; Anon. 1 W. Rep. 115; Jenkin v. Faughan, 3 Drew. 20 ; 3 W. Rep. 100 j 24 L. J. 495. In Lanham V. Pirie, 2 Jur., N. S. 1201 ; 26 L. J. 80, it was held that notice of replication must be served on the defendant, though out of the jurisdiction, if his residence be known. Though notice of filing answer omitted, defendant may move to dismiss, Jones v. Jones, 19 Jur. 863 ; 3 W, R. 638. Omission of due notice of exceptions a matter for compensation in time, Lowe v. Williams, 12 Beav. 482. As to the time of the day for service, see Ord. 37, r. 2. The Court may en- large the time for serving notice of replication according to the distance of the party to be served, Hooper v. Harrison, 2 W. Rep. 510. Service abroad of notice of replication to a supplemental bill, where the original bill had been taken pro CttTffesso, Heath v. Lewis, 2 W. Rep. 488. Liability of Solicitors signing certain Documents. 10. Any solicitor signing any petition of rehearing or appeal, or any consent to a petition, or any notice of motion, or amy pro- ceeding or application to be made by a pauper, shall thereby be- come subject to aU liabilities to which the sworn clerks were formerly subject in respect of such matters. (26th Oct. 1842; Ord. 25.) See further as to petitions of rehearing and appeal, Ord. 31. This under- taking applies only to costs incurred in the prosecution of the Decree and not the costs of appeal, Price v. Dewhursl, 4 M. & C. 282. A motion that the clerk in Court might pay the costs of the dismissed appeal was refused with costs, S. C. Seton on Decrees, 597. Pauper's solicitor made personally liable for [27] Solicitors and Pabties, and Service. 35 costs of exceptions not duly signed, Brown v. Dawson, 2 Hog. 76. By the Order on the petition for an appeal or rehearing, in addition to payment of the deposit, an undertaking is required to pay such further costs subsequent to the Decree as the Court shall direct, Seton, 597. See Fowles v. Young, 9 Ves. 172. As to notices by paupers, see Ord. 3, r. 1 ; and, as to paupers generally, Ord. 7, r. 8, &c A notice of motion by a pauper must be signed by his solicitor, Perry v. Walker, 4 Beav. 452 ; or, if he proceed in person, by himself ; note to 5. C. The same principle is applicable to interlocutory proceedings by petition. Perry v. Walker, 8 Jur. 53. Where pauper, to whom counsel and solicitor had been assigned, gave notice of motion : held, that he could not be heard in person, Parkinson v. Banbury, 4 De G., M. & G. 508. * Agreement by Solicitor as to Cause. 11. No agreement Ijetween any solicitors relating to any of their clients' causes shall be capable of being enforced, unless and until such agreement or some note or memorial thereof be put into writing and subscribed by the party who is to be bound thereby or his solicitor. (13th July, 1685. 19th March, 1697-8.) Oral agreement by solicitor for arbitration set aside, Colwall v. Child, 1 Ch. Rep. 195. Order IV. COMMISSIONEKS TO ADMINISTER OATHS IN CHANCERY. By 15 & 16 Vict. c. 86, s. 21, "the practice of the said Court of issuing commissions to take pleas, answers, disclaimers and examinations in causes and matters pending in the Court shall, with respect to pleas, answers, disclaimers and examinations taken within the jurisdiction of the Court, be and the same is hereby abolished ; and any such plea, answer, disclaimer or examination may be filed without any further or other formality than is required in the swearing and filing of an affidavit." By sect. 22, " all pleas, answers, disclaimers, examinations, affidavits, de- clarations, affirmations and attestations of honour in causes or matters depend- ing in the High Court of Chancery, and also acknowledgments required for the purpose of enrolling any deed in the said Court, shall and may be sworn and taken in Scotland, or Ireland, or the Channel Islands, or in any colony, island, plantation or place under the dominion of her Majesty in foreign parts, before any Court, Judge, notary public or person lawfully authorized to ad- minister oaths in such country, colony, island, plantation or place respectively, or before any of her Majesty's consuls or vice-consuls in any foreign parts out of her Majesty's dominions, and the Judges and other officers of the said Court of Chancery, shall take judicial notice of the seal or signature, as the case may. d2 36 Oedee rv.— Commissioneks to admmistee Oaths. [27] be, of any such Court, Judge, notary public, person, consul or vice-consul attached, appended or subscribed to any such pleas, answers, disclaimers, examinations, affidavits, affirmations, attestations of honour, declarations, acknowledgments or other documents to be used in the said Court." Sects. 23 and 24 relate to the punishment of false swearing, &c., and forgery. By sect. 25," pleas, answers, disclaimers or examinations, whether taken by com- mission out of the jurisdiction of the said Court or otherwise, may be filed with- out the oath of a messenger, and any alterations made therein previously to the taking thereof shall be authenticated according to the practice now in use with respect to affidavits." By 6 Geo. IV. c. 87, s. 20, powers are given to British consuls-general and consuls to administer oaths, and to do notarial acts in the foreign places to which they are appointed. By 18 & 19 Vict. u. 42, o. 1, the like powers are given to every British ambassador, envoy, minister, chargi d'affaires or secre- tary of embassy or of legation, exercising his functions in any foreign country, and to every British vice-consul, acting consul, pro-consul or consular agent, as well as every consul-general or consul exercising his functions in any foreign place. By 16 & 17 Vict c. 78, B. 1, commissioners to administer oaths in Chancery possess and exercise the powers and discharge the duties formerly appertaining to the office of Master Extraordinary in Chancery. By sect 2, "it shall be lawful for the Lord Chancellor, from time to time, to appoint any persons prac- tising as solicitors within ten miles from Lincoln's Inn Hedl, at their respective places of business, to administer oaths and take declarations, affirmations and attestations of honour in Chancery, and to possess all such other powers and discharge all such other duties as aforesaid, and such persons shall be styled ' London Commissioners to administer Oaths in Chancery ;' and they shall be entitled to charge and take a fee of one shilling and sixpence for every oath administered by them, and for every declaration, affirmation or attestation of honour taken by them, subject to any order of the Lord Chancellor varying or annulling the same." By sect 3, the Lord Chancellor is empowered to appoint commissioners to administer oaths in Chancery for the Channel Islands. By sect 5. " Nothing herein contained shall abridge or lessen the power of the Lord Chancellor as it now exists to appoint fit persons to administer oaths and take declarations, affirmations and attestations of honour in Chancery, or to regulate the fees to be taken by them ; and where any Act of Parliament refers to the Masters Extraordinary in Chancery, or to their powers or duties, the reference shall be held to apply to and include the commissioners herein- before mentioned, or to their powers or duties, as the case may be." Sect 6, after reciting the 22nd, 23rd and 24th sections of 15 & 16 Vict t. 86, proceeds as follows: — "And whereas it is expedient to extend the recited provisiofis of the said first-mentioned Act for the purpose of diminishing the expense of and incident to registration of deeds, wills and other documents or things, be it enacted, that such provisions shall extend to the Isle of Man, and that all affidavits, declarations and affirmations to be used before any Registrar or other officer of any registry office in Great Britain or Ireland, for any pur- pose connected with the registration of deeds, or wills, or other documents or [27] COMMISSIONEKS TO ADMINISTER OatHS. 37 things under the authority of Parliament, may he sworn and taken in Scotland or Ireland, the Isle of Man or the Channel Islands, or in any colony, island, plantation or place under the dominion of her Majesty in foreign parts, before any Court, Judge, notary puhlic or person hereby or otherwise lawfully autho- rized to administer oaths in such country, colony, island, plantation or place respectively, or before any of her Majesty's consuls or vice-consuls in any foreign parts out of her Majesty's dominions ; and all Registrars and other officers of any such registry office shall take judicial notice of the seal or signa- ture, as the case may be, of any such Court, Judge, notary puhlic, person, consul or vice-consul, which shall be attached, appended or subscribed to any such affidavit, declaration or affirmation, or any other document, and that the enactments contained in the said 23rd and 24th sections shall be deemed to be incorporated herein as effectually as if the same enactments were expressly re-enacted in this Act and applied to registry offices." By sect. 7, persons authorized to administer oaths in Chancery may administer oaths in Chancery of County Palatine of Lancaster. The London Commissioners may administer oaths, not only at their places of business, but anywhere within the limits of their jurisdiction. Re Record and Writ Clerks, 3 De G., M. & G. 723 ; 23 L. J. 1002. Jurat held sufficient which omitted the place where an affidavit was sworn before an American notary, Meek v. Ward, 10 Hare, App. I. Neither the solicitor in the case, nor his clerk, can act as commissioner for taking affidavits in that cause. Re Hogan, 3 Atkyns, 812 ; Wood v. Harper, 3 Beav. 290 ; Haplcin v. Hopkin, 10 Hare, App. 2. The Court refused to receive the certificate of the Registrar of deeds in the island of St. Vincent without proof of his handwriting, as he was not authorized to administer oaths, Baillie v. Jackson, 3 De G., M. & G. 38. Affidavits to support an application for a habeas corpus may be sworn before a commissioner to administer oaths in Chancery in Jersey, there being no commissioners in that island for taking affidavits for the Common Law Courts, Re Dodd, 6 W. B, 175. IS & 16 Vict. c. 86, s. 22, held not retrospective, Brooks v. £e»ejr, 1 W. Rep. 120j sed contrh, affidavits taken in the colonies before the passing of 15 & 16 Vict. c. 86, in the presence of a person lawfully authorized to administer oaths, were held receivable under the 22nd section without verification of his signature. Bate- man V. Cooke, 3 De G., M. & G. 39 ; 17 Jur. 170; 22 L. J. 744. An affidavit may be taken before a notary public, for he has credit everywhere, Hutcheon v. Manning- tan, 6 Ves. 823. Notwithstanding this 22nd section, affidavits may still be sworn before notaries public in foreign countries, having authority there to administer oaths,andbeverifiedin the usual maDnei, Haggitt v. Iniff, 5DeG.,M. &G.910; 1 Jur., N. S. 36, 49. The signature of the notary must be verified by affidavit ; the notarial seal is not sufficient verification, Re Earl's Trust, 4 K. & J. 300. As to swearing pleas, &c., before Clerks of Records and Writs or the Clerk of Inrolraents, see Ord. 1, r. 39. As to examination of witnesses, see Ord. 19. As to jurat of affidavit, Ord. 18. Sphere of Duty — Expression of Time and Place, "The Commissioners to administer oaths in Chancery in England" shall not, within ten miles of Lincoln's Inn Hall, take 38 OeDEE rV. — COMMISSIONEES TO ADMINISTER OaTHS. [27] any affidavits, pleas, answers, disclaimers, or acknowledgments of deeds or recognizances, or do any other act incident to their office. And every such commissioner shall express the time when, and the place where, he shall take any affidavit, plea, answer, or dis- claimer, or the acknowledgment of any deed or recognizance : otherwise the same shall not be held authentical, nor be admitted to be filed or inroUed. And in like manner every such Commis- sioner shall express the time when, and the place where, he shall do any other act incident to his office. (9th Oct. 1656. 22nd May, 1661 ; Sanders, 310. 21st Dec. 1833 ; Ord. 33.) Order V. [28] OFFICIAL ATTENDANCE AND VACATIONS. See as to applications in Vacation, Ord. 6, r. 11. See as to signature of Chief Clerk's certificates in the intervals between sittings, Ord. 35, r. 59; as to summonses in Yacations, Ord. 35, r. 58. See also, as to computation of time, Ord. 37, r. 11—15. Official Attendance. 1. The several offices of the Court, except the offices of the Accountant-General and Taxing Masters, shall be open on every day of the year, except Sundays, Good Friday, Monday and Tuesday in Easter week, Christmas Day, and all days appointed by proclamation to be observed as days of general fast, humiliation or tiianksgiving. (8th May, 1845 ; Ord. 5.) 2. The offices of the Accountant-General and of the Taxing- Masters shall be open on every day of the year, except the days specified in the 1st Rule of this Order, and except during vaca- tions. (8th May, 1845 ; Ord. 6.) 3. The office of the vacation Taxing Master shall be open during the vacations on eveiy day, except the days specified in the 1st Kule of this Order. (8th May, 1845 ; Ord. 7.) Vacations. 4. The vacations to be observed in the several offices of the Court, except in the office of the Accountant-General, are to be four in every year, viz. the Easter vacation, the Whitsun vacation, the Long vacation, and the Christmas vacation ; and [29] (1.) The Easter vacation shall commence and terminate on such days as the Lord Chancellor shall every year specially direct ; (2.) The Whitsun vacation shall commence on the third day after Easter term, and terminate on the second day before Trinity term in every year ; (3.) The Long vacation shall commence on the 10th day of August, and terminate on the 28th day of October, in every year ; C29] Attendance and Vacations. 39 (4.) The Christmas vacation shall commence on the 24th day of December in every year, and terminate on the 6th day of the following month of January ; and (5.) The days of the commencement and termination of each vacation shall be included in and reckoned part of such vacation. (8th May, 1845; Ord. 8.) 5. The vacations in the office of the Accountant-General shall be the same as in the other offices, except as to the Long vacation, which, in that office, shall commence and terminate on such days as the Lord Chancellor shall every year direct. (8th May, 1845; Ord. 9.) Lord Chancellor may vary times for Attendance and Vacations. 6. The Lord Chancellor may, from time to time, by special order, direct the offices to be closed on days other than those mentioned in the 1st Rule of this Order, and direct any of the vacations to commence and terminate on days different from the fixed days mentioned in the 4th Rule of this Order. (8th May, 1845; Ord. 10.) [30] Order VI. SELECTION OF COURT. By 5 Vict. c. 5, s. 30, " it shall be lawful for the Lord Chancellor and the Master of the Rolls, from time to time, to direct that any causes or matters which shall be at any time depending for bearing or determination before the Master of the Rolls for the time being, shall be heard and determined by the Lord Chancellor or by one of the Vice- Chancellors for the time being, and to direct that any causes or matters which shall be, at any time or times, depend- ing for bearing before the Lord Chancellor, shall be heard and determined by the Master of the Rolls for the time being ; but all Decrees and Orders to be made by the Master of the Rolls or by any Vice- Chancellor, in pursuance of such direction, shall be subject to be reversed, discharged or altered by the Lord Chancellor." See, as to selection of Court in old suits. Prelim. Ord. r. 1, Art. 2, and Appendix. How Bills are to he marked. 1. Every original bill to be filed in the High Court of Chan- cery, shall (at tihe option of the plaintiff), be distinctly marked at or near the top or upper part thereof either with the words " Lord Chancellor," or with the words " Master of the Rolls;" and if with the words " Lord Chancellor," then also with the name of one of the Vice-ChanceUors for the time being, at the option of the plaintiff. And the Record and "Writ Clerks shall, in the books and indexes in which the same shall be entered, add to the entry thereof such distinguishing words or mark as may make it appear from such entry whether the bill is marked with the 40 Oedee VI. — Selection of Coubt. [30] words " Lord Chancellor," or with the words " Master of the Rolls," and if with the words " Lord Chancellor," then for which of the Viee-Chancellors the same is marked. And the cause (unless removed by some special order of the Lord Chancellor or Lords Justices) shall accordingly be attached to the Court of the Master of the Rolls, or to the Court of such Vice-Chancellor, as the case may be. And the Record and Writ Clerks shall not file any original bUl which shaU not be marked in the manner hereinbefore directed. (5th May, 1837; Ord. 1. 29th Oct. 1851.) Where there are concurrent creditors' suits, the Court which makes a decree' in one will, on motion, stay proceedings in the other, Ladbroie v. Bleadon, 16 Jur. 851 ; Bnffort v. Arrowsmith, 7 De G., M. & G. 434; 5 W. R. 241, hut not where the first decree was obtained by unfair advantage, Harris v. Gandy, 8 W. K. 39. Where decrees have been obtained in both suits the application must be to the Lord Chancellor or Lords Justices, Scolto v. Stone, 22 L. J. 911. Form of decree as to costs in two creditors' suits where one stayed after decree, Canham v. Neale, 26 Beav. 266. Second suit, praying additional relief, stayed, and additions to decree in first suit to be made at chambers, Gwyer v. Peterson, 26 Beav. 83. The second suit not stayed unless for same objects as the first, Underwood v. Jee, 1 M. & G. 276. Practice as to costs where second creditors' suit stayed. West v. Swinburne, 14 Jur. 360 ; 19 L. J. 81. Where concurrent suits on behalf of infants, inquiry which the most beneficial, Campbell v. Campbell, 2 M. & C. 25. Practice as to such inquiry, Taylor V. Oldham, Jac. 527 ; Rundle v. Rundle, 1 1 Beav. 33 ; Sullivan v. Sullivan, 2 Mer. 40. Bill in first suit, instituted by solicitor on his own authority, dismissed without costs, Starten v. Bartholomew, 6 Beav. 143. See as to con- current suit cases cited, Seton on Decrees, 464 ; Smith v. Guy, 2 Ph. 159 ; Ord. 35, rr. 3 & 22. Transfer of a cause requires a day's notice, Sidebottom v. Sidebottom, 7 W. R. 104. Sow Record and Writ Clerk's Certificate is to he marked. 2. The Record and Writ Clerk to whom it belongs to give or sign the certificate that a cause is ready for hearing, shall, upon being appUed to for such certificate, see that the same certificate is marked, or cause the same to be marked, with the designation of the Judge to whose Court the cause is attached. (5th May, 1837; Ord. 2. 11th Nov. 1841; Ord. 2.) See as to the certificate mentioned in thisand the following rule, Ord. 21, r. 2. Causes not to be set down unless Certificate be so marked. 3. The Registrars shall not set down to be heard any cause in which the certificate of the cause being ready for hearing shall not be marked in the manner hereinbefore directed. (5th May, 1837j Ord. 4.) Before whom Pleas, Demurrers, Exceptions and Causes shall be set down. 4. Unless otherwise directed by any special order of the Lord Chancellor or the Lords Justices, every plea or demurrer and all [30] Selection op Court. 41 exceptions in any cause shall be set down to be heard before the Judge to whose Court the cause is attached, and every cause shall be set down to be heard in conformity with the manner in which the certificate of the same being ready for hearing is marked as hereinbefore directed. (5th May, 1837; Ord. 6.) Under Ord. 48 of 3rd April, 1828, every application for new trial of an issue was to be first made to the Judge who directed such issue ; these words held to refer to the Court, not the individual Judge, Faoiner v. Figes, 2 Sim. 319. See Ord. 6, rr. 7 & 13. [31] Motions, Petitions, Mekearings and further Proceedings in Causes. 5. Save as hereinitfter provided, aU motions, petitions, rehearings otherwise than by way of appeal, and further proceedings in causes shall be had before the Judge to whose Court such causes are or shall be attached, unless removed therefrom by any special order of the Lord ChanceEor or the Lords Justices. (5th May, 1837; Ords. 9 & 12. 11th Nov. 1841; Ord. 5. 29th Oct. 1851; Ord. 7.) See preceding note. As to causes commenced before the Orders of 5th May, 1 837, here referred to, in which two Courts have made Orders, see Wilkins v. Stevens, 10 Sim. 617 ; Senior v. Willies, 2 Keen, 210. An Order made by the wrong Judge, on application of one party, is not to be treated as a nullity, Wilkins v. Stevens, 10 Sim. 617 ; see Boddy v. Kent, 1 Mer. 361 ; Chucli v. Cremer, 2 Phill. 113 ; Blake v. Blake, 7 Beav. 514. As to transfer of a fund from one cause to another, see Wright v. Irving, 10 Sim. 625. An application to tax a solicitor's bill is not within the Orders of May, 1837 i so that the Order to tax need not be made by that branch of the Court where the cause has been heard, Robins v. Mills, 1 Beav. 227 ; Bingham v. Hallam, 9 L. J. 104 ; except where the merits of the case have to be considered, Webb v. Grace, 12 Beav. 489 ; see Re Elmslie, 12 Beav. 538. Where motion irregularly brought in a wrong Court, it awarded respondents 42s. costs, Yearsley v. Yearsley, 19 Beav. 1. As to the jurisdiction of the several Courts to enlarge the time for inrolment, see note toX)td. 23, r. 28. Mow Notices of Motions and Petitions not in any Cause, and Petitions, and Motion Papers under Stat. 13 ^ 14 Vict. c. 35, *. 19, and Orders thereon, are to be marked. 6. Every notice of motion not in any cause, and every petition not in any cause, and every petition or motion paper under the Stat. 13 & 14 Vict. c. 35, s. 19, shall be marked at or near the top or upper part thereof, in the same manner as a bill is now marked, with the name of the Lord Chancellor and one of the Vice-Chancellors, or with the name of the Master of the Eolls; and every order made thereon shall be marked in the same manner as the said notice of motion, petitiofi or motion paper; and the matter in which such order is made shall thenceforth be considered as attached to the Court of the Judge whose name shall be so 42 Ordee VI.— Selection OF CoDKT. [31] marked upon such order, in like manner and for the like purpose as causes are attached to such Court, but shall be subject to be transferred from such Court in the same manner as causes are so transferred ; and the provisions of the 5th and 11th Rules of this Order shall apply to every matter so attached. (2nd Nov. 1850; Ord. 27. nth Nov. 1841; Ord. 6. 5th May, 1837; Ord. 16. 29th Oct. 1851; Ord. 7.) Provision for the case of a Vice- Chancellor ceasing to hold his Office. *7. Upon any Vice-ChanceUor for the time being ceasing to hold his office, any cause or matter which shall then be attached to the Court of such Vice-ChanceUor, shall, unless removed by any special order of the Lord Chancellor or Lords Justices, thenceforlii be attached to the Court of his successor as Vice-ChanceUor for the time being. See note to Ord. 6, r. 4. See as to judges of the Court of Appeal sitting for the Master of the Rolls or Vice-Cbancellors, 14 & 15 Vict. c. 83, s. 13, cited in note to Ord. 31. Registrars to keep Distinct Lists. [32] 8. The Registrars shall keep distinct lists of the causes and other matters set down to be heard before each Judge. (11th Nov. 1841; Ord. 7.) Application for Orders of course. 9. AU applications for orders of course to be obtained on petition, or motion shall and may be made in the same manner, in all re- spects, as if the above Rules of this Order had not been made. (5th May, 1837; Ord. 14.) Applications to discharge, reverse, or alter Orders of course. 10. Applications to discharge, reverse, or alter any order made on motion or petition of course by the Lord Chancellor, the Lords Justices, the Master of the Rolls, or one of the Vice-Chancellors, shall be made to the Judge to whom special applications in the cause or matter in which such order is made, ought to be made. (2nd Nov. 1850; Ord. 26.) An application made at the Rolls, in a Vice-Chancellor's cause, to dis- charge an order to sue in formi pauperis obtained, of course, at the Rolls, can only he founded on irregularity ; if merits are relied on the application must be made before the Vice-ChanceUor, Robinson v. Milner, 5 Beav. 49. In a Vice- Chancellor's cause, an order obtained ex parte at the Rolls for costs : the Master of the Rolls refused to discharge the order, as he could not enter into the merits, Hooper v. Paver, 6 Beav. 173. In a Vice-Chancellor's cause, order of course, obtained at the Rolls ; the Master of the Rolls, on application to dis- cbarge the order, would not enter into the merits further than necessary to [32] Selection of Court. 43 determine as to its irregularity, St. Victor v. Devereux, 6 Beav. 584 ; Plomer v. M'Dmald, 8 Beav. 191 ; Jmold v. Arnold, 9 Beav. 206 i S. C. \1 Jur. 360, 484. Vice-Chancellor had not jurisdiction to discharge, on the ground of irregularity, an order at the Rolls to refer exceptions, Esdaile v. Molyneux, 2 Coll. 641, note a. Distinction between irregularity and evasion of a General Order, Arnold v. Arnold, \ Ph. 805. Plaintiff suppressing pendency of motion to dismiss before the Vice-Chancellor obtained an order of course at the Rolls to amend j the Master of the Rolls dismissed this order for irregularity, Marquis of Hertford v. Suisse, 7 Beav. 160; see Cartwright v. Smith, 6 Beav. 121 ; Cooper i. Lewis, 2 Ph. 178 ; Cooper v. Knox, 15 Beav. 102. In Yearsley v. Yearsley, 19 Beav. 1, notice of motion before the Master of the Rolls being admitted to be irregular, he gave the respondent 42s. costs. By 13 & 14 Vict t. S§, s. 29, " it shall be lawful for the Master of the Rolls and the Vice-Chancellor respectively to discharge, reverse, or alter any order made on motion or petition of course by any other of them or by the Lord Chancellor." AppUcations for Special Orders during Vacations— Proviso as to rehearing same. 11. In the interval betvreen the close of the sittings after any term and the commencement of the sittings before or at the be- ginning of the next ensuing term, applications for special orders may be made to any Judge of the Court in the same manner as if the above Rules of this Order had not been made; but the orders which shall be made in any such interval by the Lord Chancellor or the Iiords Justices, or by the Master of the RoUs, or by any of the Vice-Chancellors, shall, — if not made by the Judge to whom the application, if made during the ordinary sittings of the Court, would have been made pursuant to the directions contained in this Order, — be marked as having been made for such Judge, and shall in the future proceedings of the cause be deemed to be the order of such Judge m aU. respects save this, — that no order so made by one Judge for another, under the circumstances aforesaid, shall be reheard for the purpose of being discharged or varied, otherwise than by the Lord Chancellor or the Lords Justices. (5th May, 1837; Ord. 15. 5th Aug. 1842.) An application was refused by a Vice-Chancellor during vacation in a Rolls cause ; the same application will not be entertained at the Rolls, although sup- ported on different grounds, Man v. Ricketts, 9 Beav. 4. One Vice-Chancellor may hear a petition attached to the Court of another Vice-Chancellor who has risen for the vacation, HoUouiay v. Phillips, 17 Jur. 875 ; 22 L. J. 1091 ; Price v. Gardner, 19 inr. 975, See Bean v. Griffiths, 19 Jut. lOiS. See as to adopting certificates and prosecuting decrees in the vacation, Ord. 35, r. 59. Applications to stay Proceedings on Decree or Order appealed from. 12. Every application to stay proceedings upon any Decree or 44 Ohdek VL — Selection of Coukt. [32] Order which is i^pealed from, shall be made first to the Judge who pronounced the Decree or Order. (3rd April, 1828; Ord. 46.) As to circumstances in which execation will be stayed pending appeal, see Seton on Decrees, 597 ; Sidney Smith's Ch. Pr. 464. Proceedings under an order to pay costs will not be stayed pending an appeal from the order on the ground that if paid they would not be recovered back, Archer T. Hudson, 8 Bear. 321. Appeal against order to bring money into Court cannot proceed till the money is brought into Court, Wood v. Farthing, 8 W. R. 425. Before the Order 3rd of April, 1828, here referred to, the application could only be made to the Appellate Court, Macnaghlen y. Boehm, 1 J. & W. 48. In Stainton v. Chadmick, 3 Mac & G. 343, an application was made in the first instance to the Lord Chancellor, on the ground of the order appealed against having been made by the Master of the Rolls who had since died. See Ord. 31, i . 2, as to rehearing, not stopping proceedings. [33] New Trial of Issue. 13. Every application for the new trial of any issue or question of fact directed by a Judge of this Court to be tried at law, shall be first made to the Judge who directed such issue or question of fact to be so tried. (3rd April, 1828; Ord. 47.) Where a Vice-Chancellor directed an issue and afterwards became Master of the Rolls, his successor in the office of Vice-Chancellor was held the proper Judge to apply to for a new trial, Footner v. Figes, 2 Sim. 319. In Reece v. Reece, 1 My. & Cr. 372, the Lord Chancellor refused to have a decree spoken to before him on the minutes where he had made the decree when Master of the Rolls. See Ord. 6, r. 4. Though the Lord Chancellor affirmed an Order directing an issue, the motion for a new trial not to be made, in the first instance, to the Appellate Court, Ward v. Pom/ret, 1 C. P. Coop. 436. It is conceived that this Order does not aSect the practice in cases of appeals to the House of Lords, and that the party may still, as before, apply for a stay of proceedings against the decree so appealed from, either to that House or to the Court below. Daniell's Ch. Pr. 1118. Vide Hugueninv. Baseleg, 15 Ves. 180, and Ord. Dom. Proc. Ibid. 184 ; Gwyn v. Lethbridge, 14 Ves. 585. See as to the trial of issues in Chancery, Ord. 41, r. 26. Order VII. PARTIES^ PERSONS UXDEB, DISABILITT, AND PAUPERS. L Paeties Genekailt. See as to service of copy bill on formal parties, Ord. 10, r. 11. See as to decree saving rights of absent parties, Ord. 23, r. 1 1. [33] Parties Geneeallt. 45 By IS & 16 Vict u. 86, s. 42, " it shall not be competent to any defendant in any suit in the said Court to take any objection for want of parties to such suit, in any case to which the rules next hereinafter set forth extend ; and such rules shall be deemed and taken as part of the law and practice of the said Court ; and any law or practice of the said Court inconsistent therewith shall be and is hereby abrogated and annulled. Rule 1. — Any residuary legatee or next of kin may, without serving the re- maining residuary legatees or next of kin, have a decree for the administration of the personal estate of a deceased person. Rule 2. — Any legatee interested in a legacy charged upon real estate, and any person interested in the proceeds of real estate directed to be sold, may, without serving any other legatee or person interested in the proceeds of the estate, have a decree for the administration of the estate of a deceased person. Rule 3, — Any residuary devisee or heir may, without serving any co-resi- duary devisee or co-heir, have the like decree. Rule 4. — Any one of several cestuis que trust under any deed or instrument may, without serving any other of such cestuis que trust, have a decree for the execution of the trusts of the deed or instrument. Rule 5. — In all cases of suits for the protection of property pending litiga- tion, and in all cases in the nature of waste, one person may sue on behalf of himself and of all persons having the same interest. Rule 6. — ^Any executor, administrator, or trustee may obtain a decree against any one legatee, next of kin, or cestui que trust, for the administration of the estate or the execution of the trusts. Rule 7. — In all the above cases, the Court, if it shall see fit, may require any other person or persons to be made a party or parties to the suit, and may, if it shall see fit, give the conduct of the suit to such person as it may deem proper, and may make such order in any particular case as it may deem just for placing the defendant on the record on the same footing in regard to costs as other parties having a common interest with him in the matters in question. RiTLE 8. — In all the above cases the persons who according to the present practice of the Court would be necessary parties to the suit, shall be served with notice of the decree, and afler such notice they shall be bound by the pro- ceedings in the same manner as if they had been originally made parties to the suit ; and they may, by an order of course, have liberty to attend the pro- ceedings under the decree ; and any party so served may, within such time as shall in that behalf be prescribed by the general order of the Lord Chancellor, apply to the Court to add to the decree. Rule 9. — In all suits concerning real or personal estate which is vested in trustees under a will, settlement, or otherwise, such trustees shall represent the persons beneficially interested under the trust in the same manner and to the same extent as the executors or administrators in siuts concerning personal estate represent the persons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons beneficially inte- rested under the trusts parties to the suit, but the Court may, upon consideration of the matter on the hearing, if it shall so think fit, order such persons or any of them to be made parties." 46 Ordee Vn.— Pasties, etc. [33] By sect, 43, " the practice of the said Court of setting down a cause merely on an objection for want of parties to the suit shall be abolished." By sect. 44, " if in any suit or other proceeding before the Court it shall appear to the Court that any deceased person who was interested in the matters in question has no legal personal representative, it shall be lawful for the Court either to proceed in the absence of any person representing the estate of such deceased person, or to appoint some person to represent such estate for all the purposes of the suit or other proceeding on such notice to such person or per- sons, if any, as the Court shall think fit, either specially or generally, by public advertisements, and the order so made by the said Court, and any orders con- sequent thereon, shall bind the estate of such deceased person in the same manner in every respect as if there had been a duly constituted legal personal representative of such deceased person, and such legal personal representative had been a party to the suit or proceeding, and had duly appeared and sub- mitted his rights and interests to the protection of the Court." By sect. 51, "it shall be lawfiil for the Court to adjudicate on questions arising between parties, notwithstanding that they may be some only of the parties interested in the property respecting which the question may have arisen, or that the property in question is comprised with other property in the same settlement, will, or other instrument without making the other parties interested in the property respecting which the question may have arisen, or interested under the same settlement, will, or other instrument, parties to the suit, and without requiring the whole trusts and purposes of the settlement, will, or other instrument to be executed under the direction of the Court, and without taking the accounts of the trustees or other accounting parties, or ascertaining the par- ticulars or amount of the property, touching which the question or questions may have arisen : Provided always, that if the Court shall be of opinion that the application is fraudulent or collusive, or for some other reason ought not to be entertained, it shall have power to revise to make the order prayed." Note to Section 42, r. 2. Formerly on Bill filed to recover or administer real estate, all persons interested in the estate must be before the Court, Harrison v. Stetiiardsm, 2 Hare, 530; Miller v. Hiiddleslone, 13 Sim. 467: the difBculties incident to suits for the administration of real estates were in some measure diminished by the 31st Order of 26th August, 1841. See Ord. 7, r. \,post. Note to Section 42, r. 3. Where residuary devisees who had died abroad before the institution of the suit were made parties in ignorance of their death, the suit may he proceeded with without making their real representatives parties, Bateman v. Coohe, 1 W. R. 242. Note to Section" 42, r. 4. Decree for the appointment of new trustees and conveyance of the trust estate, in a suit by some of the cestuis que trust, and a direction to serve the other cestuis que trust with notice of the decree, Jones v. James, 9 Hare, App. 80. Money recovered from a trustee in a suit by cettui que trust to repair breach of trust as to one share of the trust estate, McLeod V. Annesley, 16 Beav. 600 ; 17 Jur. 608 ; 22 L. J. 633. If the whole fund be not forthcoming, owing to a breach of trust, a party entitled to a moiety, although ascertained, cannot sue for payment without making the person [33] Parties Gexeiiailt. 47 entitled to the other moiety a party, Lenagtanw. Smith, 2 PhiU. 301 ; Munch V. Cockerell, 8 Sim. 219. Where cestuis que trust, by their conduct, have made themselves trustees, they ought to be parties, Jesse v. Bennett, 5 W. R. 56 ; 26 L. J. 63 i 6 De G., M. & G. 609. See Lund v. Blandshard, 4 Hare, 9, where strangers who had aided in misapplying funds held to be properly made co- defendants. See, as to proceeding formerly against some only of the parties to a breach of trust, 1 C. P. Coop. 507. See note to Ord. 7, r. 2. Note to Section 42, r. 6. Before this statute a trustee might file a Bill against one of several cestuis que trust, to recover the trust securities without making the other cestuis que trust parties, Bridget v. Hames, 1 Coll. 73. Note to Section 42, r. 8. Notice of decree for appointment of new trustees and conveyance of the real estate, served on some of the cestuis que trust, not parties, Jones v. Jtunes, sUpra. A decision under s. 51 of this Act does not bind absent parties, as under s. 42, r. 8 ; Doody v. Biggins, 9 Hare, App. 32. If the Court be satisfied that the absent parties have no reasonable ground of claim, it will decide in their absence, Ibid. Where estate is to be sold, all persons interested should have notice of the decree, Ibid. Parties out of the jurisdiction must be served with notice of the decree, Strong v. Moore, 22 L. J. 917. The Judge at chambers directs who are to be served, De BalinJtard v. Bullock, 9 Hare, App. 13. As to entering special appearance for the purpose of being served with notice of proceedings, see Ord. 10, r. IS. The notice may be served where the parties to be served are infants, or out of the jurisdiction, see Chalmers v. Laurie, 10 Hare, App. 27 j 1 W. R. 265 ; CSarke v. C7or*e, 1 W. R. 48. In Leuns v. Clowes, ID Hare, App. 62, interested persons not parties had leave to appear at the hearing. In Maybery v. Brooking, 7 De G., M. & G. 673, decree made without prejudice to the rights of absent parties, under Ord. 40 of Aug. 1841 ; see Ord. 23, r. 11. As to motions to add to decrees, see Ord. 23, r. IS. Note to Section 42, r. 9. The 30th Ord. of 26th Aug. 1841, was similar to this rule but not so extensive in its terms ; by that Order, " In all suits concemingreal estate, which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and pro- fits of the estate, such trustees shall represent the persons beneficially interested in the estate, or the proceeds or the rents and profits, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons beneficially interested in such real estate or rents and profits parties to the suit ; but the Court may, upon consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties." It has been held that this Order of 1841 did not apply where the trustees had not the legal estate but only power to sell. Turnery. Hind, 12 Sim. 414; nor where they had not a present power to sell, Lloyd v. Smith, 7 Jur. 460 ; 12 L. J. 457 ; Cox V. Barnard, 5 Hare, 253 ; nor in a suit for specific performance where plaintiff entitled to an aliquot share with others cestuis que trust, Jones v. How, 12 Jur. 227 ; 17 li. J. 369. Parties rendered unnecessary by this Order might be dis- 48 Ordee Vn. — ^Paeties, etc. [33] missed at any time, Tarbuck v. Greenall, 6 Beav. 358 ; qu., whether this Ordet applied to a bill of foreclosure of freeholds, devised in trust for sale, Wilton v. Jones, 2 Y. & C. C. C. 244. Under this Order of 1841, trustees represented the cestui que trust, although there was no express power to give discharge for the purchase money. Savory V. Barber,i Hare, 125. In a creditor's suit legatees of legacies charged on real estate, represented by the trustees, Ward v. Bassett, 5 Hare, 179. To suit by legatee of part of proceeds of real estate, legatee of residue unnecessary party. Reeve v. Richer, 11 Jur. 960. Cestui que trust for life a proper party in a cre- ditor's suit, Hill V. Ledbrook, 6 Jur. 1078. The Order held to apply where the conduct of the trustee was in c[uestion, Osborne v. Foreman, 2 Hare, 656 ; 8 Jur. S5 ; 13 L. J. 123 ; and in suit by one trustee against a co-trustee. May v. Selby, 1 Y. & C. C. C. 235 ; suit for sale of an entire estate cannot be maintained by one only of the legatees. Miller v. Huddlestone, 7 Jur. 504. This Order is now abrogated, but some of the decisions under it tend to eluci- date the 9th Rule of Sect. 42 of the statute above cited. First, as to decisions under this 9th Rule relating to foreclosure, see Cropper v. Mellersh, 24 L. J., Ch. 430 ; where it was held that a suit for foreclosure of a trust estate could not be maintained against the trustee alone, and the com- ments on that case, Wilkim v. Reeves, 3 W. R. 305. In a foreclosure suit, trustees of the equity of redemption sufficiently represent infant cestois fue trust and trusts in remainder, but not otherwise adult cestuis que trust, as they ought to have an opportunity to redeem, Goldsmid v. Stonehewer, 9 Hare, App. 38 ; 22 L. J. 109, and 17 Jur. 199. See Young v. Ward, 10 Hare, App. 58 ; Tudor V. Morrii, 22 L. J., Ch. 1061 ; 1 W. R. 426. Trustees of an equity of redemp- tion represented infant cestuis que trust in a foreclosure suit, Siffken v. Davis, 1 Kay, App. 21. Where the trustees are also executors, the rule applies in foreclosure suits. Sale v. Kitson, 3 De G., M. & G. 119 j 22 L. J., Ch. 344; 17 Jur. 170; Hanman v. Riley, 9 Hare, 40; 22 L. J., Ch. 110. Mortgagor's executrix with implied power of sale not a trustee within this rule, Bolton v. Stannard, 4 Jur., N. S. 576 ; 6 W. R. 570. Before 15 & 16 Vict. u. 86, it was held that a suit by a mortgagee against mortgagor and trustees for his creditors the scheduled creditors must be parties, Thomas v. Dunning, 5 De G. & Sm. 618. See Lewin on Trusts, 3rd ed. 843 ; Bateman v. Margerison, 6 Hare, 496. The enactment is retrospective, Goldsmid v. Stonehewer, 9 Hare, App. 38 ; Fowler v. Bayldon, 9 Hare, App. 78. Where estate is to be sold, all persons interested should, if possible, be par- ties, or at least have notice of the decree, Doody v. Higgins, cited in the pre- ceding note to Rule 8 of the section. The rule is not restricted to cases where the trustee's estate is sought to be changed by the suit or to be administered. Fowler v. Bayldon, 9 Hare, App. 78. In a suit to redeem, cestuis que trust of the mortgage money required to be parties, Stansfield v. Hobson, 16 Beav. 189. Where, according to the old practice, all the residuary legatees were made parties, held that trustees of a share, set- tled on marriage, must also be parties, but would represent the children of the marriage, Densem v. Elworlhy, 9 Hare, App. 42. New trustees of a fund in [33] Parties Generally. 49 Court to whom it had not been assigned necessary parties to a suit by an incum- brancer of it, Nelson v. Seaman, 8 W. R. 167. See Devaynes v. Robinson, cited in note to Ord. 7, r. 2. Presence of cestuis que trust not dispensed with where the trustees have disclaimed, Young v. Ward, 10 Hare, App. 58 ; nor in a suit to set aside a settlement, Reed v. Presi, 1 Kay & J. 183 J nor where cestuis que trust had concurred in breaches of trust, in suit against the trustees, Jesse v. Bennett, cited in note to Section 42, r. 4, ante. The rule held to apply to executors with power of sale, Skaw v. Hardingham, 2 W. R. 657 ; and to devisees in trust subject to payment of ^debts. Smith v. Jndrews, 4 W. R. 353. Note to Section 44. As to administration pendente lite, see 20 & 21 Vict, c. 77, s. 70 ; and as to appointment by the Court of Probate of administrators of an intestate, or testator who has no executor, or whose executor is absent from the United Kingdom, see sects. 73 and 74 of the same Act, and Williams on Executors, pL 1, book 5, ch. 3, § 5. Section 44 applies to proceedings by special case. Swallow v. Binns, 9 Hare, App. 47 i 17 Jur. 295 ; and by petition, Re Stewart, 1 W. R. 17 ; and by claim, Rogers v. Jones, 1 Sm. & G. 17 ; 1 W. R. 14 ; 16 Jur. 968. For forms of Orders under this section, see Whittington v. Gooding, 10 Hare, App. 29, and Seton on Decrees, 607. Application under this section may be made on motion or at the hearing, Hew- etson V. Lloyd, uli infra; Davis v. Boulcott, ubi infra; Chaffers V. Headlam, uhi infra. After sale of an unrepresented insolvent estate, representative appointed ex parte on notice to persons entitled to administer. Dames v. Boul- cott, 8 W. R. 206. Before this Act, the representative of a person who died insolvent without assets, and who would otherwise have been a necessary party, was dispensed with, Seddon v. Connell, 10 Sim. 58 ; see p. 85. The section is confined to cases where there is a difficulty in obtaining repre- sentation. Long V. Storie, 8 Kay, App. 12. But where probate was con- tested the executor named in the will was appointed to represent the estate, Hele V. Lord Bexley, 15 Beav. 340. The person who would be administrator ad litem is the proper person to appoint under this section, ibid.; Dean of Ely i. Gayford, 16 Beav. 561. Thus the widow of a deceased, whose unadministered life estate was subject of the suit, was so appointed, Dean of Ely v. Edwards, 10 Hare, App. 65; 22 L. J. 630; 17 Jur. 219; the executor who had proved the will abroad, Suther- land V. De Virenne, 20 JiU'. 301 ; the counsel of such executor, Hewetson v. Todhunter, 22 L. J. 76 ; children deceased before their father, their sole next of kin, represented by his executor. Swallow v. Binns, 9 Hare, App. 47 ; 17 Jur. 295. The section has been held not applicable where the unrepresented estate was sought to be administered, Silver v. Stein, 9 Hare, App. 82 ; 1 Drew. 295 ; Maclean v. Dawson, 5 Jur., N.S. 1091, which was a suit against the executors of a purchaser of shares to set aside the sale ; Grove v. Levi, 9 Hare, App . 47, n. ; Groves v. Lane, 16 Jur. 1061 ; nor where the representatives of trustees would have active duties, Fowler v. Bayldon, 9 Hare, App. 78 ; nor where a £. E 50 Oedek Vn.— Paeties, etc. [33] sum, however small, is to be paid out of Court, Rawlins v. WMahon, 1 Drew. 22S i 9 Hare, App. 82 j (but see Byam v. Sutton, infra) ; nor where, in a question between two classes, one class is not represented, Gibson v. Wells, 21 Beav. 620 ; 4 W. E. 499 ; Swallow v. Bims, 9 Hare, App. 47 ; nor on the ground that the unrepresented estate has been assigned and the assignee is out of the jurisdiction, Donald v. Bather, 16 Beav. 27; nor in suit to set aside a deed exe- cuted by the intestate, James v. Jston, 25 L. J. 343 ; 2 Jut., N. S. 224 ; nor in suit for foreclosure by second mortgagee, the first mortgagee being unrepresented, Bruiton v. Bireh, 22 L. J. 911. The will of deceased defendant primarily liable not having been proved, his executors were required to represent him, there bring other defendants secondarily liable, Ashmally. Wood, 19 Jur. 1130; 25 L. J. 23 ; 4 W. R. 60. The section has been held applicable, not only where the unrepresented deceased had a beneficial interest, but where he had a liability ; as a defendant in a suit to recover tithes. Dean of Ely v. Gayford, 16 Beav. 561 ; where, in an administration suit, an executor died insolvent, and his widow refused to ad- minister, Sagers v. Jones, 1 Sm. & G. 17; 16 Jur. 968; 1 W. R. 14; where next of kin died without administering. Swallow v. Binna, ubi supra ; where the unrepresented defendant is in the same interest with the plaintiff. Cox V. Taylor, 22 L. J. 910 ; where a declaration was made as to children taking per stirpes or per capita, and some of them were unrepresented, Abrey v. Newman, 10 Hare, App. 58 ; 17 Jur. 153 ; where a will has been proved abroad, Heuietson v. Todhunter, 22 L. J. 76 ; in a suit by creditors against trustees for them where the unrepresented debtor died insolvent, Chaffers v. Headlam, 9 Hare, App. 46 ; Davis v. Boulcott, 8 W. R. 206 ; where the heir-at-law of the unrepresented deceased was a party, Goddard v. Haslam, 1 Jur., N. S. 251 ; 3 W. R. 357 ; where representation to a deceased insolvent executor could not be obtained, Bavd v. Bandle, 2 W. R. 331 ; where next of kin refuse or decline to administer. Haw v. Fiekers, 1 W. R. 242 ; Tarrant v. Lloyd, 2 Jur., N. S. 871 ; in a suit for appointment of new trustees, where the unrepresented deceased, who had died without property, had only a contingent interest in death of plaintiff', Magnay v. Davidson, 9 Hare, App. 82 ; where one of several mortgagees having one right of redemption was unrepresented. Long v. Storie, ubi supra. On application for payment out of purchase-money of land compulsorily taken, executors of tenant for life, who had not proved his will, appointed to represent his estate. Ex parte Cramer, 9 Hare, App. 47, note. A person not appointed under sect 44 without bis consent, Prince of Wales Company v. Palmer, 25 Beav. 605 ! Hill V. Bonner, 26 Beav. 372 ; 7 W. R. 81 ; Haw v. dickers, supra ; but see Sutherland v. De Virenne, 20 Jur. 301 ; Ashnudl V. Wood, ubi supra ; Goddard V. Haslam, supra; 3 W. R. 357. Administration ad litem sufficient to bind the estate, but not for its general administration, Groves v. Lane, 16 Jur.S54. See Faulkner v. Daniel, 3 Hare, 199. Money will not be padd out of Court to a representative appointed under this section, but will be carried to a separate account of the legal personal repre- sentative, Byam v. Sutton, 19 Beav. 646 ; Maclean T. Dawson, 5 Jur., N. S. 1091 ; 7 W. R. 354 ; 28 L. J. 742. See Bessant v. NobU, 26 L. J. 236. [33] Parties Geneeaxlt. 61 Notes on Section 51. This section does not render the decision of the Court binding, as notice of decree under Rule 8 of the 42nd section does, £)oWy v. Higgins, 9 Hare, App. 32. The Court will not proceed under this section in absehce of all the claimants on one side, Swallow v. Sinns, 9 Hare, App. 47 ; 17 Jur. 295. Where on drawing up decree it was found that two formal defendants in the same interest with the plaintiff had not been served with subpoena to bear judgment, the Court would not strike their names out of the record under this section, Lanham v. Pine, 2 Jur., N. S. 1201 ; 26 L. J. 80. The section applies where some only of the persons interested in the same trusts are before the Court, Parnell T. Hingstan, 3 Sm. & G. 337. Decree made under this section affecting part only of a testator's estate, Prentice v. Prentice, 10 Hnre, App. 22. Order under the Trustee Act, 1850, on petition of some only of the persons interested, Re Sharpley's Trusts, 1 W. R. 271. Before the Act the Court would, in soine cases, make decrees affecting only part of an estate, Morley v. Richardson, 2 Hare, 570 ; Mores v. Mores, 6 Hare, 125 ,- or in the absence of some of a class, Bunhett v. Foster, 7 Beav. 540. By 15 8£ 16 Vict. c. 86, s. 49. " No suit in the said Court shall be dismissed by reason only of the misjoinder of persons as plaintiffs therein ; but wherever it shall appear to the Court that notwithstandiiig the conflict of interest in the co-plaintiffs or the want of interest in some of the plaintiff's, or the existence of some ground of defence affecting some or one of the plaintiffs, the plaintifls or some or one of them are or is entitled to relief, the Court shall have power to grant such relief, and to modify its decree according to the special circumstances of the case, and for that purpose to direct such amendments {if any) as may be necessary, and at the hearing before such amendments are made to treat any one or more of the plaintiffs as if he or they was or were a defendant or de- fendants in the suit, and the remaining or other plaintiff or plaintiffs was or were the only plaintiff or plaintiffs on the record ; and when there is a mis- joinder of plaintiffs, and the plaintiff having an interest shall have died leaving a plaintiff on the record without an interest, the Court may, at the hearing of the cause, order the cause to stand revived as may appear just, and proceed to a decision of the cause if it shall see fit, as to give such directions as to costs or otherwise as may appear just and expedient." See as to misjoinder before the Act, Lambert v. Hutchinson, 1 Beav. 277 j Eades v. HarrU, 1 Y. & C. C. C. 230. The Act applies to plaintiffs not named, as where a shareholder files a bill on behalf of himself and others, Clement v. Bowes, 1 Drew. 684 j 22 L. J. 1022 ; 1 W. R. 42. But not where full justice cannot be done to the defendant in the absence of the shareholders, Williams v. Salmond, 2 K. & J. 463. Since the Ael, executrix of an executrix may maintain in her double repre- sentative character a suit which the first executrix could not have maintained, as being against her own acts and dealings, Carter v. Sanders, 23 L. J. 679. As to misjoinder in a suit impeaching a settlement of accounts of an asso- ciation, see Stupart v. Arrowsmith, 3 Sm. & G. 176; 2 Jur., N. S. 158. Bill dismissed where one only of the plaintiffs had an interest to maihtain e2 52 Oedek Vn. — Pasties, etc. [33] the smt, and that interest was not claimed by the bill, Barton v. Barton, 3 K, & J. S12. As to misjoinder in a suit by some shareholders to recover money wrongfully paid to defendants and other shareholders, see Williama v. Page, 4 Jur., N. S. 654 ! 24 Beav. 102 ; 27 L. J. 425. As to parties to suits by shareholders generally, see Carlisle v. Soath-Eattern Jtailuiay, 1 M. & G. 689 ; 14 Jur. 535 ; and cases cited, Tripp's Forms, 5. Seir-at-lam. 1. In suits to execute the trusts of a will, it shall not be necessary to make the heir-at-law a party; but the plaintiff shall be at liberty to make the heir-at-law a party where he desires to have the wiU established against him. (26tii Aug. 1841; Ord. 31.) Since the Act 3 & 4 Will. IV. 1. 104, ("An Act to render Freehold and Copyhold Estates Assets for the Payment of Simple and Contract Debts,") it is not necessary in a creditors' suit to establish the will against the heir-at-law, Goodchild v. Terrett, 5 Beav. 398. In Burch v. Coney, 14 Jur. 1009, the bill was dismissed with costs against disclaiming heirs, who, as well as devisees, had been made parties in a creditors' suit. As to the expediency of making the heir a party in suits for the sale of real estate, see Sidney Smith's Chancery Practice, 225. As to the cases in which the Court would formerly execute the trusts of a will without the heir-at-law being a party, see Seton on Decrees, 115. Parties jointly and severally Liable. 2. Where the plaintiflF has a joint and several demand against several persons either as principals or sureties, it shall not be necessaty to bring before the Court, as parties to a suit concerning such demand, all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. (26th Aug. 1841; Ord. 32.) See as to parties to a suit against trustees of a creditor's deed, Bateman v. MargerUon, 6 Hare, 496. Suit charging breach of trust cannot proceed in absence of representatives of one of the trustees liable to contribute, Devaynei v. Robinson, 24 Beav. 86 ; see Shipton V. Sawlins, 4 Hare, 619. See as to proceeding against some only of the parties to a breach of trust. May V. Selby, 1 Y. & C. C. C. 235 ; Phillipsoa v. Gatty, 6 Hare, 26 ; Simes v. Eyre, 6 Hare, 137 ; Horsley v. Fawcett, 11 Beav. 565 ; Fowler v. Reynat, 2 De G. & S. 749. This Order applies to cases of breaches of trust, Kellaway v. Johnson, 5 Beav. 319 ; Perry v. Knott, 5 Beav. 293. And to an information against public trustees, Attorney-General v. Pearson, 2 Coll. 581 ; 10 Jur. 651 ; Attorney- General V. Corporation of Leicester, 7 Beav. 176 ; Perry v. Knott disapproved of; Lenaghan v. Smith, 2 Ph. 301. Where a surety files a bill to set aside a bond, the principal and co-surety [33] iNTAIfTS AND PERSONS OP UnSOUND MiND. S3 are both necessary parties, Allan v. Holden, 6 Beav. 148 ; sureties cannot be sued without their principals, Pierson v. Barclay, 2 De 6. & S. 746. But plaintiff may elect against which of two principals, or which of two sureties, he will proceed, Lloyd v. Smith, 7 Jur. 460 ; see Wilson v. Goodman, 4 Hare, 54. Where bill, besides charging surviving executor with breach of crust, seeks account of personal estate of testator, personal representatives of deceased executor must be parties, iSig-^s v. Penn, 9 Jur. 368 ; 4 Hare, 469 ; see re- mark on the report of this case, Shipton Y.Rawlins, 4 Hare, 619. In an admi- nistration suit all persons liable must be parties. Hall v. Justin, 2 Coll. S70 ; 10 Jur. 452. Where two classes of trustees committed breach of trust, cestuis que trust may proceed against one class only, UPGachen v. Dew, 15 Beav. 84. But the cestuis que trust cannot arbitrarily select any one trustee and make him liable. See Tipton V. Rawlins, ubi supra. After bill filed against all the trustees it cannot, at the hearing, be dismissed by plaintiff against only one of them, Fussell v. Elu/in, 13 Jur. 333 ; nor can he, after electing to proceed against one afterwards, proceed against another alone, London Gas Company v. Spottiswoode, 14 Beav. 264. In a suit against sureties where after a payment into Court by them one died, it was held that he must be represented ; in such suit contribution between the sureties will not be decreed. Mayor of Berwick v. Murray, 7 De G., M. & G. 497 ; 3 Jur., N. S. 1 ; 26 L. J. 201 ; 5 W. R. 208. In a suit by a creditor of partners against the estate of a deceased partner, the surviving partner must be a party. See Hills v. M'Rae, 9 Hare, 297 ; see also as to this rule, Pinkus v. Peters, 5 Beav. 253. Where the interests of the original defendants are not affected by the altera- tions introduced by supplemental bill, they need not be parties to it, Willcinson ■V. Fowkes, 9 Hare, 193. See, as to parties to supplemental bill, Daniell's Ch. Pr. 1171. See notes to 15 & 16 Vict, c 86, s. 42, r. 4, at commencement of this Order. n. Intahts and Persons of Unsound Mind. Default in Appearing or Answering, hy an Infant or Person Non compos mentis — Assignment of Solicitor as his Guardian. 3. Where, upon default made by a defendant in not appearing to or not answering a bill, it appears to the Court that such defendant is an infant or a person of weak or unsound mind not so found by inquisition, so that he is unable of himself to defend the suit, the Court may, upon the application of the plaintiff, order that one of the solicitors of the Court be assigned guardian of such defendant, by whom he may appear to and answer or may appear to or answer the bill and defend the suit. But no such order shall be made, unless it appears to the Court on the hearing of such application that a copy of the bUl was duly served in manner provided by the Stat. 15 & 16 Vict. c. 86, and that notice of such application was, after the expiration of the time allowed for appearing to or for answering the bill, and at 54 OsDEK Vn. — Pakties, etc. [34J lesat six clear days before the day in such notice named for hearing the application, served upon or left at the dweUing-house of the person with whom or under whose care such defendant was at the time of serving such copy of the bill, and also (in the case of such defendant being an Laf^t not residing with or under the care of his father or guardiaa) served upon or left at the dwelling- house of the father or guardian of such infant, unless the Court, at the time of hearing such application shall dispense with such last-mentioned service. (8th May, 1845; Ord. 32; and Ord, 16, Art. 48.) As to including Sunday in the six days her&mentionedi see Ord. 37, r. 11. Se^ Qrder 10, r. 6, as to invalidity of appearance entered by plaintiff for an infant or person of unsound mind. See as to time for service of notice of motion for a guardian to a defendant, Ord. 33, 1. 3. See as to costs of solicitor, who is guardian ad litem, Ord. 40, r. i. As to appointment of guardian in cases of abatement and order to revive, see Ord. 32, r. 1. By 1 Will. IV. u. 36, s. 15, r. 9, with respect to prisoners confined for contempt, it is enacted, that if it shall appear, to the satisfaction of the Court, that any such prisoner is, an, idio^, lunatic, or of unsound mind, although no commission has issued, the Court shall appoint a guardian to put in his answer and discharge the defendant, providing for the costs in any of the ways pointed out by that Act as shall seem just ; and, if the Court shall see fit, the defence may be made by such guardian inform&. pavpei-is. The solicitor to the suitors' fund is generally the proper person, M'Keveraiin V. Cort, 7 Beav. 347 ; Sheppard v. Harris, 10 Jur- 24. Lunatic's wife's solicitor appointed, Biddulph v. Dayrell, 15, L. J. 320, See Brooks v. Joblin, infra. The persoQ appointed ought not to be a mere volunteer, Foster v. Cautley, 10 Hare, App. 24; Anon. 9 Hare, App. 27. Under sect. 21 of 15 & 16 Vict c. 86, a guardian ad Utem oi an infant defendant, within the jurisdiction, will be ap- pointed without a commission, Egremont v. Egremont, 2 De G., M. & G. 730 ; 22 L. J. 108 ; Starr V. Pannell, 1 W. R. 209 ; Brooks v. Joblin, infra. So as to a lunatic, Piddocke v. Smith, 21 L. JC. 359 ; Re Greaves, 2 W. R. 355. In the case of an alleged lunatic, a guardian may be appointed at instance of plaintiS^ after notice of motion served on alleged lunatic, Brooks v. Joblin, 2 Hare, 155; 8 Jur. 186. As to service on a lunatic, see Morgan v. Jones, 4 W. R. 381. To authorize the appointment of a guardian ad litem for a lunatic, it should appear that none of the relatives of the alleged lunatic would undertake the defence, Moore v. Platel, 7 Beav. 585. Solicitor of wife of lunatic not appointed unless it appear that he has no interest adverse to her, Biddulph v. Lord Camoys, 10 Jur. 485. Neither a married woman, nor an infant, nor the plaii^tiff, nor, in general, » person out of the jurisdiction, can be appointed, Jnon. 18 Jur. 770 ; Sid. Smi,th, Ch. Pr. 326. Notice should be serv^ on or left at the dwelling-house of the person under who?e care the defendant is, Taylor v. Antley, 9 Jur. 1055 j Hitch v. Wells, [34] Infants and Persons of Unsound Mind. 35 8 Beav. 576. On the head of a college of which the defendant is under- graduate, Christie v. Cameron, 4 W. E. 589. Substituted service may be ordered in a proper case. Where the infant defendants were concealed by their mother, service on her was ordered, CTori v. Waters, Sid. Smith, 253. Service at the dwelHngof the mother and her second husband held sufficient, Hitch v. Wells, 8 Beav. 576. Affidavit omitting to state service at the dwelling-house or personally held insufficient. Tat/lor v. Ansky, 9 Jur. 1055. Where an infant appeared by a solicitor voluntarily, service on hitn sufficient, Cookson v. Lee, 15 Sim. 302; Wikon v. Edmonaiane, Sid. Smith, 254. See Blackmore v. Hoaett, infra. Appearance of infant in Court dispensed with ip case of ill health, or on affi- davit accounting for his absence, Shuttleworth v. Shuttleworth, 2 Hare, 147 i Crabbe v. Moubery, 5 Defa. & S. 347 ; Berdsm v. Worthy, ibid. 648 ; and is now dispensed with generally, Sid. Smith's Ch. Pr. 57. The guardian is now ap- pointed on petition of course, and not in open Court, ibid. 57, 326. See Foster V. Cautley, supra ; Steed v. Calley, infra. Illness of defendant ground for giving further time for answering, not for appointing a guardian, Witlyams v. Hodge, 1 M. & 6. 516. Formerly the mode of compelling an infant to put in answer was to seal but not execute an attachment against him, and to move for a messenger to bring him into Court to have a guardian assigned. Steed v. Calley, 7 Sim. 148. Where an infant, or person of unsound mind, has not been served with a copy of the bill, the proceeding is under the old practice, Lockhart v. Riley, Sid. Smith, 273 ; as to which, see Ibid. ; as to person in infirm health. Miles v. Zingham, 7 Ves. 230. Where it was disputed whether the defendant was incompetent to answer an inquiry by the Master as to his state of mind was directed, Lee v. Ryder, 6 Madd. 294. Where guardian ad litem of a person of unsound mind dies, a special appli- cation for another guardian is necessary, Needham v. Smith, 6 Beav. 130. The list of petitions of course at the Rolls, in Daniell's Chancery Practice, p. 1415, includes such applications with respect to guardians of infants. Guardian ad litem of infant defendant appointed though he was not in default, Bentleg v. Robinson, 9 Hare, App. 76. In Saunders v. Walter, 19 L. J. 409, defendants allowed further time for answering, were allowed to obtain guardians ad litem. Where the infant is a married woman a guardian must he appointed, Colman v. Northcoate, 2 Hare, 147. Appointments of guardians ad litem are excepted from the applications as to guardianship which may be made at Chambers. (Sid. Smith, 502.) An' Order may be obtained by an infant on petition as of course at the Rolls, for assign- ment of guardian. (Daniell's Chan. Prac. 141S.) On like petition Order obtained by plaintiff for infant to answer by his guardian without oath or sig- nature. {Ibid. 1407.) The affidavit on petition for assignment of guardian should, if the infant be abroad, prove the infancy, Lingren v. Lingren, 7 Beav. 66. Appointment of guardian in proceedings by summons or petition, Osbaldiston V. Crowther, 1 Sm. & d., App. 12; Re Greaves, 2 W. R. 355. See Ord. 7, i. 7. 56 Oedee Vn.— Paetees, etc. [34] Smearing Plea or Answer of Infant. 4. Where a plea and answer or a plea or answer severally shall be brought to be sworn by the guardian of an infant, the same shall not be sworn until the order appointing such guardian shall be produced to the person before whom the same shall be sworn. (25th Oct. 1699.) Where the answer of an infant is sworn to, it is sworn by the guardian, WTottesUy v. Bendish, 3 P. W. 235. Where a guardian is co-defendant he need sign the answer only once, Anon., 2 J. & W. 553. See notes on the section here referred to at the commencement of the notes in this Order. The Judge at Chambers, in the first summons to proceed with the Decree, directs who are to he served, De Balinliard v. Bullock, 9 Hare, App. 13. As to serving an infant with notice of the Decree, Clarice v. Clarice, before Vice-- Chancellor Stuart, 23rd Nov. 1852 (L.T.); 9 Hare, App. 13, in marginal note. Order made in a claim directed to be served on some infants and on their father, on behalf of younger infants, Leete v. Jenkins, Sid. Smith, 526. As to the mode of applying at Chambers under this Order, see Regulations of Aug. 8, 1857, Reg. 7. Service of Notice of Decree or Order, in case of Infants or Persons of Unsound Mind. 5. Where any person required to be served with notice of a decree or order pursuajit to the 8th rule of the 42nd section of the Stat. 15 & 16 Vict. c. 86, is an infant or a person of unsound mind not found so by inquisition, the notice shall be served upon such person or persons and in such manner as the Judge to whose Court the cause is attached may direct. (1st June, 1854; Ord. 5.)^ The section here mentioned is cited in the first note to this Order. See as to service on infants and lunatics, notes to Ord. 10, rr. 1, 2. Where an infant out of the jurisdiction had been served a memorandum of service was ordered to be entered, Chalmert v. Laurie, 10 Hare, App. 27 ; see Clarke v. Clarke, cited in last note. Guardians ad litem for Infants or Persons of Unsound Mind who shall he served with Notice of Decree or Order. 6. Guardians ad litem, appointed for infants or persons of un- sound mind not found so by inquisition, who shall be served with notice of any decree or order, shall be appointed in like manner as guardians ad litem to answer and defend are appointed in suits on bills filed. (Ist June, 1854; Ord. 6.) Such Guardians appointed during Proceedings at Chambers. 7. At any time during the proceedings at any Judge's Cham- bers under any decree or order, the Judge may, if he shall think [34] Paupers. 57 fit, require a guardian ad litem to be appointed for any infant or person of unsound mind not found so by inquisition, who has been served with notice of such decree or order. (1st June 1854' Ord. 7.) In proceedings by administration summons, guardian ad litem appointed to represent defendant's husband who had become lunatic, Osbaldision v. Crawther, 1 Sm. & G., App. 12 ; 1 W. R. 255. [35] m. Paupers. JVb Person admitted to sue in Formd pauperis without a Cer- tificate of Counsel. 8. No person shall be admitted to prosecute any suit in this Court in forma pauperis, without a certificate of counsel, that he conceives the case to be proper forrelief in this Court. (4th July, 1688.) As to signature by solicitor of pauper's notice of motion, see Ord. 3, rr. 1 and 10. As to paupers in custody, see Ord. 12, rr. 4 and 5. As to costs payable to paupers, Ord. 40, r. 5. As to charges for copies furnished to or by paupers, Regulation 4, r. 2. As to pauper prisoners of unsound mind, see 1 Will. IV. u. 36, s. 15, cited in the note to Ord. 7, r. 3. Appeal allowed in formd pauperis, Bland v. Lamb, 2 J. & W. 399 ; Wellesley ▼. Wellesley, 1 De G., M. & G. 501 ; examination pro inieresse suo allowed in formd pauperis, James v. Dore, Sid. Smith, 780. As to the poverty which entitles so to sue, see Goldsmith v. Goldsmith, 5 Hare, 123 J Perry v. Walker, 1 Coll. 229 ; Burry Port Company v. Bowser, 26 L. J. 320 ; Dresser v. Morton, 2 Ph. 285 ; and other cases cited, Sid. Smith, Ch. Pr. 781 ; Daniell's Ch. Pr. 42. As to motion to dispauper, see Parkinson v. Hanbury, 4 De G., M. & G. 508 j St. Victor Y. Devereui, 6 Beav. 584; Mather v. Shelmerdine, 7 Beav. 267. Pauper may not dismiss his bill without costs. Ex parte Parkinson v. Hanbury, supra. After notice of motion by defendant to dismiss, costs of motion must be paid by plaintiff before leave to sue in formd pauperis. Smith v. Pawson, 2 De G. & Sm. 490. Whether an infant may on special grounds be admitted to sue in forma pauperis, Lindsay v. Tyrrell, 24 Bear. 124 ; 2 De G. & J. 7. Pauper may be dispaupered on the ground of improper conduct, Whitelocke v. Baker, 13 Ves. 511 ; Wagner v. Mears, 3 Sim. 127 ; and see Goldsmith v. Gold- smith, 5 Hare, 123 ; Nowell v. Whitaker, 6 Beav. 407. An executor or administrator cannot, as such, proceed in formd pauperis. Old- field V. Cobbett, 2 Beav. 444; 3 Beav. 432; 1 PhilL 613; except to clear con- tempt, S. C. 1 CoUyer, 169. Administratrix having beneficial interest allowed to sue in formd pauperis, Parkinson v. Chambers, 24 L. J. 47 ; 3 W. R. 34 ; so of executrix defendant, Eversonv. Matthew, 3 W. R. 159. For the next friend of a married woman so to sue requires a special application, Dowden v. Hook, 8 Beav. 399; Coulsting v. Coulsting, 8 Beav. 463. A married woman, if a pauper, may so sue without a next friend, Re Lancaster, 18 Jur. 229 ; Wellesley S8 Oedee Vn. — Paeties, etc. [35] V. Lord Morningfm, 18 Jur. 552; Ex parte Hakewell, \ W. R. 278; Re Foster, 18 Beav. 525 ; Hind v. Whitmore, 2 K. & J. 458 ; 25 L. J. 394, and so may appeal, where next friend refuses the use of his name for the purpose, Crouch v. Waller, 5 Jur., N. S. 326. But if she sue by a next friend, he must be a sub- stantial person, ibid. ; Wilton v. Hill, 2 De G., M. & G. 807 ; but he will not be disqualified unless his insolvency be proved, Elliott v. Ince, 26 L. J. 821. See, as to next friend, note to Otd. 40, r. 6. Remuneration to Counsel or Solicitor. 9.. After an admittance to sue or defend in form& pauperis, no fee, profit or reward shall be taken of the pauper by any counsel or solicitor, for the despatch of the pauper's business, during the time it shall depend in Court, and he shall continue in formd pauperis; nor shall any agreement be made for any recompense or reward afterwards. And any person offending herein shall be deemed guilty of a contempt of Court ; and the party admitted, who shall give any such fee or reward or make any such agree- ment, shall be from thenceforth dispaupered, and not be afterwards admitted again in that suit to sue or defend in forma pauperis. f22nd May, 1661 ; Sanders, 312.) As to costs payable to pauper, see Ord. 40, r. 5. As to assignment of counsel, see note to Ord. 3, r. 10 ; and 1 Will. IV. c. 36, s. 15, r. 6, cited in note to Ord. 12, r. 4. Refusal of Counsel and Solicitor assigned. 10. The counsel or solicitor assigned by the Court to assist a person admitted in forma, pauperis, either to sue or defend, may not refuse so to do, unless such counsel or solicitor satisfy the Judge who granted the admittance, with some good reason for his unwillingness to be so assigned. (22nd May, 1661 ; Sanders, 312.) Process of Contempt at the Suit of a Pauper,, and Notices of Motion or Petitions on his hehalf. *11. No process of contempt shall be issued at the instance of any person suing or defending in forma pauperis, until it be signed by his solicitor in the suit. And no notice of motion served or petition presented on behalf of any person admitted to sue or de- fend in formd pauperis (except for the discharge of his solicitor) shall be of any effect, nor shall any person served with such notice or petition be bound to appear thereon, unless su<;h notice or peti- tion be signed by the solicitor of such person so suing or defending. And such solicitor shall take care that no such process be taken out, and that no such notice or petition be served, needlessly or for vexation, but upon just and good grounds. (22md May, 1661 ; Sanders, 313.) The second sentence of this Rule is new ; the rest is substantially the same as in Sanders's edition of the Orders. 8*66 as to signing pauper's notice, Ord. 7, r. 8. [36] Pleadings, etc. 59 Order VIII. PI^EADINGS AND WKITTEN PROCEEDINGS GENERALLY. Signature of Counseh 1. The Clerks of Records and Writs shall not file any bill, ex- ceptions, demurrer, plea, answer or disclaimer, unless the same be signed by counsel. (Henry V. Ord. 17 ; and 22nd May, 1661 ; Sanders, 298, 300.) Where a solicitor altered a bill drawn by counsel, and subsequently obtained an order to amend, and struek out his own alterations yirithout procuring coun- sel's signature to the amendment, bill taken off the file, Burchv.Rich, 1 R. & M. 156. In Gristing v. Hore, Gary's Rep. 82, bill dismissed because the name of counsel was put without his privity. In the case of Bingham v. Warren, Gary, 89, the bill was dismissed, because, among other reasons, counsel's signature was omitted. Where on bill not signed by counsel an injunction was obtained, subpoena issued against plaintiff to answer his misdemeanor and pay costs, John ap Edward v. Jenkin, Gary, 107. Defendant not to answer until a counsel's name put to the bill, Farly v. Child, Gary, 112. A bill not signed by counsel ordered to be taken off the file, and the plaintiff to pay the defendant taxed costs, Dillon v. Francis, 1 Dick. 68. See also, French v. Dear, 5 Ves. 547. Defendant may demur to a bill for want of the signature of counsel, Kirkley v. Burton, 5 Madd. 378. A solicitor, who forged counsel's signature, fined and committed, Whithck y. Harriot, 1 Dick. 16; 2 Gb. Rep. 386. Where counsel amends the draft bill, who signed the draft original bill, second signature of the engrossment is not necessary, Webster v. Threlfall, 1 S. & S. 135. Omission of counsel's name on claim not to prevent its being filed, Coppeard v.. Mayheui, 22 L. J. 408. Signature of special case, Ex parte Craig, 15 Jur. 762 ; 20 L. J. 136. As to signature to interrogatories, see Schedule B. to these Orders. Where counsel's signature to answer is omitted defendant must apply for leave to amend, Harrison v. Delmont, 1 Price, 108. In Whitehead v. Cunliffe, 2 y. & G. Exch. 3, record amended by adding counsel's signature. Perusal iy, Counsel — Brevity—rScavdai: 2. No counsel shall sign any bill, answer, or other pleading, unless it be drawn, or, at least, perused, by himself before it be signed. And counsel shall take care that deeds, writings, or re- cords, be not unnecessarily set out therein in keec verba; but that so much of them only as is pertinent and material be set out or stated, or the effect and substance of so much of them only as is pertinent and material be given, as counsel may deem advisable, without needless prolixity ; and that no scandalous matter be in- serted therein. (22nd Maiy, 1661 ; Sanders, 296.) 60 Oedee Vni. — Pleadings, etc. [36] See Ord. 16, r. 2, as to exceptions for scandal. See Ord. 40, i. 9, as to the costs of pleadings, &c., improper, or of unnecessary length. In Emerson v. Dttllison, 1 Ch. Rep. 134, plaintifif and his counsel ordered to pay costs for a scandalous bill. As to what will be considered scandal or impertinence in a hill, see Daniell's Ch. Prac. 241 ; Sidney Smith, 786, and the notes to Ord. 16, r. 20. Filing of Proceedings. 3. No bill, answer, or other pleading, shall be said to be of re- cord, or be of any effect in Court, until the same be filed in the oflB^ce of the Clerks of Eecords and Writs. (22nd May, 1661 ; Sanders, 297. 8th May, 1673, Ord. 4.) ■ Abolition of Claims. *4. No claims shall be filed after the 14th day of February, 1860. Order IX. BILLS. L Bills GtEneeallt. Value of Subject Matter. 1. Every suit, the subject matter of which is under the value of 101., shall be dismissed, unless it be instituted to establish a general right, or unless there shall be some other special circumstance, which, in the opinion of the Court, shall make it reasonable that such suit should be retained. (29th Jan. 1618 — 19 ; Ord. 15.) It has been said that a defendant may demur to a bill if it appears on the face of it to be brought for a very small sum, but it is most usual to apply to the Court that the hill may he dismissed. (Mitford on Pleading, 4th ed. 110 n. ; 5th ed. 131.) The Court will entertain a bill for a small amount where the suit is for the benefit of the poor, or for a charity, Parrot v. Pawlet, Gary, 103 ; 1 Eq. Ca. Ahr. 75, margin (u), or where the bill is to establish a fight to ancient quit rents, Cooks v. Foley, 1 Vern. 359. The suit sustainable where the sum recovered was %l., as plaintiff might have supposed a large sum recoverable and defendant gave no information about it, Becltitt v. Bilborough, 8 Hare, 189. Bill for in- junction and account of profits of periodical of less amount than 31. dismissed, Whittingham v. Wooler, 2 Swanst. 428 ; see Bailey v. Taylor, 1 R. & M. 78 ; Branker v. Massey, 2 Price, 8 ; Smith v. Target, 2 Anstr. 529 ; Marber v. Kemp- ster, Cary, 83 ; Hamby v. Northage, ibid. 76 s Townly v. Parsons, ibid. 74 ; Est- court v. Tanner, ibid. 74 ; and several similar cases, ibid. The objection may he taken at the hearing, Bruce v. Taylor, 2 Atk. 253. [37] Bills Generally. 61 Form of Bill — Indorsement on Bills. 2. Bills may be in a form similar to the form set out in Sche- dule (A.) to these Orders, with such variations as the nature and circumstances of each particular case may require. (7th Aug. 1852, 1st Set, Ord. 14.) * And Bills shall be indorsed in the manner set forth in the Schedule to the Stat. 15 & 16 Vict. c. 86, except that, instead of the words in the note, " you will be liable to be arrested and im- prisoned," there shall be substituted the words, " The plaintiif may enter an appearance for you, and you will be liable to be arrested and imprisoned, and to have a decree made against you in your absence." * As to amending printed bills, see Ord. 9, r. 1 8. By 15 & 16 Vict. c. 86, b. 1. " From and after the time hereinafter ap. pointed for the commencement of this Act, the practice of engrossing on parchment bills of complaint or claims to be filed in the said Court, and of filing such engrossment shall be discontinued, and the Clerks of Records and Writs of the said Court shall receive and file a printed bill of complaint or claim in lieu of an engrossment thereof in like manner as they now receive and file such engrossment.'* Sect. 2. " The writ of subpoena to appear to and answer a bill of complaint in the said Court, and the writ of summons upon a claim shall respectively be abolished." ■ ■ < ' , Sect. 3. " In lieu of serving the defendant' to a bill of complaint in the said Court with a writ of subpoena to appear to and answer the same, and in lieu of serving the defendant to a claim in the said Court with a writ of sum- mons upon such claim in the mode, and aecordingfto the practice now adopted in the said Court with reference to such writs respectively, the defendant shall be served with a printed bill of complaint or claim with an indorsement thereon in the form or to the effect set out in the schedule to this Act, with such varia- tions as circumstances may require, such printed bill of complaint or claim'so to be served being previously stamped with a proper stamp by one of the Clerks of Records and Writs, indicating the filing of such bill of complaint or claim and the date of the filing thereof." Sect. 4. " The filing of a printed bill of complaint or claim in the Said Court shall have the same effect as the filing of a bill of complainti or claim in the safae Court and the issuing a subpoena or writ of summons therepn respectively now have, and the service upon the defendant of a printed bill of complaint or of a claim so filed with such indorsement thereon, so stamped as aforesaid, shall have the same effect as the service on hini of a writ of subpoena, or writ of sum- mons respectively now has, and shall entitle the plaintiflT in such suit to such remedies for default of appearance and otherwise, as he is now entitled to in case of due and proper service of a subpoena to appear to and answer a bill of complaint, or of a writ of summons upon a claim." For sect. 5, see Ord. 10. Sect. 6. " Notwithstanding the provisions hereinbefore contained, the Clerks of Records and Writs of the said Court may receive and file a written copy of 62 Order IX.— Bu.ls. [37] any bill of complaint praying a writ of injunction, or writ of me exeat regno, or filed for the purpose either solely or among other things of making an infant a ward of the said Court, upon the personal undertaking of the plaintiff of his solicitor to file a printed copy of such bill within fourteen days, and every bill of complaint so filed shall be deemed and taken to have been filed at the time of filing the written copy thereof, and a written copy of any such bill of com- plaint, stamped as aforesaid, and with such indorsement thereon as aforesaid, may be served on any defendant thereto, and such service shall have the same effect as the service of a printed copy." For sect. 7, see Ord. 9, r. 5 ; for sect. 8, see Ord. 9, t. 18. Sect. 9. " It shall be lawM for the Lord Chancellor, from time to timfe, to make any Order or Orders directing that the provisions hefeinbefoS'e contained, as to printing or otherwise, shall be discontinued or suspended until further order ; and to direct that all or any of the present practice as to the filing of bills and claims and the issuing and service of subpoenas and writs of summons may be revived, and come into operation as if this Act had not passed." Sect. 10. " Every bill of complaint to be filed in the said Court, after the time hereinafter appointed for the commencement of this Act, shall contain as concisely as may be a narrative of the material facts, matters and circumstances on which the plaintiff relies, such narrative being divided into paragraphs, numbered consecutively, and each paragraph containing as nearly as may be a separate and distinct statement ac allegation, and shall pray specifically for the relief which the plaintiff may conceive himself entitled to, and also for general relief; but such bill of complaint shall not contain any interrogatories fot the examination of the defendant." By sect. 66, " In the construction of this Act the words 'bill Of complaint' shall mean also and include information." The form of indorsement of a bill of complaint set out in the schedule to the Act is as follows : — "Victoria R. To the within-named defendant C. D., greeting: We command you [" and every of you," where there is more than one defendant] that within eight days after service hereof on you, exclusive of the day of such service, you cause an appearance to be entered for you in Our High Court of Chancery, to the within bill of complaint of the within-named A. B., and thilt you observe what Our said Court shall direct. Witness Ourself at Westminster, the day of , in the year of Our reign. Note. — If you fail to comply with the above directions, you will be liable to be arrested and imprisoned. Appearances are to be entered at the Record and Writ Clerks' Office, Chancery Lane, London." Note to Sect. 3. The form of bill given in the schedule to these Orders differs from the form given in the schedule to the first set of Orders of 7th day of August, 1852, in the following particulars: — In these Orders the word "Between" is added before the name of the plaintiff, and the word "and" before the names of the defend^its; the dates and sums are printed with arable figures. [37] Bills Geneeally. 63 Under prayer for general relief, relief inconsistent with the allegations of the bill will not be granted, Hill v. The Great Northern Railway, 5 De G., M. & G. 66 J 18 Jur. 685. See further, as to effect of a similar prayer in a bill of discovery, note to Ord. 33, sect. 8. A misdescription of the plaintiff' may be taken advantage of by plea, which must be very precise in its averments. Smith v. Smith, 1 Kay, App. 22. But a clerical error in the name of the plaintiff' is not a. ground for a plea. Oust v. Southee, 19 L. J. 526. If a bill be filed by a next friend, his name, description and place of abode are set forth in the bill. Major v. Amott, 20 Jur. 80. Where a plaintiff' was misdescribed as a spinster, proceedings stayed till further order, Pyke v. Halcombe, 9 Jur. 368. Note to sect. 2 of 15 & 16 'Vict. i;. 86. See as to service out of the juris- diction of the bill and interrogatories together, Pearse v. Miller, 1 W. Rep. 192 ; Heath v. Lewis, 2 W. Rfep. 641. Formerly, where bill was amended before answer, it was not necessary to serve a subpoena to answer the amendments on defendants who had appeared to the original bill and not answered. Daniell's Ch. Fr. 2nd ed. 492 ; Sid. Smith, 245. Now, in the copy amended bill served on defendants not required to answer, the indorsement should be omitted. (Sid. Smith, 245.) See Stanleji V. Band, 6 Beav. 420. To obtain the Attorney-General's sanction and signature to an information he requires a certificate of the competency of the relator to pay the costs, and that the printed copy is a true copy of the draft prepared by counsel. (Sid- Smith, 188.) Note to Sect. 3. By an Order of the Master of the EoUs, 1st Feb. 1856, alterations of printed bills are to be in type. (Sid. Smith, 187.) In Yeatman v. Memley, 2 De G., M. 8j G. 220 ; 16 Jur. 1004 ; 22 L. J. 20, a christian name was allowed to be altered in writing in the printed bill. See Ord.. 9, 1. 9, and Ord. 8, r. 1. After hearing, written alterations cannot, even by consent, be treated as amendments, without reserving the bill, Godwin v. Coulson, 1 W. R. 485. The period of eight days, mentioned in the form of indorsement above given, is the time limited for the appearance of a defendant within the jurisdiction. See Ord. 10, i. 3. Where an Order fixed the time for appearance of defend- ants out of the jurisdiction, the indorsement may be altered with reference to that time, Chalfield v. Berchtoldt, 9 Hare, App. 8. The indorsement need not be printed iti such cases, Sharpe v. Blondeau, 1 W. Rep. 100, May be altered before it is served, Baynes v. Ridge, 9 Hare, App. 27. As to omission of the indorsement and service of a letter missive on a peer, see Sid. Smith, 247, 256 ; Daniell, 330. The latter states that the practice of serving letters missive appears to be obsolete. In a pressing case leave given to file a written copy of the bill without any stamp, when the Stamp Office was closed for the day, on the solicitor's under- taking to stamp the copy bill next day, Kershaw v. Kalow, 19 Jur. 974. De- fendant served with an unstamped copy and attached for not appearing held entitled to his costs, and (if he chose to appear) to compensation for the 64 Order IX.— Bills. [37] attachment, Button v. Smith, 24 L. J. 147 ; 3 W. Rep. 159. See further as to stamps, note to Sect. 6, infra. Several adhesive stamps, to the amount of 11., allowed to be fixed to an in- junction bill, Brain v. Brain, 9 Hare, App. 90. Note to Sect. 4. The words " due and proper service," where personal service is impracticable, mean service previously sanctioned by the Court, Re Boger, 3 Jur., N. S. 930. As to the effect of subpoena, see Ord. 10, infra. (Daniell's Ch. Pr. 307; Sid. Smith, 242.) Note to Sect. 6. See Ord. 9, r. 4. Where by accident the printed bill was not filed within the fourteen days, the written bill was ordered to be restored to the file, and the printed bill to be filed as on the last of the fourteen days, and plaintiff to pay costs of motion, Ferrand v. Corporation of Bradford, 21 Beav. 422 ; on appeal, 2 Jur., N. S. 360; 25 L. J. 389. Where proceedings were stayed, written copy bill to remain on the file and printed copy dispensed with till further order, Ld. Abingdmi v. Thomhill, 3 W. Rep. 615 ; 24 L. J. 536. If the printed copy be filed within the fourteen days a new stamp is not necessary, and the written copy remains on the file, Lambert v. Lomax, 9 Hare, App. 57; Jones v. Batten, 2 De G., M. & G. Ill ; 22 L. J. 13; 1 W. Rep. 69. See as to costs of wjritten bill, Ord. 40, r. 18. Special circumstances not within this section will not exempt a bill fi:om being printed, Yaie v. Lighthead, 16 Jur. 965. Interrogatories to written bill may be filed under Sect, 12, before printed copy filed, Lambert v. Lpmax, 9.Harei App., 29. Mode of Printing Bills. *3. Bills sKall be printed on cream wove machine drawing foolscap folio paper, 19 lbs. per mill ream, in pica type, leaded, with an inner margin- about''three (^[Uarters of an inch wide, and an outer margin about two inches and a half wide. (7th Aug. 1852, 1st Set, Ord. 1.) And dates and sums occurring therein shall be expressed by figures instead of words. Consequences of not Filing a Printed Copy of a Bill. 4. The Clprks of Records and Writs shall, at the expiration of fourteen days from the filing of any written biU or written copy of a bill, under the Stat. 15 & 16 Vict. c. 86, s. 1, take oflTthe files of the Court, without further order, the bill or copy so filed, unless a printed copy thereof shall in the mean time have been filed. And the plaintifi" in the suit, or his solicitor, who shall personally have undertaken to file such printed copy, shall pay to the de- fendant all the costs incurred by him in the suit ; such costs to be taxed by the Taxing Master, without further order, upon pro- duction to him of the certificate of the Clerk of Records and Writs that a printed copy of the bill has not been filed pursuant to such undertaking, and to be recoverable in like manner as costs ordered to be paid by a party in a suit to another party in a suit are reco- verable. (7th Aug. 1852, 1st Set, Ord. 3.) [3T] Bills Genekally. 65 See seet. 6 of 15 & 16 Vict. c. 86, in notes on the second Rule of this Order. As to costs of written bill, see Ord. 40, r. 18. Defendant limited to Ten Copies. 5. No defendant ahall be at liberty to demand from the plaintiff more than ten printed copies of his bill. (7th Aug. 1852, Ist Set, Ord. 6.) By IS & 16 Vict c. 86, s. 7, " The plaintiff in any suit to be commenced in the said Court, after the time hereinafter appointed for the commencement of this Act, shall be bound to delitrer to the defendant or his solicitor, upon appli- cation for the same, such a number of printed copies of his bill of complaint or claim as he shall have ocaasion for, upon being paid for the same at such rate as shall be prescribed by any General Order of the Lord Chancellor in that be- half." See Ord. 40, r. 19 j Ord. 36, r. 3. Sniis to perpetuate Testimony, 6. "Witnesses &haU not be examined in perpefuam ret mem,oriam, unless a bill shall have been filed for the purpose. (29th Jan. 1618-19; Ord. 73. 12th Nov. 1556.) By 73rd of Lord Chancellor Bacon's Orders here referred to, " Witnesses shall not be examined in perpetuam ret memtriam, except it be upon the ground of a bill first put in and answer thereunto made, and the defendant or his attorney made acquainted with the names of the witnesses that the plaintiff would have examined, and no publication to be of such witnesses, with this restraint nevertheless, that no benefit shall be taken of the depositions of such witnesses, in case they may be brought vM voce upon the trial, but only to be used in case of death before the trial, or age or impotency, or absence out of the realm at the trial." See as to suits to perpetuate testimony, Mitford on Pleading, [51], [150] ; Sid. Smith, 708. By 5 & 6 Vict. u. 69, " Any person who would, under the circuftistalices alleged by him to exist, become entitled upon the happening of any future event, to any honour, title, dignity or office, or to any estate or interest in any property, real or personal, the right or claim to which cannot by him be brought to trial before the happening of such event," may file a bill to perpetuate any testimony which may be materi£d for establishing such claim or right. The former practice is to be applied to suits instituted under that Act; the Attorney- General is to be made a party where the Crown is interested. See as to costs of suit to perpetuate testimony, Barham v. LoVgman, 2 Sim, 460 ) Beavan v. Carpenter, 11 Sim. 22 i Skrine v. Powell, 9 Jur. 1054 ; 15 Sim. 81. In Watkins v. Atchison, 10 Hare, App. 46, depositions taken in such suit allowed to be read at trial, the witness being dangerously ill ; and defendant, after obtaining order for his costs, precluded from objecting that the witness had not been croas-exanuned. E. F 66 Oedek IX.— Bills. [38] 7. No suit to perpetuate the testimony of witnesses shall be set down for hearing. (9th Nov. 1670.) A motion to dismiss such suit is irregular, Beman v. Carpenter, supra ; Barham V. Longman, supra. Plaintiff ordered to proceed or to pay defendant's costs, iliid. Bill to perpetuate testimony dismissed, Mackerell v. Hunt, 2 Madd. 34, note. II. Amendment of Bills. Order to amend before Ansrver. 8. An order for leave to amend a bill may be obtained at any time before answer, upon motion or petition, without notice. (8th May, 1845; Ord. 64.) Where plaintiff amends not requiring further answer, that should be stated in the order to amend, Boddington v. Woodley, 9 Sim. 380 See as to time allowed to defendant for pleading, answering or demurring, accordingly as he is or is not required to answer the amended bill, Ord. 37, t. 4, et seq. If no time be limited in the order to amend, plaintiff must amend within fourteen days from the date of the order. Ord. S3, r. 11. After the order is made and before service of it defendant may file a demurrer, Price V. Webh, 2 Hare, fill j or move to dismiss the bill, Jones v. Lord Charle- mont, 12 Jur. 389; 17 L. J. 449. Plaintiffs right to answer to amended bill not dependent on undertaking as to costs in the order to amend. Breeze v. English, 2 Hare, 638. Plaintiff is not, by omitting to amend within the period, precluded from oh-. taining a fresh order, Nicholson v. Peile, 2 Beav, 497. As a general rule, an insufficient answer may be regarded as no answer for the purpose of this rule. Bird V. Hustler,, 1 R. & M. 325. (See further as to this case, notes on Ord. 9, J. 11.) But where, after insufficient answer, defendant was ordered to answer amendments and exceptions together, plaintiff not amending within the fourteen days was held not entitled to a further order ex parte to amend, Dolly v. Challin, 11 Beav. 61. (See as to amendment after insufficient answer, Daniell's Ch. Pr. 289.) After appearance a plaintiffs name may not be struck out as of course, Sloggett V. Collins, 13 Sim. 456. As to the application at chambers in such case, see Fellowes v. Deere, 3 Beav. 353 ; and as to similar amendment in an information, Attorney- General v. Cooper, 3 M. & C. 258. Plaintiffs' names may be added after answer, Hichens v. Congreve, 1 Sim. 500. Plaintiff having given notice of motion for a decree, but not having set down the motion for hearing, may amend as of course, though defendant has filed affidavits in opposition to the motion. Gill v. Rayner, 1 K. & J. 395. As to amendment after demurrer or plea, see note to Ord. 14, r. 11. Clerical Errors. 9. An order for leave to amend a bill only for the purpose of rectifying some clerical error in names, dates or sums, may be ob- [38] Amendment of Bills. 61 tained at any time, upon motion or petition, without notice. (8th. May, 1845; Ord. 65.) Leave to amend the record by striking out a defendant's maiden name with- out reserving the bill, Barnes v. Bidgway, 1 Sm. & G., App. 18. See notes, Ord. 9, r. 1. As to corrections of names of formal parties served with copy bill, see Ord. 10, r. 12. Amendments under this Order render inoperative an order to take a bill pro confesso, Weightman v. Powell, 2 De G. & Sm. 570. As this Order makes no mention of amendments for adding parties, it is pre- sumed that such amendments are subject to the same restrictions as amendments for general purposes. Daniell's Ch. Pr. 292 ; and see Hitchcock v. Jaques, in note to Ord. 9, r. 15. An order of course may be obtained after replication to amend by adding parties ^here no new issue is thereby tendered, Bryan v. Wastell, 1 Kay, App. 47 ; 18 Jur. 44.6 ; 2 W. R. 335. Where name of deceased person erroneously made party by amendment was struck out by another amendment, the latter not within this rule, Horsley v. Fawcett, 10 Beav. 191. As to clerical error in a demurrer see first note to Ord. 14. Time for Order of course for leave to amend, where one Answer. 10. Where there is a sole defendant, or where, there being several defendants, they all join in the same answer, the plaintiff may, after answer and before replication or undertaking to reply, obtain one order of course for leave to amend the bill, at any time within four weeks after the answer is to be deemed or is held to be sufficient. (8th May, 1845; Ord. 16, Art. 32.) See as to amendment after plea, Ord. 14, r. 11. If one of several defendants has put in bis answer, the plaintiff cannot have more than one order of course to amend. Buncombe v. Lewis, 10 Beav, 273 i Bainbrigge v. Baddeley, 12 Beav. 152 ; Winthrop v. Murray, 7 Hare, 150. To avoid waiver of exceptions by motion of course to amend plaintiff should move specifically for leave to amend, without prejudice to the exceptions, De la Torre v. Bernales, 4 Madd. 396. Plaintiff amended by adding a party ; then hearing of bis death amended again before answer to the former amendments j held that the second order to amend was irregular, Horsiey v. Fawcett, 10 Beav. 191. The irregular amend- ment of a bill is not a ground for taking it off the file, if it can be restored to its original state, Attorney-General v. Cooper, 3 M. & C. 258. Amendment by order of course after special order to amend irregular, Edge v. Duke, 10 Beav. 184. A voluntary answer is treated as at once sufficient. Therefore, under this Order, the plaintiff cannot, after four weeks from the filing of a voluntary answer, obtain leave as of course to amend, Rogers v. Fryer, 2 W. R. 67. As to the time when an answer is deemed sufficient, see Ord. 16, rr. 16 & 18. The period differs accordingly as exceptions are or are not taken. Where plaintiff took exceptions and abandoned them, held that he abridged his time for amending as of course, Peile v. Stoddart, 11 Beav. 591. r2 iS8 Order IX.— Bills. C^®] In the discharged 13th Order of April 3, 1828, limiang the time after answer deemed sufficient within which » plaintiff might obtain an order to amend the answer to the original, not to the amended bill, was intended. Guardians of fVimborne Union v. Masson, 7 Beav. 309 j 8 Jur. 370. The four weeks above mentioned end at midnight on the last day. Proton V. Collelt, 20 L. J. 288. See Ord. 37, i- 9. Time for Order of course for leave to amend, where more than one Answer. 11. Where there are several defendants who do not join in the same answer, the plaintiff (if not precluded from amending, or limited as to the time of amending by some former order) may, after answer and before replication or undertaking to reply, at any time within four weeks after the last of the answers required to be put in is to be deemed or is held to be sufficient, obtain one order of course, for leave to amend his bill. {8th May, 1845; Ord. 16, Art. 33.) The 32nd and 33rd Articles of the 16th Order of May, 1845, referred to in the 10th and 11th Bules of this Consolidated Order, take the place of the 13fh Discharged Order of 1828, as amended in 1831, by which six weeks after answer deemed sufficient were allowed to a plaintiff to obtain one order of course to amend. Upon that order it had been held that plaintiff was only entitled to one order of course, although but one of several defendants had answered, Davis V. Prout, 5 Beav. 376; Attorney-General v. Nethercoat, 2 Myl. & Cr. 604. After adding a new defendant, the time for amending against the original de- fendant counted from the date of the last of their answers being deemed suffi- cient. See last case, Bertolacci v. Johnson, 2 Hare, 632 ; Haddlesea v. Nevile, 4 Beav. 28. But where no answer was required from the original defendant, the Court made an order ex parte for a second amendment, Evans v. Hughes, 5 Sim. 666. Under this 13th Order of 1 828, it was held that, where the bill has been previously amended, a subsequent order to amend obtained on submission to or allowance of exceptions does not require notice, Mendizabel v. Hultett, 1 R. & M. 324 ; Bird v. Hustler, ibid. 325. See Dolly v. Challin, cited in note to Ord. 9, r. 13. After replication withdrawn and bill amended upon special application, an order of course to re-amend before answer is regular, Wharton v. Swann, 2 M. 6 K. 362 ; not so after answer deemed sufficient, Orton v. Richdale, Coop. (P. C.) 403. An order to amend obtained and served after a defendant has given notice of motion to dismiss held an answer to the motion, but plaintiff to pay the costs of the motion, Peacock v. Sietier, 5 Sim. 553 ; Waller v. Pedlirtgton, 4 Beav. 124 ; Blake v. Blake, cited in note to next rule. A defendant stated in the bill to be out of the jurisdiction, is not for the pur- pose of this Order a defendant on the record, King of Spain v. Hullett, 1 R. & M. 7, note; 3 Sim. 388. See also Wimbome Union v. Masson, 8 Jur. 370; Wil- son V. Wilson, 8 Jur. 328. In this rule the words " last of the answers required to be put in " are sub- stituted for the words "last answer" in the Order of May, 1845, Ord. 16, [38] Ament)mest of Bills. 69 Art 33, referred to in this rule. It was settled that the words " last answer '■ in that Order, and the words "last of several answers," in Ord. 66 of May, 1S45 (Cons. Ord. 9, r. IS), meant the last answer to be got in by the plaintiff, Arnold v. Arnold, 1 Ph. 805 ; H Jur. 360 ; 9 Beav. 206 j see Slinlon v. Taylor, 4 Hare, 608 ; IS L. J. 321 j Colktt v. Preston, 3 M. & G. 432. But where the question was as to the right of the defendant to move to dismiss the bill, " the last of several answers " meant the last of several answers, filed by several defendants, or by more than one defendant, per Lord Langdale, Ballon V. Hayter, 7 Beav. 586 ; 9 Jur. lOOa In Formatt v. Grey, 9 Beav. 196, 200 ; 11 Jur. 488, Lord Langdale stated that the judgment in Dalton v. Hayter had reference to the filing of the answer required in the then state of the record. The expression in question has a meaning in the Orders just referred to differ- ent from its meaning in fte lUth Order of May, 1845, referred to in Cons. Ord. 33, r. 10, in/ra. An order to amend obtained, but not served, is no answer to a motion to dismiss, Jones v. Lord Charlemont, 12 Jur. 389 j 17 L.J. 449. After the order to amend is obtained, and before it is served, defendant may demur or move to dismiss, see note to Ord. 9, r. 8 ; and after service of the order to amend, may put in his answer to the original bUl, Mackerell y. Fisher, 14 Sim. 604. Order of course for leave to amend afie}- Notice of Motion to dismiss. 12. Provided always that the plaintiff shall not obtain an order of course for leave to amend his bUl after any defendant (being entitled to move) has served a notice of motion to dismiss the bill for want of prosecution. (13th April, 1847.) See as to motions to dismiss bills, Ord. 33, r. 10, et seq. In the case refierred to in this rule, a special ex parte order to amend is requisite, altliough merely to add parties. See note to Ord. 9, r. 15. The periods limited for amending bills under the preceding rules, and for moving to dismiss, frequently differ ; to avoid a discrepancy on that account, the Order referred to in this rule was made, Darnell's Ch. Pr. 638. Prior to this Order, an order of course to amend, obtained after notice to dismiss, was an answer to the motion, Blake v. Blake, 7 Beav. 514, and see last rule. As to orders to amend obtained, but not served, see last note. Order of course for leave to amend after Answer. 13. No more than one order of course for leave to amend a bill shall be granted after an answer has been filed, unless in the case provided for by the 9th Eule of this Order. (8th May, 1845; Ord. 66.) After one of several defendants has answered, not more than one order of course to amend, Duneombe v. Lewis, 10 Beav. 273. If a defendant be added by amendment after answer, no further amendment can be made even as against that defendant without special leave, Attorney- General V. Nethercoat, 2 My. & C. 604. See Evans v. Hughes, 5 Sim. 666. The 70 Okdek EX.— Bills. [3^] 66th Ord.of May, 1846, here referred to, applies to bills of discovery, Peile v. Stoddart, 11 Beav. 591. Bill amended by order of course after the proper time ordered to be taken off the file, ibid. Where answer insufficient, and plaintiff had order to amend but did not amend in the time limited, a second order ob- tainable only on notice, Dolly v. Challin, 1 1 Beav. 62. Second order of course to amend a bill of revivor and supplement discharged as irregular, Bennett v. Boneywood, 1 W. R. 490. As to amendment of course after plea or answer, see Ord. 14, r. 11. Affidavit in support of Special Application to amend. 14. A special order for leave to amend a biU shall not be granted without affidavit to the effect, — 1st, that the draft of the proposed amendments has been settled, approved and signed by counsel; and, 2ndl7, that such amendment is not intended for the purpose of delay or vexation, but because the same is considered to be material for the case of the plaintiff. (8th May, 1845; Ord. 67.) Where an answer was outstanding, plaintiff allowed to proceed under this instead of the following rule, Collett v. Preston, 3 M. & G. 432. Where leave was given at the hearing to amend by adding certain parties, plaintiff, if afterwards desirous of adding others, must apply for further leave, Biedermann v. Seymour, 2 Myl. & Cr. 117. As to evidence of materiality, see next note. Special applications to amend are in general to be made at chambers, 15 & 16 Vict. c. 80, s. 26, M'Leod v. Lyttleton, 1 Drew. 36; Coombe v. Ram- tay, 2 Ph. 168; Christ's Hospital v. Grainger, 1 Ph. 634. Special application and affidavit necessary for striking out name of plaintiff and making him de- fendant, ibid. The affidavit need not state all the amendments intended, but must state circumstances showing their nature, Payne v. Little, 14 Jur. 358 ; 19 L. J. 459 ; Stuart v. Lloyd, 3 Mac. & G. 18X. See notes to next rule. Where further Affidavit required. [39] 15. After the plaintiff has filed or undertaken to file a replica- tion, or after the expiration of four weeks from the time when the answer, or the last of the answers required to be put in, is to be deemed or is held to be sufficient, a special order for leave to amend a bill shall not be granted without further affidavit, showing that the matter of the proposed amendment is material, and could not, with reasonable diligence, have been sooner introduced into Such bUl. (8th May, 1845 ; Ord. 68.) As to evidence of materiality, and as to what will be deemed reasonable dili- gence, see Daniel v. Lord Falmouth, Cooper, P. C. 407 ; Winnall v. Featherstone- haugh, 15 L. J. 149; Christ's Hospital v. Grainger, 1 Ph. 634; 10 Jur. 37. The diligence must be co-extensive with the whole period from filing the answer, Winnall v. Featherstonehaugh, supra. Diligence in making the amend- ments, not in the general conduct of the cause, is to be shown, Edge v. Duke, , 16 L. J. 168 ; 11 Jur. 213. Solicitor's misconduct or inadvertence not a ground [39] Amexdmext of Bills. 71 for allowing further time, Clarke v. Mayor of Derby, 10 Jur. 978. See Potts v. Whitmore, 10 Beav. 177 ; Bainbrigge v. Baddeley, 12 Beav. 152. As to nature of the affidavit, see notes to preceding rule. See Attorney-General v. Corporation of London, 13 Beav. 313. Observations on the affidavit required, Collett v. Preston, 3 M. & G. 432. It must state not merely that the amendment could not with reasonable diligence have been introduced, but facts showing that, Stuart v. Lhyd, 3 M. & G. 181. As to replication, see Ord. 17. Under the discharged 15th Order of 1828 it was held that, in applying to the Court for leave to amend after replication, the Court will require as much infor- mation, and that the party should come with as much strictness as when the application is made after answer and before replication, Attomey-Geveral v. The Fishmonger^ Company, i Myl. & Cr. 1 ; Phillips v. Goding, 1 Hare, 40. Plaintiff having leave to amend after replication may as of course have a fiirther order to amend at any time before the answer to the amended bill is filed, Wharton v. Swann, 2 M. 8j K. 362. Where evidence discovered after replication, leave to withdraw replication and amend on payment of costs, Champneys v. Buchan, 3 Drew. 5. See Ord. 32, r. 2. The affidavit must satisfy the judge of the necessity of the proposed amend- ments, Bertolacci v. Johnstone, 2 Hare, 632. Where after answer the bill was amended, and answer put in to the amended bill, the 68th Order of May, 184S, here referred to did not apply, Masterman v. Midland Great Western Railway Company of Ireland, 20 L.J. 43; Macintosh v. Great Western Railway Com- pany, 20 L. J. 550. After replication, plaintiff may, without withdrawing it, add parties, Brattle v. Waterman, 4 Sim. 125 ; by ex parte application, Bryan V. Wastell, 1 Kay, App. 47 ; 18 Jur. 446; 2 W. R. 335; but not by motion of course, Hitchcock v. Jaques, 9 Beav. 192. As to amendment after replication, see Sid. Smith, Ch. Pr. 383 ; Daniell, Ch. Pr. 291, et seq. As to amendments allowed at the hearing, iWd. 293 ;' Jones V. Jones, 3 Atlc 1 10, 217 ; Attorney- General v. Newcombe, 14 Ves. 1, see p. 6 ; Johnson v. Compton, 4 Sim. 37, see p. 47 ; Kerrick v.Saffery, 7 Sim. 317 ; Milligan V. Mitchell, 1 M. & C. 433, 511 ; Magdalen College v. Sibthorpe, 1 Russ. 154; Biedermann v. Seymour, 2 M. & C. 117 ; Watts v. Hyde, 2 Ph. 406. As to the costs of the day when such amendments are allowed, compare Fussell v. Elwin, 7 Hare, 29, and Lowry v. Fulton, 9 Sim. 104; Cox v. Jllingham, 3 Madd. 393. As to supplemental statements after the time for amendment, see Ord. 32, i. 2. Leave was given to amend after order for trial at law and before trial by adding newly-discovered circumstances, Bolton v. Risdale, 24 L. J. 70 ; 2 W. R. 488, on appeal. By whom such Affidavits to be made. 16. Such affidavits as are mentioned in the 14th and 15th Rules of this Order shall be made by the plaintiff and his solicitor, or by the solicitor alone, in case the plaintiff, from being abroad or otherwise, is unable to join therein. (8th May, 1845 ; Ord. 69.) The affidavit must be by plaintiff and solicitor, Payne v. Littk, 19 L. J. 459. The affidavit of the clerk of plaintiff's solicitor not sufficient; but the Court 72 Oedek IX.— Bills. C^^3 may require the affidavit of the clerk, as well as of the solicitor, where the facts are within the knowledge of the former only, ChrisC ! Hospital v. Grainger, 1 Vb. 634; 10 JuF. 37; 15 L. J. 145. . , . , To ohtain an order to amend an information, the affidavit K made by the solicitor to the relator, Jttorney- General v. fTakeman, 15 Sim. 358 ; 10 Jur. 559 i Attomey-General v. Corporation rf London, 13 Beav. 313. See note on 1 Will. IV. c. 36, s. 15, r. 1, cited in notes at commencement of Ord. 12. 2%me for Amendment. 17, The plaintiff having obtained an order for leave to amend his bill, shall, in all cases in which no other time is limited by such order, have fourteen days after the date of the order within which he may amend such bill. (8th May, 1845 ; Ord. 16, Art. 34.) See as to default of amendment within the time limited by the order to amend, Ord, 9, r. 24, and Ord. 33, r. 11. Plaintiff neglecting to amend, ordered to amend within a given time, Cox v. AlUngham, 3 Madd. 393 ; Yarroway v. Hand, 2 Dick. 498. After order to amend or file supplemental bill within a month ; on default, order to dismiss and tax costs held to be of course, Dobede v. Edwards, 11 Sim. 454. If the bill be amended by special leave, and no time be limited by the Order, plaintiff must amend within fourteen days, Cridland v. De Mauley, 2 De G. & S. 560; Armisteai v. Durham, 11 Beav. 428. More time obtainable on special applica- tion, Bainbrigge v. Baddeley, 12 Beav. 152. Plaintiff submitted to a demurrer and neglectipg to amend under a first order of course, was allowed to do .=o under a second, no answer having been filed, Nicholson v. Peile, 2 Bear. 497. Mode of amending Bill, 18. WhOTe an amendment of a biU might formerly have been made without a new ingroasment thereof, s bill may be amended by written alterations in the printed bUL which has been filed, and by additions on p»per to be interleaved therewith if necessary. (7di Aug. 1852, Ist Set, Ord. 7.) But where such amendment could not formerly have been made without a new ingrossment, it shall be made by a reprint of the bUl. By 16 & 16 Vict c. 86, s. 8, " Upon the amendment of any bill of complaint or claim to be filed in the said Court after the time hereinafter appointed for the commencement of this Act, the provisions hereinbefore contained with respect to filing and serving, and delivering printed copies thereof, shall, so far as may be, extend and be applicable to the bill, or claim as amended : Pro- vided that where, according to the present practice of the said Court, an amend- ment of a- bill or claim may be made without a new ingrossment thereof, or under such other circumstances as shall be prescribed by any General Order of the Lord Chancellor in that behalf, a bill or claim may be wholly or partially amended by written alterations in the printed bill of complaint, or claim so to be filed as aforesaid." [39] Amendsient of Bills. 73 A new ingroasment was required if two folios were to be introduced con- tinuously in any one place, Stone v. Davies, 3 De G., M. & G. 240 ; 22 L. J. 672 ; 17 Jur. 585. By the present practice, the two folios are computed at 90 words per folio, Daniell's Ch. Pr. 286, note (ft) ; Sid. Smith, 359, note (6). The amendments may not be partly written and partly printed, Naylor v. Wright, 7 De G., M. & G. 403 ; 3 Jur., N. S. 95 ; 5 W. R. 221, in which case it was proposed to print one long amendment, and to make some other amendments in writing. Marking date of Order to amend and of Amendment on Re- cords—Entry of Amendment, with date of Amendment and of Order — Date of Filing. 19. Whenever any bill upon the file of this Court shall be amended, the record of such bill, when amended, shall be marked with the date of the order under which the same is so amended, and of the day on which such amendment is made, in manner and form following : — ^u,.," Amended day of ,tn/ Order dated day of ." And the usual entry of such amendment, together with the aforesaid date of making such amendment and the date of the order, shall be made in the Record and Writ Clerk's book. And such amended bill shall be deemed to be filed at and from the date of making such amendment. (12th May, 1838.) [40} Service of Amended Bill. 20. A copy of an amended bill, whether upon an amendment by a reprint or by such alterations and additions as mentioned in the 18th Rule of this Order, shall be served upon the defendant or his solicitor j and such copy may be partly printed and partly written, if the amendment is not made by a reprint : and in every case the copy to be served shall be stamped with the proper stamp by one of the Clerks of Records and Writs, indicating lie filing of such amended bill, and the date of the filing thereof. (7th Aug. 1852, 1st Set, Ord. 9.) The copy to be served is altered by the solicitor previously to its being stamped by the Record and Writ Clerks, Sid. Smith, 360. Service on the Solicitor. 21. Service upon a defendant's solicitor of a copy of an amended bill, whether wholly printed or partly printed and partly written, shaJl be good service on such defendant, (7th Aug, 1852, 1st Set, Ord. 10. 8th May, 1845 ; Ord. 26.) See as to service of copy of bill, Ord. 10. See as to the effect of this Order with respect to entering appearance for de- fendant to an amended hill, Ord. 10, r. 4. Service at Address for Service. 22. Where a defendant has appeared in person to any bill, 74 Order IX.— Bills. [40] service at the address for service of such defendant of a copy of an amended bill, whether wholly printed or partly printed and partly written, shall be good service on such defendant. (7th Aug. 1852, 1st Set, Ord. 11.) Limitation of Operation of this Order. 23. The 3rd, 4th, 5th, 18th, 20th, 21st and 22nd Rules of this Order shall not apply to bills filed before the 2nd day of Novem- ber, 1852, though afterwards amended ; and the practice existing immediately before that day, shall continue in force, with reference to the amendment of such bills. (7th Aug. 1852, 1st Set, Ord. 12.) Default of Amendment. 24. Where the plaintiff obtains an order for leave to amend his bill, and does not amend the same within the time thereby limited for that purpose, or, if no time is so limited, then, within fourteen days from the date of the order, such order to amend becomes void, and the cause, as to dismissal, stands in the same situation as if such order had not been made. (8th May, 1845 ; Ord. 70.) The only substantial difference between this rule and Ord. 33, r. 11, is the insertion of the words "having obtained no order to enlarge the time" in the latter, before the words " does not amend." See also notes on Ord. 9, r. 17. Where through misconduct of solicitor of plaintiffs their bill not amended in due time, further time refused, Clarke v. Mayor of Derby, 10 Jur. 978. The period of fourteen days applies also in cases of the allowance of a plea or de- murrer or special leave, unless another time specified in the order, Armistead v. Durham, 11 Beav. 428 ; Cridland v. Lord De Mauley, 2 De G. & S. 560 ; Bain- brigge v. Baddeley, 12 Beav. 15?.. By the 114th Discharged Order of 1828, the order to amend was to contain an undertaking to do so within three weeks. Where plaintiff had exceeded that time, and obtained a second order of course to amend, it was held regular, no answer having been filed, Nicholson v. Peile, 2 Beav. 497. Order X. [41] SERVICE OF COPY- OF BILL, AND APPEARANCE. Usual Mode of Service. 1. Service of every copy of a biU shall be effected by serving such copy personally, or by leaving the same with a servant of the defendant or some member of his family, at his dwelling-house or usual place of abode, unless the Court directs some other mode of service. (22nd May, 1661 ; Sanders, 297.) [41] In the Case of Parties Geneeallt. 75 See as to address for service, and service where there is no address for ser- vice, Ord. 3. As to service of decrees and orders, see Ord. 30, r. 4. As to ser- vice of notice of decrees and orders, Ord. 35, r. 1 8 ; in case of infants and persons of unsound mind, see Ord. 7, rr. 5 & 6. As to service of notice of motion, Ord. 33, 1. 3. See as to service of subpoena, Ord. 28, i. 6. By 15 & 16 Vict c. 86, s. 5, " The service upon any defendants of a printed copy of a bill of complaint or of a claim in the said Court, shall be effected in the same manner as service of a writ of subpoena to appear to and answer a bill of complaint is now effected, save only that it shall not be necessary to produce the original bill, which will be on the files of the Court j provided that the Court shall be at liberty to direct substituted service of such printed bill or claim in such manner and in such cases as it shall think fit" Service of subpcena iq, sealed envelope, Earl of Chesterfield v. Bond, 2 Beav. 263 ; Gathercole v. Wilkinson, 1 De G. & S. 682 ; 11 Jur. 1096 i 17 L. J. 101 ; at offices or chambers, v. Shaw, Daniell's Ch. Pr. 299 ; Re Lloyd, 10 Beav. 451 ; on a peer or member of parliament, Attorney-General v. Earl qf Stamford, 2 Dick. 764 ; Thomas v. Earl of Jersey, 2 M. & K. 398 ; Davidson v. Marquis qf Hastings, 2 Keen, 509 ; on husband or wife, Dubois v. Holl, 2 Vern. 613 ; Jones V. Geddes, 15 L. J. 65 ; Holcombe V. Trotter, 9 Jur. 637 ; Steele v. Planter, 1 M. 8c G. 83 ; Thomas v. Selby, 9 Beav. 194 ; Hope V. Hope, cited in note to Ord. 10, r. 2 ; on corporation, Maclaren v. Stainton, 16 Beav. 297 ; on a company which had practically ceased to exist, Gaskell v. Chambers, 26 Beav. 252 ; 5 Jur., N. S. 52 ; 28 L. J. 385 i Lewis v. Baldwin, 11 Beav.153; 17 L. J. 377 ; on prisoner, /fo2coinie v. Trotter, supra ; Newenham v. Pemberton, 2 Coll. 54 ; on partners. Kinder v. Forbes, 2 Beav. 503 j Young V. Goodson, 2 Russ. 255; Coles v. Gumey, 1 Madd. 187 ; on infants. Baker v_ Holmes, Dick. 18 ; Garnum V. Marshall, ibid, 77 ; Freeman v. Carmick, ibid. 439 ; Jones v. Geddes, ubi supra ; on agent under power of attorney, Carter v. Da Brune, Dick. 39; see Hyder v. Foster, ibid. 102; Riekford v. Nedriff, 2 Mer. 458, and notes to Ord. 10, r. 2 ; on a lunatic, Morgan v. Jones, 4 W. R. 381 ; Anon., 20 Jur. 324 ; see note to next rule, and observations on the early cases on service, 3 Bro. 430, u. The dwelling-house or usual place of abode must be the place where the de- fendant actually resides, not his professional chambers, office, or counting- house, unless he sleep there, Daniell's Ch. Pr. 299 ; Sid. Smith, 244. The rule as to service upon some member of the family seems to refer to his residence with defendant and not to relationship, Edgson v. Edgson, 3 De G. & S. 629. Irish and Scotch, as well as English peers, are entitled to letters missive, Lord Milsingtoum v. Earl of Porttnore, 1 V. & B. 419 ; Robinson v. Lord Rokeby^ 8 Ves. 601. Letter missive to the King of Hanover as an English peer, Duke qf Brunswick v. King of Hanover, 6 Beav. 1. I. In the Case op Parties Generally. Substituted Service. 2. The Court may direct substituted service of a copy of a bUl to be served under the Stat. 15 & 16 Vict. c. 86, in cases in which, 76 Order X.— Service of Bill, and Appearance. [41] according to the practice of the Court existing at the time of the passing of that Statute, substituted service ot & subpoena to appear to and answer a bill might have been directed. (22nd May, 1661 ; Sanders, 297.) See 15 8s 16 Vict. c. 86, s. 5, cited in preceding note. See also notes to pre- ceding and following rules. As to substituted service in the case of infants, &c., see notes to Ord. 7, r. 3. By 4 & 5 Will. IV. c. 82, s. 2. Where it shall appear on afELdavit to be made to the satisfaction of the said Courts respectively, that any defendant in any such suit as thereinbefore mentioned, [as to which suits see notes on Ord. 10, r. 7,] cannot by reasonable diligence be personally served with the subposna to appear and answer, or that upon inquiry at his usual place of abode he could not be found so as to be served with such process, and that there is just ground for believing that such, defendant secretes or withdraws himself, so as to avoid being served with the process of such Court, then and in all such cases it shall and may be lawful for the Court to order that the service of the subpoena to appear and answer shall be substituted in such manner as the Court shall think reasonable and direct by such Order. In every case of substituted service leave must first be obtained, Re Boger, 3 Jur., N. S. 930. This is granted ex parte, Reed v. Barton, 4 W. R. 793, where plaintiff moving on notice had to pay costs. The Court will sanction only such service as affords reasonable certainly that the defendant will know of it, Hope v. Hope, 19 Beav. 237 j 4 De G., M. & G. 328 ; 23 L. J. 682 ; 2 W. R. 443 ; where service on solicitors of married woman who acted for her in a divorce suit was held sufficient. In a suit relating to a wife's separate estate, service on her for her husband who had deserted her refused, Thomas v. Selby, 9 Beav. 194. Bill for injunction against proceedings at law when the defendant is abroad may be served on his attorney at law, Anderson v. Lewis, 3 Bro. 430 ; Sergison V. Beavan, 22 L. J. 287 i 9 Hare, App. 29, note; 16 Jur. 1111; 1 W. E. 80; Hamond v. Walker, 3 Jur., N. S. 686 ; Kirkman v. Honnor, 6 Beav. 400. Service on agent or person acting for defendant abroad or not to be found, Murray v. Vipart, 1 PhiU. 521 ; Hobhoaae v. Courtney, 12 Sim. 140 ; Hornby v. Holmes, 4 Hare, 306 ; 9 Jur. 224 ; Webb v. Salmon, 3 Hare, 251 j Weymouth v. Lambert, 3 Beav. 333 ; Cooper v. Wood, 6 Beav. 391. Service on infant defendant when taken out of the jurisdiction, Lane v. Harduiicke, 5 Beav. 223, and cases there cited in the notes. The Court will not order service of copy of cross bill on the solicitor of the original plaintiff, Waterton v. Croft, 5 Sim. 502. Service on defendant's soli- citor in another suit not allowed. Hurst v. Hurst, 1 De G. & S. 694. The discretion of the Court as to substituted service is not extended by 15 & 16 Vict. c. 86, s. 5, supra; Bones v. Angier, 18 Jur. 1050 ; 2 W. R. 609. In foreclosure suit, service on the mortgagor's tenant instead of the mort- gagor not allowed, ibid. In Governors of Grey Coat Hospital v. Westminster Commissioners, 4 Jur., N. S. 449 ; 27 L. J. 250, service on judgment creditors ordered to be made on their attorneys named on the record of the judgments. [41] In the Case of Parties Generally. 77 Service on solicitor of absconding defendant, Christie v. Cameron, S W. R. 146. Similar order refused to be made prospectively, Steel v. Gordon, 3 W. R. 158. Substituted service not allowed merely because defendant's address in Australia unknown, WaUs v. Hughes, 8 W. R. 292. See the authorities respecting substituted service reviewed, Hohhouse\. Court- ney, ubi supra, and see the observations on that case, Webb v. Salmon, supra. The decisions are conflicting on this subject, Noad v. Backhouse, 2 You. & Coll. 629. A motion for substituted service is generally without notice, Danford v. Ca- meron, 8 Hare, 329. Injunction to restrain proceedings at law by a person abroad may be served on his agent here generally without notice, but not without such notice where the agent brought the action in his own name only, Crewe v, Mertin, Daniell's Ch. Pr. 303. The order authorizing substituted service should express that it is to be shown to the substituted person when the bill is served on him, Jones v. Brandon, 20 Jut. 437. Time for Appearance. 3. Where a defendant within tiie jurisdiction of the Court is served with a copy of a bill in manner provided by the Stat. 15 & 16 Vict. c. 86, s. 3, he must appear thereto within eight days after the service of such copy of the bill, otherwise an appearance may be entered for him, as provided by the next Rule of this Order. (8th May, 1845; Ord. 16, Art. 3.) As to appearance to an order to revive, see Ord, 32. Appearance is not re- c^uired to an amended bill, amended before sufficient answer, nor where an an- swer to the amendments is not required ; but such appearance is necessary where demurrer allowed, or where plaintiff requires an answer to the amend- ments, Sid. Smith, 281. On default of husband out of jurisdiction to enter appearance for his wife, appearance entered for her by plainti^ Steele v. Plomer, 2 Ph. 780 ; I >I. & G. 83 ; see Lanham v. Pirie, 2 Jur., N. S. 1201 ; 26 L. J. 80 ; and see Ord. 10, r. 7. Defendant may enter a conditional appearance where he disputes the regu- Urity of the process to compel his appearance, Mackreth v. Nicholson, 19 Yes. 367 ; Damdson v. Marchioness of Hastings, 2 Keen, 509. Such appearance entered when the notion is beard, Johnson v. Barnes, 1 De G. & Sm. 129 ; see Lewis V. Baldwin, 11 Beav. 154. Notice of motion not to be served on defendant before appearance without leave, Hili v. Rimell, 2 M. & C. 641 ; Jacklia v. Wilkins, 6 Beav. 607. Privileged defendant, who had appeared, held not to have waiv«d his right to insist on his privilege by demurrer, Duke of Brunswick v. King of Hanover, 6 Beav. 1. Where Appearance may he entered hy Plaintiff for Defendant within Jurisdiction. 4. Where any defendant, not appearing to be an infant or a person of weak or unsound mind, unable of himself to defend the 78 Oedee X.— Seevice of Bill, and Appeaeance. [41]. suit, is, when within the jurisdiction of the Court, duly serv^ with a copy of the biU, under the Stat. 15 & 16 Vict. c. 86, s. 3, and refuses or neglects to appear thereto within eight days alter such service, the plamtiff may, after the expiration of such eight days, and within three weeks ft-om the time of such service, apply to the Record and Writ Clerk to enter an appearance for such defendant; and, no appearance having been entered, the Record and Writ Clerk shall enter such appearance accordingly, upon being satisfied by affidavit that the copy of the bill was duly served. And after the expiration of such three weeks, or after the time allowed to such defendant for appearing has expired, in any case in which the Record and Writ Clerk is not hereby re- quired to enter such appearance, the plaintiff may apply to the Court for leave to enter such appearance for such defendant; and the Court, being satisfied that the copy of the bill was duly served, and that no appearance has been entered for such defendant, may, if it so thinks fit, order the same accordingly. (8th May, 1845; Ord. 29.) Formerly the Court alone had jurisdiction to order appearances to be entered for defendants, 8th Ord. of Aug. 1841 (discharged). See note to Ord. 3, r. 4. As to the affidavit of service, see Ord. 10, r. 8. As to costs of entering ap- pearance by plaintiff, Ord. 40, r. Id. The application to enter an appearance should be made within a reasonable time, Bradstock v. Whatley, 7 Beav. 346 j Totty v. Ingleby, 7 Beav. 591, but granted after long delay in the case of a mere bill of revivor, Norton v. Fisk, 15 Jur. 1027. Fresh service of the bill or notice of motion will be required when there has been considerable delay, ibid. ; Walker v. Hirst, 9 Jur. 1002 ; Morgan V. Morgan, 1 Coll. 228. See also the following decisions under the discharged 8th Order of Aug. 1841, Radford v. Roberts, 2 Hare, 96 ; Hudson v. Martin, 1 Y. & C. C. C. 551. In Edmonds v. Niooll, 6 Beav. 334, after delay, notice of the application was required. Plaintiff may enter an appearance to an amended bill. Frith v. Hopkins, 2 Y. & C. C. C. 530. Defendant having appeared to original bill and gone abroad, service of the amended bill on his solicitor, under the order corresponding to Ord. 9, r. 21, held not due service within the order corresponding to this rule, Marquis of Hertford v. Suisse, 13 Sim. 489 ; 9 Jur. 1001 ; Seuiell v. Godden, 1 De G. & S. 126 ! 11 Jur. 260 j 16 L. J. 181. But where subpoena to answer amended bill was regularly served on the solicitor of a defendant out of the jurisdiction, it was held by Lord Truro, overruling previous decisions, that an appearance might be entered for him, Zulueta v. Vinent, 3 M. & G. 246. Defendant's written acknowledgment of receipt of the bill does not authorize entering appearance for him, Gathercole v. Wilkinson, 11 Jur. 1096. Leave given to enter appearance after the time limited by this rule, where the delay was accidental, and the defendant had left the jurisdiction, Clwkson v. Eldridge, 8 W. H. 466. Service on a solicitor authorized to act for the defendant is due service within this rale, Forster v. Menzies, 16 Beav. 568 i Cross v. Thomas, 16 Beav. 592. [41] In the Case of Parties Generally. 79 After appearance entered for the defendant, plaintdCr may proceed to take the bill pro cmfesso, Eltoft v. Broum, 2 Hare, 618. An appearance may be entered for a married woman sued jointly with her husband after service on bim, Steele v. Plomer, 1 M. & G. 83 ; 2 Ph. 782, n. (a). As to entering appearance for a corporation, see Sid. Smith, 257 ; Daniel), Ch. Pr. 334 ; for a peer, Daniell, 330 ; Sid. Smith, 256. 1 WUl. IV. c. 36, s. 12, reciting " that in many cases persons having privilege of parliament are named as defendants in suits instituted in Courts of Equity against them, either alone or jointly with other persons, for enforcing against them demands and duties cognizable in Courts of Equity, and in sonie cases such defendants having privileges of parliament have stood out to the process of sequestration issued against them for enforcing appearance, and such process of sequestration hath not been found sufficient to enforce such ap- pearance; enacts, that £&m and after the passing of this Act, in case any defendant having privilege of parliament shall, upon a return of process of sequestration issued against him for not putting in an appearance to any original or other bill of complaint instituted against him in a Court of Equity for enforcing discovery and relief, or discovery alone, (as the case may be,)' neglect to appear, that then and in such case such Court, upon producing the return of such sequestration in Court, may, on the motion or other ap- plication of the plaintiff in such case, appoint a. clerk in Court to enter an appearance for such defendant so having privilege of parliament, and such proceedings may be thereupon had in the cause as if the party had actually appeared." See as to entering appearance for defendant in custody, sect. 11, cited in note to Ord. 22. If the plaintiff do not choose to enter an appearance for the defendant, he may proceed to compel him by attachment to appear. See Ord. 10, r. 10. [42] Not if Defendant an Infant or Nan compos mentis. 5. Any appearance entered at the instance of the plaintiff for a defendant who, at the time of the entry thereof, is an infant or a person of weak or unsound mind, unable of himself to defend the suit, is irregular and of no validity. (8th May, 1845; Ord. 30.) See as to appearance in such cases, Ord. 7, r. 3. As to guardian ad litem under the Settled Estates' Act, see sect. 36, cited in note to Ord. 41. Where Appearance may he entered by Plaintiff for Defendant absconding. 6. Where the Court is satisfied by sufficient evidence that any. defendant has been within the jurisdiction of the Court at some time not more than two years before the biU was filed, and that such defendant is beyond the seas, or that, upon inquiry at his usual placQ of abode (if he had any), or at any other place or places where at the time when the bill was filed he might probably have been met with, he could not be found, so as to be served with a copy of the bUl, under the Stat. 15 & 16 Vict. c. 86, s. 3, and that 80 Oedee X.— SEEVieE'OF Bill, and Appeaeance. [42] in either case there is just ground to believe that such defendant has gone out of the realm or otherwise absconded to avoid being served with such copy of the bill or with other process, the Court may order that such defendant do appear at a certain day to be named in the order; and a copy of such order, together with a notice to the effect set forth at the end of this Rule, may, within fourteen days after such order made, be inserted in the " L(Hidan Gazette," and be otherwise published as the Court shall direct. And where the defendant does no* appear within the time limited by such order, or within such further time as the Court may appoint, there on proof made of such publication of the said order, the Court may- order an appearance to be entered for the defendant on the appli- cation of the plaintiff. Notice. — " A. B., take notice, that if you do not appear pursuant to the above order, the plaintiff may enter an appearance for you, and the Court may afterwards grant to the plaintiff such relief as he may appear to be entitled to on his own showing." (Sth May, 1845; Ord. 31.) The circumstances and formalities mentioned in this rule with reference \to entering appearances for an absconding defendant are nearly the same as those requisite to authorize taking bills pro confesso, under 1 Will. IV. c. 36, ss. 3, 9, as to which see Ord. 22. Under this rale it is not necessary to show that the defendant has absconded to avoid service in the particular suit, Barton v. Whitcomhe, 16 Beav. 205. As to absconding to avoid service, see Cope v. Russell, 12 Jur. 105 ; 2 Fhill. 404. Trustee who appropriated the trust fund and went abroad held to have absconded, Crosse v. Crosse, 8 W. R. 338. Defendant who absconds to avoid any legal process is within this rule, Allen V. Loder, 20 L. J. €58. It was reluctantly held that appearance could not be entered for defendant out of the jurisdiction more than two years, where there were no means of sejrvii^ him or substituting service, Thurlovi v. Treehy, 8 W. E. 159 ; see Cator v. Butler, Dick. 438. The order to appear is obtained by motion ex parte, supported by the neces- sary affidavit ; if the defendant do not appear within the time limited by that order, the plaintiflF moves ex parte for an order to enter an appearance for the defendant, Hawkins v. Gathereali, Sid. Smith, 255. [43] Service of Co'py of Bill and of Interrogatories on Defendant out of Jurisdiction, and entering Appearance for him. 7. Where a defendant in any suit is out of the jurisdiction of the Court. (1.) The Court, upon application supported by such evidence as shall satisfy the Court in what place or country such de- fendant is or may probably be found, may order that a copy of th« bill, under the Stat. 15 & 16 Vict. c. 86, s. 3, and if an [43] In the Case of Pakties Generally. 81 answer is required, a copy of the interrogatories may be served on such defendant in such place or country or within such limits as the Court shall think fit to direct. (2.) Such order shall limit a time after such service within which such defendant is to appear to the bill ; such time to depend on the place or country within which the copy of the hill is to be served. And where an answer is required, such order shall also limit a time within which such defendant is to plead, answer or demur, or obtain from the Court further time to make his defence to the bill. (3.) At the time when such copy of the biU shall be served, the plaintiff shall also cause such defendant to be served with a copy of the ordqf giving the plaintiff leave to serve such copy of the biU. (4.) And if, upon the expiration of the time for appearing, it be shown to the satisfaction of the Court that such defend- ant was duly served with such copy of the biU and with a copy of the order, the Court may, upon the application of the plaintiff, order an appearance to be entered for suoh defend- ant. (8th May, 1845 ; Ord. 33.) 2 Will. IV. c. 33, s. 1, enacts, "That from and after the passing of this Act, it shall and may be lawful for the Courts of Chancery and of Exchequer in Eng- land respectively, if they shall so think fit, upon special motion of the com- plainant or complainants, in any suit which has been or shall be instituted in such Courts respectively concerning lands, or tenements, or hereditaments, situate or being within that part of the United Kingdom called England or Wales, to order and direct that service in any part of the United Kingdom of Great Britain and Ireland, and in the Isle of Man respectively, of any subpoena or subpoenas, letter missive or letters missive, and of all subsequent process to be had thereon, upon any defendant or defendants in such suit then residing in such part of the said United Kingdom, or Isle of Man, in which he, she or they shall be so served, shall be deemed good service of, or be' made upon, such defendant or defendants upon such terms, and in such manner, and at such time, as to such Courts respectively shall seem reasonable, and that thereupon it shall and may be lawful for such Courts respectively to proceed upon such service so made as aforesaid as fully and as effectually as if the same had been duly made within the jurisdictions of such Courts respectively." Sect 2 gave like powers to the Irish Courts of Chancery and Exchequer. Sect. 3. " Provided always, and be it fm-ther enacted, that along with such subpoena or letter missive, served under any such order as aforesaid of the said Courts of Chancery, and of Exchequer of England and of Ireland respectively, a copy of the prayer of such complainant's bill shall be served upon every such defendant; and provided also, that no process of contempt shall be entered upon any such proceedings as hereinbefore mentioned, nor any decree made absolute in any of the said Courts in England or Ireland re- spectively, without the special Order of such Court upon special motion made for such purpose ; provided also, that nothing in this Act shall be held to make - E. G 82 Order li., — Service of Bill, and Appeakakce. [43] it compulsory upon the complainant or complainants in any suit in any of the said respective Courts to serve with process, or bring before such Courts respectively, any party or parties, person or persons, further or otherwise than such complainant or complainants are now by law, or the practice of such Courts respectively, required to do.*' By the Act 4 & 5 Will. IV. t. 82, reciting the last-mentioned Act, and that it was expedient to amend and extend the said Act in the manner thereinafter provided, it is enacted : — Sect. 1. "That all the provisions contained in the said Act relating to suits instituted in the said Courts respectively concerning lands, tenements or here- ditaments situate in England or Wales, or in Ireland respectively, shall be ex- tended and applied to all suits instituted in the said Courts respectively concerning any charge, lien, judgment, or incumbrance thereon, or concerning any money vested in any government or other public stock, or public shares in public companies or concerns, or concerning the dividends or produce thereof, and the provisions in the said Act, authorizing the said Courts respectively to direct that the service in any part of the United Kingdom of Great Britain or Ireland or the Isle of Man respectively, of any subpoena or subpoenas, letter missive or letters missive, and of all subsequent process to be had thereon, upon any defendant or defendants in such suit then residing in such parts of the United Kingdom or the Isle of Man, in which he, she or they should be so served, should be deemed good service of, or be made upon, such defendant or defend- ants upon such terms, and in such manner, and at such time as to such Courts respectively should seem reasonable, and that thereupon it should and might be lawful for such Courts respectively, to proceed upon such service as fully and effectually as if the same had been duly made within the jurisdictions of such Courts respectively, shall be and they are hereby extended to any defendant or defen:1ant8 in any such suit or suits as hereinbefore mentioned, who shall appear by affidavit to be resident in any place specifying the same out of the United Kingdom of Great Britain and Ireland, and that it shall and may be lawful for the said Courts respectively, on motion in open Court of any of the complainants in any such suit founded upon an affidavit or affidavits, and such other documents as may be applicable for the purpose of ascertaining the resi- dence of the party and the particulars material to identify such party and his residence, and also specifying the means whereby such service may be authen- ticated, and especially whether there are any British officers, civil or military, appointed by or serving under his Majesty, residing at or near such place, to order that service of a subpoena to appear and answer upon the party in the manner thereby directed, or in case where the said Courts respectively shall 4eem fit, upon the receiver, steward or other person receiving or remitting the rents of the lands or premises, if any, in the suit mentioned, returnable at such time as the said Courts respectively shall direct, shall be deemed good service of such party, and afterwards upon an affidavit of such service had to order an appearance to be entered for such party, in such manner eind at such time as the said Courts respectively shall direct, and that thereupon it shall and may be lawful for such Courts respectively to proceed upon such service so made as aforesaid as fully and effectually as if the same had been duly made within the jurisdictions 9f such Courts respectively." [43] In the Case of Pakties Generally. 83 Notes to 2 Will. IV. «. 83, s. 1, and 4 & 5 Will. IV. u. 82. These Acts ex- tend to Scotland, Cameron v. Cameron, 2 M. & K. 289 ; Parker v. Lloyd, 5 Sim. 508. Where a defendant is served with a subpcena under the former Act, no subsequent process will be granted unless on personal notice to him, Haslucic V. Stewart, 6 Sim. 321. Sectis, under 4 & 5 Will. IV. c. 82, where defendant is abroad. Godson v. Cook, infra. Where defendants had been served abroad under these statutes, the Court refused to make an order for the service of a traversing note, Anderson v. Johnson, 16 L. J. 152 ; S. C. Anon. 11 Jur. 28. Order under 4 & 5 Will. IV. c. 82, for service on a receiver or agent ap- pointed by defendant out of the jurisdiction. Cox v. Bannister, 8 W. R. 206. English funds, improperly sold out and invested in foreign funds within the latter Act, Dodd v. Webber, 2 Beav. 502. If part of tlie subject-matter of the suit be money invested in Government or other public stock, the service of the sub- poena being good, quoad hoc, is good for all the other purposes of the suit. Leave must be given to serve defendant abroad with notice of motion in the cause, although he has been served abroad with a subpcena, and an appearance entered for him under the statute. Ibid. But after subpoena served and appear- ance entered for the defendant, he need not have personal notice of application to take the bill pro confesso, Godson v. Cook, 7 Sim. 519. Discretion of the Court as to evidence of service, Joseph v. Tyndal, 13 L. J., N. S. 23. Under 5 Geo. II. c. 25, for which this and the preceding Acts are substitutes, service at the town residence of a peer, temporarily resident abroad, held good, Thomas v. Earl of Jersey, 2 M. Se K. 398. The Court appears to have no power, except by statute, to order personal service out of the jurisdiction, Lorton v. Kingston, 2 Mac & G. 139. As to substituted service where defendant is abroad, see Ord. 10, rr. 1 & 2. Service at the late residence of defendant gone abroad, of subpcena to appoint a new solicitor to attend taxation, Gibson v. Ingo, 2 Pbill. 402. Note to Art 1, Ord. 10, r. 7. This rule, unlike the statutes above cited, is irrespective of the subject-matter of the suit; the Court may order service abroad where defendant has neither property nor domicile in this country, Whitmore v. Ryan, 4 Hare, 612; IS L. J. 232; Blenkinsopp v. Blenkiniopp, 2 Phill. 1 ; and the Court may be satisfied by inspection of the pleadings, or by any other means, whether it is a proper case to order service abroad. Ibid. Service on a defendant of unsound mind, not found so by inquisition, resident abroad, Biddulph v. Lord Camoys, t Beav. 580 ; S. C. 10 Jur. 485. The a£Sdavit stated the residence of the defendant seven weeks prior to the application : — Held, that that was not sufficient to show the present residence, Fieske v. Buller, 7 Beav. 581. The Court will order service, not merely in a particular place, but within certain limits, as anywhere in Scotland, Blenkinsopp V. Blenkinsopp, 8 Beav. 612; in Dublin or within twenty miles thereof, Whit- more V. Ryan, 4 Hare, 612 ; or within the Grand Duchy of Baden, Preiton v. Dickenson, 7 Beav. 582, note ; 9 Jur. 919. See Jones v. Geddes, 9 Jur. 1002 j 15 L. J. 65, cited infra. Leave to serve Irish railway company in Ireland, Lewis v. Baldwin, 11 Beav. 153; 17 L. J. 377. In Innes v. Mitchell, 1 De G. 8c J. 423 ; 26 L. J. 719; g2 84 Order X.— Service of Bill, and Appearance. [43] 5 W. R. 748, leave given to serve defendants in Scotland with a copy of a bill in an administration suit, though like suit pending in Scotland. An order under this rule will not be discharged because the suit ought to have been instituted in Scotland, Meiklan v. Campbell, 24 Beav. 100. Evidence of the truth of the plaintiff's case not necessary, but the Court will look into the bill to see whether the case is such that leave for serN-ice abroad should be given, Maclean v. Dawson, 7 W. R. Ch. 438 ; 5 Jur. N. S. 663 ; 28 L. J. 742. After service of infant or person of unsound raiaijgtiardian ad litem appointed, Anderson v. Slather, 10 Jur. 383 ; 15 L. J. 260 ; Biddulph v. Lord Camoys, 7 Beav. 380 ; 15 h. J. 141. Where husband and wife sue jointly, if he fail to appear, appearance may be entered for her under this Rule or Order 10, r. 4, Steele v. Plomer, there cited. Service on husband for wife, Jones v. Geddes, supra. Note to Art. 2 of Ord. 10, r. 7. The order for service need not specify any time for demurring alone, which will be according to the usual practice; the form of subpoena (now indorsement) will also be as usual. Brown v. Stanton, 15 L. J. 65 ; 7 Beav. 582 ; and Preston v. Dickinson, in note to that case ; and 9 Jur. 919; Blenkinsopp v. Blenkinsopp, 8 Beav. 612. Compare Whitmore v. Ryan, 4 Hare, 612. The Order limits the time for appearing according to the distance, Brown v. Stanton, 7 Beav. 582 ; Preston v. Dickinson, supra ; Whitmore v. Ryan, 4 Hare, 612. Notes to Art. 3 of Ord. 10, r. 7. Father and six infants defendants ; seven subpoenas and seven copies of the bill, &c., must be served, Jones v. Geddes, supra. The name of the defendant out of the jurisdiction and the date for his appearing are indorsed on the bill, Baynes v. Ridge, 9 Hare, App. 27 ; 22 L. J. 110 i 1 W. R. 99 ; Chatfield v. Bercholdt, 9 Hare, 28. Defendant served out of the jurisdiction not to be attached on coming within the jurisdiction, Hack, wood V. Lockerhy, 3 W. R. 440 ; 24 L. J. 408 ; on appeal, 7 De G., M. & G. 238. Note to Art. 4. See Steele v. Plomer, cited in note to Ord. 10, r. 4. Affidavits of Service. [44] 8. Affidavits filed for the purpose of proving the service of a copy of a bill upon any defendant, shall state when, where, and how the same was served, and by whom such service was effected. (8th May, 1845 ; Ord. 34.) The same rule as to service of affidavits,' Ord. 28, r. 8. Under the discharged 8th General Order of 26th Aug. 1841, empowering a plaintiff to apply for leave to enter appearance for defendant, it was held, that the affidavit of service must show that the subpoena was served with the memorandum coiTesponding to the note now indorsed on bills by Order 9, t. 2, Beetham v. Berry, 5 Beav. 41. Under the same Order, held, that it must appear from the affidavit where defendant was served, Davis v. Hole, 1 Y. & C. Ch. Ca. 440 ; see Bickford v Skewes, 9 Sim. 428. [44] In the Case of Parties Generally. 8S Appearance entered hy Defendant after Appearance entered for him. 9. A defendant, notwithstanding that an appearance may have been entered for him by the plaintiff, may afterwards enter an appearance for himself in the ordinary way ; but such appearance by such defendant shall not affect any proceeding duly taken or any right acquired by the plaintiff under or after the appearance entered by him, or prejudice the plaintirf's right to be allowed the costs of the first appearance. (8th May, 1845 ; Ord. 36.) See Price v. Webb, in note to following rule. Attachment, Me^enger and Serjeant-at-Arms to compel Appearance. *10. No attachment for want of appearance shall hereafter be issued, without a special order of the Court ; and no order shall be made for a messenger, or for the Serjeant-at-Arms, to take the body of the defendant, for the purpose of compelling him to appear to the bill. (26th Aug. 1841 ; Ord. 7.) See as to attachment and Serjeant-at-Arms, Ord. 29, r. 3 i and Ord. 30, rr. 2—5. The first part of this Order ("no attachment for want of appearance shall hereafter be issued without a special order of the Court") is new ; the rest is the same as the 7th Order of 26th Aug. 1841. Since this Order, leave to enter a conditional appearance was given on defendant's consent to submit to any process for want of appearance which the Court might direct, if the subpcena should not be set aside, Price v. Webb, 2 Hare, 6l\. As to attachment for want of appearance, see Daniell's Chancery Practice, 316, and Ord. 30, infra. As to compelling. attond tmCT of Attorney-General, Daniell's Ch. Prac. p. 347 ; of a married woman, Tarlton v. Dyer, 9 Sim. 253 j Nayler v. Byland, ibid. ; Lethley v. Taylor, ibid. 252. The parts of 1 Will. IV. c. 36 (Sir E. Sugden's Act), relating to process for want of answer, are cited in notes to Ord. 12. The following are the parts relating to attachment for want of appearance : — 1 Will. IV. c. 36, 5. 11, enacts, — " That from and after the passing of this Act, if any defendant by virtue of any writ of habeas corpus, or other pro- cess issuing out of any Court of Equity, shall be brought into Court, and shall refuse or neglect, or being within the walls of any prison in England, under or charged with an attachment or other process of contempt, shall, after fourteen days' previous notice in writing requiring him to enter an appearance, refuse or neglect to enter his appearance according to the rules or method required by the said Court, or to appoint a clerk in Court, or attorney of such Court, to act on his behalf; such Court may appoint a clerk in Court or attorney of such Court to enter an appearance for such defendant, and such proceedings may thereupon be had in the cause as if the party had actually appeared." Sect. 15, r. 3. " That the party prosecuting any contempt shall be at liberty without order to sue forth the several writs in process of contempt returnable 86 OedeeX.— Service of Bill, asd Appeakance. [44] immediately, in case the party in contempt resides, or is, in London, or withm twenty miles thereof! and that in other cases the party prosecuting a contempt shall be at liberty, without order, to sue forth such several writs returnable in vacation, provided that there be fifteen days between the teste and the return of each of such writs." Sect IS, r. 4. "That where a defendant is confined for a misdemeanor, and has been brought before the Court upon an habeas corpus, and thereupon has been turned over to the Fleet profohnd, but has been carried back to the prison from whence he came with his cause, another writ of habeas corpus may issue directed to the gaoler or keeper of the prison to which he has been carried back, and thereupon the defendant shall be brought into Court and remanded to the prison from whence he came with his cause without being turned over again to the Fleet prison, and the bill may be taken pro confesso in the same manner in all respects as if the defendant had been all along in the custody of the warden of the Fleet." Sect. 15, r. 5. " That if the defendant under process of contempt for not ap- pearing or not answering be in actual custody, and shall not have been sooner brought to the bar of the Court, under process to answer his contempt, the plaintiff, if the contempt be not sooner cleared, shall bring the defendant by an habeas corpus to the bar of the Court within thirty days from the time of his being actually in custody or detained (being already in custody) upon process of contempt, and if the last day of such thirty days shall happen out of Term, then within the four first days of the ensuing Term ; and where the defendant is in custody of the serjeant-at-arms, or of the messenger, upon an attachment or other process, the plaintiff shall within ten days after his being taken into such custody, or if the last of such ten days shall happen out of Terra, then within the first four days of the next ensuing Term, cause the defendant to be brought to the bar of the Court ; and in case any such defendant shall not be hrougbt to the bar of the Court within the respective times aforesaid, the sheriff, gaoler or keeper, serjeant-at-arms or messenger, in whose custody he shall be, shaU thereupon discharge him out of custody without payment by him of the costs of contempt, which shall be payable by the party in whose behalf the process issued ; and this Rule shall apply to every defendant in custody before and at the time of passing this Act, who shall not have been brought to the bar of the Court ; but the thirty days allowed in the first above-mentioned case, and the ten days allowed in the second above-mentioned case, shall be reckoned from the first day of next Term." Sect. 15, r. 7. " That on the 30th day of January, the Sath day of April, the 30th day of July and the 30th day of October in every year, or if any of those days happen on a Sunday then on the following day, one of the Masters of the Court of Chancery to be named by the Court shall visit the Fleet prison and examine the prisoners confined there for contempt, and shall report their opinion on their respective cases to the Court ; and thereupon it shall be lawful for the Court to order, if it shall see fit, that the costs of the contempt of any such prisoner shall be paid out of the interest and dividends arising from the several Government or Parliamentary securities standing in the name of the AccouRtant-General of the said Court of Chancery, intituled ' Account of [44] Is THE Case of Parties G-eneeatly. 87 Moneys placed out for the benefit and better security of the Snitors of the High Court of Chancery,' and 'Account of Securities purchased with surplus interest arising from Securities carried to an Account of Moneys placed out for the benefit and better security of the Suitors of the High Court of Chancery,' or out of any cash standing to either of such accounts, or to any other account which is now or hereafter may he standing to the credit of the suitors of the said Court of Chancery, after and subject to the payment of all charges which by any Act heretofore passed are directed to be paid thereout, and to assign a solicitor and counsel to such prisoner for putting in his answer and defending him in/ormd pauperis, and to direct any such prisoner having previously done such acts as the Court shall direct, to be discharged out of custody, provided that if any such defendant become entitled to any funds out of such cause the same shall be applied und^r the direction of the said Court in the first instance to the reimbursement of the suitors' fond." Sect. IS, r. 8. " That it shall be lawful for the Master visiting the Fleet, or to whom the case of a prisoner shall he referred by the Court itself, to examine the prisoner, and all other persons whom he may think proper to examine upon oath, and to administer an oath or oaths to any such prisoner and other persons accordingly, and to cause any officers, clerks and ministers of any Court of Law or Equity, to bring and produce, upon oath, before him any records orders, books, papers or other writings belonging to the said Courts, or to any of the ofiicers within the same as such ofllcersi" See Rule 9, cited in notes to Ord. 7, r. 3. Rule 13 enacts, "That where the defendant is in contempt for not appearing or not answering, and in actual custody under process for such contempt, or being already in custody shall be detained by an attachment for such contempt, and shall not, where the contempt is for not appearing, enter an appearance within twenty-one days after he is lodged in gaol or prison, or the attach- ment is lodged against him (he being already in prison), as the case may be ; or where the contempt is for not answering, put in an answer within two calendar months after he is lodged in gaol or prison, or the attachment is lodged against him (he being already in prison), the plaintiff shall (as the case may be) within fourteen days after the period, computed from the expi- ration of such twenty-one days within which he may, by the provisions of this Act, be able to enter such appearance, cause an appearance to be entered for the defendant under the powers of this Act ; and shall, at the expiration of such two calendar months, proceed to take the bill pro cmfesst, and shall accordingly obtain an order for taking the same pro confesso within six Weeks after the period, computed from the expiration of such two calendar months within which he may be able to take the same pro confesso. Or in default of so doing in either of such cases the defendant shall, upon application to the Court, be entitled to be discharged out of custody without paying auy of the costs of the contempt, unless the Court shall, under the power hereinbefore contained, see good cause to remand and detain the defendant in custody ; and this Rule shall apply to every defendant in custody before and at the time of the passing of this Act who shall not have entered his appearance, and for whom an appearance shall not have been entered, or shall not have answered 88 Oeder X.— Service of Bill, and Appearance. {44] the bill, and the bill shall not bave been tiken pro confesso, but the twenty- one dajs and two calendar mouths respectively, to be reckoned from the first day of next term, and the other periods to be altered accordingly in compu- tation ; but nothing in this Act shall prevent any plaintiff from proceeding to take his bill pro confesso, according to the practice existing before the passing of this Act, where, at the time of passing of this Act, his proceedings shall be so far advanced that the powers of this Act would not enable him to accelerate the period for taking his bill pro confesso." Note to Section 11. In the fourteen days the day on which notice is served is excluded, but the last of the fourteen days is included, Ansdell v. Whitfield, 6 Sim. 356. This section is substantially the same as section 2 of the repealed statute 5 Geo. 2, t. 25, except that the latter does not contain the words "or being within the walls refuse or neglect." The defendant must be in custody at the time the appearance is entered for him under this Section ; where he bad been discharged under the 5th Rule of Section 15, the Court would not order an appearance to be entered for him, Williams v. Jones, 8 Sim. 471. Note to Section 15, r. 3. The interval may be longer than fifteen days between the teste and the return. The writ is returnable after the term fol- lowing the teste and in vacation. Dan. Ch. Pr. 318 ; Wroe v. Clayton, 12 Jur. 321. Note to r. 4. As to new writ of habeas, see Ord. 30, r. 3. Note to r. 5. The time within which the defendant must be brought to the bar is also limited by Order 12, r. 3. (See Dan. Ch. Pr. 326.) That rule is substituted for the r. 5 of Section 15 of the Act, Fortescue v. Hallett, 3 Jur., N. S. 806 i 5 W. R. 747. A party prosecuting contempt for non-payment of costs is not bound to bring the prisoner to the bar of the Court, Wroe v. Clayton, 12 Jur. 321. Semhle, the prisoner may sue out the writ of habeas corpus, ibid. The term "bar of the Court" is satisfied by bringing the defendant before the Judge at his private residence and during vacation, Clark v, Clark, 4 Beav. 497 i 1 Phill. 116. If defendant be brought to the bar within the time allowed by this rule, although after the habeas corpus is returnable, he may be properly turned over to the Queen's prison, Colleyv. Candler, 12 Sim. 408. As to a prisoner's right to be discharged under this rule, see Woodward V. Conebeer, 1 Hare, 297 ; Greening v. Greening, 1 Beav. 121. As to proceedings upon an irregular attachment, see Hawkins v. Hall, 4 M. & C. 280. If a defendant has once a right to his discharge, he has neither power nor capacity to waive his right, Greening v. Greening, 1 Beav. 121 ; Haynes v. Ball 4 Beav. 101. ' In Williams v. Townshend, 6 Sim. 296, appearance not being duly entered defendant obtained his discharge ; held that a second attachment could not issue, and that the proper mode was to dismiss the bill against that defendant and file a supplemental bill in the nature of an original bill. But in Robey v. Whitewood, 5 Beav. 399, 13 L. J. 22, the Master of the Rolls thought it un- necessary for plaintiff to be put to such circuity, and ordered defendant to put [44] In the Case of Formal Parties. 89 in his answer within a fortnight, and in default plaintiff to be at liberty to sue out a new attachment Note to Section 15, r. 7. This rule is entirely framed for the relief of de- fendants, and plaintiffs have no concern whatever with it, Watkin v. Parker, 1 M. & Cr. 370. The Court will not, on the application of the plaintiff, assign counsel or solicitor to a pauper defendant, Garrod v. Holden, 4 Beav. 245. Note to Section 15, r. 8. The inquiry required to be in the presence of the defendant, Atkinson v. Flint, 5 Sim. 77. But compare Williams v. Par- kinson, 5 Sim. 74. Note to Section 15, r. 13. Plaintiff allowed to take the bill pro confessa after the expiration of the six weeks and two months, Bates v. Frost, 9 Jur. 291. See Ord. 22. • Where a prisoner, entitled to his discharge under the 13th Rule, remains in prison, plaintiff cannot subsequently enter an appearance for him and de- tain him on attachment for want of answer, Lewis v. Evans, C. & Ph. 264 ; But a defendant who becomes entitled to his discharge, but voluntarily remains in prison, may be regularly detained upon a second attachment, Woodward v. Conebeer, 1 Hare, 297. n. — In the Case of Formal Parties. Service of Copy of Bill on Formal Parties. 11. Where no account, payment, conveyance, or other direct relief is sought against a party to a suit, it shall not be necessary for the plaintiff to require such party, not being an infant, to appear to the bill ; but the plaintiff shall be at liberty to serve such party, not being an infant, with a copy of the bill, whether the same be an original, or amended, or supplemental bill, without any indorsement requiring such party to appear thereto ; and such biU, as against such -party, shall pray that such party, upon being served with a copy of the bill, may be bound by all the proceed- ings in the cause. But this Kule shall not prevent the plaintiff from requiring a party against whom no account, payment, con- veyance, or other direct relief is sought, to appear to the bill, or from prosecuting the suit against such party in the ordinary way, if he shall think fit. (26th Aug. 1841 ; Ord. 23.) The provisions of 15 & 16 Vict. c. 86, s. 42, r. 8 (see ante, first note to Ord. 7), and the 40th & 41st Ord. of 7th August, 1852 (Cons. Ord.' 23, rr. 18 and 19), as to serving notice of the decree on persons who prior to the Act have been necessary parties to the suit in order to bind them, will probably, where they apply, supersede the practice under the 23rd Ord. of ^6th August, 1841. Seton on Decrees, p. 5. See notes to Ord. 7. See as to costs of requiring formal parties to appear, Ord. 40, r. 16. See as to decree saving the right of absent parties, Ord. 23, 1. 11. 90 Order X.— Sertice of Bill, and Appearance. [44} The devisees of real estate, subject to a power of sale to trustees for the purpose of paying debts, are within this Order, Lloyd v. Lloyd, 1 Y. & C. 181. To a bill to recover possession of a customary estate, all persons elaionng adversely to the defendant under the custom are necessary parties to the suit, and not within this Order, Marke v. Locke or Turner, 2 Y. & C. C. C. 500 ; 7 Jur. 1102; 12 L.J. 44*.; In a suit against the trustees of real estate to raise a legacy charged on it, the equitable tenant in tail is a necessary party, Barkley v. Lord Reay, 2 Hare, 306. Judgment creditors, whose judgments have been entered up subsequently to the security of the plaintiff in a suit of foreclosure, are not formal parties within this Rule, Adams v. Payitter, 1 Coll. S30 j 8 Jur. 1063. The words " that the defendant, upon being served with a copy of the WU, may be bound by all the proceedings in the cause," might, under the former practice, conveniently be inserted in the prayer of process, Gibson v. Haines, 1 Hare, 317 ; but these words might be put instead in the prayer of the bill. Smith V. Groves, 9 Jur. 503. As to the nature of the affidavit see note to next rule. Goods taken in execution by a judgment creditor were afterwards seized by a messenger in bankruptcy ; the creditor brought actions against the assignees and messenger. Semble, the latter was not merely a formal defendant in a suit to restrain the action, Boyd v. Moyle, 2 Coll. 313. The Attorney-General is not a defendant within the meaning of this Order, Christopher v. Cleghorn, 8 Beav. 314. Where a defendant served with a copy of the bill under this Order dies before his appearance and decree, see Edington v. Banham, 2 Coll. 619. Bill by one of the next of kin against the administrator of the intestate to obtain his distributive share ; the other next of kin may be served with copies of the bill under this Order, Knight v. Cawthron, 12 Jur. 33 ; 1 De G. & S. 714. So in a bill by one of the residuary legatees against the executor to have the testator's estate administered, the other residuary legatees may be properly served with copies of the bill under this Order, Davis v. Davis, 4 Hare, 389. In a suit by a debtor to have the trusts of a creditor's deed administered in equity against the trustee and one of the creditors whose claim is disputed, the other creditors may be served with copies of the bill, Duneombe v. Levyr 5 Hare, 232. So, also, where the creditor whose claim is disputed is the only defendant, Clarke v. Tipping, 9 Beav. 284. A party served with a copy of bill, not a party within the meaning of this Order, will not be bound by any of the proceedings, Boreham v. Bignall, 4 Hare, 663. Semble, the Court will not ord«r substituted service of a copy of the bill under this Order, Thomas v. Selby, 9 Beav. 194. Qaare, Can a party of unsound mind be proceeded against by service of the copy of the bill, Pemberton v. Langmore, 8 Beav. 166. In Knight v. Pocock, 24 Beav. 436, held that judgment creditors of mort- gagor were not boand by decree for sale in suit by mortgagee, and that trustees of creditors' deed not assented to by them did not represent them. [44] In the Case of Formal Pasties. 91 Defendant served under this Order must be re-served if the bill be amended, Vincent v. Walts, 3 M. & G. 248. Service under the order of a bill of revivor and supplement, Walcot v. Walcot, 10 Beav. 20. This Order does not apply to defendants out of the jurisdiction, Lorlon v. Kingston, 2 M. & G. 139. In Powell V. Cockerell, 4 Hare, 557, held tliat the order is confined to cases where the party served is one against whom in substance no decree can be made. In Abram T. Ward, 6 Hare, 165, where some of a class of claimants under a will refused to he plaintiffs in a suit against adverse claimants, and were made defendants, plaintiffs had to pay their costs. See Ord. 40, r. 16. As to proper parties to a suit by creditors against trustees of a creditor's deed, see Bateman v. Margerison, 6 Hare, 496. In Penton v, Clayton, 15 Sim. 82, it was held that defendant need not be served with copy of an Order for enlarging the time for serving him with a copy of the bill. Defendant served with a copy of the bill, in which he was misnamed. On affidavit of identity, memorandum of service was allowed to be entered. Glover V. CoekeriU, 9 Jur. 860; Wiiham v. Salvin, 16 Jur. 420 i 21 L. J. 915. Memorandum of Service of Copy of Bill to he entered. 12. Where a plaintiff serves a defendant with a copy of the bill under the 11th Rule of this Order, he shall cause a memo- randum of such service, and of the time when such service was made, to be entered in the Record and Writ Clerks' Office, first obtaining an order of the Court for leave to make such entry, which order shall be obtained upon motion without notice, upon the Court being satisfied of a copy of the bill having been so served, and of the time when the service was made. (26th Aug. 1841 ; Ord. 24.) See as to the memorandum here mentioned, Ord. 10, r. 15, note. The affidavit to support a motion to enter memorandum of service of bill should state the nature of the suit, and that no direct relief is prayed by the bill, Haigh v. Dixon, 1 Y. & C. 180 ; Boreham v. B^nall, 7 Jur. 528. Sed eontra ; the Court will allow the plaintiff to enter a memorandum of service of a copy of the bill without an affidavit stating the nature of the suit, and that no direct relief is prayed against the defendant served, Mawhood v. Labouchere, 12 Sim. 362 j see contra, Oamt v. Prmt, 5 Beav. 102. In Hudson v. Dungworth, 3 Hare, 608, the Order was made on the statement of counsel to that effect. The affidavit need not state that the defendant is not an infant, Sherwood v. Rivers, 2 Y. & C. 166 ; Welch \. Welch, 1 Hare, 593 (overruling Godwin v. Bell, 1 Y. & C. 181). Affidavit was required to show that the interrogating part was omitted in the copy served, Gibson v. Haines, 1 Hare, 317. It is sufficient to state in the affidavit that the copy of the bill served was 92 Order X.— Service of Bill, and Appearance. [44] " a true copy of the bill," Broughton v. Braughton, S Hare, 335. But the copy of an office copy is not sufficient, Coleman v. Rackham, 3 Hare, 1 84 ; fVarren v. Postlewaite, 1 Coll. 171. See also Stanley v. Heane, 9 Jur. 221 ; a:id see general account of the contents of the affidavit in note to Welch v. Weldh, 1 Hare, 593 ; and see note to last Rule. Affidavit insufficient which omitted in the title the name of a defendant against whom process was not prayed, Lay v. Prinsep, 1 De G. & S. 630. The service should be personal, but where a husband and wife are defendants and the suit does not relate to the separate estate of the wife, service on the husband is sufficient, Kent v. Jacobs, 5 Beav. 48 ; Steel v. Parsons, 8 Jur. 641 ; Parsons v. Steel, 13 L. J., N. S. 389 ; Bailey v. Threlfall, 9 Jur. 202. But not where the suit affects the wife's separate estate, Salmon v. Green, 8 Beav. 457. Where the husband is served for himself and wife that must be stated in the affidavit. Steel v. Parsons, ubi supra ; Bailey v. Threlfall, ubi supra. Where the copy of bill was served before the Orders of May, 1845, came into operation, but after the twelve weeks allowed by the 16th of those Orders, Art. 2 (Ord. 10, r. 17), the Court ordered the memorandum of service to be entered, Feltham v. Clark, 9 Jur. 1002; 13 Sim. 491. Effect of se7-ving Defendant with Copy of Bill. [45] 13. Where a defendant ia served with a copy of the bill, under the 11th Rule of this Order, and a memorandum of such service is duly entered, and such defendant does not, within the time limited by the practice of the Court for that purpose, enter an appearance in common form, or a special appearance under the 15th Rule of this Order ; the plaintiff shall be at liberty to pro- ceed in the cause, as if the party served with a copy of the bill were not a party thereto, and the party so served shall be bound by all the proceedings in the cause, in the same manner as if he had appeared to and answered the bill. (26th Aug. 1841 ; Ord. 25.) Where a defendant served with a copy of the bill omits to enter an appear- ance, and the bill is amended at the hearing by adding parties only, and a copy is served on him, he is bound by the proceedings in the original suit, and cannot demur to the amended bill, Powell v. Cockerell, 4 Hare, 565 ; S. C. XO Jur. 243; 15 L.J. 197. Party served with Copy of Bill may enter common Appearance, and have Suit prosecuted in ordinary way — Costs. 14. Where a party served with a copy of the bill, under the the 11th Rule of this Order, desires the suit to be prosecuted against him in the ordinary way, he shall be entitled to have it so prosecuted ; and in that case he shall enter an appearance in the common form, and the suit shall then be prosecuted against him in the ordinary way. But the costs occasioned thereby shall be paid by the party so appearing, unless the Court shall otherwise direct. (26th Aug. 1841 ; Ord. 26.) In 10 Hare, App. 62, note. [45] In the Case of Formal Pakties. 93 Such Party may enter Special Appearance, and he served with Notice of all Proceedings — Costs. 15. Where a party served with a copy of the bill under the 11th Rule of this Order, desires to be served with a notice of the proceedings in the cause, but not otherwise to have the same pro- secuted against himself, he shall be at liberty to enter a special appearance in the following form; (that is to say), "A. B. appears to the bUl for the purpose of being served with notice of all proceedings therein." And thereupon, the party entering such appearance shall be entitled to be served with notice of all pro- ceedings in the cause, and to appear thereon. But the costs occasioned thereby shall be paid by the party entering such appearances, unless the Court shall otherwise direct. (26th Aug. 1841 ; Ord. 27.) A defendant having entered a special appearance must receive the same length of notice to hear judgment as if he were proceeded against in the ordinary way, Wilton v. Rumbolt, 13 L. J. 303; 8 Jur. 236. Defendant, appearing under this Rule, admits that he was duly served with a copy of the hill ; and a memo- randum of service on him may be entered, Maude v. Cupeland, 1 Coll. C. C. 505 ; hut in Attorney-General V. Donnington Hospital, 12 Beav. 551, the memorandum mentioned in Rule 12 held unnecessary Where defendant had entered a special appearance. Order for entering Common or Special Appearance — Party entering same bound by prior Proceedings. 16. No party shall enter either a common or special appearance under the 14th or 15th Rule of this Order, after the expiration of twelve days from the service of the copy of the bill, without first obtaining an order of the Court for that purpose ; such order to be obtained on notice to the plaintiff, and to be granted, if the Court shall think fit, upon such terms as are just. And any party so entering such common or special appearance shall be bound by all the proceedings in the cause prior to such appearance being entered, unless the Court shall otherwise direct. (8th May, 1845 ; Ord. 37 ; and Ord. 16, Art. 5.) See note to Ord. 10, •. 13. Leave to enter appearance without being bound by previous proceedings in the suit will not be granted ; as defendant would not he so bound if a party within Ord. 10, r. II, Boreham v. Bignall, 4 Hare, 633. [46] Time for Service of Copy of Bill. 17. The service of a copy of a bill upon a defendant, under the 11th Rule of this Order, shall be of no validity if not made within twelve weeks from the filing of such bill, unless the Court shall give leave for such service to be made after the expiration of such twelve weeks. (8th May, 1845 ; Ord. 16, Art. 2.) 94 Okdee X.— Sekvice of Bh-l, and Appeaeakce. [46] See note to Ord. 10, r. 12. It must appear that the delay was not intentional, Harry v. Calder, 7 Beav. 585 i Bell V. Hasting), 1 Beav. 592. Where the copy of a bill had been served after the twelve weeks' leave to enter the memorandum given on joint application of plaintiff and defendant, Tugwell v. Hooper, 10 Beav. 19. The Order extending the time need not be served with the copy of the }ai\\, Fenton v. Clayton, 15 Sim. 82; Teuton v. Clayton, 15 L. J. 141. Service out of Time of Copy of Bill. 18. Where the plaintiff omits to serve any defendant with a copy of the biU under the 11th Kule of this Order, within twelve weeks from the filing of such bill, the Court may, if it shaU thmk fit, upon the motion of the plaintiff, without notice, give the plaintiff leave to serve such defendant with such copy, withm such time and upon such terms as to the Court shall seem just. (8th May, 1845 ; Ord. 28.) Order XI. INTERROGATORIES. As to interrogatories exhibited by the defendant, see Ord. 19, r. 6. As to costs of bill of discovery filed by defendant, Ord. 40, r. 14. Form of Interrogatories. 1. The interrogatories for the examination of the defendant to a bill may be in a form similar to the form set out in Schedule (B.), with such variations as the nature and circumstances of each particular case may require. (7th Aug. 1852, 1st Set, Ord. 15.) By 15 & 16 Vict. c. 86, s. 12, "Within a time to be limited by a General Order of the Lord Chancellor in that behalf, the plaintiff in any suit in the said Court commenced by bill may, if he requires an answer from any defendant thereto, file in the Record Office of the said Court interrogatories for the examination of the defendant or defendants, or such of them from whom he shall require an answer, and deliver to the defendant or defendants so required to answer, or to his or their solicitor, a copy of such interrogatories, or such of them as shall be applicable to the particular defendant or defendants ; and no defendant shall be called upon or required to put in any answer to a bill unless interrogatories shall have been so filed, and a copy thereof delivered to him or his solicitor within the time so to be limited, or within such further time as the Court shall think fit to direct." Under the former practice, by which the interrogatories formed part of the bill, it was provided, by the 17th of the Orders of 26 Aug. 1 811, that the inter- rogatories should be numbered, and that the inteirogatories which each defend- ant was required to answer should be specified in a foot note. It was held [46] Inteekogatoeies. 95 under this Order that a sole defendant specially interrogated was not exempted from answering by the interrogatories not being numbered or specified in a foot note, Lynch v. Lecesne, 1 Hare, 626. Court will stay proceedings where the interrogatories not numbered or divided in the proper manner ; what is the proper manner, Boutcher v. Branscomie, 5 Bear. Sil. Defendants ordered to answer amendments and exceptions together bound to do so, without plaintiff excepting the interrogatories already answered and specifying the interroga- tories required to be answered. Bate v. Bate, 7 Beav. [528; but need not further answer interrogatories already sufficiently answered. See first note to Ord. 16. It was held under the same Order that one of several defendants was not bound to put in any answer unless required by the foot note, Hughes v. lApscombe, 3 Hare, 341. See further as to this case notes to Ord. 13, i. I ; Ord. 17, r. 1. As to the obligation to answer interrogatories, see Ord. 15, r. 3. As to the manner of writing interrogatories, see Ord. 16 of 6th Mar, 1860, in note to Ord. IS. The interrogating part of the bill was to be supported by and not more extensive than the stating part of the bill, Muckleston v. Brown, 6 Ves. 52, see p. 62. Plaintiff might interrogate as to all the circumstances connected with or incident to a fact stated generally, but not as to a distinct subject, Faulder V. Stuart, 11 Ves. 290; Bullock v. Richardson, 11 Ves. 373. With respect to the present practice, it has been held sufficient if the interrogatories be left at the solicitor's office, without being delivered to him personally, Bowen v. Price, 2 De G., M. & G. 899 ; an interrogatory as to documents may be filed, though the bill contains no charge as to the defend- ant's possession of them. Perry v. Turpin, 1 Kay, App. 49; 18 Jur. 594; but exceptions to answer as to documents disapproved, ibid. ; see Ord. 42, r. 3. Pefendant may, by his answer, decline to answer the common interrogatory as to documents, Kidger v. Worswick, 5 Jur., N. S. 37. Costs of an answer un- necessarily required are payable by plaintiff, if the objection be taken by the answer. Cocks v. Stanley, 4 Jur., N. S. 942 ; 6 W. R. 45. Interrogatories may be filed to a written bill before the time of filing a printed bill has expired, Lambert v. Lomas, 9 Hare, App. 29. By leave interrogatories may be served with the hill on defendant out of the jurisdiction, Leaman v. Brown, 7 W. R. 322. Interrogatories amended by striking out the part requiring an answer from one of the defendants, Rooper v. Harrison, 2 W. R. 510. Interrogatories may be filed for examination of a person made defendant by supplemental order. Anon., 3 W. R. Dig. 72 (L. T.) As to filing interrogatories with a view to taking the bill pro confesso, see note to Ord. 22, r. 4. Time for filing Interrogatories. 2. Where the plaintiff requires an answer to any bill from any defendant or defendants thereto, the interrogatories for the exa- mination of such defendant or defendants shall be filed within eight days after the time limited for the appearance of such defendant or defendants. (7th Aug. 1852, Ist Set, Ord. 16.) 96 Okdek XI. — Intekkogatokies. [47} Leave to file Interrogatories after Eight Days. 3. After the expiration of eight days from the time limited for the appearance of any defendant, no interrogatories shall be filed for the examination of such defendant, without special leave of the" Court or Judge in Chambers, to be applied for upon notice of motion or by summons. (7th Aug. 1852, 1st Set, Ord. 20.) The time enlarged, on motion of which notice was given, Empson v. BowUy, 2 Sma. & GifF. App. 3 ; 2 W. R. 298 ; on payment of the costs of defendant who consented, Dakins v. Garrett, 4 Jur., N. S. 579. Plaintiff having omitted to file interrogatories, amended his bill and interrogated as to the whole : answer to the amendments only held sufficient, Denis v. Rochussen, i Jur., N. S. 298 ; 6 W. R. 265 ; 27 L. J. 369. Delivery of Interrogatories, where Defendant appears in proper Time — Copy delivered to be examined and marked as an Office Copy. 4. Where a defendant or defendants required to answer shall appear in person or by his or their own solicitor or solicitors within the time limited for that purpose by the rules of the Court, the plaintiff shall, within eight days after the time allowed for such appearance, deliver to such defendant or defendants or to his or their solicitor or solicitors, a copy of the interrogatories so filed as aforesaid, or of such of them as the particular defendant or defendants shall be required to answer. And the copy so to be delivered shall be examined with the original, and the number of folios counted by the Clerks of Records and Writs, who, on finding that such copy is duly stamped and properly written, shall mark the same as an office copy. (7th Aug. 1852, 1st Set, Ord. 17.) Affidavit by a clerk that the defendant's solicitor had admitted service of the interrogatories, and a memorandum of service written by another clerk who was abroad, held sufficient to authorize attachment for want of answer, Sidebottom v. Adkins, 4 Jur., N. S. 942 ; 6 W. R. 97. See Bowen v. Price, cited in note to Ord.- 11, r. 1. Delivery of Interrogatories, where Defendant does not appear in proper Time, 5. Where a defendant to a suit commenced by biU does not appear in person or by his own solicitor within the time allowed for that purpose by the rules of the Court, and the plaintiff files interrogatories for his examination, the plaintiff may deliver a copy of such interrogatories, so examined and marked as aforesaid, to such defendant, at any time after the time allowed to such defendant to appear, and before his appearance in person or by his own solicitor ; or the plaintiff may deliver a copy of such inter- [47] Oedek Xn. — Process fob waist of Answer. 97 rogatoriea so examined and marked as aforesaid, to the defendant or his solicitor, after the appearance of such defendant in person or by his own solicitor, but within eight days after such appear- ance. (7th Aug. 1852, 1st Set, Ord. 18.) [48] Order XII. PROCESS FOR WANT OF ANSWER. See as to entering appearance by plaintiiF, Ord. 10, r. 4 ; as to contempt for default in further answering, Ord. 16, r. 14 j as to taking bills pro eonfesso after attachment for want of answer, Ord. 22, r. 1 ; as to costs of issuing process of contempt, note to Ord. 40, r. 32 ; as to the practice relating to attachments, Sid. Smith, Ch. Pr. 114, 260; Dan. Ch. Pr. 339. Where wife ordered to answer separately, she is liable to process of contempt for default of answer, Powell v. Prentice, Daniell, Ch. Pr. 140; Thicknesse v. Acton, IS Jur. 1052. In Graham v. Fitch, 2 De G. & S. 247, ex parte appli- cation to attach a married woman was refused, but in Taylor v. Tm/lor, 12 Beav. 271, was granted. Defendant in dustody for want of his own and his wife's answer, cannot clear his contempt by putting in his own answer, without previous leave of the Court, Nictiollsv. Ward, 2 M. & G. 140 ; and where he has been discharged on putting it in, a fresh attachment may issue. Gee v. Cottle, 3 My. & Cr. 180. Process for want of answer may issue against the wife alone in a suit respect- ing her separate estate, her husband being abroad, Dubois v. Hale, 2 Vern. 613.1 The wife or plaintiff may move on notice that she may answer separately, and the husband may apply where he cannot inSuenee his wife to answer, Garey V. Whittingham, I S. & S. 163. The wife maybe required to answer separately where she is made an executrix, Bunyan v. Mortimer, 6 Madd. 278 ; Pemberton V. M'Gill, 19 Jur. 1045 ; 25 L. J. 49 ; 4 W. R. 1 ; in a crosssuit, lenaghanv. Smith, 2 Ph. 637 ; where the husband insane, Esteourt v. Ewington, 9 Sim. 252 ; Ford V. Clough, ibid. 254 ; but not because he is a prisoner. Anon. 2 Ves. jun. 332. The parts of 1 Will. IV. «;. 36, relating to attachment for want of appearance, are cited in notes to Ord. 10, r. 10. The following are the parts relating to attachment for want of answer : — 1 Will. IV. c. 36, B. 15, r. 1, "That when a writ of attachment shall have duly issued against any defendant for contempt in not answering the bill, and such defendant shall not have been taken under such writ, and the Sheriff of the county into which such writ shall have issued shall make a return of non est inventus to the same, the Court shall, upon motion by or on behalf of the plaintiff (notice of which shall not be required), order that the Serjeant-at-Arms attending the Court do apprehend such defendant and bring him to the bar of the Court to answer his contempt, and the same proceedings may thereupon be had as if such order had been made in the manner heretofore in use, provided that before such order shall in any such case be made, the plaintiff applying for C. H 98 Obdee Xn.— Process fok want of Answer. [48] the same shall be required to satisfy the Court by the affidavit of the solicitor of the plaintiff, or of his town agent if the writ of attachment was issued by such town agent, that due diligence was used to ascertain the place where such defendant was at the time of issuing such writ, and in endeavouring to appre- hend such defendant under the same, and that the person suing forth such writ verily believed at the time of suing forth the same that such defendant was in the county into which such writ was issued." Compare this Rule with Ord. 10, r. 6. Semhle. The managing clerk of the town agent could make this affidavit, Handfield v. Wildes, 2 R. & M. 91 ; but in Pugh v. Pugh, 2 M. & K. 356, it was held that the affidavit of the sheriff's officer as to steps taken to apprehend the defendant was insufficient, and that the Act must be strictly complied with. See as to the persons by whom affidavits are to be made on applications to amend, Ord. 9, r. 16. The affidavit must state the party's belief that, at the time of suing out the attachment, the defendant was in the county into which the writ was issued, and not merely that his last known place of residence was in the county, Handfield v. Wildes, 2 R. & M. 91 ; Storer v. Great Western Railway Company, 1 Y. &C. C. C. 180. The affidavit need not state the party's belief that due diligence has been used in~ ascertaining the defendant's residence, and in endeavouring to appre- hend him, but it must satisfy the Court respecting those facts, Wright v. Green, 2 R. & M. 9.3 i but in the later case of Nellhorpe v. Wright, 2 Keen, 253, it was held that the belief as to due diligence must be expressed. The affidavits must show that due diligence was used to ascertain the place where defendant was at the time of issuing the writ, and not merely that due diligence was used to ascertsun his residence, Davis v. Hammond, 5 Sim. 9. See Ord. 22, r. 2. 1 Will. IV. a. 36, s. 15, r. 2, " That if any defendant, being in contempt for not answering the bill, shall have been brought to the bar of the Court under process for such contempt, and shall have been committed or remanded back to the prison of the Fleet, the plaintiff may sue forth the writ of habeas corpus, in the manner and form heretofore in use in the like cases, provided that there shall be at least twenty-eight days between the day on which such defendant was so committed or remanded back and the return of such writ of habeas corpus, and upon or after the return of such writ of habeas corpus, in case such defendant shall not have put in his answer, the Court shall order the bill to be taken pro confesso against such defendant, in the manner therein mentioned." For the rest of this Rule, see Ord. 22. Rules 3, 4, 5, 7 and 8 of this section, which relates partly to contempt for not answering, are cited in the notes to Ord. 10, r. 10. Rule 6 of this section is cited in note to Ord. 12, r. 4. Rule 9 of this section is cited in note to Ord. 7, r. 3. 1 Will. IV. c. 36, s. 15, r. 10, " That where the defendant has been brought to the bar of the Court for his contempt in not answering, and refuses or neglects to answer (not being idiot, lunatic, or of unsound mind), the Court may upon motion or petition, of which due notice shall be given personally to the defend- ant, authorize the plaintiff to amend his bill, without such amendment ope- [48] Ordek XTT. — Process for want of Answer. 99 rating as a discharge of the contempt, or rendering it necessary to proceed with the process of contempt de novo ; but after such amendment the plaintiff may proceed to take the amended bill pro confesso, in the same manner as if it had not been amended : provided nevertheless, that if the defendant shall be desirous to answer such amended bill, the Court shall allow him such time as shall seem just for that purpose; but if he shall not within the time allowed by the Court put in a sufficient answer to the amended bill, the process for taking the bill pro confesso may be resumed and carried on." See Weightman v. Powell, cited in first note to Ord. 22. 1 Will. IV. w. 36, s. 15, r. H, " That in every case where the defendant has been brought to the bar of the Court to answer his contempt for nor answering, and shall refuse or neglect to answer within the next twenty-one days, the plaintiff shall be at liberty, with the leave of the Court upon ten days' previous notice to the defendant after the expiration of such twenty-one days, unless good cause be shown to the contrary, instead of proceeding to have the bill taken pro confesso, to put in such an answer to the bill as hereinafter is mentioned, in the name of the defendant, without oath or signature ; and thereupon the suit shall proceed in the same manner as if such answer were really the answer of the defendant, with which the plaintiff was satisfied ; and the costs of the contempt, and of putting in such answer, may be provided for in like manner as if the defendant himself had put in such answer ; and such answer, besides the formal parts thereof, shall be to the following effect: that the defendant leaves the plaintiff to make such proofs of the several matters in the bill alleged as he shall be able or be advised, and submits his interests to the Court." As the plaintiff can now proceed without an answer, and prove his own case, the proceeding under this Rule will rarely be advisable. A more general remedy by filing a traversing note was provided by the Orders of May, 1845 ; Daniell's Ch. Pr. 362. (See Ord. 1-3.) Notwithstanding the subsequent Orders, plaintiff may still proceed under the statute to take the bill pro confesso, Wilkin v. Nainby, 4 Hare, 476. Rule 12 of the statute, by which the defendant may be kept in custody where discovery is required from him, is cited in note to Ord. 22, r. 5. Rule 13, which, among other things, entitles a defendant committed for not answering to his discharge, on default of plaintiff to proceed, is cited in the note to Ord. 10, r. 10. Applications under this 13th rule for discharge may be met by an application under the 12th rule just referred to, Polis v. Whitmore, 8 Beav. 317. Sect. 15, rule 17, " That in any other case of a commitment for contempt not herein specially provided for the Court may upon any such application as last aforesaid, or upon any such report as aforesaid, make such order for the dis- charge of the prisoner upon any such terms, and making, if the Court shall see fit, any costs in the cause as to the Court shall seem proper." Defendant committed for not answering, after he had obtained leave to sue in formd pauperis, and put in his answer, discharged without paying the costs of his contempt, Bennett v. Chudleigh, 2 Y. & C. C. C. 164. h2 100 Obdeb Xn.— Pbocess foe -want oi- Answer. [48] Defendant comniitted for not answering, after answer had leave to sue in formd pauperis. His application to be discharged without paying costs, held not within this rule, but within the 17th section, post, AUibone v. Jones, 13 L. J., N. S. 408 ; 8 Jur. 678. Prisoner ibr contempt of order for payment of money cannot be discharged under this role, but must obtain his discharge under the Insolvent Debtors' Act, Dew V. raart) 3 Mac. & G. 357. Sect 15, rule 20, " That in order to relieve persons in prison from the ex- pense of a Master's attendance to take affidavits or answers, the Lord High Chancellor do by one or more commission or commissions under the great seal, upon or in respect of which no fee shall be payable, nmninate and appoint the warden, keeper or other chief officer, of every prison within the city of London, or the bills of mortality, and their deputies, to be Master Extraordinary of the High Court of Chancery, for the purpose of taking and receiving such affi- davits and answers as any person or persons within any such prison shall be willing or desirous to make, and for no other purpose ; and the person so taking such affidavit or answer shall, in respect thereof, be entitled to receive a fee of one shilling and no more ; and the Court of Exchequer shall, in like manner, appoint such persons as aforesaid a commissioner or commissioners of the said Court for the purposes aforesaid, and no others, and with the right to the like fee and no more ; and in every case of an answer being sworn in prison, a clerk of a Master or Baron (as the case may require) shall attend to take and carry back to and &om the prison the answer, and shall in respect thereof be entitled to a fee of three shillings and no more." 1 Will. IV. c. 36, s. 16. " And be it enacted, that the discharge of any prisoner adjudicated upon under the authority of an Act passed in the 7th year of his present Majesty's reign, intituled 'An Act to amend and consoli- date the Laws for the Relief of Insolvent Debtors in England,' or any other Act which may hereafter be passed for the relief of insolvent debtors, shall and may extend to all process issuing from any Court of Equity for any contempt of such Court, for nonpayment of money or of costs, charges or expenses in any such Court ; and that in such case the said discharge shall be deemed to extend to all costs which such prisoner shall be liable to pay in consequence or by reason of such contempt, or on purging the same ; and that every discharge so adjudicated as aforesaid as to any debt or damages of any creditor of such prisoner shall be deemed to extend also to all costs incurred by such creditor before the filing of such prisoner's schedule in any action or suit brought by such creditor against such prisoner for the purpose for * the recovery of the same, and that all persons as to whose demands for any such costs, money or expenses any such persons shall be so adjudged to be discharged shall be deemed and taken to be creditors of such prisoner in respect thereof, -and entitled to the benefits of all the provisions made for creditors by the said Act, or any future Act, subject nevertheless to such ascertaining of the amount of the said demands as may be had by taxation or otherwise, and to such examina- » Sic. [48] Order XII. — Process for want of Answer. ibl '■■. V. tion thereof as is in the said last-mentioned Act, or as shall be in any future ^ Act, provided in respect of all claim to a dividend of such insolvent's estate and efFects." See 2 Will. IV. c. 58, post. 1 Will. IV. c. 36, s. 17. " And be it further enacted, that where the process of contempt is for the nonperformance of an act, for example, the not answering the plaintiff's bill, and the bill in equity to which the insolvent is a party is taken pro confesso, and he has not paid the costs of the contempt, or the insolvent has fully answered the plaintiff's bill or interrogatories, or otherwise cleared his contempt except as far as regards the payment of the costs, or it has become in event unnecessary for him to do the act for the nonperformance of which he was committed or attached, the Court of Eqtiity in which the suit is depending shall, upon the application of the party in contempt, discharge him from the same, except as to the costs thereof, for which he shall remain in custody, and such costs shall be deemed within the provision lastly hereinbefore contained ; and he shall be dischargeable therefrom and from the process of contempt in like manner as if the process of contempt were for nonpayment of money or costs, provided that this Order or regulation shall not weaken any of the other powers by this Act given, nor shall anything herein contained lessen the operation of the said Act for the Relief of Insolvent Debtors." See Allibone v. Jones, cited in the note to the 17th rule, as to the distinction between applications under this section and applications under the 6th, 7th and 1 7th rules of the statute. The application under this section by a defendant against whom the bill has been taken pro confesso may be made without notice, and the defendant need not have been adjudicated insolvent, Robinson v. Stanford, 7 Jur. 667. 1 Will. IV. u. 36, a. 18. " And be it enacted, that the powers and authorities given by this Act to the Court of Chancery or to the Lord Chancellor of Great Britain, shall and may be exercised as well by such Lord Chancellor as by (and they are hereby given to) the Lord Keeper or Commissioners of the Great Seal of Great Britain for the time being, and to the Master of the Rolls and Vice- Chancellor respectively ; but the Reports of the Warden of the Fleet and of the Masters visiting there shall be made to the Lord Chancellor, Lord Keeper or Lords Commissioners only, who alone are to make orders thereupon for discharge or relief of prisoners." 2 Will. IV. c. 58, recites 1 Will. IV. c. 36, s. 16, and enacts :—" That in all cases of contempt other than and besides those provided for by the last- mentioned Act, where any person or persons are or is, or shall at any time hereafter be in prison under or by reason of any commitment or attachment directed by or issued out of the Court of Chancery, or His Majesty's Court of Exchequer, the Court of Equity, by which such commitment shall have been directed, or out of which such attachment shall have issued, shall (ufion the ap- plication of the persons or person against whom such commitment or attacli- ment hath been directed or issued) have the power, if it shall so ^ink fit, to discharge such persons or person from their, his or her contempt, except as to the costs thereof, for which costs they, he or she shall remain in custody, and such costs shall be deemed within the hereinbefcNre-recited provisions of the 102 Oedee Xn.—PHOCEss FOE WANT OF Answer. [48] said last-mentioned Act, and they, he or she shall be discharged therefrom and from the process of contempt, in like manner as is in the said last- mentioned Act provided for in cases of process of contempt for nonpayment of money or costs : provided that this Act shall not weaken any of the powers by the said Act passed in the first year of his present Majesty given, and that nothing herein contained shall lessen the operations of the said Act for the Relief of Insolvent Debtors." Prisoner upon motion discharged from his contempt upon the certificate of the Deputy Warden of the Fleet, Hodder v. Haines, 5 Sim. 441. See also Ord. 12, r. 3, and the references there given. Attachment for want of Answer. 1. Where there is just reason to believe that any defendant means to abscond before answering the bill, the Court may, on the ex parte application of the plaintiff at any time after an appear- ance has been entered for him by the plaintiff order an attach- ment for want of answer to issue against him ; and such attach- ment shall be made returnable at such time as the Court shall direct. (8th May, 1845 ; Ord. 72.) In reference to the nature of the evidence of an intention to abscond required under this Order, it may be useful to consult the following cases respecting the evidence of a like intention required on application for a writ of ne exeat regno : Russell v. Asby, 5 Ves. 96 ; Oldham v. Oldham, 7 Ves. 410; Hannay v. M'Entire, 11 Ves. 54 (where Russell v. Asby is said to be a very strong case) ; Jones v. Alephsin, 16 Ves. 470 ; Whiiehouse v. Partridge, 3 Swanst. 365. And see notes to 1 Will. IV. c. 36, s. 3, cited in notes to Ord. 22, and notes to Ord. 23, r. 2. The attachment for want of answer is made out without order, unless issued under this rule, Sid. Smith, Ch. Pr. 260. Plaintiff in custody for contempt may issue attachment for want of answer, Wilson V. Bates, 3 M. & C. 197. Attachment issued pending chief clerk's decision, on application for further time to answer, discharged with costs, Davis V. Tollemacke, 2 Jur., N. S. 564. Discharge of Defendant in Custody of Serjeant-at-Arms or Messenger — New Attachment. 2. Where a defendant, being in custody of the Seijeant-at- Arms or of a messenger under an attachment for want of his answer, is not brought to the bar of the Court within ten days after he was taken into custody, he shall be discharged out of custody by the Seijeant-at-Arms or messenger in whose custody he is, without payment by him of the costs of his contempt, which ■in such case shall be paid by the plaintiff. But where such defend- ant does not put in his answer within eight days after such discharge, the plaintiff may cause a new attachment to be issued iagainst him for Want of his answer. (8th May, 1845 ; Ord. 73.) [48] OrdeeXII. — Peocess FOE WANT OF Answer. 103 " Bar of the Court" includes the private residence of the Judge in vacation, Clark V. Clark, 1 Pb. 116 ; 4 Beav. 497. Plaintiff may explain delay in bringing up the defendant ; if delay occasioned by defendant he is not entitled to dis- charge, Bates v. Frost, 9 Jur. 291 ; see Needham v. Needham, 1 Ph. 640. This rule does not contain a provision similar to that of 1 Will. IV. c. 36, s, 15, r. 5, for the expiration of the time limited in vacation. See next note. Discharge of Defendant in Prison — New Attachment. 3. Where a defendant is in prison under an attachment for not answering, or, being already in prison, is detained under such an attachment, and is npt brought to the bar of the Court within thirty days from the time of his being actually in custody or detained (being already in custody) under such attachment, he shall be discharged from the process for want of answer under which he was arrested or detained by the sheriff, gaoler, or keeper of the gaol in whose custody he is, without payment of the costs of his contempt, which in such case shall be paid by the plaintiff. But if such defendant does not put in his answer within eight days after such discharge, the plaintiff may cause a new attachment to be issued against him for want of his answer. (8th May, 1845 ; Ord. 74.) As to the period limited for bringing the defendant to the bar of the Court, see Needham v. Needham, 1 Ph. 640. This rule is substituted for 1 Will. IV. c. 36, ». 15, r. 5, Fortescue v. Hallett, 3 Jur., N. S. 806 ; 26 L. J. 711. As to the discharge out of custody, see Collins v. Collyer, Cr. & Ph. 262 ; and observation on that case in Haynes v. Ball, 4 Beav. 101 ; Greening v. Greening, 1 Beav. 121 ; Bennett v. Chudleigh, 2 Y. & C. C. C. 164, cited ante, in note to 1 Will. IV. u. 36, o. 15, r. 17. As to discharge of defendant in custody for want of answer, submitting to have the bill taken pro eonfesso, see Ord. 22, i. 5. As to discharge of prisoners for contempt, see Ord. 29, i. 3, and the note preceding Ord. 12, i. 1. [49] Pauper Defendant in Custody for want of his Answer — Assign- ment of a Solicitor and Counsel. 4. Where a defendant is brought up in custody for want of his answer, and makes oath in Court that he is unable by reason of poverty to employ a solicitor to put in his answer, the Court, if not satisfied of the truth of that allegation, may direct an inquiry as to the truth thereof, and may appoint a solicitor to conduct such inquiry on the behalf of such defendant; and if it is ascertained by means of such inquiry, or if the Court is satisfied without such inquiry, that such defendant is unable by reason of poverty to em- ploy a solicitor to put in his answer, the Court may assign a . solicitor and counsel for such defendant to enable him to put in his answer. (8th May, 1845; Ord, 75.) 104 Drdek Xn.— Process for want of Answer. [49] 1 Wil}. IV. c. 36, s. 15, r. 6, enacts, "That if a defendant upon teing brought before the Court upon an habeas corpus shall make oath (which shall be administered to him by the Registrar, and he shall be examined in open Court) that he is unable by reason of poverty to employ a solicitor to put in bis answer, the Court shall thereupon refer it to a Master in rotation to inquire into the truth of the allegation, and to report thereon to the Court forthwith, and thereupon the Court may make such order as upon other reports of the like nature under the provisions hereinafter contained." See also rules 7 and 8 (which also relate to the assignment of counsel and solicitor to prisoner in contempt), cited in notes to Ord. 10, r. 1 0. See also as to assignment of counsel to paupers, Ord. 7, rr. 9 and 10. This 4th rule of the 12th Order is somewhat more extensive than the 6th rule of the Act, for the former enables the Court without directing an inquiry to assign solicitor and counsel. Under the Aot the inquiry must proceed in the presence of the defendant, Atkinson v. Flint, 5 Siva, 74 j Williams v. ParJcinson, 5 Sim. 77. See Sid. Smith, Ch. Pr. 263, n. (5). Where defendant f^ls to show poverty, bill may be taken pro confesso, Bull v. Falltner, 11 Jur. 235. It is presumed that if a defendant is now brought up under similar circum- stances, unless the facts are complicated the matter will not be sent to ohambere, but the "Court will at once decide it without a reference. The defendant when brought up is sworn by the Registrar and examined by the Court. If a reference is directed be is turned over to the Queen's prison pendii^ the reference, Sid. Smith, Ch. Pr. 263. Where the defendant does not proceed under &e statutory rule 6 above cited, the remedy of the plaintiff is to take the bill pro eonfesso, Watkin v. Parker, 1 Myl. & Cr. 370 ; Garrod v. HMen, 4 Beav. 245. In Welfard v. DanieU, 9 Sim. 652, the Order directed counsel and solicitor to be assigned to the defendant, and in case of default of answer habeas corpus to issue, in order that the bill niiglit be taken pro confesso. See notes to 1 Will. JV. c. 36, a. 15, r. 2, cited in notes to Ord. 22. Pauper Prisoners in Contempt. 5. Where application is intended to be made for the disAarge of any prisoner in contempt, and for the payment out of the Suitors' Fund of the costs of such contempt, in pursuance of the provisions few tha* purpose contained in Ihe Stat. 1 Will. IV. c. 36, notice in writing of such intended application shall be served upon the sdicitor to the Suitors' Fund two clear days at the leaet before the day upon which the application is intended to be made. And wfcere an order is made under the said Act, or under the 4th Rule of this Order, directing an inquiry as to the fact of the poverty of any prisoner in contempt, notice in writing of such order, and of every summons to proceed thereupon, shall be duly served upon the Bolieitar to the Suitors' Famd. (6tii Dec. 1844.) [49] Order XII. — Process foe want of Answer. 105 Sequestration on return Non est inventus to Attachment for want of Answer, 6. Upon the sheriff's return, non est inventus, to an attachment issued against any defendant for not answering the bill, and upon affidavit made that due diligence was used to ascertain where such defendant was at the time of issuing such writ, and in endeavouring to apprehend such defendant under the same, and that the person suing forth suS'ven in evidence in Courts of law against the persons making such discovery, and in cases where such persons having such privilege as aforesaid shall stand out process of contempt, parties entitled to such discovery against them have not sufficient means of compelling or obtaining the same in all cases ; be it there- fore enacted that, from and af):er the passing of this Act,, when any defendant, bsving privilege of Parliament, shall have appeared to any bill filed against bim seeking a discovery upon oath, or when an appearance shall have been entered for such defendant according to the provisions aforesaid, and such person shall refiise or neglect to put in bis answer to such bill within the time for that pur- pose allowed by the Rules and Orders of such Court, that then it shall and may be lawful for the plaintiff in such suit to apply to the Court for an order that such bill shall be taken pro eonfesso against sudt defendant, and' upon such spplication such Court of Equity shall make an order that such bill shall be t^en pro cot^tso, unless the defendant shall, within eight days after being served with such order, show good cause to the contrary." This section is neanly the same as iS Geo. III. c. 124, s. S ; that seetion was held to apply to bills of <^eovery only, Jones v. Davif, 17 Ves. 368 ; but in Logan V. Grant, 1 Madd. 62S, Sir T. Plumer, V. C, refused to follow this case, and held that the section applied to bills for relief. Sect. 14. "And be it further enacted, that when and so soon as any such order shall have been pronounced by any such Court of Equity for taking such bill pro confesso, such bill in equity, or an examined copy thereof so taken pro eonfesio, shall be taken and read in any Court of Law or Equity, as evidence of the facts, and matters, and things therein contained, in the same manner as if such facts, matters, and things had been admitted to be true by 168 Oedee XXn.— Taking Bills Peo Confesso. [68] the answer of the defendant put in to such bill ; and such bill so taken pro confesso shall be received and taken in evidence of such and the same facts, and on behalf of such and so many persons, as the answer of the defendant to the said bill could and might have been read and received in evidence of, in case such answer had been put in by the defendant thereto, and had admitted the same facts, matters, and circumstances as in such bill stated and set forth, and in like manner every other bill of discovery taken ;»-o confesso under any of the provisions of this Act, shall or may be taken and read as evidence of the facts, matters, and things therein contained to the extent aforesaid." Section 15, r. 1, is cited at the commencement of the notes to Ord. 12. Sect 15, r. 2. "That if any defendant being in contempt for not answer- ing the bill, shall have been brought to the bar of the Court under process for such contempt, and shall have been committed or remanded back to the prison of the Fleet, the plaintiff may sue forth the writ of habeas corpus in the manner and form heretofore in use in the like cases, provided that there shall be at least twenty-eight days between the day on which such defendant was so committed or remanded back, and the return of such writ of habeas carpus ; and upon or after the return of such writ of habeas corpus, in case such de- fendant shall not have put in his answer, the Court shall order the bill to be taken pro confesso against such defendant, in the same manner as is now usual in the like cases upon the return of a writ of alias pluries habeas corpus, and such decree shall thereupon be made as shall be thought just ; but in regard to any defendant in custody before and at the time of the passing of this Act, there shall he at least thirty days between the time of passing this Act and the return of such last-mentioned writ of habeas corpus ; and it shall not be necessary in the case of any defendant now in custody as aforesaid, who shall have been brought to the bar of the Court as aforesaid, to sue forth more than one writ of habeas corpus in order to take the billjoro confesso." Part of this rule is cited in the commencement of the notes to Ord. 12. Bill taken pro confesso under this rule in vacation, Simmons v. Wood, 2 Hare, 644. Where defendant refused to bring any statement before the Master under r. 6 (see Ord. 12, >. 4), bill taken pro confesso, Williams v. Parkinson, 5 Sim. 74. Defendant brought to the bar stated that his plea and answer was ready to be filed ; it being filed before the Court rose, bill not taken pro confesso, Robinsony. Stanford, 2 Hare, 149. But an application to discharge the preliminary order will be refused, Carr v. Pauleit, cited in note 1 Will. IV. t. 36, ■>. 3. Bill taken pro confesso, though defendant was ready to file his answer, and after- wards filed it before the rising of the Court, James v. CresswicJce, 7 Sim. 1 43. Where defendant's answer was delayed by illness, the plaintiff's counsel con- senting, it was ordered that the order to take the bill pro confesso should not be drawn up, if defendant filed his answer within a fortnight. Courage v. Wardell, 4 Hare, 481. Where defendant is brought up under the 6th rule, the bill cannot be taken pro confesso, without he is again brought up and remanded. Viscountess BarneweU v. Cooke, 7 Sim. 320. In Welford v. Daniell, 9 Sim. 652, the order [68] Peeliminaet Proceedings. 169 directed counsel and solicitor to be assigned to the defendant; and habeas corpus to issue in order that in case of default of answer the bill might be taken pro confesso. The pendency of an inquiry under the 6th rule of the statute authorizes plaintiff in delaying to take the bill pro corfesso until after the time limited by the Act, Bates v. Frost, 9 Jur. 291. Semble, time for taking the bill pro confesso does not run pending the inquiry, Potts v. Whitmore, 8 Beav. 317 ; Bates v. Frost, 9 Jur. 291. Sect 15, 1. 4. "That where a defendant is confined for a misdemeanor and has been brought before the Court upon an habeas corpus, and liereupon has been turned over to the Fleet pro form&, but has been carried back to the prison &om whence he came with his cause, another writ of habeas corpus may issue, airected to the gaoler or keeper of the prison to which he has been carried back ; and thereupon the defendant shall be brought into Court, and remanded to the prison from whence he came with his cause, without being turned over again to the Fleet prison; and the bill may be taken pro confesso in the same manner in all respects as if the defendant had been all along in the custody of the Warden of the Fleet." This rule is cited in the notes to Ord. 10, i. 10. The other rules of this section are cited Or referred to in the notes to Ord. 12, and relating part to taking bills pro Confesso. Sect. IS, r. 13, which is cited in the notes to Ord. 10, r. 10, enables the plaintiff to enter an appearance for the defendant in certain cases ; and where the defendant is in contempt for not answering, and in custody, and shall not put in an answer within two calendar months after he is lodged in gaol or prison, or the attachment is lodged against him he being in prison, the rule provides that the plaintiff "shall at the expiration of such two calendar months proceed to take the bill pro confesso, and shall accordingly obtain an order for taking the saitie pro confesso within six weeks after the period computed from the expiration of such two calendar months, within which he may be able to take the same pro confesso ; or in default of so doing in either of such cases, the defendant shall, upon appli- cation to the Court, be entitled to be discharged out of custody without paying any of the costs of the contempt, unless the Court shall, uilder the power hereinbefore contained, see good cause to remand and detain the defendant in custody ; and this rule stall apply to every defendant in custody before and at the time of the passing of this Act who shall not have entered his appearance, and for whom an appearance shall not have been entered, or shall not have answered the bill, and the bill shall not have been taken pro confesso ; but the twenty-one days and two calendar months respectively to be reckoned from the 1st day of next term, and the other periods to be altered accordingly in com- putation ; but nothing in this Act shall prevent any plaintiff from proceeding to take his bill pro confesso, according to the practice existing before 'the passing of this Act, where at the time of passing, this Act his proceedings shall be so far advanced that the powers of this Act would not enable him to accelerate the period for taking his bill pro confesso." Defendant entitled to his discharge by plaintiff not proceeding to take the 170 Oedek XXH.— Taking Bills Pbo Confesso. [68] bill pro cmfesio within the proper time, put in his answer, and moved to be dis- charged without payment of the costs of contempt ; held that the case did not come within this rule, defendant having answered, Williams v. Nevitm, 1 1 Sim. 45. The periods of six weeks and two months are not interrupted by vacation, Simmms v. Wood, 2 Hare, 644. The Court will not order a bill to be taken pro canfesso after the period allowed by this rule, Colliiis v. Colly er, C. & Ph. 262. See 5ote» v. JiVos*, cited in noteto sect. 15, 1. 2, ffi»ufaur,16 Beav. 113. By Ord. 30, r. 4, post, the person required by any decree or order to do any act shall, " upon being duly served with such decree or order," be held bound, &c. In Skegg v, Simpson, 2 De G. & S. 454, on affidavit of ineffectual attempts to serve defendant, and showing that he avoided service, service on his solicitor directed. In Pycroft v. Williams, 5 W. R. 464, delivery of the order to a ser- vant at the house of the person sought to be served was held sufficient. Decree directing payment of money by a defendant was, on the sole ground that he was resident out of the jurisdiction, directed to be served on his solicitor who corresponded with him, Griffiths v. Cowper, 8 W. R. 539 ; on appeal, ibid. -712 i 29 L. J. 607 i Walrond v. Parker, 29 L. J. 624 ; 1 Gifi". 315. [78} Oedee XXm. — Deceees and Oedehs. 187 An order against a peer or member of parliament is personally served; on de&ult, an order is made for sequestration nisi, followed, if necessary, by an order absolute for sequestration, Crawley v. Clarke, 3 Bro. Ch. Ca. 373. On motion to commit for breach of injunction, the order for the injunction must be shown to have been served personally ; but the writ of injunction need not be produced in Court, Gooch v. Marshall, 8 W. R. 410. See Ord.29, r. 1. An affidavit of personal service of an order for payment under the Winding- up Acts need not state where the service was effected, Re Job, 27 Beav. 32. [79] Decree saving the Rights of absent Parties, 11. Where a defendant, at the hearing of a cause, objects that a suit is defective for ^aiit of parties, and has not by plea or an- swer taken the objection, and therein specified by name or descrip- tion the parties to whom the objection applies, the Court, if it shall think fit, may make a decree saving the rights of the absent parties. (26th Aug. 1841; Ord. 40.) See IS & 16 Vict. t. 86, ss. 42, 44 and 51, cited in the notes to Ord. 7, Ord. 23, r. 18, and Ord. 35, r. 18. Declaration of rights as to those legacies only in which absent legatees were not interested, Morley v. Bennoldson, 2 Hare, 570 ; Mores v. Mores, 6 Hare, 126. In the latter case the cause had been set down, though such legatee (defendant) had not appeared ; but in Russell v. Lucy, 18 L. J. 464, it was held that a Vice- Chancellor had not jurisdiction to make such an order. In Gouldner v. Camm, 8 W. R. 156, an appeal was heard reserving liberty to assignees in bankruptcy who had, though served, not appealed on the original hearing, to be heard sub- sequently if necessary. Since the Orders of August, 1841, in case of devise to heir to sell, with power to give receipts, legatees of legacies charged on realty, need not be parties, Ward V. Bassett, 5 Hare, 179. But where the suit involves administration and distribution, devisees in trust do not sufficiently represent the beneficiariesi Janes v. How, 1 Hare, 267. And where such power does not arise till the life tenant's decease, remaindermen should be parties. Cox v. Barnard, 5 Hare, 253. And on the question of proceeding in the absence of some parties interested, Biggs V. Penn, 4 Hare, 469 ; Shipton v. Rawlins, ibid. 619 ; Barkley v. Reay, 2 Hare, 306, and cases cited ante, p. 47. A person seised in fee does not re- present the inheritance if his interest is defeasible, Goodes v. Williams, 2 Y. & C. 295. Decree in absence of heir of trustee, Faulkner v. Daniel, 3 Hare, 199. The order here incorporated is applicable if the objection be not taken before the hearing, May v. Selby, 1 Y. & C. 235 ; Felthamv. Clark, 1 De G. & S. 307. The order does not apply where the right of an absent party might be pre- judiced, or the decree might transfer the legal interest where he has an equit- able interest, and therefore not in the absence of a debtor, who has assigned his property for the benefit of his creditors, Kimber v. Ensworih, 1 Hare, 293. Where plaintiff was held entitled to a legacy to her of a debt due from her late 188 Ordee XXin. — ^Deckees and Orders. [79] husband, the decree was made saving the rights of his assignees in bankruptcy, Mayberry v. Brooking, 7 De G., M. & G. 673 ; 4 W. R. 156 ; 25 L. J. 87 ; 20 Jur. 76. DecT'ee on default of Defendant. 12. Where a defendant makes default at the hearing of a Cause, the decree shall be absolute in the first instance, without giving the defendant a day to show cause ; and such decree shall have the same force and effect as if the same had been a decree nisi in the first instance, and afterwards made absolute in default of cause shown by the defendant. (26th Aug. 1841; Ord. 44.) Qiuere, whether a decree can be made upon default on a seal day, Matthewt V. Matthews, 2 Y. & C. 318. Under this rule the plaintiff takes such decree as on the evidence and plead- ings he is entitled to, Hakewell v. Webber, 9 Hare, 541 ; Evans v. Williams, 6 Beav. 118. As to decree on hSlpro confesso, see Ord. 22, r. 8, et seg. As to decree nisi, in the case of infants, see Seton on Decrees, 337 ; Sid. Smith, Ch. Pr. 453. Where a traversing note has been died its service must be proved at the hearing to entitle plaintiff to a decree on defendant's default of appearance, Evans V. Williams, 6 Beav. 118. Where affidavit of service of the subpoena to hear judgment is irregular, the cause must be set down again, Evans v. Evans, 2 Keen, 604. A decree taken on production of an insufficient affidavit of service of the subpoena is irregular, Powell v. Martin, 1 Jac. & W. 292 j Rigg v. Wall, 3 My. St Cr. 505. See as to service of subpoena to hear judgment, Ord. 28, r. 7, and Ord. 21. Dismissal on Plaintiff's application or default. 13. If the plaintiff, after the cause is set down to be heard, causes the bill to be dismissed on his own application, or if the cause is called on to be heard in Court and the plaintiff makes default, and by reason thereof the bill is dismissed, such dismissal, unless the Court shall othervrise direct, shall be equivalent to a dismissal on the merits, and may be pleaded in bar to another suit for the same matter. (8th May, 1845; Ord. 117.) See as to decree on defendant's default note to the last rule. Where plaintiff was permitted to withdraw replication his undertaking to set down the cause on bill and answer was held equivalent to service of subpoena to hear judg- ment, and plaintiff not appearing at hearing bill dismissed with costs, Rogers V. Goore, 17 Ves. 130. In Ellis v. King, 5 Madd. 21, plaintiff not appearing according to his soli- citor's undertaking to appear without a subpoena to hear judgment. Lord Chan- cellor held that the cause could only be struck out, and that the solicitor was liable to pay the costs occasioned by his default. As to pleading a dismissal in bar, see Daniell's Ch. Fr. 544 ; Sid. Smith, 364. [79] Okdee XXTTT. — Deokees akd Ordees. 189 An order dismissing a bill for want of prosecution, or on plaintiff's election to proceed at law, seems not within this rule. Daniell's Ch. Pr. 544. In a suit hj bill, defendant is not entitled to dismissal on plaintiff's default to appear, without producing a regular affidavit of service of subpoena to hear judgment, Rigg v. Wall, 3 M. & C. 505 ; but on plaintiff's default at the hear, ing of a clain), defendant having appeared, was entitled to disiqiss^l without any affidavit, Charton v. Allen, 9 Hare, App. 77 ; Bell v. Hornby, 14 Beav. 439, Defendant is entitled to have proceedings in a second suit stayed until pay- ment of costs of a former suit dismissed with costs in default of plaintiff's ap- pearance, Pickett V. Loggm, 5 Ves. 702 ; see notes to Ord. 14, r. 7. The Court refiised to vacate the inrolment of the former decree, on the ground that plain- tiff had been prevented by poverty from appearing by counsel, Ibid. Where a bill is dismissed with costs, the words " to be paid by the plaintiffs " should he added to ^ve the defendants the remedy for their casts hy^./a. o/p elegit, Taylor v. Jardine, 1 Hare, 316 ; see Qrd. 29, i. 6. Inquiry as to Personalty outstanding or undisposed of. 14. Every decree or order for an account of the personal estate of a testator or intestate shall contain a direction for an inquiry what parts (if any) of such personal estate are outstanding or lih- disposed of, unless the Court shall otheriyise direct. (26th Aug. 1841; Ord. 45.) As to the form of the decree or order, or an account of personal estate, see Seton on Decrees, 44. Directions as to Accounts and Inquiries to be numbered. 15. Where by any decree or order, whether made in Court or in Chambers, any accounts are directed to be taken or inquiries to be made, each direction shaU be numbered, so that, as far as may be, each distinct account and inquiry may be designated by a number, and such decree or order may be in the form set forth in Schedule (D), with such variations as the circumstances of the case may require. (16th Oct. 1852 ; Ord. 8.) See as to directions as to the mode of taking accounts, Ord. 35, r. 16, and 15 & 16 Vict. c. 86, o. 54, there cited. Just Allowances. 16. In taking any account directed by any decree or order, all just allowances shall be made, without any direction for that pur- pose in such decree or order. (22nd Aug. 1859; Ord. 16.) As to what species of claims fall under the denomination of just allowances, see Seton on Decrees, 38.' Drawing up, Passing and Entering of Order of course at the Rolls. 17. With a view to the convenience of the suitors and their solicitors, and for the purpose of diminishing the expense of orders 190 Okdbr XXHL — Decbees and Ordebs. [80] on petitions of course which according to the practice of the Court may be presented to the Master of the Rolls, one of the secretariee of the Master of the Eolls shall, upon any such petitions of course (except upon petitions for setting down causes to be reheard) which shall be presented to his Honor, instead of answering such petitions, draw up the orders thereon in such form as the Master of the Eolls shall from time to time direct, every such order to be signed as passed with the initials of such secretary ; and the under secretary shall enter, or cause to be entered, every such order in a book to be kept at the secretary's ofl5.ce at the Eolls for that pur- pose, and shaQ then mark and sign such order with his initials, as entered ; and the suitors of the Court and their solicitors shaJl have access to the said book, during oflice hours, without the pay- ment of any fee. And every such order so to be made as aforesaid, shall have the same force and effect as orders of course passed hy the Eegistrars have. (21st Dec. 1833; Ord. 29.) As to applications for orders of course, see Ord. 6, rr. 9 & 10. As to costs of petitions or orders of course, see 4th schedule, poit. For a list of orders that can be obtained upon petitions of course at the Rolls, see Daniell's Ch. Pr. 1406. Time for Motion to add to a Decree. 18. The time within which a party served with notice of a decree under the Stat. 15 & 16 Vict. c. 86, s. 42, may apply to the Court to add to the decree, shall be one montii after euch service. (7th Aug. 1852, 1st Set, Ord. 40.) For the section here referred to, see note to Ord. 7. See also Ord. 23, r. 11, and Ord. 3S, r. 18. Where a person, summoned under the 18th Order of April, 1850, wished to renew a claim for wilful default against trustees which the decree had dismissed, held that he must move on notice for leave to file a bill in the nature of a bill of review, Ex parte Kidd, 2 W. R. 316 ; Kiddv. Cbeyne, 18 Jur. 348. In a suit by- mortgagee, judgment creditors who are not parties are not bound by a decree for sale on being served with notice of it, bat a supplemental bill may be filed against them on their refusal to come in, Knight v. Pocock, 24 Beav. 436 ; 27 L. J. 297. See Doady v. Biggins, 9 Hare, App. 32. Service of Notice of Decree to he entered. 19. A memorandum of the service upon any person of notice of the decree in any suit under the 8th Rule of the same section, shall be entered in the office of the Clerks of Eecords and Writs, upon due proof by affidavit of sudi service. (7th Aue. 1852, 1st Set, Ord. 41.) As to the form of order to attend proceedings under a decree, see Seton on Decrees, 590. [80] Obdee XXni.— Decrees and Obdees, 191 Sow such Notice entitled and indorsed. 20. Notice of a decree or order served pursuant to the 8tli Rule of the same section shall he entitled ia the cause, and there shall be indorsed thereon a memorandum in the form or to the effect following, that is to say, " Take notice, that, from the time of the service of this notice, you [or as the case may be, the iniant, or person of unsound mrad], will be bound by the proceedingB in the above cause in the same manner as if you [or the said infant, or person of unsound mind] had been originally made a party to the suit ; and that you [or the said infant, or person of unsound mind] may, by an order of course, have liberty to attend the pro- ceedings under the within-mentioned decree [or order] ; and that you [or the said infan% or person of unsound mind] may, within one month after the service of this notice, apply to the Court to add to the decree [or order]." (let June, 1854 ; Ord. 8.) Semble, under this rule an infant is to be served in the same manner as any other party, Clarke v. Clarke, 9 Hare, App. 13 ; 1 W. R. 4S. £81] Clerical Mistakes or Accidental Slips, 21. Clerical mistakes in decrees or orders, or errors arising from any accidental slip or omission, may at any time, before inrolment be corrected upon motion or petition, without the form and expense of a rehearing. (3rd April, 1828 ; Ord. 45.) Where the alteration does not deface the decree a separate order will be dis- pensed with, Seton, 589. This rule enables the Court only to supply something which may make an existing direction complete, but not to make a new direction, Brookfleld v. Bradley, 2 S. & S. 64 ; Whitehead v. North, Cr. & Ph. 78 ; see Turner v. Hodg- son, 9 BeaT. 265 ; Re Bolton, 9 Beav. 272 (where defendant's solicitor had to bear the costs of the correction). In Fyler v. Fyler, 1 Coll. 93, decree varied by confining payment of interest to particular creditors, but only on consent. In Askew V. Pedder, 14 Sim. 301, a mistake in the decree corrected under the General Order on which this rule is founded, though pronounced seven years before, and though the cause had been hemd on further directions. Under the same General Order usual directions were supplied on petition, Trevelyan V. Charter, 9 Beav. 140. See Walter v. Innes, 4 M. & C. 101. Respondent to such petition orda-ed to produce the original decree for the purpose of cor- recting it, Bird v. Heath, 6 Hare, 236. A decree rectified in matters quite of course on motion, Wallis v. Tlumas, 7 Ves. 292 ; Piekard v. Matheson, 7 Ves. 293 ; Newhouse v. mtford, 12 Ves. 456 j Lane v. Hails, 12 Ves. 458 ; Skrymsher V. Northcote, 1 Swanst. 573, n. ; Tomlimi v. Palk, 1 Russ. 475 ; Hawker v. Bun- combe, 2 Madd. 391 (where the Accountant-General was required to make a corresponding correction in his books) ; Cradock v. Owen, 2 Sma. & Gifi'. 241 (where the Chief Clerk's certificate was corrected). Mistake in the title of an 192 Oedee XXm.— Dechees and Oedees. [81] order for sequestration corrected, Lomten v. Mayor of Colchester, 2 Mer. 395 (where the recital in the writ of spqqestration was corrected accordingly). Cor- rection of the title pf a cause iq a writ of rebellion and the order for the serjeant- 3t-arms, Bennett v. J^utton, 2 Mer. 400, n. ; 1 Dick. 135. pn motion to vary a direction in a decree for paymept of costs the payment was stayed for a month, Nicholson V. Norton, 7 Beav. 67. Applications on motion or petition to rectify the decree refused, Brackenbury y. Brackenbury, 2 J. & W. 391 ; Coleman v. Sarell, 2 Cox, ?06. No substantial alteration can be made in a decree on motion except by consent, Willis v. Par- kinson, 3 Swansf. 233. In decree made on motion for specific performance, omission of reference as to title supplied on motion, Hughes v. Jones, 26 Beav. 24 ; 6 W. R. 763. See fiirther as to correcting enrolled decrees and orders, Ord. 31, r. 9. Sreach of Conditional Decree or Order. 22. Where any person who has obtained any decree or order upon condition, does not perform or comply with such condition, he shall be considered to have waived or abandoned such decree or order so far as the same is beneficial to himself; and any other person interested in the matter may, on breach or non-performance pf the condition, take either such proceedings as llie decree or order niay in such case warrant, or such proceedings as might have been taken if no such decree or order had been made, unless the Court shall otherwise direct. (^8th May, 1845 ; Ord. 119.) Where order for time to answer was made on terms of entering an appear, ance with the registrar and consenting to a serjeant-at-arms, held that plaintiff could not pompel the defendant to perform the condition, Judd v, Wartnaby, 2 My. & Keene, 813. Where plaintiS' undertook to amend within a limited time, but did not do so till afterwards, the delay being caused by defendant, the Court refused to direct the amended bill to be taken off the file, Henley v. Stme, 4 Beav. 386. See, as to furtlier time allowed on terms, Ord. 39, r. 8. Filing qf Petition, ^c, before Order passed. 23. No order made on a petition, and no order to make a sub- mission to arbitration or an award an order of the Cotirt, and no decree or order wherein any written admissions of evidence are entered as read, shall be passed, until the original petition, sub- mission to arbitration, award, or written admissions of evidence, shall have been filed in the Report Office, and a note thereof made on the decree or order by the Clerk of Reports. (21st Dec. 1833 ; Ord. 27. 26th April, 1647. 27th May, 1687.) The marginal note to this rule, in the authorized edition, is " filing of petition, &c, before order made." The word "made" seems to have been substituted for " passed" by an accidental error, which is repeated in the "Table of Orders and Rules." [81] Ordkh XXm.— DEcaREEs and Okmks. 193 Where Are wiginal petition was lost a certified copy allowed to be filed, San- dtrson T. IFoMer, 1 Afylne & Cr. 8S9 ; Smith v. HdrmuM^ 1 Sm. & G. 187. The pe^tion is not filed till after it is heard, note, Ibid. Petitioner refusing to deliver up the ori^nal petition respondents allowed to file the copy served on Aem, Andrews v. Wallm, 1 My. & Cr. 860. Where the original petition was lost respondent was not allowed to have the order dismissing it drawn up on production of a copy, but directed to proceed as far as posdble without filing the petition and then apply for leave to file a eopy> St Hoiler, 9 Jur. 419. ContenU of Inrolment— Certificate by the Record and Writ Clerk as to the Correctness of the Statements. 24. For the purpose of diminishiag expense in the inrohnent of decrees and orders, no part of the statements or allegations con- tained in any bUl, answer, petition, notice of motion, affidavit, report^ or certificate, shall be reeited or stated in any such inrol- ment, but it shall be sufficient to state in such imx>lment the filing of the bill or petition, or siervice of the notice of motion, with the names of the parties thereto, together with the prayer of the bill or petition, or the object of the notice of motion, the filing of the several answers and other pleadings or proceedings, and the short purport or efiect of any decree or order, made, had, put in, vs taken, before the date of the decree or order inroUed and leading tiiereto. And no decree or order shall be inroUed until the Clerk of Secords and Writs, in whose division the cause or matter may be, shall have inspected the docket of such inrolment, and shsJl have certified thereon that the statement of the pleadings, decrees, orders, reports, certificates, and proceedings therein contained is correct, (17tli March, 1843.) See as to varying decrees after iraulment, Ord. 31, r. 9. As to the inrolment of decrees, see Daniell-sCh. Pr. 784; Sid. Smith's Ch. Pr. 468. As to the costs of inrolment and caveat, see 4th schedule, pact, " in the Record and Writ Clerks' Office and Report Office." By 15 & 16 Vict c 80, s. IS, " All orders of the Master of the Rolls, or of a^ Vice-Chancellor made by him at chambers, shaU have the force and efiect of orders of the Court of Chancery, and such orders may be signed and imolled in tjie same manner." [82j Inrolment within Six Months. 25. Afl decrees and orders pronounced or made in any cause or matter in this Court which diall be inrolled, shall be so inroUed within six calendar months after the same shall be so pronounced or made respectively, and not at any time after, without special leave of the Court, suefa leave to be obtained in manner next here- inafter mentioned. (7th Ax^. 18S2, 2nd Set, Ord. 2.) c. o 194 Obdeb XXIII.— Decbees and Oeders. [82 Where tbe decree of a Vice-Chancellor was heard on appeal by the Lords Jus tices, the application under this and the following rule was held to he properl) made to the Vice-Chancellor, Butchardt v. Dresser, 1 Kay, App. 27; 2 W. B 247; If ebb v. London and Portsmouth Railway, 10 Hare, App. 16. But in R The Sea, ^c. Assurance Company, 3 W. E. ?28, on application to the Lord Chan cellor under this rule, he considered that the application would have been raor properly made to the Lords Justices, who pronounced the order sought to b( inroUed, As to the time for appeals and rehearings, see Ord. 31, r. 1. As torehearini after inrolment, see notes to Ord. 31, r. 9. As to inrolment of orders of the Ecclesiastical Courts for non-payment o money, Cooper v. Dodd, 15 Jur. 69. As to inrolment of orders of thek Commissioners of the Encumbered Estate Act, Ireland, see Re Scott, 12 Beav. 361 ; S. C, before the Lord Chancelloi •Seton on Decrees, 591. Inrolment after Sipc Months. 26. Where any party is desirous to inrol a decree or ordei after the expiration of sLk calendar months and within five year from the time the same shall have been made, he may apply b; motion to the Judge to whose Court the cause is attached for a: order for that purpose ; and such order, unless made by consent c the opposite party or on notice to all the parties, shall be a condi tional order in the first instance, but shall become absolute withon ftirther order, unless cause be shown against it within twenty eight days after service thereof. (7th -^ug- 1852, 2nd Set, Ord. 3. The onus of showing cause why a decree should not be inroll^d lies on th party resisting the application to inrol, Kay v. Smith, 7 Ce Q., M. & G. 383 26 L. J. 136. In Sherwin v. Shakespeare, 18 Bear. 527, and Davison v. Robinson, 4 K. & < 754, after the time limited orders were made for inrolment, unless the adven party appealed within twenty-eight days to the Lord Chancellor. In the latji case such order was made on a. motion on notice to all parties, an adveri party stating an intention to appeal. See form of such conditional order, Setc on Decrees, 591. The first part of the Order on which this rule is founded was as follows :- " In case any party is desirous to inrol a decree or order or dismission, afti the expiration of six calendar months from the time the same shall hare bee made, he shall obtain an order for that purpose, and which order, unless mac by consent," &c. Order for inrolment absolute, in the first instance, on the consent of s parties, Harrison v. Corporation of Southampton, 2 W. R. 183. Caveat against Inrolment. 27. Where a caveat is entered with the proper officer to sta the signing of the docket of the inrolment of any decree or orde [82] Okdee XXm. — Decrees and Orders. 195 such caveat shall be prosecuted with effect within twenty-eight days after the docket of such decree or order shall be left to be signed with the proper officer by the party who entered the same ; otherwise such caveat shall be of no force, and the docket of such decree or order may immediately after the expiration of the said twenty-ieight days be presented to be signed, as if no such caveat had been entered. (7th Aug. 1852, 2nd Set, Ord. 4.) A General Order, 17th June, 1699, ordered " That where a caveat is entered with the proper officer to stay the signing of any decree or dismission, in order to the inrolment thereof, that such caveat shall be prosecuted within a month after the docket of such decree or dismission shall be left to be signed with the proper officer by the party that entered the s'ame, otherwise such caveat shall be of no force ; but the docket of such decree or dismission may forthwith be after presented to be signed, as if no such caveat had been entered." See note on this order in Beames's Orders, 309. Formerly the twenty-eight days were reckoned from the time when notice of presentation of the docket for signature was given to the other party by the officer receiving it, Burnet v. Theobald, 1 P. Wms. 609. The twenty-eight days must be clekr days, Robinson v. Newdick, 3 Mer. 13. See Pickett v. Loggm, cited in note to Ord. 23, r. 13. Presentation of a petition of appeal or rehearing, or the obtaining an order for setting down, without service of the order, is ineffectual to stay inrolment, Groom v. Stinton, 2 Phil. 38*; 11 Jur. 895; 17 L. J., N. S. 1; Dearman v. Wyclt, 4 M. 8r Cr. 550. After delivery of the docket for signature the inrolment is complete, though not signed by the Lord Chancellor, Barnes v. Wilson, 1 R. & M. 486. See Man V. Bicketts, 1 Ph. 530 ; 14 L. J. 255 ; 9 Jur. 543. Inrolment vacated for irregularity on motion or on petition, Pickett v. Loggont 5 Ves. 702 ; Stephens v. Gtippy, 1 Turn. & R. 179 ; inrolment vacated where due notice of passing and entering decree not given, and there were circumstances of surprise, Hargrove v. Hargrave, 3 Mac. & G. 348. The Court has a discretionary power to vacate inrolments, though strictly regular, Robson v. Cranwell, 1 Dick. 61, cited 1 Ves. 205 (where the bill had been dismissed owing to neglect of plaintiff's solicitor) ; Benson v. Vernon, cited ibid. ; 3 Bro. P. C. 626 ; but will not in general exercise it when the cause has been heard on the merits, Charman v. Charman, 16 Ves. 115. As to what amounts to surprise, see Balguy v. Charley, 1 M. & K. 640 ; Lewis v. Hinton, 1 1 Jur. 255 ; 16 L. J., N. S. 268 ; Barnes v. Wilson, 1 R. & M. 486 ; Whitaker v. Leach, Sid. Smith, 473 ; Parker v. Dee, 3 Swanst 529, n. In an anonymous case, 1 Ves. sen. 325, the inrolment was opened, though strictly regular. Lord Hardwicke saying it was done too quickly, but the leading reason seems to have been a mistake in the procedure, Sid. Smith, Ch. Pr. 473, II. Mere dispatch is not a sufiScient ground of surprise, Hughes v. Gumer, 2 Y. & C. Exc. 335 ; Barnes v. Wilson, 1 Russ. & My. 486 ; Williams v. Page, 1 De G. 8j J. 561 ; 26 L. J. 813 ; 5 W. R. 854. Inrolment opened, defendant having attained his majority only six weeks before the decree, Kemp v. Squire, 1 Ves. sen. 205; and there being a suspicion of collusion, see Dick. 131. o2 196 Oedek XXm.— Decrees and DedeeS. [82] Inrolment vacated where the petition of appeal was 'pifesebted within the tweiityiBight da^s, but by accident not signed by the Lord Chancellor, nor the deposit made till aftferWards, Richards v. Wood, 2 M. & K. 621. After inrolment of decree for foreclosure, or order absolute of fbreclosiirej the tirtie may be again enlarged, Ford v. Wastell, 2 Pbill. 591 ; 11 Jar. 537 i 16 t. J. 372 ! on appeal, 17 L. J. 368. Inrolment cannot be vacated by a Vice- Chancellor, ibM. The inrolment of a decree of a Vice-Chancellor does not requite his signa- ture as well as that of the Lord Chancellor, M'Dermott v.Kealy, 1 Phil. 267. Where an order to inrol nunc pro tunc was necessary, but not served before inrolment completed, it was vacated. Woods v. Woods, 17 L. J., N. S. 426 ; 12 Jur. 662. Inrolment vacated on the ground of bad faith, Wickenden v. Sayson^ 25 L. J. 162. See observations on this case. Backhouse v. Wylde, 5 W. R. 245 ; 3 Jur., N. S. 398. As to the solicitor being precluded from inroUing by an intimation to him of an intention to appeal, compare this case and Williams v. Page, supra ; Lewis v. Hinton, supra ; Stephens v. Gappy, swpra ; Balguy v. Charley, supra. In Pearce v. Lindsay, 5 Jur., N. S. 661 ; 28 L. J. 513; 7 W. R. 474, where defendant served the order for setting down, but did not actually set down his appeal within twenty-eight days, inrolment by the plaintiff was vacated. Where plaintiff's solicitor in a letter to defendant's stated an intention to appeal and the latter theretipon hastened to inrol, the inrolment was vacated on the ground of surprise, Bnragbt v. Fitzgerald, 1 Dr. & War. 74. Decree opened on payment of costs, the moving party relying on irregularis but not having mentioned it in his notice of motion, Lambert v. Hill, 1 Dr. & War. 74. [83] Inrolment within Five Years.^^ Enlargement of Time for Inrolment. 28. iNo inrolment of any decree or order shall be allowed after the expiration of five years from the date thereof. (7th Aug. 1852, 2nd Set, Ord. 5.) But the Lord Chancellor or the Lords Justices shall be at liberty, on motion and notice to all parties, ■where it shall appear to hun or them under the peculiar circum- stances of the case to be just and expedient, to enlarge that period. (7th Aug. 1852, 2nd Set, Ord. 6.) It is not a sufficient reason for allowing a decree to be inrolled after five years, that it is at variance with a subsequent decision in another cause affect- ing the same estate, Wellesley v. Wellesley, 3 De G. & J. 164; 28 L. J. 1 ; 7 W. R. 24. Affirmed in House of Lords, nom. Beavan v. Momington, 8 W. R» 669. The Orders of August, 1852, incorporated in this rule, regulate a matter of procedure of the Court of Chancety, and are therefore not ultra tire* of that Court, lUd. Application seven years after decree adverse to an infant was made, and two .yfeai-s after he came of ag:e refused, as contrary to the understanding on whidi [83] Obder XXTTT. — Decrees and Orders. 197 he had been allowed his costs, Monypeny v. Bering, 7 W. R. 439 i 28 L. J. 503. See as to the time within which rehearings and appeals will be allowed, Ord. 31, r. 1. In Cookson v. Lee, 1 W. R. 509, leave to appeal after the five years was granted ex parte, subject to its being discharged on the application of the other side. By the first of the orders referred to in the present rule, '' No inrolment of any decree, order or dismission, shall be allowed, &c." By the second of the orders here referred to, " The Lord Chancellor either stitjng alo^e or with the Lords Justices, or either of them, shall be at liberty, where it shall appear to him under the peculiar circumstances of the case to be just and expedient, to enlarge the periods hereinbrfore appointed for a rehearing or an appeal, or for an inrolment." See notes to preceding rule, and Ord. 31, r. 1, and Ord. 37, i • 17. See as to the Court to which application is to be made under this rule, note to Ord. 23, r. 25. See note to Ord. 31, r. 1. Transmission of the Inrolment to the Public Record Office. 29. As soon as the docket of a decree or or^er is signed by the IJord Chancellor, for the purpose of inrolment, the solicitor for ths party seeking to inrol such decree or order, or the parly himself if acting ip. person, shall forthwith have the same engrossed iu the proper form, and carry the same to the Public Record OflS,ce, KoUs Yard. (3rd July, 1676.) Order XXIV. RECEIVERS. Security/ for Receivers — Salary. I. Where an order is made directing a Receiver to be appointed, unless otherwise ordered, the person to be appointed shall first give scciurity, to be allowed by the Judge to whose Court the cause is attached, and taken before a person authorized to admi- v.is\Bv oaths in Chancery, duly to account for what he shall receive on account of the rents and profits for the receipt of -which he is to be appointed, at such periods as such Judge shall appoint, and to account for and pay the esame as tjie Cpurt stall direct, or, as the case may be, to be answerable for what he slialj. receive in regpect of the person?! estate for the getjting in and collection of which he is to be appointed, wd to (iccount for and pay the same as the Court shall direct. And the per- 198 Okdek XXrV.— EECEnrBES. [83] Boa so to be appointed shall be allowed a proper salary for his care and pains in receiving such rents and profits, or, as the case may be, shall have an allowance made to him in respect of his collecting such personal estate. (16th Oct. 1852 ; Ord. 18.) Sect. 70 of the Statute 20 & 21 Vict c. 77, authorizes the Court of Probate to appoint administrators pendente lite. See first note to Ord. 7. By sect. 71, " It shall be lawful for the Court of Probate to appoint any admi- nistrator appointed as aforesaid, or any other person, to be receiver of the real estate of any deceased person pending any suit in the Coiirt, touching the vali- dity of any will of such deceased person, by which his real estate tnay be affected, and such receiver shall have such power to receive all rents and profits of such real estate, and such powers of letting and managing such real estate as the Court may direct." By sect. 72 of the same Act, " The Court of Probate may direct that admi- nistrators and receivers appointed pending suits, intolving matters and causes testamentary, shall receive out of the personal and real estate of the deceased, such reasonable remuneration as the Court think fit." By the interpretation clause. Prelim. Ord. r. 10, the word " receiver," includes consignee and manager. See note to article 7 of that rule for the practice respecting receivers. See Dan. Ch. Pr. 978 ; Sid. Smith, Ch. Pr. 607. A receiver will not be appointed without sureties unless the parties are stit juris and consent, Tylee v. Tylee, 17 Beav. 583. A receiver appointed on his own recognizances, Wilson v. WiUon, 1 1 Jur. 793 ; Lady Carlisle v. Zord Berkeley Amb. 599 ; Hihhert v. Hibiert, S Mer. 681, but such receiver must be nomi- nated by the parties and not upon reference to chambers, Manners v. Furxe, 11 Beav. 30. As to the answer being treated as an aflSdavit on a motion for a receiver, see 15 & 16 Vict. c. 86, s. 59, cited in first note to Ord. 15. A party interested may be appointed receiver without salary, Daniell's Ch. Pr. 998, n. ; Sid. Smith's Ch. Pr. 609. Appointment of receiver without salary, Baylies v. Baylies, 1 Coll. 537 ; HopHnson V. Love, Seton, 553. A receiver will not be discharged merely on the application of the party at whose instance he was appointed, Bainbrigge v. Blair, 3 Beav. 421. A joint or sole trustee cannot be receiver, v. Jolland, 8 Ves. 72. Order for a receiver made before appearance of defendant who had absconded, Dowling v. Hudson, 14 Beav. 423. Receiver appointed before appearance in a case of urgency on aSSdavit of service of notice of motion, Meaden v. Sealey, 6 Hare, 620. But in Caillard v. Caillard, 25 Beav. 512, motion for receiver ex parte and before appearance was refused. Where there is unusual difficulty or facility in collecting refits the receiver's allowance increased or diminished. Day v. Croft, 2 Beav. 488 ; Potts v. Leighion, IS Ves. 273. As to remuneration of receiver's extraordinary services, see fFells V. Wales, 4 De G., M. & G. 816. A receiver not entitled to charge for services for which there was no order. Re Ormsby, 1 Ba. & Bea. 189 ; Malcolm v. O'Cal- laghan, 3 M. & C. 62. A receiver reimbursed his expenses of successfully defending an action, though without the sanction of the Court, Bristouie v. Needham, 2 Phil. 190. [83] Order XXTV.— Eeceiters. 199 Usually the recognizance is required of the receiver with two sureties, Mecid V. Lord Orrery, 3 Atk. 235. Leave to pay part of the sum for which security was required, and to give security for the rest, Poole v. Wood, Seton, 553. Proceedings against the sureties are in the Petty Bag hy scire facias. Grant V. Stone, 1 Vem. 313. Recognizance ordered to be put in suit against the real and personal representatives and sureties of a receiver who died leaving an unascertained balance unpaid, Ludgater v. Channell, 3 Mac. & Gor. 175. FioBing Days for Receivers to have and pass their Accounts and Fay their Balances — Neglect of Receivers. 2. The Judge shall fix the days upon which Receivers shall (annually, or at longer or shorter periods, at his discretion) leave and pass their accounts,'and also the days upon which such Re- ceivers shall pay the balances appearing due on the accounts so left, or such part thereof as the Chief Clerk shall certify as proper to be paid by them. And with respect to such Receivers as shall neglect to leave and pass their accounts and pay the balances thereof at the times so to be fixed for that purpose as aforesaid, the Judge before whom such Receivers are to account shall from time to time, when their subsequent accounts are produced to be examined and passed, not only disallow the salaries therein claimed by such Receivers, but also charge them with interest after the rate of £5 per cent, per annum upon the balances so neglected to be paid by them during the time the same shall appear to have remained in the hands of such Receivers. (See Ord. of 23rd April, 1796, and 63rd Ord. of 3rd April, 1828. And see also 23rd Rule of Order XXXV. infra.) Formerly, if the receiver did not bring in his accounts the Master certified his default, whereupon an order nisi was made for his committal, which was of course, Scott v. Platel, 2 Ph. 229. A receiver, bringing in irregular accounts, ordered to bring them in in a stated form, Bertie v. Lord Abingdon, 8 Beav. 53. After bill dismissed receiver ordered to pass his accounts and pay the balance to defendant, Pitt v. Bonner, 5 Sim. 577. This Order differs from the Order of 23rd April, 1796, by sub- stituting the Judges or chief clerks for the Master, and by substituting the words " annually, or at longer or shorter periods, at his discretion, leave and pass their accounts," for the words "annually procure their accounts to be delivered unto the Masters." The Order of 1796, after the words at the end of the present rule, went on to direct the receivers to procure their accounts to be examined and settled within six months after delivery of them, and to direct the Masters to certify every case of default. The 63rd Order of April 3rd, 1828, authorized delivery of accounts at longer or shorter periods than a year. An objection, under the Order of 1796, to receiver's poundage and costs, will be disallowed if not raised on taking the accounts, Ward v. Sm/t, 8 Hare, 139. A receiver, not paying his balances, will be deprived of his salary and charged with interest on the sums retained, Potts v. Leighton, 15 Ves. 273. See v. Jolland, 8 Ves. 72 ; White v. Lady Lincoln, 8 Ves. 363. 200 Obdee XXIV.— Keceivbks. [84] A receiver ordered to pay interest who had been discharged, and, therefore, could not he charged with interest hy the Master, Harriion v. Boydell, 6 Sim. 211. A receiver will he charged with interest who keeps the money a qasttet of a year heyond the proper time, Fletcher v. Dodd, 1 Ves. 7. A receiver of infant's estate, neglecting to place it out at interest according to the decree, charged with interest at il. per cent, till the infant came of age though the accounts had been passed. Hicks v. Hicks, 3 Atk. 274. Where default was made by executors of a- receiver, interest charged at 4 per cent., Clements v. Beresford, 10 Jur. 771. Summons to proceed upon Account — Entry of Account — Affidavit verifying the same. 3. Upon a Receiver's account being left in the Judge's cham- bers to be passed, a summons to proceed thereon shall be taken out ; and the account, when passed, shall be entered by the soli- citor of the Receiver in books, in the same manner as heretofore ; and the affidavit verifying the account so passed shall refer to it as an exhibit, and not be annexed to it. (16th Oct. 1852 ; Ord. 31.) Formerly the Court would consider objections to the general principle on which a receiver's account was taken before the Master, but not objections to particular items, Sheviell v. Jones, 2 S. & S. 170. Special directions as to passing receiver's account, Bertie v. Lord Abingdon, cited in note to preceding rule. Deposit of Account, 4. When a receivership has been completed, the book containing the accounts shall be deposited in the Office of the Clerks of Records and Writs. (16th Oct. 1852 ; Ord. 32.) Order XXV. [85] INJUNCTIONS. Injunction to stay Proceedings at Law. No injunction for stay of proceedings at law shall be granted as of course for default of appearance or of answer to the bilL (7th Aug. 1852, 1st Set, Ord. 45.) By 15 & 16 Vict. c. 86, s. 58, the practice of the Court of Chancery, with respect to injunctions for the stay of proceedings at law, shall, so &r as the [85] Order XXV.— iNJOTrcTiONS. 201 nature of the case will admit, be assimilated to the practice of such Court with respect to special injunctions geserally, and such injunctions may be granted upon interlocutory applications supported by affidavit in like manner as other Sipecial injunctions are granted by the said Court. The Court will be very cautious in granting special injunctions to stay pro., ceedings at law under this section without notice, Larmouth v. Simmons, Vice- Chancellor Stuart, Seton, 45S. As to injunction to stay proceedings before defendant's appeariince to discovery bill, see Fitzgerald v. Bull, 9 Hare, App. 65. Motion to stay trial of an action until answer to a bill of discovery re- fused on the ground of delay and nearness of the trial, Lloyd v. Adams, 4 K. & J. 467. Under this section the plaintiff is to have the injunction not as of course, but only on affidavit of merits, Senior v. Pritchard, 16 Beav. 473 ; Magnay v. Mines Royal Company, 3 Drew. 130; 24 L. J. 413 ; Lovell v. Galloway, 17 Beav. 1. Where defendant by affidavit displaced the defence at law injunc- tion refused, Chilton v. Campbell, 20 Beav. 531. On application for leave to serve defendant's attorney at law with the bill affidavit of merits dispensed with, Sergison v. Beavan, 9 Hare, App. 29, note ; 16 Jur. nil; 22 L. J. 287. Injunction to restrain action against executors to recover a debt of their testator refiised unless the executors admit assets or make affidavit as to the money in their hands, Lawton v. Lawrence, 8 W. R. 458. Judgment creditor who, before decree in administration suit, obtained a garnishee order agednst a debtor to the estate, not restrained &om proceeding thereon, Fowler v. Roberts, 8 W. R. 492. As to treating an answer as an affidavit on a motion for an injunction, see 15 & 16 Vict c. 86, s. 59, cited in first note to Ord. 15. Injunction refused before interrogatories filed, Lovell v. Galloway, 1 W. R. 118. As to motion for injunction before interrogatories, see Chilton v. Camp~ bell, supra. As to motion for injunction before appearance, see Fitzgerald v. Bult, 9 Hare, App. 65. Costs of an unsuccessfully opposed injunction to a. bill of discovery payable by defendant, though he gets the general costs of the suit, Lovell V. Galloway, 19 Beav. 643j 3 W. R. 156. Where plaintiff had replied at law to equitable pleas injunction refused, Farebrother v. Welchman, 3 Drew. 122 ; 24 L. J. 410. Plaintiffs having sued their agent in a foreign Court for an account, he may be restrained by injunction from recovering in England monies belonging to plaintiffe. Transatlantic Company v. Pietroni, 1 John. 604. Semble, a prima facie case shown by affidavit will be sufficient to induce the Court to stay an action till answer ; contest by affidavits on motion for such in- junction not permitted, Harris v. Collett, 26 Beav. 222. Injunction to stay action of ejectment until answer, the bill alleging long- continued possession, Gark v. Robinson, 3 Jur., N. S. 633. The objection that the plaintiff is not entitled to discovery of his opponent's title is to be deter- mined on excepdous, not on the motion for injunction, Lovell v. Galloway, 17 Beav. 1, and see last case. Injunction to stay action will be dissolved, after full discovery has been given where the cause involves merely a legal question, Mollett v. Enequist, 26 Beav. 466; 28L. J. 507. 202 Okdek XXVI.— Stop OedEIiS. t^^] In Fox V. Hill, 2 De G. & J. 353 (on appeal), injunction ottaintd before answer to restrain an action on a promissory note, alleged to have been givett for a wagering debt, was after answer dissolved. To entitle plaintiff to injunction to stay an action, he himself must depose to the facts within his own knowledge, and that he believes the other statements on which he relies to be true, Molleit v. Enequist; 25 Beav. 609 j 4 Jur., N. S. 1009 i 27 L. J. 815. Order XXVL STOP ORDERS. Costs occasioned thereby. i. Wtere any stocks, funds, shares, seCuritieSj or monies are standing in the name of the Accountant-General in trust in or to the general credit of any cause or matter, or to the account of any class of persons, and ,an order is made to prevent the transfer or payment of such stocks, funds, shares, securities, or monies, or any part thereof without notice to the assignee of any person entitled in expectancy or otherwise to any share or portion of such stocks, fiinds, shares, securities, or monies, the person by whom any such order shall be obtaiaed, or the shares of such stocks, funds, shares, securities, or monies affected by such order, shall be liable, at the discretion of the Court or the Judge at Chambers, as the case may be, to pay any costs, charges, and expenses, which, by reason of any such order having been obtained, shall be occasioned to any party to the cause or matter, or any person interested in any such stocks, funds, shares, sectirities, or monies. (3rd April, 1841.) The stop order does not affect any right, and therefore need not be made " without prejudice," Lucas v. Peacock, 9 Beav. 17t. The stop order is pre- faced with a submission of the assignee to be bound by the order here incor- porated, 2 Beav. App. 11, n. Where husband and wife assigned her rever- sionary chose in action, the order extended only to his life, Moreau v. Polby, 1 De G. & S. 143. Order refused where the incumbrance not proved nor admitted, although the assignor was willing to consent to the order without prejudice, Winchelsea v. Garrety, 1 Beav. 223. The assignor's interest in the fund must be shown, Lambert v. Hutchinson, 13 L. J., N. S. 336 ; Quarmanv. Williams, 5 Beav. 133 ; and the assignment must be proved, but the particular share of the assignor need not be shown, Wood v. Vincent, 4 Beav. 419. Order restraining transfer (without notice to the assignee) of a fund to which the assignor was entitled contingently on the death of » lunatic intestate, un- less on application of the committee, fle Moore, 1 Mac. & G. 103. Similar order restraining transfer of any part of the funds in lunacy to the assignor or those claiming under her, Re Pigott, 3 M. & G. 268 ; see Symonds v. James, [85] Order XXVI.— Stop Orders. 203 infra. Order granted on the application of tbe assignee of lunatic's next of kin, Ex parte Kent, 1 Ha. & Tw. 214. Order granted to protect a solicitor's lien on a fund in Court, Hobson v. Sherwood, 8 Beav. 486. Solicitor's lien not affected by a stop order, Lucas v. Peacock, supra. Fund retained on claimants upon it under a judgment creditor undertaking to file a bill in ten days, Feistel v. King's College, il Beav. 254. Where after stop order the fund fell into possession, payment ordered where the assignoi disputed the assignment, bnt would not undertake to file a bill to set it aside, Bethnne V. Kennedy, 3 Beav. 462. A sum payable under a decree will not be ordered into Court on the petition of a judgment creditor having a Charging order on it at law, Newton v. Jsltew, 11 Beav. 446 ; 12 Jur. 76?. Agents having a lien on a fund voluntarily paid it into Court. A subsequent incumbrancer by obtainin^a stop order obtained priority over them, Swayne v. Swayne, 11 Beav. 463. Mortgagee's costs of a Stop order {)ayable out of the fund where the moM* gage deed authorizes him to apply to the Court ; but they should be specially noticed in the order for taxation, IVaddilove v. Taylor, 6 Hare, 307 j 17 L. J.) N. S.408. On petition of the assignor and assignee, fdr order to restrain payment to the assignor, or any person claiming under him, the words " or any person claiming under him " held unusual and unnecessary, Symonds v. James, 7 Jur. lli Stop order refused to an administrator, the letters of administration being insufficiently stamped. Christian v. Devereux, 12 Sim. 264. By 1 &2 Vict. v. 110, s. 14, " If any person against whom any judgment shall have been entered up in any of her Majesty's superior Courts at West- minster, shall have any government stock, funds or annuities, or any stock or shares of or in any public company in England (whether incorporated or not), standing in his name in his own right, or in the name of any person in trust for him, it shall be lawful for a Judge of one of the superior Courts, on the appli' cation of any judgment creditor, to order that such stock, funds, annuities or shares, or such of them, or such part thereof, respectively as he shall think fit, shall stand charged with the payment of the amount for which judgment shall have been so recovered and interest thereon, and such order shall entitle the judgment creditor to all such remedies as he would have been entitled to if such charge had been made in his favour by the judgment debtor, provided that no proceedings shall be taken to have the benefit of such charge until after the expiration of six calendar months from the date of such order." By sect. 15, " Every orderof a Judge charging any government stock, funds or annuities, or any stock or shares in any public company under this Act, shall be made in the first instance ex parte, and with>)ut any notice to the judgment debtor, an(^ shall be an order to show cause only, and such order, if any govern- ment stock, funds or annuities, standing in the name of tbe judgment debtor in his own right, or in the name of any person in trust for him, is to be affected by such order, shall restrain the Governor and Company of the Bank of Eng- land from permitting a transfer of such stock in the meantime, and until such order shall be made absolute or discharged ; and if any stock or shares of or in any public company, standing in the name of the judgment debtor in his own 204 Oeder XXVI.— Stop Okdeks. [85] right, or in the name of any person in trust for hinii is or are to be affected hy any suph order, shall in like manner restrain such public company from per- mitting a transfer thereof." By the same section persons and corporations disf obeying such order are rendered liable to the judgment creditor, no disposition by the judgment debtor in the meantime is valid against the judgment creditor, and the order may after notice be made absolute, or may be varied or discharged. By 3 & 4 Vict. c. 82, the sections above cited are extended to funds in the Accouqtant^General's name. Courts of Equity have not jurisdiction under 1 & 2 Vict, c. 110, and 3 & 4 Vict. c. 82, to make charging orders upon judgments at law, Miles v. Preskmd, 2 Beav. 300 ; 4M. & Cr. 431 ; Huikes V. Day, 10 Sim. 41 ; but a fund may be charged by a Court of Equity, with payment of costs, payable wnder a decree, Stanley v. Bond, 7 Beav. 386. Such order M(S8,made absolute after one month, Westby-v. JVestby, 5 De G. & S. 516, auxiliary to the charging orders of Com-; mon Law Judges, Huikes v. Day, supra. See also as to the jurisdiction of Equity under the last-mentioned statutes, Lister v. Lister, 14 Jur, 300; Hemiag v. Sunnnerton, 2 Ph. 79. Delivery of Accountant-General's cheque stayed at the instance of a judgr ment creditor, Robinson v. Wood, 5 Beav. 388 ; 1 2 L. J. 93. Leave to seize Accountant-General's cheque not delivered out refused, but order granted, Restraining the debtor from receiving it, Courloy v. Vincent, IS Beav. 486 ; 21 L. J. 291. Suit lies by the creditor for the interim protection of his security within the statutory six months after date of the charging ordar, Bristed v. Wilkins, 3 Hare, 235 ; see Watts v. Jefferyes, ii^ra,. Payment will not be ordered on petition to a creditor having a charging order without the consent of the debtor, Whitfield V. Prickett, 13 Sim. 260. Orders for immediate protection of the interest in a fund in a cause acquired by a Judge's order made upon a claim filed by the judgment creditor ; who was required to present a formal petition in the cause, Reece v. Taylor, 5 De 6. & Sm. 480. Priority over an incumbrancer who has given due notice of his security will not be gained by a later creditor obtaining a stop order or charging order, Brearcliff y. licrrington, 4 De G. & Sma. 122; Livesey v. Marding, 23 Beav. 141. Notice to the Accountant-General of an assignment of funds in his hands does not avail against a stop order obtained by a subsequent purchaser without notice, Warburtm v. Hill, Kay, 470. Where after notice of assignment of a re- version in a fund it is paid into Court under the Trustee Relief Act, the assignee should obtain a stop order. Re Miller's Trttst, 6 W. R. 238. Applications for stop orders are obtained by summons at chambers if the assignor concurs, otherwise by petition, Edmonson v. Harrison, 1 W. R. 140. Before the expiration of six months from the date of a Judge's order, charging stock standing in the name of the Accountant-General, a stop order on the divi- dends may be obtained. Watts v. Jefferyes, 3 M. & G. 372 ; IS Jur. 788. Circumstances in which a person obtaining a stop order is entitled to the costs of it, Grimsby v. Webster, 8 W. R. 725. [85] OitDER XXVl.— Stop Orders. 203 Service of Petition or Summons for Stop Order. 2. Any pra-son presenting a petition or taking out a summons for any such order as aforesaid, shall not be required to serve such petition or summons upon the parties to the cause, or upon the persons interested iu such parts of the stocks, funds, shares, secu- rities, or monies^ as are not sought to be afiectfed by any such order. (3rd April, 1841.) For the principles upon which it was thoi^ht necessary, prior to this order, to serve all parties interested with notice of the application for a stop order. Day V. Crqft, 4 Beav. 34. Since this Order the assignor^ though a party to the cause, must be served with a petition presented by the assignee alone. Parsons v. Groome, 4 Beav. 521. If the other parties to the cause are served, the petitioner is liable for their costs, Glazbrook v. Gillatt, 9 Beav. 611. [86] Order XXVII. DISTRINGAS. Form of Writ. 1. Any person claiming to be interested in any stock transfer- able at the Bank, standing in the name of any other person or body politic or corporate, in the books of the Governor and Com- pany of the Bank, may, by his solicitor, prepare a writ of distrin- gas pursuant to the Stet. 5 Vict. c. 5, in the form set out in the first Schedule to the said Act, and may present the same for sealing at the Office of the Clerks of Records and Writs. (I7th !lSrov. 1841 ; Ord. 1.) By 5 Vict. c. 5, s. 4, " It shall be lawful for the said Court of Chancery, upon the application of any party interested, by motion or petition, in a summary way, without bill filed, to restrain the Governor and Company of the Bank of England, or any other public company, whether incorporated or not, from per- mitting the transfer of any stock in the public funds, or any stock or shares in any public company which may be standing in the name or names of any per- son or persons, or bodies politic or corporate, in the books of the Governor and Company of the Bank of England, or in the book^ of ally such public com- pany, or from paying any dividend or dividends due or to become due thereon ; and every order of the said Court of Chancery, upon such motion or petition as aforesaid, shall specify the amSunt of the stock or the particular shares to be affected thereby, and the name or names of the pel^on or persons, body politic or corporate, in which the same shall be Standing ; provided always, that the said Court of Chancery shall have full power, upon the application of any party 206 Obdek XXVn.-^DisTEiNGAS. [86] interested, to discharge or vary such order, and to award such costs upon such application, as to the said Court shall seem fit." Sect. 5 enacts, " That in the place and stead of the writ of distringas, as the same has been heretofore issued from the said Court of Exchequer, a writ of dis- tringcH in the form set out in the first schedule to this Act, shall on aijd after the 15th day of October, 1841, be issuable from the Court of Chancery, and shall be sealed at the Subpoena Ofiice, and that the force and effect of si(ch writ, and the practice under or relating to the same, shall be such as^is now in force in the said Court of Exchequer : provided, nevertheless, that such writ, and the prac- tice under or relating to the same, and the fees and allowances in respect thereof, shall be subject to such orders and regulations as may, under the provisions of this Act, or of any other Act now in force, or under the general authority of the Court of Chancery, be made with reference to the proceed- ings and practice of the said Court of Chancery." An order may be obtained under the statute before bill filed, but as the fourth section is only intended for interim purposes, a bill should be filed in due time, Re Marquis of Hertford, 1 Hare, 584. The order under the fourth section continues in forpe until discharged, notwithstanding bill filed for the same purpose, S. C, 1 Ph. 203. Order under the fourth section may be had in addition to distringas under the fifth section, ihid. 129 ; Re Davies, Seton on Decrees, 482. The writ of distringas, under the former practice in the Court of Exchequer, secured the property for a limited time, within which an injunction must be obtained, or the distringas would be withdrawn. Ex parte Amyot, reported in note to last case, 1 Ph. 130. Restraining order under the fourth section not granted unless special grounds shown by affidavit, but a distringas under sect. 5 may issue without an order of the Court, Ex parte Field, 1 Y. & C. C. C. 1. By 39 & 40 Geo. III. c. 36, The Court is empowered to restrain the Bank of England and the East India and South Sea Companies, by injunction, from transferring stock, or suffering payment of dividends, although the Companies are not parties to the suit. For cases under this Act and 61 Geo. HI. c. 64, see Seton on Decrees, 481. Sealing of Writ — Effect thereof. 2. Upon the presentment of such vrrit for sealing, and on leaving- ' with the Clerks of Becords ajid Writs an affidavit, duly sworn by the person or one of the persons applying for such writ or his solicitor before some person authorized to administer oaths in Chancery, in the form set out at the end of this Kule, the same writ shall (in conformity with the 37th Rule of Order I.), be forthwith sealed with the seal of the Office of the Clerks of Re- cords and Writs, and such writ, when sealed, shall have the same force and validity as the writ of distringas formerly issued out of the Court of Exchequer. (17th Nov. 1841; Ord. 2. 10th Dec. 1841.) [86] Okdfk XXVn.— Distringas. 207 Form of Affidavit. A. B. [the name of the person or persons in whose behalf the writ is sued out} v. The Governor and Company of the Bank of England, , of , do solemnly swear, that, according to the best of my knowledge, information, and belief, I am [or, if'the qffidavit is made by the solicitor, A. B., of — — , is] beneficially interested in the stock hereinafter particularly described, that is to say [here specify the amount of the stock to be affected by the writ, and the name or names of the person or persons, or body politic or cor- porate, in whose name or names the same shall be standing.'} [87] Discharge of Writ— Costs. 3. Such writ of distringas, and all process thereunder, may at any time be discharged by an order, to be obtained as of course upon the petition of the person on whose behalf the writ was issued, or to be obtained upon thp application, by motion on notice or by petition duly served, of any other person claiming to be inte- rested in the stock sought to be affected by such writ. And upon of after such application, such costs thereof and in relation thereto and to the said writ as to the Qourt shall seem just, may, if the Court shall think fit, be awarded, and ordered to be paid by the person on whose behalf the writ was issued, or, upon an appli- cation by any other person, by such person. (17th Nov. 1841 ; Ord, 3.) Effect of request to Bank to allow Tt-ansfer or pay Dividends. 4. Where the Goverpor and Company of the Bank, after having been served with such writ of distringas, and a notice not to permit the transfer of the stock in such notice and in the said affidavit specified or not to pay the dividends thereon, receive a request, ft-om the person in whose name such stock is standing or some person on his behalf or representing him, to allow such transfer, or to pay such dividends, the said Governor and Com- pany shall not, by force or in consequence of such distringas, be authorized, without the order of the Court, to refuse to permit such transfer to be made or to withhold payment of such dividends for more than eight days after the date of such request. (17th Nov. 1841; Ord. 4.) As to the effect of a distringas in giving priority by notice, see Etty v. Bridges, 2 Y. & C. C. C. 486.. 208 OllDEK XXVm.— SuBPtENAS. [87] Order XXVIII. SUBPOENAS. PrsBcipe. 1. Where it is intended to sue out a subpeena, stpnscipe for that purpose, in the usual form, and containing the name or firm and the place of business or residence of the solicitor or solicitors intending to sue out the same, and where such solicitor or soli- citors is or are agent or agents only, then also the name or firm and place of business or residence of the principal solicitor or solicitors, shall in all cases be delivered and filed at the Office of the Clerks of Records and Writs. And on a suhpmna for costs being sealed, the Taxing Master's certificate shall be produced to the officer sealing the writ as his authority tor sealing it. (21st Dec. 1833 ; Ord. 2 and 3.) See, as to the practice relating to writs of subpeena, Ord. 1, i. 37. » Attachment discharged with costs, indorsement of subpeena on which it issued being defective, Barnes v. Tweddell, C. P. Coop. 440. • Service of subpeena to appear and answer without endorsement may be set aside on speedy application, Johnson v. Barnes, 1 De G. & S. 129. Omission of the address for service prescribed by Ord. 3, r. S, does not make the writ void, but the Court will stay process till the rule is complied with. Price V. Webb, 2 Ha);e, 511. On cause toming on on motion for decree, sub- poena duces tecum issues as of course, Wilhelm v. Reynolds, 8 W. R. 626 ; IVigan V. Rowland, 10 Hare, App. 18 ; see note to Ord. 19, r. 13. Form of Subpoena. [88] 2. Writs of subpeena shall be in the forms mentioned in Sche- dule (E.), with such alterations and variations as circumstances may require. (8th May, 1845 ; Ord. 24.) The subpoena will be set aside if there be aay inregularit^ in the leste. Lard Htmtingtower v. Sherborne, 5 Beav. 162. dumber of Persons in a Subpoena. 3. Every subpoena, other than a subpeena duces tecum, shall contain three names, where necessary or required. (21st Dee. 1833 ; Ord. 5.) 4. No more than three persons shall be included in one subpoena duces tecum ; and the party suing out the same shall be at liberty to sue out a subpoena for each person, if it shall be deemed neces- sary or desirable. (2l8t Dec. 1833 ; Ord. 6.) As to the decree of particularity with which documents must be described in a subpoena duces tecum, see Attorney-General v. Wilson, 9 Sim. 526. [88] Order XXVIII.— Subpcenas. 209 Correcting and resealing Subpoena. 5. In the interval between the suing out and service of any subpoena, the party suing out the same may correct any error in the names of parties or witnesses, and may have the writ re- sealed upon leaving a corrected prtBcipe of such subpoena, marked with the words " altered and resealed," and signed with the name and address of the solicitor or solicitors suing out the same. (8th May, 1845; Ord. 25.) Mode of Service. 6. The service of siS>pcenas shall be effected by delivering a copy of the writ and of the indorsement thereon, and at the same time producing the original writ. (21st Dec. 1833 ; Ord. 4.) See as to service of bills, &c., Ord. 3 ; Ord. 7, rr. 3, 5 ; Ord. 9, rr. 21, 22 ; Ord. 10. Service on Sunday bad, Mackreth v. Nicholson, 19 Ves. 368. Substituted service of subpoena to name new attorney, Gibson v. Ingo, 2 Ph. 402 ; of subpoena for costs, Uanford v. Cameron, 8 Hare, 329 ; of decrees and orders, Sikegg v. Simpson, 2 De G. & Sra. 454. See cases collected in the note ibid, of orders ex parte for substituted service of order nisi for sequestration — of writ of execution — of subpoena for costs — of subpoena to name a clerk in Court — of subpoena to appear and answer. Order for service of subpoena for costs at defendant's last place of residence, and on his solicitor, Inglis v. Campbell, 2 W. R. 6(j7. Service of Subpoena to hear Judgment. 7. Service upon a defendant's solicitor of a subpoena to hear judgment shall be deemed good service upon such defendant. (8th May, 1845 ; Ord. 26.) For the practice respecting subpoenas to hear judgment, see Ord. 21, r. 1, et seq., and notes to Ord. 23, r. 12, and next rule. Subpoena to hear judgment served on guardian for infant, Taylor v. Aittuood, 2 Ph. 643. Affidavits to prove Service of Subpoena. 8. AflSdavits filed for the purpose of proving the service of a subpoena upon any defendant must state when, where and how such subpoena was served, and by whom such seryice was effected. (8th May, 1845 ; Ord. 34.) Affidavit of personal service of an order for payment under the Winding-up Acts need not state where the service was effected, Re Job, 27 Beav. 32. The affidavit is sufficient if it state that the persons served are defendant's solicitors and they appear so to be by the record ; insufficiency in the affidavit of service C. P 210 Oedek XXIX. — Process to enfokcb [88] cannot be cured by a new affidavit after the bearing, Marsden v. Blundell, 20 L. J. 104. As to affidavit of service of subpoena to hear judgment, see notes to Ord. 23, rr. 12 & 18. As to affidavit of service of subpcena to appear, or copy of a bill, Ord. 10, r. 8 ; of affidavit of service of subpoena on motion to enter an appearance for defendant, Lloyd v. Waring, 7 Jur. 1125. Time for Service of Subpoena. 9. The service of any subpoena, except a subpcena for costs, sLall be of no validity if. not made -within twelve weeks after the teste of the writ. (8th May, 1845 ; Ord. 16, Art. 1.) As to subpoena for costs, see Ord. 40, i. 38. [89] Practice as to Bills filed on or before 1st Nov. 1852. 10. The practice of the Court existing on the 1st day of Nov. 1852, with reference to issuing and serving writs of subpoena to appear to and answer bills, shall continue in force with respect to bills filed on or before that day. (7th Aug. 1852, 1st Set, Ord. 13.) See Ord. 9, r. 23. Order XXIX. PROCESS TO ENFORCE DECREES AND ORDERS. Necessity, without demand, of performing Decree or Order to pay Money or transfer or deliver up Property. *1. Where any person is by any decree or order directed to pay any money or deliver up or transfer any property real or personal to another, it shall not be necessary to make any demand thereof ; but the person so directed shall be bound to obey such decree or order, upon being duly served with the same, without demand ; and process of contempt may issue accordingly to enforce per- formance thereof. (30th March, 1859 ; Ord. 17.) As to the enforcing decrees and orders, see Dan. Ch. Pr. 806 j Sid. Smith's Ch. Pr. 155; Setonon Decrees, 620. Order for payment of money by officer stationed abroad in Her Majesty's service directed to be served on his solicitor, Griffiths v. Cowper, 8 W. R. 539 ■ see Ord. 23, r. 10. As to the necessity"formerly of making demand, see Wilkitts v. Stevetu 19 Ves. 117 ; Re Itaac, 3 My. & Cr. 319; Se Bradley, Sid. Smith, 160, n.;' Re Mourilyan, 13 Beav. 84. See Ord. 28, r. 10, as to necessity of personal service. [89] Decrees and Orders. 211 On motion to commit for breach of injunction, the writ of injunction need not be produced, Gooch v Marshall, 8 W. R. 410 ; and see Wilton v. Longdm,in note to that case. Process for or against Persons not Parties to Cause. 2. Every person, not being a party in any cause, who oTjtains an order, or in whose favour an order is made, shall be entitled to enforce obedience to such order by the same process as if he were a party to the cause. And every person, not being a party in any cause, against whom obedience to any order may be enforced, shall be liable to the same process for enforcing obedience to such order as if he were a party to the cause. (26th Aug. 1841 ; Ord. IS.) Under this rule, a person not a party to a cause may enforce obedience to an order that his solicitor shall deliver his bill of costs by attachment instead of the four-day order, Lane v. Oliver, 2 Hare, 97. See Ord. 23, r. 10. Under this and the following rules an attachment may issue against a receiver in default of payment, Seton on Decrees, 547 ; and against a purchaser after title found good, ibid. 616 ; and it seems against a witness to compel his attendance, ibid. 640 ; Sid. Smith, Ch. Pr. 424, n. ; and against a tenant to com- pel him to attorn to a receiver, Sid. Smith, Ch. Pr. 612. See as to the mode of compelling payment of costs and money by and against persons not parties, C. P. Coop. 266. I. Attachment, Sekjeant-at-Arms, and Sequestration. Mode of enforcing Decrees and Orders — Attachment — Se- questra tion — Serjean t-at-A rms. 3. Where any person is by a decree or order made in any suit or matter directed to pay money or to do any other act in a limited time, and, after due service of such decree or order, refuses or neglects to obey the same according to the exigency thereof, the person prosecuting such decree or order shall, at the expiration of the time limited for the performance thereof, be entitled to a writ or writs of attachment against the disobedient person. And in case such person shall be taken or detained in custody under any such writ of attachment without obeying the same decree or order, then the person prosecuting the same decree or order shall, upon the Sheriff's return that the disobedient person has been so taken or detained, be entitled to a commission of sequestration against his estate and effects. And in case the Sheriff shall make the return non est inventus to such writ or writs of attachment, the person prosecuting such decree or order shall be entitled at his option either to a commission of sequestration in the first instance, or otherwise to an order for the Seijeant-at-Arms, and to such other process as he was formerly entitled to upon a return non est inventtts made by the Commissioners named in a commission of rebellion issued for the non-performance of a decree or order. (Ord. of 18th July, 1857, amending 1 1 th Ord. of 1 1th April, 1842.) p2 212 Order XXIX.— Peocess to enforce [89] This rule diflFers from the Order of the 11th April, 1842, by substituting the word "person" for the word "party" throughout, and by substituting the words " is by a decree or order made in any suit or matter directed " for the words "is by an order or decree ordered." The Order of 11th April, 1842, amended the 11th Ord. of 26th August, 1841. See as to the endorsement of decrees and orders requiring acts to be done, Ord. 23, r. 10. The successive processes in execution of a decree were formerly attachment, attachment with proclamations, commission of rebellion, serjeant-at-arms and sequestration. See note to Ord. 30, r. 5. The length of this process led to a practice of moving to commit the defendant to the Fleet on affidavit of bis refusal to obey the decree, and on return of non est inventus by the warden of the Fleet, the Court ordered sequestration, but that was complained of by the serjeant-at- arms, as depriving him of great part of the fees and profits belonging to his office, and thereupon an order was made, 13th of May, 1721, that there should be no sequestration but on return of non est inventus by serjeant-at-arms; Beames's Orders, 322. On return of non est inventus to attachment issued by mistake into a wrong county, sequestration issued against defendant abroad without another attach- ment, Hodgson V. Hodgson, 23 Beav. 604. Where the decree omits to fix a time the Court will, on motion, supply the defect, Needham v. Needham, 1 Hare, 633. See Ord. 23, r. 10. The Order of 11th April, 1842, did not apply to default in production of documents in the Master's office, Hobson v. Sherwood, 6 Beav. 63. The Order of 26th Aug. 1841, above referred to, applied only to orders and decrees made in a cause or in a cause and matter, but not in a matter only. Re Blake, 9 Beav. 210 ; Re Lovell, 9 Beav. 332 ; JRe Taylor, 10 Beav. 221, except under the Winding-up Act. Sid. Smith's Ch. Fr. 115. See note to Re Mutter, 19 Beav. 33. Notwithstanding the Orders of 1841, a party may compel payment of money or costs by writ of fi. fa. or elegit, Streeten v. Whitmore, 5 Beav. 228. See Ord. 29, r. 6. As to the practice respecting attachment for costs, see the Record and Writ Clerks' certificate referred to in Andreuies v. Walton, 1 Mac. & G. 380. As to the nature and effect of sequestration, see Seton on Decrees, 621. As to the order for the serjeant-at-arms, see Ord. 30, i. 2 ; Daniell's Ch. Pr. 812, 1027 ; Sid. Smith's Ch. Pr. 121 ; and for form of order, Seton on Decrees, 630, 638. Where the sequestration has proved ineffectual the attachment cannot be revived without motion on notice, Knott v, Coitee, 1 9 Beav. 470. See also as to sequestrations and attachments, Empringham v. Short, 3 Hare, 461 ! Hawkins v. Gathercole, 1 Drew. 12 ; Hipkins v. Hipkins, 26 L. J. 512 ; and the cases collected in note to Francklyn v, Colhoun, 3 SwansL 276. Writs of attachment, with proclamations and writs of rebellion, are abolished Ord. 30, r. 5. As to application of money received by sequestrators, see Westhy v. Westby, cited in note to Ord. 29, r. 6. See as to enforcing orders and decrees against corporations, Lowten v. Col- chester, 3 Mer. 544 ; and Hervey v. East India Company, there cited. [90] Decrees and Orders. 213 Terms on which Party committed or brottght up by the Serjeant- at-Arms may be released, 4. When a person is committed or brought up by the Serjeant- at-Arms for breach of a decree or order, he shall not be released until he has performed the decree or order in aU. things that are to be immediately performed, and given such security as the Court shall direct to perform the other parts of the decree or order (if any) at the ftiture days and times thereby appointed. (22nd May, 1661; Sanders, 308.) Under 48 Geo. III. c. 123, and 1 & 2 Vict c. HO, s. 18, a Judge of the Court of Chancery may order the discharge of a prisoner who has lain in prison for a year for contempt of an order of the Court of Chancery in not paying costs, amounting to less' than 20<. See Lister v. Lister, 14 Jur. 300. Discharge under the Insolvent Debtors' Act does not get rid of a sequestra- tion issued for disobedience to an order to pay money, Tatham v. Parker, 1 S. & G. 506. See as to discharge of prisoners in contempt, 1 Will. IV. c, 36, ss. 16 & 17, and 2 Will. IV. c. 58, cited in notes to Ord. 12. n. Writ op Assistance. Right to Writ of Assistance. 5. Upon due service of a decree or order for delivery of pos- session, the person prosecuting the same shall be entitled to an order for a writ of assistance. (26th Aug. 1841 ; Ord. 13.) By 1 Will. IV. t. 36, s. 15, r. 19, it is enacted, " That where any party ob- stinately retains possession of lands or other real property after a writ of execu- tion of a decree or an order for delivery of possession has been duly served and demand of possession made, and upon an affidavit of such service of the writ of execution, and of such demand made thereunder, and a refusal to comply there- with on the part of the person against whom the writ issued, the party issuing it shall he at liberty, upon an affidavit of service of the writ of execution, and a demand of possession and refusal, to obtain the usual order of course for the writ of assistance to issue, and that the intermediate writs of attachment and in- junction fiirther commanding the party to deliver possession, or any other writ, shall be unnecessary." A party is entitled to the writ of assistance, notwithstanding the decree is drawn up in the form prescribed by the 12th Ord. of August, 1841 (of which Ord. 23, r. 10, is an amendment), Bower v. Cooper, 2 Hare, 412. The writ will be granted to put a receiver into possession, Sharp v. Carter, 3 p. W. 379, n. ; or sequestrators, Bird v. LittUhalea, 3 Swanst. 299, n. Where delivery of possession within seven days ordered, it is sufficient for the purpose of obtaining a writ of assistance to prove refusal within that time ; refusal during the whole period need not be shown, Webster v. Taylor, 18 Jur. 869. 214 Ordeb XXIX.— Peocess to enforce [90] When the assistance of the sheriff to obtain possession for a pnrohaser is re- quired, it may be proper to move that the vendor may procure possession to be delivered to the purchaser within a given time, Sid. Smith, Ch. Pr. 599. TTT . Fieri Facias, Elegit, and Venditioni Exponas. Writ o/Fi. Fa. or Elegit on Order for Payment of Money or Costs. 6. Every person to whom, in any cause or matter pending ia this Court, any sum of money or any costs shall have been directed to be paid, shall, after the lapse of one month from the time when the decree or order for payment was duly passed and entered, be entitled to sue out one or more writ or writs of fieri facias or writ or writs of elegit of the form set forth in Schedules (F) and (G), or as near thereto as the circumstances of the case may re- quu-e. (10th May, 1839; Ord. 1.) In equity, till the Orders of 10th May, 1 839, the process for enforcing obedience to decrees and orders of the Court was in all cases founded on contempt. The writs provided by those orders are devised in pursuance of 1 & 2 Vict. c. 110. These writs do not supersede the ordinary remedies of the Court, and are appli- cable only where money or costs are decreed to be paid, Daniell's Ch. Pr. 806-9. By 1 & 2 Vict c. 1 10, a. 1 8, " All decrees and orders of Courts of Equity, and all rules of Courts of Common Law,and all orders of the Lord Chancellor or of the Court of Review in matters of bankruptcy, and all orders of the Lord Chancellor in matters of lunacy, whereby any sum of money, or any costs, charges or ex- penses shall be payable to any person, shall have the effect of judgments in the Superior Courts of Common Law, and the persons to whom any such moneys or costs, charges or expenses shall be payable, shall be deemed judgment creditors within the meaning of this Act ; and all powers hereby given to -the Judges of the Superior Coiu:ts of Common Law, with respect to matters depending in the same Courts, shall and may be exercised by Coin^ of Equity with respect to matters therein depending, and by the Lord Chancellor and the Court of Review in matters of bankruptcy, and by the Lord Chancellor in matters of lunacy ; and all remedies hereby given to judgment creditors are in like manner given to persons to whom any moneys or costs, charges or expenses are by such orders or rules respectively directed to be paid." The seizure of the person of the debtor for contempt is hot, under this section, a release of the debts against his property, Roberts v. Ball, 3 Sm. & G. 168. Sect 19. " Provided always and be it further enacted, that no judgment of any of the said Superior Courts, nor any decree or order in any Court of Equity, nor any rule of a Court of Common Law, nor any order in Bankruptcy or Lunacy, shall, by virtue of this Act, affect any lands, tenements or hereditaments as to purchasers, mortgagees or creditors, unless and until a memorandum or minute containing the name and the usual or last known place of abode, and the title, trade or profession of the person whose estate is intended to be affected thereby, and the Court and the title Of the cause or matter in which such jqdgment, de- cree, order or rule shall have been obtained or made, and the date of such [90] Decbees and Oedebs. 215 judgment, decree, order or rule, and the account of the debt, damages, costs or moneys thereby recovered or ordered to be paid, shall be left with the Senior Master of the Court of Common Pleas at Westminster, who shall forthwith enter the same particulars in a book in alphabetical order, by the name of the per- son whose estate is intended to be affected by such judgment, decree, order or rule ; and such officer shall be entitled for any such entry to the sum of five shillings ; and all persons shall be at liberty to search the same book on pay- ment of one shilling." Sect. 20. " And be it enacted, that such new or altered writs shall be sued out of the Courts of Law, Equity and Bankruptcy as may by such Courts respectively be deemed necessary or expedient for giving effect to the provisions hereinbefore contained, and in such forms as the Judges of such Courts respectively shall from time to time think fit to oriSt ; and the execution of such writs shall be enforced in such and the same manner as the execution of writs of execution is now en- forced, or as near thereto as the circumstances of the case will admit ; and that any existing writ, the form of which shall be in any manner altered in pursuance of this Act, shall nevertheless be of the same force and virtue as if no alteration had been made therein, except so &r as the effect thereof may be varied by this Act." A judgment of a County Court may he aided in equity against the defend- ant's settled estate, Benneti v. Powell, 3 Drew. 326. Semble, where a judgment creditor, in the lifetime of the debtor, sued out fi-fa., his execution thereon will not be restrained eifter decree in an adminis- tration suit, Sanheny, Harwood, 5 Hare, 215. See Streeten v. Whitmore, cited in note to Ord. 23, r. 10. Sheriff neglecting to make return to a writ of fi. fa. ordered to return the writ forthwith ; and on his neglect to do so, ordered with costs to return the writ within six days or stand committed, Evans v. Bavies, 7 Beav. 81. For form of order in such case, see Seton on Decrees, 643. Where part of the sum decreed to be paid was levied by fi. fa,, order made for payment of the amount remaining due after it had been ascertained and certified by the Chief Clerk, Hipkins v. Hipkins, 26 L. J. 512. The old form of decree " with costs to be taxed by the master," altered by adding the names of the parties by and to whom the costs are payable, to bring it within Ord. 1 of 10th May, 1839, Taylor v. Jardine, 1 Hare, 316. The first writ of fi. fa. not having been satisfied, a second may issue into a different county, Spencer ■v. Jllen, 2 Ph. 215 ; 11 Jur. 93. See as to recovery of costs by subpcena, Ord. 40, r. 38. On motion after taxation for an order for a solicitor to pay the amount due from him, he was also ordered to pay the costs of the application. Re Bainbrigge, 13 Beav. 108 ; and the costs of application for a second order, the first elegit proving fruitless, S. C, 14 Beav. 645. As to the practice under writs of fi. fa. and elegit, see Sid. Smith's Ch. Pr. 156; Daniell's Ch. Pr. 797. Sheriff levying under equitable fi. fa. is not entitled to injunction to restrain proceedings against him by strangers to the suit, Rock V. Cook, 2 Ph. 691 ; 2 De G. & 8m. 493 ; Onyon v. Washboume, 14 Jur. 497. 216 Oedek XXIX.— Process to enfoece [90] A creditor in possession under elegit is liable to account in the same manner as a mortgagee in possession, Bull v. Falkner, 12 Jur. 33 j 1 De G. & S. 685. Where sequestration is sued for costs, after an ineffectual jS./a., it was ordered that money paid into Court by the sequestrators might stand charged with the payment of such costs, with interest, and the costs of the processes, unless cause shown within a limited time, Westby v. Westhy, 16 Jur. 945. No writ can issue on an order for payment within a certain time after service If the order be not served, Adkins v. Bliss, cited in note to Ord. 23, r. 10. As to the effect of the statute 1 & 2 Vict. u. 110, see Sugden's Vendors and Purchasers, 13th ed. ch. 13, s. 1 ; Jarman's Byth. by Sweet, tit. Mortgage, and Coote on Mortgages, 3rd ed. 43 ; Watts v. Jefferyet, Brearcliff v. Dorringtm, cited ante in note to Ord. 26, r. 1. A judgment creditor enforcing his security against equitable interest in freehold must sue out elegit, Neate v. Duke of Marlharmtgh, 3 My. & Cr. 407 ; and so since 1 & 2 Vict. c. 110, ». 13, Smith v. Hurst, 1 Coll. 705. The Court will not appoint a receiver within the year, but would as to personalty, ibid. After twelve months judgment creditor may en- force equitable charge though not registered twelve months, Derbyshire Railway Company v. Bainbrigge, 15 Beav. 146. Annuity held chargeable under 1 & 2 Vict. u. 110, s. 13, Harris v. Damson, 15 Sim. 12S. So as to annuity, where the judgment debt was payable at a future day and contingent on debtor's life, Younghusband v. Gisbome, 1 De G. & Sm. 209. Decree directing money to be paid to the credit of a cause does not constitute plaintiff a judgment creditor under the statute. Ward v. Shakeshaft, 8 W. R. Dig. 32. Where the Court had given a relator his costs of an information against a corporation, he was held entitled to charge them on a fund standing in trust for the corporation, Attorney-General v. Corporation of Thetford, ibid. 17. [91] Marking Order Joi Payment with Date on which it was left for Entry. 7. Upon every such decree or order hereafter to be entered, one of the entering clerks shall, at the request of the party leaving the same, mark the day of the month and year on which the same is so left for entry: and no writ of fieri facias or elegit shall be sued out upon any such decree or order, unless the date of such entry is so marked thereon. (10th May, 1839; Ord. 2.) See as to the entry of decrees and orders generally, Ord. 1, r. 18. The marking the date referred to in this rule is rendered requisite by the provisions 1 & 2 VicL c. 110, s. 13, by which judgment creditors are precluded from the benefit of charges upon real estate under that section until after the expiration of one year from the time of entering up such judgment. Where the date had been omitted to be marked on an order the date was directed to be marked nunc pro tunc, Busk v. Beetham, 9 L. J., N. S. 54. Where the interval between registering and re-registering a judgment ex- [91] Decrees and Oedeks. 217 ceeded the statutory five years, it did not thereby lose priority over a judgment registered subsequently to such re-registration, Beavan v. Lord Oxford, 6 De G., M. St G. 492 ! 19 Jur. 1121. By whom, and how such Writs to he executed — Retujm, Delivery and, Filing thereof— Fees to Sheriff or other Officer, 8. Such writs when sealed shall be delivered to the sheriff or other ofl&cer to whom the execution of the like wi'its issuing out of the Superior Courts of Common Law belongs, and shall be exe- cuted by such sheriff or other officer as nearly as may be in the same manner in which he ought to execute such like writs. And such writs, when returned by such sheriff or other officer, shall be delivered to the parties or solicitors by whom respectively they were sued out, and shall thereupon be filed as of record in the office of the Clerks of Records and Writs. And for the execution of such writs, such sheriff or other officer shall not take or be allowed any fees other than such as are or shall be from time to time allowed by lawful authority for the execution of the like writs issuing out of the Superior Courts of Common Law. (10th May, 1839; Ord. 3.) Writ q/" Venditioni Exponas. 9. Where it appears, upon the return of any such writ of fieri facias as aforesaid, that ihe sheriff or other officer has by virtue of such writ seized but not sold any goods of the person directed to pay such sum of money or costs as aforesaid, the person to whom such sum of money or costs- is payable, shall, immediately after such writ with such return shall have been filed as of record, be at liberty to sue out a writ of venditioni exponas in the form set forth in Schedule (H), or as near thereto as the circumstances of the case may require. (10th May, 1839; Ord. 4.) [92] Indorsement on Writs of Fi. Fa. and Elegit. 10. On every such writ of fieri facias and elegit so to be issued as aforesaid, there shall be indorsed, in addition to the particulars required by ihe 2nd or 5th Rule of Order m., the words, " By -the Court," and also thereunder the calling and place of residence of the person against whom such writ thall be issued ; and every such writ shall be also indorsed for the sum so be levied, accord- ing to the form used upon like writs issuing out of the Superior Courts of Common Law. (10th May, 1839; Ord. 5.) IV, FiEEi Facias de bonis Ecclesiasticis and Sequesteari Facias de bonis Ecclesiasticis. When Writ of Fi. Fa. de bonis Ecclesiasticis, or Writ q/'Seques- trari Facias may he sued out. 11. Where it appears, upon the return of any writ ot fieri 218 Okdee XXIX.— Peocess to enfoece Deceees, etc. [92] facias or any -writ of eiegit issued in pursuance of the 6th Rule of this Order, that the person against whom such writ was so issued, is a beneficed clerk, and has no goods or chattels nor any lay fee in the bailiwick of the sheriff to whom such writ was directed, the person to whom the sum of money or costs mentioned in such writ is or are payable, shall, immediately after such writ with such return shall have been filed as of record^ be at liberty to sue out one or more writ or writs oi fieri facias de bonis ecclesiasticis, or one or more writ or -writs of seque^rari facias, in the form stated in Schedule (J), or as near thereto as the circumstances of the case may allow. (18th July, 1857; Ord. 2.) Receiver appointed at the instance of an equitable incumbrancer of a benefice, Metcalfe v. Archbishop of YorJc, 1 My. & Cr. 517. Order for receiver of a bene- fice on application of judgment creditor, with injunction restraining execution of writs oi sequestrari facias against a vicarage, HawMns v. Gathercole, 1 Sim., N. S. 63 ; and subsequent sequestration by another incumbrancer is an inter- ference with the receiver and a contempt, S. C, 1 Drew. 12. Where several common law writs of levari facias are delivered to the bishop's officer, the order of delivery and not the teste determines the priority of sequestration thereon, Sturgis V. Williams, 3 Jur., N. S. 861. For form of order for receiver of living, see Seton on Decrees, 552. Indorsement thereon. 12. On every such writ of fieri facias de bonis ecclesiasticis or writ of seqvestrari facias so to be issued as aforesaid, there shall te indorsed in addition to the particulars required by the 2nd or 5th Eule of Order HE., the words " By the Court," and also thereunder the calling, if any, and place of residence, if any, of the person against wliom such writ shall be issued; and every such writ shall be also indorsed for the sum to be taken or levied, according to the form used upon like writs issuing out of the Supe- rior Courts of Common Law. (18th July, 1857; Ord. 3.) Proceedings thereon — Fees to the Bishop or his Officers. 13. Such writs, when sealed, shall be delivered to the Bishop, and shall be executed by him as nearly as may be in the same manner in which he ought to execute such like writs issuing out of the superior Courts of common law. And such writs, when returned by the Bishop, shall be delivered to the parties or "soli- citors by whom respectively they were sued out, and shall there- upon be filed as of record in the office of the Clerks of Records and Writs. And for the execution of such writs, the Bishop or his officers shall not take or be allowed any fees other than such as are or shall be from time to time allowed by lawfiil authority for the execution of the like writs issuing out of the Superior Courts of Common Law. (18th July, 1857; Ord. 4.) [93] Okdeb XXX.— Process generally. 219 Order XXX. PEOCESS GENERALLY. Erideavour to be used in executing Process. 1. Every suitor who prosecutes a contempt shall use his best endeavour to procure each process to be duly served and executed upon the party prosecuted ; otherwise he shall pay costs unto the party aggrieved, and lose the benefit of the process returned. (22nd May, 1661 ; Sanders, 306.) See note to Ord. 10, i. 10, and compare this rule with Ord, 22, r. 2. Order for Serjeant-at-Arms to be drawn up and delivered to the Serjeant — iVo such Order, nor the Contempt, to be discharged, nor the Suit compromised, without payment of his Fees. 2. After any order for a Serjeant-at-Arms shall be granted by the Court, the Registrar shall on request draw up the said order, and deliver the same to the Serjeant-at-Arms or his deputy, who shall thereupon endeavour to apprehend the party prosecuted and bring him into Court to answer his contempt, if he can. But if he cannot, no such order for a Serjeant-at-Arms shall be dis- charged, nor the contempt thereupon, without a certificate under the hand o£ the Seijeant-at-Arms that his fees have been paid. And after the said order shall have been so drawn up and passed, no private or other agreement shall be made between the party prosecuting the contempt and the person standing in contempt, or on their behalf, for a compromise of the suit or the discharge of the contempt, unless such satisfaction shall be made, and a certi- ficate thereof shall be produced to the Court. (4th Nov. 1674. 13th July, 1685. 12th June, 1694.) As to the serjeant-at-arms, see Ord. 29, rr. 3 & 4. [94] NewWritofJIaheas. 3. Where a party is brought up to this Court by virtue of any writ of habeas duly issued from the office of the Clerks 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 fiiture day, a new writ of habeas may be issued for such future day, if the Court shall so direct, without payment of any fee. (31st Jan. 1846.) - See, as to new writ oihabeas, 1 Will. IV. -j. 36, s. 15, r. 4, cited in the notes to Ord. 10, (. 10. 220 Oedee XXX. — ^Process geneeailt. [94] Defendant, brought by habeas before the Vice-Chancellor pursuant to an order, might be brought up, on an appeal from the Vice-Chancellor, by a second habeas under the same order, Needham v. Needham, 1 Fhill. 640. Abolition of Writ of Execution to enforce Decrees or Orders. 4. No writ of execution shall be issued for the purpose of requiring or compelling obedience to any decree or order, but the person required by any such decree or order to do any act, shall, upon being duly served with such decree or order, be held bound to do such act in obedience thereto. (11th AprU, 1842; Ord. 6, amending 10th Ord. of 26th Aug. 1841.) See Ord. 23, r. 10, and Ord. 29, r. 3. See as to personal service of decree or order for payment of money, note to Ord. 29, r. 1. This rule differs from the lOCh Order of 26th August, 1841, by omitdng the words "nor any writ of attachment" after the word" execution ;" by substituting . the word "person" for the word "party," and in the latter part of the rule substituting' the words " decree or order" for the word " order." Before the Order of 1841, a person not a party was compellable to pay money not by writ of execution, but by service of order and by commitment, Dnffield v. Ehxes, 2 Beav. 269. Writs of Attachment with Proclamations and Rebellion abolished. 5. No writ of attachment with proclamations nor any writ of rebellion shall be issued for the purpose of compelling obedience to any process, order or decree of the Court. (26th Aug. 1841; Ord. 6.) See as to writ of attachment, Ord. 12, i. 6 ; Ord. 29, r. 3. Formerly the return of the sheriff non est inventus was followed by attachment with pro- clamations, commission of rebellion, serjeant-at-arms and sequestration ; but, according to the present practice, immediately on the return of the sheriff non est inventus, the plaintiff can obtain either an order for serjeant-at-arms, or, if able to make a particular afSdavit, he can obtain at once the writ of sequestra- tion under Ord. 12, r. 6 ; Daniell's Ch. Pr. 369. Order XXXL PEOCEEDINGS TO REVERSE, ALTER, OR EXPLAIN DECREES AND ORDERS. L Reheaeing and Appeals. As to the right to appeal being taken away by consent, contract, conduct, or admission, see Wood v. Griffith, 19 Ves. 550; 1 Mer. 35; 1 Mer., App. 720 j [94] Reheaking and Appeals. , 221 Davenport V. Stajford, 8 Beav. 503 ; Gwynne v. Edwards, 9 Beav. 22 ; Gould v. Tattered, 2 Atk. 533 j Turner v. Turner, 2 De G., M. & G. 28. The 1st section of the Act 14 & 15 Vict c. 83, authorizes the appointment of two Judges of the Court of Appeal in Chancery. Sect 2 authorizes the appoint- ment of their secretaries, ushers and train-bearers. Sect 3 regulates their precedence. Sect. 4 regulates their oath of office. Sect 5 enacts, that " from and after the 1st day of October, 1851, all the jurisdiction of the High Court of Chancery in England which is now possessed and exercised by the Lord Chancellor in the said Court of Chancery, and all powers, authorities and duties, as well ministerial as judicial, incident to such jurisdiction now exercised and performed by the Lord Chancellor, shall and may be had, exercised and performed by the said Court of Appeal." Sect 6 enacts, that " where, under any Act of Parliament, any jurisdiction is vested in the Lord Chancellor, or any power, authority or duty is to be exer- cbed or performed by the Lord Chancellor, and under the directions of any Act, or by the usage in this behalf, such power, authority or duty is or ought to be exercised or performed by the Lord Chancellor, acting judicially in the said Court of Chancery, all such jurisdiction, power, authority and duty, and the ministerial powers and authorities incident thereto or consequent thereupon which are now exercised and performed by the Lord Chancellor, shall, from and after the said first day of October, 1851, be had, exercised and performed by the said Court of Appeal." Sect. 7 enacts, that "from and after the first day of October, 1851, all the powers, authorities and jurisdiction, original and appellate, given and granted to the Vice-Chancellors of the said Court of Chancery, or any of them, under the Bankrupt Law Consolidation Act made and passed in 1849, or otherwise had, possessed or exercised by the said Vice-Chancellors, or any of them, in matters of bankruptcy, shall be granted to, vested in, exercised and possessed by the said Court of Appeal, and all the provisions of the said Act, in relation to such appeals to such Vice-Chancellors, shall be construed accordingly : provided always, that there shall not be any appeal from the decision of the said Court of Appeal to the Lord Chancellor, anything in the said Bankrupt Law Con- solidation Act to the contrary notwithstanding." Order since this Act by a Vice-Chancellor for appointment of new trustee in the place of a bankrupt trustee, Re Heath, 9 Hare, 616 ; 22 L^ J. 110. Sect 8 enacts, that " it shall be lawful to the said Court of Appeal, and the Master of the Rolls, and the Vice-Chancellors, and for each of the said juris- dictions, to sit, with the assistance of any Judge of either of her Majesty's Courts of Common Law at Westminster, upon the request of the Lord Chan- cellor, if any such Common Law Judge shall find it convenient to attend upon such request" By 15 & 16 Vict v;. 86, s. 61, " it shall not be lawful for the said Court of Chancery, in any cause or matter, to direct a case to be stated for the opinion of any Court of Common Law ; but the said Court of Chancery shall have full power to determine any questions of law which, in the judgment of the-said Court of Chancery, shall be necessary to be decided previously to the decision of the equitable question at issue between the parties." 222 Oedee XXXI. — ^Peoceedings to Reveese, etc. [94] Sect 62. " In cases where, according to the present practice of the Court of Chancery, such Court declines to grant equitable relief until the legal title or right of the party or parties seeking such relief shall have been established in a proceeding at law, the said Court may itself determine such title or right with- out requiring the parties to proceed at law to establish the same. An application for a Common Law Judge to sit with a Viee-Chancellor is made by the Vice-Chancellor to the Lord Chancellor, Hay v. Willoughhy, 9 Hare, App. 30 ; 22 L. J. 10 ; Anon., 1 W. R. 12; and the result of the applica- tion is communicated by the Chancery Judge to the parties, Deerkursf v. Jones, 16 Jut. 988. The application will be made only in cases of doubt and diffi- culty. Reward v. iVheatley, 3 De G., M. & G. 628 i 17 Jur. 403 ; 22 L. J. 435 ; similarly as to sending cases for the opinion of Courts of law formerly, Wilson V. Eden, 14 Beav. 317. Only one counsel on a side heard on re-argument before the Court and Common Law Judges, Jones v. Beach, 2 De G., M. & G. 886 ; Norman V. Mitchell, 2 W. R. 685 ; Broadbent T. Imperial Gaslight Company, 5 W. R. 272 i 26 L. J. 276 ; 3 Jur., N. S. 221 ; 7 De G., M. & G. 436. In the following cases heard in Chancery with the assistance of Common Law Judges, more than one counsel appeared on each side, Underwood v. Wing, 24 L. J. 293 ; 19 Jur. 169 ; 3 W. R. 228; Fivian v. Cochrane, 3 W. R. 255 ; Be Ska Fire and Life Assurance Company, 19 Jur. 301 ; 3 W. R. 281 ; Oldalter v. Hunt, 3 W. R. 297; Attorney-General v. St. Cross Hospital, 25 L. J. 202; 20 Jur. 336 ; 4 W. R. 310 ; Wallace v. Blaclcwell, 3 Drew. 538 ; 26 Jur. 656 ; 4 W. R. 627 ; Be Boytd Bank cf Australia, 20 Jur. 11 ; 4 W. R. 627 ; on appeal, 6 De G., M. & G. 572 ; 26 L. J. 95 ; 2 Jur., N. S. 1173 ; 5 W. R. 126 ; Boddam V. Morley, 1 De G. & J. 1 ; 26 L. J. 438 ; 3 Jur., N. S. 449 ; 5 W. R. 510 ; Scott v. Corporation of Liverpool, 4 Jur., N. S. 402 ; 6 W. R. 136, 493 ; 27 L. J. 641 ; Be Dodd, 4 Jur., N. S. 291 ; 6 W. R. 207 ; Monypenny v. Monypenny, 4 K. & J. 174 ; 27 L.. J. 369 ; 6 W. R. 382 ; Attorney-General v. Mathias, 6 W. R. 780; 4 Jur., N. S. 629; 4 K. & J. 579; Attorney-General v. Hanmer, 6 W. R. 804. Where the Coint of Appeal considered that a case should be heard by a Vice- Chancellor with a Common Law Judge, the Vice-Chancellor granted a motion to that effect, Hughes v. Chester and Holyhead Bailway, 8 W. R. 337. The assist- ance of Common Law Judges ought not to be required on questions (as of con- struction of partictilar instruments) not involving questions of general law, Falkner v. Grace, 9 Hare, 280 ; Manchester, S^c. Bailway v. Great Northern Bail- way, ibid. 284. In Be Sea Fire and Life Assurance Company, ubi supra, questions of construc- tion of the Joint Stock Companies Registration Act, though heard with the assistance of a Common Law Judge, were left to be decided at law. After hearing, with the assistance of Common Law Judge, leave to bring an action at law refused, Monypenny v. Monypenny, ubi supra. Where the Lord Chancellor agreed with the Vice-Chancellor and the Common Law Judges, but differed from both the Lords Justices, the appeal was dis- miSBed, Be Boyal Bank qf Australia, ubi supra. . Note to 15 & 16 Vict c. 86, s. 61. The Court will not decide purely legal questions so as to bind infant parties, Webb v. Byng, 2 Jur., N. S. 1243 ; 26 [94] Eeheaeing and Appeals. 223 L.J. 107. See Trustees qf Birkenhead Docks v. Birkenhead Dock Company, and Shrewsbury and Birmingham Railway v. Slour Valley Railway, cited in notes to 15 & 16 Vict. c. 86, s. SO, Ord. 23. Question of civil law stated for the opinion of two civilians, Sayre v. Cramp, 2 W. R. 438. By 22 & 23 Vict c. 63, in any action in any Court in her Majesty's dominions cases may be remitted for the opinion in law of any other Superior Court in the dominions, and the opinion may be acted upon by the first-mentioned Court or by a jury as evidence of foreign law. An action is interpreted to include every judicial proceeding {inter alia) in any branch of the Court of Chancery. In Lord V. Colvin, 8 W. R. 201, a case was, under this Act, sent for the opinion of a Scotch Court. The case must state briefly all the necessary facts, and be settled by the Judge at chambers with the assistance of counsel, ibid. 14 & 15 Vict 0. 83, s. 9, enacts, that " the decision of the majority of the Judges of the Court of Appeal shall be taken and deemed to be the decision of the said Court; and if the Judges of the said Court be equally divided in opi- nion on any cause or matter brought before the Court by way of appeal, the decree or order appealed from shall be taken and deemed to be afSrmed by the Court of Appeal." Sect 10 enacts, that " all decisions, decrees or orders of the Court of Appeal, including decisions in matters of bankruptcy, shall be subject -to appeal to the House of Lords in the cases and under the conditions in and under which the like decisions, decrees or orders of the Lord Chancellor would have been subject to such appeal if this Act had hot been passed ; but the appeal to the House of Lords in matters of bankruptcy shall be only on matters of law or equity, or on the rejection or admission of evidence, and on a special case to be approved and certified by one of the Judges of the Court of Appeal hereby constituted, whose determination on the settlement of such case shall be final and conclusiveJ' Sect. 11 enacts, that " all the jurisdiction, powers and authorities of the said Court of Appeal may be exercised either by one only of the Judges for the time being appointed under this Act and the Lord Chancellor sitting together as such Court of Appeal, or by both of the Judges so appointed sitting as such Court apart from the Lord Chancellor, either in his absence from the said Court of Chancery or during the same time as he is sitting in such Court : provided always, that the Lord Chancellor shall and may also, while sitting alone or apart from such two Judges, have and exercise the like jurisdiction,. powers and authorities, as well as all such other jurisdiction, powers and authorities as might have been exercised by the Lord Chancellor if this Act had not been passed." Sect 12 enacts, that " the Lord Chancellor shall fix the times at which the two Judges of the said Court of Appeal appointed under this Act, or either of them, shall sit with the Lord Chancellor, and at which such two Judges shall sit apart from him as such Court of Appeal, and also what appeals and matters, now usually heard and determined by the Lord Chancellor and hereby made subject to the jurisdiction of the said Court of Appeal, shall be heard and deter- mined by such Court when the Lord Chancellor is sitting with the said Judges to be appointed under this Act, or one of them, and by such Judges when sitting 224 Oedee XXXI. — Peoceedings to Reveese, etc. [94] apart &om such Lord Chancellor, and by such Lord Chancellor when sitting alone respectively, and generally may make such regulations as to him may seem proper for dividing and regulating the business of the said Court of Appeal, and for the attendance of a registrar of the said Court of Chancery at the sittings of the said Court of Appeal." Sect. 13. " Nothing herein contained shall affect any of the powers, duties or authorities attached to the office of Lord Chancellor or exercised by the Lord Chancellor as Keeper of the Great Seal, except the powers, authorities and duties which are exercised and performed by him acting as a Judge in the said Court of Chancery, either by virtue of his ordinary jurisdiction or of any statute, and the ministerial powers and authorities incident thereto respectively, or affect the powers, authorides and duties of the Lord Chancellor under and by virtue of any appointment under the sign manual of the Crown, as having the custody of the persons and estates of persons found idiot, lunatic or of unsound mind, or in relation to letters patent, grants or writings passed or to be passed under the Great Seal of the United Kingdom, or the revocation of such letters patent, grants or writings, or the powers and authorities of the Lord Chancellor in right or on behalf of her Majesty, as visitor of any charity or other founda- tion, or the powers of the Lord Chancellor of appointment to or removal from or otherwise in relation to offices in the Court of Chancery or other offices save as herein specially provided, or the powers of the Lord Chancellor to direct and regulate the sittings and duties of the Vice-Chancellors, or any powers of the Lord Chancellor (whether to be exercised by the Lord Chancellor alone or with the concurrence or advice or consent of the Master of the Rolls, or by the Master of the Rolls and the Vice-Chancellors or otherwise) to make rules or orders for regidating the practice, proceedings and business of the Court of Chancery, or the business or duties of any of the offices or officers of such Court i and in all cases where the concurrence, advice or consent of the Master of the Rolls and one of the Vice-Chancellors, or of either of them, shall be requisite for the making of such rules or orders, the concurrence, advice or consent of one of the Judges appointed by virtue of this Act may be substituted for that of the Master of the Rolls or of such Vice-Cbancellor. Sect. 14. " In case the Master of the Rolls or any Vice-Chancellor of the High Court of Chancery shall be prevented by illness or otherwise from sitting at any time when, according to ordinary course, his Court would be open, the Lord Chancellor may, by writing under his hand, irom time to time, so often as occasion may require, authorize one of the Judges of the said Coort of Ap- peal to sit for the hearing and determining of causes and mattesB in lieu of the Master of the Rolls or such Vice-Cbancellor ; and the Judge sitting under such authority as aforesaid may, for the purpose of disposing of any cause or matter which has been partly heard by him, continue such his sittings, notwith- standing the Master of the Rolls or Vice-Chancellor, in whose stead he has partly heard such cause or matter, may also be sitting for the hearing of other causes or matters ; and all decrees and orders made by such Judge, in pur- suance of such authority, shall be of the same effect and validity, and subject to revision and appeal, in the same manner in all respects as if made by the [94] Reheaeing and Appeals. 225 Master of the Rolls or Vice-Chancellor as the case may be : provided always, that such Judge shall not sit as a Judge of the said Court of Appeal upon any appeal from any decree or order made by himselE" The Court of Appeal have jurisdiction to hear an appeal from a former Lord Chancellor, hut such appeal ought not in general to be heard by the Lords Justices alone, Attorney-General v. Corporation of Exeter, 22 L. J. 418. Where a case is completely heard before the Lords Justices, although they differ, re- hearing before full Court will not be directed, Blann v. Belt, 2 De G., M. & G. 775; 16 Jur. 1103 i 22 L. J. 236. As to appeal firom Courts of inferior jurisdiction, see Addison v. Hindmarsh, 1 Vern. 442; Omerod v. Hardman, 5 Ves. 722. By 17 & 18 Vict. c. 82, the Chancellor of the Duchy and County Palatine of Lancaster and the two Lords Justices of the Court of Appeal in Chancery form the Court of Appeal in Chancery of the said County Palatine. See Waltham v. Goodyear, 19 Jur. 197. Appeal to Lord Chancellor after a rehearing before the Master of the Rolls, Brawn v. Higgs, 8 Ves. 561 ; Blackburn v. Jepson, 2 V. & B. 359. Similarly without special leave after rehearing before a Vice-Chancellor, Mayberry v. BrooHng, 7 De G., M. & G. 673 ; 25 L. J. 87 ; 4 W. R. 155. On appeal &om decree directing costs in a suit to be paid out of a fund in another suit, the rule which prohibits appeal for costs was held not to apply, Taylor v. Southgate, 4 M. & C. 203. The rule that there may be no appeal for costs only is not now in force, Col- lard V. Roe, 28 L. J. 560 ; 7 W. R. 623. Successful appeal by mortgagees against a decree disallowing their costs, Norton v. Cooper, 5 De G., M. & G. 728. Appeal for costs allowed in particular circumstances, Cowper v. Scott, 1 Eden, 17. See as to the powers of the Lords Justices as to inrolment, Ord. 23, r. 28. See as to rehearings and appeals, Sid. Smith's Ch. Pr. 478 j Daniell's Ch. Pr. 1110 ; Seton on Decrees, 596. And as to the evidence on rehearing, Seton on Decrees, 2, 595. Oa rehearing, circumstances since the order or decree cannot be considered. Home V. Barton, cited in note to Ord. 31, r. 1. Where fresh evidence is allowed on rehearing, the question of costs is affected thereby. White v. Fussell, 1 V. & B. 151. Appellant from the Rolls may let in new evidence if he will give up his de- posit. Hedges v. Cardonnel, 2 Atk. 408. On rehearing, evidence collected before the hearing, but not then read, may be used, but not (in general) new evidence; on appeal properly so called, only evidence read below can be used, Williams V. Goodchild, 2 Russ. 91 ; Cunyngham v. Cunyngham, 1 Amb. 82. Defendant, on dismissal of his appeal, ordered to pay co-defendant's costs of the appeal, Slacken v. Slacken, and Stubbs v. Sargon, C. P. Coop. 257. Where the Court of Appeal directs an examination of witnesses vivd voce, the appellant, if successful, is entitled to the costs of the examination, Martin V. Pycro/t, 1 W. R. 58. Whether a rule exists, that appellant cannot have the cost of the appeal, doubted, ibid. Costs of successful appeal allowed where fresh witnesses examined vivd voce on the appeal, Langfard v. May, 1 W. R. c. Q 226 Oedee XXXI.— Pkooeedings to Reveese, etc. [94] 484. The House of Lords never give appellants the costs of a reversal, Wheatcroft v. Hickman, 8 W. R. 754. On appeal from an order granting an injunction, respondent may adduce fresh evidence, Pole v. Joel, 2 De G. & J. 285. See Hope v. Threlfall, cited in note to Ord. 19, r. 13. Decisions made on motion are appealed by motion, Sid. Smith's Ch. Pr. 488. This rule does not extend to appeal from decrees or decretal order made on motion, see Ord. 31, r. 8; Bloxham v. Whipham, cited in note to Ord. 35, r. 62. Decisions made on petition are appealed by petition, and are set down among appeal petitions, Sid. Smith, 489. As to appeals from certificates at chambers, see Ord. 35. Appeal from an order on further directions does not involve the review of a prior independent decree, Beavan v. Marnington (in the House of Lords), 8 W. R. 669. Plaintiff may appeal from allowance of a demurrer notwithstanding his undertaking to amend, Lidbetter v. Long, 4 My. & Cr. 286. Amendment of the bill does not prejudice defendant's right to appeal from an order overruling a demurrer, Jackson v. North Wales Railway Company, 13 Jur. 69. A decree for foreclosure, under 7 Geo. II. c. 20, though made on motion, cannot be discharged on motion, Cadle v. Fowle, 1 Bro. C. C. 515. On appeal from whole order on further consideration appellant begins, Clarke v. Bruges, 6 Jur., N. S. 388. Where a fresh affidavit is read on an appeal motion, it is no longer an appeal, but a new motion, Whitworth v. Whyddon, 14 Jur. 142. As to alteration of decrees on motion, see Ord. 23, r. 1. Time for Appeals and Meheanngt — Enlargement of Tims. 1. No appeal from any decree or order, or any rehearing of the case on which such decree or order is founded, shall be allowed, unless the same is set down for hearing, and the requisite notice thereof duly served, within five years from the date of such decree or order respectively. (7th Aug. 1852, 2nd Set, Ord. 1.) But the Lord Chancellor or the Lords Justices shall be at liberty, where it shall appear to him or them under the peculiar circum- stances of the case to be just and expedient, to enlarge that period. (7th Aug. 1852, 2nd Set, Ord. 6.) Notwithstanding the Orders of 1725 and 1726 (see Beames, 337, 339), the time for rehearing a decree was formerly unlimited, Morgan v. Morgan, 14 Beav. 72. The order on which the latter part of this rule is founded autho- rizes also enlargement of the time for an enrolment, as to which see Ord. 23, r. 28. No appeal from a decree only in minutes. Commissioners of Charitable Dona- tions V. Hunter, I Dr. & Warr. 544. Appeal from such decree heard by con- sent, the appellants paying the costs, Malone v. Geraghty, 3 Dr. & W. 350. Application for leave to give notice of motion to vacate enrolment, with a view to letting in a petition of rehearing, ought not to be made to the Lords Justices alone. Cooper v. Taylor, 2 W. R. Dig. 62 (see note to Ord. 23, r. 28). The application is by petition, Storrs v. Benboui, 1 W. K. 1 15. [94] Rehearing and Appeals. 227 Petirion to the Master of the Rolls to rehear in 1851 a cause disposed of in 1834 dismissed with costs, TownUy v. Bedwell, 15 Beav. 78. Appeal in 1858 firom, and reversal of, judgment given in 1846, Hedges v. Harpur, Hedges v. Bitch, 3 De G. & J. 129; 6 W. R. 842; 4 Jur., N. S. 1209; 27 L. J. 742. Leave given on ex parte application to prevent a petition of rehearing^ in a case of manifest error, and tlie cause reheard after thirty- years, the fund being still in Court, Brandon v. Brandon, 1 De G., M. 8t G. 365 ; 25 L. J. 896 ; 20 Jur. 981. Where an issue devisavit vel non had been directed, and plaintiff withdrew the record, an appeal to the Privy Council being pending, which resulted in establishing the will, leave to appeal after five years against an order to take the issue pro cmifesso refused, Toumley v. Deere, 1 W. R, 483. Leave given to appeal after five years, where the other side had lodged a petition of appeal within that period, Cooksoh V. Lee, \ W. R. 500. On an application for leave to rehear after five years, events subsequent to the decree are not to be taken into ac-~ count, unless they are brought before the Court in a fresh suit, Home y. Bartm, 2 Jur., N. S. 1032; 26 L. J. 225; in which case the petition was ordered to stand over, with liberty to file a bill. Semhle, the proper mode of obtaining relief in the last-cited case was by supplemental bill stating the additional matter to come in, with a petition of rehearing, without which the former decree could not be got rid of. Head v. Godlee, 1 John. 536 ; 29 L. J. 633. See Davenport v. Stafford, 8 Beav. 503. [95] Rehearing not to stop Proceedings on Decree or Order appealed from. 2. Where any rehearing is granted, such rehearing shall not in any way stop or hinder any proceedings on the decree or order appealed from, unless by special order of the Court ; but the per^ son in possession of any decree or order shall be at Uberiy to pro- ceed thereon as if no appeal or rehearing had been granted. (12th May, 1686.) Decree generally not stayed by an appeal. Costs of a special application follow the judgment if unfavourable, Waldo' v. Cayley, 16 Ves. 206 ; and Willan V. Wittan, 16 Ves. 216 ; Gayn y. Lefhridge, 14 Ves. 385. Though the decree be varied, the subsequent proceedings are in the Court below, Sowdon v. Marriott, 2 Phill. 623. Zn Malcolm v. Scott, 3 Mac. & Gor. 29, where, by mistake, the order on appeal retained the cause before the Lord Chancellor, he dealt with the costs on further hearing as if it had taken place before the Vice-Chancellor. Circumstances in which proceedings stayed pending appeal. Attorney- General V. Monro, 12 Jur. 318 ; Prendergast v. Lushington, 17 L. J. 364 ; 12 Jur. 385 ; on giving security, Suisse v. Lord Lowther, 2 Hare, 438 ; 7 Jur. 808 (see the judgment of Vice-Chancellor Wigram in the " Jurist " ) ; Thorpe v. Mattingley, 3 You. & Coll. 254. In Swift t. Grazehrooh, 3 Mac. & Gor. 8, security required before payment out of Court of the fund the subject of appeal, so that the appeal might not be thwarted. Money decreed to be paid ordered to be paid, Q2 228 Oedek XXXI.— PkocEEDiNGS TO Kevebse, etc. £95] notwithstanding appeal to the House of Lords on security to refund if the de- cree should be reveised, Wag v. Fey, 18 Ves. 452 i Moneypenny t. Mmeypenny, 8 W. R. 430. Costs of application usually paid by party applying, Richardson v. Bank qf England, TBeav. 153. Special circumstances must be shown, Way T. Foy, 18 Ves. 452. The application must be immediate, Herring v. Chbery, 12 Sim. 410. By Ord. 6, r. 12, applications to stay proceedings are to be made first to the Judge appealed firom ; but on appeals to the House of Lords it seems that ap- plication maybe made either to the House or to the Court below, Daniell's Ch. Pr. 1118. See Gtirciai v. Sicardo, infra ; Finch v. Shaw, infra; Corporation of Gloucester v. Wood, 1 Ph. 493 ; 9 Jur. 673 ; 14 L. J. 123. Payment out of Court stayed on appellant's undertaking to abide any order as to costs or interest. Mayor of Gloucester v. Wood, 3 Hare, ISO ; on appeal, 1 Phill. 493; 9 Jur. 673; 14 L. J. 123. Application by appellant to stay an order for payment of costs by him on the ground that they would not he recovered back if the appeal succeeded was refused, though appellant oSered to pay the amount into Court, Archer v. Hud- son, 8 Beav. 321. Execution of decree in a mortgagee's suit stayed for a limited time on payment of morlgage money into Court, and payment to plaintiff of interest and costs on his undertaking to repay if the decree should be reversed, Monkhouse v. Corporation of Bradford, 17 Ves. 380 ; application refused applicant not being appellant, Rowley v. Adams, 9 Beav. 348. Held that appeal could not be heard while appellant disobeyed an order for bringing money into Court, but leave given to apply to this Court below to extend the time of payment until after the appeal. Wood v. Farthing, 8 W. R. 425. Decree enrolled declaring who is next of kin, cannot he varied on petition, Bauer v. Mtford, 29 L. J. 268. Petition to stay payment of money out of Court pending appeal refused with- -out costs, there being reasonable ground of appeal, Morison v. Morison, 19 Jur. -339 (where the money was paid out on undertaking to pay interest on it if the appeal succeeded). As to stay of proceedings to enforce answer, pending appeal from interlocu- tory order, see Garcias v. Bicardo, 9 Jur. 323, 717 ; 1 PhUl. 498 (from the " Jurist " it appears that the proceedings were stayed, flie House of Lords having consented to advance the appeal) ; Drake v. Drake, 3 Hare, 528 ; Saun- ders V. Richardson, 2 W. R. 358 ; King of Spain v. Machade, 4 Russ. 560. Pro- ceedings for further answer stayed, pending appeal, on exceptions, Stainton v. Chadwick, 3 Mac. & Gor. 343. On motion to stay proceedings pending appeal for a receiver, the Lnd Chancellor advanced the appeal motion, Bainbrigge v. Baddeley, 3 Mac. & Gor. 413. Time appointed for redemption enlarged pending appeal to the Lords, Finch v. Shaw, 20 Beav. 555. As to staying proceedings pending a bill of review, see Ord. 31, r. 14. As to the Judge to be applied to to stay proceedings, see Ord. 6, r. 12. Contents of Petitions of Rehearing. 3. In any petition of rehearing of any decree or order, it shall not be necessary to state the proceedings anterior to the decree or [95] Reheahing and Appeals. 229 order appealed from or sought to be reheard. (■26th Aue 1841 • Ord. 50.) ^ ^ ' Supplemental bUl, in the nature of a bUl of review, cannot be heard without a petition to rehear the original cause, Moare v. Moore, 1 Dick. 66. As to the title of the petition and amendment of it, see Turner v. Turner, ir^fra. Formerly the petition usually stated shortly the fects of the case, and the grounds insisted on by the answer might be stated. Wood v. Griffith, 19 Ves. 550 ; 1 Mer. 35 ; and 1 Mer., App. 720. The petition must not state any- thing not warranted by the pleadings, ibid., and Nevison v. Stahles, 4 Russ. 2X0. The petition must state subsequent proceedings which are liable to be affected by the appeal. Wood v. Griffilh, ubi supra; but not those which are not so liable. Turner v. Tumgr, 2 De G., M. & G. 28. A petition improperly framed may be taken off the file, though it seems without prejudice to pre- venting a Tegular petition. Wood v. Griffith, ubi supra. On a petition of appeal from an inferior Court it is not necessary to assign particular errors as on a bill of review, Addison v. Hindmarsh, 1 Vem. 442. As to signature of petition of rehearing, see Monkhouse v. Corporation of Bed- ford, 17 Ves. 380 ; Turner v. Turner, supra. In Malone v. Geraghty, 3 Dr. & W. 239, Lord Chancellor Sugden refused to dismiss a petition of rehearing on the ground that it was signed by one only of the counsel in the cause. When the petition of rehearing is signed by two counsel, the order to set the cause down is usually of course, Cunyngtiam v. Cunyngham, Amb. 89 ; Attorney- General V. Brooke, 18 Ves. 325 j but in a case of doubt, the petition itself may be set down. Fox v. Maekreth, 2 Cox, 159. By Ord. 3, r. 1, the signing of petitions of rehearing and appeal is one of the duties to be performed by solicitors. See as to the liability of soli- citors so signing, Ord. 3, r. 9. As to rehearing where bill has been taken pro confesso, see 1 Will. IV. c. 36, s. 7, cited in notes to Ord. 22. The Lord Chancellor will not hear, in the first instance, a motion to discharge a Vice-Chancellor's order ex parte for an injunction, Sturgeon v. Hooker, 2 Phil). 289. Deposits on Appeal or Mehearing. 4. Where any person appeals from a decree or order made on the original hearing of a cause or on flirther consideration, or ob- tains a rehearing of a cause, the person so appealing or obtaining such rehearing shall deposit in the hands of the Registrar the sum of twenty pounds, to be paid to the opposite party when the decree or order is not varied in any material point, together with the further taxed costs occasioned by the appeal or rehearing, unless the Court shall otherwise direct, (7th Feb. 1794, 3rd April, 1828 ; Ord. 42.) By 15 & 16 Vict c. 87, s. 41, enacts, that " the deposit now payable on setting down appeals and exceptions for hearing shall continue to be payable, and such deposits shall be paid to and received by the senior Registrar of the 230 Geder XXXI.— Proceedings to Eevekse, etc. [95] Court of Chancery for the time being, who shall once in every three months pay all sums so received by him into the Bank of England to the credit of the Accountant General of the said Court (the amount so received and paid by such Registrar to be verified by affidavit); and the several sums, when so paid in shall be from time to time placed to an account to be intituled ' The Appeal Deposit Account ; ' and the monies, which shall firom time to time be standing to such account shall be paid and applied as the Court of Chancery shall from time to' time in that behalf order or direct." Where an appeal is dismissed without costs, the deposit will be returned, Dell V. Barlow, 2 Russ. & My. 686 ; Portman v. Mill, ibid. ; Battenbury v. Fenton, C. P. Coop. 435. Pauper respondent allowed dives costs of unsuccessful appeal, Welletley v. Wellesley, 1 De G., M. & G. 501; see Ord. 40, r. 5. A pauper allowed to appeal without payment of the deposit, Clarke v. Wybum, 12 Jur. 167 ; Heapt V. Commissioners of Churches, ibid., n. ; Bradberry v. Brooke, 25 L. J. 576 ; 4 W. R. 699. Semble, application for such leave should be made to the Court below, ibid. Pauper cannot appeal without paying the deposit unless counsel certify that there are special and strong grounds for the appeal, Grimwood v. Shave, 5 W. R. 482. In respect of an original supplemental cause only one deposit necessary, Cowper V. Scott, 1 Eden, 17. Th^ fiat requires an undertaking to pay costs subsequent to the decree, as the Court may direct This undertaking is signed by the petitioner or his soli- citor accordingly, Daniell's Cfa. Pr. 1127. The undertaking applies only to costs incurred in the prosecution of the decree, and not to the costs of the ap- peal. Price V. Dewhurst, 4 My. & Cr. 282 ; see Ord. 3, r. 9. Petition to dis- charge an order on petition requires no deposit, Richards v. Platel, 1 Cr. & Ph. 84. Whether the rule exists, that appellant cannot have costs of the appeal, doubted, Martin v. Pycroft, cited in first note to Ord. 31. Where the Court differed upon a minor question only, the costs followed the result of the appeal ; qutere, whether they would do so in all cases where the Court differed. Be Clark, 1 De G., M. & G. 43. On a successful appeal, respondents were charged with all the appellant's costs of the suit and the appeal, Pooley v. Quilter, 2 De G. & 3. 327 ; Lillie v. Legh, 3 De G. & J. 204. Appellant's mortgagees allowed their costs of successfiil appeal, Norton v. Cooper, 5 De G., M. & G. 728. Appeal Deposit Account. 5. The senior Registrar for the time being shall set down the deposits received hj him under the Stat. 15 & 16 Vict. c. 87, s. 41, in a book to be kept by him for that purpose, together with a memorandum of the name of the cause on which each deposit is made, and of the person making the same, and of his solicitor. And where the Court has heretofore by any order directed or shall hereafter direct any such deposit or portion of deposit to be paid, [95] Eeheaeing and Appeals. 231 ihe same shall be paid by the Aceountant-General out of Buy cash which at the time of such payment may be in the Bank to the credit of the account intituled " The Appeal Deposit Account," to the person to whom such deposit or portion of deposit is ordered to be paid, or to his solicitor to be named in such order, whose receipt in such latter case shall be a sufficient discharge for the same. (10th Dec. 1852.) See the enactment here referred to cited in notes to the last rule. Court to be supplied mith Copy of the Sill and of the Petition of Rehearing. 6. Where a petition of rehearing of a cause is presented, a true copy thereof, and a printed copy of the bill, shall, at the time of presenting such petition, be left for the Lord Chancellor or the Lords Justices. (See Ord. of 23rd Oct. 1689.) [96] Non-appearance of Party served mith Order for Appeal. 7. Where a party who has been duly served with a copy of an order for setting down a cause to be reheard on a petition of appeal or for a rehearing does not appear on the rehearing, there, on proof by affidavit of such service, such order shall be made upon the rehearing as under the circumstances of the case shall appear to be just. (3rd Aug. 1831.) Where appellant does not appear, his 'petition will be dismissed with costs ; where respondent does not appear, the Court will hear the appeal ex parte, Daniell, Ch. Pr. 1129. On appeal motion the affidavit is not required, but the motion is treated as abandoned. Turner t. Turner, 2 De G., M. & G. 28. Rehearing of or Appeal from Decree or Decretal Order made on Motion. 8. Where any decree or decretal order has been made upon mo- tion, no rehearing or appeal shall be allowed, either before the same Judge, or before the Lord Chancellor or the Lords Justices, upon motion ; but in every such case there shall be a petition of rehearing or appeal ia the same manner and form, and with the same certificate of counsel, and with the same subscription by the petitioner or his solicitor with respect to costs, and with the same deposit, as, are required for a rehearing when a decree has been made upon the hearing of a cause regularly set down for hearing. (12th July, 1858.) Decree for foreclosure under 7 Geo. II. c. 20, though made on motion cannot be discharged on motion, Cadle v. Fowle, 1 Bro. C. C. 515. See as to motions for decree or decretal order, Ord. 33, r. 4. See, as to appeal from motions other than motions for decree or decretal 232 Okdeh XXXI.— Peoceedings to Reverse, etc. [96] order, first note to Ord. 31. As to appeal &om Chief Clerk's certificate, Ord. 35, r. 52. n. Bills of Review and othek Bills op that nature. Where necessary. 9. No decree which has heen signed and inrolled shall be re- versed, altered or explained but upon bill of review. (29th Jan. 1618-19 ; Ord. 1, 13.) See as to pleading former suit as a bar, Ord \i, rr. 6 & 7-, See as to bills of review, Mitford on Pleading [91]. The second section of Lord Chancellor Bacon's Orders of 1618-19 is, " In case of miscasting (being a matter demonstrative), a decree may be explained and reconciled by an order without a bill of review ; not understanding by miscasting any pretended misrating or misvaluing, but only error in the audit- ing or numbering." See Taylor v. Sharp, 3 P. W. 371. A bill of review is necessary where the decree is inrolled by one of several defendants. Gore v. Pardon, 1 Sch. & Lef. 23i. Review by the Lord Chancellor of a decree not inrolled is prevented by inrolment of a subsequent order, where the decree, if varied, would be inconsistent with the order, WDermott v. Kealy, 1 Ph. 267. Apparent error in casting up amended after inrolment, Weston v. Haggerston, Coop. 134. Error in Master's report directing payment to defendant and her solicitor, instead of to the defendant, amended after inrolment, Yow v. Toaimend, 1 Dick. 59. Decree, omitting to set off costs at law and in equity, corrected after inrolment on motion, Shine v. Geugh, 2 B. & B. 33. Apparent error in an inrolled decree directed, Fearon v. DesbrUay, 21 L. J. 5U ; S. C. reported on the hearing, 14 Beav. 635 ; 21 L. J. 505. Order in a suit to carry a fund to a separate account may be corrected at the instance of persons entitled in remainder (who were not parties to that suit) by original bill, and not a bill of review, Noble v. Sfoiu, 7 W. R. 709. See S. C, cited in Ord. 31, r. 11. In Spearing V. Lynn, 2 Vem. 376, leave to amend the title of an order which seems to have been inrolled where a surety sued at law had pleaded that there was no such order. Cause reheard at the instance of an infant after inrolment on matter appeeu:- ing on the report, Jackson v. Welsh, 1 Dra. & Walsh, 265. Bill of review lies where the decree is, supplemental bill in the nature of a bill of review lies where the decree is not, inrolled. In either case, matter of revivor and supplement may be introduced. Perry v. Phelips, 17 Ves. 173 ; Head v. Godlee, cited in note to Ord. 31, r. 1 ; Lewellen v. Mackworih, 2 Atk. ' 40 ; Standish v. Radley, 2 Atk. 177. Decree pro amfesso is a bar to another suit, and can be impeached only by bill of review or bill to set it aside for fraud, Ogilvie v. Heme, 13 Ves. 563. Where decree directed a mortgaged estate to be sold without declaring the priorities, a mortgagee might establish his priority in a second suit without bill of review, Langstt^ v. Nicholson, 25 Beav. 160. [96] Bills of Review, etc. 233 Costs omitted to be provided for by decree inroUed provided for by subse- quent order, Viney v. Chaplin, 3 De G. & J. 282 ; 7 W. R. 159. See as to correction of clerical errors in decrees or orders not inroUed, Ord. 23, r. 21. Grounds of BUI of Review or BUI in the nature of a Bill of Review. 10. No bill of review, or supplemental or new biU in the nature of a bill of review, shall be adcnitted, except upon error in law appearing on the face of the decree, without further examination of matters in fact, or upon some new matter which has been dis- covered after the decide and could not possibly have been used when the decree was made. (29th Jan. 1618-19; Ord. 1. 17th Oct. 1741.) As to bills of review and bills in the nature of a bill of review, see Mitford on Pleading [84] ; Sid. Smitb's Ch. Pr. 738. As to supplemental bill in the nature of a bill of review, see Mitford on Pleading [90]. When a party served with notice of the decree feels himself aggrieved thereby, he should move the Court on notice for leave to file a bill in the nature of a bill of review, Kidd v. Cheyne, 18 Jur. 348 ; Ex parte Kidd, 2 W. R. 316, cited in note to Ord. 23, i. 18. Bills of review are either bills for error of law apparent in decree (which may be filed without leave), Trulock v. Rohey, 2 Phill. 39S (see observations on that case in Green v. Jenkins, injra); Perry v. Phelips, 17 Ves. 173; Gould v. Tanered, 2 Atk. 533 j Jnon., 2 Peere Wms. 283; Tommey v. White, 1 H. L. Ca. 160; or where material evidence or facts have been discovered which could not have been used when the decree passed, in which case leave to file the bill is necessary. Perry v. Phelips, supra; Tommey v. White, supra; Toung V. Keighly, 16 Ves. 348 ; Cooke v. Banfield, 3 Swanst. 607 ; Portsmouth V. Lord Effingham, 1 Ves. sen. 429 ; Bennet v. Lee, 2 Atk. 528 ; Standish v. Radley, 2 Atk. 177 ; Bungate v. Gascoyne, 2 Ph. 25. But such evidence or facts must not have come to the notice of the solicitors of the parties before the evidence closed in the former suit, Norris v. Le Neve, 3 Atk. 35. To sustain a bill of review, the error must be specifically assigned ; it must be an error conflicting with some legal, equitable or statutory rule, not a mere error of judgment. Green v. Jenkins, 29 L. J. 505 ; 6 Jur., N. S. 515 ; 8 W. R. 380. On bin of review, the party cannot assign for error that any matters are de- creed contrary to the proofs in the cause, but must show error apparent in the decree or newly-discovered matter, Mellish v. Williams, 1 Vern. 166. After demiurer to a bill of review overruled, the decree is reversed of course without farther hearing, Cooke v. Bamfield, 3 Swanst. 607. On arguing a de- murrer to a bill of review, only what appears on the face of the decree can be read, but if that demurrer be overruled, a plaintiff may read any evidence as at a rehearing, Catterall v. Purchase, 1 Atk. 290 ; Lewellen v. Mackwarth, 2 Atk. 234 Okder XXXI.— Proceedings to Reteesb, etc. [96] 40 J Gould V. Tancred, supra. See, as to evidence on rehearing, first note to this Order. Plaintiff having taken a common administration decree, if he petition for leave to file a bill of review to take a decree for wil^ default, need only make out SL primd facie ca&e, Partington v. Reynolds, 6 W. R, 615. Where a bill of review is brought for error apparent, the constant course is for defendant to plead the decree, and demur against opening the inrolment, Gould V. Tancred, supra. Leave of Court. 11. No bill of review or supplemental or new bUl in the nature of a bill of review, grounded upon new matter discovered after the decree, shall be admitted without the special leave of the Court first obtained for that purpose. (I7th Oct. 1741. 29th Jan. 1618- 19 ; Ord. 1.) In Moore V. Moore, 2 Ves. sen. 596, Lord Hardwicke stated that formerly when the decree had not been signed and inroUed, supplemental bills, in the nature of bills of review, were brought without leave or deposit, and it became necessary to put them under the same restraint as bills of review, as many such supplemental bills were brought for vexation, and men were at a great expense obliged to sign and inrol. Demurrer allowed to a bill stating a former suit for the same matter, Wortley V. Birkhead, 3 Atk. 809 ; see note to Ord. 14, t. 7. A bill reciting proceedings and decree in a former suit is not a supplemental bill in the nature of a bill of review, unless they could, if omitted from the bill, be pleaded in bar to it, or unless the new relief sought is at variance with the former decree, Bainbrigge v. Baddeley, 2 Ph. 705 j Toulmin v. Copland, 2 Ph. 711 ; Taylor v. Taylor, 1 M. & G. 397; Langstaff v. Nicholson, 25 Beav. 360; Noble «. Stow, cited Ord. 31, r. 9 ; Hodson v. Ball, 1 Ph. 177. In Hodson v. Ball, under colour of filing a supplemental bill, an attempt was made to file a bill in the nature of a bill of review. The bill is liable to be taken off the file if leave be not regularly obtained, Gartside v. Isherwood, 2 Dick. 612 ; Davis v. Bluclc, 6 Beav. 393. Leave is obtained to file a supplemental bill, in the nature of a bill of review, by an attendable petition or special motion, supported by affidavit similar to that used for liberty to file a bill of review, Sid. Smith's Ch. Pr. 743. Defendant omitting to obtain such leave previously to filing the bill, subsec^uently allowed to set the mistake right, Loubier v.. Cross, cited in note to Ord. 31, r. 13. Such leave not granted unless the new evidence be of great weight, Hungate v. Gascoyne, 2 Ph. 25. The practice on both kinds of bills is similar, except that in the case of a bill, in the nature of a bill of review, a petition of re- bearing or appeal should be presented to come on and be heard with the bill, Moore v. Moore, ubi supra; S. C, 1 Dick. 60 ; Perry v. Phelips, 17 Ves. 173. Deposit in the case of a Bill of Review. [971 12. No biU of review shall be admitted, unless the party ex- hibiting the same first deposit the sum of 501. with the Begistrar, [97] Bills of Revte-w, etc. 235 as a pledge to answer such costs and damages as the Court shall award to the opposite party, in case the Court shall think fit to dismiss such bill of review. (12th March, 1700-1.) As to deposits on appeal or rehearing, see Ord. 31, r. 4. I)eposit in the case of a Bill in nature of a Bill of Review. 13. No supplemental or new bill in the nature of a bill of review grounded upon new matter discovered after the decree shall be admitted, unless the party exhibiting the same first deposit with the Registrar so much money as, together with the deposit by the rules of this Court to be made on obtaining a rehearing of the cause or causes whereip such decree was pronounced, will make up the sum of SOL, as a pledge to answer such costs and damages as shall be awarded to the opposite party, in case the Court shall think fit to award any at the hearing of the cause on such supple- mental or new bill. (17th Oct. 1741.) Deposit omitted to be made before filing a supplemental bill in the nature of a bill of review allowed to be made afterwards, Loubier v. Cross, 1 Dick, 223. Performance required before such Bill, except in particular Cases. 14. No bill of review shall be admitted, nor any other new bill to reverse or alter a decree, unless the decree be first obeyed and performed j except that if any act is decreed to be done which ex- tinguishes a right at the common law, as the making of assurance or release, acknowledging satisfaction, cancelling of bonds or evi- dences, and the like, the Court may dispense with the actual per- fi)rmance of that part of the decree until such bUL be determined. (29th Jan. 1618-19; Ord. 3 and 4.) As to staying proceedings pending appeal or rehearing, see Ord. 31, r. 2. Execution of a decree not generally dispensed with pending a bill of review, Williams V. Hellish, 1 Vem. 117 ; Bishop of Durham v. Liddell, 2 Br. P. C. 63 ; but may be dispensed with under very special circumstances. Partridge v. Usbome, 5 Russ. 195. See Taglor v. Taylor, 12 Beav. 22*. Plaintiff allowed to bring a bill of review before payment of costs of former suit on oath of his poverty, Fitton v. Earl of Macclesfield, 1 Vern. 264. Order XXXII. REVIVOR AND SUPPLEMENT. Application to discharge Order to revive. 1. Any person under no disability or under the disability of coverture, who may be served with an order under the Stat. IS & 16 Vict. c. 86, 8. 52, to revive any suit or to carry on the pro- 236 Ordek XXXTT. —Revivor and Supplement. [98] ceedings therein, may apply to the Court to discharge such order •within twelve days after such service ; and any person being under any disability, other than coverture, -who may be so served, may apply to the Court to discharge such order within twelve days after the appointment of a guardian or guardians ad litem for such person ; and until such period of twelve days shall have expired, such order shall have no force or effect as against such last-mentioned person. (7th Aug. 1852, 1st Set, Ord. 43.) See as to revivor, where the plaintiff having an interest dies, leaving a plaintiff on the record vrithout an interest, 15 & 16 Vict c. 86, s. 49, cited in the first note to Ord. 7. By IS & 16 Vict. c. 86, s. 52, " Upon any suit in the said Court becoming abated by death, marriage or otherwise, or defective by reason of some cheinge or transmission of interest or liability, it shall not be necessary to exhibit any bill of revivor or supplemental bill in order to obtain the usual order to revive such suit, or the usual or necessary decree or order to carry on the proceedings; but an order to the effect of the usual order to revive, or of the usual supple- mental decree, may be obtained as of course upon an allegation of the abate- ment of such suit, or of the same having become defective, and of the change or transmission of interest or liability, and an order so obtained, when served upon the party or parties who, according to the present practice of the said Court, would be defendant or defendants to the bill of revivor or supplemental bill, shall, from the time of such service, be binding on such party or parties in the same manner in every respect as if such order had been regularly obtained according to the existing practice of the said Court ; and such party or parties shall thenceforth become a party or parties to the suit, and shall be bound to enter an appearance thereto in the office of the Clerks of Records and Writs within such time and in like manner as if he or they had been duly served with process to appear to a bill of revivor or supplementsil bill filed against him : provided that it shall be open to the party or parties so served, within such time after service as shall be in that behalf prescribed by any general order of the Lord Chancellor, to apply to the Court by motion or petition to discbarge such order, on any ground which would have been open to him on a bill of revivor or supplemental bill, stating the previous proceedings in the suit, and the alleged change or transmission of interest or liability and praying the usual relief con- sequent thereon : provided also, that if any party so served shall be under any disability other than coverture, such order shall be of no force or effect as against such party until a guardian or guardians ad litem shall have been duly appointed for such party, and such time shall have elapsed thereafter as shall be prescribed by any general order of the Lord Chancellor in that behalf." As to abatement, revivor and supplement, see Mitford on Pleading [57] ; Daniell's Ch. Pr. 1 152 ; Seton on Decrees, 600 ; Sid. Smith's Ch. Pr. 726. Under sect. 52, order to revive as well as to carry on proceedings against the representative of a defendant, Martin v. Hadlow, 9 Hare, App. 52 ; 16 Jur. 964; 1 W.R.5; 22 L.J. 9. Where anything beyond the common order is required, a special application is necessary, Goodall v. Skerratt, 1 Sm. & G. 7. [98] OkdebXXXII.— Revivor AND Supplement. 237 The common order to revive may be obtained as of course, Boi^l v. Purchas, 16 Jur. 965 ; 1 W. R. 12 ; Martin v. Hadlow, tiM supra ; Gordon v. Jesson, 16 Beav. 440 ; 22 L. J. 328. No affidavit as to the abatement is required, ibid. Notice required to be given of motion for order of revivor by a creditor not party to the suit, Lowes v. Lowes, 16 Jur. 968, 991, infra. Formerly the section held applicable only where no more than the usual order to revive required. In Wilding v. Richards, 1 W. R. 15, order to revive and carry on account against the representative of an accounting party was refused. In Dean of Ely v. Edwards, 22 L. J. 629, in making an order to revive. Court would not direct account against executors. In Yates v. Light- head, U Jul. 96i; 22L.J.9; S.C., Tatev.Leithead,9 Hare, App.51; 1W.R.4, supplemental claim against executors of deceased executor and administrator de bonis non of testator was held necessary against administrator of deceased de- fendant, Heath v. Chapman, 17 Jur. 570 ; now an order may be had with di- rection for the representatives to account, Edwards v. Batley, 19 Beav. 457 ; 23 L. J. 872; Cartwright v. Shepheard, 20 Beav. 122. Order to revive and carry on decree against representatives of accounting party, Grimston v. Oxley, Seton on Decrees, 601 ; Wright v. Pickstock, ibid. Order to revive against re- mainderman on death of tenant in tail held sufficient, Oreawell v. Bateman, 6 W. R. 206, 220. Order to revive for purpose of proceedings at cham- bers, where defendant died having appointed plaintiff his executor, Pedder V. Pedder, 5 Jur., N. S. 1145 i 8 W. R. 15 ; 29 L. J. 64. Executors defendants held liable to costs of a supplemental suit instituted in consequence of their re- fusal to pay under the common order to revive a sum decreed to be paid by their testator,, Collard v. Roe, 29 L. J. 329 ; 5 Jur., N. S. 1242 ; 8 W. R. 39. Notwithstanding the decision in Edwards v. Batley, supra, a bill may be filed where there is danger of the order to revive proving ineffectual, ibid. Where sole plaintiff becomes bankrupt his assignees may have an order to revive under tfais section, Jackson v. Riga and Dunaburgh Railway, 29 L. J. 571* As to supplemental bill to bind judgment creditors by a decree for sale in a suit by mortgagee, see Knight v. Pococlt, cited in note to Ord. 23, r, 1 8. After plaintiff's death, pending demurrer for want of equity, bill of revivor and supplement may be filed to have the demurrer disposed of, Bampton v. Birchall, 5 Beav. 350 ; on appeal, 1 Ph. 568 ; 14 L. J. 322 ; 9 Jur. 587. Sect. 52 applied to suits by claim, Martin v. Hadlow, supra. In Commerell v. Hall, 2 Drew. 194; S. C, Commerell v. Bell, 18 Jur. 141, it was said that new parties could not be brought before the Court by supplemental statement, nor could such statement be filed after decree, but see Notley v. Palmer, infra. Supplemental order before decree against infant born after bill filed, Pickford V. Brown, 1 K. & J. 643. Order for supplemental decree obtained on birth of a beneficiary or necessary party, FuUertm v. Martin, 1 Drew. 238 ; order obtained to carry on decree for benefit of infant bom just before or after hearing, Jebb v. Tagwell, 20 Beav. 461 ; 24 L. J. 670; Barrett v. White, 3 W. R. 526; Phippen v. Brown, 19 Jur. 698; Notley V. Palmer, 19 Jur. 221 ; Martin v. Hadlow, ubi supra ; order obtained on marriage of female defendant after replication against her husband, with leave 238 Oedee XXXn.— Revitoe and Supplemekt. [98] for her to name next fiiead, Trezevant v. Broughtm, 5 W. R. 517 i order against the trustees of married woman's settlement, Athinsm v. Parker, 2 De G., M. & G. 221 ; 16 Jur. 1005. Order on consent to revive the suit against plaintiff married after decree and her husband, with benefit of accounts which had been taken as if the suit had not abated, Powell v. Heather (L. T.) 8 W. R. Dig. 61. In creditor's suit, on decease of defendant whose estate was affected, order to revive was obtained against his devisee, Lowe v. Watson, 1 Sm. & G. 123. Where mortgagee co-plaintiff died before decree, the suit was revived by order against his executors and devisees, Hall v. Clive, 20 Beav. 575. Where the tremsmission of interest was by a sole plaintiff, order to revive against his de- visee refused, Dendy v. Bendy, 5 W. R. 221. Order obtained by plaintiff's representatives on his decease after the bearing but before decree which dis- missed the bill with costs, Petre v. Petre, 1 W. R. 362. In Morritt v. Walton, 2 W. R. 544, and Jaclcson v. Ward, 7 W. R. 426, orders to revive on death of sole plaintiff were made after decree ; and in Floekton v. Slee, 7 W. R. 393 ,- 5 Jut., N. S. 422, 1090, before decree. See Ord. 32, r. 4. See as to the conflict of authorities, Gilbert v. TomlinsoUfSyf. R. 467, where it was held that the section is applicable to the case of a devisee of a sole plaintiff. Where the whole interest of the plaintiff determined by his decease without issue, a bill in the nature of a bill of revivor and supplement was held necessary. Watts v. Watts, 1 John. 631. By consent of representatives of deceased plaintiff, order for surviving plaintiff to prosecute the decree. Smith v. Hor^all, 24 Beav. 331. On bankruptcy of plaintiff in a creditor's suit, creditor whose debt found due may revive under this section, Lowes y. Lowes, 22 L. J., N. S. 179 ; 2 DeG., M. & G. 784 ; on appeal from S. C, 16 Jur. 968, 991 ; English v. Hayman, 9 Hare, App. 88. Where prior incumbrancers omitted to be made parties, a supplemental bill required, Wilson v. Ouchterlony, Seton on Decrees, 606. Order of revivor and supplement against executors and devisees of deceased co-plaintiff. Hall v. Clive, 20 Beav. 575. Suits do not abate by decease or removal of assignees of bankrupts and in- solvents, see 12 & 13 Vict i:. 106, s. 157 ; 1 & 2 Vict. c. 110, e. 53 ; Lloyd v. Waring, 1 CoU. 536; Man V. Ricketts, 7 Beat. 484; 1 Phill. 617 ; Sladden v. De Lasaux, S W. R. 499. These provisions do not apply to a defendant assignee, Menkam v. Robinson, 1 My. & K. 217 ; Man v. Ricketts, ubi supra. Supplemental order under 15 & 16 Vict c. 86, s. 52, granted of course to sub- stitute assignee of defendant assignee, Gordon v. Jesson, 16 Beav. 440 ; 22 L. J. 328. Order obtained by the plaintiffs' assignees under the Scotch Bankruptcy Act of 1866, Macdonald v. Macfarlane, 6 W. R. 245. Order to prosecute suit against assignees of defendant become bankrupt after appearance. Lash v. Miller, 4 De G.; M. & G. 841 ; 1 Jur., N. S. 457 ; 3 W. R. 397. So where defendant became bankrupt after answer and before decree, Cochrane v. Phillips, 3 W. R, 461. Suits do not abate by death or change of officers or members of industrial and provident societies, 17 & 18 Vict c. 26 ; nor, where administration granted to the solicitor of the treasury, by his death or removal, 16 & 16 Vict c. 3 ; nor by [98] Okdek XXXn. — Eevivok and Supplement. 239 death, resignation, nor removal of the public registered officer, or other public officer of a banking company, 7 Geo. IV. c. 46, s. 9 j nor on death, resignation or removal of the official manager of any company under the Joint Stock Com- panies Winding-up Act, 11 & 12 Vict. u. 45, s. 52. Supplemental order under this section can be obtained before decree. Lash v. Miller, supra (where assignee had leave to answer if so advised) ; Pickford v. Broum, supra ; Hall v. Clive, 20 Beav. 575. But see the earlier cases. Price v. Bamblett, I W. R. 363 ; Watson v. Loveday, 3 W. R. 386 ; Heath v. Lewis, 18 Beav. 527. Supplemental bill is necessary, and sect. 52 does not apply where one of the defendants dies before appearance, Williams v. Jachsoti, 7 W. R. 104; S Jur., N. S. 264 ; and where the sole defendant dies before appearance an original bill is necessary, Bland v. Damson, 21 Beav. 312. Order obtained ten years after demurrer allowed with liberty to amend, Deeks v. Stanhope, 24 L. J. 580 ; 1 Jut., N. S. 413. As to time barring the right to revive, see Alsop v. Bell, 24 Beav. 451. Notwithstanding the earlier cases of Cross v. Thotnas, 17 Jur. 336 ; Foster v. Menzies, 17 Jur. 657, it was held by Vice-Chancellor Wood, after conference with the other Judges, that appearance need not be entered by plaintiff for de- fendant failing to appear after the order to revive. Ward v. Cartuiright, 17 Jur. 781 ; 10 Hare, 83. In Seton on Decrees, p. 605, this case is considered to have settled the practice. In Sid. Smith, Ch. Pr. 282 (see p. 735), this is doubted. In Hanbury v. Ward, 18 Jur. 222, appearance for the defendant was held un- necessary after the order to revive had become absolute. An application to discharge the order after six months had elapsed was refused with costs, Deeks v. Stanhope, 24 L. J. 580 ; 1 Jur., N. S. 413. Supplemental Statement. 2. Where the plaintifF in any cause, which is not in such a state as to allow of an amendment being made in the bill, desires to state or put in issue any facts or circumstances which may have occurred after the institution of the suit, he may state the same, and put the same in issue by filing in the Record and Writ Clerks' Office a statement, either written or printed, to be annexed to the biU ; and such proceedings by way of answer, evidence and other- wise, shall be had and ta^ken upon the statement so filed as if the same were embodied in a supplemental biU : provided always, that the Court may make any order which it shall think fit for accele- rating the proceedings thereunder, or proceedings therein, in any manner which may appear just and practicable. (7th Aug. 1852, 1st Set, Ord. 44.) By 15 & 16 Vict. c. 86, s. 53, " It shall not be necessary to exhibit any sup- plemental bill in the said Court for the purpose only of stating or putting in issue facts or circumstances which may have occurred after the institution of any suit, but such facts or circumstances may be introduced by way of amend- ment into the original bill of complaint in the suit, if the cause is otherwise in such a state as to allow of an amendment being made in the bill, and if not, the 240 Obdeh XXXn.— Eevivoe and Supplement. [98] plaintiff shall be at liberty to state such facts or circumstances on the record in such manner, and subject to such rules and regulations with respect to the proof thereof, and the affording the defendant leave and opportunity of answering and meeting the same, as shall in that behalf be prescribed by any general order of the Lord Chancellor." This enactment was necessitated by the contradictory decisions, Crompton v. Womhwell, 4 Sim. 628 ; Colclough v. Evam, ibid. 76, and overrules the latter, Bolton V. Risdale, 2 W. R. 451. In Colclough v. Evans, it was held that plain- tiff could not, in Crompton v. Womhwell that he could, file a supplemental bill for putting in issue facts discovered after the original suit was at issue. As to amendment after replication, see Ord. 9, r. 15. After allowance of plea that plaintiff's estate was vested in assignee in insol- vency, a month was allowed to obtain revesting order and amend the bill ac- cordingly, Tudway v. Jones, 1 E. & J. 691 ; 24 L. J. 507. This section applies to petitions, Robinson v. Heuietson, I W. R. 100, where, after marriage of female petitioner, petition amended without &esh stamp. Supplemental bill required, where in an administration suit a question arose between co-plaintiffs and defendants were interested, Montefiore T. Guedalla, 8 W. R. 53. Where plaintiff becomes lunatie after suit commenced, b supplemental bill will probably still be necessary, Darnell's Ch. Fr. 86. Circumstances occurring after an order was made and before it was drawn up, and affecting the order, cannot be stated under this section. Re Keen, 7 W. R. 577. Amendment by introducing, when the cause was ripe for hearing, state- ments which contradicted the statements made by the bill, not allowed, Tliomp- son V. Judge, 2 Drew. 414. Leave given to amend after hearing, and shortly before trial at law, by adding newly-discovered facts to render the trial unnecessai^, Bolton v. Risdale, 24 L. J. 70; 2 W. R. 451 ; on appeal, ibid. 488. A supplemental statement cannot be filed after decree ; nor can it be filed before decree, for the purpose of bringing forward new parties, Commerell v. Hall, 2 Drew. 194 ; Commerell v. Bell, 18 Jur. 141 ; 23 L.J. 631 ; 2 W. R. 285. In Hart v. Tulk, 2 W. R. 131, defendant having died after decree, a supple- mental statement was filed under the order here incorporated, and the Lord Chancellor held that thereupon a supplemental decree under sect. 52 was of course. Supplemental bill may be amended by stating abatement and praying revivor of the original bill, without order to revive under the previous section (s. 52), Heath v. Lewis, 2 W. R. 641. Sect. 53 does not apply to bring new parties before the Court before decree, Williams v. Jackson, 7 W. R. 104 ; 6 Jur., N. S. 264. In Heath y. Chapman, 17 Jur. 570, an administration suit, a supplemental bill against the administrator of a defendant dying, after reference'^to the Master di- rected, was considered necessary. The Coturt will not, on application of defendant, direct plaintiff to make a supplemental statement, Langdale v. Gill, 16 Jur. 1041, Defendant having the conduct of a suit cannot file a supplemental statement. [98] Okdee XXXn. — Revivor and Supplement. 241 Zee V. Lee, 9 Hare, App. 91 ; but may file a supplemental bill without notice to the plaintiff, S. C, 10 Hare, App. 72 j on appeal, 17 Jur. 607; 22 L. J. 862. On the ground that sect. 52 applied only to orders obtained after decree (but as to which see notes to previous rule), it was held that where defendant became bankrupt before decree, his assignees could not be made parties by supple- mental statement under sect. 53, Heath v. Lewis, cited in notes to the previous rule. Whether they could be made parties by amendment, quiere ; see note to s. a Supplemental bill, with the original bill annexed as a schedule, Grey Coat Hospital V. Westminster Commissioners, 2 De G. & J. 61 ; 27 L. J. 52 ; 6 W. R. 120. Judgment creditors who refuse to come in under a decree may be brought before the Court by supplemental bill. Knight y. Pocock, cited Ord. 10, 1. 11. Contents of Sills to revive or Supplemental Bills. 3. It shall not be necessary in any biU to revive a suit, or in any supplemental bUl, to set forth any of the statements in the plead- ings in the original suit, unless the special circumstances of the case may require it. (26th "Aug. 1841 ; Ord. 49.) The order applied to abatements prior to it, Williams v. Davis, 12 Jur. 322. The title to revive must still be shown, Griffith v. Ricketts, 3 Hare, 476. See Phelps V. Sproule, 4 Sim. 318. Where after cause heard and judgment pronounced, an information was filed against new trustees of a charity, praying the benefit of the former proceedings against them, it was held that the new information put in issue all the facts stated in the original information, Attorney-General v. Foster, 2 Hare, 81. Revivor against legal Representative of Plaintiff . 4. Whiere a suit abates by the death of a sole plaintiff, the Court, upon motion of any defendant made on notice served on the legal representative of the deceased plaintiff, may order that such legal representative do revive the suit within a limited time, or that the bill be dismissed. (8th May, 1845; Ord. 63.) The order here incorporated settles the practice in accordance with the pre- vious case of Chouiick v. Dimes, 3 Beav. 290, where a sole plaintiff having died, the Court, on the application of the defendant, ordered that the administrator should revive or the bill be dismissed with costs. In the previous case of Canham v. Vincent, 8 Sim. 277, and in the later cases of Dryden v. Walford, 1 y. & C. 255, and Lee v. Lee, 1 Hare, 617, such orders were refused. Where one of several plaintiffs died, order that the survivors revive the suit ; in default the bill to be dismissed, Adamson v. Hall, Turn. & R. 258 ; on appeal, Chichester v. Hunter, 3 Beav. 491. In Saner v. De'atien, 16 Beav. 30, subsequently to the order here incorporated the surviving plaintiffs were required to revive or their bill to be dismissed, and that to prevent dismissal they must obtain ad- ministration to the deceased. C. B 242 Obdeb XXXn.— Reviyob and Scpflement. [98] On abatemetat after decree by death of a plaintiff, defendants toay revive by supplemetatHl bill, Devaynes v. Morris, 1 My. & Cr. 225 ; see Lee v. Lee, cited in note to Ord. 3%, r. 2. On death of sole plaintiff, order to revive directed to be served on solicitors of defendants, who were very numerous, Morritt v. Walton, cited in note to Ord. 32^ r. 1. As to revivor by order under 15 & 16 Vict, c. 86, Is. S2, on death of a sole plaintiff; see S. C. in note to Ord. 32, r. 1. In creditor's suit if plaintiff die after decree, on default of his representadves doing so, any aeditor ex defendant may revive, Morritt v. Walton, vM mpra ; see Sutney v. M(^g.a>i> 1 Sim. & Stu. 358. Creditor desiring to revive a suit must give notice to the other parties, Lowes v. Lowes, 1 W. R. 14. Where defendant died after title found good in A suit for«pecific performance, order that plaintiff revive within six weeks or the bill be dismissed, Norton v. White, 2 De G., Mac. & Gor. 678. Where, after notice of motion by deceased defendant's executor to revive or dismiss, a bill of revivor was filed, the execu- tor's costs of the day were refused. Reeves v. Baicer, cited in note, ibid. Order obtained where defendant put in a vdunfaiy answer, Puige v. Pitts, 3 W. R. 100. " Legal representative " in this order means the heir where freeholds are the subject of the suit, Price v. BerringUm, 11 Beav. 901 ; where after decree an order was made to stay proceedings, unless the suit were revived within a limited time ; but in Mills v. Dudgeon, 1 W. R. 515, such order refused. Defendant cannot obtain an order that plaintiff's executors may revive the suit, or that in default an dnjunction to restrain an action be dissolved, Oldfield V. Cobhett, 20 Beav. 563. As to entry of abatements by the registrar, see Ord. 21, rr. 7 & 8- 'Order XXXllt. [99] MOTIONS. I. iNoTicis OP Motion. Notices of Motion must name the Judge. 1. Every notice of motion intended to be made "before any iJ'udge ribffll 'fepress that tbe same is inte&ded to be made before that Judge. (13th Dee. 1814.) See as to service of notice of motion, Ord. 3j rr. 2 & 8. See as to cost of an abandoned motion, Ord. 40, r. 23. See as to evidence on motions notes to Ords. 18 & 19, r. 13. See as to the Judge before whom motions are to be heard, Ord. 6, r. 5. See as to signature of notice of motion by pauper, Ord. Z, r. 10. See as to interlocutory applications, Darnell's Ch. Pr. 1188, 1191. See as to motion to commit for breach of ii^unction, Ord. 29, x. 1 j Ord. 23, r. 10 i Sid. Smith, 139. [99] Notices of Motion. 243 A motion of course eannot be opposed though notice of it be given, Eylea V. Ward, Mos. 2a5 ; and see as to such motions, Ord. 6, rr. 9 & 10, The Court will not on motion decide the principal point in a cause, Like v. Berres/ord, 3 Bro. Ch. Ca. 360 ; Nedby v. Nedby, 4 Myl. & Cr. 367i nor divide a fund in Court between the parties in pursuance of a compromise, Spencer v. Mostyn, 11 Jur. 234 ; nor enforce the terms of a compromise, Fsrsyth v. Manton, 5 Madd. 78. See as to the jurisdiction to enforce a compromise, Dcffuscm v. Newsome, 8 W. R. 725, and the cases there cited. On motion proceedings stayed where defendant offered to comply with plain- tiff's demand in the suit, Helden v. Kgnaston, 2 Beav. 204. Motion for an injunctiDn held abandoned by amending the bill pending the motion, Monypenny v. , 1 W. R. 99. See Hawes v. Bamford, cited in first note to Ord. 18, Brogks ». Purton, 1 Y. & C. 278. On motion in a patent suit for leave to proceed at law plaintiff must file an affidavit of his belief of the novelty of the invention snd the validity of the patent, Mayer v. Spence, 1 John. & H. 87; 1 Drew. & Sm. JIO. In notice of motion in a cause the tide, &c. must be correctly stated, Sosvlatt Y. Cattell, 2 Hare, 186 j Moody v. Hebherd, U Jur. 941 ; Davis v. Barrett, 7 Beav. 171 (where liberty was given to amend the notice and reswear ithe affi- davit); Pollard V. DoyU, 2 W. R. 509. If notice given by special leave that must be stated in the notipe. Hill v. Rimell, 8 Sim. 632 ; Harris v. Lewis, 8 Jur. 1063 j Jacklin v. Wilkins, 6 Beav. 607. Notice of motion cannot be served on defendant before appearance without special leave, ibid. If the motion seek costs against the other party the notice should so express it, Mann v. King, 18 Ves. 297 ; Pratt v. Walker, 19 Beav. 261 ; but if thp respondent appear, the Court may award costs though not asked by the notice, Clark V. Jaques, 11 Beav. 623; Butler v. Gardener, 12 Beav. 525 ; Dawson v. Jay, 2 W. R. 598 ; Powell v. Coekerell, 4 IJpre, 572. Where notice simply to discharge an order, it was discharged for irregularity. Brown v. Robertson, 2 PhilL 173. Inrolment of decree opened on payment of costs, the moving party relying on the ground of irregularity which was not mentioned in the notice of motion, Lambert v. Hill, 1 Dr. & W. 74. Pending a demurrer plaintiff may serve a defendant with notice of motion, Wardle V. Claxton, 9 Sim. 412. Costs given to a party not served with a notice, but substantially a respondent, Shaw v. Forest, 20 Beav. 249. Where separate motions for objects which might have been a;ttained by one motion the moving party to pay the extra costs, Hawke v. Keiap, 3 Beav. 288. The party moving or the party opposing is entitled to his costs of a motion as costs in the cause accordingly as the motion is or is not successful ; on an unopposed motion the costs of both parties are costs in the cause. Memorandum by Sir J. Leach, 1 Sim. & St 357. See observations on that memorandum. Belts V. Clifford, 1 John. & H. 74. Where a bill in a patent suit is dismissed with costs, defendant is entitled to his costs of a prior iiflunction motion which stood over, ibid.; or which was granted, Stevem v. Keating, I M. & G. 659. See that case cited in note to Ord. 33, r. 10. b2 244 Oedek XXXm.— Motions. [99] Plaintiff pays the costs occasioned by a notice of motion by him which has been rendered ineffective by his subsequent amendment of the bill, London and Black- uiall Railmay v. Limehoute Board of Works, 3 K. & J. 123 ; see Ord. 40, r. 23. Time for Service of Notices of Moiion. 2. Unless the Court give special leave to the contrary, there must be at least two clear days between the service of a notice of motion and the day named in the notice for hearing the motion. And in the computation of such two clear days, Sundays and other days on which the offices are closed, except Monday and Tuesday in Easter week, shall not be reckoned. (8th May, 1845 ; Ord. 16, Art. 47.) The rule, Ord. 34, r. 2, as to petitions, is similar as to the hours for service ; see Ord. 37, r. 2. No order will be drawn up upon affidavit of service unless it be made and filed before the rising of the Court on the day of the motion, Lord Miltown v. Stuart, 8 Sim. 34. Leave to serve notice of modon on defendants before appearance does not include leave to give short notice of motion, Hart v. Tulk, 6 Hare, 611. Leave to serve notice of motion for receiver before appearance with subpoena to appear, iUd. See Meadon v. Sealey, and other cases cited in note to Ord. 24, r. 1. Leave to serve notice of motion for an injunction before bill filed refused, Simmons v. Heavyside, 22 Beav. 412. See Ord. 10, c. 1. In Parker v. Great Northern Railway, 4 De G. & Sm. 138, leave was given before biU filed, but after the subpoena had issued, to give notice of motion for injunction. After appearance, notice of motion for an injunction must be given excepting cases of extreme urgency, where the entry of appearance must be disclosed to the Court, Acraman v. Bristol Dock Company, 1 Russ. & My. 321 (where counsel was heard in opposition to the motion, though notice of it had not been given) ; Petley v. Eastern Counties Railway, 8 Sim. 483 ; Langham v. Great Northern Railway, 1 De G. & Sm. 486. Demurrer filed pending notice of motion for injunction ordered to be set down and argued instanter. Anon. v.Bridgewater Canal Company, 9 Sim. 378. See, as to plaintiff's undertaking, on obtaining interim injunction, to abide the order of the Court as to damages, notes to 21 & 22 Vict. c. 27, cited in notes to Ord. 41, sect. 4. Motion to dissolve an injunction to stay action not to stand over to give plaintiff time to cross-examine, Normanville v. Stanning, 10 Hare, App. 20. Where an order was obtained on affidavit of service on a party, and his counsel later in the day asked that the matter might again be moved, his brief not being shown to have been delivered when the motion was made, leave only given to move any day to discharge the order, Mapp v. Elcock, 17 Jur. 370 ; 22 L. J. 707. Motion to take a bill pro canfesso may be saved to the next seal without men- tioning it to the Court, Tmr v. Tarr, 1 John. 660. See, as to abandoned motions, Ord. 40, r. 23. [99] Notices of Motion. 245 Order on affidavit of service differing from the terms of the notice liable to he discharged, Hutton v. Hepworth, 6 Hare, 315 ; 12 Jur. 835 ; though some of the parties served had appeared on the motion. Ex parte Carew, 18 Jur. 339. It is sufficient to serve notice of motion on defendant's former solicitor where no order has been made to change the solicitor, Davidson v. Leslie, 9 Beav. 104 ; Wright v. King, 9 Beav. 161. See, as to costs of motions, Daniell's Ch. Pr. 1029; Sid. Smith's Ch. Pr. 146. See as to time of filing affidavits and cross-examination thereon, notes to 15 & 16 Vict. c. 86, s. 40, cited in notes to Ord. 19, r. 13. Time for Service of Notice of Motion for a Guardian to defend Suit, 3. There must be at least six clear days between the service of a notice of motion by the plaintiff for the appointment of a guar- dian by whom a defendant who is an infant or a person of weak intellect or unsound mind may defend the suit, and the day named in the notice for hearing the motion. (8th May, 1845 ; Ord. 16, Art. 48.) See as to assignment of guardian of such defendant, Ord. 7, r. 3. In the six days here mentioned Sunday was formerly reckoned, Brewster v. Thorpe, 1 1 Jur. 6 J but now see Ord. 37, r. 11. H. Motion fob Deceee undeh the Stat. 15 & 16 Vict. c. 86, s. 15. By 15 & 16 Vict. c. 86, a. 15, "The plaintiff in any suit commenced by bill shall be at liberty at any time after the time allowed to the defendant for answer- ing the same shall have expired (but before replication), to move the Court upon such notice as shall, in that behalf, be prescribed by any general order of the Lord Chancellor, for such decree or decretal order as he may think himself entitled to, and the plaintiff and defendant respectively shall be at liberty to file affidavits in support of, and in opposition to, the motion so to be made, and to use the same on the hearing of such motion ; and if such motion shall be made after an answer filed in the cause, the answer shall, for the purposes of the motion, be treated as an affidavit." Sect 16. i' Upon any such motion for a decree or decretal order, it shall be discretionary with Court to grant or refuse the motion, or to make an order giving such directions for or with respect to the further prosecution of the suit as the circumstances of the case may require, and to make such order as to costs as it may think right." By the preceding section 13 of the statute (cited ante, first note to Ord. 15) it is provided, " that if the Court shall grant any further time to any defendant for pleading, answering or demurring to the bill, the plaintiff's right to move for a decree under the provisions hereinafter contained shall, in the meantime, be suspended." As to motion for decree, see Dan. Ch. Pr. 660 ; Sid. Smith's Ch. Pr. 375. As to filing replication where proceedings are not taken under the above- cited sections, see Ord, 17. 246 Obdee XXXm.— Motions. [99] Prrceedings ma;^ be had under the above Section 15, though the bill was ffled before the Act passed, Cmsina v. Vaiey, 9 Hare, App. 31. In a Euit commenced nnder the old practice, where time for answering was expired, and some of the defendants not having answered, a travening note had been filed, voluntary answer could not be put in after notice of motion for decree, and plaintiff was entitled to a certificate for hearing the motion, Janet v. Howell, 3 W. R. 559 ; 24 L. J. 521. The notice required by Section 15 may be served on a defendant out of the jurisdiction, 'Meek v. Ward, 10 Hare, 55. After motion for a decree it seems that plaintiff cannot except for insu£S- ciency. As to the evidence to be used on the bearing of the motion, see notes to next rule. After filing traversuig note-against one defendant, plaintiff may move for de- cree, and is entitled to a certificate from the Record and Writ Clerks of the filing of the note, end the answer of the other defendant, in order to enter the cause for rc'^hearing with the Regisbrar, Mani&re v. Lester, S De G., M. & G. IB. ^ As to settiiig do?m notices of motion, see Ord. 33, i^. 9. Motion for decree may, upon certiiicate of counsel, be heard as a short cause, Ames v. Amei, 16 Hare, App. 54 ; 22 L. J. 1005. On motion for decree replication should not be filed, Difffkld V. Slurgtt, 9 Hare, App. 87 ; 22 L. J. 288 ; Blake v. Cox, 1 W. R. 124. Declaration of right on motion for decree, Serruucom t. Atkinsim, Seton on Decrees, 82 & 89. It is not unusual by consent to convert a motion for an injunction into a motion for a decree, Seton on Decrees, 450. In such case, motion must be set down by order to save the month's delay, QrSen v. Low, 22 Beav. 895. Motion under this section for a reference to chambers to inquire as to the state of mind of an infant cestui que trust refused, Adams v. Smyth, 22 L. J. 968. The Court may on motion for decree refuse the motion and leave the cause to come on for heariag, Thoma* v. Bernard, 7 W. R. 86 ; S Jur., N. S. 31. Decree made on motion is varied on petition of appeal, Ord. 31, r. 8. Defendant was added by leave at the hearing ; notice of motion for decree allowed to be gives to Mm in order that the cause might be heard against all the defendants together, Gwyon v. Guiyon, 1 K. & J. 211. It seems that the Court cannot make any other decree than that asked for by the notice of motion, but on a motion for a decree according to the prayer of the IhII, the same relief may be granted as upon the hearing of a cause, Norton v. Steinkagf, 1 Kay, 45, App. V). Notice. 4. OtiB ttoniii's ttotice shall be gi^iai by the plamtiff to the defisncLflbt, of a molioii under the Stat. 15 & 16 Yict. c. 86, s. 15, for a decree or decretal order. (7th Aug. 1862, 1st Sel» Ord. 22.) [99] Motion for Dbcbee, ktc. 247 The cause will not be set down after the month, except on motion with notice. See note to Ord. 33, r. 9. By consent the cause may be heard before ^^ expiration of the month, Loinstmrth v. Rxmley, IQ Hare, App. 55. Plaintiff's Affidavits. 5. The affidavits to be used in support of such motion shall ba filed before the service of such notice, and a list of such affidavits shall be set forth at the foot of such notiee. (7th Aug. 1852, Isli Set, Ord. 23.) On motion for decree, the answer of a defendant may he read against him< ' self without notiee. Cousins T. Vasey, 9 Hare, App. 61 ; 1 W, R. 161. But the answer cannot be read against another defendant, Truck t. LttniprtU, 3 W. R. 193 ; at least unless the latter ba^ the right to cross-examine, Rehden or Rhe^en T. Wesley, 26 BeaT. 433 ; 28 L. J. 797 ; where plaintiff having given notice of his intention to use defendant's answer had leave to cross-examine on it without prejudice to other defendants objecting at the hearing to such cross-examination being read against them ; after notice of motion for decree, plaintiff cannot examine witnesses in chief, ilAd. It is discretionary whether copies of plaintiff's affidavits be served. Meek T. Ward, 10 Hare, App. 55. The motions may he ordered tq stand over, to enable a party to prove a docu- pient, Raworlh v. Parker, 2 K. & J. 163. Documents may be proved on motion for decree at the hearing as exhibits, Woodbum v. Grant, 22 Beav. 483. See 15 & 16 Vict, c 86, s. 40, cited ante in notes to Ord. 19, r. 13, as to power of any party in any cause or matter to examine witnesses orally, and to cross-exetmine parties making affidavits. Defendant may cross-examine plain- tiff under this section, Williams v. Williat^, 17 Beav. 156, cited jn note to Ord. 19, r.I3,g.ti. Underth.e steitute, a subpioena may be issued for attendance of wit- ness on motion for decree, Wigan v. Rowland, 10 Hare, App. 18 ; and an applica- tion to the Court for the purpose is not necessary, Wilhelm v. Reynolds, 8 W. R. 626. Where, aft» notice of motion, defendant gave important evidence in another cause, plaintiff had leave to use it and defendant to explain i^ Watson v. Cleaver, 20 Beav. 137. Semble, witnesses may be examined eraUy for the purpose of a motion for a decree, Pellatt v. Nichols, 24 Beav. 298 j S W. R. 724 ; but not where they were not named in the notice of motion, Rehden v. Wesley, uU supra. Defend- ant's answer has little weight as an affidavit unless plaintiff has had an oppor- tunity of cross-examining him, Whiteman v. Wheelton, 23 Beav. 397 ; 3 Jur., N. S. 124 ; 5 W. R. 837. Defendant allowed to read his answer at an affi- davit on motion for decree vitbojut ffi^king it an exhibit. Barrack v. WCalloch, 3 K. & J. 110; aee Hotfiell v. Williams, 1 Sma. & Giff. App. HI- Plaintiff m^j read defendant's answer without mitice, but the defendant may not, unless plain^ re^ part of it ; ^aiiitfff and defendant cannot read againf t 248 Oedee XXXin.— Motions. [99] each other the answer of another defendant without notice, Stephen/ v. Heath- cott, 8 W. R. 336 i 29 L. J. 529. Defendant's Affidavits. 6. The defendant, within fourteen days after service of such notice, shall file his affidavits in answer, and deliver to the plaintiff or his solicitor a list thereof. (7th Aug. 1852, 1st Set, Prd. 24.) The Court will not enlarge this time to enable defendant to cross-examine plaintiff's witnesses, Lady Londonderry v. Bramwell, Z %.. & 3. 162; 5 W. R. 247. See as to the extension of the time when the period limited expires in the Long Vacation, Ord. 37, r. 15. Six weeks allowed to defendant in America for filing his affidavits. Meek v. Ward, 10 Hare, 55. Plaintiff's Affidavits in Reply — Costs. [100] 7. Within seven days after the expiration of such fourteen days or other period for which the time for filing the defendant's affi- davits has been enlarged, the plaintiff shall file his affidavits in reply, which affidavits shall be confined to matters strictly in reply ; and he shall deliver to the defendant or his solicitor a list thereof; and except so far as these affidavits are in reply, they shall not be regarded by the Court, unless upon the hearing of the inotion the Court shall give leave to the defendant to answer them ; and in that case the costs of such affidavits, and of the fur- ther affidavits consequent upon them, shall be paid by the plain- tifij unless the Court shall otherwise direct. (7th Aug. 1852, 1st Set, Ord. 25.) A party cannot insist as of right to have the cause stand over at the hearing because the time limited for closing evidence has not elapsed, Bourdillon v. Baddeley, 26 Bear. 255 ; 7 W. R. 3. See as to the extension of the time when the period limited expires in the Long Vacation, Ord. 37, r. 1 5. Further Evidence. 8. No fiirther evidence on either side shall be used upon such' motion for a decree or decretal order without leavg of the Court. (7th Aug. 1852, 1st Set, Ord. 26.) The application cannot be made ex parte, Sichardi v. Curleteis, 18 Beav. 462. Defendant not allowed to file afiidavits in reply, ibid. See Watson v. Cleaver, in note to Ord. 33, r. 5. A party may be cross-examined up to the time of hearing, Bedwell v. Prudence, 8 W. R. 702. Entering of Notices of Motion — Order of Searing, 9. Every notice of motion for a decree or decretal order shall be set down with the Registrar in the cause-book with the causes, and shall come on to be heard accordingly, unless the Court shall oliierwise du-ect. (7th Aug. 1852, let Set, Ord. 27.) [100] Motions foe Decree, etc. 249 A motion for decree is set down among the causes on certificate of Record and Writ Clerks that the cause is in a fit state to entitle defendant to move for B decree, Drewt. Long, 17 Jur. 173. Thereupon the notice of motion is entered at the Register Office, Boyd v. Jaggar, 10 Hare, App. 54 j 22 L. J. 895 ; 17 Jur. 655. Where a month elapsed without such entry, cause not to be set down except on notice of motion, ibid. ; Gill v. Rayner, 1 E. & J. 395 ; 3 W. R. 366 ; where it was held that plaintiff might have the common order to amend three months after the notice of motion for decree, the motion not having been set down. Plaintiff's solicitor on setting down the cause should notify when the month wiU expire, Jnon. 3 Jur., N. S. 434, 584. m. Motions to dismiss Bills. See as to amendment after notice of motion to dismiss, Ord. 9, r. 12. As to motion on part of plaintiffs or defendants to dismiss bills, see Daniell's Ch. Pr. 632 J Sid. Smith's Ch. Pr. 364. As to dismissal by the plaintiff or defendant being a bar to another suit, see Ord. 23, r. 13. As to the hours within which notice of motion to dismiss may be given, see Ord. 37, rr. 2 & 9. On motion by plaintiff to dismiss the Court may refer to evidence on a former moti(fti in the cause, and may dismiss the bill without costs where plaintiff has been misled by a decision of the Court, Lister v. Leather, 3 Jur., N. S. 848 i 1 De G. & J. 361. The Court will look at the record and other facts to judge whether a bill should be dismissed without costs, but will not so dismiss it in the absence of defendants, against whom the bill has been dismissed for want of prosecution, Trouiard v. Attteood, 27 Beav. 85. On plaintifi^s motion the bill is sometimes dis- missed without costs on account of defendant's conduct, Knox v. Broum, 2 Bro. C. C. 185 ; Blanshard v. Drew, 10 Sim. 240 ; Gooday v. Sleigh, 3 W. R. 87 ; 19 Jur. 201 ; Wright v. Barlow, 5 De 6. & Sm. 43 ; or where the suit was instituted on the authority of a decision subsequently reversed, Sutton Harbour Company v. Hitchens, 15 Beav. 161 ; but defendant is not liable to pay plaintiff's costs, ibid. I S. C. on appeal, defendant had his costs of the motion to dismiss, 1 De G., M. St G. 161. A bill for discovery is never dismissed for want of prosecution, Woodcock v. King, 1 Atk. 286 ; nor a suit for a receiver pendente lite. Barton v. Rock, 22 Beav. 81 ; Edwards v. Edwards, 22 L. J. 1055 ; nor a bill to perpetuate testi- mony, Wright V, Tatham, 2 Sim. 459. Where a bill of discovery varied from the usual form by praying for " such other orders " as the csise might require, an application to dismiss it for want of prosecution was refused without costs, South-Eastern Railway Company v. Submarine Telegraph Company, 23 L. J, 1 83 ; 17 Jur. 1044; 2 W. R. 31. See James v.Herriott, 6 Sim. 428. See as to bills of discovery, Ord. 40, r. 14. After decree or decretal order not merely directing inquiries, bill cannot be dismissed. Block v. Colnaghi, 9 Sim. 411 ; even by consent, where creditors may take the benefit of the decree, Lashley v. Hogg, 1 1 Ves. 602 ; Hansard v. Storie, 2 S. & S. 196. See as to dismissal against some of the defendants jointly and severally liable, London Gaslight Company v. Spottiswoode, cited in note to Ord. 7, r. 2. In Chaffers v. Baker, 5 W. R. 326, 515, where cestuis que trust had 250 Obdeb XXXm.— Motions. [100] been irregularly dismissed, plaintiff was ultimately allowed, on waiving all re- lief against them, to proceed ^^ainst the other defendants. Generally each defendant may move independently of the others and of the state uf the proceedings as to them, Letter v. Archdale, 9 Bear. 1S6 ; Janet r. Morgan, 12 Jur. 888 ; 16 L. J. 36S. Delay occasioned byother defendants no answer to motion to dismiss, iHd. Motion to dismiss refiised where moving defendant's solicitor appeared also for another who was not in a position to dis- miss, WUahrop V. Murray, 7 Hare, 150. Defendant having taken benefit of the Insolvent Act may dismiss, Levi at Lever v. Heritage, 26 Beav. 560 ; 5 Jur., N. S. 215. Bill dismissed without costs where defendant insolvent, Blanthard v. Drew, 10 Sim. 240. If notice given too early, the defect is not cured by accidenteil postponement of the motion, De Geneve v. Hannam, 1 R. & M. 494. Where notice given for a day, not a seal day, and before next seal plaintiffs replied. Court refused to give defendant his costs, Steedman v. Poole, 11 Jur. 555. Fending exceptions to answer for impertinence, defendant may move to dis- miss, Stuart V. Lloyd, 1 Sim., N. S. 56. Fending a reference for title, motion to dismiss irregular, Gregory v. Spencer, 11 Beav. 143; Collim v. Greavet, 5 Hare, 596. Also pending a reference of the amount due on a mortgage, ibid. Also pending leave to amend, Emerson v. Emerson, 6 Hare, 442 ; 12 Jur. 973 ; but after default of amendment, order to dismiss obtained by defendant with- out notice held regular, Dobede v. Edwards, 11 Sim. 454. An offer to dismiss without costs no answer to the motion, Lancashire ^ Yorkshire Railway Company v. Evans, 14 Beav. 529. A bill may be dismissed for want of prosecution while the plaintiff is an out- law, Knowles V. Rhydyfqfed Colliery Company, 1 John. 630; 8 W. R. 159; see Ord. 14, r. 5. Before the Ord. of 13th April, 1847 (Ord. 9, r. 12), order to amend obtained after notice of motion to dismiss, but before the hearing, was an answer to the motion, but plaintiff paid defendant's costs of the motion, Lester^. Archdale, 9 Beav. 156. On motion to dismiss, the plaintiff will not have leave to amend without evidence or consent of defendant, Freeston v. Clayton, 22 L. J. 640. Leave to amend was refused on such motion in Hancock v. Sollison, 8 W. R. 18. If after the notice, and before the hearing of the motion, plaintiff file repli- cation, the only order is that he pay the costs of the motion. Carry v. Curletaii, 8 Beav. 606 ; Young v. Quincey, 9 Beav. 160. Defendant bringing on the motion after ' proper tender of costs by the plaintiff, will have to pay the costs, less 20»., Piper v. Bittern, 11 Sim. 282; Wright V. Jingle, 6 Hare, 107; 12 Jur. 84; but not where 20». costs are ten- dered late in the afternoon before the seals, or after defendant's brief delivered, Hughes V. Lewis, 1 John. 696 ; 29 h. 3. 424 ; 8. W. R. 292. There is no prac- tice as to 20<. being the proper tender, ibid. See iUd. observations on the remark in Sid. Smith's Ch. Fr. 698, that under the old practice replication filed on the same day as notice to dismiss had the precedence, Reynolds v. tfelsan, 6 Madd. 60. See as to filing replication, with reference to dismissal of bills and tran- sition to the practice under the Ord. of May, 1845, Lovell v. Blew, 13 Sim. 492-; [100] Motions to dismiss Bills. 251 9 Jnr. 1002 ; Ghter v. Powell, 9 Jur. 1054 j WhilwortH v. Whitwerth, 10 Jur. 3 ; Wheatley T. WheatUy, 7 Beav. 577. On motion to dismiss order to file replication within a given time, other> wise bills to be diaoissed. Earl ^ Aforniiigtoi v. Smith, 9 Beav. 251 ; Pearce v. Wrighton, 24 Beav. 253. Like order with option of moving for a deoreei fnUiamt V. Rowland, 3 Jur., N. S. 658. It is not essential to answer the motion to dismiss that replication should be filed before it is heard, ibid. Sometimes from considerations of equity or feimesa, when defendant moves to dismiss, the dismissal is without costs, Pinfold v. Pinfold, 16 Jar. 1081 i Kemball v. Waldrick, 1 8 Jur. 69 ; but not where the bill is filed precipitately, Haddou v. Pegler, S Jur., N. S. 1123. Where bill dismissed in consequence of non-service of subpceaa to hear judg> ment, the application should be on a fit case to restore the bill, Bartlett v. Barton, 17 Beav. 479. Bill may be dismissed for non-service of subpcena to hear judgment, though afier it was set down the suit abated, ffiltiams v. Page, 24 Beav. 490. On motion to dismiss, plaintifif, in the curcumstances, allowed fiirther time to go into evidence, Pollard v. Doyle, 2 W. R. 509. Plaintiff will be held to his undertaking to reply, unless he specially applies to be relieved from it, La Mert v. Stanhope, 5 De G. & Sm. 247. On his default bill dismissed with costs, Stephenson v. Mackay, 24 Beav. 252. Where under the old practice a defendant had acquired a right to dismiss, he lost it by subseqaendy allowiiig plaintiff to go into evidence, Femei v. Hutchin- ton, m. & M. 22. Time for Motion to dismiss for want of Prosecution. 10. Any defendant may, upon notice, move tke Court that the bill may be dismissed, with costs, for want of proseeuticm, and the C!oiirt may order accordingly, (1.) Where the plaiiidfi^ havmg obtained no order to en- large the time, does not, withia four weeks aStes the answer or the last of the answers required to be put in by such de- fendant is held or deeocied to be sufficient, or after the filing of a trarersing note against such defendant, file the repli- cation, or set down the cause to be heard on bill and answer, or set down a motion for a decree or decretal order, or obtain and serve an order for leave to amend the bill ; or (2.) Where the plaintifij having undertaken to reply to a plea filed by such defendaiit to the whole bill, does not file his replication within four weeks after the date of his under- taking; or (3.) Where the plaintifif having obtained no order to en- large the time, does not set down the cause to be heard, and obtain and serve a subpoena to hear judgment within four weeks after the evidence has closed. (Sth May, 1845, Ord. 114; and Ord. 16, Art. 37, 45.) 252 Okdee XXXin.— M0TI0K3. [101] With reference to the decisions on the Orders on which this Rule is founded, the following variations are to be noticed : — Article (l)ofthis Rule difFersfrom Art. (1) of Ord. 114 of 8th of May, 1845, by the insertion of the words " required to be put in by such defendant," and " against such defendant." Art. (2) of this Rule differs from Art. (2) of the same Order, by the insertion of the words " filed by such defendant." Art. {3) of the same Order is omitted in this Rule of the Consolidated Orders, but is referred to in the next Rule, Art. (3) of this Rule differs from Art. (4) of Ord. 114 of May, 1845, by sub- stituting the words " after the evidence was closed," for the words " after pub- lication has passed," Art (37) of Ord. 16th of May, 1845, referred to in this Rule, was as follows : — " The plaintiff (not obtaining an order for leave to amend his bill) must either file his replication or set down the cause to be heard on bill and answer, within four weeks after the last answer is deemed or found to be sufficient ; otherwise any defendant may move to dismiss the bill for want of prose- cution," Art. (45) of the same Order differs from Ord. (21), Rule 1, ante, in that the latter adds the words " or may set the cause down at his own req[uest, and may obtain a subpcena to hear judgment, and serve the same on the plaintiff." Art. (1.) The terms "the answer," and " the last of the answers," in the first Article of Ord, 114 of May, 1845, had not the same meaning as in the Orders on which Ord. 9, Rules 11 and 13 are founded, but meant the answer or last answer of any defendant seeking to dismiss, Dalton v. Hayfer, 7 Beav. 586; 9Jur. 1000; Slintm v. Tai/lor, 4: Hare, 608; lOJnr. 386; Spryev.Rustell, 11 Jur. 484. To prevent dismissal plaintiff must show not merely that there are out- standing answers, but that using due diligence he has been unable to get them in ; when further time may be granted, Dalton v. Hayter, and Stinton v. Taylor, uhi supra; Earl of Momingtan v. Smith, 9 Beav. 251. Mere negotiations with other defendants, no answer to motion to dismiss, Baldwin v. Darner, 1 1 Jur. 723 ; 16 L, J, 448. In such cases plaintiff should inform defendants entitled to dismiss, that there are outstanding answers, Adair v. Barrington, 2 W. R. 361. Defendant not prevented from dismissing merely by not giving notice of filing his answer, Jones v. Jones, 19 Jur. 863. Certificate of the answer being filed must be produced to the Registrar before the rising of the Court on the day of the motion, Freeston v. Clayton, 22 L. J. 640. By Ord. 118 of May, 1845 (not incorporated in the Consolidated Orders), defendant might not move to dismiss until the time for amending expired. See as to this, Preston v. Collett, 20 L. J. 228, cited in note to Ord. 9, r. 9. Where application by plaintiff for further time to close evidence was refused on the ground that he was an outlaw, the bill was afterwards dismissed for want of prosecution, Knowles v. Bhydyf^ed Company, cited in note to last Rule. Art. (2.) As to dismissal after plea allowed or held sufficient, see Ord, 14, Rules 16 and 17- [101] Motions to dismiss Bills. 253 Art. (3.) See Ord. 21, r. 1, as to dismissal after evidence dosed, and Ord. 19, r. 13, as to closing of evidence. A bill will not be dismissed during the time for cross-examination after closing the evidence in chief, Jenhyn v. Faughan, Dmoson v. Solomon, cited in note to Ord. \9, r. 13. Where, after publication passed, plaintiff obtained an order to enlarge the time for setting down the cause, and several months after the time expired, de- fendant moved to dismiss for want of prosecution, it was held that the bill might be dismissed under the order on which Ord. 21, r. 1, is founded, though the case was not within the Ord. 114 of May, 1845, on which this rule is founded, Whiffield v. Lequentre, 10 Jur. 1091. Order to amend becoming void. 11. Wtere the plaintiff obtains an order for leave to amend his bni, and, having obtained no order to enlarge the time, does not amend the bUl within the time limited by the order to amend, or, if no time be so limited, then within fourteen days from the date of such order, the order to amend shall be void, and the cause shall as to dismissal stand in the same position as if such order to amend had not been made. (8th May, 1845 ; Ord. 16, Art. 34 ; and Ord. 70 and 114.) An order to amend not drawn up nor served does not affect defendant's right to dismiss, Morris v. Owen, 1 Ves. & Bea. 523. In Marquis of Hertford v. Suisse, 7 Beav. 160 ; 13 L. J. 141, order of course at the Rolls to amend, ob- tained by plaintiff suppressing the pendency of a motion to dismiss, was dis- charged for irregularity. This Rule is substantially the same as Ord. 9, r. 24, except that the latter does not contain the words " having obtained no order to enlarge the time." Time for Motion to dismiss for want of Prosecution, where Bill amended after Answer, and no Answer required to Amend- ments. 12. Any defendant may upon notice move to dismiss the bill, with costs, for want of prosecution, where the plaintiff, after answer, amends his bill without requiring an answer to the amendments, and, having obtained no order to enlarge the time, does not file the replication, or set down the cause to be heard on bill and answer, or set down a motion for a decree or decretal order, within the times following ; viz., (1.) Within one week after the expiration of the time within which such defendant might have put in an answer, in cases where the defendant does not desire to answer the amendments. (2.) Within fourteen days after the reftisal to allow further time, in cases where the defendant, desiring to answer, has not put in his answer within the time allowed for that purpose, and the Judge has refused to allow further time. (3.) Within fourteen days after the filing of the answer, in 254 Obdeb XXXm.— Motions. [101] cases where the defendant has put in an answer to the amend- ments, unless the plaintiff has within such fourteen days ob- tained a special order for leave to except to such answer or to re-amend the bill. (8th May, 1845 5 Ord. 115 ; and Ord. 16, Art. 39, 40, 41.) The Order 115 of May, 1845, on which this Rule is founded, applied only where no answer at all required ; therefore where two defendants were required to answer amendments, a third cannot move to dismiss at the end o£the fourteen days mentioned in Art. 2, Brown v. Butter, 21 Beav. 615. In Raistrick v. Bls- vtorth, 2 De G. & S. 95 ; 12 Jur. 281, plaita^ by his amended bill required four of the defendants to answer, but did not serve theip, though he served other defendants with subpoena to answer ; held that the four might move to dismiss. [102] Time for Motion to dismiss for want of Prosecution, where no Answer required or put in, 13. A defendant to a suit commenced by bill, who shall not have been irequired to amsw&c the bi3J, and shall not have answered the same, shall be at liberty to apply for an order to dismiss the bill for want of prosecution, at Any time after the expiratioii of three months from the time «f his appearance, unless a motion for a decree or decretal order shall have been set down in the meantime, or the cause ^aU have been set down to be heard ; and the Court may, upon such application, if it sfaaU think fit, make an order dismissing the bill, or make such other order or impose such terms as may appear just and reasonable. (7th Aug. 1852, 1st Set, Ord. 29.) ^ By 15 & 16 Vict. c. 86, !;. 27;, "^yhene a defendant fo a suit in the e^id Court commenced by bill shall not have been required to answer the bill and shall not have answered the same, such defendant shall be at liberty to move to dismiss the bill for.want of prosecution at such times and under such circum- stances and sul^ect to sudh restrictions as shall he in that behalf prescribed by any general order of the Lord Cbancdlor." The order on which thi^ Rule is founded omits to provide for the case where the plaintiff cannot set down the cause because the time for closing evidence has not expired ; in such case, on motion to dismiss, leave was given to set down the cause on a day fixed. Bates v. Brothers, 2 W. R. 388. Vacations are not excluded from the three months mentioned in this Rule, Bottomley V. Squire, on appeal, 24 L. J. 437 ; 8 W. R. 498. The Court has power under this Rule to give the plaintiff further time ; but generally he must pay the costs of the application, ibid. In Baddon v. Pegkr, 5 Jur., N. S. 112% the Court refused to excuse the plaintiff from costs on dismissing his bill under this Rule {lecause he had filed his bill precipitately. Defendant putting in 4 voluo^ry answer may, it seems, move to dismiss [102] Obdeb XXXIV.— Petitions. 255 three months after appearance, Sentley t. Mercer, i Jur., N. S. 407 i 6 W. R. 265. Semble, notwithstanding notice of motion for decree, if the cause be not set down in the meantime defendant may, after three months, move to dismiss for want of prseecution, GiU v. Ragner, cited in note ta Ord. 17, r. 2. Order XXXIV. PETITIONS. Statement as to Persons to be served teith Petition. *1. At the foot of every petition (not being a petitwrn of course) presented to Hie Lord Chancellor or the Master of the Rolls, and of every copy thereof, a statement shall be made of the persons, if any, intended to be served Hierewith ; and if no person is intended to be served with such petition, a statement to that effect shall be made at the foot of the pelitioii, and of every copy thereof. (30th March, 1859; Ord. 16.) As to what applicatioiis are properly made hy petition and the practice generally as to petitions, see Sid. Smith's Chancery Practice, 149 ; Daniell's Ch.Pr. 1188, 1203. As to entries of orders on petition, see Ord, I, i. 18. See, as to the fudges before whom petitions are to behesffd, Ord. 6. See, as to petitions under the Trustee Relief Act, the Charitable Trust Act, 1853, and the Leases and Sales of Settled Estates Act, Ord. 41. See,. as to seryice .and signature of petitions, Ord. 3. As to petitions improper, or of unnecessary length, see Ord. 40, r. 9, el seq. Where a htnatic, net so found 'by inquisition under the authority of the Lord Chancellor, is interested in funds in a cause, a petition respecting >them may be presented to the VJceJChancellor -before whom the cause is, Vokms v. Carr, 2 De 6. & Sm. 242 ; Daviee v. -Doviffi, 2 De G., M. 8c G. 51 ; Re Serry, 13 •Beav. 455. See Trustee Acis, post, as to the jurisdiction over lunatics under those Acts. When two (petitions inlnnacy are answered on tJie same day, that which is first presented has pre-audience. Re Broakman, 1 M. & G. 199. A petition |br reference back of a report had precedenceof a petition to confirm it, Stwgee V. Paley, 14 Sim. 699. Petition by a married woman or infant plaintiff in a cause is treated as the petition of the next friend, who is liable to the costs, Howard v. Prince, 14 Beav. 28 ; Joaet v. Leans, 1 De G. 8j Sm. 245. Petition of a person not a party to a cause must state bis residence, Glaxbrook v. Gillatt, 9 Beav. 492. Suppression of any fact, which, if disclosed, would have prevented an ex parte oifler being ^hmwn up, is fatal to the order, Wilkin v. Nainby, 8 Beav. 465 ; Mulamie v. Jlntrobut, 8 Beav. 405 ; Cooper -v. Lewis, 2 Ph. 17«. 256 Obdeb XXXIV. — Petitions. [102] Co-respondents, who are co-petitioners on a cross petition, not heard by separate counsel except so &r as their cases are distinct, lU Stephen, Ex parte Bam, 2 PhU. 562. Where a fund had been carried tp the separate account of an ascertained class, share of one of the class transferred to him on his petition without serving the others, Lambert v. Newarlt, 3 De G. & Sm. 405. See also, as to service of petitions, notes to Ord. 34, r. 3, and to the Trustee Acts. Court will not, on petition, make a binding declaration of right ; but only preface the order with a statement of opinion, Sharihaw t. Gibbs, 18 Jur. 330. A party served with a petition does not, by unsuccessful opposition, forfeit his right to costs of appearing. Ex parte Stevens, 2 Ph. 772. A party properly served, but whose appearance is unnecessary, not entitled to appear merely to ask for "his costs, Se Justices of Coventry, 19 Beav. 158 ; Day v. Craft, 19 Beav. S\%; Re Hertford Charity, ibid. Costs of a party unnecessarily served may be disallowed, Re Birch's Legacy, 2 Kay & John. 369 ; so where he had been served in consequence of a claim by him. Re Shrewsbury School, 1 M . & G. 85. A party served with the petition and a, notice that he was not interested therein was allowed his costs, Rowley v.Jdams, 16 Beav. 313; see cases in the note, ibid. Purchaser who had got his conveyance not allowed costs of appearing on a petition for payment of the purchase-money, Barton v. Latour, 18 Beav. 526. Where petition for a stop-order was served not only on the assignor, but on the other parties to the cause, petitioner had to pay the costs of the latter, Glazbrook v. Gillatt, 9 Beav. 611. Petitioner ought not to apply under Lord St. Leonards' Act for direction whom to serve • but ought to use his own discretion, and state in the foot-note whom he has served, Re Green's Trust, 8 W. R. 403. See S. C. in note to that Act. Guardians ad litem are necessary where infants are respondents to a petition in a matter, Re Barrington, 27 Beav. 272; Re Harte Estate, 8 W. R. 336 ; 29 L. J. 530. Parties may be added to a petition as co-petitioners where it has been ordered to stand over for the purpose, Maude v. Maude, 5 De G. & S. 418. Petition by a woman, who married after it was answered, amended by making her husband co-petitioner, Robinson v. Harrison, 1 Drew. 307. Petition not to be amended by inserting facts which occurred after it was answered, Doub^re v. Ehvorthy, 15 Sim. 77- Order on a petition, when drawn up, not amended without another petition. Re Marrow Cr. & Ph. 142. Order on a petition entitled in a non-exiiting cause discharged for irregularity on motion. West v. Smith, 3 Beav. 306. Semble, an order on petition on the merits cannot be discharged on motion, ibid. Semble though the Court has not jurisdiction to entertain a petition it may be dismissed with costs. Re Isaac, 4 Myl. St Cr. 11. Time for Service. 2. UnleBS the Court gires special leave to the contrary, there must be at leaet two clear days between the service of a petition [102] Okder XXXrV.— Petitions. 257 and the day appointed for hearing the petition ; and in the com- putation of such two clear days, Sundays and other days on which the offices are closed, except Monday and Tuesday in Easter week, shall not be reckoned. (8th May, 1845 ; Ord. 16, Art. 47.) Tliis Rule is similar to the rule respecting motions, Ord. 33, i. 2, q. v. Affidavits in support of Petitions under Acts of Parliament authorising Sale for Public Purposes. *3. In the case of petitions under Acts of Parliament authoriz- ing the sale of property for public purposes, where the purchase money is directed by any such Acts of Parliament to be paid into Court, the petitioners claiming to be entitled to the money so paid in rnust 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. (4 th July, 1828, Exchequer. See Seton on Decrees, 2nd edition, p. 663.) By the Lands Clauses Consolidation Act, 1845, 8 Vict. c. 18, s. 69, purchase- money or compensation payable in respect of lands, or any interest therein, purchased or taken by the promoters of an 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 adminis- trator, or person having a partial or qualified interest only, and not entitled to sell except under the said Act or the special Act, and compensation for damage to such lands, if amounting to or exceeding 200i., is to be deposited With the Aecouncant-Oeneral of the Court of Chancery in England, if the same relate to lands in England or Wales, to the account of the promoters of the Utfdertalking, and to remain so deposited until applied in either of the fallowing modes, Viz. :— " In the purchase or redemption of the land-tax, ot the discharge of any debt or incumbrance affecting the land in respect of which such mon^y shall have been paid, or affecting other 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 shaiH have been paid, stood settled j or, " If such money shall have been paid in respect of any buildings taketi under the authority of this or the Special Act, or injured by the proximity of the works, in removing or repladng such buildings ot 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." By sect 70, the money may be applied, under sect. 69, on the petition of the party who wooJd ha*e been entitled to the rents and profits of the lands, and until the money ean he so applied may he invested in Consols, or Reduced C. S 258 Order XXXrV.— Petitions. ' [102] Bank Annuities, or in Government or real securities ; and the interest, dividend and annual proceeds paid to the party who would have been entitled to the rents and profits. By sect 72, if the money does not exceed 201., it shall be paid to the parties entitled to the rents and profits, or (as the case may be) their husbands, guardians, committees or trustees. Sect. 73 provides for payment of sums above 201., payable under contract with persons not absolutely entitled, into the Bank, and provides that the Court may allot to the life tenant, or person having a partial or qualified interest, n portion of the sum paid in as compensation for any injury, inconvenience or annoyance sustained by him, independently of the actual value and of the damage occasioned. By sect. 76, where the parties refuse to convey, or do not show a title, or are absent from the kingdom, or cannot be found, or fail to appear on the inquiry before a jury, the purchase-money may be paid into Court (except in the cases therein provided for) to the credit of the parties interested in the lands. By sect 78, the Court may, on petition of any party malting claim to the money so deposited, or the lands in respect whereof the same shall have been deposited, or any part thereof, or any interest in the same, direct the investment of the fund, or distribution thereof, or payment of the dividends, according to the interests of the parties claiming. By sect 79, if any question arise respecting the title to the lands, the party in possession is to be deemed the owner until the contrary be shown, and the money deposited, &c., is to be applied accordingly. Sect 80 provides for the payment of costs of purchase of the land and the investment, &q., as therein mentioned, by the promoters of the undertaking in all cases of monies deposited under the Act, " except where such monies shall have been so deposited by reason of the wilful refusal of any party entitled thereto to receive the same, or to convey or release the lands in respect whereof the same shall be payable, or by reason of the wilful neglect of any party to make out a good title to the land required." Sect 85 enables promoters to enter on land before purchase, on making a deposit by way of security and giving a bond. By sect 87 the deposit is to be applied under the direction of the Court of Chancery. Incumbrancer cannot petition under sect. 70, Ex parte Back, 2 Y. & J. 387 4decided under a similar clause in a Company's Act). Income of railway pur- qhase-money of land which was subject to an annuity ordered to be paid to the owner of the land on his petition, Ex parte Cofield, 11 Jiu-. 1071 j see Re Huii^erford, infra. Under sect. 70 » tenant for life may present a petition for re-i'nvestmen^ and need not serve any person in remainder. Ex parte Staples, 1 De G., M. & G. 294; 21 L. J. 251 ; on petition by married woman, tenant for life for re-invest- ment, remaindermen and trustees of petitioner, though necessarily served, held not entitled, as against the Company, to their costs of appearing, Wilson v. Foster, 26 Beav. 398j 7 W. R. 172 ; 28 L. J. 410 ; 5 Jur., N. S. 1 13. Trustees of lands, respondents to a petition for investment of the railway purchase- [102] Okdek XXXrV.— Petitions. 259 money, are entitled as against the Company to their costs of appearing, Re Harte Estate, 29 L. J. 530 ; 8 W. R. 336. The petition should be entitled in the matter of the will or settlement of "A. B.," and of the Lands Clauses Consolidation Act, 1845, and the Com- pany's Act by its short title, Seton on Decrees, 663. The money paid in under a Company's Act may be applied for by bill, Hyde V. Edwards, 12 Beav. 161. Petition which set out several clauses of the Lan4s Clauses Act held not of unnecessary length, see Re Lilley's Trusts, 17 Sim. 110. In Re Manchester Rail- way, 8 Hare, 31, the contrary was decided. See Ord. 40, r. 2. Purchase-money paid in under the Act may be petitioned for by persons to whom the proceeds of a sale of the estate were given by will, to be transferred to another fund in Court, JHelling v. Bird, 7 Jur. 155 ; 22 L. J. 599. Where the application is only for Investment of cash to a separate account and payment to tenant for life, the at&davlt must be produced qualified accord- ingly, Ex parte St. Thomas's Hospital, Seton on Decrees, 664. Where one of several persons entitled petitions for payment out of the purchase-money, and serves the others, it is not of course that the Company should pay their costs, Melling v. Bird, supra. Where money paid in by a Company under sect. 85, and on the valued price being paid to the landowner, repayment ordered under sect. 87, the landowner is entitled to be served with the petition for repayment, and to his costs of appearing on it. Ex parte Stevens, on appeal, 2 Ph. 772; 13 Jur. 2. The money so paid in is not subject to any lien for the landowner's costs, ibid. As to the power of the Court to adjust disputed titles upon petition under the Act, see Ex parte Issauchaud, 3 You. & Coll. Exch. Rep. 721 ; Ex parte Freemen and Stallingers of Sunderland, 1 Drew. 184; Douglas v. London and North- Western Railway, 3 K. & J. 173. One of several persons entitled to a share of purchase-money may petition without serving the rest. Re Midland Railway, 11 Jur. 1095. Mortgagee of part of the estate not taken by the Company ought not to be served, on petition for paying them oflF out of the money paid into Couft, Re Yeales, 12 Jur. 279. Tenant for life in possession of the property may petition for dividends without serving mortgagees of the property. Re Hungerford's Trusts, 3 Kay & John. 455. See Ex parte Back, Ex parte Cojield, ubi supra. Pur- chase-money belonging to a corporation not appropriated in the absence of the freeman, Re Great Northern Railway, Ex parte Mayor of Lincoln, 6 Ry. Ca. 738 ; 16 Jur. 756; 21 L. J. 621. Mortgagees of tenant for life not entitled to costs of appearing from the company, Ex parte Smith, Re Lancashire Railway, 6 Ry. Ca. 150 ; so of mortgagees of a jointure charged on the land, Re Webster, 2 Sm. & G., App. 6 ; otherwise as to mortgagees of the corpus. Ex parte Peyton, 2 Jur., N. S. 1013 ; otherwise as to mortgagees of life interest who have been served at the instance of the Company, Re Hungerford, 1 K. & J. 413. Where purchase-money carried to a separate account the company ought not to be served with a petition respecting it, Ex parte Hordern, 2 De G. & Sm. 263. Where the Commissioners of Works paid in purchase-money of land, costs of petition, on death of tenant for life by remaindermen for payment out, to be borne by the Commissioners, Re Edmeade's Estate, 8 W. R, 327. S2 260 Obdee XXXIV.— Petitions. [102] Payment out of a small sum to tenant in tail without requiring a disentailing deed, Sowry v. Sowry, 8 W. R. 339 ; so also to married woman on ber consent in Court, Re Tyler's Estate, 8 W. R. 541. Where on petition by a bishop entitled in the matter of the Lands Clauses Act, 1846, and the Capitular Estates Act, 14 & 15 Vict c. 104, purchase-money paid in by oompanies was re-invested, the costs of re-investment were to be borne by the companies equally. Ex parte Bishop of London, 8 W. R. 465. See, as to apportionment of costs, London and Brighton Railway v. Shropshire Union Railway, 23 Beav. 605. Dividends of invested purchase-money of lands in settlement ordered to be paid to the trustees of the settlement, " or either of them," Re Clinton, 8 W. R. 492. On re-investment of purchase-money the company pay the costs of the peti- tioner ; but the costs of the other respondents come out of the fund. Re Legge^s Estate, 8 W. R. 559. Application of part of purchase-money in payment for improvements made by tenant for life, Re Davis's Estate, 3 De G. 8c J. 144 ; 4 Jur., N. S. 1029 i 6 W. R. 844; 27 L. J. 712; Re Wight's Estate, 6 W. R. 718. Full account of the practice where purchase-money paid in by a company is re- invested, and conveyancing counsel approve the title and settle the convey- ance, Anon. 18 Jur. 742. Application for investment of a sum paid in under the Lands Clauses Act should be by summons, not by petition, Re Neui River Company, 2 W. R. Dig. 69 (L. T.) The company purchasing is not liable, under sect. 80, above cited, for costs of applying the purchase-money in discharge of an incumbrance on other lands of the vendor's, Ex parte Sheffield Town Trustees, 8 W. R. 602. Repayment to secretary of a railway coinpany ordered, on petition, stamped with the seal of the company, without verifying the seal, Ex parte London, Chatham and Dover Railway, 8 W. R. 636. Where, after payment of the purchase-money into Court, the vendor died, having devised the land to new uses, the company were, on appeal, held liable for the costs of investment in land to be settled to such uses. Re De Beau- voir's Trusts, 29 L. J. 567. Cost of investing purchase-money paid in by several corporations, held under the Lands Clauses and Capitular Estates Acts, to be payable by them equally and not rateably, Ex parte Bishop of London, 29 L. J. 575. On applications for money paid in under Companies' Acts an affidavit is re- quired shortly verifying the title, and of belief as to the exclusive title to the estate, Re Fleet Market, Ex parte Shears, 2 Y. & J. 493. The Court will not dispense with the affidavit of title though the Company has accepted the title, Ex parte Hollick, 4 Ry. Ca. 498 j 16 L. J., N. S. 71. The affidavit of exclusive title is required on petition for the corpus, but not on petition for the divi- dends on railway purchase-money. Re Braye, 9 Hare, App. 7. The affidavit should generally be made by the petitioner, Re London and North- Western Railway and Lady Bray, 1 W. R. 60. See, as to applications at chambers for sums under 3002. in reference to this Act, note to Ord. 35, r. 1. [103] Order XXXV.— Proceedings in Chambers. 261 Order XXXV. PROCEEDINGS m CHAMBERS. See,»«j/ra,Regulationsof8th Aug. 1857, Ord.35, asto proceeding in chambers. By 15 & 16 Vict. c. 80, s. 10, "from and after the first day of Michaelmas Term, 1852, no reference shall be made to any of the Masters in Ordinary of the said Court except in cases in which, from some previous reference made in the cause or matter, or in some other cause or matter connected therewith, the Court may think it exnedient to make such reference, and except in matters arising under the Joint-Stock Companies Winding-up Acts, 1 848 and 1 849 : pro- vided always, that until all the Masters in Ordinary of the said Court shall have been removed by resignation, death or otherwise, or have been released from their duties under this Act, such of the Masters in Ordinary of the said Court as shall, for the time being, remain in office, and shall not be released from their duties under this Act, shall prosecute all the business which, on the first day of Michaelmas Term, 1852, shall be depending before the Masters, and also all the references which, before the said first day of Michaelmas Term, 1852, shall have been made under decrees or orders of the Court, or which on or after the same first day of Michaelmas Term shall be made in relation to such excepted matters as aforesaid, and the same, if necessary, shall be distributed among such remaining Masters in such manner as the Lord Chancellor shall direct, and the powers and authorities now vested in them are hereby reserved to them for the purpose of executing and performing all the duties, matters and things which may be still referred to them or which they may be lawfully called upon to perform." The Court has no power to authorize the Master to obtain the assistance of scientific persons under the Act. To effect this the proceedings should be transferred to the Judge in chambers, Morrell v. Tinkler, 9 Hare, App. 50 j Mildmay v. Meihuen, ibid., 16 Jur. 965. Where, however, a reference had been made to a Master, many years previously, the Court refused to remove it to chambers, Saward v. Macdowell, 19 Beav. 528 ; Wedderbum v. Wedderburn, 18 Beav. 465. Entirely new matters not referred to the Master, Re Wheal Virtue Mining Company, 3 Jur., N. S. 659. A cause adjourned to chambers after reference to a Master, Saunders v. Walter, 9 Hare, App. 5 ; Prichard v. Norris, 10 Hare, App. 52. Reference to a Master to whom a similar reference in a previous suit had been made, Piddocke v. Smith, 9 Hare, App. 87. As to reference to chambers under the Winding-up Acts, see Re Newcastle Bank, 17 Beav. 470 ; Re Lmdon and Edinburgh Banking Corporation, 1 John. 461 J Be Court Grange Mining Company, 5 W. R. 773 ; Underwood's Case, 5 De G., M. 8j G. 677 ; Re Bituminous Shale Company, 2 W. K. 313 ; Re Port Phillip Company, 3 VI. R. 31. Where the Master, by reason of the neglect of the parties, was unable to 262 Okdee XXXV. — Proceedings in Chambers. [103] proceed with the reference, it was transferred to chambers, Ridley v. Tiplady, 20 Beav. 44. Sect 11. " From and after the first day of Michaelmas Term, 1852, it shall be lawful for the Master of the Rolls and the Vice-Chancellors for the time being, and they are hereby required to sit at chambers for the dispatch of such part of the business of the said Court, as can without detriment to the public advantage arising from the discussion of questions in open Court be beard in chambers, according to the directions hereinafter in that behalf specified or referred to, and the times at and during which they respectively shall so sit, shall be from time to time fixed by them respectively." Sect 12 " The chamber business of the Master of the Rolls and of every Vice -Chancellor shall be carried on in conjunction with his Court business, but as no rooms are attached to the Courts of the Vice-Chancellors, in which such chamber business can be transacted, it shall be lawful for the Lord Chancellor to cause chambers to he provided for every of them respectively for that purpose, until Courts, with proper rooms attached, can be provided for them." Sect 13. " The Master of the Rolls and every of the Vice-Chancellors respectively when sitting in chambers, shall have the same power and juris- diction in respect of the business to be brought before them, as if they were respectively sitting in open Court." A Judge at chambers may vary the terms of an inquiry previously directed in Court, Saunders v. Waller, 9 Hare, App. 5. See 5. C. in note to Ord. 35, r. 1. See as to the right of the suitor to bring any point before the Judge himself, ss. 29 and 33, cited post, Ord. 35, rr. 2 and 49. By sect. 14, " The orders made by the Master of the Rolls and Vice-Chan- cellors respectively, when sitting in chambers, shall ordinarily be drawn up there by their respective clerks to be appointed as hereinafter mentioned, but with power to each of such Judges to direct any of such orders to be drawn up by the Registrar of the said Court in like manner as orders made by a Judge of the said Court in open Court are drawn up, for which purpose the Registrars of the said Court shall, when required, attend the Master of the Rolls and the Vice-Chancellors respectively, when sitting at chambers, in such order and manner as shall be found most convenient for fiirthering the business of the said Court, and as the Lord Chancellor, with the concurrence of the Master of the Rolls and the Vice-Chancellors, or any two of them, shall from time to time by any general order direct" As to entry of orders made in chambers and drawn up by the Chief Cletk or Registrar, see Ord. 35, r. 32. In practice, with few exceptions, the orders are drawn up by the Registrars. By sect. 15, " All orders of the Master of the Rolls or of any Vice-Chan- cellor, made by him at chambers, shall have the force and effect of orders of the Court of Chancery, and such orders may be signed and inrolled in like manner." AH orders made at chambers are orders of the Judge, and not of the Chief Clerk, even when made without the parties going before the Judge, as they are always entitled to do, Haywardv. Hay ward, 1 Kay, App. 31. [103] Order XXXV. — Proceedings in Chambers. 263 Sect. 16 empowers the Master of the Rolls and Vice-Chancellors to appoint two Chief Clerks each. Sect 17 regulates a qualification of Chief Clerks. Sect. 18 gives power to appoint a Junior Clerk to each Chief Clerk. Sects. 19 — 25, reg^ulate the duties and tenure of office of Chief Clerks and Junior Clerks." Business to be disposed of in Chambers. 1. The business to be disposed of by the Master of the Rolls and the Vice-Chancellors respectively, while sitting at Chambers, shall, in addition to the matters mentioned or referred to in the Stat. IS & 16 Vict. c. 80, s. 26, comprise the following matters, that is to say: — (1.) ApplicatioBs for payment to any person of the divi- dends or interest of any stocks, funds or securities, standing to the credit of any cause or matter depending to the separate account of such person. (2.) Applications under the Stat. 36 Geo. m. c. 52, s. 32 (a), in all cases where the sum paid into the Bank or the stock transferred into the name of the Accountant-General, under such section, does not exceed three hundred pounds cash, or three hundred pounds stock, as the case may be. (3.) Applications under the Stat. 10 & 11 Vict. c. 96(6), intituled " An Act for better securing Trust Funds, and for the Relief of Trustees," and the Stat. 12 8s; 13 Vict. c. 74, intituled " An Act for the further Relief of Trustees," in all cases where the trust fund does not exceed three hundred pounds cash, or three hundred pounds stock, as the case may be. (4.) Applications under "The Trustee Act, 1850," and the Stat. 15 & 16 Vict. c. 55, intituled " An Act to extend the Provisions of ' The Trustee Act, 1850,' " in all cases where any decree or order shall have been made by the Court for the sale or conveyance of any lands, manors, messuages, tenements or hereditaments, corporeal or incorporeal, of any tenure or description, whatever may be the estate or interest therein. (5.) Applications on behalf of infants under the Stat. 1 Will IV. c. 65, ss. 12, 16 & 17, in all cases where the in- fant is a ward of the Court, or the administration of the estate of the infant or the maintenance of the infant is under the direction of the Court. (12th Nov. 1856.) By 15 & 16 Vict. t. 80, s. 26, " The business to be disposed of by the Master of the Rolls and Vice-Chancellors respectively, while sitting at chambers, shall consist of such of the following matters as the Judge shall from time to (o)By that section cash legacies, where they cannot he paid to the persons en- titled by reason of infancy or absence beyond the seas, may be paid into Court under that Act (which imposes Legacy Duties), and may be applied for in ^ summary way. (J) See Ord. 41, r. 1. 264 Order XXXV.— Proceedings in Csajubers. [103] time think may be more conTeniently disposed of in chambers than in open Court, videlicet, applications for time to ple^di answer or demur ; for leave to amend bills or claims ; for enlarging publication ; and also applications for the production of documents ; applications relating to the conduct of suits or mat- ters ; applications as to the guardianship and maintenance of infants ; matters connected with the management of property ; and such other matters as each such Judge may from time to time see fit, or as may Irom time to time be directed by any general order of the Lord Chancellor." By 18 & 19 Vict u. 134, ». 16, it is enacted as follows: — " And whereas by divers Acts of Parliament the Court of Chancery is. empowered to make orders, in respect of the disposition of trust funds and other matters under its juris- diction upon petition presented or motion made in a summary way without bill, but such orders cannot be made in respect of the same matters upon ap- plication at chambers ; be it therefore enacted, that the business to be disposed of by the Master of the Rolls and theVice-Chancellois respectively, while sitting at chambers, shall comprise such of the matters in respect of which the Court of Chancery is so as aforesaid empowered to make orders in a summary way as the Lord Chancellor, with the advice and assistance of the Master of the Rolls and the Yic^-Chancellors, or of any two of them, may by any general order direct." By IS & 16 Vict. t. 86, s. 57, " Where any real or personal property shall form the subject of any proceedings in the Court of Chancery, and the Court shall be satisfied that the same will be more than sufficient to answer all the claims thereon which ought to be provided for in such suit, it shall be lawfiil for the said Court at any time after the commencement of such proceedings, to allow to the parties interested therein, or any one or more of them, the whole or part of the annual income of such real property, or a part of such personal property, or a part of the whole of the income thereof up to such time as the said Court shall direct, and for that pmrpose to make such orders as may appear to the said Court necessary or expedient." Applications under this section are to be made at chambers, Knight v. Knight, 16 Beav. 358 ; Bentley v. Craven, 1 W. R. 362. The allowance will not be made unless the executors admit assets, Knight v. Knight, supra. Allowance of her income to a married woman on security given to answer claim in a suit against her, Stacey v. Soutkey, 1 Drew. 400. The order will not be made without pressing reason, Rowley v. Burgess, 2 W. R. 652. The following cases were before the Act. Where there was clearly a surplus proportional payments were made to pecuniary legatees, Tliomas v. Montgomery, 1 Russ. & My. 729. Reference as to a proper allowance to a residuary legatee, Coster V. Coster, I Keen, 199. Dividends distributed before accounts taken, the executors admitting assets, Shewell v. Shewell, 2 Hare, 154. Where debts paid, income of balance paid in by executor, paid to the residuary legatee, Dando t. Dando, 1 Sim. 510 ; but not unless the executor took the responsibility, Ahhy V. Gilford, 11 Beav. 28. Jointure and annuity paid before decree, Digby v. goycatt, 4 Hare, 444. Dividend of a litigated fund not payable to one claimant^ Nedby v. Nedby, 4 My. & Cr. 367. As to refunding, see David v. Frowd, 1 My. & K. 200 ; March v. Russell, 3 My. & Cr. 31, and cases cited in note to Ord. 35, r. 12. [103] Obdee XXXV. — Proceedings in Chambeks. 265 Part of fund not advanced to enable parties to try an issue, Nye v. Maule, 4 My. Sc Cr. 342 ; nor to defray expense of examining witnesses abroad, Peck T. Beechy, 2 Sim. 40. For a list of applications entertained at Vice-Chancellor Kindersley's cham- bers, see Sid. Smith's Ch. Pr. 504. By a notice at Judge's chambers, 10th Nov. 1852 (printed in 9 Hare, App. 48), the following applications may be made there : — 1. As to guardianship of infants, except the appointment of guardian ad litem. 2. For the appointment of special guardian to concur in a special case (a). 3. As to maintenance or advancement. of infants (6). 4. Under the Drainage Acts. 5. Under the Trustee Acts of 1850 and 1852. 6. For the administration of estates under the Act of 15 & 16 Vict, c, 86. 7. Under the Legacy Duty Act for the payment of money out of Court (c). 8. For time to plead, answer or demm'. 9. For leave to amend bUls or claims. 10. For enlarging publication. 11. For the production of documents. 12. Relating to the conduct of suits. 13. As to matters connected with the management of property. 14. As to matters connected with the payment into Court of purchaser's moneys under sales by order of the Court, and investing the same. In Dan. Cb. Fr. 1423, is a list of applications which have been made at chambers. The following cases relate to proceedings which may or may not be taken at cfaambers: — The jurisdiction, where proceedings originate at chambers, extends only to simple cases. Rump v. Greenhill, 20 Beav. 512; not to a case where the validity of a release was disputed, Acaster v. Anderson, 19 Beav. 161. See notes to Ord. 35, r. 3. The whole matter of a suit by claim adjourned, to be carried on at chambers, Piggott V. Young, 7 W. R. 235. Stop order should be made at chambers if assignor concur, Edmonson v. Har- rison, 1 W. K. 140. In Re Miller, 6 W. R. 238, stop order was obtained on petition. See Ord. 26, r. 1. Application for a receiver on the death of another may be made at chambers, Grate v. Bing, 9 Hare, App. 50 ; but for the first receiver in Court, ibid. In Blackborough v. Ravenhill, 16 Jur. 1085, it was held that appointment of re- ceiver by consent should be at chambers. {a) These applications are now generally made in Co\iTt,Thornhill v. Copleston, 10 Hare, App. 67 ; Re Goo4fellaw, 1 W. R. 446. (b) As to the maintenance of infants out of funds paid in under the Trustee Relief Act, see Ord. 35, r. 1, art. 3. (e) The Judges afterwards decided that these applications were to be made in Court, 1 W. R. 140, note ; 9 Hare, App. 83. See now Ord. 35, r. 1, art. 2. 266 Order XXXV.— Proceedings in Chambers. [103] References authorized by a private Act to be taken before a Master may be taken at chambers, Thornhill v. Thornhill, 18 Jur. 31 ; 22 L. /. 385. Order for payment into Court of purchase money of property sold under decree, where the title is accepted, may be made at chambers, Davenport v» Davenport, 9 Hare, App.50 ; 22 L. J. 11. Directions as to the manner of taking accounts and reception of books of accounts as primi. facie evidence are .usually given at chambers, Jttomey- General v. Attu/ood, 9 Hare, App. 56. - Applications for allowance of income, pendente lite, are made at chambers, Knight V. Knight, 16 Beav. 358, n. Petitioner under Sir Samuel Romilly's Act to attend at chambers with a pro- posal for a scheme. Re Hamon's Trusts, 9 Hare, App. Bi. Special Examiner may be appointed at chambers or in Court, Reed v. Prest, 1 Kay, App. 14. In M'Neill v. Acton, 22 L. J. 584, it was held that the ap- plication was properly made in Court. As to references at chambers to conveyancing counsel, see Ord. 2. The Judge at chambers directs what parties are to be served with an order or decree, De Balinhard v. Bullock, 9 Hare, App. 13. Leave to serve a sci. fa. under 20 & 21 Vict. c. 14, s. 7, must be obtained at chambers. Re Royal British Bank, 6 W. R. 34 j 3 Jur., N. S. 1114. The effects bequeathed by a married woman under a power may be adminis- tered by summons at chambers, Setoell v. Ashley, 3 De G., M. & G. 933. On sale of small leaseholds the purchaser summoned, and the proceeds, to save expense, distributed at chambers. Thorp v. Owen, 2 Sm. & G., App. 1. As to administration summonses at chambers under 15 & 16 Vict. n. 86, Es. 45 and 47, see Ord. 35, rr. 3 and 5. As to applications at chambers under the Trustee Relief Act, see Ord. 41 j under the Charitable Trusts Act, see Ord. 41, r. 10 ; under the Leases and Sales Act, Ord. 41, r. 14. As to applica- tions at chambers for time, see Ord. 37, n., rr. 17 and 18. As to applications at chambers for production of documents, see Ord. 42, r. 3. Applications for time to put in further answer under Ord. 16, i. 14, are made to the Court. See, as to the jurisdiction at chambers under Lands Clauses Consolidation Act, note to Ord. 34, i. 3. No sum exceeding 3002., whether principal or interest, is payable on applica- tion at chambers under Ord. 35, i. 1, art. 3; Joad v. Ripley, 3 Jur., N. S. 432. See Ord. 41. Application for a sum less than 3002., part of purchase-money paid in under the Lands Clauses Act, should be made at chambers, Re Clarke's Devisees, 6 W. R.812. Order for taxation and payment of costs payable by a company under the Lands Clauses Act may be made at chambers. Ex parte Incumbent of Guilden Sutton, 20 Jur. 793. Application for maintenance of infant out of funds paid in under the Trustee Relief Acts must be made on petition, Re Rye's Trusts, 19 Jur. 222 ; Re Hodges, 4 De G., M. & G. 491. No applications are entertained at chambers for orders which may be had by m3tion or petition of course, Daniell's Ch. Pr. 1406. Orders which may be made under the Trustee Act, 1850, and the Act to [103] Order XXXV.— Proceedings in Chambers. 267 extend it, will not be made at chambers except in the cases provided for by Ord. 35, r. 1, art. 4, Daniell's Ch. Pr. 1421. The sections referred to in art. 5 relate to the surrender and renewal of leases of infants' estates, Daniell's Ch. Pr. 1421. By IS & 16 Vict. c. 80, s. 27, " It shall be lawful for the Master of the Rolls and every of the Vice-Chancellors, when sitting in open Court, to adjourn for consideration in chambers any matter which, in the opinion of such Judge, may be more conveniently disposed of in chambers ; or, when sitting in cham- bers, to direct any matter to be heard in open Court which he may think ought to be so heard." Applications for production of documents are to be made at chambers ; but cases of difficulty will be adjourned into open Court, Thompson v. Teuton, 9 Hare, App. 49 j 22 L. J. 11. A complicated matter in Court will be adjourned to chambers where it can be better examined there. Kelson v. Kelson, 9 Hare, App. 86; 1 W. R, 196; without an order where no fresh evidence required; but there must be an order if parties be allowed to go into new evidence at chambers, ibid.; see Delevante v. Child, 6 Jur., N. S. 118 ; Mutter v. Hudson, 2 Jur., N. S. 34; Saunders v. Walter, 9 Hare, App. 5 ; 22 L. J. 11. See, as to the right of a party to bring any particular point before the Judge himself, sect 33, post. Any of the parties dissatisfied by a decision of the Chief Clerk at chambers may always have it adjourned to Court, Leeds v. Lewis, 3 Jur., N. S. 1290. A party not heard on adjournment into Court, who did not join in the summons at chambers, Jaquet v. Jaquet, 7 W. R. S43. See further, as to adjournment into Court, Ord. 35, r. 49. [104] Form of Summons btf Judge. 2. The general summons for the purpose of proceedings before the Master of the Rolls and the Vice-Chancellors respectively at Chambers, whether originating in Chambers or not, may be in a form similar to the form set forth in Schedule (K), No. I., with such variations as the circumstances of the case may require. (16th Oct. 1852; Ord. 1.) By 15 8j 16 Vict. c. 80, s. 28, " The mode of proceeding before the Master of the Rolls and Vice-Chancellors respectively, at chambers, shall be by summons, and as near as may be according to the form now adopted by the Judges of the Superior Courts of Common Law when sitting at chambers." In general, when counsel are retained, the matter is heard in Court, Hudson V. Carmiehael, 18 Jur. 851 ; He Bennett, 18 Jur. 33. If one side desire to be beard by counsel before the Judge at chambers the cause proceeds there ; if both sides so desire, the case is adjourned into Court, Rumbold v. Forteath, 3 Kay & John. 44. A witness cannot, on the ground that he has always a right to the assistance of counsel, refuse to be sworn before the Chief Clerk, Ex parte Bunn, 24 Beav. 137 ; 3 Jur., N. S. 1013 ; 26 L. J. 615 ; Stroughill v. Gulliver, 1 De G. & J. 113, cited in note to Ord. 35, r. 52. Counsel are not heard before the Chief Clerk, Dipples v. -Corles, 22 L. J. IS. See, as to the costs of counsel attending the Judge in chambers, Ord. 40, r. 29 ; and Ord. 40, r. 32, 268 Order XXXV. — ^Pkoceedings in Chambehs. [104] By sect. 29. From and after the first day of Michaelmas Term, 1852, the Master of the Rolls and the Vice- Chancellors respectively shall have the sole power (subject to any rule which may be made by the Lord Chancellor with the advice and assistance of them or any two of them) to order what matters and things shall be investigated by and before their respective Chief Clerks, either with or without their direction during their progress, and what matters and things shall be beard and investigated by themselves, and particularly if the Judge shall so direct, his Chief Clerks respectively shall take accounts and make such inquiries as have usually been prosecuted before the Chief Clerks of the present Masters ; and the Judge shall give such aid and directions in every or any such account or inquiry as be may think proper, but subject, nevertheless, to the right hereinafter provided for the suitor to bring any parti- cular poiiit before the Judge himself. Form of Administration Summons. 3. The administration summons, under the Stat. 15 8e 16 Vict, c. 86, ss. 45 & 47, may be in a form similar to the form set forth in Schedule (K), No. II., vyith such variations as the circumstances of the case may require. (7th Aug. 1852, 1st Set, Ord. 42.) The statutory provisions referred to in this rule are more extensive in their - operation than the provisions of Sir George Turner's Act, 13 & 14 Vict. c. 35, for the purpose of obtaining the administration of estates summarily. By that Act, sect. 19, executors or administrators of any deceased person may, after one year(o) after his death, provided no proceedings are pending to administer his estate, obtain an order on motion or petition of course to take an account of the debts and liabilities affecting the personal estate ; and any administration decree subsequently made may be stayed under such order. Sects. 20 and 21 provide for the consideration in Court of any objections to the report of the Master under such order of course and subject thereto, the report, fourteen days after filing, shall be absolute. By sect. 22 orders may be made for payment of creditors of the estate similar to decrees in creditors' suits. By sect. 23 the Court may direct appropriation of money part of the estate to meet contingent liabilities. By sect. 2% after report filed, the Court may restrain proceedings against the executors or administrators by claimants on the estate. By sect. 25, subject to the previous sections, payments of assets by the personal representative are good against claimants as if made under decree ; the rights of other parties are saved. The application for the order of course under this Act should be by motion not by petition. Re Brown, 6 W. R. 5 ; Re Hood, 23 Beav. 17 ; which must be mentioned, but no service is necessary ; Re Harrold, 15 Jur. 763 ; 20 L. J. 168: as to sect. 23, see Re Moore, 2 W. R. 85; 23 L. J. 153; Re Howkins, 10 Hare, App. 33. The Act does not apply to real estate. Re Moore, supra. For the forms under this Act, see Sid. Smith's Ch. Pr. 662 ; Seton on Decrees, (a) By sect. 14 of the Act to fiirther amend the Law of Property, 22 & 23 Vict. c. 38, cited post, the account pursuant to this section may be taken immediately or at any time after probate granted, and various provisions are made with respect to proceedings under Sir G. Turner's Act. [104] Oedee XXXV.— Pkoceedings m Chambees. 269 69. Since the Masters Abolition Act the order is made not for a reference to the Master, but "that an account be taken;" such order made on affidavit that the intestate has been dead a year, and that no proceedings are pending. Re Catling, 9 Hare, App. 7 ; 16 Jur. 965. By 15 & 16 Vict. c. 86, ». 45, " It shall be lawful for any person claiming to be a creditor or a specific pecuniary or residuary legatee, or the next of kin, or some or one of the next of kin of a deceased person, to apply for and obtain as of course, without bill or claim filed, or any other preliminary proceedings, a summons from the Master of the Rolls or any of the Vice-Chancellors, requiring the executor or administrator, as the case may be, of such deceased person to attend before him at chambers for the purpose of showing cause why an order for the administration of the personal estate of the deceased should not be granted ; and upon proof H^ affidavit of the due service of such summons, or on the appearance in person or by his solicitor or counsel of such executor or administrator, and upon proof by affidavit of such other matters, if any, as such Judge shall require, it shall be lawful for such Judge, if in his discretion he shall think fit so to do, to make the usual order for the administration of the estate of the deceased, with such variations, if any, as the circumstances of the case may require ; and the order so made shall have the force and effect of a decree to the like effect made in the hearing of a cause or claim between the same parties : provided that such Judge shall have full discretionary power to grant or refuse such order, or to give any special directions touching the car- riage or execution of such order, and in the case of applications for any such order by two or more different persons or classes of persons, to grant the same to such one or more of the claimants, or of the classes of claimants, as he may think fit ; and if the Judge shall think proper the carriage of the order may subsequently be given to such party interested, and upon such terms as the Judge may direct." A voluntary assignee of a debt due from a deceased person cannot maintain a suit for the administration of his estate, Sewell v.Moxsy, 2 Sim., N. S. 189. Administration may be ordered on summons of effects bequeathed by a married woman under a power, Sewell v. Ashley, 3 De G., M. & G. 933. In difficult cases a bill must be filed. Where accounts have been taken at chambers under a decree the Court will ordinarily decide the rights of the parties ; but even then, where there are difficult questions of law or fact, a bill may be required. West v. Laing, 3 Drew. 331. Proceedings by suit may be stayed where summons equally effectual, Ritchie V. Humherstan, 22 L. J. 1006. Decree in a creditor's suit for administration of real and personal estate pending a summons by another creditor for the admi- nistration of the personal estate only ; and as the summons was returnable be- fore the cause could be regularly heard, it was taken out of its course, Furxe v. Hennet, 2 De G. & J. 125. See, as to concurrent suits, Ord, 6, r. 1. The form of order will be the same as in a suit by bill in a like case, Seton on Decrees, 72. Where representative of executrix refuses to account and there is a question of construction a bill may be filed. Smith v. Spilsbury, 8 W. R. 596. See Rump v. Greenhill, cited in note to Ord. 35, r. 1. Executor is not chargeable with breach of trust in a suit by administration summons, but inquiries may be 270 Okdek XXXV. — Pkoceedings in Chambers, [104] directed as to the value of the property in question, Re Delevante, 6 Jur., N. S. 118. On summons an executor cannot be charged on admission of assets^ Re Wiltshire, 8 W. R. 133. On administration summons certificate reporting wilful default disallowed^ Blakeky v. Blakeley, 19 Jur. 368 ; 3 W. R. 288. Defendant not chargeable with wilful default on administration by summons, Re Fryer, 3 Kay & J. 317 ; 26 L. J. 398 ; Partington v. Reynolds, 4 Drew. 253 ; 4 Jur., N. S. 200 ; 27 L. J. 505 ; 6 W. R. 388. As to the cases in which the Court will or will not direct an inquiry as to wilful default, see Seton on Decrees, 385 — 7 ; Daniell's Ch. Pr. 1024; Sleight v. Lauison, 26 L. J. 553. Such inquiry not directed where the decree directs only common accounts, Jones v. Morrall, 2 Sim., N. S. 241. See Nelson v. Booth, cited in note to Ord. 35, r. 16. Where in administration on summons a case of wilful default comes to light, a receiver aiid injunction may be granted for the protection of the property, Brooker v. Brooker, 3 Sm. & G. 475 ; 26 L. J. 411. Where order for administration has been made without objection fi-om parties who several months afterwards file a bill respecting the same estate, the Court will not consolidate the two suits. Rump v. Greenhill, 20 Beav. 512. Where proceedings on summons stayed because of insolvency of party taking out the summons, assignee of the residuary legatee, instead of filing a bill, ought to come in under the former proceedings, IVhittington v. Edwards, 3 De G. & J. 243 ; 7 W. R. 72. Extent of relief obtainable on administration summons, ibid. See, as to conduct of suits, Ord. 35, rr. 22, 23. Creditors who had proved in India not restrained from obtaining payment in English administration suit. Re Brett, 8 W. R. 272. Forties out of the jurisdiction must be served with notice of the order made on summons, Strong v. Moore, 22 L. J. 917 ; I W. R. 509. Guardian ad litem appointed in proceedings on summons. Re Osbaldiston, 1 Sm. & G., App. 12 ; 1 W. R. 255. Sect 46. " A duplicate or copy of such summons shall previously to the service thereof be filed in the Record office of the said Court ; and no service thereof upon any executor or administrator shall be of any validity unless the copy so served shall be stamped with a stamp of such office indicating the filing thereof, and the filing of such summons shall have the same efiect with respect to lis pendens as the filing of a bill or claim." Sect. 47. "It shall be lawful for any person claiming to be a creditor of any deceased person or interested under his will, to apply for and obtain in a sum- mary way in the manner hereinbefore provided with respect to the personal estate of a deceased person, an order for the administration of the real estate of a deceased person, where the whole of such real estate is by devise vested in trustees, who are by the will empowered to sell such real estate, and autho- rized to give receipts for the rents and profits thereof, and for the produce of the sale of such real estate, and all the provisions hereinbefore contained with respect to the applicadon for such order in relation to the personal estate of a deceased person, and consequent thereon, shall extend and be applicable to an application for such order as last hereinbefore mentioned with respect to real estate." [104] Order XXXV. — Proceedings in Chambers. 271 Where the whole estate is not devised to trustees and they have not the powers mentioned in this section, the 9th rule, of sect. 42 of this Act (cited ante in note to Ord. 7) is applicable for the purpose of diminishing the numher of parties to a suit for the administration of the estate. See notes on that rule. In Ogden v. Lotory, 4 W. R. 156 ; 25 L. J. 198, a devisee of real estate subject to payment of debts, &c. was held a trustee within this section. In Piggott V. Young, 7 W. R. 235, a gift of the whole of the testator's real and personal estate, subject to payment of his just debts and expenses held within this section. Whether plaintiff proceeding by bill instead of summons under this section is liable for the extra costs, qutsre ibid. Form of Summons by Chief Clerk. 4. The summons by the Chief Clerk under the Stat. 15 & 16 Vict. c. 80, s. 30, may be in a form similar to the form set forth in Schedule (ET), No. in., with such variations as the circumstances of the case may require. (16th Oct. 1852; Ord. 2.) By 15 & 16 Vict. u. 80, ». 30, " Each Chief Clerk shall for the purpose of any proceedings directed by the Master of the Rolls, or any Vice-Chancellor, to be taken before him, have full power to issue advertisements to summon parties and witnesses, to administer oaths, to take affidavits and acknowledgments other than acknowledgments by married women, to receive affirmations, and when so directed hy the Judge to whose Court he is attached, to examine parties and witnesses either upon interrogatories or vivd voce, as such Judge shall direct." As to the powers of the Chief Clerk in reference to witnesses, see Ord. 35, r. 30. The summons and the copy served must contain the memorandum stating by whom the summons is taken out, and the note required to be added to the original summons where the proceedings originate at chambers. Sid. Smith s Ch. Pr. 513. See post. Schedule L., No. 1. Preparing, Sealing and Leaving of Summons. 5. Summonses shall be prepared by the parties, and sealed by one of the clerks, at the Chambers of the Judge from whose Chambers they are issued, with a seal provided for those Cham- bers ; and a copy of such summons shall be left at the Judge's Chambers by the party obtaining such summons. (16th Oct. 1852; Ord. 3.) As to the manner of writing duplicates of summonses originating proceedings at chambers, see Ord. 16 of 6th March, 1860, in notes to Ord. 15. Filing Duplicate of Summons, and stamping Copy served. 6. In cases of applications under the Stat. 15 & 16 Vict. c. 86, ss. 45 & 47, applications originating in Chambers for guardian- ship and mamtenance of infants, and all other applications origi- nating in Chambers, a duplicate of the summons shall be filed in the Record and Writ Clerks' Office ; and in cases where service is required, the copies served shall be stamped in the manner pro- vided by the Stat. 15 & 16 Vict. c. 86, s. 46. (16th Oct. 1852; Ord. 4.) 272 Oedeb XXXV. — ^Pkocbedings in Chambers. [104] See the sections here referred to cited in the notes to Ord. 35, r. 3. As to guardianship and maintenance of infants, see Seton on Decrees, 346, et leq.; Sid. Smith, Ch. Pr. 55S. The mere appointment of a guardian may be obtained at the Rolls on an er parte petition and satisfactory affidavit, Be Neale, 15 Bear. 250. In an admi- nistration suit a reference for maintenance may be inserted in the decree without petition. Croft v. Beavan, 2 Sim., N. S. 53. Applications for guardian and maintenance are now usually made at chambers ; where directions for the piu-pose are given in Court the inquiries as to the infant's age, property and relations, are now not generally inserted, Seton on Decrees, 349. Applications for maintenance out of fund paid in under the Trustee Relief Act not to be made, Re Hodges, cited in note to Ord. 35, r. 1. Time for Service of Summons. [105] 7. Where proceedings originate in Chambers, the original sum- mons shall be served seven clear days before the retmn thereof. All other summonses, not being summonses referred to ia the 4th Kule of this Order, shall be served two clear days before the return thereof. (16th Oct. 1852; Ord. 5.) The service of the summons is proved by affidavit, see Regulations, Aug. 8, 1867. The affidavit should prove when, where, how and by whom the summons was served. See Ord. 28, r. 8. Appointment of new Time. 8. Where proceedings originate in Chambers, and where from any cause the sunmions may not have been served upon any party seven clear days before the return thereof^ an indorsement may be made upon the summons, and upon a copy thereof stamped for service, appointing a new time for the pMl;ies not before served to attend at the Chambers of the Judge ; and such indorsements shall be sealed at the Judge's Chambers ; and the service of the copy so indorsed and sealed shall have the same force and effect as the service of an original summons ; and where any party has been served before such indorsement, the hearing thereof may, upon the return of the summons, be adjourned to the new time so appointed. (16th Oct. 1852; Ord. 6.) Appearances. 9. Where proceedings originate in Chambers, the parties served shall, before they are heard in Chambers, enter appearances in the Record and Writ Clerks' Office, and give notice thereof. (16th Oct. 1852; Ord. 7.) Proceeding Ex parte. 10. Where any of the parties summoned to attend the Judge in Chambers fail so to attend, whether upon the return of the sum- mons or at any time appointed for the consideration or fiirther consideration of the matter, the Judge may proceed ex parte, i^ considering the nature of the case, he think it expedient so to do. (3rd AprU, 1828; Ord. 53. 3rd June, 1850; Ord. 6.) [106] Order XXXV. — Proceedings in Chambers. 273 He-consideration q/"Ex parte Proceedings— Costs. 11. Where, the Judge has proceeded ex parte, such proceeding shall not m any manner be re-considered in the Judge's Chambers, unless the Ju^e, upon a special application made to him for that purpose by a party who was absent, shall be satisfied that he was not guilty of wilful delay or negligence. And in such case, the costs occasioned by his non-attendance shall be in the discretion of the Judge, who may fix the same at the time, and direct them to be paid by the party or his solicitor before he shall be permitted to have such proceeding re-considered, or make such other order as to such costs as to such Judge may seem meet. (3rd April, 1828; Ord. 54.) Exclusion of Claimants. 12. Where a decree or order is made, whether in Court or in Chambers, directing an account of debts, claims, or liabilities, or an inquuy for heirs, next of kin, or other unascertained persons, unless otherwise ordered, all persons who do not come in and prove their claims within the time which may be fixed for that purpose by advertisement, shall be excluded from the benefit of the decree or order. (16th Oct. 1852; Ord. 9.) See as to advertisements for the purpose of proceedings in chambers, Ord. 35, IT. 35, 36, and 37 ; and as to claimants coming in pursuant to advertise- ments, r. 38. Although the time had elapsed he vrould let in creditors so long as the fund was in Court, Lashley v. Hogg, 11 Ves. 602. Procedure where it appeai'ed by the Master's report that all the creditors had not come in, Good v. Blewitt, 19 Ves. 336. After deficient assets apportioned among creditors, and transferred to the Accountant- General for payment to them, another creditor allowed to come ia on payment of consequent costs, Angell v. Haddon, 1 Madd. 529. Creditor coming in after some legatees paid and fund carried to the account of the rest, entitled to a proportional part only of the latter, Gillespie v. Alexander, 3 Russ. 130. On creditor coming in after long delay every defence against his claim allowed as on a new bill, and undistributed part of the assets liable only proportionately, Graig v. Samerville, 1 Russ. & My. 338. See Underwood v. Hatton, S Beav. 36 ; Loj/ v. Duckett, C. & P. 305 ; David v. Frowd, cited in note to Ord. 35, r. 1. After distribution a legatee cannot proceed against the representatives of the executor, Farrell v. Smith, 2 Ball & Bea. 337. Where an executor passes his accounts in this Court he is discharged from further liability ; but if he pay away the residue without passing his accounts in Court, he does so at his own risk, Knatchbull v. Fearnhead, 3 My. & Cr. 122. Where fund in Court had been distributed to the exclusion of a mortgagee among simple contract and specialty creditors, those of the former, who were defendants to a suit by the mortgagee, were decreed to refund the amounts paid to them, the latter to repay the difference between the sum due to the mort- C. T 274 Oedeb XXXV.— Proceedings in Chambers. [106] gagee and the amount of all e (t., M. & G. 68 i 24 L. J. 366 ; on appeal, 414. Accounts taken in a suit in Jamaica ordered to be primi facie evidence, Sleight V. Lawson, 3 K. & J. 292. Account limited to a certain time. Dean v. Thwaile, 21 Beav. 621 ; Powell v. Aiken, 4 K. & J. 343. Order for leave fbr defendant to examine Witnesses in support of his state of foots admitting receipts, but dischai^ing them by pay- ments, Parker v. Peet, 1 De G. & Sm. 216. As to evidiaice on i^ening a solicitor's accounts, see Coleman v. Mellersh, 2 M. & G. 309. Where a solicitor was ordered to deliver a bill of costs, an application that entries by him should be primd facie evidence was refiised, Morgan v. HigginS, 5 Jdr., N. S. 236. As to the pi of bis; answer, not exceeding siXr on payment for the same at the rate of one-halfpenny per folio." Ord. 10. " OfiSce copies of schedules to answers of accounts or documents ^e to be obtained according' to the' pratftfce now existing for obtaining of&ce copies of answers." Application for Copies'ycmdundertakinff topayi Charges.. 4. The party or Ms sdUcitor requiring any copy, save as ex- cepted in Ae preceding Rule, shall make a •written application to the party by whom the copy onghtto be delivered, or his solicitor,, with an undertaking to pay the propercharg.es. (25th. Oct. 1852; Ord. 1, Art. 2.) Sy whom Copy is to be stqipUed. 5. Upon such requisition being' made, 'With such undertaking as aforesaid, copies of such pleadings, proceedings- or documents, shall be made by Him party or his solicitor jSling or lea'ring the same, or who under the 1st Rule may have taken «ffiee copies thereof. (25th Oct. 1852 ; Ord. 1, Art. 3.) When Copy is to he ready'-' Ihlivery. 6. The copies shall be ready to be delivered at the expiration of fbrty-eigh-t hoars after the delivery of such request and under- taking, or -within such other time as the Court may in any case direct, and shall be delivered accordingly on demand', upon pay- ment of the proper charges. (25th Oct. 1852 ; Ord. I, Art. 4.) See as to effect of default in supplying copies, Ord. 37> r. 16. Copie» of Sills of Costs. 7. Copies of bills of costs shaU be made sidie for side, so as to correspond with the bills of costs left in the office. (25th Oct. 1852 ; Ord. 1, Art. 6.) See as to effect of default in supplying copies, Ord. 37, r. 16. Numbering of Folios of Copies, and Indorsement — Party or Solicitor answerable for their accuracy. 8. The folios of all copies shall be numbered consecutlrely in the margin thereof; and the name and address of the party or solicitor by whom the some are made, shall be indorsed thereon in like manner as upon the proceedings in the Court ; and such party or solicitor shall be answerable for every such copy being a true 300 Order XXXYI.— Copies. [119] copy of the original, or of an office copy of the original pleading, proceeding or document, of which it purports to be a copy, as the case may,,be. (25th Oct. 1852; Ord. 1, Art. 7.) Time for Delivery of Copies of Affidavits, in Cases ofEi^ parte Injunctions and Writs Ne Exeat Regno. 9. In cases of ex parte applications for injunctions or writs of ne exeat regno, the party making such application shall deliver copies of the affidavits upon which it is granted, upon payment of the proper charges, immediately upon the receipt of such written request and undertaking as aforesaid, or within such time as may be specified in such request or may have been directed by the Court. (25th Oct. 1852; Ord. 1, Art. 8.) Production of Office Copies. 10. Any party or solicitor who has taken any office copy men- tioned in the 1st Rule, shall produce the same in Court or at the Judge's Chambers, when required for the purpose of the pro- ceedings to which the same relates. (25th Oct. 1852 ; Ord. 1, Art. 9.) Manner in which Copies are to he made. 11. All copies to be delivered by parties or their solicitors shall be written on paper of a convenient size, with a sufficient margin, and in a neat and legible manner, similar to that which is usually adopted by law stationers ; and unless such copies are so written, the parties or solicitors delivering them shall not be entitled to be paid for the same. (25th Oct. 1852; Ord. 2.) Default in supplying Copies. 12. Where any party or solicitor who is required to deliver any such copy either refuses to deliver the same, or does not deliver the same within the period of forty-eight hours allowed by the 6th Rule of this Order, the person making such application shall be at liberty to procure a copy from the office in which the original shall have been filed, in the same way as if no such application had been made to the party or solicitor; and in such case no costs shall be due or payable to the party or solicitor so making default in i-espect of the copy so applied for. (25th Oct. 1852 ; Ord. 3.) Disallowance of Costs of Copies. 13. The Taxing Master shall not allow any costs in respect of [119] Time generailt. - 30I any copy so taken as aforesaid, unless the same shall appear to him to have been requisite, and to have been made with due care, both as regards the contents and the writing thereof. (25th Oct. 1852; Ord. 5.) [120] Order XXXVII. TIME. {For other Rules relating to Time, see the other Orders, passim.) I. Time genekallt. Times same in Town and Country Causes. 1. The times of procedure shall be the same in town causes and country causes. (8th May, 1845; Ord. 16.) Time of the Day for Service of Proceedings not requiring Personal Service. 2. Service of all writs, notices, summonses, orders, warrants, documents and other proceedings, not requiring personal service upon the person to be affected thereby, shall be made before seven o'clock in the evening, except on Saturday, when it shall be made before two o'clock in the afternoon ; and if made after seven o'clock in the evening on any day except Saturday, the service shaU be deemed as made on the following day; and if made after two o'clock in the afternoon on Saturday, the service shall be deemed as made on the following Monday. (2nd Feb. 1857.) Notice to dismiss before the expiration of the period limited is premature j therefore, under the old practice, notice to dismiss served at half-past seven of the last day of such period was dismissed with costs, Preston v. Collett, 20 L. J. 288. In Newion v. Chorltm, 10 Hare, App. 32, where a motion was refused because short notice had been given without leave, the moving party was held liable only for extra costs occasioned by the irregularity. In Hart v. Tulk, 6 Hare, 611, a motion in like manner irregular was ordered to stand over (cited in note to Ord. 35, r. 23). A party relieved from the effect of an irregularity in serving a notice on pay- ment of costs, Broaditock V. Whatley, 6 Beav. 61. See as to affidavit of service of bill, Ord. 10, rr. 4 & 8 ; of subpoena, Ord. 28, r. 8. 502 OEDBSXXXVn^TiME. tJt20] Where an ord« was-obtained, see an ex parte petition which suppressed the circumstaiice of an adverse inatice of -matisn^ though that nodse was served after the pnoper hour, the order -was .discharged -for the suppression, but with- out costs, Wilkin v. Nainbg, 8 Beav. 465. Interrogatories delivered after 2 p.m. on Saturday held to be too late. Burton v. Robertson, 8 W. R. 430. Tvmefor demurring alone. 3. A defendant may demur alone to any bill within twelve days after his appearance fliereto, but not afterwards. (8th May, 1845; Ord. 16, Art. 10.) Defendant served with copy of the bill (Ord 10, r. 11) did not appear. His demurrer generally to the bill amended by leave at the hearing by adding parties irregular, PoweU v. CockereU, 4 Hare, 5S5. Demurrer filed by eleven o'clock in the forenoon of the thirteenth day bad, Boys v. Morgan, 9 Sim. 262. The twelve days include the vacation, ibid. ; see Ord. 37, rr. 9, 12 and 13. Under the old practice, whexe, after -the twelve days for demurring, defendants obtained reference of the bill for scandal and impertinence, Jhe might demur after the Master's report, Nedby v. Nedby, 8 Sim. 334., Demurrer amyiie allowed after the time limited in special ciroumstaoces, Attorney-General v. Mayor qf Carlisle, 2 Sim. 427. Demurrer to the whole bill, except immaterial facts answered, is not demur- ring alone, Lee y. P.ascae, 1 Bro. C -C. 77 ; Stephenton v. Gardiner, 2 P. W. 286 ; Lansdoume V. Elderton, 8 Yes. 526; Wetherhead v. Blackburn, 2 V. 8c B. 121 ; but a very insufficient answer, if it goes to any material facts, may be equiva- lent to not .demundng alone, Tomkin v. Lethbridge, 9 'Ves. 178 ; Osborne v. Jullion, S Brew. 552. See note to Ord. 37, rr. 4 & 8. By 16 & 16 Vict. c. 86, s. 13, "Whether the {plaintiff, in any suit in ■the said Court commenced by bill, does or does not require any answer from the de- fendant or any one or more of the defendants to the bill, such defendant or defendants may, without any leave of the Com^t, put in a plea, answer or de- murrertotlhe pl^tiff's Inll within the time now allowed to the defendant for demurring alone to a bill, or within such other time as shall lie fixed by any generd order of the Lord Chancdior in that behalf; but after that time a de- fendant'or defendants notriequired ,to answer the plaintiff's bill shall not be at liberty to put in a plea, answer or demurrer to the bill without leave of the Courts provided tiiat the poweriof the Court to grant further time for ]ilead- ing, answering or demurring to any bill, upon the application of a defendant or defendsints thereto, whether reqiuied to answer the ibill or not, shall remain in full force, and shall not .he in anywise pr^udiced or affected ; pio.vided also, that if the Court shall grant any further .time to any defendant for pleading, answering or demurring to ithe hiU, the plaintiff 's right to move for a decree, under the provisions hereinafter .contained, shall in tiis meantime b^ sus- As to excluding the time for giving security for costs &om the time to plead, answer or demur, see Ord. 37, r. 14 ; as to extension of lime in.conseque.nce of nondelivery of any copy, see Ord. 37, r. 19. Tin,eM^utHn,inJ>ieu, ^n^ or J^e^urrer, n>kere Defendant required to ansmer. required to answer. (7th A«g. 1852; 1st S^ Ord. iZ) •Hie time for deUveriDg interrogatories is limited by Ord. il. See as to further time to answer, Ord. 37, r. 8. tr^ T"^^ '"" "^^" ^^""^' is •"" " compliaaoe with an order to.answer. frV- "^'^'r ' ^'°- ''■ «■ 21* ■• 2 Dick. 685 ; Taylor v. Jtf.W, 10 Ves! 444; Jfo™ v.^JCu^. 18 Vesf 297. Demurrer coupled with answer filed after order to plead, answer, &c., and attachment for want of answer taken off the We, Ciirzon v. Lord De la Zmch, 1 Swanst 185. ^^ This rule differs from Ord. 19 of 7th August, 1852, by inserting the words ^^ whether original or amended " after the word " biU," and by substituting "twenty-eight days" for "fourteen days," and by omitting the words "but the CouBt shall have full power to enlarge the time from time to time upon application being made to the Court for that purpose." Under the old practice the defendant, after he had obtained an order for time, allowed to demur in circumstances such as surprise, but not on the merits of the case, Bruce v. Allen, 1 Madd. 556. Demurrer alone after the time limited may be laken off the file, Bysan t. Benson, Coop. Rep. 110. The time between an order to inquire which of two suits is the more bene- £cial and the date of the certificate not excluded from the time for answer- ing, Campbell T. Campbell, Sid. Smith, 283. Time where Defendant not so veqwured. *5, A defendant not required to answer a. lull may, without any leave of the Court, put in a plea, answer or demurrer, not demur- ring alone, within fourteen days after the expiration of the time within which he might have been served with interrogatories for liis examination in answer to such biU. [121] Time for Ajihsreer to Amendments and Ekeceptions together. *6. Wlere a defendant is ordered to answer amendments and exceptions together, he must put in his further answer and his answer to the amendments of the bill within fourteen days after lie shall bave been served with interrogatories for his examination in answer to the amended bUl. Where he does not, and procures no enlargement of the time allowed, he shall be subject to the following liabilities : — (1.) An attachment may be issued i^gaiost himj 304 Oedek XXXVIL— Time. [121] (2.) He may be committed to prison, and brought to the bar of the Court; (3.) The plaintiff may file a traversing note, or proceed to take the bill pro confesso against him. (8th May, 1845; Ord. 16, Art. 15.) This rule differs from Article IS, Ord. 16 of May, 1845, by substituting the words " within fourteen days after he shall have been served vrith interrogatories for his examination in answer to the amended bill," for the words " within four weeks after he is served with notice of such bill." Under the discharged Ord. 8 of 3id April, 1828, by which the Master was to appoint the time for putting in further answer after exceptions allowed, it was held that if, after such time was fixed, the plaintiff moved to amend, the defendant was no longer bound to answer within that time, but was entitled to the regular time for answering amendments and exceptions together, Fosbrooke v. Balguy, 1 Russ. & Myl. 624 ; as to the latter time running from the service of the order, see ibid. Under the same order it was held too late to apply for further time after the expiration of the time limited, Wheat v. Graham, 5 Sim. 570. Time for Answer to Amendments, where no Answer required. *7. Where the plaintiff amends his biU without requiring an answer to the amendments, a defendant who has answered or has not been required to answer the original bUl, but desires to answer the amended bill, must put in his answer thereto within fourteen days after the expiration of the time within which, if an answer had been required, he might have been served with interroga- tories for his examination in answer to such amended bill, or within such further time as the Judge may allow. (8th May, 1845; Ord. 16, Art. 38.) The Art. 38 of Ord. 16 of the 8th May, 1845, here incorporated, had reference to amendments after answer ; the time to answer a bill amended before answer was regulated by Art. 14 of the same Order (not incorporated in the Consolidated Orders), Rigby v. Rigby, 9 Beav. 311. The Art. here incorporated was as fol- lows : — " If the plaintiff amends his bill without requiring an answer to the amendments, any defendant desiring to answer the same must put in his answer thereto within eight days after being served with notice of the amendment of the bill, or within such fm^her time as the Master may allow." That article was substituted for the 14th Ord. of 21st December, 1833, by which, if the plain- tiff without requiring further answer amended otherwise than by alteration of names, dates or sums, or correction of clerical errors, he might after eight days file replication, &c., unless the defendant previously served an order for time to answer, or a warrant for time to answer such amended bill. The following were decisions on the last-mentioned order. Tf the order to amend did not state that no further answer was required, the defendant might have further time, though replication filed, Boddington v. Woodley, 9 Sim. 330. Where plaintiff amended under an order not stating that he required further answer, but subsequently required further answer, [121] Time generally. 305 and afterwards, defendant not having answered within the time limited, iiled replication, the replication held regular, but defendant allowed further time, Hemingway V. Femandes, 12 Sim. 165. Further Time to answer. 8. Where a defendant, using due diligence, is unable to putjn his answer to a bill within the times allowed by these Orders, the Judge, on sufficient cause being shown, may, as often as he shall deem right, allow to such defendant such further time and on such (if any) terms as to the Judge shaU seem just. (8th May, 1845; Ord. 18. 7th Aug. 1852, 1st Set, Ord. 19.) Where the Master gives further time to answer, but the order is drawn up giving further time to plead, answer and demur, &c., defendant may plead an abatement occurring after the order. Hunter v. Nockolds, on appeal, 2 Ph. 540 ; 17 L. J. 253 ; 12 Jur. 149. Plea included in an order for time to answer, Roberts V. Hartley, 1 Bro. C. C. 56 j De Micknuitx v. Udney, 16 Ves. 355. In Newman V. White, 16 Beav. 4, order varied so as to limit it to time to answer only, and plea of plaintiff's insolvency taken off the Hie. In an order giving leave to answer, the words " plead or demur, not demur- ring alone," were struck out as irregular in the circumstances ; a plea afterwards filed taken off the file, Brooks v. Parton, 1 Y. & C. 278. An order to plead, answer or demur, not demurring alone, satisfied by a demurrer with answer on any material points, Osborne v. Jullion, 3 Drew. 552. See note to Ord. 37, r. 3. Defendant requiring further time should apply for it before the expiration of the time limited, Wheat v. Graham, cited in note to Ord. 37, r. 6. Attachment for want of answer sealed before service of an order previously obtained for further time is regular, Kirkpatrick v. Mears, 2 Sim. 16. Attach- ments discharged without costs where due diligence had been used to obtain time to answer, Taylor v. Fisher, 6 Sim. 566 ; Barritt v. Barritt, 3 Swan. 395. Party in contempt not entitled to apply for further time. Wheat v. Graham, ubi supra. Attachment sued out pending Chief Clerk's decision on application for further time irregular, Davis v. Tollemache, 2 Jur., N. S. 564. In Brown v. Lee, 11 Beav. 162, it was held that time ought not to be granted on the first or any subsequent application without an affidavit. In Byng v. Clark, 13 Beav. 92, time for answering enlarged five times. Applications for time to plead, answer or demur are generally to be made at chambers, see 15 & 16 Vict. c. 80, s. 26, cited in notes to Ord. 35. Where defendant submitted to answer exceptions, but plaintiff had been compelled by the general orders to previously set down the exceptions, held that defendant's application for time must be made, not at chambers, but in Court, when the exceptions were called on, Manchester Railway Company v. Worksop Board (^ Health, 4 W. R. 5 i 2 K. & J. 25 ; 25 L. J. 25. In suit to stay proceedings at law, defendant allowed time to answer after considerable delay, on terms of staying execution in his action, Zulueta^v, Vinent, 15 Beav. 575. C. X 306 Oedek XXXVn.— Time. [121; Where plaintiff indicted defendants in respect of trahsaetions to wbicli th( cause related, time for answering extended until after the trial, Lee v. Read 5 Beav. 381. Time for answering ought to be allowed to enable defendant not only to giv< diseovery, but to state his own defence, York and Midland Railway Company v Hudson, 13 Beav, 69. Tiftie to answer cross bill, Lafmte v. Falkland Islands Company, 2 K. & J 276. Id a suit commenced under the old practice, where the time for answeriifj has exjjired, voliintary answer cannot be put in after notice of motion foi decree, Jones v. Howell, 3 W. R. 559 ; 24 L. J. 521. Illusory answer filed to gain time taken off the file, Read v. Barton, cited ii note to Ord. 15, r. 1. ' n. COMPUTATrON OF TiME. Soro to compute limited Time. 9. Where any limited tiine from or afbsr any date or event is appointed or allowed for doing any act or taking any proceeding, and such tiUie is not linlited by hours, the computation of such limited tinle shaU not Include lie day of such date or of the hap- pening of such event, but shall commence at the beginning of th€ next following day; and the act or proceeding shall be done oi taken at th| latest on the last day of such limited time according to such contputation. (8th May, 1845; Ord. 11.) If the time limited were a fortnight, commencing on a Monday, it would include the second Monday following, Angell v. Westcomhe, 1 M. & C. 48 ; sec Preston v. Collett, cited in note to Ord. 9, r. 10. Months. [122' 10. Where the time for doing any act or taking any proceeding is limited by months not expressed to be calendar months, sucl time shall be computed by lunar months of twenty-eight days each, (8th May, 1845; Ord. 12.) See Attorney-General v. Newbury Corporation, Coop. P. C. 383. Exclusion of Sundays and close Days. *11. Where any limited time less than six days from or aftei any date or event is appointed or allowed for doing any act oi taking any proceeding, Sundays, and other days on which th£ offices are closed, except Monday and Tuesday in Easter week, shall not be reckoned in the computation of such limited time. Before this rule Sunday was included in the six days allowed by Ord. 16 art. 48, of 8th May, 1845 (Ord. 33, r. 3), Brewster v. Thorpe, 11 Jur. 6 Sunday was expressly excluded in art 47 of the same Order of 1845 (Ord. 33, r. 2). As to the times when the offices are closed, see Ord. 5. [122] Computation of Time. 307 Time expiring on Sunday or close Day. 12. Where the time for doing any act or taking any proceeding expires on a Sunday or other day on which the offices are closed, and by reason thereof such act or proceeding cannot be done or taken on that day, such act or proceeding shall, so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next open. (8th May, 1845; Ord. 13.) Where Vacation not to be reckoned in Computation of Time. 13. The times of vacation shall not be reckoned in the com- putation of the times appoiated or allowed for the following pur- poses: — (1.) Amending or obtaining orders for leave to amend bnis. (2.) Filing or setting down exceptions for scandal or in- sufficiency, ia cases where the time is not limited by notice given pursuant to the 6th Rule of Order XLII. (3.) Setting down pleas and demurrers. (4.) Filing replications, or setting down causes under the I2th Rule of Order XXXTTI., in cases where a defendant puts in an answer to amehdments to which the plaintiff has not required an answer. (8th May, 1845; Ord. 14. 2nd Nov. 1850; Ord. 4.) This rule difiers from Ord. 14 of 8th May, 1845, in the foUowiu? particulars, art 2 of that order was as follows :— " Filing or referring exceptions, or obtaining a Master's report on exceptions in cases where the time is not limited by the order of reference, or by notice given pursuant to art. 21 of Ord. 16." For thistirticle was substituted Ord. 4 of 2nd November, 18.50, which was adapted to the provisions for having exceptions heard by the Court instepid of being referred to the Master. In article 3, the words " or objeciions for want of parties " were added. Article 4 referred to the order on which the rule men- tioned in article 4 of the present rule is founded. Under the Order of 1845, it was held that vacations were not excluded from the time for filing replication, except in the case of replication filed under the 41st article of the 16th of those Orders, on which Ord. 33, r. 12, art 3, is founded, Stinton v. Taylor, 4 Hare, 608. In computing the three months, after which defendant may move to dismiss for want of prosecution under Ord. 33, r. 13, vacations are not excluded, Bothomley v. Squire, 7 De G., M. & G. 246. The dght days within which, under Ord. 35, r. 52, an application must be made to vary the Chief Clerk's certificate include vacation. Ware v. Watson, 1 T)e G., M . ScG. 739; 20 Jur, 129 ! 25 L. J. 199. Where defendant allowed nearly the whole of the Long Vacation to elapse without giving notice to cross-e^ainine, he was held not entitled to have the x2 3(» Obdek XXXVn.— Time. [122] cause stand over, on the ground that the time limited for cross-examining did not run in the vacation, Bourdillon v. Baddeley, 26 Beav. 255. Where Time for giving Security for Costs not to be reckoned. 14. The day on which an order that the plaintiff do give secu- rity for costs is served, and the time thenceforward until and including the day on which such security is given, shall not be reckoned in the computation of time allowed a defendant to plead, answer or demur, or otherwise make his defence to the suit. (8th May, 1845; Ord. 15.) See as to security for costs, Ord. 1, i. 38 ; Ord. 40, r. 6. [123] Extension of Time, where the Period allowed for certain Purposes expires in the Long Vacation. 15. Where the fourteen days within which, pursuant to the Orders of the Court, a defendant is bound to file his affidavits ii answer to a motion for a decree, or the seven days within whicl the plaintiff is bound to file his affidavits in reply thereto, or th« eight weeks after issue joined within which the evidence in anj cause to be used at the hearing thereof is to be closed, or th( month after the expiration of such eight weeks within which i witness who has made an affidavit intended to be used by an] party to such cause at the hearing thereof is subject to cross examination, shall expire in the long vacation, the time for th( several purposes aforesaid respectively is hereby extended to thi fifth day of the ensuing Michaelmas Term, and shall expire oi that day, unless enlarged by order. And in cases where thi above-mentioned periods of fourteen days and eight weeks respec tively shall be extended by virtue of this Order, the seven day within which the plaintiff is bound to file his affidavits ii reply, and the month during which a witness is subject to cross examination, shaU be respectively taken to commence from th expiration of such extended periods respectively. (1st June, 1854 Ord. 1. 13th Jan. 1865; Ord. 5.) See as to the fourteen days and the seven days here mentioned, Ord. 3S rr. 6 and 7 ; and as to the eight weeks and one month here mentioned, Ord. 1! r. 13. Where plaintiff filed an affidavit August 14th, and defendant gave no notic to cross-examine till November, held that the cross-examination was not matter of right, and in the circumstances was unnecessary, Bourdillon Baddeley, 26 Beav. 255. Additional Time for proceeding in consequence of Default i Solicitor in delivering any Copy. 16. Where a party or solicitor by whom any copy ought to I [123] POTVTER OF THE COUKT AS TO TiME. 309 delivered, pursuant to Order XXXVL, refuses to deliver the same, or does not deliver the same within the period of forty-eight hours allowed by the 6th Rule of that Order, an addition of two clear days shall be made to the period within which any proceed- ing which may have to be taken after obtaining such copy ought to be so taken, so that the person requiring such copy may be as little prejudiced as possible by the neglect of the solicitor to deliver such copy. (25th Oct. 1852; Ord. 4.) See, as to default in supplying copies, Ord. 36, i. 12. m. Power op the Court as to Time. Power to enlarge or abridge Time. 17. The power of the Court or the Judge at Chambers to enlarge or abridge the time for doing any act or taking any pro- ceeding, upon such, if any, terms as the justice of the case requires, shall not be affected by these Orders. (8th May, 1845; Ord. 21. 7th Aug. 1852, 1st Set, Ord. 46.) This rule is substantially the same as Ord. 21 of 8th May, 1845, except that the latter has not the- words " or the Judge at chambers." Applications for further time may now generally be made at chambers. See notes to Ord. 35. The application to enlarge publication and seeking other directions as that the evidence might be taken orally properly made in Court, AtMnsonv. Oxford, ij-c. Railway Company, 9 Hare, App. 19. This rule is somewhat similar to Ord. 35, r. 62. The latter empowers the Judge " to give any special direction as to the course of proceeding, in any cause or matter." [124] Further enlargement of Time. 18. Where the Court or the Judge at Chambers is authorized to appoint the time for any proceeding, or to enlarge the time allowed for any proceeding by General Order, the Court or the Judge at Chambers may further enlarge any time so appointed or enlarged, and on such, if any, terms as shall be deemed just, pro- vided the application for such enlargement is made before the expiration of the time previously allowed, and such enlargement appears to be required for the purposes of justice, and not with a view to create unnecessary delay. (8th May, 1845; Ord. 20.) 310 Ordeh XXXVni.— Solicitors' Fees. [124] O^DER XXXVIII. SOLICITORS' FEES. Casts before February 1, 1857. 1. So far as regards all costs incurred before the 1st of February, 1857, solicitors shall be entitled to charge and be allowed the fees which they were entitled to charge and be allowed immediately before the Order of the 30th of January, 1857, was made. (30th Jan. 1857; Ord. 1 & 4.) In Morritt v. Walton, 23 L. J. 1003, it was held, that OrA 5 of 23rd October, 1852, by which, among other thicgs, a scale of fees for entering appearances was regulated, applied to proceedings by bill as well as by summons. See as to fees for entering appearances, Schedule 2, tit " Attendances," post. Costs on and after Februari/ 1, 1857. 2. So far as regards all costs incurred on and subsequently to the 1st of February, 1857, solicitors shall be entitled to charge and be allowed the fees set forth in the Regulations as to solicitors' fees, subjoined to these Orders, and in such other Regulations as inay from time to time be made in that behalf by the Lord Chan- cellor, by and with the advice and assistance of the other Equity ■ Jiidgea, or the greater number of them. (30th Jan. 1857 ; Ord. 1 &4.) The higher scale of costs applies to all cases except those specified as subjects of the lower scale, Eeade v. Bentley, 3 Kay & John. 271. Order XXXIX. [125] COURT FEES. Fees before February 1, 1857. 1. So far as regards the fees of Court before the 1st of Feb- ruary, 1857, the same shall be regulated in the same manner as they were regulated immediately before the Order of the 30th of January, 1857, was made. (30th Jan. 1857 ; Ord. 1 & 4.) Fees on and after February 1, 1857. 2. So far as regards the fees of Court on and subsequently to the 1st of February, 1857, the same shall be regulateid by the Regulations subjoined to these Orders, and by such other R^ula- tions as may from time to time be duly made in that behalf. (30th Jan. 1857j Ord. 1 & 4.) [12S] Order XXXIX. - Coijkt Fees. 311 Fees to he collected hy Stamps — Amounts thereof, 3. Th^ fees of Court (save as provided by the 8th Rule of this Order) shall be collected, not in money, but by means of stamps denoting the amount of such fees, to be provided and used as by the Sta,t. 15 & 16 "Vict. c. 87, is directed.. And the stamps for ^enoting the amount of such fees shall be of the amounts set forth jn the Regulations as to Court fees subjoined to these Orders, and in such other Regulations as may from time to time be duly made in that behalf. (7th Sept. 1852. 25th Oct. 1852 ; Ord. 6. 3rd Dec. 1852 ; Ord. 1. 4th Dec. 1852 ; Ord. 2. 26th July, 1855.) By 15 & 16 Vict c. 87, s. 6, power is given to the Lord Chancellor by order to vary, reduce or abolish fees payable in Chancery, and to direct that fees be collected by means of stamps. Sect. 7. After such order the fees shall not be received in money, but hy a stamp denoting the amount of the fee. Sect. 8. The Commissioners of Inland Revenue are to give the necessary directions for the receipt and collection of money paid for such stamps, and, after deducting the costs incurred in carrying into eflFect the Lord Chancellor's order, are to pay the monies into the suitors' fee fund. Sect. 9. The Lord Chancellor may direct certain officers of the Court of Chancery to act in the sale of the stamps. Sect. 10 provides for the allowance of spoiled stamps. Sect. 11. Provisions of other Stamp Acts applied to this Act for collecting and securing the monies and punishing offences. By sect. 12, " no document which, by any order or orders to be respectively made as aforesaid, shall be required to have a. stamp impressed thereon or affixed thereto, shall be received or filed or be used in. relation to any proceed- ing in the Court of Chancery, or be of any validity for any purpose whatsoever unless or until the same shall have a stamp impressed thereon or affixed thereto in the manner directed by such order : provided always, that if at any time it ^hall appear that any such document, which ought to have had a stamp im- pressed thereon or affixed thereto, has, through mistake or inadvertence, been received, or filed or used without having such stamp impressed thereon or affixed thereto, it shall be lawful for the Lord Chancellor, if he think fit, to order that such stamp shall be impressed thereon or affixed' thereto ; and there- upon, vhen a stamp shall have been impressed on such document or affixed thereto in compliance with any such order, such document, and every proceed- ing in reference thereto, shall be as valid and effectual as if such stamp had been impressed thereon or affixed thereto in the first instance." Where a written bill is filed and a printed bill is filed subsequently, under 15 & 16 Vict. c. 86, ». 6, one stamp is sufficient for. both, Lambert v. Lomas, 9 Hare, App. 57 ; Jones v. Batten, ibid. ; 2 De G., M. & G. 111. Several stamps, making together the proper amount, may be used. Brain v. Brain, 9 Hare, App. 90. In Robinson v. Harrison, 1 Drew. 307, where after petition answered the petitioner married, it was allowed to be amended by adding her husband as petitioner without fresh stamp. 312 Order XXXIX.— Court Fees. [125] In a pressing case, bill filed without stamp on undertaking to stamp it the next day, Kershaw v. Kahui, 19 Jur. 974. Inland Revenue Commissioners to provide the same — Payment into the Bank of Proceeds of Sale of Stamps. 4. The Commissioners of Inland Revenue shall from time to time give the necessary directions for carrying this Order into effect, as is provided by the said last-mentioned Act. And the said Commissioners shall once in every month cause to be paid into the Bank, to the credit of the Accountaut-General, to the account there intituled " The Suitors' Fee Fund Account," such sums of money as may have been received by them for the stamps hereinbefore mentioned, after deducting the costs, charges and expenses incurred by them or by their direction in carrying this Order into effect, and all sums of money repaid on allowance for spoiled stamps ; and notice of each such payment shall, at the time of making the same, be given by the said Commissioners to the Accountaut-General, who shall certify the amount of such payment to the Court. ^7th Sept. 1852. 25th Oct. 1852 ; Ord. 6. 3rd Dec. 1852 ; Ord. 1. 26th July, 1855.) Mode of using Stamps. [126] 5. Such stamps shall be stamped or affixed, at the expense of the parties liable to pay the fees, on or to the vellum, parchment or paper on which the proceedings in respect whereof such fees are payable are written or printed, or which may be otherwise used in reference to such proceedings. And where any of such fees are payable in respect of any matter or thing to be done by any officer or in any office of the Court, and it has not been cus- tomary to use, in reference to such matter or thing, any written or printed document or paper whereon the stamp could be stamped or affixed, the party or his solicitor requiring such matter or thing to be so done, shall make application for the same by a short note or memorandum in writing, and a stamp denoting the amount of the fee so payable shall be stamped on or affixed to such note or memorandum. (25th Oct. 1852 ; Ord. 6. 3rd Dec. 1852 ; Ord. 2. 4th Dec. 1852 ; Ord. 2.) Defacing Stamps. 6. Every officer of the Court of Chancery (other than a soli- citor, as such), who shall receive any document to which a stamp shall be affixed, pursuant to the provisions of this Order, shall, immediately upon the receipt of such document, cancel or deface the stamp thereon, by writing upon such stamp his name or the initial letters of his name, in such a manner as to show clearly and distinctly that such stamp has been made use of, and so that the same may not be again used ; and no such document shall be [126] Okder XXXIX.— Coukt Fees. 313 filed or delivered out until the stamp thereon shall have been cancelled or defaced in manner aforesaid. (1st Aue 1856 • Ord. 2.) ^' Number of Stamps. 7. Where stamps impressed upon adhesive paper are used, the stamp affixed to the document shall be of an amount correspond- ing as nearly as is practicable with the amount of the stamp which such document requires, in order that no greater number of adhesive stamps may be affixed to any document than is actually necessary. (1st Aug. 1856; Ord. 3.) [127] Fees where CoMs payable out of a Fund in Court. 8. Where costs are directed to be paid out of a fund in Court, the fees of taxation shall not be payable by means of stamps, but shall be carried over by the Accountant-General to the credit of the Suitors' Fee Fund ; and, to that intent, the Taxing Master shall in such cases certify the amount of such fees. (25th Oct. 1852 ; Ord. 7.) Order XL. COSTS, CHARGES, AND EXPENSES GENERALLY. Attorney-General was refused his costs where claiming against a purchase for value, Perkins v. Bradley, 1 Hare, 219 ; in a suit respecting trusts for an alien, Burney v. MacdonaU, 15 Sim. 6. The Court not precluded from giving costs to the Attorney-General on an information, Attorney- General V. Ashburnham, 1 Sim. & Stu. 394. See Attorney-General v. Drapers' Company, 4 Beav. 305 ; Attorney-General v. Dove, Turn. & Russ. 328. At- torney-General having claimed the benefit of a suit which was unsuccessfiil, not entitled to costs, Mayor of Gloucester v. Wood, 3 Hare, 149. Attorney- General not entitled to costs where he unsuccessfully claimed the estate of a convict, Gough v. Davis, 4 W. R. 757. See also as to costs of or against Attorney- General, Attorney-General v. Corporation of London, 2 Mac. & Gor. 247! Smith v. Officers of Stale for Scotland, 13 Jur. 713. In an information filed before the passing of the Act 18 & 19 Vict. t. 90, for enabling the Court to give costs against the Crown, the Court has no jurisdiction to order Attorney-General to pay the costs of a successful defendant. Form of order for payment of costs under that Act, Attorney-General v. Hanmer, 7 W. R. 483 ; 4 De G. & J. 205. The statute 6 & 7 Vict c 73, ss. 37 — 43, regulates the taxation of solicitors' and attorneys' bills. As to the effect of the statute, and for numerous cases 314 Oedee XL.— Costs, Chaeges, etc. [127] upon it, see Sid. Smith's Ch. Pr. 62, et sag. ; Seton on Decrees, 423, et seq. The following notes are coniined to the duties of the Taxing Masters and other matters to which this order has immediate reference. As to the jurisdiction of the Court on petition under this Act, see In Re Smith, 9 Beav. 182, 342 ; Re Strother, 3 K. & J. 518 j Re Osborne, 27 L. J. 533 i 4 Jur., N. S. 296 j Re Howard, 8 Beav. 424. Duties and Powers of Taxing Masters. 1. The Taxing Masters shall perform aU such duties as were formerly referred to or performed by the Masters in Ordinary in relation to the taxation of costs ; and shall in respect thereof have all such powers and authorities as were formerly vested in the Masters in Ordinary, To administer oaths, To examine witnesses and parties. To order the production and inspection of books, papers, and documents, To proceed i/e die in diem. To make separate reports and certificates. To require that any party be represented by a separate solicitor : And to direct and adopt aU such other proceedings as might formerly be directed and adopted by the Masters in Ordinary, on references for the taxation of costs, and taking accounts of what is due in respect of such costs, and such. other accounts connected therewith as may be directed by the Court. (26th Oct. 1842 ; Ord. 9.) The Taxing Masters fix particular times for taxing costs where service of the warrants to tax is not required or is dispensed with. Re Harvey's Settlements, 10 Hare, App. 75. By 6 & 7 Viot. t. 73, ». 37, If either party refuse or neglect to attend on the reference for taxation, the Taxing Master may proceed ex parte. Costs at law, contained in the bill of costs, may be taxed by a taxing-officer at law at the request of the Chancery Taxing Master, Sid. Smith, 84. See note to Ord. 40, r. 3. The order for taxation usujUy authorizes the Master to examine the parties, Seton on Decrees, 432. See form of order, ibid., and Daniell's Ch. Pr, 1361, n. As to the title and form of the petition, see Re Walton, 4 Kay & John. 78. Of a petition for taxation after payment, Re Mash, 15 Beav. 83; Re Thompson, 8 Beav. 237 ; Re Bennett, 8 Beav. 467 ; Re Browne, 1 De G., M. & G. 322. In Re Burchell, 11 Beav. 596, on appeal from the Taxing Master an issue was directed. Though the certificate of taxation had not been filed,.an order was obtained for delivery up of the client's papers on payment of the bill as taxed. Re Camp- bell, 3 De G., M. & G. 585. An action by the solicitor on such bill is a con- tempt, ibid. See as to the Taxing Master's certificiite, Ord. 40, rr, 35 Se 38 ; and as to filing the certificate, 6 & 7 Vict, c, 73, s. 43, and Ord 1 , r. 47. [127] Order XL. — Costs, Charges, etc. 315 To whom References to be made. 2. All references for the taxation of costs shall be made to the Taxing Master in rotation ; or if there shall have been any former taxation of costs in the same cause or matter, then to the Taxing Master before whom such former taxation shall have taken place. (26th Oct. 1842 ; Ord. 10.) The Registrar now directs the reference "to the proper Taxing Master,"where there has abeady been a reference to a Taxing Master the order is carried into his office ; otherwise to the Master in rotation, Sid. Smith, 13. As to where an order of course is proper, and where a a special condition is required for taxation, see Sid. Smith, 71, et seq. As to overcharge or pressure as a ground for taxation after payment, see Ex parte Walker, 29 L. J. 625. An application to tax costs in a cause should be before the Judge who heard the cause where the merits of the case are entered into ; but in other cases an application by a client to tax is not to be heard necessarily by the Judge who heard the cause, see notes to Ord. 6, r. 5 ; after agreement to tax costs in cause in Vice-Chancellor's Court, application to Master of the Rolls to tax refused with costs, Re Howard, 8 Beav. 424 ; taxation as between solicitor and client where directed by decree cannot be varied on petition, Massie v. Drake, 4 Beav. 433 ; after the taxation partly proceeded with it is too late to vary the order, and too early to correct any error of the Master, Tarbuck v. Tarbuck, 4 Beav. 149 J as to successive taxations see ibid. A party to a suit may obtain an order to tax his solicitor's bill though some of the items are included in an. order to tax in the suit, Re Fluker, 20 Beav. 143 ; see Ex parte Quilter, 4 De G. & S. 183. [128] Taxing Af asters to assist each other. 3. The Taxing Masters shall be respectively assistant to each other ; and in the discharge of their duties, and for the better dispatch of the business of their respective offices, any Taxing Master may tax or assist in the taxation of a biU of costs which has been referred to any other Taxing Master for taxation, and for ascertaining what is due in respect of such costs, and in such case shall certify accordingly. (26th Oct. 1842; Ord. 15.) By 6 & 7 VicL u. 73, o. 42, " The Taxing Masters are empowered to request the proper officers of other Courts to assist them in taxing any part of a bill, and such o£Scers are to tax the same." Solicitor rvho is Guardian ad litem. 4. Where the Court appoints one of the Solicitors of the Cou«t to be guardian ad litem of an infant or person of unsound mind, the Court may direct that the costs to be incurred in the per- formance of thie duties of such office shall be borne and paid, either by the parties or some one or more of the parties to the suit in which such appointment is made, or out of any fund in Court in which such infant or person of unsound mind may be interested, and may give directions for the repayment or allowance of such 316 Oedek XL.— Costs, Chakges, etc. [128] costs, as the justice and circumstances of the case may require. (26th Oct. 1842 ; Ord. 28.) See as to appointment of guardian ad litem, Ord. 7, rr. 3, 6 & 7. Where the solicitor to the suitors' fund is guardian to infant defendants in a foreclosure suit, his costs are to be paid by plaintiff and added to his own, even though the security is inadequate, Harru v. Hamlyn, 3 De G. & S. 470 ; 18 L.J. 403 ; solicitor to the suitors' fund appointed guardian at plaintiff's instance, though he appears for other defendants defending tn formi pauperis, has fiill costs as guardian, and not merely a proportion of the costs relatively to the number of defendants, Frazer v. Thompson, 1 Giff. 337. See Re Colqvlumn, cited in note to Ord. 40, r. 12. Costs of solicitor to suitors' fund guardian in a partition suit ordered to be paid by plaintiff and charged on the infant's share, Robinson v. Aston, 9 Jur. 224. Party Suing or Defending in Forma pauperis. 5. Where costs are ordered to he paid to a party suing or defending in forma pauperis, such costs shall be taxed as dices -costs, unless the Court shall otherwise direct. (10th Dec. 1849.) See as to suing in formA pauperis, Ord. 7, rr. 8— 11. On an appeal dives costs payable to respondent, a married woman, suing in formA pauperis, Wellesley v. Wellesley, 1 De G., M. & G. 501 ; so as to costs of an abandoned motion, Momingion v. Keane, 3 W. R. 429 ; 24 L. J. 400. Party suing in formA pauperis, and proving successful, held entitled to ordinary costs, Roberts v. Lloyd, 2 Beav. 376. Heir-at-law suing in formA pauperis held in the circumstances entitled to pauper costs only, Stafford v. Higginbotham, 2 Keen, 147. Plaintiff a pauper ; costs of impertinence in the answer ordered to be taxed as dives costs, and paid into Court, Rattray v. George, 16 Ves. 232. Where order to sue in formd pauperis has not been served, and no step has been taken inconsistent with it, the Court has a discredonary power to give the pauper the benefit of it, Church v. Marsh, 2 Hare, 652. Security for Costs. 6. One hundred pounds shall be the penal sum in the bond to be given as a security to answer costs by any plaintifiF who is out of the jurisdiction of the Court. (3rd April, 1828 ; Ord. 40.) As to security for costs see Ord. 1, r. 38 ; Ord. 37, r. 14 ; Daniell's Ch. Pr. 32 ; Sid. Smith's Ch. Pr. 772. In Smith v. Hammond, 6 Sim. 10, a defendant in an interpleading suit out of the jurisdiction ordered to give security for costs, he being looked upon as a plaintiff. A plaintiff in the jurisdiction whose residence cannot be found or who gives B fictitious address, ordered to give security, Sandys v. Long, 7 Sim. 140; affirmed, 2 Myl. & K. 487 (see that case observed upon in Hurst v. Padwiek, infra); Oldale y. Whitcher, 5 Jur., N. S. «4. So where plaintiff's solicitor refused all information as to his residence, Bailey v. Gundry, 1 Keen, 53. In Sibbering v. Earl Balcarras, 1 De G. & Sm. 683, where plaintiff's address [128] Obdek XL.— Costs, Charges, etc. 317 • was insufficiently described, the application for security stood over to give him an opportunity to amend. Where plaintiffs' residence was stated in their original but omitted in their supplemental bill, they were ordered to give security, Campbell v. Andrews, 12 Sim. 578. A person only temporarily in England required to give security, Ainslie v. Sims, 17 Beav. 57 ; Perrot v. Novelli, 9 Jur. 770. The solicitor of the party may not be his surety, Pantm v. Labertouche, 1 Ph. 265. Where plaintiff amending his hill omitted to state the change of his address, application for security in the circumstances refused, Kerr v. Gillespie, 8 Jur. 50 ; 13 L. J. 135. Where plaintiff described himself as of a particular place but was proved to have no fixed residence, security for costs ordered to be given; Calvert v. Day, 2 Y. & C, Ex. 217. Plaintiff believed to have gone abroad to avoid payment, ordered to give security, Busk v. Beetham, 2 Beav. 537 ; plaintiff frequently changing his abode required to give security, Player v. Anderson, 15 Sim. 104 ; 10 Jur. 169 j 15 L. J. 189 ; not so required where his address was a house unoccupied but tenanted by him, Manby v. Bewick, 19 Jur. 1015 ; nor where he was not actually resident at the address stated, and there was no intentional misdescription. Hurst V. Padunch, 12 Jur. 21. A peer who is plaintiff in a suit and out of the jurisdiction must give the usual security for costs, Lord Aldborough v. Burton, 2 Myl! & K. 401. Security required where it appears upon the bill that an officer in the king's service is resident out of the jurisdiction, unless it is distinctly stated in the bill that he is on actual service, Lillie v. Lillie, 2 Myl. & K. 404 ; naval officer abroad on service not ordered to give security, Evelyn v. Chippendale, 9 Sim. 495 ; Colebrooke v. Jones, 1 Dick. 154; ambassador or consul abroad not ordered to give security, ibid. ; ambassador's servant must give security, Goodwin v. Archer, 2 P. Wms. 452. Plaintiff, an officer in the navy, on service, not liable to give security, Clark ». Fergusson, 5 Jur., N. S. 1155. The order for security should direct all proceedings to be stayed until secu- rity given, Fox v. Blew, 5 Madd. 147. Semble, the merits of the case cannot be entered into on an application for security, Hurst v. Padwick, 12 Jur. 21. The simple fact that a plaintiff is gone abroad is not sufficient to compel him to give security for costs, Hoby v. Hitchcock, 5 Ves. 699 ; nor where there is evidence of his intention to return, White v. Greathead, 15 Ves. 2 ; Blakeney V. Dttfaur, 2 De G., M. & G. 771. The defendant is entitled to require that the persons proposed as security be solvent persons, Cliffe v. Wilkinson, 4 Sim. 122. Plaintiff resident in Ireland or Scotland must give security, Hill v. Reardon, Madd. & Gel. 46. Security not ordered to be given unless all the plaintiffs out of the jurisdic- tion, Walker v. Easterby, 6 Ves. 612. 318 Oedee XL. — Costs, Chaeges, etc. [128] Plaintiff in cross suit not generally ordered to give security, Vincent v. Hunter, 5 Hare', 320; McGregor v. Shaw, 2 De G. & Sm. 361 (but may be required to give security to the defendants who are not parties to the original suit, Sloggatt V. Fiant, 13 Sim. 187) ; nor a plaintiff seeking to restrain an action at law to which he is defendant, Watteeu v. Billham, 3 De G. & S. S16 ; de- fendant obtaining conduct of the cause ordered to give security, Mynn v. Hart, 9 Jur. 860, Seourily not required unless it apipear by the bill or an affidavit that plaintiff is permanently resident abroad, Green v. Charnock, 3 Bro. C. C. 371 j 2 Cox, 284 ; 1 Ves. jun. 396 ; master mariner on a voyage required to give security, Stewart v. Stewart, 20 Beav. 322. Answer or application for time is a waiver of right to security, Meliorucehy v. Meliorucchy, 2 Ves. 24 ; Craig v. Bolton, 2 Bro. C. C. 608 ; Anon., 12 Ves. 287 ; but demurrer is not such a waiver, Watteeu v. Billham, 3 De G. & Sm. 516 j nor is filing affidavits in opposition to motion for an injunction such a waiver, Murrow v. Wilson, 12 Beav. 497; or in opposition to a petition, E,v parte Seidler, infra. Order for security where answer was sworn after plaintiff had gone, but before defendant discovered that he had gone a\yt6ad, Dyott v. Dyoit, 1 Madd. 187. Application for further time to answer, no waiver where defendant did not know till subsequently that plaintiff was liable to give security, Swanzy v. Swanzy, 4 K. & J. 237. Appearance on motion for payment into Court, or on motion for production of documents, no waiver. Cooper v. Purton, 8 W. R. 702. After answer to original and demurrer to amended bill, plaintiff again amended, stating his residence out of the jurisdiction, defendant entitled to security though he bad notice of the change of residence before the second amendment, Wyllie v. Elliee, 11 Beav. 99. Mere intention to go abroad not sufficient ground for acquiring security, Wyllie v. Elliee, supra ; otherwise where plaintiff about to be removed under the Alien Act, Seiiaz v. Hanson, 5 Ves. 261. Client resident abroad applying to tax his solicitor's bill must give security for the costs of the proceeding, Se Passmore, 1 Beav. 94 ; and for what shall be found due, Anon., 12 Sim. 262. Defendant out of the jurisdiction presenting a petition in a suit not re- quired to give security, Cochrane v. Fearon, 1 8 Jur. 568 ; security for costs may be required from a person not a party petitioning, Atkins v. Cooke, 4 Drew. 694; 5 W. R. 381 ; Partington v. Reynolds, 6 W. R. .307. Security is required from petitioner out of the jurisdiction. Ex parte Seidler, 12 Sim. 106 ; He Dolman, 11 Jur. 1095. Creditor petitioning in an administration suit required to find security, Drever v. Maudesley, 5 Russ. 11. Order to give security, in default the bill to be dismissed, Camac v. Grant, 1 Sim. 348 ; but Sir A. Hart, who made tUs order, subsequently considered it contrary to the practice of the Court See 2 Sim. 570, and the next case. Order in default of giving security that an ex parte injunction be dissolved, but not that the bill be dismissed. Fort v. Bank of England, 10 Sim. 616. In the later case of Giddings v. Giddings, the order was that, in default of security) the bill should be dismissed, 16 L. J. 183 ; 11 Jur. 549; 10 Beav. 29, where [128J Obdek XL.— Costs, Chabges, etc. 319 the cases are collected. Where the surety dies or becomes bankrupt, proceed- ings stayed until a new surety appointed, Zati^our v. Holcombe, 1 Phill. 263; Veitchv. Irving, 11 Sim. 122. Liberty to sue on the security bond, Robinson v. Brutton, 6 Beav. 147. Each defendant, or set of defendants, may require a bond ; but only one penalty of IQOl. recoverable, Lowndes v. Robertson, 4 Mad. 465. Bond of an incorporated association held sufficient security, Plestow v. Johnson, 1 Sm. & G., App. 20. Order for security discharged on plainti£E^s return to this country, O'Connor V. Sierra Nevada Company, 24 Beav. 435. Limited liability company, though alleged to be insolvent, not required to give security where the Court was not satisfied that its assets would be in- sufficient to pay the defend|nt's costs, Caillaud's Company v. Caillaud, 26 Beav^ 427. See Australian Company v. Fleming, infra. Security for costs where required is given to the Clerks of Records and Writs, Ord. 1, 1.38. By 15 & 16 Vict. t. 86, s. 1 1, " Before the name of any person shall be used in any suit to be instituted in the said Court as next friend of any infant married woman, or other party, or as a relator in any information, such person shall sign a written authority to the solicitor for that purpose, and such authority shall be filed with the bill, information, or claim." Next friend of infant not required to give security on the ground of poverty. Fellows V. Barrett, 1 Keen, 119. Where a solicitor from improper motive caused a l)iU to be filed by his brother as next friend of an infant, it was taken off the file without costs as to the next Iriend, Startin v. Bartholomew, 12 L. J. 178. See Murrell v. Clapham, 8 Sim. 74. A poor relator required to give security for costs i where a person allowed his name to be used as relator on receiving firom the solicitor an indemnity as to costs, information taken off the file, Attorney-General v. Skinners' Company, C. P. Coop; 6. See as to married women suing in formd pauperis without next friend, note to Ord. 7, r. 8 ; Crouch v. n^aller, there cited is reported, 4 De G. & J. 43. As to application by wife to change next friend, see Sreenamay v. Rotherham, 9 Sim. 88 ; Jones v. Fawcett, 2 Ph. 278. Where next friend of a married woman became resident abroad security was required, Alcork v. Alcock, 5 De G. & Sm. 671 ; so where next friend was a labourer, Stevens v. Williams, 1 Sim., N. S. 545 ; where a new next friend was substituted during the suit, the former next friend was required to give his bond with a surety for the costs already incurred, Payne v. Little, 1 6 Beav. 563 ; 22 L. J. 1037 i Davenport v. Davenport, 1 S. & S. 102 ; next friend whose name had been substituted without his sanction held liable for all the costs and not merely for those incurred since the substitution, Bligh v. Tredgett, 5 De G. Si S. 74. Where the next friend of a married woman out of the jurisdiction was a domestic servant, the Court refused to require a new next friend. Lander v. Parr, 16 L. 269. Where plaintiff in creditor's suit, after leave given to try an issue, declined 320 Order XL. — Costs, Charges, etc. [128] to try it, other creditors were permitted to do so on giving security for the costs of the trial, Elliott v. /nee, 27 L. J. 51. Increased security never required on account of plaintiff's poverty, but may be made a condition where he comes to the Court for some indulgence, Ogilvie V. Hearne, 11 Ves. 598 ; Gage v. Lady Stafford, 2 Ves. sen. 557. Bond for 100^ held sufficient security ; semhle, the Court will never require security beyond lOOJ., Australian, ^c. Company v. Fleming, 4 K. & J. 407 ; 6 W. R. 589 (where application was made under the Joint Stock Companies' Act, 1857, s. 27, by which a limited company may be required to give sufficient security for the costs of legal proceedings by it). See Caillaud't Company v. Caillaud, supra. In Cliffe V. Wilkinson, 4 Sim. 122, plaintiff was allowed to pay into Court 120L in lieu of giving security for costs. Reference to the Master to approve of a proper sum so to be paid in, FelBSwes v. Deere, 3 Beav. 353. Amendment of Sill. 7. Where the plaiiitiff is directed to pay to the defendant the costs of the suit, the costs occasioned to a defendant by any amend- ment of the bill shall be deemed to be part of such defendant's costs in the cause (except as to any amendment which may have been made by special leave of the Court, or which shall appear to have been rendered necessary by the default of such defendant) ; but there shall be deducted from such costs any sum which may have been paid by the plainti£^ according to the course of the Court, at the time of any amendment. (3rd April, 1828; Ord. 29.) Unnecessary Amendment. [129] 8. Where, upon taxation, a plaintiff who has obtained a decree with costs is not allowed the costs of any amendment of the biU, upon the ground of its having been unnecessarily made, the de- fendant's costs, occasioned by such amendment, shall be taxed, and the amount thereof deducted from the costs to be paid by the defendant to the plaintiff. (3rd April, 1828; Ord. 30.) The Court will not on motion order payment of costs occasioned to a defend- ant by amendments by which nearly half the bill was struck out, when it appears that the amendments were made under the advice of counsel, and not for the purpose of vexation or oppression, Monck v. Earl Tankerville, 10 Sim. 284. Where plaintiff by amendment entirely changed his case, defendant held entitled to the extra costs thereby occasioned. Smith v. Smith, Coop. 141 ; Manor v. Dry, 2 Sim. Sl Stu. 113. Where plaintiff on amendment strikes out a large and material part of the bill, defendant on motion entitled to costs occasioned, Dent V. Wardel, 1 Dick. 339. Where plaintiff had leave at the hearing to amend by adding parties, and thereupon struck out several charges, they were ordered to be restored that the defendant at the hearing might have his costs of them, Bullock v. Perkins, 1 Dick. 110. In Strickland v. Strickland, 3 Beav. 242, the Taxing Master was directed to tax costs of unnecessary amendments. [129] Order XL. — Costs, Charges, etc. 321 The question of unnecessary amendments can be most properly dealt with at the hearing, Allen v. Spring, 26 Beav. 615. See cases cited in the note, ibid. Pleadings, ^c, imjiroper or of unnecessary length. 9. Where, upon the hearing of any cause, petition or motion, the Court is of opinion that any pleading, petition or affidavit, or any part thereof is improper or of unnecessary length, there, unless the same has been referred for impertinence under the practice existing before the passing of the Stat. 15 & 16 Vict, c. 86, the Court may either declare such pleading, petition or affi- davit, or any part thereof, to be improper or of unnecessary length, or may direct the Taxing Master to look into such pleading, petition or affidavit, and distinguish what part thereof is improper or of unnecessary length; and may direct the Taxing Master to ascertain the costs occasioned to any party by such part thereof as in the one case may have been declared to be, and in the other case may have been distinguished as being, improper or of un- necessary length, and may make such order as is just for the payment, set-ofl^ or other allowance of such costs. (8th May, 1845; Ord. 122.) See as to impertinence and prolixity, Ord. 8, r. 2 ; 15 & 16 Vict. c. 86, s. 17, cited ante in first note to Ord. 16. See as to disallowing the costs of such part of an affidavit as is improper or of unnecessary length, Skidmore'a Trust, 1 Jur., N.S.696; 3W.R.584; 24 L.J. 711. In a petition under the Lands Clauses Act, sections of the Act ought not to be set out, Re Manchester Railway, cited in note to Ord. 34, r. 3. Costs of improper pleadings are generally left to the discretion of the Taxing Master, Moore v. Smith, 14 Beav. 396 j Woods v. Woods, 5 Hare, 229 ; Burchell v. Giles, 11 Beav. 34. A petition for money paid in under the Trustees' Relief Act is of improper length where it states more of the trustees' affidavit than suffices to show the reason of the payment into Court and the parties claiming the fund. Re Cour- tois, 10 Hare, App. 64. As to what has been considered impertinent in an answer, see Davis v. Cripps, 2 Y. & C. C. C. 436 ; Tench v. Cheese, 1 Beav. 571 ; Byde v. Masterman, Cr. & F. 265; Latigley v. Fisher, 10 Sim. 345 ; Attorney- General v. Foster, 2 Hare, 81 ; in answer to bill of revivor see last two cases, and Devaynes v. Morris, 1 M. & Cr. 215 ; in supplemental bill. Woods v. Woods, 10 Sim. 197 ; an affidavit could not be referred for impertinence by a party who had filed affidavits in reply. Keeling v. Hoskins, 2 Russ. S19; Re Burton, 1 Russ. 380. In Hyder v. Colman, 21 L. J. 592, direction to Taxing Master to disallow costs of immaterial parts of an unopposed petition. A schedule to an answer to a bill for an account of profits of mines held im- pertinent, which comprised 3,431 folios of items of disbursements, Norway v. Rome, 1 Merr. 347 ; see Slack v. Evans, 7 Price, 278, n. ; Marshall v. Mellersh, 6 Beav. 558. Reference to the Master to inquire into prolixity in cross bill, Woods y. C T 832 Order XL. — Costs, Charges, etc. [129] Woods, 5 Hare, 229. See as to impertinence generally, Al^rey v. AUfrey, 15 Jur. 831. In Dufaur v. Sigel, 4 De G., M. & G. 520, on dismissal of an appeal, de- fendant was ordered to pay plaintiff 201. for impertinent matter contained in affidavits. Impertinent or unnecessary Matter in Statememts, Affidavits, ^o. used in Judges Chambers, 10. Where it appears to the Judg? in Chambers that any state- ment, affidavit or other proceeding before him, contains imper- tinent or unnecessary matter, he may (without any application made to him for the purpose) disallow such matter, aixd the Chief Clerk shall distiiiguish by his initials in the margin the parts so disallowed, and shall state such disallowance in his report or cer- tificate as to the pa,rticular inquiry on which such statement, affi- davit or other proceeding shall have been used before him ; and in the taxation of costs, no costs shall be allowed to the party by or on whose behalf such statement, affidavit or other proceeding was brought into the Judge's Chambers, for or in respect of the matter so disallowed ; and the Taxing Master shall allow to the other parties to the suit or matter all such costs as have been in- curred by or occasioned to them by reason of the matter so dis- allowed; and such costs sh^ll be paid by the party by or on whose behalf such statement, affidavit or other proceeding was so brought in. (3rd June, 1850; Ord. 9.) [130] Time, for applying for Costs, of impertinent Matter. 11. The application to be made under the Stat. 1$ 8^ 16 Vict, c. 86, s. 17, for the costs of any impertinent matjter introduced into any bill, answer or other pro(;eeding, shall be. made at th^ time -vfhen the Court disposes of the costs of the cause or matter, and not at any other time. (7th Aug. 1852, 1st Set, Ord. 30. J Separate, Answers or Proceedings by same Solicitor. 12. Where the same solicitor is employed for two or more de- fendants, and separate answers are filed, or other proceedings had, by or for two or more of such defendants separately, the Taxing Master shall consider, in the taxation of such solicitor's bill of costs, either between party and party, or between solicitor and client, whether such separate answers or other proceedings were necessary or proper; and if he is of opinion tha,t amy part of the costs occasioned, theireby has been unneeessarUy or improperly incurred, the same shall be disallowed. (3rd April, 1828; Ord. 27. Jt See Ord. 35, rr. 20 & 21. Co-trustee who improperly refused to join as plaintiff refused his costs, Hughes v. Key, 20 Beav. 393. ' Parties not joining as plaintiffs, though in the same interest as plaintiffs, held not entitled to costs of a suit which was successful as to their interests, England v. [130] OkOer XIr.— Costs, Charges, ETC. 323 Doums, 6 Beav. 279. See note to Ord. 40, r. 16. Defendants allowed to sever, allowed the costs of separate counsel, Bainbrigge v. Moss, 3 Jur., N. S. 107. Trustees, in some cases, may sever in their answer, and be allowed their costs, Reade v. Sparkes, 1 Moll. 8. Trustees will not in general be allowed costs consequent on their separate defences, unless some of them have bene6cial Interest or there is special reason for their severance. Gaunt v. Taylor, 2 Beav. 346 ; IFoods v. Woods, 5 Hare, 229; Dudgeon v. Corley, i Dr. & W. 158; Tarhuek v. Woodcock, 3 Beav. 289; Greedy v. Lavender, 11 Beav. 417; Course v. Humphrey, 26 Beav. 402. Trustee who had not acted disallowed the additional costs occasioned by his putting in a full answer, Martin v. Persse, 1 Moll. 146 ; see Blount v. Burrow, 3 Bro. C. C. 90. Defendants cannot be compelled to join in their defence, Vansandau v. Maore, 2 S. SiS. 509 ; on appeal, 1 Russ. 441. See as to proceedings- by one solicitor, Peyton v. Bond, and other cases cited in note to Ord. 35, r. 20. If trustee finds anything wrong in his co-trustee's accounts, that is a good ground for severing, Hodson v. Cmh, cited in note to Ord. 35, r. 20. Trustees and eestuU que trust in the same interest not entitled to sever because living remote from each other, Farr v. Sheriffe,i Hare, 528 ; but where a motion for a receiver was refused with costs the Court refused to make a special order as to the costs of trustees who lived remote from each other and severed in their defences, Wiles V. Cooper, 9 Beav. 298. Co-heiresses of a trustee living remote from each ether, held entitled to separate costs, Aldridge v. Westhrooke, 4 Beav. 212. Husband and wife living apart, entitled to only one set of costs, Garey v. Wbittingham, 5 Beav. 268. Bankrupt and his assignees entitled to only one set oC costs, ibid. On taxation, the solicitor for several defendants is allowed against each of them a pusportion only of the costs common to them all. Re Colquhoun, 22 L. J. 484 ; 17 Jur. 409 ; on appeal, 5 De G., M. & G. 35, cited in note to Ord. 35, r. 20 i but not where he is appointed guardian ad litem of one of them at the , instance of plaintiff, Frazer v. Thompson, cited in note to Ord. 40, r. 4. Trustee to pay his own costs of a voluminous answer put in by him after being requested by plaintiff to put in the usual trustees' answer only, Austen v. Smithson, I Moll. 1 3. Cestui que trust defendant to pay the costs of a cO'defend- ant trustee whom he had not requested to join in answering, Cuddy v. Waldron, 1 Moll. 14. Costs of Insufficiency where Exceptions submitted to. 13. Where a defendant submits to exceptions for insufficiency, which have not been set down for hearing, he shall pay to the plaintiff twenty shillings costs. (22nd May, 1661; Sand. 300.) An4 wherb a plaintiff obtains a decree with costs, the costs occa- sioned to the plaintiff by the insafflciency of the answer of any defendant- who shall hseve submitted to exceptions for insufficiency, shall be deemed to be part of the plaintiff's costs in the cause, such sum being deducted therefrom as shall have been paid by y2 324 Order XL.— Costs, Charges, etc. [130] the defendant upon the exceptions to the said answer being sub- mitted to. (3rd April, 1828; Ord. 28.) Notwithstanding the order on which the latter part of this rule is founded, the Court might direct immediate taxation and payment of the full costs occa- sioned by several insufficient answers, Poole v. Gordon, C. P. Coop. 433. See, as to the costs of exceptions, Willis v. Childe, cited in first note to Ord. 16. Costs of exceptions for insufficiency are usually disposed of at the hearing of the exceptions, Thomas v. Rawling, 27 Beav. 375. See Earp v. Lloyd, cited in first note to Ord. 16. [131] BUI of Discovery filed by Defendant. 14. The costs of a bill of discovery fQed by any defendant to a bill for relief shall be costs in the original cause, unless the Court shall otherwise direct. (8th May, 1845; Ord. 125.) The bill of discovery contemplated by this order is a cross-hill of discovery, in aid of a defence to an original bill, Hening v. Dingwall, 2 Ph. 212. Defendant to a cross-bill of discovery after answering it obtained an order of course for his costs, suppressing the fact that the bill was a cross-bill ; the order held irregular, Watts v. Penny, 11 Beav. 435 ; 13 Jur. 578. The Ord. 41 of August, 1841, directed the costs of a cross-bill of discovery, and the answer thereto to be in the discretion of the Court at the hearing ; see as to the effect of that order where plaintiff dismissed his original bill, after answering cross-bill, Westfield v. SHpwith, 13 Sim. 265 ; on appeal, 7 Jur. 499 i 12 L. J. 431 ; 1 Phill. 277. The provisions of 15 & 16 Vict. c. 86, ss. 19 & 20, render cross-bills of dis- covery, to a great extent, unnecessary. See the sections cited in notes to Ord. 19, r. 6 ; Ord. 42, i. 3. Defendant to a bill of discovery not a cross-bill, after answer, may move as of course for his costs, when the time for excepting has expired, but not where the bill prays relief, Attorney-General v. Burch, 4 Madd. 178 ; South- Eastern Railway Company v. Submarine Telegraph Company, cited in note pre- ceding, Ord. 33, r. 10. Where plaintiff does not examine witnesses, defendant entitled to his costs of a bill to perpetuate testimony, Barham v. Longman, 2 Sim. 460 ; Beavan v. Carpenter, 11 Sim. 22, cited in note to Ord. 9, rr. 6 and 7. In a suit to perpetuate testimony and for discovery, defendant had his costs of discovery, though he examined witnesses in chief, Skrine v. Powell, 9 Jur. 1054. Where the party filing a cross bill of discovery succeeded in the suit, he had all the costs of the discovery though he used only part of it, Robinson v. Wall, 10 Beav. 73. Defendant to a bill of discovery does not lose his right to costs after answer by accepting costs of an amendment, nor by neglecting to serve plaintiff with the order for costs of discovery until after being served with the order to amend, Coventry v. Bentley, 3 Mer. 677. A bill of discovery cannot be turned into a bill of relief, Butlerworth v. Bailey, 15 Ves. 358 ; nor can a bill for relief be turned into a bill for discovery only, Cholmondeley v. Clinton, 2 V. & B. 113. [131] Ordeb XL. — Costs, Chakges, etc. 325 See as to reading answer to interrogatories filed by defendant, or to cross-bill of discovery, Ord. 19, r. 6. Appearance entered by Plaintiff. 15. The plaintiff, having duly caused an appearance to be en- tered for any defendant, is entided, as against the same defendant, to the costs of and incident to entering such appearance, whatever may be the event of the suit ; and such costs shall be added to amy costs which the plaintiff may be entitled to receive from such ^defendant, or be set off against any costs which he may be ordered to pay to such defendant ; but payment thereof shall not be other- wise enforced without the leave of the Court. (8th May, 1845; Ord. 35.) See as to appearance entered by plaintiff for defendant, Ord. 10, r. 4, et seq. Costs of requiring formal Party to appear and answer. 16. Where no account, payment, conveyance or other relief is sought agaiast a party, but the plaintiff requires such party to appear to or answer the bill, the costs occasioned by the plaintiff having required such party so to appear to or answer the biU, and the costs of all proceedings consequent thereon, shall be paid by the plaintiff, unless the Court shall otherwise direct. (26th Aug. 1841; Ord. 29.) See Ord. 10, r. 11. In Abram v. Ward, 6 Hare, 170, where members of a class in tbe same interest as plaintiff refused to join as plaintiff, and were required to appear and answer the bill, they had their costs trora plaintiff. Com- pare England v. Dooms, cited in note to Ord. 40, i-. 12. Expenses of having Affidavits prepared or settled hy Counsel. 17. Expenses incurred in consequence of affidavits being pre- pared or settled by counsel, shall be allowed only when the Taxing Master shall in his discretion, and on consideration of the special circumstances of each case, thiok such expenses properly incurred; and in such case he shall be at liberty to allow the same or such parts thereof as he may consider just and reasonable, whether the taxation be between solicitor and client or between party and party. (1st June, 1854; Ord. 11.) In Be Pender, 10 Beav. 390, decided before this rule, counsel's fee for settling a special affidavit for leave to amend was disallowed in taxation be- tween solicitor and client. S. C. on appeal, 2 Ph. 69. Costs of written Copy or Brief of a BUI. 18. No costs shall be allowed, either as between party and party or as between solicitor and client, for any written bill or written copy of a bill filed under the Stat. 15 & 16 Vict. c. 86, s. 6, or for any written copy thereof served upon any defendant thereto, or for 326 Oedee XL.-^CogTS, Chakgbs, etc. [1^1] any written brief of such bill, unless the Court, in disposing of the costs of the cause, shall direct the allowance thereof. (7th Aug. 1852, 1st Set,-Ord. 2.) See as to written copies of bills, Ord. 9, r. 4. By Ord. 13 of 6tli March, 1860, "No costs are to be allowed either as be- tween party and party, or as between solicitor and client, fpr any written brief of an answer, unless the Court sh^ll clirect the allowance therepf." See as to the Orders of March, 1860, first note to Ord. 15. The pourt will alloir the costs of a written bill, and assume them to have been incurred bond fide unless the contrary be shown, Elt v. Islington Burial Board, 2 W. R, 584, where injunctioii had been granted on notice, and the bill bad been file^ several weeks after the resolution complained of was adppted- Though a fee of one guinea is paid on the service of a copy of a written bill, a secpnd fee must be paid on service of printed copy. Trustees of Birkenhead Dock V. Chester and Shrewsbury Railway, 22 L. J. 22. urn Payment for Printed Copies. 19. The pajntent to be made by the defendant to the plaintiff for printed copies of the biU shaH be at the rate of one half-penny per folio. (7th Aug. 1852, 1st Set, Ord. 5.) See as tp cpsts pf printed copies of answers, notes to Ord. 36. See as to printed copies of bills, Ord. 9, r. 5. See as to the length of folios, regulation for rule for, post. Two Counsel. 20. Where two counsel appear for the same party upon the heai'ing of any cause or matter, and it appears to the Taxing Mas- ter to have been necessary or proper for such party to retain two counsel t^o appear, the costs occasio^ied thereby sh^ be allowed, although both of such counsel may have been selected from the outer bar. (3rd AprU, 1828; Ord. 33.) It is pot to be inferred, from this order, that ih,e Master is not to allow, on ta^a^oin between solicitor and client, the costs of a third counsel, twp bei^g pf ti\e ii^er bar, Wastell v. Leslie, 8 Jur. 1001 ; 13 L. J. 368. Cpsts of three counsel allowed only in speciaji cases upon taxation between soUcitcr apd client. Downing College, Ca^, 3i S{yl. & Cr. 474. In taxatipn between party and party, costs of tkrce counsel Qot genorally allowed, Smith v. Earl, of E^nghftm, 10 Beav. 378; Mtorfiey- General v. Monro, 1 Mac. Sf Gor. 213 ; Green v. Briggs, 7 Hare, 279 ; Midland Railway v. Broum, 10 Hare, App. 44 ; but in Carter v. Bernard, 16 Sim. 157, where counsel who drew the pleadings had been called within the bar, costs of three counsel were allowed on taxation betn|een party and party. On application for new trial of issue at law three counsel allowed ; see cer- tificate in Malins v. Price, 1 Ph. 590; 9 Jur. 955. Costs of two junior counsel of settling an answer disallowed, Daois v. Earl Dysart, 21 Beav. 124; 26 L. }. 322. See also as to the costs of counsel generally, Re Smith, 4 Beav. 309 ; NlchoUs v. Haslam, 15 Sim. 49 ; 9 Jur. 649 j [132] Oedee XL. — Costs, GhabgeS, etC. 327 /te Pender, 10 Beav. 390 ; before the Master, Russell v. Nicholls, 15 Sim. 151 ; on interlocutory motions, Cooke v. Turner, 12 Sim. 6*9 j Stevens v. Lord Nevi~ boroitgh, \l Beav. 403 ; 17 L. J.j 332 ; on petitions, Sturge v. DimSdale, 9 Beav. 171 ; Friend v. JoHy, 10 Beav. 329. In PeM-ce v. Lindsay, 1 John. 702 ; 8 W. R 354, Vice-Chancellor Wood held that mere length of pleadings and evidence was not a sufficient ground for allowing the costs of a third counsel, but on appeal the full Court allowed the costs on that ground, 1 John. 702 ; 8 W. R. 383. See observations on that case, Belts V. Clifford, 1 John. & H. 74. Where the evidence and Judge's notes in a trial at law are used in a causfe, there is special ground for allowing the costs of a third Counsel^ who belongs to the common-law bar, ibid. Cause struck out for pefect on part of Plaintiff, and again set down. 21. Where a cause which stands for hearing is called on to be ' heard, but cannot be decided by reason of a trant of pai'ties or other defect on the part of the plaintiff, and is therefore struck out of the paper, and the same cause is again set down, the defendant shall be allowed the taxed costs occasioned by the first setting down^ although he does not obtain the costs of tbe suit. (3rd April, 1828; Ord. 34.) Where cause stands over with liberty to avienAj on account of objection not taken by the ahSwer, defendant not allowed costs, Mitchell v. BtHley, 3 Madd. 61 (decided before the order here incorpcffated was made) ; but only where the objection depended on a fact within the defendant's knowledge. Furze v. Shar- ivood, infra. Defendant not allowed costs where the d^ect occurs after the cause is at issue, Fussell v. Elwyn, 7 Hare, 29 ; costs of the day were allowed though objection not taken by the answer, Lowry v. Fulton, 9 Sim. 104. Where the defect of parties was suggested by the plaintifiFs^ defendant had costs of the day, Attorney-General v. Hill, 3 MyL & Cr. 247 ; Furze v. Shar- tsood, 5 Myl. & Cr. 96 ; where defendants objected at hearing after having by answers admitted that all proper persons were parlies, they had to pay the costs of the day, Price v. Berringtan, 2 Beav. 285. Defendants allowed costs of objection not taken by answer. Hill v. Kiruian^ Jac. 163. Costs of the day reserved though the o'bjection was taken by the answer. Mason v. Frmtklin, 1 Y. & C. 239. Costs of causes standing over on non-attendance of counsel, Harvey v. Renon, cited in note to Ord. 21, r. 12 ; in the House of Lords, Fraser v. Gordon, 8 CI. & F. 718', and cases there cited; Godson v. Hall, 7 CI. & F. 549. A cause allowed to stand over twice on account of want of parties on terms of paying defendant's costs of both hearings, Bierderman v. Seymour, 1 Beav. 59*. See, as to decree where defendant objects at the heasring that the suit is defectivtf, Ojd. 23, r. 11. Costs of the Day to he £lO. 22. WL^e a cause, being in the paper for hearing, is ordered to be adjouifned fipon payment of the costs of the day, the party to 328 Oedee XL. — Costs, Chaeges, etc. [132] pay the same, wliether before the Lord Chancellor, the Lords Jus- tices, the Master of the Rolls, or one of the Vice-ChanceUors, shall pay the sum of ten pounds, unless the Court shall otherwise direct. (3rd April, 1828; Ord. 35.) The sum of ten pounds is not payable to each defendant, but divisible among them all, Daniell's Ch. Pr. 757. The ten pounds divided among the defendants though only one of them objected by his answer, Fowler v. Eeynolds, Seton on Decrees, 565. Abandoned Motion. *23. Where a party gives a notice of motion, and does not move accordingly, he shall pay to the other side costs to be taxed by the Taxing Master, unless the Court itself shall direct, upon production of the notice of motion, what sum shall be paid for costs. (See Ord. of 5th Aug. 1818.) By the Order of 5th Aug. 1818, forty shillings were payable for costs of an abandoned motion where no affidavit was filed; but where an affidavit was filed, taxed costs, unless the Court ordered what sum should be paid. Before this order the objection as to costs of abandoned motion unpaid could be taken only on the fourth motion. Shell;/ v. Shelly, 8 Ves. 316 ; Anderson v. Palmer, 14< Ves. 151 . After dismissal of bill for want of prosecution, plaintifis cannot move to have costs of abandoned motion to dissolve an injunction, Farqaharson V. Pitcher, 4 Russ. 510. Plaintiff dying, his executors declined to proceed with a motion ; no costs, Warner v. Armstrong, 4 Sim. 140. Where bill dismissed against executors so declining, costs of such motion not costs in the cause, Lewis V. Armstrong, 3 M. & K. 69. Under the Order of 1818, notice of affidavit previously filed did not entitle to taxed costs. Green v. Meares, 14 Sim. 526. If a motion be not saved the costs must be asked for at the next seal, and tben the motion is either made or, if proper, it is saved, or else dismissed with costs as abandoned. Woodcock v. Oxford Railway, 17 Jur. 33; see Eccles v. Liverpool Bank, infra, A party is not prevented from abandoning a motion by having previously saved it, Gorely v. Gorely, 25 Beav. 234. The order for costs not drawn up unless the notice be nientioned to the Court and produced to the Registrar, Withey v. Haigh, 3 Madd. 437. Until costs of abandoned motion paid, renewed motion to the same effect cannot be made, Bellchamber y. Giant, 3 Madd. 550 ; Oldfield v. Cohbett, 12 Beav. 91. A motion is generally held to be abandoned, and will not be restored if not made when called on, Turnery. Turner, 15 Jur. 1165; in which case the motion was afterwards restored, the counsel instructed having been previously absent through illness. See as to causes struck out, Ord. 21, r. 12. Where notice had been given to read affidavits on motion to vary Chief Clerk's certificate, taxed costs of the affidavits were .included in the costs of the abandoned motion, Tucker v. Hernaman, 19 Jur. 653 ; 24 L. J. 456. Where a motion stands over to serve parties and is afterwards abandoned, costs payable as on motion refused, Dugdale v. Johnson, S Hare, 92. Motion [132] Okder XL. — Costs, Charges, etc.- 329 whicli stands over is abandoned if plaintiff amend his bill and give new notice of motion, Eccles v. Liverpool Borough Bank, 1 John. 402. It is too late to ask for costs of abandoned motion on speaking to minutes or {semble) at the hear, ing, ibid. In Rashleigh v. Mount, 16 Sim. 390, the Vice-Chancellor gave the plaintiff the costs of abandoned motion to dismiss his suit, though it was at- tached to another branch of the Court; but Vice-Chancellor Bruce, in a like case, ibid, u., held he had no jurisdiction to make such an order. In Davis v. South-Eastern Railway, 23 Beav. 549, where notice of motion to dissolve an ex parte injunction was given by defendant, who filed no afiidavit but abandoned, the plaintiff was held entitled to his taxed costs. Where plaintiffs gave notice of motion for injunction, then amended their bill and gave a second notice, they had to pay the costs of the first as of an aban- doned motion, London and Blacktcall Railway v. Limeliouse Board of Works, 3 K. & J. 123. Where a motion had been opened, but an objection having been taken had not since been mentioned, the costs were to be paid as on a motion refused, not a motion abandoned, Dugdale v. Johnson, 5 Hare, 92. Where counsel are not instructed to move before seal closed for which notice of motion has been given, the motion is abandoned and cannot be saved till the next seal, Re Compton Smith, 23 Beav. 284. Under the Order of 1 8 1 8, on which this rule is found, the costs were forty shillings when no affidavit was filed, and taxed costs when an affidavit was filed by either party. See, as to this distinction, Heney v. Smith, 23 Beav. 443. This order held not to apply to notice of motion to vary the Chief Clerk's certificate, Tucker v. Hemaman, 24 L. J. 456 ; 1 Jur., N. S. 653. Where a summons at chambers is abandoned there, or after adjournment in Court, the person sum- moned is entitled to taxed costs. Lister v. Bell, 5 Jur., N. S. 115 ; 28 L.J. 162. Establishing a Debt. *24. A creditor who has come in and established his debt in the Judge's Chambers, under a decree or order in a suit, shall be enti- tled to the costs of so establishing his debt ; and the sum to be allowed for such costs shall be fixed by the Judge, unless he shall think fit to direct the taxation thereof; and the amount of such costs, or the sum allowed in respect thereof, shall be added to the debt so established. (11th April, 1842, Ord. 6, amending 47th Ord. of 26th Aug. 1841.) This rule differs from the Order 6 of 11th April, 1842, by substituting the words " in the Judge's chambers" for "before the Master;" and the words "shall be fixed by the Judge unless he shall think fit to direct the taxation thereof," for words empowering theMaster to fix, or tax or direct the taxation of costs. (See next rule.) Creditor could not have costs under this order where when it came into operation the proceedings in the cause precluded the reception of any new charge, Read v. Smith, 4 Beav. 521. This order does not affect the costs of the creditor who is plaintiff in the suit, Ftintoffv. Haynes, 4 Hare, 309. Unsuccessful claimant was ordered to pay the costs, Hatch v. Series, 2 Sm. & G. 147 ; Yeoman v. Haynes, 24 Beav. 127. 330 Oedee XL.— Costs, Chakges, etc. [132] 'Where the fund is insufficient the costs are added to the debts and With thenl apportioned, Morshead v. Reynolds, 21 Beav. 638. Claimant allowed to prove a debt, after account taktn ofdered to pay plain- tiff's costs of the application, Ellice v. Goodson, Seton on Decrees, 59. See, as to costs of plaintiffs in creditors' suits, Seton on Decrees, 63 — 65 ; Sid. Smith's Ch. Pr. 821. See, as to claims at chambers, Ord. 35, r. 38, et seq. [133] Taxation of Costs by direction of a Judge. 25. Where an account consists in part of any bill of costs, or where the Judge is authorized to fix the amount of costs under the 24th Rule of this Order, the Judge may direct the Taxing Master to assist him in settling such costs, not being the ordinary- costs of passing the account of a Receiver ; and the Taxing Master, on receiving such direction, shall proceed to tax such costs, and shall have the same powers, and the same fees shall be payable in respect thereof, as if the same had been referred to the Taxing Master by an order, and he shall return the same, with his opinion thereon, to the Judge by whose direction the same were taxed. (26th Oct. 1842; Ord. 12.) Transmission of Books, Papers and Documents hy the Judg^i Chief Clerk to the Taxing Master — And Return thereof. 26. Where, upon the taxation of any bill of costs, it appears to the Taxing Master, that, for the purpose of duly taxing the same, it is necessary to inspect any books, papers or documents relating to the cause or matter in the Chambers of any Judge, the Taxing Master shall be at liberty to request the Chief Clerk of such Judge to cause the same to be transmitted to the office of the Taxing Master ; and also to request such Chief Clerk to certify amy proceedings in the said Chambers which may be comprised in the biU of costs under taxation ; and in such cases ttie Chief Clerk, when and so soon and at and for such times as ihe due transaction of the business at the said Chambers wUl peftiiit, shall direct such boc^s, papers and documents to be transmitted to the office of the Taxing Master for his use during; the taxation, and shall certify the proceedings which have taken place in the said Chambers accwding to the request of the Taxing Master ; and after the costs in respect of which such request of the Taxing Master was made shall have been certified, the Taxing Master shall cause the same books, papers and documents which have been so transmitted to his office, if then remaining, there, to be returned to the Chambers of the Judge. (26th Oct. 1842 ; Ord, 13.) Memorandum of Transmission and Return thereof. 27. When any book, paper or document shall be transmitted from the Chambers of a Judge to the office of a Taxing Master, [134] Obder XL. — Costs, Chabses, etc. 331 a m^orandam of such transmission shall be made and signed by the Taxing Master or the clerk of the Taxing Master at whose request such book, paper or document may be transmitted, and shall be delivered to tiie Chief Clerk of such Judge ; and when any such book, paper or document shall be returned from the office of the Taxing Master to the Judge's Chambers, a memorandum of such return shall be made and signed by such Chief Clerk, or by one of his clerks, and shall be deUvered to the Taxing Master. (26th Oct. 1842 ; Ord. 14.) Parties attending Chambers without leave. 28. Parties attending any proceeding in Chambers, without having obtained the previous leave of the Judge to attend the same, shall not be allowed any costs of such attendance, unless by special order of the Court or Judge. (16th Oct. 1852 ; Ord. 55.) As to leave to attend at chambers, see Ord, 35, r. 16. Covnsel attending Chambers. 29. The costs of counsel attending the Judge in Chambers shall not in any case be allowed, unless the Judge certifies it to be a proper case for counsel to attend. (16th Oct. 1852 ; Ord. 56.) See notes-to 15 & 16 Vict. c. 80, s. 28, cited in notes to Ord. 35, r. 2. See, as to allowing costs of counsel's attendance at chambers or in the Mas- ter's offices in certain cases, Ord. 40, r. 3^. The practice respecting attendance of counsel before Judges at chambers' varies in diSerent Judges' chambers. In one, in short matters, counsel on both sides attend. In another, if counsel only attend for one party and the solicitor for the otber the matter is disposed of at chambers ; but if counsel attend for both parties the matter is adjourned into Court, Sid. Smith's Ch. Pr. 510. On summons adjourned from chambers the Master of the Rolls and Vice- Chancellor Wood will, unless the contrary be said, certify that it was a proper case to be heard by counsel, Greville v. Greville, 5 Jur., N. S. 1237 ; 8 W. R. 130 ; Graham v. Graham, 1 John. 624. See also as to the attendance of counsel at ehambers, Rumbold v. Forteath, cited in note to Ord. 40. Cost^ where Drafts are settled by other Counsel in addition to the Conveyancing Counsel of the Court. *30.- Where, in pursuance of any direction by the Court or a Judge in Chambers, drafts are settled by any of the Convey- aneii^ Counsel of the Court,, the expense of procuring such drafts to be previously or subsequently settled by other Counsel on behalf of the same parties on whose behalf such drafts are settled by the CoBveyaneing Counsel of the Court, shall not be allowed on taxation as between party and party, or as between solicitor 332 Obdek XL.— Costs, Chaeges, etc. [134] and clienl^ unless the Court or the Judge in Chambers shall oljier- wise direct. (See Letter by Lord St. Leonards, C, to the Taxing Master, 24th Dec. 1852.) See as to the conveyancing counsel of the Court, Ord. 2. A corporation held not liable to the whole of the costs of submitting to pur- chaser's counsel an abstract of land purchased in lieu of lands compulsorily taken, but an allowance to be made in respect of such costs, Re Morgan Jmei't Settled Estates, on appeal, 4. Jur., N. S. 887 ; 27 L. J. 706 ; 6 W. R. 762. Costs of consultation between conveyancing counsel and another counsel on the title allowed, ibid^ Draft of mortgage authorized by the Court in an administration suit not to be settled by mortgagee's counsel at the cost of the estate, Nicholson v. Jeyes, 1 Sra. & G., App. 13. Draft assurances under the Infants' Settlement Act, not settled by the con- veyancers of the Court, directed to be perused by the Chief Clerk, and sub- mitted for the approval of the J udge at chambers. Re Williams, 8 W. R. 678. Bill of costs of investigating title to lands, purchased with purchase- money of land compulsorily taken by a company, must be delivered to the company under sect. 82 and 83 of the Lands Clauses Act, Re Spooner's Estate, 1 K. & J. 220. Costs occasioned hy Absence of Party, where Judge does not proceed Ex parte. 31. Where a proceeding in Chambers fails, by reason of the non-attendance of any party, and the Judge does not think it ex- pedient to proceed ex jiarle, the Judge may order such an amount of costs (if any) as he shall think reasonable, to be paid to the party attending, by the absent party or by his solicitor personally. (3rd April, 1828 ; Ord. 55. 3rd June, 1850j Ord. 7, 8.) See as to costs occasioned by the hearing of a cause being deferred through neglect of the solicitor, Ord. 21, r. 12. [135] Expenses to he allowed where Costs are taxed as between Party and Party. 32. Where costs axe to be taxed as between party and party, the Taxing Master may allow to the party entitled to receive such costs all such just and reasonable expenses as appear to have been properly incurred in The service and execution of writs, and the service of orders, notices, petitions, warrants, and summonses ; Advising with counsel on the pleadings, evidence and other proceedings in the cause ; Procuring counsel to settle and sign pleadings and such petitions as may appear to be proper to have been settled by counsel ; [133] Order XL.— Costs, Charges, etc. 333 Procuring consultations of counsel ; Procuring the attendance of counsel in Judge's Cham- bers, or in the Master's offices, where the Judge or Master has certified the case to be proper for counsel to attend ; Procuring evidence by deposition or affidavit, and the at- tendance of witnesses ; and Supplying counsel with copies of, or extracts from, neces- sary documents. But in allowing such costs, the Taxing Master shall not allow to such party any costs which do not appear to have been necessary or proper for the attainment of justice or for defending his rights, or which appear to have been incurred through over-caution, neg- ligence or mistake, or merely at the desire of the party. (8th May, 1845 ; Ord. 120.> See as to costs of three counsel, Ord. 40, i. 20 ; as to costs of counsel attending at chambers, Ord. 40, r. 29. The rule here given differs from Ord. 120 of 8th of May, 1845, by adding after " warrants " the words " and summonses," in the second paragraph ; and the last paragraph but three of that order was, " procuring the attendance of counsel in the Master's ofiices upon questions relating to pleadings and title." Costs of legatee attending by counsel in support of state of facts were dis- allowed as not within that order, Wroughton v. Colquhoun, 1 De G. & S. 357. Counsel attending to resist a discharge in an executor's account were not within the terms "pleading or title," Russell v. Nicholls, .15 Sim. 151; 10 Jur. 628. As to costs of counsel, see note to Ord. 40, r. 20 ; of consultations, Lucas v. Peacock, 8 Beav. 1 ; as to clerks' fees, Re Cotton, 9 Beav. 107 i as to costs of shorthand writer, Ex parte Viscount Curzon, 6 W. R. 141. As to costs of abstract to accompany case, Re Pender, 10 Beav. 390. Costs of abstract of documents prepared for instructions to counsel to settle answer may be allowed in some cases, Davis v. Earl of Dysart, 21 Beav. 124 ; 4 W. R. 41 ; on appeal, 4 W. R. 268 ; where it was stated that the word " abstract " was in- tentionally omitted from the last paragraph but one of the order. As to costs of briefs pleadings not used, Friend v. SoUi/, 10 Beav. 329 ; Re Pender, 10 Beav. 390. Costs of issuing process of contempt for not answering not allowed asbetween party and party, Attorney- General v. Carrington, 6 Beav. 454. Direction as to taxing costs of unnecessary evidence, Gibson v. D'Este, 2 Y. & C. C. C. 581. Fees allowed on commission to examine witnesses, Howell v. Taylor, 2 Y. & C. C. C. 284. If the Court can clearly distinguish as to costs improperly incurred by the successful party, it provides for them at once, Farrow v. Rees, 4 Beav. 25. Where costs are directed to be taxed they are taxed as between party and party, unless the decree directs taxation as between solicitor and client, Seton on Decrees, p. 30. See Masaie v. Drake, cited in note to Ord. 40, r. 2, as to the rules which determine the mode of taxation, Daniell's Ch. Fr. 1078, et seq. 334 Obdek XL. — Costs, Chahges, etc. [135] Objection to an Allowance or Disallowance by the Faxing Master. 33. Any party who may be dissatisfied with the allowance or disallowance by the Taxing Master, in any biH of costs taxed by him, of the whole or any part of any item or items, may, at any time before the certificate is signed, deliver to the other party interested therein, and carry in before the Taxing Master, an objection in writing to such allowance or disallowance, specify- ing therein, by a list in a short and concise form, the items ot item or parts or part thereof objected to, and may thereupon apply to the Taxing Master for a warrant to review the taxation itt respect of the same. (1st June, 1854 ; Ord. 12.) The Taxing' Master may certify special circumstances respectii^ the bill of costs or taxation, and thereupon the Court may give special directions respect- ing the costs of taxation, 6 & 7 Vict. c. 73, s. 37. [136] Meviem of Taxation upon Application for a Warrant to review or upon the Return thereof. 34. Upon the applieation for such warrant, or upon the return thereof the Taxing Master shall re-eonsider and review his taxa- tion upon such objection, and he may, if he shall think fil^ receive further evidence in cespeot thereof ; and if so required- by either party, he shall state, either in his certificate of taxation or by reference to such objection, the grounds and reasons of his deci» sion thereon, and any special facts or circumstances relating thereto. (1st June,. 1854;, Ord. 13.) Motion or Petition for Order to review Taxation. 35. Any party who may be dissatisfied with the certificate of the Taxing Master as to any item or part of an item which may have been objected to as aforesaid, may apply to' the Court by motion or petition for an order to review the taxation as to the same, and the Court may thereupon make such order as to the Court shall seem just ; but the certificate of the Taxing Master shall be final and conclusive as to all matters which shall not have been objected to in manner aforesaid. (1st June, 1854 ; Ord. 14.) The Court will not interfere in respect of qaantum, but only on the ground of irregularity, or taxation on a mistaken principle, Fentmt v. Ctickeit) 3 Mad. 496 ; Re Catlin, 18 Beav. 508. Where the taxation between party and party of various items is considered, Alsep v. Lord Oxford, 1 M. & K. 564 ; Re Congreve, 4 Beav. 87 ; Friend v. Sollff, 10 Beav. 329 ; Miomey-General"v. Lord Carrington, 6 Beav. 454. Allowed where items wrongly omitted from taxation, which were included in the order for taxation, Greenwood v. Churchill, 14 Beav. 160. Application- for order to review taxation to be by petitioRr Attemeg- General [136] Order XL.-^Cqsts, Charges, etc. 335 V. Netherooat, 3 Beav. 297 ; Re Cmgreve, 4 Beav. 87 ; Russelv. Suchanan, 9 Sim. 167. For form of notice of motion to review taxation, see Tripp's Chancery Forms, 65. The petition should object to particular items, Se Cengreve, 4 Beav. 87. In Ex parte Leigh, 4 Mad. 394, it was said' that on such an application the taxed costs must be paid into Court. Taxing Master not to examine the propriety of an unimpeached compromise, Se CatKn, ubi supra ; nor questions beyond his ordinary prov^Qce, Turner v. Turner, 7 W. R. 573. As to costs of application to review taxation, Sturge v. Dimsdale, 9 Beav. 170 (where the petitioner, though successful, had to pay costs on account of his neglect to produce to the Taxing Master sufficient reasons for the items dis- allowed): Re Colquhoim, 5 De G., M. & G. 35; 23 L. J. 515. In Re Walley, 20 Beav. 576, petitioner hafl leave to deliver a new bill of omitted items and to increase undercharges, but so as not to affect the costs of the taxation pending. As to the costs of taxation and what are taxable iten)S, see Attorney-General V. Nethercoat, 3 Beav. 297; Muskett v. Hill, 3 Beav. 301; Re Remnant, 11 Beav. 603; Re Haigh, 12 Beav. 307; Re Claris, 13 Beav. 173; on appeal, 1 De G., M. & G. 43 ; Re Peers, 21 Beav. 520. Evidence thereon. 36. Such motioas and petitions shall be heard and determined upon the evidence which shaU. have been brought in, before the Taxing Master ; and no further evidence shall be received upon the heading thereof, unless the Court shall otherwise direct. (1st Juiie, 1854; Ord. 15.) See as to the similar rule respecting appeals from Orders at Chambers, Parltyn v. Cape, cited in Ord. 35, i. 52. Where the Court communicates with the Taxing Master as to proceedings before him, no affidavit as to them ia admitted, Sturge v. Dimsdale, 9 Beav. 335. As to evidence before the taxation master, see Re Clark, cited in note to last rule. Gross Sum in lieu of Taxed Costs. 37. Upon interlocutory applications, where the Court deems it proper to award costs to either party, the Court may by the order direct payment of a sum in gross in lieu of taxed costs, and direct by and to whqm, such sum in gross shall be paid. (8th May, 1845 ; Ord. 123.) The Court will not fix the costs of an abandoned motion under this, rule except where the parties are poor and wish to put an end to the litigation, London and, Slackwall Railway Company v. Limehouse Board qf Works, 26 L. J. 164. Where no Order for Taxation necessary — Hecovery of Costs. 38. Where a bill or petition is dismissed with costs, or a motion 386 Order XL.— Costs, Chaeges, ETC. [136] is refused with costs, or any costs are by any general or special order ordered or decreed to be paid, the Taxing Master in rota- tion, or if there has been any former taxation of costs in the same cause or matter, then the Taxing Master before whom such former taxation has taken place, may tax such costs without any order referring the same for taxation, unless the Court, upon the appli- cation of the party alleging himself to be aggrieved, prohibits the taxation of such costs ; and the costs to be certified by the Taxing Master shall be recoverable by subpoena. (8th May, 1845 ; Ord. 124.) In Hnghes v. Clarke, 6 Hare, 195, the costs of exceptions to an answer to a bill of discovery, payable by defendant, were, on ex parte application, ordered to be taxed. As to recovery of costs, see Sid. Smith, Ch. Pr. 163; DanieU, Ch. Pr. 1088 ; Seton on Decrees, 431 ; Ord. 28, •.. 9, and Ord. 29, r. 6. [137] Taxation of Costs in case Parties differ about the same. 39. Where it is directed that costs shall be taxed in case the parties differ about the same, the party claiming the costs shall bring the bill of costs into the Taxing Master's Office, and give notice of his having so done to the other party ; and at any time within eight days after such notice, such other party shall have liberty to inspect the same without fee, if he thinks fit. And at or before the expiration of the eight days, or such further time as the Taxing Master shall in his discretion allow, such other party shall either agree to pay the costs or signify his dissent therefrom, and shall thereupon be at liberty to tender a sum of money for the costs. But where he makes no such tender, or where the party claiming the costs refiises to accept the sum so tendered, the Tax- ing Master shall proceed to tax the costs. And where the taxed costs shall not exceed the sum tendered, the costs of the taxation shall be borne by the party claiming the costs. (Ord. of 23rd Nov. 1831 ; amendmg 76th Ord. of 3rd April, 1828.) The party to recover costs need not give the other party a copy of the bill before carrying it before the Master, Aubrey v. Hoper, 5 Russ. 1. Stating Amount of Costs taxed. 40. Where any costs are by any decree or order directed to be taxed, and to be paid out of any money in Court, the Taxing Master, in his certificate of taxation, shall state the total amount of all such costs as taxed, without any direction for that purpose in such decree or order. (22nd Aug. 1859 ; Ord. 13.) See as to the definition of the word money in this rule, Prelim. Ord. r. 10, art 12. [137] Oedek XLI. — Statutoet Jueisdiction of Court. 337 Order XLI. PROCEEDINGS UNDER THE STATUTORY JURIS- DICTION OF THE COURT. I. Proceedings under the Trustee Relief Act, 10 & 11 Vict. c. 96. The 10 & 11 Vict c. 96, intituled " An Act for Beftfer seciiring Trust Funds and for the Relief of Trtistera." " Whereas it is expeOieifit to ^ovide means for better sefcuring trust funds and for relieving trustees from the responsibility of administering trust fiinds in cases where they are desirous of b^ing so relieved : be it enacted by the QUeeh's most excellent Majesty, by and with the advice and consent of the Lor^s spiritual and temporal and Commons in the present Parliament assembled, a.nSt by the authority of the same, that all trustees, eiecutorS^ administrators or other per- sons having in their hands any monies belonging to any trust whatsbever, or the ms^or part of them, shall be at liberty, on filing an affidavit shorfly describing the instrnihent creating the trust according to the best of their knowledge and belieij to- pay the same, with the privity of the Adcountant-General ot the High Court of ehrirfcerj^, into the Bank of fehgland, to the aicount of such Account- ant-General, in the matter of the ^^ticnlaf trust, (describibg the skme by the names of the parties as accurately as may be for the purpose of distinguishing it,) in trust to adtend the orderk of the said Court; and that all trustees or othei^ persons havi^Ag any anYiuities Or stoclcs standing in' their name in the books of the Govemot ^d Company of th4 Bank of England, or of the East India Company, or South Sea Compan^^, or any governitaent or parlianlenfary securities standing in their names, or ih the names of any deceased persons of whom they shall be personal representative upon Ein^ trusts whatsoever, or the major part of them, shaill be at liberfy tb transfer of dSpdsit sueh stocks or securities, into or in the namei of the said Accb^ntant-General, with his privity, in the matter of the particular trust, (describing the same as aforesaid,) in tfiist to attend the ordei^ Of the said Colirt ; and in every such tase the receipt ot one of the cashiers of the said bank for the money so paid, or in case of Stocks or secu- rities, the certificate of the proper officer of the transfer or deposit of such Stocks or securities, shall be a sufBcient discharge to such trustees of other persons for thie ttioney So paid or the stocks or securities so tfansferred or deposifed." See, as to the object and bperatiotf of tlite Act, the power 6f the Court under it to determine rights to the fund atid td tfeati a pufcbas^ deed as invalid, Re Bloyi, cited in note to sect. 2. On paymetit in, the trustees are discharged as to the amount paid^ and with f especC to it ikk claimants inust pfoceed under the Act^ the ofdinary juriscfiction being confined to the Unpaid balance, Goode V. West, 9 Hare, 378 ; Thaif v. thotp, 1 R. & J. 438. Payment into Court does not discharge a trustee from the conse^aen'ces of a former breach of trust, c. ■ z 338 Oedee XLI. — Statutoey Jubisdictiok op Coukt. [137] Attorney-General v. Jtford, 2 Sm. & G. 488 ; 4 De G., M. & G. 843 j 1 Jur., N. S. 360. Assignee of an interest in a fund which after the assignment was paid into Court should obtain a stop order j notice by him to the trustees, though that notice is set out in their affidavit, insufficient, Re Miller, 6 W. R. 238. Semble, » purchaser who cannot obtain a valid receipt may discharge his liability by paying the purchase-money under the Act, Cox v. Cox, 1 K. & J. 251. But in the earlier case, Re Buckley's Trust, 17 Beav. 110 ; 17 Jur. 478 ; 22 L. J. 934, purchasers were held not to be trustees of the purchase-money within the Act. Fund ordered to be received where the affidavit was by only one of two trustees who both made the transfer, Anon., 1 Jur., N. S. 974. See 12 & 13 Vict. t. 74, fost. The survivors of several trustees may pay into Court under the Act, Re Parry, 6 Hare, 306. In Re Lloyd's Trusts, 2 W. R. 371, it was held that a fiind paid into Court by a trustee leaving England, ought not to remain in Court after the appointment of new trustees. Costs of part of petitioner's affidavit unnecessary for proving their title dis- allowed. Re Knight, 27 Beav. 45. A power to appoint new trustees in place of trustees " desiring to be dis- charged" may be exercised when the latter pay the trust fund into Court, Re Bailey's Trust, 3 W. R. 31 ; Re Williams's Settlement, 4 K. & J. 87. A dis- cretionary power given to trustees as to the application of a fiind held to be at an end on payment in of the trust fund, Re Coe's Settlement, 4 K. & J. 199. Payment into Court under the Act constitutes " a suit or matter actually pending" within the meaning of the Charitable Trusts Act, 1853, Re Lister's Hospital, 6 De G., M. & G. 184 ; Re St. Giles, ^c. Trust, 25 Beav. 313 ; 27 L. J. 560 J 6 W. R. 434 ; Re Cheshunt College, 1 Jur., N. S. 995. But not where a final order has been made on petition, in which case all subsequent applica- tions involving any question not included in that order require the consent of the charity commissioners. Re Jarvis's Charity, 7 W. R, 606 ; 5 Jur., N. S. 724. 10 & 11 Vict. c. 96, B. 2, " And be it enacted, that such orders as shall $eem fit shall be from time to time made by the High Court of Chancery in respect of the trust-monies, stocks or securities so paid in, transferred and deposited as aforesaid, and for the investment and payment of any such monies, or of any dividends or interest on any such stocks or securities, and for the transfer and delivery out of any such stocks and securities, and for the adminis- tration of any such trusts generally, upon a petition to be presented in a sum- mary way to the Lord Chancellor or the Master of the Rolls without bill, by such party or parties as to the Court shall appear to be competent and necessary in that behalf, and service of such petition shall be made upon such person or persons as the Court shall see fit and direct ; and every order made upon any such petition shall have the same authority and effect, and shall be enforced, and subject to rehearing and appeal, in the same manner as if the same had been made in a suit regularly instituted in the Court ; 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." [137] Proceedings under Trustee Belief Act. 339 Sect. 3 relates to the Accountant-General's salary. By sect. 4 the Lord Chancellor may make general orders for carrying the Act into efifect. By sect. 5 " Lord Chancellor" includes Lord Keeper, &c. An Act for the further Relief of Trustees, 12 & 13 Vict. u. 74. [28th July, 1849.] " Whereas difSculties have arisen in the transfer of securities vested in trustees in certain cases under the provisions of an Act passed in the session of Parliament holden in the 10th and 11th years of the reign of her present Majesty, intituled ' An Act for hetter securing Trust Funds, and for the Relief of Trustees,' and it is expedient to make a further provision for carrying into effect the objects of the said recited Act : he it therefore enacted, by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal aad Commons in this present Parliament assem- bled, and by the authority of the same, that if upon any petition presented to the Lord Chancellor or Master of the Rolls in the matter of the said Act it shall appear to the Judge of the Court of Chancery before whom such petition shall be hesurd, that any monies, annuities, stocks or securities, are vested in any persons as trustees, executors or administrators, or otherwise, upon trusts within the meaning of the said recited Act, and that the major part of such persons are desirous of transferring, paying or delivering the same to the Accountant- General of the High Court of Chancery under the provisions of the said recited act, but that for any reason the concurrence of the other or others of them cannot be had, it shall be lawful for such Judge as aforesaid to order and direct such transfer, payment or delivery to be made by the major part of such persons without the concurrence of the other or others of them j and where any such monies, or government or parliamentary securities shall be deposited with any banker, broker or other depository, it shall be lawful for such Judge as aforesaid to make such order for the payment or delivery of such monies, government or parliamentary securities to the msyor part of such trustees, executors, administrators or other persons as aforesaid, for the purpose of being paid or delivered to the said Accountant-General, as to the said Judge shall seem meet ; and every transfer of any annuities, stocks or securities, and every payment of money or delivery of securities in pursuance of any such order, shall be as valid and effectual as if the same had been made on the authority or by the act of all the persons entitled to the annuities, stocks or securities so transferred, or the monies or securities so paid or delivered respectively, and shall fully protect and indemnify the Governor and Company of the Bank of England, the East India Company, and the South Sea Company, and all other persons acting under or in pursuance of such order." Inquiry as to the fact of no issue of a marriage on which the title depended required before payment, Re Woods, 15 Sim. 469. Inquiry directed without prejudice to filing a bill, Re Sharpe, infra; see Re Feltham, itjfra. Inquiries directed, Re Barter's Trust, 1 Sm. & G. 118. In Re Hemming, itjfra, the Court refused to direct inquiries or the institution of a suit. On discovery of debts subsequently to payment in by executor the fund paid out to him on petition, Ex parte Tournay, 3 De G. & S. 677. z2 340 Order XLL^^Statutort Jurisdiction of Court. [137] Petition under the Act may be prosecuted in formi pauperit, Re Money, 13 Beav. 109. See as to form of the petition, Ord. 41, i. 5. The petition should state the trustees' affidavit, Re Levett, 16 Jnr. 1063 ; Re Flack's Trusts, 10 Hare, App. 30 ; but should not set out more of the affidavit than suffices to show the cause of payment in and who are interested, Re Courtois' Trust, 10 Hare, App. Bi. See, as to costs of pleading^, &c., of unnecessary length, Ord. 40, r. 9. Payment on |)etition of guardians of the poor of money on account of main- tenance of a luftafic interested in the fund paid into Court, the Court deeming itself trustee of the fund paid in, Re UpfalVs Trust, 3 M. & G. 281 ; 21 t. J. 119 ; Re Parker, 2 W. R. 139 ; Re Ward, 2 W. R. 406 ; Re Orewery, 2 W. R. 436. Investment Of a fund belonging to a lunatic in ari annuity for his life, Re Dodsworfh, 10 Hare, 16. In Se Toiy, 17 Beav. 334, it was held that the Court had not jurisdiction uAder the Act to order the income of a lunatic's fvind to be paid to his near relations for his maintenance. Order for payment of divi- dends to lunatic's father for her maintenance. Re Sirry, 13 Beav. 455. In Re Sturge, 7 W. R. S96 ; 5 Jur., N. S. 423, a similar order was made, with a direc- tion to appl^ at chambers annually, showing the state of the lunatic's mind and of_ the fund. Repayment of parochial charges for the maintenancfe of a lunatic will be directed only where deemed by the Court to be for his benefit, Re Buckley, 1 John. 700. The instalments of a trust fund paid in ordered to be paid out, and the trustees ordered to pay the future instalments to the cestui que trust. Re fl'right, 1 Sm. & G., App. 5. Order for future payment to tenant fo* life of the income of any fund which might be paid into the same account, but the Court doubted whether the Accountant-General would act on the order, Re Chamberlain, 22 Beav. 286. Payments for maintenance directed'. Re Hodges' Settlement, 3 E. & J. 213 ; 3 Jar., N. S. 860 ; Re Tweedale, 1 John. 109. Form of order Under the Act, allowing rights of Claimants, Re Gaffee, 13 Jur. 78. On petition under the Act decision as to the construction of a marriage settlement and the rights of children under it. Re Daltm, 1 De G., M . & G. 265 ; 16 Jur. 253 ; 21 L. J. 681. Costs of payment in of a legacy borne by testator's estate ; of payment out by the legatee, including the executor's appearance. Re Cawthorne, 12 Beav. 56 J 18 L. J., N. S. 117. the Court wiH not, on petition under the Act, order . costs to be paid out of another fund than the money paid in. Re Robertson, 6 W. R. 405. Costs of payment in of a residue or separate ftlnd, if not retained, are allowed from the corpus, Re Newbegin ; Re Sayers, Seton on Decrees, 383. If trustees retain too large a sum for costs the cestuis que trustent have no remedy but by bill. Re Bloye's Trust, 1 M. & G. 488 ; but see Re Woodbum's Trust, infra. Costs of opposing a petition for payment of a legacy out of Court ordered to be paid out of the legacy, Re Robertson, 6 W. R. 405. An infant is constituted a Ward of Court by payment of a fund belonging to her into Court under this Act, Re Hodges, supra ; Re Tweedale, supra. In the latter case, the infant was domiciled in Scotland, and on her marriagie' the [137] Pkoceedings under Trustee Relief Act. 341 Court refused to order payment of the fund to her husband without proof that a settlement of it iqight he properly dispensed with. The Court refused to ajlow the costs of application for a legacy to he paid out of a residuary legacy which had also been paid iijto Court, Se Hodgson, 18 Jur. 786 ; 2 W. H, 539, The Court will not direct a ^it to raise the costs of the application out of the testator's general estate, Ite Feltham, 1 K.. & J. 528. The corpus of a fiind paid into Court bears the costs of ascertaining from time to time who is entitled to the dividends, Be Ross, 15 Jur. 2il j 20 L. J. 293. Where inquiries were directed without prejudice to filing 4 hilj, costs were reserved, as the Act was not intended to deprive the beneficial takers of those costs, which previously would have heffli home by the general assets of the testator, Se Sharpe, 15 Sim, 470; 17L. J. 395; 12 Jur. 492. But in iEe Bor- tholomew, 13 Jur. 380, it was Ireld, that the Court had no jurisdiction to order costs to he paid out of any fund but that in Court. Trustee's costs of paying in a legacy not specifically appropriated to come out of the general estate ; his costs of appearing on a petition for the legacy to come out of the legacy, Re Jones, 3 Drew. 679 ; 5 W. R. 336 ; see Re Dickson, 1 Sim., N. S. 37. An un- successful petitioner may haye costs. Re Birch's J^egacy, 2 K. & J. 369 ; Be Dickson, 1 Sim., N. S. 37. Where several shares of a legacy were held to h^ve lapsed, costs of petitioners and respondents borne by those shares. Re Ham's Trust, 2 Sim., N. S. 106. Costs of application by life tenant, there being no general estate applicable, should be paid firom the income. Be Larimer, 12 Beav. 521; 14 Jur. 1126 ; 19 L. J. 524; (see case cited in Setou on Decrees, 383;) Re Peart, 17 L. J. 168; Ae Hadland's Settlement, 23 Beav. 266 ; 4 W. R. 690, where the costs of the tenant for life came out of the income and of the trustee out of the corpus, Re Ham- mersley, 23 Beav. 267 ; Re Fletcher, 12 Jur. 619 ; 17 L. J. 168 ; Re Maya's Wilh 12 Jur. 620; Be Bangley, 16 Jur. 682 ; 21 L. J. 875 ; Be Ingram, 18 Jur. 811 (where Vice-chancellor Kindersley said he should adhere to that rule) ; Re Rossi supra, was disapprpved of in Re Bangley, supra, but was followed by the Master of the Rolls in Re Butler, 1 6 Jur, 325 ; even when the parties in remainder opposed, Be Field, 16 Beav. 146 ; 16 Jur. 771. The respondent's costs may come out of the corpus. Be Hadland, ubi supra. The more recent practice is considered to be in favour of payment of the costs out of the capital, Sid. Smith's Ch. Pr- 671 ; out of the income, Daniell's Cb. Pr. 1319, n. Where there are several successive interests the trustee's costs ought to come out of the corpus, Re Staples, 13 Jur. 273. See, as to costs of trustees who present the petition for payment out of Court, note to Ord. 41, r. 5. Trustee generally allowed his costs of appearing on the petition, Be Erskine, 1 K. & J. 302 ; Re Headingtm, 6 W. R. 7 ; Re ^ones, 3 Drew, 679, Executor ought to appear and assist the Court in the distribution of the fund, and will generally have his costs as between solicitor and client. Re Cawthorne, 12 Beav. 56. Trustee's costs of appearing in the circumstances disallowed, Re Heming, 3 K. & J. 40 ; 2 Jur., N. S. 1186 ; 5 W. R. 33 ; 26 L. J. 106 ; Re Covington's Trust, 1 Jur. 1157; 25 L.J. 238. Trustees be^d not chargeable with costs except on bill filed. Be Edwards, 4 W. R. 801. Trustees vexatiously paying into Court ordered to pay costs of the petition. Re Woodburn's Trust, 1 342 Order XLL— Statutory Juhisdiction of Court. [137] DeG. &J. 333; 3 Jur.,N.S. 799; 26 L. J. 522. Where cettuis que trustent were oiEcers in the Austrian army, going about from place to place, trustees paying into Court (under the advice of counsel), without making efforts to pay the cestuit que trustent, were ordered to pay costs, Re Knight's Trust, 27 Beav. 45 ; 5 Jur., N. S. 326 ; 28 L. J. 625. So of trustee who paid in because he could not obtain a release by deed. Re Cater's Trust, 25 Beav. 361, 366. See as to trustees' costs of a suit filed to compel them to transfer a fund which they refused to pay without the sanction of the Court, King v. King, 27 L. J. 29. Trustees not entitled to costs who pay in to avoid a bill being filed against them, Re Waring, 21 L.J. 784. In Re Fogg's Trust, 19 L. J. 175, trustees were ordered to pay costs occasioned by payment into Court and costs of the petition. Trustee paying in money not veXatiously held not liable for costs of paying it out, Re Wylly's Trusts, 8 W. R. 645. Trustees not allowed costs of copies taken by them of affidavits of claimants. Re Lazarus, 3 K. & J. 555, Where trustees, on payment into Court, retained a sum for their costs, their costs were directed to be taxed and allowed, and the sum retained to be charged against them. Re Hue, 27 Beav. 337 ; 5 Jur., N. S. 1235 ; 7 W. R. 562. Where a settlement of a trust fund was prepared at instance of husband and wife, but disputes arose which prevented the execution of the settlement, trustee paying into Court held entitled to his costs, Re Bendyshe, 3 Jur., N. S. 727 ; 26 L. J. 814. Trustee authorized in paying in, where he has notice of confficting claims. Re Headington's Trust, 27 L. J. 175 ; 6 W. R. 7 ; or where he pays in on account of his objection to new trustee, Re Williams's Trusts, 6 W. R. 218. Where husband and wife entitled were abroad, though they had appointed an attorney under a power of attorney, the trustee had his costs of appearing but not of payment in out of the fund in Court, Re Jones, supra. Persons not claiming will not have their costs of appearing though served. Re Birch, 2 K. & J. 369 ; Re Smith, 3 Jur., N. S. 659. But see Ex parte Queen's College, 6 W. R. 9; 4 Jur., N. S. 19 j 27 L. J. 178. So of a person withdrawing a claim on account of which he had been served. Re Parry, 12 Jur. 615. So of an incumbrancer with notice that prior incumbrance ex- hausted the fund, Roberts v. Ball, 24 L. J. 471. Trustees not compelled to pay in under the Act, Mountain v. Young, 1 8 Jur. 769 ; where they admitted the plaintiff's right to have the money paid into Court the additional costs of a suit instituted in consequence of their refusal to pay in under the Act fell on the residuary legatee who was one of the trustees, Handley v. Davies, 5 Jur., N. S. 190 ; 28 L. J. 873. The question whether the trustees were entitled to their costs of filing a bill where they might have paid into Court under the Act reserved to the hearing, Hankey v. Morley, 4 Jur., N. S. 234. As to payment of small sums without administration, Re Cable or Cabel, 3 W. R. 84, on appeal. 280 ; Callender v. Teasdale, 3 W. R. 289. In Re Edwards, 4 W. R. 801, administration was required. Payment to administrator of cestui que trust on letters of diocesan admi- nistration obtained after payment into Court, without prerogative administra- tion, Re Spencer, 9 Hare, 410 ; 1 De G., M. & G. 311 ; 16 Jur. 233 ; 21 L. J. 314. See as to dispensing' with prerogative administration, Re Knowles, 1 De G., M. & G. 60 ; 21 L. J. 143. Trust fund paid into Court after the death [137] Proceedings under Trustee Relief Act. 343 of the tenant for life was paid out under the Act to a purchaser of the reversion petition served only on the trustees and notice to the assignees in bank- ruptcy of the husband of the reversioner, Ex parte Stutely, 1 De G. & Sm. 703. Where fund settled on successive tenants for life, order in one petition for payment to them successively, Re Brent's Trusts, 8 W. R. 270. The Court may, on petition under the Act, make a binding declaration of right under 15 & 16 Vict. c. 86, s. 50, Re Walker's Trust, 16 Jur. 1154 j but see Sharshaw v. Gibbs, cited in note to Ord. 34, r. 1. On petition in lunacy, and under the Trustee Relief Act, in respect of fund paid into Court, to which an idiot, not so found by inquisition, was entitled, dividends less than 3002. directed to be paid to his brother and sister as long as he resided with them. Re Burke, 8 W. R. 534. Where a cross petition was presented by parties who desired to have the matter decided by a bill, the Court would not adjudicate under the Act, Re Fozard's Trusts, 24 L. J. 441, on appeal from S. C, 1 K. 8: J. 233 ; see notes to Ord. 41, r. 5. In an earlier case, it was held that in a case of great difficulty the Court would direct a bill to be filed, but not where the Court could safely adjudicate on petition. Where solicitors had purchased a trust fund on their own account, and the sale was impeached, their petition under the Act was by consent treated as if a cross petition had been presented, and the pur- chase declared invalid. Re Bloye, 1 M. 8t 6. 488 ; on appeal, sub nom. Lewis V. Hilman, 3 H. L. Ca. 607. To save expense the fund was paid to the re- spondents without cross petition, Re WooUard's Trusts, 18 Jur. 1012. The Court would not declare the rights of a claimant not named in the trustee's affidavit on his petition, but gave him leave to file a hill. Re Jephson, 8 W. R. Dig. 87. Money paid into Court under this Act distributed as in an administration suit on the trustee's petition, special inquiries being directed, Jle Trower's Trust, ibid. Common administration accounts, and accounts of debts and funeral ex- penses as in a creditor's suit, directed by consent on petition and cross petition under this Act, Re Magawley's Trust, 5 De G. & Sm. 1 ; 15 Jur. 1005. The Court may, on petition under the Act, direct an issue respecting the sanity of a testator. A suit is necessary if there be unascertained debts or other claims on the fund. Re Allen, Kay, App. 51. The Act empowers the Court to authorize suits only where desirable for the satisfaction of the Court, but not to enable a claimant to establish his case without proving his titles. The mere necessity of proving a pedigree is not sufficient ground for directing a suit. Re Harris, 18 Jur. 721. As to suits where infants are in- terested, Smallwood V. Rutter, 9 Hare, 24. Suit to determine rights to a share paid in under the Act, and carried to a separate account, Stroud v. Norman, Kay, App. 313. The fund will not be retained on objection of one of the parties interested to the new trustees who are to receive it. Re Lloyd's Trust, 2 W. R. 371. Trustees cannot prevent payment out because the persons entitled are about to file a bill against them, Re Wright's Trust, 3 K. & J. 419. Affidavit of Trustee. 1. Any trustee desiring to pay money to the account of or 344 OedebXLL— Statutory Jurisdiction OF CpuKT. [138] transfer or (}.epo@U .£tock or geciirities into or in the name pf, the Accpnjitaflt-lGreBprflJ^ under the Stat. 10 & 11 Vict. c. 96, shall file an affidavit, entitled in the matter of the Act and in the matter of the trust, and getting forth, (1.) His own name and addr^s. (2.) The place where he is to be served with any petition or ^y n9tjce of any proceeSing or order of the Court or of the Judge in Chanfbers, relating to the Trust Fund. (3.^ The amount of money, stock, or securities, which he proposes to pay or transfer into or deposit in Court to the credit of the trust. (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 ftmd, to the best of the knowledge and belief of the trustee. (6.) The submission of the trustee to answer aU sudi in- quiries relating to the application of the money, stock, or securities, paid in, transferred, or deposited, under the Act, as tiie Court or the Judge in Chambers may think proper to make or direct. (10th June, 1848; Ord. 1.) The executor should pay in, not to a general account, ^hich would inyolve the general administration of the estate, hut to a particular account. Be Joieph, 11 Bear. 625. To enable the Court to distribute a particular fund it must stand to an account, distinct from the other trusts of the will, Jle Everett, 12 Bear. 485. A fund bequeathed in aliquot parts on distinct trusts should be carried to several separate accounts, Re Tillstone, 9 Hare, App. 59. A fund paid into a general account transferred to a particular account on the responsi- bility of the ttustee, Re Wright's Trust, 15 Beav. 367. Where by accident the fund was paid in to an account entitled too generally, the petition for the fund was granted, Re CouUm's Trust, 4 Jur., N. S. 6. Trustees allowed their costs of paying into an account entitled " In the Matter of J. Edwards' Estate, and in the Matter pf the supposed arrangement between E. Edwards and others," Re Edwards, 4 W. R. 801. Fund paid into the general account of a testator's will ordered to be carried to an account entitled " The Account Residue," Re Robinson's Trust, 1 Jur., N. S. 750. JPatfment, Transfer, or Deposit. 2. The Accountant-General, on production of an office copy of the affidavit, shall give the necessary directions for payment, transfer or deposit, and place the money, stock or securities, to the account of the particular trust ; and such payment, transfer or deposit shall be certified in the usual manner. (10th June, 1848 ; Ord. 2.) Money is paid under the trustee Relief Acts to the Accountant- General without an order. Re Biggs, 11 Beav. 27 ; 17 Jur. 958. [138] Pkoceedings under Trustee Belief Act. 345 Additional Statement in Affidavit, pihere Jnv^tment not de- sired— Investment by Aocaimtaat-Oeneral, where no sucfi Statement. 3. Where it is deemed unnecessary to have the money or the dividends or interest of stock or securities invested in the mean- time, the affidavit shall further contain a statement to that effect. But where the affidavit contains no such statement, the Accountant- Greneral shall be at liberty to invest, as soon as conveniently may be, the money in Bank Three Pounds per Cent. Annuities in the matter of the particular trust, or in cases of dividends or interest on stock or securities teajisferred, such dividends or interest in the like stock, and all aecumulations of the dividends of the stock in which such money shall be invested, and of the dividends or interest on such stock or securities as aforesaid, from time to time, in the like matter, without amy special order made by the Court in thsit behalf, and without ajiy formal request for Ihat purpose. Provided always, that where at any time a request in writing, by or on behalf of any pariy claiming to be entitled, that such invest- ment may be disciwtinped, is left with ijie AcGQuntant-jGrenjeral, he shall be at liberty to cease making any further investment in the matter of the particular trust until the Court shall have made some order in tha,t behalf. (7th May, 1852.) Money paid in undpr the Act directed to he invested in New Three per Cent. Stock, Se Dtmster, 3 W. R. 267. Compare this rule with Ord. l,rr. 11, 12. [139] Notiee of Payment, Transfer or Deposit. 4. The trustee, having made the payment, transfer or deposit, shall forthwith give notipe thereof to the several persons named in his affidavit as interested in or entitled to the fund. (lOth June, 1848; Ord. 3.) Application by Petition or Summons. 5. Such persons, or any of tix&oa, or the trustee, may apply by petition, or, in cases where the trust fund does not exceed 300^ cash or 3001. stock, by summons, as occasion may require, re- specting the investanent, payment out, or distribution of the fund, or of the dividends or interest thereof. (10th June, 1848; Ord. 4.) Though the Court has jtirisdiction to distribute the fund on the petition of the trustees, they are not usually the proper persons to petition, but they ought to give notice to the cestuis que trust on payment into Court. Respondents' costs only allowed to trustees petitioning, Re Hutehimon, 6 Jur., N. S. 136 ; 29 L. J. 336 ; 8 W. R. 253 ; Re Caxneau, 2 K. & J. 249. 346 Oedek XLI. — Statutory Jurisdiction of Court. [139] See, as to costs of trustee petitioning, Re Cazneau, cited in note to sect. 2 of the Act, ante ; and generally, as to petition under this Act, notes to sect 2. The application to the Court must be by petition, not motion. Re Mastelin't Will, 21 X. J. 53; 15 Jur. 1073. Application for maintenance out of fund paid in under the Act must be by petition when the fund exceeds 3002. ; the subsequent proceedings are at Chambers, Re Rye'i Trust, cited in note to Ord. 35, r. 1 i iJe Hodget, 1 De G., M. & G. 491 ; 1 Jur., N. S. 73. As to applica- tion at chambers where the fund does not exceed 3002., see Ord. 35, r. 1, art. (3). Where one of several persons interested applies, the petition should ask that the shares of the others may be carried to separate accounts. Re Hawkes, 18 Jur. 33, cited in note to Ord. 41, r. 7. See also, as to the form of the peti- tion. Re Levett and following cases cited in first note to this Order. Semhle, money paid into Court under the Act cannot be included in an order on further directions in a cause without a petition, Otte t. Castle, 1 W. R. 64. See, as to the necessity of cross petition. Re FozartCs Trust and following cases cited in first note to this Order. Notice to Trustee of Application iy Cestui que Trust. 6. The trustee . 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. (10th June, 1848; Ord. 5.) Where trustee could not be found, service at the address given in his affi- davit directed. Re Baugham, 16 Jur. 325. Trustee need not he served with a petition in lunacy where the fiind has been carried to a separate account of the lunatic. Re Young, 5 W. R. 400 (where a case in which the Master of the Rolls similarly dispensed with service was approved of). Notice to the Cestui que Trust of Application by the Trustee. 7. The persons interested in or entitled to the fund shall be served with notice of any application made by the trustee to the Court or to the Judge in Chambers, respecting the fund in Court or the interest or dividends thereof. (10th June, 1848; Ord. 6.) Where husband of deceased cestui que trust had left England eight years before, and had not since been heard of, notice to him of payment into Court dispensed with, Re Hansford, 7W. R. 199. As to service out of the jurisdiction, see lUd. All the persons named in the trustee's affidavit as interested ought generally to be served with the petition where it prays for costs out of the corpus, Re Greenland, 1 W. R. 46. Where the petition claimed a fiind against a very numerous class, some only of the class were required to be served, Re Colson, 2 W. R. 111. Where the dividends only are applied for, the remainder- men need not all be served. Re Hodges, 6 W. B, 487. A share of the fund paid in may be dealt with without serving the persons interested in the other shares, Re Hawkes, cited in note to Ord. 41, r. 5. Pay- [139] Proceedings under Charitable Trusts Act. 347 ment out of Court postponed upon written application received by the Lord Chancellor from claimants abroad. Re Hodson, 22 L. J. 1055. Place for Service on Petitioners. 8. No petition shall be set down to be heard, and no summons shall be sealed, until the petitioner or applicant has first named in his petition or summons a place where he may be served with any petition or summons or notice of any proceeding or order of the Court relating to the Trust Fund. (10th June, 1848; Ord. 7.) Title of Petitions, Summonses, and Affidavits. 9. Petitions presented, summonses issued, and affidavits filed nnder the said Act, shall be entitled in the matter of the said Act (10 & 11 Vict. c. 96), and in the matter of the pai-ticular trust. (10th June, 1848; Ord. 8.) [140] n. Proceedings under the Statute 16 & 17 Vict. c. 137, RELATING TO CHARITABLE TRUSTS. The following is an abstract of the sections of the Act which relate to the Jurisdiction of the Court of Chancery : — By sect. 17, " Before any suit, petition or other proceeding (not being an application in any suit or matter actually pending) for obtaining any relief, order or direction" as to any charity, or its property or income, by any person, be must transmit to the Board notice of it in writing, with every infor- mation requisite or called for by the Board as to its nature and objects ; and the Board may authorize or direct proceedings to be taken, according to the notice, or for such objects, or in such manner and under such stipulations as they think fit, and save as in s. 18 no such proceeding is to be entertained by any Court or Judge, except upon and in conformity with an order or certificate of the Board. But this enactment is not to extend to or affect any adverse claimant to the charity. By sect. 18, The Attorney-General's power to act ex officio is saved, and bis fiat still requisite as before in proceedings not taken under the Act, By sect. 20, The Board may certify to the Attorney-General cases in which they think it proper that he should institute proceedings, who may proceed in Chancery or under the further jurisdiction given by the Act. By sect 28, "Where the appointment or removal of any trustee, or any other ]«lief, order or direction relating to any charity, of which the gross annual income for tfae time being exceeds 301., shall be considered desirable, and such appointment, removal, or other relief, order or direction might now be made or given by the Court of Chancery, in respect either of its ordinary or its special or statutory jurisdiction, or by the Lord Chancellor, intrusted with the care arid commitment of the custody of lunatics, it shall be lawful for any person autho- rized in this behalf by the order or certificate of the said Board, or for the Attorney-General, to make application without any information, bill, or peti- tion to the Master of the Rolls, or one of the Vice- Chancellors sitting at Chambers, for such order, direction or relief, as the nature of the case may re- §48 Oedeh XU. — Statutoet Jurisdiction of Couet. [140] guire ; and the Maste|- of the RolU, or the Vice-Chancellor, to whom any eocl) application shall be made, shall and may proceed upon anfl dispose of si|clf application in Chambers, save where he may think fit otherwise to direct, and shall and may bave and exercise thereupon all such jurisdiction, power and authority, and make such orders and give such directions in relation to the matter of such application as might now be exercised, made or given by the Court of Chancery, or by the Lord Chancellor intrusted as aforesaid in a suit regularly instituted, or upon petition as the case may require ; and the Master of the Rolls and Vice-Cbancellors respectively shall, in relation to such applir cations as aforesaid and the proceedings thereon, subject to any rules which may be made by the Lord Chancellor ^it)i the advice and consent of them or any two of them, have all such powers of directing matters to be heard in open Court, and of ordering whs^t matters sh^l be heard and investigated by themselves and their Chi^ Clerks respectively, and such other powers and a^tboritie^ as by the Act of the last session of Parliament, c. 80, are vested in or apthorized to be exercised by them at Chambers ; and the provisions of the said Act applicable to orders made by the Master of the Rolls, or any of the Vice-Chancellors at Chaxabers, shall extend to all orders so made under this Act: provided always, that, save as may be oihervise provided by any rules to be made by the Lord Chancellor, with such advice and consent as aforesaid, the deterqainations of the Master of the Rolls and Vice-Chancellors respectively, upon a^d in relation to such applications as aforesaid, shall not be subject to appeal in any case where the gross annual income of th^ charity does not exceed 100^. : provided also, that it shall be lawfu) fPl^ the Master of the Rolls, or any Vice-Chancellor, when under the circumsti^ic^; of any application as aforesaid b« may so see fit, to direct that for obtainiqi; t^e relief, order or direction sought for by such application, an ii]fQi:mation, Ipijl or petition, as the case may require, shall be filed or presented and prosecuted as now by law required, and to abstain from further proceeding on such application." By sect. 29, The Ju^es in Chancery and in the Palatinate of Lancaster have concurreijt jurisdiction wbere the inqor(ie exceedp 302., an4 the charity is within the Palatinate. By sect. 30, The Judges in Chancery have jurisdiction in London, whether the income is above or un^^;* 30^ By sects. 32, 33, The District Courts of Baplsruptpy and Cpunty Courts have ^ lop^l jurisdiptiop where the income is not above 301. a year, but not any deputy of a County Court Judge. B.y sept. 36, No o;der of such District or County Court appointing or re- Biovi:;ig a trustee, or approving a scheme, i^ to be valid until confirmed by the Board, nor until one month after they have received the order. By sec(. 37, The Bpard, if dissatisfied witji such order, may remit it to the same Court, or transfer it to a Judge in Chancery ; and if qg^jn, (disapproving of it a!ft,er refni5?ipn, axe to tri^jsfer it to a Judge ii; CbaQcery or the Palatir n^te. By sect. 39, The niodp of appeal by any party on notice to be given within one month is specified, and the Board may suspend proceedings upon t^e ordei and require security for cpsts, b.ut the Attqmey.Qeijiecal may, acting ex (ffido, appeal within three ino)itl>s. [140] Proceedings under Charitable Trusts Act. 349 By sect. 40, The appellant tonst within three motitiis present a petition to the Court of Chancery, and such Court may confirtn, vary or reverse such order, or remit it to ffie t)istrict or County Court, or deal with the matter as an applieation under the Act to a Judge at ChiCmbers, and with any costs pay^ able by the ff^llant. Sect 41, "Prwvided always, that no Judge of the Court of Chancery nor any District Court of Bankruptcy or County Coutt, shall upon afiy proceedings under this Act have jurisdiction to try or determine the title at law or in equity to any real or persotaal property, or any term or interest therein^ as between any charity or the* trustee thereof, and any person holding or claiming such *eal or personal property, term or interest adversely to such charity, or to try or defermiae any question as to the existence or extent of any charge or trust" By sect 43, Eveify ^plfcation to any Judge or Court under the Act may be made by the Attorney-General, or by one or more of the trustees, or by two or more of the inhabitants, and the jurisdiction under the 52 Geo. III. c. lOI, is preserved. (By that Act the Court Was empowered to appoint new trustees on petition.) By sect. 47> The secretary of the charity commissioners is constituted " Treasurer of Charities." By sect. 48, In ihe various cases there specified any Court or Judge having jurisdiction under the Act may by order vest any charity, land, term or estate in such treasurer and his successors without any conveyance or assurance,'but if vested in any corporation not without their consent, nor as to copyholds without the consent of the lord of the manor, and may give him- compen- sation. By sect. 51, The secretary and such other public ofBcers as the Lord Chan- cellor shall appoint are to be ofBcial trustees of charity funds ; any such Court or Judge may order trustees or others holding annuities, stocks, shares or securities for or on behalf of a charity to transfer or deposit the same to or with such official &ustees. By sect. 52, The secretary is to keep separate accounts of the iunds of each charity, and the official trustees are to pay the income to the trustees or admi- nistrators of the charity, or dispose thereof and transfer the principal-, as any Court or Judge or other lawfiil authority shall direct. The Act to amend the Charitable Trusts Act, 1853 (18 & 19 Vict c. 124), extends the provisions of that Act, but does ilot materially affect the jurisdic- tion of the Court of Chancery. In case of future appointments of trustees of charities application should be made at Chambers, with notice to the Attorney-General, Re Cmyer's School, 10 Hare, App. 5 ; see S. C, Seton on Decrees, 398, 402. The 28th section confers on the Judges at Chambers the same jurisdiction as they would have exercised before the Act in a suit regularly instituted, or on petition, Re Davenport's Charity, 4 De G., M. & G. 839, where a vesting order under the Trustee Acts was made at chambers. In Re Lincoln Chapel, 1 .^ur., N. S. 1011, an order was made on petition inider this Act and the Trustee Act, 18S0, removing certain trustees, appointing others, and vesting thfe trust plfoperty. 350 Okdek XLI. — Statutory Jurisdiction of Court. [140] The assent of the charity commissioners is not required on application for disposal of money paid for the purchase of lands of a charity by a railway com- pany, Re Litter's Hospital, 6 De G., M. & G. 184. As to the meaning of the words "actually pending" in sect 17 of the Charitable Trusts Act, see ihid. In Re Roue's Charity, 3 De G., M. & G. 153, the fiat of the Attorney-General was required on petition for appointment of new trustees under the Trustee Act, 1850, and 52 Geo. III. c.lOl. After final order in a matter it is no longer pending within sect 17 of the Charitable Trusts Act, and subsequent applications require the certificate of the charity commissioners, Re Jervis's Charity, 7 W. R. 606 ; 5 Jur., N. S. 72S. As to a payment into Court under the Trustee Relief Act being " a suit or matter actually pending " within the 17th sect of the Charitable Trusts Act, 1853, see note to 10 & 11 Vict. \^ 96, b. 1, cited in notes at commencement of Ord. 41. Application to be by Summom — Form of Summons. 10. Any application to a Judge in Chambers under " The Cha- ritable Trusts Act, 1853," section twenly-eight, shall be made by summons, and such summons may be in liie form set out in Sche- dule (K) No. I., or as near thereto as the nature of the case may permit. (9th Dec. 1853.) Payment in under the Trustee Relief Act, prior to the Charitable Trusts Act, does not constitute "a suit or matter actually pending," Re Markuiell, 17 Beav. 618. Though a scheme for a charity had already been approved under Sir S. Romilly's Act, an application of the charity funds to a new purpose cannot be directed without notice to the commissioners, Ford's Charity, 3 Drew. 324. Fees. 11. The fees payable on proceedings before a Judge in Cham- bers under the said Act shall be the same as the fees payable according to the Orders XXXVIII. and XXXIX., in respect of other proceedings commencing by summons, and shall also, in all other respects, be regulated by those Orders. (9th Dec. 1853.) Fees and Costs. 12. Where 'the Judge directs that any matter commenced by summons under the said Act shaU be heard in open Court, the same fees shall be payable, and the same costs shall be allowed, as would have been payable in respect of any other matter so heard. (9th Dec. 1853.) Appeal. 13. No order made under the said Act by the Judge in Cham- bers shall be subject to appeal, where the gross annual income of the charity has not been declared by the Charity Commissioners [140] Proceedings under Leases and Sales Act. 351 for England and Wales to exceed one hundred pounds, unless the Judge, by whom such order may have been made, shall certify that such appeal ought to be permitted, either absolutely or on such terms as the Judge may think fit to impose. (9th Dec. 1853.) m. Pkoceedings under the Statute 19 & 20 Vict. c. 120, RELATING TO LeASES AND SalES OP SETTLED ESTATES. 19 & 20 Vict, c 120. An Act to facilitate Leases and Sales of Settled Estates. [29th July, 1856.] Whereas it is expedient-ithat the Court of Chancery should have power in certain cases to authorize leases and sales of settled estates where it shall deem that such leases or sales would be proper and consistent with a due regard for the interest of all parties entitled under the settlement ; and it is also expedient that persons in possession of land for certain limited interests should have power to grant agricultural or occupation leases thereof, at rackrent, for a reasonable period : be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and com- mons, in this present Parliament assembled, and by the authority of the same, as follows : I. The word "settlement," as used in this Act, shall signify any Act of Parliament, deed, agreement, copy of Court roll, will or other instrument, or any cumber of such instruments, under or by virtue of which any heredita- ments of any tenure or any estates or interests in any such hereditaments stand limited to or in trust for any persons, by way of succession, including any such instruments affecting the estates of any one or more of such persons exclu- sively ; and the term " settled estates," as used in this Act, shall signify all hereditaments of any tenure and all estates or interests in any such heredita- ments which are the subject of a settlement ; and for the purposes of this Act a tenant in tail after possibility of issue extinct shall be deemed to be a tenant for life. II. It shall be lawful for the Court of Chancery in England, so far as relates to estates in England, and for the Court of Chancery in Ireland, so far as relates to estates In Ireland, if it shall deem it proper and consistent with a due regard for the interests of all parties entitled under the settlement, and subject to the provisions and restrictions in this Act contained, to authorize leases of any settled estates, or of any rights or privileges over or affecting any settled estates, for any purpose whatsoever, whether involving waste or not, provided the fol- lowing conditions be observed : First, every such lease shall be made to take effect in possession at or within one year next after the making thereof, and shall be for a term of years not exceeding for an agricultural or occupation lease twenty-one years, for a mining lease, or a lease of water, water mills, wayleaves, waterleaves, or other rights or easements, forty years, and for a building lease ninety-nine years, or where the Court shall be satisfied that it is the 352 Oedee XLI. — Statutoey Jueisdiction of Court. [140] u9uajl custom of the district and benefidal to the inheritance to grari^ b= K , See Re Wilson's Estates, cited in note to the Settled Estates Acts, ante. [142] Evidence as to Parties interested, and as to Expediency of Sale. 22. On every application under the Act for authority to sell, the Court must be satisfied by sufficient evidence who are the parties interested in the estate, -whose consent is required by the Act, and what are the circumstances which render the proposed sale proper and expedient. (15th Nov. 1856 ; Ord. 9.) Special Directions under Sect. 36. 23. Where, under the provisions of the 36th section of the Act, it shall be necessary to obtain the special directions of the Court for any application to the Court, or any consent to such applica- tion, such special directions may be obtained ex parte by summons at the Chambers of the Judge to whose Court the application may be intended to be made or may have been made. (15th Nov. 1856; Ord. 10.) See, as to the practice under this Rule, the Regulations 21 & 22 of 8th Aug. 1857. Order to specify on what Documents notice under Sect. 22 24. Every order of the Court, made in pursuance of the powers conferred on it by the Act, shall specify on what document or documents (if any) the notice referred to by the 22nd section of the Act shall be placed or indorsed ; and the Judge may, if he thinks fit, require fliat such document or documents so indorsed shall be produced in Court for his inspection ; and in case of any such Order relating to lands in a register county or district, the Court may order a duplicate or a memorial of the same to be registered. (15th Nov. 1856; Ord. 11.) Fees and Allowances. 25. The fees and allowances to all officers and solicitors of the Court, in respect of the matters under the Act, shall be such fees and allowances as by the practice of the Court and Orders XXXVm. and XXXIX. they are entitled to take and charge for business of a similar nature. (15th Nov. 1856 ; Ord. 12.) 364 Okdeb XLL— Stattjtokt Jurisdiction of Gouet. [142] xy. peoceednsrgs tjndek the statute 21 & 22 viot. c. 27, relating to the amendment op the procedure in the Court op Chancery (a). 21 & 22 Vict. u. 27. An Act to amend the Course of Procedure in the High Court of Chancery, the Court of Chancery in Ireland, and the Court of Chancery of the County Palatine of Lancaster, [28th June, 185S.] Whereas it is expedient to amend further the practice and course of pro- ceeding in the High Court of Chancery, the Court of Chancery in Ireland, and the Court of Chancery of the County Palatine of Lancaster : be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, iij this present Parliament assem- bled, and by the authority of the same, as follows : I. This Act shall commence and take efifect from and after the first day of November one thousand eight hundred and fifty-eight, and may be cited and referred to as '' The Chancery Amendment Act, 1858." II. In all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract or agreement, it shall be lawful for the same. Court, if it shall tl^ink fit, to award damages to the party injured, either in addition to or in substitution for such iijjunptipn or specific performance, and such damages may be assessed in, such manner as the Court shall direct. III. It shall be lawful for the Court of Chancery, if it shall think fit, to cause the amount of such damages in any case to be assessed or any question of fact arising in any suit or proceeding to be tried by a special or common jury before the Court itself; and the Court of Chancery may make all such rules and orders upon the Sheriff or any other person for procuring the attendance of a special or common jury, for such assessment of damages or the trial of such question of fact, as may be made by any of the Superior Courts of Common Law at Westminster, and may also make any other orders which to the Court of Chancery may seem requisite ; and every such jury shall consist of persons possessing the qualifications, and shall be struck, summoned, balloted for, and called in like manner, as if such jury were a jury for the trial of any cause in any of the said Superior Courts ; and every juryman so summoned shall be entitled to the same rights and subject to the same duties and liabilities as if he had been duly summoned for the trial of any such cause in any of the said Superior Courts ; and every party to any such proceeding shall be entitled to the same rights as to challenge and otherwise, as if tie were a party to any such cause ; and generally for all purposes of or auxiliary to the assessment of (a) The sHort title, by which this Act is designated (s. 1 ) is the Chancery Amendment Act, 18S8. In the headings of pp. I'i2 — 9 of the authorized edition of the Consolidated Orders it is designated the Chancery Jury Act. The Act is frequently called Sir Hugh Cairns' Act, [142] Peoceedings under Chancery Amendment Act. 365 damages or the trial of questions of fact by a jury before the Court itself, and in respect of new trials the Court of Chancery shall have the same jurisdiction, powers and authority in all respects as belong to any Superior Court of Common Law, or to any Judge thereof for the like purposes : provided that from any order made by the Court on an application made for a new trial there shall be the same rightof appeal as from any other order of the Court. IV. Any question of fact and any question as to the amount of damages which shall be so ordered to be tried by a jury before the Court itself shall be reduced into writing in such form as the Court shall direct, and at the trial the jury shall be sworn to try the said question, and a true verdict to give thereon according to the evidence ; and upon every such trial the Court of Chancery shall have the same powers, jurisdiction and authority as belong to any Judge of any of the said Superior Courts sitting at Nisi Prius. V. It shall also be lawful for the Court of Chancery, if it shall think fit, to cause the amount of such damages in any case to be assessed, or any question of fact arising in any suit or proceeding to be tried, before the Court itself with- out a jury, and to cause the evidence on the trial of that question to be taken by the oral examination of witnesses and other proofs in open Court j and any question of fact, and any question as to the amount of damages, which shall be so ordered to be tried before the Court itself, shall be reduced into writing in such form as the Court shall direct ; and the verdict of the Judge shall be of the same effect as the verdict of a jury under this Act ; and the proceeding^ upon and after such trial, as to the power of the Court, the evidence, and otherwise, shall be the same as in the case of trial by jDry under this Act : pro- vided that, in the case of a trial under this section, any person may apply for a new trial, either to the Judge before whoin the trial was had, or to the Court of Appeal in Chancery. VI. It shall also be lawful for the Court of Chancery, in any case in which it shall think fit so to do, to cause the amount of such damages to be assessed by a jury before any Judge of one of the Superior Courts of Commoti Law at Nisi Prius, or at the assizes, or before the Sheriff of any county or city, and for that purpose to issue a precept to the Sheriff of such county or city as the Court of Chancery shall think fit, or where the Sheriff is interested then to the Co- roner, requiring him to return, summon and impanel a common or special jury for the purpose aforesaid, in like manner as is done in cases of writs of inquiry at common law, which are to be executed before a Judge or before the Sheriff; and the Court of Chancery shall have power to set aside the verdict or inqui- sition on such inquiry, and to direct a new inquiry, in such manner and ob such terms as the Court shall think fit. VII. In any case in which all parties to a suit are competent to make ad- missions, any party may call on any other party by notice to admit any document, saving all just exceptions; and in case of refusal or neglect to admit, the cost of proving the document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless the Court shall certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice be given, except in cases where the omission to give the notice is, in the opinion of the Taxing Master, a saving of expense. 366 Ordee XLL— Statutoet Jurisdiction of Couet. [142] VIII. Sections I., II, III, IV, V, VI. and VII. of this Act shall extend to and all the powers therein contained may be exercised by the Court of Chan- cery in Ireland in all suits and proceedings within its jurisdiction, and the Court may, for the purposes of this Act, make such rules and orders upon the Sheriff, or any other person, for procuring the attendance of a jury as may be made by any of the Superior Courts of Common Law at Dublin. IX. The Lord Chancellor of Ireland, with the advice and assistance of the Master of the Rolls and the Lord Justice of Appeal in Ireland, or either of them, may and they are hereby required from time to time to make general rules and orders for carrying the purposes of this Act into effect as regards the Court of Chancery in Ireland, and for regulating the times and forms and mode of procedure, and generally the practice of the said Court in respect of the matters to which this Act relates, and for regulating the fees and allowances to all officers of the said Court and solicitors thereof in respect to such matters, and so far as may be found expedient for altering the course of proceeding hereinbefore prescribed in respect to the matters to which this Act relates, or any of them, and such rules and orders may from time to time be rescinded or altered by the like authority, and all such rules and orders shall take effect as general orders of the said Court. X. Sections I, II., III., IV, V., VI. and VII. of this Act shall extend to and all the powers therein contained may be exercised by the Court of Chan- cery of the County Palatine of Lancaster within the jurisdiction of the said Court ; and the Chancellor of the Duchy and County Palatine of Lancaster, with the advice and assistance of the Lords Justices of the Court of Appeal in the High Court of Chancery, or one of them, and of the Vice-Chancellor of the County Palatine, may and they are hereby required from time to time to make such general rules and orders as may be necessary for assimilating the pro- cedure and practice of the Palatine Court in respect of the matters aforesaid to those of the High Court of Chancery, and for regulating the fees and allowances in respect thereof XI. The Lord Chancellor, with the advice and assistance of the Master of the Rolls, the Lords Justices of the Court of Appeal in Chancery, and the Vice-Chancellors, or any three of them, may, and they are hereby required from time to time to make general rules and orders for carrying the purposes of this Act into effect, and for regulating the times and form and mode of pro- cedure, and generally the practice of the said Court, in respect of the matters to which this Act relates, and for regulating the fees and allowances to all officers of the said Court and solicitors thereof in respect to such matters, and so far as may be found expedient for altering the course of proceeding herein- before prescribed in respect to the matters to which this Act relates, or any of them, and such rules and orders may from time to time be rescinded or altered by the like authority ; and all such rules and orders shall take effect as general orders of the said Court. XII. All general rules and orders made in pursuance of the powers con- tained in this Act shall, immediately after the making and issuing thereof, be laid before both Houses of Parliament, if Parliament be then sitting, or, if Parliament be not then sitting, within five days after the next meeting thereof: provided always, that if either of the Houses of Parliament shall, by any reso- [142] Proceedings under Chancery Amendment Act. 367 lution passed within thirty-six days after such rules or orders have been laid before such Houses of Parliament, resolve that the whole or any part of such rules or orders ought not to continue in force, in such case the whole, or such part thereof as shall be so included in such resolution, shall from and after such resolution cease to be binding. See as to new trial of issue at law, Ord. 6, r. 13. Where an agreement is not specifically enforceable by reason of expiration of statutory powers, there may be a right to damages for its non-performance, Titlett V. Charing Cross Bridge Railway, 7 W. R. 391. See S. t. as to right to specific performance, 26 Beav. 419. Plaintiff not entitled to damages in equity when he has done some act which disentitles him to specific performance, Collins v. Stutely, 7 W. R. 710. Court will not decree specific performance of a contract to take a loan of money, nor award damages for non-performance of the contract, Rogers v. Challis, 7 W. R. 710. In Gedye v. Duke i^ Montrose, 26 Beav. 45, a suit for specific performance by a purchaser, the purchase was completed after bill filed, and he obtained a sub- sequent decree for compensation for delay in giving possession. Since this Act the Court, on granting interim injunction, will strictly require plaintiff's undertaking to abide any order of the Court as to damages. Tack v. Silver, 1 John. 219. Except in case of fraud on part of the defendant, Ingram v. Stiff, or Stiffe, 1 John. 220, n. ; but on appeal, in that case the undertaking was required, 5 Jur., N. S. 947. Trial by jury in Chancery will not generally be directed where either party desires a. trial at law, Peters v. Rule, 7 W. R. 171 ;• 28 L. J. 246. Trial by jury in Chancery cannot be directed, except at a stage of the suit and in cir- cumstances in which it has been the practice to direct an issue, Bradley v Be- vington, 4 Drew. 511 ; 7 W. R. 429 ; 5 Jur., N. S. 562 ; 28 L. J. 799. The Court will not direct trial before it on an opposed application for the purpose before the hearing j where it is clesu: that the question is proper for such trial, the parties should agree to the application to save the expense of taking the evidence twice, George v. Whitmore, 26 Beav. 557 ; 28 L. J. 720 ; 7 W. R. 225. Trial by jury in Chancery will not be directed in a suit to restrain infringe- ment of a patent, such suit being merely ancillary to the legal right, Griffiths V. Tanner, 7 W. R. 322. The Court will not, in a suit for specific performance' or damages, award damages where it refuses specific performance, Rogers v. Challis, 27 Beav. 175- [143] Question to be tried to be reduced into a certain form, copied, and called the " Record for Trial" and fled, and entered for Trial. 26. Any question of fact, or any question as to the amount of damages, which shall in any suit or proceeding be directed by any order to be tried by a jury before the Court itself, or before the Court itself without a jury, shall be reduced into writing in the 368 Okder XLI. — Statutoet Juetsdiction of Cocjht. [143] form set forth in Schedule (N), No. 1 or 2, and the same shall be copied on parchment by the plaintiff or such person as the Court shall direct, or by the solicitor for such plaintiff or person, and shall be called the " Record for Trial ;" and the same shall be filed with the Clerk of Records and Writs in whose division such suit or proceeding may be, within three days after such order shall have been passed and entered ; and, within three days after such filing as aforesaid, the same shall be entered for trial as hereinafter mentioned. (4th April, 1859 ; Ord. 3.) As to the manner of writing records for trial see Order 16 of 6tli March, 1860, cited in note to Order 15. Forms of Orders for various issues, Seton on Decrees, S16. Direction for Special Jury. 27. Where the Court shall order such question or questions to be tried by a special jury, a direction to that effect shall be contained in the order directing such trial. (4th April, 1859 ; Ord. 4.) Entering for Trial, and marking same — Day for Trial. 28. Upon production to the Registrar of a certificate of the Clerk of Records and Writs that the " Record for Trial" has been filed, the same shall be set down for trial in the Cause Book of the Judge to whose Court the suit or proceeding is attached, and shall be marked " Trial by Jury," or " Trial before the Court without a Jury," as the case may be ; and either party may apply to the Court to fix a dsiy for such trial. (4th April, 1859 ; Ord, 5.) Obtaining and Serving Order for Common Jury — Form of Order. 29. Where such trial is to take place by a common jury before the Court itself, the plaintiff or such person as aforesaid, ten days at the least before the day fixed for Such trial, shall obtain, on motion or petition as of course, and serve on the Sheriff, or, if he is interested in the matter in questicril, then upon the Coroner, an order for such Sheriff or Coroner to summon a common jury for such trial, which order shall be in the form set forth in Schedule (N), No. 3. (4th April, 1859 ; Ord. 6.) Obtaining and Serving an Order for Special Jury, where di- rected by the Court— Expense of Special Jury. 30. Where the Court shall have specially directed such question or questions to be tried by a special jury, the plaintiff or such other person as aforesaid shall, ten days at the least before the day fixed for such trial, obtain on motion or petition as of course, and serve on the Sheriff or Coroner as aforesaid, and on the oppo- site party, an order for a special jury, which order shall be in the form set forth in Schedule (N), No. 4 ; and the expense of such [144] Proceedings undeb Chancert Amendment Act. 369 special jmy shall in the first instance be borne and paid by the plaintiff or such other person as aforesaid, but shall afterwards be paid and borne as the Court shall direct. (4th April, 1859 ; Ord. 7.) Obtaining and Serving an Order for a Special Jury, where not directed hy the Court — Expense of Special Jury. 31. Where the Court shall not have specially directed such question or questions to be tried by a special jury, either party shaU be at liberty, fourteen days at the least before the day fixed for such trial, to obtain,on motion or petition of course, an order for a special jury, and shall serve the same on the opposite party twelve days at the least, and on the Sheriff or Coroner ten days at the least, before the day fixed for such trial ; and the expense of such special jury shall in the first instance be borne by the party obtaining the same ; but if the Court upon such trial shall be of opinion that it was proper that such trial should be had by a special jury, the Court may give such directions as to the costs thereof as it shall think fit. (4th AprU, 1859 ; Ord. 8.) Summoning Common Jury in addition to Special Jury. 32. Where an order shall have been made for a special jury, such Sheriff or Coroner shall, in addition to the special jury, sum- mon twelve conmion jurymen for such trial, in order that, in the event of a sufficient number of special jurors not being in attend- ance to make a jury, a tales may be directed by the Court or prayed for by either party, as hereinafter provided. (4th April, 1859 ; Ord. 9.) Return of Order and Jury Panel— Leaving same with the Clerk of Records and Writs, to be annexed to the Record. 33. The order for any such common or special jury as aforesaid shall be returned by such Sheriff or Coroner to the solicitor or person who shall have lodged the same, together with his return and the jury panel ; and such order and jury panel shall, two days at the least before the day of trial, be left with the Clerk of Record and Writs to be annexed to the Record for trial. (4th April, 1859 ; Qrd. 10.) [145] Making up Special Jury from Common Jurymen, where Special Jury directed by the Court. 34. Where the trial shg,U have been specially directed by the Court to be by a special jury, then in the event of there not being a sufficient number of special jurymen in attendance to make such c. B B 370 Oedee XLI. — Statutoey Jueisdiction of Couet. [145] jury, it shall be in the discretion of the Court whether or not to have such jury made up from the common jurymen in attendance. (4th April, l'85d; Ord. 11.) Making up Special Jury, where Special Jury not so directed. 35. Where a special jury shall have been summoned at the instance of either party, -without the special direction of the Court, then in the event of a sufficient number of special jurymen not being in attendance to ma,ke such jury, the same shal^ unless the Comt shall otherwise direciSkbe made up from the common jury- men in attendance, on the appm^i^im of either party. (4th April, 1859; Ord. 12.) " ^^ — *" Summons for a Viem-Mamng a Shoroel 36. Either party siaU he at liberty to app^By summons to a Judge at Chambers for a view by the jury summoned for any trial; and on the hearing ot such summons each party shall name a shower for suci view, and any order to be made on such applica- tion shall he in the form set forth in Schedule (N), No. 5. (4th April, 1859; Ord. IS.) Statement of Place of View and distance thereof— Deposit- Scale of Charges. 37. The summons for a view, and the order to be made thereon, shall state the place at which the view is to be made, and the distance thereof from the office of the Under- Sheriflf. And the sum to be 'deposited in the hands of the IJnder-Sheriff shall be £10 in case of a common jury, and £16 in case of a special jury, if such distance shall not exceed five miles, and £15 in case of a coinmon jury, and £21 in case of a special jury, if it shall be above five miles ; and if such sum shall be more than sufficient to pay the expenses of the view, the surplus shall forthwith be returned to the solicitor or party who obtained the view ; and if such sum shall not be sufficient to pay such expenses, the deficiency shall forthwith be paid by such solicitor or party to the Under-Sherifi". And the Under-Sherifi" shall pay and account for the money so deposited according to the scale following, that is to say : — [146] For travelling expenses to the Under-Sherifi^, showers, & s. d.- and jurymen, expenses already paid, if reasonable. Fee to the Under- Sheriff when the distance does not exceed five miles from his office . . . .110 Where such distance exceeds five mUes . . .220 And in case he shall be necessarily absent more than one day, then for each day after the fiii'st, a further fee of' . . . . . . . ..110 [146] Peoceedings under Chancery Aiiendjient Act. 371 Fee to each of the showers, the same as the Under £ s. d. Sheriff, calculating the distance from their respective places of jibode. Fee to common jtirymen, per diem , . . .350 For each special juryman, per diem . . . .110 Allowance for refreshment to theUnder-Sheriff, showers, and jurymen, whether common or special, each per diein 5 To the bailiff, for summoning each juryman whose resi- dence shall not be more than five miles distant from the office of the Under-Sheriff . . . .026 And to the bailiff, for summoning each juryman whose residence does exceed five miles of such distance .050 (4th April, 1859 ; Ord. 14.) Nominating and reducing SpecialJury, and Proceedings after the Order for a View. 38. The mode and practice of proceeding to nominate sind re- duce a special jury, and the proceedings after any order for a view shall have been. made as aforesaid, shall be the same jn all respects as are now or for the time being shall be in force in the Superior Courts of Common Law, when a special jury is ordered to be struck or a view is to be had, or as near thereto as the practice of this Court will admit. (4th April, 1859; Ord. 15.) Form of Notice to admit Documents. 39. The notice to admit documents may be according to the form set forth in Schedule (N), No. 6. (4th ApriL 1859; Ord. 16.) [147] Payment of Money into Court in respect of Damages — Costs of Trial or Inquiry. 40. Where the Court shall award damages, and direct a trial as to the amount of such damages before the Court itself, either with or without a jury, or direct a Writ of inquiry of damages as herein- after provided for, or an inquiry as to the amount of damages in any other manner, the defendant or other the person against whom damages shall have been awarded may take out a summons before a Judge at Chambers for liberty to pay into Court a sum of money in respect of such damages ; and in case such liberty shall be given and a sum of money shall be paid into Court accordingly, then in the event of a larger sum for .damages not being awarded than the amount so paid into Court, the plaintiff or person seeking' such damages shall pay the costs of such trial or writ of inquiry B B 2 372 Order XLI.— Statutory Jurisdiction of Court. [147] or inquiry in any such other manner as aforesaid, unless the Court shall otherwise direct. (4th April, 1859 ; Ord. 17.) Record, Sheriff's Return, and Jury Panel to he transmitted to Registrar, and Copy left for Judge, 41. On the day appointed for any trial, and previously to the commencement thereof, the record for trial with the return and jury panel (if any) annexed thereto, shall be transmitted by the Clerk of Records and Writs to the Registrar of the Court in attendance ; and a copy thereof shall be left for the Judge before whom such trial is appointed to be had, by the person at whose instance the same may have been entered for trial. (4th April, 1859 ; Ord. 18.) Calling Jurors, and administering Oath to them — Administering Oath or Declaration to Witnesses. 42. The jurors shall be called by the Registrar of the Court, and the oath shall be administered to them by such Registrar, and shall be in the form set forth in Schedule (N), No. 7. The wit- nesses shall be called by the Usher of the Court ; and the oath (or declaration, as the case may be) shall be administered by the Registrar of the Court to the witnesses, and shall be in the form set forth in the same Schedule, No. 8 or 9. (4th April, 1859; Ord. 19.) Addresses to the Jury or the Court. 43. Upon every such trial the addresses to the jury or to the Court, as the case may be, shall be regulated as follows : — The party who begins, or his counsel, shall be allowed, in the event of his opponent not announcing at the close of the case of the party who begins, his intention to adduce evidence, to address the jury a second time at the close of such case, for the purpose of summing up the evidence ; and the" party on the other side, or his counsel, shall be allowed to open the case, and also to sum up the evidence (if any) ; and the right to reply shall be the same as -at present in force in the Superior Courts of Common Law on trials at Nisi Prius. (4th April, 1859 ; Ord. 20.) [148] Usher to take charge of Jury — His Oath. 44. Where the jury retire from the Court to consider their verdict, they shall be taken charge of by the Usher of the Court ; but previously thereto the Registrar of the Court shall administer to such Usher an oath according to the form set forth in Schedule (N), No. 10. (4th AprU, 1859 ; Ord. 21.) [148] Proceedings under Chancery Amendment Act. 373 Indorsement and Signature hy the Registrar — Return of Record for Trial and Jury Panel. 45. The verdict or finding of the jury, or of the Court, as the case may be, shall be indorsed by the Registrar of the Court on the Record for Trial, and shall be signed by him, and then re- turned to the Office of the Clerks of Records and Writs to be filed, and if the trial shall have been by a juiy, then with the jury panel and the names of the jurors who were sworn indorsed thereon. (4th April, 1859 ; Ord. 2i.) Notice of Application for a New Trial. 46. The notice of any application for a new trial, whether to the Judge before whom such trial shall have been had, or to the Lord Chancellor or the Lords Justices, shaU be given for the times fol- lowing : — If such trial shall have been had in Hilary, Trinity, or Michaelmas Term, then not later than for the 3rd seal after such term ; and if such trial shall have been had in Easter Term, or during the sittings after Hilary, Trinity, or Michaelmas Term, then not later than for the 3rd motion day in the term then next ensuing. (4th AprU, 1859 ; Ord. 23.) Writ of Inquiry of Damages. 47. Where the Court shall award damages to any person, by virtue of the powers contained in the 2nd section of the said Act, and shall order the amount of such damages to be assessed by a jury before any Judge of one of the Superior Courts of Common Law at Nisi Prius, or at the assizes, or before the Sheriff of any county or city the person to whom such damages shall be awarded shall be at liberty to sue out at the Office of the Clerks of Records and Writs a writ of inquiry of damages according to the form set forth in Schedule (N), No. 11, 12, or 14. (4th AprU, 1859; Ord. 24.) [149] Notices of Inquiry. 48. The rules now in force in the Courts of Common Law rela- tive to notices of inquiry shall be applicable to notices of in- quiry under any writ of inquiry to be issued by virtue of the last preceding Rule. (4th April, 1859; Ord. 25.) Form of Return to Writ of Inquiry — Filing of such Writ and the Return. 49. The return to the writ of inquiry of the verdict or inqui- sition shall be in the form set forth in Schedule (N), No. 13; and the writ of inquiry, with such return thereto, shall, within ten days after such return, be filed at the Office of the Clerks of Records and Writs. (4th April, 1859; Ord. 26.) 374 Order XT J. — Statdtoet Jurisdiction of Court. [149] Application to set adde Verdict or Inquisition. 50. Any application to set aside the verdict or inquisition on any such writ of inquiry, and to direct a new inquiry, shall be made within ten days after the filing thereof, exclusive of any days on which the Court to which such application ought to be inade shall not be sitting. (4th April, 1859; Ord. 27.) ' Subpcenas ad Testificandum and Duces tecum. 51. Either party shall be at liberty to sue out, at the Record and Writ Clerks' Office, subpoenas ad testificandum and subpoenas duces tecum, to compel the attendance of witnesses on any trial, according to the forms now, oi: which for the time being shall be, in use in th.is Court, or as near thereto as the circumstances of each case will admit. (4th April, 1859; Ord. 28.), Use of Forms with Variations. 52. The forms of proceedings contained in Schedule (N) may be used in the cases to which they are applicable, with sucl^ alterations as the circumstances of the case may render necessary; and any variance therefrom, not being a matter of substance, shall not afiect their validity or regularity. (4th April, 1859; Ord. 29.) '-' '' ■ Order XLII. [150] MISCELLANEOUS POINTS. L Contempt. Privilege from Arrest. I. Officers and attendants upon the Court, suitors and wit- nesses, are to have privilege eundo, redeundo, et morando, for their necessary attendance, but not^ otherwise ; and wher^ any of them are arrested at such times of necessary attendance, it is a contempt of Court. (29th Jan. 1&18-19; Ord, 86.) As to the privilege from arrest of a solicitor attending the Court as an officer of the Court, eundo et redeundo, Gaecoytie's Case, 14 Ves. 183 ; attending the Master, Ex parte Ledwick, 8 Yes. 598. A solicitor attending a person for whom he acts in a suit, Eyre v. Barrow, i Jur., N. S. 652 ; 6 W. R. 767. As to deviation, Ei parte Donlevy, 7 Ves. 317 ; Sidgier v. Birch, 9 Ves. 69 ; Attorney- .Oeneral v. Leathersellers' Company, 7 Beav. 157 ; Jones v. Rose, 11 Jur. 379^ [150J Contempt. 375 As to privilege of a party, Bromley v. Holland, 5 Ves. 2 j Sidgier v. Birch, 9 Ves. 69 ; Andrews v. Walton, 1 M. & G. 380 ; 14 Jur. 260 ; Newton v. Askew, 13 Jur. 187 ; 18 L. J. 42. As to a witness, Gibbs v. Phillipson, 1 R. & M. 19 ; LUes Case, 2 V. & B. 373 ; Ex parte Temple, 2 V. & B. 391 ; Ei parte Byne, 1 V. & B. 316. Party attending proceeding^ in the House of Lords as parliamentary agent was arrested on attachment for costs in Chancery ; he was discharged hy this Court. Going to a house on the way home to obtain refreshment is not a deviation which will destroy the privilege, Attorney-General v. Skinners' Com- pany, C. P. Coop. 1. A party attending an arbitrator under order of the Court is privileged, Moore v. Booth, 3 Ves. 350. As to the jurisdiction of a Vice- Chancellor to discharge from arrest a party to a Rolls cause, Newton v. Askew, supra ; to discharge a bankrupt, Plomer v. Mttcdonough, 1 De G. & S. 232 ; see List's Case, supra. Improper Conduct. 2. 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 per- son so offending. (22nd May, 1661; Sand. 308. 29th Jan. 1618- 19; Ord. 77.) See Fau v. Price, 1 Dick. 91 ; Williams v. Jones, 2 Dick. 477 ; Witham v. Witham, 3 Ch. Rep. 41 ; Elliot v. Halmarack, 1 Mer. 303 ; and Beames' Orders, 204, n., as to orders nisi for committal where only one witness proved the contempt. In case of contempts, granted upon force or ill words, upon serving of process, or upon words of scandal of the Court, proved by affidavit, the party is forth- with to stand committed, Order 77 of 1618. Letter threatening defendant if he proceeded in a suit with an indictment for perjury, &c., held a contempt. Smith v. Lakeman, 20 Jur. 1202. Action of trespass against messengers of the Court restrained, Chalie v. Pickering, 1 Keen, 749. Persons disturbing the possession of a receiver committed without previous order nisi. Broad v. Wickham, 4 Sim. 511. Committal of a Member of Parliament for writing a threatening letter to a Master, Re Ludlow Charitiis, Lechmere Charlton's Case, 2 M. & Cr. 316 j of a person writing and sending money to the iJaii Chancellor, Martin's Case, 2 R. & M. 674, 11. Solicitor committed for scandalising the Court of Review, Ex parte Fan Sandau, 1 Ph. 445. As to committal for marrying a ward of Court see Seton on Decrees, 370. Circulation of a printed report of proceedings on an injunction motion where leave was given to bring an action will not be restrained as a contempt on the ground that the report will prejudice the trial of the actioni Brook v. Biiani, 8 W. R. 688; 29 L. J. 616. Order restraining publication by plaintiff of part of a report of proceedings in this Court, which contained an offensive state- ment, Coleman v. West Haftlepool Railway Company, 8 W. E. 734. Privilege of Parliament is no protection against an attachment for contempt, 376 Ordeh XLII.— Miscellaneous Points. [150] which is of a criminal and not a civil kind, Wellesley v. Duke of Beaufort, 2 R. & M. 639 J Lechmere Charlton's Case, supra. n. Documents. Deposit of Documents. 3. Where any deeds or other docnments are ordered to be left or deposited, whether for safe custody, or for the purpose of any inquiry in Chambers or otherwise, the same shall be left or depo- sited in the Record and Writ Clerks' Office, and shall be subject to such directions as may be given for the production thereof. (16th Oct. 1852; Ord. 57.) See as to exemption from discovery, notes to Ord. 15, r. 4; Ord. 19, rr. 6 and 8. See as to costs of bill of discovery filed by defendant, Ord. 4fO, r. 14. By 15 & 16 Viet u. 86, s. 18, " It shall be lawful for the Court on the appli- cation of the plaintiffin any suit in the said Court, whether commenced by bill or by claim, and as to a suit commenced by bill, whether the defendant may or may not have been required to answer, or may or may not have been interro- gated as to the possession of documents, to make an order for the production by any defendant upon oath of such of the documents in his possession, or power relating to matters in question in the suit as the Court shall think right, and the Court may deal with such documents when produced in such manner as shall appear just." See 15 & 16 Vict. c. 86, ^s. 19, cited in note to Ord. 19, r. 6. By sect. 20, " It shall be lawful for the Court upon the application of any defendant in any suit, whether commenced by bill or by claim, but as to suits commenced by bill where the defendant is required to answer the plaintiffs bills not until after he has put in a full and sufficient answer to the bill, unless the Court shall make any order to the contrary to make an order for the production by the plaintiff in such suit on oath, of such of the documents in his possession or power relating to the matters in question in the suit as the Court shall think right, and the Court may deal with such documents when produced in such manner as shall appear ,iust." By 1 Will. IV. c. 36, s. 15, r. 16," Where a person shall be committed for a contempt in not delivering to any person or persons, or depositing in Court or elsewhere, as by any order may be directed, books, papers or any other articles or things, any sequestrator or sequestrators appointed under any com- mission of sequestration shall have the same power to seize and take such books, papers, writings or other articles or things, being in the custody or power of the persons against whom the sequestration issues as they would have over his own property ; and thereupon such articles or things so seized and taken shall be dealt with by the Court as shall be just ; and after such seizure, it shall be lawful for the Court, upon the application of the prisoner or of any other person in the cause or matter, or upon any report to be made in pursuance of this Act, to make such order for the discharge of the prisoner upon such terms, and if it shall see fit, making any costs in the cause, as to the Court shall seem proper." [150] DocuMEXTs. 377 Notes to 15 & 16 Vict. c. 86, s. 18. For the practice as to production of documents, see Daniell's Ch. Pr. 943'; Sid. Smith's Ch. Pr. 535. By 15 & 16 Vict. c. 80, s. 26, cited in note to Ord. 35, r. 1, applications for production of documents are to be made at Chambers, see Dipple v. Carles, infra. For various forms relating to production of docu- ments, see Tripp's Forms, 160, 173. Defendant entitled as of course to produce books in daily use in his business, at the p)ace of his business, unless there be danger of his tampering with them. Form of order in such case, Mertens v. Haigh, 1 John. 735. As to the production of documents at a place where they are in constant use, and the remedy for unsatisfactory inspection there, see Grane v. Cooper, 4 M. & C. 263 ; Maund v. Arrie%, 4 M. & C. 503 ; Prentice v. Phillips, 2 Hare, 152 ; Gardner v. Dangerfield, 5 Beav. 389. Under the usual order for inspection a person not engaged in the cause not entitled to inspect, Summerfield v. Pritchard, 10 Hare, App. 88 ; 17 Jur. 361. Plaintiflf not entitled to send one defendant to inspect the documents of another, Bartley v. Bartley, 1 Drew. 233. On an undertaking by defendant to produce plaintiff's solicitor or agent may inspect, Williams v. Prince of Wales Assurance Company, 23 Beav. 338 ; 3 Jur., N. S. 55. Party cannot against his consent be compelled to produce documents else- where than before an officer of the Court, Maund v. Allies, 4 M. 8c C. 503. Solicitor of producing party cannot charge for inspection at his office, Wood- roffe V. Baniel, 10 Sim. 126. Court will not generally order production of original documents before a, special Examiner out of the jurisdiction, Lafone v. Falkland Islands Company, 4 K. & J. 39. Solicitor and client co-defendants ; the former alone admitted possession of documents belonging to the latter, but claimed privilege ; order to produce them, Gashell v. Chambers, 26 Beav. 303. If a solicitor obtain information from his client and also from other sources it is not privileged, Lewis v. Pennington, cited in note to Ord. 15, i. 4 ; 29 L. J. 670. As to privileged communications see collection of cases referred to, Seton on Decrees, 445 ; Ford v. De Pontes, 7 W. R. 299 ; Lawrence v. Campbell, 7 W. R. 336 ; 4 Drew. 485. The privilege is not confined to communications respect- ing pending or expected litigation, ibid., Ford v. De Pontes, supra ; Re Cameron Coalbrook Company, 25 Beav. 1. As to production of documents on which there is a lien, see ibid.. Re Gregson, 26 Beav. 87. Letters from defendant's solicitor to a person not a party privileged, Curling V. Perring, 2 M. & K. 380. Letters written in contemplation of suit privileged in that suit and any future suit for the same subject matter, Holmes v. Baddeley, 1 Ph. 476. Communications of agent collecting evidence privileged, Steele v. Stewart, 1 Ph. 471 ; Lafone v. Falkland Islands Company, 27 L. J. 25 ; 4 K. & J. 34. Where answer claimed privilege as to certain documents but omitted to specify them, omission supplied by affidavits read on motion for production. Parsons v. Robertson, 2 Keen, 605. What allegation will protect a document from discovery, Peile v. Stoddart, 1 M. & G. 192. Cestui que trust is entitled to see opinion of counsel taken by a tirustee for his 378 Oedee XLn. — Miscellaneous PoiJfis. [150] guidance in administering the trust, but a person merely clainring to be cettui que trust, and nho has not established that claim, is not so entitled, Wynne v. Humberstm, 27 Beav. 421 ; 5 Jur., N. S. S ; 28 L. J. 281. As to privileged political documents, see Wadeer v. East India Company, at Rajah of Coorg v. East India Company, 2 Jur., N. S. 407 ; 25 L. }. 345. Letters between co-defendants not privileged, Goodall v. Little, 1 Sim., N. S. 165 ; Belts v. Menzies, 26 L. J. 528 ; 3 Jur., N. S. 885. Persons claiming as cestuis que trust entitled to production, though tiieir interest alleged to have been revoked by another disposition of the property, Bugden v. South, 26 L. J. 425. Solicitor's lien no protection against production where he is called as a witness by parties not the persons against whom the lien is claimed, Hope v, Liddell, 7 De G., M. & G. 331 ; 1 Jur., N. S. 665 ; 24 L. J. 691. Solicitor, a defendant, admitting possession of documents of his client, a co-defendant, which were not privileged, was ordered to produce them, Gaskell v. Chambert, 26 Beav. 303 ; see Seton on Decrees, 444. Solicitor and client, co-defendant?, charged with fraud ; letter by former to latter not privileged, Reynell v. Sprye, 10 Beav. 51 ; Gaskell v. Chambers,, 26 Beav. 303 ; see Seton on Decrees, 444 ; Be Gregson, 26 Beav. 87. Plaintiff inspecting must not divulge the information so obtained, Williams T. Prince of Wales Assurance Company, 23 Beav. 338 ; 3 Jur., N. S. 55. A document is not protected from production by plaintiff to defendant merely because plaintiff obtained production of it fi-om another defendant. Where plaintiff had obtained production of a document firom a defendant the Court refused, in the absence of the latter, to order plaintiff to produce die docu- ment to another defendant, Reynolds v. Godlee, 4 K. & J". 92. Production may be ordered after a plea and issue joined, Parkinson v. Cham- bers, 24 L. J. 47 ; 3 W. R. 130 ; 1 K. & J. 72. Defendant is not bound to give discovery of documents- which he swears make out his own title and not plaintiff's, Clegg v. Edmonson, 22 Beav. 125. Rights otheir at law and heir in tail to production of documents of pedigree distinguished, Rumbold v. Forleath, 3 K. & J. 748. Where defendant denied that he was a mortgagee he was required to produce a deed alleged to have been deposited as a security, Jones v. Jonesj I Kay, 6. Plaintiff not generally entitled to inspect defendant's mortgage deeds, Howard v. Robinson, 4 Drew. 522 ; 5 Jur.y N. S. 1 36 ; 28 L. J. 670 ; 7 W. R. 223 ; Hunt V. Elmes, 27 Beav. 62 ; 5 Jur., N. S. 645 ; 7 W. R. 471 ; 28 L. J. 680, except where he has partly described it in his answer, ibid. Where defendant makes a document part of his answer plaintiff entitled to see it, Latimer v. NeatCj 4 CL & F. 570 ; Hunt v. Elmes, supra (in which case Latimer v. fieate is said to have been doubted j see observations in that case, in Glover v. Hall, infra); but mere statement in answer of a document in which plaintiff has no interest, does not-entitle plaintiff to production^ Glover v. Haiti 2 Ph. 484, where answer states the effect of documents, and craves leave to refer to them, plaintiff entitled to production, Hardman v. Ellames, 2 M. & K. 732. As to cross-examination on affidavit as to documents, Manby v. Bewicke, see cited in note to Ord. 19, ante, p, 153. [150] Documents. 379 On argument of exceptipns tq s^nswer ^s to documents the bill must be taken to pray the proper relief, anil defendant is not protected from answering on the ground that the bill is opeii to a depnurr^r ^s to part of the relief. Per Lord Justice Knight Bruce, Bates v. Christ's College, 26 L. J. 449. Where defendant deposed that since his answer documents of which he had admitted possession were deposited with co-defendant, motion for production in the latter's absence refused, Barbridge v. Robinson, 2 M. & G. 244. Pro4uation will he. required of documents in possession of defendant's agent, Morrice v. Swaby, 2 Beav. 500. B(it it must appear that the party required to produce documents has entire control over them: order against defendants who had cease(J to be trustees pf a company for production of its documents refused, Penney v. Goode, 1 Drew. 474. Production of deed in possession of defendants as trustees under it not ordered where cestuis que trust not parties, Ford V. Dolphin, 1 Drew. 222. As to production of documents in joint posses - sion. of the defendant and others, Taylor v. Rundell, 1 Cr. & P. 104 ; 1 Ph. 223 ; 1 Y. & C. 128 ; 11 Sim. 391; Murray v. fFalter, 1 Cr. & P. 114 ; Airey Y.Hall, 2 De G. & Sm. 489 ; Reid v. Langlois, I M. & G. 627 i Morrell v. Wootten, 13 Beav. 105 ; Walburn v. Ingleby, 1 M. 8r K. 61. The Chancery Amendment Act does not authorize an order for production on any evidence, but the admission of the person against whom the order is sought, Lamb v. Orton, 1 Drew. 414 j 10 Hare, App. 31. What is a suffi- cient admission on which to found an order, Storey v. Lord J. G. Lennox, 1 M. & C. 525 ; Wing v. Harvey, 17 Jur. 481. Extraneous evidence to prove admis- sion of a document from schedule of defendant's answer notreceived, Reynell v. Sprye, 1 De G., M. & G. 656. No evidence will be admitted as to the materiality of a document omitted from an affidavit of documents till a further affidavit has been called for. The Court will order such affidavit after as well as before decree, Richards v. WatMns, 6 Jur., N. S. 168. Denial on oath of relevancy of concealed passages is not sufficient to protect them from production, Caton v. Lewis, 22 L. J, 946. The Court inspected for itself the sealed-up passages in Caton v. Lewis, supra 1 Lafme v. Falkland Islands Company, 27 L. J. 25. Whether a company or corporation answering under their seal be within the eighteenth section of the Chancery Amendment Act doubted, Law v. London Life Policy Company, 10 Hare, App. 20. Affidavits as to documents directed to be made by company's officer. Ranger V. Great Western Railway Compaiiy, 5 Jur., N. S. 1191 ; 28 L. J. 741 ; 7 W. R. 426 J 4DeG. & J. 74. As to the plaintiff making evidence documents produced by defendant, Taylor v. Salmon, 3 M. & C. 422. See note to 15 & 16 Vict. c. 86, s. 40, cited in notes to Ord. 19, i. 13. Where counsel appeared to oppose a summons at chambers to produce documents, the summons was adjourned into Court, Dipple v. Corles, 22 L. J. 15 ; applications for production of documents are made at chambers, Thomp- son V. Tueton, 9 Hare, App. 49. The Judge will hear the application at chambers, where one side only desires to be heard by counsel ; where both desire 380 Order XLII.— Miscellaneous Points. [^^. to be so heard, the application is adjourned into Court, Rumbold v. Forteath 3 K. & J. 44 See as to costs of copies furnished by defendant where plaintiff has leave to take copies, Kennedy v. George, 6 W. R. 218 ; Prentice v. Phillips, 2 Hare, 1S2. Leave to have documents examined by experts to test their genuineness, Groees v. Groves, Kay, App. 19. On application by plaintiff under this section the case made by the bill will be taken to be true, Gresley v. Mousley, 2 K. & J. 288; 2 Jur., N. S. 156. De- fendant's title deeds held not privileged where the bill alleged that the estate had been fraudulently purchased, iUd. In Careo) v. Davis, 21 Beav. 213, Court rolls of a manor ordered to be pro- duced at Steward's oiSce. As to the affidavit being in the form settled by the Court, see Rochdale Canal Company v. King, in note to sect. 20, infra. Affidavit may be excepted to for insufficiency, Lazarus v. Moseley, 5 Jur., N. S. 1119; where, after defendant had filed three insufficient affidavits, and plaintiff obtained an attachment, defendant filed a fourth affidavit, motion to take it off the file refused, Harford v. Lloyd, 23 L. J. 710. Defendant must make the common affidavit though he may not be compellable to produce documents, Rumbold v. Forteath, 3 K. & J. 44 ; Latarus v. Moseley, supra. Exceptions to answer as to documents may still be requisite in some cases. Law V. London Indisputable Policy Company, 10 Hare, App. 20; but are generally discouraged. Perry v. Turpin, Kay, App. 49 ; 18 Jur. 594 ; Kidger v. Worsunck, 5 Jur., N. S. 37 ; Barnard v. Hunter, 1 Jur., N. S. 1065 ; see note to Ord. IS, r. 3. Defendant can be required on summons to file affidavit as to documents, though he has answered such interrogatories, see Perry v. Turpin, supra; Barnard v. Hunter, supra; and note to Ord. 11, i. 1. Defendants, assignees in bankruptcy, not bound to produce office copies of the plaintiff's examination in the Bankruptcy Court, Gandee v. StuTi^eld, 4 De G. 8j J. 1. Notes to 15 & 16 Vict. c. 86, s. 20. In an early case under this section defendant was required to specify the documents of which he sought the production, Fiott v. Mullens, 1 Sm. & G. 1 ; 16 Jur. 946 ; but see Mlntosh v. Great Western Railway Company, 1 Sm. & G. 4 j 22 L. J. 70, plaintiff was ordered to make an affidavit as to possession of documents. It is now decided that no affidavit is necessary to support plain- tiff's or defendant's application for production of documents; and delay does not disentitle him, Rochdale Canal Company v. King, 15 Beav. 11. Defendant cannot under this section obtain production from a co-defendant : for such purpose a cross-bill is still necessary, Attorney-General v. Clapham, 10 Hare, App. 69 ; Wynne v. Humberston, 27 Beav. 421. Where, after insufficient answer, plaintiff gave notice of motion for decree, he was held to have waived his right to a further answer, and defendant ob- tained an order for production, Boyce v. Colrell, 18 Jur. 770. Answer assumed sufficient before expiration of time for excepting if no intimation of intention to file exceptions given, Lafone v. Falkland Islands Company, cited in note to Ord. 19, f. 6. But defendant cannot have the order till the plaintiff has had [150] Documents. 381 time to see whether the answer is sufficient, Walker v. Kennedy, S Jur., N. S. 481 ; 26 L. J. 397 ; 5 W. R. 396. See note to Ord. 19, r. 6. Where plaintiff does not require an answer, defendant after ohtaining an order to put in a voluntary answer, and before putting it in, may have an order for production of documents, Bailey v. Dunkerley, 27 L. J. 816 j 6 W. R. 835. Claim of plaintiff to lands taken by a company was disputed by the latter as to part below low-water mark. Held that the company was entitled to see the parcels only of plaintiff's title-deeds, Lind v. Isle qf Wight Ferry Company, 8 W. R. 540. m Production of Documents. 4. The course of procedure in use as to the production of docu- ments ordered to be produced before the hearing of a cause, shall extend and be applied to the production of documents ordered to be produced after the hearing of any cause or matter. (1st June, 1854; Ord. 3.) Ord. 60 of 3rd April, 1828, empowered the Master where, by decree or order, books, &c., were directed to be produced before him for the purposes of the decree or order, to determine as to their deposit in his office or inspection elsewhere. Under this Order the Master might, in his discretion, require only part of the books and papers to be produced, Re Parishes of Llantrissant, 1 R. & M. 25. Refusal to leave books required by the Master was disobedience of the order directing their production, Shirley v. Earl qf Ferrars, I M. & C. 304 ; Sidden v. Liddiard, 1 Sim. 388. The Master had power to decide from time to time what books should be produced or deposited. Henna v. Dunn, 6 Madd. 341 ; and what parts should be inspected, Duncan v. Varty, 14 Sim. 393. As to enforcing Master's warrant for production, Harris v. De Tastet, 1 S. Si S. 263 ; Ashew v. Peddle, 10 Sim. 182 ; Stubbs v. Mollineux, 4 Beav. 345. After decree on further dii;ections, there being no further reference, plaintiff is not entitled to production, Rippin v. Dolman, 2 W. R. 432. in. Election. Where compelled by a Defendant whose Answer is not excepted to. 5. A defendant, whose answer is not excepted to or set down for hearing on former exceptions, alleging that the plaintiff is pro- secuting him in this Court and also at law for the same matter, may, upon the expiration of eight days after his answer or further answer is filed, obtain as of course, on motion or petition, the usual order for the plaintiff to make his election in which Court he will proceed. (2nd Nov. 1850; Ord. 7.) See generally as to the plaintiff's election in which Court he will proceed, Daniell's Ch. Pr. 654; Sid. Smith's Ch. Pr. 777 ; Seton on Decrees, 491— 494. As to signature of elections, Ord. 3, r. 1. See, as to plea of former suit for the same matter, Ord. 14, r. 6. 382 Ordek XLII. — Miscellaneous Points. [150] A mortgagee may bring ejectment pending his bill for foreclosnre, Booth v. Booth, 2 Atk. 342. Defendants at law are not compellable to plead equitable defences, and may obtain injunctions in equity to stay action, notwithstanding their power so to plead, Prothero v. Phelps, 25 L. J. lOSj Kings/ord v. Suiitiford, 28 L. J. 413 ; Gompertx v. Pooley, 28 L. J. 484. In Simpson v. Sadd, 3 W. R. 191, leave given to defendant to recover costs of action by plaintiff which had been stayed under order to elect. If plaintiff in an injunction suit proceed without leave to try his title to an invention at law he may be called upon to elect, Mayor v. Spence, 29 L. J. 552. See note to next rule. Plaintiff, by letter to defendant, electing to sue in a foreign Court, proceed- ings here were stayed, Pieters v. Thompson, Coop. 294. Proceedings iday be taken both at law and in equity by mortgagee, Coote on Mortgage, 498 (3rd ed.) ; WilUs v. Levett, 1 De G. & S. 392. Vendor not entitled to enforce his lien in equity and sue at law on a bond for the purchase-money, Barker v. Sihark, 3 Beav. 64. If mortgagee has prevented himself from restoring the mortgaged estate on repayment, he Will be restrained from suing at law. Palmer v. Hendrie, 27 Beav. 3'49. Special election allowed to take proceedings both at law and in equity by judgment creditor, Barker v. Dumaresque, 2 Atk. 119; by plaintiff suing at law on a title not in contest in equity, Trimleston v. Kemmis, LI. & G., temp. Sugd. 29 ; where the action properly ancillary to the suit, Royle v. Wynne, C. 8i F. 252. Action brought after decree upon the same subject-matter will be restrained by injunction, Frank v. Basnett, 2 M. & K. 618 ; Oldfield v. Cobbett, 6 Beav. 516. Reference to inquire whether the proceedings at law and in equity are for the same matter, stays all proceedings both at law and in equity, unless special leave be granted, CariDicK v. Young, 2 Swan. 239. See Fennings v. Humphery, infra. Pending suit for specific performance of agreement to take a lease, plain- tiff may not bring an action for use and occupation, Carrick v. Young, 4 Madd. 437 J Ambrose v. Nott, 2 Hare, 649 j nor for trespass, where unfler order in such suit the lease has been assigned but delivery of possession delayed, Gedye v. Duke of Montrose, 5 W. R. 537. On motion to discharge an order to elect the Court may either direct an inquiry or decide at once, Mills v. Fry, 3 V. & B. (overruling Boyd v. Heinzel- man, 1 V. & B. 381 ) ; Anon., 2 Mad. 395 i Amory v. Brodrick, infra. Special leave to proceed pending the inquiry, Mouseley v. Basnett, I V. & B. 382, n. Injunction generally inserted in the order; gB<«-e, whether the order ope- rates as an injunction, Fennings v. Humphery, 4 Beav. 1 ; Amory v. Brodrick, Jac. 530. Defendant waives the benefit of the order by taking steps in the action at law, ibid. [151] Where compelled bff a Defendant whose Answer is excepted to. 6. A defendant, whose answer is excepted to, ailegmg that the plaintiff is prosecuting him in this Court and also at law for the [151] Election, 383 same matter, may by notice in writing require the plaintiff to set down the exceptions within four days from the service of the notice. And if the plaintiff does not set down such exceptions within such four days, or if they are not allowed, such defendant ip entitled as of course, on motion or petition, to obtain the usual order for the plaintiff to make his election in which Court he will proceed. (2&d Nov. 1850 ; Ord. 13. 8th May, 1845 ; Ord. 51, md Ord. 16, Art. 21.) This rule differs from Ord. 16, art. 21, of 8th May, 1845, by omitting the words " or referred back on former exceptions" before the word " alleiging>;" by substituting the words " set down the exceptions" for " procure the Master's report upon the exceptions,"' and the words " set down such exceptions within such fouE days, or if they are not allowed" for " obtain the Master's report within such four days." Ord. 51 of 8th May, 1845, agreed with the Ord. 16, art. 21, except that the words " or if the exceptions be not allowed" were inserted in Ord. 51 before " such defendant ;" and at the end of the order were -subjoined the wordS' " with the usual directions ; but the plaintiff may move to discharge such order on the merits confessed in the answer :" as to which see Rule 8 of this Order, iij/ro. A plea in bar to part of the relief and an answer to the rest do not constitute such an answer as entitled defendant to an order to elect, Fisher v. Mie, 3 Meriv. iS, It does not seem that there is anything in the present orders to affect this decision, Daniell's Ch. Pr. 656. See, as to defendant in cases of election requiring plaintiff to set down exeeptions in the four days here mentioned, Ord. 16, i. II. See note to preceding rule. Where compelled by a Defendant from whom an Answer is not required. *7. A defendant, from whom an answer is not required, alleging that the plaintiff is prosecuting him in this Com-t and also at law for the same matter, may, upon the expiration of the time within which he might have been served with interrogatories for his exa- Qumtion in answer to such bill, obtain, as of course, on motion or petition, the usual order for the plaintiff to make his election- in which Court h? will proceed. Moving to discharge Order to electa ♦8. In cases referred to in the last three preceding Rules, the plaintiff may move to discharge such order, on the merits confessed in the answer, or, if necessary, appearing by affidavit. (8th May, 1845; Ord. 51.) See, as to the order on which this rule is in part founded, note to Ord. 42, r. 6. 384 Okder XLII.— Miscellaneous Points. [151] IV. Interest. Computation of Interest on Debts. 9. Where a decree or order is made directing an account of the debts of a deceased person, unless otherwise ordered, interest shall be 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 four per cent, per annum, from the date of the decree or order. (16th Oct. 1852; Ord. 10.) The interest is computed to the date of the certificate, Sid. Smith's Ch. Pr. 568. See, as to interest under covenant or on debt by specialty and other debts, 3 & 4 Will. IV. c. 42. By sect. 28 it is enacted " that upon all debts or sums certain, payable at a certain time or otherwise, the jury on the trial of any issue or on any inquisition of damages may, if they shall think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be pay- able by virtue of some written instrument at a certain time, or, if payable other- wise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payment, provided that interest shall be payable in all cases in which it is now payable by law. In Mildmay v. Methiien, S Drew. 91, a demand for payment for work and labour with interest was held to entitle the creditor to interest under this section. The direction for computing interest, formerly inserted, used to be expressly confined to the debts carrying interest, Seton on Decrees, 50. See cases cited as to rules of equity as to interest on debts, ibid. 51, 52, 190. As to the joint operation of 3 & 4 Will. IV. u. 42, s. 3, and 3 & 4 Will. IV. c. 27, s. 42, in the case of annuity charged on land, see Hunter v. Nockolds, 1 M. & G. 640 ; arrears of annuity secured by bond carry interest from date of the decreCj LatTtson v. Laimon, 18 Beav. 7 i 17 Jur. 1044 ; so of other annuities. Re PowelVi Trust, 10 Hare, 134; Seton on Decrees, 140. Payment of Interest on Debts not carrying Interest. 10. A creditor, whose debt does not carry interest, who comes in and establishes the same before the Judge 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 four 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. (26th Aug. 1841; Ord. 46.) See note, to preceding rule. This rule differs from Ord. 46, of 26tb Aug. I84I, on which it is founded, by substituting the words " the Judge in chambers under a decree or order of [152] Interest. 385 the Court or of the Judge in chambers" for the words "the Master under a decree or order in a suit." The reference to compute the interest may be made on further consideration, FUntoffy. Haynes, 4 Hare, 309. Where leave was given to apply in an administration suit for payment of a debt established in a consequent suit, interest not computed from decree in the former suit, Dams v. Combermere, 15 Sim. 394; 10 Jur. 959. Lessee evicted after death of lessor brought successive actions against his executors and devisees and obtained judgment The damages in the latter action held to carry interest as against the devisees from the entry up of judgment in that action, Morse v. Tucker, 5 Hare, 79. Debt on n voluntary bond preferred to claim for interest under this rule, Garrard v. Lord Dinorben, 5 Rare, 213 ; 10 Jur. 772. In Wilcoeks v. Butcher, 16 Sim. 366, interest at four per cent, allowed to tenant for life on the arrears of interest of a trust fund. Intei'est on Legacies. 11. Where a decree or order is made directing an account of legacies, interest shall be computed on such legacies after the rate of four 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. (16th Oct. 1852; Ord. 11.) See, as to interest on legacies, Varley v. Winn, 2 K. & J. 700. Interest on legacies given only for delay in payment, and till after the time for payment no interest is demandable, Dmunian v. Needham, 9 Beav. 164 ; Marquis of Hertford V. Lord Lowther, 9 Beav. 266. Where testator put himself tn loco parentis, interest payable from his decease, Donovan v. Needham, supra ; Wilson v. Maddison, 2 Y. & C. C. C. 372. The 42nd sect, of 3 & 4 Will. IV. c. 27, does not apply to interest on a legacy directed to be raised by a sale of realty, Gough v. Brill, 16 Sim. 323. V. Recognizances. Time for Inrolnient. 12. No recognizance acknowledged in this Court, of what nature or kind soever, shall be inroUed therein after six months from the acknowledgment thereof, except under special circumstances, and by an order made by the Court upon motion for the inrolment thereof after that time, (22nd July, 1674.) As to priority of judgment debts, &c. to recognizance inroUed after the time limited by the order, Fothergill v. Kendriek, 2 Vern. 234 ; Bothomley v. Fairfax, 2 Vern. 750 j 1 P. Wms. 334. Recognizance not regularly taken may be sued on as an obligation, ibid. After the regular tfme, inrolment of a re- ceiver's recognizance entered nunc pro tunc, 1 Dick. 90. For such order see Marchant T. Marchant, M. R., 3 Nov. 1853, Seton on Decrees, 533. C. CO 386 Ordee XLn. — Miscellaneous Points. [15; To whom given. 13. Recognizances which -were formerly given to the Master the Rolls and the Senior Master in Ordinary, shall be given to tl Master of the Rolls and the Senior Vice-ChanceUor for the tin being. (16th Oct. 1852; Ord. 15.) See, as to the practice respecting receiver's recognizance, Seton on Decret fi33 ; SiA Smith's Ch. Pr. 610, 617. Vacating Recognizanceg. _ 14. Where, by any decree or order, any recognizance shall b directed to be vacated, the Clerk of Inrohnents shall, on duenotic thereof, attend the Master of the Rolls for that purpose, withou any direction for that purpose in such decree or order, (22n( Aug. 1859; Ord. 17.) [153] 387 SCHEDULES. Schedule (A.) [Referred to in the 2nd Rule of Order IX.] Form of Bill. lu Chancery. Between John Lee Plaintiff, and James Styles '\ and V Defendants. Henry Jones J Bill of Complaint. To the Right Honorable John Baron Campbell, of St. Andrews, in the county of Fife, Lord High Chancellor of Great Britain. Humbly complaining, showeth unto his Lordship, John Lee, of Bedford- square, in the county of Middlesex, Esq., the above-named plaintiff as follows : — 1. The defendant James Styles, being seised in fee simple of a farm called Blackacre, in t)ie parish of A., in the county of B., with the appurtenances, did, by an indenture dated the 1st of May, 1850, and made between the defendant James Styles of the one part, and the plaintiff of the other part, grant and convey the said farm with the appurtenances unto and to the use of the plain- tiff, his heirs and assigns, subject to a proviso for redemption thereof, in case the defendant James Styles, his heirs, executors, administrators or assigns, should on the 1st of May, 1851, pay to the plaintiff, his executors, adminis- trators or assigns, the sum of 5,000/., with interest thereon, at the rate of 5/. per centum per annum, as by the said indenture will appear. 2. The whole of the said sum of 5,000/., together with interest thereon at the rate aforesaid, is now due to the plaintiff. 3. The defendant Henry Jones claims to have some charge upon the farm and premises comprised in the said indenture of mortgage of the 1st of May, 1850, which charge is subsequent to the plaintiff's said mortgage. 4. The plaintiff has frequently applied to the defendants James Styles and Henry Jones, and required them 'either to pay the said debt, or else to release the equity of redemption of the premises, but they have refused so to do. 5. The defendants James Styles and Henry Jones pretend that there are some other mortgages, charges or incuml)rances affecting the premises, but they refuse to discover the particulars thereof. 6. There are divers valuable oak, elm and other timber and timber-like trees growing and standing on the farm and lands comprised in the said in- denture of mortgage of the 1st of May, 1850, which trees and timber are a materia] part of the plaintiff's said security ; and if the same or any of them were felled and taken away, the said mortgaged premises would be an insuffi- cient security to the plaintiff for the money due thereon. CC2 388 ScHED. A. — FoEM OF Bill. [15^ 7. The defendant James Styles, who is in possession of the said farm, h marked for felling a large quantity of the said oak and elm trees and oth timber, and he has, by hand bills, published on the 2nd of December instar announced the same for sale, and he threatens and intends forthwith to c down and dispose of a considerable quantity of the said trees and timber on tl said farm. Prayer. [15i The plaintiff prays as follows : — 1. That an account may be taken of what is due for principal and intere on the said mortgage. 2. That the defendants James Styles and Henry Jones may be decreed pay to the plaintiff the amount whidh shall be so found due, togeth with his costs of this suit, by a short day to be appointed for th purpose, or, in default thereof, that the defendants James Styles ai Henry Jones, and all persons claiming under them, may be absolute foreclosed of all right and equity of redemption in or to the sa mortgaged premises. 8. That the defendant Jaihes' Styles may be restrained, by the injunctii of this honorable Court, from felling, cutting or disposing of any the timber or timber-like trees now standing or growing in or upi the said ferm or premises comprised in the said indenture of moi gage, or any part thereof. 4. That the plaintiff may have such further or other relief as the nature the case may require. The defendants to this bill of complaint are, James Styles, Henry Jones. Y.y., (name of cbunseL) Note.— This bill is filed by Messrs. A. B. and C. D., of Lincoln's- InB, the county of Middlesex, solicitoi's for the aboVe-named plaintiff. [Ord. of 7th Aug. 18S2, 1st Set.] SCHEDTJLE (B.) [151 [Referred to in the 1st Rule of Order XI.] Fork of Interkogatories. In Chancery. Between John Lee Plaintiff, and James Styles'^ and > Defendants! Henry Jones j Interrogatories for the examination of the above-named defei ants in answer to the plaintiff's Bill of Complaint. 1. Does not the defendant Henry Jones claim to have some charge upon farm and premises comprised in the indenture of mortgage of the first of M one thousand eight hundred and fifty, in the plaintiff's bill mentioned ? [156] SCHED. B.^-FOEM OF InTEEEOGATOEIES. 2. What are the particulars of such charge, if any, the date, nature and short effect of the security, and what is due thereon ? 3. Are there, or b there, ^ny other jnortgages or m^^feiige, charges or charge, incumbrances or incumbrance, in any and what manner affecting the aforesaid premises, or any part thereof? 4. Set forth the particulars of such mortgages or mortgage, charges or diarge, incumbrances or incumbrance ; the date, nature and short effect of the security ; what is now due thereon ; and who is or are entitled thereto respec- tively J and when, and by whom, and in what manner, every such mortgage, charge or incumbrance was created. The defendant James Styles is required to answer all these interrogatories. The defendant Henry Jones is required to answer the ji^prrogatgries num- bered 1 and 2. ' Y.Y., (name of counsel.) [Ord. of 7th Aug. 1852, 1st Set] [157] Schedule (C.) [Referred to in the 1st Rule of Order XV.] Form op Answer. In Chancery. Between John Lee Plaintiff, and James Styles'^ and >. Defendants. Henry Jones J The Answer of James Styles, one of the »hove-n^fned defendants to the Bill of Complaint of the above-named pJL^intiff. In answer to the said bill, I, James Styles, say as follows : — 1. I believe that the defendant Henry Jones does claim to have a charge upon the farm and premises comprised in the indenture of morlgage of the first of May, one thousand eight hundred and fifty, in the plaintiff's bill men- tioned. .2. Such charge was created by an indenture dated the first -of November, one thousand eight hundred and fifty, made between myself of the one part, and the said defendant Henry Jones of ^the other part, whereby I granted and conveyed the said farm and premises, subject to the mortgage made by the said indenture of the first of May,,one,tliotiaaiid eight hundred and fifty, unto the defendant Henry Jones, for securing the sum of two thousand pounds and interest at the rate of five pounds per centum per .annum, and the amount due thereon is the said sum of two thousand pounds, with interest thereon, irom the date of such mortgage. 3. To the best of my knowledge, remembrance and belief, there is not any other mortgage, charge or inciunbrance affecting the aforesaid premises. M. N., (name. of counsel.) [Ord. of 7th Aug. 1852, 1st Set.] 390 ScHED. D. — Form of oedeeing Accounts, etc. [158] Schedule (D.) [Referred to in the 15th Rule of Order XXIII.] Form op ordering Accounts and Inquiries. This Court doth order [and decree], that the following accounts and inquiry be taken and made ; that is to say, 1. An account of the personal estate not specifically bequeathed of A. B., deceased, the testator in the pleadings named, come to the hands of, &c. 2. An account of the testator's debts. 3. An account of the testator's funeral expenses. 4. An account of the testator's legacies and annuities (if any) given by the testator's will. 5. An inquiry what parts (if any) of the testator's said personal estate are outstanding or undisposed of. And it is ordered, that the testator's personal estate not specifically be- queathed, be applied in payment of his debts and funeral expenses in a due course of administration, and then in payment of the legacies and annuities (if any) given by his will. {If ordered.) And it is ordered, that the following further inquiries and accounts be made and taken ; that is to say, 6. An inquiry what real estate the testator was seised of or entitled to at the time of his death. 7. An account of the rents and profits of the testator's real estate re- ceived by, &c. 8. An inquiry what incumbrances (if any) affect the testator's real estate or any and what part thereot {If Sale ordered.) 9. An account of what is due to such of the incumbrancers as shall con- sent to the sale hereinafter directed in respect of their incumbrances. 10. An inquiry what are the priorities of such last-mentioned incum- brances. 11. And it is ordered that the testator's real estate be sold with the approbation of the Judge, &c. &c. And it is ordered, that the further consideration of this cause be adjourned, and any of the parties are to be at liberty to apply as they may be advised. [Ord. of 7th Aug. 1852, 1st Set.] Schedule (E.) [159] [Referred to in the 2nd Rule of Order XXVIII.J Writs of Subpcena. 1. — Subpcena to hear Judgment. Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To greeting. We command you [and every of you] that you appear before our Lord High Chancellor [ar before his Lordship, or Honor the Master of the Rolls, at the [159] ScHED. E. — Writs of Subp(ena. 391 cause may be set dotm'] on the day of next, or when- ever thereafter a certain cause now depending in our High Court of Chancery, wherein A. B. [and others, or another] is [or are] plaintiff [or plaintiffs], and C. D. [and others, or another] is [or are] defendant [or defendants], shall come on for hearing, then and there to receive and abide by such judgment and decree as shall then or thereafter be made and pronounced, upon pain of jiidg- ment being pronounced against you by default Witness ourself at Westminster the day of in the year of our reign. ROMILLI, M. R. [160] 2. — Subpana to testify vivdvoce. in Court or before. Commissioners to examine viilnesses, and Subpxna duces tecum. Victoria, &c. . To greeting. We command you [and every of you] that, laying all other matters aside, and notwithstanding any excuse, you personally be and appear before our Lord High Chancellor [or before his Lordship, or Honor the Master of the Rolls, or before E. F. or G. H., Commissioners named in a commission issued to them for that purpose I, at such time and place as the bearer hereof shall by notice in writing appoint, to testify the truth according to your knowledge in a certain suit now depending in our High Court of Chancery, wherein A. B. [and others, or another] is [or are] plaintiff [or plaintiffs], and C. D. [and others, or another] is [or are] defendant [or defendants], on the part of the [in case of subpoena duces tecum, add, and that you then and there bring with you and produce, ^c] And hereof fail not at your peril. Witness, &c. ROMILLY, M..R. 3. — Subpoma ad testificandum, and Subpana duces tecum. Victoria, &c. To greeting. We command you [and every of you] that, laying all other matters aside, and notwithstanding any excuse, you personally be and appear before one of the examiners of witnesses in our High Court of Chancery, at bis ofiSce in Rolls- yard, Chancery-lane, London, at such times as the bearer hereof shall by notice in writing appoint, [or before , the examiner specially appointed for the examination of witnesses in our Chancery, at such times and places as the bearer hereof shall by notice in writing appoint], to testify the truth according to your knowledge in a certain cause Qepending in our said Court of Chancery, wherein A. B. [and others, or another] is [or are] plaintiff [or plaintiffs], and C. B. [and others, or another] is [or are] defendant [or defendants], on the part of the [in case of subpoena duces tecum, add, and that you then and there bring with you and produce, ^c] And hereof fail not at your peril. Witness, &c. RoMILLY, M. R. [161] 4. — Subpana for Costs, Victoria, &c. To greeting. We command you [and every of you] that you pay or cause to be paid, immediately after the service of this writ, to or the bearer of these presents £ costs, [[in a cause wherein A. B. [and others, or another] is [or are] plaintiff [or plaintiffs], and C. D. [and others, or another] is [or are] defendant [or defendants]], [[or in the matter of as the case may 6e]], by our Court of Chancery adjudged to be 392 ScHED. E.— Wkits of Subpcena. [161] paid by you, the said , under pain of an attachment issuing against your person, and such process for contempt as the Court shall award in default of such payment. Witness, &c. ROMILLY, M. R. [Ord. of 8th May, 1845.] 5. — Subpoena to name a Solicitor, Victoria, &c. To greeting. We command you that vithin ei^t days after the service of this writ on you, exclusive of the day of such service, laying all other matters and excuses aside, you do appear in our High Court of Chancery, and name a solicitor for you in a cause wherein are complainants, and are defendants, and observe what our said Court shall direct in this behalf, upon pain of an attachment issuing against your person, and such other process of contempt as our said Court shall award. Witness, &c. R0MILI.Y, M. R. [See Braithwaite's Record and Writ Practice, p. 264.] [162] 6. — Suhpama for an Iitfant, on coming of Age, to show Cause against Decree. Victoria, &c. To greeting. We command you that within days after the service of this writ on you, exclusive of the day of such service, you do show unto our High Court of Chancery good cause why a cet'tain decree, made by , on the day of in a certain cause, wherein A. B. [and others, or another], is [or are] plaintiff [or plaintiffs], and C. D. [and others, or another] is [or are] defendant [or defendants], should not be binding upon you. In default whereof such decree will stand and be absolute against you. Witness, Sec. ROKILLY, M. R. [Ord. of 21st Dec. 1833.] N.B. This a^ears to have been inadvertently included in the abrogatory Order {Order I.) in the Orders (ffSth Uay, 1845. Schedule (F.) [Referred to in the 6th Rule of Order XXIX.] Writs of Fieri Facias. 1. — Writ of Fieri Facias, on a Decree or Order of the Court of Chancery for Payment of Money. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To the Sheriff of greeting. We command yon that of the goods and chattels of C. D. in your baili- wick you cause to be made the sum of £ which lately, before us in our C163] ScHED. F. — Writs of Fieki Facias. 393 High Court of Chancery, in a certain cause [^or certain causes, or any person In trust for him, was seised or .possessed of on the said day of (a), or at any time afterwards, or over which the said C. D. on the said day of (a), or at any time afterwards, had any disposing power, which he might, without the assent of any other person, exercise for his own benefit ; to hold the said goods and chattels to the said A. B. as his proper goods and chattels, and also to hold the said lands, tenements, rectories, tithes, rents and hereditaments respec- tively, according to the nature and tenure thereof, to him and to his assigns, until the said sum of £ , together with interest as aforesaid, shall have been levied. And in what manner you shall have executed this our writ make appear to us in our Court of Chancery aforesaid immediately after the execu- tion thereof, under your seal and the jspils of those by whose oath you shall make the said extent and appraisement And have there then this writ. Witness ourselfat Westminster,. &c. RojlILLT, M. R. [169] 2. — Writ of Elegit, on a Decree or Order of the Court of Chancery for Payment of Costs. Victoria, by the grace of God of fte United Kingdom of Great Britain and Ij-eland Queen, Defender of the Faith. To the Sheriff of greeting. Whereas, lately in our High Court of Chancery, in a certain cause [or certain causes, as the case may be], there depending, wherein A. B. and others are plaintiffs, and C. D. and others are defendants [or in a certain matter there (a) The day on which the decree or order was made. (6) If' ' ' '■■" '■" ' the order be for money and interest, the day mentioned in the order. If for money only, the day on which the decree or order was made ; or, in case jt was made prior to the 1st day of October, 1838, say "from the 1st day of October, 1838." [170] ScHED. G.— Writs of Elegit. 397 depending, intituled, " In the matter of E. F.," as the case may Je], by a decree [^or order, as the case may be'] of our said Court, made in the said cause [or matter, as the case may be], and hearing date the day of , it was decreed and ordered [or ordered, as the case may be] that C. D. should pay unto A. B. certain costs as in the said decree [or order, as the case may 6«J mentioned, and which costs have heen taxed and alloWed by , one of the Taxing Masters of our said Court, at the sum oi £ , as appears hy the certificate of the said Taxing Master, dated the day of . And afterwards the said A. B. came into our said Court of Chancery, and, according to the form of the statute in such case made and provided, chose to he delivered to him all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough, and also all such lands, tenements, rectories, tithes, rents and hereditaments, including lands and here- ditaments of copyhold or customary tenure, in your bailiwick, as the said C. D., or any one in trust for him, was seised or possessed of, on the day of , in the yeai* of our Lord (o), or at any time afterwards, or over which the said C. D. on the said day of (a), or at any time afterwards, had any disposing power, which he might, without the assent of any other person, exercise for his own benefit ; to hold to him the said goods and chattels as his proper goods and chattels, and to bold the said lands, tenements, rectories, tithes, rents and hereditaments respedtively, according to the nature and tenure thereof, to him and to his assigns, until the said sum of £ , together with the interest thereon at the rate of jg* per centum per annum, from the said day of (ft) shall have been levied. Therefore we command_you that, without delay, you cause to be delivered to the said A. B. by a reasonable price and extent, all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough, and also all such lands and tenements, rectories, tithes, rents and hereditaments, including lands and hereditaments of copyhold or customary tenure in your bailiwick as the isaid C. D. or any person or persons in trust for him, was or were seised or possessed of on the said day of (a), or at any time afterwards, or over which the said C. D. on the said day of (a), or at any time afterwards, had any disposing power, which he might, without the assent of any other person or persons, exercise for his own benefit ; to hold the said goods and chattels to the said A. B. as his proper goods and chattels, and also to hold the said lands, tenements, rectories, tithes, rents and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said sum of £ , together with interest as aforesaid, shall have been levied. And in what manner you shall have executed this our writ make appear to us in our Court of Chancery aforesaid, immediately after the execution thereof, under your seal and the seals of those by whose oath you shall make the said extent and appraisement. And have there then this writ Witness ourself at Westminster, &c. ROMILLY, M. R. [171] ■ 3. Writ of Elegit, on a Decree or Order of the Court of Chancery for Payment af Money and Costs. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To the Sheriff of greeting. Whereas, lately in our High Court of Chancery, in a certain cause [or certain causes, as the case may be] there depending, wherein A. B. and others are (o) The date of the certificate of taxation. (J) The date of the certificate of taxation ; or, if that were prior to the 1st day of October, 1838, say "from the 1st day of October, 1838." 398 ScHED. G.— Weits of Elegit. [1722 plaintiffs, and C. D. and others are defendants [or', in a certain matter there depending, intituled, " In the matter of E. F.," as the case may 4c], by a decree [or order, as the case may be] of our said Court, made in the said cause [or matter, as the case may be], and bearing date the day of , it was decreed and ordered [or ordered, as the case may be], that C. D. should pay unto,A. B. the sum oi £ , together with certain costs as in the said decree [or order, as the case may be] mentioned, and which costs have been taxed and allowed by , one of the Taxing Masters of our said Court, at the sum of £ , as appears by the certificate of the said Taxing Master, dated the day of . And afterwards the said A. B. came into our said Court of Chancery, and according to the form of the statute in such case made and provided, chose to be delivered to him all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough, and also all such lands, tenements, rectories, tithes, rents and hereditaments, including lands and hereditaments of copyhold or customary tenure in your bailiwick, as the said C. D., or any one in trust for him, was seised or possessed of, on the day of , in the year of our Lord (o), or at any time afterwards, or over which the said C. D., on the said day of (o), or at any time afterwards, had any disposing power which he might, without the assent of any other person, exer- cise for his own benefit ; to hold to him the said goods and chattels as his proper goods and chattels, and to hold the said lands, tenements, rectories, tithes, rents and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said two several sums of £ and £ , together with interest upon the said sum of £ at the rate of 42. per centum per annum, from the day of (b), and on the said sum of £ at the rate of aforesaid, from the day of (c), shall have been levied. Therefore we command you that, without delay, you cause to be delivered to the said A. B., by a reasonable price and extent, all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough, and also all such lands and tenements, rectories, tithes, rents and hereditaments, including lands and hereditaments of copyhold or customary tenure, in your bailiwick, as the said C. D., or any person or persons in trust for him, was or were seised or possessed of on the said day of (a), or at any time afterwards, or over which the said C. D. on the said day of (a), or at any time afterwards, had any disposing power, which he might, without the assent of any other person, exercise for his own benefit ; to hold the said goods and chattels to the said A. B, a& his proper goods and chattels, and also to hold the said lands, tenements, rectories, tithes, rents and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said two several sums of £ and £ , together with interest as aforesaid, shall have been levied. And in what manner you shall have executed this our writ make appear to us in our Court of Chancery aforesaid, immediately after the execution thereof, under your seal and the seals of those by whose oath you shall make the. said extent and appraisement. And have there then this writ. ROMILLY, M. R. Witness ourself at Westminster, &c. (o) The day on which the decree or order was made, - (6) The day on which the decree or order was made j or, in case it was made prior to the 1st day of October, 1838, say " fi:om the 1st day of Octo- ber, 1838." (c) The date of the certificate of taxation; or, if that were prior to the 1st day of October, 1838, say, "from the 1st day of October, 1838." [173] ScHED. G.— Writs op Elegit. 399 i.-^WriC of Elegit, on a Decree or Order of the Court of Chancery for Payment of Money, Interest and Costs. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To the Sheriff of greeting. Whereas, lately in our High Court of Chancery, in a certain cause [^or certain causes, as the case may 4e] there depending, wherein A. B. and others are plaintiffs, and C. D. and others are defendants, [or, in a certain matter there depending, intituled, " In the matter of E. F.," as the case may be} by a decree [ffr order, as the case may be} of our said Court, made in the said cause [or matter, as the case may be] and bearing date the day of , it was ordered and decreed [or ordered, as the case may be] that C. D. should pay unto A. B. the sum of £ , together with interest thereon, "after the rate of j6 per centum per ^num, from the day of , together also with certain costs, as in the said decree [or order, as the case may be] mentioned, and which costs have been taxed and allowed by one of the Taxing Masters of our said Court, at the sum ot £ , as ap- pears by the certificate of the said Taxing Master, dated the day of . And afterwards the said A. B. came into oijr said Court of Chancery, and according to the statute in such case made and provided, chose to be delivered to him all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough, and also all such lands, tenements, rectories, tithes, rents and hereditaments, including lands and here^ ditaments of copyhold or customary tenure in your bailiwick, as the said C. D. or any one in trust for him was seised or possessed of on the day of in the year of our Lord (a), or at any time afterwards, or over which the said C. D. on the said day of (a), or at any time afterwards, had any disposing power, which he might, without the assent of any other person, exercise for his own benefit ; to hold to him the said goods and chattels as his proper goods and chattels, and to hold the said lands, tenements, rectories, tithes, rents and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said two several sums of £ and £ together with interest upon the said sum of £ at the rate of £ per centum per annum, from the said day of (i), and on the said sum of £ at the rate of 41, per centum per annum, from the day of (c) shall have been levied. Therefore we command you that, without delay, you cause to be delivered to the said A. B., by a reasonable price and extent, all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough, and also all such lands and tenements, rectories, tithes, rents and hereditaments, including lands and hereditaments of copyhold or customary tenure, in your bailiwick, as the said C. D. or any person or per- sons in trust for him, was or were seised or possessed of on the said day of (a), or at any time afterwards, or over which the said C. D. on the said day of (a), or at any time afterwards had any disposing power which he might, without the assent of any other person exercise for his own benefit; to hold the said goods and chattels to the said A. B. as bis proper goods and chattels, and also to hold the said lands, tene- ments, rectories, tithes, rents and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said two several (a) The day on which the decree or order was made. (&) The day mentioned in the decree or order. (c) The date of the certificate of taxation ; or, if that were prior to the 1st of October, 1838, say, " from the 1st day of October, 1838." 400 ScHED. G-.— Writs of Elegit. [174] sums of £ and £ , together with interest as aforesaid, shall have been levied. And in what manner you shall have executed diis our writ make appear to us in our Court of Chancery aforesaid, immediately after the execution thereof, under your seal and the seals of those by whose oath yon shall make the said extent and appraisement. And have there then this writ. Witness ourself at Westminster, &c. ROHILLY, M. R. [Ord. of 10th May, 1839.] Schedule (H.) [175] [Referred to in the 9th Rule of Order XXIX.] Writ of Venditioni Exponas. Victoria, bj^the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To the Sheriff of greeting. Whereas by our writ we lately commanded yon that of the goods and chattels of C. D. [here recite the Fieri Facial to the end]. And on the day of you returned to us in our Court of Chancery aforesaid that, by virtue of the said writ to you directed, you had taken goods and chattels of the said C. D. to the value or the money and interest aforesaid, which said goods and chattels remained in your hands unsold for want of buyers. Therefore we being desirous that the said A. B. should be satisfied his money and interest aforesaid, command you, that you expose to sale and sell or cause to be sold the goods and chattels of the said C. D. by you in form aforesaid taken and every part thereof, for the best price that can be gotten for the same, and have the money arising from such sale before us in our said Court of Chancery aforesaid, immediately after the execution hereof, to be paid to the said A. B, And have there then this writ. Witness ourself at Westminster, the day of , in the year of our reign. RoMILLT, M. R. [Ord. of 10th May, 1839.] Schedule (J.) [176] [Referred to in the llth Rule of Order XXIX.] No. I. Writ of Fieri Facias de Bonis Ecclf.siasticis. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To the Right Reverend Father in God, [John,] by Divine permission Lord Bishop of greeting. We command you that of the ecclesiastical goods of C. D., clerk in yoitt diocese, you cause to be made £ , which lately before us in our Court [176] ScHED. J. — Fieri facias de bonis ecclesiasticis. 401 of Chancery, in a certain cause l^or certain causes, as the case may be,] wherein A. B. is plaintiif and C. D. is defendant [or, in a certain matter there depending, intituled, " In the matter of E. F.," as the case may be\ by a decree \^or order, as the case may be] of our said Court, bearing date the day of was decreed [^or ordered, as the case may be,] to be paid by the said C. D. to the said A. B., together with interest on the said sum of jg , at the rate of £ per centum per annum from the day of , and have that money, together with such interest as aforesaid, before us in our said Court, imme- diately after the execution hereof, to be rendered to the said A. B., for that our Sheriff of returned to us in our said Court on [or " at a day now past,"] that the said C. D. had not any goods or chattels or any lay fee in his bailiwick, whereof he could cause to be made the said £ and interest aforesaid, or any part thereof, and that the said C. D. was a beneficed clerk, (to wit) rector of the rectory (or vicar of the vicarage] and parish church'of , in the said Sheriff's county and within your diocese [<« in the return] ; and in what manner you shall have executed this our writ make appear to us in our said Court, imme- diately after the execution hereof, and have you there then this writ. Witness ourself at Westminster, the day of , in the year of our Lord ROMILLT, M. 11. [Ord. of 18th July, 1857.] [177] No. II. Writ of Fieri Facias to the Archbishop, de Bonis Ecclesiasticis, DURING THE VACANCY OF A BiSHOP'S SeE, Victoria, [&c., as in the preceding form]. To the Right Reverend Father in God [John,] by Divine Providence Lord Archbishop of Canterbury, Primate of All England and Metropolitan, greeting. We command you, that of the ecclesiastical goods of C. D., clerk in the diocese of , which is within the province of Canterbury, as Ordinary of that Church, the Episcopal See of now being vacant, you cause to be made [&c. Conclude as in the precediftg form.] [18th July, 1857.] No. III. Writ of Sesuestrari Facias de Bonis Ecciesiasticis. Victoria, by the grace of God of the United Kingdom of Great Britain and and Ireland Queen, Defender of the Faith, To the Right Reverend Father in God [John], by Divine permission Lord Bishop of , greeting. Whereas we lately commanded our Sheriff of , that he should orait not by reason of any liberty of his county, but that he should enter the same, and cause [to be made, if after the return to a Fieri Facias, or delivered, if after the return to an Elegit, ^c, and in either case recite the former Writ], And whereupon our said Sheriff of , on [or " at a day pa'^t,"] returned to us in our said Court of Chancery that the said C. D. was a beneficed clerk, that is to say, rector of the rectory [_or vicar of the vicarage] and parish church of , in the county of , and within your diocese, and that he had not any goods or chattels, or any lay fee, in his bailiwick [here follow the words of the Sheriff's return] : Therefore we command you, that you enter into the said rectory [or vicarage] and parish church of , and take and sequester the same into your possession, 402 ScHED. J. — Fieri facias de bonis ecclesiasticis. [178] and that you hold the same in your possession until you shall have levied the said £, ^ and interest aforesaid of the rents, tithes, rent-charges in lieu of tithes, oblations, obventions, fruits, issues, and profits thereof, and other eccle- siastical goods in your diocese, of and belonging to the said rectory \or vicar- age] and parish church of , and to the said C. D. as rector [or vicar] thereof, to be rendered to the said A. B. ; and what you shall do therein make appear to us in our said Court immediately after the execution hereof; and have you there then this writ. Witness ourself at Westminster, the day of , in the year of our Lord . Romillt, M. R. Indorse it m afi-fa.: after thewar^i "expenses of the execution," add, "and sequestration." [Ord. of 1 8th July, 1857.] Schedule (K). Summonses. 1 — Form of General Summons. [Referred to in the 2nd Rule of Order XXXV. and in the 10th Rule of Order XLI.] In Chancery. In the matter of John Thomas, an infant, or Between Joseph Wilson Plaintiff, and William Jackson Defendant. Let all parties concerned attend at my chambers [in the Rolls-yard, Chancery- lane, Middlesex], [or at No. — , Square, Lincoln' s-inn, Middlesex], on , the day of , at of the clock in the noon, on the hearing of an application on the part of [here state on whose behalf the application is made, and the precise object of the application.'i Dated this day of , 1860. JoBN RoMiLLY, Master of the Rolls, or X. Y., Vice-Chancellor. This summons was taken out by A. and B.,of Lincoln's-inn, in the county of Middlesex, solicitors for To [179] The following Note to be added to the original summons where proceedings originate in chambers, and when the time is altered by indorsement, the indorsement to be referred to as below .— Note. — If you do not attend, either in person or by your solicitor, at the time and place above mentioned, [or at the place above mentioned, at the time mentioned in the indorsement hereon,] such or(ier will be made, and pro- ceedings taken, as the Judge may think just and expedient. [Ord. of 16th October, 1852.] N.B. — The next is the Form of Summons to be obtained under Sections 45 and i1 of the Slat. 16 f 16 Vict. v. 86. [179] ScHED. K.— Summonses. 403 2. — Form of Administration Summons. [Referred to in the 3rd Rule of Order XXXV.] In Chancery. In the matter of the Estate of John Thomas, late of the parish of A., in the county of B., deceased. Between Joseph Wilson Plaintiff, and William Jackson Defendant. Upon the application of Joseph Wilson, of Russell-square, in the county of Middlesex, Esq., who claims to he a creditor upon the estate of the above- named John Thomas, let William Jackson, the executor of the said John Thomas, attend at my chambers [in the Rolls -yard, Chancery-lane, Middle- sex], for at No. — , §quare, Lincoln's-inn, Middlesex], on the day of , at of the clock in the noon, and show cause, if he can, why an order for the administration of the personal [or real and personal] estate of the said John Thomas, by the High Court of Chancery, should not be granted. Dated the day of 1860. John Romilly, Master of the Bolls, or [180] X. Y., Vice-chancellor. This summons was taken out by A. and B., of Lincoln's-inn, in the county of Middlesex, solicitors for the above-named Joseph Wilson. The following Note to be added to the original summons; and when the time is altered by indorsement, the indorsement to be referred to as below. Note. — If you do not attend, either in person or by your solicitor, at the time and place above mentioned, [or at the place above mentioned, at the time mentioned iq the indorsement hereon,] such order will be made, and proceed- ings taken, as the Judge may think just and expedient. [Ord. of 7th August, 1852, 1st Set.] 3. — Form of Summons by Chief Clerk. [Referred to in the 4th Rule of Order XXXV.] In Chancery. In the matter of the Estate of John Thomas, late of , in the county of , deceased, or Between Joseph Wilson Plaintiff, and William Jackson Defendant The defendant William Jackson {or A. B., of, &c.] is hereby summoned to attend at the chambers of the Master of the Rolls [or Vice-Chancellor ], in the Rolls-yard, Chancery-lane [or No. — , Square, Lincoln's- inn, Middlesex], on the day of , at of the clock ip the noon, to be examined [or to he examined as a wit- ness] on the part of the for the purpose of the proceedings directed DD 2 404 ScHED. K.— Summonses. [181] by the Master of the Rolls [or the said Vice-Chancellor] to be taken be- fore me. Dated this day of 1860. A. B. Chief Clerk. This summons was taken out by A. and B., of Lincoln's inn, in the county of Middlesex, solicitors for [Ord. of 16th October, 1852.] Schedule (L.) [Referred to in the 37th Rule of Order XXXV.] Form of Advertisement. Pursuant to a decree [or order] of the High Court of Chancery, made in [the matter of the estate of , and in] a cause against the creditors of [or the persons claiming debts or liabilities affecting the estate of, or the persons claiming to be next of kin to, or the heir of, as the case may ic], late of in the county of who died in or about the month of are by their solicitors, on or before the day of to come in and prove their debts [or claims] at the chambers of the Master of the Rolls, in the Rolls-yard, Chancery-lane [or of the Vice Chancellor , No. — , Square, Lincoln's-inn], Mid- dlesex, or in default thereof they will be peremptorily excluded from the benefit of the said decree [or order]. [ Monday] the day of at o'clock in the noon, at the said chambers, is appointed for hearing and adjudi- cating upon the claims. Dated this day of 1860. A. B. [Ord. of 16th October, 1852.] Chief Clerk. Schedule (M.) [182] [Referred to in the 48th Rule of Order XXXV.] Form of Certificate of Chief Clerk. In the matter of , [or between .] [Stale title.'] In pursuance of the directions given to me by the Master of the Rolls [or the Vice-Chancellor ], I hereby certify, that the result of the accounts and inquiries which have been taken and made, in pursuance of the decree [or order] in this cause, dated the day of , is as follows : — 1. The defendants, the executors of , the testator, have received personal estate to the amount of £ , and they have paid, or are entitled to be allowed on account thereof, sums to the amount of £ , leaving a balance due from [or to] them of £ , on that account. The particulars of the above receipts and payments appear in the account inarked verified by the affidavit of , filed on the day of , and which account is to be filed with this certi- ficate ; except that, in addition to the sums appearing on such account to have been received, the said defendants are charged with the following sums [state the same here or in a soheduk], and except that I have disallowed the items of disbursement in the said account numbered and • [183] ScHED. M. — Form of Chief Clerk's Certificate. 405 [^Or, in cases where a transcript has been made,'] The defendants have brought in an account verified by the affidavit of , filed on the day of , and which account is marked , and is to be filed with this certificate. The account has been altered, and the account marked , and which is also to be filed with this certificate, is a transcript of the account as altered and passed. 2. The debts of the testator which have been allowed are set forth in the Schedule hereto, and with the interest thereon and costs men- tioned in the Schedule, are due to the persons therein named, and amount altogether to S. The funeral expenses of the testator amount to the sum of £ , which I have allowed the said executors in the said account of personal estate. 4. The legacies given by the testator are set forth in the Sche- dule hereto, and with the iq(erest therein mentioned remain due to the persons therein named, and amount altogether to £ 5. The outstanding personal estate of the testator consists of the particulars set forth in the Schedule hereto. 6. The real estate to which the testator was entitled consists of the particulars set forth in the Schedule hereto. 7. The defendants have received rents and profits of the testator's real estate, &c. [in a form similar to that prodded with respect to the personal estate^ 8. The incumbrances affecting the said testator's real estate are specified in the Schedule hereto. 9. The real estates of the testator directed to be sold have been sold, and the purchase monies, amounting altogether to £ , have been paid into Court. N.B. — The above numbers are to correspond with the numbers in the decree. After each statement the evidence produced is to be stated as follows : — The evidence produced on this account [or inquiry] consists of the probate of the testator's will, the affidavit of A. B. filed , and paragraph No. of the affidavit of C. D. filed [Ord. of 16th October, 1852.] [184] Schedule (N.) [Referred to in Order XLI., § IV.] Forms connected with Juries. 1. — Form of Record/or Trial o/a Question or Questions of Fact. In Chancery. Title of Cause or Matter. By an Order made in this cause {or matter], dated, &c., the Court hath directed that the following question [or questions] of fact to be tried by a jury before the Court itself [or before the Court itself without a jury] (that is to say) : Whether, &c. N.B. — If more questions than one, number them consecutively 1, 2, 3, ^c. 2. — Form of Record for Trial as to Amount of Damages. In Chancery. Title of Cause or Matter. Whereas, by an order made in this cause [or matter], dated, &c., the Court hath awarded damages to in respect of the matters in the said order mentioned, and hath directed that the amount of such damages shall be assessed by a jury before the Court itself [or before the Court itself without a jury] : 406 SCHED. N. — FOEMS CONNECTED WITH JcRIES. [183] The question U, what amount of damages the plaintiff hath sustained by reason df the matters in the said order mentioned. 3. — Form of Order to summon a Common Jury. In Chancery. Title of Cause or Matter. Upon the humble petition of lor upoti motion this day made, &c.] It is ordered that the Sheriff of Middlesex do summon a sufficient num- ber of common jurors for the trial of a certain question [or certain questions] of fact [or as to the amount of damages sustained by ] to be tried before the Right Honorable the Lord High Chancellor in his Court at Lincoln's Inn Hall, in the county of Middlesex [^or other the Judge h^are whom and the Court in which the trial is to take place'\, on the day of , 186 , at ten of the clock in the forenoon precisely. And it is ordered that the said sheriff do attend with the said jurors accordingly. 4. — Form of Order for a Special Jurt/. Title of Cause or Matter. Upon the humble petition, &c. It is ordered that at the expense of the plaintiff [or defendant, or petitioner, or respondent] in the first instance, forty-eight special jurors be nominated by ballot out of the special jurors' list for the county of , of persons qualified to serve on special juries for the said county, and be reduced before the Under Sheriff of the said county ; and that twelve of them be struck out by each party, and that the names of the remaining twenty-four be placed on a panel for the trial of a certain question l_or certain questions] of fact [^or as to the amount of damages sustained by ] in this cause lor matter], and that the said sheriff of the said county do cause the said twenty-four jurors to be summoned to attend at the said trial, on, &c., [as in preceding form], and that the said sheriff do also summon twelve common jurors to attend at the said trial on the day and at the time and place aforesaid. And it is ordered that the said sheriff and the said jurors do attend accordingly. N.B. — If special jury, obtained on the application of either party without the special direction tf the Courts leave oiet the words " in the first in- stance." [186] 5. — Form of Order /or a View. In Chancery. Title of Canse or Matter. Upon application, &c. It is ordered that the Sheriff of do cause the place in question to be shown to six or more of the jury [or, if a special jury, sayj six or more of the first twelve jurors], summoned and im- panelled to try the question [or questions] between the said parties, or as many more of such jurors as he shall think fit, in order that they may take a view of the place in question, on the day of next, at of the clock in the forenoon of the same day ; and that the said jurors do meet at the house of I. P., known by the name or sign of at in the county [or city] of and then and there be refreshed at the equal charge of the said parties ; and that S. P. on the part of (he plaintiff [or petitioner], and S. D. on the part of the defendant [or respon^ dent] do show the place ia question to those jurors ; but that no evidence be then and there given to the ^aid j urors. And it is ordered that the Sheriff of do return the names of such of the said jurors as shall view the [187] SoHED. N. — Forms connected with Jubibs. 407 Baid place to the Registrar in the Court of Chancery, for the purpose of their beiog^ called as jurymen upon the trial of the said question [or questions]. And it is further ordered that the plaintiff [or defendant, or petitioner, or re- spondent], his solicitor or agent, do deposit in the hands of the Under Sheriff of the said county, the sum of £ for payment of the expenses of the same view, pursuant to the General Order of Court in that behalf made; and that if such sum shall be more than sufficient to pay the expenses of the said view, the surplus be forthwith returned to the plaintiff's [or defendant's, or petitioner's, or respondent's] solicitor; and if Such sum shall not be suffi- cient to pay such expenses, the deficieincy be paid forthwith by such stilicitor to the said Under Sheriff; the plaintiff [or defendant, or petitioner, or respon- dent] by his solicitor consenting that in case no view shall be had, or if a view shall be had by any of the said jurors, whether they shall happen to be six or any particular number of the jurors who shall be mutually consented to, yet the said trial shall proceed, and no objection shall be made on account thereof. 6. — Form of Notice to Admit and Inspect. In Chancery. Title of Cause or Matter. Take notice, that the plaintiff [or defendant, or petitioner, or respondent] proposes to adduce in evidence on the trial in this cause [or matter] the several documents hereunder specified, and that the same may be inspected by tlie defendant [or plaintiff, or respondent, or petitioner], his solicitor or agent, at on , between the hours of , and the defendant [or plaintiff, or respondent, or petitioner] is hereby required within forty-eight hours from the last-mentioned hour, to admit that such of the said documents as are specified to be originals, were respectively written, signed or executed, as they purport respectively to have been ; that such as are specified as copies are true copies ; and that such documents as are stated to have been served, sent or delivered, were so served, sent or delivered respectively, saving all just exceptions to the admissibility of all such documents as evidence on such triaL Dated, &c. To E. F., solicitor [or agent] G. H., solicitot [or agent] (defendant, \ /plaintiff, 'X plaintiff, I , \ defendant, I respondent, or r ""^ J petitioner, or j petitioner. ^ / l.respondent ) Here describe the documents : the description raiy be as follows : — ngSl ORIGINALS. Description of the Documents. Date. Deed of Covenant between A. B. & C. D., 1st part, and E. F. of the 2nd part Indenture of Lease from A. B. to C. D . Indenture of Release between A. B. & C. D. 1st part, &c Letter from Defendant to Plaintiff Policy of Insurance on Goods Bill of Exchange for jglOO at 3 months, drawn by A. B. on and accepted by C. D., indorsed by E. F. and G. H. . 1st January, 1848. 1st February, 184.8. 2nd February, 1848. 1st Mar^ch, 1848. 3rd December, 1848. 1st May, 1840. 408 SCHED. N. — FOHMS CONNECTED WITH J0BIE8. [188] Description of Documents. Dates. Original or Duplicate served, sent or delivered, wlien, liow and by whom. Register of baptism of A. B. in the parish of X. . Letter from Plaintiff to De- fendant .... Notice to produce Papers Letters Patent of King Chas. Second in the Rolls Chapel Ist Jan., 1808 1st Feb., 18i8 let Mar., 1848 1st Jan., 1680 Sent by General Post, 2nd Feb., 1848. Served 2nd Mar., 1848, on Defendant's Attor- ney by E. F. of 7. — Form of Oath to he administered to the Jurors. You shall well and truly try the question [or questions] between the parties, and a true verdict give according to the evidence. So help you God. [189] 8. — Form of Oath to be administered to a Witness, The evidence you shall give to the Court and jury [or the Court, as the case may ie] touching the matters in question, shall be the truth, the whole truth, and nothing but the truth. So help you God. 9. — Form in case the Witness has a conscientious Objection to take an Oath. The ufitness is to repeat, after the Registrar, as follows, verbatim : I ( A. B.) do solemnly, sincerely and truly affirm and declare, that the taking of any oath is, according to my religious belief, unlawful. And I do also solemnly and truly affirm and declare that the evidence I shall give to the Court and jury [or the Court, as the case may be,'] shall be the truth, the whole truth, and nothing but the truth. 10. — Form of Oath to be taken by the Usher of the Court on Jury retiring to consider their Verdict. You shall well and truly keep this jury in some private and convenient place, without meat, drink or fire (candle light excepted). You shall not suffer any person to speak to them, neither shall you speak to ibem yourself, without leave of the Court, except to ask them if they are agreed on their verdict. 11. — Form of Writ of Inquiry before the Sheriff, Victoria, by the grace of God of the United Kingdom of Great Brit£iin and Ireland Queen, Defender of the Faith, To the Sheriff of greeting. Whereas, by an order of his Honor the Master of the Rolls, made in this cause lor matter], dated &c., his Honor awarded damages to be recovered by A. B. against the said C. D., in respect of, &c. [take words from the Order^. But because it is unknown to our said Court what damages the said A. B. badi sustained by means of the premises aforesaid, therefore we command you, that [190] ScHED. N. — Forms connected with Juries^ 409 by the oath of twelve good and lawful men of your bailiwick [if by a special jury, add here the words " qualified to serve as special jurors, such jury to be struck and reduced according to law"], you diligently inquire what damages the said A. B. hath sustained by reason of the premises aforesaid ; and that you send to us, in our Court of Chancery aforesaid, on the day of , the inquisition which you shall thereupon take under your seal, and the seals of those by whose oath you shall take that inquisition, together with this writ. Witness ourself at Westminster, the day of , in the year of our reign. 12. — Form of Writ of Inquiry to a County Palatine. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, To our Chancellor of our county palatine of Lancaster, or to his deputy there, greeting. Whereas [as in preceding farm^ But because it is unknown to our said Court what damages the said A. B. hath sustained by means of the premises aforesaid, therefore we command you, that by our writ, under the seal of our said county palatine, to be duly made and directed to the Sheriff of the same county, you command the said Sheriff, that by the oath of twelve good and lawful men of his bailiwick [if hy a special jury, add the words as in preceding form], he diligently inquire what damages the said A. B. hath sustained by means of the premises aforesaid ; and that you send to us in our said Court of Chancery, on the day of , the inquisition which the said Sheriff shall thereupon take under his seal, and the seals of those by whose oath he shall take that inquisition, together with this writ. Witness ourself at Westminster, the day of , in the year of our reign. 13. — Form of Inquisition or» Writ of Inquiry. To wit, i * An inquisition taken at the house of , called or known by the name or sign of the , in the in the said county of , on the day of , in the year of the reign of our Sovereign Lady Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, and in the year of our Lord 1 8 , before Esquire, Sheriff of the county aforesaid, by virtue of a writ of our Sovereign Lady the Queen, to the said Sheriff directed, and to this inquisition annexed, to inquire of certain matters in the said writ specified by the oaths of twelve honest and lawful men of the said county, who, upon their oaths, say f],2t in the said writ named hath sustained damages to the sura of £ , by the means in the said writ mentioned. In witness whereof, as well I the said Sheriff, as the jurors aforesaid, have hereunto set our hands and seals the day and year and place above mentioned. 410 SCHED. N. — FOEMS CONNECTED WITH JuBlES. [191] 14. — Form of Writ i" 'he said county by ten of the clock in the forenoon of that day, to diligently inquire, and on their oath to assess the damages which the said A. B. hath sustained by means of the premises afore- said ; and that yon, the said Sheriff, have on that day, before the said Justices of Assize, this writ. We likewise command our said Justices that they certify the inquisition before them taken to us, in our Court of Chancery, at West- minster, en the day of next, together with the names of thos6 by whose oath such inquisition shall be taken, and that they also have then there this writ WHnessourself at Westminster, the day of , in the year of our reigns Campbell, C. John Rohilly, M. R. J. L. Knight Bruce, L.J. G. J. Turner, L. J. RicHD. T. Kindersley, v. C. John Stuart, V. C. W. P. Wood, V. C. Hilary Term, 1860. [1^5] 411 REGULATIONS SPECIAL EXAMINEKS' FEES AND CHARGES, SOUCITOBS* FEES AND CHARGES, COURT FEES AND CHARGES FOR COPIES (a), I. EEGtILATION AS TO SpECIAX ExAMINEBS' FeeS AND CHASGES. An Examiner specially appointed by the Court shall, for the perfoimance of his duty, be entitled to receive the sums of money set forth in the First Schedule hereto. (8th May, 1845; Ord. 110, and see Stat. 15 & 16 Vict. c. 86, s. 31.) The fee of a special examiuer is five guineas a day, and five shilling for his clerk, and no further fee is allowed for reading papers or other extra labour, Patrne y. Little, 21 Beav. 65. Commissioner for examination of witnesses had a lien on the depositions, Peters v. Beer, 14 Beav. 101. n. Eeguxations as to Solicitohs' Feijs and Charges. (See 2nd Rule of Order XXXVin. Lower Scale of Solicitors^ Fees. 1. Solicitors shall be entitled to charge and be allowed the fees set forth in the column headed " Lower Scale " in the Second Schedule hereto, in the several cases followitig, unless the Court shall make order to the coatfaiy ; that is to say, 1st. In all suits by creditors, legatees, (whether specific, pecuniary, or residuary,) devisees (whether in trust or other- wise), heirs at law or next of kin, in which the personal or real, or personal and real estate, for or against or in respect of whir, where the higher scale is applicable, two guineas, as in his discretion he may 6 8 6 8 think fit. And where the preparation of the case or to to matter, to lay it before the Judge in chambers ona220 330 summons, shall have required and received from the solicitor such extraordinary skill and labour as mate- rially to conduce to the satisfactory and speedy disposal of the business, and therefore shall appear to thB Judge to deserve higher remuneration than the or- dinary fees, the Judge may allow to the solicitor, by a memorandum in writing expressly made for that purpose, and signed by the Judge, specifying dis- tinctly the grounds of such allowance, such further fee, not exceeding ten guineas, as in his discretion he may think fit, instead of the above further fee of one guinea or two guineas. (2 Feb. 1855.) For perusing the affidavits of claimants coming in under the 3Sth Rule of the 35th of the Consolidated General Orders, and attending in chambers at the time ap- pointed by the advertisement, where the number of claims do not exceed five . . . . . .0 10 6 110 Where the number exceeds five, for every additional number, not exceeding five, an additional sum of .0106 110 For attending for every order drawn up by the Chief Clerk, and at the Registrar's Office to get same en- tered 068 068 For attending to enter claim under the 38th Rule of the 3Sth of the Conscdidated General Orders, and to file affidavit 068 068 [_208J For the plaintiff or party having the conduct of the order, attending the Registrar with brief and papers to bespeak minutes or order, not being an order of course ; . . . . , . . .068 068 For ditto, for preparing list of evidence read (but only when required by the Registrar, and certified by him) 6 8 6 8 Or according to length, at per folio .... 010 Attending to settle die draft or minutes of any decree or order . .068 13 4 E E 2 8 8 8 8 6 6 6 6 1 — 1 00 QO 00 00 4 8 13 6 4 8 420 2nd Sched. — Solicitors' Fees and Chabges. [208] Lower Scale. Higher Scale. £ s. d. £ s. d. Or, at the Taxing Master's discretion, not to exceed 110 3 3 Attending to pass any decree or order not being an order of course, including the entry thereof . . .068 13 4 N.B.— The Registrar will leave the order for entry. In case the Registrar shall certify that a special allowance ought to be made in respect of any unusual difficulty in settling and passing an order, the Taxing Master is to consider the same, and make such allowance to all or any of the parties as to him shall seem just. For attending to procure certificate of pleadings . .068 068 For attending to procure Accountant-General's certifi- cate of fund in court 068 068 P"or attending to obtain consent of next friend to sue in his name 068 13 4 For attending to give consent to take answer without oath, to hear cause as short, and for other necessary or proper consents of a like nature . . . .06 For attending to procure such consents . . .06 For procuring certificate of counsel to mark cause short, and attending Registrar thereon . . . .06 For attendance to mark Master or conveyancing counsel 6 For attendances in consultation or in conference with counsel 13 For attending to set down cause or appeal for hearing . 6 For attending to leave papers with Judge's secretary prior to hearing 068 068 For attending court on appointment of a guardian ad litem 13 4 13 4 For attending to procure transcripts of Accountant- General's books, when necessary . . . .068 068 The fees for consent are not to apply where the same solicitor is for both parties. Writs. For every writ of subpoena duces tecum . . .068 068 For a writ or writs of subpcena other than subpoena duces tecum, if the number of names therein shall not exceed three 068 068 If exceeding three names, for every additional number not exceeding three 068 068 For instructions for every writ of fieri facias de bonis fffeclesiasticis, or writ of sequestrari facias (18th July, 1857; Orders) 068 068 For preparing every writ of fieri facias de bonis eccle- siasticis, or writ of sequestrari facias (18th July, 1857 i Order 5) 13 4 13 4 For attending to lodge any writ of fieri facias de bonis ecclesiasticis or writ of sequestrari facias at the Bishop's registry, and for attending to instruct the officer charged with the execution of such writ (18th July, 1857; Order 5) 068 068 For preparing every other writ without order . .068 06 8 [210] {"or every writ under order, except special injunction . 13 4 13 4 For special injunction, including ingrossment and docket 10 100 Or per folio 014 014 [210] 2hd Sched.— Solicitors' Fees and Charges. 421 Lower Scale. Higher Scale. £ s. d. £ s. d. For inroUing a decree or order 0100 100 Or per folio 014 014 Notices and Services. For service of a notice of motion, exclusive of copy .026 026 For notice to a solicitor of appearance, answer, demurrer, plea, amendment and replication . . . .026 026 For notice of claim, under 36th Order of 16th October, 1852 026 026 For notice of evidence to be read in Judge's chambers .026 026 For notice of filing affidavit or set of affidavits filed, or which ought properly to have been filed together, to be read in Court 026 026 For notice of appointment for«ettling and passing mi- nutes, decrees or orders, before the Registrar . .026 026 For copy and service of a warrant on a solicitor . .026 026 For service of a Judge's summons, exclusive of the copy 026 026 For service of a petition 026 026 For service of an order, exclusive of the copy . .026 026 _ _ For other necessary or proper notice . . . .026 026 L^ 1-1 J For services on a party or witness such reasonable charges and expenses as may be properly incurred, according to distance or by the employment of an agent. The fees for notices and aervices are not to apply where the same solicitor is for both parties, unless it be necessary for the pur- pose of making affidavit of service. There is to be one notice only of settling minutes, and one notice of passing decree or order, which if necessary are to be con- tinued by adjournment, of which all parties are to take notice. Oaths and Exhibits. To the Commissioner for oath in London, according to statute 016 016 In the country 026 026 To the solicitor for preparing each exhibit in town and country 010 010 The Commissioner for marking each exhibit. . .010 010 Term Fee. For a term fee in all causes, for every term in which a proceeding by the party shall take place . . .0100 10 And for letters per term 050 050 In country agency causes the Airther fee for letters of . 6 8 And if it be shown to the satisfaction of the Taxing Master that the agency correspondence has been special and extensive, he is to be at liberty to make a special allowance in respect thereof In addition to the term fee the necessary expense of the postage, carriage and transmission of documents is to be allowed. The like term fee and for letters in matters as in causes. []212J Where no proceeding is taken which carries a term fee, a cheirge for letters may be allowed, if the circum- stances shall require it 422 2nd Sched. — Solicitoes' Fees and Chakges. [212] For any work or labour properly performed and not herein provided for, such allowances are to be made as heretofore. By the Order 14 of March 6, 1860, " Solicitors are to be entitled to charge the fees mentioned in the Schedule hereto." The Schedule is as follows : — Lower Scale. Higher Scale. For instructions for brief in a suit by bill or cause £ t. d. £ <■ d. coming on for hearing to be charged, on serviee of notice of naotion for a decree, or on service of sub- poena to hear judgment . . . . . .110 220 The solicitor of the party answering interrogatories for perurang the interrogatories 068 0134 If exceeding forty folios, at per folio .... 004 The solicitor of the par^ filing an answer, for his attendances on the Record and Writ Clerks, with and for the written and printed copies of the answer, and for certifying . 6 8 13 4 For examining and correcting the proof, at per folio .002 002 For attending the printer widi the answer to be printed 6 8 6 8 For revising the print before swearing, or filing, at per folio 002 002 The Thied Schedxtle. Other Fees to be allowed to Solicitoks. (26th Feb. 1807— 30th Jan. 1857.) For perusing abstract, every tbrc«e brief sheets . .068 For perusing the draft of every deed, for each skin .050 For examining the ingrossment with the draft, for every three skins 10 For making all attested copieE, examining and attesting same, per folio ..006 The Foukth Schedtji-e. Fees to be coiiLECTEo bt means of Stamps. (30th Jan. 1857.) In the Judges' Chambers. For every original summons for the purpose of proceed- ings originating in chambers . . . . .050 050 For every duplicate thereof 010 050 For every other summons 010 030 For every order drawn up by the Chief Clerk, made upon applications for time to plead, answer or demur, for leave to amend bills or claims, or fur enlarging publication, or the period for closing evidence .010 05 For every other order drawn up by the Chief Clerk . 10 10 For every advertisement 10 For every certificate or report 10 10 For every certificate upon the passing of a receiver's or consignee's account, a further £ee in respect of each 1002. of the net balance received by such receiver or «[213] [213] 4XH ScHBD.^^FbES eOiJ-ECTED BY STAMyl. 423 Lower Scale. Higher Scale, consignee, after deducting all necessary outgoings for £ s. d. £ s. d. rents, tases, rates, repairs and management of the property . . . 10 10 For every oath, affirmation, declaration, or attestation upon honour . . , . .'. . .016 016 In the Masters' Offices. For every warrant or summons 3 3 For every certificate or report 10 10 For taking the acknowledgment of every married woman 16 8 16 8 For attending any Court per day by the clerk . . 14 14 For every certificate upon^the passing of a receiver's or consignee's account, a further fee in respect of each 100?. of the net balance received bysuch receiver or consignee, after deducting all necessary outgoings for rents, taxes, rates, repairs and management of the property \ . 10 10 In the Registrars' Office. For every decree or decretal order made by the Court on a special case, or on the original hearing of a cause or claim, or on motion for a decree, and on further directions, or further consideration not made on sum- Hfioas adjfturned ^rom chambers . . . .10 3 r2141 ^"'^ every order on petition or motion of course . .010 050 '- -^ Fpr every other ord,er 10 10 For every office copy of a decree or order, and for every offi^ copy of a petition of appeal or rehearing made under the 12th Rule of the 36th of the Consolidated General Ordej:s . 10 10 ^ote.—lhe above fees are to include the chitrge for entry. In the Examiners' Office, For every witness sworn and examined, including oath, for each hour . . OSO 050 For every witness sworn and examined away from the office (besides coach hire and reasonable expenses) .17 17 If more than fiye miles from the Examiner's office, for the first day 2 15 2 15 For every other day . . . . . ..220 220 Upon every applicatioQ to inspect depositions, including the inspection ., . . . • ..030 030 Upon every applicatipn to search hook for causes, in- cluding spared ..010 010 Upon every .application fo search book for depositions, including search 010 010 In the Record and Writ Clerks' Office, and Report Office. For making all office and other copies, per folio . .004 004 For filing every bill or information . . . . 10 10 For filing every claim OSO 050 For filing every special case 10 10 Upon entering every appearance, if not more than threp defendants 070 070 If more than three and not exceeding siji defendants . 14 14 And the same proportion for every like number of de- fendants. [215] 424 4th ScHED.— Fees COLLECTED BY Stamps. [215] Lower Scale, Higher Scale. £, I. d. . £ s. d. For every certificate 040 040 For marking every copy of a bill, claim or summons to be served 010 050 For every writ of summons, distringas, subpcena or attachment 050 050 For every writ of fieri facias de bonis ecclesiasticis or sequestrari facias (18th July, 1867 ! Order 5) . ,10 10 For sealing every other writ 10 10 For every oath, affirmation, declaration or attestation upon honour, except for the purpose of receipt of dividends iirom the Accountant-General . . .016 016 For examining every copy or part of a copy of a set of interrogatories, and marking same as an office copy .010 050 Upon every application for a search for a record, and for searching 020 020 Upon every application for a search in the Report Office. (26th Oct. 1852, Sched. 1, Ft. 2) . . . .006 006 Upon every application to inspect a record, and for inspecting the same 050 050 Upon every application to inspect exhibits, if occupied not more than one hour 050 050 If more than one horn:, per diem 10 10 Upon every application for the officer's attendance in Courts of Law, per diem, and for his attendance, besides reasonable expenses of the officer . . .10 10 Upon every application for the officer's attendance in a Court of Equity, and for his attendance, per diem .0100 10 Upon every application to swear an invalid, including the attendance, besides necessary expenses . . 10 10 r216'] For examining and signing inrolments of decrees and orders 300 300 For filing caveat against claim to revive, or against decree or order or inrolment 5 5 For filing supplemental statement or statement for revivor 050 10 For filing every affidavit, including schedules and ex- hibits 026 026 For every application to inspect an affidavit . .006 006 For amending every record of a bill, claim or special case 10 10 In the Taxing Matter's Office. For every warrant or summons, but not more than one warrant or summons is to be issued on one bill, or set of bills, unless the Taxing Master shall think it necessary to issue a new warrant or summons . .010 030 On signing every report and certificate . . . 10 10 Upon the taxation of every bill of costs, as taxed, where the amount shall not exceed 202. . . . . 10 10 Upon every additional 201. or fractional part thereof, n further fee of . 10 10 For every oath, affirmation or attestation upon honour .016 016 Where no certificate of the taxation of a bill of costs Is required, the ad valorem duty hereby directed to be levied in respect of the taxation of costs sbaU nevertheless be due, and shall he payable on the amount of the bill as taxed, or on the amount of such part thereof as may have been taxed ; and the solicitor shall in such case cause the proper stamp (the amount thereof [217] 4th Sched. — Fees collected by Stamps. 425 d. £ s. d. 1 10 10 1 ^ -^ ^ ^ ^ » ™ . Lower Scale. Higher Scale, to be flxett by the Taxing Master) to be impressed on or annexed to the bill of costs. (4th Dec. 1852 ; Ord. 1.) But where the Taxing Master sends a bill or part of a bill to the officer of any other court, with a request to such officer to assist him in the taxation thereof, and the officer of such other court takes his fee thereon, the ad valorem duty hereby directed to be levied in respect of the taxation of costs shall not be paid on that part of the bill so taxed and charged for by the officer of such other court. (29th Nov. 1853.) In the Lord Chancellor's Principal Secretary's Office. On all attendable petitions, appeals, rehearings and £ s. letters missive . . OS On all non-attendable petitions 5 On a matter of course order, on a petition of right . 10 On an order for a commission^n a petition of right . 1 In the Office of the Secretary at the Rolls. On every petition set down for hearing, to include the fee on hearing ... . ... 5 On the petition for every order of course . . .01 On the admission of every solicitor .... In the Office of the Accountant- General. For preparing power of attorney with affidavit, exclusive of stamp duty 030 080 Upon every application for a search . . . .050 050 For transcript of accounts, each opening consisting of debtor and creditor sides of the account (30th Jan., 1857, and 21st June, 1854., Ord. 2.) . . .020 020 In Be Braiihwaii's Trust, 1 Sm. & G., App. 15, the Accountant- General's brokerage on compensation money was ordered to be paid by the railway company, so as not to be deducted out of the money paid into Court. 1 5 1 17 [218] The Fifth Schedule. Amoonts of Stamps for collecting Fees. (7th Sept., 1852. 3rd Dec, 1852. 26th July, 1855.) One penny, threepence, fourpence, sixpence, eightpence, one shilling, one shilling and fourpence, one shilling and sixpence, one shilling and eight- pence, two shillings, two shillings and sixpence, two shillings and eightpence, three shillings, three shillings and sixpence, four shillings, five shillings, seven shillings, eight shillings, ten shillings, fourteen shillings, one pound, two pounds, tluree pounds, four pounds, five pounds, ten pounds. Campbell, C. John Romilly, M. R. J. L. Knight Bkuce, L. J. G. J. Turner, L. J. RiCHD. T. KiNDERSLEY, V. C. John Stuart, V. C. W. P. Wood, V. C. Hilary Term, 1860. 426 [219] APPENDIX. Obdebs op thk 5th of May, 1837, as to Selection op Coubt [a). Referred to at p. [2] 3. Bills, Sj-e. to be marked. I. That, from and after the 20th day of May now.inatant, every ori- ginal information or bill of oompJaint filed in the High Court of Chancery, shall ( at the option of the party, informant or complainant, by or on whose behalf the information oi' bill shall be filed), be distinctly marked at or near the top or upper part thereof, either with the words " Lord Chancel- lor," or with the words " Master of the RpUs :" Andthat the six clefk and clerk in oourt, to whom the filing of the information or bill belongs, shall, in the books and indexes in which the same shall be entered, add to the entry thereof such distinguishing words or mark as may make it ap- pear from such entry whether the information or bill is marked with the ■words " Lord Chancellor," or with the words " Master of the Rolls:" And that from and after the gaid 2Qth day of May, thp six plerks a^d clerks in oourt are not to file any original information or hill of com- plaint which shall not be marked iu the manner hereinbefore directed. The following cases under these orders may be referred to: Willcivs v. Stmien^ 10 gim, 617 : Senior v. Wilks, 2 Keen, 210 ; Robins v. Mills, 1 Beav. 227 ! Cane v. Martin, 2 Keen, 607 ; Aburrow t. Aburrow, 10 Sim. 602 ; Wright V. Irving, 10 Sim. 625 ; Starten v. Bartholomew, 5 Beav. 372 ; Robinson v. Mil- ner, 5 Beav. 49. Certificate of Pleadings to he marked. II. That, in every cause in which the original information or bill shall be marked with the words " Lord Chancellor," or with the words " Master of the Rolls," the six clerk to whom it belongs to give or sign the certifi- cate that the cause is ready for Jiearing sbal]^ upon being applied to f9r such certificate, see that the same certificate is marked, or cause the same to be marked, yith the -words "Lord Chancellor," or with the words " Master oif thf Rolls," in conformity with the like ■w0J"4b niarked on the original information or bill. Causes i'n Court, but not yet set down,, [220] III. That, in every cause now in Court, but which has not yet been set down ibr hearing, the clerk in Court who, on the behalf of the in- formant, or of the plaintiff or defendant, shall, at any time after the 20th day of May instant, apply to the six clerk to set down the cause for hear- ings or for the certificate that the cause is ready for hearing, shall state or certify to such six elwk whether any orders or order disposing of any pleas or plea, demurrers or demurrep, or any special orders or order upon merits sho^vn by answer or by affidavit, have or has been made in the cause, or (in case no s,uch order ^s aforessaid has been made) whether the party on whose behalf ti>e application is made desires the cause to be heard before (a) Printed from Sanders, p. 834—841. . [820] Appendix. <^ the Lore} Chaneellor or the M(^$ter of the Rolls ; ap4 in case the clerk in Court so applying shall certify thftt any such oidi«r as aforesaid has been made by the Lord Chancellor or Vice-Chancellor, and not by the Master of the Bolls, or that such orders as aforesaid haT« been made by both the Lord Chancellor or Vioe-Cbancellor s^nd the Master of the Rolls, biit thajt the Ia$t of such orders has beep rpade Iny the Lord Chancellor or Vioer Chainoellor, or (in case no such order has been ffi»d? in thje pause) that the party desires the cause to be heard before the Lord Chancellor, the six clerk giving the certificate shall see that the same certificate is marked, or shaU cause the same to be marked, with the words " Lord Chancellor ;" and the six clerk and clerk in Court shall cause the entries of the cause in their books and iudeses to be marked with such distinguishing words or marks as shall signify that the cause is to be heard before the Lord Chan- cellor; and ill case the clerk in Court so applying as aforesaid shall certify that any such order as afore^id has been made by the Master of the Rolls, and not by the Lord Chancellor or Vices-Chancellor, or that ?uoh orders as aforesaid have been made by both the Lord Chancellor or Vioe-Chaur cellor and the Master of the RoUs, but that the last of such, orders has been made by the Master of the Rolls, or (in case no such ojder as aforer said has been made in the cause) that the party desires the cause to be tieard before the Master of the RoUs, the si-x clerk giving the certificate shall see that the same certificate is marked, or shall cause the same to be marked, with the words " Master of the Rolls ;" and the six clerk and clerk in Court shall cause the entries of the cause in their hooks and in- dexes to be marked with such distinguishing woi'ds or marks as shall signify that the cause is to be beard before the Master of the Rolls. Setting down Causes. lY. That the registrars of the Coart, and the secretaries of the Lord Chancellor and of the Master of the Rolls, are not at any time after the said 20th day of May instant to set down to be heard any cause in which the certificate of the cause being ready for hearing shall not he marked in the manner directed by the 2nd and 3i'd Orders and are not, after the date of these Orders, to set down to be heard before the Master of the Rolls any cause, further directions, or exceptions, which is or are now set down to be heard before the Lord Chancellor, and are not, without special order of the lord Chancellor, to set down to be heard before the Lord Chancellor arty cause, furlJier directions, or exceptions, which is or are now set down to be heard before the Meister of the Rolls. [221] Petitions to set down Pleas and Demurrers. V. That in ewry petition praying that a day maybe appointed for arguing a plea or demurrer put in to any information or bill filed on or after tfe said 20th day of May, it shall be stated whether the information or bill to which such plea or demurrer is put in is marked with the words "Lard Chancellor," or with the words "Master of the Rolls." Causes, Sfc, not y^t set down, which are to he set dawn before the Lord Chaneellor. VI. That, from and after the said 30th day of May instant, the eeyeral causes and matters hereinafter mentioned, not already set down, shall be 428 Appendix. [221] set down to be heard before the Lord Chancellor, and shall not without special order of the Lord Chancellor be set down to be heard before the Master of the RoUs. 1. Every plea or demurrer, and all exceptions in any cause in which the information or bill shall be marked with the words " Lord Chancellor," or in which the entries of the cause in the six clerks' books shall be so marked as to signify that the same is to be heard before the Lord Chancellor. 2. Every cause in which the certificate of the cause being ready for liearing shall be marked with the words " Lord Chancellor." 3. Every cause requiring to be heard for further directions, or on the equity reserved, and in which the Master's report has been or shall be made, or a trial at law has been or shall be had, or the certificate of a court of common law has been or shall be obtained in pursuance of a de- cree or order pronounced by the Lord Chancellor or Vice- Chancellor. 4. Every exception or set of exceptions taken to any report made by a Master in ordinary, in pursuance of a decree, or an order of reference, (not being an order obtained as of course,) made by the Lord Chancellor or the Vice-Chancellor. Petitions and MotioTis under liberty to apply, which are to be set down before Lord Cfiancellor or Vice- Chancellor. VII. That, from and after the said 20th day of May instant, every petition presented or motion made under or pursuant to the liberty to apply contained in any decree or decretal order of the Lord Chancellor or Vice-Chancellor, shall, as to petitions, be addressed to and set down to be heard before the Lord Chancellor, and shall as to motions be made before the Lord Chancellor or Vice-Chancellor, and that no such petition or motion shall, without special order of the Lord Chancellor, be addressed io or made before the Master of the Rolls. [222] Causes, Sfc, so set down before Lord Chancellor, to be sulgect to same Rules as Causes set down before Lord ChanceUor have here- tofore been. VIII. That all such pleas, demurrers, causes, further directions, ex- ceptions and petitions, to be so set down to be heard before the Lord Chancellor, as hereinbefore is directed, shall be heard and determined in the same manner, and be subject to the same rules, as pleas, demurrers, causes, further directions, exceptions, and petitions, set down before the Lord Chancellor, have heretofore been heard and determined. Interlocutory Petitions and Motions, which are to be set down before Lord Chancellor or Vice-Chancellor. IX. That, from and after the said 20th day of May instant, all inter- locutory applications by way of motion or petition, (other than applica- tions for orders of course,) shall, in the several cases hereinafter mentioned, be made to the Lord Chancellor or to the Vice-Chancellor, and shall not without special order of the Lord Chancellor be made to the Master of the Rolls ; viz., in the several cases following : — 1. Where the original information or bill is marked with the words « Lord ChanceUor." [222] Appendix. 429 2. Where the cause has not heen set down for hearing, and any order disposing of any plea or demurrer or any special order upon merits, shown by answer or by affidavit, has been made in the cause by the Lord Chancellor, or Vice- Chancellor, and no such order has been made by the Master of the Rolls. 3. Where the cause has not been set down for hearing, f^nd orders dis- posing of pleas or demurrers or special orders upon merits, shown by answer or afiBdavit, have been made by both the Lord Chancellor or Vice- Chancellor and the Master of the Rolls, but the last of such orders was made by the Lord Chancellor or Vice-Chancellor. 4. Where the cause has been set down for hearing before the Lord Chancellor, either for original hearing or for further directions, or on the equity reserved. 6. Where the decree or lagt decretal order was made by the Lord Chan- cellor or Vice-Chancellor, except in cases where the decree or last decretal order was made by the Lord Chancellor on a re-hearing of a decree or decretal order made by the Master of the Rolls. Causes, Sfc, not yet set down, which are to he set down before Master qftJie Rolls. X. That from and after the said 20th day of May instant, the several canses and matters hereinafter mentioned, not already set down, shall be set down to be heard before the Master of the Rolls, and shall not other- wise than for the purpose of re-hearing be set down to be heard before the Lord Chancellor. 1. Every plea or demurrer, and all exceptions in any cause in which the information or bill shall be marked with the words " Master of the Rolls ;" or in which the entries of the cause in the six clerks' books shall be so marked as to signify that the same is to be heard before the Master of the RoUs. 2. Every cause in which the certificate of the same being ready for hearing shall be marked with the words " Master of the Rolls." 3. Every cause requiring to be heard for further directions or on the equity reserved, and in which the Master's report has been or shall be made, or a trial at law has been or shall be had, or the certificate of a court of common law has been or shall be obtained, in pursuance of a decree or order pronounced by the Master of the Rolls. 4. Every exception, or set of exceptions, taken to any report made by a Master in ordinary, pursuant to a decree or an order of reference fnot being an order obtained as of course) made by the Master of the Rolls. [223] Petitions and Motions, under liberty to apply, which are to be set dmon before Master of the Rolls. XL That, from and after the said 20th day of May instant, every petition presented, or motion made, under or pursuant to the liberty to apply contained in any decree or decretal order of the Master of the Rolls, shall be addressed to and set down to be heard, or shall be made, before the Master of the Rolls : And that, except for the purpose of re- hearing an order of the Master of the Rolls, no such petition or motion shall be addressed to or made before the Lord Chancellor. 430 Appendix. [223] Interlocutory Petitions and Motions which are to he set down before Master of the Rolls. XII. That, from and after the said 20th day of May instant, all inter- locutory applications, by way of motion or petition, (other than applica- tions for orders of course,) shall, in the several cases hereinafter men- tioned, be nrade to the Master of the Rolls, and shall not, except for the purpose of re-heariiig an order of the Master of the Rolls, be made to the Lord Chancellor ; tii., in the several eases following: — 1. Where the original information or bill is marked with the words "Master of the Rolls." 2. Where the cause has not been set down for hearing, and any order disposing of any plea or demnrrer, or any special onler upon merits shown by answer or affidavit, has been made in the cause by the Master of the Rolls, and no such order has been made by the Lord Chancellor or Vice-Chancellor. 3. Where the cause has not been set down for hearing, and orders disposing of pleas or demurrers, or special order upon merits shown by answer or affidavit, have been made by both the Lord Chancellor orVice- Chancellor and the Master of the Rolls, but the last of such orders has been made by the Master of the Rolls. 4. Where the cause has been set down for hearing before the Master of the Rolls, either for original hearing or for further directions, or on the equity reserved, and is not now set down to be so heard before the Lord Chancellor. 5. Where the decree or last decretal order was made by the Master of the Rolls or by the Lord Chancellor, on the re-hearing of a decree or decretal order of the Master of the Rolls. [224] Orders as to Interlocutory Applications not to extend to Orders of course. XIII. That the above orders as to interlocutory applications shall not extend to any applications for orders of course, nor to any petitions presented, or notices of motion given, before the 18th day of May instant. Orders of course to he made as heretofore ; but proviso, as to showing cause upon Orders Nisi obtained as «! n^ «•? i .» g'CS 'S SS5 Is 1 09 1 il- so 1^ ls 3 CO e i-s e -H U3 0-3 o oo « (V= 1-1 fi " i-oi i-C cq CO )-• «■§ •« P > CO Is . JONES. List of Debts. Amauntfl No. of entry of Claim. Names of Creditors. Addresses. allowed for Ptincipid, Interest, and Coats. Total Amounts due. £ '. d. £ «' d. 2 James Allen . Boston, in the County of Lincoln, Surgeon 100 Interest . 4 Costs 2 2 106 2 1 Charles Cohen 98, Piccadilly, in the County of Middle- sex, Gentleman, , Executor of John Thomas 67 Interest from Stb October, 1850, at £5 per Cent 4 2 Costs 2 2 73 4 5 John Dennis 16, Fleet Street, and Owen London, Grocers, Thomas. and Go-partners . Interest from 16th October, 1852, at £5 Tpet Centi Another debt . Interest . Costs 100 5 62 2 10 2 4 6 171 14 6 Total £ - Note. — The names are to be inserted alphabetically. Where the debt does not carry interest, but interest is allowed under the 10th General Order of 16th October, 1852(a), it is to be stated 9s in the first example above. If the debt carries interest, the rate and time from which it is computed is to be stated, as in the second example. As in all cases the interest is computed to the date of the certificate this need not be stated. When there are both specialty and simple contract debts, separate lists are to he prepared. (a) Consolidated General Orders, XLII., 9, ante. Regulations of 8th August, 1857— Schedule. 457 No, 10. — List of Legacies remaining Unpaid, JAMES V. JONES. List of Legacies. Names of Legatees. Descriptions. Amounts of Principal . and i Interest. Total Amounts due. £ s. d. 107 5 6 54 8 4 214 11 James Olrrer Mary Russell . Jane, the Wife of John Wil- liams Son of Testator, an Infant Interest of 20, Cheaipside, Lon don, Widow Interest from Is' January, 1850, the death of Testator . of Lincoln, Esq. . Paid in part . Interest £ s. d. 100 7 5 6 50 4 8 4 250 SO 200 14 11 Totals Note. — Where the interest is to be computed from the end of one year after testator's death, it is to he stated as in the first example above. If otherwise, the time from whiclv it is payable is to be stated. As in all cases interest is computed to the date of the certificate, this need not be stated. No. 11. — TAst of Annaities and Arrears due. List of Annuities. Names of Description of Annuitants Amounts of Amounts of Annuitants. and nature of Annuities. Annuities. Arrears due. £ s. d. £ o. d. Mary Jones Spinster, Daughter of Testator, during her Life 50 25 Maria Williams Widow of Testator, during her Life and Widowhood Arrears due from 7th August, 1862, down to which it has been paid Totals . £ 200 300 Note. — The arrears to be explained as in the second example, if due from any other period than that of testator's death. 458 Eegulations of 8th August, 1857 — Schedule. No. 12. — List of Apportionments among Creditors or Legatees. Apportionment among Creditors (or Legatees). Names of Creditors (or Legatees), Addresses. Amounts before certified to be due, and sub- sequent Interest, Totala due. Amounts Appor- tioned, John Jones . Thomas Young and Robert Young 20, Cheapside, London, Wool- len-draper-. Subsequent In- terest Braintree, in the County of Essex, Executors of William Young, deceased . Subsequent In- terest £ £. d. 200 17 10 £ .. d. 217 10 217 10 Total £ £ „. d. 57 4 8 57 4 8 200 17 10 Note. — The names of the creditors or legatees to be stated in same order as in the certificate from which they are taken. Regulations of 8th August, 1857 — Schedule. 459 No. 13. — Receiver's Recognizance. of of and of bu . Before our sovereign lady the Queen in her High Court of Chan- 5 o -2 eery personally appearing, do acknowledge themselves and each of jTag them doth acknowledge himself to owe to the Right Honorable .i'g'B the Master of the Rolls, and the senior Vice- o " o Chancellor of the said Court, the sura of of good and ^ = . lawful money of Great Britain, to be paid to the said S'S and or one of them, or the executors or administrators 5 g of them or one of them, and unless they do pay the same they the ^ g said are willing and do grant and each of .*!" them Is willing and doth grant, for himself, his heirs, executors and ^ administrators, that the said sum of shall be levied, ,j recovered, and received of and from them and each of them, and of ^ and from all and singular the manors, messuages, lands, tenements ^ ^ and hereditaments, goods and chattels of them and each of them o g wheresoever the same shall or may be found. Witness our said •2 s sovereign lady Victoria by the grace of God of the United Kingdom • S g, of Great Britain and Ireland Queen, Defender of the Faith and so 0, i i forth, at Westminster, the day of in £ , " year of her reign, and in the year of our Lord S| 185 . Whereas by an order of the High Court of Chancery made in a cause wherein are plaintiffs and defendants, and bearing date the day of , It was ordered that a proper person should he appointed to receive (a) [^or that upon the above-bounden first giving security^ he should be appointed receiver of'\ the rents and profits of the real estate, and to collect and get in the outstanding personal estate of in the said order named. And whereas the Judge to whose Court this cause is attached hath \_approiied of the said as a proper person to be such receiver, and hath^ approved of the above-bounden and as sureties for the said and hath also approved of the above-written recognizance with the underwritten condition as a proper security to be entered into by the said and pursuant to the said Order and the General Orders of the said Court in that behalf ; and in testimony of such approbation the Chief Clerk of the said Judge hath signed an allowance in the margin hereof. Now THE CONDITION of the above-written recognizance is such that if the said do and shall duly account for all and every the sum and sums of money which he shall so receive on account of the rents and profits of the real estates and in respect of the personal estate of the said at such periods as the said Judge shall appoint, and do and shall duly pay the balances which shall from time to time be certified to be due from him as the said Court or Judge hath directed, or shall hereafter direct, then the above recognizance shall be void and of none effect, otherwise the same is to be and remain in full force and virtue. Taken and acknowledged by the above-named, &c. (a) To accord with the order. ■iecr Regulations op 8th August, 1857— Schedule. i t r 2'« S A a o U a 1 .a a g; pC 8 "tS OCM o .S ■« ^ O Si u -^S Sl« 111 If 65 e« C p^ a "S ■a «e ill 11 SnJ S w rt ^ *■ 3 •e ?* ■o . fe-s u s •i lis ■° «i 1 < e»J ■fca 1. •a e Hi's. § B CQ es U "^ '-'.S 1 S' ^ o ««J ^ g a, so i s s «> ^ '§'-^ t ■SIS' a !i •e < Hi < CQ 1 13 *Q s 09 pj ^ 1 ^ r-t 3 d iz; < 1 11^ 1 1 1= . ■s.i ■ III 1 1 1 O a O B O o u K O IQ W V .1 -■si 5 ill if ca 1 3 o s.s .1 1 ■ • , (- i S i a o < O Hi 1 1 1 ■< a 01 U sit 1 s 1 H ' ■9 ^ a o § 1-S ii !:'g sp« m o HSEO ^°l pM M 1^1 i-t « ca Eegulatioxs of 8th AuGUfiT, 1857— Schedule. 461 o H iz; & o u u ■< 5a < en El ^; < iz; o CO m o ut «« i i = 1 • is £^ o 2 o_ : u a > 3 3rt O Cm 8 ° S u •■S m §3 -"t sj SisS' ^■«1 o S-s s > is S.^S *-• *M O O c a u a a 3 3 S 3 3 E a •« s a <■«! «whom copies are directed to be handed Attending settling draft certificate . . . .068 Transcribing certificate . . . . . .028 Paid stamp 100 Paid per centage on £ Attending appointment to sign certificate . . .068 Attending to bespeak and for office copy . . .068 Paid for office copy 2 8 Drawing this bill of costs and copy fo. 8 . . .054 Copies for parties to whom copies are directed to be handed Attending to procure balance to pay into Court . .068 068 Attending Accountant-General for directions to pay balance into the bank and attending to pay same and to file cashier's receipt— as allowed by Order of 30th Jan. 1857 Paid for office copy certificate of payment . . .018 018 Letters, &c 5 10 6 8 6 8 2 6 8 4 2 2 8 13 4 2 8 1 6 8 6 8 2 8 5 4 No. 16. — Plaintiff's or Defendant's Costs of passing Receiver's Account. Term 185 . Attending summons when account passed and costs settled Attending settling certificate 6 8 13 4 Drawing this bill of costs and copy fo. 4 . . .028 028 Copies for parties to whom copies are directed to be handed ... Attending appointment to sign certificate . . .068 068 Letters, &c. 5 5 No. 17. — Affidavit verifying Receiver's Account. In Chancery. [Title.] I of the receiver appointed in this cause, make oath and say as follows : 1. I say that the account contained fi-om page to page both in- clusive in each of the two several books marked with the several letters A. and B. produced and shown to me at the time of swearing this my affidavit, and purporting to be my account of the rents and prqfits qf the real estate and of the 464 Begulations of 8th August, 1857 — Schedule. outstanding personal estate of (a) the testator lor intestate] in this cause from fhe day of 18 to the day of 18 , both Inclusive, doth contain a true account of all and every sum and sums of money received by me, or by any other person or per- sons by my order, or to my knowledge or helief, for my use, on account or in respect of the said rents and, profits accrued due on or before the said ^y of (i), or on account or in respect of the said personal estate, other than and except what is included as received in my former account [or accounts] sworn to by me. 2. And I furflier say that the several sums of money mentioned in the said account hereby verified to have l)een paid and allowed have been actually and truly so paid and allowed for tlie several purposes in the said account men- tioned. 3. And I further say that the said account is just and true in all and every the items and particulars therein contained, according to the best of my know- ledge and belief. No. 18. — Affidavit verifying Abstract, In Chancery. [Title.] I A. B.of &c. solicitor for in this cause [or matter] make oath and say as follows : 1. I say that I have carefully examined and compared the abstract written on sheets of paper new produced and shown to me at the time of swearing this affidavit and mar^ced with the letter A. vrith the several deeds and documents thereby puT;ported to be abstracted, and that such abstract is a true and correct abstract of the said deeds and documents so far as such deeds and documents relate to the hereditaments referred to in an order made in this cause [or matter] dated the day of No. 19. — Affidavit verifying Engrossments of Deeds. In Chancery. [TlTlE.] I A. B. of &c. make oath and say as follows: 1. I say that I have carefully examined and compared the parchment writing now produced and shown to me at the time of swearing this affidavit and marked with the letter A. with the draft or paper writing now produced and shown to me at the time of swearing this affidavit and marked with the letter B. being the draft of the conveyance [or settlement &c.] settled at the chambns of the Judge to whose Court this cause [or matter] is attached pursuant to the order made in this cause [or matter] dated . And I say that the said parchment writing is a true and correct transcript and engrossment of the said draft. (a) This is to accord with the order appointing the Receiver. (&) The day to which the account is made up. ( 465 ) REGULATIONS of the registraes of the court op chancery, kespectina the transaction of business in their office, issued 15th march, 1860. Setting down Causes, Pleas, Demurrers, and other Matters ♦ FOR Hearing. Generally. 1. Pleas, demurrers, exceptions for insufficiency or scandal, motions for a decree, original causes, special cases, causes for further consideration, and appeals and rehearings, are to be set down by the Registrar's clerk at the order of course seat on the same day the order, petition, Record and Writ Clerks' certificate, request, or other document required for that purpose, is produced to or left with him ; and he is to retain any such petition, certificate, or request for filing. Pleas and Demvrrers. Cons. Ord. XXI., rule 9; Cons. Ord. XIV., rules 14, 15, 17. 2. Pleas and demun-ers filed in causes attached to the Rolls Court are to be set down upon production of an order drawn up by the Secretary to the Master of the Rolls. 3. Pleas and demurrers filed in causes attached to the Courts of the Vice- Chancellors, are to be set down upon an order to be drawn up by the Registrar on petition of course to the Lord Chancellor, and dated the day the petition is left. The petition, (which does not require any fiat from the Lord Chancellor, nor any stamp,) must state the day when the plea or demurrer was filed, and whether it be to the whole or part of the bill, and be subscribed by the solicitor in the form following, that is to say: — A. B., Plaintiff's [or Defendant's] Solicitor. 1st March, 1860. 4. Pleas and demurrers are to be set down within the following times (exclusive of vacations) after the same are filed, that is to say : — Demurrers to whole bill 12 days. Demurrers to part of bill, and pleas to whole or part of bill 3 weeks. Exceptions for Insufficiency or Scandal, Cons. Ord. XVI., rule 10. » 5. Exceptions to answers for insufficiency, or to any pleading or other matter for scandal, are to be set down upon production of the Record and Writ Clerk's certificate of the filing thereof, endorsed by the solicitor of the party filing the same with a request for that purpose, in the form fol- lowing, that is to say : — c. H H 466 Regulations op Registkaks. " I request that the exceptions referred to in this certificate may be set dovm for hearing." A. B., Plaintiff's [or Defendant's] Solicitor. 1st March, 1860. Motions for Decree. Cods. Ord. XXXIII., rnle 9 ; Cons. Ord. XXXVII., rule 10. 6. Motions for a decree are to be set down within seven days after the notice is served, upon production of the Record and Writ Ckrk's cer- tificate that the cause is in a fit state to enable the plaintiff to move for a decree, endorsed by the plaintiflF's solicitor with a memorandum of the date when the notice was served, and the date when it will expire, and if there be any infant defendant stating that a guardian ad litem has been appointed; -or if there be not, stating that there is not, any infant defendant. After the seven days have expired the motion i? not to be set down without the consent in writing of the defendant's solicitors. The memorandum may be in the form following, that is to say : — Notice served day of expires day of (i. e. one lunar month after service). " A Guardian ad litem has been appointed to the Infant Defendant A. B.," or " There is not any Infant Defendant." C. D., Plaintiff's Solicitor. 1st March, 1860. Original Causes. Cons. Ord. VI., rules 3 and 3. 7. Causes are to be set down for original hearing upon production of the Record and Writ Clerk's certificate that the cause is in a fit state to be set down for hearing, endorsed by the solicitor of the party setting down the same with a eiemorandam stating, if there be any infant de- fendant, that a guardian ad litem has been appointed ; or if there be not, stating that there is not, any infant defendant. The memorandum may be in the form following, that is to say : — "A Guardian ad litem has been appointed to the Infant Defendant A. B.," or " There is not any Infant Defendant." A. B., Plaintiff's Solicitor. ; 1st March, 1860. Special Cases. Act 13 & 14 Vict. c. 35, ss. 12 and 13. 8 . If all parties are not sui juris, special cases are to be set down npon production of an order for leave to set dtown the same;— or if all pai-ties are sui juris, upon production of the Recdfd and Writ Clerk's certificate, endorsed by the solicitor with a memorandum to that effect, in the form following : — " All parties are sui juris." A. B., Plaintiff's Solicitor. 1st March, 1860. Eegulatioxs of Registraks. 467 Causes for further Consideration. Cons. Ord. XXI., rule 10. 9. Causes for further consideratiou are to be set down, after the expira- tion of eight days and within fourteen days from the filing of the Chief Clerk's certificate, upon production of the written request of the plaintiff or party having the conduct of the cause ; and after the expiration of the fourteen days, upon production of the written request of the solicitor for the plaintiff or any other party desiring to have the same set down ; and in either case upon production of the decree or order adjourning further consideration or an office copy thereof, and an office copy of the Chief Clerk's certificate, or a memorandum of the date when such certificate was filed, endorsed on the request by the Clerk of Reports. The request may be in the form following, that is to say : — " In Chancery. "A. K. B. " I request that this cause, the further consideration whereof was ad- journed by order of the day of may be set down for further Gonsldei^tiun before his Honor the Vice-Chancellor Kindersley. " C. D., " Plaintiff's [or Defendant's] Solicitor." 1st MarcX 1860. Markwff Causes and Motions for Decree "Short." Cqbs, Ord. XXI., rule 10. 10. Causes for origiBal hearing, or further consideration, Qiid motions for a decree, may be marked " Short," on productiua of the certificate of the plaintiff's counsel that the cause or motion is fit to be so heard, with- out the consent of the solicitors for any of the defendants ; but will not be so marked in the case of causes for original hearing for any day before the day when the subpoena, to hear judginent is returnable ; or in the case of causes for further consideration until after the expiration of ten days; or in the case of motions for decree for any day before the day for which the notice of motion is given ; unless in either case by consent of all parties. Appeal Motions. 11. Appeal motions are to be set down at least two clear days before the day for which the notice is given, upon production of the order appealed from, or an office copy thereof, and a copy of the notice of motion, which is to be filed. Rehearings and Appeals. Cobs. Ord. XXXI., rules 4 and 5. 12. Petitions for a rehearii^g before either of the Vice-Chancellors or before the Lord Chancellor or Lords Justices, and petitions of appeal are to be set down upon an order to be drawn up by the Registrar pursuant to the fiat of the Lord Chancellor inscribed on the petition, and upon payment of the usual deposit. Petitions for a rehearing before the Master of the Rolls are to be set down upon an order drawn up by his secretary, and upon payment of the usual deposits All petitions of appeal or re- hearing are to be marked in the cause-book as not to be in the paper for hearing before the expiration of six clear days from the day of setting down. H H 2 468 Kegulations of Registraks. Adjournment. Causes Standing Over. 13. Upon production to the Registrar of a request or consent signed by the solicitors of all parties, at the latest in the forenoon of the day before the day the cause is to be in the paper, it will be marked as standing over to a day to be named. If all parties do not consent, application should be made to the Court for that purpose at the latest in the forenoon of the day before the day the cause is to be in the paper ; otherwise, if the cause be placed in the paper and called on, it may be struck out, and in that case it must be again set down at the bottom of the list. Petitions Standing Over. 14. Where an unopposed petition is directed to stand over without £xing a day for it to be again put into the paper, the Registrar in attend- ance in Court, upon the written request of the solicitor, will direct the same to be restored to the paper for the following petition-day. DoCnMBNTS TO BE LEFT ON BESPEAKING DECREES OR OrDERS. Generalb/. 15. Any documents or evidence required to be produced to the Court should be left with the Registrar on bespeaking the decree or order. Whenever any Fund in Court is to be dealt with. 16. The Accountant-General's certificate, and, if the funds arerestrained by any order, the restraining order, or an office copy thereof. Where Payment out of Court is ordered to legal personal Representatives, 17. The probate, or letters of administration, stamped for a sufficient amount. Legacy or Succession Duty. 18. Orders for payment of specified sums to the Receiver-General of Inland Revenue, for legacy and succession duty, will not be drawn up until the calculation has been examined at the Legacy and Succession Duty Department, and a certificate obtained of the proper amount pay- able for duty. Reference to the Record. Cons. Ord. I., rule 48. 19. If the decree or order is made in a cause commenced subsequently to the 1st day of Michaelmas Term, 1852, the reference to the record is to be either inscribed or stamped upon some document in the cause, or upon the brief. If the decree or order is made in a cause commenced prior to the 1st of Michaelmas Term, 1832, a memorandum or certificate is to be endorsed and signed by the solicitor on the brief, in the form following, that is to say, " I certify that this cause was commenced previously to the 1st day of Michaelmas Term, 1832." Lower Scale of Fees. Cons. Ord. XXXIX., rules 2 and 3— Regulation 3— Art. 3. 20. If the fees of Court are payable according to the lower scale (ex- Eegulations of Registkaes. 469 cept on orders on petition or snramons, other than summons originating proceedings in chambers), a copy of the certificate for paying toe lower scale of Court fees, duly marked by the Clerk of Records and Writs. In all Cases (^ Non-appearance. 21. If any party or person served does not appear at the hearing, an affidavit of service on such party or person. Decbees. 22. Counsel's brief, and a print of the bill, with a reference to the re- cord marked thereon, and the correct title of the cause, with the names of the guardians of any infant defendants inserted. In addition to the pryited copy of the bill to be left for the use of the Judge previously to the hearing of all causes and motions for a decree, a printed copy of the bill is by direction of the Lord Chancellor to be left with the Usher of the Judge for the use of the Registrar in attendance in Court. In case a connect printed copy of the bill shall have been so left it will not be necessary to leave another printed copy of the bill on be- speaking the decree. If any Admissions are to be entered as read. Cons. Ord. I., rule 44. 23. The original paper of admissions, signed by the parties or their solicitors, to be endoreed by the Registrar. The admissions when so endorsed are to be filed in the Report Office before the decree is left to be passed, and a memorandum thereof is to be made on the decree by the Clerk of Reports. If a memorandum has been entered of Service of a Copy of the BUI on any Defendant. 24. The order to enter the memorandum of service with the Record and Writ Clerk's certificate of the entry thereof, and of no appearance by the defendant so served. If a Traversing Note has been filed and the DefendaTit does not appear at the Hearing. 25. The Record and Writ Clerk's certificate that the note has been filed, an affidavit of service of a copy of the note, and of subpoena to hear judgment. If the Bill has been taken pro Coitfesso. 26. The order for the Record and Writ Clerk to attend at the hearing with the record of the bill, and any previous orders as to the contempt. If any Affidavits have been read at the Hearing. 27. The office copies of such affidavits, and any exhibits therein re- ferred to. If any Documents have, been proved at the Hearing, Vivd Voce or by Affidavit. 28. The order authorizing them to be so proved, with the office copies of the affidavits (if any), and the documents proved. 470 Regulations of Registeaks. Orders on further Consideration. 20. Counsel's brief, the original decree or the last order on further consideration, and any subsequent orders to revive or carry on the pro- ceedings, and the oflSce copy of the Chief Clerk's certificate, and office copies of any affidavits, and any exhibits or other evidence used at the hearing. Ifihe Order deals with any Purchase Mmiey. 30. A consent brief for the purchaser, or an affidavit of notice to him of the intended application of the purchase money, and that the convey- ance has been executed and delivered to liim. Orderb on Motions. 31. Counsel's brief, With his endorsement of the order made; the notice of motion, if any, anniezed, and office copies of any affidavits, and any exhibits or other evidence used at the hearing of the motion. Orders on Petition. 33. The original petition and counsel's brief, with his endorsement of the order made, and any decree, order, or the office copy of any certificate on vrhich the petition is founded, and office copies of any affidavits, and any exhibits or other evidence used at the hearing. Under the Settled Estates Act. 33. In addition to the documents mentioned in Regulation 32, tbe news- papers containing the advertisement of the petition, and any interlocutory orders that may have been made relating thereto. Orders under Acts authmizing Public Works. Cons. Ord. XXXIV., rale 3. 34. Where the order deals with any money paid into Court by the pro- moters of any public undertaking to the credit of such onderteking not standing to any separate account, the Accountant-General's certificate of the payment into Court of the sum sought to be dealt with, and also the Accountant-General's certificate of the fund in Court to the credit of the undertaking ; atid when the order directs the carrying over of the money to a separate account, or paymen-t of the same out of Court to any person entitled thereto, an aiSdavit of the petitioner verifying the petition, and negativing any adverse right or claim, in the terms of the Cons. Order XXXIV., rule 3, and any other evidence used at the hearing. Orders for Winding-up Comparaes. 35. In addition to the documen-ts mentioned in Regulation 32, the affi- davit of the service of the petition, and the London Chizette and news- papers containing the advertisement thereof. Obdbrs vacating Receiters' Recognizances. 36. An office copy of the Receiver's recognizance from the office of the Clerk of Enrolments. Fees and Stamps. 37. Where a fee of less than 3?. is payable on any decree or order, such fee will be payable by affixed stamps, and the stamp ^xed to the decree or order is to be of an amount corresponding as nearly as practicable with Regulations of Registrars. 471 the amonnt of tbe stamp which it requires, so that no greater number of adhesive sts^mps may be affixed thereto than is actually necessary ; and solicitors ai-e requested not to cancel any adhesive stamps affixed to de- crees and orders drawn up by the Regisb-ars, as such stan^ps will be can- celled by the Registrar on passing the decree or oi-der. Deckees or Orders engrossed on Impressed Stamps to be cancelled if not dtjlt paid for. 38. When a decree or order engrossed on an impressed stamp is not paid for within one calendair month from tbe day on which such decree or order is engi'ossed, it will be cancelled, and the stamp recovered as spoiled ; and in case the party shall afterwards desire to have the decree or order engrossed, he will be. required to pay the stationer's charges for the same. Note. — Solicitors and their Clerks, on bespeaking or applying respecting Orders made in any ex parte matter, are requested to enquire for the same by the title thereof as it appeared in the Court Paper. Decrees and Orders drawn up by the Registrars will, when entered, be delivered to the Solicitor having the carriage thereof, with his papers, fay the Assistant Clerks to the Registrars. Registrars' Certificates of Sale, Transfer, or Delivery. 39. Every certificate for sale, transfer, or delivery of any stocks, funds, shares, or securities, before being submitted to the Registrar for signature, is to be examined by one of the Registrar's clerks at the order of oouise seat, who is to mark the same as examined, and sign his initials at the foot in the left hand margin thereof, thus : — Examined A. B. Certificates under the Cons. Ord. I., rule 8. 40. The Registrars previously to issuing certificates for the transfer or delivery of stocks, funds, shares, or securities, pursuant to the Cons. Ord. I., rule 8, will require the following evidence to be produced ; and the affidavits of identity may be in tbe forms given in Cases I., II. and III., according to the circumstances : — Case I. If the order direct such transfer or delivery to the legal personal repre- sentatives of a deceased person named in the order, but without naming such representatives in the order, and any of such representatives be dead, leaving sui-vivors, or a survivor, the probate or letters of administration of the deceased person named in the order, a certificate of the burial of the deceased representative, or an official extract from the register of deaths, of his death, and an affidavit of his identity. Case II. If the order direct such transfer or delivery to any persons named in the order as the legal personal representatives of a deceased person, and any of such representatives be dead, leaving survivors, or a survivor, a. certificate of the burial of such deceased representative, or an official ex- tract from file register of deaths, of his death, and an affidavit of his identity. Case III. If tbe order direct such transfer or delivery to any person named in the 472 Regulations of Rkgistraks. order, or his legal personal representatives, and such person be dead, the probate, or letters of administration, a certificate of the burial, of such de- ceased person, or an official extract from the register of deaths, of his death, and an affidavit of his identity. And if any of the legal personal representatives be also dead, leaving survivors or a survivor, the further evidence mentioned in CcLse I. Form of Affidavit in Case I. I (the deponent), of &c., make oath and say that I was well acquainted with A. B. deceased, and that he was the person to whom the probate of the will [or letters of administration of the effects] of C. D. deceased, the person named in the order dated the day of , was lor were] granted by Her Majesty's Court of Probate [or as the case may be], on the day of , jointly with E. F. and G. H., which probate [or letters of administration], marked X. is [or are] now produced and shown to me ; and that the said A. B. is also the person named in the certificate of burial [or official extract from the Register of Deaths], hereunto annexed. Form of Affidavit in Case II. I ( the deponent), of &c., make oath and say that I was well acquainted with A. B. deceased, the person named in the order dated the day of , as one of the legal personal representatives of C. D. deceased, and that the said A. B. is also the person named in the certificate of burial [or official extract from the Register of Deaths], hereunto annexed. Form of Affidavit in Case III. I (the deponent), of &c., make oath and say that I was well acquainted with A. B. deceased, the person named in the order dated, &c., and late of, &c., [fol- lowing description in probate or administration,'] and that probate of the will [or letters of administration of the effects] of the said A. B. was [or were] granted by Her Majesty's Court of Probate [or as the case may be], on the day of , to C. D. and E. F., which probate [or letters of administration], marked X. is [or are] now produced and shown to me ; and that the said A. B. is also the person named in the certificate of burial [or official extract fi:om the Register of Deaths], hereunto annexed. Form of Certificate of Transfer to the Representative of a Person named in an Order but since deceased. To the Accountant-General of the 1 oi ^ /n-^i Court of Chancery. | **<"■« ^'"'^ Pursuant to an order dated &c., the 1st of the Consolidated Orders, rule 8, an affidavit of &c., filed the day of the certificate of the burial of A. B. in the said Order named, and the probate of the will [or letters of administration of the effects] of the said A. B., granted on the day of , to E. F. and G. H., by the Court of Probate [or as the case may be] £ Bank £3 per Cent Annuities standing. Sec, are to be transferred to the said E. F. and G. H. Cecil Monro, Senior Registrar. Registrar's Office, 15th March, 1860. Note. — If the person named in the order be dead, and any of his legal per- sonal representatives be also dead, leaving survivors or a survivor, the. Forms in Cases III. and I. should be combined and adapted. An affidavit made by or before an executor or administrator will not be re- • ceived. ( 473 ) TEUSTEE ACT, 1850. 13 & 14 Vict. c. 60. An Act to consolidate and amend the Laws relating to the Conveyance and Transfer of Real and Personal Property vested in Mortgagees and Trustees. [5th August, 1850.] Whbbkas an Act was passed in the first year of the reign of his late Majesty King William the Fourth, intituled " An Act for amending the Laws respecting Conveyances and Transfers of Estates, and Funds vested in Trustees and Mortgagees, and for enabling Courts of Equity to give effect to their Decrees and Orders in certain Cases :" and whereas an Act was passed in the fifth year of the reign of his late Majesty King William the Fourth, intituled " An Act for the Amendment of the Law relative to the Escheat and Forfeiture of Heal and Personal Property holden in Trust:" and whereas an Act was passed in the second year of the reign of her present Majesty, intituled " An Act to remove Doubts respecting Conveyances of Estates vested in Heirs and Devisees of Mortgagees :" and whereas it is expedient that the provisions of the said Acts should be consolidated and enlarged : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the- same, that all proceedings under the said Acts, or any of them, commenced before the passing of this Act, may be proceeded with under the said recited Acts, or according to the provisions of this Act, as shall be thought expedient, and subject as aforesaid, thnt the said recited Acts shall be and the same are.hereby repealed : Provided always, that the several Acts repealed by the said recited Acts shall not be revived, and that such repeal shall only be on and after this Act coming into operation. See, as to applications at chambers under this Act, Ord. 35, r. I. See, as to forms of petitions under this Act, Tripp's Forms, 91 j Orders under this Act, ibid. 211 ; Seton on Decrees, 404. See, as to the right of cestui que trust to the appointment of new trustees, Lewin on Trusts, ch. 25. By 23 & 24 Vict, c 145, s. 27, when trustees appointed by the Court of Chancery or otherwise die, &c., powers are given to the persons nominated by the instrument creating the trust, or in default of such person to surviving or retiring trustees, Sic. to appoint new trustees, to whom the trust property is to be conveyed and assigned. " Every trustee appointed by the Court of Chan- cery, either before or after the passing of this Act, shall have the same powers, authorities, discretions, and shall in all respects act as if he had been origi- nally nominated a trustee by the deed or will or other instrument creating the trust." II. And whereas it is expedient to define the meaning in which certain words are hereafter used : it is declared that the several words hereinafter named are herein used and applied in the manner following respectively ; (that is to say,) The word "lands" shall extend to and include manors, messuages, tenements and hereditaments, corporeal and incorporeal, of every tenure or description, whatever may be the estate or interest therein : 47-t Trustee Acts. The word "stock" shall mean any fund, annuity, or security trans- ferable in books kept by any company or society established or to be established, or transferable by deed alone, or by deed accom- panied by other formalities, and any share or interest therein : The word "seised" shall be applicable to any vested estate for life or of a greater description, and shall extend to estates at law and in equity, in possession or in futurity, in any lands : The word "possessed" shall be applicable to any vested estate less than a life estate, at law or in equity, in possession or in expect- ancy in any lands : The words " contingent right," as applied to lands, shall mean a contingent or executory interest, a possibility coupled with an in- terest, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, also a right of entry, whether immediate or future, and whether vested or contin- gent : The words "convey" and "conveyance," applied to any person, eball mean the es:ecnttion by such peraon of every necessary or soitable assurance for conveying or disposing to another lands whereof such person is seised or entitled to a contingent right, either for the whole estate of the person conveying or disposing, or for any less estate, tog^ither with the performance of all formali- ties required by law to the validity of such conveyance, including the acts to be performed by married women and tenants in tail in accordance with the provisions of an Act passed in the fourth year of the reign of his late Majesty King William the Fourth, intituled " An Act for the Abolition of Fines and Recoveries, and the Substitution of more simple Modes of Assurance," and including also surrenders and either acts which a tenant of cus- tomary or copyhold lands can himself perform preparatory to or in aid of a complete assurance of such customary or copyhold lands : The words "assign" and "assignment" shall mean the execution and performance by a person of every necessary or suitable deed or act for as^gning, surrendering, or otherwise transferring lands of which such person is possessed, either for the whole estate of the person so possessed or for any less estate : The word "transfer" shall mean the execution and performance of every deed and act by which a person entitled to slock can transfer such stock from himself to another : The words " Lord Chancellor" shall mean as well the Lord Chan- cellor of Great Britain as any lord keeper or lords commissioners of the great seal tor the time being : The words "Lord Chancellor of Ireland" shall mean as well the Lord Chancellor of Ireland as any keeper or lords commissioners of the great seal of Ireland for the time being : The word " ti"ust" shall not mean the duties incident to an estate conveyed by way of mortgage; but, with this exception, the words "trust" and "iirustee" shall extend to and include iih- plied and constructive trusts, and shall extend to and include cases where the trustee has some beneficial estate or interest in die sub- ject of the trust, and shall extend to and include the duties incident to the office of personal representative of a deceased person : Trustee Acts. 473 The word "lunatic" shall mean any person who shall have been found to be a lunatic upon a commission of inquiry in the naturt of a writ de lunatico inquirendo : The expression " person of unsound mind" diall mean any person- not an infant, wlo, not having been found to be a lunatic, shall be incapable from infirmity of mind to manage his own affairs : The word "devisee" shall, in addition to its ordinal-y signification, mean the heir of a devisee and the devisee of an heir, and genp- rally any person claiming an interest in the lands of a deceased person, not as heir of such deceased person, but by a title dependent solely upon the operation of the laws concerning devise and descent : The word "mortgage" shall be applicable to every estate, interest, or property in lands or personal estate which would in a court of equity be deemed merely a security for money : The word " person" used and referred -to in the masculine gender shall include a female as well as a male, and shall include a body corporate : And generally,^ unless the contrary shall appear from the context, every word importing the singalar number only shall extend to several persons or tilings, and every word importing the plural number shall apply to one person or thing, and every word import- ing the masculine gender only shall extend to a female. Shares in a joint-stock bank are '• stock" within the meaning of this section Re Angela, 5 De G. & S. 278 j 16 Jur. 831. 18 •& 19 Vict. c. 91, s. 10, " Shares in ships registered under the said Mer chant Shipping Act, 1854, shall be deemed to be included in the word ' stock, as defined by the Trustee Act, 1850, and the provisions of such last-mentionei Act shall be applicable to such shares accordingly." Order appointing a person to surrender copyholds in place of a persoi otrt of the jarisdictio'n who had covenanted to stand seised of them on tras' and to surrender them. Re Gollrngtuood, 6 W. R. 536. See, as to conveyance by tenant in tail, Powell v. Matthews, cited in note tc sect. 7. Where, on a claim for foreclosure a sale had been decreed, a vesting order as to an infant's equity of redemption was refused, the mortgagee have the legal estate and the equities being bound by the order. Re Williams' Estate, 5 De G. & S. 515 ; 21 L. J. 437. Order refused on the ground that the legal estate vested in the mortgagee's devisee, Re Field's Mortgage, 9 Hare, 414 j 21 L. J. 175 ; 15 Jur. 1004. See Re Cantley, 17 Jur 124. The estate of a person in whom copyholds were vested subject to a charge on them were vested under the Act in purchasers of them under orders of the Court on their being made co-petitioners, Rowley v. Adams, 14 Beav. 130. Mortgage by sub-demise of a term except the last day, with power ofa sale. A covenant by mortgagor to assign the last day to a purchaser does not make him a trustee. Re Prapert, 22 L. J. 948. Infant heir of a vendor who died intestate after contract to sell is not a con- structive trustee within this Act unless so declared by decree. Re Carpenter. 1 Kay, 418 ; see Re Burt, cited in note to sect. 7. In Re Angela, 5 De G. & S. 278; 16 Jur. 831, a debtor in India havinj, pledged shares to his creditor with authority to sell them was upon sale under that authority held a trustee. In Re Weeding, 4 Jur., N. S. 707. on petition by lessee, with option to pur- chase the fee that some one might be appointed to convey to him in place of an infant tenant in tail in remainder after several life estates, a suit was held necessary ; see sect. 53. 476 Trustee Acts. After the date of his will directing his executors to sell his lands, testator contracted to sell them, the Court vested the legal estate in them in the executors, Re Badcock, 2 W. R. 986. Executrix refusing to prove the will and neglecting to transfer the fund to trustees appointed by the Court held a trustee, Re Ellis, 24 Beav. 426, where the circumstances bringing the case within the Act were required to be inserted in the order. A deed, by which lands were held in trust to sell on default of payment of money secured and on trust to pay the surplus money arising from the sale to the borrower, was held to be more than a mere security for money within the meaning of this section, and a vesting order was made under sect. 15, He Under- wood, 3 K. & J. 745; 5 W. R. 866. III. And be it enacted, that when any lunatic or person of unsound mind shall be 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, 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 bad been sane, and had duly executed a conveyance or assignment of the lands in the same manner for the same estate. By 15 & 16 Vict. c. 87, s. 15, " All the jurisdiction and all the powers and authorities of a judicial nature given by the Art of the session holden in the first year ofthereign of King William IV. chap. 65; by the Trustee Act, 1850; and by anyother Acts or Act of Parliament now in force to the Lord Chancellor, intrusted by virtue of the Queen's sign manual with the care and commitment of the custody of the persons and estates of persons found idiot, lunatic or of unsound mind, shall belong to and may be exercised by all or any of the persons or person for the time being interested as aforesaid." See also sect. 1 1 of the Trustee Kxtension Act, 1852. This section gives the Lords Justices acting in lunacy jurisdiction to make a vesting order under sect. 3- of the Trustee Act. Previously it was doubted whether they had such jurisdiction. See Re Waugh, 2 De G., M. & G. 279. See, as to the jurisdiction in liinacy and Chancery respectively. Trustee Extension Act, sect. 10. Costs of reconveyance to the committee of a lunatic mortgagee are payable by the lunatic if the committee petition but not otherwise. Re Wheeler, 1 De G., M. & G. 434 ; if the mortgagor have not notice that the lunatic is a trustee of the mortgage estate the mortgagor is not liable to the cost, but is liable if he have such notice by his deed, Re Townaend, 1 M. & G. 686 ; Re Lewes, 1 M. & G. 23. Under 1 Will. IV. c. 60, where infant was ordered to recon vey a mortgaged estate the mortgagor paid the costs of the reference to the Master, Ex parte Ommaney. 10 Sim. 298; similarly, where the mortgagee was a lunatic, Re Marrow, 1 Cr. & Ph. 142 ; (but see note to sect 40 ;) simi- larly, where the mortgagee's representatives cannot be found, Kivg v. Smith, 6 Hare, 473. The mortgagee bears the costs where he is found lunatic by in- quisition, Re Tovmsend, 2 Ph. 348 ; where he is not so found, Hawkins v. Perry, 25 L. J. 656 ; where there is no committee. Re Riddle, 23 L. J. 23. See also notes to sect. 40. The committee of a lunatic's estate should be served with a petition for vesting trust estate in a new trustee appointed in place of the lunatic, Re Sauntarez, 25 L. J. 575. In Re Ramshay, 15 Jur. 69, .the Court refused to receive evidence that a lunatic was a trustee, and required a reference as to that fact. In Re Fulham, a lunatic, 15 Jur, 69, the Court made a direct vesting order under this section though the reference to the Master had been made in proceedings under the former Trustee Act, 1 Will. IV. c. 60. Trustee Acts. 477 IV. And be it enacted, that when any lunatic or person of ansound mind Bhall be entitled to any contingent right in any lands upon any trust or by way of mortgage, it shall be lawful for the Lord Chancellor, intrusted as aforesaid, to make an order wholly releasing such lauds from such contingent right, or disposing of the same to such person or persons as the said Lord Chancellor shall direct ; and the order shall have the same effect as if the trustee or mortgagee had been sane, and had duly executed a deed so releasing or disposing of the contingent right. V. And be it enacted, that when any lunatic or pereon of unsound mind shall be solely entitled to any stock or to any chose in action upon any trust, or by way of mortgage, it shall be lawful for the Lord Chan- cellor, intrusted as aforesaid, to make an order vesting in any person or persons the right to Jransfer such stock, or to receive the dividends 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 law- ful for the said Lord Chancellor to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, either in such person or persons so jointly entitled as aforesaid, or in such last-mentioned person or persons, together with any other person or per- sons the said Lord Chancellor may appoint. VI. And be it enacted, that when any stock shall be standing in the name of any deceased person whose personal representative is a lunatic or person of unsound mind, or when any chose in action shall be vested in any lunatic or person of unsound mind as the personal representative of a deceased person, it shall be lawful for the Lord Chancellor, intrusted 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. VIL And be it enacted, that where any infant shall be seised or pos- sessed 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 inch 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 executed a conveyance or assignment of the lands in the same manner for the same estate. Where on a claim for foreclosure an estate bad been ordered to be sold, order vesting an infant's equity of redemption in the mortgagee was refused, he having the legal estate and the equities being bound by the order, Re Williams, 5 De G. & Sm. Sid. A suit is necessary in order that infant heir of a partner may be held trustee for his co-partner purchasing his share of the partnership property under a power in the partnership deed, Re Burt, 9 Hare, 289. Vesting orders to uses to bar dower, Davey v. Miller, 17 Jur. 908 ; 22 L. .1. 1054; Re Lush, 5 De G. & Sm. 536, n. ; but in the earlier case, Re Howard, 21 L. J. 437, the power to make a similar order was doubted. Order vesting the legal estate in the devisees of a mortgagor subject to a legacy charged by his will on the equity of redemption, Re Ellerthorpe, 18 Jur. 669. Tenant for life with remainder to an infant in tail. A vesting order with the 478 Trustee Acts. ell V. consent of the tenant for life will bar the entail and remainders over, Pow MatthetDS, 1 Jur., N. S. 973. This section only applies to the case of an infant having the legal estate, Re Williams, cited in note to sect 2. Order for infant devisee in tail to convey to a purchaser, Williams v. Roier, Seton, 421. Legal estate of settled lands previously contracted to be sold became vested in a tenant for life with remainder to infant tenant in tail. Decree for conveyance of the interests of the tenant in tail and unborn persons claiming under the settlement, Hargreaves v. Wright, 1 W. R. 408 ; see sect. 20, injra. Order vesting estate of mortgagee in his executors and executrix (a married woman) to such uses, &c. as they should appoint, and in default to them in fee subject to the equity of redemption ; so that they could reconvey without an acknowledgment by the married woman, Re Powell, 4 K. & J. 338 ; 6 W. K. 136. Vni. And be it enacted, that -where any infant shall be entitled to any contingent right in any lands upon any trust or by way of morlga^e, it shall be lawful for the Court of Chancery to make an order wholly releas- ing such lands fi-om such contingent right, or disposing of the same to such person or persons as the said Court shall direct ; and the order shall have the same effect as if the infant had been twenty-one years of age, and had duly executed a deed so releasing or disposing of the con- tingent right. IX. And be it enacted, that when any person solely seised or possessed of any lands upon any trust shall be out of the jurisdiction of the Court of Chancery, or cannot be found, it shall be lawful for the said Court to make an order vesting such lands in such person or persons in such manner and for such estate as the said Court shall direct ; and the order shall have the same effect as if the trustee had duly executed a convey- ance or assignment of the lands in the same manner and for the same estate. In Re Plyer, 9 Hare, 220 ; 15 Jur. 766 ; Re Watts, 9 Hare, 106 ; 20 L. J. 337 ; 15 Jur. 459, the proper method of vesting trust estates in a continuing and a new trustee was held to be by appointing a person to concur with a continu- ing trustee in conveying the property j but in Smith v. Smith, 3 Drew. 72 ; Be Fislier, 1 W. R. 505 ; Re Marquis of Butgs Will, 1 John. 15 ; 6 Jur., N. S. 487, it was held that a vesting order could be made to vest the estate in the new trustees to be appointed for such estate as was vested in the continuing and absent trustee. Estate of dower trustee vested in a purchaser under this section, CoUard v. Roe, 4 Jur., N. S. 431 ; 6 W. R. 348 -, 27 L. J. 295. An heir who takes the trust estate by disclaimer of the trustees is a trustee within this section. Devise on trust for sale for payment of debts and subject thereto for other purposes. The Court having decreed a sale may, under sects. 9 and 20, appoint a person to convey to the purchaser when th^ trustees disclaim and the heir cannot be found, WiUcs v. Groom, 6 De G., M. & G. 205 ; 2 Jur., N. S. 1077 ; see sect. 20, infi-a. Legal estate of mortgaged lands vested in the executors of mortgagee who had been in possession. Re Skitter's Mortgage, i W. R. 791. See, as to power to convey in place of mortgagee who has died without entering ill possession, sect. 19. X. And be it enacted, that when any person or persons shall be seised or possessed of any lands jointly with a person out of the jurisdiction of Trustee Acts. 479 the Court of Chancery, or who cannot he found, it shall he lawful for the said Court to make an order vesting the lands in the person or persons so jointly seised or possessed, or in such last-mentioned person or persons together with any other person or persons, in such manner and for such estate as the said Court shall direct ; and the order shall have the same effect as if the trustee out of the jurisdiction, or who cannot be found, had duly executed a conveyance or assignment of the lands in the same man- ner for the same estate. Where an estate is sold under several lots one petition as to several lots is not muMfarious, Rowley v. Adams, 14 Beav. 130 ; la Jur. 1002. XI. And be it enacted, that when any person solely entitled to a contin- gent right in any lands upon any trust shall be out of the jurisdiction of :he Court of Chancery, or cannot be found, it shall be lawful for the said Court to make an order wholly releasing such lands from such contingent ;ight, or disposing of the same to such person or persons as the said Court shall direct ; and the order shall have the same effect as if the trustee had duly execBted a conveyance so releasing, or disposing of the contingent right XII. And be it enacted, that when any person jointly entitled with any other person or persons to a contingent right in any lands upon any trust shall be out of the jurisdiction of the Court of Chancery, or cannot be found, it shall be lawful for the said Court to make an order disposing of the contingent right of the person out of the jurisdiction, or who cannot be found, to the person or persons so jointly entitled as aforesaid, or to such last-mentioned person or persons together with any other person or persons ; and the order shall have the same effect as if the trustee out of ihe jurisdiction, or who cannot be found, had duly executed a conveyance 50 releasing or disposing of the contingent right. XIII. And be it enacted, that where there shall have been two or more persons jointly seised or possessed of any lands upon any trust, and it shall oe uncertain which of such trustees was the survivor, it shall be lawful ^r the Court of Chancery to make an order vesting such lands in such lerson or persons in snch manner and for such estate as the said Court hall direct ; and the order shall have the same effect as if the survivor of 'Uch trustees had duly executed a conveyance or assignment of the lands n the same manner for the same estate. XIV. And be it enacted, that where any one or more person or per- ons shall have been seised or possessed of any lands upon any trust, and °.t shall not be known, as to the trustee last known to have been seised or possessed, whether he be living .or dead, it shall be lawtiol for the Court jf 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 ^all have the same effect as if the last trustee had duly exe- cuted a conveyance or assignment of the lands in the same manner for the same estate. XV. And be it enacted, that when any person seised of any lands upon any trust shall have died intestate as to such lands without an heir, or shall have died and it shall not be known who is his heir or devisee, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said Court shall direct ; and the order shall have the same effect as if the !ieir or devisee of such trustee had duly executed a conveyance of the .ands in the same manner for the same estate. This section is not applicable to leaseholds, Re Mundel's Trtut, 8 W. R. 683 ; 480 Trustee Acts. see Re Harvey, Seton on Decrees, 418; and sect. 2, as to the interpretation of the words " seised " or " possessed." XVI. And be it enacted, that when any lands are subject to a contin- gent right in an unborn person or class of unborn persons who upon coming into existence would in respect thereof become seised or possessed of such lands upon any trust, it sh^ be lawful for the Court of Chancery to make an order which shall wholly release and discharge such lan(k from such contingent right in such unborn person or class of unborn persons, or to make an order which shall vest in any person or persons the estate or estates which such unborn person or class of unborn persons would upon coming into existence be seised or possessed of in such lands. See Hargremes v. Wright, cited in the note to sect. 7. XVII. And be it enacted, that where any person jointly or solely seised or possessed of any lands opon any trust shall, after a demand by a person entitled to require a conveyance or assignment of such lands, or a duly authorized agent of such last-mentioned person, have stated in writing . that he will not convey or assign the same, or shall neglect or refuse to convey or assign such lands for the space of twenty-eiglit days next after a proper deed for conveying or assigning the same shall have been ten- dered to him 'by any person entitled to require the same, or by a duly anthorized agent of such last-mentioned person, it shall be lawful for the Court of Chancery to make an order vesting snch lands in sach person or persons in snch manner and for snch estate as the said Court shall direct ; and the order shall have the same effect as if the. trustee had duly executed a conveyance or assignment of the lands in the same manner for the same estate. Devise of land on trust (after payment of debts, &c., and subject to an an- nuity) for A. in fee. The trustees were directed to convey to A. without the consent of the annuitant, Re Wmtermgham't Trusts, 3 W. R. 578. XVIII. And be it enacted, that where any person jointly or solely entitled to a contingent right in any lands upon any trust shall, after a demand for a conveyance or release of such contingent right by a person entitled to require the same, or a duly authorized agent of such last- mentioned person, have stated in writing that he will not convey or release such contingent right, or shall neglect or refuse to convey or release such contingent right for the space of twenty-eight days next after a proper deed for conveying or releasing the same shall have been tendered to him by any person entitled to require the same, or by a duly authorized agent of snch last-mentioned person, it shall be lawful for the Court of Chan- cery to make an order releasing or dispodng of snch contingent right in such manner as it shall direct ; and the order shall have the same effect as if the trustee so neglecting or refusing had duly executed a conveyance so releasing or disposing of the contingent right. Sects. 17 & 18 are repealed by the " Trustee Extension Act," s. 2. XIX. And be it enacted, that when any person to whom any lands hnve been conveyed by way of mortgage shall have died without havin<' entered into the possession or into the receipt of the rents and profits thereof, and the money due in respect of such mortgage shall have been paid to a person entitled to receive the same, or snch last-mentioned person shall consent to an order for the reconveyance of snch lands, then in any of the Trustee Acts. 481 following cases it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said Court shall direct ; that is to say, When an heir or devisee of such mortgagee shall be out of the juris- diction of the Court of Chancery, or cannot be found : When an heir or devisee of such mortgagee shall, upon a demand by a person entitled to require a conveyance of such lands, or a duly authorized agent of such last-mentioned person, have stated in writing that he will not convey the same, or shall not convey the same for the space of twenty-eight days next after a proper deed for conveying such lands shall have been tendered to him by a person entitled as aforesaid, or a duly authorized agent of such last-men- tioned person : , When it shall be uncertain which of several devisees of such mort- gagee was the survivor : When it shall be uncertain as to the survivor of seveitd devisees of such mortgagee, or as to the heir of such mortgagee whether he be living or deacl : When such mortgagee shall have died intestate as to such lands, and without an heir, or shall have died and it shall not be known who is his heir or devisee : And the order of the said Court of Chancery made in any one of the fore- going cases shall have the same effect as if the heir or devisee or surviving devisee, as the case may be, had duly executed a conveyance or assign- ment of the lands in the same manner and for the same estate. Mortgaged lands were purchased from the mortgagor, the debt being paid off; the mortgagee being illegitimate, and the purchaser objecting that her will did not pass the legal estate, the lands were vested in the purchaser under this section, the Crown not objecting, Se Minchin's Estate, 2 W. R. 179. Mortgagees' estate in fireeholds may be vested in his personal representative, the mortgage debt being unpaid. Re Boden, 1 De G., M. & G. 57 ; 16 Jur. 279 ; 9 Hare, 820, overruling the earlier case. Re Meyrick, 9 Hare, 116, in which the section was considered not to apply where the mortgage money was not paid. Mortgage estate vested in mortgagee's executors under this section, the mortgage debt being unpaid, Re Lea, 6 W. R. 482, following Re Boden, supra. A tender of a mere notice to surrender copyholds was held not sufficient within sect. 17, supra, before the repeal of that section, Rouiky v. Adams, cited in note to sect 2 of the Trustee Extension Act Donee of a power of a jointuring refusing to execute it in obedience to a decree on petition, the Court appointed a person to execute the requisite deed. Ex parte Mamington, 4 De G., M. & G. 537. Semble, The outstanding legal estate of deceased mortgagee will not be vested by order in his personal representative, where there is no present intention to sell the property or transfer the mortgage. Re Hewitt, 27 L. J. 302. XX. And be it enacted, that in every case where the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, shall, under the provisions of this Act,'be enabled to make an order having the effect of a conveyance or assignment of any lands, or having the effect of a release or disposition of the contingent right of any person or persons, born or unborn, it shall also be lawful for the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, as the case may be, shoidd it be deemed more convenient, to make an order appointing a person to convey or assign such lands, or re- C. II 482 Trustee Acts. lease or dispose of such contingent right ; and the conveyance or assign- ment, or release or disposition of the person so appointed, shall, when in conformity with the terms of tlie order by which he is appointed, have the same effect, in conveying or assigning tlie lands, or releasing or dispos- ing of the contingent right, as an order of the Lord Chancellor, intrusted as aftresaid, or the Court of Chancery, would in the particular case have had under the provisions of this Act ;" and in every case where the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, shall, under the provisions of this Act, be enabled to make an order vesting in any person or persons the right to transfer any stock transferable in the books of the governor and company of the Bank of England, or of any other company or society established or to be established, it shall also be lawful for the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, if it be deemed more convenient, to make an order directing the secretary, deputy secretary, or accountant-general for the time being of the governor and company of the Bank of England, or any officer of such other com- pany or society, at once to transfer or join in transferring the stock to the person or persons to be named in the order ; and this Act shall be a full and complete indemnity and discharge to the governor and company of the Bank of England, and all other companies or societies and their officers and servants, for all acts done or permitted to be done pursuant thereto. See Wilks v. Groom, cited in note to sect. 9; Hargreaves v. Wright, in note to sect. 7. In Hancox v. Spittle, 3 Sm. & G. 478, solicitor of plaintifis in a creditor suit was appointed under the Trustee Acts to convey to purchasers of lauds decreed to be sold their several shares. In Shepherd v. Churchill, 25 Beav. 21, after decree for partition of an estate, it was vested in a single trustee, with direction to convey the several shares. XXI. And be it enacted, that as to any lands situated within the duchy of 'Lancaster or the counties palatine of Lancaster or Durham, it shall be lawful for the Court of the Duchy Chamber of Lancaster, the Court of Chancery in the county palatine of Lancaster, or the Court of Chancery in the county palatine of Durham, to make a like order in the same cases as to any lands within the jurisdiction of the same Courts respectively as the Court of Chancery has under the provisions hereinbefore contained been enabled to make concerning any lands ; and every such order of the Court of the Duchy Chamber of Lancaster, the Court of Chancery in the county palatine of Lancaster, or the Court of Chancery in the county palatine of Durham, shall, as to such lands, have the same effect as an order of the Court of Chancery : provided always, that no person who is anywhere within the limits of the jurisdiction of tlie High Court of Chancery shall be deemed by such local Courts to be an absent trustee or mortoagee within the meaning of this Act. XXir. And be it enacted, that when any person or persons shall be jointly entitled with any person out of the jurisdiction of the Court of Chancery, or who cannot be found, or concerning whom it shall be un- certain whether he be living or dead, to any stock or chose in action upon any trust, it shall be lawful for the said Court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action, or any interest in respect thereof, either in such pefson or persons so jointly entitled as afore- said, or in such last-mentioned person or persons together with any person or persons the said Court may appoint ; and when any sole trustee of any stock or chose in action shall be out of the jurisdiction of the said Court, Tkustee Acts. 483 or cannot be found, or it shall be uncertain whether he be living or dead, it shall be lawful for the said Court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in any person or persons the said Court may appoint. An infant sole trustee out of the juriiidiction held not within this section^ Cramer v. Cramer, cited in note to the Extension Act, sect. 3. The husband of an executrix, out of the jurisdiction, is a trustee within this Act, Ex parte Bradshaw, 2 De G., M. & G. 900 ; 22 L. J. 180. Where the Master found that it was uncertain whether one of two trustees was living, he was held not to be a sole trustee after the other's death. Re Randall, 1 Drew. 401. See as to the efiFect of the words " sole trustee " the notes to next section. Order that mortgage d*bts and shares in a bank vested in three trustees might vest in two (the third being out of the jurisdiction), and the sole cestui que trust, was refused. Where under sect 22 an order may be made vesting in one person (which is confined to the case of a sole trustee), an order can only be made to transfer to one person. Re Brass's Trust, 4 W. R. 764. Order for three of four trustees to receive future dividends during their joint lives, the fourth trustee being out of the jurisdiction. Re Peyton, on appeal, 2 De G. 8f J. 290 ; 27 L. J. 478, n. ; 4 Jur., N. S. 469 ; 6 W. R. 453. New trustee appointed by the Court in place of one who bad gone to Australia without leaving any address, Re Harrison's Trust, 22 L. J. 69. A new trustee will not be appointed on the ground that a trustee has gone out of the jurisdiction, unless he be permanently resident abroad, Re Mais, 16 Jur. 608; 21 L.J. 875. Trustee permanently resident abroad removed, Mennard or Mesnard v. Wel- ford, 1 Sm. & G. 426 ; 22 L. J. 1053. Appointment of such trustees by the Court refused, Re Guibert, 16 Jur. 352. Under 1 Will. IV. c. 60, a trustee on a voyage to India washeld not out of the jurisdiction within the meaning of the Act, Hutchinson v, Stephens, 5 Sim. 498. A trustee not removed who bad gone to China, Withington v. Withington, 16 Sim. 106. XXIII. And be it enacted, that where any sole trustee of any stock or chose in action shall neglect or refuse to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action, or any interest in respect thereof, according to the direction of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that purpose shall have been made to him by the person absolutely entitled thereto, it shall be lawful for the Court of Chancery to make an order vesting the sole right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such cho.'e in action, or any interest in respect thereof, in such person or persons as the said Court may appoint. This section applies to a refusal of all the trustees as well as of a sole trustee. Be Hartnall, 16 Jur. 33 ; 5 De G. & S. 1 1 1. See Trustee Extension Act, sect 4. New trustees beld absolutely entitled to a transfer of stock from a surviving trustee. They are the persons to make the previous request for the transfer. Ex parte Russell, 15 Jur. 100; 20 L. J. 196 : 1 Sim., N. S. 404. The refusing trustee need not be served under this section, Baxter's Will, 2 Sm. & G., App. 5 ; Ex parte Armstrong, 16 Sim. 296. One trustee being out of the jurisdiction and another refusing to transfer, the right to transfer was vested in their co-trustee, with direction to transfer to the existing trustees, Re Odd Fellows of Manchester, Seton on Decrees, 404. Il2 484 Trustee Acts. One of two trustees is not "absolutely entitled" under this section, nor is tenant for life, Mackenzie v. Mackenzie, 16 Jur. 723 ; 21 L. J. 385. XXIV. And be it enacted, that where any one of the trustees of any- stock or chose in action shall neglect or refuse to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action according to the directions of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that purpose shall have been made to him or her by such person, it shall be lawful for the Court of Chancery to make an order vesting the Tight to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, in the other trustee or trustees of the said stock or chose in action, or in any person or persons whom the said Court may appoint jointly with such other tmstee or trustees. XXV. And be it enacted, that when any stock shall be standing in the sole name of a deceased person, and his or her personal representative shall be out of the jurisdiction of the Court of Chancery, or cannot be found, or it shall be uncertain whether such personal representative be living or dead, or such personal representative shall neglect or refuse to transfer such stock, or receive the dividends or income thereof, according to the direction of the person absolutely entitled thereto, for the space of twenty-eight days next after a request in writing for that purpose shall have been made to him by the person entitled as aforesaid, it shall be lawful for the Court of Chancery to make an order vesting the right to transfer such stock, or to I'eceive the dividends or income thereof, in any person or persons whom the said Court may appoint. XXVI. And be it enacted, that where any order shall have been made under any of the provisions of this Act, vesting the right to any stock in any person Or persons appointed by the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, such legal right shall vest accordingly, and thereupon the person or persons so appointed are hereby authorized and empowered to execute all deeds and powers of attorney, and to per- form all acts relating to the transfer of such stock into his or their own name or names or otherwise, or relating to the receipt of the dividends thereof, to the extent and in conformity with the terms of such order ; and the Bank of England and all companies and associations whatever, and all persons, shall be equally bound and compellable to comply with the requisitions of such person or persons so appointed as aforesaid, to the extent and in conformity with the terras of such order as the said Bank of England, or such companies, associations or persons would have been bound and compellable to comply with the requisitions of the person in ■whose place such appointment shall have been made, and shall be equally indemnified in complying with the requisition of such person or persons so appointed as they would have been indemnified in complying with the requisition of the person in whose place such appointment shall have been made ; and after notice in writing of any such order of the Lord Chan- cellor, intrusted as aforesaid, or of the Court of Chancery, concerning any stock, shall have been given, it shall not be lawful for the Bank of England, or any company or association whatever, or any person having received such notice, to act upon the requisition of the person in whose place an appointment shall have been made in any matter whatever re- lating to the transfer of such stock, or the payment of the dividends or produce thereof. Trustee Acts.- 485 XXVII. And be it enacted, that where any order shall have been made under the provisions of this Act, either by the Lord Chancellor, intrusted as aforesaid, or by the Court of Chancery, vesting the legal right to sue for or recover any chose in action or any interest in respect thereof in any person or persons, such legal right shall vest accordingly, and thereupon it shall be lawful for the person or persons so appointed to carry on, com- mence, and prosecute, in his or their Own name or names, any action, suit, or other proceeding at law or in equity for the recovery of such chose in action, in the same manner in all respects as the person in whose place an appointment shall have been made could have sued for or re- covered such chose in action. XXVIII. And be it enacted, that whensoever, under any of the pro- visions of this Act, an o^ier shall be made either by the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, vesting any copyhold or customary lands in any person or persons, and such order shall be made with the consent of the lord or lady of the manor whereof such lands are faolden, then the lands shall, without any surrender or admittance in respect thereof, vest accordingly ; and whenever, under any of the provi- sions of this Act, an order shall be made either by the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, appointing any person or pei-sons to convey or assign any copyhold or customary lands, it shall be lawful for such person or persons to do all acts and execute all instru- ments for the purpose of completing the assurance of such lands ; and all such acts and instruments so done and executed shall have the same effect, and every lord and lady of a manor, and every other person shall, subject to the customs of the manor and the usual payments, be equally bound and compellable to make admittance to such lands, and to do all other acts for the purpose of completing the assurance thereof, as if the persons in whose place an appointment shall have been made, being free from any disability, had duly done and executed such acts and instruments. Order vesting copyholds in purchaser from executors of a creditor to whom they had been assigned on trust to sell to pay his debt, &c., without service on the representative of the debtor, or on the customary heir. Re Wise, 5 De G. & S. 415. See Re Collingwood, cited in note to sect. 2. . Vesting order comprising copyholds made without the consent of the lord, vesting " in the new trustees all the estate which would have vested in the ori- ginally named trustees, if they had accepted the trust," Re Flitcroft, 1 Jur., N. S. 418. The lord must consent to an order vesting copyholds, but the con- sent need not be by appearance on the petition, Cooper v. Jones, 2 Jur., N. S. 59 ; Jyles v. Cox, 17 Beav. 584. See form of order appointing a person to complete the assurance of copy- holds, Re Hey's Will, 9 Hare, 221. Where an order vesting copyholds the written consent of the steward is to he filed annexed to an affidavit verifying his signature, but the consent of the lord is not required where the order is for conveyance under sect. 28, Tripp's Forms, 213. XXIX. And be it enacted, that when a decree shall have been made by any Court of Equity directing the sale of any lands for the payment of the debts of a deceased person, every person seised or possessed of such lands, or entitled to a contingent right therein as heir, or under the will of such deceased debtor, shall be deemed to be so seised or possessed or entitled, as the case may be, upon a trust within the meaning of this Act; and the Court of Chancery is hereby empowered to make an order wholly 486 TR0STEE Acts. discharging the contingent right, under the will of such deceased debtor, of any unborn person. Infants contingently entitled beneficially to real estate, decreed to be sold for payment of costs, held not to be constructive trustees within this and the next section for a purchaser, IVeston v. Filer, 16 Jur. 1010. But under this Act and the Trustee Extension Act, a vesting order was made of estates decreed to be sold for the payment of debts and other purposes, where existing and future born children were interested, Wake v. Wake, 17 Jur. S45. In IVood V. Beellestone, 1 K. & J. 213, copyhold lands devised to infant for life with remainder in tail, were decreed to be sold for payment of testator's debts, and the infant's guardian was ordered to surrender them : the purchaser was held entitled to an order to discharge the remainder in tail. XXX. And be it enacted, that where any decree shall be made by any Court of Equity for the ^ecilic performance of a contract concerning any lands, or for the partition or exchange of any lands, or generally when any decree shall be made for the conveyance or assignnient of any lands, either in cases arising out of the doctrine of election or otherwise, it shall be lawful for the said Court to declare that any of the parties to the said suit wherein such decree is made are trustees of such lands or any part thereof, within the meaning of this Act, or to declare concerning the interests of unborn persons who might claim under any party to the said suit, or under the will or voluntary settlement of any person deceased who was during his lifetime a party to the contract or transactions concerning which such decree is made, that such interests of unborn persons are the interests of persons who upon coming into existence would be trustees within the meaning of this Act, and thereupon it shall be lawful for the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, as the case may be, to make such order or orders as to the estates, rights and interests of such persons, born or unborn, as the said Court or the said Lord Chancellor might under the provisions of this Act make concerning the estates, rights and interests of trustees bom or unborn. Vendor refusing to execute conveyance settled by the Judge, held a trustee within this section, Warrender v. Foster, Seton on Decrees, 419. See Ex parte , Mornington, cited in note to sect. 19. In a partition suit, an infant entitled to a share may be declared trustee of the other shares, Bowra v. Wright, 4 De G. & S. 265. On motion for foreclosure absolute the Court refused to declare the mort- gagor, who was out of the jurisdiction, a trustee for the mortgagee without a separate application, Smith v. Boucher, 1 Sm. & Giff. 72. See note to sect. 43. Order in lunacy and under this Act for carrying into effect a decree for par- tition against a Ikinatic tenant in tail, Re Bloomar, 2 De G. & J. 88 ; 27 L. J. 173; 6 W. R. 178. In a partition suit where the shares were small and numerous, they were all vested in a single trustee with direction to convey to each party his share, Shepherd v. Churchill, 25 Beav. 21. XXXI. And be it enacted, that it shall be lawful for the Lord Chancel- lor, intrusted as aforesaid, or the Court of Chancery, to make declarations and give directions concerning the manner in which the right to any stock or chose in action vested under the provisions of this Act shall be exer- cised ; and thereupon the person or persons in whom such right shall be vested shall be compellable to obey such directions and declarations by the same process as that by which other orders underthis Act are enforced. XXXII. And be it enacted, that whenever it shall be expedient to ap- Trustee Acts. 487 point a new trustee or new trustees, and it shall be found inexpedient, difficult, or impracticable so to do without the assistance of the Court of Chancery, it shall be lawful for the said Court of Chaucery to make an order appointing a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees. The Court will not under this section remove a trustee willing to act, how- ever irregularly he may intend to act; semble, the Court will not take away a legal power to appoint trustees until the refusal to appoint is shown, by means similar to those provided in sects. 17 and 24, Re Hodgson, 15 Jur. 552 ; 9 Hare, 118 ; 20 L. J. 551. As to wheiber the Court will re-appoint trustees because the validity of their appointment under a power is doubted, see Re Hadley, S De G. 8e Sm. 67. The Court would not under this section appoint a new trustee of a term of whidi there is no subsisting trustee, Re Hazeldine, 16 Jur. 853 ; see now Trustee Extension Act, s. 10 ; Davis v. Chanter, infra. Where one of three trustees was alleged to be lunatic, a new trustee was appointed, and the estate vested in him jointly with the continuing trustees, Re Daoies, 3 Mac. & G. 278. In Re Boumer, 7 W. R. 313 ; 5 Jur., N. S. 348, an order in lunacy was made, vesting in the committee of a lunatic his powers of appointing new trustees. Petition by tenant for life to vest trust estate in a newly-appointed trustee, must be served on the remainderman, Se Maynard, 16 Jur. 1084; Re Farrant, 20 L. J. 632 ; there must be evidence of due exercise of the power of appoint- ment and that the new tiustee is a fit person. Re Maynard, 16 Jur. 1084. Appointment of new trustees on affidavit of fitness without a reference. Ex parte Tunstall, 15 Jur. 645, 981 ; Re Robinson, 16 3 at. 1S7; Oglanderv.Oglander, 2 De G. & S. 381. Where all the trustees disclaimed, they were held " existing " trustees within this section. Re Tyler, 5 De G. & S. 56 ; 15 Jur. 1120 ; see now s. 9 of the Trustee Extension Act ; and Re Bazeldine, supra. By 12 & 13 Vict. c. 106, s. 130, where a bankrupt is a trustee the Lord Chancellor may order conveyance or assignment to another trustee. The juris- diction is in chancery not in bankruptcy. Ex parte Carlwright, 3 De G. & S. 648 ; Re Heath, 9 Hare, 616 ; Be Primrose, 23 Beav. 590 ; 26 L. J. 666 ; 3 Jur., N. S. 899. Appointment of trustees by the Court, where persons having power to ap- point resided in India, Re Humphrey, 1 Jur., N. S. 921. Appointment of two new trustees though there was only one originally, Tiaistall's Will, 15 Jur. 648, 981. Two additional trustees appointed, the pro- perty having increased. Re Boycott, 5 W. R. 15. Inquiry directed as to the propriety of appointing two trustees only where the will appointed three. Earl of Lonsdale v. Beckett, 4 De G. & S. 73 ; 19 L. J. 342. Three trustees may be appointed by the Court of a will which ap- pointed only two. Birch v. Cropper, 2 De G. & S. 525. Four trustees appointed where the will appointed three. Plenty v. West, 16 Beav. 356. A single trustee is never appointed where there were originally more than one, Ellison's Trust, 2 Jur., N. S. 62. In special circumstances two trustees appointed instead of three, on evidence of the impossibility of appointing a third, Bulkeley v. Earl of EgUnton, 1 Jur., N. S. 994. The Court will not generally appoint a sole trustee. Re Dickinson, 1 Jur., N. S. 724. Sole trustee appointed in place of lunatic trustee where the trust was about to be wound up. Re Reynaalt, 16 Jur. 233. Though a settlement contains a power to appoint a new trustee, the Court may appoint a new trustee where it would be necessary to apply for a vesting order, and direct transfer of the fund to him and the continuing trustee, Re Cooper's Settlement, 25 L. J. 685 ; 4 W. R. 729. Where there was no representative in England of the surviving trustee the 488 Trustee Acts. Court refused to appoint new trustees and rest stock in them, Re Frost, 15 Jur. 644; 20 L.J. 112. But where the surviving trustee died in 1799, and there would have been great difficulty in obtaining representation to him, a new trustee was appointed under this section and secL 9 of the Extension Act, infra. Davit V. Clianter, 27 L. J. 677 ; 4 Jur., N. S. 272 j 6 W. R. 416. Where, under a power in her marriage settlement, an executrix appointed her husband her executor, and he obtained probate of her will limited to pro- perty settled on her on marriage, and administration of her personal estate but not probate, including her power to appoint an executor, the Court appointed him trustee of funds of her testator. Re Herbert's Will, 8 W. R. 272. The Court will appoint a new trustee of a separation deed without inquiring into the validity of its provisions. Re Matthew's Settlement, 5 Jur., N. S. 184 ; 28 h. J. 295 ; 7 W. R. 224. New trustees appointed of a charity, though the trust deed had not been enrolled, Attorney-General v. Ward, 6 Hare, 477. As to appointment of trus- tees of charities, see Ord. 41, sect. 2. Appointment in place of trustee desiring to be discharged, Re Woodgale's Settlement, 5 W. R. 448. An order vesting trust property in trustees appointed by the Court may be made, though a person exists who can convey to them, Re Manning's Trust, Kay, App. 28. The Court generally objects to appoint a woman, though unmarried, to be a trustee, Brook v. Brook, 1 Beav. 531; cestui que trust appointed trustee, Ex parte Conybeare, 1 "W. R. 458. The Master of the Rolls objects to appointing a near relative of the parties interested to be a new trustee. Wilding v. Bolder, 21 Beav. 222. The Court will appoint a new trustee in place of an infant, though appointed by the testator himself. Re Gartside's Estate, 1 W. R. 196. Where one of two trustees for sale was an infant, the Court appointed in his stead another person, and vested the power in him and the continuing trustee, Re Porter, 2 Jur., N. S. 349. Where trust leasehold property could not be assigned to newly-appointed trustees, because the representative of the deceased trustee could not be found, the Court appointed the trustees under this section, and vested the property in them under sect. 34, Re Mundel, 8 W. R. 683. XXXIII. And be it enacted, that the person or persons who, upon the making of such order as last aforesaid, shall be trustee or trustees, shall have all the same rights and povyers as he or they would have had if ap- pointed by decree in a suit duly instituted. Testator authorized his executors thereinafter mentioned with the approba- tion of his trustees for the time being to sell, held that the surviving executor, with assent of trustees in whom the lands where vested by a vesting order, could make a good title, Brassey v. Chalmers, 4 De G., M. & G. 528. Trustees appointed by the Court could not appoint new trustees, Oglander v. Oglander, 2 De G. & Sm. 381 ; Holder v. Durbin, 1 1 Beav. 594. Such trustees may exercise discretionary powers vested in trustees for the time being, Bartley V. Bartley, 3 Drew. 384 ; and powers given to the undersigned trustees, Byam V. Byam, 19 Beav. 58. See now 23 Si 24 Vict c. 145, s. 27, cited in note to sect 1. See as to the powers of trustees appointed by the Court to raise debts or money by sale, 22 & 23 Vict u. 35, s. 16. XXXIV. And be it enacted, that it shall be lawful for the said Court of Chancery, upon making any order for appointing a new trustee or new trustees, either by the same or by any subsequent order to direct that any lands subject to the trust shall vest in the person or persons who upon the appointment shall be the trustee or trustees for such estate as the Court Trustee Acts. 489 shall direct ; and such order shall have the same effect as if the person or persons who before such order were the trustee or trustees (if any) had duly executed all proper conveyances and assignments of such lands for such estate. A disclaimer in Court on a petition is not of record as a disclaimer on a bill is, and {semble) will not divest the estate of a trustee declining to act, Re Ellison, 2 Jur., N. S. 62. The Court will not divest the estate of an exe- cutor, unless he renounce the will, Re Badcock's Trust, 2 W. R. 386. The vesting order should describe the property comprised in it, Re Ord's Trust, 3 W. R. 386. Where the Bank of England was required to transfer funds to new trustees appointed by the Court, a recital was required to be inserted in the order that the former trustee was resident out of the jurisdiction, Re Mainwaring, 26 Beav. 172 ; 28 L. J. 97 i 5 Jur., N. S. 52. See Re Mundel's Trust, cited in note to sect. 32. XXXV. And be it enacted, that it shall be lawful for the said Court of Chancery, upon making any order for appointing a new trustee or new trustees, either by the same or by any subsequent order to vest the right to call for a transfer of any stock subject to the trust, or to receive the dividends or income thereof, or to sue for or recover any chose in action, subject to the trust, or any interest in respect thereof, in the person or persons who upon the appointment shall be the trustee or trustees. This section did not give the power to vest the right to stock, but only the right to call for a transfer, Re Smyth's Settlement, 4 De G. & Sm. 499 ; 15 Jur. 644. But see now sect 6 of the Extension Act. The Court has no jurisdiction under this Act to empower trustees appointed by it to call for a transfer of stock, which the former trustees on the marriage of one of their cestuis que trust had transferred to the trustees of her settlement. Re Stewart, 8 W. R. 297. Where part only of a sum of stock belonged to a trust, trustees appointed by the Court were authorized to receive the arrears of dividends on thewhole sum, and to retain so much as belonged to the trust, Re Stewart, 8 W. R. 425. XXXVI. And be it enacted, that any such appointment by the Court of new trustees, and any such conveyance, assignment or transfer as afore- said, shall operate no further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have done. See iJe Harrison, cited in note to sect. 32. XXXVII. And be it enacted, that an order, under any of the hereinbe- fore contained provisions, for the appointment of a new trustee or trustees, or concerning any lands, stock, or (^ose in action subject to a trust, may be made upon the application of any person beneficially interested in such lands, stock or chose in action, whether under disability or not, or upon the application of any person duly appointed as a trustee thereof; and that an order under any of the provisions hereinbefore contained concern- in"' any lands, stock or chose in action subject to a mortgage may be made on the application of any person beneficially interested in the equity of redemption, whether under disability or not, or of any person interested in the moneys secured by such mortgage. Semble, a new trustee is a person absolutely entitled under this section, Ex parte Russell, cited in note to sect. 23. Purchaser of lands sold under a decree held to be properly a co-petitioner for 490 Tkustee Acts. a vesting order, Rowley v.Adcms,l5 Jur. 1002; 14 Beav. 130 ; or sole petitionei!, Ayles V. Cox, 17 Beav. 581. See notes to sect. 40. XXXVIII. And be it enacted, that when any person shall deem himself entitled to an order under any of the provisions hereinbefore contained, either from the lord Chancellor, intrusted as aforesaid, or from the Court of Chancery, it shall be lawful for him to exhibit before any one of the Masters of the High Court of Chancery a statement of the facts whereon such order is sought to be obtained, and adduce evidence in support thereof; and if such evidence shall be satisfactory to the said Master, he shall, at the request of the person adducing such evidence, give a certifl- eate under his hand of the several material facts found by him to be true, and of his opinion that sueb person is entitled to an order in the form set forth in such certificate. Though all persons interested appeared and consented on reference to the Master, the consent of all was required on application for appointment of trus- tees approved of by him. Re Thomas's Tritst, 15 Jur. 187. See, as to dispensing with a reference, notes to sect. 32. See Callinson v. Collinson, cited in note to sect. 43. XXXIX. And be it enacted, that any person who shall have ob- tained such certificate may apply by motion to the Court of Chancery, or to the Lord Chancellor, intrusted as aforesaid, for an order to the effect set forth in such certificate, or for such other order as such person may deem himself entitled to upon the facts found by the Master. XL. And be it enacted, that any person or persons entitled in manner aforesaid to apply for an order from the said Court of Chancery, or from the Lord Chancellor, intrusted as aforesaid, may, should he so think fit, present a petition in the first instance to the Court of Chancery, or to the Lord Chancellor, intrusted as aforesaid, for such order as he may ^eem himself entitled to, and may give evidence by affidavit or otherwise in support of such petition before the said Court, or the Lord Chancellor, intrusted as aforesaid, and may serve such person or persons with notice of such petition as he may deem entitled to service thereof. In some branches of the Court a petition under this Act may be amended by adding co-petitioners without re-answering. Re Cartwright's Trust, 8 W. R. 492. Petitions for appointment of new trustees ought generally to be served on all the cestuis que trust, Re Richard's Trust, 5 De G. & Sm. 636 ; Ra Sloper, 18 Beav. 596; Re Fellow!s Settlement,2 Jar,, N.S. 62. And the old trustees (if any) must appear, Re Sloper, 18 Beav. S96. But trustees were appointed pf estates which had been made subjects of marriage settlements where the married persons and their trustees, but^ot their children appeared, Re Smyth, 2 De G. & Sm. 781. See Re Thomas's Trust, cited in note to sect. 38. As to tbe proper persons to consent in the case of sales by the Court, see Rowley v. Adams, Ayles v. Cox, cited in note to sect. 37. If the committee of lunatic mortgagee -petition for reconveyance of lands vested in him, the mortgagee pays the costs, but the Court will not give the mortgagor his costs unless the committee declines to present the petition. Re Wheeler, 1 De G., M. & G. 434. If the mortgagor present the petition he pays the costs, Re Stuart, 4 De G. & J. 317. See Re Thomas, cited in note to Ex- tension Act, sect. 13, and see notes to sect. 3 and sect. 40. See as to service of committee when not a petitioner, Re Saumarex, cited in note to sect, 3. As to service on remainderman, see Be Maynard, cited in note to sect. 32. Tktjstee Acts. 491 Petition to vest assignable leaseholds need not be served on the lessor, Re Matthew's Settlement, 2 W. R. 85. An annuitant need not appear on applica- tion to vest lands subject to the annuity, Ite Winteringham, 3 W. R. 578, cited in note to sect. 17. A£Bdavits made and filed in a cause received in support of a petition under the Trustee Act, Re Pickance, 10 Hare, App. 35. See also notes to sect. 32. XLI. And be it enacted, that npon the hesu-ing of any such motion or petition it shall be lawful for the said Court or for the said Lord Chan- cellor, should it be deemed necessary, to direct a reference to one of the Masters in Ordinary of the Court of Chancery to inquire into any facts ■which require such an investigation, or it shall be lawful for the said Court or for the said LdS-d Chancellor to direct sutjh motion or petition to stand over, to enable the petitioner or petitioners to adduce evidence or further evidence before the said Court or before the said Lord Chancellor, or to enable notice or any further notice of such motion or petition to be served upon any person or persons. By Order of 23rd Aug. 1 860 (infra), the remaining Masters in Ordinary are released from their duties as such Masters. XLII. And be it enacted, that upon the hearing of any such motion or petition, whether any certificate or report from a master shall have been obtained or not, it shall be lawful for the Court, or the Lord Chancellor, intrusted as aforesaid, to dismiss such motion or petition, with or without costs, or to make an order thereupon in conformity with the provisions of this Act. XLIII. And be it enacted, that whensoever in any cause or matter, either by the evidence adduced therein, or by the admissions of the parties, or by a report of one of the Masters of the Court of Chancery, the facts necessary for an order under this Act shall appear to such Court to be. sufficiently proved, it shall be lawful for the said Court, either upon the hearing of the said cause or of any petition or motion in the said cause or matter, to make such order under this Act. Order under the Trustee Acts in a cause without petition, IVood v. Beetle- Hone, 1 Kay & John. 213 ; petition for vesting in a purchaser lands decreed to be sold in a suit for foreclosure was dismissed as unnecessary, as the mortgagee had the legal estate, and the equitable interests were provided for by the decree ; Se Williams, 21 L. J. 437 i Devoy v. Devoy, cited in note to the Extension Act, sect. 3 ; Cbllard v. Roe, cited in note to sect. 9. Where an order for a trustee to transfer stock bad been made on petition in a matter, on his refusal for twenty-eight days the Court made a subsequent vesting order on motion. Re Holbrook's Will, 8 W. R. 3. See Smith v. Soucher, cited in note to sect. 30. XLIV. And be it enacted, that whenever any order shall be made under this Act, either by the Lord Chancellor, intrusted as aforesaid, or by the Court of Chancery, for the purpose of conveying or assigning any fands, or for the purpose of releasing or disposing of any contingent right, and such order shall be founded on an allegation of the personal incapacity of a trustee or mortgagee, or on an allegation that a trustee or the heir or devisee of a mortgagee is out of the jurisdiction of the Court of Chancery, or cannot be found, or that it is uncertain which of several trustees, or which of several devisees of a mortgagee, was the survivor, or whether the last trustee, or the heir or last surviving devisee of a mortgagee, be 492 Tbustee Acts. living or dead, or on an allegation that any trustee or mortgagee has died intestate without an heir, or has died and it is not known who is his heir or devisee, then in any of such cases the fact that the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, has made an order upon such an allegation, shall be conclusive evidence of the matter so alleged in any Court of law or equity upon any question as to the legal validity of the order : provided always, that nothing herein contained shall pre- vent the Court of Chancery directing a re-conveyance or re-assignment of any lands conveyed or assigned by any order under this Act, or a re- disposition of any contingent right conveyed or disposed of by such order; and it shall be lawful for the said Court to direct any of the parties to any suit f.oncerning such lands or contingent right to pay any costs occasioned by the order under this Act, when the same shall appear to have been im- properly obtained. XL V. And be it enacted, that it shall be lawful for the Lord Chancel- lor, intrusted as afoi-esaid, or the Court of Chancery, to exercise the powers herein conferred for the purpose of vesting any (ands, stock or chose in action in the trustee or trustees of any charity or society over which charity or society the said Court of Chancery would have jurisdiction upon suit duly instituted, whether such trustee or trustees shall have been duly appointed by any power contained in any deed or instrument, or by the decree of the said Court of Chancery, or by order made upon a petition to the said Court under any statute authorizing the said Court to make an order to that effect in a summary way upon petition. See now Re Davenport's Charity, and Re Lincoln Chapel, cited in notes to the Charitable Trusts Act, 1853, in Ord. 41. XLVL And be it enacted, that no lands, stock or chose in action vested in any person upon any trust or by way of mortgage, or any profits thereof, shall escheat or be forfeited to her Majesty, her heirs or successors, or to any corporation, lord or lady of a manor, or other person, by reason of the attainder or conviction for any offence of such trustee or mortgagee, but shall remain in such trustee or mortgagee, or survive to his or her co- trustee, or descend or vest in his or her representative, as if no such at- tainder or conviction had taken place. XLVII. And be it enacted, that nothing contained in this Act shall prevent the escheat or forfeiture of any lands or personal estate vested in any such trustee or mortgagee, so far as relates to any beneficial interest thei-ein of any such trustee or mortgagee, but such lands or personal estate, so far as relates to any such beneficial interest, shall be recoverable in the same manner as if this Act had not passed. XLVIIL And be it enacted, that where any infant or person of unsound mind shall be entitled to any money payable in discharge of any lands, stock or chose in action conveyed, assigned or transferred under this Act, it shall be lawful for the person by whom such money is payable to pay the same into the Bank of England, in the name and with the privity of the Accountant-General, in trust in any cause then depending concerning such money, or, if there shall be no such cause, to the credit of such in- fant or person of unsound mind, subject to the order or disposition of the said Court ; and it shall be lawful for the said Court, upon petition in a summary way, to order any money so paid to be invested in the public funds, and to order payment or distribution thereof, or payment of the dividends thereof, as to the said Court shall seem reasonable ; and every cashier of the Bank of England who shall receive any such money is Trustee Acts. 493 hereby required to give to the person paying the same a receipt for such money, and such receipt shall be an effectual discharge for the money therein respectively expressed to have been received. XLIX. And be it enacted, that where in any suit commenced or to be commenced in the Court of Chancery it shall be made to appear to the Court by affidavit that diligent search and inquiry has been made after any person made a defendant, who is only a trustee, to serve him with the process of the Court and that he cannot be found, it shall be lawful for the said Court to hear and determine such cause, and to make such ab- solute decree therein against every person who shall appear to them to be only a trustee, and not otherwise concerned in interest in the matter in question, in such and the same manner as if such trustee had been duly served with the process of the Court, and had appeared and filed his answer thereto, and hfW also appeared by his counsel and solicitor at the hearing of such cause : provided always, that no such decree shall bind, 'affect, or in anywise prejudice any person against whom the same shall be made, without service of process upon him as aforesaid, his heirs, exe- cutors or administrators, for or in respect of any estate, right or interest which such person shall have at the time of making such decree, for his own use or benefit, or otherwise than as a trustee as aforesaid. Bill for appointment of new trustees ordered to be certified as fit for hearing where trustee defendsint, who had not appeared, coidd not be found, Westhead V. Sale, 6 W. R. 52 ; 3 Jur., N. S. 1209. L. And be it enacted, that when any person shall, under the provisions of this Act, apply to one of the Masters of the Court of Chancery in the first instance, and adduce evidence for the purpose of obtaining the certi- ficate of such Master as a foundation for an order of the said Lord Chan- cellor, intrusted as aforesaid, or the said Court of Chancery, it shall be lawful for the said Master to order service of such application upon any person, or to dismiss such application, and to direct that the costs of any persons consequent thereon shall be paid by the person making the same; and all orders of the Master under this Act shall be enforced by the same process as orders of the Court made in any suit against a party thereto. LI. And be it enacted, that the Lord Chancellor, intrusted as afore- said, and the Court of Chancery, may order the costs and expenses of and relating to the petitions, orders, directions, conveyances, assignments and transfers to be made in pursuance of this Act or any of them, to be paid and raised out of or from the lands or personal estate, or the rents or pro- duce thereof, in respect of which the same respectively shall be made, or in such manner as the said Lord Chancellor or Court shall think proper. The costs of applications for the appointment of new trustees come out of the corpus of the trust fiind, Re Fellow's Settlement, 2 Jur., N. S. 62 ; Re Fvlham, 15 Jur. 69; Bx parte Davies, 16 Jur. 882. The costs of this applica- tion, with interest at four per cent, ordered to form a charge on the inheritance, ibid. The order for costs must not contain the words '' incidental to or conse- quent on " the inquiry. Be Fellow's Settlement, ubi supra. As to costs of reconveyance to a mortgagor, see notes to sect. 3. The Court cannot make a respondent pay the costs of a vesting order required by his misconduct, Re Primrose, 23 Beav. 590 ; 26 L. J. 666 ; 3 Jur., N. S. 899. See Re Woodbum's Trust, under the Trilstee Relief Act, cited in note to that Act. Costs of suit for appointing new trustees of a chapel were ordered to be paid 494 Trustee Acts. by trustees who improperly reiased to retire, Attamey-Generdl v. Murdoch, 2 K. &J. 571. Plaintiff filing a bill for appointment of new trustees instead of a petition liable for the additional costs, Thomas v. Walker, 18 Beav. 521. Trustee filing a bill to have new trustee appointed In his place was allowed his costs, Gardinar v. Doumes, 22 Beav. 395. Where the legal estate in lands sold to a railway company was in an infant, the company were held not liable under the Lands Clauses Act, sect. 82, for the costs of the proceedings under the Trustee Act to obtain a conveyance. Be South Wales Railway, 14 Beav. 418; 20 L. J. 534; 15 Jur. 1145; the company is not liable for the costs of suit against infant heir of vendor of lands bouo-ht with purchase money paid into Court, Armitage v. Askham. 1 Jur., N. S. 227. The costs of petition under this Act, with respect to lands sold by order of the Court, or by contract, fall on the vendor, Bradley v. Munton, 16 Beav. 294 ; Ayles V. Cox, 17 Beav. 584. The costs of order respecting one of several lots fall on the purchase-money of that lot, ibid. V An infant trustee directed to convey under the statute 7 Ann. c. 19, was en- titled to his necessary costs, but not to costs of counsel appearing for him to answer, Ex parte Cant, 10 Ves. 554. As to costs of reconveyance by lunatic mortgagee see notes to sect. 40. Where equitable mortgagee files a bill simply to realize this security against the infant heir of the mortgagor (a vesting order having been obtained), the fund being deficient, the defendant is entided to such costs only as were in- curred by the proceedings under the Trustee Act, Wade v. Ward, 7 W. R. 542. A trustee disclaiming at the bar gets his costs of a suit for appointment of new trustees only as between party and party, Bulkeley v. Earl of Berkeley, 1 Jur., N. S. 994. Bankrupt trustee served and appearing will be allowed his costs. Ex parte Cartwright, 3 De G. 8; Sm. 648. LII. And be it enacted, that upon any petition being presented under this Act to the Lord Chancellor, intrusted as aforesaid, concerning a pei^ son of nnsoand mind, it shall be lawful for the said Lord Chancellor, should be so think fit, to direct that a commission in the nature of a writ de lunatico inqnirendo shall issue concerning such person, and to postpone making any order upon such petition until a return shall have been made to such commission. LIII. And be it enacted, that upon any petition under this Act being presented to the Lord Chancellor, intrusted as aforesaid, or to the Court of Chancery, it shall be lawful for the said Lord Chancellor or the said Court of Chancery to postpone making any order upon such petition until the right of the petitioner or petitioners shall have been declared in a suit duly instituted for that purpose. See Re Weeding, cited in note to sect. 2 ; Re Burt, cited in note to sect. 7. Where all the trustees of stock were dead or out of the jurisdiction, the Court vested in a guardian of an infant the right to receive the dividends during his minority, Re Morgan, Seton on Decrees, 420. Where the Master certified, under sect 38, that a father purchased in the name of his son, who was a lunatic, the Court refused to declare him » trustee for his father without a suit, which was directed, CoUinsan v. ColUnson, 3 De G., M. & G. 409. LIV. And be it enacted, that the powers and authorities given by this Act to the Court of Chancery in England shall extend to all lands and personal estate within the dominions, plantations and colonies belonging to her Majesty (except Scotland). Order vesting lands in Ireland, Re Hewitt's Estate, 6 W. R. 537. See Re Davies, cited in note to seot. 58. Teustee Acts. 495 LV. And be it enacted, that the powers and authorities given by this Act to the Court of Chancwy in England shall and may be exercised in like manner, and are hereby given and extended to the Court of Chancery in Ireland with respect to all lands and personal estate in Ireland. LVI. And be it enacted, that the powers and authorities given by this Act to the Lord Chancellor of Great Britain, intrusted as aforesaid, shall extend to all lands and personal estate within any of the dominions, plantations and colonies belonging to her Majesty (except Scotland and Ireland). The Lord Chancellor sitting in lunacy has no power over lands in Ireland, Re Dmies, 3 M. & G. 278. LVII. And be it enacted, that the powers and authorities given by this Act to the Lord Chancellor of Great Britain, intrusted as aforesaid, shall and may be exercised in like manner by and are hereby given to the Lord Chancellor of Ireland, mtmsted as aforesaid, with respect to all lands and personal estate in Ireland. LVII I. And be it enacted, that in citing this Act in other Acts of Par- liament, and in legal instruments and in legal proceedings, it shall be sufficient to use the expression " The Trustee Act, 1860." LIX. And be it enacted, that this Act shall come into operation on the first day of November, one thousand eight hundred and fifty. LX. And be it enacted, that this Act may be amended or repealed by any Act to be passed in this session of Parliament. TRUSTEE EXTENSION ACT, 1852. 15 & 16 Vict. c.'55. An Act to extend the Provisions of "The Trustee Act, 1850." [30th June, 1852]. See, as to applications at chambers under this Act, Ord. 35, r. 1. Wheseas it is expedient to extend the provisions of the "Trustee Act, I860," be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal,, and Commons, in this present Parliament assembled, and by the autho- rity of the same, I. That when any decree or order shall have been made by any Court of eqnity directing the sale of any lands for any purpose whatever, every person seised or possessed of such land, or entitled to a contingent right therein, being a party to the suit or proceeding in which such decree or order shall have t>een made, and bound thereby, or being otherwise bound by such decree or order, shall be deemed to be so seised or possessed or entitled (as the case may be) upon a trust within the meaning of the " Trustee Act, 1850 ;" and in every such case it shall be lawful for the Court of Chancery, if the said Court shall think it expedient for the pur- pose of carrying such sale into effect, to make an order vesting such lands or any part thereof, for such estate as the Court shall think fit, either in any purchaser or in soch other person as the Court shall direct ; and every such order shall have the same effect as if such person so seised or pos- 496 Tkustee Extension Act. sessed or entitled had been free from all disability, and had duly executed all proper conveyances and assignments of such lands for such estate. A decree made before the passing of this Act for sale for payment of debts and other purposes is within the operation of this clause. Wake v. Wake, 17 Jur. 5*5. See note to sect. 29 of the Trustee Act, 1850. See Hancock v. Spittle, cited in note to Trustee Act, 1850, s. 20. II. That sections numbered seventeen and eighteen in the Queen's printer's copy of "The Trustee Act, 1850," be repealed; and in every case where any person is or shall be jointly or solely seised or possessed of any lands or entitled to a contingent right therein upon any trust, and a demand shall have been made upon such trustee by a person entitled to require a conveyance or assignment of such lands, or a duly authorized agent of such last-mentioned person, requiring such trustee to convey or assign the same, or to release such contingent right, it shall be lawful for the Court of Chancery, if the said Court shall be satisfied that such trustee has wilfully refused or neglected to convey er assign the said lands for the space of twenty-eight days after such demand, to make an order vesting such lands in such person, in such manner and for such estate as the Court shall direct, or releasing such contingent right in such manner as the Court shall direct ; and the said ordei- shall have the same efiect as if the trustee had duly executed a conveyance or assignment of the lands, or a release of such right, in the same manner and for the same estate. See, as to the di6Bculty before this enactment arising from reAisal to surrendei copyholds, Rowley v. Adams, 14 Beav. 130, cited in note to Trustee Act, 185U, s. 19. This section renders a tender of a deed unnecessary. Vendor refusing to convey a trustee under this section, Warrender v. Faster, cited in note to Trustee Act, 1850, s. 50. III. That when any infant shall be solely entitled to any stock upon any trust, it shall be lawful for the Court of Chancery to make an order vesting in any person or persons the right to transfer such stock, or to receive the dividends or income thereof; and when any infant shall be entitled jointly with any other person or persons to any stock upon any trust, it shall be lawful for the said Conrt to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, either in the person or persons jointly entitled with the infant, or in him or them together with any other person or persons the said Conrt may appoint. This section is said to have been framed in consequence of sect 22 of the Trustee Act, 1850, having been held not to apply to an infant out of the jurisdiction, Cramer v. Cramer, 16 Jur. 831 ; 5 De G. & Sm. 312. The right to transfer vested in the executors of a deceased trustee of stock standing to the joint account of him and his infant cestui que trust, Sanders v. Honier, 25 Beav. 467 ; 6 W. R. 476. In Devog v. Devoy, 3 Sm. & G. 403 ; 3 Jur., N. S. 79, where the plaintiff sought by bill the re-transfer of stock which he had some years before trans- ferred into the names of himself, wife and child, the child was held a trustee under this section. IV. That where any person shall neglect or refuse to transfer any stock, or to receive the dividends or income thereof, or to sue for or recover any chose in action, or any interest in respect thereof, for the space of twenty- eight days next after an order of the Conrt of Chancery for that purpose ehall have been served upon him, it shall be lawful for the Court of Chan- Teustee Extension Act. 497 eery to make an_ order vesting all the right of such person to transfer such stock, or to receive the dividends or income thereof, or to sue for and re- cover such chose in action, or any interest in respect thereof, in such person or persons as the said Ckrart may appoint. See Maeltmzie v. Mackenzie and Re Hartnall, cited in note to sect. 23 of the Trustee Act, 1850. See Re Ellis, cited in note to sect. 2 of the Trustee Act, 18Sa Semble, order under this section may be made on motion, Re Holbrook's Will, 8 W. R. 3, cited in note to sect, 43 of the Trustee Act, 1850. V. When any stock shall he standing in the sole name of a deceased person, and his personal representative shall refuse or neglect to transfer such stock or receive the dividends or income thereof for the space of twenty-eight days next »fter an oi-der of the Court of Chancery for that purpose shall have been served upon him, it shall be lawful for the Court of Chancery to make an order vesting the right to transfer such stock, or to- receive the dividends or income thereof, in any person or persons whom the said Court may appoint. VI. When any order being or purporting to be under this Act, or under the Trustee Act, 1850, shall be made hy the Lord Chancellor, inti-usted as aforesaid, or by the Court of Chancery, vesting the right to any stock, or vesting the right to transfer any stock, or vesting the right to call for the transfer of any stock, in any person or persons, in every such case the legal right to transfer such stock shall vest accordingly ; and the person or persons so appointed shall be authorized and empowered to execute all deeds and powers of attorney, and to perform all acts relating to the transfer of such stock into his or their own name or names, or otherwise, to the extent and in conformity with the terms of the order ; and the Bank of England, and all companies and associations whatever, and all persons, shall be equally bound and compellable to comply with the requisitions of such person or persons so appointed as aforesaid, to the extent and in con- formity with the terms of such order, as the said Bank of England, or such companies, associations or persons, would have been bound and com- pellable to comply with the requisitions of the person in whose place such appointment shall have been made. See, before this enactment. Re Smyth's Settlement, cited in note to sect. 35 of . the Trustee Act, 1850. VII. That every order made or to be made, being or purporting to be made under this or the Trustee Act, 1850, by the Lord Chancellor, intrusted as aforesaid, or by the Court of Chancery, and duly passed and entered, shall be a complete indemnity to the Bank of England, and all companies and associations whatsoever, and all persons, for any act done pursuant thereto ; and it shall not be necessary for the Bank of England, or such company or association, or person, to inquire concerning the propriety of such order, or whether the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, hadjurisdiction to make the same. VIII. That when any person is or shall be jointly or solely seised or possessed of any lands or entitled to any stock upon any trust, and such person has been or shall be convicted of felony, it shall be lawful for the Court of Chancery, upon proof of such conviction, to appoint any person to be a trustee in the place of such convict, and to make an order for vest- ing such lands, or the right to transfer such stock, and to receive the dividends or income thereof, in such person to be so appointed trustee ; and such order shall have the same effect as to lands as if the convict trustee c. K K 498 Trustee Extension Act. had been free from any disability, and had duly executed a conveyance or assignment of his estate and interest in the same. IX. That in all eases where it shall be expedient to appoint a new trustee, and it shall be found inexpedient, difficult or impracticable so to do without the assistance of the Court of Chancery, it shall be lawful for the said Court to make an order appointing a new trustee or new trustees, whether there be any existing trustee or not at the time of making such order. Removes the difficulty in Re Tyler and Re Hazeldine, cited in note to sect. 32 of the Trustee Act, 1850. See Davis v. Chanter, cited in the same note. X. In every case in which the Lord Chancellor, intrusted as aforesaid, has jurisdiction under this Act, or the Trustee Act,. T850, to order a convey- ance or transfer of land or stock, or to make a vesting order, it shall be lawful for him also to make an order appointing a new trustee or new trustees, in like manner as the Court of Chancery may do in like cases, ■without its being necessary that the order should be made in chancery as well as in lunacy, or be passed and entered by the Registrar of the Court of Chancery. See, as to the jurisdiction in chancery and lunacy respectively, notes to sect. 3 of the Trustee Act, 1850, and Volans v. Carr, and other cases cited in noteto-Ord. 3*, i. T, Where the legal estate in mortgaged lands vested in an infant lunatic heir, it was held that the order declaring him a trustee might be made without resort to the jurisdiction in lunacy, Re Arrowsmith, 6 W. R. 642 ; i Jur., N. S. 1123. But where a trustee, alleged to be a lunatic, is not under any other dis- ability the jurisdiction is in lunacy not in chancery, and therefore cannot be exercised by the Court of Chancery of Lancaster, Re Ormerod, 3 De G. & J. 249; 28 L. J. 55 ; 4 Jur., N. S. 1289; 7 W. R. 71. Appointment under one petition in lunacy and chancery of new trustee where one trustee was of unsound mind, another" resident abroad, and another deceased, Re Stewart, 8 W. R. 297. Order appointing new trustees in place of a retiring trustee and trustee reported lunatic, entitled both in lunacy and chancery, Re Davidson, 20 L. J. 644. See Re Bloomar, cited in note to sect 30. XI. That all the jurisdiction conferred by this Act on the Lord Chan- cellor, intrusted by virtue of the Queen's sign manual with the care of the persons and estates of lunatics, shall and may be had, exercised, . and performed by the person or persons for the time being intrusted, as aforesaid. See note to sect. 3 of the Trustee Act, 1852. XII. That this Act shall be read and construed according to the defi- nitiflns and interpretations contained in the second section of the Trustee Act, 1850, and the provisions of the said last-mentioned Act (except so far as the same are altered by or inconsistent witli this Act) shall extend and apply to the cases provided for by this Act, in the same way as if this Act had been incorporated with and had formed part of the said Trustee Act, 1850. XIII. That every order to be made under the Trustee Act, 1850, or this Act, which shall have the effect of a conveyance or assignment of any lands, or a transfer of any such stock as can only be transferred by stamped deed, shall be chargeable with the like amount of stamp duty as it would have been chargeable with if it had been a deed executed by the person or persons seised or possessed of such lands, or entitled to such Infants' Settlement Act. 499 stock ; and every such order shall be duly stamped for denoting the pay- ment of the said duty. In Re Thomas, 22 L. J. 852, on petition of committee of lunatic mortgagee, an order was made for revesting the estate vested in him at his cost, except the cost of the stamp. INFANTS' SETTLEMENT ACT. 18 & 19 Vict. c. 43. A.n Act to enable Infants, with the approbation of the Court of Chancery, to mahe binding Settlements of their Real and Personal Estate on Marriage. [2nd July, 1855.] "Whereas great inconveniences and disadvantages arise in consequence of persons who marry during minority being incapable of making binding settlements of their property ; for remedy whereof be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parlia- ment assembled, and by the authority of the same as follows : I. From and after the passing of this Act it shall be lawful for every infant upon or in contemplation of his or her marriage, with the sanction of the Court of Chancery, to make a valid and binding settlement, or con- tract for a settlement, of all or any part of his or her property, or property over which he or she has any power of appointment, whether real or per- sonal, and whether in possession, reversion, remainder or expectancy; and every conveyance, appointment and assignment of such real or personal estate, or contract to make a conveyance, appointment or assignment thereof, executed by such infant, with the approbation of the said Court, for the purpose of giving effect to such settlement, shall be as valid and effectual as if the person executing the same were of the full age of twenty-one years : provided always, that this enactment shall not extend to powers of which it is expressly declared that they shall not be exercised by an infant. II. Provided always, that in case any appointment under a power of appointment, or any disentailing assurance, shall have been executed by any infant tenant in tail under the provisions of this Act, and such infant shall afterwards die under age, such appointment or disentailing assur- ance shall thereupon become absolutely void. III. The sanction of the Court of Chancery to any such settlement, or contract for a settlement, may be given, upon petition presented by the infant or his or her guardian, in a summary way without the institution of a suit ; and if there be no guardian, the Court may require a guardian to be appointed or not as it shall think fit ; and the Court also may, if it shall think fit, require that any persons interested, or appearing to be in- terested, in the property should be served with notice of such petition. IV. Provided always, that nothing in. this Act contained shall apply to any male infant under the age of twenty years, or to any female infant under the age of seventeen years. See, as to evidence on applications under this Act, Reg. 20 of 8th Aug. 1857, ante, p. *45. Draft disentailing assurances and settlement not drawn by one of the con- vevancing counsel of the Court were sent to chambers. The Court sanctioned KK2 500 Acts to amend the Law of Pkopeett, etc. the insertion of a name and arms clause, but not (so far as the infant was con- cerned) a 4:lause restraining Roman Catholics from taking under the settle- ment, Re Williams, 8 W. R. 678. In a proposed marriage of infant ward of Court, semble, a petition should be prisented for a reference to chambers to approve of the settlement, and then a second petition (entitled in the matter of the Act and in the suit) to sanction execution of the settlement, Re Yates, 7 VV. R. 711. Reference directed to approve of a proper settlement without inquiry as to the propriety of the marriage, Re Dalton, 6 De G., M. & G. 201 ; 2 Jur., N. S. 1077 ; 25 L. J. 751 j 4 W. R. 793. The Court will make a reference to ap- prove of a proper settlement where there is proper evidence of the propriety of the proposed marriage ; quare, whether, in the absence of such evidence, the reference will be made without inquiry as to the propriety of the marriage, Re Strong, on appeal, 26 L. J. 64 ; 2 Jur., N. S. 1241. Whether the petition ex. 533 LUNACY, JURISDICTION IN, 255. See Tntstee Act. LUNATICS. See Ummnd Mind. MAINTENANCE, daring suit, 264>-6 applications for 'at chatabeTE^ 272 of infants. See lifani. of lunatics. Se^ Unsmtnd iRnd. reference for, in decree, 272 MARKING, bills, [SO] Record and Writ Clerk's certificate, [30] notices of motions, and petitions not in any cause, and petitions and motion papers under the stat. 13 & 14 Vict. c. 35, IS. 19, and orders thereon, [31] date of order to amend and of amend- ment on record, [39] order for payment with date on which it was left for entry, [91] petition under the act relating to leases and sales of settled estates, [HI] MARRIAGE, ABATEMENT ON, 237 MARRIED WOMEN. See Women. MASTER OF REPORTS AND EN- TRIES, 437 MASTER OF THE ROLLS, additional chief clerk of, Ixxvi, 504 MASTERS IN CHANCERY, 261 Abolition AcL See Index of Statutes, 15 & 16 Vict. c. 80. jurisdiction transferred to Judge at chambers, 261, 504 saving of orders as to, [1] judge in chambers to have powers of, [116] evidence before, 284 MATTER, enforcing orders in, 186 MEETINGS of Registrars, [17] of Chief Clerks, [17] MEMORANDUM of service of copy of bill, 91, [44] MESSENGER to compel appearance, [44] MINUTES OF DECREE, [16] 15 appeal from decree in minutes, 15 MISJOINDER OF PLAINTIFFS, 51 in suits against eoiApanies, 51, 52 MONTH, meaning of the word, [122] MORTGAGE, sale instead of foreclosure, 276 MORTGAGEE, with reference to the Settled testates Acts, 355, 358 production of deeds by, 378 MOTIONS, appeal motions. See JppecU. Consolidated Order as to, Ord. XXXIII. [99] before appearance, 77 effect of omission in, 196 1. Notices of Motion, [9&] notices of motion must name the Judge, .[99] time for service of notice of motion, [99] for a guardian to defend suit, [99] title of, 243 by special leave^ 243 short notice of motion, 301 where the motion seeks costs, 248 where irregularity is the ground of the motion, 243 time for service of, [99] 244 before appearance, 244 where necessary, 244 demurrer after, 244 variance of affidavit of service from, 245 served on former solicitor, 245 2. Motion for Decree under the Stat. 15 ^ 16 Vict. c. 86, s. 15, [99] notice, [99] piaiiJLtiS''s affidavits, [99] defendant's affidavits, [99] plaintiff's affidavits in reply, [99] costs, [100] further evidence, [100] entering of notices of motion, [100] after traversing note, 108, 246 appeal from decree made on, [96] amendment of bill, after notice of, 66, 136, 249 motion for injunction converted into, 246 nature of, 245 dismissed after notice of motion for decree, 255 right to move for decree suspended, where time for pleading, Stc, ex- tended, 245 voluntary answer after notice of, 246 notice oti served out of the jurisdiction, 246 as short cause, 246 replication on, 246 declaration of right on, 246 634 Index. UOTlOaS—cmtiriued. against additional party, 246 according to prayer of bill, 246 evidence on, 247-8 answer read on, 247 certificate for hearing, 246, 249 amendment after, 249 list of motions, [100] order of hearing, [lOOJ time to file afiidavits on, [123] memorandum of notice of, 466 3. Motions to dismiss Bills, [100]. See Amendment, Dismissal. when order to amend has not been acted on, [101] time for motion to dismiss for want of prosecution, [101] where bill amended after answer, and no answer required to amendments, [101] where no answer required or put in, [101-2] with or without costs, 249, 254 bill for discovery, 249 suit for receiver, 249 decree for inquiries, 294 against some of the defendants, 249, 250, 254 when to be made, 250, 307 when defendant insolvent, 250 pending exceptions, 250 pending leave to amend, 250 pending reference, 250 tender of costs after notice of, 250 where plaintiff outlawed, 250 replication after notice of, 250-1 for non-service of subpoena to hear judgment, 251 further time after, 251, 254 after undertaking to reply, 251 where answers outstanding, 252 on certificate of answer filed, 252 during time for cross-examination, 253 after time enlarged for setting down,253 after order to amend, 253 for defendants to answer amend- ments, 254 by defendants not served with subpoena to answer, 254 where plaintiff cannot set down the cause, 254 after voluntary answer, 254 after notice of motion for decree, 255 4. Motions generally, motion papers under the stat. 13 & 14 Vict. c. 35, s. 19, how marked, [31] motions in causes before whom made, [31] costs of abandoned motion, [132], 244, 316, 32S, 335 MOTIO'SS— continued. abandoned appeal motion, 231 saving, 173 of course, 243 to enrol decree. See Inrolment. for plaintiff to elect. See Election. to review taxation. See Taxation, under Settled Estates Act, [141] to commit for contempt. See Contempt. time to file afiidavits on, 137, 139 not in a cause, how marked, [31] examination of witnesses on, 153 what decided on, 243 for injunction abandoned by amending, 243 in patent suit, affidavit on, 243 served pending demurrer, 241 costs of, given to a person not served, 243 where more than one unnecessary, 243 rules as to costs of, 243-4 cross-examination on affidavits on, 244 in absence of respondent's counsel, 244 granting, on affidavit of service, 245 evidence on, 120, 137, 139, 163, 243 NE EXEAT, copies of affidavit in cases of, [119] bills for, may be written, 62 when granted, 102 NEW FACTS AND CIRCUMSTANCES. See Supplemental Statement. NEW TRIAL, of issue at law, [33] under the Chancery Amendment Act, 1858, [148-9] NEXT FRIEND, of married woman, 57, 58, 319 of infant, 319 suit without, by married woman, 57 description of, in bill, 63 NOTARY, oaths administered by, 35, 37 NOTICE. See Evidence, Motion, Order, Service. to be served by and upon solicitors and parties acting in person, [24] of change of solicitor, [25] by paupers, [35] of appearance, answer, demurrer, plea, or replication, [27] effect of default of notice, 34 of application that a solicitor be as- signed as guardian of infant or per- son of unsound mind, [33] of motions not in any cause, how marked, [31] Index. S35 NOTICE— conWrnieA of the consequences of not appearing pursuant to an order, [42] to solicitor of suitors' fund of applica- tion to discharge prisoner, or of order for such discharge, or of order of inquiry as to poverty, and of sum- mons thereon, [49] of further consideration of cause, [67] of decree under 15 & 16 Vict. c. 86, s. 42, r. 8, [80] of claims and of affidavits in support, [112] to trustee of application hy cestui que trust, or vice versS, [139] under the act relating to the leases and sales of settled estates, [1*1] to admit documents, [146] of application for a new trial, [148] of inquiry, [148] fees for notices, [210] time for serving notice of motion. See Motion, for guardian, [99] for decree, [99] publication of notices, 163, 164 of appeal, of decree, 45, 47 of filing pleadings, 36 exceptions, 34 replication, 34 time for serving, 34 to representative of sole plaintiff to revive, [98] of using affidavit or depositions at the hearing, [64] of motion must name the Judge, [99^ NUMBERS in cause hooks to be written on docu- ments, [21] OATH, Commissioners to administer, [27] administered by Chief Clerk, 271 mode of administering, [64] where plea put in on, [52] of jurors, [147] of witnesses in case of trial or inquiry by jury, [147] of usher, [148] fees and charges for, [211] OFFICE COPIES. See Copies. OFFICE ROUTINE. See Officers of the Court, Official Attendance and Vaca- ti' ns. saving of orders as to, [2] Order of 27th July, 1852, as to, [231] OFFICERS OF THE COURT, [7-22]. See Accountant-General, ^c. Consolidated Order as to, Ord. I. [7] OFFICIAL ATTENDANCE, [28] Consolidated Order as to, Ord. V. [28] OPERATION of orders, [4] where there is no variation of lan- guage, [4] where there is variation, [4] OPINION, JUDICIAL, 501-2 ORDER OF HEARING. See Hearing. ORDERS. See Decrees and Orders,General Orders, Consolidated General Orders, Motion, Notice, Service. to be served by and upon solicitors and parties acting in person, [24] marking of, [31] orders of course, applications foi-, [32] applications to discharge, reverse, or alter, [32] 42 at the Rolls, [79J 190 applications for special orders during vacations, [32] rehearing same, [32] applications to stay proceedings on decree or order appealed from, [32] for payment, how marked, [91] entering of orders made in chambers, [Ul] in chambers. See Chambers. settling and passing. See Decrees. forms of. See Forms- made by wrong Judge, 41 obtained by suppression. See Petition. ORE TENUS demurrer. See Demurrer. OUTLAWRY, plea of, [52] 111 amendment of plea of. 111 plea of, when valid, 112 how pleaded, 112 effect of outlawry of plaintiff, 112, 250 effect of reversal of outlawry, 112 objection of, at the hearing, 112 PALATINE COUNTY. See Counties Palafine,'Lancaster. PARLIAMENT, privilege of. See Pri- vilege. applications to, with reference to the Settled Estates Acts, 361 [141] PARTIES. See Administration, Heir at Law, Misjoinder, Plaintiff, Represen- tative. Consolidated Orders as to, Ord. III. [24] and Ord. VII. [33] SS6 JjfPE?:.. PARTIES— cim,.Ord. XVII., [60] notice of, [27] effect of default of notice, 34t no exception for insufficiency after, [57] time for filing, computation of, [122] only one, [60] even where no answer, [60] form of, [60] amendment after, [39] advertising, 157 filed by mistake, 136 amendment after, 136 after interrogatories struck. out, 135 when necessary, 135 to answer to bill of revivor, 135 effect of not filing, [100] [101] 135 withdrawal of, 71 to a plea, [100] after notice of motion to dismiss, 250-1 omission of, 161 ! revivor before, 135 ' supplemental answer sfler, 135 withdrawn, amendment after, 68, 71 in case of motion for decree, 135,246 further replication, 135 REPORT OFFICE, 15 REPORTS, indexes to reports and exceptions to reports, [20] 542 Index. REPORTS— c