The practice of the Court of Chancery for Ontario [microform] : with some observations on the pleadings in that court

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THE

PRACTICE

OK

THE COURT OF CHABCERY

FOK o:^rTARio.

WITH

SOME OlSSERVATIONS ON THE PLEADINGS

IN THAT CO\j^gQ^,.cQyE DE DROii. ,

U.dU :/ .\i
WILLIAM LEGGO, '

OK OSGOOD].; IIAI.I., HARRISTKR-AT-LAW, late MASTKK at HAMILTON.

o.u.

I]

IIsT T"WO VOIiTJnSdIIES

Vol. II.

^'I Cflii^*^ ^'^'ii: ,^^*V
'■'■liirii u> '/■

^ BARRISTER, &c.

.^. •^,

■^^toii-. o^-^"'

HAMILTON AND TORONTO.
PUBLISHED FOR THE SUBSCRIBERS.

1876.

,•7

\\

■d

EXPLANATION

OK

ABBREVIATIONS USED IN REFERENCES TO ENGLISH,
SCOTCH, IRISH & CANADIAN LAW BOOKS, Ac.

A. (a.) B. (b.) A. front, B. back of a leaf

A. An. Anon Anonymous

A. B Anonymous, at the end of Bendloe, Rep. 1661

Ab. Sh Abbot's Shipping

Abr. Ca. Eq Abridgment of Cases in Equity

A. C Appeal Court, Chancery

Ace. or Ag. or Agr Accord or agrees

Act Acton's Reports, Prize Causes

Act. Reg Acta Regia

Ad. Con Addison's Contracts

Ad. Torts Addison on Torts

Ad. & E Adolphus and Ellis's Reports, K.B.

Add. E. R Addams's Ecclesiastical Reports

Ad. E Adams on Ejectment

Adm Admiralty

Al Aleyn's Reports, K. B. *

Al. Si Nap Alcock and Napier, K. B., Ireland

Ale. Reg. C Alcock's Registry Cases, Ireland

Alison, Prac Alison's Practice of the Criminal Law of Scotland.

Alison, Princ Alison's Principles of ditto

Amb Ambler's Reports, Chancery

And Anderson's Reports, C. P.

Andr Andrew's Reports, K. B.

Annaly* Reports, time Hardwicke, K. B.

Anst Anstruther's Reports, Exch

A. P. B. Ashurst, MSS. L.I.L Ashurst, T., Paper Book (a)

Arch. B, L, Archbold s Bankrupt Law

Arch. Cr. L Archbold's Criminal Law

Arch. J. P Archbold's Justice of the Peace

Arch. P. by Ch Archbold's Practice, by Chitty

Arch. Sum Archbold's Summary of the Laws of England

Arkley Arkley's Justiciary Reports, Scotland

Arms. M. & O Armstrong, Macartney, & Ogle's Reports, N.jP., Ire'd

A. S. or Act. of Sed Act of Sederunt, Court of Session

Ass Assise (Book of)

Ast. Ent Aston's Entries

Atk Atkyn's Reports, Chancery

(a) These MSS. consist of the paper books of Ashurst, J., Buller, J., Lawrence, J., and Dumpier,
J., in an uninterrupted series from T. T. 9 Geo. Ill,, to M. T. 6« Geo. III. They are in Lincoln's Inn
Library, and are referred to in Selwyn's Nisi Prius as P. B. Dampier, MSS. L. I. L., preceded by the
initial of the Judge.

1 A

31!

* »

, IT

• I •

Vlll

EXPLANATION OF ABBREVIATIONS.

Auth Authentica {d)

Ayl. Pan Ayliffe's Pandects

Ayl. Par Ayliffe's Parergon Juris

Bac. Abr Bacon's Abridgment

B. & A. or Bam. & Aid Barnewell and Alderson's Reports, K. B.

B. & Ad. or Barn. & Adol Barnawell and Adolphus's Reports, K. B.

B. & C. or Bam. & Cress Barnewall and Cresswell's P«.eports, K. B.

B. C. C Bail Court Cases, Lowndes and Maxwell

B. C. R Bail Court Reports, .Saunders and Cole

B. & J Bankruptcy and Insolvency Cases, 1855

B. M Moore's Reports, Common Pleas

Balf. Balfour's Practicks of the Law of Scotland

Ball & B Ball and Beatty 's Reports, Chancery, Ireland

Banc. Sup Upper Bench

Bank I Bankton's Institutes of the Law of Scotland

Bar. & Am Barron and Arnold's Election Cases

Bar. & Ausl Barron and Austin's Election Cases

Barn. K. B Barnardiston's Reports, K. B.

Bam. C Barnardiston's Reports, Chancery

Barnes Barnes's Notes, C. P.

Batt Batty's Reports, K. B., Ireland

Bayl. B Bayley on Bills

Beat Beatty's Chancery Reports, Ireland

Beav Beaven's Reports, Rolls Court

Beaw Beawes's Lez Mercatoria

Bel Bellewe's Reports, K. B.

Bel. App Bell's Cases on Appeal from Scotland

Bell Comm Bell (G. J.), Commentaries on the Law of Scotland

Bell Illust Bell (G. J.), Illustrations of Principles

Bell. Prin Bell (G. J.), Principles of the Law of Scotland

Bell C. (folio and 8vo.) Bell (R.), Cases, Court of Session

Bell's C. C Bell's Crown Cases

Bell C. T Bell (R.), on Completing Titles, Scotland

Bell's Diet Bell, (R. ), Dictionary of the Law of Scotland

Bell L Bell (R. ), on Leases, Scotland

Bell Styles Bell ( R. ), System of the Forms of Deeds of Scotland

Bell T. D Bell, (R.), on the Testing of Deeds, Scotland

Benl. Bendl Benloe or Bendloe's Reports, K. B.

Benl . & Dal Benloe and Dalisen's Reports, C. P.

Bing Bingham's Reports, C. P.

Bing. N. C. Bingham's New Cases, C. P.

B. Tr Bishop's Trial . *

Bl Blount

Bl. D. & Osb Blackham, Dundas & Osbortie's Reports, N.P. , Ire'd

Bl. R Mr. Justice Blackstone's Reports

Black., W Sir W. Blackstone's Reports, K. B.

Black., H Henry Blackstone's Reports, C.P.

Bla. Com Blackstone's Commentaries

Bli Bligh's Reports, House of Lords

Bli. N. S Bligh's Reports, New Series

B. N. C Brook's New Cases, K. B.

B. N. P Buller's Nisi Prius

B. P. B Paper Book of Buller (c)

B. & P. or Bos. & Pul Bosanquet and Puller's Reports, C.P.

Bo. R. Act Booth's Real Actions

B. R. H Cases h'/fi/>. Hardwicke, K. B.

(&) This is a Summary of some of the Emperor's Novel Constitutions, wnich are inserted in the codo
under this title. It must not be confounded with the Novella Con«(itu<iones promulgated by Justinian
in the Greek language, and subsequently translated into the Latin, under the name of the Authentiea.
Example of citation, Auth. 9, 9, 20, -Authentica, Collation 9, title 9, novel 20.

(c) See ante, note (a^ p. i.

* EXPLANATION Ol' ABHREVIATIONS. ix

t

Bos. & P. N. R Hosanquet and Puller's New Reports, C. P.

Bott Bolt's Poor Laws

Br Alexander Eruce's Reports, Court of Session

Br. Bro Brooke, Bro vne, Brownlow

Br. Brev. Jud. & Ent Brownlow B evia Judicialia, &c.

Br. N. C Brooke's New Cases, K. B.

Brae Bracton de Legibus

Bridg Bridgman's h eports, C. P.

Bridg. O Orlando Bridj jman's Reports, C. P.

Bright. H. & W Bright's Husl and and Wife

Bro. Ah Brooke's Abr dgment

Bro. Ent Brown's Entr es

i^ro. .Stair Brodie's Notes. & Suppl. to Stair's Institutions, Sctl'd.

Bro. S Brown's Treatise on Law of Sale, Scotland

Bro. C. C Brown's Chancery Reports (Eden or Belt)

Bro P. C Brown's Parlit ment Cases

Bro. Supp Brown's Suppl, Morrison's Diet. Court of Session

Bro. Syn Brown's Synopsis of Deci'-'.ons, Court of Session

Bro. V. M Brown's Vade Mecum

B. & B. or Brod. & B Broderip and lingham's Reports, C. P.

Broun Broun's Justiciary Reports, Scotland

Brownl. Redv. or Ent Brownlow's Relivivus

Brownl Brownlow and (iouldesborough's Reports, C. P.

B. or C. B Common Bench

B. R King's Bench

B. & S Best & Smith's ileports, Q. B.

Buck Buck's Reports in Bankruptcy

Bull. N. P Buller's Nisi Prius

Bulst Bulstrode's Reports, K. B.

Bunb Bunbury's Reports, Ex.

B. Just Burn's Justice

B. Eccl. L Burn's Ecclesiastical Law

Burr Burrow's Reports, K. B.

Burr. S. C Burrow's Settlement Ca.ses

Bynk Bynkershoek

Byth. Pr Bythewood's Precedents

C Codex (Juris Civilis)

(. u \ Common Bench Reports, or Manning, Granger, and

^' ^ / Scott's Reports

C. B. , N. S Common Bench Reports, New Series

C. C Cases in Chancery or Crown Cases

C. C. A County Court Appeals

C. C. R Crown Cases Reserved

C. L. R Common Law Reports

C. & J. or Cromp. & J Crompton & Jervis's Reports, Ex.

C. & M. or Cromp. & M Crompton & Meeson's Reports, Ex.

C. M. & R. or Cromp. M. & R. . .Crompton, Meeson, & Roscoe's Reports, Ex.

C. S Court of Session, Scotland

C. T. N Cases in the time of L. C. Northington

Ca. temp. F Cases temp. Finch

Ca. temp. Holt Cases in the time of Holt, C. J., K. B.

Ca. temp. H Cases time Hardwicke, K. B.

Cald Caldecott's Reports, K. B.

Ca Case, or Placita

Ca. t. K Cases time King, Chancery

Cai Caii, or Gaii Institutiones

Cal Callis

Calth Calthorpe's Reports, K. B.

Cam. Scacc Camera Scaccarii, Exchequer Chamber

Camp. N. P Campbell's Reports, Nisi Prius

11=

I-
it

a I

0 >
! -4
i J

EXPLANATION OF ABBREVIATIONS.

C. & K. or Car. 4 Kir Carrington and Kirwin Reports, N. P. ,

C. L. J., N. S Canada Law Journal, New Series

Car. &, M Carrington and Marshman

Car. H. & A Carrow, Hamerton, and Allen, Session Cases

C. & P. or Car. & P Carrington & Payne Reports, N. P.

Carp. P. C Carpmael's Patent Cases

Cart Carter's Reports, C. P.

Cary Carey's Reports, Chancery

Carth Carthew's Reports, K. B.

Cas. t. Talb Cases time Talbot, Chancery

Cas. Pra. C. P Cases of Practice Common Pleas

Cas, B. R Cases /««/. Will. 3 (12 Mod.)

Cas. L. Eq Cases in Law and Equity ( 10 Mod. )

Cas. Six. Cir Cases on the Six Circuits, Ireland

C. P Common Pleas

C. L. P. Act Common Law Procedure Act

C. Theod Codex Theodosiani

Ca. P. or Pail Ca.ses in Parliament

Ca. C . L Cases in Crown Law

Ca. Pra. K. B Cases of Practice in King's Bench

Cawl Cawley

Ch. Cas Cases in Chancery

Ch. Cas. Ch Choice Cases in Chancery

Ch. Pre Precedents in Chancery «

Ch. R Reports in Chancery

Cham. R Chamber Reports, Ontario

Chris. B. L Christian's Bankrupt Law

Ch. Bums' J Chitty's Burns' Justice

Ch. PI Chitty on Pleading

Ch. Crim. L Chitty's Criminal Law

Ch. Bills Chitty on Bills

Chit. Con Chitty on Contracts

Chit. Rep Chitty's Reports, Bail Court

Chit. G. P Chitty's General Practice

Chit. Jun. B Chitty, Jun., on Bills

CI. & Fin Clark and Finnelly Reports, House of Lords

Cl. Ass Clerk's Assistant

Clay Clayton's Reports, York A5>size

Clift Clift's Entries

Co Coke's Reports

C, Cod., or Cod. Jur. Civ Codex (Juris Civilis,) Justinian Codex

Co. Cop Coke's Copyholder

Co. Ent Coke's Entries

Co. Lit Coke on Littleton (i Inst.)

Co. M. C Coke's Magna Charta (2 Inst.)

Co. P. C Coke's Pleas of the Crovm (3 Inst.)

Co. on Courts Coke's 4 Inst.

Code Nap Code Napoleon

Code Civ., or C. C Code Civil Francais, or Code Napoleon

Code Comm Code de Commerce

Code P Code Penal

Code P. C Code de Procedure Civile

Col. C. C Collyer's Chancery Cases

CoUes Colles's Cases in Parliament

Coll. Jurid Collectanea Juridica

Coll. Part : Collyer on Partnership

Comb Comberbach's Reports, K. B.

Com Comyn's Reports, ¥i. B. and C. P.

Com Plowden's Commentaries

Com. Dig Comyn's Digest "

Com. Law Rep. Common Law Reports

I .

EXPLANATION OF ARBKEVIATIONS.

Con. & Law Connor and Lawson's Repoits, Chancery, Ireland

Consist Consistory Reports, Haggard

Cont Contra •

Cooper Cooper's Reports, Chancery

Co. Rep Coke's Reports, K. B. ' '

Cooke B. L Cooke's Bankrupt Laws

Coop. t. Brough Cooper's Cases temp. Brougham

Coop Cooper (G.,) Chancery

Coo. & Al Cooke and Alcock's Reports, K. B., Ireland

Corb. & D Corbett and Danicll, Election Cases

Cot Cotton **

Cowp Cowper's Reports, K. B.

Cox Cox's Reports, Chancery . ,

Cox C. C Cox's Criminal Cases

C'r Craig, Jus Feudale, .Scotland

Cr. & Ph Craig and Phillips. Chancery

Cr. & St Craigie and Stewart's Reports, House of Lords

Craw. & D Crawford and Dix's Circuit Cases, Ireland

Craw. & D. Ab. C Crawford and Dix's Abridged CascK, Ireland

Cro. (I, 2, 3) Croke (Eliz. Jam. Cha.), K. B. and C. P.

Cro. sometimes refers to Keilwey's
Reports, published by Serj. Croke.

Cromp. Crompton on Courts

Cru Cruise's Digest

Cunn Cunningham's ReportJ, K. B.

Curt Curteis's Ecclesiastical Reports

D Dictum, Digest (Juris Civilis)

D. or Dig justiniani Digestoe, sive Pandectse (</)

D. or Diet Dictionary (Morison's) Court of Session

D. & L. or Dow. & L Dowling and Lowndes, Bail Court Reports

D. & R. or Dow. & Ry Dowling and Rylnnd's K. B. Reports

D. & M Davison and Merivale Q. B. Reports

D. N. S Dowling, New Series, Bail Court Reports

D. P. B Dampier, J., Paper Book (c-)

Dal Dalison's Reports, C. P.

Dallas Dallas Styles, Scotland

Dalr Dalrym))le's Decisions, Court of Session

Dalr. F. L Dalrymple's Feudal Law

Dalt Dalton's Justice or Sheriff

D'An D'Anvers's Abridgment

Dan '..... Daniel's Reports, Ex. Eq.

Dan & LI Danson and Lloyd, Mercantile Cases

Dav Davy's Reports, Ireland

Deac Deacon's Bankruptcy Cases

D. & C. or Deac. & Ch Deacon and Chitty, Bankruptcy Reports

(d) The Dig'est or Pandects are divided into .50 Books ; each Boole is divided into Titles, and each
Title into Laws, and the Laws jfenerally into Parts or Paraijraphs. The first paragraph is not num-
bered, and is usually quoted by the abbreviation in pr. (in prineipio). The last paragraph is sometimes
quoted by the word in fine, or § uW., (paragraphtm xdtimus). The Digest is variously quoted by the
Letters D. or P., or IL, or B. S, is supposed to be a corruption of the D. with a stroke through the
middle, or perhaps of the Greek JJ.

The ancient mode of quotation was by mentionini; the initial words of the Law ar.d of the paragraph,
with the initial words of the title. This made a reference to the General Inde\ necessary, e. (j , L.
Profectitia, § Hi Pater, D. de jure dotium, or in reversed order, D. de jure dociuni L. Profectitia, §
ti Pater. Afterwards the quotation was L. Profectitia 5, § si Pater 6, /). de jure dotium ; and lat-
terly, L. 5, § 6, D. dejure dotium ; or, more correctly, using the I'-itters fr. instead of L., since the
passages were not laws, but fragments or excerpts from the writ'-.igs of the Jurisprudents, /r. 5, § 6,
D. de jure dotium. The modern mode avoids all reference to tbo words. It is thus :— fr. 5, § 6, D. 23,
3 ; or in reversed order, D. 23, tit. 3, fr. .5, § 6 ; or shortly, D. 23, 3, 5, 6, i.e., Digest, Book 23, tit. 3,
law 5, paragraph 6.

(e) See ant«, note (a.) p. i. '' '

I y

xu

EXPLANATION OF ABBREVIATIONS.

De G De Gex's Bankruptcy Reports

De ti. F. 4; J De (Jex, Fisher, and Jones's Reports, Chancery

De G. & J De Gex and Jones's Reports, Chancery

De G. J. & S De Gex, Jones, and Smith's Reports, Chancery

De G. M. & G De Gex, Macna^jhten, and Gordon's Rep. Chancery

De G. & Sni De (Jex and S.i.ale's Reports, Chancery

Dea. & Sw I >eane and Swabey's Reports, Probate and Divorce

Dears, C. C Dearslcy's Crown Cases

Dears. & B. C. C Dearsley and Bell's Crown Cases

Deas. & And Deas and Anderson's Reports, Court of Session

Degge Degfjo's Parson's Companion

Den. Cr. C Denison's Crown Cases

Di. Dy Dyer's Reports, K. B.

Dick Dickins's Reports, Chancei.y

Dick. Just Dickinson's Justice

Dig Digest of Writs

Dig. LL Digest Law of Libels

Dirl Dirleton's Decisions, (. ourt of Session

Doct. PI Doctrina Placitandi

D. & S Doctor and Student

Dod Dodson's Reports in Admiralty

Dom. Proc Donio Procerum ; House of Lords

Doug Douglas's Reports, K. B.

Dow Dow's Reports in Parliament

Dow & C Dow and Clark, House of Lords Cases

Dow. & R. M. C Dowling and Ryland's Magistrates' Case

Dow. & Ry, N. P Dowling and Ryland's Nisi Prius

Dowl. P. C Dowling's Practice Cases

Dr. & Wal Drury and Walsh, Chancery Reports, Ireland

Dr. & War Drury and Warren, Chancery Reports, Ireland

Draper Drajier's Reports

Drew Drewry's Reports, Chancery

Drew. & Sm Drewry and Smale's Reports, Chancery

Drury Drury's Reports, Chancery, Ireland

Dub Dubitatur

Duff Duff on Conveyancing, Scotland

Dudg. Orig Dugdale's Origines

Dug. S Dugdale's Summons

Duke Duke's Charitable Uses

Dunlop or D Dunlop, Bell, and Murray's Reports, Court of Session

Durnf. & E Durnford and East, or Term Reports, K. B.

Durie Durie's Reports, Court of Session

E Easter Term

E. & A. Reps Error and Appeal Reports, Ontario

E. & A. or Ecc. & Ad Eccles, and Admiralty Reports

E. of Cov Earl of Coventry's Case

Eag. & Yo Eagle and Younge's Tithe Cases

East East's Reports, K. B.

East P. C East's Pleas of the Crown

Eden Eden's Rep. of Northington's Cases, Chancery

^.dg Edgar's Reports, Court of Session

iidicta Edicts of Justinian

Edw. A. R Edward's Admiralty Reports

El. B. & S Ellis, Best, and Smith's Reports, Q. B.

El. & BI Ellis and Blackburn, Reports, Q. B.

El. B. & E Ellis, Blackburn, and Ellis's Reports, Q. B.

El. & EI Ellis and Ellis's Reports, Q. B.

Eq. Ca. Abr Equity Cases Abridged

Eq. Rep Equity Reports

Esp Espinasse's Rep. or Digest N. P.

EXPLANATION UK AIJllREVIATIONH.

xm

Exch. Rep Welsby, llurlstone, and Gordon's Reports

Exp Kxpired

F Consiietudines Keudorum

F. or Fitz. (/) Fit/Iierbert

F. B. C Fonblanque's Hankruntcy Cases

F. A F Foster and Finlayson s Reports, Nisi Frius

F". N. B Fitz-Nat. Brevium

Fac. Coll. or F. C Faculty Collection of Reports, Court of Session

F'alc F\'ilconer's Reports, Court of Session

Falc. & Fitz Falconer and Fitzherhert, Election Cases

Far Farresley (7 Mod. Rep. )

Fearne Fearne on Remainders

Ferg F'erguson's Consistory Reports, Scotland

F"f. {g) Pandectx- (Juris Civilis)

F"in Finch's Reports, Chancery

Fitz-G Fitz-Gibbon's Reports, K. B.

Fl Fleta

F'lan. & K Flanagan and Kelly's K -ports. Rolls, Ireland

Fol Foley's Poor Laws

Fol. Diet Kames and Woodhouielee, Dictionary, Court of Sesi

Fonbl Fonblanque on F' "lity

For Forrest's Repor , Ex.

For. Pla Brown's Fonaulas

Forb . F'orbes's Decisions, Court 'f Session

Forester Cases time of Ta'.bol, Cliancery

Fort, de Laud Fortescue de laudibus Anglite Legum

Fortes Fortescue's Reports, K. I>.

Fost. Forst Foster's Reports, Crown Law

Fount Fountainhall's Decisions, Court of Session

Fox & S Fox and Smith's Reports, K. B., Ireland

fr F'ragment or Excerpt, or Laws, in titles of Pandects.

Fra. M Francis's Maxims

Eraser F>aser on Personal and Domestic Relations, Scotland

Free. Chy Freeman's Chancery Reports

Freem. K. B Freeman's Reports, K. B.

G. & J Glyn and Jameson, Bankruptcy Reports

Gaii Gaii Institutionum Commentarii IV.

Gal. & Dav Gale and Davison's Reports, K. B.

Gaz. B Gazette of Bankruptcy

Gib. Cod Gibson's Codex

Gif Giffard's Report?, Chancery

Gilb. C. P Gilbert's Common Pleas

Debt Treatise on Debt

Dist Distresses

Ex Executions

Ev Evidence

Exch Exchequer

K. B King's Bench

— — R Reports

Rem Remainders

Us Uses

Gilb Cases in Law and in Equity

Gilm Gilmour's Reports, Court of Session

(/) Fitzherbert's Abridgment is commoiily referred to by the older law writers by the title and nwcom
ber of the placita only, e.g., coron. 30.

(g) This reference, which frequently occurs in Blackstone and other writers, applied to the Pandectt
or Digests of the civil law, is a corruption of the Oreeic letter jt. ^'<^ Calvini Lexicon Jurid. voe.
Digrestorum.

XIV

EXPLANATION OF ABBREVIATIONS.

Gl Glossa, a Gloss or Interpretation

• Glanv Glanville de Legibus '

Glassc Glasscock's Reports in all the Courts, Ireland

Godb Godbolt's Reports, K. B.

Godol Godolphin ' ;

Golds Goldesborough's Reports, K. B. ..,

Gosf Gosford's Reports, Court of Session ., <

Gow's N. P. C Gow's Nisi I -us Cases ' '

Grant. Rep Grant's Chancery Reports, Ontario

Gro. de J. B Grotius de Jure Belli

Gundry Gundry MSS. (A)

Gwm , Gwillini's Tithe Cases

H. or Hil Hilary Term

H. & C Hurlstoie and Coltman's Reports, Ex.

H. & N Hurlstone and Norman's Reports, Ex.

H. H. P. C Hale's Hist. Plac. Cor.

H. L. Rep., or Cas Clark and Finnelly's H. of Lords' Reps., New Series

H. P. C Hales's Pleas of the Crown

H. & W Harrison and Wollaston, K. B.

Ha. & Tw Hall and Twells, Chancery Reports

Had Earl of Haddington's Reports, Court of Session

*Hag. Ec Haggard's Ecclesiastical Reports

Hag. Con : Consistory Repo; s

Hag. Adm Admiralty Reports

Hailes Hailes's Decisions, Court of Session

Hale C. L Hale's Common Law

Hans Hansard's Entries

Hanm Hanmer's Lord Kenyon's Notes, K. B.

Hare Harcarse's Decisions, Court of Session

Hard Hardre's Reports, Ex.

Hare Hare's Reports, Chancery

Harr. Dig Harrison's Digest, all the Courts

Har. & R Harrison and Rutherfurd, C. P.

Hawk. P. C Hawkins's Pleas of the Crown

Hayes Hayes's Reports, Exch. Ireland

Hayes & J Hayes and Jones's Reports, Exch., Ireland

Hein Heineccius

Hem. & M Hemming and Miller, Chancery

Her Heme

Het Hetley's Reports, C. P.

Hob Hobart's Reports, K. B.

Hog Hogan's Reports, Rolls, Ireland

Holt Holt's Reports, K. B.

Holt N. P Holt's Nisi Prius Reports

Home (Clk) Clerk Home's Reports, Court of Session ,

Hop. & Ph : . . Hopwood and Philbrick, Regis. C.

Hope Thomas Hope's Reports, Court of Session

Hope Min. Pr Sir Thomas Hope's Minor Practicks, Scotland

Hope Maj. Pr Sir Thomas Hope's Major Practick's, Scotland

Hov. Suppl Hovenden's Supplement to Vesey, Junr.

Hud. & B Hudson and Brooke's Reports, K. B., Ireland

Hugh Hughes's Entries

Hume Com Hume's Commentaries on Crimes, Scotland

Hume Hume's Decisions, Court of Session

Hunter Hunter's Law of Landlord and Tenant, Scotland

Hut Hutton's Reports, C. P.

(h) These MSS. were purchased of Nathaniel Gundrj-, Esq., the only son of Mr. Justice Oundrjr, bj
whom the notes were taken, and will be found in Lincoln's Inn Library. ,

EXPLANATION OF ABBREVIATIONS.

XV

New Series

Imp. K. B.

C. P. .

Sh . . .

PI . . . .

, Impey's Practice, K. B.

. Practice, C. P.

. Sheriflf

. Pleader

.In fine. At the end of a title, law, or paragraph.

n F. Pr In fine principii

p i In principio. In the beginning, and before the

'^ .... I ^j.g^ paragraph of a law

ns Insurance.

2, Inst (l, 2) Coke's Inst.

nst,, I, 2, 3 Justinian's Inst. lib. i. tit. 2, sec. 3.

nst. I. 2, 31 ,. . . .Justinian's Institutes, Lib. I., tit. 2, sec. 31 (/)

r. Law & Eq Irish Law and Equity Reports, Ireland.

r. Law & Ch Irish Law and Equity Reports, Ireland, New Series,

V. Ersk Ivory's Notes on Erskine's Institutes.

Ctus Jurisconsultus

& W. or Jac. & W Jacob and Walker's Reports, Chancery

ac. or Jacob Jacob's Reports, Chancery

an. Angl Jani Anglorum

ebb C. C Jebb's Crowii Cases, Ireland

ebb & B Jebb and Bourke's Reports, K. B., Ireland

ebb & S Jebb and Synie's Reports, K. B., Ireland.

enk Jenkins's Reports, Ex,

ohn Johnson's Reports, Chancery

ohn & H Johnson and Hemming's Reports, Chancery

on. I, 2 Jones', W. and T., Reports, K. B.

ones T Jones' Reports, K. B.

ones W Jones' Reports, K. B.

ones Jones' Reports, Exch. , Ireland

ones & C Jones and Carey's Reports, Exch., Ireland

o. & Lat Jones and Latouche's Reports, Chancery, Ireland

ud Judgments

ur The Jurist Reports in all the Courts

ur. N. S Jurist, New Series

ur. (Sc. ) Scottish Jurist, Court of Session

ur. St Juridical Styles, Scotland

Just. Inst Justinian's Institutes

K. B King's Bench

K. C. R Rep. temp. King, C. Chancery

K. & G. R. C Keane and Grant's Registration Cases

Karnes Karnes's Decisions, Court of Session

Kames's Eluc Karnes's Elucidations of the Law of Scotland

Karnes's Rem. D Kames's Remarkable Decisions, Court of Session

Kames's S. D Kemes's Select Decisions, Court of Session

Kames's Tr Kames's Historical Law Tracts, Scotland

Kay Kay's Reports, Chancery

Kay & J Kay and Johnson's Reports, Chancery

Keb Keble's Reports, K.B.

Keen Keen's Reports, Rolls Court

Kel Sir John Kelyng's Reports, K. B.

Kel. 1,2 Wm. Kelynge's Rep., 2 parts. Chancery

Keilw. Kel Keil A'ey's Reports, K. B.

Ken Kennet

(0 The Institutes of Justinian are divided ' >,o four Books,— each Boole is divided into Titles, and
each Title into Paragraphs, of which the first, uescribedby the letters pr., or prijicip., is not numbered.
The old method of citing the Institutes was to eive the commencing words of the paragraph and of the
title ; eg.,%»i adver»us, Intt. de KupUia. Sometimes the number of the paragraph was introduced,
e.g., 9 12 Si advertua Inst, de Nnrtiin. The modern way is to give the number of the book, title, and
paragraph, i»»:. /., 10, 12; I.e., in«t. Lir>. ^. tit. 10, § 12. . -

■ I

\ 5

k

XVI

EXPLANATION OF ABBRETIATIONS.

'! I'

!| t

Kent. Comm Kent's Commentaries on the Law of United States

Keny Kenyon's Notes, by Hanmer, K. B,

Kilk Lord Kilkerran's Decisions, Court of Session

Kit Kitchen

Kn Knapp's Reports, Privy Council

Kn. & O Knapp and Ombler, Election Cases

L. & C Leigh and Cave, Crown Cases

L. & G. temp. Plunk Lloyd and Goold, tem/>. Plunket, Chy., Ireland

L. C. G Local Court's Gazette, Ontario

L. L L Lincoln's- Inn Library

L, C. J Lower Canada Jurist

L. J Law Journal, Reports in all the Courts

L. C. R Lower Canada Reports

L. Mag. The Law Magazine

L. M. & P Lowndes, Maxwell, and Pollock's Rep., Bail Court

L. & M ditto ditto ditto

L. P. B Paper Book of Lawrence, J. {k. )

L. Rev The Law Review

L. T The Law Times, Reports in all the Courts

L. & Welsh Lloyd and Welsby's Commercial Reports

La Lane's Reports, Exchequer

Lamb Lambard

I^t Latch's Reports, K. B.

Law Rec Law Recorder, Reports in all the Courts, Ireland

Leg. O The Legal Observer

Ld. Ken Kenyon's Reports, K. B.

Ld. Raym Lord Raymond's Reports, K. B.

Leach Leach's Crown Law

Lee & H Lee's Cases temp. Hardwicke, K. B.

Leon Leonard's Reports, K. B.

Lev Levinz's Reports, K. B.

Lew. C. C Lewin's Crown Cases

Lex. Merc. Red Lex Mercatoria. by Beawes

Ley Ley's Reports, K. B.

Lib. Ass Liber Assisarum, Year Book, pt. 5

Lib. Int Liber Intrationum

Lib. Reg Register Book

Lib Feud \ ^'^^*' Feudorum, usually printed at the end of the

I Corpus Juris Civilis (/)

Lib. Intr Old Book of Entries

Lib. PI Liber Placitandi

Lil Lilly's Reports or Entries

Lil. Abr. , Lilly's Practical Register

Lind., or Lynd Lindewood, Provinciales

Lit Littleton's Reports, C. P.

Lit. with S Littleton, S. for Section

Llo. & Goo Lloyd and Goold, temp. Sugden, Chy., Ireland

Locc Loccenius

Lofft Lofft's Reports, K. B.

Long Quinto Year Book, pt. 10, K. B.

Longf. & T Longfield and Townsend's Reports, Exch., Ireland

Lud. E. C Luder's Election Cases

Lush Lushington's Admiralty Reports

Lut Lutwyche's Reports, C. P.

Lut. R. C Lutwyche's Registration Cases

M., or Mich Michaelmas Term.

M. D. & D Montagu, Deacon & De Gex's Reports, Bankruptcy

M. & M'A Montagu and M 'Arthur's Reports, Bankruptcy

(k) S ee ante, note (a), p. i.

(0 This Treatise upon Feudal Law is usually found at the end of the Corptu Juris CivUi8 ; and is
sometimes referred to aa Conntetvdiens Feudorxim. It is divided into two books, and these again are
divided into titles, and it is thus cited, 1 Feud. 28, i.e., Book 1, tit. 28.

EXPLANATION OF ABBREVIATIONS.

XVU

end of the

M. &P Moore air' i'ayne, C. P.

M. & Ayr. R Montap'.i and Ayrton's Reports, Bankruptcy

M. and Ayr. B. L Montagu and Ayrton's Bankrupt Law

M. & S., or Mau. and Sel Mai.le and Selwyn's Reports, K.B.

M. & W., or Mee and W I^leeson and Welsby's Reports, Ex.

M'Cle. M'Cleland's Reports, Ex.

M'Cle. & Yo M'Cleland and Younge's Reports, Ex.

M'F. R McFarlane's Reports, Jury Court, Scotland

Mac. & G Macnaghten and Gordon's Reports, Chancery

Mac. & H Macrae and Hertslet

Mac. P. C Macrory's Patent Cases

Mack .Sir G. Mackenzie's Institution of the Law of Scotland

M»ck. R. L Mackenzie's Roman Law

Mack. Crim Sir G. Mackenzie's Criminal law

Mack. Obs Sir G. Mackenzie's Observations on Acts of Parliament

Macl. & R Maclean and Robinson's Scotch Appeals

Macph Court of Session Cases, Third Series

Macq. H. L. Cas Macqueen's Scotch Appeal Cases

Mad Madox's Exchequer and Formulare

Madd Maddock's Reports, Chancery

Madd, Ch Maddock's Chancery Practice

Mai Malyne's Lex Mercatoria

Man. & G Manning and Granger's Reports, C. P.

Man. & R Manning and Rylands Reports, K. B.

Manw Manwood's Forest Laws

Mar March's Reports, K. B.

Marsh Marshall's Reports, C. P.

Marsh. In Marshall on Insurance

Mau. & Pol. Sh I'Maude and Pollock's Law of Shipping

Mer., or Meriv Meri vale's Reports, Chancery

Middx. Sit Sittings for Middlesex at Nisi Prius

Milw Milward's Reports, Irish Ecclesiastical

Mitf. Mitford's Pleadings

Mod. Ca Modern Cases

Mod. c. I, & eq. 1.2 Modern Cases in Law and Equity (8 and 9 Mod. P"".)

Mod. Ent Modern Entries

Mod. Int. I, 2 Modus Intrandi, i, 2

Mod. Rep Modem Reports, K. B.

Mol. de J. M Molloy's de Jure Maritimo

Mol Molloy's Chancery Reports, Ireland

Mo Moore's Reports, K. B.

Mont. B. C Montagu's Reports, Bankruptcy

Mont. & B Montagu and Bligh's Reports, Bankruptcy

Mont. & Chit Montagu and Chitty's Reports, Bankruptcy.

Moo. C. C Moody's Crown Cases

Moo. & M Moody and Malkin's Reports, N. P.

Moo. P. C. C Moore's Privy Council Cases

Moo. Ind. Ap Moore's India Appeals

Moo. & R Moody and Robinson's Reports, N. P.

Moo. J. B J. B. Moore's Reports, C. P.

Moo. & P Moore and Payne's Reports, C. P.

Moo. & S Moore and Scott's Reports, C. P.

Moore (C. P. ) Moore's Common Pleas Reports

More, St Moore's Notes on Stair's Institutions, Scotland

M. or Morr. Diet Morrison's Dictionary of Decisions, Court of Session

Mos Moseley's Reports, Chancery

Murr Murray's Reports, Jury Court, Scotland

4

y

V-,

I
i I

m

2 \

I

illll

i

XVlll

EXPLANATION OF ABBREVIATIONS.

! ,1

1 .1

li!'

, ! i!

Myl. & Cr Mylne and Craig's Reports, Chancery

Myl. A; K Mylne and Keene's Reports, Chancery

N. Benl New Benloe, K. B. Reports

N. C Bingham's New Cases

N.C., or No. Ca. Ecc. & M. Cts j ^ Cour"s'^ ^^^^^ '" *^^ Ecclesiastical and Maritime

N. L Nelson's Lutwyche, Reports, C. P.

N. Nov Novella (Juris Civilis) (;«)

N. R New Reports, by Bosanquet and Puller, C. P.

N. R Not Reported

N . 5 New Series

Nels Nelson's Reports, Chancery

Nev. & M Neville and Manning's Reports, K. B.

Nev. & P Neville and Peny's Reports, K. B.

New Rep New Reports in all the Courts

Nic. Ha. C Nicholl, Hare, and Carrow, Railway Cases

No, N Novae Narrationes

Nol. Sett Nolan's Settlement Cases

North Northington's Reports, by Eden, Chancery

Noy Noy's Reports, K. B.

O. Benl Old Benloe, 0. P.

Off. Br Officina Brevium

Off. Ex Office of Executors

Ord. Cla Orders, Lord Clarendon's

Ord. Ch Orders in Chancery

Orl. Bridgman Orlando Bridgman's Reports, C. P.

Ought Oughton's Ordo Judiciorum

Ow Owen's Reports, ^. B.

P. C Pleas of the Crown

P. C. Act Probate Court Act

P. & D., or Per. & Dav Perry and Davison's Reports, K. B.

P. Pas Easter Term

P. R. C. P Practical Register in Common Pleas

P. W Peere William's Reports, Chancery

Pal Palmer's Reports, K. B.

Par Parker's Reports, Ex.

Park, Ins Park on Insurance

Pat. App. Cas Raton's Appeal Cases, House of Lords

Pea Peake's Reports, N. P.

Peak. Ad. Cas. . . ; Peake's Additional Cases

Peak. N. P. C Peake's Nisi Prius Cases

Perk Perkin's Conveyances

Per. & K Perry and Knapp, Election Cases

Ph Pliillip's Reports, Chancery

Ph. Ev Phillip's Evidence

Phillim Phillimore's Reports, Ecclesiastical

Pig Pigot's Recoveries

Pig. & R Piggott and Rodwell's Election Cases

PI. Com Plowden's Com. or Reports, K. B.

PI. pla. P. p Placila

Pol Pollexfen's Reports, K. B.

Poph Popham's Reports, K. B.

2 Poph Cases at the end of Popham's Rep.

(w) The Novels, or New Constitutions, are explanatory of the Code. The greatest part of these
Novels was composed in Greek, owin^ to the seat of empire beint; then in Constantinople. Some,
however, were published in Latin, and have been noticed hy Antonius Augustinus. There are tour
translations of the Novels. The Novels are quoted by their respective numbers, chapters, and para-
graphs, e.g. , Nov. 89, c. 9, § 1.

After Justinian's death some part of his Novels, to the number of 168, were collected and reduced
into one volume, together with 13 of the Oreek Edicts, which make up the fourth and last division of
the Corpus Juris CivUi$.

EXPLANATION OF ABBREVIATIONS.

XIX

•i

-i

]

P tleth Diet ( Postlethwaite's Universal Dictionary of Trade and

° ■ ) Commerce

Pow. R. & D Power, Rodwell, & Dew's Election Cases

Pr. Ch Precedents in Chancery (Finch)

Pr. Co Prerogative Court

Pr. Falc President Falconer's Reports, Court of Session

Pr. Reg. Ch Practical Register in Chancery

Pres. Conv ... .Preston's Conveyancing

Pres. Abs Preston on Abstracts

Pres. Es Preston on Estates

Pres. Shep. T Sheppard's Touchstone, by Preston

Price or Pr. Price s Reports, Exchequer

Priv. Lond Privilegia Londini

Pr. St Private Statute

Q Quorum

Q. Attach Quoniam Attachiamenta

Q. B Adolphus A Ellis, Queen's Bench Reports, New Series

Q. War Quo Warranto

Quinti Quinto («) Year Book, 5 Hen. V.

R Resolved, Repealed

R. Ley Ley's Reports

R. S. L Reading Statute Law

R. T. H Reports Time of Hardwicke, C. J. B. R.

R. T. H Reports time of Holt, C. J. B. R.

Rail. C Railway Cases

Rast Rastell's Entries and Statutes

Ld. Raym . . Lord Raymond's Reports- K. B.

Ray. T Sir Thos. Raymond's Reports, K. B.

Raym Raymond

Reev. E. L Reeve's English Law

Reg. Brev Register of Writs

Keg. PI Regula Placitandi

Reg. Jud Registrum Judiciale

Reg. Maj Books of RegiSm Majestatem, Scotland

Rep. (l, 2, &c. ) I, 2, Coke's Rep., &c.

Rep. Ch Reports in Chancery

Rep. Eq Gilbert's Rep. in Equity

Rep. Q. A Rep. iemp. Q. Anne

Rep. (emp. Finch Finch's Reports, Ch?.ncery

Rich. C. P Richardson's Practice, Common Pleas

Ridgw. Ap Ridgway's Appeals, Ireland

Ridg. & H Ridgway, temp, Hardwick, Chancery

Ridg. L. & S Ridjjway, Lapp, and Schoales' Reports, K.B., Ire'd.

Rob Robinson's Entries

n , . ) Robinson's Reps. Admiralty, or Robertson's Rep. of

) Appeals.

Rob. E Robertson's Ecclesiastical Reports

Robert. Ap ... Robertson's Appeal Cases, Scotland

Roll, and Rail. Abr RoUe, Rep. and Abridgment

Roil Roll of the Term

Rose Rose's Reports, Bankruptcy

Ross Ross's Lectures on Conveyancing, &c., Scotland

Ross L. C. . . . , Ross' Leading Cases

Rub Rubricks. In such a Rubrick or Title (o)

Run. Eject Runnington's Ejectment

Rush.. Rushworth's Collections

Russ Russell's Reports, Chancery

' «

(n) V. 0 Hen. VII. 19, 24.

(0) The Titles of the Roman Law, being: formerly written in red letters, were called Kubricks.

I

f:

I

EXPLANATION OF ABBREVIATIONS.

Russ. & M Russell and Mylne's Reports Chancery

Russ. & R Russell and Ryan's Crown Cases

Ry. F Rymer's Fcedera

Ry. & M Ryan and Moody, N. P. Reports

S., § Section

S. B Upper Bench

S. C Same Case

S. C. C Select Chancery Cases

S C Ren | Supreme Court (in reference to citations of American)

■ ■ " ) Reps.

S. or S. & D. . . Shaw & Dunlop, Court of Session, First Series.

S. P Same point or Principle

S. & S., or Sim. & St Simons and Stuart's Reports, Chancery.

S. & Sm Searle auid Smith's Reports, Probate and Divorce

Stlk Salkeld's Reports, K.B.

Sau. A; Sc Sause and Scully's Reports, Rolls, Ireland

Saund & C Saunders and Cole, Bail Court Reports

Saund Saunder's Reports, K. B. -^

Sav Savile's Reports, C. P.

Say Sayer's Reports, K. B.

Sc. Jur Scottish Jurist, Court of Session

Scac Scaccaria Curia, Court of Exchequer

Sch. & Lef. Schoale's and Lefroy's Reports, Chancery, Ireland

Sco. or Scott Scott's Reports, C. P.

Sco. N. R Scott's New Reports, C. P.

Scriv. Cop Scriven on the Law of Copyhold'

Selw, N. P Selwyn's Nisi Prius

Sect Section

Sel. Ca Select Cases, Chancery

Seld Seldom

Sem Senible, seems

Sess. Ca Sessions Cases, and Carrow, Hamerton, and Allen

Sett. & Rem Settlement and Remainder

Sh Sh^v's Reports, Court of Session Cases, First Series

Sh. App Shaw's Reports of Appeal Cases, House of Lords

Sh. Die Shaw's Digest of Decisions, Scotland

Sh. & M'L Shaw & Maclean's Rep. of Ap. Cases, House of Lords

Shand Pr Shand's Practice, Court of Session

Shcp. Touch Shepherd's Touchstone

Show Shower's Reports, K. B.

Shower's P. C Shower's Parliament Cases

Sid Siderfin's Report's K. B.

Sim. Of Sim. N. S Simons, or Simons's New Series, Repc-rtj,. Chancery

Skene Sir John Skene's De Verborum SigraHc" ici.-e

Skin Skinner's Reports, K. B.

Sm. & G Smale and Giffard's Reports, Charccr

Sm. Action Smith's (John W.) Action at Law

Sm. Con Contracts

Sm. Landl. and Ten Landlord and Tenant

Sm. L, C Leading Cases

Sm. Merc. Law ... Compendium of Mercantile Law

Sm. Eq. Manual Smith's (Jos. W.) Manual of Equity

Sm. Law of Prop Compendium of Law of Real & Personal Pro.

Sm. Mast, and Serv Smith's (Chas. Manley) Master and Servant

Smi. & Bat Smith and Batty's Reports, K. B., Ireland

Smith Smith's Reports, K. B.

Smythe Smythe's Reports, C. P. , Ireland

Sol. J Solicitor's Journal

Som Somner, Somers

Spel Spelman

Spottis Sir R. Spottiswoode's Reports, Court of Session

EXPLANATION OP ABBREVIATIONS.

XXI

American)

leries.

Divorce
I

, Ireland

ad Allen

irst Series
Lords

se of Lords

Chancery

;i;e

loral Pro.
it

Sjvttiswoode Spottiswoode's Styles, Scotland

St Stair's Institutions of the Law of Scotland

Stair Lord Stair's Reports, Court of Session

Stark. C. L Starkie's Criminal Law

Stark. Ev Starkie's P>idence

Stark. N. P Starkie's Reports, N. P.

Stat. W Stat. Westminster

Staunf. St. P. C. & Pr Staunforde Pleas and Prerogative

Staph. Com Stephen's Conynentaries

Stew. Ans Sir J. Stewart's Ans. to Dirleton's Doubts, Scotland

Story L. U. S Story's Laws of the United States

Story B. Exch Story's Bills of Exchange

Story Bail Story on Bailments

Story Con Story's Conflict of Laws

Story Const Story upon the Constitution

Story Eq. Jur Story's Equity Jurisprudence

Story Eq. PI "".I ny's Equity Pleading

Story PI Story's Pleading

Story Pr Story's Promisory-Notes

Stra Strange's Reports, K. B.

Stuart Stuart, Milne, and Peddie's Court of Session Reports

Sty Style's Reports, K. B.

St. Tri State Trials

Sug. V. & P Sugden's Vendors

Sag. P Sugden's Powers

Swa. Ad Swabey's Admiralty Reports

Sw. & Tr Swabey and Tristram's Reports, Probate & Divorce

Swans Swanton's Reports, Chancery

Swin Swinburn on Wills

T. & M Temple and Mew's Criminal Appeal Cases

T. R Teste Rogo

T. R Term Reports, (Durnford and East,) K. B.

T. R. E., or T. E. R. (/) Tempore Regis Edwardi

Taml Tamlyn's Reports, Rolls

Taun Taunton's Reports, C. P.

Taylor Taylor's Reports, Ontario

Th Thomson on Bills and Notes, Scotland

Th. Dig Theloall's Digest

Th. Br Thesaurus Brevium

Tinw Lord Tinwald's Reports, Court of Session

Tidd P Tidd's Practice

Toth Tothill's Reports, Chancery

Tr. Eq Treatise of Equity

Trem Treniain, Pleas of Crown

Trin Trinity Term

Tudor Ca. M. L Tudor's Leading Cases on Mercantile Law

Tudor Cas. Pr Tuder's Leading Cases on Real Property

Bj Turn Turner
Turn. & R Turner and Russell's Reports, Chancery
— ' Tyrw Tyrwhitt's Reports, Exchequer

Tyrw. & G Tyrwhitt and Granger's Reports, Exchequer

U. C. C. P Common Pleas Reports, Ontario

U. K United Kingdom

Ulp Ulpiani Fragmenta

U. C. L. J Upper Canada Law Journal

(p) This abbreviation is frequently used in Domesday Book, and in the more ancient law writem
SeeTyrrel's Hist. Eng. Introd. v. iii. 49. See also Cowel's Diet., verb. Reveland, where notieeistaken
of a wrong inference of Lord Coke's, 1 Inst. 86, from a quotation of Domesday Book, where this abbre-
viation is interpreted, Ttrra Begia Edwardi.

5 I

i:

Ission

ZXll

EXPLANATION OF ABBREVIATIONS.

ft

!l:

Hi

m

U. C. p. R Practice Reports, Ontario

U. C. Q. B Queen's Bench Reports, Ontario

U. C. Q. B. O. S Queen's Bench Reports, Ontario, Old Series

V. & B., or Ves. & Bea Vesey and Beame's Reports, Chancery

Vatt Vattel's Law of Nations

Vaugh Vaughan's Reports, C. P.

Vent Ventris's Reports, K. B.

Ves Vesey's, Sen., Reports, Chancery

Ves. Jun Vesey's, Jun., Reports, Chancery

Vet. Entr Old B. Entries

Vet. N. Br Old Nat. Brev.

Vem Vernon's Reports, Chancery

Vem. & S Vernon and Scriven's Reports, K. B., Ireland

Vid Vidian's Entries

Vin. Abr Viner's Abridgment

Vin. Supp. Viner's Supplement

W. I, W, 2 Statutes Westminster, i, 2.

W. R Weekly Reporter in all the Courts

W. W. & H Willmore, Woolaston, and Hodges

W. & S. App Wilson and Shaw's Reports, House of Lords

Wallis Wallis's Reports, Chancery, Ireland

Wats Watson

Wat. Cop Watkins's Copyholds

Web. P. C Webster's Patent Cases

Welsh Welsh Registry Cases, Ireland

Went. Off. Exor Wentworth's Office of Executor

Went. E Wentworth's Executor

West, H. L West's Reports, House of Lords

West & H West's Reports, Chancery, (£m/>. Hard wick

Wils. Ch Wilson's Chancery Reports

Wils. Ex Wilson's Exchequer Reports

Willes. Willes's Reports. K. B. and C. P.

Wilm Wilmot's Notes and Opinions, K. B.

Win Winch's Reports, C. B.

Wight Wightwicke's Reports, Exchequer

Wils Wilson's Reports, K. B.

Wm. Rob William Robinson's New Admiralty Repc cs

Wms Williams's Rep., or Peere Williams, Chancery

Wms. Ex Williams's Law of Executors

Wms. Just Williams's Justice

Wolf. & B Wolferstan and Bristow's Election Cases

Wolf. & D Wolforstan and Dew's Election Cases

H. Wood Hutton Wood's Decrees in Tithe Cases

Woodf. L. & T Woodfall's Law of Landlord and Tenant

Y. B. (^) Year Book

Y. & C, or You. & Coll Younge and Collyer's Eq. Exch.

Y. & C. C. C Younge and Collyer's Chancery Cases

Y. & J., or You. & Jer Younge and Jervis, Reports, Exchequer

Yelv Yelverton's Reports, K. B.

You Younge, Reports, Exchequer

(q) The Year-books are usually referred to by the year of each kiuff's reign, the initial letter of his
name, and the page and number of the placita : to which is Hometimes prefixed the initial letter of the
term, e.g., M. 4, H. 7, 18, 10.— Michaelmas Term, 4th Uenrj' VII., paj^e 18, placitum 10.

TABLE OF OASES.

A. V. B., 8 Jur. N. 5. 286, 1 141
Abadom v. Abadom, 569
Abbott V. Parsons, 684

— V. Straiten, 1017

— V. Sworder, 618, 1495
Abby V. Gilford, 1828
Aberdeen v. Chitty, 1769
Abergavenny, Lord, v, Thomas, 715
Aberystwith, &c., R'w. Co. v. Piercy, 276
Abraham v. Budd, 1652, 1660

— V, Hanney, 196

— V. Newcombe, 77
Abrams v. Winshup, 543
Abrey v. Newman, 163
Acker, Re, 1825.
Ackroyd v. Smithson, 1535
Acland z*. Gravener, 1760
Acraman v. Bristol Dock Co., 1695
Acres v. Little, 63

Acton V. Acton, 995

— V. Market, 1700
Adair v. Barrington, 505, 507

— V. The New River Co., 229, 231
Adams v. %arry, 183

— V. Claxton, 874, 1002

— V. Clifton, 1 521

— V. Colthurst, 25

— V. Evans, 670

— V. Fisher, 1851, 1856

— V. Gale, 831

— V. Heathcote, 1814

— V. Holbrook, 2il

— V. Paynter, 1061, 1070

— V. Pierce, 73
Adamson w. Hall, 511

— V. Wilson, 1694
Addis z/. Campbell, 1845, 1850
Adderley v. Smith, 26
Addison v. Hindmarsh, 1574

— V. Williamson, 688
Addy w. Grix, 1265

Adey v. Arnold, 1406

Adkins v. Cook, 642

Adney v. Flood, 329

African Company v. Parish| 400

Agabeg z/. Hartwell, 1 577

Agar V. Gurney, 850

2 A

Agar V. Farfax, "joo, 701

— V. Regents Canal Co., 447,675, 1712
Aggas V. Pickerell, 395
Agriculturalist Cattle Company, Re, 1775
Aickles' Case, 558

Aikens v. Piper, 1675

AikinsT/. Blain, 128

Ainslie v, Medlicott, 88, 145

Ainsley v. Sims, 23, 325, 328, 339, 341,

433. 484
Ainsworth v. Alman, 1870

— V. Roe, 1477
Airey v. Hall, 1847
Aislabie v. Rice, 1498
Aitchison v. Coombs, 332, 1026
Alabama Bank v. Collins, 980
Alam z/. Jourdan, 532.
Albretcht v. Sussman, 43, 387
Alcinous V. Nigren, 91
Alcock V. Alcock, 91
Aldborough, Lord, v. Burton, 22
Alden z'. Poster, 624, 1129, 1133
Alderman v. Bannister, 1594
Aidridge z'. Westbrook, 1479, 1515
Alexander v. Barker, 682

— V. Cana, 179, 234

— V. Duke of Wellington, 1573
Alfrey z^. Alfrey, 287, 1574

Aliken v. Howell, 690
Allan V. Allan, 262

— V. Fisher, 1303, 1307, 1312, 1313

— V, Houlden, 223, 432

— V. Pyper, 355
Allday v. Fletcher, 1573
Allen V. Anthony, 1209

— V. Bone, 255

— V. Dundas, 1264

— V. Harding, 1688

— V. Hilton, 1687

— V. Knight, 182, 1079

— V. Loder, 366

— V. Spring, 1600
AlIenHy v. Dalton, 989
Aller V. Jones, 1695
Alliance Bank v. Brown, 1 1 1 1
AUfreyz/. Allfrey, 287, 1574
AUsopz/. Bell, 1532, 1588, 1593
Allsop V. Lord Oxford, 1549, 1552
Almy V. Pycroft, 271

■51

'f

i

xt:iv

TABLE OF CASES.

'.}\H:

I I'l

%

illl':.

liii;

m

f':'::(|

Alpha V. Payman, 473
Alsager v, Johnson, 452, 455

— V. Rowley, 267
AlseniuR v. Nygren, 43, 45, 46
Alsop V. Bowtrell, 1320
Altree v. Hordem, 490
Alvine v. Bond, 1 147
Amand v. Bradbouine, 950
Ambrose I/. Ambrose, 1 161

— /'. Dunmow, 1493

— V. Nott, 513
Ambury v. Jones, 387

Ames V, Trustees of Birkenhead, 1765

1778
Amesbury v. Brown, 8og, 810
Amhurst v. Dawling, 1033

— V. King, 451
Armstrong v. Blake, 1488
Amory v. Brodrick, 515

Amsinck 7'. Barklay, 1734, 1735, '74i»

1745
Ancaster v. Anderson, 585, 732
Anderson v, Cameron, 1492

— V. Gaunter, 206

— V. George, 689, 695

— V, Guichard, 1760

— V. Kilborn, 643

— V, Lewis, 356, 1702

— V. Noble, 1700

— V, Palmer, 1 622

— V. Stamp, 1739, 1745

— 7\ Stather, 117, 127, 360, 467,

575, 1076, 1066
Anderton v. Yates, 65
Andrew v. Andrew, 1352
Andrews z/. Cradock, 88

— V. Emerson, 11 54

— V, Lockwood, 1590, 1594

— v. Maulson, 1714

— V. Partington. 1394, 1395

— V. Palmer, 587, 593

— V. Walton, 634, 667, 1628
Angell, Ex parte, 1394

— V. Haddon, 773, 889

— V. Westcombe, 387
Angel V. Smith, 38, 661, 637, 658,

1749, 1751, 1752, 1778
Angerstein z/. Hunt, 1709, 171 1
Angier », May, 1703

— V. Stannard, 1514
Anglo-Danubian C'o. v. Rogerson, 1694
Annandale v. Harris, 1 34 1

Annis 7A Wilson, 11 20
Anon, I Atk. 89, 570

— I Atk. 521, 1732, 1736

— I Atk. 72, 491

— 2 Atk. 210, 1732

— 2 Atk. 113, 1699

— 2 Atk. 14, 1490

— 2 Atk. 620, 851

— 2 Atk. 471, 667

Anon, 3 Atk. 17, 314

— 3 Atk. 524, 727, 763

— 3 Atk. 530, 432

— 3 Atk. 193, 572

— 3 Atk. 248, 644

— 3 Atk. 567, 1 71 1, 1730

— 3 Atk. 691, 1584

— 3 Atk. 109, 277

— V, Anon, 22 Beav. 481, 23 Beav,

273. 399

— V. Bunb. 41, 818

— Barn. Ch. 221, 1 130

— V. Bridgewater Canal Co. 1699

— I Bro. C. C. 376, 1736, 1732

— V. Bliss, 642

— 2 Ch. Ca. 163, 656

— I Ch. Ca. 196, 269

— 2 Ch. Ca. 244, 1028

— 2 Cas. Chanc. 54, 893

— I Cham. Rep., 359

— I Cham. Rep., 1103

— 2 » ;hit. 425, 696

— I Ch. Ca. 258, 817

— cited in Mogg v. Mogg, 2 Dick .,

670, 1656

— cited by Lord . Idon, 15 Ves. 3CX),

587

— I C. P. Coop. t. Cott. 61, n. (^),

1577

2 Dick. 775, 25
4De

1 Eq.

2 Eq.

G. & S. 547, 1737
Ca. Ab. ii, 794
Ca. Ab. 166, pi. 7,

228

in the Duchy, 2 Eq. Ca. Ab. 594,

pi. 3, 215
Godb. 149, pi. 194, 899
4 Grant, 61, 11 18 ^

4 Grant, 61, 723

6 Grant, 1390, 1877
12 Grant, 51, 476

L.J. Hall, 16 July, 1816, M. S.,

1813
9 Hare, App. 27, 126
3jur. N. S. 839, V.C.W., 76
l8Jur. 770, V.C.W., 126

1 Jar. N. S., 973, V.C.W., 640

7 Jur. 1038, 696

5 Jur. N. S. 1 124, 76

5 Jur. N. S. 385, 1832
II Jur. 258, V.C.E., 55

2 Madd. 395, 515

3 Madd. 246, 870

3 Madd. 494, II 54

4 Madd. 271, 609
4 Madd. 461, 63

4 Madd. 273, 1504

6 Madd. 276, 1739
6 Madd. 10, 1679
6 Madd. 276, 1742

6 Mod. 225 : I Lev. 25, 1344
Mod. 43, 1680

TABLE OF CASES.

XXV

Anon. Mos. 68, 34

— Mos. 5, 66

— Mos. 175, 26

— I M. & C. 78, 286

— I P. Wins. 301, 531

— Prec. in Chanc. 331, 649

— 2 P. Wnis. 481, 1726

— 2 Sim. N. S. 54, 1388

— 12 Sim. 106, 1625

— 2 Salk. 649, 683
- 8 Sim. 346, 1391

— 4 Sim. 359, 181 I

— 2 Salk. 645, 688

— 4 Taunt. 876, 805

— I Vern. 282, 788 I

— I Vern. 283, 794 !

— I Vern. 116 ; Anon. Ibid. 334, 484

— I Vern. 60, 312

— 2 Vern. 707, 94

— I Ves. S. 326, 635

— 2 Ves. S. 489, 1 741

— 2 Ves. S. 497, 592, 593

— 2 Ves, S. 520, 667

— I Ves. J. 93, 1567

— 1 Ves. J. 140, 1690

— I Ves. J. 458, 1 1 55

— I Ves. J. 410, 34, 59

— I Ves. J. 140, 484
Ves. 671, 85
Ves. J. 286, 1 1 60
Ves. 661, 799
Ves. J. 335, 1 37 1
Ves. 515, 1766

Ves. 515, 944

— 5 Ves. i48, 1154

— 6 Ves. 573, 587

— 6 Ves. 288, 661

— 6 Ves. 287, 1751, 1752, 1778, 1779

— 9 Ves. 341, 740

— II Ves. 170, 649

— II Ves. 169, 487, 502, 508, 873

— 12 Ves. 4, 1756

— 15 Ves. J. 174, 1727

— 19 Ves. 321, 589

— 12 Vin. Ab. 223, 1347

— I Wils. 22, 686

— 2 Y. & C. Ex. 310, 453
Antram v. Chase, 1334
Ansdell v. Ansdell, 675, 678
Anson v. Towgood, 491, 1355
Antoine v, Morshead, 44, 45
Anstruther v. Adair, 75
Appeal of Dietrich, 961

— of Flintham, 919

— of Hiester, 962

— of McCahan, 961

— of McGlinsey, 919

— of Metz, 919

— of Mumper, 961, 962

— of Royer, 961, 962

— of Scott, 962

Appeal of Stehman, 961

— of Sterrett, 962

Apperly v. Page, 196, 199, 288, 384

Appleby v. Duke, 124, 440

Appleton 7,'. Sturgis, 438

Archbishop of Canterbury, Ex parte, 1830

Archl)ishop of York v, Stapleton, 417

Archbold v. Commissioners of Charitable

Bequests for Ireland, 307
ArchboU z/. Barrell, 1747
Archdeacon v. Bowes, 807, 1753
Archepoole, contra Burrell, 1747
Archer v, Gardner, 82

— V. Hudson, 1562
Ardagh z/. Orchard, 1 121
Ardagh z/. Wilson, 1030,1125
Arid V. Emanuel, 1542
Arkell v. Wilson, 1025
Arkwright, Ex parte, 1002
Armitstead v. Durham, 334, 430, 496,

1700, 1 701
Armour v. Robinson, 360
Armstrong v. Church Society of Toronto,

13 Grant, 200,552
Armstrong's Estate, 961, 962
Armstrong v. Stockham, 1832
Armstrong v. Storer, 197, 238, 483, 15^9
Armytage v. Haley, 687
Arnold v. Bainbrigge, 1 73

— V. Bishop of Bath and Wells, 1333

— V. Blencowe, 208

— V, Hurd, 714

— V. White, 1683
Arnot V. Biscoe, 532
Arrowsmith V. Hill, 1729
Arthur v. Hughes, 206

— V. Lamb, 1C52
Arundel v. Arundel, 385
Arundell, Lady v. Phipps, 1647, 1679
Asbeef. Shipley, 1589
Ashbaught). Ashbaugh, 1396, 1 5 19
Ashburnham v. Thompson, 830, 831, 15 19
Ashburton, Lord v. Ashburton, Lady, 1402
Ashby V. Ashby, 97

— V. Power, 551
Ashenhurst v. James, 81 7> 818
Asher v. Whitlock, 1328
Ashley, Ex parte, 1 147

— v. Ashley, 686
Ashmall v. Wood, 163, 1 64
Ashton Charity, Re, 1886

— V. Dalton, 805, 1003
Ashurst V. Given, 962
Askew V. Millington, 489, 1605

— V. Peddle, 640

— V. Poulterers' Co. 549, 552, 1708

— V. Townsend, 1594, 1709
Assignees of Ramsay v. Ellis, 976
Astley V. Fountain, 239, 241

— V. Powis, 801
Aston V, Aston, 808, 1660

XXVI

TABLE OF CASES.

f

Aston's Estate, 961, 966
Aston V. Lord Kxcter, 414

— A't, 596, 598
Atcheson v. Atcheson, 73
Athenrcum Life .Vssurancc Society v,

Tooley, 390
Athcrton v. Nowcll, 82
Athol, Earl of, v. Earl of Derby, 662
Atkins V. Cooke, 20, 26, 1625

— 7'. Drake, 1332

— V, Ilatton, 441

— V. Palmer, 308, 587
Atkinson v. Al)bot, 255

— V. Atkinson, 816, 817

— V. Bedell, 1747
V. Hanway, 418

Atkinson z/. Henshaw, 207, 1760

— V. Leonard, 1732, 1734, 1736,

1746
~ V. Parker, 1586
Atkyns 7>, Lord Willoughby do Brooke,
302, 441

— V. Wright, 1837, 1841, 1850, 1855

— 7). Ashburnham, Lorl, 7
Attorney-General v. Alford, 833, 835

— V. Aspinall, 429
^ — T>. Barker, 6

— z>. Berkeley, 1856

— V. Berry, 11

— V. Birmingham, Corporation of,

1663 ,1664

— V. Bolton, II

— V, Boucherette, 9

— V. Boyle, 1707

— V. Brand ret h, 1830
— ■ V. Brantford, 646

— V. Brereton, 9

— V. Brewers' Co., II, 1518

— V. Brickdale, 1830

— V, Bristol, Mayor of, 1 10

— V. Brown, 4, 228, 418, 1353

— z/. Bucknall, 9

— V. Burgesses of East Retford, 114,

451

— V, Burrowes, 1704

— V. Butcher, 1562

— V. Carmarthen.Corporationof, 282

— V. Carte, 11, 1542

— V. Carrington, Lord, 1728

— V. Casey, 477

— V. Chester, Corporation of, 1502

— V. Chesterfield, Earl of, 204, 249

— V. Clapham, 627, 1846
_ V. Clare Hall, 1886

— V. Cleaver, 1637, 1663

— V. Compton, 5

— V, Conservators of River Thames,

63s
~ V. Cooper, 324, 339, 341, 418

— V. Cornthwaite, 193

— V. Coventry, Mayor of, 66l

Attorney General v. Cradock, 277, 278

— T. Crofts, 6, 989

— V, Cuming, 1515, 1541, 1680

— V. Day, 1767, 1774, 1775, «372

— 7>, Donnington Hospital, 469

— V. Draper's Co., 8

— V. Du IMessis, 3, 403, 499

— of the Duchy of Lancaster v.

Heath, 9

— 7'. Dyson, 1383, 1807

— V. East Dereham Corn Exchange,

"3

— V. East India Co., 7

— V. East Retford, 1523

— V. Eastlake, 5, 1637, 1652, 1665,

1691

— 7>. Ellison, 1852

— £x rd. Uniyersity of Glasgow v.

Baliol College, 115

— V, Exeter, Mayor of, 1566

— V. Farrington, or Tarrington, 191

— V. Fellows, 336

— V, Fellowes, 609

— f. Finch, 503

— V, Fishmonger's Co., 1601

— 7'. Forbes, 1662, 1663

— V. Fox, 8

— V. Fullerton, 715, 716

— V. Galway, Mayor of, 878, 1768

— V. Garbutt, 605

— V, Gaunt, 217

— 71. Gee, 1767

— V. Gibbs, 1520, 152.;, 1528, 1530,

1574

— V. Goldsmith's Co., 282

— V. Gould, 1680

— V. Green, 217

V. Haberdasher's Co., 6, I0| 1542

— V. Hamilton, 701

— V. Hannier, 8

— v. Hardy, 310, 1034

— V. Harvey, 10

— V. Heelis, 196, 197

— V. Henderson, 469

— V. Hill, 243, 1492

— V. Hobert, 1520, 1522

— V. Holham, 1332

— V. Howe, 5

— 7A Hudson, 469

— V. Hurst, 1532, 1535

— V. Iron Monger's Co., II, no

— V. Jackson, 231, 241

— V. Jeanes, 309

V. Johnson, 1662

— V. Kerr, 11

— V. Kingston-on-Thames, Mayor

of, 1662, 1676

— V, Knight, 13

— V. Lambiith, 132

— V. Lawes, 1510, 1536, 1557

— V, Leather-Sellers' Co., 667

TABLE OP CASES.

XXVll

c, 277. 278

;4i, 1680
1775. »372
)ital, 469

33. 499
Lancaster v.

'7

orn Exchange,

7

23

7, 1652, 1665,

of Glasgow V.

:e, 115

if, 1566
['arrington, 191

3., I6OI

663

756

of, 878, 1768

,2.;. 1528, 1530,
, 282

:o., 6, 10, 1542

34
522

35

:o., n, no

M

ames
6

, Mayor

36,
Co.

1557
667

Attorney-General f. Leicester, Corporation
of, 204, 224

— V. Lewis, 8, 577

— V. Liclifield, Corporation of, 5

— V. Liverpool, Corporation of, 1691

— V. London, City of, 8, 151 1, 1851,

>8S4. 1855

— V, Love, 1905

— V. Lucas, 403, 447

— V. Luton Hoard of Ilcalth, 1664,

1691, 1707

— V. Marlborough, Duke of, 1660

— V. Marsh, 337, 1702

— V. Mercers' Co., 113, 247

— V. Merchant Tailors' Co., 242,

283, 394

— V, Metropolitan Board of Works,

1676

— V. Middleton, 9

— V. Milward, 553

— V. Monckton, 1332

— V. Montgomery, 682, 693

— V. Moses, 196, 277

— V, Munro, 1564, 16S0

— V. Murdoch, 1520, 1680

— V. Murray, 9

— V. McLaughlin, 1662, 1692

— V. Naylor, 231

— V. Nethercoat, 328

— V. Newark, Corporation of, 1352

— V. Newbury Corporation, 1906

— V. Newcombe, 321

— V. Nichol, 1662, 1663, 1693

— V. Norwich, Corporation of, 1637

— V. Norwich, Mayor of, 950

— V. Oglender, 9, 1500

— V, Owen, 1500

— V. Parker, 9, 10, 612

— V. Parkhurst, 5, 67

— V. Parnther, 537

— V, Payne, 1846

z. Pearson, 224, 562

— V. Penruddocke, 715

— V. Plumtree, 10

— V. Plymouth, Mayor of, 4

— V, Portreeve of Avon, 318, 323,

1600

— V. Ray, 553, SS4, 593

— V. Rees, 451

— V. Reynolds, 402

— V. Richards, 287, 1662

— V. Rye, 1232

— V. Sands, 951

— V. Sheffield Gas Consumer's Co.,

— 1663, 1691

— V. Sherbourne Grammar School, 6

— V. Shield, 1723, 1725

— V. Shrewsbury, 1884

— V, vShrewsbury, Corporation of, 4

— V. Skinners' Co., 9, 12, 667

— V. Smart, 9.

Attorney-General v. Soole, Corporation of,

241, iy<i

— V. Southampton Guardians of, 1637

— I'. St. Aubyn, 4

— /). St. Cross Hospital, 283

— V. Stamford, 612

— V. Stamford, Earl of, 352, 1888

— V. Stamford, Mayor of, 9

— V. Stephens, 168, 554, 714

— V. Sudeil, 388

— V. Taylor, li

V. Thompson, 414, 1836, 1850,

— 1851

— V, Toronto Street Railway, 318

— V. Twisden, 159, 206

— V. Tyler, 5, 12

— V. United Kingdom Electric

Telegraph Company, 1663

— V. Vernon, 3, 6

— V. Vigor, 1785, 1785

— V. Vincent, 311, 312

— 7', Vint, 1830
-- 7>. Vivian, 6, 9

— V. Warren, 108

— V. Whiteley, 9, 875

— V, Wigan, Mayor of, 1637, 1696

— V. Wilson, 17, 113, 578

— V. Winchelsea, 1532, 1535

— V. Windsor, Dean and Canons of,

no

— V. Woolrich, 5, 6, 67

— V, Worcester Corporation, 16, II2,

458, 473. 479. 1885, 1886,
1888, 1902

— V. Wright, 6, 16 1 3

— V. Wyggeston's Hospital, 6

— V. Wynne, 1 59, 205
V. Wyville, 457, 15 15

Attwood V. , 323

— V. Banks, 1649, 1683

— V. Hawkins, 241

— V. Small, 248
Aubrey v. Hooper, 1547
Audsley z/. Horn, 173, 232
Auriol V. Smith, 1332
Ausman v. Montgomery, 516
Austen v. Dodwell's Executors, 808

— V. Halsey, 1009

— V. Gibbs, 695

— V. Nicholas, 540
Austin V. Austin, 1875

— V. Evans, 691

— V. Story, 1 108
Australian Co. v. Fleming, 28
Austria, Emperor of v. Day, 14
Avery z". Osborne, 1522
Aylett V, Ashton, 148

— V. Dodd, 1683

— V. Lowe, 686
Ayles V. Cox, 1367
AylifTe v, Murray, 938

3 'J I

XXVlll

TABLE OF CASES.

If '''J

I'

Aylmerz/. Winterbottom, 1518, 1524
Aynsly i*. Reea, 1261;
Ayre z/. Hanson, 1 1 18.

B

B. V. W.|3i Beav. 342, 286
Babcock, /?e, 346, 729, 892, 1512

— V, Bedford, Municipal Council of,

1279
Baby v. Wood bridge, 1096
Back V. Stacy, 1664, 1693
Backhouse v. Middleton, 553

— V. Wylde, 635
Bacon v. Clerk, 801

— 7>. Blackwood, 1693

— V Griffith, 319, 376

— J?e, 1546

— -i/. Jones, 675, 1668, 1691, 1707

— V. Spottiswoode, 1707
Baddeley v. Curwen, 450

— 7J, Harding, 26
Badham v. Odell, 823

Bagot z/. Bagot, 1560, 1652, 1653, 1739,
1767

— V. Legge, 1538

Bagshaw z/. Eastern Union Railway Co.,
159, 165, 200, 20I

— V. Newton, 1532

— V. Winter, 80, 82, 86
Baglehole, Ex tarte, 44
Bailey v. Bailey, 1 726

— V. Birkenhead Junction Railway

Co., 384

— V. The Birkenhead Railway Co.,

275

— V. CoUett, 1353, 1832, 1871

— V. Devereux, 1729

— V. Ekins, 909

— 7/. Ford, 1620

— V. Gundry, 21, 26, 293

— V. Hammond, 1321

— f . T ambert, 437, 485
Baillie z'. Cnaigneau, 1150

— V, Jackson, 133
Baily v. Macauley, 685, 688

— V. Ploughman, 893

— V. Taylor, 1669, 1707

— V. Worrall 189
Bainbridge v. B'.rton, 194, 197

— V. Pinhorn, 211
Bainbrigge v. Baddeley, 328, 334, 335,

336, 431, 496, 1562, 1601,
1756, 1760

— V. Blair, 124, 935, 936, 937, 1517,

1773, 1775. »795

— V. Moss, 30, 294, 337, 457

— V. Orton, 292, 293
Baines v. Baker, 1663
Bainton zf. Ward, 911

Baird v. White, 1599
Baker r. Athill, 302

— V. Bayldon, 84

— V. Bradley, 270, 271

— V. Brown, 687

— V. Bramah, 387

— V. Carter, 1523

— V. Dewey, 11 72

— V. Dumaresque, 1738

— V. Haily, 1742

— V. Hart, 695, 697

— V. Harwood, 177, 264

— V. Holmes, 357

— V. Jeffries, 1747

— V. Martin, 937

— V. Mellish, 250, 418, 426, 430, 1CS9

— V. Pritchard, 398, 404

— V. Sowter, 132

— V. Wardle, 1527

— V. Wetton, 301

— V. Wilson, 1342

— V. Wind, 1482
Balch V. Symes, 1852

— V. Tucker, 674

— V. Wastall, 1064
Baldwin v. Baldwin, 86, 93

— V. Crawford, 1786

— V. Darner, 507

Baldwin z", Duignan, 1015, 1 182, 1194

— V, Lawrence, 202

— V. Mackown, i6o2

— V. Useful Knowledge Socy , 168';
Balfe V. Lord, 987, 1025

Balguy V. Broadhurst, 446, 1857

— V. Chorley, 635
Ball V. Brown, 976

— V. Coutts, 86

— V. Riversdale, Lord, 1 194

— V. Montgomery, 83, 86, 15 18

— V. Oliver, 207, 1760

— V. Sherlock, 1 710
Ballard v. Catling, 36, 1607
Balls V. Margrave, 415
Bally z*. Kenrick, 452, 454
Ball V. Thompson, 983, 1020
Bally V. Williams, 287
Balsh z^. Hyham, 951
Bamford v. Bamford, 717

— V. Watts, 1 62 1, 1629
Bampfield v. Vaughan, 238, io6
Bampton v. Birchall, 395
Banbury Peerage Case, 536, 1288
Bancroft v. Wardour, 417
Banister z/. Way, 118, 190
Bank v. Farques, 563

Bank of British North America v. Heaton,

1783

— V. Mallory, 917

— V. McDonald, 857
Bank of England v. Morice, 1632
Bank of Montreal v. Ketchum, 11 26

TABLE OF CASES.

XXIX

ca V. Heaton,

Bank of Montreal v. Power, 322

— V. Ryan, 867

— V. Wallace, 161, 376, 1126

— V. Wilson, 722

Bank of Toronto v. Fanning, 1307
Bank of Upper Canada v. Brough, 908

— V. Scott, 1042, 1048

— V. Thomas, 1508
B,i"'.hartv. Houghton, 1665
Bankier v. Poole, 356

Banks V. Banks, 11 59, 11 60, 1161, 1766

— V. Gibson, 1673

— V. Jolland, 1766, 1791

— V. Whittall, 1002
Bannatyne v. Leader, 1855
Bannister v. Biggcs, 1664
Ban wen Iron Co., Jie, 1616
Barber v. Barber, 389, 421, 422

— V. Hunter, 29;;
Barclay v, Russell, 13, 15, 952
Barfielu v. Kelly, 562, 1705

— V. Nicholson, 1681
Barham v. Longman, 508
Baring v. Harris, 1578

Barkeley v. Reay, Lord, 1756, 1765

— V. Nash, 167, 266, 296
Barker, Re, 824

— V. Baker, 'J70

— V. Barker, 1233

— V. Birch, 267

— V. Dacie, 387

— V. Dixie, 534

— V. Duke of Devonshire, 1183

— V. Dumaresque, 514

— V. Harper, 1354, 1355

— V. Kellett, 1068

— V. Lea, 85

— V. Piele, 356, 358, 505, 1515

— V. Ray, 681

— V. Smack, 1032, 1033

— V, Venables, 1499

— V. Walters, 152, 197, 310,

— V. May, 909, 910

— V. Wardle, 1543

— V, Wyld, 613
Barkworth v. Young, 296, 396
Barlee v. Barlee, 90, 91

Barlow V. Gains, 1484, 1768, 1769

— V. Osborne, 11 50, 1153, 1154,

„"S7, 1557
oarnara v. Hunter, 1840

— V. Wallis, 1647

— V. Young, 819
Bamardiston v. Gibbon, 1630
Earned v. Laing, 313, 1739
Barnell, v. Harris, 11 88
Barnes, Re, 34

— V. Ridgway, 325 *

— V. Rackster, 1479

— V. Tweddle, 362

— V. Taylor, 420

3 A

Barnes v. Wilson, 635

Barnesley Canal Co. v. Twibell, 1703

Barnett v. Grafton, 333, 334

— V. Noble. 332 • '
Barney v. Luckett, 1689

Barnum v. Turnbull, 803
Barnwell v. Iremonger, 151 1

— V. Harris, 1224
Baron de Rutzen v. Farr, 683
Barrack v. McCulloch, 5 18, '531 .
Barrandw. Archer, 1280

Barren v. Joy, 967

— V. Sabine, 994
Barrett v. Buck, 1535

— V. Burke, 1687

— V. Gardner, 322

— V. Pearson, 1687

— - V. Power, 26

— V, Stockton & Darlington Railway

Company, 270

— V. Tidswell, 481

— V. White, 1585
Barrington, Re, 125, 1627

— V. Tristram, 1532
Barron v. Grillard, 147, 425

— V. Lancefield, 1134
Barrow v. Barrow, 81, 85, 86

— V. Wadkin, 43
Barrs' Trust, Re, 532

— V. Feukes, 264
Barry v. Bebington, 1323

— V. Brazil, 126, 731

— V. Cane, 141

— V. Croskey, 432, 1649

— V. Stephens, 390

— V. Wrey, 1082, 1478
Bartle v. Wilkin, 1069
Bartlett, ex parte, 1876

— V. Bartlett, 1718, 1819

— V. Gillard, 530

— V. Harton, 505, 506, 509, 1622

— V. Pickersgill, 157

— V, Tuchin, 1220, 1244

— V. Wood, 628, 1470
Bartley v. Bartley, 1859
Barton's Estate, 965

— V. Barton, 129, 252, 487, 508, 1496

— V. Boucher, 909

— V. Chambers, 1615

— V. Cooke, 1536

— V. Latour, 1629

— V. Letour, 1370

— V. Rock, 508

— V, Whitcombe, 366
Barwell i. Parker, 8cx), 805, 807

Basely v. Basely, 1404 <

Basil V. Acheson, 80C
Bassevi v. Serra, 1537
Bassford v. Blakesley, 1852
Batchelor v. Middleton, 1063

^\

U
.1

ill

3^1

I k

XXX

TABLE OF CASES.

h\.

Batez'. Bate, 1840

— V. Hooper, 15 19

— V. Scales, 833
Batetnan v. Cook, 466

— V. Margerison, ^04, 246

— V. Murray, 1687

— V. Wiatt, 1701, 1711
" — V. Willoe, 1638
Bates V. Bonner, 11 54, 1156

— V, Bothers, 1764

— V. Brothers, 1753

— V. Christ's College, Cambridge, 450

— V. Dandy, 100, 102

— V. Graves, 682

— V. Martin, 1659

— V. Fatham, 1770
Bath, Earl of, v. Abney, 99

— — V. Earl of Bradford, 800

— Lord V. Sherwin, 1689, ^708
Bathe v. Bank of England, 70, 88
Bather v. Kearsley, 320
Bathurst v. De la Zouch, 899

— V. Murray, 1404, 1405, 1406
Batson v. Lindegreen, 909
Batten v. Earnley, 799
Battersbee v. Farringdon, 134I, 1 347
Battey v. Hill, 1673

Bauer v. Mitford, 8, 1564
Baugh V. Reed, 1532
Bawtree v. Watson, 1239
Bax V. Whitbread, 627
Baxendale v. West Midland Ry. Co., 434
Baxter v. Campbell, 600
-:- V. Conally, 1 189

— V. Pinlay, 1140

— V. Nurse, 692

— V. West, 1762

Baybrooke, Lord v, Inskip, 1320, 1321
Bayley v. Corporation of Leominster, 1687

— V. De Walkiers, 460

— V. Mansell, 1384, 1807

— V. Powell, 1517

— V. Robarls, 1807
Baylies z'. Baylies, 1785
Baylis v. Watkins, 1668
Baynard v, Woolley, 182, 1004 (
Baynes v. Ridge. 361
Baynham v. Guy's Hospital, 1687
Bazalgette v. J^owe, 367
Bazzalgatti v. Battine, 1027
Beadles v. Burch, 304

Beadon v. King, 412
Beales v. Spencer, 140
Beames — Ex relatione, 324 ,
Beamise v. Pomeroy, 1581
Beamish v. Barrett, 1684
Bear v. Smith, 1832
Bearblock v. Tyler, 694, 699
Beard v. Earl of Powis, 15941 1829

— V. Gray, 601

— V. Travers, 1404

Beardmore v. Gregory, 1600
Bearpark v. Hutchinson, 1237
Beasley v. Kenyon, 2u6

— V. Magrath, 530 •
Beathea v. McCoU, 980

Beatie v. Johnstone, 1387, 1390, 1391
Beaton v. Boomer, 28, 802
Beatty v, Radenhurst, 1 141
Beauchamp v. Marquis of Huntley, 494
Beaufort, Duke of t>. Berty, 139, 1390

— V. Taylor, 1841
Beaumont v. Meredith, 196, iSit
Beavan v. Burgess, 470

— V. Carpenter, 508

— V. Momington, 634

— V. Oxford, 902
Beazley v. Beazley, 1320, 1444
Beckett v. Billbrough, 272

— V. Cordley, 1002

— V, Rees, 527
Beckford v. Kemble, 1033, 1651

— V. Wildman, 1852
BeddingReld v, Zouch, 651
Bedford Charity, Re, 8, 1887
Bedford v. Leigh, 194, 294
Bedminster Charities, Be. 1626
Bedson v. Smith, 1026
Bedwyn v. Asprey, 60
Beeching z/. Lloyd, 192, 1 99
Beer v. Tapp, 1524
Beerfield v, Petrie, 690

Begg V. Forbes, 600

Belchier V. Butler, 1479

Bell, Re, 731, 1147. 1327. I335« »345

— V. Alexander, 162

— V. Bell, 503, 1585

— V. Cade, 625

— V. Carter, 989

— V. Chamberlain, 1858

— V. Dunmore, 474, 477

— v. Free, 800

— V. Hyde, 140, 352

— V. Johnson, 575

— V. London & N. W. R. Co., ioi8

— V. Lord Mexborough, 1573

— V. Miller, 645

— V. Walker, 1670
Bellamy z/, Brickenden, 439 1

— V. Cockle, 1038

— V. Jones, 585, 586, 589, 590

— V. Sabine, 235, 244, 331, 1639
Bellchamber z/. Giani, 1468, 1623
Belle V. Thompson, 690

Bellwood V. Wetherell, 414
Belmore, Lord v. Anderson, 468
Belsham v. Perceval, 633, 1594, 1855
Benbow v. Davies, 438
BencVaft v. Rich, 1818
Bendyshe, Re, 75, 1627
Benfield v. Solomons, 491 50, 267i 268
Benford v, Daniels, 980

TABLE OF CASES.

XXXI

Benison v. Wortley, 125

Ben net College v. Carey, 1464

Bennett v. Atkins, 1487, 1519, 1523

— V. Allcott, 687

— V. Bennett, 713

— V. Biddies, 1629

— t. Chudleigh, 34, 1 21

— V. CoUey, 1759

— V. Crostwhaite, 327

— V. Davis, 48
V. Edwards, 130

— V. Glossop, 1854

— V. Going, 1518, 1527

— V. Hamill, 130, 1281

— V. Honeywood, 336

— V. Lee, 133, 136, 137

— ,). Leigh, 133

— V. Neale, 441, 674

— V. O'Meara, 362, 426

— V. Powell, 902

— V. Robins, 1783

— V. Skeffington, 219

— V. Sprague, 90

— V. Taylor, 1265

— V. Vade, 309

— V. Whitehead, 1400
V. Wood, 348

Benson v. Frederick, 686, 687

— V. Glastonbuiy Canal Co., 546, 1813

— V. HadKeld, 278, 432, 444

— V. Hodson, 1232

— V. Olive, 551
Bensusan v. Nehemias, 1484
Bent V. Birch, 620

— V. Yardley, 276
Bentham v. Haincourt, 809
Bentley, J?e, 1393

— V. Fleming, 685

— V. Foster, 41

— V. Jack, 865
Benyon v. Nettlefold, 399
Berdoc v. Dawson, 1475
Beresford, Lady, v. Driver, 1852
Berke *'. Harris, 282

Berkeley z/. Dauh, 1211, I22I, 1222

— 0. King's College, 1764

— ». Rider, 477

Berkhamsted Free School, Ex parte, 1886

Berkis u. Nichols, 366

Berkley Peerage Case, 1332, 1333

Bernal v. Marquis of Donegal, 1 737

Bernard's, Lord, Case, 1660

Bernard v. Alley, 1829

— 0. Hunter, 445

— V. Jarvis, 711
Bernasconi v. Farebrother, 692
Benieit v. Taylor, 556
Beruey v. Chambers, 472

— V. Eyre, 699, 1472, 1473, 1474

— V, Harvey, 672

~ t. Sewell, 1750, 1753. < 759

Berrie v. Moore, 646
Berrington v. Evans, 781, 814
Berrow v. Morris, 1601, 1600
Berry, AV, 1399

— V. Attor'y.-Gen., 1557

— V. Hebblethwaite, 1479

— V. Johnson, 1353

— V. Macklin, 439

— V, Young, 1 190

Bertie v. Lord Abingdon, 810, 813

— t). Lord Abington, 1788

— V. Lord Falkland, 633
Bertlett v. Wood, 1511
Bertolacci «. Johnstone,|329.
Besemeres v. Besemeres, 1618, 1698
Besley, ex parte, 1 569

Bessey v. Bostwick, 1536

— V. Graham, 856

— V. Windham, 683
Bestf. Best, 1430, 1447

— V. Drake, 1655

— V. Stampford, lOi

Betagh v. Cancannon, 1809, 1822
Bethell v. Casson, 414, 1848
Bethune v. Bateman, 329

— V. Calcutt, 791

— V. Farebrother, 156

— V. Kennedy, 17 19
Bettison v. Farringdon, 1837, 1855
Betts V. Barton, 483

— V. CliflFord, 1467

— y. De Vitre, 676

— t>. •'Menzies, 413

— V. Neilson, 1668
Bevan, ex parte, 819, 820

— i«. Bevan, 1363, 1369
Bewlev v. Seymour, 255
Bick V. Motley, 833, 851, 874
Bickerton v. Burrell, 1 57
Bickfordt). Skewes, 1722, 1723
Bickham «. Cross, 624, 821

— V. Freeman, 909
Bickly V. Dorrington, 267
Bicknell v. Bicknell, 63
Biddle, He, 1479
Biddies v. Jackson, 77
Biddulph, /?e, 1828

— V. St. John, 533

— V. Lord Camoys, 361, 553

_ V. Vestry of St. George, 1676
Bidulph V. Bidulph, 1472
Bigefcw V. Thompson, 499
Biggar v, Beatty, 127

— V. Dickson, 983, 1143
Biggleston v. Grubb, 1496
Biggs V. Penn, 224

Bignal v. Brereton, 799
Bignallv. Atkins, 1 581
Bignell, He, 1399
Bignold V. Audland, 315
Bill V. Cureton, 192

li

*:

I i

xxxu

TABLE OF CASES.

H '!

ii"iii

i'l[i.,

1*^

Bill V. Sierra Nevada Co., 1637
Billing V. Brooksbank, 556, 1265
Billson V. Scott, 132
Bilton V. Bennett, 375
Binfield v. Lambert, 556
Bingham t>. Bingham, 1639

— 9. Lady Clanmorris, 787, 788
Bingley ». Marshall, 1694

— School, i?<r, 1883
Binkley » Binkley, 1397, 1398
Binnington v. Harwood, 835, 843, 1035,

1484
Binns •. Parr, 1822
Binsted v. Barefoot, 1630
Bircef. Bletchley, 298
Birch, /?e, 1629

— f>, Ellames, 1044

— V. Sumner, 1395 '
Birchell, ex parte, 1384
Bird V. Appleton, 695

— V. Butler, 556

— tf. Gandy, 1137

— V, Heath, 640

— V. Hustler, 328, 329

— V. Kerr, 680

— V. Lake, 530, 1617, 1619, 1696

— r. Littlehales,,657, 658, 659
Birde v. Stride, 12 16
Birkenhead Docks v. Laird, 520
Birkett v. Hibbert, 1404, 1405
Birt ». Barton, 1346

Biscoe V. Brett, 502.

— V. Waring, 294
- V. Wilkes, 1496

Bishop, Re, 1385

— V. Chichester, 441

— V. Willis, 1567

— of Hereford w. Adams, 1542

— of Lincoln v. Ellis, 551

— of London v. Nicols, 167

— of Winchester v. Beavor, 131, 232

— V. Bowker, 1847, 1851, 1852

— V. Fournier, 673

— V. Knight, 1 66 1

— V. Paine, 235, 623, 1080, 1081,

1082, 1497
Bishopp V. Colebrook, 96
Bisset V. Antrobus, 921
Bissett V. Burgess, 1543
Blachford v. Oliver, 1048
Black ». Bailey, 1821

— e. Black, 1508, 1571 ^

— ». Creighton, 1820, 1821

— «. Harrington, 1301, 1312

— t). Jones, 683
Blackboard v. Lindigren, 1373
Blackborough v. Davis, 897

— ». Ravenhill, 1769
Blackburn t>. Gregson, 698

— V. Jepson, 17, 672, 1568, 1577

— ». Sheriff, 1 1 64

Blackburn •. Stace, 1813

— V. Sutton Coldfield, 190

— «. Warwick, 819
Blacker v. Phepoe, 540
Blacket v, Finney, yyo
Blackball v. Combs, 1638
Blackhan's Case, 1255

Blackmore v. Glamorganshire Canal Co.,
1690
-- V. Smith, 123, 124, 505, 513

— «. Snee, 1873
Blagrave «. Blagrave, 550, 552
Blain v. Agar, 197

— V. Terryberry, 605, 645, 837, 927,

1512
Blair v. Bromley, 159, 251

— V. Ormond, 194, '035

— V. Toppitt, 1793

Blake v. Blake, 41, 336, 500, 1236, 1237,
1606, 1761, 1809

— r. Cox, 517, 521

— V. Foster, 986, 1020

— V. Jones, 165

— V. Luxton, 1236, 1237

— ti. Smith, 69

— V. Veysie, 545
Blakeley v. Blakeley, 734

Blakeney w, Dufaur, 23, 25, 1762, 1763,

1766
Blanchard v. Cawthorne, 1 71 2, 1764

— V. Drew, 505

— V. Hill, 1673

Bland r. Davison, 1588, 1589, 1593

— V. Lamb, 35, 688, 1558, 1573

— V. Warren, 688
- V. Winter, 223

Blaney v. Hendricks, 800
Blann v. Bell, 1566
Blanshard v. Drew, 124
Blaydes v. Calvert, 1736
Bleckley v. Rymer, 449
Blenett v. Jessop, 1528
Blenkinsop v. Blenkinsop, 359, 360, 1845,
1856

— V. Foster, 1527
Blest V. Brown, 1493
Blewitt V. Blewitt, 264
Bligh V. Benson, 415

— V. Tredgett, 255, 256, 257

— V. Wellesley, 1344
Blind School v. Goven, 1826
Blinkehome v. Jeast, 1474
Blinston v. Warburton, 1873
Bliss V. Collins, 501, 1702

— V. Putman, 163, 1589
Blois V. Betts, 1797

Blomfield v. Eyre, 312, 1400, 1631, 1709
Blong V. Kennedy, 1 1 16
Blount t>. Bestland, 72

— V. Burrow, 185
Blower v. Morrets, 1590, 1591

iiiiaii!^

TABLE OF CASES.

XXXlll

Bloxton V. Drewit, 561
Bluck V. Colnaghi, 487, $02

— V. Galsworthy, 412, 1856
Blundell, J?e, 1902

Blunt, /ie, 1718, 1718

— V. Clitherow, 1785, 1786

— V. Cumyns, 1496
Board man v. Jackson, 789
Boddam v. Ryley, 799, 800
Boddington v. Woodley, 38, 325
Boddy, J?e, 1802

— V. Kent, SI 2, 1593, 1597, 1606
Boden's Trust, Jie, 154

Bodicoate v. Steers, 700, 706
Bodington v. Harris, 692
Boehm v. De Tastet, 1726.

— V. Wood, 1 190, 1734, 173s, 1736,

1742, 1743. 1744. 1763. 1775
Boger, /?e, 1712
Bogue V. Houlston, 1668
Boileau v. Rutlin, 529
Bolden v. Nicholay, 149
Bolton V. Bull, 1668

— V. Corporation of Liverpool, 405,

406, 408, 414, S'^^ ^854, 1856

— V. Pritchard, 686
-- V. Powell, 268

— V. Ridsdale, 1600

— V. Stannard, l8l
Bona, V. Davant, 977
Bond, Ex parte, 1398

— Re, 1384

— V. Barnes, 56

— V. Bell, 1496

— V. Graham, 206, 207

— w. Green, 892, 900

,1 — V. Hopkins, 395, 1689

— t>. Kent, 1012

— V. Simmons, 92

— V. Turner, 973
Bonfieldv. Grant, 138, 126
Bonham v. Newcombe, 987, 1028
Bonithon v. Hickmore, 943
Bonnadet «. Taylor, 1859
Bonner V. Johnston, 1813, 1815

— V. Worthington, 1743, 1744, 1745
Bonser v. Bradshaw, 675, 1759

— V. Cox, 1613
Bookless V. Crummack, 1634
Boomer v. Gibson, 333
Boon V. Collingwood, 1746
Booth V. Booth, 513, 1033

— V. Creswicke, 1083

— V. Rich, 130, 131, 1048

— V. Leycester, 484, 494, 814, 815,

816, 1631, 1650, 1652
Boothby w. Walker, 122 1, 1813
Bootle V. Blundell, 555, 556, 557, 631,

681, 693, 1265
Boovey V. Sutcliffe, 1743
Borr^am v. Bignall, 1500, 1531

Borough V. Whichcote, 549

Borough of Hertford v. Poor of Hertford,

1523

Borton v. Dunbar, 1577
Bosanquet v. Marsham, 417

— V. Shortridge, 683
Boschetti v. Power, 1820
Bosios Estate, 919
Boskellett v. Godolphin, 894
Bostwick V. Phillips, 992

— V. Shortis, 665
Bosvil V. Brander, 72, 100, loi
Boswell V Gravley, 1027, 1481
Boteler v. AUington, 403
Bothomley v. Squires, 268, 430
Botling V. Martin, 1246
Bottrell V. Summers, 1171
Boucher r. Smith, 1266
Boucicault v. Delafield, 52, 512, 633
Boulton V. Beard, 1521

— V. Church Society, 109, 200

— V. Don and Danforth Road Co. ,

1 129

— V. Gillespie, 10 11

— V. McNaughton, 372

— V. Stegman, 1367
Bound V. Wells, 1 730

Bourband v. Bourband, 51, 512, 1605

1703
Bourdillonv. Adair, 175
Bourn w. Bourn, 1154
Bourne v. Mole, 1810
Boussmaker, ex parte, 45
Bowden, Re, 1287

— V. Henderson, 1344
Bowen, Re, 642

— V Evans, 1282

— V. Fox, 1367, 1368

— V. Pearson, 1846

— V. Turner, 335
Bowerman v. Sybouin, 1288
Bowersbank v. CoUasseau, 1775
Bowes, Re, 1828

— V. Heaps, 1475
Bowet V. Fernie, 1846
Bowles' Case, 1659

— V. Weeks, 1384

— V. Stewart, 248, 304
Bowling V, Cobb, 979
Bowman v. Bell, 1768

— V. Beckett, 126

— V. Bowman, 666

— V. Fox, 1368

— V. Lygon, 423

— V. Rodwell, 597
Bown «. Child, 585, 588, 589

— V. Stenson, 617
Bowra v. Wright, 58
Bowser v. Colby, 561, 563

— V. Hughes, 50
Bowsher v. Watkins, 159, 268

•;i

!1

XXXIV

TABLE OP CASES.

11 1,1

I

ill-

111

Bowyer v. Beamish, 1590

— V. Bright, 1567, 1602

— V. Covert, 208, 243
Boxer v. Rabeth, 1254
Boyd V. Boyd, 972

— V. Brookes, 1529

— V. Hawkins, 953, 973

— V, Moyle, 300

— V. Wilson, 1085
Boyer v. Blackwell, 1156
Boyle V, Lysaght, 1687
Boyman v. Gutch, 1 219
Boynton v. Richardson, 1520
Boyse v. Colclough, 698

— V. Rossborough, 670, 673
Bozon V. Balland, 1018

— V. Williams, looo
Brace v. Blick, 562

— V. Duchess of Marlborough, 1480,

1529

— V. Harrington, 158

— V. Ormond, 1537

— V, Taylor, 272

— V. Wehnert, 1688
Bracebridge v. Buckley, 1687, 1688
Bracey v. Sandiford, 62
Brackenbury v. Brackenbury, 639
Bi ad berry V. Brooke, 35, 1573
Bradbury v. Dickens, 1673, 1688

— V. Shawe, 1723
Bradford v Boudinot, 962

— V. Nettleship, 1831
Bradish v. Gee, 608
Bradley v, Borlase, 439

— V. Bradley, 145 1

— V. Bevington, 6l6, 669, 675

— V. Crackenthorp, 593
Bradshaw v. Bradshaw, 581, 597, 1391,

1813, 1820

— V. Outrani, 237, 1064
Brady v. Walls, 1253, 1265, 1349
Braithwaite v. Robinson, 190
Bramley v. Teal, 1814
Bramston v. Carter, 336
Bramwell v. Bramwell, 1448

— V. Halcomb, 1670
Brand v. Martin, 1469
Brandford v. Freeman, 685
Brandling v. Humble 1832

Brandon v. Brandon, 236, 1569, 1586,
1799. 1873

— V. Curhng, 45

— V. Nesbitt, 44

— V. Sands, 387

— V. Wheeler, 143
Brant v. Dennett, 1827
Brashbridge v. Woodroffe, 1531
Brassey v. Chalmers, 168
Bratt V. Ellis, 1209

— V. Lee, 1336
Brattle v Waterman, 326

Brawell v. Reed, 1758
Bray v. Akers, 142, 143

— V. Fromont, 178

— V. West, 1541
Braybrooke v. Inskip, 1 22 1
Braye, He, 1630

Brazil, He, Barry v. Brazil, 912
Breach, ex parte, 1825

— V. Casterton, 688
Bredin v. Kingland, 961
Breeze v. English, 325, 337
Brennan, Re, 655 -^
Brent, Re, 1830

Bressenden v. Decreets, 237, 241, 242,

333.
Breton v. Coape, 1332, 1333
Brett, Re, 1632

— V. Beales 1279

— V. E. I. Co., 1686

— V. Forcer, 73
Brewin v. Austen, 822, 891
Brewster v. The Canada Co., 1642
Brian v. Wastel, 326

Bridge v. Brown, 921, 1395

— V. Eddows, 673
Bridger V. Penfold, 1 157
Bridges v. Longman, 1504
Bridget v. Hames, 182

Bridgewater v. De Winton, 453, 454, 1858
Bridgman v. Tennings, 1334
Bridgwood v, Wynn, 688
Bridson v. Brenecke, 1668

— V. Mc Alpine, 1668
Brierley v. Ward, 378, 379
Briggs V. Beale, 507
Brigham v. Smith, 29, 1503
Brignall v. Whitehead, 1581, 1606
Brigstocke v, Roche, 508
Brinton's Estate, 961, 962
Brisco V. Brisco, 1446, 1453

— V. Kenrick, 173
Briscoe v. Perkins, 1219, 1222
Bristow V. Towers, 44

— V. Whitmore, 625
Bristowe «. Needham, 1720, 1781, 1782,

1786, 1 79 1
British Empire Shipping^Co. v. Somes,

390, 1649
British and Foreign Gas Co., Re, 1630
Britton v. South Wales Railway Co., 687 1
Brizick v. Manners, 1006
Broad v. Wickham, 1778
Broadbent v. Imperial Gas Co., 1663
Broadhurst v. Tunnicliff, 634
Broadway w . Morecraft, 819
Brock V. Saul, 1152, 1153
Brocker w. Hamilton, 1732
Brockington v. Palmer, 676, 1469, 1675,1

1698
Brocklehurst v. Jessop, 1035
Brocksopp V. Barnes, 935, 942

11

TABLE OF CASE&

XXXV

f20, I781, 1782,1

LCo. V, Somes, ;

Broderick v. Broderick, 1639
i Brodie v. Barry, 778

— V. Bolton, 1542, 1543
_ V. St. Paul, 1477, 1499

! Brody v. Barrie, 1758

Brograve v. Watts, 651

Brokes v. Mayor of London, 1333

Biomage v. Davies, 1353

Bromfield v. Chichester, 1726
1 Bromley v. Bromley, 1440

— V. Smith, 198, 1475
Brook V. , 1352

— V. Alcock, 35

— v.^Biddall, 580

— V. Mostyn, 129, 130, 136

— Lord V. Lord Hertford, 57, 58
Ikooke V. Brooke, 1586, 1588

V. Campbell, 1305, 1314
V. Clarke, 873, 1705
V. Hewitt, 383, 384

• V. Hickes, 73, 84

• V. Lord Mostyn, 494 -

- Lord w. Earl of Warwick, 1576
JBrooker, /ie, 1634

— V. Brooker, 735, 1634, 1768
I Brookes v. Boucher, 305, 450
JBrookfieldv. Bradley, 1155, 1585
iBrookman, He, 1627
I Brooks V. Brooks, 88, 140

■ V. Day, 1 192

- V. Greathead, 658, 661

■ V. Hickes, 73

- V. Purton, 480, 1606, 1648

■ V. Reynolds, 1632

- V. Snaith, 1 1 54

- V. Whitworth, Lord, 276
iBii-jksbank V. Higginbottom, 489
JBrophy v. Holmes, 1563, 1571
IBrothers v. Lloyd, 1 138
iBroughal v. Hector, 648
iBiougham, Lord v. Lord Poulett, 1532
I — v. Powlett, 913

iBroughton v. Broughton, 1516

— V. Martyn, 1725
Brougton v. Lashmar, 484

iBrown, /if, 1828, 1866

- tx parte, 1885

- ('. Baker, 372

- v. Barkham, 801, 818, 822

- {•. Brown, 64, 1453

- V. Clark, 82, 695

- *. Clerk, 68

- V. Cole, 1 114

- V. Dawson, 37

- V. De "Tastet, 178, 794. 863, 949,
1823

V. Deacon, ilii

- 0. Dowthwaite, 210 '

- V. Elton, 73

- V. Groombridge, 913

- V. Hayward, 147, 556

Brown v. Higgs, 1568

- V. Home, 377
- V. How, 1521

- V. Kelly, 1813

- V. Lake, 197, 473. 1585

- t). Lee, 464, 1725

- V. Litton, 949

- V. Oakshatt, 1857

— V. Oakley, 1 106

— V. Perry, 1772, 1797

— V. Perkins, 1849

— V. Pitman, 208

— V. Pringle, 1825

— V. Robertson, 161 2

— V. Sage, 1714

— V. Sewell, 305

— V. Stead, 1055

— V. Storey, 684

— V Weatherhead, 64
Browne, Re, 1104

— V, Blunt, 1752

— V. Blount, 117, 120

— V. Groombridge, 1532

— V. Lockhart, 1070, 1467, 1622, 1858

— V. Smith, 609

— V. Southouse, 830, 832

— V. Warner, 1594
Browning v. Sloman, 479

Brownlee v. Cunningham, 855, 867, 1 1 10
Brownsword v. Edwards, 26b, 383, 388,

398, 422
Bruce ex parte, 1007

— V, Bainbridge, 1506

— V. Kinlock, 1621, 1629

— V. Rawlins, 687,
Bruere v. Pemberton, 830, 877

— V. Wharton, 624, 822
Bruin*. Knott, 1398, 1517
Bruiton v. Birch, 164
Brumfit V. Hart, 517, 519
Brummell v. Wharin, 1666
BxyxnV.tx, ex parte, 1732, 1733, 1 739
Brunswick, Duke of, v. Duke of Cam*

bridge, 453

— V. King of Hanover, 13, ill
Bryan*. Cormick, 1751, 1778

— V. Metropolitan Saloon Omnibus

Co., 1567

— V. Truman, 479

— V. Twigg, 138, 1586
Bryant *. Busk, 1228, 1497

— V. Hill, 1315

— V. Puckett, 980

— V. Rusk, 1 216
Brydges v. Hatch, 585

Bryson v, Warwick and Birmingham Canal

Co., 582
Buchanan*. Green way, 1134

— *. Hodgson, 1853

— ». Kerby, 11 04
V. Malins, 1 58 1

3

k *

t (

M

%

Ik

XXXVl^

TABLE OF CASES,

I

\ ■

i I

l!l!l!(:

ll

;l

Buchanan v. Rucker, 1288
Buck V, Fawcett, 1556

— V. Lodge, 1 81 3
Buckeridgc, v. Whalley, 581
Buckingham V. Buckingham, 1708
Buckland v. Pocknell, loi i
Buckler v. Bowman, 1023
Buckley V. Ouillette, 1127

— V. Puckeridge, 63

— V. Wilson, 1091
Buckmaster v. Harrop, 1575
Buckworth v. Buckworth, 1395
Budd, ex parte, 1612

Buden v. Dore, 414
Budge V. Budge, 1507
Budgen v. Sage, 493

— V. South, 1 85 1
Buleel, ex parte, I

Bulkeley v. Dunbar, 248, 435, 437

— V. Earl of Eglinton, 1541

— V. Hope, 1867, 1 87 1
Bull V. Withey, 146
Bullen V. Michel, 555

— V. Ovey, 1 713

— V. Renewick. 1826
Bullock 0. Chapman, 1638

— V. Menzies, 81, 82

— V Perkins, 339, 341

— V. Wheatley, 1521
Bulmer v. Alison, 1 371

— V. Astley, 810, 812, 998
Bunbury v. Bunbury, 411, 412, 1651, 1765.

1856

— V. Lindsay, 1766
Bunker, Re, 1785
Bunn, ex parte, 597, 727

— V. Barclay, 143

— V. Bunn, 446, 1857
Bunnett, Re, 1629

— V. Foster, 1538

Bunyan v, Mortimer, 142, 146, 352
Burbridge v. Robinson, 1845, 1849
Burch V. Coney, 620
Burdell v. Hay, 1468
Burden u. Burden, 831, 935
Burdet v. Pix, 899
Burdett v. Hay, 1636

— V. Rockley, 658, 662, 663
Burford V. Lymburner, II2I

Burge V. Brutton, 256, 898, 935, 1516
Burges v. Mawbey, 809, 810, 812
Burgess v. Burgess, 1418, 1673

— V. Hateley, 489, 1468, i486

— w. Hills, 489, 1468, i486

— V. Howell, 1012

— V. Langley, 688

— V. Sturges, 1061

— V. Wheate, 106, 951, 952, 1016
Burgh V. Langton, 1136

Burke, Re, 69, 1399

— V. Brown, 106

Burke v. Crosbie, ICO, 1288

— V. Lidwell, 3r
Burkett v. RandoU, 674

— V. Ransom, 1543

— V. Spray, 1538, 1560
Buries V. Popple well, 1633
Burlton v. Carpenter, 643
Burmister r. Von Stenz, 19, 511
Burn V. Bowes, 1822
Burnaby v. Griffin, 1497
Bume V. Breen, 1473

— V. Richardson, 1246
Burnell, Re, 1629

— V. Brown, 1223

— V. Duke of Wellington, 511

— «. Martin 1032
Burnet v. Dixe, 899
Burnett v. Chetwood, 1670

— V. Lynch, 1242, 133 1
Burney v. Macdonald, 8

— V. Morgan, 1597
Burnham v. Bennett, 94

— V. Burnham, 503

— V. Daly, 1 197
Burns v. Chisholm, 501
Burnside v, Lunn, 1089
Burr V. McEwen, 961
Burrell v. Delavante, 1501

— V. Nicholson, 415, 1854
Burroughs v. Oakley, 618, 1220, 1223,

1812, 1813
Burrowes v. Gore, 267

— V. Hainey, 472

— .V. Malloy, 1024, 1027, 1028
Burry Port Co. v. Bowser, 39
Burt V. Dennett, 204

— V. Sturt, 1872, 1873

— V. The British Nation Life Assu-

rance Association, 201
Burtis V. Dodge, 959
Burton v. Robertson, 418, 420
Burwell v. Coates, 265

— V. Corrant, 909
Bury V. Bedford, 1673

— V. Newport, 1767

— V. Phillpott, 536, 673
Bushby v. Munday, 494, 1650, 165 1
Bushell V. Bushell, 146

Busk V. Beetham, 25

Butcher v. Jackson, 262

Bute, Marquis of, v. Stuart, 1385, 1650

Butler, ex parte, 48

— V. Butler, 1394, 1456, 1736, 1737

— w. Borton, 118

— V. Duncomb, 801

— V. Freeman, 1385, 1404

— V. Gardener, 38, 1 621
Butlin r. Arnold, 320

— V. Masters, 677, 1563, 1570, 1668
Butt, Re, 80

Butterworth, v. Bailey, 324

TABLE OF CASES.

XXXVll

Butterworth r. Robinson, 1670

Buttler V. Matthews, 375

Buxton V. James, 1665, 1668, 1 691

— V, Lister, 1 500

— V. Mardin, 692

— V. Monkhouse, 1759
Byam v. Sutton, 164

Byde v. Masterman, 287, 455
Byfield v. Provis, 1569
Byne, ex pirte, 667
Byng V. Clark, 465
Byrne v. Byrne, 1689

— V. Frere, 551

— V. Norcott, 1,1525

Byron, Lord v. Johnston, 1694, 1695
By waters. Re, 1768

Cabel Ke, 1833
Caddick v. Masoon, 52
Cade V. Newhall, 865
Cadogan v. Rennett, 1680
Cafe V. Bent, 1380
Caffrey v. Darby, 950, 1521
Cahill V. Shepherd, 46
Cahuac v. Dickenson, 890

— V. Durie, 1645
Caillard v. Caillard, 1769
Cairnes v. Chaubert, 957, 959
Calcraft v. Roebuck, 1223

— V. Gibbs, 683
Caldecott v. Caldecott, 176

— V. Harrison, 77
Caklwell v. Ernest, 510

— V. Vanvlissengen, 1668
Callaghan v. Hall, 966
Cailey v. Richards, 411, 1856
Callicott, Re, 180

Callow V. Howie, 148

— I'. Mince, 766
Calmadyv. Calmady, 711
Calton V. Bragg, 804

Calverley u, Phelp, 179, 180, 214, 1075

— V. Williams, 1497
Calvert!'. Adams, 1761

— V. Day, 21

— V. Godfrey, 132, 1352, 1353
Camden v. Benson, 1352

Cameron's AV, Coalbrook Ry. Co., 409,
581

— V. Bethune, 983

— V. Bradbury, 1508

— V. Cameron, 1 1 1 7

— V. Lynes, 767, 1060, H15

— V. Macdonald, 730

— V. McRae, 1028

— V. U. C. Mining Co., 376

— y. Vanevery, 502

— V. Wolt Island Canal Co., 1570
Campbell v. Allgood, 1660

4 A

Campbell v. Andrews, 293

— V. Campbell, 55, 1522, 1572.

— V. Dickens, 245

— V. Durkin, 993

— V. Ferris, 506

— V. French, 75

— V. Garrett, II2I

— V, Gorham, 1724

— V. Harding, 76, 1826

— V. Home, 15 14

— V. Mackay, 276, 277, 278, 280,

384. 1393

— V. Royal Canadian Bank, 1 28 1

— V. Sandys, 1236

— V. Scott, 1667

— V. Taylor, 353

— V. Walker, 1147

— V. Young, 1684

Canada Permanent Bdg. Sy. v. B. U.

Canada, 1645
Canada Permanent Bdg. Sy. «. Wallis,

1359
Canham v. Fisk, 695

— V, Neale, 492, 1635
Caniffe v. Taylor, 354
Cann v, Cann, 593
Cannell v. Beeby 1538
Canning v. Canning, 707, 709

— V. Hicks, 1036
Cannock v. Jauncey, 1855, 1858
Cant's Estate, Re, (i2'i, 1539
Capel V. Butler, 118

Capel's Case, 1232
Capper V. Spottiswoode, lOl I
Car V. Boutler, 1068
Card V, Jaffray, 990
Carew, Rn, 11 58, 1882

— V. Cooper, 653, 1 764

— V. Davis, 1859

— V. Johnston, 136, 303
Carler v. Green, 1542
Carleton v. Leighton, 51

— V. L' Estrange, 334

— V. McEnzie, 143

— V. Smith, 759

Carlisle v. South Eastern Ry. Co., 197,

200, 201
Carnan v. Bowles, 1671
Came v. Nicholl, 685
Carney v. Boulton, 327
Carpenter v. Wood, 730, 73S» 770
Carpmael v. Powis, 409, 596, 1857
Carr v. Carr, 1452

— V. Eastabrook, 86, 1832

— V. Henderson, 1479, 1527

— V. Living, 1384, 1399

— V. Taylor, 72
Carrick v. Young, 513
Carrington v. Cornock, 552

— V. Holly, 486, 487

— Lord V. Payne, 556, 1265

I

8 !

3'! I
3f

! '■

II.; ' '

XXXVIU

TABLE OF CASES.

^!, I

'I,':"

i Wr

Carrington v. Pell, 612
CarrocTus V. Sharpe, 618, 1504
Carrol v. Moore, 980

— V. Hopkins, 1030

— V. Perth, 1692

— V. Robertson, 1107

Carron Co., v. Maclaren, 1632, 1702
Carte v. Ball, 305, 443

— V. Bull, 189
Carter, ex parte, 1052

— V. Colrain, Lord, 789

— V. Cutting, 972

— V. Sanders, 192

— V. Taggart, 83, 86
Carteret, Lord v. Paschall, 100, 102
Cartierv. Carlisle, 1673
Cartwright, /?e, 1628

— V. Cartwright, 1 33, 134

— V. Diehl, 711

— V. Green, 146, 398

— V. Shepherd, 1588
Carver v. Richards, 1498
Carwick v. Young, 515, 516
Cary v. Bertie, 1400

— V. Fadden, 1670
Casamajor v. Strode, 1632
Casberd u. Att'y.-Gen., 1072
Casbome v. Scarfe, 986
Casey, He, Biddell v. Casey, 767

— V. McCoU, 1551

Cash V. Belcher, 174, 437, 438, 440, 1055,

1057
Cashell v. Kelly, 444, 1056
Cassel, ex parte, 954
Cassel and Spayd, ex parte, 960
Cassell V. Stiff, 264, 1668
Cassey v. Cassey, 718
Cast V. Poyser, 580, 778, 1621
Castelli v. Cook, 1693
Castle's Case, 667
Cater, ^^,1513
Cathcart v. Lewis, 158
Catholic Publishing and Bookselling Co.,

Re, 668
Caton V. Lewis, 1846
Cator V. Butler, 190

— «. Croydon Canal Co., 165

— V. Pembroke, 1009
Catton V. Earl of Carlisle, 1602

— V. Wyld, 676
Cattellv. Corall, 1220

— V. Simons, 1507, 1723
Cattely v. Arnold, 706
Caulfield v. Maguire, 812
Cauty V. Houlditch, 1 618

Cavev. Cork, 1064, 1073, "SSi. 1583

— V. Roberts, 952
Cavendish v. Fleming, 972

— u Mercer, 1394, 1398
Caverhill, Re, 1207, 1324
Caverley v. Dudley, 994

Cavil V. Smith, 655
Cawthorn v. Chalie, 422
Cawthra v. McGuire, 1659
Cayley V. Colbert, 1152

— V. Hodgson, 1023
Cecil V. Lord Salisbury, 133
Chadwick, ex parte, 1722

— V. Broadwood, 333

— V. Maden, 234

— V. Turner, 474, 478
Chaffers V. Baker, 127, i6ii

— V. Headlam, 163, 164, 1809
Chalie v. G 'ynne, 488, 1621

Chalk V. Raine, 522, 561, 563, 613, 1754

— V. Wyatt, 1664
Challie v. Gwynne, 488, 162X
Chalmers v. Laurie, 343
Chamberlain, Re, 1345, 1828

— V. Knapp, 404

— V. Lee, 1351

— V. McDonald, 426

— V. Thacker, i8l
Chamh??rlyne v. Dummer, 1660
Chambers, ex parte, 1395

— V. Bull, 141

— V. Caulfield, 687

— V. Chambers, 40, 1427, 1439

— V. Goldwin, 155, 216, 817, 819,

936, 1067, 1754, 1801

— V. Harvest, 893

— V. Robinson, 693

— V. Toynbee, 1612
Chamley v. Lord Dunsany, 549
Champernowne v. Scott, 851
Champion, ex parte, 819
Champneys v. Buchan, 330
Chance v. Henderson, 431
Chancellor v. Morecraft, 182, 224
Chancey v, Fenhoulet, 402, 403

— V. May, 19, 196
Chandos, Duke of v. Talbot, 145
Chant V. Brown, 41 1
Chantler v. Ince, 1357
Chapeaurouge v. Carteaux, 1741
Chaplin, Re, 1630

— V. Chaplin, 809, 812
Chapman v. Beach, 1762

— V. Chapman, 304, 306, 544, 1000

— w. Esgar, 911

— V. Fowler, 1151, Ii6i

— V. Partridge, 695

— V. Tanner, 809

— V. Turner, 893, 900
Chappell V. Davidson, 1694

— V. Gregory, 1559

— V. Purdy, 1559

— V. Rees 235, 1049, 1058
Chappie V. Cadell, 275
Chard v. Meyers, 866

Charlton v. Coombes, 413, 596, 1856
Charter, ex parte, 853

TABLE OF CASES.

XXZIX

Charton v, Douglass, 1681

Chase v. Lockerman, 969

Chaswick v. Bunning, 1334

Chatfield, v. Berchtoldt, 361

Chatteris v. Young, 1390, 1 391

Chauncey v. Tahourden, 402, 403

Chautor v. Trinity College, 196

Chedworth, Lord v. Edwards, 1679

Cheeseborough v. Wright, 325

Chelmsford School, /?«, 1902

Chenel v. Churchman, 1706

Chennel v. Martin, 847

Cherry v. Morton, 475, 477

Chervet v. Jones, 531

Chester v. Metropolitan Railway Co.,

489, 1485
Chesterfield, Earl v. Lady Cromwell, 821
Chestnut College, /?e, 1883
Chetham v. Lord Audley, 937

— V. Grugeon, U57
Chettle V. Chettle, I426

Chetwynd v. Linden, 398, 399, 416, 420
Chichester v. Chichester, 542, 556, 562

— V. Hunter, 511
Chicot V. Lequesne, 247
Child V. Brabson, 1 726

— V. Gibson, 831
Chillingworth v. Chillingworth, 752
Chilton V. Carrington, 1003
Chinnock v. Marchioness of Ely, 676

— V, Sainsbury, 676
Chion, ex parte, 48
Chippendale v. Tomlinson, 47
Chisholm v. Barnard, 925, 928, 982

— V. Sheldon, 340, 1654, 1843
Chiosum V. Dewes, 893, 1529, 1818
Chitty V. Parker, 107

Cholmley v. Countess of Oxford, 235,

1028
Cholmondeley v. Clinton, 159, 171, 174,

187, 188, 191, 222, 324, 333

395, 411, 1023, 1052, 1059

1062, 1064, 1677
Cholmondely, Earl of v. Earl of Orford,

585. 623
Chowick V. Dimes, 511
Christ Church, ex parte, 1629
Christian w. Chambers, 1374

— V. Foster, 1537

— V. Taylor, 452

— V. Wrenn, 550
Christie, Re, 1 394

— V. Cameron, 126, 127

— V. Craig, 1680

— V. Johnston, 1301, 1312

— V. Long, 1657

— V. Saunders, 1657
Christophers v. Sparke, 238, 1064

— V. White, 935, 1516

Christ's Coll. Cam. v. Widdrington, 532

— Hospital, ^x/a/*^, 1378, 1379

Christ's Hospital v. Grainger, 1906

— V. Granger, 1906

Chuck V, Cremer, 336, 500, 641, 1606,

1608, 1723, 1727
Church, ex parte, 1255

— V. Marsh, 36, 38, 1607 |
Churchill v. Collier, 560
Churton w. Douglas, 1673

— V. Irewen, 477, 1857
Chute V. Lady Dacre, 473
City Bank v. Amsden, 326

— V. Scatcherd, 1515

City of Berne v. Bank of England, 13, 14
City of Toronto v, McGill, 601
City of London v. Mitford, 1687

— V. Nash, 1688

— v. Perkins, 229, 281, 552

— V. Pugh, 1683

— V. Richmond, l66, 212

— V. Thomson, 1840
Clack V. Carlon, 15 16

— V. Holland, 1017
Clagett V. Phillips, 406, 1856
Clancarty, Lord v, Latouche, 820
Clancy f. Patterson, 647, 770, 1724
Clanrickarde, Marquis olv. Henning, 1488
Clare v. Wood, 563

Clarendon, Earl of v. Hornby, 705, 706

Clarges v, Sherwin, 1288

Claridge v. Hoare, 398

Clark V. C'ark, 338, 343, 648, 1664, 1724

— V. Dew, 1721, 1756, 1760

— V. Ferguson, 22, 1668

— V. Freeman, 1673

— V. Gill, 579
-s V. Hall, 518

— V. Jaques, 1620, 1621

— V. McGregor, 1285

— V. Tipping, 51, 310, 512

— V. Webb, 208
Clarke, ex parte, 1729

— Ji', 729

— V. Batters, 1680

— V. Bridge, 1573

— V. Calvert, 47

— V. Clayton, 7cx>

— V. Earl of Ormonde, 313, 1632,

i633> 1634, 1650

— V. Elliott, 1813, 1814

— V. Faux, 1224

— V. Hart, 1465

— V. Hawke, 566
^- V. Law, 568

— V. Little, 1020

- V. Lord Abingdon, 797, 816, 904

— V. Periam, 286, 538

— V. Price, 1681

— V. Royle, 1009, loii

— 0. Seton, 796, 816

— V. Tipping, 51, 310, 512

— V. Tj--n, 537

\U

0)1

0 i

TABLE OF CASES.

"

Clarke v. Wilmot, 124, 440

— V. Wilson, 610, 1813

— V. Woodward, 76

— V. Wyburn, 35
Clarkson v. Edge, 676, 1681

— V. Woodnouse, 1323
Clay V. , 1 1 29

— V, PenniriRton, 1395, 1398

— V. RuflTord, 202

— V. Willis, 909
Clayton v. Clarke, 57

Cleeve v. Gascoigne, 678, 680, 695
Clegg V, Edmonson, 450

— V. Fish wick, 160, 1762, 1763
Cleland v. Cleland, 207

Clement v. Griffith, 1616

— V. Maddick, 1673
Clements f. Bowes, 192, 252

— V. Beresford, 1791
Clerk V. McElroy, 144

— V. Udall, 693
Gierke v. Lord Anglesey, 72
Clerkson v. Bowyer, 180, 1073
Cleveland's, Duke of, Harte Estates, /ie,

125, 1627, 1716
Cleveland v. McDonald, 214
Cleverly v. Cleverly, 1634
Cliffe V. Wilkinson, 28
Clifford V. Turrell, 631, 901
Clifton V. Bentall, 481

— V. Cockburn, 1639

— V. Orchard, 1490

— V. Robinson, 1693
Clinan v. Cooke, 1503
Clinton, Re, 1830, 1831
Clive V. Beaumont, 265, 303

— V. Carew, 148, 149
Clough V. Dixon, 1065
Cloustert/. McLean, 853
Clowes V. Beck, 1488

— V. Higginson, 1187

— V. Waters, 816
Clute V. Macaulay, 1020

Glutton V. Pardon, 1464, 1548, 1630
Coate V. Macbeth, 483
Goates I/. Hawkyard, 1552

— V. McGlashan, 866

Cobourg and Peterboro Railway v. Covert,

606
Cochenour v. Bullock, 1348
Cocher v. Biers, 11 18
Cochrane?'. Cochrane, 1151, 1154

— V. Fearon, 20, 1625

— V. Phillips, 1585

— V. Willis, 260, 383, 434
Cock V. Crosse, 899

— V, Ravie 1736
Cockburn v. Gillespie, 226, 1054

— V. Raphael, 1766, 1773
Cockel V. Phipps, 85
Cockell V. Bacon, 1032, 1034

Cocker v. Bevis, 1133
Cocking t*. Pratt, 1639
Cockroft if. Black, 894
Cockes /'. Sherman, 232
Cocks V. Foley, 271

— V. Purday, 1622

— V. Thompson, 19, 175, 196
Codd V. Wooden, 1647
Codrington v. Earl of Shclburn, 147

— V. Johnstone, 133, 137, 1777,

1783, I 80 I

— V. Parker, 1753

— V. Webb, 678

Coe z/. Westernham, 1264
Coffin i*. Cooper, 285, 1351
Cogan V. Stephens, 620
Cogian V. Requeneau, 1700
Coke V. Fountain, 550
Colborne v, Thomas, 584, 1009
Colburn v. Duncombe, 264

— V. Sims, 1470, 1707, 1681
Colclough V. Boyse, 556

— V. Evans, 1601

— V. Sterum, 1281
Coldwell z/. Hall, 839, 1107
Cole z". burgess, 1635

— V, Cole, 796

— V. Gray, 147

— V. Glover, 395

— V, Levingston, 1239

— V. Peyson, 1652

— V. Scott, 1555

— V. Sewell, 701

Colebrook v. The Attorney General, 109

— V. Jones, 22
Colebrooke I/. Clarke, 1 160
Coleman v. Glanville, 1204, 1787

— V. West Hartlepool Railway, 667

1859
Coles V. Barrow, 47

— V. Bullman, 694

— V. Forrest, 214, 1061, 1075, 1076,

1081, 1082, 1083, 1476

— V. Sims, 1681, 1686, 1691

— V. Trecothic, 612
Colgrave v. Juson, 678
Collard v. Allison, 1668

— V. Cooper, 1695

— V. Roe, 1559
Collendar v. Teasdale, 1833
Collet z'. Wolleston, 122, 211
Collett V. Hover, 190

— V. Newnham, 806

— V. Preston, 1507
Collingwood v. Russell, 260, 383, 434
Collins z/. Carey, 935, 1516

— V. Greaves, 502, 508

— V. Griffith, 223

— V, Lamport, 1680

— V. Saurey, 669

— V. Shirley, I2I, 174, 1055, 1056, 1057 j

TABLE or CASES.

zU

General, 109

Collins Co. V. Walker, 1469, i486

— V. Stutely, 676
Collinsonr. , 313, 1739, 1742

_ v. Lister, 633, 1595
Collis V. Collis, 485, 1811

— V. Swayne, 387
Collyer V. Fallon, 653, 1764
Colman v. Northcote, I2(, 145, 470

— r. Eastern Countit ^ Ky. Co., 197,

201, 202
_ V. Sarrell, 639, 1509
Colmer v. Colmer, 82
Colmore r. Tyndall, 1 176
Colonial Life Ass'nce. Co. v. Home and

Colonial Co., 1673
Colquhoun, J!e, 1578
Colstcn V. Gardner, 651, 656, 657, 658
Columbian Government v. Rothschild, 13,

15. 310

Columbine v. Chichester, 259, 389
Colyerv. Clay, 1017

— V. Colyer, 342, 1847

Combe v. Corporation of London, 407,

415, 1855, 1856
Combes v. Spencer, 1344
Coming, ex parte, 1005
Commander v. Gilrie, 128, 1474
Commerell v. Hall, or Bell, 1580, 1599,

1600
Comm. Bank v. Elwood, 1508

— V, Graham, 11 15

— V. McConnell, 1358
Commins v. Brownfield, 457
Commissioners of Charitable Donation <».

Hunter, 1567
Compton V. Earl Grey, 414
Concannon v. Cruise, 557
Coningsby, Lord v. jekyll 333
Connell V. Curran, 15 10
Connolly v. Montgomery, 858

— V, McDermott, 294
Connor u. B. U. C, 277

— V, Connor, 1760

— V, Douglas, 1309

— V. McPherson, 1305

— V. Spragge, 645
Consett V. Bell, 268

Const V. Barr, 474, 650, 1228, 1624

— V. Ebers, 1728

— V. Harris, 428, 1699, 1762
Constable v. Guest, 1 105

— V. Howick, 624
Conway z/. Shrimpton, 821

— V. Stroud, 159

Conyers v. Lord Abergavenny, 1 709

— School, Re, 1889
Good T/. Good, 1651, 1652

— V. Pollard, 1012
Cook V. Beardsall, 688

— V. Boulton, 1585

— V, Broomhead, 609

Cook V. Butt, 218

— V, CoUingridge, 794, 950

— V. Fryer, 63, 88

— V. Fuller, 76

— V. Gingrich, 880

— V. Gregson, 909, 914

— V. Jones, 1305, 1312

— V. Martin, 269, 304, 308

— V. Sadler, 1134

— V. Smith, 1642

— V. Sturgis, 49, 50

— V. Walsh, 1571, 1572

— V. Wood, 360
Cooke V. Berry, 689, 69 1

— 7'. Blunt, 189

— V. Cholmondeley, 670

— V. Clay.vorth, 532

— V. Cooke, 155, 1454, 1545 '

— V. Collingridge, 794, 950

— V, Fryer, 63, 88

— :'. Gittings, 207

— V. Gwyn, 620, 872, 873

— V. Lamotte, 537

— V. Lloyd, 1320

— V. Turner, 402, 446, 670

— V. Westall, 459

Cookney v. Anderson, 358, 388, 389
Cooksey v. Haynes, 688
Cookson V. Bingham, 1533, 1873

-- V. Ellison, 249, 250
Coombe, ex parte, \oo\, 1003, 1046

— V. Hughes, 1538

— V. Stewart, 624, 1 1 18, 1 131
Coombes v. Brooks, 677
Cooney ?'. Gi.vin, 1613

Coope z/. Creswell, 175 1, 1754
Cooper V. Cooper, 1873

— V. Denne, 1 187, 1219

— V. Earl Powis, 422

— V. Hubbuck, 1664, 1691

— V. Knox, 1606

— p. Lane, 355

— V. Lewis, 434, 484, 1606

— V. Pitcher, 1 531

— V. Purton, 24

— V. Uttoxeter Burial Board, 473, 474

— V. Webb, 196

— V. Wood, 357
Cooth V. Jackson, 532, 1500
Cope V. Cope, 1321

— V. Parry, 155, 459
Copeland v. Webb, 668

— V. Wheeler, 132
Copis V, Middleton, 234, 1067
Copley z/. Smithson, 119
Coppard v. Allen, 205, 224
Coppin V. Coppin, 1499

— z/. Jernyhough, 1241, 1245
Coppinger v. Gubbins, 1652
Corbet v. Davenant, 709

— V. Johnston, 1312

li),

\\

xlii

TABLE OP CASES.

K:i

ii'ii!''

HiiT,

:!|l

!'lr

Corbet v. Tottenham, 1394
Corbett v. Coibett, 35, 37, 593

— V. Meyers, 646, 1727, 1819
Cordwell v. Mackrill, 1347
Cornish v. Gest, 167, 219, 712
Cornwall v, lirown, 1482
Corporation of Gloucester v. Wood, 1565
Corporation of Ludlow v. Greenhouse,

1884, 1885, 1888

Corporation of Rochester v. Lee, 1 7, 620,
694, 698, 699, 1559

Corporation of the Sons of the Clergy, v.
Mose, 108

Corporation of the Sons of the Clergy v.
Trustees of Stock Exchange,
1 901

Corporation of South Molton, v. Attorney-
General, 9

Corporation of Trinity House v. Burge,
401

Corry v. Trist, 194

Correspondent Newspaper Co. v. Saun-
ders, 1673

Corsellis v. Corsellis, 1876

Cory V.Yarmouth & Norwich R. W. Co.,
1704

Cossey v. Duck low, 316

Costabadie v. Costabadie, 1380

Coster V. Coster, 80, 82

— V. Merest, 689

Cotching V. Bassett, 1664 '

Cotham v. West, 841, 843
Cotheru Midland R.VV. Co., 1700
Cotter V. Sutherland, 1300, 13 16
Cotterell v. Purchase, 99c

— V. Watkins, 1225, 1227, 1228
Cottle V. Cummings, 1862

— V. Vansittart, 759, 1841
Cotton V. Cameron, 499

— V. Clark, 1507, 151 1, 1519

— V. Corby, 1574

— V. lies, 1036

— r. Pep»-ose, 1536

— V. Trefusis, 137
Coulson V. Graham, 1 726

— V. White, 1664
Coulsting V. Coulsting, 34, 36
Count de Wall's Case, 42
Counter v. Wylde, 1 1 14

Countess of Carlisle v. Earl Carlisle, 1773
Countess of Ferrers v. Earl Ferrers, 799
Countess of Gainsborough v. Gifford, 473,

1638
Countess of Plymouth v. Bladon, 515
Courand v. Hanmer, 1511, 1781, 1787
Course v. Humphrey, 457, 1515
Court V. JefTery, 184
Courthope v. Mapplesden, 1655
Courtney v. Stock, 609
Courtois, He, 1626
Courtoy v. Vincent, 17 16

Cousin^ V. Sn<uh, 428, 1699

— V. Vasey, 520
Coussmaker v. Semel, 1226
Coveny, v. Athill, 589

Covert V. B. of U. Canada, 1491
Coward V. Chadwick, 117, 1752
Cowdray v. Cross, 649
Cowgill V. Rhodes, 668, 671, 1474
Cowper, Earl v. Baker, 1655

— V. Scott, 1559

— V. Taylor, 655

Cowslad V. Cely, 1 16, 208, 227, 243
Cox V. Allingham, 528, 543, 1322

— V. Barnard, 181

— V. Chamberlain, 1497

— V. Cox, 711

— V. Kitchin, 683

— V. Paxtons, 1679

— V. Peele, 1137

— V. Stephens, 225, 226, 243

— V. Taylor, '.63

— V. Toole, 1044

— V. Wright, 54, 62, 1613
Coyle V. Alleyn, 1726
Cozens v, McDougall, 864
Crabbe v. Mouberry, 125
Crackeltv. Bethune, 835, 1520
Cracker v. Parrott, 185
Cradock v. Owen, 637

— V. Piper, 936, 1516, 1577
Cragg w. Duke of Norfolk, 1347
Craig V. Bolton, 24

— ex parte, 1866, 1867

— V. Craig, 1452
Cramer, ex parte, 164

Cranborne, Viscountess v. Palmahoy, 91
Cranburne, Lady v. Crispe, 227
Cranch v. Brissett, 15CX3
Crandell v. Moon, 795, 1619
Cranstoun, Lord, v. Johnston, 532, 540,

1482
Crauford v. The Attorney-General, 109
Crawford v. Armour, 1053

— V. Bradburn, 324

— V. Cooke, 355

— y. Shuttock, 1674
Craword v. Curragh, 1256
Crawshay v. Collins, 949

— V. Thornton, 1629
Creak v. Capell, 1822
Crease v. Barrett, 682
Creasor v. Robinson, 207, 264
Creed v. Fisher, 687

— V. Perry, 96

Creditors of Sir Charles Cox, Re, 908, 909
Cressett v. Mitton, 300, 301
Creswell v. Bateman, 222, 1591

— V. Cheslyn, 1534

— V. Haines, 1499

Cresy V. Beavan, 324, 418, 1636, 1704
Creuze v. Bishop of London, 1775

TABLE OP CASES.

xliii

?

Creuze v. Hunter, 801, 813, 821, 823, 875,

877

Crew V. Joliflfe, 699, 1472

Crewe w. Crewe, 1422

I49I

— Lord, V. Colleston, 1765

1752

Cridland v. Lord de Manley, 334, 1847

Crippent/. Ogilvie, 1 1 04

, 1474

Cripps V. Jee, 993

5

Crisp V. Platel, 1852, 1858

Crockett v. Bishton, 572

Crockford '. Alexander, 1655

227, 243

Croft V. Croft, 1419

.1322

— V. Graham. 303

_ V. Pike, 898

— V. Waterton, 162

Crofts V. Oldfield, 658

Cromack v. Heathcote, 409

Crompton v. Bearcroft, 1768

''i

— z/. Earl of Effingham, 1 1 19, 1133

243

— V. Lee, 1 133

— V. Wombweii, 1601

Crooks, lie, 363, 16 14

"3

- V. Crooks, 573, 900, 902, 1 1 52, 1 1 53,

1 164

— V. Glen, 1 149, 1360, 1815

- V. Street, 855, 1164, 1815

520

— V. Smith, 276

•

Cropper v. Mellersh, 173, 1076

Crosby v. Percy, 1247

1577

— V. Wads worth, 1 18 1

«347

Croskey v. European and American Cy.

390, 1649

— V. Bank of Wales, 198

Croskill V. Bower, 1516

Crosley v. Marriott, 1 733

almahoy, 91

Cross V. Cross, 55, 64, 65, 511

227

— V. Kennington, 1543

— V. Thomas, 1585

Crosse v. Bedingfield, 314, 315, 814

)n, 532, 540, 1

— V. Cocke, 899

1

— V. General Reversionary Co.,

tneral, 109 1

1479

Crosseing v. Honor, 266

Crossley v. Crowther, 255

Crouch V. Hickin, 423, 482

- V. Waller, 34, 35

— V. Walker, 1572

Crow V. Cross, 276

- V. Tyrell, 324, 387

— Wood, 661, 1773

Crowfoot V. Mander, 1 589 '

\

Croxon v. Lever, 132

Cruickshank v. Moss, 655

— V. Sager, 31

Re, 908, 909

Crump V. Baker, 795

■

Crutchley v. Jerningham, 1813, 1820

B'

Cryne v. Doyle, 374

■

Cuddon V. Morley, 1707

B..

— V. Tite, 299, 384

■36, 1704

Cuffi). Platell, 158, 251

■775

Cullen V. Cullen, 66Si

476,

Cullen V. Duke of Queensberry, 228

— V. Hickling, 1700
Cummer w. Tomlinson, 11 20
Cumming v. Eraser, 207

— V. Prescott, 1006

— V. Roebuck, 47
Cummings x\ Macfarlane, 1511
Cummins v. Cummins, 185

— V. Bromfield, 1 5 15

— V. Harrison, 1091
Cuningham v. Antrobus, 94
Cunningham v. Buchanan, 1645

— V. Butler, 1873
Cunyngham v. Cunyngham, 1574
Cupples V. Yorston, 355
Curd V. Curd, 1845, 1846
Curlewiss v. Carter, 668
Curling v. Austin, 881

— V. Marquis Townshead, 462,

1751

Curragh v. Rapelje, 1491

Curre v. Bowyer, 1634

Currie v. Pye, 1472, 1542

Currier's Company v. Corbett, 676, 677,

, 1664
Curteis V. Condler, 1511, 1514
Curtess v. Smalridge, 678
Curtin v. Darcy, 1057
Curtis V. Curtis, 716, 717

— V. Dales, 1619

— V. Lloyd, 486

— V. March, 688

— V. Robinson, 1521

Curzon v. De la Zouch, 1723, 1725

— V. Lyster, 702, 703, 704, 708
Cust V. Boode, 426

Custance v. Cunningham, 1695
Cutfield V. Richards, 1479
Cuthbert v. Creasy, 395

— V. Currier, 1825

— V. Westwood, 219
Cutler, /!e, 78, 81

— V. Simons, 1814
Cutterback v. Smith, 909

— V. Pickering, 409
Cutts V. Thodey, 156, 190

D

Da Costa v. Da Costa, 56
Dagly V, Crump, 473
Daily v. Taylor, 1609
Daintree v. Haynes, 38, 39
Daking v. Whimper, 189
Dakins v. Garrett, 1468, 162a
Dale V. Smithwick, 1006
Dalglish V. Jarvie, 1610, 1693, 1704
Dallas r. Gow, 516, 1113
Dallimore v. Ogilby, 1827
Dalmer V. Dashwood, 1750, 1751

u

i

H

xliv

TABLE OF CASES.

iii:!^ 'l

\!W'^

Dalston v. Coatsworth, 671, 1345
Dalton Jie, 1408

— V. Hayter, 310, 526, 1024, 1026,

1066, 1067
Daly V. Kelly, 235, 1081, 1083, 1679

— V. Robinson, 584
Dan by v. Danby, 1808
Dancer V. Hastings, 1783, 1785
Danford v. Cameron, 644
Dangar v. Steward, 68, 1 586
Daniel v. Skipwith, 238, 1064
Daniels v. Davison, 545, 1209, 1228
D'Aranda v. Whittingham, 207, 237, 241
Darby v. Darby, 1866

— V. Greenlees, 1358
Darch v. Tozer, 683
D'Arcy v. Blake, 716
Darkin v. Marye, 1354
Darley v. Darley, 1394

— V. Nicholson, 313, 577, 1740, 1748
Darlington, Earl v. Bowes, 681, 695
Darnley, Lord v. London, Chatham &

Dover R. W. Co., 331
Darston v. Earl of Oxford, 789
Darthez v. Clemens, 300
Dartmouth, Lady v. Roberts, S$t

— & Torbay R.W. Co., He, 1831
Darwent u Walton, 116, 243
Darwin v. Clarke, 1850
Dashwood V. Bithazey, 1047, 1134

— V. Blythway, 1134

— V. Lord Bulkeley, 1 5 75
Daubigny v. Davallon, 45, 46
Daubuz V. Peel, 244
Daugars w. Rivaz, 112, 1680
Dauntley v. Hyde, 685

Davenport v. Davenport, 34, 59, 120,
1655, 1699

— V. Goldberg, 669, 672, 675, 1669

— V. James, 170, 1031

— V. Jepson, 668

— V. Stafford, 308, 608, 627, 630, 631
Davers v. Davers, 564, 575

Davey v. Bennett, 91

— V. Durrant, 490, 579, 727, 1292,

1468, 1623

— V. Plestow, 1635
David V. Frowd, 775, 776, 777
Davidson v. Cooper & Brassington, 228

— V. Foley, 1600

— V. Grange, 200

— V. McKillop, 518

— V. Marchioness of Hastings, 352,

1730

— V. Thirkell, 79 1, 792, 8o2, 868,

1494
Davies v. Boulcott, 163, 164

— V. Clough, 1677

— V. Cracroft, 1790

— V. Davies, 26C, 633, 1595

— V. Dodd, 166

Davies V. Kennedy, 41, 1675

— V. Leo, 1696

- V. Lowndts, 692, 1322

— V. Marshall, 1664, 1707

— V. Otty, 297, 396

— V. Williams, 185, 417, 422
Davis, Re, 1386, 1878

— Case, 1404

— V. Amer, 1763

— V. Angel, 261, 262

— V. Barrett, 161 1

— V, Bender, lOio

— V. Chanter, 162, 431, 1065, 1555,

1556

— V. Clark, 1 313

— V. Davies, 544

- V. Davis, 375, 657, 862, 1702

— V, Dowding, 131, 1048

— V. Duke of Marlborough, 1751,

1753. 1764. i7t>S. 1769, 1775.
1776, 1795

— V. Earl of Dysart, 261, 1035

— V. Franklin, 1607 ,

— V. Getty, 1638

— V. Hardy, 686

— V. Henderson, 1330

— V. Kennedy, 41, 1675

— V. Lowndes, 692, 1322

— V. May, 840

— V. Prout, 87, 88

— V. Reid, 598, 1676

— V. Snell, 48, 121

— V. Symonds, 1489

— V. Tarvey, 711

— V. Taylor, 685, 688

— V. Thomas, 995, 998

— V. Van Norman, 1295

— V. Whitmore, 439

— V. Williams, 1322
Davison v. Attorney General, 109

— V. Robison, 558
Davy V. Davy, 337, 506

— V. Seys, 1526, 1527
Dawkins v. Mortan, 519, 520
Daws V. Benn, 189

Dawson AV, Dawson, v. Jay, 1387, 1389

— V. Clarke, 950

— V. Dawson, 303, 1736

— V. Ellis, 531

— V, Jay, 162 1

— V. Massey, 830

— V. Newsome, 489

— V. Parrot, 15 18

— V. Prince, 1575

— V. Raynes, 1791, 1974, 1798
V. Sadler, 424, 1638

— V. Yates, 1754, 1763, 1769
Day V, Brown, 767

— V. Croft, 1629, 1761, 1780, 1781

— V. Day, 1718

— V. Drake, 219

TABLr. OP CASES.

xIt

31, 1065, 1555.

Day V. lildwards, 686

— V. HoUoway, 687

— V. Snee, 501, 1709
Dayrell v. Champness, 1653
Deacon v. Deacon, 437

— V. Smith, 1005^ 1006
Deakins v. Buckley, 922

Dean Clarke's Charity, J?e, 1885

— V. Lamprey, 27

— and Chapter of Ely v. Gayford, 163,

164

— and Chapter of Ely v. Warren, 546,

594
Deanes v. Scriba, 971
Deare v. Attorney General, 109, no
Deannan v. Wyche, 827
Deas V. Span, 976
Dealer v. Cosford, 318
Debazin v. Debazin, 1747
De Beaumont, ex parte, 1832
De Beauvoir v. Rhodes, 435
Debenham v. Ox, 1488, 1489
De Bernardy v. Harding, 696
De Brassac «. Martyn, 608
De Carriere v. De Colonne, 42, 1737
Decks V. Stanhope, 196, 430, 1588
Deere v. Guest, 1654, 1665
Deerhurst v. Duke of St. Albans, 1568,

1569
Deerley v. Duchess of Mazarine, 140
DeFeucheres v. Dawes, 1606
Deffis V. Goldschmidt, 1825
Defiies v. Creed, 1778
De Gear v. Smith, 1013
De Genneve v. Hannam, 502
De Golls V. Ward, 246
Delabere v. Norwood, 234, 1061, 1068
Delatield v. (iuanabens, 1693
Delaney v. Tenison, 1345
De la Kue v. Dickinson, 450
Dell V. Barlow, 1573
Delondre V. Shaw, 41, 251
Deloraine v. Browne, 395
Delorne v. Hollingsworth, 264
De Manneville V. De Maneville, 59, 361,

1739
De Mattos 0. Gibson, 1564, 1680, 1694
Dempsey v. Denipsey, 1354
Dendy v. Cross, 1852

— ('. Dendy, 222, 1586, 1588
Denison i\ Denison, 749, 983, 1397
Deniston v. Little, 244, 309, 545
Denn v. Bernard, 686

Denning v. Henderson, 1354
Dennison v. Devlin, 162 1
Dennistowa v. Fyfe, looi
Denny w. Allen, 967

— V. Lithgow, 993

— c. Mars, 29
Densem 0. Elworthy, 181
Dent V. Dent, 1847

5 A

Dent V. Hundred of Hertford, 688

— V, Turpin, 1673

— V. Warden, 339, 341
De Peyster's Case, 957
Depree v. Bedborough, 1372
Derby v. Ancram, 662

Derbyshire & S. R. W. Co. v. Bainbrigge,

902
Desborough v. Rawlins, 409
Desbrow v, Crommie, 654, 657
De Sora v. Phillips, 548
De Tastet v. Bordenave, 677

— V. Bordieu, 1763

— V. Shaw, 896

DetilHn v. Gale, 1475, *48o. 1481
Devaynes v. Robinson, 163, 224, 227,

1857

— V. Morris, 511, 1584
Deverell v. Bolton, 1242

— V. Lord Bolton, 1218
Devensher «. Newenham, 221, 416, 432,

1689, 1708
Devey iJ. Thornton, 1511, 11521
Devie v. Lord Brownlow, 696
De Visme v. De Visme, 1354
Devlin i'. Devlin, 502 >

Devonport v, Devonport, 61
Devonsher v. Newenham, 221, 416, 432,

1689, 1708
Devonshire Re, 1628
Dew V. Clarke, 589, 1760
Dewar w. Orr, 1546, 1551
Dewdney, ex parte, 395
Dewell V. Tulfnell, 1374
De Whelpdale v. Milbum, 218
De Winton v. Maj'or of Brecon, 1765,

1779
Dewier v. Callis, 600
Deybel's Case, 386
Dibbs V. Goren, 118
Dick V, Donald, 1 189

— V. S winton, 1734, 1738, 1740, 1 746

— V. McNab, 647
Dickenson v. Blake, 685, 691 1

— V. Lockyer, 1499

— V. Duffill, 22

— V. Grand Junction Canal, 1686,

1709
Dicker v Clarke, 356, 357
Dickey i\ Heron, 467, 1 120, 1152, 1282,

1617
Dickson v. Avery, 866

— V. Burnham, 1570

— V. Cooke, 1 71 5

— V. Covert, 566

— V. Dickson, 647, 1842

— V. Draper, 214, 754, I060
Dierden, Re, 559

Dietrich's Appeal, 961
Dietrichsen v. Cabburn, 1685
Digby V, Boycatt, 1828

I!

I

viyifi

I :

*ivi

TABLE OF CASES.

Digby V. Craggs, 821

— Lord V, Meech, 264
Dighton V. Withers, 238, 1479, 1529
Dikez/. Polhill, 1255

Dillon V. Ashwin, 439

— V. Dillon, 1236, 1237

— V. Lady Mount Cashel, 1757
Dilly V. Doig, 280, 1669

Dimes v. Steinberg, 207
Dimmoch v. Atkinson, 77
Dimock's Case, 916
Dines v. Scott, 793
Dinwiddle v. Bailey, 390
Dipper v. Durant, 329
Disney, Re, 81
Dix V. Jarman, 128
Dixon, /?e, 1575, 1624

— V. Astley, 1812, 1813

— V. Dawson, 1538

— V. Dixon, 851, 1321

— V. Homer, 968

— V. Olmius, 872

— V. Parker, 1500

— V. Parks, 483, 484

— V. Smith, 661

— V. Wyatt, 1584
Dobbie v. Tully, 1307
Dobbyn v. Dobbyn, 1428, 1443
Dobede v. Edwards, 501, 505, ibii
Dobson z'. Faithwaite, 1587

— V. Land, 841

-- V. Paltinson, 1520
Docker v. Somes, 831, 835
Dodd V. Neal, 695
Dodsley v. Kinnersley, 1668
Dodson V. Bishop, 1147

— V. Sammell, 1555 1
Doe V. Andrews, 410

— V. Burdett, 554

— V, Deakin, 1321

— V. Dorvell, 1239

— V. Luxton, 1236, 1237

— V. Saunders, 1255

— V. Simpson, 1240

— V. Wain Wright, 1 239

— V. Wortiey, 1239

— Ash z/. Calvert, 1185, 1264

— Banding!'. Griffin, 1322, 1333

— Bather v. Brayne, 685

— Boulton V. Ferguson, 1316

— Bradt z. Hodgkins, 1235

— Churchwardens of Croydon v.

Cook, 1332

— Compeere z/. Hicks, 11 75

— Dedsbury z^. Thomas, 1339

— Desset z/. McLeod, 1317

— Fleming V. Fleming, 1320, 1321

— Garnons v. Knight, 1216

— Gilbert v. Ross, 695, 696

— Greenshields v. Garrow, 13 16, 1 31 8

— Hagerman v. Strong, 1316

Doe Hele 7'. Rashleigh, 1216

— Jeffs 7J. Robinson, 1236

— Johnson v. Earl of Pembroke, 1333

— Jones ?'■ Jones, 1 231

— Kearns v. Sherlock, 1 238

— M.icklemi'. Turnbull, 1254, 1338

— McDonnell v. Rattray, 1328

— McGill T. Langton, 1301, 1312

— McLean v, Manahan, 1266

— Morris v. Rosser, 1334

— Mountcashel v. Giover, 1305, 13 13

— Myers u. Myers, 131 7

— Nortbey v. Harvey, 1333

— Oldham z-. Waliey, 1265, 1322

— Pad wick z'. Whitcomb, 1335

— Powell 7>. Rorison, 1307

— Prince v. Girty, 1338

— Sherwood v. Mathescn, 1303, 1314

— Spafford t'. Brown, 1316

— Stansbury v. Arkwright, 1 33 1

— Stata V. Smith, 1298, 1305

— Strickland v. Strickland, 684

— Tindal v. Roe, 689

— Tyndale z/. Heming, 1253

— Tynham t'. Tyler, 683, 1334

— Upper V. Edwards, 1297, 1301,

1303, 1305, 1307, 1312

— Vaughan V. Meyler, 1229

— Walsh V. Langheld, 682

— Warren v. Bray, 1321"

— Were v. Cole, 1238

— Wheeldon v. Paul, 1254

— Wheeler z;. McWilliams, 1343

— Whittocke v. Johnson, 1322

— W^ildgoose v. Pearce, 1265

— Wilkins z'. Cleveland, 1254

— Willis V. Birchmore, 1328

— Wollaston v. Barnes, 1320

— Wood mass v. Mason, 1287
D'Oechsner 7k Scott, 90
Dolder v. Bank of England, 13, 14, 474

— V. Lord Huntingfield, 13, 14, 46, |

250, 386
Dollond V. Johnson, 903
Dolly V. Challin, 329, 335
Dolman, /?e, 26
Donimett v. Bedford, 1492
Domville z'. Berrington, 1147, 1 1 54

— V. Lamb, 1872

— V. Sally, 1816, 1821
Donald v. Bather, 161, 208
Done V. Read, 460, 479
Doneldson r Pusey, 981
Donerail Lord v. Lady Donerail, 538
Done's Case, 1737, 1739
Donington Church Estate, /ie, 1897
Donne v. Hart, 99

— V. Lewis, 633
Donovan v. Denison, 60 '

— z'. Fricker, 840, 842
Doodyz/. Higgins, 78, 152, 182, 184, 1079I

TABLE OF CASES.

xjvii

, 13. 14, 474 ,

sld, 13. 14. 46,

Doran v. Simpson, 267
Dormer v. Fortescue, 314, 1400
Dornforth v. Dornforth, 831, 843
Uorsett V. Dorsett, 244
Dos Santos v. Frietas, 448
Doswell V. Earl, 94
Dott V. Iloyes, 450
Dougall V. Foster, 1657, 1658

— V. Millburn, 335
Douglas V. Andrews, 1398

— V. Archbutt, 543, 1622

— V. Bradford, 1316

— V. Culverwell. 1493

— V. Horsfall, 179, 202, 228

— V. Terry, 1738

— V. Ward. 606

— V. Woodside, 1506
Doupe V. Stewart, 792
Douthwaite v. Spensley, 1822
Dovey v. Hohson, 685

Dowden v. Hook, 89 r.

Dowle V. Lucy, 1162
Dowley v. Winfield, 1825
Dovvling?'. Hudson, 117, 1752, 1769
Downes v. East India Co., 428
Downing v. Picken, 1832
Doyle 5v. Muntz, 251, 333

— V. Powis, Countess, 1161
Drake v. Brooking, i486

— V. Drake, 450

— V. Symes, 320, 452
Drant v. Vause, 125

Draper v. Lord Clarendon, 232

— V. Manchester & Sheffield R. W. Co.
1 1859

Drapers Company, v. Davis, 799

Drax z'. Scroupe, 1 192

Drever v. Maudesley, 20, 46, 778, 849,

855, 890, 1788
Drevon v, Drevon, 569

— V. Earl of Norbury, 235

— V. Harnian, 215, 1076

— V. O'Hara, 235
Drewry v. Barnes, 1765

— V. O'Neill, 317

— V. Thacker, 1632, 1634, 1710, 1713
Drinan v. Mannix, 89, 90

Drioli V. Sedgwick, 507 ,

Driver z^. Edgar, 1232
Drought V. Redford, 870
Druce v. Denison, 84
Drummond v. Anderson, 633, 634

— V. Tillinghurst, 23
Drury z'. Molins, 1685, 1700
Drybutter z/. Bartholomew, 1499
Dryden v. Foster, 491

— V. Frost, 1009, 1477
Du Barre v. Livette, 411

Du Bell V, Reaumore, 1303, 1304, 1305
Duberley v. Day, 103
Dubless t'. Fliyt, 1820, 1823

Dubois V. Hole, 140, 142, 352
Duchess of Kingston's Case, 410
Duchess of Marlborough v. Wheat, 852
Duckworth v. Trafiford, 1 769
Dudgeon v. Corley, 457
Dudley v. Berczy, 725, 1043
Dufaur, AV, 643

— V. Sigel, 287, ISCXJ
Duffield V. Elwes, 642, 1777

— V. Graves, 420

— V. Sturges, 517, 521 »
Duffy, Re, 83

— V. O'Connor, 127, 367
Dugdale v. Dugdale, 1536

— V. Johnston, 1621
Duhammel v. Pickering, 44
Duke V. Barnett, 617

— V. Rendall, 1234

Duke of Beaufort v. Morris, 1709

— — V. Taylor, 1841

— Brunswick v. Duke of Cambridge,

453

— — V. King of Hanover, III

— Chandos v, Talbot, 145

— Cleveland's Harte Estate, Re, 125,

1627, 1716

— Dorset v. Girdler, 387

— Grafton v. Hanmer, 1236

— Hamilton v. Meynal, 593

— Leeds v. Lord Amherst, 1661

— — w. Earl of Strafford, 715

— Manchester v. Bonham, 1536

— Newcastle, Re, 1388

— Norfolk V. Worthy, 156

— Queensbury v. Shebbeare, 1672

— St. Albans v. Skipwith, 1653
Dummer v. Corporation of Chippenham,

112, 113, 247, 401
Dumville r. Ashbrooke, 1765
Dunbar v. Boldero, 1628
Duncan v. Campbell, 83, 86

— V. Geary, 291

— V. Trott 770, 1724

— V. Varty, 694, 696, 698, 699
Duncombe, ex parte, 1732

— V. Greenacre, 72, 80, 82, 86

— V. Hansley, 237, 1063

— V. Lewis, 328

Dundas v. Johnston, 1328, 1329, 1330

— V. Dutens, 255, 257
Dunkley v. Dunkley, 81

V. Scribnor, 657
Dunn w. Dowling, 713

— V. Dunn, 63, 65, 277, 1284, 761,

1862

— V, Dunovan, 13 19

— V, Snowden, 1825
Dunraven v. Llewellyn, 1339
Dunstan v. Patterson, 1032
Dunster V. Mitfoid, 1562, 1563
Du Plessis V. Attorney-General, 3

{H

3)

SI I

v.t

xlviii

TABLE OF CASES.

19

Dupont V. Ward, 1726
Durant r. Moore, 1711, 1712
Durbain v. Knight, 150
Durdant v. Redman, 423
Durham v. Crackles, 72, 438
Dursley, Lord v. Fitzhardinge, 262
Dutch West India Co. v. Van Moyses,
Du Vigier v. Lee, 825, 826, 827
Du Wahl, V. Braune, 71
Duxbury V. Isherwood, 116
Dyatt's Estate, 961
Dyer v. Kearsley, 1632, 1034
Dyke «. Sylvester, 1222
Dymock v. Ashton, 881
Dyott «. Dyott, 25
Dyson w. Hornby, 49, 183
— V. Morris, 611, 1049, 1050, 1581

1

Ef den 1
Eade .

. 668, 669, 675, 1665, 1668
■>!■ 118, 23s, 1056, 1081,

^U)2, 1588

Eadie v. McEwan, Re, Eadie, 6^
Eady « Watson, 182Q
Eagle 1^. Lr ; "ton, '
Eames v. Smitii, 6S;
Earl V. Baxter, 1247, 1248

— V. Ferris, 88, 145, 470
Earl of Athol v. Earl of Derby, 662

— Bath V. Abney, 99

— — V. Earl of Bradford, 800

— — V, Sherwin, 1708

— Bathurst v. Borden, 1683

— Belfast V. Chichester, 262

— Chesterfield v. Lady Cromwell, 821

— Cholmondeley v. Earl of Oxford,

585
— V. Lord Clinton, 1677

— Clarendon v. Hornby, 705, 706 (^.

— Cowper V, Baker, 1655

— Darlington v, Bowes, 68 r, 695

— Eglinton v. Lamb, 1847

— Egremont v. Hamilton, 1593

— Falmouth v. Roberts, 685

— Fingal v. Blake, 1754, 1759

— Glengall v. Frazer, 451, 1843

— Granard v. Dunkin, 1672

— Granville v. McNeil, 210

— Harborough v. Shardlovv, 696

— Kildare v. Eustace, 650

— Lichfield v. Bond, 447

— Lonsdale v. Wordsworth, 787

— Macclesfield v. Blake, 1161

— — V. Fitton, 817, 1062

— — V. Bradley, 692, 695

— Milltown V. Stewart, 1677

— Mornington v. Smith, 503, 507

— Mountnorris v, V! i.c;, 1687

— Nelson v. Lord Bridport, 1470

Earl of Plymouth v. Lewis, 1404

— ['ortarliiigton v. Damer, 491, 492,

1632

— Portsmouth v. Fellows, 286

— Powlet «. Herbert, 1521

— Salisbury v. Cecil, 415

— Shaftesbury's Case, 1390

— — ('. Duke of Marl-

borough, 1765

— Shrewsbury v. North Staffordshiro

R. W. Co., 1602

— Suffolk V. Greene, 418

— — V. Howard, 1474

— Talbot V. Hope Scott, 1655, 1756,

1758, 1760

— Tyrone v. Marquis of Waterford,

1872

— Verney v. Macnamara, 474

— Warwick v. Duke of Beaufort, 502

— Winchelsea v. Garretty, 672, 674,

677. 1557. 1558

— — V. Norclitfe, 997

— Earp V. Lloyd, 415, 452, 453
Earle's Trust, Re, 570

Earle v. Holt, 166

— V. Pickin, 765
Early v. McGill, 586
East V. Ryall, 1522

— V. Bazett, 680, 681, 694

— V. Boddam, 1568

— V. Campbell, 39S

— V. Coles, 395

— V. Donald, 533

— V, Ekines, 1484

— V. Henchman, 384, 1723

— V. Keighley, 763, 863

— V. Naish, 588

— V. Neave, 400

— V. Rumbold, 352 '

— V. Vincent 1664

— and West India Dock Company t».

Littledale, 1 16

— India Company v. Atkins, 400

— Lancashire R.W. Co. v. Hattersley,

1617, 1699
Eastman v. Eastman, 90
East Pant Mining Company v. Merry

weather, 201, 254
Eastwood V, Glenton, 1630
Eaton XI. Lyon, 1687
Eaves v. Hickson, 1521, 1525
Eccles V. Liverpool Borough Bank, 1622
Echliffi/. Baldwin, 1679, 1693
Eddington v. Banham, 1589

V. Burton, 118
Ede V. Knowles, icxx), 1004
Edalsten v. Edelsten, 1470, 1484, 1673

— ?^ Vick, 1676
Eden v. Thompson, 1629
Edenborough v. Archbishop of Canterbury

1541, 1680 '

M

of Walerford,

TABLE OF CASES.

xlix

Edge V. Worthington, looo, i(X)7
Edgell V. Francis, 687
Edgerv. Knapp, 691, 694
Edgill V. Browe, 1590
Edgsoa V. Edgson, 350
Edie V. E. I. Company, 689
Edinburgh Life Assurance Co. ti, Fergu-
son, 1312

— — V. St. Catharines, 1679
Edmonds v. Lord Foley, 1847
Edmondson v. Hey ton, 1725

— V. Machell, 683
Edmunds v. Bird, 1 760

— V. Waugh, 826
Edney v. Jewell, 542, 543
Edsell V. Buchanan, 301, 422
Edwards v. Abrey, 69

— V. Alliston, 1239

— V. Bat ley, 1588
- V. Brown, 1347

— V. Burhng, 852, 1043

— V. Cunliffe, 822, 11 18, 1 119, 1130

1131, 1132

— V. Dignum, 689, 690

— V. Durgen, 1396

— V. Edwards, 508, 921, 1809, 1820

— V. Evans, 682

— V. Harvey, 1333, 1471, 1495, 1497,

1525. 1825

— V, Jones, 106 1, 1845, 1 85 1
Edwards, v. Matthews, 685

— V. McLeay, 475

— V. McLeary, 11 88

— V. Poole, 643

— V. Scott, 695

— V. Tuck, 1825

— V. Warwick, 806

— Wood, V. Marjoribanks, 1501
Edwin V. Thomas, 681, 695
Eedes v. Eedes, 83, 86

Effingham, Lady v. Sir Jc'^n Napier, 58
Egan V. Baldwm, 1528, 1529
Egbert v. Brooks, 978
Egg V. Devey, 487, 508
Eggingtonv. Burton, 118
Egham Burial Board, /^e, 1906
Eglin V. Sanderson, 1522
Egmont V. Darell, 668, 669, 670
Egremont v. Cowell, 294

— V. Egremont, 125
Eirmin v. Pulham, 1520
Elborne t). Goode, 1535, 1537
Elder V. Maclean, 1718
Eldon V. Keddell, 1323

Electric Telegraph Co. v. Nott, 161 7

— Co. of Ireland, AV, ex
parte, Budd, 1612

— — Co. of Ireland, AV, ex

parte, Bunn, 597, 727
Elibank, Lady v. Montolieu, 72, 84
Ellerton V. Thirsk, 1702, 1710, 17 12

Ellice V. Goodson, 162, 324, 418
Elliot V. Halmarack, 667

— y. Ince, 88, 89, 150

— V. Sinclair, 1740

Elliot's Executors v. Drayton, 889
Elliott V. Beard, 350, 373

— V. Cordell, 83

— V. Edwards, 1009

— V. Hunter, 144, 1107

— V. Patt, 1219

— V. South Devon, R. W. Co., 684
Ellis, Ex parte, 48

— V. Atkinson, 77

v. Ellis, 967, 1368, 1514, 1515

— V. Griffiths, 1119, 1133

— V. Guavas, 1072

_ V. Guitton, 1865, 1866

— V, Medlicott, 557

— V. Saul, 442, 479

— V. Walmsley, 1721
Ellison, Re, 434, 1833

-- V. Aney, 933, 937

— V. Elvvin, 97, 100

— V. Thomas, 348, 1556

— V. Wright, 1477
Ellwand v. McDonnell, 452
Elmhurst v. Spencer 1663, ^6^4
Elmsley f. McAulay, 267
Elrington v. Elrington, 76
Elsam V. Allcock, 35

Else V. Barnard, 1 144

Elsey V. Adams, 485, 577, 1696

Elston V. Wood, 147

Elton f. Eason, 1236

— V. Elton, 710

Elvy V. Norwood, 273, 826
Elwell V. Crowther, 1664
Ehves o. Elwes, 1443
Elworthy i\ Billing, 1 147
Elwyn V. Williams, 97, icx)
Ely V. Wilson, 1697
Emerson v. Emerson, 501, 505
Emery v. Growcock, 1220, 1253
Ernes V. Ernes, 927
Emmet v. Tottenham, 215, 1481
Emperor of Austria v. Day, 1673
Emslie v. Wildman, 690
England, Re, 1388

— V. Codrington, 1482

— V. Downs, 88

— V. Downes, 1518
English, R^, 666

— V. English, 883, 884 "

— V. Hayman, 1585
Ennor v. Barwell, 1620
Ensworth v. Griffith, 995, 997
Enthoven v. Cobb, 1856
Entwistle v. Cannon, 1866
Erby v. Erby, 916
Erskine, Re. 84

— V. Campbell, 837, 928

'\

PI

I

TABLE OF CASES.

I ;
: I

m

Erkskine v. Gartshore, 285
Ernest v. Partridge, 490

— V. Weiss, 382, 1484

— V. Wise, 260

Errington v. Attorney General, 109

— V. Ayiiesley, 1688

— V. Durable, 1303, 1304
Esdaile v. La Nauze, 1678

— V. Peacock, 1503

— V. Stephenson, 1220, i.?.2i, 1222
Espey V. Lake, 1677

Estcourt V. Ewington, 142, 143
Estwick V. Conningsby, 1762
Etches V. Lance, 1690, 1738, 1741, 1742
Evan V. Corporation of Avon, 4, 387
Evans v. Bicknell, 532

— V. Bremridge, 1649

— V. Brown, 47

— V. Cassidy, 41

— V. Cogan, 147

~ V. Coventry, 192, 252, 253, 1699,
1762

— V. E-ans, 260, 383, 434, 666, 1746,

1873

— V. Jones, 105 1

— V. Mathias, 1777, 1783

— V. Parker, 1115, 1122

— V. Richard, 1837, 1855

— V. Robinson, 695

— V. Root, 338
Evarts v. Mason, 977
Evelyn v. Chippendale, 22

— V. Lewis, 1778
Everard v. Warren, 788
Everett v. Backhouse, 1499

— V. Prylhergch, 286, 1723
Eversfield v. Eversfield, 969
Eves /ie, 1397, 1877

Evittv. Price, 1677
Ewer V. Amljrose, 1288
Ewing V. Osbaldeston 1009
Executors of Fergus v. Gore, 808
Exeter College v. Rowland, 284
Exposito V. Bowden, 45
Exvon V. Turner, 678
£x parte AngeW, 1394

— Archbishop of Canterbury, 1830

— Arkwright, 1002

— Ashley, Jie Bell, 1 147

— Atkins, 1002

— Beavan, 819, 820

— Berkhampstead F"ree School, 1886

— Besley, 1569

— Bond, 1398

— Breach, 1825

— Bruce, 1007

— Brunker, 1732, 1733, 1739

— Buleel, 1007

— Byne, 667

— Carter, 1052

— Cassel, 954

£x parte Cassel and Spayd, 960

— Chad wick, 1722

— Chambers, 1395

— Champion, 819

— Charter, 863

— Christ Church, 1629

— Christ's Hospital, 1378, 1379

— Church, 1255,

— Clarke, 1729

— C!oming, 1005

— Coombe, looi, 1003, 1046

— Craig, 1866, 1867

— De Beaumont, 1832

— Dewdney, 395

— Duncombe, 1722

— Earl of llchester, 627, 1390

— Edwards, 139 1

— Green, 1395

— Greenhouse, 1882

— Hakewill, 1875

— Mays, 1395

— Hooper, i(X)4

— Incumbent of Brompton, 1905

— James, 951

— Kensington, 805, 1000, 1003

— Kirkby Ravensworth Hosp,tal, 1884

— Knott, 1249

— Lakin, 1394

— Langston, 1000, 1004

— Latta, 1625

— Ledvvich, 667

— Leigh, 1553

— Loaring, I009

— London & Chatham R.W. Co, 1831

— Lord Petre, 1398

— Lovegrove, 950

— McGregor, 1147

— Marshall, 1036

— Montfort, 1000, 1388, 1394

— Nettleship, 1004

— Parkes, loii

— Peake, 1009

— Peart, 1627

— Pedder, Re, Hawden, 1 146

— Penfold, 824

— Phillips, 1402

— Price, 1049

— Queen's College, 1629

— Rees, 1885. 1887

— Ricards, 1394

— Richards. 1479

— Seagears, 1887

— Seedier, 1625

— Shaw, 1848

— Shrewsbury Hospital, 1831

— Skinner, 1887

— Starkie, 1394, 1401

— Sterne, 1237

— Stevens, 1629

— Swift, 1395

— Taylor, 1321 , . : ' 1

TABLE or CASES.

li

Ex parte The Freemen &c. of Sunderland,
678

— Tilsley, 1156

— Usher, 91C

. — Van Sandau, 667, 1729

— Warrington, 820

— Whitbread, 1005

— Whitfield, 1402

— Wills, 1002

— Wright, 1000, 1044
Eyies V. Ward, 1606, 1608
Eyre i'. Barrow, 667

— V. Brett, 1586, 1587

— V. Countess of Shaftesbury, 1385,

1390. 1391. 1404

— V. Dolphin, 535, 1209

— r. Hanson, 1 119, 1130, 1 131, 1 132

— V. Marsden, 1532, 1533, 1534, 1535,

1560
Eyton V. Eyton, 148, 1568

Fahner u. Ran, 1361
Fairburn v. Pearson, 176a
Fairman v. Green, 1395
Fairthorne v. Weston, 275, 450
Fairweather V. Archibald, 1204
Faithlul V. Hunt, 214
Falconer, Re, 731
Falkland Island Cy. v. Lafone, 458

— Lady V. Lord Ceeney, 1568
Falkner w. Equitable Reversionary Society,

•352
Fall ». Elkins, 1761
Fallon V. Keenan, 993
Fallowes V. Williamson, 1583, 1597
Fane v. Richards, 1587

— r. Spencer, 1244
Farebrother v. Welchman, 1648
Farewell v. Wallbridge, 1657 1
Farina v. Silverlock, 621, 1673
Farish v. Martyn, 161 2

Farley v. Starling, 719
Fiirlow V. Weildon, 1155
Farmers. Curtis, 172, 1062, 1066

— V. Dean, 1147
Farnehoughs's Exrs. v. Dickerson, 972
Farquhar v. Morris, 805

Farquharson v. Balfour, 452, 453, 1545,
1849

— V. Pitcher, 502, 1468, 1622, 1638

— V. Seton, 549

Farr v. Sheriffe, 457, 1515, 1537

Farrant v. Lovell, nont. Farrant v. Lee,

1653
Farrell v. , 541

— V. Moore, 1348

— V. Smith, 775

— V. Stokes, 1 120
Farrer v. Hutchinson, 1820

Farrow n. Rees, 1048
Farry «. Davis, 359
Faulconberg, Lord w. Feirce, 678
Faulder v. Stuart, 250, 449
Faulkner v. Bolton, 625, 1130

— V. Daniel, 162, 244, 810, 1062, 1064,

1065, 1765

— V Llewellyn, 513
Fawcctt V. Lawrie, 200

— V. Lowther, 986 ,
Fawell 0. Heelis, 1009

Fawkner v. Watts, 1394

Fearns v. Young, 66, 950

Fearson «. Desbrisay, 641 ■

Feary v. Stephenson, 1581

Featherstone v. Fenwick, 950, looo, 1044

Featherstonhaugh v. Lee Moor Clay Cy,

1676
Feaver v. Williams, 1856, 1857
Fechter v. Montgomery, 1681
Fee V. Cabine, 999
Feize v. Parkinson, 690
Felan v McGill, 1751
Felkin v. Lord Herbert, 105, 565, 667,

1854

— V. Lewis, 1623

Fell V. Brown, 172, 237, 1052, 1062, 1066

— V. Jones, 1832

— V. Lutwidge, 263, 1507
Fellowes v. Barrett, 33, 59

— V. Deere, 28
Feltham v, Clark, 244

Fencott v. Clarke, 564, 575, 1848
Fendall v. Nash, 1394
Fenhoulet v. Passavant, 286, 287
Fennall v. Brown, 568, 1696
Fenner v. Agutter, 85 1

— V. Taylor, 84, 85

Fennings v. Humphrey, 513, 514, 515,

1606
Fentiman v. Fentiman, 1395
Fenton v. Browne, 1490

— V. Crickett, 1552, 1553

— V. Cross, 340

— V. Fenton, 1434

— \u Hughes, 122, 240, 250

— V. Lowther, 653

Fenwick v. Reed, 249, 554, 987, 1847,

1848
Fergus v. Gore, 11 58

— Executor of v. Gore, 808
Ferguson v. Kelty, 260, 419

— V. Rutledge, 1551
Fernandez v. Corbin, 358
Ferraby «. Hobson, 271, 506
Ferrand v. Hamer, 337

— V. Milligan, 683
Ferrars v. Cherry, 1228
Ferrers V. Ferrers, 813

— Lord V. Shirley, 1288 '
Ferrier v. Kerr, 1 65 7 :
Ferris v. Mullins, 1002

I..
'I

• ■■■Tt

J 4

iu

!■■!'

If

lii

TABLE OF CASES.

Feversham Charities, Ke, 1883
Few V. (juppy, 415
Fiddle v. Evans, 484
Field V. Cage, 528

— I'. Hutchinson, 396

— V. Livingstone, 1337

— V. Moore, 85

— V, Robinson, 487

— V. Sowle, 535

— V. Titmus, 194, 890
Fielder v. Fielder, 1156

— V. Higginson, 1352, 1494, 1504

— V. O'Hara, 838, 1396
Fieske v. BuUer, 360

Fiestel v. King's College, 1704, 1716,

1719, 1764
Fife V. Clayton, 305, 310
Filder r. Bellingham, 1161
Fiides V, Hooker, 1242
Filkin v. Hill, 331
Finch V. Brown, 840

— V. Finch, 186, 399

— V. Shaw, 624, 625, 1564

— V. Winchelsea, 1584. 1594, 1829
Finden v. Stephens, 1466, 1467, 1623
Findlay v, Lawrence, 505

Fingal, Earl of v. Blake, 670, 1754, 1759

1766 ,

Fink V. Patterson, 1023
Finlayson v, Millard, 1489
Firth j\ Bush, 358

— V. Kidley, 331
Fish VI. Carnegie, 1606
Fisher v. Coffey, 571

— V. Fisher, 512, 1594

— V. Glass, 1644

— V. Price, 450

— V. Smart, 981

— V. Wilson, 1505

Fishmonger's Co. v. East India Co., 1663
Fish wick v. Low, 1059
Fisken v. Rutherford, 1697

— V. Smith, 1863

— V. Wride, 652
Fitch V. Weber, 42
Fitten v. Dawson, 734

Fitton V. Earl Macclesfield, 34, 35

— V. Bult, 1648, 1700

— V. Butt, 508

— V. O' Flaherty, 540

— V. Phillips, 1616

— 0. Pringle, 1519, 1523

— V. U. C. Mining Co., 723
Fitzherbert v. Fitzherbert, 556
Fitzhugh V. Lee, 588
Fitzpatrick v. Wilson, 712
Flack V. Holm, 42, 1737, 1745
Fladong v. Winter, 779
Flamang's Case, 1655
Flanagan v. Nolan, 1523
Flavel V. Harrison, 1676

Fleetwoods. Green, 617, 1223
— t. Janson, 1137

Flcuiiaj,' v. Arni>tr.i;)^^, 711

— %h Buchanan, 911

— i\ Duncan, 1570

— V. Palmer, 10 1 1

.

Fletcher «. Bosworth, 129

,

— V. Dodd, 1 791

_

— V. Gibbon, 224

.

— V. Moore, 56, 325

-

— V, Rogers, 625

-

Flight V. Boiland, 54

— V. Cook, 1680

_

— V. Marriott, 1578 •

Fon

— V, Robinson, 412

Flint V. Brandon, 1688

Fore

— V. Corby, 1657

Forj

— V. Field, 294

Forr

— V. Smith, 1013

Forr

Flintham's v. Appeal, giy

Flockton ?'. Peake, 1830, 1859

— ('. Slee, 1587

Forn

Flower r. Gedye, 610

— V. Hartopp, 1352

—

— V. London Brighton & S. C. Ry. Cy.

Fosbi

1676

Fosbi

Floyd V. Floyd, 979 '

Forsh

— V. Nangle, 1730

Forstt

Floyer v. Lavintiton, 988

— V. Sheravd, 998

P'iuker V. Taylor, 390

Flureau z^. Thornhili, 1209, 1244 )

Forsyt

Foden v. Finney. 78

—

Fodringham v. Chomeley, 1700

Fort V.

Folland v. Lemotte, 1613

Foss V

Foley V. Hill, 390

— V. Maillardet, 358, 360, 361, 389

Foster,

— V. Moodie, 1307

— V. Smith, 490

Follett V. Delany, 1680

_«.

V. lefferyes, 413, 1677

/

Follis V. Todd, 32, 489

_

Fooks «. Wilts. Ky. Co., 1654

— 1

Foote V, Hayne, 41 1

— 1

Footner v. Sturgis, 1044

— 1

Footvoye v. Kennard, 611

— I

Forbes V. Adaihson, 1012

— I

— V. Connolly, 655, 1504

— ^

— V. Forbes, 585

— V

— V. Preston, 503, 504

Foulds !

— V. Stevens, 322, 323, 330, 331

— V

— V. Tanner, 448, 1S51

Fountai

— V. Taylor, 1499, 1531

— V

— V. Ross, 830, 831

Fowkes

Ford, Re, 81, 82

Fowler «

Ford's Charity, Re, 1883, 1887

— V.

Ford V. Chesterfield, 124

— V.

— V. De Pontes, 1856

— V.

— V. Dolphin, 1849

— V.

— V. Earl of Chesterfield, 996, 1480,

— V.

I 5 10. 1529

— V.

■ ■. - , :■ ■■...:. ■ . i-.:i, •

— V.

TABLE OF CASES.

liii

Ford V. Lacy, 684

— V. Lord Chesterfield, 437, 438, 439

— V. Lord Grey, 134 1, 1347

— V. Peering, 264, 385

— V. Proudfoot, 213

— V, Rackham, 1069

— V. Steeples, 11 18

— V. Tennant, 151, 409, 412, 596

— V. Tynte, 614

— V. Wastell, 623, 624, 636, 1 1 18,

"19. "33

— V. While, 124, 174
Fordyce v. Bridges, 221, 1059

— V. Ford, 617
Foreman v. Cooper, 1849

Forgan v. Great Eastern R. W. Co., '469
Forman v, Homfray, 274
Forrest v. Eleves, 936, 1801

— V. Manchester, Sheffield and Lincoln-

shire R. W. Co., 202
Forrester, He, 731

— V. Helme, 564, 575

— V. Waller, 1671
Fosbrook v. Woodcock, 1695
Fosbrooke v. Balguy, 948
Forshall v. Coles, 1192
Forster v. Davies, 1539

— V. Forster, 1236, 1237

— V. Hale, 297

— V. Menzies, 357, 1 582
Forsyth v. Drake, 185, 203, 240

— V. Ellice, 542, 592

Fort V. Clarke, 1224, 1228, 1340, 1347
Foss V. Harbottle, 201

— V. Wagner, 684
Foster, /ie, 34, 36, 712

— V. Beale, 1235

— V. Bonner, 1587

— V. Cautley, 124, 138

— V. Dawber, 435, 152 1

— V. Deacon, 236, 1083, 1588

— V. Donald, i8l6

— V. Fisher, 482

— V. Foster, 1589

— V. Harvey, 569

— V. Hodgson, 395

— V. Roberts, 1475

— V. Steele, 693
Foulds V. Midgeley, 595

— V, Powell, loio
Fountain v. Caine, 136

— V. Young, 411

Fowkes V. Chadd, 693 x

j Fowler «. Bayldon, 163, 181

— V. Boulton, 566, 580

— V. Down, 47

— V. James, 186

— V. Raynald, 251

— V. Reynai, 224, 544

— V. Roberts, 1633

— V. Ward, 1814
6 A

Fowler v. Wightwick, 842
Fox V. Birch, 1814

— V, Blew, 21

— V. Frost, 271

— V. Garrett, 1529

— V. Hill, 1648

— V. Mackreth, 950, 1822

— V. Morewood, 501

— V. Scard, 168 1

— V. Suwerkvop, 56, 1 386

— V. Wright, 1239
Foxcroft V. Devonshire, 686
Foxwell V. Greatorex, 1585

— V. Webster, 494, 1669
Fozier v. Andrews, 15 19
Fradella v. Welier, 1468
Frail v. Ellis, 1032
Frampton v. Webb, 139
Francis v. Brooking, 81

— V. St. Germain, 1173, 1360

— V. Wigzell, 146, 148, 448
Franco v. Bolton, 399

— V. Franco, 83, 182, 1060

— V. Meyer, 507

Francome v. Francome, 315, 568, 1696,

1742
Frank v. Basnett, 515

— V. Frank, 79
Frankland 0, Overend, 474
Franklin v. Beamish, 878

— V. Frith, 830, 1520

Franklyn v. Fern, 993, 1019, 1056, 1057,

1066, 1481
Franks v. Cooper, 897

— V. Weaver, 1673
Eraser v. Bens, 1 142

— V. Eraser, 1322, 1616, 1825

— V. Kershaw, 1763

— V. Mattice, 1307, 1314, 1315

— V. Palmer, 936, 15 16

— V. Rodney, 332

— V. Sutherland, 171, 1060

— V. Thompson, 127

— V. West, 1295

— V. Whalley, 20l, 1763
Frazer v. Frazer, 1452
Freak v. Hearsey, 1072

— V, Horsey, 180
Frederick v, Aynscombe, 997
Free V. Hinde, 1754
Freebody v. Perry, 1814
FVeeland v. Stansfield, 1 763
Ereme «. Wright, 11 89
Freeman, Craigie & Proudfoot, AV,

1561

— V. Arkell, 682

— V. Butler, 1858

— V. Fairlie, 84, 254, 415, 937, 18 10,

1817, 1818, 1849

— V, Pennington, 1586

— V. Tatham, 530

?M

0.1

I:

Uy

TABLE OF CASES.

I '''

I'll

l|i.

Freeman v. Tottenham and Hampstead R.
W. Co., 668, 67s, 1665

— V. Whithread, 1585, 1597

— d. Vernon v. West, 1216
Frenioult v. Dedire, 1005
French v. Baron, 190

Freer w. Ilesse, 1495, 1504, 1572
Frere v. Green, 586, 589, 592

— V, Moore, 1249
Freeston v. Claydon, 503
Frietas v. Dos Sandos, 295
Frietsch v. Winkler, 1551

Fripp V. Chard R. W. Co., 1760, 1761,

1765
Frost V. Hilton, 611

— V. Ward, 55

— V. Wood, 493
Frotherstone v. JoUand, 1 79 1
Frovvd V. Baker, 492

— V. Lawrence, 1636, 1729
Fry V. Ernest, 1721

— V. Mantell, 459, 478, 480

— V. Noble, 717

— V. Wood, 1334

Fiyer, He, Martindale v, Picquot, 734

— V. Gildridge, 899

Fulham v. McCarthy, 165, 251, 191
Fuller V. Green, 1528

— V. Ingram, 1649

— V. Lance, 68

— V. Richmond, 1656

— V. Tavlor, 1693

— V. Willis, 1568
Fullerton v. Martin, 222, 1585
Fulihorpe v. Foster, 988

Fulton V. Gilmore, 474, 476. 477, 478

Furber v. Furber, 439

Furness v. Caterham R.W. Co., 1765

— V. Metropolitan Water Co., 353
Furtado v. Furtado, 62, 1613

Furze v. Hennett, 493

— V. Sharwood, 243
Fussell V. Elwin, 225, 243
Futler V. Randall, 1333

Futvoye v. Kennard, 490, 1721, 1722,

1723
Finch w. Shaw, 1119, 1 1 32
Fyfe V. Arbuthnot, 1 5 18
Fyler v. Fyler, 640
Fynden v. Stephens, 261
Fynn, H^, 1386, 1876

G., Mortgagee V. V., Mortgagor, 1 117
Gabbeth v. Cavendish, 1 843
Gabriel v. Sturgis, 438
Gaffney v. Hevey, 1542
Gainsford v. Blachford, 688

— V. Gammer, 534
Galbraith v. Gumey, 605

Galbraith V. Morrison, IIIO
Galbreaith v. Armstrong, 1596
Gale V, Abbott, 1708
Gallagher v. Gairdner, 1619
Gallemore v. Gill, 609
Gallivan v. Evans, 830
Galloway v. Mackersey, 702

— V. Mayor of London, 1563^ 1564,

1676
Galsworthy v. Durant, 49
Gait V. Erie and Niagara R. ^o. IO14

— V. Spenser, 22
Galton V. Emuss, 11 58

— V, Hancock, 237
Gamble v. Atlee, 89
Gamble v. Ellis, 645

— V. Gummerson, 1357

— V. Howland, 1714
Gammon v. Stone, i486, 1487 •
Gandee v, Stansfield, 1854
Garciasw. Ricardo, 1563
Gardiner V. Juson, 1316, 1318

— V. Mason, 356

— V. Rowe, 67s
Gardner v. , 1 732

— ('. Blane, 1390

— V. Brennan, 484, 497

— V. Broadbent, 1668 ,

— V. Dangerfield, 1845, l''

— V. Garrett, 735, 1634

— V. Griffith, 1033, 1048

— V. Marshall, 81, 1466, 1467

— V. Parker, 1530

Garey v. Whittingham, 141, 142, 457,

1499. 1 537. 1629
Garforth v, Bradley, 71, 95
Garland v. Garland, 1767, 1775

— V. Scott, 405
Garlick v. Jackson, 11 33

— V. Lawson, 625, 1872
Garner v. Moore, 1380
Garnum v. Marshall, 357

Garrard v. Lord Lauderdale, 1060, 1079
Garratt v. McDonald, 1039

— V. Niblock, 1605, 1826
Garrett v. Banstead & E. D. R. W. Co.,

1691

— V. Lancefield, 1585

— V, Lister, 1322

Garth v. Cotton, 1652, 1653, 1661

— V. Ward, 235, 1080
Gartshoie v. Gore Bank, 394
Gartside v. Outram, 399, 1677

— V. Ratcliffe, 1345
Garvey v. Hibbert, 569, 1255
Gascoyne's Case, 667
Gascoyne v. Lamb, 543
Gaskell v. Chambers, 353, i8lo, 1856

— V. Durdin, 235

— V. Gaskell, 168
Gason v. Wordsworth, 592

if:

i;i!

TABLE OF OASSa

Gaston v. Frankum, 303, 618

Gates V. IJuckland, 575, 577

96

Gathercole v. Wilkinson, 357

Gaunt V. Johnson, 206
— V. Taylor, 457, 798, 814, 913, 1527,

1528

Gay I'. Cox, 815

I

Gayner v. Wilkinson, 97

i, 1563, 1564,

Geach v. Ingall, 685

Geary v. Norton, 1486

Geastz'. Lord Belfast, 1683

^0. IOI4

Geddes v. Allen, 1586

Geddis' Appeal, 962

Gcdge V. Traill, 268

Gedye 7'. Duke of Montrose, 513

— V. Matson, 225, 226

Gee 7', Cottle, 141, 142, 352

r

— V. Gee, 60

- V. Pritchard, 1672 • .

487

— 0. Swan, 685

Geldard V. Hornby, 11 19, 1130, 1131,

"34

318

— V. Randall, 1147

Gent 7', Harris, 81, 86

George v. Millbanke, 911

— V. Pritchard, 1243

V. Surrey, 1254

?7

— V. Whitmore, 616, 669, 675

•

Gerard v. Penswick, 1846

;, I"

Gibb V. Gibb, 1463

34

— V. Murphy, 722

.48

— V. Warren, 1030

\6, 1467

Gibbins V. Howell, 1785

— V. Mainwaring, 1752, 1769

Ui, 142, 457.

— V. North Eastern Metropolitan

p9

Asylum District, 618

k

Gibbons v. Braddall, icxag

[1775

— V. Howell, 1 1 60

— V. Kibbey, 75, 78

1

— V. Strathmore, 1069

|72

— V. Waterloo Bridge Co., 113

1

Gibbs V. Churton, 1593

1

— V. Hooper, 678, 679, 694

l>, 1060, 1079

— V. Lawrence, 1873

1

— V. Payne, 764

I826

— V. Phillipson, 667

Id. R. W. Co.,

- V. Pike, 684, 694

1

— V. Turmaley, 687

1

Gibson's Case, 969

1

Gibson v. Annis, 15 16

m, 1661

Gibson v. Chay ters, 1 704

■

— V. Clarke, 18 13

B4

— V. Crehore, 967

B77

— V. Kewett, 1858

H

— V. Ingo, 246, 331, 363

^K5

— V. Kinven, 627

■

— V. Lord Cranley, 489, 1469

H

— V. McCarty, 39

■810, 1856

V. Muskett, 686, 693

H

— V. Nicol, 438, 1476

H

— V. Scevengton, 371

Gibson «. Smith, 1696

— 1). Wells, 162, 163
Giddings v. Giddings, 29, 30
Giffard f. Barber, 1238

— V. Hart, 1281

— V. Hort, 186, 221, 1058, 1557
Gilchrist v. Cator, 81

Gilbert v. Tarvis, 866, 1625

— V. Lee, 1520

— V. Lewis, 122, 123, 248, 268, 392,

413, 423, 424, 450

— V. Tomlinson, 1586

— V. Witty, 1239
Gilbertson v. Gilbertson, 1873
Gikl-rsleevc v. Wolfe Island R. & C. Co.,

460
Giles V. Giles, 1603
Gill V. Eyton, 1858

— V. Fleming, 49

— V. Gibbard, 573

— V. Rayner, 330, 517

— V. Tyrrell, 1505
Gillespie v. Alexander, 775, 889

— V. City of Hamilton, 1299

— V. Gillespie, 1731

— V. i rover, 340
Gillsie, AV, 1385
Gilmour v. Mathews, 367

— V. Myers, 1119

— V. O Brien, 1829

Gilpin V. Lady Southampton, 1634

Gilrie, J?e, 1877

Girling v. Lee, 909

Gist V. Gist, 976

Gladdon v. Stoneman, 1757

Gladstone if. Musurus Bey, ill, 112

Gladwin v. Hitchman, 819, 1028

Glainster i\ Hewer, 81

Glanvil v. Trelawney, 218

Glass V. Freckleton, 1093

— V. Munson, 277

— V. Oxenham, 206
Glascott V. Lang, 271, 307
Glasscott V. Copper Miners' Co., 113,

419, 1704
Glassington v. Thwaites, 435, 437, 1769
Glazbrook v. Gillatt, 1625, 1717
Gleaves v. Paine, 72
Glegg V. Legh, 404, 414, 418, 429, 432
Glengall, Earl of &. Frazer, 451, 1843
Glennie v. Glennie, 1458
Glenny v. Smith, 1673
Glossup z*. Harrison, 1799
Gloucester Charities, He, 1 907
Glover v. Daubeney, 1574

— V. Hall, 1852, 1855

— V. Rogers, 438

— V. Webber, 62

— v. Weedon, 87

Glynn v. B. of England, 532, 547

— V. Houston, 686

i.f

II

'

Ivi

TABLE OP CASES.

Glyn V. Caulfield, 413, 1847, 1856

— V. Scares, 251

Gobe V. Carlisle, 180, 1073
Godbolt V. Watts, 310
Goddard v. Parr, 481, 572
Goddart v Haslam, 163

— v. Keeble, 300
Godfrey v. Chadw ell, 232, 233

— V. Furzo, 48

— V. Littell, 714

— V. Maw, 491

— V. Tucker, 260, 382, 1484, 1 600

— V. Watson, 807, 817
Godkin v. Earl Ferrers, 91
Gold V. Canhatn, 1816
Golden v. Newton, 379
Golder v. Golder, 491, 492
Goldient v. Beagin, 684

Goldsmid z/. Stonehewer, 173, 181,214,
1075, 1076

— V. Tunbridge Commissioners, 1664
Goldsmith v. Goldsmith, 36, 38, 652, 654,

656, 782

— V. Russell, 48, 1543
Gomleyz/. Wood, 935, 15 16
Gomme z/. West, 1778
Gompert? v. Ansdell, 593

— V. Best, 287, 456, 1721, 1728

— V. Pooley, 1649
Gooch V, Haworth, 1778

— V. Marshall, 1702, 1709, 1710
Good u. Blewitt, 19, 175, .96,321,774,

876
Goodale v. Gawthorne, 56, 597

— V. Goodale, 1690
Goodall V. Harris, 1385

— V. Little, 411,412, 413, 1851

— v. Pickford, 1155
Goodchild v. Fenton, 830
Gooddayz/. Sleigh, 484
Goodenough v. Goodenough, 7 1 6, 717

— V. Powell, 673
Goodess 7K Williams, 222
Goodfellow, y?^, 1866

— V. Hanbly, 369
Goodhue z". Whitmore, 21 1, 1057

— V. Widdifield, illi
Goodier V. Ashton, 131
Goodman v. Grierson, 988, 994

— V. Kine, 1632, 1653

— V. Whitcomb, 1762, 1769
Goodright v. Mead, 1231

— V. Moss, 1320

— V. Saul, 69s
Goodson V. Ellison, 1 78
Goodwin, iV<?, 1373, 1374

— V. Archer, 26

— V. Clarke, 1734

— V. Gibbons, 693

— V. Goodwin, 322, 330

— V, Williams, 1643

Goodyer v. Lake, 1574

Goodyere v. Lake, 823, 875

Goold V. G. W. D. D. Coal Co., 1676

Gordon v. Boss, 1042

— V. Cheltenham R. W. Co., 169 1

— V. Gordon, 265, 270, 537, 594, 627,

1320, 1333

— V. Horsfall, 173 ■■■.■■

— V. Jesson, 124, 158 1, 1585

— V. Johnson, 372, 458, 1654

— V. McPhail, 1335

— V. Pym, 199

— V. Rothley, 1822

— V. Secretan, 1253

— t>, Simpkinson, 218, 387

— V. Trail, 950

— V. Weaver, 142

— V West, 977 •■'
Gore V. Bowser, 409, 596 '

— V. Harris, 409, 1079

— V, Stacpoole, 222, 1058

— V. Stackpole, H29, 11 36
Gorely ?>. Gorely, 1622
Gornall, J?e, 288, 1391
Gorton v. Dyson, 1264
Gosbell V. Archer, 1209
Goslin V. Corry, 684

— V. Wilcock, 686
Gosling V. Gosling, 625, 1872
Gossop V. Wright, 331

Gott V. Gott, 1 46 1,
Gough V. McBride, 1337

— V. Offley, 415, 1858

Gould V. Burritt, 765, 839, 865, 868, 881,

1519

— V. Fleetwood, 940

— V. Hutchinson, 570

— V. Tancred, 840, 841, 842
Gourlay v. Riddell, 645

Gout V. Aleploglu, 1673

Gouthwaite v. Rippon, 338, 1623, 1699

Gover v. Stilwell, 1468, 1829

Governesses' Institution, /ie, 1536

Governesses' Benevolent Institution v. kus-
bridger, 261

Governors of Charity for Widows, &c. v.
Sutton, 1 90 1

Governor of Free School at Luton v. Scar
let, 1332

Governors of Grey Coat Hospital v. West-
minster Improvement Commis-
sioners, 233

Governors of Lucton Free School v. Smith,
321

Govet V. Armitage, 48

Gower v. Gower, 1158

Cowing V. Mowberry, 439

Gowland v. De Faria, 1238, 1475

— V. Garbutt, 1053

Grace 57. Lord Montmorris, 1063

— z>, Terrington, 175

TABLE OF CASES.

Ivii

Grace ly. Whitehead, loio
Gracey v. Gracey, 1436
Grafton, Duke of r. Hanmer, 1236
Graham v. Bastard, 1673

— V. Burr, 1684

— V. Birkenhead R. W. Co., 201

— V. Chalmers, 307, 1624

— V. Coape, 435, 437

— V. Davidson, 973

— V. Davis, 1039, 1040, 1043

— V. Fitch, 146

— V, Godson, 865

— •¥. Graham, 795, 1380

— V. Ingleby, 575

— V. Law, 1204

— V, Machell, 607

— V. Macpherson, 571

— V. Maxwell, 494, 1632, 1635

— V. Oliver, 541

— V. Robson, 983

— V. Wickham, 1544
Grahame v. Anderson, 865, 1 107
Grainage z/. Warner, 17 18
Graingor v. Grainger, 1094

V. Latham, 579, 1347

— V. Slingsby, 1573
Granard, Earl of v. Dunkin, 1672
Granberry v. Cranberry, 971

Grand Junction Canal Co. v. Dimes, 1632
Grand Trunk R. W. Co. v. Brodie, 504
Grane v. Cooper, 1859
Grange v. Barber, 1480

— V. Conroy, 372
Grant z'. Gilmore, 1311, 1315

— V. Grant, 338, 1447, 1732, 1745,

1748, 1828

— ». Mills, 91, 1009, 1032
Granville v. Betts, 419

— Lady, v. Ramsden, 417
Graves v. Budgel, 563

— V. Griffith, 1733
Gravenor v. Miles, 1161
Gray v. Campbell, 1725

— V. Chaplain, 19

— V. Chaplin, 197, 1758

— V. Chiswell, 193

— V. Gray, 1164, 1372

— V. Hatch, 645, 647

— V. Springer, 1504
Grayson v. Atkinson, 556
Greames v. Stritho, 1732

Greasby Re, Cleaver v. Younger, 1739
Great Luxembourg R. W. Co. v. Mag-
nay, 250, 1488
Greatrex v. Greatrex, G. N. R. W. Co. v.
. Manchester S. & L. R. W.
Co. 1685, 1690
Great Western R. W. Co. v. Cripps, 1638
G. W. R. W. Co. V. Birmingham & Ox-
ford R. W. Co. 1679, 1689
Great Western R. W. Co. u. Desjardins
Canal Co., 514, 1571

Great Western R. W. Co, v, Jones, 497,
802, 1471

— — V. Oxford W. & W. R. W.

Co., 1691, 1704
Greatwood v. Sims, 695
Greaves, Re, 138, 1627
V. Greaves, 377

— V. Powell, 909

Greedy v. Lavender, 83, 86, 457, 1537
Green, ex parte, 1395

— V. Adams, 1029

— V. Amey, 1842

— V. Badley, 58 ■'

— V. Chainocit, 23, 46

— V. Gascoyne, 1535

— V. Low, 1620, 1699

— V. Lowes, 1679

— V. Otte, 84 ■••'-.■

— V. Pledger, 1614, 1633 ' " V" !

— V. Poole, 236

— V. Pulsford, 1702

— V. Proude, 1281

— V. Thomson, 1725

— - V. Weaver, 400

— V. Winter, 953, 957
Greenawayr. Rotheram, 90
Greenhalgh V. Rumney, 1586, 1588

— V. Manchester & B. R. W. Co.,

1654, 1691 ^

Greenhouse, ex parte, 1882
Greening V. Beckford, 1718
Greenough v. Gaskell, 405, 406, 409, 410

596, 1856

— V. Shorrock, 91
Greenshields v. Barnhart, 990

— V. Blackwood, 11 23
Greenway v. Bromfield, 825, 828
Greenwood v. Atkinson, 236, 476

— 77. Churchill, 285
-- V. Firth, 238

— V. Greenwood, 1846

— V. Percy, 700 '

— V. Rothvvell, 1063, 1858

— V. Sutherland, 625, 1872

— V. Taylor, 238
Gregor v. Molesworth, 395
Gregory v. Molesworth, 57, 58

— V. Spencer, 502, 508

— V. Weaver, 469

— V. West, 846
Greig v. Green, 377

— V. Somerville, 890
Gregg «. Taylor, 677
Gregson v. Oswald, 1595
Grenfell z/. Dean of Windsor, 1704
Gresleyv. Adderley, 1751, 1752

— V. Mousley, 411, 1841 ' ' '
Grey v. Dickenson, 630

— V. Duke of Northumberland, 1656

— V. Manock, 1236

— de Wilton, Lord, ?>. Saxon, 1683,

1700

h

•I

« . -

%

w

Iviii

TABLE OF CASE&

%

' r

fi 'k

Griffies c. Griffies, 711
Griffin v. Archer, 122

— Lady, v. Boynton, 1344

— V. McGill, 1396
Griffith v.. Bateman, 159, 206

— V. Griffith, 1747, 1776, 1797, 1879

— V. Hood, 88

— V. Lewis, 271

— V. Kicketts, 262, 292, 293, 1065

— V. Vanheythuysen, 192, 251
Griffiths, ex parte, 50

— V. Cowper, 643

— V. Hatchard, 1369

— V. Wood, 459
Grigg V. Sturgis, 438, 440

Griggs V. Staplee, 192, 251, 309, 1493
Grier v. St. Vincent, 1692
Grierson v. Eyre, 1 66 1
Grimes v. French, 269, 304
Grimsby v. Webster, 17 19
Grimshaw v. Parks, 218, 795, 1071
Grimwood v. Shave, 35
Grissell v. Peto, 1353
Groom, Re, 1875

— V. Attorney General, 372
Grooms v. Blake, 1328

Grote V. Bing, 1769
Grove, Rt,%2

— V. Bastard, 625, 1258, 1504

— V. Young, 585, 588, 589, 591, 699,

U73
Grover and Blakes, Sewing Machine Co.

V. Millard, 378
Groves v. Clarke, 85

— V. Groves, 1825, 1859

— V. Lane, 162

— V. Levi, 162

— V. Perkins, 85

— V. Ryves, 508
Grugeon v. Gerrard, 1027, 1035
Guavus V. Fontaine, 651

Guest «. Homfray, I190, 1191, 1490

Guilbert v. Hawles, 486

Guien's Estate, 963

Guillon V. Rotch, 1586, 1588

Gullan V. Trimbey, 80

Gulliver v. Ashby, 1232

Gully V. Bishop of Exeter, 1344

Gunn V. Doble, 1283, 1349

— V. McDonald, 1109
Gurden v. Badcock, 1787, 1793
Gurish v. Donovan, 324
Gurrey v, Jackson, 440
Guthrie v. MacDonald, 492
Guy V. Guy, 56, 62, 63, 1613

— V. Perkes, 82

Gwatkin v. Campbell, 202, 252, 331
Gwillim V. Stone, 1243
Gwinett v. Bannister, 1638
Gwilt V. Crawley, 688
Gwyer «. Peterson, 491

Gwynn v. Dorsey, 970, 971

— V. Lethbridge, 305, 1562, 1563,

1565
Gwynne r. Edwards, 1557, 1569 ., .

— V. McNab, 484
Gwyon v. Gwyon, 517, 1602
Gynn v. Gilbiu^l, 54, 1385, 1404

H

H t's Case, 1344

Haberdasher's Co. v. Attorney-General,

1520, 1522
Habergham v. Stansfield, 716

— V. Vincent, 330
Hack V. Leonard, 1688
Hackney Charities, Re, 1898, 1899
Hadley v. Baxendale, 684

— V. London Bk. of Scotland, 1679,

1691
Hadwen, Re, 1 146
Haffey v. Haffisy, 1459, 1736
Haggett V. Iniff, 466, 570
Haigh V. Grattan, 1781

— V. Jaggar, 1655
Haikman v. Femie, 685
Haines v. Taylor, 1663, 1665
Haire v. Lovitt, 1374
Hakewell, Re, 89

— V. Webber, 609
Hakewill, ex parte, 1875
Haldenby V. Spofforth, 1511, 1527
Hale V. Cove, 695

— V. Hale, 1763

— «. Lewis, 610, 6ii
Hales V. Pomfret, 2i8, 529

— V, Shaftoe, 654
Haley v. Bannister, 1398
Hall, Re, 559

— V. Austin, 208, 224, 227

— V. Barrows, 1673

— V. Bennett, 257

— V. Clive, 1586, 1587

— V. Hall, 1688, 1762

— V. Hallett, 830, 1523

— V. Hill, 1303

— V. Hoddesdon, 387, 553

— V. Hugonin, 96

— V. Jenkinson, 1763, 18 1 3

— V. Jones, 1391
V. Kendall, 893

— V, Lack, 321

— V. Laver, 256, 1018, 1066

— V. Macdonald, 893, 1529, 1818

— V. Maltby, 270, 541

— V. Smith, 1209

— V. Stone, 687

— V. Warren, 537

— Charity, Re, 1885, 1886
Hallett V. Middleton, 1252

III

TABLE OF CASES.

lix

Halliday, Re, 1876
Ildlliwell V. Phillips, 1660
Halsam, ex parte, 142
Halsey v. Van Amringe, 959
Haly V. Goodson, 1680
Hamblyn v. Ley, 657, 658
Hambrook v. Smith, 402
Hamerton v, Rogers, 1482
Hamilton, Re, 733

— V. Bankin, 247

— V. Banting, I no

— V. Brewster, 1797

— V. Desjardins Canal Co., 200

— V. Hamilton, 129

— V. Houghton, 800

— V. Howard, 1089

— V. Marks, 315, 1695

— V. McDonald, 1305, 1306

— V. Street, 1843

— V. Thomhill, 1 103

— V. Worsefold, 1655

— Duke of, V. Meynal, 592, 593
Hamm v. Stevens, 242, 243
Hammond v. Atwood, 48

— V. Neame, 1536
Hamond v. Bradley, 13 1

— V. Walker, 182, 356, 1809
Hampden v, Hampden, 671
Hampson v. Brand wool, 1530

— v. Hampson, 672, 677, 681
Hampshire v. Bradley, 1520

— V. Harris, 690
Hanbury v. Hussey, 706

— V. Litchfield, 305
Hancock v. Maulson, 1109

— V. Padmore, 919, 920

— V. Rollison, 503

— - V. Shaen, 1058
Hancockc v. Prowd, 893
Hancoxv. Spittle, 1366
Hanchett v. Briscoe, 96
Hand v. King, 503

Handford v. Storie, 197, 483, 487
Handlen v. Davies, 1532

— V. Metcalfe, 1824
Hankey v. Vernon, 1638
Hanman z/. Riley, 173, 214, 1075
Hannam v. South London Waterworks

Co., 506, 1688
Hannayz/. McEntire, 1696, 1734, 1 741
Hanover, King of, v. Wheatley, 13
Hansai:d v. Hardy, 623
Hansen, Re, 1803, 1805
Hansen v. Miller, 94
Hanslip v. Kitton, 573, 1841, 1846
Hanson, Re, 1888, 1889
- V. Gardiner, 1696

— V. Keating, 72

— V. Lake, 1499

— V. Preston, 1057
Hapgood V. Houghton, 919

Hapgood V. Tennison, 967
Harbin v. Darby, 15 16
Harborough v, Shardlow, 696
Hardcastle v, Smithson, 229
Harding, Re, 1339

— V. Cox, 330, 331

— V. Glover, 1762, 1763

— V. Harding, 460, 1164, 137a

— V. Tingey, 333, 338, 430, 1623
Hardman v. Ellames, 1841, 1855
Hardwick v. Wright, 1846

Hardy V. Dartnell, 512

— V. Hardy, 503, 507

— V. Hull, 1589
Harev. Hare, 556, 15 10

— V. London & N. W. R. W. Co., XSI

— V. Rose, 758, 778

— V. Shearwood, 992

— V. Smart, 144, 372
Hares V. Stringer, 175, 178
Harford v. Carpenter, 1000, 1044

— V. Purrier, 618, 1504

— V. Rees, 582, 1851

Hargrave v. Hargrave, 54, 635, 694, 1761

Hargreaves v. Wright, 284

Harkin v. Robidon, 1573

Harkness v. Conway, 711

Harknd's Accounts, Re, 962, 966

Harman v. Jones, 1665

Harmer v. Gooding, 299, 384

— V. Harris, 1507, 1550
-- V. Plane, 1667, 1668

Harnett v. Yielding, 1500
Harper v. Charlesworth, 1323

— V. Harper, 127

— V, Hayes, 1150

— V. Munday, 1524

Harris, Re, 571, 1319, 1344, 1627

— V. Collett, 1648

— V. Gandy, 493

— V. Hamlyn, 127, 1476

— V. Harris, 55, 822, 1426, 1427,

1453, 1854

— V. Ingledew, 190, 556, 562

— V. James, 459

— V. Lightfoot, 494

— V, Martin, 980

— V. Meyers, 646, 653, 656, 1593,

1646

— V. Millburn, 162

— V. Myers, 34, 1725

— V. Pollard, 1592

— V. Start, 1606
Harrison v. Andrews, 98

— V. Armitage, 274, 176a

— V. Armour, looi

— V. Baby, 1648

— V. Borwell, 441

— V. Brown, 20
V. Buckle, 73
V. Cage, 686

--.„ !■ UMr; ^a'.,.i'.l r;-KVy

Ix

TABLE OF CASES.

J''-

P^

Harrison v. Cockerell, 1695 • ■ . - ■■

— V. Coppard, 1490 - ,'

— V. Delmont, 479

— V. Duignan, 825, 827, 828

— V. Fane, 686

— V. Greer, 568, 1619 > ■<

— V. Guest, 307 •' V.

— V. Gurney, 494, 1650

— V. Harrison, 61, 62, 690

— V. Hart, 1049

— V. Hogg, 280, 281, 297, 432
' — V. Kennedy, 149

— V. Lane, 489, 1605

— V, Mayor of Southampton, 727

— V. McGlashan, 729, 769
!. — V. Nettleship, 1638

— V. Patterson, 902, 926, 1153

— V. Pennell, 233

— V. Pryse, 204

— V. Rumsey, 608

— V. Shaw, 210, 232, 782

— V. Southcot'i, 398, 403, 1009, 1474

— V. Stewardson, 184, 194, 213, 232

— V. Taylor, 1673
Harrington v. Du Chatel, 1 706
Harrod v. Harrod, 674

Hart V. Hart, 612

— V. Middlehurst, 911

— V. Montefiore, 1846

— V, Robarts, 495

— V. Tulk, 320, 321, 357, 632, 1582,

1615, 1769
Hartewell v. Colvin, 889
Hartford v. Lloyd, 1017
Hartland, Lady, v. Atcherley, 138
Hartley v. Gilbert, 68

— V. Pehall, 1219

— V. Russell, 398
Hartvvell v. Chitters, 908, 909
Hartz V, Schrader, 1 763
Harvey v, Ferguson, 509

— V. Ashley, 80

— V. Bignold, 196

— V. Bradley, 466

— V. Cooke, 245 r .

— V. Clayton, 410, 1080

— V. Davidson, 495

— V. Harvey, 184, 657, 1320

— V. Hewitt, 688

— V. Jacob, 26

— V. Montague, 1710

— V. Morris, 404

— V. Mount, 527

— V. Phillips, 1344

— V. Renon, 375, 609

— V. Smith, 28, loii

— V. Taylor, 660

— V. Tebbutt, 1129,'! 1 36
Harvie v. Ferguson, 1623
Hasler u.HoUis, 476
Hastings, Lord v. Beavan, 1716 .

Hatch V. 1822 ;.•!», • ;

Hathornthwaitev. Russell, 1756
Hatt V. Park, 1097 ^ .,,;,''

Hautton v. Hager, 38
Havers t^. Havers, 1756
Haverfield v. Pyman, 1850, 185 1
Havelock, /?e, 1629 .. i ,

Hawarden z>. Dunlop, 360 , ;

Hawes v. Bamford, 571, 1699
Hawke, lie, 1828

— V. Kemp, 1612

" — V. Milliken, 992
Ha *kes v. Barrett, 493

— V. Hawkes, 1453
Hawkesley V. Gowan, 1716
Hawker V. Buncombe, 637, 640
Hawkins v. Crooks, 371, 375, 662, 663

— V. Dod, 1832

— V. Gardiner, 485

— V. Gathercole, 412, 1764, 1 778,

1856

— V. Hawkins, 176, 177

— V. Luscombe, 133 . ,'

— V. Watt, 1395 '
Hawkshaw v. Parkins, 1679 '
Hawtayne v. Bourne, 696

Hay, Jie, 1343

— V. Bowen, 1500, 1511
Hayball v, Shepperd, 1336
Haycock V. Haycock, 167, 170, 2II
Hayes v. Hayes, 810

Haydon v. Gould, 1320
Haymes z/. Cooper, 17 18
Hayne v. Hayne, 671
Haynes w. Ball, 1726, 1727

— V. Barton, 1630
Hays, ex ^a fie, 1395

— V. Bailey, 1250
Hayward v. Fry, 4, 106

— V. Roberts, 460

— V. Stillingfleet, 1652
Haywarden, Viscountess, v. Dunlop, 1614
Hazeldene v. Grove, 684

Head v. Head, 61, 536

— V. Godlee, 1568

— V. Lord Teynham, 165
Headen v. Rosher, 1239
Heald v. Hay, 357
Healey v. Jagger, 526
Heaning v. Willis, 1487
Heanleyv. Abraham, 523
Hearle v. Greenbank, 77, 875
Hearn v. Way, 427 i . ; *
Hearne v. Stowell, 684 , . t .

— V. Ogilvie, 376 ,; 1
Heap V. Jones, 1541

Heaps V. Commissioners of Churches, 35
Heath v. Chad wick, 48 . -.1 , .

— V. Chapman, 1600

— V. Percival, 159, 206

— V. Lewis, 86, 98, 1600

TABLE OF CASES.

Ixi

)unlop, 1614

Heathcote v. Edwards, 1605, 1826

— V. Hulme, 831

— V. Paignon, 989

— V. North Staffordshire R. W, Co.,

1637
Ileaton v. Dearden, 167
Hedges v. Cardonnell, 862, 1574
Hele V. Lord Bexley, 163, 164
Heeley, Re, 1164
Heeman v. Midland, 1850
Heighington v. Grant, 843, 1519, 1524,

1537. 1550. 1559
Helliwell v. Dickson, 1012
Heming v. Archer, 1370

— V Leifchild, 1493

— V. Pugh, 390

— V. Swinnerton, 1638
Hemming v. Dingwall, 329
Hemphills Estate, Re, 963
Hemphill v. McKenna, 1693
Henclr an v. Attorney General, 952
Henderson v. Atkins, 30

— V. Cook, 417, 422, 423

— V, Cowan, 1121

— V. Henderson, 391, 1652

— V. Mclver, 943
Heneage v. Aikin, 1621
Henley v. Brooke, 643

— V. Phillips, 1 7 13, 1 51 7

— V. Stone, 235
Henna v. Dunn, 760
Hennegal z. Evance, 581

Hennet v. Luard, 487, 488, 489, 1468
Henning v. Samuel, 689

— V. Willis, 159, 169, 298
Henry v. Burness, 1312, 1 31 3

— V. Com. Bank, 665

— V. G. N. R. W. Co., 1679

— V. Ogle, 72

— V. Sharp, 917

— V, Smith, 827
Hensloe's Case, 185
Hepburn v. Durand, 454

— V. Lordan, 1664
Hepworth v. Heslop, 1479
Herchmer v. Benson, 339
Herbert's Case, 1404
Herbert v. Hedges, 712

— V. Sayer, 47

— V. Tuckal, 1333
Hercey v. Ferrers, 415

Herman «. Dunbar, 1629, 1 776, 1 796

Heron v. Swisher, 171 5

Herret \.v. Reynolds, 1723, 1727

Herrick v. Saffrey, 1059

Herring 7;. Cloberry, 1563, 1574, 1856

— V. Yoe, 187
Hertford Charities, Re, 1629

— Marquis of z/. Suisse, 1606
Hertz z'. Union Bank of London, 1636
Hervey v. Fitzpatrick, 1 756

7 A

Hervey v. Smith, 1664, 1690
Hester v. Hester, 973

— V. Weston, 424
Hethersell v. Hales, 950
Heward v. Elliot, 856

— V. Harris, 1643

— V. Magahay, 350

— V. Rid out, 1 140

— v'. Scott, 1205, 1234

— V. Wolfenden, 911
Heweton v. Todhunter, 574
Hewett V. Foster, 15 19, 1524

— V. McCartney, 1721
Hewit Re, 154
Hewitson v. Todhunter, 164
Hewlett V. Cruchley, 689
Heygate v. Annesley, 95
Heyland v. Scott, 1330
lleywood V. Ovey, 227
Hibbert v. Hibbert, 1773

— V. Jenkins, 944
Hichens v. Congreve, 199, 246

— V. Kelly, 154, 1069
Hicks V. Hastings, 714

— V. Nelthorpe, 405

— V. Raincock, 420

— V. Wrench, 15 13
Hide t/. Haywood, 950, 1518
Hiein v. Mill, 304, 305
Higgins, Re, 1254

— V. Frankis, 438

— V. Mills, 1574

- V. Sargent, 804

— V. Shaw, 1082, 1593
Higginson v. Wilson, 145
Higgs V. Higgs, 1453
Higham, ex parte, 77
Highfield v. Peake, 1289
Hildyard v. Cressy, 324, 456
Hiles z-. Moore, 1768, 1769
Hill V. Adams, 1067

— V. Binney, 530

— V. Bonner, 164 *

— V. Chapman, 198, 1832

— V. Edmonds, 1054, 1057

— V. Forsyth, 1098

— V. Count, 511

— V. Greenwood, 1205, 1234

— VI. Hoare, 1706

— V. King, 614

— V, McGuir-i, 327

— I'. Reardon, 21, 260, 382, 1484

— V. Rimel, 1612

— V. Riniell, 1769

— V. Thompson, 1668, 1669, 1696

— V. Turner, 1404, 1640

— r. Yates, 685

Hills V. Barclay, 1687, i68&'

— V. CroU, 1685

— V. Evans, 676

— V. Hills, 58

i;|

Ixii

TABLE OP CASES.

m

ii 1

Hills V. McRae, 225, 268

— V. Nash, 17s, 178

Hillary V. Waller, 1220, 1222, 1248
Hilliard, /fe, 832

— V. Campbell, 11 29
Hilliker, >?«', 1262

Hilton V. Earl of Granville, 1665, 1691,

1693

— V. Fowler, 686
Hime v. Dale, 1670

— V. Dodd, 532
Hind V. Little, 364

— V. Whitmoie, 33, 59, 89, 490, 509,

1466
Hinde v. Blake, 642

— V.Morton, 511, 1587, 1589, 1597
Hinder v. Streeten, 1499

Hindle v. Birch, 688

— V. Dakin, 1354
- V. Taylor, 1873

Hindley v. Emery, 1665
Hindson v. Wetherill, 1575
Hinings v. Hinings, 1833
Hinton v. Galli, 1765

— V. Toye, 911
Hiorns v. Holtom, 438, 1038
Hipkins v. Bernard, 971, 972

— V. Hipkins, 666
Hippesley v. Spencer, 1653
Hipwell V. Knight, 1 191

H slop V. Wykeham, 1629
Hitch V. Wells, 127
Hitchcock V. Carew, 562

— V. Clendinen, 75

— V. Giddings, 1495
Hitchman v. Stewart, 227
Hitchens v. Congreve, 20, 124
Hitchins v. Lauder, 1066
Hite V. Hite, 979

Hoar V. Hoar, 1431
Hoare, J?e, 1386

— V. Johnstone, 762 '

— V. Peck, 395

— V. Silverljck, 690

Hobart v. Abbot, 155, 174, 216, 1068,

1073
Hobday v. Peters, 149
Hobhouse v. Courtney, 356, 357

— V. HoUcombe, 1777
Hobler, /ie, 608

Hobson V. Sherwood, 1777, 1783

— V. Shearwood, 1018, 1716
Hoby V. Hitchcock, 23, 46
Hockley v. Bantock, 1008
Hoddel V. Pugh, 1474
Hodderv. Ruffin, 1354, 1372, 1374
Hodge V. Churchward, 600

— V. Hawkins, 973

Hodges, /?e, 1363, 1386, 1626, 1827

— V. Beverley, 94

— V, Croydon Canal Co., 825

Hodges V. Litchfield, 1209

— Trust, fie, 54

Hodgens v. Hodgens, 84, 1404, 1405
Hodgins v. McNeil, 1494
Hodgkin v. Longden, 387
Hodgkinson t\ The National Live Stock

Insurance Co., 201
Hodgson V. Barvis, 695

— V. Clarke, 1531

— V. Duce, 1664, 1689, 1708

— V. Earl Powis, 1665

— V. Espinasse, 294, 300

— V. Forster, 686

— V. Hodgson, 808

— V. Merest, 543

— v. Paxton, 506

— V. Thornton, 441
Hodgson's Case, 1016
Hodkinson v. French, 11 26
Hodson V. Bali, 734, 1600, 1 601

— I'. Cash, 457

— V. Earl of Warrington, 564, 575

— V. Watson, 1765
Hood V. Easton, 1070

— V. Pymm, 1575

— &. Wilson, 1542
Holden v. Holden, 564
Hoe V. Nathoip, 1264
Hoflick V. Reynolds, 427, 430
Hoffman v. Duncan, 1766
Hogan,/2t', 567

Hogg w. Kirhy, 1667, 1 673
Hoghton V. Hoghton, 537
Hogson V. Smithson, 1557
Holbecke v. Sylvester, 1533, 1552
Holcombe v. Antrobus, 1606

— V. Leach, 11 12, 11 15

— V. Trotter, 511
Holden, fie, 1833

— V. Hearn, 133, 544, 1 000

— V. Kynaston, 193. 487, 488, 1485
Holder V. Durbin, 1384
Holderness v. Lamport, 1680
Holdeniesse v. Kankin, 532
Holdeistaffe v. Saunders, 1637
Holdsworth v. Holdsworth, 244

Hole V. Harrison, 226

— V. Hole, 47
Holford V. Burrell, 1027

— V. Phipp? 1 51 1

— V. Yate, 624, 1 1 18, 1 130, 1 131, 1 132
Holgate V. Howarth, 1519

Holiston V. Smith, 1288
Holkirk v^ Holkirk, 486
Holland v. Baker, 213

— V. Moore, 1272

— V. Prior, 208
HoUings V. Kirby, 134
Hollingshead's Case, 1593
Hollingsworth i'. Shakeshaft, 260, 262,

308, 382, 1484

i

TABLE OF CASES.

Ixiii

Hollis, Lord — Case of, 234
HoUoway v. Holloway, 1677

— V. Millard, 270
Hallywood v. Waters, 604
Holmes v. Ailsbie, 1347

— V, Baddeley, 407, 1840, 1856

— V. Bell, 1028, 1 761

— V. Brown, 1647, 1648

— V. Coghill, 911

— V. Eastern Counties Railway, 1488

— V. Matthews, 990

— V. Penney, 140
Holroyd v. Prichard, 1018

— V. Wyatt, 1 1 54, 1374
Helton V. Lloyd, 1265
Holworthy V. Allen, 1507

— V. Mortloch, 1638
Honeyinan v. Lewis, 690
Honeywood v. Selwin, 447
Honner v. Morton, 97, ICX3
Hood V. Aston, 1693

— V. Burlton, 77

— V. Cooper, 630

— V. Phillips, 255, 256, 257

— V. Pim, 543

Hook V. Donnan, 315, 423
Hoole V. Roberts, 1 716, 1 719
Hooley v. Hatton, 536
Hoop V. The, 46
Hooper, Ex parte, 1004

— V. Broderick, 1685, 1690

— V. Goodwin, 1151

— V, Gumm, 411, 1857, 1859

— V. Lane, 667
Hope V. Beard, 1519

— V. Fox, 87, 88,

— V. Hope, 355, 357, 586, 588, 590,

591, 1386

— V. Liddell, 550, 581, 597, 1848

— V. Stevenson, 1280

— V. Threlfall, 1575
Hopkin V. Hopkin, 569, 1742
Hopkins z/. Grazebiook, 1190

— V. Hopkins, 187, 222, 1059
Hopkinson V Ellis, 1537, 1538

— V. Leach, 759, 900

— V. Roe, 944
Hopton V. Dryden, 893, 898
Hopwood V. . arl of Derby, 672, 675
Hore V. Becher, 98

Hoiford V. Wilson, 683
Horlock V. Priestly, 1526

— V. Smith, 841
Horlor v. Carpenter, 684
Horn V. Coleman, 1559

— V. Kilkenny, R. W. Co. 1633
Hornby v. Holmes, 356

Home V. Barton, 1567

— V. Patrick, 146

— V. Sheppard, 15 1 1
Horner v. Homer, 263

Horner v. Wheelwright, 573
Hornsby v. Lee, 96
Horsley v. Bell, 228

— V. Chaloner, 1520 ' •

— V. Fawcett, 182 ,
Horton 0. Brocklehurst, 330
Horum v. Woolongham, 1478
Horwood V. Schmedes, 619
Hoskin v. Sincock, 148 1, 1485
Hoskins r. Campbell, 491

— V. Lloyd, 1727
Hoste V. Pratt, 1395
Holten V. Arthur, 1670
Hough V. Ryley, 76
Houghton, ex parte, 973

— V. Godschall, 1594

— V. Reynolds, 294, 302
Houlding v. Poule, 87, 214 •
Houlditch V. Marquis of Donegal, 540,

1765
Houston V. Briscoe, 570, 1597
Hovenden v. Lord Annesley, 105, 106,

383. 395
How, Jie, 1830

— V. Best, 1 14, 246 ' • '

— V. Hall, 558

— V. Strode, 683

— V. Vigures, 1048, 1073
Howard, J?e, 1882

— V. Barnwell, 700, 702, 709

— V. Gunn, 1672

— V. Harris, 819

— V. Harding, 1292

— V. Macara, 1 1 17

— V. O'Keover, 396

— V. Papera, 1756

— V. Prince, 1625

— V. Rhodes, 15 18

— V. Robinson, 1855, 1858

— V. Watson, 372
Howcutt V. Rees, 605
Howden t;. Rogers, 1734, 1737
Howe V. Howe, 145 1

— V. Hunt, 676
HowL'l V. Howel, 1568
Howell V. George, 531, 1470

— V. Lord Coningsby, 657

— V. Young, 1 192
Howes V. Wadham, 1066
Howkins v. Bennett, 357

— V. Howkins, 313, 1735, 1737, 1739
Howland v, Grierson, 353

Howorth V. Samuel, 695

Howse V. Chapman, 1532, 1533, 1535

Hoyle V. Linesey, 608

Hubbard V. Hubbard, 711

Hudson z'. Bartram, 1190

— V. Grenfell, 445, 1841

— 0. Maddison, 251, 284, 1703
V. Majoribanks, 695

— V. Revaet, 1288

m

ill

Ixiv

TABLE OF CASES.

m

$'\n

i

'iii

I

i

)l"

:;| ji:

u

' ''

Hudson V. Temple, 1647

Hudson's Bay Co. v. Sir Stephen Evans,

87s
Huddlestone v. Huddlestone, 716
Hue V. Richards, 1851
Huet V. Le Mesurier, 1320
Higgins V. York Buildings Co., 1365,

1583
Hughes V. Biddulph, 405, 406, 1845

— I). Budd, 688

— V. Eades, 118, 543

— V. Evans, 87

— V. Garner, 532, 540

— V. Howlin, 1237

— V. Hughes, 692, 139s, 1777, 1783

— V. Jones, 520, 609, 610, 637

— V. Kearney, 1009

— V. Kelly, 825

— V. Key, 1515

— V. Lewis, 501

— V. Lipscombe, 1373

— V. Science, 1385

— V. Wheeler, 1758

— V. Williams, 808, 103 1

— V, Wynn, 1190, 1191

— vl Wynne, 796, 816
Hughson V. Davis, loio, 1489
Hugonin &. Baseley, 1755
Huish V. Sheldon, 690
Hulkesw. Day, 1 716, 1 718
HuUett V. King of Spain, 13, iii
Hulme V. Tenant, 148, 149
Humble V. Bill, 11 83

— V. Shore, 235
Humbly v. Trott, 1661

Hume V. Richardson, 1870, 1873

— V. Rundell, 1264
Humphrey v. Morse, 1472
Humphreys v. Harrison, 1653

— V. Hollis. 189

— V. Humphreys, 263, 1699

— V. Incledon, 1592

— V, Ingledon, 262, 263

— V. Pensam, 550
Humphries v. Home, 1354

— V. Roberts, 11 60
Humphrys V. Moore, 1526
Hungerford's Case, 1557
Hungerford v. 'agoe, 694
Hunt V. Elmes, 414, 1854, 1855

— V. Fownes, 1064, 1476

— V. Peacock, 178

— V. Prentiss, 589

— V. Priest, 659

— V. Lever, 357
Hunter, /fe, 1397

— V. , 1607

— V, Daniel, 1591

— V. Macklew, 172, 1054

— V. Mountjoy, 1734

— V. Nockholds, 465, 825, 1488

Hunter v. Potts, 49 . , , ' ;

Huntington Charities, He, 1906
Huntingtower, Lord v. Sherbom, 51, 511,

512

Hurd V. Robertson, 1352, 1492, 1722

— V. Seymour, 1121 ;
Hurst V, Hurst, 356, 1038

— V. Pad wick, 21
Huson V. Wallace, 975, 976
Hutcheon v. Mannington, 569, 570
Hutchings v. Smith, 96
Hutchinson v. Edmison, 926

— V. Freeman, 348, 1533

— V. Horner, l6n

— V. Morritt, 950

— V. Piper, 692 ,

— V. Rapelje, 1491

— V. Sargent, 1506

— V. Swift, 727

— Lord, V. Massareene, 1749, 1775
Hutton V. Beeton, 1790

— V, Hep worth, 1620 ^

— V. Mansell, 1354

— i». Rossiter, 194

— V. Scarborough Hotel Co. 1676
Hyde ». Dallaway, 1324

— V. Edwards, 298, 1388

— 7>. Forster, 1595
- V. Greenhill, 662

— V. Price, 814, 816

— V. Whitfield, 1738, 1745
Hylton V. Morgan, 1689
Hyman v. Roots, 1510

Ibbottson V. Rhodes, 533
lies V. Flower, 36
— V. Turner, 684, 692
Inchleyv. Allsop, 197, 1585
Incledon v. Northcote, 100
Incorporated Society v. Richards, 842
Incumbent of Brompton, ex parte, 1905
Ingilby v. Shafto, 414, 450
Ingle V. Partridge, 504, 505
Inglessi v. Spartali, 45 1
Inglis V. Campbell, 380

— V. Gilchrist, 1 108
Ingram v. Stiff, 1673, 1694
Inman v. Wearing, 278, 310, 1066 '

— V. Whitley, 452
Innes v. Jackson, 245

— V. Mitchell, 248, 284, 360

In Re, Goods of Mary Powell, 1249

Inwood V. Twyne, 1402

Irby V. Irby, 1538

Ireland w. Eade, 1776, 1788

Ireson v. Denn, 172, 1052

— V. Pearman, 1 191, 1 192
Ireton v. Lewis, 175

TABLE OF CASES.

Ixv

Irvine 57. Whitehead, 1138
Irving V. Munn, 11 26

— V. Straith, 366
Irwin, /ie, 1386, 1877

— V, Dearman, 687

— V. Harrington, 13 12

— V. Lancashire Insurance Co., 463,

476
Isaac V. Gompertz, 1828

— V. Hum page, 1638
Isaacs V. Weatherstone, 1820
Isenberg v. E. I. House Est. Co., 1664,

1690 '
Isham V. Wallace, 1333
Isherwood, v. Dixon, 1481
Ismoord v. Clay pool, 624, 11 18, 11 19

1133

Isted V. Stanley, 1249
Ives V. Medcalfe, 529
Ivy V, Kekewick, 414

Jack. d. Rennick v. Armstrong, 1275
Jacklin v. Wilkins, 1612, 1695
Jackman v. Mitchell, 1488
Jackson v. Allen, 1253

V. Barry, 671

V. Benson, 159, 169,298

— - '.'. Cator, 1696

- V. Cassidy, 1696

- I'. Craig. 1873

«. Davenport, 23, 1589
v.. Duchaiie, 695

— V Duke of Newcastle, 1664

— y Gardner, 866

— V. Haworth, 145, 470
IK Innes, loi

— ". Jackson, 656, 1394, 1435

— 1). Jessup, 1358

— t>. Leaf, 313, 1632, 1634
V. Matthews, 755

- V. North Wales R. W. Co., 300
7A Norton, 115, 118

— v. Ogg, 1484

— V. Parish, 478

— V. Petrie, 1732, 1733, 1737, 1740
V. Rawlins, 151, 223

— V. RigaR. W. Co, 51, 512, 1585

— V. Saunders, 1687

— ('. Shanks, 356

— V. Strong, 324

— V. I'urnley, 625

- V. Ward, 222, 1586
Jacob V. Earl of Suffolk, 823

— V. Lucas, 192
Jacquet «. Jacquet, 1613,
James, ex parte, 951

— V. Biou, 501, 1021

— V. Bydder, 1004

James v, Dore, 34

- V. Downes, 1710, 171 1

— ('. Harding, 1586, 1587, 1588

- 0. Heriot, 387

— V. James, 322, 1472

— V. North, 1747

— V. Oades, 988

— V. Parnell, 556, 1265

— V. Rice, ICX), 379, 820

— V. Robertson, 128

— 1). Wertheimer, 368
Jameson v. Jones, 586
Jamieson v. Teague, i486
Janson v. Solarte, 448
Jarmain v. Eglestone, 1209
Jarrold v. Houston, 1670, 167 1
Jarvis Charity, Xe, 1883, 1887

-- V. Brooke, 1309, 13 14

— V. Clark, II06

— V. Cayiey, 1314, 131 7

— V. Chandler, 1638
Jay V. McDonnell, 868

Jebb V. Tugwell, 133, 222, 1585, 1597

Jeffereys v. Smith, 1761, 1800, 1831

Jefferies v. Harrison, 1526

Jeffery v. Bowle.'ji 1671

Jefferys v. Boosy, 41, 1688

Jeffreys t>. Smith, 1157

Jenkins, jRe, 93

— w. Briant, 815, 850, 1793, 1878

— 17. Cross, 1603

— V. Eldridge, 967 •

— V. Tickling, 975, 976

— V. Hiles, 616

— V. Parkinson, 1735

— V. Perry, 805

— V. Row, 1049, 1050
Jenkinson v. Royston, 442
Jenner v. Jenner, 1639

— V. Morris, 1507
Jennings v. Elster, 847

— V. Merton College, 475

— V. Patterson, 211

— V. Pearce, 429

Jennison v. Hapgood, 919, 921, 967
Jenour v. Jenour, 627, 1536, 1559, 1562,

1591
Jenny V. Andrews, 911

— V. Priestman, 218
Jepson V. Greenaway, 588

Jerdein v. Bright, 255, 256, 259, 267, 277
Jernegan v. Baxter, 76

— V. Glasse, 141

Jerrard v. Saunders, 404, 445, 1689
Jervis v. White, 1823
Jervoise, /ic, 1824

— V. Clark, 1586

— V. Duke of Northumberland, 12 19
V. Silk, 1394

Jesus College v. Bloom, 1661
— V. Gibbs, 442, 479

Ixvi

TABLE OP CASES.

Ill

Jesse V. Bennett, i8l, 183, 184, 22$

Jessop *'. King, 1687

Jew V. Wiiiterton, 904

Jewett V. Woodward, 956, 957

Jewin V. Taylor, 481

Jewitt, A't', 667

Jewson V. Moulson, 72, 73, 80, 82, 100

Jeyes v. P'oreman, 1608

Joachin w. McDonall, 1133

Joad V. Ripley, 1826

Job V. Banister, 1688

Joberns v. Couch, 1585

Joddrell r. Joddrell, 289, 1399

Jodrell V. Slaney, 453

John V. Jones, 620

Johnes v. Claughton, 659, 661

Johnson v. Ashbridge, 11 19

— V. Aston, 1810

— V. Barnes, 362, 365

— V. Cass, 1610

— V. Chippendall, 652, 658

— r, Compton, 194, 294

— V. Cowan, 326

— V. Curtis, 303

— V. Desmineere, 371

— V. Kesenmeyer, 304

— V. Freer, 319

— V. Gallagher, 91, 149
- V. Goldwain, 1683

— V. Gardiner, 1474

— V. Hammersley, 197

— V. Holdsworth, 1061
~ V. Johnson, 83, 84

— V. Leake, 1591

— V. Peck, 1590

— V. Preiidergast, 308

— V. Thomas, 235, lo8i, 1082, 1588

— V. Todd, 677

— V. Tucker, 525

— V. Wyatt, 668, 676, 169 1, 1707
Johnston v. Baker, 919, 921

— V. Compton, 194, 294

— V. Todd, 1531, 1537, 1538, 1613

— V. Tucker, 1858
Johnstone v. Baber, 706

— V. Beatie, 1387, 1389

— V. Hammersley, 1585, 1586
Jolliffe V. East, 1532, ^533

— V. Munday, 695

— V. Twyford, 1532
Jolly V. Arbuthnot, 436
Joly V. Swift, 562

Jones, AV, 1479, 1151, 11 54

— V. Alephsin, 1734, 1 741, 1746

— V. Bailey, 1044, 11 14

— V. Bk. of U, C, 243, 1056, 1091

— V. Barrett, 166

— V. Batten, 1620

— V. Binns, 122

— V. Brain, 1634

— V. Brandon, 357, 375

Jones 0. Brent, 1761

— V. Clarke, 1137

— V. Creswicke, 822, 11 19, 1133

— V. Davids, 260, 382, 1484

— V. Dyke, 1209

— ('. Fawcett, 89 ■ '

— V. Foulkes, 164

— *'. Foxall, 833, 83s

— V. Garcia Del Rio, 198, 284

— j;. Geddes, 361, 1650, 1651, 1652

— V. Goodchild, 183, 952

— y. Goodrich, 1760

— V. Griffith, 522, ^63, 613

— V, How, 181, 184, 210

— V. Howells, 1 58 1

— V. James, 184

— V. Jones, 202, 244, 295, 304, 471,

503. 507. 593. 614, 1635,
1655, 1858

— V. Kendrick, 1136

— V. Lewis, 1502, 1625

— V. Massey, 1594, 1706

— V. Mitchell, 1538

— V. Morgan, 507

— V. Morrall, 830

— V. Mudd, 1224

— V. North, 1742

— V. Powell, S7. 64, 848, 1384, 1390,

1581. 1593

— V. Price, 1 191

— V. Pugh, 1077, 1080, 1754

— V. Randal, 1346

— V. Ricketts, 1493

— V. Roberts, 1132, 1604, 1608

— V. Robinson, 710

— V. Rose, 321, 667

— V. Sampson, 1734

— V. Shepherd, 315

— V. Smith, 172, 273, 1052
~ V. Taylor, 428, 1699

— V. Tinney, 488

— V. Totty, 705, 708

— V. Turnbull, 571, 1627

— 7;. Williams, 971, 1594

— V. Wooley, 1682
Jope V. Morshtad, 701
Jopling?/. Stewart, 319, 376
Jopp V. Wood, 1556
Jordan 71. Jones, 148, 1046
Joseph & Webster, Av, 1624

— V. Doubkday, 1703, 1704
Joy V. Spafford, 322

Jupp w. Geering, 1590

Justices of Coventry, J?e, 1629, 1827

K

Ka
Ka

Kahn v. Redford, 1619
Kaine V. Stacey, 1106
Kampf V. Jones, 151 5

TABLE OP CASES.

Ixvii

U33

84

284
651, 1652

;, 304, 471.
614. 1635.

1384. »390.

754
1608

04
1827

Kane t*. Hamilton, 1687

— V. Maule, 8

— V. Reynolds, 8
Kay V. Brookman, 1254

— V. Johnson, 875

— V. Marshall, 1668

— V. Sanson, 497

— V. Smith, 568, 1845
Kaye v. Cunningham, 659

— V, Foshrooke, 48, 183

— V. Wall, 450
Keachie v. Buchanan, 350
Keane, Re, 667

Keates v. Burton, 210
Keating v. McKee, 1641

— V. Sparrow, 1687
Keating? v. Keatinge, 1361
Keech v. Hall, 1242

— 7'. Sandford, 950
Keefe v, Kirl)y, 1329
Keen, AV, 1629

— V. Stanley, 478
Keene v. lohnston. 79
Kekewich v. Langston, 1394

— V. Marker, 1394, 1660
Kelk V. Archer, 492, 494
Kellar v. Tache, 1803
Kellaway v. Johnson, 224, 227
Kelley v. Macklem 512
Kellogg's Case, 958

Kellow V. Rowcien, 1238
Kelly V. Ardell, 240

— V. Hooper, i486, 1707

— V. Lennon, 1569

— V. Macklem, 367, 1305

— V. Rogers, 248, 3CX)

— V. Smith, 645, 759, 1614
Kelsall V. Kelsall, 133, 136, 137

— V. Minton, 1832
Kembal v. Walduck, 505, 513
Kemble z/. Kean, 1681, 1685
Kemp V. Burn, 1520, 1523

— V. Jones, 326, 1751, 1767
- V. Latter, 379

— V. Mackrell, 680, 1591, 1639

— V. Pryor, 389, 390

— V. Wade, 848

— V. Westbrook, 1049
Kempton v. Cross, 1287
Kenan, lie, 908, 912
Kendall v. Granger, 1884

— V. Marsters, 312, 622, 1509
Kendell, v. Beckett, 336
Kendrew v. Shewan, 1357
Kenebel v. Scrafton, 1479, 1529
Kenn v. Neck, 684

Kennaway v. Tripp, 23
Kennedy, .^^, 1803

— V. Cassilis, 1650

— 0. Daly, 150

— V. Edwards, 30, 502

Kennedy v. George, 1859

— V. Green, 1207, 1852

— V. Lewis, 1702

— V. Royal Ins. Co., 1840

— V. Sedgwick, 1825
Kenrick v. Kenrick, 1426
Kensington, ex parte, 805, 1003

— V. Inglis, 44, 45

— Lord, V. Bouverie, 810, 1026, 1069
Kent V. Burgess, 675

— V. Pickering, 1633
Kenyon v. Worthington, 775
Kerby V. Kerby, iioo, 1105

Kernick v. Kemick, 81. 82, 83, 86, 481,

572
Kerr v. Bebee, 100 1, 1039

— V, Clemon, 374

— V, Duchess of Munster, 2 1

— V. Gillespie, 21, 293, 319
Kerrick v. Saffery, 174, 1050, 1055, 1059
Kershaw w. Mathews, 1763, 1769

Keys V. Keys, 1765

— V. Williams, 1007
Kidd V. Cheyne, 348, 1556
Kiddill V. Farnell, 1832
Kidger v. Worswick, 1840
Kidney v. Cockburn, 681, 1332
Kilby z/. Stanton, 185
Kildare, v. Hopson, 830

— Earl of 0. Eustace, 650
Kiiminster v. Pratt, 512
Kimber v. Ensworth, 244
Kimberley v. Jennings, 1685
Kimpton z*. Eve, 1685, 1701, 1711
Kinder v. Jones, 1650

King, Re, 1520

— V. Alberton, 691

— V. Allen, 387

— V. Bromley, 997

— V. Bryant, 379, 1 528, 1723

— V. Carr, 475 .

— v. Coggan, 952

— V. Connor, 723, 1I15

— V. Gotten, 1236

— V. Countess Dowager of Arundel, 3

— V. Freeman, 1087

— V. Greenhill, 806

— V. Isaacson, 1833

— V. Keating, 244

— V. King, 988, 1467, 151 1, 1577,

1634, 1635, 1760

— V. Leach, 1046

— V. Martin, 123, 212, 1056

— V. Noel, 503

— \i. Savery, 639

— V. Smith, 238, 1035, 1632

— V. Taylor, 1536, 1538

— V. Wilson, 952

— d. Lord Thanet v. Foster, 1332

— of the two Sicilies v, Wilcox, 402

— of Spain w. Hullet, 119

1a ■ •
xvm

TABLE OP PASES.

"i i

King of Spain 7a Machado, 158, 351,

1563. 1564
Kingdome v. Hoakes, 533
Kiiigsley, AV, 70

— V. Yoiin},', 158, 203, 346, 247, 1222
Kingsmill v. Miller, 1403, 1817
Kinkaicl, Rf, 78, 80, 81, 82

Kinnaird, Lord v. Christie, 1 369

Kinsey, /!e, 1377

Kinsman v. Barker, 796

Kirby v. Barton, 1633

Kirliain v. Smith, 1481

Kirk V. Clark, 164, 179

Kirkby Ravensworth Hospital, fx parte,

18S4
Kirkman v. Booth, 935, 151 7

— V, Hon nor, 1702
Kirwan v. Daniel, 117, 243
Kitchen t'. Himhle, 1581, 1585

— V. Murray, 1265
Kline v. Kline, 638, 901
Knaggs V. Ledyard, 1311, 1315
Knapp V. Bower, 1029, 1 103

— V. Williams, 1 765
Knatchbull w. Fearnhead, 151 1
Knebell v. White, 310, 1027
Knighi's Trusts, B,i\ 1511, 1513

— V. Bowyer, 312

— V. Cory, 21, 293

— V. Duplessis, 1759

— V. De Blaquiere, 20

— V. Knight, 237, 65s, 1828

— V. Lord Plymouth, 1 787

— V. Maclean, 796, 904

— V. Ma'joribanks, 428

— V. Martin, 1 5 15

— V. Watts, 1742

— V. Pocock, 171, 184, 213, 233
Knott, ex parte, 1249

— V. Coitee, 652

— V. Cottee, 833, 1 5 19, 1524
Knottinger v. Barber, 1124
Knowles v. Chapman, 807
Knox V. Brown, 123, 484

— V. Gye, 331

— V. Symmonds, 329
Knye v. Moore, 165, 284
Koeber u. Sturgis, 81
Koppenhaffer v. Isaacs, 961

Lacey v. Forrester, 686
Lacon v. Allen, 1003

— V. Mertins, 807

Lachlanz/. Reynolds, 725, 1352, 1356

Lacy V. Burchnall, 56

Ladbroke w. Sloane, 491, 1634

Lade v. Lingood, 550

Lady Arundell v. Phipps, 1647, 1679

— Beresford v. Driver, 1852

Lady Dartmouth v. Roberts, 551

— Falkland v. Lord Ceeney, 1568

— Granville V. Ramsden, 417

— Hartland v. Atcherley, 138

- Langdale v. Briggs, 625, 1872
Ormond v. Hutchinson, 530

— Selyard v. Executors of Harris, 204,

227

— Shaftesbury v. Arrow, 1854

— Stowell V. Cole, 1584

— Teynham v. I^ennard, 1390
Lafone v, Falkland Islands Co., 41 1, 1846,

1856, 1857, l86a
Laforest, Re, 50 '

I.aing V. Kaine, 534
Lake v. Deer, 686

— V. Mcintosh, 130

— V. Skinner, 561, 562
Lakin, ex parte, 1394
Lamb 0. McCormack, 1030

— V. Orton, 1574, 1824, 1845
Lambert v. Fisher, 695

— V. Hill, 1612

— V. Lyddon, 696

— V. Newark, 1626, 1827

— V. Peyton, 627

— V. Rogers, 415

— V. Turner, 127

La Mert v. Stanhope, 506
Lampet's Case, 1246, 1247
Lampon t/. Corke, 1 171, 1 182
Lancashire and Yorkshire R. W. Co. 7'.

Evans, 485, 507
Lancashire f. Lancashire, 675, 1560, 1621,

1756, 1760
Lancaster, Re, 34, 36

— V. De Traffonl, 676

— x\ Evors, 250, 449, 450, 813, 1851

— V. Thornton, 62
Lander v. IngersoU, 60, 61

— V. Weston, 448

Land on i>. Morris, 1082, 1755

— V. Ready, 319
Landman v. Crooks, 839
Lane, Re, 1395, 1 398

— V. Debenham, 1871

— 0. Hardwicke, i ?, "J^^

— V. Hobbs, 63''

— y. Horlock,

— V. London B 1 Scotland, 46c

— K Newdigate, "4, 169^^ 1700

— V. Smith, 50, 51, 122

— V. Coleman, 979 , '

— n. Sterne, 1778
Lang V. Griffith, 1719
Langdale v. Langdale, 486
Langford v. Pitt, 618, 1220

Langham v. Great Northern R. W. Co.,

489, 1468
Langhorne v. Harland, 1488 • '
Langley v, Bredon, 658, 662

r.an

T;\ni,i: (tF CASKS.

].\is

5S» „
T, 1568
4>7
138
;, 1872

530

Harris, 204,
1854 '

390
.,411, 1846,

'845

W. Co. 7'.

1560, I62I,

813, 1851

[land, 46c
or 1700

l.anRley ik Fisher, 541, 599, 149.^
'•. Ilawke, 1757
V. 'I'he Karl of O.N ford, 211

Lnntrston, tx partey 1004

Langtoni>. lliggs, 893, 1529, 18 19

— - I'. Horton, 999

— V. Langton, 1050, 1479
Langtry, AV, 1634

Lannam v. Pirie, 152 '

l.ann i\ Church, 1018

l,anoy 0. Duke of Athol, 77, 84, 1398

I, ant I'. Crisp, 1136

1 .aprimandaye c. Teissier, 93, 18 tS, 1824

Larabrie v. Hrown, 315

Largan ('. Dowen, 1633, 1795

Large w De Ferre, 62

Karkin v. Armstrong, 864

Larkins v. Paxton, 1543 '

Lannuth 0. Simmons, 164S

Laroche v. Wakeman, 47

I, ash, AV, 1285

- V. Miller, 124, 1 58 1, 1585
Lashley c. H^g, 487, 773, 889
Laslett V. Clifie, 1038

Lassert c. Salyards, 1654
Latch ('. Furlong, 1047, 1292
Latham v. Kenrick, 52
Lathbury v. Hrown, 687
Latimer r. Neate, 1852, 1855, 1S5S

- V. llolcombe, 21, 28
Latta, ex parte, 21, 1625
Latter v. Dashwood, 840
1-aughtenborough I'. McLean, 129S, 1312
I-aughton v. Thompson, 1658

1 .aurie v. Crush, 1 587

Laurence v, Austin, 1664, 1665, 1689,

1691
I.autour V. Holcgmbe, a6o, 383, 490, 507
Law, Re, I39<^i882

— V. BagNvell, 1079

— V. Hunter, 542, 763

— V. Law, 268
London Indisputable Co., 1840,

1 841
London Indisputal)Ie Sdciety,
445

Rigby, 396

Kreidler, 919
Halpen, 90

— ('. Hooper, 998

— i'. Walden, 168
Lawlor v. Murchison, 1839
Lawrnson z'. Buckley, 1369

Fitzgerald, 1043
.ice V. Bowie, 1525
0. Campbell, 411, 1856
V. Halliday 11 54
V, Humphries, 154, 107 1
V. Judge, 1656
»'. Maule, 552
f. Richmond, 633

8 A

— V.

Lawall V.
Lawley

Lawr

Lawrence t'. Smith, 1667, 1670 . .

Lawrenson c Hutler, 1500
LawMin f. Marker, 210

— *•. Sloddart, 579

- V, Wright, 226
Lawton v. Lawton, 1634
Laybery z'. Brooking, 1568
Lazarus r. Mozley, 1 841, 1842
Lazier \\ Ranney, 11 26
Lea's Trust, Ke, 154

Leach c. Leach, 1390
Leacrofl c. Maynard, 1473, 1537
Leader /'. Barry, 1320
Leahy v. Dancer, 1066
Luake 11, Beake, 1732
Leather Cloth Co. r'. American Leather
Co., 1673, 1676
— ;•. Bressiy, 341

Leathes r. Newitt, 219
Lcchmere c. Biasier, 542, 543, 544, 1190

— T'. Brazier, 1527

— Charlton's Case, 667
Ledgerwood \\ Ledgerwood, 730, 769
Ledwich, ex parte, 667

Ledyard 7-. McLean, 723, 864
Lee, ex parte, 45

— V. Bell, 1718

— V. Blackstonc, 331

- 7'. Brown, 1490, 1532

— V. Delane, 1500, 1532

— T'. Ilammerton, 599

— v. Head, 1867

— V. Heath, 11 19, 11 29
-- 0, I^ambert, 1746

— V. Lee, 51, 52, 1594, 1600

— V. Milner, 1663

— J'. Pain, 536

— v. Park, 1632
»". Read, 465

— V. Reed, 398, 400
r. Ryder, 139

*". Shore, 686, 693 _ _

V. Smith, 1 120
«. Vernon, 1245
/'. Welsh, 970

— 7'. Willock, 851, 1321
Leech 7'. Bailey, 442

— y. Trollope, 404
I-eedham *'. Chauner, 1527

Leeke >\ (Iresham Life Insurance Co., 685

Leeland v. Griffith, 1155

Lees 7'. Nuttall, 1573, 1630

Leeson *'. Smith, 687

Lefroy t'. Lefroy, 1151, 11 54

Legal *'. Miller, 305

Lagard v. Daly, 680, 696

— V. Hodges, 1830

— V. Sheffield, 522
Legg V. Mackrell, 1518
1 .egge r. Edmonds, 399

— V, Winstanley, 355

0 i

S '

it'

'::i!*

Ixx

TAl'.r.E OF TASKS.

Legh V Ilaverfield, 305, 545

— V. llewett, IJ84

— V. HoUoway, 698
J^e Grand v. Whitehead, 877
Legros z^. Cockerell, 1137
Le Heup, ex parte, 285
Leigh, ex parte, 1553

— V. Birch, 449, 450

— V. Leigh, 1689

— V. Macaulay, i8r2, 1815

— V. Thomas, 194, 202
Leighton v. Leighton, 1280, 1689, 1708
Leishman v. East\trood, 89

Leith V. Irvine, 819

— ». Pope, 687
Leman v. Alie, 1500

Lenaghan V. Smith, 142, 146, 175, 178
Leng I'. Hodges, 1825
Lennon v. Napper, 1687
Leonardo. Attwell, 1713

— V. Black, 1819
Lemane v. Mealin, 689
Leslie v. Baillie, 103

— V. Pres::on, 1358
Lespinasse i*. Bell, 1774
Lesquire v. Lesquire, .'?36
Lester v. Archdale, 507

Le Targe v. De Tuyle, 194, 1483

Le Texier v Margravine of Anspach, 122,

146, 249
Lethem v. Hall, 1393
].ethley «. Taylor, 142
Lett 1'. Morris, 528

— V, Parry, 311

— V. Randall, 379
Leuty V. Hillas, 190

Le Vasseur v. Scratton, 97

Leven v. Welherall, 1239

Levett V. Letteney, 648

Levi V. Heritage, 124, 505, 507, 513

— V. Ward, 1731
Leving i'. Caverley, 139, 531
Levy V. Baillit, 687

— V. Levy, 129, 671

— V. Milne, 686
Lewes, Re, 1479
Lewin's Trusts, Re, 83, 86
Lewin v. Al!en, 224

— V. Guest, 1220, 1222, 1224, 1504

— V. Okeiey, 909

Lewis V. Armstrong, 1468, 1623

— V. Baldwin, 360

— V. Cooper, 434

— V. Davies, 1858

— V. Edmund, 277

— V. Fullerton, 1667, 1 670, 1 67 1
-- V, Hinton, 635

— V. Jones, 498

— V. King, 1810

— V. Lechmere, 12 18

— V. Lord Zouche, 1774

Lewis J?. Loxham, 1222, 1352, 1500

— /'. Nangle, 174, 1062

— ('. Pennington, 409

— V. Smith, 1562, 1620, 1677, 1703

— V. Thomas, 675

— Bowles Case, 1659
Ley V. Ley. 1775

— V. McDonald, 1697
Ltycesterz/. Norris, 163. !5^9
Leyland r. Leyland, 331, 1585
Lidbetterr. Long, 43 i, 1 556
Liddell v. Liddell, 1761
Light V. Light, S, 69
Lightboume v. Holyday, 94
Lightbume V. Swift, 1136, 1 137
Like V. Beresford, 83, 1620
Lilley, Re, 1626
Li) He V. Lillie, 22

— V. Legh, 1578
Lincoln v. Allen, 830

— •*'. Archdeckne, 1 220

— V. Windsor, 15 16

— V. Wright, 626, 1607
Lind V. Isle of Wight Ferry Co., 1676,

1854
Lindsay I'. Gibbon, 717

— V. Lynch, 533, 54S. $46, 620

— Petroleum Co. i'. Hurd, 1612, 1827
Lindsey z'. Howerton, 972

— /•. Tyrrell, 34, 59, 1573
Linet, Re, 1327
Liney 7-. Witherley, 5, 69
Linford v. Cooke, 1826
Ling V. Col man, 204, 20S
Lingen v. Simpson, 1 85 1
Lingood v. Croucher, 247, 248
Lingren v. Lingren, 127
Lingwood i'. Stowmarkc-t Paper Co., 1O64
Linley v. Taylor, 1532
Lippiat V. Holley, 489
Lipsey v. Cruise, 368
Lissett i^. Reave, 158, 269
List's Case, 667
Lister v. Leather, 485, 1620

— V. Mundell, 690

— V. Sherringham, 1531 .

— V. Turner, 1046
Lister's Hospital, AV, '883
Lithgow V. Lyon, 904
Litton I'. Litton, 799
Littlehales v. Gascoyne, 830, 1522
Littleton v, Hibbins, 915
Littlewood v. Collins, 492
Livesey i*. Harding, 171 8

— V. Livesey, 134

— V. Wilson, 476
Livingston v. Cooke, 1728
Livingstone v. Acre, 648
Livingstone's Case, 956
Llewellyn v. Badeley, 1845
Lloyd, Re, 642

TABLK OF CASES.

Ixxi

2, 1500

1677. 1703

i9

85

137

■y Co., 1676,

546, 620

rd, 1612, 1827

73

48

per Co., 1664

1522

Lloyd V. Adams, 1647, 164S

— V. Callctt, 1 190, iiyi

— V. Cheetham, 653, 1764

— V. Cocker, 1873

— V. Crispe, 1 191, 1220, 1242

— J'. Davies, 60

— V. Gurdon, 1677, 1693

— V. Griffith, 1365

— V. Johnes, 186, 188, 221, 222, 1058,

1591

— V. Jones, 308, 842

— V. Lander, 122, 211, 986, 1055

— v. Loaring, 18, 195, 196, 202, 242.

321, 333

— V. London C. 4 D. R.W. Co., 1676,

1681, 1686

— 0. Loring, 431

— v. Mansell, ir29, 1135, 1136
" V. Mason, 85, 915, 1776

— V. Mytton, 478

— 0. Passingham, 1320, 1755

— V. Purves, 1854

— V. Roe, 978

— V. Solicitors' Life Insurance Co.,

471, 525

— V. Smith, 181, 223

— z: Spillett, 1518

— V Trimleston, 1759

— V. Wait, 102 1

— V. Williams, 84, 85, 800
Loader «. Price, 1590

Loane v. Casey, 895, 899, 900
]<oaring. Ex parte, 1009 ,

Lock V. Lomas, 439

— w. Foote, 134
Locke V. Colman, 678, 696

— V. Lomas, 1032, 1078
Lockett V. Cary, 1848
Lockhart I*. Hardy, 1032, 1135
Lockley v. Pye, 686
Lockwood \\ Ewer, 1049

— p. Kenton, 1389
Lodge V. Lysely, 1221

— V. Pritchard, 1522

Loflus V. Swift, 809, 1475, 1480, 1483
L'lgan t', Fairlee, 160, 207, 1389

— V. Logan, 975

— V. Princess of Coorg, 1 765
Logan's Adm'r. ?'. Troutnum, 979
Loker iK Rolle, 302, 385, 387, 390
Lolly's Case, 1443

Lomax v. Hird, 1019, 1021

— V. Hide, 1477
London --. London, 467

— and Birmingham R. W. Co. r.

Winter, 546

— and IJlackwall R. W. Co. r. Lime-

house Board of Woiks, 338,
1468, 1699
-• and N. W. R. W. Co. ,-. L;uKas-
Icr, 181 2

— i\

— w

V.

— V.

— - V.

— V.

Lope/
J^ord I

V.
V.

London and B. & S. C. R. W. Co., R:,
1883, 1887

— Gas Light Co. i\ Spottiswoode, 225
Londonderry, Lady, v. Baker, 431
Long, Re, 1630

— V. Bilke, 689, 690
Bowring, 235
Collier, 1 22 1
Glen, 1482
Long, 1020
Myles, 1237
Storie, 162, 164, 490, 509, 1048,

1076
Willmotte, 109

— V. Young, 196
Longley v. Hall, 967
Longman w. Winchester, 1670
Longmore v. Broom, 830

Longuet v. Scawen, '^85, 987, 998, 1072
Longworth v. Bellaiay, 143, 352, 361
Loomes v. Stotherd, 1:94, 913, 1527, 1528,

1529
'. Deacon, 1847

Colvin, 564, 575, 1564, 1565

Governor and Company of Copper
Miners, 201

Kellett, 254, 381

Purchas, 1756

Wardle, 683, 695, 696

Wormleighton, 1633
Abergavenny v. Thomas, 715
Ash burton v. Lady Ashburton, 1402
Bath ('. Sherwin, 1689
Belmore c. Anderson, 468
Ikrr.iird's Case, 1 660
Brooke v. Earl of Warwick, 1576
Brougham v. Lord Poulett, 1532
Byron v. Johnston, 1694, 1695
Carrington 0. Payne, 556
Carteret v. Paschall, 100, I02
Ched worth v. Edwards, 1679
Cholmondeley v. Lord Clinton, 321,

333. 395. 4"
riancarty v. Latouche, 820
Coningsby v. Jekyll, 333, 430
Cranstown 0. lohnston, 540, 1482
Crewe v, Edleston, 1765
Darnley v. London Chatham and

Dover R. W, Co., 331
Digby r. Meech, 264
Donerail t'. Ladj Donerail, 538
Dursley v. Fitzhardinge, 262
Falconberg v. Peirce, 678
Fingal v. Blake, 670
Grey de Wilton v. Saxon, 1683,

1700
Hastings!'. Beavan, 1716
HoUis, Re, 234
Hollis' Case, 173
Hutchinson i\ Lord Ma^^saieac,

•775

I

I?'

m

1

XXI 1

TABLE OF CASES.

Lord lluiUiiigtower v. Slicrborn, 511,

512

— Keeper v. WylJ, 292

— Kensington v. Bouverie, 810, 1026,

1069

— Kilmorey v. Thackeray, 1683

-■ and Lady Leicester, case of, 1423

— Lonsdale v. Littledale, 247

— Middleton v. Eliot, 807, 823, 1483

— Milltown V. Stuart, 520, 161 5

— Montague v. Dudinan, 404, 1637

— Mornington v. Keane, 1863

— Ossulston??. Lord Yarmoutii, 819

— Pelham v. Duchess of Newcastle,

652, 654, 657, 658, 659, 6G1

— — V. Lord Harley, 663
- I'enrhyn *'. Hughes, 811

— and Lady Perceval z'. Phipps, 1672

— Petre, ex parte, 1398

— Portarlington t'. Graham, 1702

— — V. Soulby, 1651, 1652

— PortJnore ". Taylor, 1239

— Raymond's Case, 1404

— Sefton )•. Lord Salisbury, 1 709

— Shipbrooke v. Lord Hinchinbrooke,

875, 1605, 1829

— St. John 0. Lady St. John, 286

— Stowell I'. Cole, 1584

— Suffield V. Bond, 471

— Tamworth v. Lord Ferrers, 1660

— Trimleston v. Hamil, 1484

— Uxbridge v. Staveland, 266, 294

3>i. 312

— Walsingham ?'. Goodricke, 407,

413, 596, 1856

— Wellesley v. Earl of Mornington,

1701, 1710, 1711

— Wenman v. Osbaldiston, 1 720
Lorimer I'. Lorimer, 501, 509
Lorkins v. Paxton, 1527

Lorton v. Gore, 1344

Losce V. Armstrong, 718

Loscombe v. Russell, 274

Loucks 7'. Loucks, 277

Lousada- v. Templer, 324

Love ?•. Baker, or Lowe v. Baker, 1650

— »'. Jacomb, 210
Loveden v, Milford, 590
Lovcgrovc, f.x partt, 950

— c. Cooper, 909, 1 157
Lovcll :'. Andrew, 197

— V. Galloway, 1648, 1700
Lovett r. Lovett, 84, 85

Low »•. Burron, 1236

— «. Carter, 15 13, 1523

— V. Innes, 1664

— ?.'. Morrison, 1329

— r. Routledge, 1668
Lowdon r. Microns, 686
Lowe i\ I'airlic, 207

— v. Morgan, 170, 1076, iO/7, 1078

Lowe V. Peskett, 910

— i\ Watson, 222, 1587

— V. Williams, 287, 454, 47 1
1^0 wes ti. Lowes, 1585

— V. Lush, 1223

Lowndes v. Bettle, 1655, 1656, 1 70S

— V. Collens, 799, 800, 806

— V. Robertson, 29
V. Taylor, 48

Lownds V. Garnett and Moseley Gold Mi-
ning Co. , 424, 4S2
Lowson V. Copeland, 1522
Lowten v. Corporation of Colchester, 1 590

— V. Mayor of Colchester, 654
Lowther x\ Carlton, 1067

Loy V. Duckett, 183, 1825
Loydi'. Cardy, 1 733. -1738, 174°

— 0. Mansel, 134, 136
Lubiere v. Genou, 550, 553
Lucas <'. Arnold, 220

— V. Calcraft, 716, 717

— V. Commerford, i68S

- /•. Lucas, 132

— V. Peacock, 1718

— *'. Scale, 1049

— V. Temple, 1552, 1553
Luckuow r. Brown, 1394
l.udgater r, Channell, 1793
Ludlow Charities, Re, 1906

— V. Grayall, 1017
Ludolph i\ Saxby, 62
Luff ('. Lord, 307, 1493
Lumley v. Hughes, 21

— V. Wagner, 1681, 16S5, 1690
Lumsden ?'. Eraser, 241, 242, 394
Lund V. Blanchard, 19

— V. Blanshard, 241, 242, 277
Lundy v. McKamis, icx)l

Lunn V. St. John, 819
Lushington v. Boldero, 1653, 1661
Luther r. Ward, 28
Lutterel's Case, 54, 1652
Lutwich V. Attorney General, 1057
I.yddal r. Weston, 1222, 1223
Lyddon r. Ellison, 1825
Lydc ('. Minn, 1005
Lygon -'. Lord Coventry, 1398
Lyle c. Earl of Varborougli, 618
Lyman r. Kirkpatrick, 11 15
Lynch w Clarke, 1333, 1346
-- /'. Lecesne, 480

— /•. O'Hara, 1338
Lyndsay c. Lynch, 309, 323, 324
Lync ('. l^ockwood, 558

— V. Pennell, 1581
- i». Willis, 131

Lynn v. Beaver, 1500, 1531

Lyon V. Baker, 1516 '' ■

— V. McKenna, 1526

- 1). Mercer, i;8
Lyons v, blenkin, 56, 1388

Ly

Mal^
Ma^
Mad
Mac-
Mad

T.VHI-E OF CASES. , Ixxiil

Lyons V. Byrd, 971

Magee v. Copperlhwait, 980

— V. Read, 460, 479

— V. London & Port Stanley, R. W.

Lys V. Lee, 158, 1597, 1600

Co , 1666

Lysev. Kingdon, 1511, 1520,

Magennis'y. Fallon, 1352

Lytton V. Great Northern R. W. Co. 1688

Maghee v. Mahon, 876
Magnay v. Knight, 690 '
— V. Mines Royal, 1648, 1649J

M

Magrane r. Archbold, 1687

Magrath r. Lord Muskerry, 1687

Maber v. Iloblvs, 562

Maguire «. Allen, 1752'

Macarmick v. Balle.-, 79

— V. Madden, 1562

Macartney v. Graham, 166, 1485

Mahoney t\ Frasi, 692, 696

Macarty v. Gibson, 1790

Mailins v. Greenway, 255

Macaulay v. Phillips, 81, 83, 85

Mainwaring /'. Baxter, 1 32 1

— V. Roberts, 1667

Mail r. Kerr, 1284, 1572

Macauley r, Shakell, 401

Mailland 7'. Backhouse, 1677, 1700

Macbeath v. Ellis, 689

Major V. Arnott, 452

_

Maccallum v. Lindon, 398

— V. Aukland, 48

— V. Turton, 398

— V. Major, 631, 913, 1511, 1621

Macclesfield, Earl oiv. Blake, 1161

Makepeace v. Haythorne, 158, 25 s

— — V. Bradley, 692, 695

— V. Romieux, 481

— V. Fitton, 817, 1062

Makings v. Makings, 1526

Macdonald v. Macfarlane, 1585

Malcolm v. Malcolm, 429

Macdonnell i\ McKay, 1843

-- »». Montgomery, 1768

Macdougal i\ Hogarth, 1344

— V. O'Callaghaii, 950, 1780, 17S2

,

Macey v. Metropolitan B. of Works, 1676

- - V. Scott, 540, 1578

Macfarlane, Kf, 1390

Maiden r. Fyson, 1498

Macgregor f. Cunningham, 1703

Male V. Bouchier, 645

Macguire v. O'Reilly, 271

Malin r, Taylor, 684, 686

Machill n Clarke, 1231

Maling r. Hill, 1498

Macintosh ?'. Ogilvie, 1737

Malins r. Greenway, 1590, 1591

— V. Townsend, 1568

— V. Price, 694, 698

Mackenzie v. Mackenzie, 649

Mallabar7'. Mallabar, 1522

— V. Marquis of Powis, 659

Mallack v. Galtoi], 131, 149

-^ V. Robinson, 1048

Mallett 7'. Enequist, 1695, 1700, 1702
Malloch r. Pinhey, 605

Mackerell v. Fisher, 334

Mackintosh 0. G. W. R. W. Co., 1565

- V. Plunkett, 645

Macklin v. Richardson, 1707

Malone v, Geraghty, 1024, 1035, 1045,

Mackreth i\ Nicholson, 351

1060

— V. Symmons, 1008, 1009, 1014, 1016

Malony, AV, 183

Mack worth t'. Marshall, 123

Malpas V. Ackland, 206

— V. Penrose, 550

Manz-. Ricketts, 124, 554, 557,671,1256,

- - V, Thomas, 797, 816

1472, 1502

Maclaren v. Stainton, 494, 1614, 1632,

Manby, Kc, 255, 257

1693

- V. Bewicke, 21, 293.414. 568, 1844,

Maclean v. Dawson, 162, 164, 361

1845. 1854

Macleod f. Buchanan, 1718.

— V. Owen, 1707

Macnamara r. Jones, 943

Manchester & Leeds R. W. Co., Re, 1626

Macneil v. McChegor, 1321

-- & Sheffield R. W. Co. v. Worksop

Macpherson v. Macpherson, 1462

Board of Health 464, 1664

MacRae i'. Holdsworth, 1668

— & Stafford R. W. Co. v. How,

— V. Smith, 493. '632

357

>iaddeford v. Austwick, 847

— New College, Kc, 1885, 1886, 1888

Maddison v. Chapman, i^xz

Mandeno v. Mandeno, 1538

- V. Pye, 1535

Mangles v. Dixon, 817
Manfey v. Williams, 22, 377

Maden v. Catanach, 564

— V. Veevers, 412

Manlove i'. Bale, 807

Madgwick v. Wimble, 1763

Manly v. Williams, 1705

Madox V. Jackson, 163, 223, 227, 236

>L'inn t'. Stennett, 1 799 *

Magdalen College v. Athill, 28a

Manners v. Charlesworth, 705, 708

— V. Sibthorpe, 244

— V, Furtc, 1 160, 1756, 1773

\

%

«5i

■1

l-l

1

Ixxiv

TAUJ.E OF CASES.

1^

i i- i

Manning v. IJirely, 500

— V. Cubitt, 1839

— V. J.echmere, 547

— /•. Manning, 953, 955
-^- r. Thesiger, 184, 195

Mannings' Case, 1246, 1247J

Mansell c. Feeney, 270, 290, 424, 445,

482, 1 84 1, 1845, 1846, 185 1
Manser /'. Dix, 412, 1856
Mansfield r. Shaw, 1693
Manton i: Bates, 687

— r. Roe, 193, 4S7
Marasco v. Boiton, 1695
March v. Head, 84

Marchioness of Annandalc I'. Harris, 1347
Marcos?'. Pebrer, 277
Mare v. Earle, 1488

— r. Malachy, 199

— 7'. Sandford, 1488

— V. Warner, 1488
Margaruni v. Sandiford, 875, 876
Margetson v. Wright, 1668
Margrave r. Le Hooke, 273
Margravine of Anspach z: Noel, 617, 1223
Maria v. Hall, 43

Maries v. Maries, 155
Marker ?'. Marker, 1660 "■

Markham f. Middleton, 687

— /'. Smith, 219
Mark well A'c, 1883
Marlborough School, /^c, 1902, 1903

— Duchess of, v. Wheat, 852
Marlow r. Smith, 1219

Marquess of Breadalbane r'. Marquess of

Chandos, 1650
Marquis of Bute r. Glamorganshire Canal

Co., 1851, 1854

— — V. Stuart, 1385, 1387, 1650

— ofCarmarthen v. Hawson, 656, 662

— of Clanricarde r. llenning, 1488

— of Devonshire v. Lady Sandys, 1 660

— of Hertford v. Count de Zichi, 211

— — 7>. Suisse, 1606

— of Lansdowne v. Marchioness of

Lansdowne, 166 1

— of Townshend i\ Stangroom, 1490
Marr T'. Littlewood, 1760

Marriage v. Skiggs, A'e Skiggs, 1633
Marriott v. Anchor Reversionary Co. 598

— V. Hampton, 1288

— V. Marriott, 1474

— V. Kirkham, 173

— V. Thompson, 894, 895
Marrow, AV, 1479, 1629
Marsack v. Reeves, 1467
Marsden z: Bound, 593
Marsh r. Beard, 22, 32

— r. Colnet, 1332

— z: Goodall, 1778

— V. Hunter, 480

— V. Keith, 310, 445, 449, 450, 596

V.

V,

■v.

V.

Marshall, A'f, 730

— tu />iir/e, 1036 . "

— V. Balfour, 373

— *'. Cliff, 5^4 ; : ,

— T'. Colman, 274

— .'. Fowler, 81
Grime, 1873
HoUoway, 935, 942, 944, 980,

1517

— T. McAravey, 238

— 7'. Mellersh, 455, 161 1

— ('. Sladden, 248, 1493, 1520

— ('. Watson, 1688
Marshfield v. Weston, 788
Marten v. Whichele, 544
Marter z'. Marter, 520
Martin 7'. Foster, 1404

— V. Fust, 338, 1623, 1699
Had low, 1 58 1, 1587
Headon, 1664

— z>. Kejinedy, 420

— 7'. Martin, 890, 16^2

— 7'. Mitchell, 85

— 7'. Xutkin, 1 68 1

/". i'urdy, 1 1 48 ^

-- r. I'urnell, 1581, 1587

— r. I'ycroft, 1 5 75

— r. Reid, 427

— V. Willis, 659 *

— 7'. Wright, 1673
Martindale I'. Picquot, 734
Martinius »'. Helmuth, 116
Martyn v. Blake, 814, 815

— z'. Podger, 691 • •
Marvin ?'. Hales, 1338
Marwick /'. Pawson, 486
Maryatt v. Maryatt, 181 9
Mary Powell, AV, goods of, 1249
Mason, AV, 1403

— '•■ Hogg, 238, 891

— 7'. Broadbent, 826

— Z'. Burton, 513

— /'. Corder, 1242

— 7'. Franklin, 243, 246, 280
Gardner, 24
Gardiner, 311
Jeflfery, 31, 32
Lake, 311, 333
Mason, 669
Murray, 337

— v. Seney, 320, 604, 646, 1127

— r. Norris, 1667

— V. Wakenian, 450
Massy v. Batwell, 235, 1082
Masterman v. Lewis, 1703

— V. Price, 531, 1563
Masters v. Barnes, 205, 208

— r, Braban, 673

— r. Barn.vell, 688
>ratchett T. Palmer, 1374
.Mather, ex />ar/c, 311

r.

7'.
7'.
I\
('.

V,

w

TABLE OF CASES.

Ixxv

944. 9S0,

Is20

127

Mather r. Lay, 1648

— e. Shelijiercline, 38

— V. Short, S67, 1015
Mathews w. Chichester, 32

— i\ Jones, 1679
Mathisr.'Mathis, 978
Matson v. Swift, 1629
Ma'thewz'. Bowler, 1009
Matthews v. Walwyn, 817, 819, 1022

— V. Chichester, 428, 471

— 7/. Palmer, 491

— V. Port, 1332
Matthewson v. Stockdale, 1670
Matthison v. Clark, 1 5 1 7
Maud V. Ackloni, 284
Maude ?'. Maude, 1628, 1629
Maughan i\ Wilkes, 647
Maule V. Duke of Beauford, 233
Maund 7'. Allies, 1859
Maundrell v. Mauiulrell, 1249, 1689
Maunsell z'. Egan, 1798

— V. Midland G. W. R. W. Co., 1676
Mauricett v, Brecknock, 687

Mavety y. Montgomery, 1126

Mavor v. Dry, 339

Mawz/. Pearson, 51, 204, 389, 1585

Mawe V. Heaviside, 78

Mawer's Case, 1 739

Mawgan I'. Tegg, 167 1

Maxwell z>. Maxwell, 1429

— i'. Mountacute, 990

— V. WetenhaH, 800
May z*. Higgenden, 1488

— V. Hook, 1729

— 0. May, 1321

— V. Ro; or, 78

— 7>. Selby, 182, 194, 244, 294, 1060
Maybery v. Brooking, 1 19, 244

Mayer t'. Snence, 1618, 1669, 1696
Mayfield v. Wadsley, 683
Maynard v. Moseley, 627
Mayne v. Butter, 570, 1832

— V. Hochin, 329

Mayor of Berwick v. Murray, 287, 527,

573, 1859

— ofCardiff ('. Cardiff WaterworksCo.,

1665

— of G loucester r. Wood, 1564

— of Guildford t'. Clark, 386

— of Liverpool ?'. Chorley Water-

works Co., 1663

— of London v. Ainsley, 398

— * — 7'. Bolt, 1662

— — V. Hedger, 1685

— — V. Levy, 401, 418, 419

— ofYork 7'. Pilkington, 281, 1637

1709

-" ami Aldermen of Colchester v.

• 251
Mazarredo 7/. Maitland, 428, 449
McAdie v. Corby, 1305

McAlpine r. Eckfrid, 1698

i: Young, 1 150, 1153
McAndrew v. Bassett, 1468, 1485, i486,

1673
McAnnanay v. TurnbuU,' 1497
Mc Bride 7/. Malcomson, 711
McCahan's Appeal, 961
McCall V. Peachy's Admr., 972
McCalmont v. Rankin, 117, 118, 307,

1577
McCann 7'. Beere, 1847

— V. Eastwood, 372, 665
McCarroll t\ McCarroll, 491
McCarthy v. De Caix, 1444

T. Goold, 653, 1764

7'. Llandaff, 818
McCarty i'. Wessels, 367
McClary 1'. Durand, 372
McClennaghan 7'. Buchanan, 1610
McClure v. Jones, 354
McConnell ?'. Hector, 44

— V. McConnell, 742
McCormick v. Garnett, 75, 548
McCracken i>. McCracken, 979
McCulloch, AV, 1385, 1390

7'. Colbach, 1 151
V. McCulloch, 1455
McDonald, AV, 730, 1803
■r. Dicarie, 22

— /'. Garrett, 1359
c. Gordon, 1141

r. McDonald, 1 194, 14^.0, 173S

— 7'. McDoneli, 1315
7'. Reynolds, 1292

r. Robillard, 1301, 1312

•('. Rodger, 868

Wright, 867, 1094
McDoneli v. McDoneli, 1316, 1318

V. U. C. Mining Co., 1878
McDonnel v. McKay, 337, 338
McDonnell v. McDonald, 1305, 1^,06,

1315

— V. Street, 338

McDonough 0. Shewbridge, 1024, 1027
McDougal 7'. Purrier, 47S
McDougall, AV, 1397

— 7'. Bell, 129, 471
V. McDougall, 714

McDowell V. McDowell, 653
McEwan ?'. Orde, 606
McKarland's Estate, 962, 966
McFarlane, AV, 69
McFeeters c. Dixon, 500
McGee v. Morgan, 989
McGill 7'. Knott, 747

w McGlashan, 991
McGilldowney v, Pemberlon, 87
McGillivray i'. Cameron, 637
Mc( Jlinsey, Appeal of, 919
Mctlrath v. McGrath, 145 1
McGregor, fx fartt',\\i^1

0 1

*■■£
♦ 5

MM
I

h

XXVI

TABLE OF CASES.

McGregor v. Bainbrigge, 678

— z>. Gaulin, 802, 804

— i\ Shaw, 22

— V. Topham, 681, 694, 697, 1564
McHarcly z/. Hitchcock, 493, 1820, 185 1
Mcllroy v. Hawke, 1593

Mcintosh V. Elliott, 1723

— V. G. W. R. VV. Co., 113, 451, 553.

585. 588, 591. 593 1843.
1855. 1856
Mclntyre v, Cameron, 332

— V. Canada Co., 607

— V. Connell, 223

— V. G. W. R. W. Co., 1 3 14

— V. Shaw, 1 109
McKay v. Davidson, 1493

— V. McKay, 605, 1447

— V. Reed, 637, 1362
McKechnie i'. McKechnie, 11 15
McKenire r. Fraser, 554, 556
McKenna v. Everett, 146

— V. Smith, 1645
McKerchie v. Montgomery, 583
McKenzie v. McDonnell, 1587

— V. Taylor, 1530
V. Wiggins, 1 126

— r. Yielding, 1494

McKinnon <•. Everilt, 586, 588, 589, 590

V, McDonald, 475
McLaughlin v. Pyper, 1309

— V. Whiteside, 518,519, 1492
McLean v. Beatty, 514, 666

— V. Coons, 1698

— V. Cross, 1470
McLelan 1'. Jacobs, 1571
McLellan v. Maitland, 1019
McLennan v. Ileward, 838, 928, 932, 982
McLeod r. Annesley, 184, 1082

— V. Lyttletoii, 320

— V. Millar, 1510

— V. Orton, 993

— V. Phelps, 1775
McMahon v. Burchell, 270, 540 541

— r. Sisson, 503
McManus r. Little, 11 71, 1349
McMartin v. Dartnell, 161 2

M c Master V. Anderson, 1 193

— V. Callaway, 1697

— V. Kempshall, 1368

— V. Morrison, 1329
V. Noble, 1040

McMichael r. Thomas, 368
McMillan z/. McDonjild, 1313
McMorris, AV, 1369

~ V. Elliot, 455

McMullen v. Scott, 979
McMurrich v. liogan, 367
McNair v. Simpson, 1367
McNamam v. Arthur, 620, 621
McNaughton t>. Hasker, 489, 14OS
McNeil V. Garnilt, 1701, 1712

McNeill i\ Cahill, 620
Mcl'hadden »•. Bacon, 929

— V. Byers, 121 5
McPherson v. 13ougan, 1 107

V. Israel, 971

— i\ McCabe, 87

McQueen V. Farquhar, 1220, 1222, 1497,

1499

— V, McQueen, 866
McRoberts i>. Durie, 1 152

McVeagh AV, McVeagh v. CroaIl,727, 1847

McWhorter v. Benson, 956, 959, 962

Meacham v. Sterns, 956, 957, 958, 960

Meacher v. Young, 1395

Mead v. Lord Orrery, 1772, 1773

Meade v. Norbuiy, 1563

Meaden v, Sen.ley, 1 769

Meales v. ?.ieales, 72

Mears v. Best, 132

Meaux v. Feme, 1046

Meddowcroft v. Campbell, 48, 88, 244

Medlicot v. Joyner, 1344, 1345

Medow, He, 1628

Meek v. Ward, 577

Meeker v. Tanton, 1036, 1073

Meiklam z\ Elmore, 52, 505, 512

Meggot 1'. Meggot, 716, 717

Meiiorucchi v. Royal Ex. Ass. Co. 1S15

Meliorucchy r, Meliorucchy, 24. 46

Mellantl i-. Gray, 831, 832

Mailer r. Woods, 1046

MellingT'. Bird, 1630

— V. Melling, 61
Mellish V. Brooks, 1061

— i\ Mellish, 813
Mellor v. Lees, 988, 994
Mender v. McCready, 1485
Mendes v. Guedalla, 87

— V. Mendes, 1390
Mendham v. Robinson, 124
Mendizabal r. Ilullett, 328, 329
Menzies 7'. Connor, 491

— .'. Ridley, 922, 928, 1512
Mercers Co. v. Great Northern, R. W. Co.

1617
Merchant's Bank v. Grant, 638
Meredyth p. Hughes, 1548
Merest v. Ilervey, 686

— 7'. Hodgson, 147
Meriel ?'. W^ymondsold, 228
Merkley z>. Casselman, 647, 760
Merlin f. Blagrave, 1500, 1531
Merrick v. Sherv.ood, 1206
Merrill v. Ellis, 464

— i\ Moore, 981
Merriman, AV, 82

Merritt v. Stephenson, 1026, 1040
Mertens v. Haigh, 1850, 1859
Merlins v. Jolliffe, 1228 •

Messnier v. Forrester, 731
MetcalPs Will, /?f, 41

TABLE OF CASES.

2, 1497.

727. 1847
962
8, 960

8, 244

i2

:o. 1S15
46

, \V. Co.

.J. ..■

Metcalf V. Archbishop of York, 1045

— z/. Beckwilh, 716

— V. Brown, 423 - ■ •

— V, Hervey, 418

— V. Pulvertoft, 235, 1080, 1081, 1754,

1769
Metford v, Peters, 766
Melz, Appeal of, 919
Meule V. Goddard, 695
Meux V. Maltby, 228
Meyers v. Harrison, 1039, 1040 ''

— V, Smith, 1654
Meyrick, AV, 1883

— V. Laws, 1882 '••' ■ •
Meymott c. Meymott, 613
Meyrick, /^e, 1287

V. Whishaw, 1239 '

Michel f. Bullen, 1548
Michelmore v. Mudge, 97
Michie v. Charles, 194
Micklethwaite v. Atkinson, 139, 531

— V. Micklethwaite, 1660, 1699

— V. Moore, 414, 1841

— - V. Winstanley, 210, 280
Middlebrook v. Bromley, 396, 421
Middlecome v. Marlow, 73
Middleton v. Earned, 684

— V. Dodswell, 1693, 1756, 1769

— V. Greenwood, 677

— V. Magney, 676

— V. Melton, 1334

— V. Middleton, 699, 1474

— V. Poole, 1818

— V. Reay, 1383

— V. Sherburne, 675, 1756, 1760,

1769

— V. Spicer, 952

— V. Younger, 1832

Midleton, Lord v. Eliot, 807, 823, 1483
Midland R. W. Co., /ie, 1827
Milbank v. Revett, 1761, 1762, 1763
Mildred v. Robinson, 902
Miles V. Durnford, 192, 251

— V. Hawking, 163
- V. Knight, 1825

— V. Langley, 12 10

— V. Presland, 1716

— V. Williams, 4 ■ '
Millard v. Magor, 271

Miller, J?e, 1716

— V. Attorney General, 106

— V. Beverleys, 971

— V. Gordon, 144

— V. Gow, 532

— V. Huddlestone, 181 '

— V. Jackson, 545

— V. McNaughton, 742, 1505

— V. Miller, scx)

— V. Ostrander, 218, 1490

— V, Powell, 492

— V. Pridden, 1507, 17 16

9 A

Ixxvii

- •,'.' '*'

Miller v. Priddon, 177, 544, 620

— V. Taylor, 686 ; ,.,

— V. Warmington, 168, 710

— V. Wiley, 1234

— V. Wyllie, 1205 .' ^ ..u, .'
Miller, D. G., i?-?, 1571 ,, ,.',,!!, i-
Millers Estate, 963

Millican V. Vanderplank, 1153, 1163
Milligan v. Mitchell, 199, 202, 244, 321,

330. 331. 417. 444, 1680
Millington «. Fox, 1464, 1470, 1484, 1485,

1673, 1707
Mills, Infants, AV, 1362

— V. Banks, 1568, 1569 - .'

— V. Barlow, 92 ' ..

— V. Choate, 11 17, 1127

— V. Cobby, 1713

— V, Dixon, 858 . . • t

— V. Dudgeon, 510 .• „ ,,. •„ ,,-

— V. Fry, 514,515 '•

— V. Hanson, 1821

Milltown, Lord z/, Stuart, 520, 1615, 1628
Miiuer «. Colmer, 73, 77

— V. Lord Hare wood, 133
Milnes v. Busk, 80 ^ .

— V. Davison, 1487 , .^ ,.. ■,

Milward y. Oldfield, 321 ' .; .,. ,

Minet v. Hyde, 75, 77

Minn V. Stant, 246, 1070, 1078 , ., u

Minshaw v. Jordon, 1706

Mirehouse v. Herbert, 1488

Mitchel V. Duke of Manchester, 1777, 1783

— - w. Lowndes, 501
Mitchell V. Bailey, 243

— V. Crooks, 637

— V. Dore, 1655 ». ,,.

— V. Draper, 655 .. • '

— V. Greenwood, 1316

— V. Hayes, 1114 ,

— V. Johnson, 1254 , ■,

— V. Koecker, 398 j , ^,- .

— V. Livingstone, 1120 •

— V. Richey, 838, 1403, 1817
Mitcheltree v. Irwin, 1359 .,., •.•
Mitford V. Mitford, 97, loo, 102 , ,
Mocatta V. Lousada, 1537 ,, . . ., '

— V. Murgatroyd, 1482

Moet V. Couston, 1485, 1621, 1673, 1705
Moffat w. Farquharson, 175

— V. Hyde, 637

Moffatt V. B. U. Canada, 1020, 1193, 1254

— V. Riddle, 723

— V. Thompson, 217, 1054 ,,

— V. White, 1127

Mogg V. Mogg, 1236, 1237, 1440, 1655,

1656
Moggridge u. Thackwell, 8, ii, 1542

— V. Thomas, 161 2, 1695
Mohun V. Mohun, 1541
Moises V. Thornton, 1287
Mold V. Wheatcroft, 677

r

A

SI
05

Izzviii

TABLE OF CASES.

I! I

1637

Bath, 170 ! —

Mole V, Mansfield, 706

— V. Smith, 150, 151, 280, 608
Molesworth, /fe, 1394

— V. Howard, 450

— V. Opie, 1 161

Mollett V. Enequist, 1638, 1648
Mollineaux v. Powell, 186, 1653
Moloney v. Smith, 21
Moncaster, Lord v. Braithwaite, 479
Monck V. Earl of Tankerville, 341
Moncton v. Attorney-General, 1332
Mondey v. Mondey, 131, 1048
Money v. Jordan, 533, 1703, 1709
Moneypenny v. 338, 1623, 1699

— V. Moneypenny, 1565
Monil V. Lawson, 107
Monk V. Huskisson, 1224

— V. Pomfret, 267, io66

— V. WaJdell, 725

Monkhouse v. Corporation of Bedford,

624, 822, 1 132, 1565
Monnins v. Monnins, 403
Monro v. Taylor, 618, 1495
Montague v. Preston, 1347

— Lord V. Dudman, 404,
Monteith v. Taylor, 123, 505
Montesquieu v. Sandys, 270
Montgomerie v. Marquis of

1077
Montgomery, 7?^,, 1782

— V. Attorney-General, 678

— V. Calland, 807, 842, 1480, 1484

— V. G. D. Mutual Insurance Co.,

1203
Montreal Bankz/. Auburn Exchange Bank,

^599
Monypenny v. Dering, 133, 634
Moodaley «. Morton, 113
Moodiei7. Bannister, 118

— V. Leslie, 1505
Moody V. Hebberd, 161 1

— V. McCann, 795

Moons V. Bernales, 543, 674, 1320
Moor V. Blagrave, 1 59, 206
Moore, Re, 1716

— V. Bennett, 1228

— V. Booth, 667

— V. Clark, 653

— V. Frowde, 1516

— V. Frowe, 934, 940

— V. Gould, 346

— V. Hudson, 141, 314, 1739

— V. Hynes, 1200

— V, McNamara, 235

— V. Merritt, 1029

— V. Meynell, 141

— V. Moore, 649, 1729

— V. Perry, 1044

. . V. Riddell, 1 109

— V. Roseburgh, 495

— V. Shinners, 1363

Moore v. Smith, 287, 573

— V. Tuck well, 683 »
Moores v. Choat, 1045
Moorehouse v. Newton, 791
Moorewood v. Hall, 702

— i>. Wood, 1339
Mordaunt v. Hooper, 1759, 1760
More V. More, or Moor v. Moor, 1404
Moreau v. Polley, 1718

Mores «. Mores, 116, 118
Morgan v. Great Eastern R. W. Co. 489,
1468

— V. Harris, 387

— V. Hatchell, 1389, 1406

— V. Jones, 352

— V. Lewis, 765

— V. Mather, 819

— 7/. Morgan, 1401

— V. Quesnel, 1304

— V. Scundamore, 1590

— V. Shaw, 410, 597, 598, 1813
Morice V. Bishop of Durham, 1 158
Morin v. Wilkinson, 1356
Morison v. Morison, 57

Moritt V. Walton, 1587
Moriey v. Clavering, 642

— z/. Elways, 989, 1136 , ,) . ,|
V. Mathews, 856, 871

— V. Moriey, 171, 184, 213, 215, 569

— V. Rennoldson, 1 16
Mornington v. Keen, 38

— V. Mornington, 407, 413, 1856

— Earl of V. Smith, 503, 507
Morocco Co. v. Fry, 1484
Morphett v. Jones, 533
Morphy v. Feehan, 647
Morrell v. Fisher, 1532

— V. Wootten, 1847
Morres v. Miller, 1320
Morret v. Westerne, 232, 233
Morrice V. Bk. of England, 911, 1632

— V. Swaby, 1845, 1847
Morris v. Bull, 1354

— V, Cannan, 147 1

— V. Cleasby, 686

— V. Clarkson, 1370

— V. Colman, 168 1, 1762

— V. Davies, 694

— V. Elme, 1786, 1800

— V, Honeycombe, 466

— V. Islip, 842

— V. Kelly, 264

— V. McNeil, 1223, 1734

— V. Morris, 133, 1660
V. Timmins, 711

— V. Vivian, 688

— V. Wilkinson, 1007

— V. Williams, 597

— V. Wilson, 618
Morrish v. Murray, 684
Morrison, /fe, 1390, 1832

TAULE OF CASES.

Ixxix

, 1404
Co. 489,

1813

158

, 215, 569

1856

1632

Morrison v. Bairow, 616. 66y, 675, 698

— *'. McLean, 1644

— V. Moat, 1677

— f. Morrison, 129, 383, 942, 944,

'527
1721, 1800

— V. Nevins, 1483
Morse v. Buckworth, 400

— V. Sadler, 184
Morshead v. Frederick, 1353
Mortimer v. t'oltrell, 1655

— V. Fraser, 385

— V. Hartley, 260. 383, 434

— V. McCallan, 682

— V. Mortimer, 163, 164, 1418

— 0. Orchard, 305, 532, 545, 546,

1501

— V. West, 55

Mortimore v. Mortimore, 1870, 1873

— V. Soaresi 515

Mortlock V. Buller, 618, 620, 621, 1220

— V. Leathes, 18 10
Moseley v. Moseley, 1635

— V. Virgin, 1499, 1688
Mosley w. Ward, 833, 1519, 1520
Moss V. Bainbrigge, 268

— V. Baldock, 1569

— V. Dunlop, 76

— V. Gallimoro, 1250

— V. Syers, 1622
Mossop V. T. & L. Co. 1482

— V. Mason, 1682
Mostyn v. Emmanuel, 1585
Motley V. Downman, 1673
Mould V. Griffiths, 686
Moulton V. Edwards, 1219
Mountains. Porter, 11 20
Mountford, ex parte, 1392, 1394

— V. Scott, icx)5

— V. Taylor, 454
Mountfort, ex parte, looo
Mountstuart v. Mountstuart, 1393
Mourilyan, Re, 643, 1607
Mousley v. Basnett, 5 1 5

— V. Carr, 831
Moxhayz/. Inderwick, 1681
Moye V. Bateman, 1879
Mozley v. Alston, 200, 201
Muckleston v. Brown, 387
Muir 0. Kerr, 130
Mulholland v. Brent, 500

— V. Conklin, 1330

— V. Downes, 17 15

— V. Hamilton, 1571

— V. Hendrick, 541
Mullett V, Christmas, 21
MuUick V. Mullick, 921
Mullock V. Jenkins, 197
Mumpers Appeal, 961, 962
Munch V. Cockerell, 224, 833
Munday v. Knight, 268, 294, 302

Mundy v. Earl Howe, 1395

— V. Mundy, 716, 717
Munn V. Glass, 354

Munro I/. Gray, 1301, 1303, 1312

— V. Munro, 1385, 1877

— V. Wivenhoe and brightlingsea R.

W. Co., 161 7, 1691, 1699
Murney v. Courtney, 723

— V. Knapp, 366

— V. Pringle, 105 1
Murphy z/. Lanphier, 1385, 1388
Murray, Re, 1405

— V. Barlee, 91

— V. Earl of Stair, 121 6

— V. Lord EUibank, 81, 84, 85

— V. Newbon, 92

— V. Pogue, 1670

— V. VanBrocklin, 1382

— V. Vipart, 356

— V. Walter, 1847
Murriet v. Lyon, 141
Murrow v, Wilson, 24, 25
Musgrave v, Medex, 258

— V. Nevinson, 686

— V. Parry, 53
Musgrove v. F"lood, 76
Musselman v. Snider, 177, 781
Musters v. Wright, 184
Mutchmore v. Cavis, 395
Muter V. Chauvel, i6cx)
Mutter V. Hudson, 734, 735
Muttlebury v. Haywood, 1879
Mutual Fire Ins. Co. v. Palmer, 567
Myers v. Brown, 1303

Mynd v. Francis, 420
Mynn v. Hart, 23-

N

Nabob,

The, of Carnatic v. East India
Co., 13
Nagle V. Edwards, 442
Nail V. Punter, 474
Nairn i'. Prowse, 1009, 1014
Nakler 0. Hawkins, 57
Nanfan v. Perkins, 1 119, 1 133
Nanney c. Martin, 96

— f. Vaughan, 1704

— V. Williams, 1400
Nanny V. Edwards, 1 1 18, 1130

Napier, Sir J. v. Lady Effingham Howard,
136

Lady Effingham, 58, 136, 137

Napier, 80, 82, 84

Dillon, 1526

Nash, 94

Swinburn, 688
National Insurance Associations. Carstairs,

568
Natkans v. Morris, 964

Nash

V.
V.
V.
V.
V.

l^cxx

TABLE OF CASES.

Vi

ill

,1 :";:

li

.f|,ictii>'

,(■

Navulsliaw v. Brownrigg, 390
Naylor v. Byland, 140

— V. Middleton, 1704
Neal V. Attorney General, 822

— V. Winter, 1493
Neale, AV, 1384

— V. Bealing, 657, 1785

— V. Cripps, 1655

— V. Neale, 1639 ,'
Neate v. Latimer, 1852, 1858 ,
Neave v. Douglas, 1 780 ' 1 .
Neck V. Gains, 333 ' ' , ■
Need by V. Needby, 881 , ' '
Needer v. Deible, 232

Needham v. Needham, 640, 642

— V. Smith, 139, 1575
Neep V, Abbot, 563
Neesom v. Clarkson, 842
Neili;. B. U. C, 1648

— V. Neil, 518
Neill V. Morley, 69

Nelson V. Barter, 315 ' .

— V. Duncombe, 69 ..,['/

— V. Gray, 760 ' ' '

— V. Ponsford, 450

— V. Robertson, 239, 276, 333, 1072

— V. Seaman, 164

— V. Whittal, 1254

— Earl V. Lord Bridport, 548, 147 1
Nelthorpe v. Holgate, 157

Nerot V. Burnand, 1563, 1565
Nesbit V. Berridge, 384, 1484
Nesbitt V. Tredennich, 1241
Nettar v. Brett, 1264
Nettleship, ex paite, 1004
Nevell V. Nevell, 1239
Nevieux v. Labadie, 1 1 26
Nevil V. Johnson, 552
Neville V. Fitzgerald, 522, 561, 613

— V. Rivers, 1230
New V. Jones, 934
Newall V. Smith, 1 192, 1494
Newberry, Re, 184, 1875

— V. James, 1677 ' , ■
Newbriggen w. Bell, 1528
Newburgh w. Bickerstaffe, 1400 ,!^'
Newbury v. Marten, 130

Newby z/. Harrison, 1694, 1704 ' '
Newcastle, DAeof, Re, 1388

— — V. Inhabitants of Broxtowe,

683
Newcomb v. Bonham, 999
Newdigate v. Newdigate, 1601
Newenham V. Pemberton, 351
Newhouse v. Mitford, 637
Newland z/. Steer, 1847 .,

Newman v. Auling, 798, 813

— V. Godfrey, 158, 250, 269

— V. Norris, 780 ,

— -y. Selfe, 126, 138, 139 '^ ' ' '

— V. White, 465 -\ _

Newsham v. Gray, 484 . ,, .,,,«i,;

Newsome v. Bowyer, 71 «,

— V. Shearman, 1547 * .,
Newton, AV, 572, 579 .,

— V. Aldons, 1044

— V. Askew, 667, 1 716

— V. Bennett, 830, 831, 909, 1524

— V. Charlton, 161 5, 1695

— V. Dimes, 449

— V. Doran, 792, 1 105

— V. Earl of Egmont, 214, 226, 232,

242, 432, 1053, 1078, 1079

— V. Hunt, 1239

— V. Lucas, 1472

— V. Metropolitan R. W. Co., 263

— V. Ricketts, 612, 1622, 1723, 1760

— v. Thompson, 363, 1878

Nias V. Northern and Eastern R. W. Co.,

408, 412
Niblettw. Daniel, 562
Nicholz/. Elliott, 1838 i,,, .,

-- V. Jones, 1844

— w. Vaughan, 672, 674, 677 ,
Nichols V. Bestwick, 687

— V. Elford, 489 ., . ,^ (;

— V. Ibbetson, 1698 .-; .• ,, I,

— v, Kearsley, 1695

— V. Macdonald, 852

— V. McDonald, 1494

— V. Ward, 141, 142, 143
Nicholls V. Hodges, 969 . /,
Nicholson v. Falkner, 15 15, 1526

— V. Gibb, 1600 ^ ,, <

— 1'. Jeyes, 1382 , v ;

— V, Knapp, 1680 ;.,,., ,, j, . ;/

— V. Norton, 1507 ,, ;.

— V. Piele, 334 .,„ ,.

— V. Squire, 1404, 1405, 1605
Nisbett V. Murray, 1532, 1533
Noad V. Backhouse, 1764 j . ,
Noble u. Garland, 387 . ,-, ,„,t

— v. Kennoway, 687 .1, uii.

— V. Meymott, 151 1

— V. Stow, 1818, 1824, 1825

— V. Stowe, 1370, 1584, 1586
Noel V. King, 319

— V. Robinson,. 1568 ,,
- V. Ward, 261, 1035

— V. Wells, 1255
Nokes V. Fish, 1688

— V. Gibbon, 579, 580, 1621, 1688

— V. Seppings, i8io, i8ii
Norbury v. Calbeck, 1522 ^_

— V. Meade, 1562
Norman, Re, 20, 28 ...

— V. Beaumont, 685 ,^ ,, : , ;

— V. Johnson, 1501

— V. London, Chatham & Dover R,

W. Co., 1709
Normanville v. Stanning, 1618, 1698
Normtia v. Stiby, 434

NoJ

TJLfiLE OF OASES.

hcxxi

11 -fi*'^ *v * '

9, 1524

226, 232,
8, 1079

-o., 263
1723, 1760

R. W. Co.,

>77

.• vn:t.

126

60s f, ...f.-

,,,, , t.
I'll' ■'

^86

I, 1688

I Dover R,
1698

Norris v. Freeman, 686

— V. Gotterill, 358

— V. Jackson, 277, 676, 1688 . )

— V. Le Neve, 715 ...»

— V. Norris, 1509 I

— V. Wright, 224
Norrish v. Marshall, 1067, 1068
North V. Earl of Strafford. 419

— V. Great Northern R. W. Co., 489

1468

— Eastern R. W. Co. v. Martin, 390
Northam, ex parte, 34

Northampton Charities, He, 1907

Northcote v. Duke, 1687

Northern Counties R. W. v. North

Eastern R. W., 1814
Northey v. Moore, 605

— V, Northey, 21 1

— 1'. Pearce, 1689

Norton v. Cooper, 255, 257, 1483, 1559

— V. Hepworth, 357

— V. Nichols, 1705

— 0. Steinkopf, 517, 520, 1524

— V. Turvill, 443

— V. White, 511, 1597 I'
Norvall v. Pascoe, 493, 494
Norway v. Norway, 1541

— V. Rowe, 287, 455, 1653, 1750,

1761, 1800
Norwich v. Attorney-General, 106
Nosworthy v. Maynard, 1047
Notley V. Palmer, 1585
Nottidge V. Prince, 537 '

Nottley V. Palmer, 1833
Nouaille v. Greenwood, 1226 1 •
Nourse v. Finch, 1 531
Novosielski v. Wakefield, 625, 1130
No well, Re, 1716, 1719
Nowlan v. Nowlan, 1451 i«, • • ' 'i
Noy V. Ellis, 1036 1

Noys w. Mordaunt, 1036
Nudell V. Elliott, 732 c*

Nunn ». Barlow, 893
Nurse v. Yarmouth, 1248
Nye V. Maule, 39, 677 •'' ^

o

:\

v.)

Oats V. Chapman, 432
O'Brien «. Mahon, 1057 . i. •'

— V. Maitland, 127

— V. O'Brien, 1660
O'Callaghan v. Cooper, 1 5 18, 1524
O'Connell v. Charles, 171, 1055
O'Connor v. Clarke, 828

— V. Cook, 672, 680

— V. Malone, 694, 697 •.■.;(:*. 1

— V. Sierra Nevada Co., 23, 29, 32
Odder v. Ruffin, 1222

Oddie «. Brown, 1535 • ,».<:» 1 .1 -

> f»( it-A J

.11

t

Oddiet/. Woodford, 1564 '\

Offcley V. Morgan, 420

(Jffen V. Harman, 1504 '

O'Ftrrall, Ex parte, 82

Official Manager of Consols Ini^. Co. ••

Wood, 504 ' • ■

Offley V. Offley, 921

— V. Jenney, 185, 207
Ogdem V. Battams, 996
Ogden V. Fossick, 1686
Ogilvie V. Heukn, 32
Oglander v. Baston, 71, 95

— V. Oglander, 1384
Ogle V, Brandling, 615

— V. Cook, 555
O'Grady v. Munro, 21
Ohrly V. Jenkins, 438
O'Keefe v. Casey, 1390 '

— V. Taylor, 1358
Oldn Old, 1706 ; ;■ •■ •, •"
Oldaker V. Hunt, 1664 '\ ' '
Oldale V. Whitcher, 21

Oldfield V. Cobbett, 33, 120, 490, 511

1594, 1721, 1727
Oldham v. Hughes, 77

— V. Oldham, 1459, 1741 •*

— V. Stonehouse, 1576, 1 5 78
Olding V. Poulter, 268 '
Oklwell V. Deakin, 1265 ; *"'"
Oliver v. Burt, 1826 > "'

— V. Hamilton, 1762

— V. Mowat, 1216

— V. Oliver, 1447, 1448
Ollendorff «. Black, 1668
O'Lone v. O'Lone, 713, 791,

880, 1505
O'Mealey v. Wilsoi, 44
Omerod v. Hardman, 616, 1568
Omychund v. Barker, 461
O'Neil V. Donnell, 980

— V. Jones, 1687

— V. McMahon, 239
Onge V. Truelock, 490
Ongley v. Chambers, 1 331
Onions v. Naish, 688
Only V. Walker, 532
Onslow V. , 1653, 1684

— V. Wallis, 951, ij||2
Ontario v. Winnaker, 1113

802, 879,

1334

■i. .-.i ,4>..M

Salt Co.

— Bk. V. Campbell, 508

— Salt Co. V. Merchants'

1682
Onyon v. Washboume, 1778
Oodeen v. Oakeley, 1700
Orange v. Pickford, 534, 554
Orchard's Case, 667 * ^.^

Orger v. Sparke, 710 ' '* •'*>''• "

Oriental Bank v. Nicholson, 390

— Steam Co. v. Briggs, 431, 1577
Orme v. Orme, 1446, 1447

— V. Wright, 1292 '

at
Id

I

m

Ixxxii

TABLE OF CASES.

OrnSond, Lady, v. tlutchinson, 530

Ormsby, /fi; 950, 1781

Orr V. Maurice, 1253

Ortoii V, Bainbrigge, 487 ,

Osbaldestoii v. Askew, 1233

Osborn v. Fallows, 214, 215

— V. JuUion, 419, 420, 425, 426, 482

— V. London Dock Co., 596
Osborne v. Denne, II, 66, 1542

~ V. Foreman, 181, 1 153, 1154,1157

— V, Harvey, 1763, I76i8

— V. Morgan, 72, 79

— V. Osborne, 1504

— V. Tenant, 1 710, 171 1

— V. Usher 1557

— V. Fallows, 1069, 1076
Osbrey ». Bury, 1236

O. S. & H. R. W. Co. V. Cotton, 1835

Ossulston, Lord, v. Lord Yarmouth, 819

Ostell V. Le Page, 494

Ostle V. Christian, 1630

Otter V. Lord Vaugh, 1292

Ottley v. Gilby, 1527, 1532

Ottway V. Wing, 91

Ouseley v. Anstruther, 1354 .

Outhwaite v. Outhwaite, 717

Overington v. Ward, 1756

Overseers of Ecclesall, ^e, 1886

Owen V. Campbell, 1362 . ,

— V. Foulks, 1 161

— V. Griffith, 1488, 1558, 1559

— V. Homan, 175 1

— V. Nodin, 284

— V. Thomas, 534

— V. Wharburton, 688
Owens z. Dickenson, 149, 194, 890
Oxenham z/. Ellis, 1 1 34

— V. Esdaile, 435
Oxford Charities, AV, 1906

— Earl of, V. Churchill, 1530

Pace V. Marsden, 131
Pack V. Bathurst, 911
Packer v. Packer, 76

— V. Wind^iam, 93, 99 loo
Packham v, lawman, 689
Packington's Case, 1660 ,;

— V. Packington, 1704
Packwood v. Maddison, 492

Padley v. Lincoln Water Works Co. , 248,

45°
Padwick v. Hurst, 294, 390

— V. Piatt, 165, 251
Page w. Cooper, 1 031, 1034 ,

— V. Mann, 1254

— z/. Newman, 804 ;i,;.,

— V. Page, 34

— V. Townsend, 251 j.,;W

Paget V, Foley, 825

Pag's Case, 1347

I'aicc V. Archbishop of Canterbury, 921

I'ain V. Smith, 1044, 104.6

Paincock 0. Young, 478

Paine ('. Chapman, 217, 239, loio

— V. Edwards, 488

- V. Meller, I190, 1224 '
Pakington v Hciibow, 1501
Pale «. Mitchell, 99

Palk V. Clinton, 172, 173, 246, 304, 308
1024, 1028, 1031, 1034,
1052

Palmer v. Lord Aylesbury, 586, 593

— r. Carlisle, Lord (or Larl) 170, 215,

103 1, 1078

— w. Mitchell, 948

— 7J. Simmonds, 1870

— V. Vaughan, 1764

— V. Wright, 1758, 1847
Pannell v. Hurley, 1583

- V. Tayler, 141, 1738, 1743
Panton v. Labertouche, 29
Paradice v. Shepherd, 33

Paragon and Spero Mining Co., Ae, 642
Pare i\ Clegg, 200, 332, 1768
Parke v. Christie, 460
Parke's Charity, /ie, 1886
Parker r/. Alcock, 1027

Ansell, 693 ' • •'

Brown, 471

Dawson, 1722

Downing, 635

Dunn, 1776, 1788

Fairlie, 454

Ford, 324

Francis, 161 1

Fuller, 173

Great Northern R. W. Co., 1695
V. G. W. R. W. Co., 686
V. Housefield, 1044, 1045

Hutchinson, 799, 800

Morrell, 677, 1562, 1563, 1570

Nickson, 339

Nixon, 300, 339 '•

Parker, 1581

Ringham, 1633, 1651, 1652

Thornton, 685

— V. Watkins, 1478
Parkes, ex parte, ion

— V. White, 1502

Parkhurst v. Lowten, 398, 401, 595, 596,

597. 598
Parkins v. Hawkshaw, 41 1

Parkinson v. Chambers, 33, 1841, 1853

— V. Hanbury, 37, 38, 6i2

— V. Lucas, 1593
Parmenter v. Webber, 1246
Parmiter v. Parmiter, 1557
Pamell v. Kingston, 152 1 .■

— V, Price, 877 , ,. ^^ i , .' : >,

Pan
I'ari

V.
V.
V.
V.
V.
V.
0,
V.
V,
V.

V.

v,

V.
V.
V.
V.
V.

TABLE OF CASES.

Ixxziii

bury, 921

loio

6, 304. 308
03'. 1034.

6, 593

rl) 170, 21S,

Hi

r

., iVc, 642

• f^'o., 1695
i6

;63, 1570

1652

595. 596,
I, 1853

Parr 7'. Attorney-General, 278 <<

— ?'. Loveerove, 618 vi
I'nrrotr. PauTet, 271

— V. Sweetland, loil '

— V. Treby, 1487 '
Parry A'e, 1629

— V. Ashley, 1815 • - - 1

— V. Owen, 389 ' '
Parsons v. Dunne, 75, 77,

— I'. Groome, 17 18

— V, Haicly, 478

— V, Neville, 175

— V. Robertson, 1845

— V. Spooner, 228

— V. Westbrook, 1035
Partington v. Bailey, 158

— V. Baillie, 505

— V. fiuoth, 1 7 10, 1 71 3

— V. Reynolds, 20, 26, 735, 1625
Partridge v. Haycraft, 269, 290, 304

— V. Mcintosh, 175
Piismore, AV, 1625
Passmore, •&', 26 ■ :

— V. NichoUs, 354
F'atch r. Ward, 1129, 1855

Patching v. Dubbins or Gubbins, 1681,

1707
Patent Type Co. 7>. Walters, 1667
Paterson v. Bowes, 106, 200

— V. Holland, 244

— V. Long, 189.

— V. Todd, 1317
Paton, /fe, 723

— V. Rogers, 618, 1220
Patrick v. Andrews, 139

— V. Blackwell, 452, 453

— V. Harrison, 1677, 1693
Patterson, AV, 755
Patterson's Estate, 919 ■ '

— V. Holland, 754, 1051

— V. Scott, 142, 84s

— V. Slaughter, 473
Pattison 0. McNab, 606

Paulet V. Attorney-General, 1057

Pavie V. Acourt, 141

Pawlet V. Bishop of Lincoln, 168, 245

— V. Delaval, 80

Pawlett V. Attorney-General, 986
Pawson V. Smith, 436
Paxton V. Douglas, 313, 400, 1632, 1634
Payne v. Collier, 181 2

— V. Compton, 1061

— 7>. Crompton, 225

— V. Goodyear, 13 14

— V. Little, 29, 55, 88, 90

— V. Long, 1825

Paynter v. Carew, 487, 488, 1 790

— V. Houston, 85

Pays «. Hay ward, 1232 *, "^ ',
Pcacham v. Daw, 1812
Peachie w. Twyercrosse, 420

• 1 ,'% II I

1. 1' 1

Peacock v. Duke of Bedford, 473,^78,

479

— V. Evans, 1475

— V. Monk, 193, 780

— V. Peacock, 1762, 1763

— V. Penson, 189

— V. Sievier, 497
Peake, txfarte, 1009 ■ ' •

— V. Gibbon, 1057 • '>

— V. Highfield, 673

— V. Ledger, 182, 183, 1079
Pearce r. Crutchfield, 1404, 1405, 1688,

1712

— V. Gray, 626, 1607 • -

V. Grove, 474 ' > . f

— V. Hooper, 1253 "'

— V, Lindsay, 635

— V. Newlyn, 1490

— V, Pearce, 65, 1374 '

— V. Piper, 19 ' '

— V. Wrighton, 505, 511 ' ' ■ .
Peareth z/. Pearelh, 396 ' ■
Pearne 7'. Pisle, 1 732, 1737 r. -
Pearse v. Cole, 88, 1613 ' • •

— V. Green, 876, 877

— V. Hewitt, 1024

— i>. Pearse, 411, 412, 1856 » » '
Pearson v. Belchier, 35, 37 . • 1

— w. Campbell, 310, 355

— t». Pearson, 1532

— I'. Ward, 585, 1590, 591
- V. Wilcox, 571

— V. Wolf, 37
Peart, ex parte, 1626

— V. Bushel I, 1 188

Pease v. Cheesebrough, 193, 205, 209 ■ '
Peatfield t'. Benn, 1380 '

Peck V. Munro, 1297, 13 14 '

Pecke J'. Bucke, 1587
Peckham v. Peckham, 1390
Pedder, ex parte. Re Hawden, 1146

— V. Pedder, 559, 1586, 1589
Pedler v. Paige, 1254

Peers w. Baldwyn, 817

— V. Ceeley, 1477

— v. Needham, 705, 706, 708
- V. Sneyd, 1352

Pegg V. Wisden, 994
Pegge z/, Burnell, 593 '..«:

Peile w. Stoddart, 336, 1855
Pelham v, Gregory, 220

— Lord V. Duchess of Newcastle, 652,

654. 657, 658, 659, 661

— — V. Lord Harley, 663
Pally V. Wathen, 312, 1028, 1478
Pember «. Mathers, 532, 1242 '
Pemberton v. McGill, 149, 352, 435

— V. Pemberton, 557, 681, 682

— V. Topham, 193, 487, 488
Pendleton v. Booth, 11 94

— V. Rooth, 220

\ Vi^m;-

btxaeiv

TABLE OF CASESi

1 ' 7/.'

1 :!fl:

i

Pen^d, tx parte. Re, Barkei-, 824

— V. Kelly, 118

— V. Nunn, 166 ,

— V. Rainsbottom, 428 v
Penkethman v. White, 1849
Penn v. Lockwood, 758, 1103

— V. Lord Baltimore, 106, 219. 165 1
Pennell v. Deffell, 48

— V. Roy, 1632, 1652
Pennell's Appeal, 963 !
Peniier v. Canniff, 1091
Pennington v, Alvin, 89, 90

— V. Buckley, 183, 1536

— V. Lord Muncaster, 861
Penny v. Beavan, 193, 488

— V. Francis, 494 ■ ,

— V. Goode, 1847, 1849 '

— V. Hoper, 265

— V. Penny, 224 : > *

— V- Watts, 161
Penrhyn, Lord, v. Hughes, 811
Penrice v. Parker, 398
Penruddock v. Hammond, 412
Pentney v. Lynn Paving Commis., 1676
Perceval, Lord and Lady v. Phipps, 1672
Percival v. Caney, 139, 475, 531

Percy v. Percy 90 .....

Perishal v. Squire, 39
Perkin v. Proctor, 47
Perkins v. Ede, 1352

— V. National Abf,urance and Invest-

ment Association, 665

— V. Plebs, 367
Perks V. Stothert, 1559
Perkyns v. Haynton, 80!, 831, 832
Perrey v. Turpin, 445

Perrin v. Perrin, 742
Perrot i^. Perrot, 1653
Perry?'. Barker, 1135

— V. Jenkins, 1593

— y. Keane, 1044, 1046

— V. Knott, 178, 224, 227

— V. Meddowcroft, 996

— V. Phelps, 1568, 1632, 1633

— V. Phillips, ^30

— V. Ship way, 1680

— V. Truebitt, 1673, 1676

— «. Walker, 35, 36, 37, 38, 39, 161 1,

1649

— V, Weller, 1695 .• ■.,.
Pesheller v. Hammett, 43 1
Petat V. Ellis, 823

Petch V. Dalton, 189, 219
Peterborough z/. Conger, 351

— V. Norfolk, 550
Peters v. Grote, 1399 • .

— V. Rule, 669, 675
Peterson v. Elwes, 1369

Petley v. Eastern Counties R.W. Co. 1695
Peto V. Attorney General, 372

— V. Brighton L^ &T. W. R. Co., 1676

Peto V. Hammond, 233 ' ', . ' '

Petre V. Buncombe, 189, 234 '

— V. Petre, 1587

— V. Lord, ex parte, 1398
Petty V. Lonsdale, 500 ' ■ '

— V. Petty, 1826 ■ w ■;
Peyton v. Bond, 60 .• ' /

— V. Green, 792 '

— V. McDemott, 1337

— V. Smith, 973 V,
Phelan r. Phelan, 606
Pbe'ips V, Olive, 453

— V. Prothers, 309, 474, 515, 15"^,

1636, 1639

— V. Sproule, 208

Pherrillu. Pherrill, 666 '

Philanthropic Society t. Ilobson, 1526
Philips V. Derbie, 1595
Phillips t;. Atkinson, 1763 ■

— V. Carew, 315, 587 ■ >

— V. Davies, 1 502 *

— V. Evans, 1858 ;

— V. Hatfield, 687, 694 ''■

— %i. Hunter, 49

— V. Phillips, 390

— V. Prentice, 572 ■ -■

— V. Prichard, 1693

— V. Symes, 300 ' • ' ■

— V. Thomson, 980

• — V. Zimmerman, 718

— Doe V. Benjamin, 684
Phillipson v. Gatty, 177, 179
Philipotts Charity, Re, 1886
Phippen v. Brown, 1585

Phipps V. Bishop of Bath and Wells, 1750

— V. Moore, 1204
Picance, Re, ^7^ ' '
Pickance, Re, 1627 , ■ '
Pickard «/. Matheson, 637 J •

— V. Roberts, 78, 79 ' *'
Pickering v. Bishop of Ely, 1685

— V. Dawson, 692

— V. Hanson, 337 ' T'

— V. Rigby, 1840 '
Pickett V. Loggan, 490 » .1 ; / ' < >
Pickford v. Brown, 222, '532, 1585 '

— v. Hur er, 49 1
Pidcocke z/. Boultbee, 139
Pidding v. How, 1676, 1691
Piddoche «. Smith, 138
Piddi'ck V. Boultbee, 62, 1613
Pierce 0. Franks, 1493
Pier-son v. Barclay, 223 11

— V. Robinson, 225
Pieters t/. Thompson, i«59, 513
Piety V. Stace, 832, 1520
Piffard v. Beeby, 1840

— V. Vanrenen, 492 " '
Pigott, Re, 1 716 ' •

— V. Pigott, 182 ' ..

— V. Young, 736, 1496

Pike I
Pilkij

Pillinl
Pillsv
Pim {|

Pimr

Pincel

Pinchl

:11s, 1750

TABLE OF CASES,

h

XXXV

Pike V. Hoare, 671

Pilkington v. Hinsworth, 466, 469, 576

— V. Wignall, 1601
Pilling V. Armitage, 533
Pillsworth V. Hopton, 1655
Pim V. Curell, 1339

— V. Wilson, 1649, 1683
Pimm V, Insall, 1 162
Pince V. Beattie, 1516

Pinchin v. London & Blackwell R. W.

Co., 1691, 1693
Pindar v. Pindar, 1587
Pine, He., 1847

— V. Ellis, 1847
Pinfold V. Bouch, 1520

— V. Pinfold, 505
Pinker w. Litcott, 1236, 1237
Pinkett v. Wright, 1563
I'inkus V. Peters, 223, 1581
Pinner v. Knights, 255, 256
Pinney V. Pinney, 1264, 1322
Pipe u. Shafer, I in, 1122
Pisani v. Lawson, 41
Pitcher V. Helliar, 1752, 1769
Pitt V. Brewster, 209

— V. Hunt, 99, loo

— V. Mackreth, 1550, 1552

— V, Page, 1562

— V. Pitt, 34, 141, 921

— V. Snowden, 1783
Pitton V. Walter, 1332
Pitts V. Short, 423
Platel V. Craddock, 88
Piatt V. Routh, 911, 1629
Platts V. Button, 1669
Player V. Anderson, 21, 293

— V. Foxhall, 894
Playfair V. Cooper, 810, 812
Playford v. Hoare, 1497
Pledge V. Bass, 1493
Plestow V. Johnson, 29, 1773
Pleydell v. Earl of Dorchester, 687
Plomer v. McDonough, 667
Plowden v. Campbell, 22

Plowes V. Bossey, 399, 536
Plumbe V. Plumbe, 266, 1067
Plumer i*. Macdonald, 667

— V. Marchant, 893, 900
Piummer v. May, 240, 249
Plunket V. Penson, 237, 243, 907
Plunkett V. Joice, 57, 321

— V. Lewis, 491

Plymouth, Countess of, v. Bladon, 515

— Earl of, V. Lewis, 1404
Pccock u. Reddington, 832, 1524
Podmore v. Gunning, 1755

— V. Skipworth, 476
Pole V. Joel, 1624

Pollack V. Birmingham, &c., R, W. Co.,

'833
Pollard V. Doyle, 504, 15 16
10 A

Pollock V. Lester, 284

— V. Perry, 796, 1 112
Ponsford v. Hartley, 194, 294

— V. Swaine, 248
Ponsardin v. Peto, 1673

— V. Stear, 495, 502

Ponten v. Page, 1050 \ .

Ponton, AV, 867

Poole V. Franks, I5r».s, 1548

— V. Marsh, 168

— V. Pass, 151 1, 1541

— V. Poole, 507, 881

Pooley V, Ray, 775 '

— V. Quilter, 1578
Poore V. Clark, 168, 169
Pope V. Curl, 1672

— v. Duncannon, 1638
Popham y. Exham, 1147, 1292
Popple t". Henson, 1472, 1502
Portarlington, Earl of, v. Damer, 491, 492,

1632

— Lord, V. Graham, 1702

— — V. Soulby, 1651, 1652, 1677
Porter V. Cox, 51, 512

— V. Porter, 1765

Portland, Countess of, v. Prodgers, 71, 140
Portlock V. Gardner, 831
Portmore, Lord, r. Morris, 991

— — V. Taylor, 1239
Postgate u. Barnes, 72, 88, 115

— V. Chapman, 1700
Potter V. Potter, 530, 543, 1840

— v. Stone, 973

— V. Waller, 312, 449

Pott V. Gallini, 491 n

Potts V. Britton, 119

— V. Butter, 1700 •• •

— V. Curtis, 1239

— V. Leighton, 1781, 1790, 1791

— ^\ W-rwick, 1765

— V. V'.uwick, &c.. Canal Co., 1778

— V. W liitmore, 335, 336
Poultney v. Holmes, 1246
Pounceford v. Lord Lincoln, 299
Powell's Trust, /^e, 816

Powell V. Cockerell, 251, 285, 418, 1620,
1621

— t'. Heather, 1584

— V. Lovegrove, 1578

— V. Martyr, 1497

— V. Merrett, 76

— V. Powell, 511, 981, 1597

— V. Prentice, 141, 146

— V. The Earl of Powis, 285

— V. Trotter, 148 1, I484

— V. Wright, 115, 116, 230, 235,

1079, 1679
Power ». Reeves, 1562
Powers z/. Merriman, 11 20
Powlett, Earl v. Herbert, 1 52 1
Powley V. Walker, 1684

Di

m

1-1

Ixxxvi

TABLE OF CASES.

h ' a

Powys v.Blagrave, 1660, 1766

— V. Mansfield, 270, 537
Pratt V, Archer, 337

— V. Barker, 322

— V. Brett, 1653, 1685
-r- V. Keith, 241, 423

— V. Walker, 1620, 1621
Prebble v. Boghurst, 1551
Preece v. Corrie, 1246 "

— li. Scale, 1503
Prendergast t'. Lushington, 119
Prentice v. Phillips, 1859

— V. Prentice, 152

Prentiss z/. Brennan, 354, 655, 660, 1730,

1784

Pre^cott V. Tyler, 1046

President of St. Mary Magdalen v. Sib-
thorp, 323, 1577

Preston V, Barker, 1151, 1154, 1161

— V. Collett, 495

— V. Dickenson, 359, 360

— V. Grand Collier Dock Co., 201

— V. Guyon, 201
Prevost V. Benett, 545, 1503

— V. Gratz, 960
Prichard v. Murray, 448
Price, ex parte, 1049

— V. Berrington, 69, 271, 510, 674

— V. Blakemore, 1017

— • V. Carver, 130, 131, 1045

— V. Dewhurst, 1565, 1651

— V. Evans, 1633

- V. G. W. R. W. Co., 806

— V. James, 387

— V. Loaden, 1520

— V. Lytton, 530 >

— V. McBeth, 1516

— V. Moxon, 1 158

— V. Price, 746, 11 56

— V. Salisbury, 1564

— V. Severn, 687

— V. Strange, 12 19

— V. Webb, 336, 362, 365

— V. Williams, 1750

Price's Candle Co. v. Bauwen's Candle

Co., 1668
Pride v. Fooks, 1524
Prideaux ?'. Prideaux, 1157
Priestly v. Wilkinson, 1475
Prime v. Titmarsh, 685
Primrose, Re, 15 14
Princes. Hine, 457, 1394, 1515

— V. Howard, 630

— I'. Rowson, 898

— Albert v. Strange, 120, 1672

— of Wales?'. Lambe, 1854, 1855

— — Association f. Palmer, 164
Princess of Wales v. Earl of Liverpool,

414, 490, 1837, 1840, 1848. 1855
Pringle i\ Hodgson, 82

— V. Pringle, 94

Pritchard v. Draper, 879

— V. Fleetwood, 1759

— V. Gee, 589

Pritcher 7/. Helliar, 1752,1769
Proctor V. Grant, 566

— V. Reynol, 662

Prosser 7A Watts, 1227, 1229, 1247, 1347
Protheroe v. Forman, 1638, 1648
Proudfoot V. Hume, 1820

— V. Thomson, 499
Prout !'. Underwood, 454
Prowett V. Mortimer, 1673
Pryce v. Bury, 1005 '
Pryor v. Hill, 83

Pudge V. Pitt, 511
Pugh, Re, 91

— ex parte, 82

— V. Vaughan, 1653
PuUen V. Ready, 1639

— V. Smith, 448
Pulley V. Hilton, 1333
Pulteney v. Shelton, 357, 1712

^ V. Warren, 1400, 1661, 1689
Puuderson v. Dixon, 630
Purcell V. McNamara, 1553
Purdew v. Jackson, 96
Purdy V. Ferris, 499
Purefoy v. Purefoy, 272
Purkis V. Morrison, 1718
Purser v. Darby, 1465, 1499
Purvis V. Rayer, 1242
Pusey V. Desbouverie, 1639

— V. Wemson, 961, 963
Pycroft V. Williams, 642
Pyke V. Holcome, 91

— V. Northwood, 1 81 2
Pyle V. Price, 241

Pym V. Bowerman, 1021

— V. Pypi, 1403
Pyncent v. Pyncent, 187
Pyper u. Cameron, 171
Pyrke v. Waddingham, 12 19

Q

Quantock v. Lord Bullen, 133

Quarman 0, Williams, 1 71 7

Quarrell «. Beckford, 806, 807, 842, 1082,

1464, 1548, 1753, 1754, 1821
Quarrier V. Colston, 1677
Queen's College, ex parte, 1629
Quin 0. Ratcliffe, 1854
Quinlan v. Gordon, 1106

R

Rabbeth v. Squire, 459, 478
Radcliff?'. Duke of Portland, 1664
Radcliffe »'. Fursman, 407, 418

— V. Warrington, 1190
Radclyffe I'. I>ufTy, 1121

TABLE OF CASES.

Ixxxvii

'9

>. 1247. 1347
648

Si, 1689

. 842, 1082,
1754. 1 82 1

?

664

Radenhurst v. Coate, 1666

— V. Reynolds, 637
Radway v. Coleman, 1675, 1698
Rae z*. Shaw, 1099, 1120
Rafferty v. King. 444, 1056
Raiford v. Raiford, 974
Raikes v. Hall, 1035
Raincock v. Simpson, 1 783

— V. Young, 474
Rainey v. Dickson, 355
Rainsdon's Trusts, ^e, 70, 88
Rainstrick v. Elsworth, 480

Ralli V. Universal Marine Assr. Co., 1565,

1578
Ralph V. Topping, 31
Ram, ex parte, 183
Ramkissenseat v. Barker, 461
Ramsay v. Thomson, 1022
Pamsbottom v. Freeman, 1695, 1769

— V. Wallis, 1052
Ramsden v. Hylton, 1639

— V. Langley, 1477
Ramsey v. Ramsey, 979
'iamshaw v. Greenhill, 662

Rancliffe, Lordr. Lady Parkins, 554, 1265
Rand v. Macmahon, 556, 557
Randall v. Burrowes, 1521

— V. Morgan, 297

- V. Mumford, 51, 52, 1706
Randfield i». Randfield, 1776, 1778
Randle v. Adams, 708
Rands v. Pushman, 862
Ranger v. G. W. R. W. Co., 113, 417,

1601, 1602, 1841
Ranken v. E. & W. India Docks R VV.

Co., 1690
Rankin v. Harwood, 1633

— V. Huskisson, 1681, 1690
Rann v. Lawless, 87
Rantzen z'. Rothschild, 1713
Rapalje v. Norsworthys Exrs., 957
Raphael v. Bank of England, 685

— V. Boehm, 801, 834, 843, 844, 947,

1524
Rashley V. Masters, 151 1, 15 17
Fatcliffe v. Winch, 1633, 1634
Rathburn v. Huglies, 525
Rattenbury v. Fenton, 1573
Rattray I/. Bishop, 1710

— V, George, 38
Raven v. Kerl, 57

Rawlings v. Lambert, 162, 310, 333, 338,

1623
Rawlins >\ Daliun, 1084

— V. McMahon, 164

— 0. Powell, 473, 1576

— I). Wick ham, 1493
Rawlinson v. Moss, 1879
Raworth v. Parker, 520
Rawson v. Samuel, 608
Ray ('. 657

Ray V. Fenwick, 158 ,

Rayley v. Best, 168, 714
Raymond v. Brown, 564

— V. Lukeman, 1 1 59 ••

Raymond's, Lord, Case, 1404
Rayner w Julian, 421
Raynes z/. Wise, 1734, 1735
Re, Acker, 1825

— Agriculturist Cattle Co., 1775

— Anglo Californian Gold Mining

Co., 1557

— Ashton Charity, 1886

— Aston, 596, 598

- Babcock's Estate, 729, 892, 151 2

— Bacon, 1546

— Banwen Iron Co., 1616

— Barrington, 1627

— Bedford Charities, 1887

— Bedminster Charities, 1626

— Bell, 731, 1327, 133s, 1339, 1345
— • Bendyshe, 1627

— Bentley, 1393

— Berry, 1399

— Biddle, 1479

— Biddulph, 1828

— Bignell, 1399

— Bingley School, 1883

— Birch, 1629

— Bishop, 1385

— Blundell, 1902

— Blunt, 1716, 1718

— Boddy, 1802

— Bond, 1384

— Bowen, 642

— Bowes, 1828

— Braye, 1630

— Brazill, Barry v. Brazill, 912

— Brent, 1830

— Brett, Reynolds v. Lewis, 1632

— British and Foreign Gas Co., 1630

— Brooker, Brooker v, Brooker, 1634

— Brookman, 1627

— Brown, 1828, 1866
} — Bunnett, 1629

— Burke, 1399
I — Burnell, 1629

— By waters, Sarge it v, Johnson, 1768

— Cabel, 1833

— Callicott, 1803

— Cant's Estate, 627, 1559

— Carew, 1 158, 1882

— Cart Wright, 1628

— Casey, Biddel) v. Casey, 767

— Catholic Publishing and Bookselling
Co., 663

— Caverhill, 1207

— Chamberlalr:, 1345, 1828

— Chaplin, 1630

— Chelinsford School, 1902

— Chestnut College, 1883

— Clarke, 729

•a

Ixxxviii

TABLE OF CASES.

Re, Clinton, 1830, 1831

— Conyer's School, 1889

— Couitois, 1626

— Crooks, 1614

— Dalton, 1408

— Dartmouth & Torbay R. W. Co.,

1831

— Davenport's Charity, 1890, 1894

— Davis, 1386, 1878 ■

— Dawson, Dawson v. Jay, 1387

— Dean Clarkes Charity, 1885

— Delavante, Delavante v. Child, 735

— Devonshire, 1628

— Dixon, 1575, 1624

— Donington Church Estate, 1897

— Dufaur, 643

— Duke of Cleveland's Harte Estate,

1627

— Eadie, 638

— Earl's Trust, 570

— Electric Telegraph Co. of Ireland,

ex parte ^udA, 1612

— Electric Telegraph Co. of Ireland,

ex parte linnn, 727

— Ellison, 1833

— England, 1388

— English, 666 ^

— Eves, 1397, 1877

— Falconeis 731

— Feversham Charities, 1883

— Ford's Charity, 1883, 1887

— Forrester, Mesnieri). Forrester, 731

— Foster, 712

— Eraser, 1361

— Freeman, Craigie and Proudfoot,

1561

— Fryer, Martindale, v. Picquot, 734

— Fynn, 1386, 1388, 1876

— Gillsie, 1385

— Gilrie, 1877

— Gloucester Charities, 1907

— Greashy, Cleaver v. Younger, 1739

— Greaves, 1627

— Gregson, 1561

— Groom, 1875

— Gomall, 1391

— Hackney Charities, 1898, 1899

— Halliday, 1876

— Hall's Charity, iSJ!;, i886

— Hamilton, 733

— Hansell, 1803, 1805

— Hanson, 1889

— Harding, 1339

— Harris, 571, 1319, 1344, 1627

— Havelock, 1629

— Hawke, 1828

— Hay, 1343

— Hays, 1833

— Heely, 11 64

— Hertford Charities, 1629
■r- Higgins, 1254

Re, Hilliker, 1262

— Hoare, 1386

— Hobler, 608

— Hodges, 1363, 1386, 1626, 1827

— Hogan, 569

— Holden, 1833

— How, 1830,

— Howard, 1882

— Hunter, 1397

— Huntington Charities, 1906

— Irwin, 1386, 1877

— Israel, 731

— Jarvis Charity, 1883, 1887

— Jervoise, 1824

— Jewitt, 667

— Jones, 1151, 1 1 54, 1479

— Joseph & Webster, 1624

— Justices of Coventry, 1629, 1827

— Keane, 667

— Keen, 1629

— Kenan, 908, 912

— Kennedy, 1803

— King, 1520

— Kinsey, 1377

— Knight's Trusts, 151 1

— Lane, 1398

— Langtry, 735, 1634, 1635

— Law, 1399, 1882

— Lewes, 1479 #

— Lilley, 1626

— Lister's Hospital, 1883

— Lloyd, 642

— London &c. R. W. Co., 1883, 1887

— Long, 1630

— Ludlow Charities, 1906

— Macfarlane, 1399

— Manchester & Leeds R. "W. Co.,

1626

— Manchester New College, 1885,

1886

— Markwell, 1883

— Marlborough School, 1902, 1903
-- Marrow, 1479, 1629

— Marshall, Fowler v. Marshall,

730

— Mason, 1403

— Medow, 1628

— Meyrick, 1883

— Midland, R. W. Co., 1827

— Miller, 1716

— D. G., 1571

— Montgomery, 1 782

— Moore, 1 716

— Morrison, 1399, 1832

— Mou'ilyan, 643

— McCuUochs, 1385, 1390

— McDonald, 1803

— McDougall, 1397

— McMorris, 1369

— McVeagh, McVeaghz/. Croall, 727.

1847

1626, 1827

TABLE OF CASES.

Ixxxix

, 1906
1887

479
624
1629, 1827

163s

o., 1883, 1887

06
R. W. Co.,
lege, 1885,

[902, 1903
Marshall,

1827

Croall, 727,

Re, Murray. 1^05

— Neale, 1384 .

— Nelson, 579

— Newbery, 1875

— Northampton Charities, 1 907

— Nowell, 1 716, 1719

— Ornsby, 178 1

— O. S. &. H. R. W. Co. & Cotton,

1835
— . Overseers of Ecclesall, t886

— Oxford Charities, 1906

— Paragon and Spero Mining Co.,

642

— Parke's Charity, 1886

— Parry, 1629

— Passmore, 1625

— Paton, 723

— Pearce, 1830

— Phillpott's Charity, 1886

— Pieance, 571

— Pickance, 1627

— Pigott, 1 7 16

— Pine, Pine v. Ellis, 1847

— Ponton, 867

— Powell, goods of Mary, 1249

— Primrose, 1514

— Radcliffe, 573

— Reading Dispensary, 1886

— Rees, 1610

— Reynolds, 649

— Risca Coal Co., 503, 612, 1567

— Roberts, 955, 1828

— KoLerts, Fowler v. Roberts, 1633

— Scott, 1882

— S. E. R. W. Co., 1833

- Settled Estates Act, 1373, 1374

— Sheffield and Rotherham R.W. Co.

1378

— SherA'ood, 1516

— Shrewsbury School, 1629, 1886,

1906

— Sidingham, 1392

— Skeetes, 1883

— Skidmore's Trusts, 573

— Skiggs, Marriage r/. Skiggs, 1578,

'633

• — Smith, 1623

— Spence, 1386

— Spiller, 1399

— Stack, 1778

— Stafford Charities, 1538

— Stannard, Infants, 1385

— Stephen, 1627

— Stewart, 1833

— Stewart v. Stewart, 1 164

— Strong, 1408

— Stuart, 723, 1479

— Sturge, 1399

— St. Giles rnd St. George, 1883

— St. John's Hospital, 1906

— Tayler, 1399

/ie, Taylor, 1875, 1876, 1882

— Third Burnt Tree Bdg. Scy., 1629

— Thorp, 1800

— Thorpe. 1 21 5 ,.,

— Tillstone, 1824, 1828 .

— Tomlinson, 1876

— Townsend, 1479 '

— Trant, 1765

— TuvnbuU, 571

— Tylden, 1833

— Upton Warren, 1886, 1888

— Varteg Chapel, 571, 1627

— Viall, 147:.

— Vicar of St. Sepulchre, 630

— Wade, 1386, 1514

— Walker, 1404, 1405, 1628

— >Vird, 1399, 1627

— - Simmons u. Rose, 1772

— Wmier, 1765

— V, arwick' Charities, 1887, 1907

— Watford Burial Board, 1883, 1905

— Watson, 1833

— Weever ?/. Kockport, 1399

— West Ham Charities, 1905

— West Retford Church Lands, 1885,

1886

— Wheeler, 1479

— Willenhall Chapel, 1883

— Williams, 1368, 1409

— Wills, 1499

— Wiltshire, 73$

— Winscom, 1876

— Wise, 1626 •

— Wisewold, 642

— Woodburn's Trusts, 15 13

— Worcester Charities, 1907

— Worthington, 1833

— Wright, 1828

— Wyersdale School, 1889

— Yaggie, 1805

Read v. Barton, 426, 480, 1545

— V. Read, 716
-- V. Prest, 182

Reade v. Sparkts, 1501, 1515

— V. Woodrooffe, 250, 449, 454
Rearden v. Minisr, 691

Redding v. Wilks, 297
Reece 7/. Taylor, 902

— r. Trye, 412, 1856
Reed v. Barton, 357, 644

— V. O' Brian, 300

— V. Passer, 1320
Reede v. WHiitchurch, 530

Rees V. Attorney-General, 506, 607

— V. Beckett, 1 641

— V. Jacques, 504

— V. Lloyd, 1347

— d. Howell 7'. Howen, 1289
Reeve v. Attorney-General, 105

— V. Dalley, 87

— V. Goodwin, 1809

4 ^

_fe*.v

xc

TABLE OF CASES.

4X2, 597, 1847,

I26f 1274,

Reeve t'. Hodson, 554, 1722 ,

— V. Parkins, 1679 •

— V. Richer, 181

— V. Whitmore, 790
Reeves v. Baker, 286

— V. Greenwich Tanning Co., 384

— V. Ward, 921
Reg, V. Boyes, 446, 596
Rehden v. Wesley, 517, 519, 520
Reid V. Baldwrin, 1838

— V. Cooper, 1138

— V. Langlois, 411,

1857

— V. Middleton, 1777

— V. Stephens, 1551

— V. Whitehead, 1267,

1275, 1276
Remnant v. Hood, 457, 1464, 1537
Rendall v. Rendall, 1760
Renoldson v. Perkins, 221
Renvoize v. Cooper, 155, 174, 180, 624
Revel r. Watkinson, 810,811
Rex V. Aldborough, 1250

— V. Antrobus, 1339

— V. Barnes, 1264

— V. Catesby, 1334

— V. Clapham, 1319

— V. Culpepper, Sir J,, 1345

— V. Earl Grosvener, 1662

— V. East Farleigh, 1344

— V. Fowler, 4, io<6
- V. Gilkes, 1347

— V. Grant, 684, 694
" — V. Haines, 1332

Head, 1321

Inhabitants of Bathwick, 555,

1320
Inhabitants of Eramley, 1320
Inhabitants of Brampton, 1320
Inhabitants of Lubbenhawe, 1319
Inhabitants of North Wingfield,

1213
Inhabitants of Stourbricige, 1344
Inhabitants of Trowbnuige, 13 19
King, 1332
Kinnear, 688
Lord Gordon, 1346
V. Netherthong, 1334
V. North Petherton, 1319
Richards, 68^
Ryton, 1334
Teal, 682
Wade, 912
Watkinson, 410
Wooler, 688

— V. Wyudham, 115

Reynell V. Sprye, 313," 1562, 1651, r709,

1850, 1851, 1856
Reynolds v. Blake, 1220, 1352
-^ V. Godlee, 413, 1849, i860

— V. Jones, 576

V.
V.

V.
V.
V.
V.

V.
V.
V.

V.

■ V.

V,
V.
V.

V.
V.
V.

Reynolds v. Nelson, 501,

V. Pitt, 1687
Reynoldson v. Perkins, 220, 623, 1058,

1059
Rhodes v. Buckland, 1021, 1679

— V. Hayne, 508

— V. Lord Mostyn, 1 751, 1752

— V. Moxhay, 238

— V. Nield, 1839 . '
Ricardo v. Cooper, 330
Ricards ex parte, 1394
Riccard v. Prichard, 1018
Rice V. Brook, 754

— V. George, 498, 500, 512

— V, Gordon, 1857
Rich V. Brantford, 1692

— V. Cockell, 80
Richards, ex parte, 1479

— V. Barton, 1165, 1186, 1 188, 1209
- V. Chambers, 79

— V. Chave, 1760

— V. Cooper, 173, 1044, 1068

— V. Dadley, 381

— V. Davies, 274, 275

— V. Evans, 301

— V. Jackson, 405

— V. Millett, 88

— V. Perkins, 1756, 1758

— V. Platell, 1630

— V. Richards, 1322, 1788

— V. Rose, 687

— V. Scarborough Market Co., 1878

— V. Symes, 679

— V. Watkins, 1845, '847

— V. Wood, 635

Richardson v. Bank of England, 1816,
I 82 I, 1823

— V. Beaupre, 1838

— V. Eyton, 489, 1605

— V. Fisher, 690

— V. Hastings, 151, 195, 196, 199,

1849, i860

— V. Hulbert, 204

— V. Jenkins, 1543

— V. Larpent, 196, 200

— V. Miller, 56

— V. Moses, 498

— V. Rusori '-^er, 1536

— V, Syden ' 1209

— V. Ward 15, 1796
Richmond -. F 1047, 1048, 1202

— V. Tayleu , 130, 136, 137
Rickards r. Attorney General, 287
Ricketts T- Momington, 611, 1721

— I'. Turquand, 671
Rico V. Gaultier, 1736, 1737
Rider r. Kidder, 361, 643
Ridley v. Gittings, 970
Rid^way v. Darwin, 789
Ridf way v. Newst^ad, 727

• — V. Roberts, 675, 1665

Ridi
Ridl
Ridl
Ride

Rigl

Rign

Ring
Ring
Ripl(

Rist
Ritcl

Ritso
Roac
Roak
Robe

Robe

Robir
Robir

TABLE OF CASES.

XCl

623, 1058,

79
1752

I 188, 1209
068

I
Co., 1878

and, 1816,
196, 199.

8, 1202

137

287

721

Ridifer v. O'Brien, 862

Ridler v. Ridler, 6, 67

Ridley z'. Obee, 474

Ridout V. Earl of Plymouth, 1773

— V. Ketchum, 1301, 1312
Rigby V. G. W. R. W. Co., 698, 1665

— V. MacNamara, 800, 1161, 1374

— V. Rigby, 458, 1851

— V. Strang ways, 491
Rigg V. Wall, 610

Rigney «. Fuller, 1041, 1117

— V. Matthews, 1164
Ringgold V. Ringgold, 969
Ringrose v. Todd, 681
Ripley v. Moysey, 1532

— V. Waterworth, 1235

— V. Woods, 98
Rist V. Hobson, 297
Ritchie v. Bowstield, 692

— V. Broadbent, 79

— V. Humbertson, 736
Ritson V. Stordy, 42

Roach V. Garvan, 1404, 1288, 1390
Roake v. Kidd, 1219
Roberts v. Clayton, 424

— V. Collett, 76, 78

— V. Corporation of Toronto, 653

— V. Eberhardt, 275, 1761, 1762

— V. Hughes, 68s, 688

— V. Kerslake, 690, 1473

— V. Lloyd, 38

— V. Marchant, 1573

V. Roberts, 186, 261, 489, 1469,
1680

— V. Robinson, 1153
V. Scoones, 1473 ,

— V. Totty, 1563

— V. Tunstall, 225

— V. Walker, 1534

— V. Williams, 301, 1481
Robertson v. G. W. R.W. Co., 189

— V. Lord Londonderry, 417

— V. Myers, 879

— V. Norris, 1292

— V. Shewell, 1850

— w. Skelton, 1372

— V. Southgate, 124, 192, 1585,

1590
-=- V. Wilkie, 42, 1737

— V. Wynch, 1719
Robins v. Carson, 579

— • V. Hodgson, 237

— t». Wolseley, 1414
Robinson v. Anderson, 669

— v. Aston, 127

— V. Brutton, 30

— V. Byers, 1037, 1215

— V. Byron, Lord 1656, 1664, 1690,

1700, 1710, 1713

— V. Cook, 683, 684

— V. Cooper, 134, 530

Robinson v. Gumming, 788, 799, 815, 834
840

— V. Davis, 1345

— V. Dobson, 126, J44

— V. Elliott, 1528

— V. Hadley, 1768

— V. Harrison, 1628, 16^9

— V. Kitchen, 400

— V. Litton, 53, 1652

— V. Milner, 1352

— V. Musgrove, 11 89

— V. Nash, 1730, 1731

— V. Newdick, 635

— V. Norton, 51, 512, 1593

— V. Pett, 932, 934, 953, 1516

— V. Robinson, 83 1

— V. Rosher, 485

— V. Scotney, 789, 790

— V. Taylor, 1567

— V. Thompson, 416, 420

— V. Williamson, 682

— V. Woode, 1716
Robison v. Manuelle, 631

Robson u. Earl of Devon, 124, 505, 513,
1488

— V. Reesor, 366

— V. Waddell, 1266, 1273
Roch V. Callen, 1526

Rochdale Canal Co. v. King, 1704, 1840,

1 841
Roche V. Morgell, 306
Rochfort V. Battersby, 48, 121, 1055
Rock V. Cook, 666

— V. Leigh ton, 913

— V. Mathews, 1695
Rockev. Hart, 830, 831, 1519
Roddam v. Hetherington, 65, 1740, 1 741,

1746

— V. Morley, 903
Rodgers v. Fryer, 327

. — v. Nowell, 693, 697

— V. Rodgers, 1149
Rodham z*. Morley, 1 1 94
Rodick V. Gandell, I0i8, 1849
Rodney ■». Hare, 526, 614
Roe V. Gudgeon, 1821

— V. McNeil, 1316, 1 34 1

— 1'. Pogson, 809

— V. Stanton, 638
Rogers v. Acaster, 99

— V. Challis, 676

— V. Goore, 526

— V. Hooper, 522

— V. Hull Dock Co., 1676

— V. Jones, 163

— V. Lewis, 1024

- V. Linton, 116, 178

— V. Nowill, 1668, 1673, 1707

— V. Rogers, 213, 1819

— V. Wood,. 1280
Rolfe V. Coote, 871

M

5 i

XCll

TABLE OF CASES.

M

Rolfe V, Gregory, 395

— V. Peterson, 1683 '

— V. Rolfe, 1686
Rolleston v. Morton, 233
Rolls V. Yate, 155
Rolph V, Cahoun, 355

— 7'. U. C. Building Society, 171, 754

884
Rolt v. Lord Somerville, 418
Romanes V. Fraser, 1570
Romilly v. Grint, 38
Rooke V. Lord Kensington, 625
Roper V. Coombes, 1191, 1220, 1243, 1244
Roscarrick z'. Barton, 220, 1058, 1136
Roschetti v. Power, 1820, 1821
Rose 7'. Calland, 616, 1496

— V. Gannel, 387

— V. Page, 173, 234, 1044, 1068
Roskelley v. Godolphin, 894, 895, 897
Ross V. Aglionby, 672

— V, Hayes, 351

— V. Mason, 901

— V. Perrault, 868, 1 105

— V. Robertson, 646, 1624

— V. Ross, 261, 993, 1819

— V. Steele, 1363, 1367 .

— V. Thompson, 1122

— V. Vader, 519
Rossiter v. Pitt, 544
Roswell's Case, 1652
Rotherham v. Battson, 1499
Rothschild v. Queen of Portugal, 15
Rothwell V. King, 410

— V. Rothwell, 1810, 181 1, 1820
Roundell v. Breary, 1005

— V, Currer, 1594, 1829
Rouse V. Jones, 1632, 1633
Routh V. Kinder, 205

— V. Peach, 303

— V. Webster, 1673
Roveray v. Grayson, 1 1 7
Rowe V. , 585, 591

— V. Hasland, 1322

— V, Jackson, 85

— 7J. Power, 1216

— V. Wood, 1647, 1800
Rowland v. Oakley, 76

— V. Siurgis, 522, 613
Rowlands v. Tucker, 1542
Rowlatt V. Cattell, 161 1

Rowley v. Adams, 764, 1366, 1370, 1^63,
1629

— V. Eccles, 292, 433

— V. Ridley, 656
Rowntree z/. Jacob, 1182
Rowsell V. Hayden, 217
Rowth V. Howell, 1787
Roy V. Gibbon, 1810, 1811
Royds«. Royds, 15 19, 1523
Royer's Appeal, 962

Rubery r. Morris, 121 w

Rucker v. Scholefield, 163, 633 '

Rudd V. Sheare, 138
Rudge V. Wee'don, 70, 142, 1587

— V. Winnall, 1406

Ruffv. Executors of Summers, 975
Rufford V. Bishop, 820, 850
Rumble v. Moore, 322
Rumbold n. Forteath, 509, 1467, 1842

— V. Forteith, 414, 1854
Rumney v. Mead, 159, 206

— V. Willis, 1486

Rump V. Greenhill, 276, 277, 423, 491,

732. 736
Rundell v. Lord Rivers, 903

— V. Murray, 1669
Rundle v. Rundle, 55
Ruscombe 0. Hare, 811, 813
Rush V. Higgs, 1633
Rushout V. Turner, 518
Rushton V. Craven, 1224

Rushworth v. Countess of Pembroke, 550
Ruspini v. Vickery, 424 *

Russ V. Mills, 1658
Russel V. Robertson, 1108 '

— V. Russel, 1046

— I'. Sharpe, 129 '
Russell V. Aby, or Asby, 1734, 1741

— V. Brucken, 865

— 1). Buchanan, 1553

— V. Davey, 1 105

— z'. East Anglian R.W. Co., 661,

1765, 1778

— V, Fraser, 1336 '

— V. Jackson, 411, 413, 1856

— V. London, C. & D. R. W. Co.,

1636

— V. London, &c., R. W. Co., 1709

— V. Plaice, 1382
V. Sharp, 60, 61

— V. Tapping, 633
Rutherford v. Dawson, 1809

— V. Douglas, 1760

— V. Muule, 952
— ^ V. Miller, 123

— V. Rutherford, 1013

— V. Wilkinson, 1800, 1801
Rutley V. Gill, 1354

Ruttan V. Burnham, 499

— V. Smith, 339, 481, 1621
Rutter V. Baldwin, 147
Ruttor y. Marriott, '1354, 1371
Ryan v. Anderson, 159

Ryder v. Bentham, 1664, 1690

— V. Earl Gower, 1150, 1158, 1557
Rylands 7^. Latouche, 1583

Ryle V. Brown, 1238
Ryves v. Coleman, 875

— V. Duke of Wellington, 105
~ V. Ryves, 302, 387, 390

21 V

i, 163, 633 •

I

■0, 142, 1587
406

Summers, 975
20, 850
22

I, 509, 1467, 1842
, 414, 1854

59, 206

486

276, 277, 423, 491,

ers, 903
1669

5
811,813

518

1224

;ss of Pembroke, 550

424 *

1 108
id

9 ■ '

sby, 1734, 1 741

865

1553 '

35

ianR.W. Co., 661,

r8

36

II, 413, 1856

& D. R. W. Co.,

c, R. W. Co., 1709

2
61

33

, 1809
, 1760
952
123

brd, 1013
on, 1800, 1801

^99
481, 1621

17

I54, 1371
9

I64, i6go
1150, 1158, 1557
'583

pington, 105
J87, 390

TABLE OF CASES.

XClll

s

Sabin v. Heape, 1873
Sackett v. Bassett, 819, 820
Sackvill V Ayleworth, 261
Sadler v. Lovett, i6cx3
.Sadlier v. Briggs, 1337
Sainstry v. Grammar, 166
Sainter v. Ferguson, 1681, 1686
Sale t^. Kitson, 173, 214, 1074

— V. Sale, 56, 1386
Salkeld v. Johnston, 1578

— V. Phillips, 418

— V. Science, 420
Salmon v. Anderson, 1824

— V. Watson, 1223
Salomons v. 1-aing, 201
Salter v. Bradshaw, 1475

— V. Tildesley, 489, 493, 494
Salvidge v. Hyde, 277, 278

Sal way z/. Salway, 1787, 1788
Sammes v. Rickman, 875, 1523
Sampson v. Appleyard, 686

— t. Pattison, 1049

— V. Sampson, 1439

— V. Smith, 1663

— V. Swettenham, 414
Samuda v, Lawford, i688
Samuel z/. Jones, 1507, 151 1
Sanborn v. Sanborn, 128, 1403
Sanders v. Benson, 260, 1484

— V. Kelsey, 284

-- V. Miller, 1532, 1537, 1538

— V. Page, 99

— V. Richards, 1065, 1080
Sanderson v. Caston, 217

— V. Chadwick, 1499

~ V. Cockermouth R. W. Co., 1 688

— V. I nee, 1051

— V. Stoddart, 1527

— V. Walker, 1524, 1628
Sandford ». Ballard, 1761

— V. Remington, 410

— V. Sandford, 60
Sandys v. Long, 293

— V. Watson, 1522
Saner w. Deaven, 511
Sanford v. 765

Sangosa v. East India Co., 243
Sanxter i'. Foster, 1665, 1668
Sapte r. Ward, 118, 150, 209
Sargeson t. Cruise, 810

- V. Sealy, 810, 812
Saunders v. Christie, 856

— V. Druce, 159, 268, 727

— V. Furnivall, 29

— V. Gray, 1 164, 1372

— V. Hord, 395

— V. Leslie, 535

— r. Saunders, 246, 1 541

— V. Smith, 1669, 1670

11 A

Saunderson v. Caston, 1054, 1 114
Savage v. Brocksopp, 533

— V. Carroll, 137, 545, 674

— V. Hutchinson, 317

— V. Lane, 194

— V. Snalebroke, 424
Savile u. Savile, 11 50, 1353
Saville v. Bruce, 625

— V. Tankred, 182
Savony v. Dyer, 312, 1631
Sawdon V. Heasty, 1015, 1 122
Sawyer v. Birchmore, 599, 775, 776

— V. Mills, 488
Saxby z\ Saxby, 171 1
Saxton V. Davies, 281

— V. Davis, 49
Say V. Barnes, 961, 966

— V. Creed, 177
Sayer v, Wagstaff, 159
Scaife v. Scaife, 699, 1474
Scane v. Hartwrick, 423
Scarborough v. Burton, 1464
Scarf V. Soulby, 270

Scarisbrick v. Lord Skelmersdale, 1569
Scatchmer v. Foulkard, 38
Scattergood v. Harrison, 935
Scawin v. Scawin, 246
Schaefer z/. Lundy, 1311
Schaw V. Schaw, 972
Schelmardine jy. Harrop, 154
Schneider z/. Lizardi, 15, 430
Schofield V, Tummonds, 1504

— V. Heafield, 131, 225, 1048, 1065
Schoole V. Sail, 154, 513, 1033
Sclater v. Cottam, 1516

Scoones V. Morrell, 618, 1504
Score V. Ford, 18 19
Scott, J?g, 1882

— V. Allgood, 302

— V. Becher, 1757

— V. Black, 1 127

— V. Carter, 476

— V. Dunbar, 1239, 1488, 1493

— w, Fenhoulet, 1250

— V, Fen wick, 545

— V. Jackman, 1369

— V. Livesey, 860

— V. Malcolm, 540

— V. McDonell, 1 119, 1120

— V. McKeown, 11 12

— V. Miller, 398, 404, 446

— V. Nesbit, 311

— V. Nesbitt, 11 53

— V. Nicholl, 154

— V. Nicol, 1070

— V. Nixon, 1324

— V. Platel, 1790

— »'. Scott, 1499

— V. Spashett, 81

— V. Wheeler, 1582, 1850
Scottish Union Ir.s. Co., v. Steele, 573

1. ■

M

0 I

<3

3

m

xciv

TABLE OF CASES.

Scott's Appeal, 962

— Estate, 961
Scriven v. Tajjley, 84, 85
Scrivener ex />ar/i; 311
Scrubsole v. Schneider, 1558
Scully V. Scully, 1337
Sculthoipe V, Burn, 867
Scurrah v. Scurrah, 1 76 1
Scurry v. Morse, 207
Seagears, ex parte, 1S87
Seal V, Brownton, 1474
Sealy v. Laird, 1739
Seaman v. Vawdray, 1223
Searle v. Price, 1418
Seath V. Mcllroy, 1510
Secombe v. Fitzgerald, 673
Secord v. Terryberry, 867
Sedden v. Connell, 20
Sedgwick v. Watkins, 1738, 1739
Seeley v. Maybew, 690

Seers v. Hind, 830, 15 19

Sefton, Lord v. Lord Salsihury, 1709

Segrave v. Kirwan, 1210

Seidler, ex parte, 24, 1625

— V. Sheppard, 105 1
Seilaz v. Hansom, 25, 46
Selby V, Crew, 398

— V. Pom fret, 172

— V. Selby, 1708
Self V. Madox, 658

Sellas V. Dawson, 52 ; and see Sellers ?'.

Dawson
Selleckz'. French, 955
Sellers v. Dawson, 52, 512, 1593
Selly V. Powis, 686

Selyard, Lady v. Executors of Harris, 204
Semple v. London and Birmingham R.W.

Co., 47
Seney w. Porter, 101 1
Senhouse v. Earl, 404

— V. Hall, 1573
Senior v. Armytage, 16S4

— V. Pritchard, 1648, 1700
Sergeson v. Sealey, 1402
Sergison v. Beavan, 356, 1648
Sergrove v. Mayhew, 50, f22
Serjeant v. Sharpe, 143

Serle v. St. Eloy, 59, 332
Seton w. Slade, 438, 618, 1191
Severn v. Fletcher, 324

— V. Severn, 141 1, 1436, 1455, 1457
Sevier v. Green way, 989, 1 48 1

Sevin v. Desiandes, 1680

Sewel V. Freeston, 678

Sewell V. Ashley, 184

Sexton V. Smith, 515

Seymour's Cast, 1231

Seymour v. Long worth, 1840

Shaftesbury Lady z/. Arrov/smith, 414, 1854

— Earl of. Case of, 1390

— V. Duke of Marlborough, 1765

Shaftoe v. Shaftoe, 1459, 1739
Shakel v. Duke of Marlborough, 1754
Shales v. Barrington, 1474, 1499
Shallcross r. Hibberson, 11 51
Shanahan v. Fairbanks, 464
Shand v. Kidd, 76
Shannon v. Bradstreet, 102
Shapland w. Smith, 1219
Sharp V. Ashton, 337

— V. Brice, 687

— V. Carter, 398, 1775

— V. Earl of Scarborough, 796, 904

— V. HuUett, 51, 512

— z. Page, 1 191

— V. Taylor, 1739
Sharpe v. Blondeau, 361

— V. Gamon, 183

— V. Hullett, 51, 512
Sharpies 1'. Sharpies, 1530
vSharrod v. Winfield, 1634
Sharshaw v. Gibbs, 810, 1017, 1628
Shaver v. Allison, 504

Shaw, ex parte, 1848

— V. Ackers, 366

— V. Ching, 250, 1851

— V. Forrest, 1621

— V, Hardingham, 181

— V. Johnson, 1515

— V. Liddell, 351

— V. Lindsay, 358

— V. Neale. 1018

— V. Pickthall, 1536

— V. Rhodes, 1789

— V. Wright, 654, 655, 656, 662, 1776
Shea V. Fellowes, 372

Sheffield v. Duchess of Buckinghamshire,
1640

— V. Lord Mulgrave, 1019

— and Rotherham R. W. Co., Re, 1378

— Canal Co. v. Sheffield, &c., R. W.

Co., 1846
Shelberry v, Briggs, 150
Shelburne v. Biddulph, 1238

— Countess of, v. Lord Inchiquin, 62
Sheldon v. Fortescue, 136

Shelley v. , 588, 590

— V. Nash, 1239

— 0. Wright, 1347

— V. Pelhani, 1783

— V. Shelly, 1622 >■
Shennan v, Parsill, 10J3, 1014
Shepard v. Brown, 390
Shephard v. Elliot, 840

— V. Shephard, 1825
Shepherd v. Churchill, 711

— V. Gwinnet, 235

— V. Jones, 315

— V. Keatley, 1243, 1244

— V. Lloyd, 423

— V. Morris, 1840

— V. Titley, 1004, 1032

TABLE OF CASES.

XCV

)

h, 1754

^99

, 796. 904

, 1628

;6, 662, 1776
inghamshive,

Co., i?^', 1378
&c., R. W.

ichiquin, 62

Shepheid v. Towgood, 1601
She|)|i;inl v. Harris, 127

— V. Oxenfonl, 1762

— V. Sheppard, 924, 1508, 1539, 1834

— V. Smith, 1521, 1522

— V. Staike, 972
Sheiill V. Shuford, 974
Sheilocli V. Barned, 695
Sherman?;. Sherman, 1736, 1741
Sherratt v. Hentley, 1541
Shcrriffz'. Axe, 935

Sherrit v. Birch, 175

Sherwin v. Shakspeare, 1495, 1576

Slierwood, AV, 935, 1516

— V. Beverage, 1354

— V. Beveridge, 1 158

— V. Campbell, 1 148
- V. Clark, 424

— V. Freeland, i6i

— I). Smith, 1398

- V. White, 1700
Shewell v. Jones, 1552, 1553
Shewen v. Vanderhorst, 780, 900
Shields v. Boucher, 678, 694
Shillito V. Collett, 72, 1876
Shillitoe v. Claridge, 695
Shinniisz/. Graham, 1360
Shipbrook, Lord, v. Lord Hinchinbrook,

875, 1404, 1605, 1829
Shiphard v. Lutwidge, 909
Shipton V. Rawlins, 224, 227
Shirley v. Earl Ferrers, 585, 588, 759, 800

— V. Matthews, 68j.
Shirt V. Westby, 801
Shittler v. Shittler, 1472, 1543
Shore v. Collett, 873

— 0. Shore, 1780
Short V. Lee, 672
Shotbolt V. Biscow, 1022

Shrewsbury & Chester R. W. v, Shrews-
bury and Birmingham R. W.
1690, 1679, 1689

— Earl of V. North Staffordshire R. W.

Co., 434, 1602

— Hospital, ex parte, 1831

— School, Re, 1629, 1886, 1906
Shrimpton v. Laight, 1673

Shuff V. Holdaway, 1784, 1798
ShurtlefTf. Witherspoon, 981
Shuttleworth «. Howarth, 176, 348, 1532

1533

— V. Laycock, 273

— V. Lowther, 1481 . , ., ,

— V. Roberts, 439

Sibbering V. Earl of Balcarras, 21, 292
Sichell «. Raphael, 1 741, 1745, 1746,

1748
Sicilies, King of the Two v. Willcox, 13
Sidden v. Leddiard, 438, 759
Sidebotham v. Barrington, 1351, 1494,

1504

Sidebotham ». Watson, 1870
Sidebottom v. Adkins, 446, 596
Sidingham, Re,, 1392
Sidney w. Kanger, 1 147

— V. .Sidney, 538

— V. Wilmer, 1629

Siftken v. Davis, 132, 173, 1075, 1076

Silcock V. Roynon, 435, 438

Silk i>. Osliorne, 47

Sill y. Worswick, 49

Sdls V, Lang, 639

Silver v. Bishop of Norwich, 1752, 1764

— V. Stein, 162
Simmonds v. \)\\ Barre, 468

- V. Lord Kinnaird, 653
- V. Palles, 378
Simmons w. Bates, 138

— V. Heaviside, 1695

— V. Rose, 1799

— V. Simmons, 544
Simpson, ex parte, 285

— V. Brown, 1857

— V Burton, 293

— V. Chapman, 1681

— V. Fogo, 385

— V. Grant, 1506

— V. Lord Howden, 1638

— V. Malherbe, 1545

— V. O. &. P. R. W. Co., 1775, 1784,

1797

— 0. Ottawa, 856, 871

— V. Sadd, 515, 617

— V. Simpson, 1362

— V. Staffordshire Water Co., 1676

— V. Westminster Hotel Co., 1676
Sims V. Thomas, 825

Sinclair v. Jackson, 273, 826, 827
Singleton w. Cox, 174, IC55, 1056

— V. Hopkins, 186, 221, 711

— V. Selwyn, 280, 396
Sivell V. Abraham, 487, 489
Skarf V. Soulby, 620
Skeetes, Re, 1883

Skegg V. Simpson, 357, 643

Skey V. Bennett, 1035

Skidmore's Trusts, Re, 573

Skiggs, Re, Marriage v. Skiggs, 1578,

1633
Skelly V. Skelly, 1470
Skinner ex parte, 1885, 1887

— V. McDouall, 298

Skinner's Co. v. Irish Society, 1620, 1758
Skip, ex parte, 311

— V. Harwood, 1711, i 1762
Skipp V, Wyatt, 1072, 1478
Skipwith v. Shirley, 1341, 1345, 1347
Skirret v. Athey, 1487

Skrymsher w, Northcote, 637, 640, 1535,

1537
Slack V. Evans, 287, 455

Blade v. Rigg, 1049, 1050, 1060 ^

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XCVl

tABLB OP CASES.

Slaney v. Wade, 68 1, 694
Slater v. Fisken, 1285, 1367

— r. Slater, "718

— r. Young, 1606
Sleech v. Thorington, 81
Sleeman v. Sleeman, 133, 134
Slogget V, Viant, 22, 23, 293
Sloman v. Walter, 1686
Sloper V. Fish, 12 19

Small V. Attwood, 157, 448

Smallwood v. Rutter, 56

Smart v. Bradstock, 184, 195, 1079

Smartle v. Williams, 1322

Smedley v. Hill, 682

Smith, Rt!, 1623

— V. Althus, 763

— V. Andre',v5, 181

— V. Angel, 1238

— V. Attorney-General, 7.61

— V. Aykwell, 1677

— V, Barnes, 333, j y, x'^SS, 1858

— V. Bate, 1390

— V. Bernam, 1191

— V. Bicknell, 154, icya

— V. Bird, 560

— J'. Blackman, 556,

— V. Blofield, 1727

— V. Bogart, 394

— V. Bolden, 1520

— V. Brooksbank, 159, 206

— V. Bryon, 419

— V. Capron, 300

— V. Chambers, 527, 542

— V. Chichester, 1069, 1070

— V. Clarke, 538

— V. Collyer, 1656

— V. Cooke, 1 66 1

— V. Cornfoot, 293

— V. Creasy, 1592

— V. Crooks, 871

— V. Davies, 920

— V. Dearmer, 699

— V. Death, 1252

— V. Dixon, 338, 1623

— V. Dowling, 1 85 1

— V. Duke of Beaufort, 415, 1851,

1854

— V. Earl of Effingham, 1563, 1778

— V. East India Co., 416

— V. Edwards, 118

— V. Effingham, 1575, 1774

— V. Elches, 33, 54, 88, 89

— V. Fox, 395, 1 137

— V. Goldsworthy, 228 ,

— V. Good, 1 142

— V. Gunn, 1592

— V. Guy, 491, 492. 493

— V. Guyon, 11 83

— V. Hammond, 23

— V. Hartley, 476

— V. Harwood, 1628

Smith V. Haytwell, 1677, 1693, 1696

— V. Henderson, 742

— V. Henley, 6(2

— V. Hibernian Mine Co., 116

— V. Horsfall, 510, 1587, 1 589, 1597

— V. Jackson, 1813

— V. Jeyes, 1762

— V. Kay, 396

— V. Lakeman, 667

— V. Levaux, 390

— V. Lines, 1586

— V. Lloyd, 1813

— V. London &c., R. W. Co., l668

— V. Lyster, 1795

— V, Marshall, 357

— V. Massie, 1845

- V. Matthews, 72, 272 •
V. Mules, 1 68 1

— V. Nelson, 1353

— V, Neversole, 1738

— V. Pawson, 36

— V. Pemberton, 818

— V. Port Hope Harbor Co., 486

— V, Read, 403

— V. Roe, 837
V. Serle, 480

— V. Smith, 82, 292, 339, 852, 929,

1162,1404,1455,1752,1756,

1757

— V. Smoult, 1036

— V. Snow, 175, 178

— V. Spilesbury, 732

— V.Stewart, 1873

— V. Swansea Dock Co., 1 618, 1699

— V. Wotten, 1646
Smithby v. Hinton, 160, 208
Smyth V. Carter, 1660

- V. Smith, 1456
Snagg V. Frizell, 1484
Snell V. Hyaft, 138

— V. Timbrell, 689
Snook ». Watts, 138
Snow V. Collum, 975

— V. Hole, 58, 133
Snowball v. Dixon, 34, 121
Snowdon v. Metropolitan R. W. Co.,

727
Snyder v. Shibley, 1306
Soames w. Edge, 675, 1688
Solley V. Wood, 255
Solomon v, Solomon, 235, 1081, 1588

— V. Stalman, 161 1, 161 5
Soltau V. DeHeld, 1615, 1663
Somerville v. Jones, 645 • "

— V. Joyce, 759

— v. Kerr, 21, 354, 571, 1617

— V. Mackay, 1837, 1851
Somnerw. Charlton, 1151

Soules z/. Soules, 141 1, 1451, 1458
Souter V. Bumham, 1489

— V. Drake, 1243

Sot

k

1696

1

16

89, 1

597

n

TABLE OP CASES.

XCVU

Southampton S. B. Co. v. Rawlins, 503,

906
Southby V. Hutt, 1189
South Eastern R. W, Co., /fe, 1833

— V. Brogden, 390
V. Martin, 390

— V. Submarine Telegraph Co., 387,

508
Southey v. Sherwood, 1670, 1671
South Sea Co. , v. Bumsted, 4cx>

— V. DoUiffe, 410

South Staflfordshire R. W. Co., v. Hall,

485, 505. 507
South worth v. Taylor, 1694
Sovereign v. Sovereign, 838
Sowden v. Marriott, 1578
Sowerby v. Lockerby, 686 ^

— V. Warder, 1723
Sowry 1^. Sowry, 1833

Spain, King of, v. Machado, 13, 1563,

1564
Sparenburgh v. Bannatyne, 43
Sparkhall«, Rogers, 11 20
Sparks v. Liverpool Water Co., 1687

— V. Redhead, 1028
Spearing v. Lynn, 640

Speer v. Crawter, 168, 387, 714, 715
Speidall v. Jervis, 377
Spence, /ie, 1386

— V. Clemow, 1546, 1551

— V. Handford, 1773

— V. Hogg, 190

— V. Whitaker, 980
Spencer v. Borough, 560

— V. Bryant, 38, 121

— V. De Willott, 689

— V. London & Birmingham R. W.

Co., 1663, 1690

— I'. Luttrell, 410

— V. Seeming, 647

— V. Spencer, 960
Spendler v. Potter, 218
Sperling v. Rochford, 76
Spicer v. Dawson, 579

— V. James, 897
Spikernell v. Hotham, 671
Spiller, He, 1399

Spires v. Sewell, 490

Spirett V. Willows, 82

Spittle V. Hughes, 724

Spohn V. Ryckman, 1357

Spokes V. Banbuty Board of Health, 1664,

1713
Spong V. Hogg, 691
Spooner v. Payne, 654 ' " *

~ V. Sandilands, 1017
Sporle V. Barnaby, 78

— V. Whayraan, 1035, 1044
Spottiswoode v. Clarke, 1665, 1670, 1691,

1704
Spragg V. Binkes, 49, 50, 183

Sprague v. Henderson, 365, 1614

— V. Mitchell, 690
Spratt V. Jeffery, 1244
Springett v. Dashwood, 1520, 1523
Springfield v. Ollett, 1500

Sprye v. Reynell, 490
Spurgeon v. Collier, 990, 105 1

— Hooker. 1693
Squire v. Pershall, 1562
Squirrel v. Squirrel, 33, 59
St. Albyn v. Harding, 1475

St. C:ies, and St. George, /ie, 1883

St. John's College v. Carter, or Pratt,

1709, 1712
St. John V. Grabham, 1036

— V. Wareham, 995

— Hospital, /?e, 1906

St. Katharine's Dock Co., v. Mantrgu,

468
St. Ledger v. Adams, 1264
St. Victor V. Devereux, 33, 38, 1606,

1819, 1820
Stace V. Mabbott, 677, 681
Stacey v. Spratley, 671, 698, 699, 1473
Stack, /?e, 1778

Stackhouse v. Barnston, 395 •
Stackpole v. Beaumont, 84

— V. Callaghan, 21
Stackpool V. Stackpool, 835
Stackpoole v. Stackpoole, 919, 921, 1326
Stafford Charities, He, 1538

— V. City of London, 167

— V. Earl of Anglesey, 105

— V. Higginbotham, 38

— V. Williams, 1307

— Earl of, V. Buckley, 4
Staffurth v. Pott, 440

Stag V. Punter, 919
Stagg V. Knowles, 505
Stable V. Winter, 1586
Stahlschmidt v. Lett, 124, 891, 900
Staines v. Giffard, 1832

— V. Maddox, 64, 65

— V. Morris, 1242, 1470, 1497
Stainton V. Carron Co., 159, 268, 494,

627, 1757

— V. Chadwick, 414, 1564, 1855
Stamper v. Barker, 97, 98

Stamps V. Birmingham and Stour Valley

R. W. Co., 474
Standen v. Edwards, 679, 698
Standewicke v. Watkins, 688
Standish v. Corporation of Liverpool, 1665
Stanes v. Parker, 935, 943
Stanhope v. Earl Verney, 1249

— V. Nott, 410
Staniland v. Staniland, 55, 56

— V. Willott, 1493
Stanley v. Bond, 378, 1704

— V. Robinson, 441

— V. Wade, 1340 ^

is 1

XCVlll

TABLE OF CASES.

Stanley v. Wrigley, 700
Stannard, Infants, AV, 1385
Stansbury v. Aikwright, 295, 302
Stansfiekl v. Habergham, 1652, 1653, 1660

— V. Hobson, 170, 171, 213, 215,

1078, I 194
ritanton v. Hall, 83

— V. Hatfield, 1542, 1543

— V. Percival, 139, 531
Stapilton v. Stapilton, 59, 309
Stapleton v. Conway, 799

— V. Stapleton, 1867
Stapylton v. Peill, 1747

— V. Scott, 1 2 19
Star V. Newbery, 1866
Starkie, ex parte, 1394, 1401
Starten v. Kartholomew, 55, 57, 1386
State, The, v. Piatt, 978

Stead V. Heaton, 1323

— V. Stead, 492
Stedmore v. Padmore, 1265
Steed V. Cragh, 102
Steedman v. Marsh, 300

— V, Poole, 501
Steel V. Cobb, 138, 139

— V. Parsons, 352
Steele v, Davenport, 1 146

— V. Maunder, 1057

— V. Plomer, 361

— V. Stewart, 411, 1857

— V. Stuart, 360
Steer v. Steer, 162
Steers ». Cayley, 632
Stehman's Appeal, 961
Steinhoff v. Brown, 1 109
Steininetz v. Halthin, 82, 85
Stephen, He, 1627

Stephens v. Heathcote, 518, 520

— V. James, 1389, 1393

— V. La wry, 1398

— V. Mears, 767

— V. Simpson, 160, 107 1

— V. Totty, 98

— V. Wanklin, 582

— V. Workman, 1713
Stephenson's Estate, 965, 966

— V. Gardiner, 426

— V. Mackay, 505, 506

— V. Stephenson, 980

— V. Wilson, 1638

— V. Yandle, 980
Sterling v. Campbell, 1 103

~ V. Riley, iiii ^ .1 ,1.1 :

Sterndale v. Hankinson, 780 1.1

Sterne, ex parte, 1237 i

Sterrett's Appeal, 962
Stevens, ex parte, 1629

— V. Brett, 488

— V. Guppy, 306, 309, 620, 1223,

1258

— V. Keating, 509, 1467, 1665, 1668

Stevens »'. Pillen, 1527 ' » ,'

— V. Praed, 501, 505, 621

— V. Savage, 1405

— V. Stevens, 56

— V. Williams, 89, 1137
Stevenson v, Abington, 348

— V. Anderson, 116

— V. HoflFman, 1610

— V. Maxwell, 956

— V. Nichol, 1570

— V. Phillips, 978
Steward v. Dunn, 228

— V. East India Co., 113, 247

— V. Roe, 319
Stewart, He, 1844

— w. Fletcher, 881

— V. Forbes, 630, 640, 1555

— V. Glasgow, 1397

— V. Graham, 1738, 1739, 17^42,

1746

— V. G. W. R. W. Co., 1649

— V. Hoare, 943

— V. Horton, 993

— V. Hunter, 643, 718

— V. Kingsmill, 1646

— V. Noble, 800, 805

— V. Richardson, 17 10
-- V. Stewart, 23, 339,912,1164, 1815

— V. Taggart, 1307, 1315
Stiffe V. Everitt, 19, 83, 99
Stileman v. Campbell, 1403, 1817
Stilton V. Kennedy, 360
Stimson v. Stimson, 368

— V. Kerby, iioG
Stinson v. Ashley, 80

V. Martin, 22
Stinton v. Taylor, 503, 504, 507, 522, 525,

526
Stitwell V. Williams, 1755
Stock V. Vining 1538
Stocken v. Dawson, 935 '

— V. Stocken, 1395, 1574
Stocker v. Wedderburn, 1685
Stockley v. Stockley, 1639 '
Stockport Waterwork Co. v. Jowett, 1700
Stockton & Hartlepool R.W. Co. v. Leeds

& Thirst R. W. Co., 1637

— &c. R.W. Co. V. Brown, 1676
Stokes V. Bate, 1322

— V, City offices Company, 614
I — I'. Clendon, 225, 226, 1053

— V. Crysler, 31

— V. Ed mead es, 669 .

— V. Taylor, 190 • ;^

— V. Verrier, 985
Stokoe V. Robson, 154, 1482
Stone V. Davies, 336

— 7). Lidderdale, 653, 1764

— V. Wishart, 60, 1767
Stones V. Cooke, 1461 i
Stooke V. Vincent, 87

Stoi
Stoi
Stoi
Stor
Stor

Slov
Stra
Stra

Stra

Stra

Stra
Stra
Stra
Stra
Stra
Stre

Stric

Strir
Stro

Stro
Stro
Stru
Stpj
Stua

Stuj
Stul
Stu<
Stu]
Stui
Stui
Stui

Stui
Stui

M

TABLE OP CASES.

XCIX

f .*

Stopford V. Lprd Canterbury, 1398
Storer v. Jackson, 1 704
Storr V. Pannell, 125
Storrs V. Wenbow, 1569
Story r. Dunlop, 15 13

— V. Johnson, 705, 707

— V. Lord Windsor, 1760, 1761

— V. Official Manager National Ins.

Co., 497

— t>. Tonge, 79
Stowell, Lord t). Cole, 1584
Stracey v. Blake, 682
Strachan v. Devlin, 1029

— V. Murney, 374, 755, 1029

— V. Thomas, 825
Straker v. Ewing, 1493

— V. Graham, 688
Strange v. Collins, 474, 475, 477

— V. Harris, 1809
Strangeways, ex parte, 145
Stratford v. Bosworth, 1490 .
Strathmore v. Bowes, 1660
Strathy v. Crooks, 918

Stratton v. Davidson, 117, 1752, 1763
Street v. Anderton, 1761

— V. Dolon, 1 1 17

— V. Fogul, 1302

— V. Hofjeboom, 332

— V. Kent, 1298

— t>. Lambton, 1298

— V. Simcoe, 1298
Strickland v. Strickland, 208, 341

— Doe, V. Strickland, 684
Stringer v. Harper, 1532
Strong, Re, 1408

— V. Lewis, 1012

— V. Moore, 343, 348, 734

— V. Strong, 224, 1369, 1370, 1629
Stronghill v. Gulliver, 727

Stroud V. Deacon, 414
Strudt V. Roberts, 682
Strudwick v, I'argiter, 132
Stuart, He, 723, 1479

— V. Ancell, 1706

— V. Burrowes, 1583

— V. Lord Bute, 451

— V. Moore, 1387, 1389, 1650

— V. Toulmin, 1006
Stuart's Case, Sir Simeon, 1006
Stubbs V. Sargon, 77, 1574, 1613
Studholme v. Hodgson, 1530, 1532
Stupart r. Arrowsmith, 192, 252
Sturch V. Young, 1621, 1759
Sturdey V. Lowrey, 1 1 20

Sturge, Re, 1399

— V. Dimsdale, 1627

— V. Eastern Union R. W. Co., 1679

— V. Starr, 203
Sturgeon v. Hooker, 16 10, 1624
Sturgis V. Champneys, 72

— V, Corp, 79

Sturz V. De la Rue, 1669, 1696
Styles V. Shipton, 485
Suffield, Lord, v. Bond, 471
Suffolk, Earl of v. Howard, 1474
Sug^en V. Hull, 649
Suissee v. Lord Lowther, 1 565
Sullivan v. bevan, 1528

— V. Jacob, 1575

— Sullivan, 55, 1506
Summer v. Partridge, 1233
Summerfield v. Prichard, 1859
Summersett v. Jarvis, 47
Sumner V. Ridgway, 1551
Sunley z/. McCrae, 1513
Sussex, Earl of, v. Temple, 551

— Peerage Case, 548
Sutherland v. De Virenne, 163, 164

— V. Dickson, 130, 1284

— V. Rogers, 747

— V. Ross, 160

— V. Young, 75
Sutton V. Doggett, 1542, 1543

— V. Jones, 944, 1766
V. Mashiter, 1635

— V. Rees, 1779

— V. Sharp, 831, 832

— V. Stone, 219, 220, 655, 1028, 1058

— Harbour Co. v. Hitchens, 485
Swabey v. Sutton, 449

Swaby V. Dickson, 1781, 1785
Swain v. Hall, 686
Swaine v. G. N. R. W. Co., 1676
Swale z/. Milner, 1528

— V. Swale, 492, 1758
Swallow z/. Binns, 152, 163, 164, 1866

— V. Day, 474
Swan V. Swan, 234

— V. Marmora Iron Works, 1833
Swan's Settlement, Re, 81

Swanzy v. Swanzy, 23, 24, 2$, 294
Swartswalter's Accounts, 960, 962
Swayne v. Swayne, 1718
Sweeper V. Randal, 1250
Sweet V. Meredith, 1372

— V. Southcote, 404 ,
Swift, ex parte, 1395

— i». Grazebrooic, 64, 1564, 1565

— V. Swift, 1447, 1533, 187s
Swinarton v. Swinarton, 145 1
Swinborne v. Nelson, 250, 449, 450
Swinfen v. Swinfen, 608, 678, 1474
Swinnerton v. Marquis of Stafford, 686, 693
Switzer v. Ingham, 639

Symburner v. Clarke, 439
Symes v. Glynn, 193, 205, 209
Symonds v, Cudmore, 1238

— V. Duchess of Cumberland, 1728

— V. Wilks, 79
Syms' Case, 102

Sykes v. O. & B. R. W. Co., 160

— V. Hastings, 944, 1766

i
1 i

Si

TABLE OF CASES.

m

Tabbemor v. Tabbernor, 255, 256
Tabor v. Grover, 1036
Tabuteau v. Warburton, 1621
Tagg V. S. Devon, R, W. Co., i860
Tail V. Jenkins, 1758

— V. Lord Northwick, 1154
Talbot V. Earl of Shrewsbury, 1390,

1393

— V. Kemshead, 439

— V. Lord Radnor, 318

— V. Marshfield, 1809, 1846, 1857,

1859

— V. Staniforth, 1475, 1639

— Earl V. Hope Scott, 1655, 1756,

1758, 1760
Taliferro v. Miror, 971
Talleyrand v. Boulanger, 42
Tampier v. Ingle, 334, 1621
Tarn worth. Lord, t. Lord Ferrars, 1660,

1700
Taner v. Ivie, 57,64 1477
Tanner w. Carter, 1575, 1576, 1624,

— V. Dancey, 1527

— V. Heard, 1483

— V. Radford, 1164
Tanfield v, Davenport, 73

— V. Irvine 117
Tanswell v. Scurragh, 569
Taprell v. Taylor, 38
Tappen v. Norman 57

Tarbuck t». Tarbuck, 256, 626, 1607

— V. Woodcock, 457
Tardifi'w. Shrugan, 1009
Tardrew v. Howell, 1472, 1543
Tarleton v. Dyer, 336

— V. Hornby, 49
Tarratt v. Lloyd, 162, 163, 164
Tasburgh, /ie, 75

— V. Echlin, 996

Tasker v. Small, 189, 1024, 1066, 1574,

1576
Tassell v. Smith, 172, 1870
Tate, A'e, 1206
Tatham v. Parker, 661, 662

— ». Wright, 681, 682, 683, 699,

1265, 1474
Tavaux 0. Ball, 976
Tayler, /!e, 1399
Taylor, ex parte, 1 321

— Re, 69, 1875, '876, 1882

— V. Allen, 209, 1757

— V. Ausley, 126

— V. Bailey, 482

— V. Baker, 857, 1209, 1475,

1482

— V. Barclay, 14, 386

— V. Bogg, 1535 . ^ '

Taylor v. Bouchier, 35 • , v <

— 0. Brown, 670

— V. Cole, 1332 . I . . i

— V. Craven, 853 ' .

— V. Cuthbert, 1121 '

— v. Emerson, 988

— V. Foster, 411, 1315

— V. Gerst, 830

— V. Granville, 1513

. — V. Haggarth, 951, 952

— V. Hall, i486

— z/, Haylin, 303

— V. Heming, 1840

— V. Midland R. W, Co., 1565

— v. MilncM 426

— V. Obee, 474

— V. Oldham, 55, 1767

— V. Phillips, 58

— V. Popham, 1507, 1559, 1567

— V. Portington, 1688

— V. Rundell, 451, 1847, 1848

— V. Salmon, 199, 1726, i860

— V. Shaw, 333

— V. Sheppard, 1638

— V. Shoff, 604

— V. Southgate, 4c 1560

— V. Stead, 216, 1071

— V. Stibbert, 1209, I2i8

— V, Tabrum, 1525

— V. Taylor, 146, 814, 815, 1452,

1601, 172:

— V. Walker, 1039

— V. Ward, 1087

— V. Waters, 1 132. 1830

— V. Webb, 688
Teague v. Dendy, 975

— w. Richolds, 1634

Tebbs V. Carpenter, 830, 831, 835, 839,

945. 1 5 19. 1524
Tebbutt V. Potter, 489
Teed v. Carruthers, 438, 1 031 • • ■
Teeter v. St. John, 856, 1 1 12
Teeford v. Ruskin, 452
Tempest z/. Ord, 1786
Temple v. Bank of England, 1691

— V. Brown, 11 66, 1243
Templeman, Re, 363

— V. Warrington, 1629
Templer z/. Sweet, 1159 ^
Tench w. Cheese, 455, 1719
Tenham, Lord, v. Herbert, 1709
Tennantv. Wilsmore, 476
Terrell v. Higgs, 1649 . •

— V. Souch, 1728
Terrywest v. Featherby, 1633
Terson z/. Hawkins, 1 1 54

Tew V. Earl of Winterton, 796, 799, 813,

816
Texiere v. Da Costa, 1763
Teynham, Lady, v. Lemiard, 1390

Thl
ThJ
ThjT

I'hel
Tliel
Thej
Thil

Thiol
Thirf
This)
Thoif

rhomi
Thomi

TABLE OF CASES.

^ii

5. 839.

?9. 813.

Thackeray v. Parker, 711

Tharp, AV, 1806

Tharpe z*. Stallwood, 690 '

— V. Tharpe, 1775
Thatcher v. Lamliert, 473

The Third Burnt Tree Buildinq; Society,

AV, 1629
Tiierry ;'. Henderson, 492
Thewlis v. Farrar, 68, 1586
Theyer v. Tombs, 1493
Thibodo n. Collar, 1031

— V. Scobell, 1659
Thicknesse v. Acton, 146
Third v. Goodier, 688
Thistlethwaite v. Gamier, 1868, 1870
Thomas v, Bernard, 331, 339, 520

— V. Coper, 820"

— V. V ross, 1 718

— V. Davies, 1768

— V. Dunning, 171, 184, 232, 1078

— V, Earl of Jersey, 352

— V. Hall, 648

— V. Hohler, 510

— z/. Jones, 1542, 1543, 1832

— V. Lloyd, 1493

— V. McCrae, 1152

— V. Oakley, 1655, 1656

— V. Phillips, 1493

— V. Powell, 1370

— V. Puddlesbury, 1484

— V. Rawlings, 596, 597

— - V, Kees, 277, 284

— V, Roberts, 1388

— V. Thomas, 127, 1825

— V. Torrance, 214, 1787

— V. Townsend, 1497
Thomason v. Moses, 1500, 1531
Thompson, ex parte, 311

— Rf : Biggar v. Dickson, 1 14J

— v. Baskerville, 172, 1054

— V. Bmnskill, 1359

— V. Buchanan, 497, 498

— V. Butler, 99 • '

— V. Clive, 1504, 1530, 1532

— V. Cooper, 897, Sgq, 1528

— V. Crocker, 1657

— V. Derham, 1649

— V. Donaldson, 1255 '

— V. Drew, S05, 891

— V. Falk, 41 2J 1856 '
- V. Freeman, 984

— V. Geaiy, 1703 . ■ . .<

— V. Grant, 898 > ■ ' • '

— V. Griffin, 1394, 1395 i'

— V. Hind, 499, 568 ■ '

— V. Jones, 357 ' • iv'

— V. Judge, 330 ' ■ .' r.r'

— V. Kendall, 1057 . *.

— V. Knights, 489 . '•

— V. Lambe, 789, 846

— V. Luke, 864 ..* 'V'.

12 A

1136

Thompson v. Macaulay, 1043 ' '

— V. McDonald, 973

— ». Miles, 1220, 1244

— V. Millikfn, 1146, 1224, 1359

— V. Powles, 15

— 0. Selhy, 1768

— V. Smith, 1680, 1737

— V. Stanhope, 1672

— V. Thompson, 33, 483, 734, 896

— V. Tompkins, 1718, 1818

— V. Towne, 911

— V. University of London, 3S8. .123,

1886 • . .

— r. Walker, 866 ' " " ' '^•-

— V. Watts, 1234 ' :

— V. Webster. 534, 1493

— ('. Wilkes, 1644
Thorby «. 'Yeats, 1520
Tliornborough v. Baker, 989, 1036
Thorndike ?.'. Hunt, 1719, 1827 ' '■
Thorne /'. Chute, 1360 '(f I
Tliorneycroft i'. Crockett, 840, 1052 ••' '
Thornhill v. Coplestone, 1866

— V. Evans, 819, 821 • '

— V. Manning, 624, 636, II33,

— V. Millbank, 1833

— V. Thornhill, 1151, 1785
Thornton v. Court, 808

— V. McKewan, 1649 ' ''• • ;?
TJiorpe, /?(', 1 21 5 \ '

— V. Freer, 1352, 1498

— V. Macauley, 398, 418, 429, 432,

449

Thurgood v. Cane, 379
'j'hiirlow. Lord ,his case, 1159
Timrtell v. Beaumont, 690, 691 '

i'hwaites v. Sainsbury, 696 ■ '

Tibbits V. Phillips, 1762
Ticknor i\ Smith, 1520 ' :

Tidd V. Clare, 424

— V. Lister, 72, 83, 95, 99 -:
Tidwell V. Ariel, 1500
ridswell V. Bowyer, 474
Tilfany v. Thomson, 213 '

— V. Tiffany, 218
Tilsley, e'^/^fnV, 1156
Tillotson v. Hargrave, 59, 129, 764
Tillstone, Re, 1824, 1828
Tilly V. Wharton, 678
Tindal v. Cobham, 1814

— Doer/. Roe, 689
Tingrey *'. Brown, 1249
Tinkz'. Rundle, 1778 ^' • '"'••'■
Tinkler v. Rowland, 684

Tipping V. Clarke, 450, 452, 453 ' • ■ '

— V. llawes, 1 1 30

— V. Power, 238, 438, 893, 913, 1044,

1045, 1046, 1479, 1527, 1818
Tippins V. Coates, 597
Tisdale v. Shortiss, 1498 •►:

Titterton v. Osborne, 256 • • ^

•*,i7<, i

i

'■!■» :

■t\ "

cu

TABLE OF CACES.

Tobin V. The Queen, 1729
Tod V. Tod, 1 56 1 ,

Todd, /ee, 76

— V. Emby, 690 «

— V. Gte, 418

— V. Haggart, 1 218

— V, Werry, 1305, 1312

— V. Wilson, 935
Toder v. Sansam, 608
Toft V. Stephenson, 1044
Toldervy ». Colt, 1756, 1760 '
Toller t>. Carteret, 1651
Tolson V. Jervis, 633
Tombes v. Ellers, 1404
Tomkin v. Lethbridge, 426, 480
Tomkins v. Harrison, 586, 589, 591

— V. Holmes, 74

— V. Ladbrokfe, 84

— V. Lane, 1831
Tomlin v, Tomlin, 194, 542
Tomlins v. Palk, 637, 640
Tomlinson, /fe, 1876

— V. Harrison, 1738, 1 742

— V. Hill, 1206, 1357

— V. Lymer, 414 ,;.::;:

— V. Swinnerton, 482
Tompkins v. Ash by, 1288 '
Tompsett v. Wickens, 1354
Tompson v. Knights, 1469
Tomson, v. Judge, i6oo
Tonkin v. Lethbridge, 1600, 1601
Tooke V. Beaufort, 1287

— * V. Bishop of Ely, 1136, 1137

— V. Hartley, 1135
Toosey v. Burchell, 236
Tootal V. Spicer, 1542

Tooth V. Dean & Chapter of Canterbury,
169, 189, 219, 414

Topping V. Searson, 1879

Torbock v. Laing, 685

Toronto Savings' Bank v. C. L. Ass. Co.,
161

Torr V. Torr, 379

Torrance v. Crooks, 475

— ?;. Winterbottom, 211, 1055
Totten V. Mclntyre, 472

— V. Watson, 820, 1107, iiii
Tottenham v. Emmet, 215, 1475, 1481
Toulmin v. Copland, 1601, 1816

— V. Hedley, 683

— V, Reid, 310
Tourton v. Flower, 241
Tovey v. Lindsay, 1443
Towers v. Scott, 498
Townley «. Bed well, 1569

— V. Deare, 675
Townsend, J?e, 1479

— V. Camperdowne, 1221, 1 247,

1248, 1497, 1504

— V. Elliott, 1305
■^ V. Windtiam, 911.

Townsliendr. Champemowne, 239

— Ives, 555
Towsey v. Groves, 57, 60
Tracy v. Lady Hereford, 8n

— V. Tracy, 1652
Transatlantic Co. v. Pietroni, 28
Trant, /ie, 1765

Travers v. Townsend, 1525
Travis v. Challenor, 551

— V. Millie, 159, 268
Treadwell, v. Morris, 1647
Trefusis v. Clinton, I l6l

— V. Cotton, 136

— V. Lord Clinton, 1355
Trelawney v. Thomas, 695
Tremaine v. Tremaine, 481
Trent v. Hanning, 1 2 19

Trenton Banking Co. v. Woodruff, 978
Trevena v. Juliff, 1404, 1405
Treves v. Townshend, 832
Trezevant v. Broughton, 91, 1584

— V. Eraser, 861, 863, 878
TroUope v. Routledge, 1538
Troughton v. Binkes, 267, 1079

— V. Getley, 251

— V. Troughton, 911
Troup V. Ricardo, 49
Troward v. Attwood, 485, 489
Trowell v. Castle, 12S9
Trilly v. Keefe, 379

Trim v. Baker, 433
Trimleston, v, Hamil, 1484

— Lord, V. Kemmis, 514
Triplett's Executors v. Jameson, 971
Trul)ody v. Brain, 695

Truham, Lord, v. Child, 992

Truman v. Wearing, 1024

Trust and Loan Co. v. McDonoU, 1063

— V. Reynolds, 11 39

Trustees of Birkenhead Docks v. Laird,

625, 1573
Trustees of Maria Hemphill, 965
Tryu. Try, 1778
Tubbs, J?e, 82, 86
Tuck V. Silver, 1668, 1694
Tucker v. Sanger, 670, 671

— V. Tucker, 1472

— V. Wilkins, 1590
Tuckey v. FJower, 1332
Tuckley v. Thompson, 238, 1479
Tuder v. Morris, 173, 1075
Tudway v. Jones, 48, 323, 333
Tugwell w. Hooper, 411, 1857
Tulk V. Moxhay, 168 1

Tullett V. Armstrong, 1620
Tullit v. Tullit, 1402
Tulloch V. Hartley, 714
Turley V. Meyers, 663
Turnbull, ^^, S7i .,

— «. Symonds, 1042 •
Turner, Sir £., Cas«; of, IQO, loi

Tut

Turn
Turn
Turt
Turq

Turw
Tuth

Tuttc
Twee
Twig|

Twist
Twist
Tylde
Tylee

Tyler

Tyndc
Tynhj
Tynte
Tyron
Tyron

Tyson

Uhthc
Umpli

Undei

Unite(
Unive
Unive

TABLE OF CASES.

CUl

Turner V. Blamire, 1662

— V. Burleigh, 561

— V. Cole, 1594, 1706

— V. Cox, 913

— V. Dorgan, 1721

— V. Doubleday, 277

— V. Frampton, 1531

— V. Hind, 181

— V. Letts, 65

— V. Major, 1688

— V. Morpdn, 706

— V. MuUmeux, 151 1

— V. Robinson, 50, 122, 277

— V. Sowden, 127, 360

— V. Spoone., 1664

— V. Turner, 59, 63, 87, 579, 608,

801, 821, 830, 870, 876,
1542, 1569, 1623, 1778

— V. Wright, 1647, 1660, 1679
Turney z*. Bayley, 1851, 1852
Turnstall v. Boothby, 1764
Turton v. Turton, 1422
Turquhand v. Dawson, 689, 695

— V. Knight, 411
Turwin v, Gibson, 915
Tuthillv. Rogers, 1324

— V. Scott, 1472
Tutton V. Andrews, 682
Tweddell v. Tweddell, 1639
Twiggw. Fifield, 1355

— V. Potts, 683

Twisden v. Locke, 1239 *

Twistleton v. Thelwell, 1526
Tylden, Re, 1833
Tylee v. Tylee, 1765, 1773

— V. Webb, 1044, 1061
Tyler v. Bell, 207, 242, 430

— V. Drayton, 414, 1837, 1845, 1851

— V. Thomas, 235
Tyndale ?/. W^arre, 1 151, 1238
Tynham v. Tyler, 683

Tynte v. Hodge, 22, 27, 293, 1601

Tyron v. Peer, 218

Tyrone, Earl of, v. Marquis of Waterford,

1872
Tyson v. Cox, 1562

— V. Faerclough, 1 761

u

Uhthoft V. Lord Huntingfield, 442, 545
Umpleby V. Waveney Valley R. W. Co.,

1590. 1591. 1592
Underwood v. Frost, 1 765

— V. Hithcox, 1500

— V. Jee, 491

United States of America v. Privleau, 13
University College v. Foxcroft, 662, 1592
Universities of Oxford und Cambridge v.
Richardson, 1667

Unsworth, Re, 1481

— V. Woodcocke, 1837, 18.SI '
Upper Canada Mining Co. v. Attorney-

Geieral, 251, 500
Uppertonv. Harrison, 1479
Uppington v. Bu len, 1062
Upton V. Lord F jrrers, 799

— V. Sowten, or Lowten, 459

— V. Vanner, 252

— Warren, i?f, 1886, 1 888
Urev. Lord, 158', 1589
Urmston v. Singlt;ton, 642
Usborne v. Usborne, 1653
Usher, ^Jf/ar/^, 916
Usticke V. Peters, 1873
Uttersonu. Mair, 267, 383, 1757
Uxbridge, Lord, t. Stavelanu, 294, 311,

312

Vacher v. Cocks, 1253

Vaillant v. Dodemead, 410, 411, 597

Vaise v. Delaval, 658

Vale V. Bayle, 695

— V. Davenport, 1374

— V. Merideth, 436, 438
Valentine w. Valentine, 957, 959
Vallence v. Weldon, 869

Van V. Price, 667

Vance v. Garry, 976

Vancouver v. Bliss, 531, I219, 1470, 1498

Vanderheyden v. Vanderheyden, 957

Vane ». Cobbold, 684

— 0. Cockermouth, R.W. Co. 1676

— V. Lord Barnard, 1660
Vankleek v. Tyrrell, 1072
Vann v. Barnett, 1769, 1823
VanNorman v. Beaupre, 1356
Vanrenen v. Piffard, 732, 736
VanSanlau, ex parte, 1729

— V. Moore, 19, 196, 197, 456

— V. Rose, 1701, 171 1
Vansittart v. Vansittart, 1499
Vanston v. Thompson, 838, 929
Van Wagner V. Findlay, 1015

— V. Terryberry, 1504
Van Winkle v. Chaplin, 89
Van Wormer v. Harding, 1504
Vanzeller V. Vanzeller, 1737, 1742
Varteg Chapel, Re, 1627

Vaughan v. Fitzgerald, 387, 553, 1472

— V. Lloyd, 765

— V. Thurston, 1522

— V. Vanderstegen, 149

— V. Vaughan, 1797
Veitch V. Irving, 58
Venables v. Morris, 11 75
Venning v. Lloyd, 494, 1650, 1815
Vent V. Pacey, 405, 406, 505
Vere v. Glynn, 319

m

TABI-K OF CASE8.

Vem r v. Winstanley, 994, 998 <• .;
Veinon v. Curtis, 899

— V. Ilunkey, 692

— V. Thclluson, 1633

— V. Vernon, 300

Vessey v. Ehvood, 1355 c , .

Vestris v. Hooper, 512

Vestry and Wardens 7>. Barksdale, 977

Viall, AV, 1479, 1660

Vice ('. Thomas, 390

Vickers v. Bell, 2c8

— 0. Co well, 1068, 1072, 1073
Vidler v, Parrott, 1825

Vigers v. Lord Audley, 1725
Vigrass v. Binfield, 181 1
Villard v. Robert, 975
Villiers i\ Villiers, 1345
Vincent v. Godson, 1633

— *.'. Going, 1371

— V. Hunter, 22, 293

Viney y. Chaplin, 641, 1509, 1578

Vint V. Padget, 172

Viscount Barringtou 0. Liddell, 1871

Viscountess Cranborne v. Dalmahoy, 91

Viscountess Hr^ywarden v. Dunlop, 1614

Volans V. Carr, 1399

Voorhees v. Stoothorf, 978

Vorley ?'. Jerram, 564 , '

— V. Richardson, 1866
Vorweig z/. Barweiss, 317
Vowles V. Young, 1333, 1720

w

Waddell w. McColl, 828, 847, 857, 11 18

— V. Smyth, 767

Waddilove w. Taylor, 1719, 1832, 1879
Waddle v. McGinty, 579
Wade, Re', 1386, 1399, 1514

— V. Hopkinson, 1405

— V. Stanley, 257

— V. Ward, 1479

Wadeerz/. East India Co., 113, 416
Wadeson v. Rudge, 193, 205
Wadham v. Rigg, 732
Wadsworth v. Queen of Spain, III
Wafer v. Mocato, 1687
Wagner v. Mears, 39
W^aine v. Crocker, 396
Wainman v. Bowker, 808
Wainwright v. Sevvell, 488, 1485
Wait V. Scott, 1644
Wake V. Parker, 87, 88 ,

W^akefield v. Childs, 717

— V. Duke of Buccleugh, 1694
Wakeham v. Lome, 131
Wakelin v. Walthal, 532
Wakeman v. Duchess of Rutland, 1365
Walburn v. Ingilby, 159, 264, 1563, 1564,

1847, 1848

Walcot V. Walker, 1670 1

Waldo v. Cayley, 1562. 1565, 1568
AValdron n. Frances, 1543
Walford, ats ; 157,234

— /', Salmond, 252
Walker, /vV, 84, 86, 1405, 1628

— r. Alley, 1674

— r, Armstrong, 331

— V. Christian, 1738, 1748

— I'. City of Toronto, 420, 1692

— 7'. Drury, 82

— V. Easterby, 22

— V, Fletcher, 315

— V. Jeffries, 245 , .

— i\ Kennedy, 184I

— V. Matthews, 1127

— V. Micklettiwaite, 664, 1 631, 1649,

1729

— V. Moore, 1190, 1209

— 7'. Needham, 684

— ('. Preswick, 1009

— ('. Simpson, 181O , „ . •

— V. Smalwood, 235 . ,

— V. Smith, 537

— T>. Symonds, 224, 1574

— V. Taylor, 59

— V. Tyler, 144 •

— V. Wild, 1793, 1794, 1799

— V. Wildman, 409

— v. Wingfield, 861

— V. Woodward, 542, 763, 835
Walkter's Estate, 963

Wall V. Bushby, 59, 129
Wallace v. Acre, 648

— V. Auldjo, 72, 84, 85

— V. Ford, 326, 489

— 7A Moore, 718
Wallbridge v. Cochrane, 144 ^
Waller 7\ Hanger, 9

— V. Horsface, 1345 'i

— /.'. Pedlington, 497
Walley v. Walley, 116

Wallis V. Duke of Portland, 398 .

— i\ Hodson, 53 •

— V. Hodgson, 543, 556

— V. Morris, 233 , -• • 1

— I'. Sard, 1355 !

— V. Thomas, 637, 640

— V. Wal'.is, 488, 505, i486

— V. Willis, 1694
Wallop o. Brown, 1726

— V. Warburton, 38
Walmseley v. Bull, 735, 770, 1397

— TA Child, 314
Walmsley V. Foxhall, 1569

— V. Walmsley, 846
Walond «. Walond, 1157

Walrond v. Walrond, 1499 >

Walsh V. De Blaquiere, 475, 728

— V. Trevannion, 133

— V. Walsh, 139s, 1461, 1833

i

TABLE OF CASKS.

cv

58

692

31. 1649,

835

|97

Walsh, Doe, v, Langficld, 682
Walsham 0, Stninton, 278, 406, 411,

1857
Walsingham, l^orcl v. (loodricke, 407,

413, 596, 1856
Walter ?•. Maunde, 1538

— V. Saunders, loo
Walters T. Patey, i486

— V. Pyman, 873

— V. Upton, 1813
Wallham v. Lord Broughton, 1467
Walton V. Aveiy, 973

— V. Broadbent, 481 1

— V. Ilobbs, 532

— V. Johnston, 1632
Walworth v. Tlolt, 198, 20i, 274
Walwyn v. Coults, 1079
Warburton V. Hill, 1716, 1718

— V. London & Blackwall R. W, Co.

427, 1702
Ward, Re, 1627 •

— AV, Simmons *?. Rose, 1772

— V. Audiand, 1018

— V. Bassett, 181

— V. Cooke, 285, 1155, 1 160

— V. Duke of Northumberland, 280

— V. Garnone, 1344, 1345

— V. McKinlay, 1479, 1529

— V. Meath, 148

— V. ishakeshaft, 222, 439, 1587

— V. St. Paul, 1390

— V. Swift, 1776, 1778, 1791

— V. Ward, 60, 257, 503, 512

— V. Yates, 82, 86, 1537
Warde v. Dickson, 520, 1352

— V. Dixon, 1220

— V, Trathen, 1352

— 17. Warde, 1856, 1876

Warden &c. of Dover v. London &c. R.

W. Co. 1665
Warden and Minor Canons of St. Paul's z*.

Kettle, 674

— V. Morris, 681, 682
Wardle v. Carter, 635, 1239

— V. Claxton, 428, 1699
Wardman v. Bellhouse, 684
Ware v. Cumberlege, 8

— V. (irand Junction Waterworks Co.

1637'

— r. Horwood, 1638

— V. Watson, 1 151, 1157 '
Waring V. Hubbs, 439

Warner v. Armstrong, 1468, 1623

— V. Baynes, 706

— V. Wainford, 892

— V. Warner, 88
Warren v. Buck, 87

— V. Lord Grenville, 1333

— V. Postlethwaite, 1538 . ; t

— V. Richardson, 1244

— V. Swinburne, 569 . '

Warring v. Manchester, Sheffield & Lin-

conshire R. W, Co., 1620
Warrington, ex parte, 820
Warter v. Anderson, 1520
Wartnaby v. Wartnaby, 69, 70
Warwick Charities, Re, 1887, f907

— V. Bruce, 690

— V. Cox, 489

— Earl of V. Duke of Beaufort, 502
Wasney v. Tempest, 414, 1855
Wason V, Carpenter, 1659

Wastall V. Leslie, 1 586
Wastell V. Leslie, 1827
Waterhouse v. I>ee, 606

— V. Wilkinson, 1 153
Waters v. Earl of Shaftsbury, 1857

— V. Shade, 604

- V. Taylor, 274, 1726, 1 762

— V. Waters, 678, 681
Waterton v. Croft, 433

Watford Burial Board, AV, 1883, 1905
Watkins v. Brent, 207, 1760, 1761

— V. Bush, 429, 430
Watkyns v. Watkyns, 86
Watson, Re, 1833

— V. Birch, 1157, 1158

— V, Cleaver, 552

— V, Dennis, 97

— V. Duke of Northumberland, 702,

703, 708, 709

— w. Ham, 1596, 1619 ■ ^

— V. Henderson, 638

— V. Life, 329

— V. Loveday, 1586

— V. Marshall, 77, 80, 81, 86

— V. Master, &c., of Hemsworth

Hospital, 1245

— V. McCarthy, 1498

— V. Moore, 856, 871, 1383

- V. Munroe, 678, 990

— V. Reeve, 688

— V. Waltham, 1049

— V. Whitmore, 684
Watt V. Foster, 1643

— V. Parker, 1362
Watteau v. Billam, 23, 24, 293
Walters v. Jones, 173

Watts V. Hyde, 309, 331, 1031

— V. Jeflfreyes, 1716

— V. Kelly, 21, 293

— V. Lord Eglinton, 331, 423, 430,

1061

— V. Martin, 1159, 1 160

— V. Symes, 172, 1576

— V. Thomas, 102 ' '

— V. Watts, 1591 • , . -
Waugh, Re, 88

Waukford v. Waukford, 899
Way V. Foy, 1 565
Wayne V. Hanham, 1049, 1050
Weak v. Calloway, 691

:\:W

i*'

CVl

TABLE OF CASES.

Weale v. West Middlesex Water Works,

198
Wearing w. Ellis, 49
Weatherhend v. Blackburn, 416, 420
Weatherly v. Ross, 1664
Webb V. ^yng, 625

— V. Claverden 699, 1472,, 1473, 1474

— V. England, 260, 382, 1484

— V. Fox, 47

— V. Lymington, 1335

— V. Pluminer, 1684

— V. Rorke, 807, 840

— V. Rose, 1671

— V. Salmon, 356

-- V. Shaftesbury, Earl or Lord, 937,
950, 1380, 1402, 1807

— V. Ward, 47

— 7'. Wardle, 1580, 1600

— V. Webb, 979, 1515
Webber v. Hunt, 630, 842

— V. O'Neil, 1042

— V. Webber, 1825
Webster v. Dillon, 1681, 1685

— V. S. Eastern R. W. Co., 1654

— V, Taylor, 664

— V. Threlfall, 448

— V. Webster, 1673
Weddall v. Nixon, 1497
Wedderburn v. Wedderburn, 75, 494, 515,

831, 948
Wedderburne u. Wedderburne, 1 631, 1636,
1652

— V. Llewellyn, 1616, 1622, 1623
Wedgwood v. Adams, 620, 1 501, 1527

— V. Bignall, 1531

Wedmore v. Mayor of Bristol, 676, 1676
Weeding v. Weeding, 1834
Weeks v. Cole, 25

— V. Gore, 898

— V. Spark, 1339
Weever v. Rockport, jRe, 1399
Weightman v. Powell, 325, 339, 375
Weike v. Ferrie, 1498

Weir V. Mathieson, 28, 475, 580

— V. Tailor, 516, 1 113

— V. Weir, 605, 1436, 1457
Weiss V. Dill, 943

Wekett V. Raby, 1562
Welch V. Knott, 1673
Welchman, 7?e, 8t
Weld V. Bonham, 195
Weldon v. Templeton, 127
Welford v. Stainthorpe, 1855
Wellbeloved v. Jones, 107, 108
Wellesley's Case, 667
Wellesley v. Duke of Beanfort, 1384, 1386,
1388

— V. Mornington, 34

— V. Wellesley, 32, 34, 38, 423, 430,

431, loos, 1006, 1384, 1385,
1388, 1 573. 1660

Wellesley Lord, v. Earl of Mornington,

1701, 1710, 1711, 1717
Wells V. Gibbs, 1716

— V. Malbon, 98, 1515
-- V. Wood, 474, 477

Welts ». Gibbs, 1716

Wenman, Lord, v. Osbaldiston, 1 720

Wentworth v. Lloyd, 596

Wesket v. Carnevali, 1700

West V. Davis, 5

— V. Jones, 1493

— V. Laing, 732

— V. Reid, 1017

— V. Smith, 1630

— V. Swinburne, 492, 1635

— V, Vincent, 1161
Westacott v. Cockerline, 338, 1204
Westbrook v. Attorney-Genf ral, 394
Westby v. Westby, 56, 62
Westcott z/. Culliford, 1500

Western Assurance Co, v. Capreol, 1 1 20
Westfaling w. Westfaling, 1235
West Mam Charities, /ie, 1905
Westley z/. Williamson, 1471, 1525
Westmeath v. Westmeath, 1438, 1447,

1448, 1449
West Midland Railway Co. v. Nixon, 189
Westminster, &c., Co. v. Clayton, 1845,

1846
Weston V. Bowes, 217

— V. Clowes, 1543

— V. Keighley, 167
Westover w. Chapman, 832, 1511
West Retford Church Lands, Jie, 1885,

1886
Wetenhall v. Dennis, or Davies, 1527,

1543
Wetherell v. Collins, 215, 1069, 1076,

1476
Wetherill v. Garbutt, 1022
Weymouth v. Boyer, 178, 307, 1502

— V. Lambert, 357
Whale V. Griffiths, 466
Whaley v. Brancker, 1655, 1694

— V. Dawson, 280, 710

— V. Norton, 286, 537

Whalley v. Lord Suffield, 489, 1468, 1469

— V. Ramadge, 1509

— V. Whalley, 1239, 1879
Wham V. Love.. 975

Whan V. Lucas, 216, 1051

Wharam v. Broughton, 150, 655, 661,662,

1594
Wharton v. May, 1650

— V. Wharton, 453
Whateley v. Whateley, 1258
Whatton v. Cradock, 801, 822
Wheaton v. Graham, 148 1
Wheeler, /ff, 1479

— V. Malins, 51, 52, 512, 1706
Wheelhouse v. Calvert, 493

TABLE OF CASES.

CVU

nington,
1717

1720

1204
. 394

:ol, 1 1 20

525
i. 1447.

Vixon, 189
)n, 1845,

I

e, 1885,

i, 1527,
, 1076,

1502

468, 1469

661,662,

ro6

Whicherley v. Whicherley, 788
Whicker V. Iliimu, 1472, 1542
Whishall v. Short, 1 136
Whistler v. Aylward, 642

— V, Newman, 1521

— V. Webb, 212, 1076
Whitnicer v. Leach, 635

— V. Newman, 671

— V. Wright, 903, 1633
Whitbread, ex parte, 1005

— V. Smith, 810, 811
Whitcuurch 0. Bevis, 297

— V. Golding, 314
Whitcombw. Minchin, 1585
White V. . 608

— V. Barker, 452

— V. Barton, 1810

V. Baskerville, 425

— V. Baugh, 1787, 1788

— V. Beasley, 1094

— V. Bishop of Peterborough, 1480,

1529. 1753. 1764

— V. Church, 145

— V. Cohen, 1664

— V. Courtney, 747, 855, 856

— V. Cummins, ;ji,,

— V. Foljambe, 1243, 1247

— V. Fus ' I', 1574

— V. Godbold, 473, 478

— V. Grane, 1395

• — V. Greathead, 25

— 'V. Gudgeon, 1479

— V. Haighl, 240, 107 1

— V. Hall, 119

— V. Hayward, 662, 663

— V. Howard, 426, 480

— V. Hussy, 673

— V. Jackson, 1523

— V. James, 1783

— V, Lisle, 694, 696, 697, 699, 1467,

1563. 1570

— V. Smale, 266, 1760, 1783

— V. Steinwacks, 1704

— V. Wakefield, 1009, 1017

— V. White, 22

— •. Williams, 452

— V. Wilson, 537, 681, 699, 1154,

1158, 1472, 1474
Whitebread v. Gurney, 413
Whitehead v. B. & L. H. R.W. Co., 586

— V. Bennett, 1737, 1785

— V. Cunliffe, 479

— V. Lynes, 1729, 1790

— V. North, 640

— V. Wynne, 1320
Whitehousev. Hemmant, 684

— V. Partridge, 1736, 1739, 1745
Whitelegg v. Whitelegg, 1696
Whitemarsh v. Ford, 127
Whitfield, ex parte, 1392, 1402

— V. Fausset, 1344

Whitfield V. Parfitl, 994

— V. Prickett, 1 7 16

— V. Roberts, 624
Whitney v. Rush, 435
Whitlaw t». Halliday, 1071
Whitley v. Martin, 540
Whitlockz/. Asher, 1328
Whitmarsh w. Robertson, 99, 151 1
Whitmore v. Francis, 311

— V. Oxborrow, 51, 512

— V. Ryan, 358, 3W, 360

— V. Turquand, 1808, 1820
Whitney v. Hickling, Ib74

Whiton V. Jennings, 1668, 1669, 1696,

1698
Whittaker v. Howe, 1690

— V, Marlar, 64, 65
Whittem v. Sawyer, 85
Whittemore v. Ridout, 1C49
Whittingham's Trusts, Jie, 70, 98

— V. Wooler, 1669, 1670, 1707
Whittington v. Edwards, 197, 491, 500,

1731

— V. Gooding, loj, 209

— V, Sadler, 167
Whittle V. Henning, 79, 96, tj j
Whittuck V. Waters, 1321, 1332
Whitworth V. Davis, 121, 122

— V. Gaugain, 1046, 1754

— V. Whyddon, 207, 1574, 1575,

1624, 1760
Whopham v. Wingfi-jld, 66
Wiard v. Gable, 836, 838 928, 1515
Wiche's Case, lOi
Wickens v. Marchioness of Townsend, 143

— V. Townshend, 1782
Wickhamz^. Evered, 1813

— V. Nicholson, 1038
Wicks V. Clutterbuck, 683

— V. Hunt, 676
Wickson v. Pinch, 567
Wigan V. Rowland, 557
Wiggins V, Peppin, 331
Wigginton v. Pateman, 437, 485
Wigglesworth v. Dallison, 1684
Wightman v. Helliwell, 928

— V. Wheelton, 517, 518, 519, 1698
Wiken v. Law, 1320

Wilcocks V. Wilcccks, 654
Wilcox V. Bellairs, 1352, 1496

— V. Drake, 1388
Wilcoxon V. Wilkins, 357
Wild V. Fort, 1 190

— V. Hobson, 35, 490

— V, Murray, 22, 293

— V. Wells, 716
Wilde V. Gibson, 271, 307

— V. Lockhart, 1479

— V. Wilde, 489

Wilding V. Andrews, 1355, ^813
Wildman v. Lade, 635

.Jlj

iff

<3

CI

\

CVUl

TABL£ OF CASES.

Wiles r. Cooper, 457, 1515 1

Wiley z/i Pistor, 564, 575

Wilkes' Case, 4

Wilkin z/. Nainby, 1606, 1725, 1726

Wilkins v. Aikin, 1670

— V. Fry, 185, 1242

— V. Reeves, 173

— V. Stevens, 1606 '

— V. Williams, 1775
Wilkinsons. Beal, 118, 133, 304

— V. Belsher, 36, 37, 38, 251

— V. Bewick, 1788

— V. Charlesworth, 72, 84, 91, 822

— V. Fowkes, 236, 613

— V. Hartley. 618, 1504

— V. Henderson, 268

— V. Letch, 1399

— V. Lewis, 23

— V. Malin, 696

— V. Payne, 686

— V. Wilkinson, 943
Wilkison v. Charlesworth, 511
V/illan, AV, 125

— ,v. Willan, 764, 1562
Willatsr. Busby, 116

— V. Kay, 77
Willenhall Chapel, AV, 1883
Willes V. Levett, 513, 1034
Willett V. Blanford, 831

— V. Thistleton, 1040
Williams, Ke, 1361, 1368, 1409

— Ex parte, 1394

V, Allen, 162, 184, 225, 1399

1833

— V. Atkinson, 465, 638

— V. Attenborough, 1151, 1156, 1160

— V. Attorney-General, 508, 1760

— V. Begnon, 1558, 1561

— V. Broadhead, 552

— V. Chard, 1585

— V. Cooke, 1584

— V. Currie, 687

— V. Davies, 1648

— V. Duke of Bolton, 1652 '

— V. Earl of Jersey, 1691

— 0. Edwards, 12 18

— V. Farrington, 401

— V. Goodchild, 1574, 1575, 1577

1624

— V. G. W. R. W. Co., 685

— V. Harris, 839

— v. Haun, 868

— V. Jackson, 1580, 1589, i6oo

— V. Jenkins, 993

— V. Johns, 667

— V. Jones, 169, 436

— V. Knipe, 544

— V. Longfellow, 437

— V. Lord Lonsdale, 952

— V. Llewf,llyn, 537

— V. Lucas, 1005 *

Williams V. McNamara, 1660 ■- i(.V)'>, '

— 7/. Morgan, 1339

— v. Owen, 989, 995, 998

— V. Page, 162, 252, 506, 507, 510,

620, 635, 1488

- V. Powell, 835

— V. Price, 189, 676

— V. Prince of Wales Life Co., i860

— V. Roberts, 1647

— V. Rowland, 503 . • •

— V. Salmond, 192 '

— V. Shr.w, 305 . • , '

— V. Sorrell, 1481, 1485

— 7). .Steward, 387

— V. Symonds, 1716, 1719

— V. Taylor, 1301, 1309

— V. Thompson, 375, 376

— V. Wace, 1354

— V. Whinyates, 190

— V. Wilcox, 684

— V. Williams, 205, 208, 222, 519,

531. 532, 55°. 569, 668,
671, 712, 1415, 1474, 1586,
1588, 1660, 1681, 1694
Williamson 0. Gordon, 130, 131

— V. Jeffereys, 1586, 1588

— V. Lord Lonsdale, 189, 2:9
Willie y. Lugg, 172
Willimott V. Ogilby, 633 > ^
Willis V. Faner, 678

— V. Hiscox, 1523

— V. Kibble, 933, 937

— V. Parkinson, 639, 715
Willmott V. Boulton, 327
Willoughby «. Willoughby, 1761
Wills, He, 89, 1499

— ex parte, 1002 ■ '

— V. Slade, 168
WilLon V. Carmichael, 835
Willyams v. Hodge, 139
Wilmer v. Kidd, 1778

Wilmot V. Kellaby, or Hellaby, 670

— V. Maitland, 1697

— V. Wili<inson, 11 89 .,
Wilson, AV, 81

— V. Allen, 618, 1504 ■

— V. Bales, 490, 1722, 1723
- -- v. Beddard, 681, 694

— ('. Brovvnsmith. 1532

— V. Brunskill, 1843

— V. Chapham, 1223

— V. Clifton, 467

— V. Cluer, 840, 841 .

— V. Corby, 1650

— V. Cossey, 517

— V. Daniels, loio , .'

— 0. Dunsaney, 905, 914, 915

— V, Fiefding, 909

— v. Forster, 414 .

— V. Gould, 1614 -• J-

— V, Grace, 461 .-'^ -.

W

Wilt

Wilt!
Wim
Win<
Wine

Wine
Wind
Wind
Wing
Winli
Wins
Wint

Winti

Wint<
Wint(
Wintl
Wird;
Wisdi
Wise,
Wisei
Wisei
Wish)
With?

Withe

TABLE OF CASES.

CIX

Wilson «. Greenwood, 1147, 1762, 1763
1766

-- V. Harman, 806

— V. Hart, l68i

— ». Heaton, 913, 1532

— V. Kicks, 687

— V. Hodgson, 638

— V. Metcalf, 652, 699, 1722

— V. Metcalfe, 840, 841, 842, 864,

876, 878, 1483, 1484

— V, Moore, 159

— V. Proudfoot, 983

— V. Rastall, 410

— V. Richardson, 1641

— V. Robertson, 638

— V. Squire, 1532, 1536

— V. Stanhope, 196, 384, 434

— V. Todd, 1600, 1 601

— V. Tucker, 1192

— V. Whateley, 1589, 1866, 1869

— V. Wetherherd, 515

— V. Williams, 1504

— V. Wilson, 255, 861, 960, 1459,

1758, »773
Wilton V. Clifton, 575

— v. Hill, 89, 90, 1818

— V. Jones, 181, 1064, 1074, 1076
Wiltshire, Re^ 735

Wiman v. Bradstreet, 1843
Winch V. Page, 73
Winchelsea v. Garretty, 171 7

— V, Norcliffe, 997

— V. Wauchope, 681

— Earl of, V. Garretty, 672, 674, 677,

I5S7, 1558
Winchester, Bishop of, v. Fournier, 673
Windham v. Graham, 1500, 1531
Windsor «. Cross, 637
Wing V. Morrell,, 189
Winkworth ». Winkworth, 1826
Winscom, Re, 1876
Winthrop v. Murray, 328, 436, 486, 505,

1503

— V. Poyal Exch. Ass. Co. 22

— V. Winthrop, 489, 1605
Winter v. Diifenderffer, 969

— V. Hambureh, 514

— V. Innes, ITO5

— V. Lord Anson, 1009, loil
Winterbottom v. Tayloe, 1019
Winters v. Kingston P. B. Soc'y, 1569
Wintlev. Bristol, Ac, R. W, Co., 1691
Wirdman ». Kent, 1558

Wisden v. Wisden, 580
Wise, Re, 1626
Wiseman v. Carbonnel, 1046
Wisewold, Re, ii\i, 1607
Wishart v. Cook, 1329
Witham v. Bland, 651, 657, 658

— w. Smith, 239
Withey v. Haigh, 1622

13 A

Withy V. Cottle, 1 190
Wits V. Polehampton, 687, 691
Wittingham v. Burgoyne, 422
Witty V. Marshall, 1390
Wollet V. Roberts, 529
Wood V. Beadell, 1631

— V. Brent, 171

— V. Downes, 181 7, 1822

— ». Farthing, 1562

— V. Freeman, 663

— V. Griffith, 1556

— r. Harman, 1032, 1078

— V. Harpur, 569

— V. Hitchines, 447, 1760, 1761, 1786

— V. Hurd, 686

— V. Lee, 979

— V. Midgeley, 396, 422

— V. Milner, X563

— V. Rowclift'e, 1679

— V. Stane, 543, 556

— V. Strickland, 558, 559

— V. Surr, 1057, 1082, 1083

— ■». Sutcliflfe, 1663, 1 69 1

— V. Taylor, 438

— 1;. Vincent, 171 7

— V. White, 189

— V. Williams, 154, 1069
Woodbum's Trusts, Re, 15 13
Woodcock V. King, 508

— V. Oxford, W. & W. R.W. Co.

1622
Woodford v. Eades, 687
Woodgate v, Field, 194
Woodger v. Crumpton, 478
Woodhatch v. Freeland, 530, 1841
Woodroffe t>. Wood, 671

— V. Daniel, 1859
Woodruffe v. Daniel, 337

Woods V. Woods, 405, 412, 456, 457,

1515, 1857

— Estate, 919
Woodside». Dickey, 514

— V. Toronto Street Railway, 360
Woodstock V. Niagara, 334
Woodward v. Conebear, 142

— V. Earl Lincoln, 1702, 1710

— V. Gyles, 1683

— V. King, 1702, 1 7 10

— V, Lord Darcy, 892

— \). Twinaine, 480, 1727

— V, Woodward, 88, 1562
Woodyattv. Gresley, 1759, 1769
Wool c. Townsley, 1607
Woolfryes v. Woolfryes, 68
WooUam v. Heam, 309, 324, 545, 546,

620

— V. Ratcliflf, 1673
WooUa-.ds t). Crowther, 76
Woollatt V, Woollatt, 1529
WooUey v. Broomhill, 1346

— V. Drag, 807

I:;

1:.:;

■F'

ex

TABLE OF CASES.

Wools V. Walley, 312
Woolway v. Howe, 1322
Worcester Charities, Re, 1907
Worden v. Ellers, 1689
Wordsworth v. Dayrell, 80

— V. Parkins, 159 1
Worgan v. Ryder, 717

Workman v. Koyul Insurance Co., 392,

397
Wormald . De Lisle, 300
Worrall v, Harford, 950, 951, 1018

— V. Mortar, 82
Worral v. Miller, i486

— V. Nichols, i486

Worsley v. Earl of Scarborough, 1083

— V. Watson, 414
Worth V. McKenzie, .-38
Wortham v. Lord Dacre, 1465, 1499

— V. Pemherton, 72, 88, 1404, 1405
Worthington, Re, 1833

— V, McCraer, 1395
Wortley v. Birkhead, 417
Worts V. How, 475
Wray 0. Hutchinson, 444

— V. Thorn, 685
Wren ». Kirton, 11 56, 1788
Wright, •% parte, 1044

— V. Angle, 471, 525

— V. Atkyiis, 312, 313, 1 63 1, 1632,

1653

— V. Barlow, 484

— V. Cadogan, 1262

— V. Campbell, 478

— V. Castle, 255, 256, 381

— V. Chard, 149, 1507

— V. Englefield, 1262

— V. Howard, 1493

— V. Hunter, 1500

— V. King, 80, 1878

— V. Kirby, 1480, 1529

— V. Lord Maidstone, 314

— V. Lukes, 1822

— V. Mayer, 1847
-- V. Mitchell, 1830

— V. Morrow, 143

— i>. Mudie, 1507

— V. Naylor, 1385

— V. Plumptree, 384

— V. Tatham, 508

— V. Vernon, 707, 1768, 1854

— 7'. Wellesley, 651

— V. Western Ins. Co. 1843

— V. Wilkin, 310, 599, 1759, 1760

— V. Wilson, 1 189

— V. Woodham, 1870

— V. Wright, 699, 976, 977, "265,

1473
Wrixon v. Vize, 809, 827
Wroe V. Seed, 1520, 1522
Wroughton v. Barclay, 1S49

— V. Colquhoun, 1543
Wrottesley v. fiendish, 132, 1 46, 403
Wyboum v. Blount, 145

Wych V. Meal, 113, 247

Wyche, Re, 939 ,

Wyersdale School, Re, 1889

Wykham ». Wykham, 1500

Wyllie, V. EUice, 23, 25, 324, 418, 1400,

1606
Wythes v. Lee, 1016
Wynch v. Grant, 1406
Wyndam v. Lord Ennismore, 1393
Wynn v. Littleton, I036, 1072

— V. Morgan, 618, 1504
Wynne v. Callander, 285

— V. Griffith, 1222

— «. Humberston, 1846, 1857

— V. Lord Newborough, 1767, 1775,
1784, 1785

— V. Styan, 986, 1063

— V. Tyrwhit, 1334

— 17, Tyrwhitt, 1254

Yaggie, Re, 859, 1356, 1805

Yardley v. Arnold, 920

Yare v. Harrison, 1822

YaiTington v. Syon, 431

Yate V. Lighthead, 1588 ^

Yates V. Compton, 185, 209

— V. Crewe, 130

— V, Farebrother, 1810

— V. Hambly, 2 1 5, 987, 1070

— V. Harris, 1334

— V. Sherrington, '^4
Yearsley v. Yearsley, 1468, 1606
Yeo V. Field, 1336

Yettsf. Norfolk R. W. Co., 20I .

— v. Palmer, 1757, 1760
Yewens v. Robinson, 48
Yokham v. Hall, 1312
York V. Brown, 1516

— V. White, 197 ' '

— Archbishop of, ». Stapleton, 417

— and North Midland R. W. Co. v.

Hudson, 465

— Mayor of i>. Pilkington, 1637
Young V. Elliott, 1327, 1330

— V. Everest, 15^2, 1567

— V. Fernie, 1668

— V. Goodson, 1607
w. Hodges, 277

— V. Macrae, 1673

— 7). Quincy, 504 ■ . .

— V. Reynolds, 788 • '

— V. Sutton, 712

— V. Ward, 173, 1075 ••

— V. Wilson, 355

— V. Wright, 534

Younger. Duncombe, 1813 ■ . : i .•
Yovatt r. Winyard, 1677 ;•

Yow V. Townsend, 641 •» ■

Zulueta V. Vinent, 465

! A*!'! ,■ ( • • >M "^ '•'■'. !

-"^fy

[8, 1400,

13

Lisa? o:f

THE CONSOLIDATED GENERAL ORDERS,

>7. 1775.

OF JUNE, 1868,

n, 417 •
. Co. V.

•I .
i /

And of those subsequently promulgated up to, and including No. 597, shewing

the pages on which each order noticed is quoted.

// Aas not been thought necessary to notice in this work Orders j, 4. /, 26, ^7, a8, sg,
30, JO, J/, s», 363, 36Z, 3f>4> S^^y 370, 372, 4ga to jtd, jj/, jyrj, JS4,
SSS, $S6, SS7, SSS.

V'

7-
8.

9.
10.
II.
12.
13-
14.
IS.
16.

23.

Orders. Pages.

No. I. 345

2. 345, 1614

6. 240, 288, 291, n. (2), 37o,';659,
1568, 1599, 1712
289, 622, n. (2)
632
632

628, 629
464, n. (7), 629
629

629, 631, n. (3)
736. See Orders 559, and 598
736 •' " " '•
763.^ 16' to'^ 22, inclusive, abro-
gated by Order 559

381, n. (I)

24. 362, 363

25. 26, n. (7) 484
31. Abrogatedjby Order 559
33- 363, 364
34. 381, n. (I)

35- 25. 335. 484

26 n. (8), 30, 126, 335, 464,
n, (2),%,i467,^ 1608. See
Order 610

335

1084, 1089, 1 1 16, n. (i)

316, n. (4), 361, 425, 470, n. (5)

579, n. (I), 652, n. (2)
316, n. (4). 362, 425. 470, n. (5)
316, n. (4), 361, 363
316, n, (4), 363, 364
44- 3*6, n. (4), 364, 579, n. (0, 747

45. 316, n. (4), 364, 579, n. (I), 7/47

46. 425. 427, n. (I), 470, 525. "• (2)
377

36.

37.
38.
40.

41.
42.
43.

47. 350. 371.

48. 351

49. 1878

Orders.

No. 53.

54-

55-

56.

57-
58.

Pages.
152, n. (3), 158, n, (3), 192, n.
(4), 252, 261, n. (I), 276, n.

(I). 33». n- (4)
152, n. (3), 158, n. (3), 192, n.
(4), 252, 261, n. (I), 276, n.

(0, 331. n- (4)
152, n. (3), 192, n. (4), 252, n.
(I), 253, 261, n. (I), 276, n.

(i), 331, n- (4)

161

152,244,0.(2)

175' n- (3). 176, n. (2), 177, n.
(4), 183, n. (8), 184, n. (2),
184, n. (5), 195, n. (3), 342,
n. (8), 346, n. (2), 883

59. 176

60. 175, n. (3), 176, 342, n. (8), 343,

344. 345. 348, 757. 883,
884

61. 159, n. (4), 173, 186, n. (3), 213,

n. (3)

62. 204, n. (7), 205, 208, n. (5;, 223,

n, (2), 240, n. (4), 105 1

63. 241, n. (3), 246, n. (10)

64. 241, n. (3), 466, n. (1)
65- 244

66. 316

67. 316, 466, n. (I and 3)

68. 316, 572, n. (2)

69. 285, n. (4), 288, 572, n. (2 and 6)

70. 288, 572, n. (2 and 6)

71. 287, n. (6, 7, 8.) 288 , '
72 317

73- 3»7

74. 270, n. (0, 291, 304, n. (2)

75- 291

76. 259, 291, 325, n. (I)

77- 317

m

m

CXll

CONSOLIDATED GENERAL ORDERS.

Orders.

No.
78.

l^'
80.

81.

82.

S3-
84.

85.
86.

87.
88.

89.
90.
91.
92.

93-
94.

95-
96.

97.
98.

99-
loa

lOI.

102.
103.
104.
105.
106.
107.
108.
109.
no.
III.
112.
113.
"4-

116.
119.

120.
121.
192.

124.
125.
126.
127.
128.
129.
13a
I3».
13a.
133-
134-
»3S-

Pages.

3«9

319

319, 32s, n. (2), 326, 328, n. (2)

32s, 328, n. (3)

319. 339

319, 496, n. (1)

307

a4i. n- (3)

344. 349

349. 350. n- (6)
289. 368
369

345. 346. 1098. 1613
352

353

353. 354
353, 354

346. 353. 354
353

354

354

354

358. 366. 368

358. 359

3|!
369

144. 371. 372. 373

371. 373. 1088

373

373. 374. 377

358
374

374. 755

377. 378, 379, 380

378* 379
379. 380
380

378

65, 90, n. (5), 92, n. (5), 95, n.

(5). io». "• (5), 102, n- (5).
380

289,425
3*5. 4*7

85. n. (I), 44»
337. n- (a). 443

444. 1840

476

476

478

461

461

461

461

758, n. (S), 1837

1838

Orders.
Na

136.
»37.

138.

»39-
140.
141.
143.
I4€.
144.

145.
146.

»47.
148.
149.
150.
151.
»52.
»53-
>54.
*55.
156.

158.

»59-
160.
161.
162.
163.
164.
165.
166.
167.
168.
169.
170.
171.
172.

»73-
174-
175-
176.

177.
178.
179.
180.
181.
182.
183.
184.
185.
186.
187.
188.
189.
190.
191.
192.

193-

194.
195.

Pages.

1838

1 841

566, 567, 602 I

566, 567

566, 567, 184s

567
567
567

374. 500, 581

374,500,581

567

567

568

521, 522, n. (6), 523, n. (2)

524

524

328, 521, 526

328, 524, 526

328, 524, 526

328, 526

560

535, n. (I), 600

599

600

600 .

600

600

607

601

580, n. (7), 602

583

599. n. (3), 602

599, n- (3), 603

602

602

602

603

603

549. 603, 763

563, 603

603

603 >

603, 1284

604, 1284
609, 1284
609

609
486 '

615
622

627, 883
627
634

635
632

632 :

632

635 '

632

> '

i

CONSOLIDATED GENERAL ORDERS.

oxm

Ord«n.

Pagea.

Grden.

Ho.

Na

196.

46s

254.

197.

464, n. (2), 722, 729, n. (I), 1384,

255-

1826

256.

198.

723

557.

199.

372.723

258.

200.

724

259-

aoi.

724

260.

aoa.

724

261.

203.

724

262.

204.

;s

263.

205.

264.

206.

728

265.

207.

728

266.

208.

728

267.

209.

728

268.

210.

720, 728, 735. n. (6.)

269.

211.

741. 742

270.

212.

741

271.

213.

749

272.

214.

750

273-

a»S.

7SO

274.

216.

742

275-

217.

744, 748, 753

276.

218.

348, n. (4), 755

277.

219.

768

278.

220.

735. 7«9, 770, 794. 796. 842, 926

279.

221.

767

280.

222.

758

281.

223.

772

282.

224.

779

283.

225.

778, IIOI

284.

226.

1S«

285.

227.

769, 782, 783, n. (1)

286.

228.

724. 782

287.

229.

748, 766

288.

23a

758

289.

231.

^^

i90.

232.

784

291.

233.

784

292.

234.

784. 785

293.

235-

784

294.

236.

784

295.

237.

844, 845

238.

743. »095

296.

239-

748

297.

24a

298.

241.

749

299.

242.

750

300.

243.

750

301.

244.

754, n. (a), 756

302.

245.

756

303.

246.
247.
248.

855

304.
305.
306.

249.

852

307.

250.

853

308.

251.

III

309.

252.

310.

253-

86i

311-

r
851 "'v "

736,854,1113 >• r

736, 854, 1 1 13 V 7 ^

854, " 13 f-

572

572 ; •

577 ': '

577, 1614 • '

1614

464, n. C7), 1614

1626

1626

568, n. (3), 1618

1618

568, n. (4), 1 618, 1845

1618

516

518 ^

519, 520» n. (6)

495
496
496

497

500

1749, n. (i), 1770

1749, n. (I), 1770

1749, n. (I)

1749, n (1) ,

1749, n. (1) ^

1749, n. (I), 1772, n. (0

1632

1697

1715

1717

581, n. (I), 644, 648

649

649

650

651

580, n. (9), 628, 648

664

644, 645, 646, 647, 759, n. (3),

1712
644, 760, n. (I)

663 ' ' n

368

369

369

369 . r

369

370

1467

336, 1467

1546

»545

1545 „
722, 1468

854 '•• ,;

854,857, 1 102

'Hi

:5 }
"J .i

CXIV

CONSOLIDATED GENERAL ORDEKS.

Orders.

P»goa. ,. /.

No.

*

312-

854, 857 V ,.

3>3-

854, 857-

314.

128

3»S.

W

316.

1468, 1622, n. (i)

3»7.

854

318.

1509

3«9.

1502 , ^

320.

867 ' ,

321.

26

323.

634, 1568

323-

1572

3^4.

»S69

325-

1570

326.

1570

327-

1570

328.

379. 1571

329.

Abrogated by Order 559
641, 880, 1555 .

330-

331-

IS5S

332.

IS5S

333-

IS5S

334-

ISS5

335-

637

336.

637

337.
338.

68, 642, n. (2), 1568, 1580

1369, 1581

339.

1582, 1593

340.

158a

34«-

1582

342.

1582

343-

1582

344.

»597. 1598

Patres.

.,>)?.'

^

345- »S98

346. »598 .•

347. 1598

348. 323, n. (I), 1598, 1599

349- 323. n- (0, 1599

350. 323, n. (I), 1599

351. 323, ff. (I), 1599

352. rt sea. 78, n. (5), 736. Amended

by Order 569

353. 722, 736, 1823. Amended by

Order 569
354- 736, 1823. Amended by Order
569

355. 1834. Abrogated by Order 559,

356. 736, 1834. Amended by Order

569

357- 736, 1834. Amended by Order

569

358- 1834

359. «598. 1834

360. 1835
361- »835

365- 737- Amended by Order 570

366. Amended by Order 570

367' 737' Amended by Order 570

368. 736. Amended by Order 569

369. 736. Amended by Order 569 ■

Ordera.
No.

371 736. Amended by Order, 569

373- 73<5- Amended by Order 569

374- "39

375- "39 !,r .r,

376. 1 140 - .^l ,„r

377. "40 • -^ nor;

378. II4I. 1145 -"■ i V-

379- "42, 1 361

380. 1 142 - , ,1

381. 1146, 1147 . ,... ' ,.

382. 114s

383. "45

384. 114s , ; . „

385. 1 147 ' - . ••

386. 1147 ... r

387. II48 .-.,:<■ • • rv

388. II49 ,•

389. 1 163, 1360 -,.

390. 1165, 1349, 1350, 1351

391. 1349, 1350, I35I .,.;

392. 1349. 1350. »35i IV

393- 1349. 1351

394- 1350. »35i

395- 1350. 135 >
396. 1350, 1351

397- 135* -

398. 659

399. 659

400. 659, n. (i), 660

401. 660 ,-,i

402. 349 , ., •'

403- 349

404- 349 .-'r -■.

405. 318 •;,:

406. 288 ,,, .

407. 289

408. 176, 327, n. (6) 328, 336, 372,

428, n. (2), 526, 858, 1582

409. 30, n. (6)

410. 427, n. (I), 464, n. (7), 525, n.

is), 746, n. (3)

411. 365, 427, 464, n. (7), 525, n. (5)

747, n- (»)

412. 289, 464, n. (I) 465, n. (2), 526,

n. (I) ^

413. 1572, Amended by order, 593 ^j

414. 601 \

415. Abrogated by Order. 559 11

416. 869, 880, 1625, Abrogated by

Order, 559

4«7- 377 =; ""

418. 427, 869, 880 ^

419. 880 •

420. 427, 869, 880 '' *'^'

421. 327, 743 ; • ^ . ';

422. 327, 743 ,;; '--

423. 327, 328, n. (I) ' : 'V;

424. 327 ;,.; ' -

425. 327, 743 :. : v*

426, 1038, 1042, 1053 " '

372.

1582

n. (5)
593

[dby

uraere.

No.

69

427.

»9

428.

429.

t

430.

•;r^T

43«

• *

43*.

( 1 \"

433.

. • .•

434.

I '.i'

435-

' '1'

436.

r

tf.

" 'V

439.

. '■

440.

/ -f

441.

442.

it ' V

■ 443-

- ? •

444-

CONSOLIDATED OENERAL ORDERS.

Pagres.

053

038, 1041, n. (3)

038, 1139. n. (1)

038

038

086 )

087 ■!>
089

087, 1090 ' . .
371. 1085

08s • ^'.
090, 109 1

054
054
124
092, 1 1 24

092, 1 1 24

093. >09S. 1096, 1097, I
1 124

097. 1 1 24

095, 1096, 1097, 1 102, I
102, 1 124

098, 1 1 24
124

116, I 124
119, 1 124
124, 1127
124, U39
124, I 139, 1375

375
139
123
123
123

123
029
029
029

44$

446.

447.
448.

449.
450.
45 i.
452.
453.
454-
455.
456.

457-
458.
459.
460.
461.
462.

463.

464. 664, 1 1 26

465. 516, 1 1 12

466. 1375

467. 344. 729. 732, 733. 888

468. 729, 888
469- 733.888

470. 733. 888 ,

471. 734, 888

102,
124

472. 734.

473. 734.

888
888

d74. 888

475. 885, 888

476. 886, 888

477. 886, 888

478. 886, 888

479. 886. 888

480. 886, 888

481. 887, 888

482. 886, 887, 888

483. 887, 888

484. 887, 888

Orders.

No.

485.
486.

487.
• 488.
489.
490.
491.
517.
518.
SJ9-

520.

521,

522.

523.
524.
525.
526.

527.
528.
529.
530.
531.
532.
533-
534.
535.
536.
537.
538.
539-

Page*.

cxv

m
-■ 'till <ii '•

887, 888 . tV

736, 888

888 'y\ .-A.

1463

1463

1463

1463

343.1352. Amended by Order 610

372

I26,sfcn. (8), 126, n. (3). Se/r

Order 610
127, n. (10). ^f^rOrder 610

344 ' " "

343. 344

344

344

125, n. (7)

1802

1802

1802

1803

1803

i8o3,ii8o5

1804

1804

1804

134

1772 1

625

669

540. 724

541. 613

542. 1 86 1
543- 1862

544. 1863

545. 1862

546. 420, "48 1

547. 350

548. 471, S77,*n. (4) -

549- 471. 577. n. (4)

550. 368, 425, 644, n. (5), 724, n. (I)

552. 729

559- 736

560. 720, 729, n. (I)

561. 721, 729, n. (I)

562. 721

563. 721

564. 721

565. 722

566. 722

567. 722

568. 736 ' .

569. 736
570- 737

571. 737

572. 737

573. 737, 738 ^

574. 737, 738 ,

m

u - 1'

Hi

ox VI

CONSOLIDATED GENERAL OBDEBS.

Ordsn. Pages.

No.

575- 738

576. 738

sn- 738

578- 738, 739

579. 739

580. 739
S8». 739

582. 739

583. 740

584. 741
585- 741
586. 742

Orders.

Pages.

No.

*•

757. 884 ,

58::.
589.

1772
984

590.

725. 1608

S9I.

725, 1608

592.

725. 1609

593.

725. 1609

594.

1609

595-

See Order 37

596.

629

597-

523,11. (4), 1140, 1617

Nora— The remaining Orders were promulgated too late for notice in the Practice.

a

|»;ii|

:' *

t'y' .

/!!'■»!••[■

»>.}

4

CHAPTER XXXII.

i: t

DIVOKCE.

Alimony. — By the principle of the law of England the whole pro-
perty of marri(3d persons is supposed to rest in the husband : where,
therefore, the wife is under the necessity of living apart, the Court
will decree a fitting proportion of her husband's income to be paid to
her. This provision is called alimony, and is allowed during the
pendency of a suit between them, as well to provide the wife with
the means to obtain justice as for her ordinary subsistence.

The jurisdiction of the Court as to alimony was created by the
Provincial Statute of Wm. IV., ch. 2, sec. 3., (the Act establishing the
Court of Chancery having passed March 4, 1837), which declared that
" the said Court of Chancery shall have the like power, authority,
and jurisdiction in all cases of claim for alimony that is exercised
and possessed by any ecclesiastical or other court in England." The
first reported case for a claim for alimony in Soules v, Soules} and
it was there contended that the Court has no jurisdiction, but
the reverse was decided.

m

M

The jurisdiction of the Court was again denied in 1852, in a
case^ in which the Chancellor (Blake) pointed out the powers con-
ferred by the Statute on the Court of Chancery.

The difiiculty mentioned by the Chancellor in this case was to
some extent removed by the Provincial Statute 20 Vic, ch. 56, sec.
2, (1857), which provided that the Court of Chancery " shall also
liave jurisdiction to decree alimony to any wife whose husband lives
separate from her without any sufficient cause, and under circum-
stances which would entitle her by the law of England to a decree for

1 SioulMi T. /SouIm, 2 Grant, 299.

2 iScwm T. ;S<««m, 3 Grant, 431.

65

1412

PROCEEDINGS IN THE MASTER'S OFFICE.

restitution of conjugal rights. Such alimony to continue during
such separation and lutil tho further order of the Court." And the
power of tlie Court was further extended by 22 Vic, eh. 12, sec. 29,
Consolidated Stattito of Upper Canada, page 51, which enacts that
the Court " shall also have jurisdiction to decree alimony to any wife
who would bt entitled to alimony by the law of England, or to any
wife who wouhJ 'ic entitled by tho law of England to a divorce and
to alimony as incident thereto, or to any wife whose husband lives
separate from her without any sufficient cause and under circum-
stances which would entitle her, by the law of England, to a decree
for restitution of conjugal rights ; and alimony when decn^ed shall
continue until the further order oi' the Court."

The reader is referred to the general remarks made mi 2 Black-
stone's Commentaries, page 10, which will pave the w&y for a
more minute statement of the law on this subject.

It will be observed that we have no Court in the Province em-
powered to decree either divorce or restitution of conjugal rights ;
that authority was, until the recent changes of the law in England,
vested in the Ecclesiastical Courts ; the only power given to the
Court of Chancery is that to decree alimony, and then onlv in the
following cases .• —

I. Where, by the English law, the wife would be entitled to
alimony.

II. Where she would, by that law, be entitled to a divorce and
to alimony as incident thereto ; and,

TIL Where her husband lives separate fiom her without suffi-
cient cause, and under circvunstancos which, in England,
would have entitled her to a decree for restitution of
conjugal rights.

It will therefore be necessary to consider what the Irw of Eng-
land on these points is, or rather what it was, for the establishment
of a Court of Divorce has to a great extent altered the old law.

The following extracts are taken from Rogers' Ecclesiastical Law
excepting where decisions in our own Court are interpolated ; and

(luring
A.nd the
sec. 29,
,ctH that
my wife
r to any
3rce ami
tld lives
circuni-
a decree
ied shall

2 Black-
ly for a

ince em-

I rights ;
England,

II to the

v in the

ititled to

lorce and

lut suffi-
Kngland,

lution of

lof Eng-
liahment
iw.

il Law
id; and

DIVORCE — ADULTERY.

141S

the practitioner will of course understand that much is said having
no direct application to this country where the practice is very
different from that in the Ecclesiastical Couiis of England ; but the
principles of the English cases govern us, and it is therefore neces-
sary that they be understood.

Divorce. — The Canon law does not admit an absolute dissolution
the marriage contract for any cause whatever ; which principle of
is still adhered to by the ecclesiastical law of this country. A sentence
of divorce in substance, declares that " the said A. B. ought to be
divorced from bed, board, and mutual cohabitation with the said C.
D., her husband, until they shall be reconciled to each other ;" and
proceeds to caution each party from contracting marriage in the
lifetime of the other.* It is true, that if an individual be able to
incur the expense of obtaining an act of parliament, he may procure
a suspension of the law in his own particular case, by the interfer-
ence of the legislature to dissolve his marriage ; but the law cannot
do it propria vigore, it is only by the intervention of a power above
the law, that the vinculiMn can be dissolved ; when, there'fore, the
term " Divorce " is used, nothing more is intended by the laws of
England than a separation " a mensa et thoro."^

A sentence of divorce is the judgment of the spiritual court, sepa-
rating two persons legally married. Lord Coke says, " de facto
married."^ But, with submission to so high an authority, proof of
the factum of marriage is not sufficient. Proof of a valid marriage
is the very first step, and is altogether indispensable.* A marriage
de facto includes all descriptions of marriage, as well those that are
void as those that are voidable ; but in a suit for divorce, a defen-
dant may plead either that the marriage was absolutely void by
reason of some civil disability in one of the contracting parties,^ or
that it was voidable by reason of some canonical impedient, as for
example, that it was incestuous, or that one of the parties was in-
capable of conti-acting marriage by reasons of impotency.®' " The
validity of the man-iage is not a mere incidental point, it is the

1 Comet. 279; Oughton, tit. 215.

•I Cro. Elia. 908 ; Cro. Car. 463 ; Noy, 108 ; 3 Inst. 89 ; Co. Lltt. 355.

3 It will be understood that these and the following remarks under this heading are made without

reference to the comparatively late introduction into Enuland of Divorce Courti.

4 2 HagK. 8 ; Aylift Parer. 60.

5 2 PhM. 11.

tt Oue$t V. Quest, 1 Hagg. Con. 322.

.3
.'''1

::: (

::

ca i

""1 i\

CD 5

Ar;

1414

mOCEEDINOS IN THK MASTER'S OFFICE.

foundation of tho whole proceodingH. There can be no mlultery if
there w no niairiage. Tho first point to be proved is the marriage,
which tlie other party may contest ; and if not contested, the form
of tlie sentence in such cases pronounces, that there has been a true
and lawful marriage, as well as a violation of it."* So, it has been
held, tliat a pica o# a prior maiTiage is a good ground to stay pro-
ceedings, and that the question of the former mari'iage must be
determined before the question of adultery is gone into.^ So,
where nullity of marriage is pleaded.'

Assuming therefore, that in all suits for divorce, it is necessary to
prove a valid marriage : it follows that no cause or impediment
existing previous to marriage can be made the subject matter of a
suit for divorce ; tho civil and canonical disabilities which render
the marriage contract either void or voidable, are grounds for a pro-
ceeding for nullity of marriage, but not for divorce.*

The only grounds upon which a divorce can by the law of Eng-
land be granted, are generally two ; viz., 1st, Adultery ; 2dly,
Cruelty ; to which a third may be added, in which the ecclesiastical
coui-t has interfeied, for the relief of a wife whose husband has been
guilty of unnatural practices.

Adultery, which is said by Isydore, in his Book o^ Etymologies,
to be compounded of the words, " ad altei'ius thorum," means an
actual surrender of the person ; and although the rule of the eccle-
siastical court does not require direct evidence of the very fact com-
mitted at a specified time and place,^ yet it must be satisfied that
the fact of adulteiy has actually been committed.^

Adultery being an act of darkness, and of great secrecy, can
hardly be proved by any direct means ; therefore in relation to the
proof by reason of such difficulty, it happens that presumptive
evidence alone is sufficient proof; and this presumptive proof is
collected and inferred ex adihus propiriquis, that is to say, from the
proximity and nearness of the acts ; and thus adultery may be

1 Per Lord Stowell, I Hag^. Con. 329.

2 Robing V. Wolseley, 2 Lee, 149.
S 2 Phill. 11.

4 Godol. Ab. 500.

5 4 Hagg. 262.

e 2 Hagg. Con. 226, 365 ; 2 Hagg. 14 ; 3 Ilagg. 74 ; 1 Hmgg. Con. 209. ,

DIVORCE — ADULTKRY.

1416

iltory if
arriage,
le form
I a true
HH been
ty pro-
lust ha
•.2 So,

isary to
idimeut
ter of a
, render
>r a pro-

of Eng-

; 2dly,

Isiastical

las been

lologies,
eans an
eccle-
ict corn-
ed that

cy, can
to the

imptive
roof is
om the
ay be

proved by such conjectures as are received and approved of either
by law or nature.*

In Willlarru v. Williams,^ Lord StowoU says, " Direct evidence
of the fact of adultery is not required, as it would render relief
almost impracticable; i)ut there must bo such proximate circum-
stances proved, as by former decisions, or on their own nature and
tendency satisfy the legal convicti<m of the court that the crimiua
act has been committed. The court will look with gi*eat satisfaction
to the authority of established precedents ; but where these fail, it
must find its own way, as well as it can, by its own reasoning on
the particular circumstances of the case." Again, in Loveden v.
Loveden,^ " The facts are not of a technical nature, but are determin-
able upon common grounds of reason ; and coui*ta of justice would
wander very much from their proper office of giving i)rotection to
the rights of mankind, if they let themselves loose to subtleties and
remote and artificial reasonings. Upon such subjects, the rational
and the legal interpretation must be the same."

What are the circumstances which lead generally to the conclu-
sion that the fact of adultery has taken place, can hardly be laid
down upon any nile, because they may be infinitely diversified by
the situation and character of the parties ; by the state of general
manners ; and by many other incidental circumstances, apparently
slight and delicate in themselves, but which may have most impor-
tant bearings in decisions upon the particular case. The only gen-
eral rule seems to be, that the circumstances must be such, as would
lead the guarded discretion of a reasonable and just man to the con-
clusion.*

Facts need not be so specially proved as to produce the conclusion
that the fact of adultery was committed at a particular hour, or ina
particular room.^ Statements of general, loose, and duly familiar
conduct are sufficient to establish a high and undue degree of famili-
arity between parties. Isolated facts may lead to a conclusion of
crime : for the proper way to consider this sort of evidence is not to
take them separately, but in conjunction ; they mutually interpret

I

1 Auliffe Parer. 60.

3 2 Hagg. Can. 2, 3.

4 2 Bagg. Con, 2, 3 : ib. 227 ; 1 Ilag. Con. 376.
6 2 Hogg. Con. 4,

2 1 Hagg. Con. 209.

1416

PROCEEDINGS IN THE MASTERS OFFICE.

each other; their constant repetition gives them a determinate
character ; and such habits, when continued in public, lead to the
inference that the parties '.vould go greater lengths if opportunities
of privacy occuiTed.^ If a witness stops short, and declines or
omits to state his belief of the ultimate consummation of the act, it
is true that the court is put on its guard to see whether there is any-
ground for a scepticism of this nature ; but it would be a monstrous
proposition to assert, that the merits of a case of this nature is not
to depend upon the narrative, but on the logic of the witness. The
court, representing the law, chaws that inference which the proxi-
mate act unavoidably leads to : the scepticism of the witness, if it
really exists, signifies nothing.^

Where there has been general cohabitation, the necessity of prov-
ing particular facts is excluded,^ and the cases collected in the notes.
If adultery continued a long time, with pregnancy, and birtli of a child
during her husband's absence be pleaded, it is useless to prove more
than the birth of the child, identity, and non-access of the hus-
band.*

[i

A woman going to a brothel with a man furnishes conclusive
evidence of adultery against her, for it would be impossible for her
to go to such a place but for a criminal purpose.* So as against a
husband, proved to have gone to such a place, a violent suspicion is
raised, only to be rebutted, if a suspicion so founded can be rebutted,
by the very best evidence.® But if it be shown further that he was
alone a considerable t' ne with a common prostitute, it would be of
itself sufficient evidence of adulteiy.^ But the same conclusive pre-
sumption does not attaeh to the circumstance of a married woman
go^ng to a single man's house or lodging, unconnected with other
facts, however improper sujh conduct may be ;^ for the court must
be convinced in its legal judgment that the woman has transgressed,
not only the bonds of delicacy, but of duty ;• but when the windows
were proved to be shut at such visits, and letters which could not
be otherwise explained were proved, the court has inferred that
adultery took place at such visits.*** In one case, separation, by

1 8 Hogg. Con. 228.
4 1 Hagg. 6.
« 1 Uagg. 720.
8 1 hagg. Con. 302.
10 } HOQg. Con. 302.

2 U Hag. Con. 278. 3 2 Hagg. Con. 4.

6 1 Hagg. Con. 302, 303 ; 2 Hagg. Con. 24 ; 4 Hagg. 188.

7 1 Hagg. 720.

9 1 Hagg. Con. 802.

2E.

I a determinate
iblic, lead to the
1 if opportunities
and declines or
ion of the act, it
jther there is any
I be a monstrous
his nature is not
he witness. The
which the proxi-
the witness, if it

aecessity of prov-
scted in the iiotes.
nd birth of a child
ess to prove more
ccess of the hus-

nishes conclusive

mpossible for her

So as against a

olent suspicion is

can be rebutted,

rther that he was

G, it would be of

le conclusive pre-

married woman

icted with other

ir tlie court must

has transgressed,

hen the windows

wrhich could not

as inferred that

I, separation, by

Hagg. Con. 4.
m. 24 : 4 Hagg. 188.

DIVORCE — ADULTERY.

1417

reason of adultery and cruelty, was jironounced, on proof of undue
familiarities, clandestine communication with frequent opportunities
of guilt, and concealed correspondence by letters, denoting great
ardour of passion, if not alhisions to actual guilt, (but no credible
proof of a fact of adultoiy) united with great violence of conduct
and language, and an attempted blow.^

The communication of the venereal disease long after marriage
is priina facie evidence of adultery.- So where the wife, separated
from her husband, lived with a young officer for months at different
places under the disguise of separate beds.'^ So where the parties
lived together in seclusion, the man sleeping apart at an inn ; ^
for, as the court in another case observed; "parties, living for
months and even years together, and hoping to insult the feelings
of the husband and elude the justice of the tribunals, have by such
contrivances supposed that they were sufficiently protected ; but
courts have ever held that these evasions were perfectly insuffi-
cient for such a purpose, and the parties have been concluded by
general cohabitation."^

Ante-nuptiai incontinence cannot lay the foundation of a suit
for divorce by reason of adultery.® It may possibly be a defence
in a suit for restitution of conjugal rights ;'^ or, if a wife were to set
up a plea of m.alicious desertion, it would seem that it might be
pleaded, that the discovery of ^er misconduct before marriage,
induced her husband to v^uit her society.

>

Confession generally ranks high, or perhaps highest in the scale
of evidence ; for what is taken pro confesso is taken for indubitable
truth, as the plea of " guilty," by the party accused, shuts out all
fui'ther inquiry. Yet it is a species of evidence which, especially in
cases of adultery, is to be regarded with great distrust. Oughton
has devoted a title to this subject, Tit, 213, which, however, seems
copied from Consent, 279, 280 ; in which he urges the danger of
receiving any such confessions from the temptations to collusion,
01 that the husband may prevail on the wife by threats or intrea-

1 3 Haijg, 61s. 2 1 Hagg. 767.

3 1 Hagg. Con. 446; 2 Hag. Con. 0, n. 4 lb. -

5 2 Hagg. Cow. 6. ■*

6\Add.l -,2 Phil. 127 ; sed vid. 2 Ad. 306, note (a.)

7 1 Hagg. Con 373.

a,

5a a

^ :.1

1418

PROCEEDINGS IN THE MASTERS OFFICE.

ties to admit a crime of which he is not guilty. He adds also
another caution with regard t:^ identity, "ne persona aupposititia
(quod meis (Uehius bis novi) coram eo, ad adulterium lihellatum
confiieiidwni producatur." Clarke also speaks of two such in-
stances, probably the same as spoken of by Oughton. Lord
Stowell, in Searle v. Price, ^ says, " In cases of adultery no con-
fession of the fact can be admitted alone, it being particularly
necessary to guard against the imposition of making false acknow-
ledgements to procure a separation. A married person may after-
wards wish the marriage avoided. For this purpose a false case
might be established before the court, or a former marriage might
be propounded by one party and admitted by the other. The
utmost vigilance is, therefore, required that the truth should be
established, independent of the confessions of the parties. They
might go further. By substituting false parties, who might admit
themselves to be parties in the cause when they were not, might
destroy the right of real parties. Even a decree of confrontation
would not protect the court in such a case, for the real parties
might be unknown to the court, its officers, and to the practisers
in the court."

Upon confuasion of the wife alone the court will not build a
sentence of separation, it being enjoined by the 106th Canon that
no sentence of divorce should be given upon the sole confession of
the parties.^ And, although it seems to be the more rational
doctrine to say, that such a confession by a wife, proved to the
satisfaction of the court to be perfectly free, might be sufficient to
found a prajer for a mere separation a mensa et thoro, though not
pro dirimendo m/itrimonii vinculo, yet the decisions establishing
a different construction are too literal to be shaken.^ But, where
the wife is charged with adultery, her conduct and declarations,
on a jonfession of guilt by the alleged particeps criminis being
communicated to her, are admissible on behalf of the husband.*
For though such evidence is looked at with distrust, it is not
inadmissible ; ^ and when free from all taint of collusion, ranks of
the highest importance.®

1 2 Hagg. Con. 189.

2 2 PhU. 186 ; 2 Hi^grg. Con. 189, 816 ; 3 HagR. 77, 181 : 4 Hagg. 262. -

3 Mortimer v. Mortimer, 2 Hagg. Con. 316.

4 Butyeis v. Burgest, 2 Hagg. Con. 235 ; 2 Hagg. 407-

6 1 JUagg. Con. 304. 0 2 Hagg. 409 ; 4 Hagg. 202

in

DIVORCE— ADULTERY.

1419

The declaration of the paramour, in the wife's absence, that she
had committed adultery previous to that charged in the libel is not
admissible ; but a declaration in her presence, and confirmed by
her, is ; nor can the court reject it on the ground that it reflects
on third parties, or that it does not refer to the adultery charged
in the suit.^

The declaration of a particeps criminis is by itself, however, but
weak evidence ; but where criminal intention is fully proved, and
nothing but the consent of the other party is wanting, the consent
of such a person is stringent evidence that the act attempted has
taekn place.^

Letters from a wife to her paramom% leaving no doubt of gross
familiarity and indulgence, and of proposals for future intrigue,
may be admitted in proof of adultery.^

But letters of the paramour, where there are no strong facts
proved, from which adultery can be inferred, found in the wife's
possession, not necesarily implying the commission of adultery,
will not support a sentence of separation by reason of adultery.*

Where a letter is pleaded to be in possession of the adverse
party, the contents may be set forth at length, leaving the other
party, if she pleases, to pioduce the letter.''

Where criminal connection is once shown, its continuance is
presumed, especially where the parties live under the same roof."

In all cases of adultery the identity of the parties is a very
necessary ingredient in the proof. Therefore the mere acknow-
ledgment to the officer serving the citation, or the appearance of
the party in the cause, have been considered insufficient ; and
identity has been required to be proved by extrinsic evidence.^

The libel must plead the conclusion of adultery ; because, JPplff^?J^l r
it is pleaded, Tion constat that it may not be Bii^iii(^ftt»-mtt:e%li)BC
tation of chastity ; but, if the party does aver it, thoug[|ijl0 j)roves ^

O.U.

1 Croft T. Croft, 3 Hagg. 318 ; Uagg. Con. 148. 376.
a I Hogg. Con. 876. " "

4 2 Hogg. 8.
7 1 Hogg. 305 ;

2 Ufigg. Con. 189.

3 2 Aagg. Con. 21, 23 ; 4 Eagg. ' —

6 8ff<w. 817. 6 '^tW/f'ilBRARV

1

3

.'tS

M

',y- .J

1420

PROCEEDINGS IN THE MASTER'S OFFICE.

only proximate acts, yet he unquestionably proves the whole of his
averment in the libel ; and, if the facts are of such a nature as will
justifiably and almost necessarily lead to the conclusion, the court,
representing the law, draws the inference.^ Where the husband's
adultery is to be proved by pregnancy and acknowledgment of
children, specific acts need not be pleaded ; ^ nor, where the charge
is keeping houses to which he took loose women.' When parties
are living separate, the commencement of the acquaintance with
the alleged paramour, and of the suspicions of the person under
whose care the wife was, should be set forth circumstantially.^
Though the court will not, on presumption, and in the absence of
matter strongly inculpatorj', impute comiivance to a husband, it
will not debar him from pleading circumstances which make the
story consistent and natural ; for a party ought not to be forced to
depend for explanation of his conduct, on the ingenuity of counsel '
or the discrimination of the court.^

The introduction of verdicts in the pleadings was long resisted in
the ecclesiastical courts, and it is now understood that they are
merely introduced as circumstances of evidence ; it is difficult to
comprehend in what view an action against another party can in any
way instruct the conscience of the court upon an issue between the
husband and the wife ; she not having been party or privy, in the
remotest degree, to that litigation.*

The only object indeed of the introduction of verdicts of courts of
law into the proceedings seems to be, to satisfy the court that the
husband has honestly endeavoured to obtain all the redress the law
will afford him.' If ever such a verdict can weigh at all, it must be
as a test of the credit of the witnesses, if the same witnesses are
examined in both courts.®

In considering the admissibility of pleas, the court must be
cautious not to exclude matter essential to a due decision, nor
allow proceedings to extend to an unnecessary length ; but if a
serious doubt arise as to the ultimate effect of any averment it
ought to be admitted.^

1 1 Bagg. Con. 278. 2 1 Hagg.lK ; i&. 6. 3 lb. 777.

4 3 Hagg. 816. ^^ „ 5 3 Ham. 312 ; 1 /fagg. 6 ; «eu wd. 3 Hagg. 123.

6 2 Hagg. Con. 286 ; 2 Hagg. Con. 61; 3 Hagg. m.

Al

two I
imp|
that

2 Hagg. Con. 306.

8 3 PhU. 99.

9 8 aagg» 310, 311.

\l ^^^

DIVORCE — ADULTERY.

1421

A libel pleading specific acts of adultery can only be rejected on
two grounds: — 1. That the plea on the face of it shows a case
imposbible of proof. 2. That it appears from the facts pleaded
that the party complaining has barred himself.^

The whole substantive case should be at once brought before
the court ; ^ but where it is clearly shown that the facts could not
have been sooner pleaded, additional articles may be given in,"^
and a sentence may be obtained on facts not existing at the com-
mencement of the suit ; for a party is not limited to the contents
of his libel.^ But the libel must contain all the facts that by
diligence can be ascertained at the time ; and subsequently, such
new facts only can be pleaded as are nearly conclusive of guilt.^
Pleading after publication generally is within the discretion of the
court ; " for in cases of adultery, as in other cases, publication is a
bar to further pleading, as of np^^^J

Where the evidence did not in the first instance amount to
judicial proof, but the conduct proved had been so suspicious as to
raise a strong presumption of adultery, and that an adulterous
intercourse was actually carrying on between the parties accused ;
the court will, on affidavits, rescind the conclusion of the cause,
and allow the husband to give in an additional allegation, upon
which a sentence of separation may be eventually founded.**

But where there was a suggestion, that a charge of collusion
and connivance, raised in argument on the evidence produced by
the husband, was a surprise upon him, the court refused to
rescind the conclusion of the cause, in order that some letters
might be pleaded ; being of opinion that the husband was bound so
to have shaped his case in the first instance as to have guarded
himself from such suggestions ; but in this case there was no dis-
tinct plea of connivance, nor had the cross-examination been
directed to that point.^ In another case it was observed, that the
husband must prove his case, so that his own evidence shall not
create a bar by reason of connivance or recrimination, for of such
evidence the wife is entitled to the full benefit;^® but, it must always

3

'3f

I

1 1 Hogg. 766.
4 2 Uagg. 136.
6 3 Hogg. 344
8 3 Hogg. 1 ; 'i Uagg. 144, Supp.

2 3 Hagg. 742. 3 3 Hagg. 97; 1 Hag. 349.

5 3 Hagg. 738 ; 4 Hagg. 28S.
7 2 iTcMa. Supp. 187.

9 3 Hagg. ISS. 10 3 Hagg. 77.

1422

PROCEEDINGS IN THE MASTER'S OFFICE.

have less weight that it would have, if a defensive recriminatory
plea had been pleaded.^ In Turton v. Turton, 344, Dr. Lushington
said, ** I am not aware of any case in which, upon answers to
interrogatories, the court has decided, either that recrimination or
connivance has been proved, so as to dismiss the suit of the wife ;
and on principle, I think it would be difficult to arrive at such a
decision."^ After publication of the evidence in a suit of divorce
for the adultery of the husband, the court will not in the first
instance delay the hearing, nor will it rescind the conclusion of
the cause, in order to admit an allegation counterpleading certain
answers to letters of the wife, which had been annexed to the
interrogatories on cross-examination, suggesting condonation and
connivance on the part of the wife ; and which answers were expla-
natory of the letters, and were intended to repel the suggestions
raised on the part of the husband. The court saying, ** It is
necessary for me first to ascertain what use is made of these docu-
ments and answers to the interrogatories, by the husband's coun-
sel; if they are insisted on as a bar to the separation prayed by the
wife, and I should consider them important, I will allow the ad-
missibility of the plya now tendered to be debated, but otherwise
its contents will be immaterial." The court also refused to have
the letters annexed to the interrogatories dis-annexed.*

When adultery has been proved to the satisfaction of the court,
the complainant is entitled to a remedy by divorce ; but this remedy
may be barred by his own conduct. There are three general
grounds usually pleaded in answer to a charge of adultery.*

1st. CoTtipensatio Criminis, a set-off of equal guilt or recrimina
tion, of which Conset, 280, says, " If the defendant doth prove
that the plaintiff hath also committed adultery, the defendant is
to be absolved as to the matters requested in the libel of the plain-
tiff.^ it is now admissible in France,^ and the state of New York -J

V

Q

\i,.

■1} Scotland. Formerly, howevor, it was not admissible in
r-^. jun the principle, as it seems, that adultery committed
bv VI 0 r V '.nd was not a ground of divorce or separation on the

pari Vi lixii vvife.'*

1 1 Hogg. 747. 2 Vid. 2 Phil. 153. 3 3 Hagg. 34«. ', • ', '

4 Crewe v. Crewe, 3 Hagg. 129. 6 Oughton, tit. 214.

6 Cod. Civ. Art. 22. 7 Kent's Comm. 100.

8 Pothier 3, v. 117 ; 1 Hagg. Con. 160.

a

miti

agaj

tot

noul

the

mei

thel

he

bare

DIVORCE — ADULTERY.

1423

2dly. Condonation. If there has been a reconciliation, between
a man and his wife, after adultery is known to have been com-
mitted by her, it is not lawful for him to have his action for divorce
against her ; for a divorce is not commanded, but only permitted
to the innocent person, who may recede from his right, and re-
nounce a favour introduced on his behalf.^ Oughton, speaking of
the modes in which the knowledge of the adultery is to be derived,
mentions three. 1. The wife's confession. 2. Communication of
the witnesses whom he afterwards produces on the trial. 3. That
he himself detected her iij the fact.^ Prohahilis (tcientia, he adds,
bars a divorce ; that is condonation after prohahilis sdentia.

3dly. Connivance. Ayliffe, Parer. 226, speaks of the case of a
husband prostituting his own wife, as one wherein a divorce
cannot be had by reason of that adultery; but the law of this
country does not require it to be shown that he has been the
active agent of his own dishonour. Indifference and neglect, fairly
imputable to a corrupt intention, are sufficient.

Eecrimination, or a set-oif of equal guilt, is founded on the
principle of the Koman law ; which withholds from a guilty hus-
band the remedy of a divorce against a guilty wife. This principle
appears a good, moral, and social doctrine.^ The party cited is
entitled to be dismissed as respects the particular complaint
charged in the libel, though that charge be proved, as if no oflfence
had been committed or proved.

It appears, from GUhert's Jus Canonicum, that recrimination
was formerly not admitted in the courts of France ; but in this
country it was recognized by all the delegates in the case of Lord
and Lady Leicester, in 1737, and has been received here as a suffi-
cient plea in bar to a suit for divorce by reason of adultery, ever
since. " Ea Lege quam amho contem/pserunt 'tieutur vindicetur,
paria e? i/m delicta mutua pensatioue dissolvuntur" is said to be
the ma^Jm of the civil law, upon which the plea is founded.*

A single act of adultery committed by either party (husband or
wife) a< any time before sentence, will bar a sentence of separation

1

mi

c^

1 Ayliffe, Parer. 48, 226.
4 2 Hogg. 2»2.

2 TU. 214.

3 1 Hogg. Con. 147

1424

PROCEEDINOS IN THE MASTER'S OFFICE.

at the suit of the other party,^ or will compel the court to dismisB
both parties, adultery being mutually, or reciprocally, charged in
the cause.^ And the courts must allow either of such parties to
plead adultery against the other in any stage of the cause, whe-
ther before or after publication, and how long soever this may have
passed, or the cause may have been depending ; it being pleaded
within a reasonable time after coming to the proponant's know-
ledge.^

Nor does it seem to make any difference, that the act of incontin-
ence did not take place till after the discovery of the wife's infidelity,
and the voluntary separation which ensued thereupon; and although
there was no reason to believe but that the husband had conducted
himself with propriety, up to that time.*

Where neither party has an interest in the suit, that is, when the
proceedings are ad jmhlicam vindictann, and not for a divorce, re-
crimination is no plea : for there, the public, and not the prosecutor,
is the injured party, and it can be no excuse for the breach of the good
order of society by the one party, that the other has been guilty of
the like also.^

mi
An

itil

vie

a

a

if
\ II

The doctrine, that this, if proved is a valid plea in bai-, has its
foundation in reason and propriety; it would be hard if a man
could complain of a breach of contract, which he himself has viola-
ted.«

As it is no answer to a charge of adultery, that the parties were
living separate at the time the adultery was committed, neither
does it impeach the validity of a recriminating allegation that the
adultery there charged, was committed during a voluntary separa-
tion.^

If once the guilt of the husband, the party complained of, be estab-
lished, the onus probaruii shifts, and if he seeks to deprive his wife
of her remedy, by imputing to her criminality of any kind, he

1 1 HasKf. 728 ; 1 Harji/. Con. U7, 162. 2 2 Hogg. 376; 1 Ilagg. Tl*;\Add. 411.

A 2 Add. 25». 4 2 Hag. Con. 295.

6 1 Hag. Con. 148. 6 1 Hag. 790.

7 2 Bag. Con. 295 ; 1 Hag. 789 : 1 Hag. Con. 142, in note.

DIVORCE — ALIMONY.

1425

istab-

wife

d, he

must make good that charge by evidence, which admits of no
dispute.^

Where adultery is pleaded by way of recrimination, and as a bar,
it is not necessary to prove such strong facts as are required to con-
vict the other party in the principal suit ; for to obtain a divorce
a man must have a pure character.^ But the evidence in such
a case ought to be from very credible witnesses.^

Nor will the condonation of a wife bar her of her right to recrim-
inate, for then she seeks only to be dismissed ; when condonation
is pleaded as a counter plea to compensatio pleaded in bar, it is in-
sufficient, for it is not a rule that whatever is a plea in bar, and
disables a party from bringing the suit, likewise destroys the de-
fence.*

The general conduct of a husband, has been considered sufficient
to support a recriminating plea in bar, though it would not have
been sufficient to support an original and substantive charge of
adultery ; for it is a general principle, that many things are good
for one purpose, though not for another.^ Thus, where a husband
failed in his endeavours with several females, but from no want of
purpose or activity on his own part, but from an honest and power-
ful resistance on the other, it may fairly be concluded, that where
no such resistance was to be apprehended, the criminal act would
have taken place.^ So, if the criminal intention of the husband be
satisfactorily proved, and it be also proved that the conduct of a
particular female, whose chastity he had before solicited, was differ-
ent on former occasions when she had resisted him ; and, moreover,
if after being discovered in an improper situation with this man,
»iie ceases to complain, her silence and submission afford the strong-
est presumption that his attempt has been more successful.^

It must, however, be remembered, that although a plea of recrim-
ination in bar of adultery may be sustained on slighter circumstan-
ces than would be required to sustain an original charge of adultery,
still the facts and circumstances alleged in such plea, must be of

n

11.

1 3 Hagg. 360.
3 '.! Lee, 384.

6 1 llayg. Con. 162.

7 1 Hayy. Con. 378.

2 1 Hagg. Con. 295 ; 1 Hagg. 721.
4 1 Nagg. 797.
tf Jb.

1426

PROCEEDINGS IN THE MASTER'S OFFICE.

Huch a nature, as to lead to the conclusion that adultery by the
])ai'ty against whom the recrimination is pleaded, has actually taken
place. In Chettle v. Chettle,^ Sir J. NichoU said, " I have not heard
a case stated, in which, there being proof of adultery by the wife,
the mere solicitation on the part of the husband has been considered
a bar. But solicitation of chastity will revive condoned adul-
tery."2

A recriminating allegation, pleaded as a defence to adul^/cry, may,
if the original charge be not proved, operate as a substantive case
upon which a divorce may be founded.

In a case where a wife brought a suit for separation, by reason of
adultery, the husband denied his own guilt, and gave in a recrimi-
atory charge ; both parties prayed a separation. Tho sentence of
the consistory court was, that the wife had failed to support her
libel, but that the husband had proved his recriminatory allegation ;
and accordingly decreed a separation.^ Confirmed on appeal.*

So, where the wife libelled the husband for cruelty and adultery,
the husband answered by a recriminatory charge of adultery against
the wife ; the court held the cruelty and adultery of the husband
not proved, but that the adulteiy of the wife was proved ; and pro-
nounced for a divorce-"

The wife having failed in a charge of adultery, and a recrimina-
tory plea on the husband's part being proved ; cruelty, and the in-
troduction of his wife to a female of loose character, the wife's guilt
not being connected with such introduction, will not bar his prayer
for a divorce.®

Cruelty cannot be pleaded in recrimination to a charge of
adultery, and as a bar to a divorce for such adultery.^ Nothing,
indeed, except adultery can be pleaded in bar by way of recri-
mination to a charge of adultery. The delietum must be the same.

1 3 Phil. 608.

3 Harris v. Harris, 2 Hag. 376.

i Kenrick v. Kenrick, 4 Hair. 133.

• 2 Hagq. 87&

7 1 Hogg, Con. 461.

2 1 Uagg. 762.
4 Ih. 511.

DIVOnrK— A nULTERY.

U27

Neither are indifference, ill behaviour, or cruelty pleadable in a
suit for adultery. Thoy will not justify a wife's criminal
conduct.^ In the case of Harnn v. Ilorris,'^ the Court
said, *' The citation states the suit to have been brought by the
wife for adultery alone. Tiie charge of cruelty, therefore, was not
pleaded in the libel, nor could it have been pleaded responsively
to the allegation admitted on behalf of the husband charging Mrs.
H. with adultery ; for there is no point, as it appears to me, more
settled than that cruelty cannot be pleaded in bar of a charge of
adultery." At an earlier period this question seems not to
have been considered as settled. In Chambers v. Chamber 8,^
the Court said, " On this plea a question might arise, whether
a party would be entitled to bar her husband from his remedy
of divorce for adultery proved against her, by the plea of
cruelty. I am inclined to think she would not. A wife has a
right to say, ' You shall not have a sentence against me for adul-
tery, if you are guilty of the same offence yourself.' The received
doctrine of compensation would have that effect, because both
parties are in eodem delicto ; but this is not so in recrimination of
cruelty : the delictum is not of the same kind. Here the husband
is the * jtrlor petens' in a suit of adultery ; and I take the general
doctrine to be, * that a wife cannot plead cruelty as a bar to
divorce for 'ler violation of the marriage-bed.' "

Condonation is forgiveness of former adultery, legally releasing
the injury ;* but, to make it operate as a bar to a suit for adul-
tery, there must be a complete knowledge of the adulterous con-
nexion, and a condonation subsequent to such knowledge.'*

Condonation may be either express or implied ; expressed either
in words or in writing, or implied from general conduct. It may
be implied by the husband cohabiting with a delinquent wife ; for
it is to be presumed he would not take her to his bed again unless
he had forgiven her.*'

But the effect of cohabitation is justly held less stringent in the
case of a wife. She is more sub potestate, more inops consilii. She

1 2 Hagg. 92. 2 2 Hagg. 411.

3 1 Hagg. Con. 461. 4 1 Ua(ig. 703 ; 2. Phill. 411.

6 1 Hagg. 733 ; 3 Hagg. 361, 602 ; 8 Hagg. 118. 6 1 Hagg. 703 ; 3 Hagg. 83.

66

■3 <f ,

3:

<a

1^

I-

1428

PROCKKDINOS IN THK MASTERS OFFICK.

may entertain nioit; hopes of the recovery and rcfortn of fier Ihib-
band. It wouhl be hard if condonation hy ini[)lieati(Hi were held
a strict bar a(^ainst a wife, it is not improper that she may for a
time show a i)atient forbearance. She may find diniculty either in
quitting her husband's house or withdrawing from his bed. The
husband, on tlie contrary, cannot be compeik-d to the bed of his
wife. A woman may submit to necessity.^

In order to found condonation wliere tlie parties have separate
beds, there must l)e something of matrimonial intercourse proved.
It cannot rest on the negative fact of the wife not withdrawing
herself;- but it seems that a huHbaud, by pleading that the wile
slept at his house the night after the hist act of adultery charged
in the libel, of which adultery he was informed, takes on himself
the onus of showing, that they did not sleep together on that night ;
though generally a party, relying on condonation, must plead it.''

The question, What amounts to condonation ? must necessarily
depend upon the circumstances of each particular case, always
bearing in mind the above principle, that the presumption of con-
donation in the case of a wife is never so strong as in the case of
a husband. If she overlooks one act of human infirmity, it is not
a legal consequence that she lias pardoned all other acts, and
tolerates every species of debauchery. A woman has not the same
control over her husband, not the same guard over his honour,
nor the same means to enforce his observance of the marriage
vow.* Therefore it has been held that mere lapse of time in the
case of a wife is no condonation ;'^ for foib^arance on her part
does not weaken her title to relief ;" but negle( ;i on the part of the
husband to institute proceedings, betrayii .<:; apathy to the injuiy
of which he eventually complains not satisfactorily accounted for,'^
or a continuance to cohabit after circumstances of suspicion
have been brought to his knowledge f are sufficient to
bar his remedy. So, also, in the case of a wife ; very
long acquiescence after knowledge, amounting to a license,
woub* frustrate her remedy ;" in the case of a husband great

1 1 Ilagg. 793, 794. 2 1 Hagg. 704.

3 3 Uagg. 84. 4 1 llagy. Con. IS.*? ; 1 Hagg. 793.

6 1 Hagg. 766. C 1 IfngO- 7«6 ; 2 Hagg. Con. 279 ; 3 Hagg. 355.

7 Dobbyn v. Dobbyii, Poyntcr, 233 2 Hagq. Con. 27!), 319 : 3 Hagg. l.S2,348- 2 Phill. 161.

8 1 Ad. 448 ; 3 Hagg. 86. 9 2 I'hill. 153; 1 Hagg. 740.

DIVORfK- ADUl/rERY.

1429

facility of condonation IoikIh to an inforenco that ho dooa not
duly eHtimatu tho injury, and will indiicu the Court to look at his
Hubsoquunt conduct with jealousy.^ The condonation of adultory
by a husband, still more, repeated reconciliations after repeated
adulteries, create a bar of <?reater effect, than the condonation of
a wife of repeated acts of cruelty.^

All condonations, however, are considered to be, expressly or
impliedly, upon condition that the injury shall not be repeated.
Condonation is not an absolute and unconditional forj^ivoness.''
It is R promise on the implied condition that the injnry shall not
be repeated, and that the party condoning shall be treated with
conjugal kindness. On breach of which condition, the right to a
remedy for former injuries immediately revives.* If the offence
forgiven is afterwards renewed, the party has a right to revert to
former facts, if she bring them in conjunction with the hitter.*^

)f the

|njuiy

for,7

liicion

It to

very

sense,

I great

35r>.

Where the plaintiff in an alimony suit, after an order for in-
terim alimony, had been made returned to her husband's house, and
resided there for some time, but was afterwards obliged to leave by
reason of cruelty, a motion to set aside t^o interim order on the
ground of condonation was refused with costs,*'

The effect of condonation, therefore, is entirely got rid of, and a
former charge revived, by a repetition of the injury complained
of ;^ nor is it necessary that clear proof of actual adultery should
be given to get rid of condonation of previous adultery. If it were,
the revival would be useless, for the subsequent act would be
sufficient to sustain the suit.^ Therefore solicitation of chastity
by a husband though no bar to a suit against him by a wife for
adultery," would nevertheless be sufficient to revive a previous
adultery after an intermediate condonation ;^''it has been contend-
ed that, admitting these propositiL-as, yet that the second and
reviving injury must be ejusdem ■ cneris with the injury revived ;
but this is not the rule, it being now clearly established that

1 3 Hagg. 78 ; 2 Phill.
3 1 Haijg. 782 ; 1 Hang
5 Maxu^iU V. Maxwell,
7 1 llagg. 761.
9 3 PhUl 508.

411.

Con 130 ; 1 Hagg. 701.
1 Chin. Rep. 27.

2 2 Hagg. 113.
4 1 Hagg. 761, 702 ; 781,786.
0 Maxwell v. Maxwell 1 Cham R. 27.
8 1 Ha<ig. 761 ; 2 I'hill 157 ; 3 Hagg. 63.5.
10 Hagg. 762.

1430

PROCEEDINGS IN THE MASTER'S OFFICE.

cruelty will revive adultery.^ So also the attempts of a husband,
when affected with venereal disease, to force his wife to his bed not
only amounts to cruelty, but to evidence of adultery, sufficient to
remove condonation of either.^

, ji i

I'i:'

t!

Circumstances may take away the effect of a condonation which
would not support an original cause ;» for it does not follow that,
because condonation will bar the remedy of a party agent, it will
destroyjthe defence of a party recriminating.*

A conditional promiae made by a wife under force and violence,
the condition never being performed, is no condonation.^ Nor,
her unwilling return to live in the same house, if unaccompanied
by connubial cohabitation.^ So, also, if the wife withdraws from
the husband's bed, though not from his house, the continuing in
the house cannot be set up as condonation ;^ especially, if on
execution of articles of separation, a wife allowed a husband to
have a bed in her house, at the entreaty of his friends that he
should be merely under the roof by sufferance.*

Condonation may be implied from delay, in instituting legal
proceedings, not satisfactorily accounted for. Delay under such
an injury, founds a presumption of passive, or even criminal
acquiescence. In the case of Best v. Best,^ an affidavit of the
husband was allowed to be read to explain and account for the
delay of five years ; upon which, adultery having been proved, a
divorce was granted ; but where a wife did not account for her
delay, the suit was dismissed.^**

It seem , that a lunatic, having recovered, may condone adul-
tery, and resume cohabitation after a divorce a mensa et thoio,
instituted by his committee.^^

Condonation ought, in strictness, to be pleaded, that there may
be an opportunity of contradiction. ^^ gut if it appear clearly upon
the depositions, that there had been cohabitation subsequent to

1 1 Hoffg. 783 : 8 Hag. 636.
8 1 H<Mg. 782, 789.

6 6 1 Hogg. 767.

7 Hogg' 782, 789, 764 : 2 Hogg. 118.
» 2 PhiU. 161.

11 2 Phai 160.

2 1 Hagg. 767.

4 1 Hagg. 797.

6 1 Hagg. 782, 789.

8 2 Hagg. 118.

10 2 Phut. 166 ; sed. vid. 1 Hagg. 134.
12 1 Hagg. Con. 202.

DIVORCE — ADULTERY.

1431

the detection of the wife and knowledge of the husband, the Court
might call on the husband e v officio to notice it.^ Therefore where
it appeared that the wife slept at the husband's house after his
knowledge of her adultery, he takes upon himself to reconcile that
fact by showing that they did not sleep together ; although gener-
ally, the party relying on condonation as a bar should plead and
prove it ;^ but it seems, unless pleaded, it cannot operate as a
bar.'

Condonation and connivance * are especially different in their
natuxe, though they have the same legal consequence of barring a
party of his remedy. Condonation may be meritorious ; conniv-
ance necessarily involves criminaUty.^

Connivance on the part of the husband will, in point of law, bar
him from obtaining relief on account of the adultery which he has
allowed to take place, upon the principle that volenti non Jit in-
juria.'^

In order to constitute connivance, it is not necessary that the
husband should actively contribute to his wife's dishonour: the
expression of Sanchez, on this head, ** Vir qui uxorem prostituit ; " '^
seems too strong ; passive acquiescence is sufficient, pro-
vided it be accompanied with an intention and expectation
of leading the wife to guilt ; but mere inattention, over con-
fidence, dulness of apprehension, or indifference, are not
sufficient to constitute connivance : there must be wilful concur-
rence.* It is not mere imprudence and error of judgment that the
law deems connivance. Conduct to bar, must be directed by cor-
rupt intention." A plea of connivance must be from its natm-e
circumstantial, and consist of many facts ; trifling, perhaps,
when taken separately, but taken altogether, sufficient to
satisfy the Court; a husband framing a scheme to betray his
wife, will hardly disclose it by any one broad unequivocal

1 1 Hogg. Con. 298. 2 3 Hogg. 84.

8 1 Hogg. 761 ; sed vld. 1 Hogg. 795.

4 It is to be observed also that connivance must always precede, or be cotemporaneous with, the

act of adultery. Condonation must always be subsequent.
6 3 Hag. 80, 354.

6 1 Hag. Con. 140 ; 3 Hag. 58, 121 ; As to the modification of this principle »■ regards the wife's

conduct, vid. 2Hagg. Con. 279 ; 3 Hagg. 318, 362 ; 2 Hag. Con. 371 : 3 Hag. 366.

7 Saiukez de Matrimonio, Lib. 10, Disp. 5, Nos. 3, 4.

8 S Hag. 69, 76, 106, 138.

• Par Lord Stowell, in Hoar v. Hoar, 3 Hag. 140.

Im

iiiii

t

hW-

■*>.

r

l:t32

PROCEEDINGS IN THE MASTER'S OFFICE.

'm

ri'ij

act.^ Nor is it necessary to prove connivance to actual
adultery any more than it is necessary to prove an actual
and specific act of adultery. If a system of connivance at improper
familiarity, almost amounting to proximate acts, be established, a
corrupt intention will be inferred, and more direct proof rendered
unnecessary f a husband is not barred by permission of opportun-
ity for adultery ; but, if he continues the meeting to obtain suflti-
cient evidence of the fact, it is legal prostitution.* •

The notoriously debauched character of the paramour ; his
exclusion from all respectable female society ; the introduction of
him by the husband to his wife ; the encouragement of their inti-
macy ; the allowing her to accept u sum of money from him ;
expostulations from her family at such intimacy ; the refusal of
the husband to attend to them ; and improper liberties and fami-
liatities in his presence, and without his remonstrance, are
material facts to show connivance.* We have seen above
that confession of the wife is not a sufficient foundation on which
alone to build a sentence of separation ; but although by the rules
of law, it cannot satisfy a judge, it must satisfy the mind of a hus-
band, especially when dii-ect and uneciuivocal.^ But where a wife
confesses a guilty passion, but denies criminality, if a husband acts
unwisely, the '^ourt will not deny him his remedy unless it appears
that he has acted corruptly."

Collusion is an agreement between the parties, for one to com-
mit, or appear to commit, an act of adultery, so as to suffer the
other to obtain a remedy at law, as for a real injury. The law
permits no co-operation for such a purpose, and refuses a remedy
for adultery committed with such intent ; but it is not proof of
collusion that after the crime is committed both parties are desir-
ous of a separation.'^ A judgment by default suffered by the
paramom", and the absence of any defence by the wife in the
ecclesiastical Court, may be, but are not necessarily, proofs of
collusion.^

1 3 Hagg. »4.

2 3 Hagg. 94, 95 ; 3 Uag(i. 154.
. 3 3 Hagg. 81.

4 3 Hagg.. 87. A.-* to culpable neglect, iimouiaing tc criminal iiogligcnco, vid. also 3 Hagg, 163.

5 3 Hagg. 77.

(i 3 Hagg. 141, 142, 143.

7 3 Hogg. 130.

8 3 Hagg. 130, 133 ; 1 Hagg. Con. 4 90

' 'i

DIVORCE — ADULTEKY.

1433

If a husband is once in possession of a fact of adultery, and still
continues his cohabitation, it proves connivance, collusion, and
facility, and bars his right to relief.^ But he is not bound to show
the time when the fact iirst came to his knowledge. It might be
prudent and expedient for the success of his suit, that he should do
so, but it is not absolutely necessary, something must be allowed
for convenience.^ But constant intercourse continued for four
years between a wife and her paramour, not clandestine, but the
common subject of conversation among servants and friends, rais-
ed a grave suspicion of the husband's knowledge and acquiescence f
but still, in the particular case, the divorce was granted, as the
husband could not be affected with knowledge. In the case of a
wife, a want of promptness in noticing the infidelity of her hus-
band, ought not to be pressed against her as barring her legal
remedy, unless in very particular cases. Certainly a wife would
not be justified in living in the same house with her husband's
concubine, sharing the turpitude of his crime, and partaking of a
polluted bed ; but she might have a reasonable hope of his return
to her society ; and forbearance under this spes recuperandi has
never yet been held to constitute a bar to her legal remedy, when
every hope of that kind should be extinct.* A wife has not the
same control over the husband, as a husband has over the wife ;
nor the same guard over his honour ; nor the same means to en-
force observance of the marriage vow.^ A facility to condone on
the part of a wife seems meritorious, whilst a similar facility on
the part of the husband would be degrading and dishonourable.®
The relative ages of the parties is proper to be pleaded ; where the
husband is much older than the wife, it may perhaps, impose on
« him an obligation to more vigilant superintendence.^ :

Though malicious desertion does not operate as a positive bar,
yet if a husband withdraw without a cause, and when a wife
required his active superintendence, it betrays a want of prudent
attention and honest caution, which may, on other grounds, de-
prive him of his remedy.*^

1 3 Hogg. 76, 83.

2 2 Hagg. Con. 279.

3 3 Hagg. 125. \

4 3 Hagg. 125 ; 3. Hagg. 354,

5 1 Hagg. Con. 133 : X'Hagg. 703.

6 1 Hagg, 762, 760, 786 ; 3 Hagg. 78.

7 8 Hagg. 163.

8 1 Uagg. Con. 154 ; 2 Ad. 290.

1434

PROCEEDINGS IN THE MASTERS OFFICE.

An allegation not defensive in respect of adultery, but charging
the husband with connivance, does not admit the charge of adul-
tery.^ But it seems questionable whether a party, especially a
husband, can set up connivance as a defence, indirectly and inci-
dentally, d,nd by interrogatory only, without giving the other party
a full opportunity to answer.'^ Although it is clear that the
Court or a party may take the objection of connivance
where it is clearly appears on the evidence adduced to estab-
lish the adultery.* Indifference, ill-behaviour, or cruelty, is not
pleadable in answer to a charge of adultery, nor relevant to a
charge of connivance.*

A husband applying for a divorce must come with clean hands,
if he have connived at his wife's adultery with A. he cannot take
advantage of adultery with B. happening almost about the same
time ; if he has relaxed v^dth one man, he has no right to complain
of another. * But where the improper conduct of the wife was
long antecedent, it was held no bar ; as where there had been a
separation for five years, the husband was not barred of his remedy,
by having connived at the improper conduct of his wife, previously
to separation ; especially in a case where children had been born
of the subsequent adulterous connection, who had been baptized
by the name of the husband, for this may be a severe injury and
an irreparable grievance, as the presumption of law is, that these
are the legitimate children of the husband.^

Suits for divorces by reason of cruelty, propter savitiam, are
usually brought by the wife, as the more infirm party, though they
may be, and indeed have been, successfully brought by the hus-
band.^ Every thing is in legal construction savitia, which tends
to bodily harm, or to the injury of health, and in that manner
renders cohabitation unsafe ; wherever there is a tendency only,
to bodily mischief, it is a peril from which the wife ought to be
protected, because it is unsafe for her to continue in the discharge
of her conjugal duties.^ Unkind conduct, though accompanied by

1 3 Hogg. 58, 91.

2 Fenton v. Fenton, 3 Uagg. 352.

3 3 Uagg. 77 ; 8 Hagg. 125.

4 8 Hagg. 92.
6 8 Ragg. 87.

6 3 Hagg. 122 ; note b ; 3 Hagg. 147.

7 Hagg. Con. 409.

8 2 Hagg. Con. 149 ; 2 rhill. 06 ; 1 Hagg. Cod. 400.

DlVORCl — ADULTERY.

1435

words of menace, is not legal stevitia unless they are expressions of
determined malignity, or unless accompanied with blows ; if there
are words of serious menace, it matters not that they are address-
ed to a third person, the test being, whether, or not, they excite
reasonable apprehensions.^ Nor is it necessary that there should
be many acts ; the Court indeed is indisposed to interfere on
account of one slight act, particularly in cases of longi cohabitation,
because if only one instance of ill treatment is proved, it may be
hoped that it will not be repeated ; but unless there are some cir-
cumstances in the case restraining the Court, one act is fully
sufl&cient to authorize its interference.^

k

, are
they
hus-

mner

I only,

I to be

large

3d by

Where a few days after lier departure from her husband's house,
the wife was found with severe bruises and injuries upon her per-
son, which in the opinion of a medical man must have been caused
by external physical violence, not occasioned by a fall or other
accident, and the husband having been shown to have used violence
towards her on other occasions, and in other ways had so conduct-
ed himself as to raise a strong presumption that the bruises and
injuries v/ere inflicted by him, the Court made a decree for
alimony.^

In a suit by a wife for alimony on the ground of cruelty, her own
conduct was proved to have been in some respects blameable, but
several instances were established of gross cruelty towards her on
the part of her husband far beyond what the provocation could
justify ; the last proved instance of such cruelty occurred a few
months before the husband left the country. Until this time they
had lived together. During the husband's absence the wife, by
arrangement with him, occupied a cottage of his and received a
weekly allowance for the support of herself and their children. On
his return, which took place some months afterwards, he refused to
live with her, leaving her, however, in possession of the cottage, and
continuing to pay her the same weekly sum as she received during
his absence ; and it was proved that after his return he had said
that be would not live with her ; that he was afraid they would

'1

1 1 Hogg. 776 ; 4 Hagg. 26S.

2 1 Hagg. Con. 469 ; 1 Hogg. 768.

a 1 Jaekson v. Jaekaon, 8 Orant 4M.

I

14.36

PROCEEDINGS IN THE MASTER'S OFFICE.

ne^ver agree, and that he might do something which would subject
him to punishment; somthing which might bring a rrpe round
his neck. Held, under these circumstances that the wife was en-
titled to a decree for alimony.^ This case is interesting, as the
difficulty of dealing with a husband who had deserted his wife as
the law then (1852) stood is pointed out, and it was perhaps for
the purpose of removing this difficulty that the subsequent statute
of 20 Vic. c. 56 was passed.

A subsequent case*^ shows how valuable the powers given to the
Court by 20 Vic. c. 56, and 22 Vic. c. 12 have proved to be. It was
there held that the right of the wife is to reside with her husband
in his home or the joint home of both ; where, therefore, it ap-
peared that the llv^^ i-psided with his children (by a former
wife) and compelled 1a ,vIic' to live at lodgings, the Court, although
no violence or other ill-treatment was dhown on the part of the
husband towards his wif j, ^^ad decree for alimony in her favour ;
and that, although it was shown ihat during such time the hus-
band had been in the habit of visiting and remaining with his wife.

In a suit for alimony tlie wife must prove herself aggrieved,
otherwise there is no foundation upon which the Court can proceed
to pronounce a decree for alimony. The defendant in his answer
to an alimony suit, denied the acts of cruelty charged against him
by the bill, and no evidence was given to establish the charges of
cruelty, but at the hearing the defendant consented to a decree being
made for alimony : the Court, on the grounds public policy, re-
fused to interfere. In such a case the party could attain the object
they had in view, of effecting a separation by arrangement out of
Court : the objection to pronouncing the decree sought was, the
Court doing that without proof of necessity for its intervention,
which it can only properly do upon proof of such necessity.^

A groundless and malicious charge against the wife's chastity,
followed by turning her out of doors, and which charge is not at-
tempted to be pleaded or proved, may be alleged with other acts of

1 1 Severn v. Severn, 3 Grant 431.

2 2 Weir v Weir, 10 Grant 565.

3 1 Qrcuey v. Gracey, 17 Grant 113.

DIVORCE — ADULTERY.

1437

cruelty, as a ground of separation.^ So spitting on a wife, or
obtaining her property by imposition, and compelling to depart by
threats.^

What merely wounds the mental feelings whilst unaccompanied
by bodily injury, either actual or menaced, can rarely be noticed by
the Court ; mere austerity of manners, petulance of temper, rude-
ness of language, a want of civil attention, even occasional sallies,
if they do not threaten bodily harm, do not amount to legal cruel-
ty ; they are high moral offences in the marriage state, not inno-
cent in any state, but still they do not amount to such legal
cruelty, against which the law will relieve ; still less is it cruelty,
where it wounds not natural feelings, but those only arising from
particular rank or situation, for the Court has no scale of sensi-
bilties by which it can guage the quantum of injury done and felt ;
and though such considerations, when stated merely as matter of
aggravation, are not absolutely excluded, yet, they cannot of them-
selves constitute legal cruelty.^ The main test is, can cohabita-
tion subsist without personal danger ? Where personal safety is
in jeopardy, or there is reasonable ground to apprehend such a
consequence, it is the bounden duty of the Court to protect from
risk or danger.* Necessity alone confers on the Ecclesiastical
Court the power of putting those asunder whom God has joined,
and a regard to personal protection must define the exercise of that
power. But mere words, however reproachful, unless they inflict
indignity and threaten violence, can never lay a foundation for a
sentence of separation/ A wife must endeavour to disarm such a
temper by weapons of civility and kindness, if these fail, the law
requires her to submit to the consequences of her own injudicious
choice.®

The bringing a suit for restitution of conjugal rights is not
necessarily a bar to a sentence of separation for cruelty, even
where the imputed cruelty has been committed prior to such suit;
nor are acts happening anterior to such suit, though not precisely

X

1 1 Hagg. 769 : 1 Bagg. 163.

2 1 Hogg- 776.

3 1 Hagg. Con. 37. 39, 40.

4 4 Haqg. 266 ; 1 Hagg. Con. 361 ; 1 Hagg. 773.

5 1 Hagg. Con. 409 ; 2 Hogg. Con. 168 ; i Phill. Ill 1 Hagg. 775.
1 Hagg. Con. 364.

1438

PROCEEDINGS IN THE MASTER'S OFFICE

in the nature ]of legal cruelty, to be altogether excluded from con-
sideration, if they denote harshness and severity : but, still in
ordinary cases, little reliance could be placed on them, when the
conduct of the party in bringing such a suit seems so inconsistent
with their existence.* ' '

■ ■M^

But no wife can obtain the interference of tlie Court to protect
her from treatment which she has drawn upon herself by her own
misconduct, she must atjirst, at least, seek a remedy in the reform
of her own manners.^ If, however, it should appear, that even
misconduct on the wife's part has produced a return from the hus-
band, wholly unjustified by the provocation, and quite out of pro-
portion to the offence, the Court would still interfere.^ It is not
necessary that the conduct of the wife should be entirely without
blame, for the reason which would justify the imputation of blame
to the wife, would not justify the ferocity of the husband.* The
Court will also notice relative cruelty, for what may be tolerated by
one, may not be by another.^ A husband's attempt to debauch
his women-servants, is a strong act of cruelty ; so also is a ground-
less and malicious charge against his wife's chastity ; and though
neither, of itself, would be sufficient for divorce, yet in conjunction
with other acts, they would weigh as acts of intrigue and indig-
nity.® But the taking to a separate bed cannot be pleaded by the
wife as an act of cruelty.'

Cruelty, like adultery, may be condoned, Westmeath v. Weatmeath,^
and upon similar principles may be revived after condonation ; but,
when cruelty generally consists of successive acts of ill-treatment,
if not of personal injury, something of a condonation of the earlier
ill-treatment necessarily takes place.^ In one case, where there had
been a long separation, nearly twenty years, the court considered
the effect of it, was to approximate the acts committed in the two
periods of cohabitation ; if there had been no separation, the court
would have considered the former acts as obsolete, and that the

1 4 Uagg. 272.

2 2 Hagg. Con. 169.

3 1 Add. 423.

4 1 Hagg.Qon. 459.

fi 1 Uagg. 782, and 1 Hagg. Con. 455.

6 1 Hagg 760.

7 1 ffagg. 760, 775.

% Weatmeath v. Wcgttmath, 2 Hag. 118.
9 2 Uagg. Supp. 118.

DIVOKCE— CRUELTY.

1439

husband was emendatus morilma, but the separation got rid of the
intermediate years, and the former acts were to be looked at, as if
they had happened recently.^ But although condonation may be
set up as an answer to a suit, for cruelty, it seems that recrimina-
tion may not. In Chambers v. Chambers,^ Lord Stowell says, " If
the wife was the p^'ior petens in a suit of cruelty, I do not know
that she would be barred by a recrimination of that species, for
the consideration would be very different, the court might not
oblige her to cohabitation, which would be dangerous."

A plea of cruelty may be introduced with considerable effect,
when adultery is, at the same time, charged against the husband ;
because proof of cruelty, in such a case, adds greatly to the proba-
bility that the charge of adultery is well-founded ; for when the
affections of a husband are estranged from his wife, they are more
likely to be directed to less worthy objects.^ So also it may be
admissible, as introductory to the history of an adulterous connec-
tion.* Where cruelty and adultery are both charged, it may not be
necessary to proceed on the charges of cruelty at all.^

A party being before the court on a charge of cruelty, acts of
adultery, subsequent to the citation, may be pleaded.® In a sub-
sequent case, where it appeared that the husband was cited in a
suit for cruelty, in February 1831, to which a defensive allegation
on his part was admitted in June 1832 ; an allegation on the part
of the wife was subsequently put in, pleading adultery by the hus-
band in 1827, 1828, and 1829 ; it was contended that such allega-
tion was not admissible, and that no case had gone so far as to
allow acts of adultery to be pleaded which had taken place pre-
viously to the original suit, although acts of adultery subsequent
to the suit had been admitted, though not contained in the original
libel ; but the court not admitting the distinction, the allegation of
the wife was admitted.'^

A wife sued her husband for a divorce, on the ground that he
had been guilty of unnatural practices, and a libel was given in

?

091

1 1 Hagg. 781 ; 4 Hogg. 611.

3 1 Hagg. Con. 140.

4 3 PhUl. 600.
6 2 PhUl. 67.

6 1 Hagg. 22.

7 Sampson v. Sancton, iHagg. 288.

2 1 Hagg. Con. 452.

1440

PROCEEDINGS IN THE MASTER'S OFFICE.

4 'H

tlie consistorial court of York, pleading a conviction, and a sentence
to two years imprisonment ; the court having rejected the libel,
the cause was appealed to the court of delegates, who reversed the
sentence of the court below, and decreed a divorce ; an act of
parliament was subsequently obtained, by which the marriage w^as
dissolved.^

In Mogg v. Mogg, 2 Add. 292, the libel charged cruelty, and
unnatural practices ; a distinction was attempted to be established
between this and the case above, on the ground, that the latter was
a conviction of an assault, with intent to commit, &c., whereas this
was a conviction for endeavouring to persuade E. K. to permit him
to take indecent liberties, a minor offence, though one of the same
kind ; but the court. Sir J. Nicholl, said, " The case upon the whole
amounts to that par' quod consortium amittitui'. Could the court
send the wife home to such a husband ; he refuses her access to
his person; he resorts to abominable practices, cruelty itself,
independent of that other charged ?"

A deed of separation is considered by the ecclesiastical court
as an illegal contract, implying a renunciation of stipulated duties ;
a dereliction of those mutual offices which the parties are not at
liberty to desert ; an assumption of a false character in both parties,
contrary to the real status personoe ; and therefore such deeds are
not pleadable in bar of proceedings for adultery.^

It is not to be considered as a matter perfectly light in the
behaviour of a husband, complaining to this court, that he has
withdrawn himself from his wife, without cause, and without
consent, from the discharge of those duties which belong to the
very institution of marriage ; this malicious species of desertion, is
a ground for divorce in some countries, certainly not so here ; but
it will not justify a wife in a resort to unlawful pleasures, because
lawful ones are withdrawn.^

Mere separation, in fact, cannot be made the ground of ;.
divorce.

1 Bromley v. Bromley, 2 Add. 169.

2 2 Hagg. Con. 142, 318 : 1 Hagg. 760, 789 ; 2 Add. 285, 302 ; 4 IJagg. f>14.

3 1 Hagg. Con. 164.

4 1 Hagg. Con. 120, 154, 142 ; 2 Add. 299.

DIVORCE — CRUELTY,

1441

ntence
) libel,
jed the
act of
ge was

;y, and
blished
ter was
las this
nit him
le same
le whole
le court
icess to
r itself,

i\ court
duties ;
not at

parties,
eds are

in the
he has
irithout
to the
j-tion, is
|re ; but
)ecausc

id of ..

Tf the court wore to f^rant Reparations, because the husband has
thought proper to Bcpjirjite himself from his wife, it would be to
•'.ontirra desertion, and gratify th(^ donertor, and the court would
then become the perpetual instrument of tliese voluntary and
illegal separations.^ Neither can desertion, though wilful, or as it
sometimes called, malicious desertion be made a ground of separa-
tion, though in conjunction with cruelty it frequently is.^

The mere desertion of a wife by a husband, though a malicious
desertion, will not bar a sentence of divorce, on proof of adultery
committed by the wife* The long abs nice of the husband was not
considered to amount to a desertion, in the case of Sullivan v.
Sullivan, 2 Add. 209.

A suit for a divorce may be instituted at the instance of the
parent or guardian of the minor ; and the court, in a case where
the wife's grandfather was appointed guardian, ad litem, on her
mother's renunciation, would not enter into the question whether
the husband might dispute the appointment of guardian, since it
was enough, if a third person could not take advantage of the
objection ; for, there being a guardian apparently appointed with
sufficient 'regularity, the court will presume the person sufficiently
qualified to receive it, until the appointment is hIiowu to have been
invalid.^

So also the committee of a lunatic, may institute such a suit, in
which case it was said by Lord Stowell, in Parnell v. Parnell,
2 Phill. 178 : " The question resolves itself into two points :
whether a lunatic is put out of the protection of the law, and
secondly if he is not, whether there is any mode in which redretis
can be obtained; on the first there can be no doubt; and it ne^i •••

1 I'aleji in his Moral, Philomphy. seems to consider tliis xs a sutHcicnt ground of divorce. B. 3
/'. 3 c. 7 ; and it is admitted by tlie laws of Scotland and Prussia, and was so in France after tlie
Revolution and before the Restorati(/n. In Scotland, four years' desertion was the period fixed on by a
statute passed in 1573 ; in practice, however, a shorter tiniu is admitted ; the first process is, to compel
cohabitation ; on the contumacy of the defendant, the muri-iaj^e is dissolved, and the statute is con-
sidered as satisfied, if four years intervene between the first desertion and final sentence. In America,
the practice varies in different States. In Maine, five years' desertion without cause, is required to be
proved. In Connectietit, wilful desertion for three years is considered sufiicieut. Kent's Comm. on
American Law, 105, n. Botli the civil and canon law allow a divorce for long absence, but are not
agreed as to the period ; in one place it is said, after two years ; in another, after three ; others have
held that the civiX law requires five years. In the council of Lateran, a sentence was allowed by the
whole council, which was given by a bisliop, i>ronounciiig a divorce for a woman, complaining that her
husband had been absent ten years ; fjjivin'^ also leave to the woman to marry again. But the truth is,
no absence, be it for any time whatsjover, doth properly ciuse a divorce at law. Godot. Abr. 494.

2 1 Uagg. Con. 120 ; 2 Add. 299. .

3 1 Hogg. Con.tt. '

U42

PROCEEDINOS IN THE iMASTER S OFFICE.

can be asserted, that the wives of hmatics should he universally
released from the dutieH of their niarria<?(; vow. It would be an
imputation on tlie laws of thin country, to suppose that it had not
provided some remedy af^aiust such a mischief. Upon princi-
ple, the powers of the committee must be upheld, to protect the
lunatic from the greatest of all possible injuries." And it was
also said, that the lunatic would have the power of condonatign, if
he recovered ; or might stand on what had been done for him.

There is no limitation of time for bringing a suit for divorce on
the ground of adultery. '* QKa'inrit< aacuifandi ju8 de adulferio
quoad pwnam, crhn'inalvm et civUein fyrcvscribatvr quinqueMnio,
quoad dlvortimn tamen pefendum, niCvquam pra'Mcribihtr."^ No
limitation is imposed by statute, or by any rule which the court
has laid down for itself. The court has no power by law to refuse
relief merely on the ground of lapse of time. Courts of law do not
afford any conclusive rule which should bind the ecclesiastical
court in such a question.' The first thing the court looks to, when
a charge of adultery is preferred, istlie date of the charge relatively
to the criminal act charged, and known by the party ; because, if
the interval be very long between the date and knowledge of the
fact, and the exhibition of them to this court, it will be indisposed
to relieve a party who appears to have slumbered in sufficient
comfort over them ; and it will bo inclined to infer, either an
insincerity in the complaint, or an acquiescence in the injury,
whether real, or 8Ui)posed, or a condonation of it. It, therefore,
demands a full and satisfactory explanation of this delay, in order
to take it out of the reach of such interpretations.'^ For the
purpose of explaining delay in such a case, the affidavit of the
husband, the plaintiff, was admitted to be read, though objected
to, on the ground that no evidence of the wife or husband could be
heard in such a case ; and that the cause which was concluded
must be determined by the proofs exhibited in it ; but the court
said that the wife did not suggest connivance or condonation as a
ground of defence, and it was necessary for the husband to explai :
the delay in order to satisfy the conscience of the court ; * but
where not so accounted for, condonation was presumed from the

3 Sanchez lib. 10, diep. 3 ; Poynter, 204.
1 Hagg. Con. 313.

2 1 Hagg. Con. 133 ; 1 Hogg. 740 >i.
4 2 Phill. 168.

DTVorcK — ADULTERY.

1443

(loliiy, and tho Huit (liHinisRod.' A liusbauil mav wait in ovdvv to
obtain adoqnato proof, bnt no lonj^or.- But this doctriuc is not to
l»o proHHed aji;ainst a wife. Forbourance on lit'i* part may be
excusable and oven meritorious.'' 'therefore mere lapse of time
will not l)ar a wife's remedv.* Even in the cas(^ of a husband, it is
not, it seems, invariably expected that he should show when a
barge first came to his knowled<j;('.'' Tn Elv'(>>* v. Eitues,'' the court
observed, " A husband has suspicions, he has some intimations,
h(* has enough to convince his own mind but not to instruct a legal
case. Tn that distressing interval his > tduct is nice; it is ditH-
cult to refrain from cohabitation, as the nieuis of discovery would
be frustrated, and if he continues cohabitation, it then becomes
liable to imputation." How far delay to institute proceedings leads
to an inference of condonation or connivance has been already shown.

It was solemnly decided it Lolly's case,^ that as by the law of
England marriage was indissoluble, and not to l>e diss >lved but by an
act of parliament, it could not be dis.solved by the courts of another
country. The judges held the conviction right, being unanimously
f opinion that no sentence or act of any foreign country, or state,
couhl dissolve an English marriage a vinculo matrhttonii for
grounds on wbicb it was not liable to be" dissolved <i vinculo matH-
nwnil in England. The same question also arose, very shortly
afterwards in the house of lords, in Tovey v. Lindsay.^ In that
case there was no decision, Lords Eldon and Redesdale considering
the question too imf)ortant to be decided upon the case as it was
tben brought up."

1

,. c

1 2 J'hill. IbX

2 3 Uagij. 181 ; and vid. Dohhyn v. Dobbyn, Poynter, 233 ; Ruding v. Ruding, Poyiiter, 231.

3 1 Uagg. Con. 133.

4 1 Hagg. 740, n. ; ib. 706. r> 2 Uagq. Con. 279.

6 1 Hagg. Con. 292.

7 1 R. & B. e. 0. 236. 8 1 Dnw, P. C. 117.

9 In America this question excites anxious consideration, from tlie intermarriai^es of citizens of
different states of the union, each state being inilepcndent and governed by its own laws.
Chancellor Kent, in his Commentaries, p. 107, says, " As.suininjj that in ordinary ca.ses tlie
constitutionality of tlie laws of divorce in the resiKJctive states is n'.)t to be questioned, the
embarrasini; point is, how far a divorce in one state has a valid ojjeration in another? If a
husband and wife were married, and reside in a Mtate, where divcjrees are not at all pennitted or
not to the extent, aiid for the same causes as in other states ; and tlie parties, or one of them,
re tire into another state for the express purpose of procuring; a divorce, and having obtained iti
return to thc^r native state and contract other matrimonial ties ; how are the courts of the
states, where the parties had their home, to deal with such a divorce? When a divorce was
brought in such a case, the court in Mas achusetts projjerly refused to sustain a libel fora divorce
and sent the parties back, to seek such relief as the laws of their own doinioile afforded. The
supreme court of Now York has refused to assist a party, who hud thus gone into another state, and
ohtiined a divorce on grounds not admissible in New Yorii, and procured an evasion of 11* laws
'I'hey would not sustain an action of alimony founded on such a divorce ; In another case it iield
u divorce in another' state obtained Uy the husband, when the wife resided out of the state, and
had no notice uf the proceeding, null and void ; because the court had no Juriudictiou over the

H

1444

PROCEEDINGS IN THE MASTER'S OFFICE.

Beazley v. Beazley} was a case of nullity of marriage proimotod
by the wife on the ground of a former marriage. The question
arose, whether such former marriage was dissolved a viTiculo by a
divorce in the commissary court of Scotland, so as to enable the
husband to marry again ; the marriage pretended to be dissolved,
having taken place in England, the second marriage in Scotland

The court, Dr. Lushington, said " Cases have been cited, in which
it is alleged that a final decision has been pronounced by very high
authority upon the operation of a Scotch divorce on an English
marriage, that it has been determined, that a marriage celebrated in
England cannot be dissolved by the sentence of a Scotch tribunal,
and that the contract remains for ever indissoluble. The author-
ities principally relied upon for establishing that position, are the
decisions of the twelve judges in Lolly's case, and the decision of the
present lord chancellor, on a very recent occasion, McCarthy v. Lc
Caix. If those authorities sustained to its full extent the doctrine
contended for, the court would feel implictly bound to adopt it ; but
I must consider whether in Lolly's case it was the intention of those
very learned persons to decide a principle of universal operation
absolutely, and without reference to circumstances ; or whether
they must not, almost of necessity, be presumed to have confined
themselves to the particular circumstances that were then under
their consideration. Lolly's case is very briefly reported ; none of
the authorities cited on the one side, or on the other are referred to,
nor are the opinions of the learned judges given at any length ; all
that we have, is the decision.

" In that case the indictment stated, that on the 18th of July,
Lolly was married at Liverpool, to Ann Levaia, and afterwards to
Helen Hunter, his former wife being then living. It was proved
that both marriages were duly solemnized at Liverpool, that the

case, when thej* had none over the absent wife So also, in the supreme court of Massachusetts,
in the case of a divorce fraudulently obtained. Sentences obtained by collusion being mere
nullities, and all other courts havinij; jiower to examine into facts upon a judgment obtained by
fraud." He adds, "The question is, whether, if such a divorce be procured in another ttat-' by
parties submitting to the jurisdiction, and after a fair investigation of the merits of the allegations
upon which the decree waa founded ; suci) a decree \k entitled to be received as valid and binding
upon the courts of the native state of the parties. A ^'raver question cannot arise under thin title
in our law." The learned author then enters into an able discuss'.on of the question, reviewing the
decisions of our courts and of the commissary courts in Scov'md. It appears that, upon the
principles of the English law, a marriage contracted in New York caimot be dissolved except for
adultery by any foreign tribunal ont iJ the United States, because the lex loci oontracUu ought
to goveni. Kent, 117. «.

1 3 Hogg. 889.

DIVORCE — FOREIGN.

1445

first wife was alive a week before the assizes, and that the second
wife agreed to marry the prisoner, if he could obtain a divorce.
The jury did not find that any fraud had been committed ; but there
does not appear to have been any discussion upon the very impor-
tant question of domicil. A case in which all the parties are domi-
ciled in England, and resort is had to Scotland, (with which neither
of them have any connection) for no other purpose than to obtain
a divorce a vinculo, may possibly be decided on principles which
would not altogether apply to a case differently circumstanced ; as
where, prior to the cause arising, on account of which a divorce was
sought, the parties had been hona fide domiciled in Scotland.
Unless I am satisfied that every view of this question had been
taken, the court cannot, from the case referred to, assume it to have
been establishrn ns an imiversal rule, that a marriage had in England
and originally valid by the law of England, cannot under any
possible circumstances, be diss(jlved >)y the decree of a foreign court.

" Before I could give my assent to such a doctrine (not meaning to
deny that it may be true,) 1 must have a decision after argument
upon such a case as I will now suppose ; viz., a marriage in England
the parties resorting to a foreign countrj , l)ecoming actually hoiui
fide domiciled in that country, and then separated by a sentence of
divorce pronounced by the competent tribunal of that country. If
a case of that description had occurred, and had received the deci-
sion of the twelve judges, or the other high authority to which allu-
sion has been made, th<m indeed it might have set this important
matter at rest : but I am not aware that that point has ever been
distinctly raised, and 1 think I may say witii certainty that it never
has received any express decision."

When the above case came before the court for filial judgment,
the learned judge said, " One only distinction exists between this
case and that of Lolly's, viz., that here the second marriage took place
Scotland ; in neither case is there any proof of collusion in resorting
to Scotland ; and in neither case is there any domicil in Scotland ;
and, as in my judgment the question of domicil might form a most
important and distinguishing feature, the due effect of a Scotch
domicil on the decision of these cases would demand a very careful
consideration. That, however, does not arise in the present case.

^•,. V "^

X

t"

1446

PROCEEDINGS IN THE MASTER'S OFFICE.

"It is useless, however, to reason from principles or analogy, I am
bound by authority ; for since it now appears that neither of the
parties to the first marriage, were at any time bona fiile domiciled
in Scotland, no sound distiriction exists between the present case
and that of Lolly ; I, therefore, pronounce bhe second marriage null
and void. My judgment, however, must not be construed to go one
step beyond the present case, nor in any manner to touch the case of
a divorce a vinculo, pronounced in Scotland between parties, who
though .married when domiciled in England, were at the time of
such divorce bona fide domiciled in Scotland ; still less between
parties who were only on a casual visit iii England at the time of
their marriage, but were both then and at the time of the divorce
bonajide domiciled in Scotland."

Restitution of Conjugal Rights.

Having considered the law of divorce it will be convenient now
to consider that relating to the restitution of conjugal rights, for
our Court has been given power to decree alimony in cases where
by the English law the wife would be entitled to this relief.

Restitution of conjugal rights is a suit wherein it is the practice
to plead on behalf of the promoter that the party complained of
has withdrawn from cohabitation without lawful cause, and con-
cludes with a prayer that such party may be compelled to return and
treat the complainant with conjugal affection.^ But the Ecclesias-
tical Court can only interfere where cohabitation is impended ;
where, therefore, a libel charged, "that the said Margaret Orme,
though allowed by the said Robert Orme to reside in the same
house with him, was denied access to his person and bed ; " it was
rejected, on the ground that, cohabition continuing, the Court
could not inquire as to the terms on which it was maintained.-
But where, in a suit for restitution, the usual decree had been pro-
nounced, " to take his wife home and treat her with conjugal affec-
tion," and to certify his obedience on a given day as a preliminary
step to his dismissal from the effect of the orignal citation ; and it
appeared that though the wife had returned home, the husband,

A

1 1 Hogg. Con. bup. B.

1 "Die duty of niatrinionial intercourse ciniiu,t l>c toiiipelleil by the ecclniastical court, though inktrt-
iiioiiial cohabitation may; 1 llagg. Con. 154, per Loiil Stowel : Orme v. Orine, 2 Add. 382.

DIVORCE — RESTITUTION OF CONJUGAL RIGHTS.

1447

ractice

ned of

d con-

|rn and

lesiaB-

\ended ,•

Orme,

same

it was

Court

ined.-

ri pro-

\l affec-

inary

and it

iband,

Igh inatri-

without actually ejecting her, had treated her with anything but
conjugal affection, the Court refused to dismiss the husband.^

Where in a suit for alimony, it appeared that the plaintiff's
absence from her husband's residence was \oluntary, and that
any grounds for annoyance to her whilst residing with her husband
arose almost, if not entirely from her own violence of temper, and
that her husband was still willing to receive her back and support
her ; the Court at the hearing dismissed the bill, but ordered the
defendant to pay the costs of the suit to the plaintiff.^

A married women voluntarily left her husband's house, alleging
as a cause, unkind treatment by the husband, but subsequently
offered to return, when he refused to receive her. Upond bill filed
for alimony, the Court made a decree referring it to the Master to
fix an amount to be paid to the plaintiff for alimony, during such
time as the parties continued to live separately.^ '

Where, in a suit for restitution of conjugal rights, a marriage in
fact, or the validity of it, is denied, the suit assumes the shape of
a sit of nullity of marriage.*

This suit, like a suit for divorce, may be barred either by cruelty,
or adultery,^ and upon adultery being pleaded and proved in
answer to a suit for restitution, a divorce may be decreed, and it
is not necessary to institute a cross suit for that purpose.^

So also, a plea of cruelty or adultery may be met by a counter-
plea of condonation.'^ So also misconduct previous to condonation,
may be revived by misconduct subsequent.*^

But where, in consequence of the violent conduct of a husband,
the wife insisted upon, and obtained a deed of separation, but was
induced, by the entreaties not only of the husband, but of her own
family, to allow the husband to occupy a bed-room in her house,
upon his express declaration, that he should be considered only as

1 Onm V. Oihie'l Add. 382.

2 MoKay v. McKai/, 0 Grant, 380.

3 English V. English. 6 Grant, 580

4 .S'«n/'i V. Swift, 4 Hajfg. 153 ; and eid. Grant v. Grant, 1 Lee, 592.

6 Olioer V. OUvi:r, i llajjtf. Con. 301.
0 Jlmt V. Bent, 1 Add. 411.

7 3 lla^U. 038 ; 4 JIa<iij. 201 ; 2 llurfij. Sui). ()5.

8 Wvxtiiieath V. Weatincath, 2 lla«(f. 115 ; 3 lla<j<j- 029 *

9 IbUl.

:;! f -'I

'"1 J

lil I

«:ns;

4L.

1448

PROCEEDINGS IN THE MASTER'S OFFICE.

a lodger having no right to cohabitation, and no control or
authority in the house, or over the servants, and should be in the
house merely by sufferance ; and no matrimonial intercourse, in fact,
took place during his stay there, the Court refused to consider such
a residence as condonation.^ '

Where there are faults on both sides, and the injuries of the
complainant are ascribable to the provocation offered, or where
they were received accidentally in a scuffle ; where, in short, there
is no reason to impute malignant intention, the law will oblige the
wife to return to her husband.^

In Bramwell v. hramwell,^ the Court said, " if the witnesses
lay a sufficient ground for the Court to conclude that
a wife's return to cohabition would be attended with a reason-
able apprehension or a probable danger of personal violence,
the Court will release her from the duty of such return."
in that case sentence of separation was pronounced, in
a suit for restitution of conjugal rights by the husband, on proof
of undue familiarity of the husband with a woman with whom he
, held correspondence, clandestine communication, shewing great
warmth of passion, with frequent opportunities of guilt, though no
credible fact of adultery was proved.

In a case where a wife refuses to return to her husband on
account of violent conduct, it is not necessary, in defence to a suit
by her husband for restitution of conjugal riglits, for her to shew
that her conduct was entirely without blame ; for the reason which
would justify the imputation of blame to the wife will not justify
the ferocity of the husband.^

Where the wife is acting on the defensive, she is not relieved
from the proof of necessary facts, yet, under such circumstances,
the inference arising from facts, when established, may be stronger
than where she is the original complainant ; thus, where a suit
for restitution is promoted by the husband, the wife is not, accord-

1 WcHtineath v. Wi'xfitwatli, 2 Himx. 11«.

2 Oliver v. Oliver, 1 Hagg:. Con. ;{72.

3 3 Uagg. 635, and cul. 2 llagti. Sup. \'2^

4 1 Ilagg. Ccn. 458 ; 2 llagg. Sup. 72.

DIVORCE — RESTITUTION OF CONJUGAL RIGHTS.

1449

\

jid on
a suit
shew
which
ustify

ing to the doctrine and practice of the Ecclesiastical Courts, held
to the same strictness of proof, as in an original suit by her.^

If a wife separate herself from her husband, on account of legal
cruelty on his part, and afterwards is induced by his entreaties,
seconded by the wishes of her own family to return to matrimonial
cohabitation, the law presumes, that when she so returns she con-
dones former injuries, upon the understanding and expectation
that she is to be treated with conjugal kindness ; and if the hus-
band fails to do so, such former injuries would be revived by sub-
sequent misconduct of a slighter nature, than that which would be
required to constitute orignal cruelty, and for the plain reason,
that the apprehe .sion of danger would be more easily and justly
excited ; and the law, therefore, though not allowing a wife to
separate herself from her husband from mere fancy or caprice,
would not compel her to return to cohabitation.''^

The Ecclesiastical Courts do not consider an agreement for
separation, as in any way affecting the legal rights of parties ; and
although it may contain an express covenant not to bring a suit for
the restitution of conjugal rights, it is not a bar ; and indeed has
been said to offer no impediment to a suit of such a description.'

In one case in which articles of separation, containing a cove-
nant of this nature, were pleaded, Sir W. Wynne said, on over-
ruling such plea, tluit he believed it was the first time the ques-
tion had come directly before the Court, and that he was surprised
that it should be brought forward."*

A suit for restitution of conjugal rights, strongly infers that at
the time of instituting such suit, the party had no reasonable
ground to apprehend personal violence, but it does not amount to
an absolute bar to a sentence of separation for antecedent cruelty ;
a fortiori it would not exclude the wife from pleading acts of harsh-
ness and severity, previous to such suit, in conjunction with acts
of cruf^lty subsequent.^

1 3 tlagg. 619.

2 Wentineath v. Westmeath, 2 Hagg. Sup, 114

3 2 Hogg. Sup. 116.

5 4 Hagg. 268. , .

3 Hagg. 635.

4 2 Hagg. Sup. 44, n.

1450

PROCEEDINGS IN THE MASTEll s OFFICE.

Amount of Alhuony.

The Ecclesiastical Courts iu England, exercised an equitable juris-
diction in settling the amount of alimony, varying in some degree
with the position of the parties : thus where the wife is proceeded
against by the husband for adultery, though the Court caimot
assume her to be guilty of the offence till it is proved, still that is a
sort of charge which ought to make her content to live in decent
retirement, and on that account a comparatively small allotment of
alimony is in such a case given during tlie pendency of the suit ; but
a different principle will, it seems, be adoi)ted where the wife brings
the suit, and is the com[)lainant, and where there is no complaint
against her.^

No provision as alimony can be made for a wife until the fact of
marriage is either proved against the husband or admitted by him."
There was a case where an application was under the day immediately
preceding a long vacation, for Interim alimony, allowed by the
English Ecclesiastical Court, pendente lite. The Court said that it
was incompetent to it, in point of form to make any allotment to
the wife as prayed, there not only being no constat of the husband's
faculties f but a marriage, de facto even, though pleaded against>
being neither proved, nor confessed by the husband. It recom-
mended however, that in effect, the wife shall be alimenated propor-
tionally to the husband's means and during the long vacation, intima-
ting that it should take this into the account when, in the progress
of the suit, alimony pendente lite, came to be regularly allotted, if
its recommendation where not complied with.

Interim alimony, as its name imports, is given only as a temporary
provision for the wife, and ceahes when the court has finallj; settled
the rights of the parties after having heard the cause. If at the
hearing, she establishes her right, the decree orders permAinent
alimony, and usually refers it to a Master to settle the amount. If
she fails, her bill is dismissed, and the interim alimony of course

1 Rogers' Ecc. Law, Sii, citiiij;- Rei's v. Rees, 3 Pliill. 390 1 Uagg. 23, 626, 530 ; 2 Hogg. Con. 190
Phill. 152
• 2 Smyth V. Stniith. ■> Adilaiii iM.

3 This ex])ressictn lucitii.s " Nu plou ur liuclaration, wliiuh the Court required tlie huaband to make on
oath, (liscliising Ills niuaiiH or iiicomu ; his 'faculty' or the extent of his ability to pay the ali-
mony which might be allotted."

DIVORCE — AMOUNT OP ALIMONY.

1451

ceases. It may here be observed that where permahent alimony is
decreed, it is to be computed from the date of the decree pronounced
on the hearing.^ And where interim alimony is ordered it is to be
computed from the date of the order.^

The first reported case in this Province on this point is Soules v.
Soules, just referred to, where it was held that the Court of Chancery
will, in a proper case, grant interim alimony pendente lite.

Interim alimony is thus obtained, the bill being filed. Evidence
by affidavit is provided proving the marriage. The affidavits are
filed, and a notice of motion in Chambers based' on the bill and
affidavits is served in the usual way on the defendant. It was
usual to verify the allegations in the bill by affidavit, but it has
been decided^ that proof of the marriage only is necessary.

Intei'vm alimony will be granted on prima facie proof of the
marriage, although the validity of the marriage is disputed.* On
an application for interim alimony, the validity of the alleged
mairiage cannot be tried. If a marriage de facto is proved, it is
sufficient. But to obtain an order for interim alimony, the plaintiff
must show she is in yfoxii of means of support. When the parties
had been living separate for four years, and the wife did not allege
she was in want of means of support, and the husband swore
she was in better circumstances than he was, an order was
refused.^ An application for interim alimony must be upon notice.**
Where, in an alimony case, no one appearing for the defendant, an
order had been made for interim alimony for the amount endorsed
on the bill, which the defendant considered excessive, a reference
was directed on payment of the costs {dives costs), of the applica-
tion.^

Marriage once'established, the husband isfiiable to pay for main-
tenance pendente lite, and costs of suit, whether the cause be for
adultery, the object of which is divorce, or in cases of impotency,

- I . . . ' '' : . I

1 Per Spragge, V.G., In Soules v. Souleg, 3 Grant, 12i.

2 Ibid. 116 : but $ee Howe v. Howe, 'i Chain. Rep. 404, where it was held that interim alimony runs

from the time of the Hervice of the bill, if there has been no want of diligence on the plaintiff 's
part in malting the application.

3 Nowlan v. Noman, 1 Oham. Rep. 368.
J/cG'ratA V. JfcOratA, 2 Cham. Rep. 411.

h Bradley V. Bradley, 'Hi\\Mn. Rep. 329.

6 Swinarton v. Sioinarton, 2 Oham. R«p, 468. ,~ . '

7 Hooper v. Hooper, 3 Cham. Rep. 114. •

/

7

ci.

14.52

PROCEEDINGS IN THE MASTERS OFFICE.

and other cases of nullity ;' and such rule is adhered to, although
iraud in procuring the marriage is expressly charged on the wife by
the libel, and although costs arc prayed, and may be ultimately
awarded against the wifo.^ In an alimony case where the marriage
is admitted or proved, interim alimony will be granted almost as a
matter of course ; and notwithstanding that defendant swears he is
willing to receive and maintain the plaintiff.^

On an application for an order for intervni alimony the affidavit
as to the marriage should state such })articulars as to it (by whom
solemnized, &c.) that the Court may judge for itself whether it
has been duly solemnised or not.*

In a suit for alimony,^ the defendant having signed a consent to
an order being made directing him to pay the plaintiff a certain
sum for alimony, a motion was made in Chambers for an order in
terms of the consent ; but the Chancellor said — " If this order were
made as consented to, it would amount in reality to a decree in the
cause : the matter must be brought before the full court."

In England upon an application for alimony the Court required,
on the part of the husband, a statement both of his casual and
certain income to be set forth in a plea called the " allegation of
faculties," and required his personal answer on oath, which the wife
might insist on, even if the husband were in India ; the answer of
the attorney being held insufficient ; and in the meantime the
Court allotted the wife a sum of money on account of alimony, and
directed a monition to issue against the attorney for the payment,
in a case where he long conducted the cause on his own authority
and exhibited no proxy.* The personal answer of the husband
having been given on oath, the Court determined upon the
answer, taking into consideration all the circumstances of
the case, — what should be the amount of the alimony pen-
dente lite, to enable the wife to carry on the suit, or what the
amount of permanent alimony, in case the suit had been brought to
a conclusion. It was usual for the wife to accept the answer of the

1 Rogers' Ecc. Law, 36, citing; 1 Lee, 200. 2 Ifrid. citing 3 Add. 63.

3 Carr v. Carr, 2 Cliam. Bep. 71.

4 Taylor v. Taylor 1 Cliain. Rep. 234.

6 Craig V. Craw, 1 Ciiam. Rep. 41. i

« Rogers Ecc. Law, 3U; citing Frazer v. Frazer, £. T. Iiil9; Poynter, 248.

DIVORCE — AMOUNT OF ALIMONY.

1453

husband, particularly when reformed by order of tlie Court, but she
was in no manner compelled to acquiesce in his valuation, and it
was open to her to dispute his answer, and to examiuu vvituosjaos
on it, if she thought proper ; such a right, however, was not
allowed to be exercised wantonly, but with caution and tenderness.
It is hardly ever necessary, especially in cases of considerable pro-
perty to enter into an inquisitorial scrutiny of its exact value ; it
is to be taken upon a fair general estimate.^ Nor is a statement of
the amount of capital, or an exposure of the particulars of partner-
ship concerns required.^

An assignment apparently fraudulent and colorable, by the hus-
band of all his property after the commencement of a suit by the
wife for divorce, cannot affect her title to alimony pendente lite.
The Court allotted alimony pendente lite at the rate of £50 per
annum, out of an income of £140, and refused to allow the moni-
tion not to issue till after fifteen days,*

In granting alimony a careful regard is to be had to the husband's
means, and the difference between existing property and an income
derived from peraonal exeiiiion.*

In another case," the Court said — " Taking then the income of
the husband at £250 per annum, and considering that he has two
children to educate and maintain, and that he will have to pay the
expenses of this suit on both sides. I allot to the wife the sum of
£75 per annum as alimony pendente lite ; she must have the means
of furnishing herself with a decent subsistence." Station in life,
and the wife's fortune, or the fact that she brought no fortune are
equally to be considered.^ The admission of a husband as to
faculties (means, or income) is to be taken strongly against him/
Alimony pending a suit is always less than that which is assigned
after proof of the delinquency of the husband, one-fifth of the net
income being the usual proportion.® The nature of the suit, the
charge made, and the answers given in are to be considered in
granting alimony pendente lite. And although the part which

t Ritgert' Ecc. Law, 30, citing BriKO v. Briteo, 2 Hagg. Con. 199 ; and lee 8 Lee, Wi.
i Rogera' Ecc. Lav, citing 3 Hagg. 472, Higge v. Higgs,

3 Broton v. Brown, 2 Hagg. E. R. 6.

4 Hawkes v. Hareket, 1 Hagg. f20. .

5 Harrin v. Harrit, 1 Hagg. 363. - . 8 Ibid. 351.

r 2 Lee. 693. 8 Bavkee v. Hawke$, 1 Hagf . 610.

J.
]

m

■u!

,'3 ^ S

t:\ii ^

1454

PROCEBDINGS IN THE MASTER'S OFFICE.

tlie wife takes in the suit does not afi'ect her claim to ali-
mony pending the proceedings, yet it is a circumstance of import-
ance as regulating the quantum, especially if it should be supposed
that she adheres to an adulterous connection, for it can hardly be
doubted but that in such a case the amount would be no more than
with some regard to her sitifation, and the fortune she bought
would be absolutely necessary foi- her niaintonance.^ In
one ease which w^as an application for temporary alimony
the husband having £1500 per annum, and the wife a separate
income of £300 per annum, the Court added £200 ; afterwards both
cruelty and adultery having been i)roved against the husband, one
half of the whole income was allotted as permanent alimony,- But
this large proportion was given because the bulk of the fortune
originally belonged to the wife, and having been settled on her, she was
induced by the hope of better treatment to give it up to her husband-
He had been not only adulterous, but cruel — and, in order to buy off
his cruelty, he ol^tained possession of the jiroperty which had been
settled on his wife. This principle of a moiety by way of per-
manent alimony has been adhered to in other cases, especially where
the wife has brought a fortune, and the conduct of the husband has
been vicious and profligate.^

In one case where the joint income was £5500 per annum, the
CWrt deducted fur the expense of educating children, and allotted.
£2000, or about a moiety of the remainder to the wife.* In another,
indeed, £250 or only one-thii'd, the wife taking charge of an only
child." In another case, the income being £12,000 per annum, and
the husband and earl, one-third was allowed as permanent alimony,
and in reply to an observation that the wife had brought a large
fortune, it was answered that she had got rank in return, and that
the husband had the dignity of the peerage to support.^ But in
two cases of tradesmen, whose incomes were stated at £300 per
annum each ; £80 in one case and £75 in the other, was allowed as
permanent alimony.'" In another, £185 out of £527, or nearly two-
fifths.'* Upon a general principle, after separation, by misconduct

1 Rogert' Ecc. Law, 37, quoting I'oi/nter, 261.

2 Smith V. Smith, 2 Pmil52-2ai>.

3 Coofre V. Coofce, 2 Phill. 44. > ■ '

i -2 J'hill. no. . t, 1 Hagij. b-6i. m i '

« i I'hill. 43, 236, uiul Did. 1 Ilagg. 62« ; 2 JIagg. Con. 201. ' • .. •

7 2 Phill. M, 46. & 2 Add.

of
hii

DTVORCK — AMOUNT OF ALTMONY.

;

1455

of fcho huHband, the vvifo in entitlod to bo aliiutiiited as if living with
him as his wife.^

The following cascis in our owrj Court on this point, show how far
the Knglish rules as here laid down will be followed in this
province. » _ i

The defendant was the owner of real estate of the annual value
of about £112, but subject lo a debt of £100. He had also
household furniture an<l farm stock, and he worked his farm ; the
plaintiff with her eight children, lived apart from the defendant on
account of his cruelty, and with no means of support, save such as
might be obtained by way of alimony. On a reference to the
Master to fix permanent alimony, he allowed £37 lOs. per annum.
On appeal this sum was increased to £80 per annum.^

The rule that the conduct of the wife should weigh much in
determining th(! amount of alimony is a rep^onable one ; the Court
in settling the amount considered it with the other circumstances
of the case ; the wife's temper had :^r^asionally been of a violent
character, and his treatment of her had been unreasonably severe.
The Court adopted the husband's income as the guide for fixing the
sum to be ))aid. Allowance of alimony incroasod from £25 to £200
per year, it being shown that the husband's income had increased to
such an extent as to justify the additional allowance.*

The independence of a wife may, in some cases, relieve a husband
from the charge of alimony pending proceedings ; but cannot,
except perhaps were there has been gross misconduct on her part,
tend to his entire exoneration ; for if a wife being promoter
establishes her case, or has been vexatiously proceeded against, the
insufficiency of the means of the husband is no reason why he
should not pay alimony, and also costs, when his own conduct has
made him liable.* In calculating a wife's separate income, the
salary as a lady of the bed-chamber being subject to great
expenses, was held to have been properly omitted, allter of a royal
grant of a pension to her, which by 2 & 3 W. IV. eh. 116, was made

I 'i Hagg. 7 ; I Hang. 530. '. , . , •

•2 McCulloch V. McCiUluch 10 Grant, :?21.

3 Severn v. Severn, 7 Grant, 109. , ' ' .

4 'iHayy. Cou. T-i. ' -'

1450

PROCEEDINOS IN THE MASTERS OFFICE.

secure by law and was not fluctuating.* Tf the husband violateft
the inarriaf^e contract, it might be equitable perhapH, thatheHhould
lose the whole benefit of it, and give up the whole of IiIh wife's
property, at all events it would be unjust to deprive her of any con-
siderable portion of the property she brought, in onler to support
the husband in public scjindal and enable him to continue his
adulterous connection and to provide for the isssue which are the
fruits of it.''

If the (question of alimony be fi.xed Ity the local ordinary, the
Court above will not on slight grciunds disturb the sentence.'*

It is desirable that, " the allegation of faculties " should be given in
at an early period, and that the r,u('stion of alimony should be
disposed of in the fiist stage of the }»roceedings to prevent the hus-
band from being unnecessarily harassed with demands for the wife's
debts.* For until there is a constat of the husband's faculties the
Court, it seems is, in point of form incompetent to make any allot-
ment to the wife ; thus where a libel, after having been reformed,
was admitted on the court day immediately preceding the long
vacation, the court recommendtid that in effect the wife should
be alimented according to the husband's means, during the long
vacation, intimating that it would take this into account when
in the progress of the suit, alimony pendente lite came to be
regularly allotted, if its recommendation was not complied with."

Nor ought the court to act before the husband's answei's are
given in, thus, where in a suit by a husband in a local court
for a divoroe for adultery, an allegation of faculties was admitted
but before the husband's answers were given in, or any wit-
nesses examined thereon, the judge, without any proof of th^
husband's estate, settled an alimony of twenty shillings a-we<
on the wife, and the husband appealed, the court pronounceu
for the grievance." Where the allegation of faculties had been given
in by the wife, she being the defendent, in which she admitted a
separate income, and it was proposed to read an affidavit of the

1 3 Knapp, P. C.

2 2 PhUl. 40; 2 Phill. 109 ; 3 PhiU. 301

3 2 Add. X : 2 t'hill. 41.

4 Brvico V. BrUco, 2 Uagy;. Con. 199.

5 Smyth v. Siittth, 2 Add. 264.
« BiUler V. Butltr, 1 Le«, Sg.

3 nafiif. -.m, 667.

T>TV(inrE— AMOUNT OF AMMONY.

1457

husband as to his incomo. in contradiction to tho allegation, the
court refused to allow it to be read, and admitted the allegation
and condemned the husband to \my costs, but decreed nothing as to
alimony till the proofs were before the court.* . •

If tho circumstances of the husband should alter, if he is btpmfi
"iacultatibuH, it is competent to him, if done without delay, to a})i)ly
to have the allowance reduced, if his means are diminished.'^ Or to
the wife to apply foi* additional income if they are im})roved.'' But
unsuccessful sjieculations by the husband, whereby his means are
diminished, s<.ems to furnish no ground for reducing the allowance.^

After a decree of alimony had been made, and alimony paid for
several years under it, the court entertained a petition by the hus-
band to be relieved from the decree, on the gi'ound of adultery
subsequently committed by the wife. On the hearing of this peti-
tion an act of adultery was sworn to by two credible witnesses ;
and the general conduct of the wife raising no presumption in her
favor, au order was made as prayed.''

« .

An offer by a husband to support his wife separately is no bar to
a suit for alimony ; and an affidavit of the husband showing his
willingness to support his wife cannot be received.^

Where both })arties have long abstained from applying to the
court, the one for a reduction, the other to enforce regular payment,
the court will not reduce the amount on account <^f the wife's debts
incurred by reason of the non-payment of the alimony ; nor will it
reduce it on account of waiver by the wife, the additional expenses
f o the husband by the advanced ages of children, the failure from
mismanagement of her trustees of a portion of funds set apart for
al nony, or a slight addition to her means aimwc^.

Alimony is due from the return and not from the issue of the
citation, though considerably prior to the return unless possibly
under specif circumstances.** But it ought to be paid before the
hearing.**

I

1 2 Ue, 264.

3 Z llttijii. 321) : -A Add. 27«.

u Sevcni v. Se ,, 14 Grant, l.W.

7 a JJayg. 3^2 ; /'hUl. 381.

9 i Lee, 692, "Appeal."

2 2 PhUl. 110 : 3 PMl. 391.

4 4 /^/ayg. 273.

6 Weir V. Weir, 1 Cbaiu. Hep. 104.

aZAdd.ibS; 3 PAill. 391.

1458

PROCEEDINGS IN THE MASTER'S OFFICE.

■ ! , '.■

On appe.''.! the alimony runs from the date of the sentence

appealed from, and not from the mere return of the inhibition.^ If

sums have been advanced,^ or debits ])aid by the husband since the

alimony became due, tlie amount may be deducted from the sum

decreed f but the payment of such debts seem- to afford no reason

for any permanent alteration in the amount.*

»

Besides alimony pending suit, the wife is also entitled to pay-
ment of costs necessarily incurred eitlier in the promotion of the
suit, if proceeding against her husband, or in her defence when
proceeded against.-' And where she has no separate property, she
has a right to h?ve her costs taxed de die in diem,^ But although
it is the general rule that the husband should pay costs on which-
ever side the suit was brought, it is only on the presumption that
the husband had everything and the wife nothing, when the con-
trary app<?ared both law and presumption were ousted, and the
general rule will be entirely or partially abandoned.'^

In suits of alimony the plaintiff, when she succeeds, is entitled as
a general rule to her full costs of suit.*^

The test in regard to the allowance of costs in alimony suits
appeal's to be whether or not they have been vexatiously incurred-
Therefore, where notice of examination and he iring was given and
afterwards countermanded, upon its coming to the knowledge of
the wife, after notice had been given that the husband intended to
produce a witness from abroad to prove aduU^ry on her part while
on ship-board, what was done having been J jna in good faith, and
the countermand given in order that she might be prepared to rebut
so serious a 'jharge against her, it was deemed reasonable that the
costs in relation to such notice and countermand shall be paid by
the husband to the solicitor of the plaintiff^

If the wife is aggrieved by tlie non-payment of the sura allotteil
for alimony, she should make her application to the ecclesiastical

1 1 Lee, 261 ; 1 PhiU. 210 ; 3 Phill. 207 ; 1 Hagg 528.

2 1 Hagg. 23. 3 ] llagg. 353.
4 3 Hagg. 322. fi 3 PhUl. 98.

(t 3 Phill. 262 ; 1 Hang. 168, 475, 787 ; 2 Hagg. 133 ; 4 llagg. 611.

7 2 Hagg. Con. 203 ; •>. Add. 270.

8 Sovle» V. Soiilei, 3 Orant, 813. The rule as to casts has been lately uhanged 'n tliin Province by ch.

18 o( the Statute of Ontario, 32 Victoria, piisscti 23 January, 1869, the llrMt section of whiiili pro-
>iile;< that no costs de die are to ho uai'i beyond the oasili "(U.sbursenients proj)erly iimiic l»y the
plaintiff 's solicitor ; and section 2, that, where the plaintiff fails to obtain a decree, no costd shall
be given beyond the %mouDt of the catth dlabuniemont<« properly luada by the plaintiff 's sioiicitor.

9 tilt7mi4 V. Oltnnie, 1 Chun. Rtp. 165.

Ito

vhilo

and

ibut

the

)tte(l
tical

by cli.
i;li pi-o-

liy the
b« shall
•licltor.

DIVORCE — AMOUNT OF ALIMONY.

1459

court in a reasonable time, ptherwise the court will infer she has
made some more beneficial arrangement. As a general rule, there-
fore, the court is not inclined to enforce long arrears. Alimony is
allotted for the maintenance of the wife from year to year,
and unless the husband is absent from this courtry, or some
particular reasons are set forth, it would be productive of great in-
justice and inconvenience if after a lapse of many years, the court
should enforce payment, beyond one year prior to the conviction.^
Nor where both parties have long abstained from applying to the
court, the one for a reduction of alimon}^ and the other to enforce
regular payment, will the court enferce arrears nor inquire as to the
sums paid by the husband for his wife's debts incurred by reason of
non-paj'^ment of alimony.*

As to the power of arresting a husband who in order to defeat
the wife of her remedy by leaving the countiy, provision is made
by a Provincial Statute. In England the proceeding by ne exeat is
thus described.

In order to prevent a wife being defeated of her remedy by a
husband going abi oad without the jurisdiction, the Court of Chanc-
ery will grant a writ of ne exeat regno, but this writ can only be
obtained upon an affidavit that he is going abroad, or on some declar-
ation of his that he is going ; it is not sufficient to swear that another
person said so.^ Nor will the writ be gi-anted till the wife has
absolutely obtained a decree for alimony, it is not enough
that she has obtained a decree for separation in the ecclesiastical
court.* And as the writ is considered in the nature oi' equitable
ball, it cannot be obtained except under circumstances that would
entitle a party to Imil at law, and consequently the Court will not
in any case mark the writ for more than is actually due for the
arrears and the costs, for neither Courts of law nor equity are en-
titled to judge whether a woman is entitled to alimony or not, or
what she will ever get.^

The remedy of the wife is in this province more extenBive,for it is
provid,.d® that, " In suits for alimony, instituted after this Act

1 WilHon V. Wilson, 3 ll.imr. 329, n.

;i Uldhatu V. Oldham, 7 Ves. 410.

0 Haffey v. ITaffey, 14 Ves. 261 ; and vid. 7 Ves. 171, 173

6 22 Vic. ch. 24, sec. 9, Con. Stat. U. C. page 278.

68

2 Ibid. 322.

4 Shaftoe v. Sha/toe, 7 Ves. 171.

9 I

,1

1460

PROCEEDINGS IN THE MASTER'S OFFICE.

takes effect, (5 December, 1859), the Court or a judge therefore
may, in a proper case, order a writ of aiTest (JVe exeat Provincia)
to issue at any time after the bill has been filed, and shall in the
order fix the amout of the bail to be given by the defendant, in order
to procure his discharge. In case an order is made for a writ of
arrest, in a suit for alimony the amount of the bail required shall
not exceed what may be considered sufficient to cover the amount
of future alimony for two years besides arrears and costs, but may
be for less at the discretion of the Court.^ The bail or security re-
quired to be taken under a writ of arrest shall u ot be that the per-
son arrested will not go or attemi)t to go out of Upper Canada, but
shall merely be to the effect that the person arrested will perform
and abide by the orders and decrees made or to be made in the
suit, or will personally appear for the purposes of the suit at such
times and places as the Court may from time to time order, and
will, in case he becomes liable by law to be committed to close
custody, render himself, if so ordered, into the custody of any sheriff'
the Court may from time to time direct."

The first application for a writ of arrest was in a suit ^ in which
the bill was filed October 24, 1857,* for alimony, and prayed for a
writ of iVe Exeat Provincia to issue. Defendant was possessed of
j£225, invested in stock, and in receipt of a salary of ii'lOO per year.
The motion was made on an affidavit verifying the facts stated in
the bill, and showing the amount of defendant's property, and his in-
tentions of leaving the Province. Spragge, V.C, granted the writ
but considered it advisable to limit the amount to :£200. The writ
of Ne Exeat, gi-anted after filing a bill in an alimony suit, remains
in force after decree ; but it is no objection that the wife resides out
of the jurisdiction, as during coverture, the domicile of the husband
is the domicile of the wife.^

It will be observed that by tlic act just referred to, it is provided
that no order shall be granted for a writ of arrest unless the party
applying for the writ shows by affidavit such facts and circumstan-
ces as that act requires in the case of a special order for holding a

1 22 Vic. ch. 24, sec. 10, Con. SUt. U. C.

2 Con. Stat. U. C. ch. 24, sec. It. 3 Cooper's Dig. 36.

4 This proceeding was taken under 20 Vic. ch. 66, sec. 3, of which sec. 0 of Con. Stat. ch. 24, is nearly

a copy.
6 MeDonald v. 3lcDondld, 5 U. C. L. J. 66.

DIVORCE — AMOUNT OF ALIMONY.

1461

k^ided
arty
stali-
ng a

party to bail under the fifth section of the Act. The practitioner
therefore in framing an affidavit for a writ of arrest for alimony
will be guided by the Common Law practice as to that part in
which the facts are stated requisite to convince the Judge that the
defendant is about to leave the Province,

Although the Statute 22 Vic, ch. 33 — incorporated in sec. 10 of
Con. Stat, of U, C, ch 24 — authorizes the arrest of a defendant in
an alimony suit for not more than the amount of two years allow-
ance for future alimony and arrears, still if the Court has obtained
possession of funds of the defendent by reason of any default on his
part, it will, in a proper case, refuse the payment of them over to

him without first securing the future payment of alimony.'

«

With regard to the arrears of alimony due at the death of the
wife, it seems that the ecclesiastical court has the power to decree
them on the application of a wife's executors, but at all events if
that court has not the power, a court, of equity will interfere and
decree their payment ; thus, where a bill by the executor of a
married woman was filed for an account and payment of arrears of
alimony due at her death, under a decree of the ecclesiastical court,
and demurred to by the defendant, the Vice Chancellor said, that he
had taken opinions, which though they were not very satiofactory,
yet the better opinion was that the ecclesiastical court would allow
the wife's executors to enforce payment of the arrears of alimony
against the husband. K that were so, a bill in a court of equity for
the same purpose was unnecessary, but added, that as it was not
absolutely clear that the ecclesie "lical court would in such a case
decree an account and payment of arrears, he was not justified in
allowing the demurrer which had been put in.^

A bill for alimony should allege that the husband has refused to
receive his wife. It is not sufficient to allege merely that they are
living apart,'

In order to bind the lands -f the defendant the decree for alimony
so soon as obtained should be registered. This is done under the

•rif

I nearly

1 Oott r. Gott, 10 Grant, 643.

2 St(me» V. Cooke, 7 Sim. 23.

3 Walsh V. WnM, 1 Cham. Rep. 234.

1462

PROCEEDINGS IN THE MASTER'S OFFICE.

«

provisions of 28 Vic, ch. 17, sec, 4, which enacts that an order or
decree for alimony may be registered in any registry office in Upper
Canada, and such registration shall, so long as the order or decree
registered remains in force, bind the estate and interest of every
description which the defendant has in any lands in the county oi
counties where such registration is made, and operate thereon for
the amount or amounts by such order or <lecree ordered to be paid
in the same manner and with the same effect as the refjistration of a
charge of a life annuity, created by the defendant on his lands would ;
and such registration may be effected through a certificate by the
Registrar of the court of such order or decree.

WHt of Arrest — Setting aside. — The Court in an alimony
suit on a motion to discharge the defendant from arrest under a
writ of arrest, will look into the merits of the case so far as to
enable it to judge whether the plaintiff had reasonable grounds to
expect to succeed in her case, and in the absence of her showing
such fair and reasonable grounds ; or, in the event of the defendant
displacing the prima facie case made by her on obtaining the writ,
he will be discharged.

A writ of arrest had been granted on the affidavit of the plaintiff,
alleging violence and ill-treatment on the part of the defendant,
and showing that the defendant had advertized his stock and farm-
ing implements for sale. A motion was made to set aside this writ,
and the violence and ill-treatment were denied. The plaintiff was
shown to be a young robust woman, — the defendant an old man of
sixty eight years, and the conduct of the plaintiff to have been
violent and very immoral, and unchaste. On the denial of the
defendant of any intention to leave the Province, and under the
circumstances above stated, the writ was ordered to be set aside.^

Where it is referred to the Master to allot alimony, the order is
brought into his office in the usual way, and such evidence as the
plaintiff can furnish as to the means of the defendant is laid before
him. The proceedings are those of ordinary cases. It is usual to
make the alimony payable quarterly at some particular place and
between some particular hours of the day — the place designated by

1 Macfhenon v. Maepherson, 1 Chani. R<y>. 222.

DIVORCE — AMOUNT OF AIJMONY.

U6:i

the

_i

T is
the
ore
Ito
and
|hy

the report shall be as convenient for the parties as possible. In
default of payment the plaintift' may issue execution by fi. fa. or by
sequestration in the usual way.

There are several orders of our own Court which are to be ob-
served. Order 488 provides that " Where the plaintiff in an
alimony sui+. requires interim alimony, and costs, there is to be
endorsed rn the office copy of the bill served, or served therewith,
a notice to the following effect : — Take notice, that the plaintiff de-
mands as interim alimony, until the hearing of this cause, the

monthly (or weekly) sum of $ to be paid to her on the

day of each month (or week), at and th^ costs,

according to the rules of the Court.' " Order 489 that " No appli-
cation for interim alimony, or costs, is to be made until the time for
answering has expired." '

Order 490 directs that " The defendant may, at any time before
the aswer is due, give notice in writing that he submits to pay the
interim alimony, and costs, as demanded by the notice ; and in that
CEise no order is to be taken out until there has been a default in
payment ; and in case of default, affidavits being filed verifying the
two notices and the default, the order is to be issued on prcecipe'*
And order 491 that " The interim costs to the serving of the bill
and notice inclusive, are to be $20 ; and thence to the heai-ing in-
clusive (in a contested suit) the further sum of $40, exclusive of
mileage on serving papers and witnesses' fees ; and if the defendant
pays the former sum of money to the plaintiff's solicitor on or before
the day his answer is due, and the latter sum. on or before the day
for which the same is set down to be heard, and pays the mileage
and witnesses' fees when demanded of his solicitor, no order is to
be made for interim costs, except of applications to the Court."

On a question arising imder 32 Vic, ch. 18, Ont., and the order
491, it was held that the plaintiff in an alimony suit is not entitled
to the $40 mentioned in the order.^

1 Gibb V. Uibb, 1 Chum. Bop. J04

W

ii "0,0 1

."•■3 y'

14<64<

PROCEEDINGS IN THE MASTER'S OFFICE.

I ^

\;-.

CHAPTER XXXIII.

COSTS.

I

«!
C;

Costs in General.

Where the Court adjourns the further consideration of a cause,
it does not usually make any order as to costs until the further
hearing. Where, however, some of the defendants are, or eime
part of the bill, is dismissed at the hearing, or where an improper
defence has been set up, the Court usually disposes of the costs
of the dismisb^d defendants, or the costs occasioned by the dis-
missed part of the bill, or the improper defence, at the original
hearing.*

Where the costs are given generally by the decree, the subse-
quent costs will be included ;^ and this will be the case, although
there is a reservation of "the costs of the suit not before provided
for," if there are other costs which might be included under these
words.* If, therefore, the subsequent costs are not intended to
be included, the direction should be confined to the costs up to the
decree.*

The giving of costs in equity is entirely discretionary:^ as
well with respect to the period at which the Court decides upon
them, as with respect to the parties to whom they are given. It
must not be supposed, however, that the Court is not governed by
definite principles in its decisions relative to the costs of proceed-
ings before it. All that is meant by the dictum, that the giving of
costs in equity is entirely discretionary, is, that the Court is not,
like the ordinary Courts, held inflexibly to the rule of giving the

1 Seton,bT.

2 Quarrell v. Beck/ord, 1 Mad. 269, 286; Glutton v. Pardon, T. & R. 304 ; Morgan dsDamy, 66,344.

3 Quarrell v. Beck/ord, 1 Mad. 269, 286.

4 Seton, 57. For form o( suoh an order, see Svtun. .'>0.

5 Scarborough v. Bur(x)n, 2 AtK. Ill ; JBennet College v. Canij, 3 Bro. C. 0. 3D0 ; Millington v. Fox,

3 M. & C. 338. 862 ; Remnant v. Hood, 6 Jur. N. S. 1173, L. JJ.

COSTS.

14Co

as

,3H.
, Fox,

costs of the suit to the successful party ; but that it will, in award-
ing costs, take into consideration the circumstances of the par-
ticular case before it, or the situation or conduct of the parties,
and exercise its discretion with reference to those points. In ex-
ercising this discretion, however, the Court does not consider the
costs as a penalty or punishment ; but merely as a necessary con-
sequence of a party having created a litigation in which he has
failed;^ and the Court is, generally, governed by certain fixed
principles which it has adopted upon the subject of costs, and does
not, as is frequently supposed, act upon the mere caprice of the
Judge before whom the cause happens to be tried.

A difference between the Courts of Law and Equity, with respect
to costs, frequently arises from the nature of the property over
which the latter are called upon to exercise their jurisdiction. A
large proportion of suits in equity are instituted for the purpose
of obtaining the administration of property ; and, in cases of that
description, the practice of the Court is, not to direct the costs of
the proceedings to be paid by one party to another, but to order
paynient of them out of the estate. The Court will also, for the
purpose of affording due protection to trustees or others concerned
in the administration of trust property, order the costs they have
been put to, to be paid out of the trust fund which is the sub-
ject of litigation.

In considering the subject of costs, the attention of the reader
will, therefore, be directed : 1st, To the rules upon which the
Court acts, in awarding the costs of a suit to be paid by one party
to another ; and, 2ndly, To the rules which regulate its deter-
mination, with regard to the payment of costs out of the subject-
matter of the litigation. The Court of Chancery makes a dis-
tinction with regard to the principle upon which the officer of the
Court is to proceed, in the taxation of costs, by allowing a larger
proportion of actual expenditure to parties holding particular
characters than it allows in ordinary circumstances. This dis-
tinction is marked by the terms of : " costs as between party and
party," which arc the ordinary costs allowed by the Court ; and

1 Per Lord Cranworth, in Clarke v. Hart, 6 H. L. Ca. 633 : 6 Jur. N. S. 447, 463 ; see also Wortham
V. Lord Dacre, 2 K. <& J. 437, 438 ; J'umerv. Darby, 4 K. & J. 41.

I

Ut)6

PROCEEDINGS IN THE MASTER'S OFFICE.

" costs as between solicitor and client," which are the costs al-
lowed by the Court to parties filling the characters alluded to.^ A
third section, therefore, will be devoted to the consideration of the
principles of taxation, for the purpose of pointing out those cases
in which the Court allows the taxation of costs upon a more ex-
tended scale than the usual scale of taxation between party and
party. After which will be considered : 4thly, The method of tax-
ation, and the course to be adopted to bring the determination of
questions relating to the taxation before the Court ; and, 5thly,
The course to be adopted for enforcing the payment of the costs,
when taxed. . .

In treating further of the subject of costs, in the present section,
the attention of the reader will be directed to the costs only of the
general proceedings in the suit : that is, to those costs which are
technically termed "costs in the cause." The rules with regard
to the costs of interlocutory proceedings, and other incidental
matters, will generally be found, upon referring to those parts of
this treatise which have been appropriated to the consideration of
those matters.

Certain rules exist, with respect to the costs of interlocutory
proceedings being, or not being, ** costs in the cause ;" and those
costs which do not come within the definition of costs in the cause,
under these rules, cannot be obtained as such without the special
direction of the Court. '^ What costs of interlocutory applica-
tions, by motion, are to be considered as " costs in the cause,"
may be collected from the following rules laid down by Sir John
Leach, V. C, in 1823.^ These rules were the result of certain
questions proposed to the Registrar, for the purpose of ascertaining
in what cases the costs of a motion, where the Court gives no di-
rection as to such costs, became ** costs in the cause," to a party
whose costs of suit are given upon the hearing, and are as follows :
(1) That the party making a successful motion is entitled to his
costs, as *' costs in the cause ;"* but the party opposing it is not

1 The importance of this distinction has been somewhat diminished by Ord. 307 : aeepoat. Formerly,

in cases of notorious frauds, the Court made the defendant pay exemplary costs ; but this practice
has been disused, from the ditHcu]|y of carrying it into execution : Waltham v. Broughton, 2
Atk. 43.

2 Gardiier v. Marshall, 14 Sim. 67o, 588: 0 Jur. 958: sou, however. Hind v. Whitmorc, 2 K. <Sc J.

468 : Finden v. Stephens, 12 Jur. 319, L.C., overruling S. C. 16 Sim. 40 : 11 Jur. 898.
i Memorandum, 1 8. Si 8. 357 : Morgan <L' Davey, 81.
4 Hind v. WhUmiire, 2 K. & J. 468, 463.

COSTS IN GENERAT,

1467

entitled to his costs, as " costs in the cause. "^ (2) That the
party making a motion which fails, is not entitled to his costs, as
** costs in th*^ cause ;" but the party opposing it is entitled to his
costs, as " costs in the cause. "^ And (3) that, where a motion
is made by one party, and not opposed by the other, the costs of
both parties are ** costs in the cause. "^ To these rules may bo
added a fourth, that where a bill is dismissed with costs, a defen-
dant is entitled to his costs of unsuccessfully opposing a motion
for an injunction, as " costs in the cause."*

Whenever, by reason of special circumstances, it is not the in-
tention of the Court that these rules should apply, particular di-
rections must be given with respect to the costs.

Where the costs of interlocutory proceedings are reserved, they
should be reserved till the hearing of the cause, or further order,
and not to the hearing, simply : because, in the latter case, no
order can be made relating to them unless the cause is actually
brought to a hearing.^

The Court will not order the payment of the costs of a cause
without taxation ;^ but our Order 304 provides that ** Wliere the
Court deems it proper to award costs to either party, it may by the
Order direct payment of a sum in gross in lieu of taxed costs, and
direct by and to whom such sum in gross is to be paid. And the
same may likewise be done upon such proceedings before the Court,
or in Chambers, as have heretofore been matters of reference to
the Master." And Order 305, thaji, " It shall also be competent
for a Local Master upon disposing of applications made to him
under Order 36, in like manner to direct payment of a sum in gross
in lieu of taxed costs, and to direct by and to whom such sum in
gross is to l)e paid."

i ■•

!

1 1 S. & S. 357 Jf the object uf thu iiiution be in the nature of an indulgence to the party applying,
he will have to imy the uosts, although the motion i» granted : Brotone v. Lockhart, 10 Sim. 420.

3 8. & S. 367 ; see also White v. Litlc, 4 Madd. 214, 226. The rule applies to motions to obtain or to
dissolve an iiijimction : Marsack v. Recven, 6 Mndd. 108, 109.

3 1S. &S. 35V.

4 StevetM v. Keating, 1 McN. & G,659, 663 : 14 Jur. 157 ; overruling S. C. 13 Jur. 974 ; Pinden v.

Stephens, 12 Jur. 319, L. C, overruling S. C. 16 Sim,40 : 11 Jur, 898 : Bettn v. Clifford, 1 J. &
H. 74.

5 Rumbold V. Forteath, 4 Jur. N. S. 608, V. C. W. ;and see Gardner v. Marshall, USim. 675 ; 9 Jur.

958 ; Jones v. Batten, 10 Hare, App. 11.

6 Kiwj v. Kitig, 1 Jur. N. S. 972, V. C. W.

1468

PROCEEDINGS IN THE MASTER'S OFFICE.

Order 309 provides that, " The fees and disbursements set forth
in the tariff annexed to these orders, may be charged in respect of
the services therein enumerated."

It may here be noticed that Order 316 provides that " Where
costs are awarded to be paid, it shall bo competent to the taxing
officer to tax the same, without an express reference to him for
that purpose."

The Court does not, however, usually order a sum in gross to be
paid, for the costs of interlocutory applications which are heard in
open Court ; unless the parties are poor, and anxious to put an
end to the matter.^ In the case of proceedings at Chambers, a
sum in gross is often ordered to be paid.'^

The costs of an abandoned motion are not costs in the cause ;
therefore, where a party gave notice of a motion, and died before
the motion was heard, and the suit having been revived by his ex-
ecutors, who declined to proceed with the motion, the bill was sub-
sequently dismissed with costs, and the Master, in taxing the costs,
disallowed the defendants the costs of the abandoned motion, an
application to the Court, for liberty to except to the Master's cer-
tificate, was refused with costs.^ It may be here mentioned,
that, as a general rule, a party cannot abandon one course of pro-
ceeding and adopt another, without previously paying the costs
occasioned by the abandoned proceedings.*

Except by consent, it is only at the hearing that a defendant
can be ordered to pay the costs of the suit. The plaintiflf is,
therefore, entitled to bring the* cause to a hearing, for the puspose
of determining the question of costs ; although the defendant has,
in other respects, submitted to the plaintiff's demands.'' He

1 London and Blackioall Railuay CMnjiany v. Liinehortse board of Works, 39 I*. J. Ch. 164, V. C.

W. ; see however, Yearaley v. Yeardey, 19 Beav. 1 ; Dakins v. Garratt, 4 Jur. N. S. 579, V, C.
K. , Gowr V. Stilwcll, 21 Beav. 182.

2 Seton, 94.

3 Lewis V. Armstrong, 3 M. & K. 69; see also Parquharson v. Pitcher, 4 Russ. 510: Warner v.

.<4rin»frotiijr, 4Sim. 140.

4 Davey v. Durrant, 2 De G. & J. 506 ; 24 Beav. 411 : 4 Jur. N. 8. 393. If the costs have not been

taxed the party must pay a sufficient sum into Court ; Burdell v. Hay, 33 Beav. 189 ; and sec
Bellchamber v. Giani, 3 Mad. 560.

5 Fradella v. Weller, 2 R. & M. 247, 249 ; Kelly v. Hooper, 1 Y. & C. C. C. 197, 199 ; Langham v.

Great Northern Jiailwai/ Company, 16 Sim. 173 ; Burgent v. Hills, 26 Beav, 244 : 5 Jur. N. S.
233; Burgess v. Hateley, 26 Beav. 249 : M'Saiightan v. Uaskcr, 12 Jur. 956, V. C, K. B. ; Collins
Company v. Walker, 7 W. R. 222, V. 0. K. ; WUde v. Wilde, 10 W. R 503, L.J.J. ; Morgan v.
Great Eastern Raihiaii Company, 1 H. & M. 79 ; M' Andrew v. Bassett, 10 Jur. N. S. 492, V. C.
W. ; contra, Sieuli v. Abraham, 8 Beav. 598 ; Whalley v. Lord Su field, 12 Beav. 402 ; Hennet v.
Luard, ib. 479, 480 ; Sorth v. Great Northern Railway Company, 2 Giflf. 64 : 0 Jur. N. S. 244.

\§

COSTS IN GENERAL.

1469

should, however, in such a case, first apply to the defendant for his
consent to have the question of costs disposed of, on motion,^ or
petition.' Where, however, the question in dispute has been
settled by compromise out of Court, without providing for the costs
of the suit, the Court will not permit the cause to be brought to a
hearing, merely for the purpose of disposing of the costs.*

Where a plaintiff tiled a bill for an injunction and paytnent of
damages, and it appeared that the wrongful act complained of
had, without his knowledge, been discontinued before the suit was
commenced : Held, that the Court had not jurisdiction to make a
decree for the damages. The defendant having neglected to inform
the plaintiff of the discontinuance, though applied to respecting
it before suit, the bill was dismissed without costs.* Where the
defendant submitted by answer, to bo redeemed as payment of
costs, and made statements, which, if true, would have entitled
him to costs : Held, that the plaintiff was justified in going to a
hearing for the purpose of proving facts which entitled him to
costs against the defendant.^ The rule of this Court, that when
the subject matter of a suit is settled by defendant before the de-
cree, the question of costs cannot be disposed of on a summary
application by plaintiff, unless the defendant consents, applies to
mortgage suits. A defendant in such a case may insist on the
suit going to hearing, as there may be grounds on which he may
be relieved from costs. Where, under such circumstances the
Referee refused an application by plaintiff, for the payment by de-
fendant of the costs of the suit, an appeal from such order was
dismissed with costs. Where a bill had been filed as a mortgage,
on which only a small sum for interest had become due two days
previously, and the defendant's solicitor had called at the plain-
tiff's solictior's office, and left word that he was ready to pay the
money ; the Court refused the plaintiff his costs, and held that
tbe bill was unnecessarily and improperly tiled. Local Masters
and Deputy Registrars of the Court are not at liberty to practice
in partnership with solicitors practising in the Court, although

1 Forgan v. Great Eastern Railway Cotnpany, 1 H. * M. 78.
•2 Tompnon v. Knightu, 7 Jur. N. S. 704 ; 0 W. R. 780, V. C. W.

3 Roberta v. Robertt, 1 S. & S. 39 ; Gibson v. Lord Cranky, 6 Mad. 3tf6 ; WhaXlcy v. Suffield, 12Beav.

402.

4 Brockington v. Palmer, 18 Grant 488.

5 Braiul V. Martin, ItJ Grant 666. - .

^.,,

'"t.^

I

■K.

1470

PROCEEDINGS IN THE MASTEU S OFFICE.

■nC:

they may not actually share in the omolumont of Buits.^ It
may here be noticed that the necesHity for serving the defendant
out of the jurisdiction is sufficient to entitle the plaintiff to full
costs.^

An answer may be read by the defendant upon the (question of
costs, although it cannot, where replication has been filed, (except
by consent,) be read as evidence on his own behalf, upon the mat-
ter in dispute between him and the plaintiff.'* The Court will
frequently, although compelled by the evidence read in the cause
to decree against a defendant, give credit to his own statement,
contained in his answer upon oath, as to his conduct, and make
the decree against him without costs.*

Costs from one Party to another.

It was the rule of the Civil Law, that victua victori in expensis
condemnatus est.^ This is the general rule adopted by the Court
of Chancery ; and the unsuccessful party must show the existence
ot circumstances sufficient to displace the prima facie claim to
costs given by success to the party who prevails."

If, however, the unsuccessful party can show to the Court any
circumstances which may satisfy it that it would be against the
ordinary principles of justice that he should pay the costs of the
proceeding, he will be permitted to do so ; and the Court will even,
under certain circumstances, not only excuse the unsuccessful party
from the payment of costs to his opponent, but will actually throw
his costs upon the party succeeding. Cases of the latter kind,
however, are very limited.

The general rule which gives the costs of the suit to the victori-
ous party, and throws them upon the unsuccessful party, applies
equally to cases in which the parties are suing or defending in

1 McLean v. Croii», 3 Chaiu. Rc|i. 437.

2 Per Strong V. C. Skelly v. SkcU9, 18 Grant 496.

3 Vancouver v. Blitx, 11 Ves. 468. 464 ; Hoicell v George, 1 Macld. 13.

4 miUngton v. Fox, 3 M. & C. 338, 361.
6 Cofl. 3, 1, 13.

0 Vancouver v. BlUii, 11 Ves. 468, 463 ; Staineg v. Morrui, 1 V. & B. 8, 16 ; Millington v. Fox, 3 M. h
C. 338, 353 ; Colhurn y. Simins, 2 Hare, 643, 562; 7 Jur. 1104 ; Farl NeUon v. Lord Bridport, 10
Beav. 305 ; Bartlett v. Wood, 9 W. R. 817. L. 0. : Eddbten v. Edehtcn, \ De O. J. & 8. 185 ; 0
Jut. N-. S. 479.

C08TB F.ROM ONE PARTY TO ANOTHER.

1471

I

autre droit, and to those in which they are nut juris. Therefore,
executors, administrators, trustees, or assignees in bankruptcy,^
instituting or defending suits against strangers to their trusts in
those capacities, are subject to the same rules, as to costs, as thoy
would 1)6 if they were suing or defending in their own right ;2 thus,
an executor or administrator instituting a suit against a debtor to
his testator's or intestate's estate, as he will, if he succeeds, be
entitled, under the general rule, to the costs of his suit from the
debtor, so, if he fails, he must pay the costs of his adversary.' In
like manner, a trustee for sale, filing a bill against a purchaser for
!i specific performance of his agreement, is liable to pay or receive
costs from his adversary, in the same manner as a person institu-
ting or defending such a suit in his own i^glu.* The question
whether a party who sues or defends in autre droit, and is unsuc-
cessful, shall be reimbursed his costs out of the estate which he
represents, or in respect of which he is a trustee, is a totally dis-
tinct one, and will be referred to hereafter, when we come to treat
of cases in which costs are payable out of the fund which is the
subject of litigation.

In litigating with third parties, executors are with respect to costs
in the same position as parties who litigate in their own right.^

There are, however, certain cases, arising from the character
sustained by the party, in which the Court generally gives the
costs to that party, whatever may be the result of the suit. One
of these cases is, where an heir at law is made a party to a suit for
the purpose of establishing a claim against real estate ; it being
the almost invariable rule of the Court to give the heir at law his
costs of such a proceeding. In this respect, the heir is more
favoured than executors. " Executors," says Lord Hardwicke,
" shall not have costs ; because they may renounce ; but it is the
Law which casts the descent upon the heir, and that differs his
case from the executor's ; and if he has accounted, justly, for such
money as is come to his hands, it certainly entitles him to his

H.H

^^^1

0 /. f

I

'K

1 Morris v. Cannan, 10 W. R. 689, L. C. ; but where the defendant became bankrupt during the suit,

and the assignee continued the defence, the latter was only held liable for the costs to tlie
bankruptcy : Foxwell v. Greatorex, 33 Beav. 345.

2 See Morgan a.- Davey, 288, et »eq. 3 WeitUy v. Willianuon, 2 Moll 468.

4 Edwardt r. Harvev, 0. C!oop. 40. 5 &, W. M. Co. v. Jones, 13 Grant 365.

1472

PROCEEDINGS IN THE MASTER'S OFFICE.

<"■

eogts."* Where the claim will wholly exhaust the estate, the
heir is entitled to his costs as between solicitor and client ; because
he is, in that case, a trustee for the claimant ; but under othor
circumstances, he is only entitled to his costs as between party ai)d
party. 2 So, where an heir at law is made party to a suit, fcr
the purpose of proving a will against him, he will be entitled to
his costs ;^ and he will not forfeit this right by crosti-examining
the plaintiff's witnesses.^ So, also, where an heir at law is
brought before the Court in the case of a charity, he will be en-
titled to his costs ; and, in general, if he makes no improper point,
he will bo awarded them as between solicitor and client." And
m a charitj' case, where an heir at law was made a defendant, pur-
suant };o an order of the Court, he was allowed his costs as between
solicitor and client ; although the Court was, upon the hearing, of
opinion that there was no resulting trust in his favour."

The rule, that an heir at law is entitled to his costs, is not, how-
ever, without exceptions. Thus, where an heir set up a claim to
property as undisposed of under the will and failed, he was refused
his costs 'J and, where the object of the bill is merely to perpetu-
ate the testimony of the witnesses to the will, if the heir examines
witnesses of his own in chief he will not be allowed bis costs of
so doing.^ This, however, is only where the bill does not pray
relief, or is not one of a nature which is brought to a hearing ;
where the cause is one which may be brought to a hearing
more latitude is allowed f and if he chooses to examine witnesses
himself, the question of costs will depend upon the circumstances ;
he is also indulged further, for he has a right to require the va-
lidity *^f the will to be tried as a question of fact,^^ and is entitled
to the costs of the trial, even though the verdict is against him,
and the will is established,^^ unless there are any peculiar circum-

1 Humphrey y. Horte, 2 Atk. 408 ; Popple v. Ilentoi,, 6 De O. & S. 318.

2 Tardrew v. Howell, 2 Giff. 530 ; 7 Jur. N, S. 937 ; Shittler v. Shittio-, 4 N. R. 47E, M. R. ; nco.

however Fetting v. Allen, 6 Hare, 567, 679.

3 Crexo v. Joliff, Prec. in Ch. 9S ; Luxton v. St'phenn, 3 P. Wms. 378.

4 Bidulph V. Bidulph, 2 P. \Vnis. 285.

f) Currie v. Pye, 17 Yes. 462, 468 ; but see Whicti. 'r v. /I%me, 14 Beav. 5^8, where the costs were only

allowed as between party and party.
0 Attorney-Oeneral y. Haberdash f m' Company, iBrn. C. C. 178: S. C. nom, Attorney-General v,

7'onna, Bearjes on Costs, App. No. 18 ; and see James v. Jainen, 11 Beav. 397.

7 liashlcy v. Mantort, 1 Ves. J. 205.

8 jierney v. Eyre, 3 Atk. 387 ; see Vaiiffhan v. Fitzgerald, 1 Soh. & Lef. 318.
0 liemey v. Eyre, 3 Atk. 387.

10 IK' ite V. Wilson, 13 Ves. 87. ; but see Man v. Rioketts, 7 Beav. 93 ; S. C. »ion» Ilicketts v.

Ttirquand, 1 H. L. Ca 472.

11 White v. Wihon, 13 Ves. 87 ; Bernsy v. Eyre, vhi sup. ; Webb v. ClaverdeUf 2 Atk. 424 ; but see

TuthiU V. Scott, 2 Moll. 4«8 ; Tuvker v. ISickei; 1 M'L. & Y. 425 : 13 Pri. 808 ; Newton v. Lucas,
1 M. & 0. 391 ; 392.

; nco.

',ts V.

COSTS FROM ONE PAXlT^yO N^O^-flEIiai.

1473

stances in the case which may induce^ka O^&t^Jo-J^fuse them.
Thus, where one of the witnesses did not clearly prove the execu-
tion of the will, and the heir asked for an issue, on the trial of
which the will was found to have been duly executed ; upon the
case coming on for further directions the heir asked for his costs,
both at Law and in Equity, and they were given him by the
Court.'

Amongst the peculiar circumstances which will induce the Court
to refuse costs to an heir, may be mentioned his attempting to set
up insanity, or any other disability, against the person who made
the will.2 And a defendant, brought before the Court as heir,
was deprived of his costs, both at Law and in Equity, because he
had thought proper to state in his answer to the original bill that
he was heir at law to the testator, and to dispute the will ; al-
though he knew, as he admitted in his answer to the supplemental
bill, that his elder brother had left children.^ And where a de-
fendant, heiress at law, asked for an issue, with notice of circum-
stances which rendered her success improbable, she was, although
the will was open to great and grave suspicion, held not en-
titled to the costs of the isj^ue.*

Where, also, an heir at law u lecessarily filed a cross bill, for
the purpose of establishing his claim to certain legacies to chari-
ties v^hich the testator had charged upon real estate, the whole
benefit of which he might have had under the onginal bill, Lord
Thurlow gave the coets of the cross bill out oi the real estate ;
which, in effect, fixed them upon the heir.^

But although, where an heir is^^brought before the Court as a
defendant, he may, under the circumstances suggested, be de-
prived of his costs, yet the Court will not give costs against him,
even though he should insist upon the will's being fraudulent, or
the testator being insane, and upon the question of fraud or in-
sanity being tried, he fails in the attempt to overturn the will.* It
must be a very strong case which will induce the Court to give

1 Wright V. Wright 6|Sim. ii9.

2 Bemcy v. Eyre, 3 Atk. 387 ; Grov. v. Young b De O. S. 38, 42 ; 16 Jur. 1099.
;{ Robert* V. Scnones, 7 Sim. 418, 421 ; and see Hume v. Breen, 1 B. & B. 308.

4 Stacey v Sprntlcy, 4 De a & J. 199 : 6 Jur. N. S. 503.

.5 Leacroft v. Mayiiard, 1 Ves. J. 279 ; ami see Hcanus on Costs, 63.

0 Webb V. Claverden 2 Atk. 424 : Smith v. Deanner, 3 Y. & J. 278 ; Roberti v. Kerslake, 1 K. * J. 751.

V 1

I

xrwwBBfc^ >»f iT ■

1474

PROCEEDINGS IN THE MASTER'S OFFICE.

eosts against the heir : such as spoliation or secreting the will ;*
or where he vexatiously contests the will, by setting up a case of
insanity, knowing the devisor to be perfectly sane ;2 or where he
refuses to convey to a purchaser, under a contract entered into by
his ancestor.^

The general rule is, that in suits for specific performance against
the infant heirs of vendors, the decree should be without costs.*

The heir at law is entitled to his costs, as a matter of course, in
those cases only in which he comes before the Court as a defend-
ant. Where he assumes the charater of a plaintiff, and seeks to
impeach a will on the ground of insanity, or upon any other ground
upon which he might impeach it by ejectment at Law, he will, if
unsuccessful, be ordered to pay the costs^ and this, even though
he is an infant : " because he may, notwithstanding, bring a bill
on coming of age, or ejectment ; indeed, it is not certain whether
n,\iother proche'in amy may not bring a bill."^ It is only, however,
in cases in which the heir might have proceeded at Law that he
will be liable to costs if his bill be dismissed: where that is not
the case, he will not be compelled to pay the costs. The Court, in
fact, considers that an heir at law, contending for his inheritance
upon fair grounds, ought not to pay the costs, though he does not
succeed in establishing his right ; and, therefore, where the testa-
tor, previously to making his will, conveyed his estate to a trustee,
upon trust to convey it as he, the testator, should direct by his will,
and the heir filed a bill to impeach the will, which was dismissed,
Sir John Leach, M. E., determined that, as the circumstance of
the trust rendered it necessary for the heir to come into equity,
the dismissal should be without costs : although he ordered the
heir to pay the costs of an issue, which had been directed, and in
which he had* failed.'^

1 lli'i-ney v. Kyrr 3 Atk. 387 ; Midiileton v. MkUHetnii, 5 Do G. &S. CIO ; Williamg v. WUliamn,

33 IJeav. 300 ; CowjiU v. Jihmlen, ih. 310, 314 ; and see Marriott v. Marriott, 12 W. R. 303, V. C, W.

2 M'liitf V. Wilnun, 13 Vo8. 87, !>2. 3 JJoddel v. t'ui/h, 33 Beav. 489.
4 Cummander v. Uilrie, 0 Onuit 473.

;■) Webb V. Claverden, 1 Atk. 424 ; Seal v. Brownton, 3 liro. C. C. 214 ; Johnson v. Gardiner, 1 Dick.
313 : Swii\fen v. Swin/en, 27 Beav. 148, 107.

tl lliinkehony; v. Feunt. 1 Dick. 153.

7 Stni/e V. ScaiJ'e, 4 Rusn. 309 ; .see al.so Tatham v. Wriijht, 2 R. & M. 1, 32. It .seoin.s, from some
early »!ases, to have been the ductrine of the Court, tliat an heir at law, or heir male of tin:
lionour of a family, haN a riKlit to uome into equity for a production and iiiHpection of the deeds
by which '.e 's disinherited ; and that, if he doe.s so, he will not be liable to costs ; see Liinan v.
A lie, Am!). 163 ; Harrison v. Southcute, 2 Ves. S. 389, Z^-.IA tk. 539 , Earl of Suffolk v. Howard.
2 P. Wms. 177 ; ShaUii v. Barrington, 1 P. Wms. 481. 1

COSTS PROM ONK PARTY TO ANOTHER.

1475

Another case in which the Court generally gives costs to the
party, without reference to li's success in the suit, is that of a
mortgagee or other incumbrancer having a specific lien upon pro-
perty : the principle of the Court being, that where the owner
comes to deliver the estate from the inciimbrance which he him-
self, or those under whom he claims, have put upon it, the person
having that pledge is not to be put to expense with regard to that
proceeding; and so long as he acts reasonably as mortgagee, to
that extent he ought to be indemnified.^ This principle was
fovneriy applied, also, to those cases in which, although the tran-
^tction between the parties did not originally consist in borrowing
or lending raoney, or charging an estate with a particular sum, the
Court thought proper to consider a party advancing money in the
light of ii nortgagee or incumbrancer. The cases to which allu-
sion is made are those in which the Court orders securities to be
delivered up, or sales of reversionary interests to be set aside, be-
caviie the bargain has been unconscientious : in these cases, the
Cou"' ^ ^nerally decrees for the plaintiff, upon terms that he shall
repay the defendant the amouat actually advanced or paid by him,
with interest ; and, looking upon him as a mortgagee for that
amount, it formerly treated him as such, by ordering the plaintiff
to pay him his costs.^ The Court now, however, considers cases of
this description to be analagous to red.-mption suits, where the
mortgagee resists the right to redeem ; and no costs are given on
either side f but if the defendant has refused to accept terms
which were better than those to which the Court considers h'.m
entitled, he will be ordered to pay the cost of the suit.*

' ■ 1

■•1-

■5^

IS

'i

c. w.

A mortgagee is always entitled to his costs, and, therefore, Nvhen
a subsequent mortj];;igee who has filed a bill to foreclose offers to
consolidate his suit with that of the prior mortgagee who has
tiled a bill after him, he will be allowed his prior costs in such
suit.*^

Dick.

some
lot' the

deefl-*
tiaii V.
fimird.

1 Detillin v. Oak, 7 Ves. 583 ; Loftw v. Swift, 2 Scli. & Lef. 043, 657 ; Taylor v. Baker, Dan 71

and see Fi.iher. 554, et iei/. ; Mnrijan •{■ havry, 155, et seq. ; Setov 376, et »eq.

2 I'oacocle v. Jinaiui, 16 Ves. 612 ; Gowland v. l)v Faria, 17 V«h. '20, 26 ; Bows v. Ilvays, 3 V. & B.

117, 121 ; and see J'riesfly v. Wilkinson, 1 Ve.s. •!: 214.
:! Salter v. Bradxhaw, 26 IJeav. 161 ; .. .Jnr N. S. 831 : Uroinley v. Smith, 26 Beav. 644 ; 5 Jur, N. S.
8;i3- St. Alhyn v. Ilardiwi, 27 H«vav. U ; Foxtrr v. litiftfrtii, 29 Beav. 467 : Talbut v. Stani/oitli,
1.I.'&H.484.

4 Ki.i.iiH V, Tottfnhatn, 10 Jur. N S. lOlW ; S O. nom Tnttenham v. Emmet i^^ W. K 123, M. R. ;

and .see Ihrdoc v. haw^ou, 11 Jur. N. 8. i54: 13 W. K. 420, M. K.

5 Allan V. McDougald, « r. C L. J. 64.

69

1470

PROCEEDINGS IN THE MASTER'S OFFICE.

t.

S
c

At Law, after a"mortgage is forfeited, the estate is the absolute
property of the nortgagee, and he may deal with it as his own ; he
may sell it, or encumber it, or devise it. If, therefore, the mort-
gagor applies to a Court of Equity for redemption, it is only granted
to him upon the terms of indemnifying the mortgagee from all
costs arising out of his legal acts : thus, a mortgagor, filing a bill
to redeem, must pay the costs, not only of the mortgagee himself,
but of all persons claiming under him.^ The same rule applies
to a foreclosure, as well as a redemption suit ; and, in general, it
makes no difference whether the bill is filed by the mortgagor to
redeem, or by the mortgagee to foreclose : in either case, the
mortgagee is entitled to his principal, interest, and costs. Thus,
where a mortgagee assigned his mortgage money to the trustee of
his marriage settlement, and afterwards filed a bill of foreclosure
against the mortgagor, to which the trustee was made a party, he
was ordered to pay the costs of the trustee, and to add them to
the mortgage debt.^ Where, however, a second mortgagee filed
his bill to redeem the first, and foreclose subsequent mortgages,
and the estate was not sufiicient to pay the first mortgage, the bill
was dismissed, with costs as against the first mortgagee, and with-
out costs as against the other defendants.^

A mortgagee will not only be allowed his own costs, and the
costs of those claiming under him, but he will be allowed, as
against the estate, all costs which he may have incurred in assert-
ing or defending his title to the estate. Thus, where a mortgagee
had filed a bill of foreclosure, he was allowed the costs he had in-
curred in procuring administration to an annuitant under the will
of the mortgagor : such annuitant being a necessary party to the
foreclosure.^ So, where an infant, claiming under a mortgagor,
had endeavoured to defeat the mortgage by setting up a supposed
entail, and after a special verdict, and great litigation at Law,
the mortgagee prevailed, whereupon the infant brought his bill to
redeem, and the mortgagee swore that he had expended above
1201. in defending his mortgage at Law : although he had but 60/.

1 Wttherell v. CoIHtu, 3 Madd. 9.f>5 . Cole» v. Forrett, 10 Beav. 552, 555. Ah to costs in suit by pauper,

see Batchelor v. Middleton, 6 Hare, 86.

2 Bartle v. Wilkin, 8 Sim. 238. As to the costs of the solicitor to the suitor's fee fund, as jfuardian

(or an infant defend<int, in a foreclosure suit, see Harri* v. Hamlyn, 14 Jur. 66, V. C K. B.

3 Qibtim V. Hicol, 0 Beav. 403, 407.

4 Hunt V. Fownex, » Yes. 70.

COSTS FROM ONE PARTY TO ANOTHER.

1477

' pauper,

ruardtan
. B.

costs allowed him thore, it was held that he should not be confined
to his taxation at Law, but should, upon the account, be allowed
all he had laid out or expended ; and it appearing that the mort-
gagee, fearing his mortgage would have been defeated at Law,
got administration as creditor in the Ecclesiastical Court, he was
allowed his costs expended there also.^

And so, in another case, where a first mortgagee, after he had
been put to great expense in suits to foreclose, and o};herwise in
respect to the estate, had a bill filed against him by a second
mortgagee to redeem, the Court ordered thai his costs should not
be taxed asin an adverse suit, but that he should b3 allowed all his
costs and expenses, as is done in the case of a solicitor who lays
out and disburses money for liis client : the rents to be applied,
in the first place, to pay such costs, before they were applied to
sink the principal.- And on a bill for redemption, Sir John
Leach, M. H., gave to the mortgagee the costs of an action, which
he had brought against a person who had joined the mortgagor as
surety, in a bond for the mortgage money : the fruit of the action
being lost by the insolvency of the surety : and his Honor stated
the principle to be, that the mortgagee was entitled to be allowed,
in account, against the mortgagor, all expenses properly incurred
for the recovery of the mortgage money .^

All extra costs and expenses should, however, be asked by the
bill, and mentioned in the decree.*

Upon the same principle, it is stated that, if a mortgagee or real
creditor is brought before the Court to have his security impeached,
and the bills is dismissed, there is hardly an instance in which it
is not with costs : for, being brought before the Court without just
grounds, the Court would not do him justice, unless costs were
given to him, as he is a creditor and incumbrancer.^ In Brodle
V. St. Paul,^ however, where certain mortgagees and trustees were
brought before the Court upon a bill for specific performance of

1 RauiMien v. Langley 2 Vern. 536 : 1 Eq. Ca. Ab. 328, a29, iil. 5. But an equitable mortgagee will

not be entitled to the costs incurred at law in unsuceessfully defending his possession : Dryilen
V. Froit, 3 M. & 0. 670, 675.

2 Loinax v. Hide, 2 Vern. 186 ; AiuKWorth v. Roe, 14 Jur, 874, M. U.

3 Kllison V. Wright. 3 Russ. 4."'8 ; Peern v. Ceeley, la Beav. 209.

4 SeUm, 381. For forms of ( .'ders as to such extra cents and expenses, see ib. 396.

5 Per Lord Hardwicke, in Txmr v. loie, 2 Yes. S. 4(W, 468.
8 1 V«8. J. 326, 331.

t'..-.

'-'11

■ \ "0

i
^

I

1478

PROOEEDIXOS IN THE MASTKIl S OFFICE.

an agreement for a lease, not for the purpose of impeaching their
title, but as necessary parties to confirm the lease, and the bill was
dismissed against the principal party without costs, on account of
the hardship of the case, the mortgagees and trustees were refused
their costs : Mr. Justice Buller, who heard the cause, saying, that
if the decree had been for the plaintiff, perhaps he might have
given the trustees their costs, because he could have given them
over against the other defendants ; but that, as it was, they must
have their remedy against their principal.

•3'

The rule, that the mortgagor is to ^l- tl.'e costs of the mort-
gagee, and of those made necessary parties by his act, does not
apply where the title to the mortgage is disputed ; and, in that
case, the mortgagee's costs should only be borne by the estate, as
against the persons interested in the equity of redemption, when
they have concurred or assisted in the litigation.^ Upon this
principle, where the plaintiff was devisee of a mortgagee, and filed
his bill against the mortgagor for a foreclosure, making the heir
at law of the mortgagee a party, in order to have the will estab-
lished against him. Lord Kenyon, M. R., thought the estate ought
not to be burdened with his costs.^ So, where the mortgagee,
after bill of foreclosure filed, became insolvent, the costs of his
assignee, made a defendant, were not thrown on the mortgaged
estate.', And, in general, if a mortgagee, after a decree to account,
assigns his interest to another, the costs of the proceedings neces-
sary to bring the assignee before the Court must be paid by the
mortgagee.*

In these cases, the costs given to a mortgagee are scarcely in the
nature of cost?', in the cause : they are rather sums that tht mort-
gagee has a right to be paid, before the relief asked for against
him can be granted.

The rule, that a mortgagee is to have his costs paid, is subject
to an exception in cases where he is a lunatic. In such cases, the
costs of the committee of a lunatic mortgagee, requisite to enable

1 Parker V. Watkim, 1 Johns. 133 ; and see Petty v. Wathen, ' Hare, 372 : 14 Jur. 9.

2 Skipp V. Wuatt, 1 Cox, 363.

3 Eorum v. Woolongham, 1 Beat. 1.

4 Barry v. Wrey, 3 Kuss . 486.

COSTS FROM d^E PAUTY TO ANOTHKR.

U79

liiin to convey to the mortgagor under the statute, are to be paid
out of the lunatic's estate, where the lunatic is beneficially inte-
rested in the mortgage money, and the application is made by the
committee.^ Where it clearly appears, on the face of the mort-
gage deed, that the lunatic mortgagee is only a trustee, the mort-
gagor must bear the costs ;^ but this will not be ordered, where
the trust does not appear on the deed.' If the mortgagor applies,
lie must pay the costs of obtaining the order, unless the committee
has declined to apply for it.*

the

the
lort-

pject

the

lable

The right of a mortgagee or incumbrancer to his costs will pre-
vail, in cases in which the Court directs a sale of the property
pledged ; and the mortgagee is entitled to the payment of his costs,
before the subsequent mortgagees receive p,ny part of their princi-
pal, interest, or costs : the practice of the Court being to direct
each mortgagee to be paid his principal, interest, and costs, accord-
ing to his priority f but it has been held, that where a mortgagee
commences or adopts a suit for the administration and sale of the
mortgagor's estate, he does not rest exclusively on his contract,
but seeks something beyond it ; and the costs of the suit are the
first charge, if the estate ^)rove deficient.* It has also been held,
that an equitable mortgagee, by filing a bill for the sale of the mort-
gaged property, and the payment of the balance out of the general
assets, and for administration, does not render the proceeds of the
mortgaged estate liable to the costs of the suit, in priority to the
plaintiff's claim.^

Where the suit is instituted by a subsequent incumbrancer, to
ascertain priorities, making a prior mortgagee or incumbrancer a
pn,rty, the subsequent incumbrancer ought to offer by his bill to

1 Ex parte Richards, I J. &-W. 264 ; Re Wheeler, 1 De G. M. & G. 434 ; Re Viall, 8 De G. M. & G.

439 ; contra. Re Marrow, C. & P. 142 ; Re Riddle, 23 L. J. Ch. 23, L.JJ. ; Morgan ib Davey, 171.

2 Re Lcwen, 1 McN. & G. 23.

3 Ra Townteml, 2 Phill. 348 ; 1 McN. 4 G. «86.

4 Re Stuart, 4 De G. & J. 317 • Re Jonet, 2 De G. F. & J. 554 : 7 Jur. N. S. 115.

j Belchi^.r v. Butler, I Edoii, 523 ; Uppcrtoa v. Ilarrinon, 7 Sim. 444 ; Barnes v. RacsterJL Y. & C.

C. U. 401, 407 : 6 Jur. 595 ; Hepworth v. Ileslop, 3 Hare, 485, 487 : 9 Jur 796 ; Wilde \. Lock-.

hart, 10 Beav. 320, 3!3- Carr v. Ileiiderxon, 11 IJeav. 415 ; Outfield v. Richards, 26 Beav. 241 ;

Crotue V. ''•enernl Rfuerxiimanj Cui:ipaiiy, 3 De G. M. & G. 698; Langton v. Langton, 7 De G.M.

& G. 30 : I Jur. N*. S 1078 ; and .sue litrni v. Uebblethwaite, 4 K. & J. 80 ; see also Seion, 293,

379 ; contra, Keiielh-l v Sera/ton, 13 Vos. :i70.
(! Armstrong v. Sforrr, 14 Ucav. ."^laS ; ]yiute\. Gudgeon, 30 Beav. 545; Dightiin v. Withers, 31

ISeav. 423 ; Seton, .iHo, 379 ; but sec .hulgnieiit of L. J. Turner, in Ward v. Mackinlay, 10 Jur.

N. S. IWiif, 1004 : 13 W. R. 65 ; see also Alddridqe v. Wci^throok, 5 Beav. 188, 193.
7 Tipping v. I'ower, 1 Hare, 405, 407 ; 6 Jur. 434; Wade v. Ward, 4 Drew. 602; and it deems that

according to V. C. Wood, tlie same rule ap))lies to a legal mortgage ; Seton, 293, 380 ; Berry T;

Hebblcthwaite, 4 K. & J. 80 ; Tuckley v. Thompson, 1 J. 4 fl 126.

'-•*!,

1

^

^c.

1480

PROCEEDINGS IN THE MASTER'S OFFICE.

4! '^

redeem the prior incumbrancer ; and, if he omits to do so, the
prior incumbrancer has a right to insist upon being dismissed
with costs. But if the prior incumbrancer, instead of asking to
be dismissed, consents to a sale, and to take his principal and
interest out of the proceeds, he must, as he thereby adopts the
suit and takes the benefit of it, contribute to the costs of it : there-
fore, the costs of all parties will be paid out of the fund, even
though there may not be enough left to pay the prior incumbrancor
his principal and interest.^ Where, however, the property had
been preserved by the diligence of the plaintiff, a imUne incuml>-
rancer, his costs were first provided for ; and the costs of the other
incumbrancers were directed to be added to their securities, and paid
according to their priorities.^

A bill for sale was filed by a puisne incumbrancer, and prior in-
cumbrancers and mortgagees were made parties in the Master's
office, and a decree on fm*ther directions made for payment accord-
ing to priority. The j^roceeds of a sale proved insufficient to pay
the first incumbrancer. An application on part of the plaintiff to
have his costs of suit and of sale paid out of such proceeds in pre-
ference to the first incumbrancer was refused with costs.*

The rule above laid down, that a mortgagee or incumbrancer is
entitled to his costs, as well as to his principal and interest, is
liable to exception, also, in cases in which the Court considers him
guilty of any misconduct with reference to the suit, or the subject
of it. In Detillinv. Gale,^ Lord Eldon said: ''Though a mort-
gagee, acting reasonably as such, is to have his reasonable ex-
penses, it does not follow that he can claim his own expenses from
other persons, with whom he is litigating, with regard to those
acts which, upon his part, are not only unreasonable but grossly
oppressive." In that case, the mortgagee was deprived of his costs
of that part of the suit where he had been guilty of improper con-
duct. So, where a mortgagee sets up an unfounded claim,^ or an
unjust defence, insisting on his deed as an absolute purchase, he

1 White V. Binhop of Peterborough, Jac. 402 ; sec also Brace v. Dnchesn o/ Marlborough, Mos. 60 ;

Setcn, 330.

2 Ford V. FMrl of Cheiterfield, 21 Beav. 426 ; Wright v. Kirby, 23 Boa v. 463.

3 Orange v. Barber, 2 Chain. Rep. 189.

4 7 Ves. 583, 686 ; and see v. Treeothick, 2 V. & B. 181 ; Lo/tus v. Swift, 2 Sch. & Lef. 042, 667.

5 Montgomery v. Calland, 14 Sim. 79, 81.

Q, the

nissed
ing to
,1 and
»t8 the
there-
,, even
ranee r
•ty had
icumh-
e other
ad paid

nor in-
laster's
accord-
t to pay
bintiff to
in pre-

ancer is
rest, is
rs him

subject
a mort-
able ex-
les from
0 those

grossly
lis costs
per con-

5 or an
base, he

gh, Mos. 50 ;
Lef. 642, 657.

COSTS vmm one pautv to anothek.

U.S1

will be deprived of his costs.^ And from the case of Smith v.
Oreen^ it appears that, if a first mortgagee receives from a second
mortgagee a tender of all that is due for principal, interest, and
costs, the first mortgagee will not be entitled to the costs of a fore-
closure suit after the tender. Nor will he be allowed his costs in
a redemption suit, if he has not been ready with and offered to
show his accounts.^

In answer to a bill for the redemption of a mortgage, alleging
the existence of usury in the original transaction, the mortgagee
set up several defences which were decided against him, the Court
in decreeing redemption, ordered the plaintiff to pay such costs as
would have been incurred in a common redemption suit, and the
defendant to pay the costs of the issues found against him.* In a
suit to redeem the plaintiff alleged several grounds for relief,
which he failed to establish, although he succeeded in shewing
a right to rede am, which right the defendant had contested : the
Court, under tlie circumstances, refused costs to either party up
to the hearing, and gave the defendant the subsequent costs of a
redemption suit, where the right to redeem was admitted.^

In Detillin v. Gale, before referred to, Lord Eldon appears to
have expressed an opinion, not only that a mortgagee might be
deprived of his costs, but that, under some circumstances, he might
be called upon to pay costs. He there said : " It is said it will be
an extremely bad precedent to hold, that in no case a mortgagee
can be called upon to pay the costs of the mortgagor. I will not
say the Com*t will not, and am very far from saying the Court
ought not, to make that precedent ; but it ought to be made upon
very great consideration. "° His Lordship afterwards referred to
the case of Shuttleivorth v. Lowther,"^ in which Lord Lonsdale, a
mortgagee, was made to pay costs (on the ground of a tender, and
an appropriation of the money : which was paid into a bank and
refused), as affording an instance in which a mortgagee had been

1 Prancklyn v. Fern, Barnard. 30 ; sue also SevUir v. Greenway, 19 Ve.s. 413, 415 ; Kirhhani v.

Smith, 1 Vos, 8. 2.">8, 262 ; tt'lieaton v. Graham, 24 Beav. 483 ; Re Unsworth, 13 W. R. 448, V. C. K.

2 1 Coll. 556 ; sec ulro Williatiu v. Sorrell, 4 Vea. 38i).

3 Powell V. Trotter, 1 Dr. fi Sin. ;i8cS. 4 Isheruxwd v Dixon, o Grant 314.
5 Boswell V. Oraveley, 16 Grant 523. 0 7 Ves. 583, 586.

7 Cited »6. ; and see Jiohtrts v. WiUiams, 4 Hare. 12», 131; Emmet v. Tottenham, 10 Jur. N. S.
1090; S. C. »w/rt. lottenham v. Emmet, 13 \V. R. 123, M R. ; Uonkin v. Sincock, llJur. N-
S. 477 : 13 W. R. 487, V. C. K.

c

i

I

X-

1482

1'U0CEED1N(JH IN THE MASTER'S OFFICE.

made to pay the costs ; and there are other cases in the books
which may be cited in support of the same proposition. Thus, in
Mocatta v. Munjatroyd,^ the mortgagee was ordered to pay costs
to the plaintiffs, wlio were indorsees of subsequent mortgages or
bills of sale of a ship ; but he was not to have his costs over,
against the first mortgagor : Lord Cowper saying, that it was not
reasonable that he should onerate his pledge with costs occasioned
by his unjust defence ;^ and this principle has been acted upon in
Harveif v. Tebhiitt,'^ where a mortgagee, who had resisted the right
to redemption, by setting up a decree of foreclosure collusively
obtained, was decreed to pay so much of the costs as was occasioned
by his resistance.

A mortgagee having omitted to give credit on the deed, or in his
, books, for sums of money paid to him by the mortgagor, his exe-
cutors, after his decease, claimed a large sum to be due on the foot
of the mortgage. The mortgagor tendered a certain amount, say-
ing, at the same time, that he was willing to pay any additional
sum that might appear due, after giving him credit for the sums
alleged to have been paid. A bill was afterwards filed by the
representatives of the mortgagee to foreclose, and on taking the
account, a sum of between £2 and .£3 over and above the amount
tendered, was found to be due. The Court, under the circum-
stances, ordered the plaintiff to pay the costs.* Where a mort-
gage debt has been reduced to a sum of about £1 14s., the
mortgagee, who had taken an absolute deed, distrained for £40,
claiming that amount to be due, the Court, upon a bill filed by the
mortgagor to redeem, refused the mortgagee his costs.''

Where a mortgagee, by a bill of foreclosure, attempted to tack a
bond to a mortgage as against creditors, the bill was to that extent
dismissed with costs f and where the difficulty in a foreclosure suit
was occasioned by the loss of the mortgage deed, the mortgagee was
ordered to pay the costs ;^ and a similar order was made, where a

IIP. Wms. 393, 395.

2 See also Baker v. Wind, I Ves. S. 160; Englaiui v. Codnngton, 1 Eden, 1G9, 174 ; Lord Cramtoirn v

Johmtmi, 5 Ves. 277, 279 ; Taylor v. Baker, Dan. 71.

3 1 J. & W. 197, 202. 4 Cornwall v. Brovtn, :i Grant «33.
6 Loi\g V. Glen, .5 Grant JOS ; and .>>ee Mossop v. '/'. .L- L. Co., 11 Grant '^04.

6 Hamerton v. Jtof/cru, 1 Ves. J. 513.

7 Stokoe V. Robimn, 19 Ves. 386 ; and for the order, sue Seton, 629, No. 1.

COSTS FROM ONE PARTY TO ANOTHER.

11-83

redemption suit was rendered necessary by the mortgagee having
lost the title-deeds.^

ik a

tent
mit

iTas
re a

nvn V

A party in possession of land under an agroeraont in the nature
of a Welch mortgage, having refused to give any statements of
rents received, or information as to the amount due, a bill was
filed by the mortgagor for an account. Notwithstanding that on
taking the account between the parties, a balance was found to be
still due to the defendant, the Court ordered him to pay the costs
of the 8uit.2 A mortgagee who takes a deed absolute in form,
instead of with a defeazance, and then fraudulently denies the
right of redemption, setting up the deed as constituting an absolute
purchase, is guilty, of such misconduct as will subject him to the
payment of the costs of the suit.^

But although a mortgagee may, under peculiar circumstances,
not only be deprived of his costs but bo ordered to pay them, there
must be positive misconduct on his part to bring such a visitation
upon him.* The mere circumstances that he has extended his
claim beyond what the Court finally decides he is entitled to, will
not be a ground for refusing him his costs ;^ and, although he may
have suggested a doubt as to the mortgagor's title to redeem, yet,
if the Court thinks there is sufficient ground for entertaining such
doubt, he will not be charged with the costs, even where his doubt
eventually proves unfounded. Thus, where, on a bill by a devisee
to redeem, the mortgagee insisted that the heir of the mortgagor
was alive, and an issue was directed to try whether he was living
or dead, upon the trial of which the jury found that he was dead.
Sir John Leach, V. C, determined that the mortgagee must not
pay the costs of the issue, as he could not be charged with vexation
in a case where the Court thought there was so much weight in his
objection as to direct an issue.*

The right of a mortgagee to his costs is not defeated by the cir-
cumstance of his having remained in possession of the estate after
the rents and profits received by him have been sufficient to pay

1 Lord MUldleton v. Kliot, 15 Sim. 531 ; and for the order, see Seton, 629, No. 2.

2 Mortiwn v. Sevins, 5 Grant, 577.

3 Letarge v. Le Tityle, 3 Grant, 695.

4 Jj»ft%i>i V. Stoift, 2 Sell. * Lef. 642, 657.

6 Ihid. ; Sorton v. Cooper, 5 Dc G. M , & U. 728 ; and Bee Tanner v. Heard, 8 Jur. N. S. 427, M. R.
6 Wilton V. MetoalJ'e, 3 Mad. 46.

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1484

rROCEEDINGS IN THE MASTER'S OFFICE.

off the principal money and interest due upon the mortgage : ^ the
estate being considered as much a security for costs as for the
principal and interest ; and a decree for costs almost necessarily
following a decree for payment of principal and interest.^ If, how-
ever, in a foreclosure* or redemption* suit, it turns out, on taking
the account, that on the day on which the bill was filed (to which
time the account will be directed,) nothing was due to the mort-
gagee, he must bear the expense of the suit ; and where a mort-
gagee in possession, by his answer untruly alleged that the
mortgage was not satisfied, he was ordered to pay the costs sub-
sequent to his answer.^

Where a mortgagee files a bill to forclose, and a question arises
at the heariL' ; /bether he has not received sufl&citnt to pay off the
incumbrance bet. re commencement of the suit, the costs will be
reserved.*

A defendant should raise his defence in the least expensive man-
ner ; therefore, if he enters into evidence in a case in which he
might have demurred' or pleaded,* the bill will be dismissed with-
out costs; or the defendant will be disallowed the extra costs
occasioned by his having defended the suit.* And plaintiffs, who
instituted two suits where one would have been sufficient, have
been refused the costs occasioned by the double jproceedings.^®

In coming to a decision upon the subject of costs, the Court is
frequently governed by its wish to discourage unnecessary litiga-
tion. In Millington v. Fox,^^ Lord Cottenham said, that he was
very much disposed, as a general rule, to make the costs follow the

1 Owen r. Griffith, 1 Ves. 8. 250: Amb. 520 ; Lord Tri lUston v. Hainil, 1 B. & B. 377 ; WUnon v.

Metcalfe, 1 Russ. 630, 636 ; but see contra, Woodroft r. Soyt, ctted Beam-en on CostH, p. 26.

2 East India Compamj r. Ekinet, 2 Bro. P. C. ed. Toml. 382 : 6 Yin. Ab. 365. pi. 13 ; Tk<nna» v.

I'uddletbury, Sel. Ca. Oh. 61.

3 Binnington v. Ilaneood, T. & R. 477, 485.

4 Barlmo v. Oaiiu, 23 Beav. 244.

5 MoHtgotnery v. Calland, 14 bim. 79, 81 ; and see Snagg v. FriuU, 3 Jo. & Lat. 3S3 : Poteell v.

Trotter, 1 Dri jr Sm. 388.

6 OoodtrKam r. De Qratsi, 2 Grant, 135.

7 Jone* V. Davidn, 4 Rusts. 277, 278 ; Hill v. Reardon, 2 S. & S. 431, 439 ; HoUingiworth v. Shake-

shaft, 14 Beav. 492 ; Webb v. Unglaiid, 29 Beav. 44: 7 Jur. N. 8. 153 ; Eme»t v. Weian 9 Jur.
N. 8. 146, V.C.K. ; Nenbit v. Berridge, ib. 1044: 11 W. R. 446, 443 M. R. ; but see S. C, 10 Jur.
N. •'. 53 : 12 W. R. 283, L. C. ; Morocco Company v. Fry, 11 Jur. N, 8. 76, 78 : 13 W.R. 310, 312,
V.C.S

8 Sanden v. Benton, 4 Beav. 350, 357 , Jackson v. Ogg, Johns. 397, 402.

9 Godfrey v. Tucker, 33 Beav. 280 : 9 Jur. N. 8. 1188, M. R ; and see Morgan d; Davey, 77, et seq.

10 Ben»u$an v. Nehemiae, 4 De O. & 8. 3sl, 387. •

11 3 M & C. SS8 ; and we obaervati'jus uf Lord Westbury iti EdeUtm v. Edletten, 1 De O. J. & 8. 185:

»Jur. N. S. 479.

COSTS FROM ONE PARTY TO ANOTHER.

1485

b

result ; beeause, however doubtful the title i^igiit be, or however
proper it might be to dispute it, it was but right that the party
who really had the right should be reimbursed, as far as giving
him the costs of the suit could reimburse him ; but then there was
another object which the Court must keep in view, namely, to
repress unnecessary litigation, and to keep Htigation within those
bounds which were essential to enable the parties to vindicate and
establish their rights ; and accordingly his Lordship, although he
held that the plaintiffs were entitled to part at least of the relief
they prayed, refused to give them the costs of the cause : because
it appeared that the. defendants had written to the plaintiffs a letter
offering terms which would have rendered the suit unnecessary :
which letter, his Lordship held, as to costs at least, rendered it
incumbent on the plaintiffs to put to the test whether the defend-
ants were sincere in their offer, and not to go on with the suit,
unless they found that they were insincere.^ The principle to be
deduced from this case seems to be, that if a plaintiff proceeds with
a cause after he has received a complete offer of all that he is
entitled to, the Court, in the exercise of its discretion with respect
to costs, will punish the unnecessary Htigation, by refusing him the
whole costs of the suit : as well those incurred after the tender as
those incurred before.'^ This principle was not, however, adopted
by Sir James Wigram, V. C, to its full extent, in the case of
Colhurn v. Simms :^ for although the defendant in that case had
written a letter to the plaintiffs, offering what his Honor considered
they were entitled to demand, yet he only refused the plaintiffs such
costs as were incurred after the plaintiffs were in the wrong ; and
he observed that, in the case of Millington v. Fox, Lord Cottenham's
attention was not called to the fact that the expense of filing the
bill had been incurred before the plaintiffs received the letter offer-
ing compensation.

^f

i

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Unless the offer of the defendants extends to everything that the
plaintiff has a right to demand, whether in the nature of relief or of

1 3 M. & C. 363, 854 ; and see Mender v. McCready, 1 Moll. 119 ; Macartney v. Graham, 8 R. & M

353 : MoAndrew v. Bamett, 10 Jur. N. S. 492, V. C. W. ; Moet v. Cowton, 83 Beav. 678 : Chegter
V. Metropolitan Railway Company, 13 W. R. 833, M. R. ; Hoiken v. Sincock, U Jur. N. 8. 477 :
13 W. R. 487, V. C. K.; and see Morgan A- Davey, 72.

2 Uolden V. Kynaston, 2 Beav. 204, 20C ; Moet v. Cotuton, 33 Bcav. 678, 681 ; Houkcn v. Sineock,

ubi nap.; but see WainwrigM v. Sewell, 11 W. R. 660, V. C. 8.
i 2 Hare, 643, 561 : 7 Jur. 1104 ; see also WUliaint \. Sorrell, 4 Vm. 889.

1480

PROCEEDINGS IN THE MASTERS OFFICE.

costs, the Court will not punish the plaintiff for declining the offer
by refusing him his costs ;^ and the rule appears to be general
that, wherever costs have been necessarily incurred by a plaintiff
in seeking a demand, a tender by the defendant to obviate future
costs must extend to the costs already incurred.' A plaintiff, in
refusing to accept a tender of the amount due, because the costs do
not form part of the tender, must be careful to ascertain that costs
have been actually incurred by him : otherwise, he will subject
himself to the payment of any future costs which he may occasion
to the defendant.^

<c:;

A tender, to be effective, must be of the whole sum due, and, as
has been stated, of the costs, if any have been incurred ; and if a
tender is refused, and it afterwards appear that the sum actually
due exceeds the amount tendered, the defendant will not be
exempted from costs.^ A tender must also be specific, and
although it may be of a larger sum than is actually due, yet, if
such tender is coupled with a direction to the plaintiff to take out
of it such a sum as is actually due to him, it will not be good.^ So
also, if the tender be clogged with conditions which the party has
no right to impose, it will not be effective to excuse the party mak-
ing it, from the costs ; therefore, where a,n executor, although he
had offered to pay a legacy given in trust for the testator's daughter
for life, and afterwards to her childem, had qualified his offer, by
insisting that it should be laid out in such secmuty as he should
approve of. Lord Gifford, M. R., ordered the costs to be paid out
of the testator's general estate to which the executor was entitled
as residuary legatee : on the ground that the executor had no right
to add such a stipulation to his offer.*

If a tender is not legal, a Court of Equity will not support it ;
nor will it supply a defect in a tender against a rule of Law, unless,
perhaps, where fraud is ub d to prevent its operation -J and where
parties came into Equity, to be relieved from a legal demand, on

1 Kelly V. Hooper, 1 Y. & C. C. C. 107, 200 ; Oeary v. Norton, 1 De Q. S. 9, 12 ; Jamiexon v. Teague,

3 Jur. N. S. 1206, V. C. W.

2 Worral v. Male , 3 Anst. 632 ; Collins Company v. Walker, 7 W. R. 222, V. C. K. ; Burgem v. Hilt,

2e Beav. 244 ; Burgett v. Hately, ib. 240 ; M'allU v. Wallis, 4 Drew. 458 ; M' Andrew v. Batnett,
lOJur. N. S. 492, V. C. W.

3 Meaning v. WiUin, 2 Gwill. 898 : Beames on Costs, 43.

4 Taylor v. Hall, 2 Gwill. 611, n. (a); Worral v. Jfieholla, 3 Gwill. 1302 ; Beames on Costs, 48.

5 Drake v. Brooking, 2 Gwill. 501 ; and see Rumney v. WiUis, ib. 775 ; Beumet on Costs, 43, 44.
C Waiter v. Patey, 1 Kuss 37.'>.

7 Per Lord Hardwiciie in Oammuii v. Stone, 1 Ves. S. 339.

MS aw

COSTS FROM ONE PARTY TO ANOTHER.

1487

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the ground that they had made a tender, Lord Hardwioke refused
to relieve : because the tender might have been pleaded at Law.^

A tender must be proved : a mere statement of it, in an answer?
is not generally sufficient to save the costs.^

The principle upon which the Court acts, in admitting a tender,
duly proved, as a ground for excusing the party making it from
payment of costs, namely, the encouragement of attempts to prevent
litigation, will apply the cases of account, where, although, from
the uncertain state of the account, the accounting party is not able
to make a specific tender of the balance due from him, yet, if he has
shown a willingness to render an account, the Court will, upon
final adjudication, take such willingness into consideration, and
exonerate him from paying the costs to the other party ; although
the result may be that the balance is against him. Thus, on a bill
filed to call a trustee to an account, it was said, by Lord Keeper
Coventry, that if he, by answer, submits readily to it, though on
the account he be found in debt, yet he shall pay interest for the
balance only from the time of the account liquidated, and no costs
if he has not misbehaved himself.^ In that case, however, the
defendant had said in nis answer, he believed the plaintiff consider-
ably indebted to him, and after the matter had depended twenty
years, was found 200^. in the plaintiff's debt ; and the Lord Keeper
therefore decreed, that he should pay interest from the time of the
bill: " for he had admitted, by his answer, that he had not kept
any money for the plaintiff useless or unemployed ; and in a man*-
ner had dared the plaintiff to the account, and, therefore, must pay
the costs : as the plaintiff must have done, if he had been found
indebted to him." So, where a bill was filed against an elegit
creditor, for an account, who, knowing that the balance was against
him, contested the mode of taking the account and failed, he was
ordered to pay such part of the expense of taking the account as
was incurred after his debt was paid off.* It is to be observed that,
in this latter case, the defendant was fixed with the costs, on the

1 Per Lord Ilardwicke, In Oammon v. Stone, 1 Ves. 8. 339. , , . , . .

)i Milwt V. VavMon, 8 Madd. 374.

3 Parrot V. Treby,Pnc. InCh. 264; see also Bennett v. Attkins,iy. &C. Ex. 247,249; Afhbumhairt

T. Thompnon, 13 Ves. 402 ; but see Attortiey-Oeneral v. Brewer*' Company, 1 P. Wms. 370.

4 Skirrett v. Athey, 1 B. & B. 430.

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1488

PROCEEDINGS IN THE MASTER'S OFFICE

ground that he had improperly contested the mode of taking the
account, otherwise he would not have been made to pay them : the
rule of the Court being, as we have seen, that an incumbrancer
upon an estate is not bound to deliver possession, until his costs
are paid, as well as his principal and interest, the estate being as
much a security for one as the other.^

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It may be collected, from many of the cases referred to, that the
Court regards, in some respects, the granting of costs to a party
somewhat in the light of a testimonial of good conduct ; and that
it will, generally, withhold such testimonial from a party who has
been guilty of any misconduct, with reference to the subject of the
suit :^ even where, under other circumstances, that party would have
been considered entitled to them. This position is strongly ex-
emplified in the case of mortgagees or incumbrancers, whose prima
facie right to costs may, as we have seen, 3 defeated by their
conduct. And so, although there is no rule more general with
respect to costs than that, "where the bill claims, on the ground
of fraud, the decree or order of dismission shall be with costs,"^ yet,
where the party succeeding is particeps criminis, the Court will not
consider him entitled to the costs of the ligitation, as in the case
. of bills for the delivering up of securities, given upon considerations
which are contrary to the policy of the law.* Therefore, although
the Court, acting upon principles of public poUcy, will set aside a
marriage brocage bond, at the instance of the husband, yet it will
do so without giving him the costs of the suit which he has insti-
tuted for that purpose, ••and so, where a bill was filed for delivering
up a bond, given by the plaintiff to the defendant's wife, in con-
sideration that she would use the influence and power she had over
the plaintiff's grandfather, (a man of eighty-two,) to induce him to
leave his whole estate to the plaintiff, the Court, although it set

1 Owen V. OriffUh, 1 Ves. S. 250 : Amb. 260.

2 Artmtrong v. Blake, 1 Moll. 178 ; Clowei v. Beek, 2 De G. M. & G. 731, 739 ; Uunter v. Noekoldii,

2 Phlll. 640, 546 ; Langhome v. Harland, 2 Jur. N. 8. 872, V.C.S. ; Mirehmue v. Herbert, S Jut.
N. S. 1238, V.C.S. ; Holmes v. Eastern Countiex liailway, 3 K. & J, 075; May v. Bigijenden, 24
Beav. 207; Great Luxembourg Bailwayv. Magiiay 2b Beav. 586, 699; WiUiama v. Page,'ZS
Bear. 148 ; Marquis of Clanricarde v. Henning, 30 Beav. 176 ; Bobsonv. Earl of Devon, 4 3\\y.
N. 8. 246, L C. & L.JJ.

3 Scott V. Dunbar, 1 Moll 442.

4 Debenham v. Ox, 1 Ves. 8. 276; Mare v. Warner, 3 Oiif. 100 : 7 Jur. N. 8. 1228 ; Mare v. Earle, :i

our. 108 : 7 Jur. N. S. 1831 ; oontra, Jaekman v. MiUhell, 13 Ves. 681, 687 ; Mare v. Sand/ord,
1 our. 888 : 6 Jur. N. 8. 1339 ; H'. v. B. 32 Beav. 574.

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V. Earle, W
Satul/ord,

COSTS FROM ONE PARTY TO ANOTHER.

1489

aside the bond as being given without consideration, gave no oosts
on either side.*

The plaintiff filed his bill founding his right to relief inter alia on
the ground of fraud, which he entirely failed to establish, and in
his bill he had made statements, which he knew to be untrue, and
suppressed the truth in other matters ; the Court, considering
him entitled to relief on other grounds which he had sustained,
made a decree in his favour, but without costs.^ Where a suit was
brought for redemption and the defendant set up an absolute con-
veyance by way of answer which he sustained by the evidence, the
Oourt, though it dismissed the bill, refused the defendants their
costs up to the bearing, in consequence of the untruthfulness of
their answers.^ Although the general rule is that in a suit to
redeem, if a balance is found due to the defendant, he will be ordered
to receive his costs, still, where on the settlement of certain land
transactions between vendor and purchaser, the former, together
with his solicitor, made up a statement shewing a balance due to
him of ^6417, for whxch the vendor who was old and illiterate,
executed a mortgage on his estate, but on taking the accounts in
the Mp,ster's Office, if was shewn that at the time of taking the
security only ^627 68. id. was due : the Court, upon a bill filed by
the mortgagor, against the executors of the mortgagee, impeach-
ing the whole tranf?action for fraud, ordered his estate to pay all the
costs of the litigation.*

The Court expects that there should be an absence of fraud, on
the part of the party applying to it for relief ; and even where there
has been no positive fraud, but the conduct of the party has not bpon
strictly honourable, it will, in eases where the appUcation is to the
discretion of the Court, visit him with costs f and so, if a party
obtains an unconscionable advantage over another, the Court,
although it may not feel itself justified in depriving him of the
advantage he has gained, will not give him his costs of enforcing it.
Therefore, where a purchaser obtained a bargain at an inadequate
price, but which the Court might be bound to enforce, it would not

1 Debenkam ▼. Ox, 1 Ves. S. 276. .

2 Ilughton v. Davis, 4 Orant, 688.

'i FMayionv.MUlard, 10 Onat, 130. . , •

4 Souter V. Bumham, 10 Oruit, 376.

& Daviav. Syinondi,! Cox, 4103, 4/K, . -.

*;' \ ^ '''■ "

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1490

PROCEEDTNOS IN THE MASTER'S OFFICE.

5SI

-r-W

give bim costs against the seller, whose estate he had obtained at
an under value.* So, where a plaintiff has slept upon his rights,
and has allowed the defendant to suppose that he would not enforce
them, he will frequently, although successful, be deprived of his
costs : as, where there had been no demand, nor any rent paid, for
thirty years, but the person who was entitled recovered upon a
verdict, Lord Hardwicke said the defendant must pay the costs at
law, but as the laches arose on the part of the plaintiff, and the
obscurity of the title to the rent, from the want of a demand for
such a length of time, he should not be allowed costs against the
defendant in Equity.^

• f 1 »•

Where defendants set up a defence to a bill, which if tenable,
would have formed sufl&cient grounds for their having taken steps
to set aside the transaction which it was now sought to enforce, but
had not done so, although twelve years had elapsed since the act
was done which they questioned, and which it was shewn they had
all the while been aware of, the Court under the circumstances
ordered them to pay the costs.^

Sometimes where there has been a misunderstanding between the
parties, and the bill is in consequence dismissed, the Court will not
give costs to the defendant. Thus, where a bill was filed for a
specific performance, and the Court was of opinion that there
was no concluded agreement, and that all the correspondence
together did not amount to more than a treaty, it dismissed the
bill, but, in consideration that it appeared to have been a case of mis-
understanding, arising from the want of clear unequivocal conduct
and language, it was dismissed without costs.* The Court has
also refused costs to a vendor, although it decreed specific perform-
ance at his suit, in cases in which the vendor's own representation
had given the purchaser a probable cause of suit.^

Where, before the expiration of the time appointed by a contract
for the payment of the purchase money of a lot of land, the vendee
became dissatisfied with the title of his vendor as it appeared on the

1 nurrowh V. Lock, 10 Yes. 470, 476 ; StM. V. & P. 663.

2 A non., 2 Atk. 14; see also Clifton v. Orchard 1 Atk. 610; Pearce t. Nevolyn, 3 Mai. 186, 18fl ;

Oue»t\. Uom/ray, 6 Yes. 818, 824; Lee v. Broim, 4 Yes. 862, 369.

3 Miller v. Ostrander, 12 Grant, 349.

4 Stratford v. Bogworlh, 2 V. & B. 341, 348 ; Marquis Tovmthend v. Stangroom, 6 Yes. 328, 341.
6 Fenton v. Browne, 14 Yes. 144, l.'K) ; Harrxton v. Coppard, 2 Oox, 818, 330.

COSTS FROM ONE PARTY TO ANOTHER.

1491

books of the Eegister Office of the county, and without any com-
munication with the vendor, filed a bill to rescind the contract, or
to have it specifically performed if it shculd appear that the vendor
could make a good title ; and at the hearing the plaintiff (the
vendee) expressed his willingness to accept the title : the Court,
with the consent of the defendant, offered the plaintiff a decree for
specific performance on payment of costfi ; or, if that were refused,
ordered that the bill be dismissed with costs.^ The steps which
the vendee of an estate who desires thg specific performance of
the contract of sale should take before filing a bill for that purpose*
in order to entitle him to the costs of t!ie suit, are considered in
JTutchinson v. Rapelje.^

Where a defendant would have been entitled to the costs of the suit
up to the hearing, but for an offer which the plaintiff made by letter,
after the answer was filed, to accept a sun. he named, and to which
he mentioned he thought he would be entitled if he failed in
establishing the larger claim he made by his bill, and by which
offer it was proposed that each party should pay his own costs, but the
Court decided both against the larger claim, and the view referred
to, but granted a decree for an account on a different footing, which
it was alleged would result in shewing the amounts mentioned in
the letter to be about the true amount ; it was held that these cir-
cumstances did not entitle the plaintiff to have costs reserved until
the taking of the account.^ Where a bill by a purchaser seeking
specific performance of a contract for the sale of lands is dismissed
because a good title cannot be shewn, the Court will order a sum
paid on account of the purchase money to be returned to the pur-
chaser, and in default, give him a lien therefor on the estate
agreed to be sold ; but in feuch a case, unless the vendor has been
guilty of fraud in the transaction, the bill will be dismissed with-
out costs, the rule being that when a bill filed by a purchaser to
enforce specific performance of a centract of sale is dismissed for
want of title in the vendor, and ro fraud can be attributed to him,
the Court refuses to give to either party costs ; and such refusal
to give costs proceeds, not from any want of jurisdiction to afford

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1 Currah v. Rapelje, 3 Qrant, 642.

2 HutchituiMi y. Rapelje, 2 Grant, S83.

3 Covert v. Baitk o/ Upper Canada, 3 Grant, 246.

70

1492

PROCEEDTNOS IN THE MASTER'S OFFICE.

that relief, notwithstanding the dismissal of the bill, but upon this
principle, that as the purchaser could, and no doubt did, inform
himself as to the state of the vendor's title, and knew that he could
not obtain any relief, he had filed his bill without any expectation
of succsss, and therefore could not be considered entitled to his
costs.* Where a defendant's own letter was such as to create a
misapprehension of fa^ts, and a suit was instituted in consequence,
the Court, although it refused the relief asked, dismissed the bill
without costs.^ Where the Provincial Government had appro-
priated and patented as a giebe, a lot which had been previously
occupied and improved, and upon which the patent fee had been paid
by the occupier, and not returned by the Government, the patent was
set aside as having issued in error and mistake, but, under the cir-
cumstances, without costs.' The Court will in same cases dismiss
a bill, but without costs where the declarations of the defendant
tended to create a misapprehension of faots.^

ii-

3«:

In cases also where one party, upon the construction of a doubt-
ful point of law, has obtained a great advantage over the other, the
Court will not give him his costs : as, where an annuity was
charged upon real estate, payable to the annuitant only upon his
own receipt, and the annuitant became bankrupt, whereupon a bill
was filed by his assignees against the owner of the estate for the
recovery of the annuity, and a case was directed to the Court of
King's Bench, who certified that the annuity had ceased by the
bankruptcy : upon the equity reserved, the bill was dismissed with-
out costs : Lord Alvanley, M. E., saying, it was a doubtful point,
and the defendant had a great advantage by the failure of the
bankrupt, but that he would consider of the costs at Law.*

As the Court will not tolerate fruud in any form, so will it dis-
countenance a groundless allegat' jn of fraud in a bill or other plead-
ing ; and upon this principle it is that the rule has been established
that, where the bill claims on the ground of fraud, an order of dis-

1 Hurd V. Robertson, 7 Grant, 142.

2 Andenon v. Cameron, 6 Grant, 286.

8 Attomey-Oeneral v. HUl, 8 Grant, 632.

4 Anderson v. Cameron, 6 Grant, '285; and see McLaiuhlin v. Whitetide, 7 Orsnt, 678; Rati v

lyke, 11 Grant, 342.
6 Dommett f. Bedford, 3 Ves. 149.

COSTS FROM ONE PARTY TO ANOTHER.

1493

mission shall be with costs; * and a party introducing unfounded
charges of fraud, will be made to pay the costs occasioned thereby :
though he may be successful in the suit -^ or the other party may
have acted in such a manner as to give reasonable grounds of sus-
picion f and^for the application of this principle, it is not neces-
sary that the word " fraud " should he made use of; a substantial
imputation of it is sufficient.* Mere exaggerations or overstate-
ments will not, however, deprive a successful party of his right to
costs ;^ and where the parties have acted in such a manner as to
render the charges of fraud not unreasonable, no order will be made
as to the costrf occasioned thereby.®

Where a plaintiff without proper enquiry into facts, and with
undue haste, filed a bill in this Court to enforce a judgment at law,
in which he made charges of fraudulent practices against the
defendant, the Court, while granting him the relief to which he was
strictly entitled, refused him his costs of the suit, and ordered him
to pay the costs of the defendants.^ The owner of land deposited
his title deeds on 19th May, for the purpose of having prepared a
mortgage thereof, which was accordingly made out, and executed
on 30th May. The preceding day the mortgagor made a lease, of
which, however, the mortgagee bad not any notice. A bill filed by
the lessee to restrain proceedings at law under the mortgage was
dismissed, but the mortgagee, liaving in his answer deliberately
sworn either to what was untrue or to what he did not know to be
true, the Court refused him his costs, although costs were given to
the other defendants.^ Where the plaintiff made charges of im-
proper conduct against the administratrix, which were not sus-
tained in evidence, he was ordered to pay all costs, other than of

',;;': V. 'm ■ , 1 •' ■, ^ ; '/■,."'■ •" , : '■

1 Scott V. Duvhar, 1 Moll. 442 ; Pierce v. Franks, 10 Jur. 25, V.C.K.B.; Langley v. FwAar, 9Beav.

90, 104 ; New Brunswick d: Canada Railway Cmnyany v. Conybeare, 9 H. L. Ca. 711 : 8 Jur. N.
S. 676; Luff V. Lord, 11 Jur. N. 8. 60, L. C,; 10 ib. 1248, M. R. ; see also Ambrose v. Dunmoto
Union, 9 Beav. 508, 514 ; Morgan Js Davey, 73.

2 Wright V. Howard, 1 8. & S. 190, 206; Thomas v. PhiUips, 11 Jur. 80, V.C.K.B.; Stani'and v,

H illott, 3 MoN. & G. 604, 666, 682 ; West v. Jones, 1 Sim. N. S. 205, 218 ; Pledge v. Bass, Johns.
663; BUst V. Brown, 8 Jur. N. 8. 602 : 10 W. R. 669, L. C. ; Jones v. Ricketts, 10 W R. 676, M.
R. ; Doualass v. Culverwell, 3 Gift. 251 : 8 Jur. N. S. 29, 34 ; Straker v. Ewing, V. Jur N. S.
127: 13 W.R. 286, M.R. For mode of the apportionment of the costs, see Ueming v. Leif child,
8 W. R. 352, V.C.W.; 9 \V. R. 174, 1;.JJ.

3 Theyer v. Tmnhs, 12 W. R. 512, V C.W.

4 Marshall v. Sladdcn, 7 Hare, 428, 444.

5 Thomas v. Lloyd, 3 Jur. N. 8. 288, V.C.W.; contra, Ratolinsr. Wickhaut, 1 Glff. 866: 4 Jur. N.

8. 990 ; 3 De G. & J. 304 ; 5 Jur. N. 8. 278.

6 Origgs v. Staplee, 2 De G. & 8. 572, 590 ; and see Thompson v. Webster, 4 De O. & J. 600 : 6 Jur.

N. S. 921 : overruling 8. C. 4 Drew. 628 : 5 Jur. N. 8. 668.

7 A'eal v. Winter, 9 Grant, 261. =

8 McKay v. Davidson, 13 Grant, 49a

*i »

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c

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1494

PROCEEDINOS IN THE MASTER'S OFFICE.

an ordinary administration Buit.^ It may lieru be noticed that
executors will be ordered personally to repay costs paid to them or
their solictor under a decree, which is afterwards reversed on
appeal.^ Where an answer improperly impupned the motives of
the solicitor who filed the bill, the Court, although it dismissed the
bill with costs, directed the costs of the answer to be disallowed to
the defendant.^

(.-.

4 N«»*»

Where the conduct of both parties has been equally reprehensible,
the Court will also abstain from giving costs in favour of either
party ; thus, where, under a reference to inquire into a vendor's
title, it was found that the abstract delivered by the vendor before
the filing of the bill was sufficient, but that the purchaser required
certain evidence in support of the abstract, some of which was
necessary but not furnished, and some not necessary, Lord Eldon
decided, that both the parties were in the wrong ; and, upon the
vendor's bill, he held that no costs ought to be given on either side.*
Where, however, the vendor had failed in making out his title,
upon an objection to the abstract taken by the purchaser, but he
afterwards succeeded in establishing it upon another ground, the
Court, although it directed the performance of the contract, gave
the costs to the purchaser.^

Three persons having entered into several contracts, in the
name of one of the three, for the construction of portions of
a railroad without any written articles of agreement as to the share
each should have after the completion of the works disputed as
to the share each should have in the contracts, and a bill was filed
by one of them, to have an account taken claiming a larger share
in the profits than the Master allowed him by the report, from
which all parties appealed, being dissatisfied therewith, and by
arrangement the Court below affirmed the finding of the Master
with the view of taking the opinion of the Court of Appeal thereon.
The Court of Appeal, on affirming the order of the Court below,
refused the costs of the appeal to either party.*

1 Hodgint v. McNeil, 9 Grant, 305, .

2 Davidson v. Thirkell, 1 Grant, 284.

3 MeKetusie v. Yielding, 11 Grant, 406.

4 Newall V. Smith, 1 J. & W. 263. As to costti, in suits for specific performance, see OnionM v.

Cohen, 2 H. & M. 3S4 : 11 Jur. N. 8. 198 ; Morgan Jc Davey, 177 et aeq.
6 Fielder v. Uigginaon, 3 V. & B. 142 ; and s«e Sidebotham v. Barrington, 6 Beav. 261. ' 'I ,
6 NiehoU v. McDonald, in appeal, 8 Grant, 106.

COSTS FROM ONE PARTY TO ANOTHER.

1495

And where both parties had been equally foolish, the one in sell-
ing and the other in buying an estate which was liable to be
defeated upon a contingency, which contingency had actually
happened before the contract was entered into, L. 0. B. Bichards,
although he set abide the contract, ordered each party to pay his
own costs.^ V

It has been said, that, in suits for the specific performance of
agreements for the sale or purchase of estates, the circumstance of
the title being bad only makes a prima facie case for costs, which
is capable of being rebutted by circumstances -^ and, in Staines v.
Morris,^ Lord Eldon remarked, that, as to the costs of a suit in
Equity, although it was in many cases very hani that they should
follow the event of the cause, yet all his experience had persuaded
him that it was much to be wished that th' course of tlie Court
was so; but that certainly it was not the present course of the
Court ; and that where there is a fair case for connideration, it was
not the course to visit the party who fails with costs. In that
case, his Lordship, although he held that the purchaser was wrong
in resisting a covenant which he was bound to enter into, yet, as
the Master's opinion had been the other way, and the Judges at
Law would not decide the case until they had the opinion of the
Court of Chancery, and professional men had differed upon the
question, it would, he said, be too presumptuous in him to set
such a value upon his own opinion, by marking the resistance pf
the purchaser with costs ; and, therefore, he made the decree with-
out costs.*

: i
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t>,

Upon the same principle, where a bill was filed against a pur-
chaser for the specific performance of his agreement, and the
question turned upon a point of law, which had been determined in
favour of the plaintiff's view by the Court of Exchequer, Lord^
Rosslyn, although he differed from the Court of Exchequer, and
therefore felt himself compelled to dismiss the plaintiff's bill, yet as
he could not make a purchaser take a title in the face of the
decision of the Exchequer, he dismissed the bill without costs.^

1 Hitchcock V. Oiddings, Dan I : 4 Pri. 135.

2 Edwards v. Harvey, O. Coop. 40; Monro v. Taylor 8 Hare, 51 ; Abhot v. Svmrder, 4 De G. & S.

448, 4«0 ; Sherwxn v. Shaktpeare, 17 Beav. 267 ; Freer v. Heue, 4 De G. M. & O. 495.

3 1 v. & B 8, 16. 4 See Sitg. V. Jr P. 649. 6 Roie T. Calland, 5 Ves. 186.

1496

PROCEEDINGS IN THE MASTER'S OFFICE.

And 80, in White v. Foljambe,^ Lord Eldon dismissed the bill with-
out costs : the grounl of his judgment, as his Lordship afterwards
said,'^ being, that the question was a pure question of title, which
raised very considerable difficulties in the minds of those mos*
capable of judging upon such a subject. And so, where the report
was in favour of the plaintiff's title, and exceptions were taken to
the report, upon the hearing of which the Court thought the title
too doubtful, an order was made dismissing the plaintiff's bill, but
without costs.^

Although the Court will not, in general, visit with costs a party
who resorts to the Court in a doubtful case, yet, if he is absurd
enough to refuse a fair offer of accommodation, and obstinately per-
sists in his suit, it is an aggravation, and his bill will be dismissed
with costs.* And wherever the doubt has been occasioned by the
conduct of the party himself, the Court will deprive him of his
costs, though he succeeds in the suit.^

it-

frit::

'3k:>

■i-

Where the Court comes to a decision, upon a point of law which
is contrary to a former decision, either of this Court, or of any
other of competent jurisdiction, it will generally exonerate the
party against whom it decides, from the payment of costs to his
adversary : as in the case of Rose v. Calland,^ before referred to ;
but where the point has been decided before, and the Court thinks
that the decision was correct, it will, if the party, against whose
interest the decision is, had notice of the previous determination,
fix him with the costs of the litigation. Thus, where a bill was
filed for specific performance, and the purchaser set up an objection
to the title which had already been decided in a former case, of
which the purchaser had notice, the purchaser was decreed to pay
the costs of the suit.^ And in suits for specific performance, it is
not the mere failure of an objection, taken by the purchaser to a
title, that will fix him with costs : a purchaser is considered as
entitled to take a fair objection ; and, although it be overruled, yet

1 11 Ves. 337 ; and see Bond v. Bell, 4 Drew. 167 : 3 Jur. N. S. 1290.

2 See 11 Ves. 463. 3 Willcox v Bellacrs, T. ft R. 491, 495.
4 Per Lord Hardwicke, in Biggleston v. Orubb, 2 Atk. 48.

6 Blunt v. Cumyna, 2 Ves. 8. 331. 6 5 Vea. 186.

7 Biteoe v. Wilks, 3 Mer. 456 ; and see Bzrton v. Barton, 3 K. & J. 612. Scmhle, a partjr is not

bounb to be acquainted with a case which has not appeared in the authorised reports : Pigott v.
Young, 7 W. R. 285, V. 0. K.

COSTS FROM ONE PARTY TO ANOTHER.

1497

his
to;

links

hose

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pay

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^igott V.

the Court will not, on that ground, give costs against him.^ This,
'however, must always depend upon the weight which the Judge
may think due to the objection. '^

It is, however, only where the case turns upon a question of law,
upon which the opinion of the Court may be fairly taken, that the
unsuccessful party will be excused the payment of costs : if there
is a decided objection to the case set up, the party setting it up
will be compelled to pay them. Thus, where a vendor sells an
estate, his title to which is clearly bad, the Court will dismiss his
bill with costs f and this it will do, even where the defect has
been occasioned by an accident : as where the title deeds were burnt,
after the contract.* It seems, also, that if there is one substantial
objection to the plaintiff's case, which prevails, the circumstance
that the defendant has taken others which have failed, will not
relieve the plaintiff from his costs. Thus, where a purchaser
obtained an issue upon a question of pedigree, in which the vendor
failed in establishing his title, the bill was dismissed with costs,
although the purchaser had taken several objections, and had only
succeeded in the one relating to the pedigree : the Court observing,
that, although the objections wero overruled, they might have been
very properly made though an answer was given to them, or they
were removed.^

Where the only defence set up by the defendant failed, and the
ground on which the Court decided against the plaintiff was not
taken, or even pointed to in any manner by the answer, the Court,
though it dismissed the bill, refused the defendant his costs of the
suit.® Where a bill was filed to set aside a conveyance as having
been made to hinder creditors, on grounds which the plaintiff failed
to substantiate, but the evidence of the grantee himself shewed
that on other grounds the plaintiff was entitled to relief at the

1 Sua. V. & P. 649 ; Cix V. Chamberlain, 4 Ves. 631, 633 ; Slaines v. Xorris, 1 V. Ji B, 8, 14 : Sharp v

koahde, 2 Rose, 192.

2 SU'j. V. & P. 649 ; soe Burnahy v. Griffin, 3 Vis. 266, 277 ; Bishop oj Winchester v. Paine 11 Ves.

194, 201 ; Powell v. Martiir, S Ves. 146, 149 ; Pludyer v. Cocker, 12 Ves. 25, 27 ; Calverley t.
Waiiams, 1 Ves. J. 210, 213 ; McQueen v. Farquhar, 11 Ves. 467, 482: Weddall v. A'taron, 17
Beav. 160, 170 ; and see Thomas v. Townsend, 16 Jur. 738, V. C. K.

3 Playford v. Uoare, 3 Y. & J. 175.

4 Bryant v. Busk, 4 Russ. 1, 6. In that case, the Court seemed inclined to make an order, that the

plaintiff should concur with the ddcndant in g^iving an order to the auctioneer to return the
deposit paid by the defendant, at the salo of t.je estate : ib. 6.

5 SdvMtds V. Haruey, O. Coup. 40 ; sue Towntend v. Chainpernowne, 3 T. & C. Ex. 605, 527.

6 MoAnnany v. Tumbnll, 10 Grant, 298.

I
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1498

PROCEEDINGS IN THE MASTER'S OFFICE.

B.

hearing, leave was given him to amend setting forth such ground,
and a decree was made in his favour, but, under the circumstances,
without costs.^ Where a purchaser filed a bill alleging that his
vendor could not make a good title to the lands agreed to be sold*
but at the hearing waived a reference as to title, admitting the
same to be good, the Court ordered the plaintiff to pay costs.^

The rule upon this subject formerly was, that, if a purchaser
made the suit necessary by a frivolous objection to thfe title, he
must bear the costs which he had improperly occasioned ; but if he
stated a serous objection, as to which it was reasonable that he
should have the title fortified by the opinion of the Court, the
Court would not compel him to pay costs, although the objection
failed.^ The principle was the same with respect to the pur-
chaser's suggestion of doubt as to matters of fact. The present
practice, however, is generally to make the costs follow the
result.* ^

If 'the Court thinks an objection groundless, although it is sup-
ported by the opinion of counsel upon which the purchaser has
acted, yet the party taking it will be compelled to pay the costs :
for the Court cannot allow the mistaken ad\ice of a third person
to operate, to the disadvantage of the party who is clearly in the
right.^

Ard where one of the objections of a purchaser to a title arose
from the circumstance, that, on an abstract which had been made
use of on a former occasion, a certain observation appeared, imply-
ing a doubt whether a title could be made unless a particular
appointment should be executed, and suggesting certain possibili-
ties and probabilities which, if true, would render the title objec-
tionable. Lord Eldon, being of opinion that a good title was made,
said, that he should very reluctantly lay down that a notice from
opinions in an abstract, or any thing that appears upon a deed,
that there may by any possibility be reason to suspect (what he
could not know, and might not be true,) that the title was bad, was

1 Watton V. McCarthy, 10 Grant, 416 ; and see Weiie v. Ferris, 10 Grant, 98. ' )

2 Titdale v. Shortitg, 10 Grant, 271. ' '<
8 Thorpe v. Freer, 4 Madd. 466 : see also Aitlabie v. Rice, 3 Madd. 256, 260.

4 Carver v. Riehardg, 6 Jur. N. S. 667, M. R.; see, hovever. Maiden r. Fyton. 9 Beav. 847 ; Sug. V.

ft P. 646.
6 Mating v. Hill, 1 Cox, 186 ; see also Vancouver v. Blui$, 11 Ves. 468, 468. ^

COSTS FROM ONE PARTY TO ANOTHER.

1499

sush a notice as would aflfect the purchaser, and that, if the objec-
tion was no more than a question of title, he should act hardly by
the purchaser by not giving the title the credit of making him pay
the costs: " for it would help the title."^

In mqst of the cases before stated, the Court, in withholding
the costs of the suit from the successful party, has been influenced
by his conduct with reference to the suit or the subject-matter of
it. There are, however, many cases in which the Coiui, without
any reference to the good or bad conduct of any party, has refrained
from awarding costs to be paid by the unsuccessful party, solely
from consideration of the peculiar hardship of the individual case ;
it is, however, useless to state them fully, since they involve no
general principle.^

As a general rule, no order is made as to costs, in the case of a
suit between husband and wife ;^ and where a husband and wife,
although living apart from each other, severed in their defence,
and appeared by different solicitors, only one set of costs was
allowed between them.*

Where a suit for specific performance is rendered necessary by
the act of God : such as the lunacy of the vendor, or his dying
intestate, the decree is generally made without costs f but where,
after the contract for sale, the vendor makes a strict settlement of
the property,^ or devises it, so that it becomes vested in infants,
his estate must bear the costs of the suit J

In the cases in which Courts of Law have assumed a concurrent
jurisdiction with Courts of Equity, but the latter have not relin-
quished their jurisdiction over the subject, the Court of Chancery
will not compel the party who seeks relief under its jurisdiction to

Mi

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4

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I

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: Stv. V.

1 McQueen v. Farquhar, 11 Ves. 407, 482.

2 See Shalex v. BarringUm, 1 P. Wms. 481 ; Drybutter v. Bartholomem, 2 P. Wms. 127 ; Coppin v

Coppin, ib. 291, 297 ; Forbef v. laylor, 1 Ves. J. 99 ; Brodie v. St. Paul, ift. 326, 334 , Mosely v.
Virgin, 3 Ves. 184, 187 ; Dtckemon v. Lockyer, 4 Ves 86, 45 : Everett v. Baekhouie, 10 Ves. 94.
101.

3 Vansittart v. Varmttart, 4 K. & J. 62; see, however, S C. 2 De O. & J: 249, 258; Walrond v

Walrond, Johns. 18 : 4 Jur. N. S. 1099 ; Re WUls, 8 N. R. 107, V.C.W.; Rotherham v. Battton,
2 Sm. & O. App. 8 ; and see Morgan A Davey, 260.

4 Qarey v. Whitttngham, 5 Beav. 268, 270 : 6 Jur. 545.

5 Creaswell v. Haines, 8 Jur. N. S. 208 : 10 W. R. 121, V. C. W.; Hanson v. Lake, 2 Y. & C. C. C.

328 ; Hinder v. Streeten, 10 Hare, 18 ; Purser v. Darby, 4 K. & J. 44 ; Scott v. Scott, 11 W. R.
766, v. C. K. ; see 11 Jur. N. S. 480 : Barker v. Venables, ib. : 13 W. R. 808, V. C. W. ; and see
Moiyan <Ss Z)at>ej/, 186.

6 Wortham v. Lord Daere, 2 K. & J. 437.

7 Per V. C. Wood, in Purter v. Darby, ubi tup.; Sanderson v. Chadwiek, 8 N. R, 414, V. C. S.

1600

PROCEEDINGS IN THE MASTER S OFFICE.

cx:
oac:

pay the costs of his proceeding. Thus, where a bill was filed by
one partner against another, to enforce contribution, and the
Court allowed the case to stand over, in order that an action
might be tried at Law, which was decided against the plaintiff, the
Court although it dismissed the bill, did so without costs : being of
opinion that, although the question was more proper to be tried at
Law, the plaintiff was very well justified in coming for a contribu-
tion : for certainly the Court of Chancery had never given up its
jurisdiction.^

On the other hand, in the cases in which, after a bill dismissed,
the plaintiff would have had a right to try the question over again
at Law, the Court, for the purpose of putting an end to litigation,
has frequently dismissed the bill without costs, upon the plaintiff's
waiving his right to try the question at Law : a rule which has
been usefully applied to suits for specific performance.^

The general rule of the Court is, that the successful party,
although he may, as we have seen, be deprived of his costs, never
pays them. Thus, it was held in Lewis v. Loxham? that, when a
bill is dismissed, it is against the principle of the Court to order the
defendant to pay the plaintiff his costs. The case was ordered to
stand over, in order to enable the plaintiff's counsel to search for
precedents the other way ; but he did not produce any. It seems,
however, from a note of the learned reporter, that, in a case before
Sir Thomas Plumer, V. C, his Honour doubted, and seemed to
think that a bill might be dismissed, and the defendant at the same
time made to pay the costs.*

Where it is necessary that a bill should be filed by some person,
the Court may order the costs to be paid out of the fund, although
the bill is dismissed ;^ and if, through the exertions of a plaintiff,

1 Wright v Hunter, 6 Ves. 792, 794.

2 Harnett v, Yielding, 2 Sch. & Let. 660 : see also Lawremonv. Butler, 1 Sch. & Lef. 13, 21 ; BwUon v.

iMter, 3 Atk. 383, 387 ; Underwoid v. Hithcox, 1 Ves. S. 279 ; Levian v. Alie. Amb. 163 ;

Attorrney-Oeimral v. Owen, 10 Ves. 555, 561.
5> 3 Mer. 429 ; see also Wykham v. Wykham, 18 Ves. 395, 423 ; Attorney-General v. OgUnder, 1 Vts.

J. 246 ; Cooth v. Jackson, 6 Ves. 41 ; Dixon v. Parker, 2 Ves. S. 219, 223 ; Tidwell v. Ariel, 3

Mad. 403, 409 ; Dufaur v. Sigel, 4 De O. M. & G. 620, 525.
4 Spring feld v. Ollett, cited 3 Mer. 4.S0, n. Indeed, it appears, from the same note, that according

to the decree in Lewis v. Loxham, Keg. Lib. 1816, B. 1059, the defendant wa.s ordered to pay to

the plaintiff his costs of a second reference as to title, and of the report thereon, but not of the

former proceedings.
6 Cranch v. Bribsett, cited in Wheldale v. Partridge, 6 Ves. 398 ; Thomason v. Moses, 5 Beav. 77,

81 : 6 Jur. 403 ; JJay v. Botven, 5 Beav. 610, 016 ; Lynn v. Beaver, T. & R 63, «9 ; Windham v.

Oraham, 1 Russ. 331, 347 ; Borcham v. Bigtuill, 8 Hare, 131 ; Merlin v. Blagrave, 25 Beav. 125 ;

and see Westcott v. CuUi/ord, 3 Hare, 274 : 8 Jur. 166 ; Lee v. Delane, 4 De Q. & S. 1, 6 : 14 Jur.

861 ; Morgan & Davev, 07-

1 V«8.

Lrt<l, 3

«av. 77,
ham V.
,v. 126 ;
14 Jur.

COSTS FROM ONE PARTY TO ANOTHER.

1601

the Court is enabled to distribute a fund, or if it make a declaration
of rights necessary for its administration, there, although the
plaintiff may fail in his claim, the Court will not permit the other
parties to carry off the fruit of his exertions, without defraying his
costs out of the fund.^

There are also some cases in which the successful party has,
under peculiar circumstances, been made to pay the costs : thus,
where the bill was filed for specific performance of an agreement
to renew a lease, and the agreement proved by one witness was
different from that stated in the bill, whilst the defendants, by
their answer, set forth an agreement different both from that proved
and that set up by the bill, specific performance was decreed
according to the agreement stated in the answer, with costs against
the plaintiff. 2 And where, at the suit of the grantee, an annuity,
in the payment of which no default had been made, was declared
charged on the real estate of the grantor, the plaintiff was ordered
to pay the costs of suit.'

Another instance of departure from the rule, that the successful
party has to pay no costs, may be found in the case of a cestui que
trust making his trustee a defendant, to a suit instituted by him
against a third party : in that case, the cestui que trust, although
he obtains a decree against his trustee, must pay his costs, unless
the trustee has been applied to, to join in the suit as co-plaintiff,
and has refused.* The proper course to be pursued, by a cestui
que trust who intends to file a bill against a stranger relative to
the trust property, is to apply to the trustee to become a co-
plaintiff : indemnifying him against costs ; and then, if he refuses,
he must bear his own costs as a defendant.^ ,,t

If a suiii is occasioned by the misconduct or obstinacy of a
trustee, he may be compelled to pay the whole costs of it. Thus,
where a bill for specific performance of an agreement was made
necessary by a trustee refusing to join in the conveyance. Lord

1 Wedgwood v. Ada tig, 8 Beav. 103, 105.

2 Mortimer r. Orchard, 2 Ve.s. J . 243; see observations on this case in Beatne$ on Costs, p. 112; see also

Edwards Wood v. Marjoribanks, 3 De O & J. 329 ; 6 Jur. N. S. 181 ; Afflrmeil 7 H. L. Ca. 806 : 6
Jur. N. 8. 1167.

3 Nonnan v. Johnson, 29 Beav. 77 ; 6 Jur. N. 8. 905 ; Burrell v. Delavante, 30 Beav. 560 : 8 Jur. N.

S. 205.

4 Reade v. Sparkes, 1 Moll. 8. 5 Ibid. ; and see Pakington v. Benbow, 6 W. B. 670, V. 0. W.

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1502

PROCEEDINGS IN THE MASTER'S OFFICE.

■jr —1..

•;'":''f-

Thurlow was of opinioii that the trustee ought to pay all the
costs of the suit, and accordingly directed the plaintiff to pay to
the other defendants all their costs of the suit, and recover them
over, together with his own costs, from the defendant the trustee.^

In the case last referred to, the Kegistrar appears to have doubted
whether, according to the practice of the Court, the plaintiff, hav-
ing been successful against the other defendants, and obtained
against them a decree for specific performance, could, in point of
form, be ordered to pay them their costs ; but the Lord Chancellor
thought that the decree was correct, according to the course of the
Court. In fact, under ordinary circumstances, no other method
exists, by wixich a defendant, who has by his conduct occasioned
the suit, can be made to pay the whole costs of it : for the delin-
quent defendant cannot be decreed to pay the costs of a co-defend-
ant to that defendant himself, as that would in effect be a decree
between co-defendants. The only method, therefore, of < flfecting
the object of compelling the delinquent defendant to pay {ab costs
of the other defendant, is to order the plaintiff to pay them, and
then to permit him to receive them again from the defendant,
whose delinquency has given rise to the litigation.^ In suits, how-
ever, in which the Attorney- General is plaintiff,^ and in inter-
pleader suits, costs may be ordered to be paid by one defendant to
another.*

This is the present English and was formerly our practice, but
our Order 319 has changed it by providing that " where the costs
of one defendant ought to be paid by another defendant, the Court
may order payment to be made by the one defendant to the otlier
directly : and it is not to be necessary to order payment thr , ,. :
the plaintiff." Where a solicitor adopts a course which is ob- ,{}> . ,
unreasonable and perverse, the Court will order him to p& -tie
costs occasioned by such conduct. Where, therefore a solicitor
refused to leave with the Master a mortgage under which he
claimed on behalf of a creditor, and the Master disallowed the

1 Joneg V Lewis, 1 Cox, 109.

2 See Wey)nouth v. Boyer, 1 Ves. J. 416, 426 ; Parkes v. White, 11 Ves. 209, 238 ; Phillips v. Davies,

7 Jur. 52, M. R. ; Man v. Eicketts, 7 Beav. 93, 104 ; Popple v. Hemon, 5 De 0. * S. 318. For

form of order, see Setoii, 86, No. 3.
8 Attorney-General v. Corporation of Cheater, 14 Beav. 338. . •

4 Seton, 967. . . ^ .

but
costs
Court

; ot?jor

Davies,
318. For

COSTS FROM ONE PARTY TO ANOTHER.

1503

claim as not being proved, the Court, on appeal, refused to interfere
with the Master's finding, and made an order for colls against both
the solicitor and client. Under the circumstances above stated,
the Court gave the client, the creditor, a further opportunity of
proving the claim, unless the solicitor should show that he acted
under express instructions.^

Where a defendant has the same interest as the plaintiff, but dis-
approves of the suit, he should distinctly repudiate it : if he does
not do so, the bill may, in the event of the plaintiff not succeeding,
be dismissed without costs as against him.^

In deciding the question of costs, the Court will frequently appor-
tion them, so as to cause the costs of one part of the suit to fall
upon one party, and those of another part to fall upon the other
party. Thus, where a plaintiff claims several matters by his bill,
and succeeds in establishing his right to a portion only of what he
so claims, the Court will sometimes grant him a decree for that part
of his case in which he is successful, with costs to be paid by the
defendant ; and dismiss the remainder of his bill with costs, to be
paid by himself.^ So also, where there are several issues, and some
are found for the plaintiff and others for the defendant, the parties
may be allowed costs on issues found in their favor, and must pay
on those against them.*

In tithe suits, where there are several defences, the Court will ap-
portion the costs between the defendants ; but if there is a common
defence, they must be paid by the defendants generally.^

Sometimes, where no part of the bill is dismissed, but a decree is
made upon the whole of it, the Court will order the costs of the suit,
up to a certain period, to be borne by one party, and the remainder
by another. Thus, in suits for specific performance, where a vendor
does not deliver a complete abstract or make out his title until after
the bill is filed, he will be liable to pay the costs of the suit, up to

1 Brigham v. ,S^mt(A, 2 Cham. Rep. 462.

2 Winthrop v. Murray, 14 Jur. 302, 304. The report of S. C, in 8 Hare, 214, incorrectly states that

the bill was dismissed with costs.
8 Preece v. Scale, 3 Jur. N. S. 711, V. C. W.; Clinan v. Cooke, 1 Sch. & Lef. 22, 48. For form of

order, see Seton, 1133 ; and see Seton, 88, 89, 94.
4 Prevott v. Btnett, 2 Pri. 272. , ,

6 Eidaile v. Peacock, Johns. 216.

■■■J
\

O

6

i

I

I

I

1504

PROCEEDINGS IN THE MASTER'S OFFICE.

k::,

the time when he showed a good title.^ And so, where the vendor
established his title after a contest, upon a different ground from
that in the abstract delivered, the Court decreed the costs of the in-
quiries as to the title, to be paid by the vendor i'^ but if new objec-
tions are taken, after the institution of the suit, the Court does not
necessarily make the vendor pay the costs of the suit, up to the time
of their removal.^

A purchaser whose vendor had died, and who had paid his pur-
chase money partly to the vendor in his lifetime, and the balance to
his administrator, brought an action to recover back the purchase
money, when a bill for an injunction was filed, a good title was sub-
sequently shewn ; the purchaser, the defendant in the injunction
suit, was ordered to pay the costs down to the hearing of the
cause.* ,, . „ >

In matters of account, also, the Court will frequently apportion
the costs between the plaintiff and defendant. Thus, where a plain-
tiff, took a decree for an account against an executor, who had in
his answer state- 1 an account, which was found to be correct, the
Court gave the co ;ts of the suit up to the decree to the plaintiff, and
the costs of the subsequent proceedings to the defendent : the reason
of the distinction, apparently, being, that the executor had, before
the bill was filed, been applied to for an account, but gave none, ^
and so- had rendered the suit necessary ; but it was at the plaintiffs
own risk that he proceeded with it, after the defendant had rendered
a correct account by his answer. And where one of several residu-
ary legatees carried on the suit against the wish of the others, after
correct accounts had been rendered, the Court ordered all the costs
subsequent to the hearing to be borne by his share.^

Where one of two partners denied the existence of a partnership,
and a bill was in consequence filed against him, and by the evidence

1 Sua. V. & p. 648 ; Towruend v. Champemoume, 3 Y. & C. Ex. 505, 527 ; Harford v. Furrier, 1

Madd. 532, 538 : Seton, 616 ; WUson v. Allen, IJ. & W. 611, 624 ; Wynn v. Morgan, 7 Ves. 202,
206 ; V. Collinge, 3 V. & B. 143, n.; Lewin v. Ov£gt, 1 Russ. 325,328 ; Wilkiruon v. Hart-
ley, 15 Beav. 183, 188 ; WUs&n v. Williamn, 3 Jur. N. S. 810, V. C. W. ; Orove v. Bastard, 1 De
G. M. & a. 69, 79 ; Offen v. Harman, 6 Jur. N. S. 487 : 8 W. It. 129, L.JJ.

2 Fielder v. Higginson, 3 V. & B. 142 ; see, however, Carrndua v. Sharp, 20 Beav. 56.

3 Scoones v. Morrell, 1 Beav. 251. 2.')8; Sidehothain, v. Barrington, 6 Beav. 261 ; Freer v. He$ge, 4

De O. M. & G. 495, 505 ; Brulges v. Longman, 24 Beav. 27.

4 Van Wormer v. Harding, 2 Cham. Rep. 199 ; and see Gray v. Springer, 5 Grant, 242 ; Van Wag-

ner V. Terryherry, 5 Giant, 324 ; Osborne v. Osborne, 5 Grant, 619 ; Forbea v. Connolly, 6 Grant,
667; Schofield v. Tummonda, 6 Grant, 568. .. ^ , . -:

6 ./Irtofl. 4 Madd. 273; and see £ea7n«« on Costs, 7. , ' ' ^

0 Thompion v. Clive, 11 Beav. 476, 480.

P

COSTS FROM ONE PARTY TO ANOTHER.

1505

lesBe, 4

aken in the cause the partnership was established, the Court gave
the plaintiff the costs up to the hearing, and also the costs of a con-
sent reference as to the fact of partnership, and beyond that re-
fused the costs to either party.^ And where a trustee set up an im-
proper claim to the property, the subject of the trust, and a bill was
filed to compel him to deliver up possession and account the Court
charged him with the costs up to the hearing, reserving th^ jon-
sideration qf interest and subsequent costs.^ Where a legatee filed
a bill charging the executora with neglect and improper conduct in
the management of the estate, all of which were by the Master's
report "hown to be groundless, the executor's having managed the
estate to the best of their ability, and the case in reality being such
as should have been proceeded with by a summary application for an
administration order, the Court, on further directions, ordered the
next friend of the plaintiff to pay the executors their costs up to
the hearing, not the costs of the decree, or of taking the accounts,
or of subsequent proceedings, but directed the plaintiff to pay her
own costs thereof^ A legatee filed a bill against executors and
another person, between whom and the executoi-s it was charged,
improper dealings had taken place with the estate. The charges so
made were not sustained in evidence, and the plaintiff was there-
fore ordered to pay the costs of the defendants to the hearing, and
allowed only costs of and subsequent to decree. And cross charges
of improper conduct having been brought acfainst the plaintiff by
other legatees made parties to the suit, and not substantiated, the
osts incurred in resisting such charges were directed to be paid by
the parties making them.^ Where a conveyance is set aside as void
against creditors, a sale ordered, and costs up the hearing given
against the defendants ; these costs should be paid by the defendants
immediately, where it is manifest the property is not sufficient to
pay the creditors in full.^ Where an agent had neglected to ac-
count though repeatedly pressed to do so by his principal, he was
ordered to pay the costs of a suit brought for an account up to the
hearing, though the Court was satisfied that his neglect did not
proceed from any dishonesty on his part, or from any intention to

1 O'Aonc V. O'Lone, 2 Gram, 125. ' ,'

2 Fuker V. IFtteon, 2 Grant J60. , J

3 Ifoorfie V. LesiiV, 12 Grant, 537.

4 Jf»««r V. JfcA auffWon. 11 Orant, 308. ,, ,.
6GxUY.Tj/rrell,nQhat,i-]t.

C ^

%! 0

%

1506

PROCBEDINQS IN THE MASTER'S OFFICE.

'kq

withhold information from his principal^ The next friend of infants
filed a bill against the mother of the infants — their guardian ap-
pointed by the Surrogate Court, and her husband alleging certain
acts of misconduct which were not established in evidence ; and the
accounts taken under the decree resulted in showing a balance of
about $22 in the hands of the defendants. The Court being of
opinion that i-he suit had been instituted recklessly, and without
proper enquiry, ordered the next friend of the plaintiffs to pay the
costs of the defendants as between party and party .^ An executor
who obtains an order for the administration of his testator's estate,
is not always entitled to the costs. An executor took out an ad-
ministration order for the purpose of establishing a claim which he
made against the estate, and of having it paid by sale of the realty ;
but he failed to prove his claim, and, on the contra- y, a small bal-
ance was found against him. It appeared, also, that he had not
kept proper books of account as executor ; Held, that he should pay
the costs of the suit.^

In like manner, where a bill is totally disi-.issed, the Court will
sometimes apportion the costs to be paid by the plaintiff. Thus, in
Bruce v. Bainbridge* where a bill was filed by a seller, for
specific performance of the contract for sale, and the Master's report
was in favour of the title, a case was sent to the Court of Common
Pleas ; and the certificate being against the title, the bill was dis-
missed with costs, only from the date of the Master's report.

• Where defendants had set up in their answer several grounds of
defence on which much evidence was gone into, and the Court with-
out going into those defences, dismissed the plaintiffs' bill on a
ground not argued at the bar, and which might have been taken by
demurrer, it was held (Esten, V.C. dissentiente) that the defendants
were notwithstanding entitled to the whole costs of their defence.^

Where costs are payable and receivable by the same party, the
Court will, on motion, direct them to be set off one against the

1 Douglass v. Woodtide, 11 Grant, 376.

2 Hutchinson v. Sargent, 17 Grant, 8.

3 Sullivan v. Sullivan, 10 Grant, 94.

4 Sug. V. & P. 648.

6 Simpson y. Grant, 6 Grant, 267.

•" ¥.

COSTS FROM ONE PARTY TO ANOTHER.

1507

ice.

other ;^ and where, in a cause, the costs are apportioned betw^ei.
the plaintiffs and the defendants, the Court will generally so
arrange them, that they may be set off one against the other, an<l
that the balance only shall bo paid by the party from whom,
upon setting off such costs, it shall appear to be due.'^ The Court
will, also, where there are sums of money to be paid, as well as
costs, arrange the demands of each, so as to do justice toall.^ Thus,
in Fell v. LiiHvidge,^ where the cosi^ of the suit were thrown upon
a' trustee, on the ground of fraud, LorJ Hardwicke allowed liim to
set oft* those costs against the premi uias and other charges he had
been at in obtaining a policy of insurance.

So, in a suit for the administration of assets, in which, according
to the common course of the Court, all the parties are entitled to
have their costs out of the fund, a party, who is a debtor to the
estate, is not allowed to receive payment of them, whilst his debt
remains unsatisfied ; but the costs due to him will be ordered to be
set off, jiro tanto, against the debt due from him.^ And where a
bill was dismissed with costs, so far as it sought to charge the
separate estate of a married woman, who h9,d not separately defend-
ed the suit, such costs were ordered to be set off against an amount
found due from her husband.®

It is not the practice of the Court to set off costs of one suit
againat the costs, or costs and duty, due to the party to pay them
from the person who is to receive them in another ;^ unless the two
suits are consolidated, so that one order can be made in both f and
defendants who have been dismissed, and to whom costs are- due
from the plaintiff, have no lien for them on a fund in Court belong-
ing to him.®

The practice at common law with respect to the set off of one
defendant's costs against those of another for the benefit of the

1 Cattell V. Simons, 6 Beav. 304, 308 ; Bryan v. Metropolitan Saloon Ommbtis Company, 4 Drew.

646. There is no set-oS where the parties to the proceeding are not the same : Jenner v. Morris,
11 W. R. 943, V. C. K.

2 See, for foms of orders, Seton, 88, 89 ; and ste i6. 96 ; Taylor v. Popham, 15 Yes. 72.

3 Taylor v. Popham, uhi sup. 4 Barnard, 319.

.") Manner v. Harris, 1 Russ. 165, 157 ; yieholson v. /Norton, 7 Beav. 67 ; Holworthy v AUen, 2 Bro.
C C. 17 : 1 Cox, 202 ; and see, as to settin^r off costs of bankrupt execu or, debtor to estate,
Samuel v. Jones, 2 Hare 248 ; Cotton v Clark, Hi Beav. 1 34 : 10 Jur. 879.

6 Wright v. Chard, 4 Drew. 702.

7 Wright v. Mudic, 1 S. & S. 280 ; Collett v. Pmnton, 15 Beav. 458. -

8 Budge v. Budge, 12 Beav. 38.'>

9 Miller v. Pridden, 3 Jur. N. S. 78, V. C. K.

71 n

i

O 'A

^

'^

s

1508

PROCEEDINGS IN THE MASTEH's OFFICE.

plaintiff does not prevail in this Court ; nor can a plaintiff set off
costs payable by one defendant against that defendant's share of the
joint coats of the defence in the same suit, all defendants being
represented by the same solicitor.^ Where the plaintiff's bill sought
to enforce two judgments, one of which the Court held him not
entitled to enforce, no costs were given to either party up to the
hearing ; the rule seems to be that where costs are to be set ofl'
against other costs, the Court will not give costs to either party /^
On the dismissal of a bill costs were taxed to the defendants and
execution issued against the plaintifl' which was returned nulla
bona. Two of the defendants, as administrators, held moneys, part
of which would on distribution belong to the })laintiff, and which
they now applied for leave to set off against the taxed costs, — but,
under the circumstances, the motion was refused.'' A decree had
been made in a cause giving the plaintiffs relief, and ordering the
defendants to pay the costs which, however, were not paid. The
plaintiffs appealed from a portion of the decree with which they
were dissatisfied, which appeal, upon argument, was dismissed with
costs to be paid to one (A the respondents ; thereupon the plaintiffs
applied to set off the amount so ordered to be paid against the
costs directed to be paid by the defendants in the Court below to
the plaintiffs, which was ordered accordingly.*

Where a party is entitled to his costs, but it has not been decided
who ought ultimately to bear them, payment is often directed to
be made out of a fund in Court, or by one of the parties to the
proceedings, " without prejudice to the question how the same are
ultimately to be borne."'' The absence, however, of these words, or
words of a like meaning, from an order directing payment of costs
out of a fund in Court, does not necessarily imply that the Court
has decided that the fund out of which the costs are paid is that
which must ultimately bear them ; and costs paid out of a fund,
under an order from which those words are omitted, may be
directed to be recouped out of another fund which is primarily
liable for that purpose," If the party ordered to pay the costs
without prejudice, in the manner before described, neglects, at the

it

■ I <^ '.

1 Commercial Bank v. Elwood, 1 Cham. Rep. 219.

2 Cameron v. Bradbury, 9 Grant, 67.

3 Black V. Black, 11 Grant, 270

4 B. U. C. V. Thontas, 10 Grant, 358.

6 Sheppardy. Sheppard, 33 Beav. 129, 130.

6 Seton, 87, 1

COSTS FROM ONE PARTY TO ANOTHB».

1509

ow to

ecided
cted to
to the
me are
)rds, or
)f costs
Court
is that
fund,
ay be
marily
costs
at the

proper time, to apply with respect to such costs, he will not be
allowed to reopen the (jueation afterwards.^

Whore a party is entitled to costs, he should take care and apply
for them at the hearing, or at any rate before the decree has been
passed : as, after a deci'eo has been passed, the Court will not give
the costs of the suit to a party, aitliough he was a mere trustee, and
as such would have been entitled to them, as a matter of course,
if asked for at the hearing.'

When costs are ordered to be taxed simply, it moans as between
party and party. If the costs are to be taxed as been solicitor and
client, or if any costs, charges, and expenses, not strictly costs of
suit, are to bo allowed on the taxation, or any variation from a
taxation as between party and party, is to be allowed, it should be
expressed in the decree.^

Where costs ai'o payable out of a fund in Court, they are ordered
to be paid to the solicitor of the party ; but in other cases, they are
always ordered to be paid to the parties themselves.*

Where it is intended that the costs of persons appearing at the
hearing who are not parties to the record should be paid, their
names must be specifically mentioned in the order ; for a direction
to pay the costs of all parties, only includes the costs of the persons
parties to the record.

It may here be noticed that order 318 provides that " Where an
order directs the plaintift's costs to be taxed, and the Master finds
that the suit is one within the jurisdiction of the County Court,
he is not to tax any costs under the said direction, unless the order
contains a declaration that in the opinion of the Court, the cause is
a fit and proper cause to be brought in this Court instead of the
County Court."

Before the order it was held that where the Master was directed
by a decree to tax the costs of the suit, he had no iurisdiction to
decline taxing them if he found that the suit might have been

1 Whalley v. liamadge. 8 L T. N. 8. 499, V. C. K.

2 Colinan v. Sarrell, 2 Cox, 200 ; see also X orris v. If orris, 1 Cox, 183; Kendall v. Jfari(«r«, 2 De G,

F. & J 200 ; but see Viiiey v. Chaplin, 3 De O. & J. 282,

3 Seton, 92. 4 ibid. For form of order, dee Seton, 90,

^'M

I
J.

P

y

1510

PROCEEDINGS IN THE MASTER'S OFFICE.

hi

c:.'r

ST-

brought in the County Court.^ When a plaintiff* files a bill in this
Court to foreclose a mortgage for a sum within the jurisdiction of
the County Court, no costs will be allowed him, the fact that the
defendant is resident in a county other than where the land is
situate will not vary this rule.'' Where a bill is filed to foreclose in
respect of a demand not exceeding £50, the plaintiflTwill be entitled
to his full costs if it appears that there is any encumbrance beyond
that sum.^ Where the plaintiff's claim on the premises together
with the amount of a subsequent mortgage exceeded $200, it was
held to be beyond the jurisdiction of the County Court. Semble. The
necessity for an order for substitutional service, would appear to
be sufficient reason for filing a bill in this Court, which might other-
wise have been filed in the County Court.* The act giving to
County Courts equitable jurisdiction in relation to mortgages when
the sum does not exceed $200 does not apply when the defendant
is resident out of the jurisdiction ;^ nor where all the defendants do
not reside in the County,^

Costs out of the Fund.

In the last section some of the principles have been pointed out
by which the Court is governed in awarding the cost of a suit, in
cases in which, the subject of litigation not being a fund or estate
under the administration of the Court, the costs must necessarily be
paid by one party to another. It is now proposed to consider those
cases in which an estate, whether real or personal, being the subject
of litigation, the court will order the costs of the suit, or those of
some of the parties to it, to be defrayed out of the fund or estate.

As a general rule, wherever an estate or fund is administered by
the Court, the costs of all necessary and proper parties to the pro-
ceedings are a first charge ; and must be defrayed thereout, before
the claims of the persons beneficially entitled thereto are satisfied.^
But the costs only of those proceedings which were, in their origin,
properly directed for the benefit of the estate, will be directed to
be thus paid ; and the costs of any unnecessary and useless proceed-

1 MeLeod v. Millar, 12 Oriiit, 194. 2 Connell v. Curran, 1 Cham. Rep. 11.

8 Ilyman v Roots, 11 Grant, 202. 4 Seath v. Mcllroy, 2 Cham. Rep. 93.

6 Laicraion v. Fitzgerald, 9 Orant. 371. 6 MeLeod v. Millar, 12 Grant, 194.

7 Hare v. Rose, 2 Ves. S. 558 ; Ford v. Earl of Chenterfield. 21 Beav. 42<J ; BamtceU v. Iremonger,

1 Dr. It Sm. 256, ?58 ; and see Attomey-Oeneral v. Lawes, 8 Hare, 32. Aa to coats, generally, in
suits for adminiiitration of assets, see Morgan de Davey, 109, et seq.

:¥'■

a bill in this
uriscUction of
fact that the
} the land is
io foreclose in
ill be entitled
ranee beyond
lises together
[ $200, it was
Semble. The
uld appear to
I might other-
act giving to
Drtgages when
the defendant
defendants do

COSl-S OUT <JF THE FUND.

1511

1 pointed out
3t of a suit, in
und or estate
necessarily be
consider those
ng the subject
it, or those of
id or estate.

ministered by
es to the pro-
lereout, before
are satisfied.^
n their origin,
36 directed to
eless proceed-

lep. 11.
p. 93.
194.

mueU V. Iremnngcr,
costs, KeneraUy, in

ings must be paid by the person at whose instigation they were
taken.^

It may be mentioned here, that costs of a litigation in the Court
of Probrte will be postponed to the costs of administration in the
Court of Chancery.''

Trdstees,^ agents, and leceivers, accounting fairly, and paying their
money into Court are entitled to their costs out of the estate, as a
matter of course ;■* and the same rule extends to personal represen-
tatives;^ to whom, as they can only obtain complete exoneration
by having their accounts passed in the Court,* the Court will give
every opportunity of exonerating themselves, by passing their ac-
counts at the expense of the estate. The rule is not confined to
cases in which they are brought before the Court as defendants : it
being a general principle, that a. trustee has a right to the protec-
tion of the Court. In the execution of his trust; he is therefore, en-
titled to his costs, whether he comes before the Court as plaintiff or
defendant, unless the act required to be done leads to no responsi-
bility, or his motive is obviously vexatious.^

Where trustiees filed a bill for the purpose of having the trusts
of the deed appointing them carried into execution without suggest-
ing the existence of any difficulty in the way of their winding up
the affairs of the estate, the Court refused them their costs of the
suit.^ In an administration suit it appeared that the step-father of
the children of the deceased, and who had the care of such child, had
been sued for the child's board while at school, her mother being a
creditor of the estate, and neither she nor her husband having any
funds to pay for such board, while there were funds applicable there-

1 Bertlett v. >rood,9 W. R. 817, L. C. ; and Westover y. Chapman, 1 Coll. 181, 183.

2 Major V Major, 2 Drew. 281.

\i As to costs of trustees generally, see Lewin on Trusts, 663, et seq. ; Ilill on Trustees, 671, et teq. ;

and of trustees, executors, and administrators, Morgan A Davey , 288, et neq.
4 Attorney-General v. City of London, 1 Ves. J. 243, 246: 3 Bro. C. C. 171 ; Coiirand v. Hanmer, 9

Beav. 3.

6 Jiashley v. Masteri, 1 Ves. J. 205 ; Samuel v. J<me», 2 Hare, 246 ; 7 Jur. 845. The rule applies to

the executors of a defaulting trustee who account fairly : Ilaldenby v. Spofforth,9 Beav. 195 ;
Home V. Shepherd, 3 Jur. N. S. 806, V. C. S. ; but see Lyse v. Kingdon, 1 Coll. 184, 189 : 8 Jur.
418
iS See Knatchbull v. Feamhead 3 M. & C. 122 ; Hay v. Bowen, 5 Beav. 610, 616 : 6 Jur. 1119.

7 Curttis V. Condler, 6 Madd. 123; Pooh- v. Patis, 1 Beav. 600, 604; Hol/ord v. Phipps, 3 Beav. '♦34,

440 : 4 Beav. 475 ; Whitmamh v. RobertBon, 1 Y. & C. C. C. 715, 717 : 6 Jur. 921, 923 ; Noble v.
Mvyiiiott, 14 Beav. 171. A trustee is not entitled to his costs on the mere ground that he acted
on the opinion of counsel ; see Devey v. Thornton, 9 Hare, 232 ; King v. King, 1 De 0. & J. 663,
666, 671, 674 : 4 Jur. N. S. 721 ; Be Knight's Trttvts, 27 Beav. 45. 49 : 6 Jur. N. 8. 326 ; see, however,
as to costs of a bankrupt executor or trustee, Samite/ v. Jones, 2 Ilare, 246 : 7 Jur. 845 ; Cotton v.
Clark, 16 Beav. 134 : 16 Jur. 879 ; Turner v. Mulhneux, 9 W. 11. 25?, V. C. W.

8 Cumwings v. Maefarlanc, 2 Grant, 157.

.%

■ . y

•^

1512

PROCEEDINGS IN THE MASTER'S OFFICE.

to ; it was held that the step-father should be allowed the costs of
such suit.^ In an administration suit the widow of the testator
had made a claim for dow^r which had been allowed ; and upon an
appeal from that decision the Court of Appeal reversed the judgment
of the Court below, in so far as it ha^ allowed the claim for dower,
but gave no directions as to the payment of the costs of the appeal.
The appellants having paid their own costs of the appeal, this Court
upheld the finding of the Master in allowing them such costs out of
the estate.^ Under an administration order obtained by a creditor
the executors admitted a certain sum money in hand, part of which
they objected to pay into Court, on the ground that it had been paid by
them to their solicitor for watching and protecting the interests of
the estate, upon claims of creditors brought into the Master's office.
It was held that they were entitled to do so, as it is the duty of
executors to protect and look after the interests of the estate upon
those enquiries, and this they do, not strictly as accounting parties,
but in virtue of their representative character.^ The report in an
administration suit found £1,403 chargeable against an executor.
Of this sum £1,247 was for the price of land claimed and received
hy the executor, the testator's son as heir, and his claim to this had
long been acquiesced in by the other parties interested till held
otherwise in this suit, when this purchase money was declared to
pass, under the testator's w^ill, to the claimant and others as legatees.
A sum of £133, the value of the testator's chattel property, left by
this executor in the hands of the testator's widow, and finally lost
to the estate, made up the remainder of the sum charged to this
executor, except a balance of about £34. Under the circumstances
the executor was allowed his costs, as of an administration, out of
the estate, and was not charged with interest on the balance in his
hands, which he was requii'ed to pay into Court within a month
after deducting therefrom his share of the estate as legatee. *
Executors are usually entitled to their costs as between solicitor and
client out of the estate — incurred any other costs, charges,
and expenses — and if they have in addition to the costs of the suit
in the administration of the estate, on this fact being stated to the
Court, but not otherwise, an inquiry will be directed, and the
Master will be authorized to include them in his account. Where

1 Menziei v. Ridley, 2 Grant, 644.

3 Re Babeoek's JUatate, 8 Grant, 409.

4 BUtin T. Terryberry, 12 Grant, 221.

2 Ibid.

COSTS OUT OF THE FUND.

1513

an executrix a])plied against the Master' report, and the appeal was
allowed without costs, it was held that she could not on further
directions claim the costs of the appeal out of the estate.'

A trustee, fairly instituting a suit for the direction of the Court
with regard to the trust, will not only be entitled to his own costs
but any yjerson made a party to the suit, for his protection, will also
be ordered iiis costs fjom the fund. Thus, where a bill was filed by
trustees, foj- the direction of the' Court, as to the application of a.
trust fund, in the course of which a dispute arose between the two
defendants, whether one of them was illegitimate, and it was found
that he was legitimate, the other was allowed his costs out of the
trust fund.2 The Court considers a trustee entitled to its pr.->tection
and direction in the execution of his trusts, and will not only never
call upon him to pay the costs, unless he refuses to act merely from
caprice or obstinacy,^ but will give liim his costs out of the trust
property, although it appears, in tbp> result, that he might safely
acted without suit.^ In Low v. Carter ^^ Lord Langdale, M. R.,
said: "I cannot conceive that anything could be more hard, than that
executors, who are called on to administer estates, where there are
doul^tful questions arising on the will, and who can be exonerated
only by having their accounts passed in a Court of Equity, should
be deterred from coming to this Court, by being visited with the
costs of the proceedings."

Where an executor and trustee named in a will had acted as
such to the advantage of the estate, without having proved the
Avill, he was allowed his costs, as between party and party, of an
administration suit to which he was a pai-ty defendant, excepting
some costs which he had needlessly incurred,® A testator devised his
real estate to his widow, and in the event of her re-marriage to chil-
dren. The widow afterwards filed a bill against the executors, charg-
ing mal-administration, which was disproved, and on the contrary it
was shewn that they had benefited the estate by their management of
it: and the Master having found that the personal assets were

1 Storii V. hunlop, 13 Grant, 376. • 2 Hicks v. Wrench, 6 Madd. 93.

3 Re n'oodC-irn'!! Tnmtn, 1 De G. & J. 333: 3 Jur. N. S. 799 ; Re Cater, 25 Beav. 361 ; Re Knight's

Trust*, 27 Beav. 45 ; Re Foligno, 32 Beav. 131.

4 Henley v Philips, 2 Atk. 48 ; see aloo Taylor v. OlanviUe, 3 Madd. 170.

5 Low V. Carter, 1 Beav. 426, 430. ,

6 SvnUy v. MoCrae, 3 Cham. Rep. 231.

!■

wr^

1514

PROCEEDINGS IN THE MASTER'S OFFICE.

insufficient to discharge the remaining liabilities, the Court directed
the executors to receive the costs out of the estate ; that a competent
portion of the real estate should be sold, and that the testator's
children should be made parties to the suit in the Master's office for
the purpose of retaking the accounts, if desired by the guardian —
they not being bound by the accounts already taken — and under the
circumstances refused the widow her costs.^ Where one of the
legatees was absent from jurisdiction, and the executors had been
unable to discover him ; this was held, a sufficient ground for the
executors coming to the Court to obtain an administration of the
estate.^

Where, however, the act required to be done by a trustee, leads
to no responsibility, or his motive is obviously vexatious' he will
not be allowed his costs. Thus, where trustees under a will refused
to pay a legacy to the assignees of a bankrupt, merely because the
bankrupt himself had set up a claim to it. Sir John Leach, M.R.,
refused them their costs of the suit, because the case was too clear
to admit of a doubt ; but as they might have acted from mere
ignorance, and not from any improper motive, he would not make
them pay the costs of the plaintiff, although he deprived them of
their own costs.* So, where a person having in his hands a sum
of money belonging to an infant, instituted a suit, to have that sum
secured for the benefit of the infant, though there was a trustee of
a settlement, to whom it ought to have been paid, and who was
willing to receive it. Lord Gifford, M.R., refused to allow him his
costs out of the fund.^

An executor or administrator has no right to file a bill merely to
obtain an indemnity, by passing his accounts under the decree of
the Court. There must be some real question to submit to the
Court, or some dispute requiring interposition, when he will be en-
titled to his costs ; otherwise he will not receive them. And if it
nhall appear that his conduct has been mala fides or unreasonable,
he will be ordered to pay the costs of the defendant.^ But an exe-

1 NorriH v. BeU, 9 Grant, 23. Re Wdde 18 Grant, 486.

3 CurteU v. Candler, fl Madd. 123.

4 Knight v. Martin, 1 R. ^ M. 70 ; and see Angler v. Stamxani, 3 M. & K. 566, 672 ; Campbell v

Home, 1 Y. i C. C. C. 664, 670 : 7 Jur. 365 ; Re Primrose, 23 Boav. 500 : 3 Jur. N. 8. 891).
6 EIU4I V. Ellit, 1 Rusii. 3)18. In ^neral, where a trustee, through his netfleut ur obstUiacy, occa-

liiona the suit, he will be ordered to pay the costs of it.
6 White r. Cummins, 3 Grant, 602.

COSTS OUT OF THK FUND.

1515

cutor or trustee will sometimes be entitled to his costs in a syiit
for administration notwithstanding he may have committed a
breach of trust, if no loss is sustained by the estate by reason of
such breach.^ A trustee having refused to allow his name to be
used as plaintiff, was refused his costs of defence, although no blame
attached to him in other respects.^ In case a creditor brings an ad-
ministrative suit after being informed that there are no assets
applicable to the payment of his claim, if the information appear
by the result to have been substantially correct, he may have to
pay the costs of the suit.^

ly to

ee of

the

en-

if it

able,

exe-

fbell V
occa-

Although trustees, and other persons standing in that character, are
as we have seen, generally held intitled to their costs out of the
estate, yet they will not be permitted unnecessarily to burden the
fund, by costs which they might have avoided ; they must, there-
fore, as a general rule, institute or defend a suit jointly ; and if they
sever, they will be allowed only one set of costs : * except in
some cases where there is a special reason justifying their sever-
ance ;^ but where the severance is occasioned by the default or mis-
conduct of one of two trustees, and only one set of costs is
allowed, it is usually ordered to be paid to the innocent trustee.^
Where the whole of the costs are not given to one trustee, the
apportionment is in general left to the Taxing Master^ Upon the
same principle, a trustee will, where he might have paid the trust
fund into Court, under the Trustee Relief Acts, be allowed only
the costs to which he would have been entitled, if that course had
been adopted.^ He may, however, institute a suit, where the cir-
cumstances of the case are such that he is entitled to complete dis-
charge from the trusteeship."

1 Weard ▼. Gable, 8 Grant, 468.

2 Ellis V. Ellis, 7 Grant, 102.

3 City Bank v. Scatcherd, 18 Grant, 185.

4 Farr v. Sheriffe, 4 Hare, 528 : 10 Jur. 630 ; Hodgson v Cash, 1 .Tur. N. S. 864 ; and see Woods v.

Woods, 5 Hare, 229, 231 ; AttorneyGeneraly. Cuming 2 Y. & C. C. C. 139, 156.

5 Reade v. Sparkes, 1 Moll. 8 ; Nicholson v. Falhner, ib. 565 ; Qaxmt v. Taylor, 2 Beav. 346 : 2 Here,

413, n.; Aldbridge v. Westbrook, 4 BeaA 212 ; Wiles v. Cooper, 9 Beav. 298 ; Kampf v. Jones, C.
P. Coop. 13 ; Cummins v. Bromfield, 3 Jur. N. S. 657, V. C. W.; Shav) v. Johnson, 9 W. R. 029,
V. C. K.; and see, on this subject, Lewin on Trusts, 660 ; Hill on Trustees, 573; Morgan Je
Davey, 88.

6 Webb V. Webb, 16 Sim. 55 ; Hughes v. Key, 20 Beav 396 ; Prince v. Mine (No. i), 27 Beav. 345 ;

and see Birks v. Micklethwait, 33 Beav. 409 : 10 Jur. N. S. 303, where two sets o( costs had beeu
allowed.

7 Course v. Humphrey, 26 Beav. 402 : 5 Jur. N. S. 616 ; Attorney-Oeneral v. WyvUle, 28 Beav. 464.

8 Wells v. ■ ilbon, 31 Beav. 48 : 8 Jur. N. S. 249.

9 Barke. ^. Peilt, 2 Dr. & Sm. 840 : 11 Jur. N. S. 436. - •

't

%

<-' i

1516

PROCEEDINGS IN THE S^ASTER's OFFICE.

A trustee who severed in his defence because his co-trustee had
refused to act in conjunction with him in the management of the
estate, was, under the circumstances, refused his costs.^ ,

IK-'!)'
I-

The trustees ought not to place themselves in such a position
that their interests conflict with their duty :* therefore, where a
solicitor is a trustee or executor, he. will only be allowed his costs
out of pocket :^ and will not, in the absence of any express pro-
vision in the instrument creating the trust, be entitled to charge for
professional business transacted on behalf of the trust ;* and even
such a clause will not entitle him to charge for business which falls
to the duty of an executor or trustee to transact,^

The partner of a solicitor, who is a trustee, is also only entitled
to his costs out of pocket, for business transacted by him on behalf
of the trust :® unless he has acted for his own benefit alone.'

so

rrs;'-

It is no part of the business or employment of a trustee to assist
other parties in suit relative to the trust property : if, therefore,
the trustee acts as solicitor for such other parties, such business or
employment is not any business or employment of the trustee,
and the rule that a solicitor who is a trustee is to be allowed only
his costs out of pocket, does not apply ; and where he acts both as
solicitor for himself and for other parties, his costs will be disallowed
to the extent only to which they have been increased by his being
a party.^ The exception, however, only applies to business done by
the solicitor trustee in prosecuting or defending proceedings in
Court.»

1 OibBon V. Annit, 11 Grant, 481.

2 Per Lord Cranworth, in Broughtnn v. Broughton, 5 De G. M. & G. 160, 164 : 1 Jiir. N. S. 066; S. C.

2 Sm. & O. 422 ; see also Cronnkill v. Boioer, 32 Beav. 86: 9 Jur. N. S. 267.

3 Robiruon v. Pett, 3 P. Wms. 249 ; Moore v. Proud, 3 M. & C. 45, 61 ; Mew v. Jones, 1 McN. & G.

668, n. (d) ; York v Brown, 1 Coll. 260 : 8 Jur. 567 ; Broughton v Brovghton, ubi sup. ; Sclater v.

Cottam, 3 Jur N. S. 630, V.C.K. ; Pollard v. Doyle, 1 Dr. & Sra. 319 ; Gomleii v. Wood, 3 Jo. 6:

Lat. 678, 688 ; Lincoln v. Windsor, 9 Hare, 158 ; Pince v Beattie, 9 Jur. N. S. 1119 : 11 W. R.

9-"), V. C. K.
'• ''roighton V. Broughton, uhi »u». ; contra, Moore v. Froiod, ubi sup. ; Re Sherwood, 3 Beav. 338,

oil : Leviin on Trusts, 216 ; Hill on Trustees, 599 ; Seton, 770 ; Morgan <fc Davey, S79, et seq ;

^',i al«o Price v. McBeth, 10 Jur. N. S. 679: 12 W. R. 818, V. C. S., as to costs of a solicitor
. rtpjgee.
3 fj: . i)in V. Darby, 28 Beav 825 : 6 Jur. N. S. 906.

6 ' t! : w V. Carey, 2 Beav. 123 ; Chrintophersv. White, 10 Beav. 523 : Lyon v. Baker, 5 De G. * 8

622. As to costs of the town agent of the trur^tee, see Burge v. Brutton, 2 Hare, 373, 879 : 7 Jur.
988

7 Clack v. Carlon, 7 Jur. N. S. 441. : 9 W. R. 568, V. C. W.

8 Cradock v. Piper, 1 MoN. & O. 664, 679 : Fraser v. PaUncr, 4 Y. & C. Ex. 516 ; Brouffhton f.

Broughton, Pince v. Beattie, Lincoln r. Windsor, and Harbin v. Darby, ubi tup.

9 Lincoln v. Windsor, and Broughton v. Brotighton, ubi sup.

If ;!>;

COSTS OUT 0¥ THE FUND.

1517

in

N. & G.

'.later v.

, 3 Jo. 41

W. K.

av. 338,
et »eq ;
solicitor

O. & 8
7 Jur.

ahton r.

A similar rule applies to the case of an auctioneer, who, if a
trustee, will not be allowed his commission for selling part of the
trust estate.^

The rule, liowever, is not inflexible ; and under very special cir-
cumstances, the trustee may be allowed compen.sation for his time
and trouble, in addition to his costs out of pocket.^

It has been said that trustees and personal representatives
brought into Court, Avill not be deprived of their costs, although
they make a claim for their own benefit and fail, provided they do
so "by way of submission";^ but where a trustee has a private
interest of his own, separate and independent from the trust, and
obliges the cestui qui trust to come into this Court, merely to have
the point relating to his own private interest determined at the
expense of the trust ; this is such vexatious behaviour, on his part,
that he will be decreed to pay the whole costs of the suit.^ Upon
this ground, where, on a bill filed for a residue, the defendant, the
executor, by his answer stated declarations of the testatrix that her
legatees should have no more than their express legacies, and hoped
to prove that the surplus was intended for himself as executor, he
was made to pay the costs for thus insisting upon the surplus.*

As the Court will not allow trustees to take advantage of the
rule of the Court in their favor, to obtain a determination upon
their own rights, so it will not tolerate their attempting to defeat
the claims of their cestui qui trust, by setting up an improper
defence. Therefore, where the trustees of an estate, bequeathed to
them in trust for a charity, insisted that the plaintiffs had, under
a clause in the will of the founder, (by which it was declared that,
if the heirs at law should dispute the will, they should forfeit
certain annuities thereby bequeathed to them,) forfeited their
annuities by filing the bill, which prayed that the trust for the
charity might be declared a resulting trust, or, in the alternative
that they might have the arrears of their annuity, Lord Talbot

1 Kirkman v. Booth, 11 Bear. 273 ; Matthison v. Clarke, 3 Drew. 3. An auctioneer trustee may,

howflver, be allowed commission under the terms of the deed creating the trust : Douglass v.
Archbult, 2 De O. *j J. 148 : 4 Jur. N. S. 31.5.

2 Bainbridge v. Blair, 8 Beav. 688, 697: 9 Jur. 765 ; and see Marshall v. Holloway, 2 Swanst; 432,

463 ; Seton, 770 ; Lewin on Trusts, 216. Our Statute alters this, as already explained ante.
:) Rashley v. Masters, 1 Ves. J. 205.

4 HenUy v. PMUm. 2 A.tk. 48.

5 Bayley v. PowetF, Prec. in Ch. 92 ; S. C. mm Bayley v. Powell, 2 Vem. 361 ; Bruin t. Knott, 12

Jur. 616, V. C. E.

I'<

I

» !

1
I

1618

PROCKEDINGS IN THP: MASTER'S OFFICE.

'\n 1^-., ...

Ok;*!

ordered them to pay the costs out of their own pockets, and not
out of the trust estate.^ And so, if a trustee states a trust to be
different from what it actually is, the Court will deprive him of his
costs, although he does it not to benefit himself, but another. Thus
where the defendant, who was the trustee of a marriage settlement
upon the question between the husband and wife whether the wife,
who was separated from her husband and lived in a state of adult
tery, was entitled, under the settlement, to the dividends of a sum
of stock to her separate use, insisted, contrary to the fact, that it
was the intention of the parties that a provision for the separate of
the wife should be introduced into the settlement. Lord Rosslyn
thoughi) there was ground to deprive the trustee of her costs.^

Trustees will, also, be deprived of their costs if they claim more
than they are entitled to : therefore, where the trustees of a charity
insisted by their answer, that there was i>800 due to them from the
charity, but it was found that £180 only was due to them, Lord
Cowper refused them their costs, though the balance was in their
favour.^

It may be noticed, however, that a disallowance of credit,
honestly claimed by an executor, though he is mistaken, is not
enough to disentitle him to costs ; therefore, where an executor's
account was surcharged by the amount of a credit taken for the
proportion of an annuity, payable by the testator, during his life,
to the executor, but which was not apportionable, the mistake was
not considered by Sir Anthony Hart, L. C, as a ground to deprive
the executor of his costs.*

If persons, standing in the situation of trustees, by their neglect
or misconduct occasion the suit, they will be deprived of tiieir
costs out of the estate f although the trust instrument contain the
usual clause authorizing the trustees to reimburse themselves
any expenses they may incur ;® but mere neglect of duty, as,
for instance, the omission to invest balances, if unaccompanied by

1 Lloyd V. Spillet, 3 P. Wms. 344, 346 ; and see S. C Lloyd v. Spilkt, 2 Atk. 148.

2 Ball V. Montgomery, 2 Ves. J. 191, 199.

3 Attomcy-Oeneral v Brewers' Company 1 P. Wins. 376 : Dawson v. Parrot, 3 Bro. C. C. 236,

4 Bennett v. Going, 1 Moll. 529.

6 O'Callaghan v. Cooper, 5 Ves. 117, 128 ; England v. Doienex, 6 Beav. 279 ; Howard v. Rhoden, 1
Keen, 581 ; Fyfe v. Arbuthnot 3 Jur N. S 651, L. C. ; Aylmer v. Winterbottom, 4 Jur. N. S.
19, V. C. W. ; and see Legg v. Mackrell, 2 De G. F. & J. 561 ; 1 Giff. 165 ; 6 Jur. N. S. 1164 ; sec
also Lewin on Trusts, 666 ; UUl on Trusts, 576, et teq. •

6 Bide V. Haywood. 2 Atk. 126 ; Hill on Trusts, 603.

COSTS OUT OF THE FUND.

1519

r, as,
3d by

l23B.

fraud, is not such misconduct as to disentitle them to their
general costs of the suit ; although it may subject them to the
costs of so much of the suit as was occasioned by neglect,^ Although,
in general, a trustee committing a breach of trust, which may ren-
der an application to the Court necessary, will be deprived of his
costs, yet, where the breach of trust consisted of the improper ap-
plication of a small part of the trust fund, which was promptly
offered to be restored, and the suit was for other purposes of the
trust, there being no imputation against the trustee, he was held
not to be disentitled to his costs.^

Where executors had improperly dealt with a portion of the funds
of an estate by allowing one of tlieir number to retain it in his
hands at a low rate of interest, the Court refused them their costs
prior to a decree ; and costs were given to the plaintiff' notwithstand-
ing fraud was charged against the executors, which was not estab-
lished under the circumstances of the case.-^ Where an executor had
retained money in his hands unemployed, for which on passing hia
accounts he was charged with interest and rests. It was held, not-
withstanding, that having reference to the condition of the estate,
and the facts of the case, he .should be allowed his commission
aud costs of the suit.* A trustee of lands for the payment of debts,
paid the debts without exercising the power of sale for that pur-
pose, and took a release from the ceduis que trust to himself, which
release was held void, and an account directed. Under the circum-
stances, neither fraud nor neglect to account having been established
against the trustee, Avho had accounted as such in the Master's
* office, and the property, or the produce thereof being forthcoming
for the benefit of riie estate, the Court directed the trustee to receive
his subsequent costs, as in ordinary cases, as between solicitor and
client.^

In the cases above referred to, the Court has contented itself with
marking its disapprobation of the conduct of the trustee or personal

1 Ueiyhington v. Grant, 1 Phil. 600, 604 ; Tehbi v. Carpenter, 1 Madd. 290, 307 ; Bennett v. Atkim.

lY. &C. Ex 247, 249 ; ii'o2ter v Andrews, 2 Jo. & Lat. 109 ; Cotton v. Clark 16 Beav. 134;
16 Jur. 879 ; Holgate v Howarth, 17 Beav. 259 ; Knott v. Cottce, 16 Boav. 77 : 16 Jur. 752 ; Bate v.
. Hooper, 5 De G. M. & O. 338 ; and see, contra, Parrot v Treby, Free, in Cli. 254 : Seers v. Hind,
1 Ves. J. 294 ; Jiooke v. Hart, 11 Ves. 58, 01; Mauley v. Ward, ib. 5S1; Ashburnharn v. Thoftnpson,
13 Ves 402. 404.

2 Fitzyerald v. Pringle, 2 Moll. 534 ; see also Uewett v. Foster, 7 Beav. 343 ; Royds v. Royds, 14

Beuv. 54.

3 Ashbaitghv. Ashbaugh, 10 Grant, 433. 4 Oould v. Burritt, 11 Grant, 523.
6 Hope V. Beard, 10 Grant, 212.

! ^C'<

6 f

jl

^ 4

1520

PROCEEDINGS IN THE MASTER'S OFFICE.

H.-*r.

c

<rr:..ii
- — y

representative, by witholding from him his costs, to which he would
otherwise have been entitled out of the fund. It frequently
happens, however, that the Court will go further, and will not only
deprive the trustee or representative of his costs, but will compel
him to pay the costs of the suit out of his own pocket ; and it may
be stated, as a general rule, that if any particular instance of mis-
conduct, or a general dereliction of duty in a trustee, or even his
mere caprice and obstinacy, is the immediate cause oi a suit being
instituted, the trustee, on the charge being substantiated against
him, must pay the costs of the proceedings his own improper behav-
iour has occasioned.^ Upon this principle, where an executor,
directed to lay out the testator's personality in the funds, unncices-
sarily kept large balances in his hands, and resisted the payment of
debts by false pretences of outstanding demands, he was charged
with the costs.- And where an executor retained a balance in his
hands longer than was necessary to answer contingencies, he was
ordered to pay interest and costs ; though it appeared that he had
always kept a sum ready at his bankers to defray the amount.*'' A
trustee who has occasioned the suit by refusing or neglecting to
furnish proper accounts when requested, will be ordered to pay the
costs of the suit ;* and where an executor obtained from a legatee a
release from a legacy, for which no consideration was given, he was
ordered to pay the costs of the suit instituted to set aside such
release.^

It is the duty of a trustee to use reasonable diligence to have the
accounts of the trusts ready, and to render them within a reasonable
time after they have been asked for, on behalf of the cestuis que
trustent ; and where a trustee wholly neglected this duty, though he
offered his books for inspection by the parties interested, he was
charged with the costs of the suit up to the hearing.^

1 Lewin on Tnsta, 6t& i Hill on Trustees, 579 et wq. ; A ttorney-General v. Ilobcrt, Rep t. Finch,

259 ; Haberdasher's Company v A ttonwy-Oeneral, 2 Bro. P. C. ed. Totnl. .370 ; Pin/old v. Bouch,
4 Hare, 271 ; Thorby v. Yeats, 1 Y. Hi C. C. C 438 : 6 Jur. 039 ; Lyne v. Kingdoii, 1 Coll. 184, 189 :
8 Jur. 418 ; Hampshire v Bradley, 2 Coll. 34, 41 ; A ttormy-Ge}uiral v (fibbs, 1 De G. & S. 156,
Ifll ; Eirmin v. Pulham, 2 De G & S, 99, 101 ; Marshall v. Sladden, 4 De «. & S. 46S;
Warter v Anderson, 11 Haro, 301 ; Attnrney-Generol v. Murdoch, 2 K. & J. 571 : Price v. Loa-
den, 21 Beav. 508 ; Springett v. Daxhwood, 2 Giff. 521 : 7 Jur. N. S. 93 ; Dobson v. Pattinson,
3 Jur. N. 8, 1202, V.C.S. ; Boyntnn v. Richardson, 31 Beav. 340; Wroe v. Seed, 4 Giff, 426 : Smith
r. Bolden, 33 Beav. 302.

2 Craekelt v. Bethune, IJ. & W. 686; see also Mosley v. Ward, 11 Ves. 581 ; Piety v. Stae; 4 Yes.

620,623.

3 Franklin v. Fnth, 8 Bro. C. C. 433 ; Tickner v. Smith, 3 Sm. & G. 42.

4 Boynton >. Richardson, 31 Beav. 340; Kemp v. Burn, 4 Gift. 348: 9 Jur. N. S. 37B;ReKing,

Gilbert v. Lee, 13 W. R. 1012, M. R.

5 Hartley v. Chalomr, 2 Yes. S. 83, 86. 6 Randall v. Burroxeet, 11 Grant, S64.

COSTS OUT OF THE FUND.

1621

Finch,
. Bouch,
184, 189 :
S. 166,
S. 408;
V. Loa-
.ttiiwon,
5: Smith

(, 4 Vea.

It has also been held that if executors make an unfair appraise-
ment, and otherwise misbehave themselves in their trust, thev will
be liable to costs.^ And whore trustees kept possession of an
estate from their ceMui qui trust, whom they considered a lunatic,
(but who, although eccentric when he was drunk, was not insane,)
upon a bill filed by the supposed lunatic they were ordered to pay
the costs of the suit ; although it did not appear that they had acted
from any corrupt motive, but were merely, as they considered, pro-
tecting the property for the benefit of those in remainder.^

So also, where the suit has been occasioned by a breach of trust,
the trustees will be compelled to pay the costs ; thus, where
trustees, with the privity of the wife, sold out stock which had been
settled to her separate use, and paid the proceeds to the husband,
taking his bond of indemnity, and the husband afterwards died
insolvent, whereupon the trustees replaced the stock : upon a bill
filed by the widow and children to have the fund secured, the
trustees were considered as having caused the suit by their breach
of trust, and were ordered to pay the widow the amount of the
dividends from the husband's death, with the costs of the suit.^

In like manner, where a trustee, mistaking his power, sold stock
without authority, and, with the produce, purchased land, without
having the power to do so, he was ordered to replace the stock and
to pay the costs.* And where, by mistake, the fund had been dis-
tributed among the wrong persons, the trustee was ordered to pay
the costs of a suit to compel him to re])lace it :^ although the distri-
bution had been made under the advice of counsel;* and where the
trustee of a legacy, which had been invested in stock, authorized
another person, who was supposed to be entitled to the management
of it, to sell it out and receive the proceeds, it was held that the
trustee was answerable for the stock, and he was ordered to pay
the costs : although the legatee, not knowing that the legacy had
ever been invested or sold out, had dealt with such other person as
the person accountable for the money.''

1 Sheppard v. Smith, 2 Bro. P. C. ed. Toml. 372.

2 Brmim v. How, Barnard, 364 ; and see Caffrey v. Darby, 6 Yes. 488, 497 ; Curtis v. Robinson, 8 Beav.

242.

3 Whistler v. Aeuman, 4 Yes. 129, 145. 4 Earl Pouilet r. Herbert, 1 Yes. J. 296.

5 Eaves v. Hiekson, 30 Beav. 136 : 7 Jur. N. S. 1297.

6 Boulton V. Beard, 3 De G. M. & O. 608, 611 ; and see Devey v. Ihomion, 9 Hare, 2.<)2 : Foster v.

Dawber, 6 W. R. 47 Y. C. K. ; Bullock v. Wheatley, 1 Coll. 130, 135. .

1 Adams V CJ\/ifon, 1 Buss. 297, 300.

i

%

1522

PROrKEDENOH IN THE MASTERS OFFICE.

It seoiiis that, in order to coriHtitiite Htich iiiiscoiKluct au will
induce the Court to visit trustees witli costs, it is not necessary tliat
there should have been mistoasauce on the part of the trustee :
simple nonft^asance, wliere it has been productive of mischief to the
trust estate, will be sutticient. Thus, where the trustees of a charity
although they were not guilty of any corruption, ha<l been extremely
negligent in their trust, Lord King held, that they ought to be pun-
ished with some of the costs.^ So, also, where au executor omitted
to bring an action to recover a bond del)t, he was ordered to jjay
the costs of taking the accounts.- And where two executors had
kept money of their testator in their hands longer than the exigen-
cies of the affairs required, and were conseq.ently ordered to pay
the amount with interest, and one became insolvent, the Court held
each of them to be liable for the whole costs.^

C~:a!'

cx;.ji

•mm.. .J

In many cases, also, if there is misconduct on the part of a trustee
or personal representative in the course of the cause, the Court will
compel him to pay the costs of the suit out of his own pocket.
Thus, a trustee will be fixed with costs if he persists in proceeding
with the suit after it has become unnecessary;* or if he wilfully
mistakes the accounts ;^ or if, being indebted to the trust estate, he
resists the account and claims a balance ;" or if, by chicanery, he
keeps the cestui qui trust from a true knowledge of the accounts, or
even if he has kept the accounts in a very confused manner.'^ An
executor, also, will be liable to costs, if he denies assets and the con-
trary is provided against him.'* Where, however, he has the execu-
tor of an executor, and the estates of the two testators had been so
blended as to create confusion, he was neb ordered to pay costs:
though it appeared he had assets sufliclent to pay the pbintiffs'
debt.^ And wherever the answer of an executor or other trustee is
falsified by proof, and he appears to have acted from fraudulent
motives, he will be made to pay the costs.^" So, if a corporation^
being trustees for a charity, suppress or conceal evidence relating to

1 East V. Ryal, 2 P. Wms. 284 ; see also Ilaherdmher'a Company v. Attorney-General, 2Bro. P. C.

ed. Toml. 370 ; Attorney-General v. llobert, Rep. t. Finch. 250.

2 Lowson V. Copeland, 2 Bro. C. C. 156.

3 Littlehalea v. Gatcoyne, 3 Uro. C. C". 7ii ; HVoe v. Seed, 4Gifl. 425.

4 Campbell v. Campbell, 2 M. & C. 25, 30.

5 Sheppard v. Stnitk, 2 Bro. P. t'. ed. Toml. 372 ; and see Flanagan v. Nolan. 1 Moll. 84.

6 Eylin v. Sanderson, 3 fliff. 434 ; 8 Jur. N. 8. 820.

7 Avery v. Osborne, Barnard, 340 ; Norbury v. Calbeck, 2 Moll 461.

8 Sandys v. Watson, 2 Atk. 80 ; Lodge v. I'ritchard, 4 Gi«f. 294 : 0 Jur. N. S. 982.

9 Sandys v. Wats&n, ubi sup.

10 Vatighan v. Thurston, CpUes. P. C. 175 , see alMo Mallabar v. Xallabar, Ca. t. Talb. 78.

OOSTH OUT OP THE FUND.

1523

the charity, they will be hoH liable to the coHts of the suit.' And
if a_trustee, by his aiiHwer, sots up objections to his performance of
his trust, which he does not substantiate, he will be made to pay
the coats.^

Although a personal repifsentative, or other trustee, who miscon-
ducts himself in his trust will be liable t > pay the costs of the suit
the rule will be qualified where, though his conduct has been iiregu-
lar, no loss has been incurred to the estate, and his motive has not
been corrupt.^

It has also been held, that a slight instance of misconduct, in one
particular point, will not fix a trustee with the costs : thus, where,
by an order, made by consent several years before, a trustee had
been ordered to pay £200 into (*ourt, but had not done it, and, as an
excuse for his disobedience, alleged that the plaintiffs did not serve
him with the order, or take any step to have it executed, and that
he understood they were dissatisfied with it, and intended to try to
have it varied, the Coui-t charged him with interest on the £200,
but was of opinion that it was not a case to deprive the defendant
of his costs.*

ro. P. C.

In Hall V. Hallet,^ Lord Thurlow said, that the rale, that execu-
tors are to be exempt from paying costs, holds even in cases where
great delays and difficulties have been occasioned by the executor :
for the Court will overlook these circumstances if it can. And
although an executor or other trustee, who grossly misconducts him-
self in the execution of his trust, will be made to pay the costs occa-
sioned by his misconduct, it does not, therefore, follow that he must
in all cases pay the costs of the whole suit. If the suit is proper for
other purpo.ses, and the executor or trustee is a necessary party, he
will not be compelled to pay all the costs : though, in the course of
the suit, it should appear that V.(^ has misconducted himself. Thus,
where a suit was necessary to determine what construction was to

1 Borough of Hereford v. Poor of Hertford, 2 Bro. P. C. ed. Toml. 377 ; Attormy-Qeneral v. Eaat

Retford, 2 M. & K. 35, 40

2 W'Mut V. tikeox, 4 M. & C. 197, 202 ; but sue Low v. Carter, 1 Beav. 426, 430.

:» Baker v. Carter, 1 Y. & C. Ex. JSO; Rtyyds v. Royda, 14 Beav. 64 ; see also White v. Jaekion, 16
Beav. 191 ; but see Springett v. Dashieood, 2 Oifl. 521 : 7 Jur. N. S. 93 ; Kem» v. Bum, 4 Glff.
348 : 9 Jur. N. S. 375. , .

4 Saiinnea v. Rickman. 2 Ves. J. 36 ; see also Fitzgerald v. Pringle, 2 Moll. 534. , , ; .

6 1 Co*. 134, 141 ; see also B8m»«« V. 4<*i?M, 1 Y. 4 C. Ex. 247. ....

72 . .

1524

PROCEEDINGS IN THE MASTER'S OFFICE.

*

. ,; *•

K.,:.

C-v

1 ■'

*i- '.

■t,A,

«r,^

r .

' F-

Uj

-,.

ra

~:-.u*

*•-

1

' S

J}

1 ex

31

QC

^

be given to a will, whether the residue was to be divided between
nine or between six claimants, and, in the course of the suit, it ap-
peared that the executors had improperly permitted rents to be in
arrear, a,nd retained balances in their hands, as to which inquiries
were directed, and they were charged with interest. Sir Thomas
Plumer, V.C, gave the executors the costs of the suit out of the fund,
except only the costs of the inquiries as to the arrears of rent and
balances : which, being solely occasioned by their breach of trust, he
directed to faU upon them.^ So, where trustees for sale purchased
the trust estate at an undervalue, though without fraud and by
auction, relief as to a resale was given against them with costs, but
as to other parts of the case, namely, as to accounts which must
have been taken, they were allowed their costs : as they would
have been entitled to them in the ordinary way.^

In such cases, the Court frequently, instead of giving any direc-
tion with regard to costs, will content itself with making no order
upon the subject, thereby leaving it to each party to pay his own
costs.^ Thus, where a trustee, instead of accumulating a fund, as
directed by the will, had improperly kept the balance in his hands,
yet, as the costs of the suit >iad in a great measure been occasioned
by inquiring what rule the Court ought to adopt with respect to
the computation of interest, it was thought hard, under the cir-
cumstances, to fix the executor with costs, even relatively to the
breach of trust, and, therefore, the Court gave no costs.*

If a suit has been occasioned by the mistake or some slight
neglect of the trustee, the Court will sometimes content itself with
not giving him costs ;^ and, in some cases, where the conduct of
truste s has not been wilful or perverse, the Court has permitted
them to have them, although there has been loss to the estate.
Thus, where trustees, who were directed to sell an estate as soon as
conveniently might be after their testator's death, refused, by the

1 TebbH V. Carpenter, 1 Madd. 290, 308 ; and see Heighingt(m v. OrarU, 1 Phil. 600, 604 ; Attorney-

General V. Gibbs, 1 De G. & f^. l.'ie, 161 ; I'ride v. Fooks, 2 Bcav. 430, 437 ; Hewett v. Foster, 7
Bcav. 348 ; see however, Knott v. Cottee, 16 Beav. 77 : 16 Jur. 7.'52.

2 Sanderson v. Walker, 13 Ve«. 601, 604 ; sue also Pocoek v. Reddimjton, 5 Ves. 794, 800.

3 Newton v. Bennett, 1 Bro. C C. 359, 362 : Xorton v. Steinkopf, 18 Jur. 720, V. C. W. ; Harper v.

Munday, 7 De G. M. & O. 869, 375 : 2 Jur. N. 8. 1197 , Aylmer v Winterbottom, 4 Jur. N. 8. 19,
V. C. W.

4 Raphael v. Boehm, 13 Ves. 590, 692.

5 O'Callaghan v. Coopet, 5 Ves. 117, 128 ; Ueighington v. Grant, and Harper v. Munday, ubi tup. ;

Be«r V. Tapp, 10 W. R 277, L. J. J.

COSTS OUT OF THE FUND.

1525

slight

r with
ict of
litted

)state.
)on as

|y the

Ittomey'
f otter, 7

\hi $up. ;

desire of one of the parties interested, £6,G00 for the estate and
afterwards sold it for £3,600, the Court, although it charged them
with the loss, gave them their costs, as their conduct had not been
wilful nor perverse.^

In general, where several defendants are involved in a breach of
trust, the Court, in decreeing relief in respect of it, orders them to
pay the costs of the suit jointly, without regard to their relative
degrees of culpability, in order to give the plaintiff security for the
payment f but where trustees had made payments to the wrong
persons, in consequence of forged certificates, the costs were pri-
marily thrown upon the persons who had profited by the forgery,
and ultimately upon the trustees.^

When it is said that personal representatives, and others bearing
the character of trustees, are entitled to their costs out of the
fund or estate which is the subject of the suit, the rule must be
understood as applying strictly between themselves and their
cestui qui trusts. In suits between them and those who are
strangers to the trust, the ordinary rules as to the costs prevail,
though, if a trustee or personal representative institutes or defends
a suit in respect of his trust estate, he may reimburse himself, out
of that estate, any sums he may have expended properly in such
suit. Thus, where a trustee for sale filed a bill for a specific per-
formance, which was dismissed, it was dismissed with costs ; the
defendant being considered as having nothing to do with the cha-
racter in which the plaintiff sued.*

Costs also are given against assignees personally, and not qua
assignees, they are to pay them, and then may be allowed to draw
them out of the estate ; but the opposite party is not to be exposed
to the hazard, whether the estate is capable of bearing the costs or
not ; if it is not, it is the misfortune of the assignees.^ So also, an
executor plaintiff cannot be distinguished, with respect to costs,
from the party w\)m he represents ;® and if he revives a suit in
which his testator was a party, he will incur his testator's liability

I Taylor v. Tabruui, 6 Sim. 281 ; and see Platuigan v. Solan, 1 Moll. 84 ; Traver* v. Tovmtend, ib

4M.
i Lawrence v. BowU, 2 Phil. 140 ; Byrne v. Sorcott, 13 Beav. 336. 346.

3 Eaven v. Uickmn, 80 Beav. 136 : 7 Jur. N. S. 1297 : and for the order, nee Seton, 634, No. 2.

4 Edwardi v. Harvey, O. Coop. 40. 6 Poole v. Pranks, 1 Moll 78.
6 WeitUy v. H Uliamton, 2 Mol2. 468.

I

' t

%

1526

PROCEEDINGS IN THE MASTER'S OFFICE.

to costs. Thus, where an executor, after a bill by his testator had
been dismissed with costs, revived the suit, allieging that he
intended to appeal, he was ordered to pay the costs of the whole
suit.^ • -'

Where a bill was filed for the purpose of raising legacies charged
on real estate, there being no personal estate, it was held that the
executor, taking out probate in such a case, could get no costs ;*
and the rule is the same in the case of the executor of an insolvent
mortgagor.'' The case is, however, said to be different with respect
to an administrator ad litem, who will be entitled to his costs out
of the fund ;* or, if that is deficient, from the plaintiff!

If an executor who has neither proved nor acted, although he
has not renounced, is made a party to a suit, for the purpose of
raising charges by the sale of real estate, the personal estate being
insufficient, the costs of such executor cannot be paid out of the
fund, but must be borne by the plaintiff: as he was not a necessary
party.*

%

In suits by a creditor against a personal representative for pay-
ment of his own debt only, and not for general administration, if
the creditor succeeds in establishing his demand, the Court directs
bis costs, as well as the amount of his debt, to be paid to him out
of the estate f but the Court makes no order with regar d to the pay-
ment of the costs of the personal representative : upon the principle
that he may reimburse himself those costs out of the personal
eBtate.*^ Where, however, the suit is instituted, either by creditors
or by legatees, for a general administration of assets, so that the
whole estate of the deceased must necessarily come under the direc-

1 Horloek v. Prieitly, 8 Sim. 621 ; Lyon v. McKenna 2 Moll. 400.

i y<uh r. DUUm, 1 Moll. 286 ; but see Makings v. Makings, X De O. F. ft J. 855, 3(9, L. C.

3 NiehoUon v. Falkiner, 1 Moll. 655.

4 /6iil. 5 Ihid.

6 Davy v. Sey». Moh. 204.

7 Humphryn v Moore, 2 Atk. 108. Courts of Law in givinp; Juclxmont in favour of a creditor, direct

the costs to be paid by the executor, de boni$ te»tatorxs ; and if there be none, de bonis propriit ;
Jefferies v. Harrison, 1 Atk. 46P. In Eqnity, however the rule is different ; for if the assets are
not sufficient to pay both debt and costn, the executor will not be decreed to pay costs : Uvedale v.
Uvedaie, 3 Atk. 119; TwisteUon v. Thelwel, Harores 165 : unless he has misconducted himself, by
havin{; satisfied simple contracts, in preference to debts upon specialty : Jefferies v. Harrison,
u6i sup. It may be sugg^ested her?, that, as an admission of assets by a representative is
considered to be an admission of assets ."ufficient to pay costs, as well as the principal demand :
Philanthropic Society v. Hohson, 2 M. & iC 357 : such admlssl..<n should not be made, unless the
p«rty is satufled that the assets will ccver dei^t and costs ;and see Roeh v. Callen, 0 Hare, 531, 634.

r had
it he
whole

larged
at the
osts ;2
lolvent
respect
sts out

agh he
30se of
B being
, of the
cessary

[or pay-

tion, if

directs

im out

jhe pay-

inciple

lersonal

editors

at the

direc-

|ltor, direct
fi proprii* ;
J assets are
iUvedalew.
Ihlnwelt, by
\ ffarruon,
kntative ts
|| demand:
Tunlew the

COSTS OUT OF THE FUND.

1527

tion of the Court, the practice is diflferent, and the costs of the
personal representatives are always provided for ; and even where
there is a deficiency of assets to pay the whole of the testator's
debts, the costs constitute the first charge upon the fund arising
from the personal estate.^ And this principle will be acted upon,
where the testator is a defaulting trustee, and his estate is not
Bufl&cient to satisfy the breach of trust ;^ but the assignees in bank-
ruptcy, pendente lite, of a defaulting administrator, will not be
allowed their costs. ^

The right of the personal representative to his costs, in such
cases, may be defeated by his collusion, or by some of those cir-
cumstances which have been already pointed out as disentitling a
trustee from his right to the costs, out of the fund ; but where
there are no circumstances of that nature, the costs of the per-
sonal representative constitute the primary charge ; and he is
entitled to immediate payment of them : even though he may be
indebted to the testator in a sum payable on a future day.*

Where a suit for the administration of an estate has been pro-
perly instituted, the costs of the plaintiff and all necessary parties
are consideiad as expenses in administering the estate ; and are
the first charge upon it,^ and if the estate is insufficient for the
payment of all the costs, the executor's costs are the first charge ;
then the plaintiff's ; and then those of the other parties.® Where
the plaintiff's claim fails, or the estate is exhausted by prior
demands, so that he does not obtain payment of his demand, he
is nevertheless entitled to his costs, if the Court has been enabled
to administer the estate through his exertions.^ Where the costs

1 Bennett v. Going, 1 Moll. 529 ; Young v. Everest, 1 R. & M. 426 ; Gaunt v. Taj/tor, 2 Hare, 413, 420 ;

Ottley V. Gittty, 8 Beav. 602, 605 ; Tanner v. Daneey, 9 Beav. 339, 342; see, however, Davy\. Seys,
Mo8. 204 ; Adair v. Shaw, 1 Sch. & Let. 280.

2 Haldenby v. Spofforth, 9 Beav. 195.

8 Carr v. Henderson, 11 Beav. 416 ; Morrison v. Morrison, 7 De O. M. k G. 214, 224, 226.

4 Stevens v. Pillen, 12 Jur. 282, V. C. W. ; but sec Leedham v. Ckauner, 4 K. & J. 458, where a

trustee's expenses, of an attempted premature sale, were held not a primary charge.

5 Loomes v. Stotherd, 1 S. * S. 458, 461 ; Lorkim v. Paxton, 2 M. fiVi. 320 ; Baker v Wardle, ib. 818 ;

Bennett v. Going, 1 Moll. 539 ; Lechtnere v. Brazier, 1 Russ. 72, 80 ; Tawter v. Daneey, 9 Beav.
339, 342. Where an executor is only entitled to priority for a portion of his costs, see Blenkinsop v.
Foster, 3 Y. & C. Ex. 207 ; Seton, 146.

6 Tipping v. Power, 1 Hare, 405, 411 ; Tani\^r v. Danceu, uhi sup. ; Sanderson v. Stoddart, 9 Jur.

N. 8. 1216, M. R. As to cases where plaintiff is entitled to costs as between solicitor and client;
see Wetenhallv. Dennis, i3 Baa,v. 2^5: S. C mm. W^ettenhall v. Davies. 9 Jnr N S. 1216,
where a plaintiff legatee's priority over the other parties, was confined to his costs of getting in
and realicing the estate.

7 Wedgwood v. Adams, 8 Beav. 103, 106 ; Seton, 146.

i

1528

PROCEEDINGS IN THE MASTER S OFFICE.

0

t

t r::->

I..

•««. J,'

of all parties were ordered to be taxed and paid, as between
solicitor and client, on the assumption that the fund was sufficient
to pay them all, and it subsequently appeared that the fund was
insufficient, the Court rectified the order, by giving the executors
their costs in priority.^

Where a creditor institutes a suit, knowing that the estate has
been wholly exhausted, or that there are no assets available for
the payment of his claim,^ or is informed thereof, before or after
he institution of the suit, by tlie executor, or by creditors having
prior claims, and such information turns out to be correct, he
will be ordered to pay the whole of the costs, or the costs from the
time he received such information ;^ or be disallowed all his costs,
or his costs incurred after the notice.*

Where, however, in a case in which there were no residuary or
pecuniary bequests, the next of kin of the testator instituted a suit
for the administration of the estate, and the debts oxhausted the
residue, it was held that the plaintiff must bear his own costs ;
but that the executor must have his out of the specific legacies.^

Where, in a creditors' suit, the creditors, who had signed an
undertaking to contribute their proportion of the costs, had been
paid in full, they were, on the assets subsequently proving deficient
to pay the costs, ordered, on the petition of the plaintiff, to contri-
bute to the plaintiff's costs ; and, for that purpose, to repay pro-
portional parts of what they had received.®

In suits by puisne incumbrancers or general creditors, for the
administration of assets, it is not usual to make persons having
prior specific charges parties to the suit, as they will be untouched
by a decree for sale ; and may therefore, if they are made parties,
insist upon having the bill, as against them, dismissed with costs.
They may, however, adopt the suit, and consent to a sale, and to
receive payment of their principal and interest out of the proceeds :
in which case, although the decree is for the payment of all parties,

1 Oaunt V. Tayltyr, 2 Hare, 413, 420 ; see contra, Swale v. Milner, 6 Sim. 572.

5 Egan v. Baldwin, 1 Moll. 630.

3 Bletutt V. Jesiop, Jac. 240, 242 ; King v. Bryant, 4 B«av. 460, 4B2 ; Fuller v. Oreen, 24 Beav. 217.

4 Robinson v. Elliott,! Russ. 699. Lnomet v. Stotherd.lB. & 8. 468,461; Attomey-f^ineral v.

Qibbs, 1 De O. & 8. 166, 161 ; Sullivan v. Bevan, 20 tieav. 399.

6 Mewbegin v. Bell, 23 Beav. 386.
6 Thompion v. Cooper, 9 Col. 87.

n

C0S13 OUT OF THE FUND.

1629

tween
ficient
d was
cutors

^te has
ble for
ir after
tiaving
3ct, be
om the
3 costs,

lary or
i a suit
ited the
costs ;
ies.^

ned an
bd been
eficient
contri-
ay pro-

for the
having
iouched
parties,
b costs,
and to
oceeds :
parties,

4 Beav. 217.
I-Uineral v.

according to their priorities, as they have adopted the suit the
costs of all parties must, in the first instance, come out of the
fund.i ■ ,

The right!'of the creditor, who files a bill for an administration of
assets, to be paid his costs out of the fund in Court, does not
affect the pojisonai represpntative's right of retainer for satisfaction
of a debt due to himself; and even where part of the personal
estate had been paid into Court by an administrator, and another
part of it remained in his hands, but there was a debt due to him
from the intestate, greater than the amount of both funds, and no
other assets to satisfy the general body of creditors, or even to pay
the costs of the plaintiflf, Sir John Leach, M. R., was of opinion,
that the administrator's right of retainer was not affected by the
circumstance of his having paid the money into Court, and that
the plaintiff was not entitled to have his costs satisfied out of a
fund to which the right of retainer extended.^ But although a
personal representative may retain for the amount of his own debt,
in preference to the claim of the plaintiff for the costs of the suit,
the same thing cannot be done by a devisee of real estates, which
are subject to the payment of debts. If, however, a devisee gives
notice that his right of retainer will exceed the assets, after such
notice the plaintiff may be considered as proceeding at the peril of
costs.* . ., , , V

Where a bill was filed to raise legacies charged on real estate,
and the estate was insuffieient to provide for payment of the
legacies and the costs of suit in full, the devisees of the estate were
held entitled to their costs out of the fund, in priority to those of
the legatees.^

The above rules apply to cases where there is a deficiency in
the fund realized by the suit to answer all the claims upon it ;
but, where this is not the case, the general rule is, that, wherever

1 Brace r. Dtuhess of Marlborough, Mos. 50 ; White v. Bishop of Peterborough, Jac. 402 : Egan v

Baldwin, I Moll. 639 ; KenebeA v. Sorajton, 13 Ves. 370 ; Armitrong v. Storer, 14 Beav. 535, 538!
see also Ford v. Earl of Chctterfiald, 21 Beav. 426 ; Wright v. Kirby, 23 Beav. Vii ; Dighton v.
WitherH. 31 Beav. 423 ; Ward v. Mackinlay, 10 Jur. N. 8. 1063 : 13 W. R. 65, L.J J.

2 Chismm v. DeioM, 5 Hiiss. 2U ; Langton v. Uiggs, 5 Sim. 228 ; Uali v. MaedonaldjXi Sim. 1 ; and

as to ritfb* of retainer, xee Pox v. Garrett, 28 Beav. 16 ; Boyd v. Brookes, 13 W. R. 419, L. C.

3 1jooih€» v. ibtotherd, 1 S. <!i( S. 468 ; Hall v. MaedvtMld, ubi sup.

4 »yoo«ott y. ITooJtott, 4 Jur. N. S. 1292, v. C. S. - ., . , ,.

i

t3 C

1530

PROCEEDINGS In tHE MA6TER*S OFEICE.

it is necessary to come to the Court, to establish a demand upon
the property of persons deceaaed, the costs of such proceedings
must be borne out of the assets.^ Therefore, if a bill be filed by a
creditor for his debt, or by a legatee for his legacy, the costs of the
suit must be paid out of the testator's estate : so, also, must the
costs of a suit, to obtain the benefit of a donatio mortis causa.
The expenses of a suit, also, by residuary legatees, or next of kin,
for an account and distribution of an estate, must be defrayed out
of the general estate. In such suits, the circumstance that the
defendant has offered to the plaintiff a full inspection of his account,
makes no difference : a plaintiff, in such a case, is not bound to
receive and acquiesce in the mere unsupported statement of the
accounting party ; »ro has a right to have the account of the estate
taken with th*^ .on of oaths, and all other guards against

deception which .. .^ju.Li of Equity can supply.^ The circumstance,
that the plaintiff himself, besides bv^ing a residuary legatee, is a
co-executor with th def .j,nts, will not make any difference
in the application of the rule : though, if he files his bill in the
character of creditor as well as legatee, and fails in establishing his
claim as creditor, he will have to bear any additional costs which
may have been occasioned by his unfounded claims.^. Where, how-
ever, the executor had truly stated the condition of the estate, a
residuary legatee, who filed a bill to take the accounts, was ordered
to pay the costs of the suit ouit of his own share.*

Where a bill is brought to secure and have the benefit of a con-
tingent interest devised over, the costs must be paid out of the
general assets of the testator who, by his will, occasioned the
difficulty;^ and it is invariably held, that if, in the course of a
suit for the administration of an estate, a difficulty arises upon the
construction of the will, the costs occasioned by such difficulty
must be defrayed out of the assets :* even though the difficulty has

1 See Havipson v. Braiulioood, 1 Madd. 381, 394; Oardtier v. Parker, 3 Madd. 184. For the princi-

ples on which such costs will be taxed, see po»t.

2 Sharpies v. Sharpies, McLel. 506: 13 Pri. 745. 3 Ibul.

•4 Mackenzie v. Taylor, 7 Bcav. 407 ; Thompson v. Clive, 11 Beav. 476, 480 ; and see Attorney-Gene-
ral V. Gibbi, 1 De G. & S. 15«, 101.

5 Stvdholme v. Hodgson, 3 P. Wms. 303.

6 This rule applieH only to cases arising under wills ; it does not apply where ditficultieH arise u|)on

the construction of deeds : in which cases, althou&;h, if the deed which gives rise to the suit be so
darkly framed as to occasion fair doubts as to its construction, the Court will excuse the unsuc-
cessful parties their costs, it will not "~":>^.<)l the successful party to pay them out of the estate :
Hampson v. Brandwood, 1 Madd. 3&X, 3tf4 ; see also Earl of Oxford v. ChureheU, 3 V. jli B. 59,
71, where the costs of an unsuccessful claim, set up on behalf of an infant, to a share of a fund
under a settlement, were charged, not upon the general fund, but upon that portion of the fund
to which the infant was held to be entitled.

COSTS OUT OF THE FUND.

1581

arisen from parol evidence, introduced on the part of the defend-
ant.^ ■ ■ "■ ■ .

con-

)f the

[A the

of a

|>n the

iculty

has

|e princl-
ty-Gene-

When it is said, that a legatee, filing a bill for his legacy, will
be entitled to his costs out of the estate, it must be understood
only as applying to those cases in which he is successful in the
suit. If a person claims as legatee, and his bill is dismissed, he
will not, in general, be allowed his costs out of the testator's
estate, notwithstanding there is an ambiguity in the will, which
renders it necessary to apply to the Court for its construction.*
In such cases, the Court will usually, if the case involves consider-
able difficulties, occasioned by conflicting decisions or the acts of
the testator, or the plaintiff has a fair ground for making his claim,
make each paiiy bear his own costs, by ordering the dismissal to be
without costs. Therefore, where a bill was filed, by the next of kin •
of a testator against the executors, for the undisposed of residue,
and the next of kin failed, the bill was dismissed without costs :
because the Court thought there was some excuse for their liti-
gating the executor's right to it.' And where, after a verdict upon
an issue, finding against the legitimacy of a person claiming a
legacy as a legitimate child, a question arose as to the costs, the
Court refused to give costs against him : as he had always borne
the name of the family, and been received in it.* Where, however,
the bill is not simply dismissed, but a declaration of right is made,
the plaintiff, though unsuccessful, is ofken given his costs.^ , .

It may be noticed here, that in a case where a bill was filed for
a legacy, which had been bequeathed to an infant, and which had
been more than satisfied by advances made for the infant's benefit,
during his minority, and by a larger legacy bequeathed to the
infant by the executor-, the Court decreed in favour of the legatee,
though there had been no demand for ten years after he came of
age ; but as it considered the demand very ungracious, it gave the

1 Xourse v. Finch, 1 Ves. J. 344, 362. ' ' ''

2 Lwter v. Sherringham, cited 1 Newl. Pr. 592 ; see, however, Lj/nn t. Beaver, T. & R. W, 69 ;

Wimiham v. Graham, 1 Russ. 331, 347 ; Lee v. Delane, 4 De a/& S. 1, « : 14 Jur. Ml.

3 Brashbridge v. Woodrofe, 2 Atk. 69.

4 Forbes v. Taylor, 1 Ves. J. 99.

5 Merlin v. Blaarave, 25 Beav. 125, 135, 130 ; Lynn v. Beaver, T. h R. 60, 60 ; Thonuuon v. Motet,

5 Beav. 77, 81 ; Wedgxeood v. Adamv, 8 Beav. 103 ; Johntton v. Todd, ib. 489 ; Cooper v. Pitcher,
4 Hare, 485 : Boreham v. BignaU, 8 Hare, 181 ; Turner v. Frampton, 2 Coll. 331 i Lee r. Delane,
4 De 0. & S. 1 : 14 Jur. 861 ; Uodg»on v. Clarke, 1 De O. F. & J. 394.

O 'J,
23

1532

PROCEEDINGS IN THE MASTERS OFFICE.

,'1' .«..-i
*' • I

legatee no costs.^ So, also, where the legatee persisted in useless
litigation, no costs were allowed.^

It is necessary, here, to advert to an important distinction with
regard to the portion of the testator's estate out of which the costs
are to be paid : for the rule is, ;iLat where any doubt or ambiguity
arises under a will, with reference to any bequest or devise, which
renders an application to the Court necessary, the costs occasioned
by such application are to be paid, not out of the property with
respect to which the doubt arises, but out of the general assets not
otherwise disposed of.^ In other words, they are payable out of
what is usually termed the residuary personal estate : athough,
perhaps, the term may not be quite correct, inasmuch as the
residuary estate is, strictly speaking, that part of the estate which
remains after payment of all legal and testamentary [claims upon
the estate, whether for debts, legacies, or costs ;* and this rule
applies, although the testator charges his debts, funeral, and tes-
tamentary expenses, upon a specific fund.^ Where, however, a
testator charged a specific part of his estate with his debts, and
the costs of executing the trusts of his will,** or with his debts,
funeral, and testamentary expenses, in exoneration of the residue, '
or in substitution for the residue, which failed,^ the costs of the
suit were held to be payable out of the part so charged.

"When next of kin, or persons claiming as a class under the will
of a testator, succeed in establishing their title under a decriee for
the administration of the estate, it is usual for them to be allowed
their costs : not their costs incurred out of doors in collecting
information as to the pedigree of the party : not the costs of
private inquiry ; but the costs incurred in the Judge's Chambers,
and generally of proceedings in the suit ;' and the rule prevails,

., >

1 Lee V. Broum, 4 Ves. 362, 369.

2 OttUy v.X^ilby, 8 Beav. 602, 605 ; Thompgon v. Clive, 11 Beav. 475, 480.

8 Studkolme v. Hodgson, 3 P. Wms. 303 ; JolUffe v. Eant, 3 Bro. C. C. 25, 27 ; Battffh v. Reed, ib.

193: I Ves. J. 257, 266 ; Attorney-General v. Hurst, 2 Cox, 364, 366; s. C. nom. Attorney-
Oeneral v. Winchelsea, 3 Bro. 0. C. 37o, 381 ; Barrington v. Tristram, 6 Ve». 346, 349 ; JJoicse
V. Chapman, 4 Ves. 642 ; Pearson v. Pearson, 1 Sch. & Lef. 12; Bagshaw v. A'ewton, 9 Mod.
283; Sisbett y. Murray, 5 \eH. lid, 158; Wilson v. BrownsmUK,9 Ves. 180, 182; Wilson v.
Squire, 13 Sim. 212 ; Handley v. Davies, 5 Jur N. S. 190, V. C. S.

4 Byre v. Marsden, 4 H. & C..231, 243 ; Ripley v. Moysey, 1 Keen, 678 ; Pickford v. Brown, 2 K. &

J. 486; 2 Jur. N. S. 781, 783; Sanders v. Miller, 25 Beav. 154; Stringer v. Harper (No. 2), 20 Beav.
686 : 5 Jur. N. S. 401 ; Maddison v. Chapman, IJ. & H. 470 ; JoUiffe v. Twyford, 4 Jur. N. S.
1166, M. R.

5 Brmme v. Oroombridge, 4 Madd. 495, 502; Ltnley v. Taylor, lOlfl. 67; Striwocr v. Harper, u6t sup.

9 Alsop V. BeU, 24 Beav. 451 ; see however, Lord Broughamy. Lord Poulett, 19 Beav. 119 : 1 Jur. N.

8. 161.
7 Morrell v. Fisher. 4 De O. & 8. 422, 424. 8 Wilson v. Heaton, 11 Beav. 492, 404.

9 ahuttteworth v. Hovoarth, C & P. 228, 232.

Reed, ib.
Attorneii-
; Howte
X, 9 Mod.
W%l»on V.

n, 2 K. &
, 20 Beav.
"lur. N. S.

k \M tup,
:lJur.K.

COSTS OUT OP THE FUND.

)

1533

whether they are made parties to the suit, or the fund is adminia-
tered, without formally bringing them before the Court upon the
record.^ In such cases, if the residuary estate has ultimately to be
divided amongst different classes of persons, the practice is for the
costs of all the claimants to be paid out of the general estate,
before any apportionment is made : even though the effect of such
a mode of payment is to diminish the fund of one class of claim-
ants, to an extent materially greater than the amount of costs due
to that particular class.

Moreover, where the particular fund which has occasioned the
litigation is no part of the residue, the general rule is, that the
residuary estate should bear the costs of administering the estate.
Thus, where it was necessary to have the decision of the Court, as
to whether a legacy of 10,000Z., given two sisters, was a joint
bequest or in common, the costs were ordered to be paid, not out
of the legacy, but out of the general assets.* So, where a bill was
brought to secure and have the benefit of a contingent interest
devised over, the costs were ordered to be paid out of the residuary
estate ; and where the question was, whether a legacy was specific
or not, the costs of determining that question were ordered out of
the general estate, in preference to the specific legacy, although
the general estate was made the subject of a residuary bequest.*
Upon the same ground, it was formerly held, that by giving a
legacy to ivn infant, the testator made it necessary to come into
Court for directions how to lay it out ; and that, therefore, the
costs of a bill by an infant legatee, to have the legacy secured for
his benefit, must be paid out of the residue.^ Such applications
have, however, been rendered unnecessary, by the 36 Geo. III. c.
62, s. 32, which, in the case of an infant, authorises the executor
to pay the legacy into Court ; and in Whopham v. Wingfield,^ the
Court said that, in future, the costs would not be given in such a
case. In the application of the rule, that the costs of suit are pay-
able out of the general residue, no distinction exists between the
cases in which it is disposed of, and those in which it is not ;^ and
where there are specific bequests and pecuniary legacies, which

1 Hutchiiuion v. Freeman, 4 M. & C. 490 : 3 Jur. 694 ; Sun/t v. Swift, 1 De O. P. & J. 160.

2 Shuttleworth v. Howarth, ubi sup. 3 Jollife v. Ea»t, 3 Bro. C. C. 26, 27.

4 Niabett r. Murray, 6 Yes. 149, 158. 6 Anoti. Mos. 5. 6 4 Vet. 630.

7 Eyre v. Marston, 4 M. & C. 244 ; Sitbett v. Murray, uftt sup. ; Uowte v. Chapman, 4 Ve«. 642, 660 ;
Cookion •*. Bingham, 17 Bmv. 262, 266.

i

i

f

c

^ ^

^

c *

I

=3

!<:■

i

%

1534

PROCEEDINQS IN THE MASTER'S OFFICE.

•4....J

exhaust the whole estate, so that there is no residue, the costs
oooasioned by the specific bequests will be thrown upon the general
fund, out of which the pecuniary legacies are payable. Thus, in
Barton v. Cook,^ where tliere were specific and pecuniary legacies,
and the personal estate, after setting apart the specific legacies,
was not sufficient to pay all the pecuniary legacies, so that an
abatement amongst them became necessary, the costs were ordered
to be paid out of the personal estate not specifically bequeathed.
The rule will also prevail, where property intended to be disposed
of has, in the result, been declared undisposed of : tliere the costs
will not be thrown upon the property so declared to be undisposed
of, but, as in other cases, upon the general estate. Thus, in Howae
V. Chapman,^ where some of the bequests in favour of the City of
Bath, which were specific, were held to be void under the Statute
of Mortmain, the costs were ordered, in the first instance, to be paid
out of the residue undisposed of, that is, out of the property not
specifically given ; but, in case of a deficiency, the remainder of
the costs were to be defrayed out of the property specifically
bequeathed, and to the payment thereof the property well given,
and the property intended to be given, but which had been held to
be undisposed of, were to contribute /jro rata.

So, wher3 a legacy given by a will has lapsed by the death of
the legatee in the lifetime of the testator, the costs will be paid out
of the general fund, and not out of the lapsed legacy :^ and the
same rule applies, where the intestacy, as to part, does not arise
from lapse, but n'om revocation of a bequest : as in Cresswell v.
Cliealyn,* as explained in the note to Skrymsher v. Northcote ;^ and
in the latter case itself, in which the question was argued, that the
costs of the suit ought to be paid out of the part undisposed of, and
not out of the general estate. Sir Thomas Plumer, M. R., decided
that the costs should be apportioned.^

It makes no difference whether the property midisposed of,
(whether from lapse or from any other cause,) was given as a
specific or pecuniary bequest, or as a share of the residue : in either
case, the costs of the suit will not fall on the undisposed of share,

1 5 Ves. 461, M4. 2 4 Vcs. 642, 651.

4 2 Eden, 128. 6 1 Sviamt 671 n. (n).

6 See Myre v. Martden, 4 M. & C. 281. 246.

3 RoberU v. Walker, 1 R. & M. 762, 767

COSTS OUT OF THE FUND.

1535

but on all the shares. Thus, in Ackroijd v. Smithson,^ the oosts
were paid pro rata out of the share of the residue which the
legatees took, and those shares which had lapsed ; and, in cases
where part of the property given to a charity becomes undisposed
of, from being within the Mortmain Act, it has been long settled
that the oosts are paid pro rata out of the property so undisposed
of, and the property well bequeathed to the charity.'^

h of
out
the
,rise
II y.
and
the
and
lided

of,
is a
ther
|are,

2,767

The cases above referre'' to, establish the principle that, where
an intestacy as to part of the personal estate arises from the
intention of the testator being defeated by the happening of some
event, or by the operation of the law, the part thus falling to the
next of kin, is, in his hands, subject to the same liability as to
costs, and no more, that it would have been subject to, if the gift
had taken effect; and the principle has been extended to cases
where accumulations directed by a will have been declared abso-
lutely null and void, under the Thellusson Act (39 &40 Geo. III. c.
98). Thus, in Eyre v. Marsden,^ where Lord Langdale, M.R., *
having declared that a direction for the accumulation of the pro-
duce of the testator's freehold and personal estate was void under
the above Act, and that such parts of the accumulation as arose
from the real estate belonged to the heir, directed the costs of the
suit to be paid pro rata by the heir, and personal representatives,
out of the accumulations devolving upon them : Lord Cottenham,
upon appeal, varied the decree, by directing the costs to be paid
out of the general estate of the testator.^

But although the rule is, that the costs of a litigation, in the
course of administering a will, are given out of the general assets,
in preference to the particular fund, yet, if the particular fdri,(*. has
been served from the residue, and the question is merely between
the persons claiming to be entitled to it, the costs must come out
' i\. .'•■' ■ . ' ' • ' • ,

1 1 firo. C. 0. 603 The printed report, however, is silent as to costs, but the direction as to coAts, is

shown by the Registrar's book ; nee 4 M. a O. 246 ; see also Madditon v. Pye, 32 Beav. 668.

2 Per Lord Cottenham, in £yre v. Mariden, 4 M. & C. 231, 246 ; and see Attomey-Qerural v. Lord

WiiusheUea, 3 Bro. C. C. 373, 380 ; Attorney-Oemral v. Hurst. 2 Cox, 364, 366 ; Howte v. Chap-
man, 4 Yes. 642, 650 ; Taylor v. Bogg, 5 Jur. N. 8. 137, V. C. S.

3 4 M. & C. 231 ; and see Elhorne v. Qoode, 14 Sim. 166, 170: 8 Jur. 1001 : Barrett v. Buck, 12 Jur.

771, v. G. W. ; Holgate v. Uaworth, 17 Beav. '>r,9 : Oddie v. Brou,n, 4 De O, & J. 17i>, 108 : 6 Jur.
N. !». 035, 637 ; Oreen v. Ga$coym, 11 Jur. N. S. 145: 13 W. R. 371, L. C.

4 2 Keen, 664, 678, 580.

5 4M. &C. 248. . , ,^ • , . • ., .jv „■,.; uii

P.

1586

PROCEEPINns IN THE MASTER'S OFFICE.

■m

■I..I

. J

of the particular fund.^ Thus, it is the ordinary course of the
Court, where there is some legacy clearly payable, but it is uncer-
tain who is entitled to it, to order the legacy to be paid into Court
to a separate account, with liberty for any person interested in it
to apply, and to proceed to a distribution of the residue of the
testator's estate : in such case, any costs which may afterwards be
incurred, in inquiring who is entitled to such legacy, must come
out of the particular fund : for the Court will never postpone the
distribution of the residue, to answer the costs of such inquiry.

When, in consequence of the state in which a testator loft his
papers, a reasonable doubt was created as to his having left a will,
the costs of the parties necetsary to discuss the question of " will
or no will " were ordered to be borne by his estate. ^

Where the question was, whether certain legacies were specific
or not, and inquiries had been directed as to the appointment of
a guardian and maintenance for a specific legatee, who was an
infant, the costs of the suit, except as to the inquiries with respect
to the guardian and maintenance, were ordered to be paid out of
the general assets, and the costs as to the guardian and mainten-
ance were directed to be paid by sale of a sufficient part of the
specific legacy.'^ So, also, the costs of the Bank of England, made
a party for the Security of a legacy, the right to which was under
discussion, were paid out of the legacy ;* and if the plaintiffs, in a
suit relating to the construction of a will, unnecessarily mix up
other questions with the questions arising under the will of the testa-
tor, the costs of such part of the suit only as relate to the con-
struction of the will, will be paid out of the general assets. Thus,
where a doubt arose under a will, whether a legacy given by the
testator was undisposed of, and a suit was instituted by the residuary
legatees of one of the next of kin of the testator, instead of his
personal representative, in the course of which questions arose be-
tween them, the costs of 30 much only of the suit as related to the

1 Jenour v. Jenour, 10 Ves. 562, 573: see also Shaw v. Pickthall, Dan. 92 ; Duke of Manchenter v.

Bonham, 3 Vea. 61, 6* ; King v. Taylor, 6 Ves. 806, 810 ; Wilson v. Squire, 13 Sim. 212 ; Dugdale v.
Dugdale, 12 Bnav, 247, 251 ; Ooveme»seg' Imtitution v. Jiutbridger, 18 Beav. 467 ; Richardson v.
Riubridger, 20 Beav. 136; Attorney -General v. Lawes, 8 Hare, 32, 43 ; see also J'enningtan v.
Buekley, 6 Hare, 461, 455. Costs of taking out administration to a sliare were allowed, under
circumstances, out of the general estate : Cotton v. Penrose, 18 Jur. 761, V.C.K.B.

2 Bessey V Bostwick.U Qnat, 2'ia. ,

3 Bartony. Cooke, 5 Ves. 461, 464. ,V . ' ' ,

4 Hammond v. Seame, 1 Swanst. 38. '

COSTS OUT OP THE FUND.

1637

in a

bheiiter v.
tugdale v.
lar(i«on v.
lin^ton V.
|d, under

decision upon the will were ordered to be paid out of the general
assets of the original testator.^ i i ' i? • l)iM>t to tico

It may be remarked that, where a party entitled, either to a
legacy or share of a residue, incumbers his legacy or share, or by
any act of his own occasions additional expense in respect of it,
beyond what is necessary for the due administration of the estate,
the additional expense will be thrown upon the particular fund or
portion ; and only one set of coats will be allowed out of the
estate to the party entitled and his incumbrancers, and suoli costs
will in general be made payable to tho first incumbrancer.^ ^.n j

A similar rule will be applied, in the case of a bankrupt legatee
and his assignees f of a trustee and his cestui que U-ust \*' and of a
husband and wife, living apart, and improperly severing in their
defence.^

Where different funds are the subject of distriuution or discussion
in the same suit, the costs of the suit are generally apportioned
fro rata between the different funds.®

In Leacroft v. Maynardy'' where the testator charged his legacies
upon his real estate, and then bequeathed a legacy to a charity, the
amount of which he altered by his codicil, whereupon a bill was
filed for the general administration of the testator's estate, and
another bill was also unnecessarily filed by the heir at law to have
the legacy bequeathed to the charity declared void under the Statute
of Mortmain, and to have the real estate conveyed to him dis-
charged of it : the Court directed that the costs of the suits, so far
as they related to the personal estate, should come out of the per-
sonal estate, and that the costs which related to the real estate
should be borne by the real estate : so that the costs of the bill
filed by the heir should fall upon the real estate. So, also, the \

1 5*n/m»Aer V. ^ortAcoe*!, 1 Swansl, 586. 572. i ' - ■ .-,<* ... m. . A .< . ,-.■ .. f.

2 Qrteleyy. Lavender, 11 Beav. 417, 420: Seton, 162 (No. 12), 167, where form of order is uiven •

Remnant v. Hood (No. 2), 27 Beav 6ia ; Ward v. Tate», 1 Dr. & Sni. 80; and see Baatevi v'
Serra, 3 Mer. 674, 676 : 14 Yea. 313, 817 ; see also Mocatta v. Lotuada, cited 3 Mer. 676 : 14 yen!
817.

3 Brace v. Ormond, 2 J. & W. 485 ; Oarey v. Whittingham, 6 Beav. 268, 270.

4 Remnant v. Hood, «6i sup. ; Farr v. Sheriffe, 4 Hare, 528.

6 Garey v. Whittingham, ubi tup,

fi Heiyhington v. Grant, 1 Beav. 228, 231 ; Johnston v. Tudd, 8 Beav. 489, 492 ; Hopkinton r. Ell%»
10 Beav. 169, 170 ; Sandert v Miller, 25 Beav. 154 ; Elhome v. Qoode, 14 Sim. 166, 179 : 8 Jur'
1001 ; Christian v. Foster, 2 Phill. 161, 166 ; and see Attortiey-Oeneral v. Lataet. 8 Hare 32

7 1 V«s. J. 279 : S Bro. 0. 0 838. > > •

\k

«fc! 0

\

1538

PROCEEDINGS IN THE MASTER'S OFFICE.

■La 1

:>!•

costs have been apportioned between the appointed and unappointed
parts of a fund/ according to the different values of the appointed
parts ;^ and between several charities, where one scheme was
settled for them all.' So, also, where there were no debts or per-
sonal estate, the costs were thrown rateably on devised and des-
cended realty.* Similiar decrees, for an apportionment of costs
between real and personal estates, appear to have been made in
Jones v. MitcheU,^ and Dixon v. Dawson.^

Where the suit was for the administration of the estate of a
testator, but it also involved the execution of the trusts of a settle-
ment, the costs occasioned by that portion of the suit relating to
the settlement were directed to be borne by the settlement fund ; "
and in King v. Taylor,^ where the question was whether a legacy
of stock and a share of the residue under a will went to the hus-
band of a married woman who was dead, or to her brother, and -the
Court decided that the legacy went to the husband, and the share
of the '•esidue to the brother, the costs were ordered to be borne ^>y
each fund in moieties.

,;V.

. < V-

In suits to rectify settlements, in which no blame is imputable to
either side, the costs will, in general, be made payable out of the
settled property." "* ■

It may be mentioned, in this place, that where a cestui que trust,
having a life interest only, is declared entitled to his costs out of the
trust estate, the Court will not content itself with merely giving him
a hen upon the corpus of the estate by the decree, leaving him to
enforce it by subsequent proceedings, but it will direct an immediate
sale of a sufficient part of the estate to raise the costs : and it
appears that the omission of such a provision in the decree may be
the subject of a re-hearing.^*^ A life interest will not be valued, for
the purpose of charging costs upon it." .' - v' u ►•

I Trollope v. Routledge, 1 De G. & 8. 662, 671. 2 Warren v. Poetlethwaite, 2 Coll. 116, 123.
^ Re Stafford Char Uuis, 26 Bea,v.b67. ■;,,.., >

4 ^Oflrof V. XeM«, 2 Dr. & Sm 269 : 10 Jur N. S. 1092. '.

5 IS. ft S. 290,296

6 2 S. A S. 327, 340 ; see also 1 Bro. C. C, ed. Belt, 265, n. (3) ; Walter v. Mautulfi, 19 Veti. 424, 429 ;

Bunnett v. Foster, 7 Beav. 640, 644 : Johmton v. Todd, 8 Beav. 4S9, 402 ; Hophimon v. Ell if,
10 Beav. 169, 176 ; Sanders v. Miller, 26 Beav. 164 ; and see Seton, 247 .

7 Irby v. Irby, 24 Beav. 626. 8 6 Ves. 806, 810.
9 Stock V. Vining 26 Beav. 236.

10 Burkettv. Spray, 1 R. & M. 113, 116 ; Mandetio v. Manf.eno, Kay, App. 2, 4. It seems, however,
that, tn such a case, the jiarty entitled to the costs, inst.ad of appealinif, may apply by motion to
have them raised by sale : see Cannell v. Beeby, Beames on Costs, App. No. 7-

II Coombe v. Hughti, 13 W. R. 700, L.JJ.

1

!!:.

THE PRINCIPLES OF TAXATION.

nnd

nnted
)inted
) was
r per-
1 des-
costs
ade in

be of a
settle-
ting to
fund;"
legacy
lie hus-
Eind -the
le share
orne ^'Y

table to
of the

he trust,
|t of the
|ing him
him to
lediate
and it
I may be
|ued, for

116, 123.

is. 424, 429 ;
lonv. ElUx,

L, however,
ly motion to

In the case of costs, the Court will take any fund which, in the
absence of all others, is liable to costs, and apply it for that pur-
pose. If the fund is not ultimately to bear the costs, it is usual
and more proper to add to the order the words, " without prejudice
to the question how the same are ultimately to be borne," or words
to a similar effect ; but the absence of such words does not, neces-
sarily, imply that the Court has decided that the fund out of which
the costs are directed to be paid is the fund which must ultimately
bear them ; nor does their absence prevent any error from being
set right, at any future period.^

The Principles of Taxation.

It has been stated, that the Court of Chancery makes a dis-
tinction, rr'ih regard to the principle upon which the officer of the
Court is to p'.'oceed in the taxation of costs ; and that this distinc-
tion is marked by the terms of : " costs as between party and
party," and " costs as between solicitor and client " : the Court, in
the latter case, permitting a larger proportion of actual expenditure
to parties holding particular characters, than it allows in the
former case. No definite rules can be laid down, with respect to
the difference between the costs allowed upon one principle of
taxation, and those allowed upon the other. In general, however,
in taxations as between party and party, only those charges will be
allowed which are strictly necessary for the purposes of the pro-
secution of the litigation, or are contained in the tables of fees
annexed to the general orders and regulations of the Court : while
in taxations as between solicitor and client, the party will be
allowed as many of the charges which he would have been com-
pelled to pay his own solicitor, as being costs of suit, as fair

justice to the other party will permit.^

«

It must not, however, be supposed that, in taxations between
solicitor and client, the party, whose costs are to be taxed, will be
allowed everything which his own solicitor might claim against
him upon the taxation of his bill : for regard will be had to the
position of the parties, and the fund out of which the costs are to
be paid ; and a distinction is made : First, where such costs are

1 Sheppard v. Sfuppard, 33 Beav. 129, 130, 131 ; Setan, 87, 93.
i See Foriter v. Davi«$, 11 W. R. 818, M. R. ; Morgan db Dawy, 1.

73

i

I

f

■1

1540

COSTS.

^1

v.-

'•La J

.CO)

ii

payable out of a fund- belonging to other parties ; secondly, where
such costs are payable out of a common fund, in which the party
entitled to costs has only a limited interest ; and, thirdly, where
such costs are payable out of a fund belonging exclusively to such
party himself.^ These distinctions, however, are not made in the
order directing the taxation, but only when the order is acted upon
by the Taxing Master ; and, if it is intended that the party, whose
costs are to be paid out of a general fund, should be fully indemni-
fied against all expenses, or against any expenses not strictly costs
of suit, care must be taken to have it so expressed in the ordinary
order : as the direction, that the costs are to be taxed as between
solicitor and client, will not, in such a case, be sufficient.-

The above observations will suffice to convey a general outline
of the distinction between costs as between party and party, and
as between solicitor and client. We will now proceed to inquire in
what cases the Court will directjthe costs of a suit to be taxed upon
either principle ; or rather, in what cases the Court will direct the
costs of a party to be taxed as between solicitor and client : the
general rule of the Court being, that all costs are to be taxed as
between party and party, except where they are specially directed
to be taxed as between solicitor and client : whence it follows, that,
where the direction is simply to tax the costs of the suit, it is
always construed to mean as between party and party.^

It may be- here mentioned, that, where the Court has once
adopted the principle of taxation as between solicitor and client,
in favour of a particular individual, or of a particular class, it will,
in its futm'e proceedings, wherever it becomes necessary to direct
a further taxation of costs, direct it to be made upon the footing of
the former taxation. Thus, if, upon the original hearing, the costs
of a party have been ordered to be taxed as between solicitor and
client, the Court will, at the hearing upon further consideration,
direct the subsequent costs of the same party to be taxed in the
same manner : even though a different state of circumstances
should appear from the certificate, from that which was supposed
to exist at the original hearing ; it is only, however, where the
former direction for taxation has been made at a hearing of the

1 Seton, 92, 93.

2 See Seton, 92.

3 Seton, 92 ; Morgan de Davy, I.

THE PRINCIPLKS OF TAXATION.

1541

where
party
where
0 such
in the
d upon
whose
demni-
[y costs
rdinary
aetween

i outline
•ty, and
iquire in
:ed upon
ireet the
Bnt: the
taxed as
directed
ws, that,
it, it is

cause, either original or upon further consideration, that the Court
will consider itself hound hy it, at tihe subsequent hearing.

It appears to be the general rule of the Court, that, when per-
sonal representatives and other trustees are entitled to costs out of
the fund, such costs will be directed to be taxed as between soliciter
and client. It is, however, in general, only in cases in which there
is a fund under the control of the Court that such a direction will
be given : where there is no such fund, or a bill against the trustee
is dismissed, the costs awarded to the trustee will be only the
ordinary costs.^ Thus, where a testamentary paper was held void
for uncertainty, and the bill was dismissed with costs, it was sug-
gested that some of the defendants, being trustees, should receive
their costs, as between solicitor and client ; but the Court, on the
ground that they were trustees of a nullity, and that there was no
fund out of which such costs could come, refused to allow them their
costs as between solicitor and client ; and dismissed the bill, with
costs as between party and party.^ Under special circumstances,
however, costs have been given, in such cases, as between solicitor
and client.^

^/here a trustee disclaims, he will only be allowed his costs as
between party and party ;* and this rule will be observed, even
where the plaintiff continues him as a party to the suit, up to the
hearing, although he has disclaimed by his answer ;^ and where a
bill was dismissed against a person who was named in a deed as a
trustee, but had not executed the deed, or in any manner accepted
the trust, and had, by his answer, altogether declined it, he was
held not to be entitled to have it dismissed with costs as between
Bolicitor and client, but only with the ordinary costs between party
and party.'

m

S5 {

1 Saunder$ v. Saundern, 3 3\it. N. S. 727 : 6 W. R. 479, V.C;K. ; Edenborough v. ArckbUhop of

Canterbury, 2 Russ. 93, 112 ; Seton, 767.

2 Mohun V. Mokun. 1 Swaiut. 201, 203

S Kdenboroupk v. Arehbinhop of Canttrbury, ubi sup., where the Court, on the authority of TotvtM-
hend v. uiihop of Xornneh, which occurred in Uii, gv/e costs, as between solicitor and client,
to the Archbishop and Bishop of London, who had been made parties to the Nuit for the purpose
uf reHtraininif the induction of an incumbent to a livinjr, or from avaiUng themtielves uf any lapM
which might occur pending the suit ; see also Poole v. Pang, 1 Beav. 600, 606 ; A ttomey-Oeneral
V. Cuiiiing'2 Y. & 0. C. C. 131), 155, 159.

4 BiUkeley v. Earl of Bglinton, 1 Jur. N. 8. 994, V.C.W. ; Heap v. JoneH, 5 W. R. 106, V.CK.

5 Bray t. We$t, 9 Sim. 420.

6 Norway v. Nortvay. 2 M. Si K. 278 ; overruling Shtrratt v. Bentley, 1 R. & M. 665.

1542

COSTS.

U^^ ft

/=f

It has been already stated, that, in a charity case, where an heir
at law was made a defendant, pursuant to an order of the Court,
he was allowed his costs as between solicitor and client, although
there was no resulting trust in his favour ;^ and it seems that, in
general, in charity cases, the heir will, if he makes no improper
point, be awarded his costs as between solicitor and client. This
rule was acted upon in Curr'ie v. Pye -^ and in Moggridge v. Thack-
well '} in which latter case the heir at law, as well as the Attorney-
(ieneral and all the other parties, were allowed their costs out of the
fund, as between solicitor and client. The next of kin will also,
in general, be allowed, in charity cases, their costs as between
solicitor and client.^

I '

It seems also, that in general, where the object of a suit is to
establish a charity, and the estate is ample, the costs of all parties
will be taxed as between solicitor and client ;^ and, in Attorney-
General v. Carte,^ where the decree had merely ordered that the
parties should be paid their costs, to be taxed by the Master, out
of the estate, without giving any direction as to the principle of
taxation, in consequence of which the Master refused to tax the
costs otherwise than as between party and party, the Court enter-
tained a petition for an order that the taxation of the costs should
be as between solicitor and client. There is not, however, any
fixed rule of the Court in this respect.'

Where a bill has been filed for the general benefit of creditors,
and the estate has proved insufficient,^ the Court will give tlie
plaintiff his costs of the suit, out of the fund realised by his
exertions, as between solicitor and client.® This rule equally
applies, where the bill has been filed by a simple contract creditor,
and the specialty creditors have proved debts to an amount exceed-

1 Attomey-Oeneral v. Haberdmhers' Company, 4 Bro. C. C. 178; and see ib. ed. Belt's, n. (2);

Beames on Costs, App. No. 18.
8 17 Ves. 462, 468.

3 1 Ves. J. 464, 475 ; 7 Ves. 36, 83 ; see, however, Whicker v. Hume, 14 Beav. 509, 628.

4 Qaffney v. Uevey, 1 Dr. & Wal. 12, 25 ; Carter v. Oreen,, 3 K. & J. 691 ; 3 Jur. N. S. 906, 907.

6 Moggndgey. Tmckwell, tibi sup.; Currie v. Pye,ubi guu.; and see Attorttey-Generalv. Carte,

Beames on Costs, App., No. 2 : 1 Dick. 113 ; Binho^) of ken ford v. Adaiiit, 7 Ves. 324, 332 ; and
see Osborne v. Deniie, 7 Ves. 424. 6 Ubi vup.

7 Aria v. Emanuel, 9 W. R. 366, M. R.; Whicker v. Hum«, 14 Beav. 509, 528.

8 See Sutton v Doggett, 3 Beav. 9.

9 Turner v. Turner, cited 2 R. & M. 687 ; Hood v. Wilnon, ib.; Brodie v. Bolton, 3 M. & K 108 :

Stanton v. Hatfield. 1 Keen, 358, 362 ; Tootal v. Spicer, 4 Sim. .'ilO ; Sutton v. Doggett, 3 Beav.
9 ; Tho^nas v. Jones, 1 Dr. & 8m. 134: 6 Jur. N. 8 391 : overruUng Young v. Everest, 1 R. \
M. 426 ; Rowlands v. Tucker, 1 R. & M. 636 ; and see Seton, 146, 146 ; Morgan <k Davey, 136.

THE PRINCIPLES oF TAXATION.

1543

n lieir
Court,
,hough
lat, in
proper
This
Thack-
torney-
Lt of the
ill also,
between

1'!.'

dit is to
1 parties
ittorney-
that the
iister, out
nciple of
I tax the
Lit enter-
,s should
iver, any

jreditors,

give the

(d hy his

equally
creditor,
^t exceed-

Belt's, n. (2):

J 006, 907.
Iveral v. Carte,
\ 324, 332 ; and

(M. &K 168;
(rae«, 3 Besv.
^Jverent, 1 R- '^
Oavey, 136.

ing the value of the assets received :^ unless the specialty creditors
have given the plaintiff notice of the insufficiency of the estate, and
not to proceed with the suit.^ .

A similar rule has been adopted, in the case of suits by legatees,
where the estate, although sufficient to pay the debts, has proved
insufficient to pay the legacies in full.' If, however, in a suit
instituted by a legatee, the fund is insufficient for the payment of
the debts and costs,* or, if in a suit instituted by a residuary
legatee, the fund is insufficient for the payment of the debts, legacies
and costs,^ the plaintiff will only be allowed his costs, as between
party and party.* < .

Where, in an administration suit by the heir at law, the realty
and personalty were insufficient, the heir had his costs as between
solicitor and client.^

But it is only where the fund is insufficient, that the plaintiff, in
suits of this description, will be entitled to have his costs taxed in
so favourable a manner : where the fund is sufficient to pay all the
debts or legacies, and to leave a surplus for the residuary legatee,
tho plaintiff will only have his costs as between party and party. *
Where, however, in a creditors' suit, a fund had been realised by
the diligence of the plaintiff, and the assets were more than suffi-
cient for the payment of the debts, Lord Langdale, M. R., con-
sidering it a hardship that creditors not parties to the suit should
come in and reap the benefit of it, without contributing to the
plaintiff's extra costs, made an order, by which it was directed that
the plaintiff's costs, as between party and party, shoii!'' be paid out
of the fund, and that his extra costs should be paid, pro rata, by
all the creditors who partook of the benefit of the suit.®

1 Larkim v. Pazton, 2 M. & K. 320 ; Barker v. Wardle, ib. 818; Richardson v. Jenkim, 17 Jur.

44«5 ; not reported on this point in 1 Drew. 477.

2 Morgan «fc Davey, 137.

3 Burkett v. Hansmn, 2 Coil. 636 ; Cross v. Kennington, 11 Beav. 89; Waldronv. Franee$, 10 Hare,

App 10 ; Thomas v. Jotiet, 1 Dr. & Sin. 184 ; Bissett v. Burgess, 23 Beav. 278, 881.

4 Weston v. Clowes, 15 Sim. 610 ; Wetcnhall v. Dennis, as Beav. 285 : S. C. turn,. WetttntMll v.

Davis, 9 Jur. N. S. 1216. As to tlte costs of plaintiffs iu a uext-of-kin suit, wliere residue is ex-
hau8t''d in debts, see Ifewbegin v- Bell, 23 Beav. 386. «

5 Wrottghton v. Colquhoun, 1 De O. & S. 367. • '

6 See, liowever, Wroxighton v. Colquhoun, itftt sup., and Newman v. Hatch, cited Seton, 166, as to
the allowance of s)>ecial coHts in addition.

7 Tardrew v. Howell, 2 GiflF. 530 : 7 Jur. N. S. 937 ; Shittler v. Shittler, 4 N. R. 476, M. R.

8 Brodie v. Bolton, 3 M. & K. 168 ; Tho^nas v. Jones, uhi tup-

9 atanton v. Hatfield, 1 Keen, 358, 362 ; Sutton v. Doggett, 3 Beav. 0 ; Ooldsmith v. Russell, 6 De G.
M. & 0. 647, 566,

i

S3 i

4

1544

(tOSTS.

■ fct

QQl

'-X-

It frequently happens that, in suits to which trustees or personal
representatives are parties, either as plaintiffs or defendants, and
which do not involve 9,ny account, they have incurred expenses
which it is very right they should be reimbursed, but which do not
fall under the denomination of costs of the suit, even when directed
to be taxed as between solicitor and client. Of this nature are
cases laid before counsel, for their opinion preparatory to the
institution of the suit, and many other charges of that description,
to which, where there is a decree directing an account a trustee
would be considered entitled, under the head of just allowances,
but which, where there is no decree for an account, and con-
sequently no opportunity of claiming just allowances, a trustee would
be in danger of losing : especially in cases where the suit does not
involve property out of which they can be retained, or disposes of
the whole of the trust fund. The Court will, therefore, in such
cases, upon the statement that such charges have been incurred,
extend the order for the taxation of costs, as between solicitor and
client, to the costs, charges, and expenpes properly incurred by the
trustee.^ Under such a direction as this, the trustee may obtain
all such expenses as he has properly incurred, relating to the trust
property, in or in connection with the suit : although they are not
properly costs in the cause ; and under it he may be allowed the
costs of litigation conducted by him strictly as trustee, whether
successfully or unsuccessfully, and although ho may not have been
allowed such costs in the suits in which they have been incurred.^

Where the costs are to be paid out of the party's own fund the
direction to tax as between solicitor and client, may properly
include his costs of or relating to the suit or proceeding, and con-
sequent thereon.^

Except in the cases above pointed out, it is not the practice to
give a party his costs, charges, and expenses. Where, however, a
defendant put in four insufficient answers, and was committed till
he was examined upon interrogatories, he was, after putting in his
examination, ordered to be discharged, on payment of the plaintiff's

1 Seton, 768 ; Morgan d- Davey, 2. For form of order, see Seeton, 767.

3 Graham v. Wickhain, 11 Jur. N. S, 168 : 13 W. R. 386, L. JJ.; but see I'ayiie v. Little, 27 Beav. 83.

S S€ton,93. » •

sonal
, and
tenses
lo not
rected
:e are
to the
iption,
;ruBtee
'ances,
i con-
; would
3es not
loses of
ti such
curred,
tor and
, by the
obtam
e trust
.re not
ed the
'hether
e been
•red.2

ind the
foperly
id cou-

ptice to
[ever, a
Ited till
in his
lintiff'B

' Beav. 8^.

THK PRINCIPLES Ol" TAXATION.

)

1545

costs, charges, and expenses.^ And where an answer was ordered
to be taken off the file, because it was evasive and illusory, the
defendant who had filed it was ordered to pay all the costs and
expenses occasioned by it.^ Where, also, the suit, though ostensibly
for specific performance, was, in the opinion of the Court, collusively
filed for a different object, the bill was dismissed with all costs,
charges, and expenses properly incurred by the defendant in refer-
ence to the suit.^

Under the former practice of the Court, there were many ex-
penses necessarily incurred in the prosecution of the suit which
were not allowed in taxations as between party and party ; but it
is now provided by order 307 that " Where costs are to be taxed as
between party and party, the Master may allow to the party en-
titled to receive such costs, the like costs, &h are taxable where
costs are directed to be taxed as between solicitor and client, in re-
peat to the following matters : —

" I. Advising with counsel on the pleadings, evidence, and
other proceedings in the cause ;

" II. Procuring counsel to settle and sign such pleadings and
petitions as may a})pear to have been proper to be
settled by counsel ;

" III. Procuring and attending consultations of counsel ;

" IV. The amendment of bills ;

" V. On proceedings in the Master's office ;

"VI. Supplying counsel with copies of or extracts from
necessary documents."

And order 308, that " In allowing such costs, the Master is not to
allow the party any costs which do not appear to have been neces-
sary or proper for the attainment of justice, or for the defending
his rights ; or which appear to have been incurred through over-

1 Farquharson v. Balfour, T. & R. 184, 206.

2 RecM V. Barton. 3 K. & J. 186 : S. C. nom. Reid v. Barton, 3 Jur. N. S. 263.

3 Simpion v. Malherbe, 13 W. R. 887, V.C.S.: and see Cooke v. Cooke. 11 Jnr. N. S. 633 : 13 W. R.

W, L. C.

i

K

p

1

nu>

<'(>STS.

i^i.

«4

caution, negligence, or mistake, or merely at the desire of tlie
party."

Order 30(1 provides that " If upon the taxation of costs it should
appear to the Master that any proceedings have been taken un-
necessarily, and which were not calculated to advance the interests
of the party on whose behalf the same were taken, it shall be the
duty of the Master to disallow the costs of such proceedings, as
well on the taxation of costs between solicitor and client, and as
between solicitoi and client, as on a taxation between party and
l)arty, unless the Master shall be of opinion that such proceedings
were taken by the solicitor because they were in his judgment
reasonably exercised, conducive to the interest of his client. It shall
not be the duty of the Master, on a taxation of costs between a
solicitor and his client, to disallow to the solicitor his costs of such
proceedings where it is made to appear that such proceedings were
taken by the desire of the client, after being informed by his soli-
citor that the same were unnecessary and not calculated to advance
the interests of the client ; but the cost of such j)roceedings are not
to be allowed in any case where, according to the present practice
and rules of taxation, the same would not be allowed."

Where on an application by a solicitor for a taxation of his bill of
costs, the client disputed the retainer as to the whole bill, and also
set up the Statute of Frauds, it was held that the Court had juris-
diction to refer these defences to the Master. An order, of course,
for the taxation of costs is not to be discharged for the omission
therefrom of any reference to defences of which the petitioners had
no previous intimation.^ A counsel fee on hearing is not taxable until
the cause has been set down for hearing, and notice of hearing
given.2 Where there were two suits by a solicitor for the same ob-
ject, the Master refused in one of the two suits without a special
order to tax as between party and party, more than part of the
costs ; and it appearing that as between solicitor and client no part
of that bill could have been recoverd, the Court refused to interfere
with the taxation.^

1 Re Bacon, .'{ Cliaiii. Rep. 79.

2 Dewar v. On, 3 Chun. Rep. 141.

3 Sptnce v. Clemow, 15 Grant, ,5S4.

^..ft-J

MEtHOD or TAXATION.

1547

Method of Taxation. < - "

There are two methods in which the order as to the taxation of
costs may be drawn up, — sometimes it is referred to the Master
to tax the costs, and at other times the taxation is only referred to
him " in case the parties differ about the same." , ., j ■ >

Where the Court refers it to the Master to tax the costs of a
party, the solicitor of the party who is to have them, must deliver
a bill of his costs to the Master, who is to tax them, and who
furnishes the other side, if desired, with a copy. The attendance
of the parties interested, or the solicitors, at the taxation, is
enforced by warrant, in the same manner as their attendance upon
other references, which must be renewed as often as may be neces-
sary till the completion of the taxation.^

Where the decree orders a party to retain his costs, when taxed,
out of the balance in his hands, and to pay the residue into Court,
if he delays to get the costs taxed, the proper course is for the
other party to move that he may bring his bill of costs to be taxed
within a limited time.^

i

Where a Master is directed to tax costs, ** in case the parties
differ about the same," the order of proceeding is pointed out by the
English 67th order of 1828, as amended in 1831, and is as follows :
" The party claiming the costs must bring the bill of costs into the
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,
and may take a copy thereof, if he thinks fit ; and must, at or
before the expiration of the eight days, or such further time as

1 Prao. Rei^. 146.

2 A'ewgume v. Shearman, 2 S. & 8. 96. In this case the application was, that the defendant miglit

pay the whole sum due from him into Court ; but the motion was refused as inconsistent with the
order.

3 In Aubrey v. Hooper, 5 Russ. 1, it was insisted, that, by the practice as it eiisted before the order,

the party claiming the costs ouffht not to carry in bis bill to the Master, till he has given the other
side an opportunity of examining the same, by furnishing him with a copy of it ; and it was
contended that the same practice ought to continue under the new order ; but, from a certificate
of the Clerks in Court then produced, it appeared that, under the old practice it was not incumbent
upon the party claiming the costs, to talie a bill of costs to the party required to pay the same ;
or to his solicitor, but the party claiming the costs was at liberty to talce the bill of his coets into
the Master's Office in the tost instance, and it was the practice of the Master's Office to proceed in
the taxation of such it bill, as in any other ordinary case, upon warrants being taken out for that
purpose. The Court, therefore, decided that, under the new order, the party to raoover theoosts
need not to give to the other party a copy of his bill before carrying it to the Master^B OfBoe.

^
'^

lo4K

COSTS.

It'

T

: f_

the Master shall in his discretion allow, either agree to pay the
costs or signify his dissent therefrom, whereupon he shall be at
liberty to tender a sum of money for the costs ; but, if he makes
no such tender, or if the other party refuses to accept the sum so
tendered, the Master is then to proceed to tax the costs, according
to the practice of the Court ; and, in case the taxed costs shall not
exceed the sum tendered, then the costs of the taxation are to be
borne by the other party.

An order directing the costs of a suit to be taxed, warrants the
taxation up to the time of the Master's making his report,^ and
this it has been held to do, notwithsanding a reservation of sub-
sequent costs, "not provided for by the decree," there being other
costs by which these words might be satisfied.^ Where susequent
costs are not intended to be given, the direction should be confined
to costs up to the decree, and the question as to subsequent costs
should be reserved.* *

An order directing the taxation or payment of costs by two or
more parties, is joint and several, and, if one of them dies, the
costs may nevertheless be taxed and recovered against the others;*
therefore, where, in a suit by several plaintiffs, the costs of the
defendants were ordered to be taxed and paid by the plaintiffs, one
of whom died, but the Master, nevertheless, proceeded with the
taxation of the costs, an application to quash the Master's certifi-
cate was refused, the Court being of opinion that the proceeding
was regular.* Upon the same principle, in a tithe suit, where there
was a general decree for the taxation and payment of costs by all
the defendants, and they all died, but one, an application by the
survivor to have the costs of the defendant apportioned, so as to
relieve him from the costs of the other defendants, was refused.*

A bill of costs should be prepared from the entries of payments
and attendance in the solicitor's own books.^

The plaintiffs, however numerous, can have but one bill of costs :
and the same rule applies to defendants appearing by the same

1 QuarreU v. Beckjdrd, 1 Madd. 286, and vide Clutton v. Pardon, T. & R. 801, 4.

a qntarrell v. Bet^ord, «M lupra. 8 Ibid, et vide, Seton on Decrees, 40.

4 rids PooU r. Franks, 1 Mofi. 7a ♦ 6 Mereduth v. Hughei, 3 Y. & J. 188.

6 Mioha V. BulUn, 6 Price. 87. » -» .

7 2 Smith, Pr. p. 644.

METHOD <>l«' lAX.VnOX.

1549

solicitor, however large their number, or however diversified their
interests : thus, if one solicitor is concerned for any number of
defendants, whatever their interests may be, he is only untitled to
one bill of costs for them all, although he may, in that bill, charge
for separate answers of any of them, or for the employment of
sei)arate counsel, for any of them at the hearing. In such cases,
however, he can charge only one attendance in Court for all of
them.^

If one or more of several defendants, defending by the same
solicitor, present a petition, and the rest, having a different interest
to the petitioners, cannot join in the petition, but appear upon it to
consent or to submit to the order of the Court, and all are ordered
to have their costs of the petition, the solicitor can only be allowed
one bill of costs ; nor can he be allowed for separate attendances in
Court, but only for separate briefs and separate fees to and attend-
ance upon counsel.^ '

If a town solicitor happens to be concerned as agent for two
different solicitors in the country, • r if he himself is properly con-
cerned for some defendants and as agent for others, the case is
different, and he will be allowed to bring in two bills of costs ; but he
must, from the beginning of the suit, keep the defences separate,
and take double copies of the bill, &c., as if two solicitors were
employed ; if he does otherwise, he will be allowed only one bill of
costs, and the two solicitors in the country must divide the fees
between them.'^

In taxing costs, the Master is the sole judge of the fact, whether
the business has been done, and of the proper charge to be made,
and his decision upon this subject is final. It is also the Master's
duty to inquire, whether the business was required to be done ; for
if the solicitor negligently or ignorantly takes any unnecessary
proceedings, it is the duty of the Master to protect the client from
any charge in respect of such proceedings.*

When it is referred to the Master to apportion the costs of a suit,

where part of them only are given to the plaintiff, and no costs are

- #

1 2 SmUh, Pr. 648.

2 Ibid. 3 /Met.
4 Altop V. Lord (ktford, 1 M. aiK.6e6.

It

1550

OOSTH.

«H

CkQ

given fi8 to the rest, in this case, the Master looks over all the
folios of the bill, answers, depositions and proceedings, and only
the usual fees of such folios and proceedings as relate to the matter
prevailed in are allowed.^ In doing this, however, the proper course
appears to be, to apportion the costs of all the general proceedings in
the cause, so that the party receiving the costs should have a fair
proportion of the costs of each proceeding, and not merely those
costs which were occasioned by the particular portion of the pro-
ceedings of which he is to have the costs. This principle was
adopted in a recent case, whore, in a suit for the administration of
assets, the executor was charged with interest on the balances in
his hands, and it was referred to the Master to tax the plaintiffs
their costs, as to so much of the suit as ought to charge the
executor with interest. The Master, in his taxation of the costs,
allowed the plaintiff a portion of every general proceeding in the
suit, whereupon the executor presented a petition complaining of
the taxation, and insisting that he ought to have been charged with
so much only of the costs of the suit as related to the question of
interest ; but the Master of the Kolls, (Lord Langdale,) acting upon
the certificate of several of the most experienced Clerks in Court,
who were not concerned in the cause, held that the principle of
taxation which had been adopted was right, and dismissed the
petition with costs.^ .. ■ . . , • -

•A

:%

t

i\ I

Where one solicitor appears for three several defendants, and
the bill, as to one of them, is dismissed with costs, the plaintiff can
only bo compelled to pay the costs of such proceedings as exclu-
sively relate to that defendant, and one third of the costs of the
proceedings taken for all three defendants.'* And it has been held,
that where a solicitor appears in a suit for several defendants >n*
of whom is entitled to his costs out of the fund, and the othi u,

the costs of the one entitled, are only that proportion of th osts
due to the solicitor, with which the solicitor, as between the oo-
defendants for whom he has acted, could have charged the party
entitled.*

i •I)' I 51-

V'>; . ( i'

..t/^

1 For. Rom. 206.

2 Ueighinifton v. OratU, 1 Beav. 228. Vide etiam the mode of taxation adopted in that case, as set

out m Mr. Mills' certificate, ih. 231, and 2 Smith's Pr. 340. 2 ed.; vide etlam Pitt v. Maekreth, 3
^ Bro. C. C. 321.

a 2 Smith's Pr. 642. A defendant to a suit in Chancery, appearing by the same solicitor that is em-
ployed for other defendants, is not liable to such solicitor for more than his own share ; but plain-
tiffs in a suit are jointly and severally liable to their solicitor, for the whole costs of the suit ; ib.

4 Harmer v. Harris, 1 Russ. 157.

METHOD OF TAXATION.

1 551

osts

co-

)arty

Mttt

^reth, 3

; is eni-

I pUin-

hit ; ib.

' Order 316 provides that " where two or more defendants defend
by diflforcnt solicitors under circumstances that, by the law of the
Court, entitled them to but one set of costs, the taxing officer,
without any special order from the Court, is to allow hut one set of
costs : and if two or more defendants, defending by the same solici-
tor, separate unnecessarily in their answers, or otherwise, the tax-
ing officer is, without any special order of the Court, to allow but
one answer and set of costs." It has been held that the first part
of this order applies to cases where several persons are acting in
the same interest, and where costs arts to be apportioned among
them. It does not empower the Master to deprive any one of his
entire costs where the decree gives costs generally. A surviving trus-
tee, and the representatives of a deceased trustee, are not within the
rule which prevents trustees severing in their defence at the risk of
having but one set of costs between them.^ Order 554, as to filing
a certificate of the applicability of the lower scale tariff,is directory ;
and the omission of it does not entitle a defendant, in case of the
dismissal of the bill, to the higher scale costs, except for fees of
Court actually paid.'-^ A counsel fee on hearing is not taxable until
the cause has been set down for hearing, and notice of hearing
given.* If a cause irregularly set down for hearing by the plaintiff
be struck out upon defendant's motion in Chambers with costs, this
entitles the defendant to tax costs of the application only, and not
the costs of preparing for hearing.* , ^ ,

It is to be noticed, that if, upon the taxation of costs, it should
be made to appear, that the person who acted as solicitor for either
of the parties, had not, at the time such costs were incurred, been
admitted a solicitor of the Court, the Master may disallow the
whole of such costs, except disbursements to the Clerk in Court,
although they have been actually paid by the party ,^ even though
the costs may have been incurred in a case for the opinion of a
Court of Law, directed out of this Court,® or upon an arbitration
under an order of the Court ;^ and the person acting as solicitor,

1 Reid V. >ti'phrm, 3 Cham. Rep. 372 ; and see Spencer v. Clemow, 15 Grant, 584.

2 FergtmoH v. liutledge, 18 Grant, 511. As to costs in suing infonnapaupciin, see Casey v. McColl,

3 Cham. Rep. 24.

3 Dewar v. Oir, 3 Cham. Rep. 141.

4 Frietioh v Winkler, 3 Cham. Rep. 141.

5 Prebble v. lioijhurst, 1 R. & M. 744. If the Master, upon the objection being taken, refuses to dis-

allow ,0 costs, the Court will, ujKin petition, direct him to review his report, and to disallow the
costs . question; Sumner v. Jiidgway, ib, 748.

6 Prebble v. Bughunt, 1 R. & M. 744. 7 Ibid.

I

' V

1552

COSTS.

had hefin admitted an attorney-at-law, and has since been admitted
a solicitor of the Court.^ And it seems that, even if the fact,
that the party was not a solicitor, should be discovered after the
costs have been taxed and paid, the Court will entei-tain a petition
to have them refunded.^

[It is stated, by Lord Chief Baron Gilbert,^ that, " by an order
of the Court, made in my Lord Keeper Wright's time, no excep-
tions were allowed*to a report of taxing costs ; " and " that this
rule hath ever been pursued, but with this difference, that where
the Master allows such costs as ought not to be allowed, or are not
allowable l\v law, — in this case, the Court will, sometimes, indulge
the party with liberty of excepting, touching this point only ; but
this very seldom or ever falls out, though in aome cases it hath
been done."]

The rule acted upon at present, is very nearly the same : and,
generally spc^aking, it is held, that the Mast3r's report as to costs
is final, and that exceptions do not lie to it ;* for the Master is
much more competent than the Court, to determine the proper
amount of charges. When, however, it said, that the Master's
report as to costs is final, the dictum must be understood as apply-
ing only to the quantum of costs allower. or disallowed by the
Master.' If the Master has omitted to tax the costs which have
been directed to be taxed, or if it is conceived that in taxing them
he has adopted some general principle which cannot be supported,
the party complaining has a right to b( v^.g that point before the
Court."

The question, in what manner an objection to the Master's report
of costs is to be brought before the Court, is one which has fi;iven
rise to considerable discussion.

In Pitt V. Mackreth,'' Lord Thurlow said, that an exception had
never been allowed for costs only ; and that the regular method
was, to state the articles the party meant to object to, in a petition,

1 PrebbU V. Bogkunt, 1 K. & M. 744.

2 Coatet v. Hawhjard, 1 R. .* M. 740. , , '
.t For. Rom. 206.

4 Lueai V. Templt, 9 Ves. 2M ; Ftnton v. CriekHt, 3 Madd. 4M '.AUop v. Lori Oatford, 1 M. K. 564.

6 Uoibecke t. Sylveiter, 6 Ves. 417. 6 Shetoell v. Jon«$, 2 S. & S. 172.

7 3 Bro. C. C. 821.

METHOD OF TAXATION.

1553

and to pray leave to except. In Holhecke v. Sylvester,^ a similar
doctrine was laid down by Lord Eldon, who said, he understood
the practice to be, that if the Master has proceeded upon the costs,
but has not allowed several items which are claimed, there must
be a petition ;^ and this appears to be now the general course of
proceeding in cases where objections are taken to the principle
upon which the Master acted in the taxation of costs.'

In Holbecke v. Sylvester* a distinction was attempted at the bar,
between cases in which there is an exception for costs only, and
those in which the party excepts upon any other ground ; in which
cases, it was contended, he may add an exception for oats ; but in
Lucas V. Temple,^ Lord Eldon expressed doubts as to that dis-
tinction, and, observing that frivolous objections would be taken
merely for the sake of objecting for costs, said his opinion was,
that exceptions would not lie for itemfi of costs which were items
properly falling within the description of those costs which the
Master was to tax. It is to be observed that, in the above case.
Lord Eldon lays stress upon the circumstance, that the objection
was to items of costs falling within the description of those costs
which the Master was to tax ; if the decree has directed costs, and
the Master has not taxed them at all, you may e-^cept ; this dis-
tinction was taken by his Lordship himself, in Holbecke v. Sylvester,
before referred to.

It is to be noticed, that the application to the Court, to review a
Master's certificate of taxatior , must be by petition, specifying the
items objected to, and praying for leave to except to the report, and
that a motion for leave to except will not be regular.® But,
although the general form of application to the Court is by
petition for liberty to except, the practice of the Court, if it concur
with the view taken by the petitioner, is not to put him to take
exceptions, but to refer it back to the Master, with directions to

12 6 Ves. 417.

2 It is reraarkabk, that, In the above case, his Lordship allowed an exception which had lieen talccn

to the Master's report, on the ground that, in taxing the costH of the plaintiffs (mortgagees) rela-
ting to their mortgages, he had disallowed the costs occasioned bv making certain persons, who
were necessary parties, defendants. It may be that he onnoiderecl that such disallowance was, in
fact, an omission to tax part of the costs, which were directed by the decree to be taxed.

3 Vide observations of Sir W. Orant, M.R., in Purcell v. Meiiamara, 12 Ves. 170 ; Ftnton v. Crick-

ttt, 8 Madd. 496; Ex parte Leigh, 4 Madd. 394; S/iewell v. Jones, 2 S. & S. 170-172 ; vide ettam
Biutell V. Buchanan, 9 8im. 1>)7.

4 Uli gup. 6 » Ver,. 209.
6 Attomey-Oewral v. Sroum, 1 M. i( K. 667.

g
■*t3

53

i

2'

1554

COSTS.

»»-'

tit J

'CO

review his report, and to make such alteration in it as the justice
of the case may require. " - ^ . - .,.,<!

;i-*-

Enforcing the Payment of Costs,

In England costs are recovered by svhpoena, on which an attach-
taent may issue ; or by writs of fi.fa., Elegit, or Sequestration.

In this Province no imprisonment can be made for the non-pay-
ment of money ; and costs are recovered as other moneys directed
by the Court to be paid. The reader is referred to a former part
of this treatise, where the sec. 19 of the Arrest and Imprisonment
Act (Con. Stat. U.C., ch. 24) is quoted, with the decisions under it.

ipt-

^•1

I , ' \

' V ;i ■id .'.. J...'

' .■.!., ■■■' ■>

( 1555 )

f'^yi -I'V: MJto '^ •'•■'* : '■??'"

/ ,'

CHAPTER XXXIV.

TIEHEABINOS AND APPEALS.

Generally.

Where a party feels himself aggrieved by a decree or order of
the Court, there are three modes by which he may seek to have it
either reversed or varied : namely, 1. By a rehearing in the Court
of Chancery ; 2. By an appeal to the House of Lords ; and 3.
By a bill of review.

That is the English practice. In this Province, the appeal to
our Court of Appeal stands in the place of the appeal to the Lords
in England ; and our Order 6 abolishes bills in the nature of bills
of review, as well as bills to impeach decrees on the ground of
fraud ; bills to suspend the operation of decrees ; and bills to carry
decrees into operation ; but provision is made by Order 3B0, and
several subsequent ones for proceeding by petition in cases where,
under our former, and the present English practice, a bill of review,
or a bill in the nature of a bill of review, would be used. The
practice under those orders wiii be considered in another part of
this work. It may here be mentioned, however, that the principles
which guide the English Court in proceeding by bill of review are
those which guide our Court — the only difference being that in
England the proceedings are by bill ; with us by petition. With
this explanation the English cases now to be cited will be read
without misapprehension.

Except in the instance; already mentioned, a decree or order
made by consent cannot be the subject of appeal.^

1 SteuMrt V. Forbit, 1 McN. & Q. 187 : 13 Jur. 623 ; Dodson v. Sammell, 8 W. R. 252, V. C. K. : see
h\eo Cole V. Scott, 1 MoN. & O. 618, 623, 626. As to what are consent orders, see Davit v. Chanter,
2 Phil. 645 : 1 C. P. Coop. t. Cott. 286 : 10 Jur. 976 ; and for obiiervations on the Impropriety of a
party appealing from an order which he has not opposed in theCo\irihe\ov/, awChritt't Hoipital
V. Orainger, 1 NcN. & G. 400, 462 : U Jur. 339.

74

ll

i

• 0

I

155«

GENERALLT.

I

t A. 1 ,

*

Where, upon a demurrer for want of parties, the demurrer was
allowed, with liberty to the plaintiff to amend, the plaintiff, by
undertaking, in the order, to amend within three weeks, did not
lose his right of appeal.^

It seems that a party, dissatisfied with a decree, will not preju-
dice his right to appeal, or to have the cause reheard, by consent-
ing to an order consequential upon the decree.^ Indeed, the general
rule of the Court being, that an appeal or a rehearing does not
suspend the proceedings under a decree, it would be absurd to say
that, if a party, in order to save the expense of a contest upon a
point which, supposing the decree to stand, he could not sustain,
should obey the decree, by consenting to an order^ consequential
upon it, he is by such obedience to be deprived of his right to have
the case reheard.

Where an agreement had been signed by the parties, and by
consent made an order of the Court, to submit to such decree as
the Court should make, provided it should be on the merits, and
not on any mistake in the pleadings, and that neither party should
bring an appeal : notwithstanding which, one party petitioned for
and obtained, from Lord King, an order for a rehearing ; Lord
Talbot, although he expressed doubts whether, if the agreement
had been disclosed to the Court originally, the order for a rehearing
would have been made, yet, as his predecessor, who heard the
cause, had ordered a rehearing, and thereby shown he was not
satisfied with the decree, he refused to discharge it.* ,

It is not necessary that the person who appeals should be actually
a party to the record : provided he has an interest in the question
which may be affected by the decree or order appealed from. Thus,
a rehearing of an order made on petition was directed at the
instance of a person who had not been served with it, but who
offered new evidence, and was substantially the only person in-
terested in supporting the contention which it tended to prove.*
Persons who have been served with notice of,* and creditors com-

1 Lidbetter v. Long, 4 M. & C. 286. 388; DavU y. ChanUr. 2 PbiL 545: 1 C. P. Coop. (. Cott. 286 : 10

Jur. 976.

2 IFood V. Orifith, 1 Mer. 35, 38. 3 Buek v. Fu,woett, 3 P. Wma. 242.

4 Jopp V. Wood, 33 Beav. 372. .'

6 Biimn T. Thoinas, 1 De G. J. J( S. 18 ; Kidd v. Chtyne, 18 Jur. 348. V. C. W.

REHEARINOS AND APPEAT,R.

1567

• was
ff, by
A not

pre]U-
QBent-
eneral
tee not
to say
ipon a
ustain,
uential
to have

and by
jeree as
its, and
should
>ned for
Lord
eement
ihearing
ard the
as not

ictually

juestion

Thus,

at the
)ut who
rson in-

prove.*
|)rs com-

L'ott. 286 : 10

ing in under a decree, have been held entitled to rehear the cause,
though not parties to the hill : hecause the decree affected their
interest ;^ hut a person not a party to the record must first obtain
from the Court permission to apply for a rehearing.^

In Hunperford's case,^ the creditors complained, that the pro-
perty nad not been applied as it ouj:;ht : it was objected, that they
could not come in under the decree, iind impeach it ; but it was
answered that they might : for, if the decree contained itself a
wrong disposition of the property, they, coming in as creditors,
had a right to appeal, because tlie decree bound their rights. In
Oahoync v. Tosher,* the sam(> principle was admitted ; and it was
held, that if the right of a remainder-man, or of any person entitled
to the estate in any way, is bound by the decree, he must have a
right to appeal from it, as well as the person against whom it was
made. Upon this ground, it has been held that a tenant in tail,
in remainder expectant after the determination of a prior estate
tail (who would not be a necessary party to a suit affecting the
entailed estate, against the prior tenant in tail), has a right to
appeal against the decree in that suit ; and that he may file a sup-
plemental bill, for the purpose of making himself a party to the
suit, in order to appeal from it."

It has also been determined, by the House of Lords, that a pur-
chaser under a decree, though no party to the suit, may appeal
from an order setting aside a bidding, and ordering a new sale ; "
and it has been held, that a creditor coming in under a decree, and
having his claim disallowed, may appeal from the order disallow-
ing it.^ •

It is only, however, in cases in which the interest of the party,
wishing to appeal, will be bound by the decree, that a rehearing or
appeal will be permitted, at the instance of an individual not on

1 Oiffard v. Hort, 1 Sch. & Lef. 409.

2 Berry v. Attorney-General, 2 McN. & G. 16 ; Gwynne v. EdwardK, 9 Beav. 22, 34; Hogton v.

Smitlison, 4 W. H. CiW, L. J. J. ; Parmittr v. I'armite.r, ^ He O. F. & J. 526 ; but it seems that
a shareholder, not named as a party to the proceedings, may apply to the Court to vary or
(iischarge a windin<{-up order, without applyinj,' for leave to rehear : lie Anglo-Calico, -nian Gold
Mining Company, 1 l»r. & Sm. 6i?8, 632: S Jnr. N. S. 129 ; and see Seton, lir>4.

3 Cited, 1 Sch. & Lef. 409. 4 Ibid. ; 0 Bro. P C. ed. Toml. 20.
0 Oifiird V. Ilort, 1 Sch. \- Lef. 411 ; but sec (hboriip v. Uaher, vbi imp. ; where such an apfieal was

xuiitaincil, although it does not a]ipear that any supplemental hill was filed
Hyder v. Earl Gower, 6 Bro. P. O. ed. Toml. 306 ; Barlow v. Osborne, 0 H. L Ca. 656 : 4 Jur.
N. S. 867.
7 Barl of Winehiltea r. Garetty, 1 M. & K. 263, 257.

5? ''i.

::5

m

3

1558

GENERALLY.

44.,

the record : in no other case can he have ground to complain of
the decree or order.^

A party who is poor is entitled to prosecute or defend an appeal

or a rehearing, in forma pauperis _. in the same manner that he has

a right to sue, and be sued, in that character.' In the House of

Lords, a poor person may also be admitted to sue or defend in

forma pauperis.^ ,

The grounds upon which a party may appeal from a decree or
order of the Court, or have it re-heard, are as numerous and various
as the cases themselves ; and cannot therefore be pointed out in de-
tail. In fact, wherever the Court is called upon to J.etermine a
question of Law or of fact the decision may be the subject of a
rehearing or appeal, by any party, bound thereby, who considers
himself aggrieved by it. The only case in which a party cannot
appeal from the decision of the Court is, where the determination
complained of is merely the result of the exercise of discretion on
the part of the Judge, in a case where the matter was fairly a
subject for the exercise of discretion : in such cases the practice of
the Court will not allow an appeal from the discretion of one Judge
to that of another.*

Upon this ground it is, that the Courts have adopted the rule,
that there can be no rehearing or appeal upon the question of
costs. ** The foundation of this rule, as stated by Lord Hardwicke,
in Owen v. Griffith,^ is to prevent vexation and trouble : for, as
cases in Equity often depend on abundance of circumstances,
about which the reason of mankind might differ, the question of
costs would, if it could be laid open generally, create perpetual
appeals. The operation of the rule, however, is strictly confined
to cases in which costs are to be paid by one party to another, and
do not form any part of the relief sought by the bill ; and it is

1 Earl of Winehiltea v. Garetty, 1 M. & K. 263. 267.

2 Bland v. Lamb, 2 J. & W. 402.

3 Macqueen't H. L. Prac. 269.

4 There is, therefore, uo appeal from a" order directing a question of fact to be tried before the Judge

and a special jury ; Scrubtole v. Schneider, 12 W. R. 350, L. C.

6 As to appeals fur costs, see Morgan & Davey, 106.

6 1 Yes. S. 250 ; and see Wirdinan v. Kent, 1 Bro. 0. C. 140 : 2 Dick. 694 ; WUliamty. Begnon, cited
2 Dick. 595 ; and Beatnet on Costs, App. No. 10. It is to be noUoed. that the ease of OotUd v.
Granger, in Moseley, 896, which, from the statement ot It there, appears to be at variance with
the rule laid down, is incorrectly reported : the question having been not as to the costs of the
cause, but as to the costs of the conveyance of the estate ; see Beames on Coats, Afqp. No. 12 ;
and Angell v. Davis, 4 M. Ac C. 363.

REHEARINGS AND APPEALS.

1669

ain of

appeal
he has
ouse of
feud in

jcree or
various
it in de-
rmine a
5ct of a
onsiders

cannot

nination

retion on

fairly a

actice of

e Judge

[the rule,
^Btion of
firdwicke,
for, as
Lstances,
[estion of
jerpetual
confined
|iher, and
i,nd it is

ore the Judge

iegnon, cited
i of OouM V,
parlance with
1 costs of the
|App.No.l2;

liable to exception, where any principle is involved ;* or where the
costs are payable out of a fund ; or are chargeable upon an estate ;
or are part of the relief to which a party is entitled, and the facts
of the case distinctly appear upon the face of the proceedings them-
selves : so that it is not necessary, in determining the question of
costs, upon the appeal, to enter into any investigation of the merits.^
Upon this ground, in the case of Owen v. Griffith, above cited, Lord
Hardwicke entertained an appeal by an incumbrancer : who had
brought his bill to compel the payment of his charge, out of an
estate which he had extended by elegit upon a judgment, and to
whom the Judge below had refused his costs, although he had given
him his principal and interest : his Lordship holding, that an
incumbrancer upon an estate for a just debt has a lien upon the
estate for his costs, as well as his demand ; and that, therefore,
the appeal, although for costs, air3cted the merits of the case.*

The same distinction was recognized, by Lord Northington, in
Cowper V. Scott,* and by Lord Eldon, in Jenour v. Jenour.^ In the
lattei case, the question arose upon the interest of the parties in a
trust fund, which had been separated from the general residue, and
the bill prayed, that the costs of the suit might be paid out of the
general estate : upon the hearing, the costs were ordered to be
paid out of the general estate ; but on an appeal, although the
decree of the Master of the Rolls, upon the right to the fund, was
affirmed. Lord Eldon corrected the decree, as to costs, by directing
them to be paid out of the particular fund, and not out of the
general estate : holding, that the costs were not within the common
role.

*

So, in Taylor v. Popham,^ Lord Eldon states the rule to be that
where the costs are disposed of, as subjects of relief : though they
are the subject of appeal, it is not an appeal for costs only. Id
that case, a creditor had a contingent lien upon a particular fund :
which had been appropriated to answer it ; and an order of Lord
Erskine had given, to the solicitors in the cause, a lien for their

1 Perk$ V. Stothert, 11 W, R. 1016, V. C. K.; Chappell v. Gregory, 2De G. J. * S. 111.

2 Angell v. Davis, 4 M & C. 360, 366 ; Chappell v. Purday, 2 Phill. 227, 229 : 11 Jur. 256 ^ Horn v

Coleman, 5W. R. 409, L.JJ.; Re Cant't Estate, 1 De O. F. & J. 153 : 6 Jur. N. S. 183 ; Corpora-
tion of Rochester v. Lee, 2 De O. M. & O. 427, 430 ; Chappell v. Gregory, ubi sup.; and 8«e Col-
lard V. Roe, 7 W. R. 623; L. C. & L.JJ. ; Seton, 1157.

3 See Angell v. Davis, 4 M. & C. 363 ; Norton v. (fooper. 6 De G. M. & G. 728.

4 1 Bden, 17; 8. C. nam. Cooper v. Seott, 1 Bro. C. C. 141, n.
6 10 Ves. 662, 673.

6 16 Ves. 72 ; and see Heighington v. Grant, 1 PhilL 600.

f

1560

CKNERALLY.

■'I

costs, upon the fund generally.^ The question on the appeal was,
whether they should have those costs out of the appropriated fund,
in preference to the party having the contingent claim upon it ;
and Lord Eldon's observation upon the question is : " It is quite
competent to rehear or appeal upon such a point concerning costs
as this : the Court having given costs, has applied the fond of the
party to a payment to which it ought not to have been applied."'
The same distinction was acted upon by Lord Lyndhurst, in
Barkett v. Spray f and was much considered and approved of by
Lord Cottenham, in Taylor v. Southgate,* Eyre v. Marsden,^ and
Angell v. Davis :* in the last of which cases, his Lordship founds
his judgment upon three very important circumstances which
appeared in the case : any. of which, his Lordship held, would
have been sufficient to sustain the appeal : 1st. The bill prayed,
that the defendant might restore the property in question, and pay
the costs : asking the payment of the costs, by way of special
relief ;^ 2ndly. The case was one, in which the proceedings them-
selves, without going into the details of the transaction, furnished
all the information necessary for the purpose of determining the
question; and, 3rdly. It was not a case of persona) costs, in which
the Court had ordered one party to pay them ; but a case in which
the Court had directed them to be paid out of a particular fund.**

In a subsequent case. Lord Cottenham held, that as a party inter-
ested in a fund, might appeal from a decree directing costs to be
paid out of that fund, so persons personally ordered to pay costs
might appeal from the decree, on the ground that the costs ought
to be paid out of the fund.^ The case alluded to was an appeal
from a decree of Sir Lancelot Shadwell, V.C., with regard to the
right to a certain fund in Court, which was claimed by a married
woman against her husband, as property settled to her separate
use. The Vice -Chancellor held, that the fund belonged to the wife ;
and ordered the costs of the suit to be paid by the husband, and
the trustees of the settlement. From this decision two petitions
for a rehearing were presented : one by the husband, and the other

1 See 13'Ve8. 69, 91. 2 See 16 Ves. 78. 8 1 R. 4 M. J 18, 115.

4 4 M. & C. 203. 6 Ibid. 231. 6 Ibid. 300.

■ 7 In Lancashire r. Laiicaihire, i Phili. 667, 661, 662, this waa held insufficient ; see also Umpkby v.
Waveney Valley Railway Company, IJ. & H. 264.

8 4M. * C. 362,366.

9 Pagot y. Bagot, L. C. July, 1840, MSS.

REHEARINOS AND APPEALS.

1561

by the trustees. It v/as objected, at the rehearing, that the
petition of the trustees, being in effect merely an appeal for costs,
could not be proceeded with ; but Lord Cottenham held, that an
appeal for costs, under such circumstances, might be sustained ;
and allowed the argument to go on.

Another exception to the general rule as to costs, is afforded by
a decision ^ in the House of Lords : which, although made upon
the hearing of an appeal from the Court of Session in Scotland,
may be cited as applicable to all cases, English as well as Scotch.
In that case, it was held, that though an appeal for costs only will
not lie, when costs are in the discretion of the Court, yet, where
the Court is directed, by an Act of Parliament, to give costs, it is
a proper subject of appeal, if they are not given according to the
requisition of the Act.

The above instances form the only exceptions to the general rule
of the Court, that there can be no rehearing or appeal for costs.
This rule is so strictly adhered to that the Court will not permit
il to be evaded, by coupling the appeal for costs with another
ground of appeal, which is unfounded, for the mere purpose of
giving colour to the appeal for costs. Thus, where the ground of
the rehearing was, that a defendant, charged by the decree with a
sum of money, ought also to have been charged with interest and
costs, the Coiirt was of opinion that the decree was correct as to
interest, which ought not to have been given ; but that the decree
was wrong in not charging the defendant with the costs ; and as
the claim of interest was unfounded, the costs were the only thing
in question : the decree was therefore affirmed, on the ground that
a rehearing does not lie for costs.^

The right of appeal from Chancery is confined to orders or decrees
made in a cause pending between parties ; where, therefore, an
appeal was made to the Court of Error and Appeal from an order
directing the taxation of a solicitor's bill against his client in a
particular mode, the Court dissmissed the appeal with costs.'

■ I
'a6

I

1 Tod V. Tod,l Bligh, N. S. 939 ; and see Rt Oreggon, 13 W. R. 103, L.JJ.

i WiUiam$ ▼. B«ynon, Beames ou CosU, App. No. 10 ; lee also Wwrdman v. Kent, I Bro. C. C 140.

3 Re Freenum Cragie S Proud/oot, 2 B. & A. R. 109.

1562

GENERALLY.

lUr-^

Gc. .

It mnst not, however, be assumed, from the case last quoted,
that, in all cases where the appeal for costs is coupled with other
grounds of appeal, the Court will, if it afSrms the decree upon the
other grounds, refuse to interfere upon the question of costs, if it
considers the decision below upon that point to have been wrong :
on the contrary, many cases have occurred in which decrees have
been varied as to costs, though affirmed on every other point.^
The rule, as to this, is very distinctly laid down by Lord Lyndhurst,
in Attorneij -General v. Butcher,^ where his Lordship says : ** If a
party appeals, having a substantial ground of appeal, and a fair
question to agitate, and brings in the question of costs along with
it, he may succeed with respect to the costs, though he does not
succeed in the substantial ground of appeal; but if a point is
brought forward as a ground of appeal, which, on the slighest con-
sideration, appears to have no substance, it would be too much to
vary the decree as to costs. A point is not to be put forward as a
ground of appeal, merely for the purpose of covering an appeal on
the question of costs."

A party will not be allowed to appeal piecemeal : that is, he can-
not appeal from part of a decree by one petition, and afterwards
appeal from another part, by another petition. The rule is, that
if a party appeals from a part of a decree, he admits the remainder
to be correct.*

An order for a rehearing or an appeal does not stop or hinder
any proceedings on the decree or order appealed from, unless by
special order of the Court ; but the person in possession of any
decree or order is at liberty to proceed thereon, as if no appeal or
rehearing had been granted.^ Therefore, if a bill is dismissed with
costs, the defendant may, notwithstanding an appeal, proceed to
recover his costs.^ So, also, it has been held, that the circumstance
of an appeal depending, is not a reason against the plaintiff filing
a supplemental bill for the purpose of carrying it into effect." It

1 Jenour v. Jenour, 10 Ves. 562, 573 ; Pitt v. Page, 1 Bro. P. C. ed. Toml. 1 ; Squire v. Pershall,

ib. 3M ; Wekett r. Raby, 2 ib. 386 ; Maguire v. Maddin, ib. 398 ; Leteia v. Smith, 1 McN. & G.
417, 421 ; Reynell v. Sprye, 1 De G. M. & G. 660, 688 ; Power v. ReevtB, 10 H. L. Ca. 645.

2 4 Russ. 180.

3 Norbury v. Meade, 3 Bligh, 2fll ; and seo Parker v. Morrell, 2 Phlll. 453. 461.

4 See Gtoynn v. Lethbridge, 14 Ves. 586 ; Waldo v. Caley, 16 Ves. 206, 212, 215 ; WUlan v. WiUan,

ib. 216 ; Seton, 1157 ; see also Wood v. Farthing, 8 W. R. 426, L. 0.
6 Tyion v. Cox, 3 Madd. 278 ; Dumter v. Mitford, cited 3 Madd. 278; Archer v. Uvdton, 8 Beav.

321 ; Bainbrigge r. Baddeley, 10 Beav. 36.
« Woodward v. Woodward, 1 Dick. 33.

REHEARINGS AND APPEALS.

1563

linder
)88 by
)f any
)al or

with
[eed to
Istance

filing
it.« It

iershall,
Its. & G.

Willan,
I, S Beav.

is, also, a general rule, that a party does not lose the right of
apeal, by acting on an order.'

The Court, however, will, in some cases, upon special applica-
tion of the appellant,^ suspend the proceedings under a decree or
order pending a rehearing or appeal. Thus, it has been held, that
although a party may proceed to recover his costs, the Court will,
when the appeal is lodged before any step takeu> order the pro-
ceedings to be suspended.^ Similar applications have, however,
been refused.*

The Courts, however, are very unwilling to suspend the execu-
tion of decrees ; and will not do so, except in cases where there is
danger of the object of the appeal being defeated, before the appeal
can be heard. Where that is the case, the Court will suspend the
execution of a decree or order, pending an appeal : thus, where the
object of a demurrer is to take the opinion of the Court upon the
liability of a party to make the discovery required by the bill, the
Court will suspend proceedings to enforce an answer, pending the
appeal from an order overruling the demurrer.^

So, also, where there would be danger of irreparable mischief.^
In cases of injunction, for instance, and, still more, of orders dis-
solving injunctions, an appeal ought almost always to bo per-
mitted to stay execution.' Upon this ground, likewise, where the
Court has directed the sale of property, it will suspend the sale f
or where property of a perishable nature is ordered to be delivered
up, it will direct security to be given for the amount of the pro-
perty.® And so, where specific performance of an agreement for
a sale has been decreed, it will suspend the execution of the con-
veyance till [after the appeal : although it will not suspend the
other proceedings in Chambers.'® Where, also, a bill for specific

1 Mtutennan r. Price, 1 C. P. Coop. t. Cott. 358, and cases referred to, ib. 360, et sea., particularly .

White V. Li$le, S Swsnst. 348 ; and Brophy v. Holmes, 2 Moll. 1 ; and see Buttin v. Masters, 2
PhUl. 290 ; Parker v. Morrell, 2 Phill. 4.53, 462.

2 Rowley v. Adains, 0 Beav. 348 ; Smith v. Earl of Efflnghamjli Beav. 82, 86.

3 Dunster v. Mitford, cited 19 Yes. 447 ; and see Roberts v. Totty, 19 Ves. 446 ; see also Meade v.
• Norbury, 4 Pri. 322.

4 RoberU v. Totty, 19 Vcs. 446 ; Herring y. Clobery, 12 Sim. 410, 412; Piniett v. Wright, 4 Hare, 160.
6 Wood V. Miltter, 1 J. & W 036 ; King cif Spain v. Maehado, 4 Kuss. 560 ; see, however, the judt;-

ment of Lord Lyndhurst, in Qarcias v. Rieardo, 1 Phill. 498 ; and see S. C. 14 Sim. 628 ; Wal-
bum V. Ingilby, 1 M. Ac K. 61, 79, 81.

6 See Wood v. Griffith, 19 Ves. 550 ; Way v. Fay, 18 Vcs. 452.

7 Walbum v. Ingilby, 1 H. & K. 61, 84 ; but see Oalloway v. Mayor of London, 11 Jur. N. S. 637 :

13 W. R. 933, L. JJ.

8 Nerot v. Bumand, 2 Russ. 66 ; Rowley v. Adams, 9 Beav. 348.

9 Nerot v. Bumand, vbi sup. 10 Otoynn v. Lethbridge, 14 Ves. 586.

t

i;»

•fji

1564

OENBRALLT.

CI

performance of an agreement for a leatie h&d been dismisBed, an
action of ejectment was stayed ou terms during the pendency of
an appeal to the House of Lords.^ Tt seems, however, that it is the
duty of the Court to exercise its discretion according to the cir-
cumstances of each particular case ; and that no general rule can
be laid down upon the subject.' '

Where a bill seeking an ^injunction has been dismissed at the
hearing, the Court of Chancery has no jurisdiction to make any
order binding on the defendant, during the pendency of the plain-
tiff's appeal to the House of Lords ; and if the plaintiff intends to
appeal to that House, he should apply to have the order dismissing
the bill so framed as to maintain the jurisdiction of the Court,
pending the appeal.'

Although the effect of an order was to remoTe a stop placed on
a large sum of money, which had boen impounded in the Court of
Common Fleas, and to enable the defendant to obtain uncontrolled
possession of the fund. Lord Brougham refused to suspend the
operation of the order till the hearing of the appeal.* In comment-
ing on that decision, in a later case,^ his Lordship observed, that,
if the application was granted, it would really amount to deciding
the matter the other way. " It would be all which the party
opposing had contented for : it would give him the very stop upon
the fund for which he had in vain been struggling, and expose his
adversary to the delay against which he had successfully striven :
it would be a reversal of the decision, under the form of staying
execution."

The Court, also, has refused to suspend the distribution of a
fund by a trustee for charitable purposes, pending an appeal, unless
there is something, as to pecuniary means, in the situation of the
party who has to make the distribution, which authorises an infer-
ence that, if he should thereafter be found to have made a wrong

1 Price V. Sahubui-y, 11 W. R. 1014, M. R.

2 Mayor, dec, of Gloucester r. Wood, 3 Hare, 131, 153 ; 1 I'hill. 498, 496 ; see alio McGregor v. Top-

Aarn, 4 Hare, 162 ; AttomeyOeneral v. Monro, 12 Jur. 318, L. C. ; Prenderaatt v. Luthington,
ib. 385, L. 0. ; Stvijt v. Grazebrook, 3 McN. & O. S ; Stainton v. Chadwick, U>. 848 ; Portarling-
ton V. Darner, 11 W. R 869, V. C. K.; 12 ib. 391, L. C. ; Finch v. Shaw, 20 Bear. 666 ; Bauer v.
Mitford, 9 W. R. 136, V. C. K. ; Lord v. Colvin, 1 Dr. ft Sm. 476 ; De Mattoi v. Gibion, I J. k
H 79, 80.

3 GaUoway v. Mayor, <be., of London, ttbi (up.; and Me Oddie v. Woo<i/ord, 3 M A C. 684, 016.

4 King o/ Spain v. Machado. cited 1 M. & K. 86, n.
6 Wamm V. Ingilby, IM. ji K. «1, 84.

REHEABINOS AND APPEALS.

1565

i

V. Top-
thington,
tarling'
Bauer v.
k, 1 J. *

616.

distribution, he would not be able to furnish the means of setting
it right.^ So, uIho, where a legacy was ordered to be paid out of
Court, and the decree was appealed from, the Courl allowed it to
be paid out, notwithstanding the appeal.^

Where, however, the circumstances make it expedient, the Court
may require a party entitled to receive a sum of money or costs,
to give security for the payment, if the decree should be reversed.

In like manner, where a decree was obtained by an equitable
mortgagee, for the payment of principal, interest, and costs,
within a fixed time, in default of which the estate was to be sold,
the Court refused to suspend the execut on A the decree ; but gave
six months, on the defendant's bringing the money into Court, con-
senting to a receiver, and paying the interest aud costs : the plain-
tiff undertaking to repay, if the decree should be reversed.'

The Court will never suspend proceedings ^under the decree, on
the mere ground that, if they are prosecuted, the parties wiU, if the
decree is reversed, be put to unnecessary expense. "^ Thus, it is not
the habit of the Court to suspend the taking of an account.' Nor
will it suspend the proceedings under a decree directing the specific
performance of a contract : at least, it will not go further than to
direct the execution of the conveyance to be stayed.'

Mehearings and Appeals in the Court of Chancery.

Until recently in England rehearings in the Court of Chancery
were, necessarily, either before the same Judge, or before the Lord
Chancellor ; but now, the Lord Chancellor, and the Lords Justices
of the Court of Appeal in Chancery, constitute the Appellate
Court.' It is not, however, necessary that the Lord Chancellor
should sit together with the Lords Justices ; but all the jurisdiction,

1 Waldo V. Caley.lt Ves.20«, 216.

i Way V. Foy, 18 Ves. 462 ; aud see.Suisee v. Lord Eowther, 2 Hare, 438 ; Stri/t r. Oraubrook, S McN.
& a. 6 ; Gibbs v. Daniel, 9 Jur. N. S. 832 ; 11 W. R. 653, L. J. J. ; Taylor j. Midland kaUway
Coniiiiany, 20 Beav. 219 ; Monypenny v. Monypenny, 8 W. R. 430, V. C. W. ; RalU t. (IniveriM
Marine Assurance Company, 10 W. R. 327, L. J. J. ; Lord r. Colvin, 1 Dr. & Sm. 476; Mackintoih
V. Great Western Railway Company, 11 W. R. 10S9, L. i.

3 Monkhoute v. Corporation of Bedford, 17 Ves. 380.

4 The appellant, however, upon a petition of rehearing, is always reqoired to giye an unr* irtaking to

pay sueh costs aa the Court aliall award, in respect of any proceeding[s had since the decree or
order. Price t. Dewhurnt, 4 M & C. 388 ; Setoti, 1168 : and see Corporation of Gloucester r. Wood
1 Phil. 498, 497.

6 Herot V. Bumand, 2 Buss. 60, 68. 6 Owynne ▼. LttMridge, 14 Vm. 6S6.

7 14 & 16 Vic 0. 8S, s. 1.

1566

IN THE COUHT OP CHANCBRY.

powers, and authorities of the Court of Appeal may be exercised,
either by one only of the Lords Justices and the Lord Chancellor,
sitting together, or by both Lords Justices sitting apart from tne
Lord Chancellor, either in his absence or firing the same time as
he is sitting ; and the Lord Chancellor may also, by himself,
exercise all the jurisdiction, powers, and authorities he vormerly
had.^ Since the creation of this Court, appeals are usually marked
for rehearings before the Lords Justices ; unless appointed to be
heard before the Lord Chancellor or the full Court.^

An appeal lies from the decision of this Court to the House of
Lords, in the cases in which the like decision of the Lord Chan-
cellor vvould have been subject to appeal.'

The decision of the majority of the Judges of the Court of
Appeal is taken and deemed to be the decision of the Court ; and
if the Judges of the Court are equally divided in opinion, the
decree or order appealed from is taken and deemed to be affirmed. *

It appears that, when once a case has been decided by the Court
of Appeal, however constituted, it will not be reheard before the
same Court in another form ; but, when no decision has been given,
a rehearing before the the full Court may be obtained.^

In this Province, rehearings are before the full Court ; and in cer-
tain cases an appeal lies to the " Court, of Error and Appeal," es-
tablished by ch. 13 of Cou. Stat, of U. C.

If a party is dissatisfied with a decree or order, the proper course
where it cannot be rectified in the manner already pointed out, is
to rehear the cause. This he may do, whether the d ^cree or order
is made upon the hearing of the cause, or of a motioii for decree, or
of a demiirier or plea, or upon further consideration, or upon excep-
tions. A decretal order cannot, in fact, be discharged in any other
manner ; and where an attempt was made, by motion, to discharge

1 14 & 16 Vic. c. 3, s. 1. The Court of Appoal may call to ita assistance, if necessary, one or more of

the Common Law Judges : ib. s. 8.

2 Seton, 1153. The sittings of the Court of Appeal are reinilated by the Lord Chancellor : see 14, 15.

Vjc. c. 83, s. 12.

3 Ibid, 8. 10. 4 Ibid, s. 9.

C Slann v. Bell, 2 Dc G. M. .': G. 775, 783 : 16 Jur. UO.S, 1105. The Court has no jurisdiction to correct
an error iu an order of </ho Lord Chancellor's : A tforney-Oemral v. Mayor, dio., of Emttr, ti L.
J. Ch. lis, L. JJ.

REHEARINGS AND APPEALS.

1567

an order, pronounced by consent upon further directions, on the
ground that the party had been surprised, Lord Thurlow refused to
make the order upon motion : although he appeared to think, that
where anything is inserted in a decretal order, as by consent, to
which the party has not consented, there must be some way of rec-
tifying it, namely, by bill of review ; but that it cannot be done by
motion.*

The same rule, also, prevails where the order is made upon a peti-
tion -.^ in which case, the proper course is to rehear, in the same
manner as upon a decree or decretal order.

Orders made upou motion are not proper subjects for a rehearing ;
but may be varied or discharged, upon application, by motion,
either to the Judge who made the order, or to the Court of Appeal.

A rehearing ought never to be resorted to, where the defect, in
the decree or order, is one which can be remedied by any of the
methods before pointed out ; and, as a general rule, it cannot be
obtained till the decree or order has been passed and entered.
Thus, in Robinson v. Taylor^ the Court refused to allow a cause
to be re-argued, upon a petiti' n to alter the minutes ; and the same
rule was laid down, by Lord i^ldon, in Taylor v. Pophatn,^ where
an application was made, whilst the decree was in minutes, to rehear
a cause heard by Lord Erskine.

A rehearing can only take place for the p^'^ pose of altering the
decree upon grounds which existed at the time when the decree was
pronounced. Where, therefore, the object, is not to correct the de-
cree, but to remedy a grievance consequent upon it, resulting from
circumstances ex post facto, and not making part of the case as it
originally stood, a rehearing will not be permitted : in such a case,
a new bill must be filed.^

Where the objection to a decree is upon matter of law apparent,
or a mistake in law, to be collected from all the pleadings and evi-
dence, the decree not being signed and enrolled, it is the subject of a

1 Anon. 1 Ves. J. 08.

2 Bithop V. WmU, 2 Ves. S. 113. 3 1 Ves. J. 44.

4 16 Ve8. 72 ; and sm Commi»moner» o/Charilabk Dotiationsv. Uunter, 1 Dr. & War. 644 ; ice ulau

Re Riaea Coal Company, 8 Jur. N. S. 900 : 10 W. R. 701, L. C.
6 JSoioyer v. Bright, 18 Pri. 316 ; Home v. Barton, 8 De G. M & Q. 687 : 3 Jur. K. S. 1032.

;1

1668

IN THE COURT OT CHANCERY.

..$m

-t

rehearing ; and there is no occasion for a bill in the nature of a bill
of review ; unless a supplemental bill is also necessary, to introduce
new facts : in which case, the cause will come on to be heard upon
the matter of that supplemental bill, together with the hearing of
the original cause.^

It will be observed that supplemental bills are still in use in
England, but our Order 6 abolishes supplemental bills ; original
bills in the nature of supplemental bills ; and bills of revivor and
supplement; and Order 337 and subsequent orders provide a simple
mode of securing the objects which are gained by the English mode
of proceeding by bill. The English cases are, however, applicable
so far as principles are concerned : — it is only in the mode of work-
ing out these principles that the difference occurs between the jiro-
ceedings in England and those in this Province.

Our Order 322 provi<le§ that — " A rehearing may be had, as well
after as before enrolment ; but n , second rehearing is to be had
without leave of the Court granted upon special motion for the
purpose."

This order alters our former and the present English practice, for
by it there can be no rehearing of a decree or order of Court aftei-
it has been enrolled.

The Court seldom allows more than one rehearing, whether the
second hearing was before the Judge who heard the cause originally,
or before the Lord Chancellor or Lords Justices by way of appeal
It nmst not, however, be understood, that the power of the Court to
direct a rehearing is limited to one only : the practice of doing so
is only a general, not an intiexible rule ;^ and there are many cases
in the books in which it has been departed from ;■* and it seems that
there is no positive restriction with regard to the number of re-
hearings ; that the granting or refusing .of a rehearing is in the dis-
cretion of the Court.* This, however, is not the case, after a cause

1 /'erru v. I'helipi, 17 Ves. 173, 178 ; Head v. Goillfi', ,]oUm. r..'i<!, fi"'.).

2 I'ui- Lord Klilon, in Waldo v. Calet/, 1(( Ves 214 ; m:o also Gilh. For. Rom. 183.

3 .\<)rl V. Robiiiso,., 1 Verii. l)i), 94, n. ; Hjitmi v. h'.ijton. 4 IJro. V. V, ed. Toinl 14i) ; iMihl I'^ai luiid v.

Lord Cfi'iirii. .) ih. 47<i ; llnwil v. Homl, 1 Dick. 42(i ; Oincrnd v. llardinan, 5 Vus. 722, 72.'» :
Rnmm v, li'uigK, H Ves. .'ilil ; MV.'. : Kokt India Ciiitipnni/ v. Jloddaiii, 13 \'cs. 421 ; Machthiiili v.
TnwfMfnd, It) Ves. .S,30 :!:il : lilackburii v. ./-//xon, 2 V. A B. 3r>9 ; Ih'ernurnt v. Dukr i,f St. A Iharm,
2 K. Hi M. 702, 700 ; Fuiler v. »iUix, U Jur. 23), L. 0. ; iMi^hertf v. lirvokinj, 7 l»u 'i.M. & G.
(J73;2 Jur. N. H. 7«. "

4 MilU V. Baitkt, 3 I'. Wiiw. s.

sp..

!«■

RKHEARINGS AND APPEALS.

1569

\ In lid V.
\>. Ti:> ■
L((i«/i V.

.\: a.

has been already reheard before the appellate tribunal : in such a
case, a second reliearing will not bo permitted, unless leave has
been previously granted \>y the appellate Judge, upon a special ap-
plication for that purpose ;^ which may be made ex parte.^ This
rule applies, whether the decree upon the first rehearing had the
effect of overruling, or of affirming the onginal decision ; and is now
so well recognised, that, in Moss v, Baldocl'^ Lord Lyndhurst
ilirected a petition of appeal to be taken off the file for irregularity
because it had been presented without special leave, after (me re-
hearing.

Order 324 provides that — " Re-hearings of causes are to be wnthin
six months after the decree, or decretal order has been passed and
entered ; and applications in the nature of le-heaiings to discharge
or vj .y orders made in Court, iiot being decretal orders, are to be
within four months from the passing and entering of the same; or
within such further time as the Court or a judge may allow upon
special grounds therefor, shown to the satisfaction of the Court or
jufge."

In England, five years are allowed after tlie decree to bring the
cause to a re-hearing, but the Court may, where it appears just and
expedient, enlarge that period. Thus a re-hearing w^as permitted
after the expiration of the five years where a declaration which was
prejudicial to the appellant, and unnecessary for the determination
of the question in the cause had been inserted in the decree ;* and
where there was a manifest error in the decree, and the fund was
still in Uourt, the Court allowed a re-hearing, although thir'y years
had elapsed since the decree was pronounced.^ The application for
leave was made ex parte.^ This (Jourt will, by analogy to cases of
appeal, in a proper case grant leave upon terms to re-hear a cause,
though the usual time therefor has elapsed.^ Leave to re-hear ws
^iven when the time for re-hearing expired a few days before re-
liearing term, and the delay had not really affected the progress of

1 ByJUld V rrovin. :1 M. & C. 437 ; Dee.rhuM v. Duke nf St. Albam, 2 R. * M. 702.

•2 Ex (Mrte Bedey, 3 McN. & G. 287. 296. 3 1 J'ltil. 118.

4 Walrntley v. Foxhall, 1 De G. J. & S. 4.51.

J Brandon v. Brandon, 7 I)e O. M. \ O. 36A ; 2 Jnr. N. S. 981 ; see also Mills v. Bankn, 3 P. Wins. 1,

2; Searinbrick v. Lord Skfltnendale, 4 Y. \ e Kx. 78, 106; Kelly v. Lcnnnn, 1 Jo. k Lat. 305, 33.S;

(ixoynne v. Edward*, U Iteav. 22, 34 ; Townlm v. Bedw»U, 16 Bt-av. 78 : Turner v Turner, 2 Ue

a M. &G 28, 3r>;l.. Jur. 711.
0 Brandon v. Brand<y>i, ubi mtp. ; am' ae« Stom v. Benhoto, 1 W. K. llli, L. C. & L. J J.
7 WitU*rt T. Km^pdon, f. B. Sociftu, 1 Chaui. Rep. 214.

!«

a
6

■f'..
H

1570

IN THE COURT OF CHANCERY.

!C5

a^

the cause, there having been no sittings to re-hear causes in the
interval.^

Order 325 provides that — " Where a decree or order is not passed
and entered, within one month from the day judgment is pro-
nounced, the time allowed for re-hearing the cause, or varying or
discharging the order is to begin to run at the expiration of the
month."

It will be observed that the English cases speak of a petition for
re-hearing, but this is done away with in this Province ; for order
32G provides that — " No petition for re-hearing is to be presented ;
but a party desiring to re-hear a cause is, after paying into Court a
deposit of forty dollars, to set the cause down for re-hearing and
serve notice thereof" And order 327 that — " Where a party seeks
to vary part only of an order, he may, in the notice of re-hearing,
state the part of the order which he seeks to vary."

A motion to rehear a cause after the time limited for rehearing
has expired may be made ex parte.- A motion for leave to rehear,
notwithstanding more than six months will have elapsed from the
date of the decree before the then next rehearing term, was granted
where it appeared that judgment had been given but a short time
previous to the last rehearing term.^ A vacancy occurring on the
Bench was deemed a sufficient reason for not rehearing at the first
rehearing term after the decree drawn up ; and the time was, on
application, extended.* Where it was shown that a decree, not
enrolled, which had been pronounced in 1855, was clearly erroneous,
an order was made for rehearing the cause notwithstanding the
lapse of time.^

A rehearing may be obtained, after the decree has been carried
into execution ; and we have seen that after the trial of an issue,
the Court has permitted a petition, for a rehearing of the order
directing an issue, to come on for hearing, at the same time as a
motion for a new trial of the issue.** So, also, where the Court, by

1 Stevemon v. Miehol, 3 Chum. Rep. 183.

2 Dickson V. linrnham, 2 Cham. Rep. 436.

3 Fleming v. Dnnnan, 3 Cham. Rep. fi3.

4 liomanes v. Frai>er, 3 Cham. Rep. .OS.

5 Cameron v. Wolfjuland Canal Companp, 3 Oham. Rep. 64

mitUii

« White V. Linle, 3 Swanst. 342, 301

m V Haaten, 2 I'hill. 290 ; Parhtrv. Morrell, ib. 463.

REHKARINCiS AND APPEALF.

1571

larried
issue,
order
as a

Irt, by

(leciee, directed the bill to be retaincMl, with liberty to the plaintiff
to bring an action, which he did, and failed, the Court perniitted
the cause to be reheard : although it was objected, that the plaintiff'
having acted under the decree himself, by bringing the action, could
not be heard to dispute the ])ropriety of it.^ But where a decree
directs inquiries, the Court will not be disposed to reverse it, after
the inquiries have been made.

. Order 328 provides that — " A defendant waiving ail objections to
the order to take the lull piv miifessu, and submitting to ])ay such
costs as the Couit directs, may have the ca;'se lelieartl upon the
merits stated in the bill."

After a cause had been heard and relieard before Jameson, V.C.,
and again re-heard before this ( Vuirt, a third re-hearing was ordered
under the peculiar circumstances, Only one rehearing will be per-
mitted, as of coui"se.'- Where a decere is sought to be changed from a
sale to a foreclosure, the cause must be set down to be reheard, and
notice served on the defendant, and that, too, although the bill has
been taken [>vo co/i/c'-s.so.-* Wlicre a cause is reheard by some of
several defendants, and the Court affirms the decree as against them
the other defendants who did not reliear cp.iuiot obtain any relief
although they appear at the rehearing and ask it.^ The deposit on
was divided under special circumstances."' Rehearings orapi)lications
to discharge orders made iu Chambers nuist be set down for a day,
which falls within the j)eiiods prescribed by the Orilers of 9th May,
1862, and 20th Feb., 1865, and it is not sufficient that the ca.se
should be set down, and the notice ther<-'(jf .served within such
periods.^ In a suit for the administration of a debtor's estate, under
an assignment for the benefit of creditors, creditors who come in
under a decree 'uay reheai the cause : and this is the proj)er coui-se
where the alterations is such as might be effected in that way by a
party to the cause." After carrying the decree into the Ma,s-
ter's office the plaintiff was proceeding to take the accounts
directed thereby. (Sec; 0 (Jrant, GOO). The defendant pre-

l Rrophfi V. tlolliien, 2 Moll. 1.

•1 Cnolc V, Walxh, 2 (Jiant, 025. H MeLflnn v. .facohx. f) Grant, M.

4 UUtck, V. Black, i) Giant, 403.

.5 rill' G. W. Jiniliraii v. D,'nja-d!nH Canal T..., ft Grant, nj.'l.

8 Ite I). 9. Miller, 12 Grant, ' i.

7 iiulhnlland v. UatnUton. l1 Grant, 413.

Zi

is 3

5

1572

IN THE COURT OF CHANCERY.

sented a petition of re hearing which was ordered, and the cause
set down in the usual manner; whereupon a motion was made to
stay further proceedings in the Master's office until after the cause
had been re heard. Spragge, V.C, refused to stay the taking of the
account, but intimated that no report need be signed, the defendant
using due diligence to have the cause re heard.^ A decree was
pronounced setting aside a conveyance, and the defendant being dis-
satisfied therewith, obtained a re hearing of the cause. Upon the
re hearing, the decree originally pronounced was affirmed with costs
and a further direction made that f ' defendant should execute a
conveyance to the plaintifi;^ A pari/ is entitled to have a cause re-
heard before this Court, which has already been heard and re heard
by the Vice-Chancellor alone. But only one rehearing will be per-
mitted, as of course.^ Where a decree of foreclosure against an infant
defendant did not reserve a day after his attaining 21 to show cause
and upon his attaining his majority the defendant applied upon
afiidavits to put in a new answer, and raise a fresh defence. Held,
(Blake, C, absente), that the relief could not be obtained without a
rehearing of the cause, and the motion was therefore refused with
costs.* Upon the rehearing of a cause, where a decree for foreclo-
sui-e did not reserve a day to the infant : Held, (Blake, C, dissen-
tiente), that in decrees of foreclosure against infant defendants, a day
to show cause after obtaining twenty-one must be reserved to the
defendants.^ >

-1

Order 323 provides that, " Rehearings of causes, and applications
in the nature of rehearings to di*«!harge or vary orders made in
Court, or in Chambers by a judge, are to be in rehearing term only
unless some special day be appointed b}'^ the judges for the pur-
pose."

And Order 413, that " Tlaere are to be three rehearing terms in
each year, commencing resinectively as follows :

" I. The third Thursday in February ;
" II, The last Thursday in August ;
" III. The first Thursday in I>?cember.

1 Campbell v. Campbell, 1 Cham. Rep. 30.

3 Cook V. Walsh, 1 Orant, 209,

5 Ibiil. Affirmed on appeal 26 February, 1852.

2 Harkin v. Jiatuion, 7 Orant, 24S
4 Mair v. Kerr, i Grant, 228.

M

REHEARINGS ANT) APPKAT-S.

1573

btions

Ide in

only

pur-

Irns in

Where an appeal is tlisniissed without costs, the deposit will be
returned, unless the (Joint makes a special order to the contrary.^

An appeal may be allowed in forma pauperis,^ and without
making any deposit.^

A married woman api)ealing hi forma pnuperla pi'osecutes the
appeal, without a next friend.'* A married woman allowed to defend
an appeal m forma jxtwper is, on its dismissal obtained (/ives costs.'^

An infant may also, it seems, appeal in forma pauperis ; but a
next friend is required.**

Where the appeal is against the whole decree, the cause is, in
ordinary cases, actually reheard : that iS, the case is stated, and the
cause proceeded with, exactly as if it were an original hearing. The
general rule is, that the appellant is entitled to begin.^ The only
exception is, where a defendant api)eals from the whole of an origi-
nal decree : the reason being, that, in such a case, the plaintiff* may
adduce new evidence, and shape his case differently.^ It is, however,
in the discretion of the Court to vary these rules." An appeal from
the whole decree except as to costs, is, for this purpose, treated as an
appeal from the whole decree.^"

All parties interested in supporting the decree or order appealed
from are entitled to be heard ;^^ but no party, except the appellant,
can be heard in sujiport of the appeal. If, therefore, any party,
who is not included as a co-petitioner in a petition of rehearing, is
desirous of a[)pealing, he must present a separate petition : other-
wise, he will be precluded from all benefit of the ajjpeal, even
though the result of it should be to show that the decree was com-

1 IMl V. Barluw, 2 K. & M. C80; Rattenbury v. Fenton, C. P. Coop. t. Brough, 60, 64. Where the

appeal is compromised, tliu deiJtisit will he returned on a petition of course by the appellant, with
the re8i)ondent's consent suhscribed thereto.

2 Blami v. Lavih, 2 .1. & W. 402.
Bradbernj v. linmki-, 4 W. R. G!)9, I..JJ.

4 Crmtch v. Walker, 4 De (J. & J. 43 : 5 Jiir. N. S. 326.

."> Wellmlexi v. Welhdrn. 1 De O. M. Si O. 501.

6 See LindMji v. T-.irrAU -i De (!. it J. 7 : 24 Beav. 124 : 3 .lur. N. S. 1014.

V hill V Liirii M"xb<in,w/h, 1 C. I'. Coop. t. Ciitt. 246.

8 Hubert)! V. Marchatit, I'Pliil. 370 ; Lc^':: v. Suttall, 2 M. & K. 819 ; Seton, W'm. On an appeal from

the whole of an order made nii motion for decree, the plaintiff beginn : TniKteex of Birkenhead
Ihelfs V. Laird, 4 De G. M. ,«.- U. 7yj On an appeal from an order on further consideration, the
appelant's counsi'l lie-ins : Freer v. Ilesxe. ib. 495, ."^00 ; Clarke v. Bridqe, 0 Jur. N. S. 386, L.J. J .

9 Alexander v. The Duke of WelUmtton, 2 U. Ot M. 3:'., fi2.

10 Omluw V. WallU, l.S Jur. 108.1, 1086, L. C, ; S:'ahottne v. Hall, 3 Kq. & Uej). 483 : 2 W. K. 297, L. J.

J. ; contra, Grainger v. Slinasbii, 8 De (i. .M. iS; G. 38.''/.
U Allday v. Fletcher, 3 Jur. N. s!: 422, L. C.

•33

^1.

I

(fei

1574

IN THE COURT nV CIIAXCKRY.

c:>

pletely wron^, as well against him as against the appellant. Thus,
where one of several defendants appealed, and an order was made
dismissing the bill, upon grounds which were equally applicable to
other defendants, who did not join in the apjieal, it was held, that
such other defendants could have no benefit of the order, although
it might prevent the prosecution of the decree.^ It seems, however,
that if the result of the appeal had been otherwise, and the appeal
had been dismissed, or the decree only slightly varied, the defend-
ants who did not appeal would, if they had been heard in support
of the decree, have been entitled to their costs : either to have them
paid directly by the defendant who appealed, or by the i)laintiff ;
such costs to be added to the plaintiff's own costs, and reimbursed
to him by the appellant,^

Upon a rehearing, it is not, in general, competent to either party
to enter into any new evidence ; ^ but evidence taken before the
original hearing, though not made use of, may be read ;* and docu-
ments which were not in evidence at the original hearing have
been permitted to be read on an appeal;'' but for this purpose an
order to prove them as exhibits at the hearing of the appeal must
be obtained. Such an order may be ol^tained ex paiie.^ No evi-
dence will be received as to matters which have occurred since the
original hearing.^

The plaintiff, by reading on the original hearing part of the
answer as an admission, does not make it evidence upon the appeal.^

Where the plaintiffs had, through the inadvertence of counsel,
omitted to prove a will of real estate, in consequence of which the
bill was dismissed at the original hearing, they were allowed to
prove the will at the rehearing, which was postponed on the terms
of their paying the costs of 11 le application, and the costs of the day
on the original hearing: in that case, liowever, the will was not dis-

1 Tanker v. Small, C P. Coop. 255.

2 Stochni V Stnc.Ha, and Stubbn v. Sargon, cited ib. 257. As to other defeiiuants appearing' voluu-

tirily on ai. appeal, see Attonicy-Goncral v. Gibbs, 2 Phil. 327.
;{ Adduon v. Ilindmnrnli, 1 Vern. 442 ; Whitumrth v. Whyddon, 2 McN. & G. 50 : 14 Jur. 142.

4 Cvnynghaiii v. Cunnuffham, Amb. 90; Gnndycr v. Lake, ib. ed. Blunt, n. 4 ; White v. FvKxall, 1 V.

& B. 1.53 ; Hedges v. Cardonnel, 2 Atk. 408 ; Williamit v. Gnndchild, 2 Russ. 01 ; Seton, ll.i5.

5 WilliamH v. Goodchild, 2 Russ. 91 ; and see Glnver v. Daxihniey, 9 Jur. N. S. 90, L. J. J., as to re-

ooivini; new aHidavits from persons who have aliua.lj jfiveu o'videnoo.
0 Walker V. SymondH, 1 Mer. 37, n. ; 2 Y. ct C. Kx. 47H."n. ; llii/iiinH v. ilills, 5 Russ. 287 : Lovell v.
Jlickn, 2 Y. ct 0. Ex. 472, 478 ; Herring v. Clobern/, C. >t P. 251 ; CoWm v. Corby, 1 Cham. R*;p. 10

7 Latnbe v. Orfnn, 33 L. .1. Ch. 81, V. C. K.

8 Al/ren v. Al/rey, 1 AfcN. & U. 87, 93: la Jur. 269, 270.

KEHEARINGS AND APPEALS.

1676

T1\ua,
made
ible to
i, that
,hough
wever,
appeal
lefend-
lupport
e them
EiintifF ;
ibursed

puted in the cause, and the omission arose wholly from the inadver-
tence of Counsel / and in other cases, now evidence has been allowed
to be read de bene esse.^

It seems, that if, after the hearing, a witness lias been convicted
of perjury, the circumstances may be brought before the Court
ujjon a reliearing. So also, where a witness in an answer to a bill ex-
hibited against him since the original hearing, had confessed, that,
on the day he was examined, he took a bond from the plaintiff,
whereby the plaintiff bound himself, that, if he recovered the
estate in question, he would convey part of it to the witness, the
answer was allowed to be read at the rehearing to take ofi" the
effect of the witness's evidence.^

ir party
'ore the
d docu-
12 have
pose an
tal must
No evi-
nce the

of the
tppeal.^

counsel,
lich the
Lwed to
|e terms
[the day
Inot dis-

^iuy; volun-

|l4-2.
hisMll, 1 V.

ll.V).
L, as to re-

Jjovetl V.
*iu. Rep. 10

The Court of Appeal may, if it thinks fit, on a rehearing or ap-
peal, examine a party or a witness orally, although he was not
examined in the Court below.*

An application by motion or petition, whatever is its object
which has failed in the Court below, may be renewed before the
Court of appeal upon fresh evidence ; wheu, if it is successful, the
party moving or petitioning, nevertheless, commonly has to pay the
costs of his first attemjjt ; the circumstance that fresh evidence is
brought forward siifticiently showing that the application had been
made upon a defective case.^ But if the application is to discharge
an order as not being justified by the evidence which han been
used in the Court below, the Court of Appeal looks at that evidence
only which is recited in the order as having been read ; and if the
application is successful, the })arty moving or petitioning commonly
gets the costs of the motion or petition in the Court below.^

Upon a rehearing or appeal, the whole case is open to the res-
pondent : so that, if the appeal is against the whole decree, it is
competent to the Court to modi^v the decree, by making it more
favourable to the respondent.'^ Thus, where a plaintiff who had

1 Hood V. Pimm, 4 Sim. 101.

2 Daakwood v. Lord BtUkcly. 10 Ves. 230, '236 ; Riid-master v. Harrop, 13 Ves. 456, 458 ; Dawson v.

Prince. 2 De G. .V .). 41, 43 : 4 Jur. N. S. 497.

3 yeedhain v. S.nith, 2 Verii. 4(53.

4 15 c& 16 Vic. c. h(j, K. 3U ; and soe Martin v. Pyeroft, 2 De G. M. & G. 7S5, 707 : 16 Jur. 1125 ; Hope V.
q. Rep. 3(»7, li. .IT ; llindsun v. iVethcrill, IS Jur. 490, L. JJ.

, iir.*/».'«. /' t..l,:i^ .1 r>.,.,.. cii

McN. & G. 56 : 1 4
, (b) ; Seton, 1156.

Threlfall, 2 Eq

k

f

H

1676

IN THE COl'Jir OF CHANCPIRY.

succeeded in obtaining a decision against the defendant, with costs,
not being satisfied with the view which a Vico-Chancellor had
taken of the case, had the cause reheard before Lord Cottenham, in
order to obtain an alteration in tlie decree more favourable to him-
self : his Lordship, upon the reliearing, being of opinion that the
plaintifi' was not entitled to any relief at all, dismissed his bill with
costs. In his judgment, his Lordship said: "The plaintiff having
thought fit to present a p(;tition of rehearing against the whole
decree, the defendants are entitled to raise any (piestion (and
amongst others the (question of costs.) which properly arose out of
the subject matter of the appeal ; and I am bound to ileal with the
cause as if it now came on before me upon the original hearing.
Supposing that to be so, I should certainly, in dismissing the bill,
give the defendants their co«t8 ; and it is only upon those terms
that the plaintiff can be entitled to get rid of the decree which he
has impeacli-^d by his present appeal. The result is, the defendants
must have their costs of the suit up to and inclusive of the hear-
ings; but I cannot give them their costs of setting the decree
right."!

So, where the appeal is against part of the decree only, the res-
pondent may, if he considers it necessary, go into the whole case :
whilst the appellant can only go into the pai'ts complained of in his
petition. Therefore, where there were two questions in the cause,
one being whether the executor was entitled to the surplus, and
the other whether a legacy given to him by the will was in satis-
faction of a debt due to him by the testator, and, upon the first
point, the Court decided against him, because he had put in an
answer in which he admitted himself accountable for the surplus
but the second point was determined in his favour, whereupon the
plaintiff appealed against the last decree. Lord Cowper held, that it
was competent to the defendant to go into the first point : though
be eventually did not decide it in his favour.^

But as between the respondent and the parties other than the
appellant, only the point appealed from is open to the respondent.^

1 Oldham \. Stoiichmtxc, 3 M. & C. .'!17.

2 Rawlim v. PowtU, 1 V. Wms. 397, 300 • WatU \. Symcs, 1 iJo 0. M. & O. 2t0, 242 ; Hherwin v.

Shakespeare, f> De O. M. & G. 517, 523.

3 Lord Brooke v. Earl o/ Wanvick, 13 Jur. 547, L. C. ; Tanker v. Small, 1 0. I'. C<toi>. t. Cott. 61, n.

(6; ; Seton, 1165.

REHEARINGS AND APPEALS.

1577

3MtS,

had
\, in
iiiin-

the
with
iving
vhole

(and
ut of
h the
aring.
e bill,
terms

ich he

idants

hear-

decree

le I'es-
case :
in his
caune,
IS, and

satis-
le first

ir an
[urpliiB
Ion the
[that it
[though

lan the
ideni.3

pherwin v.
bott. 61, "•

Therefore, where there in an appeal against a part of a decree, and
the respondent or some other party feels himself aggrieved by
another part, the proper course is to present a cross appeal. Where
that is done, the last appeal may be brought on to be heard at the
same time with the first, and one order be made in both.^ If the
respondent chooses, when the appeal is from part of the decree
only, to go into the whole case, the whole case is then open to the
appellaat.2

At the hearing of an appeal or rehearing, the Court may give the
plaintiff leave to amend, by adding parties, in the same manner as
upon an original hearing, and may order the rehearing to stand
over for the purpose; and it has gone to the extent of allowing the
plaintiff to add the Attorney-General as a party: either by con-
verting the bill into an information and bill, or into an information
only.^

The costs of a rehearing, as well as of an original hearing, are in
the discretion of the Court; but, generally, if an appeal is dis-
missed, it will be with costs;* and the Court will not take into
consideration the fact that, in affirming the decision of the Court
below, the Court of Appeal had proceeded upon entirely different
grounds.^ Where the Lords Justices differ, the appeal is usually
dismissed without costs.®

From a certificate furnished to Lord Langdale, M. R., by the
Taxing Masters, in the case of Agaheg v. \HartiveU,'' it appears^
that as a general rule, costs of appeals, rehearings, and exceptions,
are not carried by the words "costs of suit as between solicitor
and client ;" but require to be speedily mentioned in the order for
taxation.

When evidence is used on a rehearing, which was not used
upon the former hearing, it is a circumstance which is taken into
consideration in disposing of the costs.^

1 Blackhxi,rn v. Jepson, 2 V. & B. 359.

2 Anon, 1 C. P. Coop. t. Cott. 61, ii. (6).

3 Prciident of St. Mary Maijdalen v. Sibthorp, 1 Russ. 154.

4 McCabmnt v. Rankin 2 Da O. M. & G. 403, 426 ; Borton v. Dunbar, 9 W. R. 41. L. C.

5 Cradock v. Ptper, 1 McN. & G. 684 ; see contra. Oriental Steam Company v, Briggn, 8 Jur. N. S.

201, 204 : 10 W. R. 125, L. C. As to the costs, generally, of rehearings and appeals, see Morgan
<t Davcy, 96-104.
« King v. King, 1 De G. & J. 663, 674 : 4 Jur. N. S. 721.

7 5 Boav. 271, 273.

8 WiUiatm v. Goodchild, 2 R-oss. 91; Tanner v. Carter, 1 C. P. Coop. t. Cott. 337; Martinv. Pyoroft

2 De G. M. & O. 7SS, 806 : 16 Jur. 1125. .

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1578

IN THE COUKT OF CHAiNCJSKY.

:i

M:

cr_.

..,f ^

It was formerly the practice, in no case to order a respondent to
pay costs; but according to the modem practice, there is no rule
against giving a successful appellant all his costs ;^ and a respondent
has frequently been ordered to pay costs.^

In PltelpH V. Prothevo;^ where the decree was made more bene-
ficial to the respondents than the one appealed from, their costs
were made costs in the cause, instead of being ordered to be paid
by the appellant. And where new issues were directed on the
appeal, the costs were reserved.*

In Oldham v. Stonehouse,^ where a plaintiff appealed from a
decrf • " hich had been pronounced in his favour with costs, and,
upon ofi^ I'ohearing, the respondent satisfied the Court that he was
entitled tt no decree at all, Lord Cottenham, as we have seen,
reversed' the decree, and dismissed the bill: giving the defendants
the costs up to, antl of the hearing; but he refused to give them the
costs of setting the decree right.

Where an appeal, which is dismissed, has been recommended by
the Court below, no costs are usually given. ^

Where the decree omitted to provide for the costs of an appeal
motion which had been reserved till the hearing of the cause, an order
was made, on petition, for payment thereof, notwithstanding the
decree had been em-olled.^

Where a decree is varied by the Court of Appeal, subsequent
proceedings belong, nevertheless, to the Court below, as if the order
made on appeal, had been made by that Court.** The Court of
Appeal, however, sometimes, by the order on the appeal, directs
that the further consideration be had before that Cfourt,®

1 Collitu T. Burton, 4 De O. & J. 012, 619 : 5 Jur. N. S. 1113, 1114 ; and see Morgan it Davey, 101.

2 Powell V. Lovigrove, 8 De G. M. & G. 367 : 2 Jur. N. S. 791 ; rooley v. Quitter, 2 De O. * J. 327 :

4 .lur. N. S. 346 ; fMlie v. Lenh, 3 Pe G. & J. 204 , Re Skiggn, Marriaqe v. Skiggs, 4 De O. & J.
4, 9 : 6 Jur. N. S. .326 ; ColUm \. Jhirton, 4 De G. & J. 612, 618 ; 6 Jur. N. 8. 1113: Ralli t.
Universal Marine Innvrance Company, 2 J. & H. 17« ; 8 Jur. N. S. 495, 497, L. JJ. ; Baring t.
Harris, 10 Jur. N. S. 1190 : 13 W. R. 210, L. C.

3 12 Jur. 783, V. C. K. B. 4 Parker v. Morrell, 2 Phil. 453, 4«8.
.5 3 M. & C. 317. 6 Re Colguhoxin, 5 De O. M & O. 85.

7 Viney v. Chaplin, 3 De G. & J. 282 ; S. 0. 7 W. R. 159, where the form of order is given ; Mid see

Morgan A Davey, 34.

8 Sotodon V. Marriott, 2 Phil. 623: S. C. nom Flight v. Marriott, 1? Jur. 487, L. C. ; Salktld v.

Johnston, 1 McN. & G. 242, 256 : Malcolm v. Scott, 3 McN. & G. 29, 46.

9 See Seton, 1152.

Th

ofEr

APPEALS TO THE COURT OF ER^OR AND AITEAL,

1579

Appeals to the Court of Error and Appeal.

The cases in which an appeal lies from the Court of Chancery to
this Court, and its constitution and powers, are set forth in the
Act by which it was created (Con. Stat. U. C. ch. 13) — ^to which the
practitioner is referred.

Tile practice of the Ccu't is regulated by the Orders in the Court
of Error and Appeal of 8th September, 1871.

) (■;

m

<^.

( 1580 )

CHAPTER XXXV.

REVIVOR AND SUPPLEMENT.

It frequently happens, that a suit m Chancery, though perfect in
its institution, becomes defective by the death or marriage, or by
some change or transmission of the interest or Hability, of some
of the parties.^ In sucli case, the suit is said to have abated, or
become defective ; and, as a general rule, no proceeding whatever
can be taken in it, until an order to revive the suit or carry on the
proceedings, has been made.

This order may, in most cases be obtained upon an allegation oi
the death or marriage, or of the facts by which the change or
transmission of interest or liability has taken place.

Our orders on the subject are taken from the Imperial Statute 15
& 16 Vic, ch. 86, sec. 52, and the order of revivor made under
them is usually called *' the common order."

Order 337 provides that — " Upon any suit becoming abated by
death, marriage^ or otherwise, or defective by reason of some change
or transmission of interest or liability, on the part of a plaintiff or
defendant by devise, bequest, descent, or otherwise, it shall not be
necessary to exhibit a bill of revivor or supplemental bill, to obtain
an order to revive such suit, or an order to carry on the proceed-
ings, but an order to the effect of the order to revive, or of the
usual supplemental decree under the former practice of the Court
may be obtained upon pra3cipe, upon an allegation contained in the
praecipe, of the abatement of the suit, or of the same having
become defective, and of the change or transmission of interest or
liability."

8 A defect of this nature cannot be remedied by amendment, or supplemental statement : Cmnvierell
V. Hall, 2 Drew. 104 ; S. 0. m/in Commerell v Bell, 18 Jur. 141 ; WiUiam* v. JacHmi, 5 Jur. N.
2«4 ; 7 W. R. 104, V. C. W. Webb v. Wardie, 11 Jur. N. S. 278, V. C. K.

. h» j\

RKVIVOR AND SUPPLEMENT.

1581

And Order 338, that " an office copy of the order is to be served
upon the party or parties who would be defendant or defendants to
a b'\l of revivor or supplemental bill according to tlie former
practice of the Court, and such order shall, from the time of ser-
vice, be binding upon such party or parties, in the same manner
in every respect as if tlie order had been regularly obtained accord-
ing to the former practice of the Court, and the party or parties
shall thereupon become thenceforth a party or parties to the suit."

The order may be obtained from the Deputy Registrar of the
County where the bill is filed, under Orders 35 and 37.

Where the plaintiff in a redemption suit died before the decree
pronounced had been drawn up, leaving infants his real representa-
tives, it was held that before an application to revive could be
made, the decree must be drawn up, and a guardian ad litem
appointed.*

No evidence is required of the alleged facts ; but the order is
made on the statement in the pnecipe.^ If the statement is not
substantially true, the order may be discharged with costs,^ on a
special application. In a proper case, the order will be made, with
liberty to the . .ew defendant to put in an answer.^

Where the suit abates by the change or transmission of the
interest or liability of a defendant, the order of revivor need only be
served upon the persons who have become necessary parties to the
suit, by reason of such change or transmission; but where the
suit abates by a change or transmission of the interest or liability
of the plaintiff, or one of several co-plaintiffs, all the other parties
to the suit must be served.^ Jf, after a decree, a suit is revived by
a defendant, all parties must be served with the order of revivor.®

- o -•

r

3

1 Beamige v. I'oineroy, 1 Cham. Rep. 32.

2 MaHin v. Iladlnw, 9 Hare, App. t>'2 : Gordon v. Jeason, 16 Beav. 440.

3 Brignall v. Whitehead, 30 Beav. 22!) : 8 Jur. N. S. 183.

4 Lash V. Miller, 4 De G. M. & G. 841 : 1 Jur N. S. 457 : Kitchin v. Ilimble, 8 Jur. N. S. 588 : 10 W.

R. 686, V. C. W. : Martin v. Purnell, 3 W. R. 31'5, L.J J.

5 Order 338. The provision is, that the order is to be served upon the persons who, acuordiUL' to the

then piuctice, would be deftndanta to a bill of revivor, or supiiletnental bill. From this, the
statement in the te.vt follow.-): sec Fallowcs v. Williaiiuion, 11 Vcs. 306 : Cave v. Cork, 2 Y. & C.
C. C. 130; 7 Jur. 401 ; Bigimll v. Alkim, 6 Madd. 309 ; Dygon v. Morris, 1 Hare, 413 ; Jone» v.
Hoteells, 2 Hare, 342 ; Feary v. StephemoH, 1 Beav. 42 ; I'inkiin v. Peters 6 Beav 263 ; Parker \.
Parker, 9 Beav. 144 ; Joneg v. Powell, 11 Beav. 308 ; Lyna v. Pcni\ell, 1 Sim. N. S. 113 ; and see
Ld. Rd. 35, 76.

6 BuchaiMn v. Maliru, 11 Beav, 52.

1682

ni:\^I\'Oll AND SL'I'FLEMENT.

Order 341 providcH that ** upon every office copy of an order cf
revivor served, there is to ho endorsed a momoriindum in the form
or to the effect set forth in Schedule N." And Order 342 that
" where an order to revive is served out of Ontario, tlio party served
is to have the same time to apply to discharge the order, as a
defendant has to answer a hill of complaint ; hut an application
may be made for shortening the time, as in the case of answers to
bills in like cases."

cc.

The Court will, however, upon a proper case being shewn, order
substitutional service to be made.^ And Order 343 provides that
" where the Court authorizes publication instead of service, the
Court is at the same time to appoint such time for applying to
discharge the order to revive as seems proper."

Where the order has to be served on former parties, who have
already appeared by a solicitor, service upon such solicitor is
sufficient.^

The order becomes binding from the time of service on the
parties, unless they apply lo the Court to discharge it. Order 339
provides that *' it shall be open to the party or parties so
served, to apply to the Court, within fourteen days after the ser-
vice of the order, by motion or petition, to discharge the order on
any ground which would have been open to him or them on a hill
of revivor or supplemental bill, stating the previous proceedings in
the suit, and the alleged change or transmission of interest or
liability, and praying the usual relief consequent thereon." And
Order 340 that " if a party so served shall be under any disa-
bility other than coverture, the order shall be of no force or effect as
against such party, until a guardian ad litem has been duly
appointed for such party, and the period of fourteen days has
elapsed thereafter."

It may here be mentioned that Order 408 provides that the time
of vacation is not to be reckoned in the computation of the times
appointed or allowed for moving to discharge an order of revivor.

1 Forster v. Menzies, 10 Beav. 5tt8, 17 Jur. 6S7 : 8. C. 10 Huic, App. 3(J, n lib. 71. n ; ace also Hart v.

Tuik. 6 Hare, 618 ; Scott v. Wheelrr, 13 Ueiw iA\).

2 llarr. by New/. 71 ; Forster v. 3Iiuizii-«, shows thai the onler must be served (lui'suiially, when the

parties are new : but it apitears that where it !>< to be served on perhons already lutrtiestothesuit,
who have appeared by solicitor, ticrvicc on the solicitor will be sulticient.

REVIVOR AND SUPPLEMENT.

1583

Some alteration in the title of the cause invariably follows upon
obtaining the order. If the order has been made on the application
of all the original plaintiffs, a second title is not necessary, but the
names of the new defendants, and the words ** made parties by
order of revivor," or " supplemental order," as tlie case may be,
must be added to the title, before the word '* defendants." If the
order has been obtained by some only of the original plaintiffs, or
by a defendant, or some other person, a second title must be added,
in which the persons on whose application the order has been made
are named as plaintiffs, and the persons against whom the order
is made are named as defendants ; and after the second title, the
words " by order of revivor," or " by supplemental order," as the
rase may be, must be added.^

Where an abatement of a suit takes place before decree, by tlie
death of a sole plaintiff, the representative, real <jr personal, as the
case may be, of such plaintiff', is the ouly person entitled to revive :
unless the bill was originally filed by the plaintiff in a representa-
tive capacity, namel}^ as executor or administrator of a peraon
deceased : in which case, tho suit can only be revived by the person
in whom the representation of the deceased person is vested, and
not the representative of the original plaintiff', except where such
representative is also clothed with the character of representative
of the original testator or intestate.^

I

16 time
times
avor.

|mo UaH V.

when the
Itotheiult,

If the abatement has occurred in consequence of the death of
one of several plaintiffs, the suit may be revived by the representa-
tive of the deceased plaintiff', either in conjunction with, or sepa-
rately from, the surviving plaintiffs: who, hov/ever, if they refuse
to concur in the application, must be served with the order.^ It
seems also, that, where one of several plaintiffs dies, unless the
interest of the deceased plaintiff' survives to the other, the suit
becomes wholly abated : so that is necessary to serve all the paiiies
to the original suit, with the order of revivor ;* but one of the sur-
viving plaintiffs may, if the other surviving plaintiff's refuse to

1 Braithicaite's Pr. 560.

2 Hxtggins v. York BtiUdings Company, 2 Eq On Ab. 3, pi. 14 ; Stuart, v. Rurrowa, Driiry, 266 ;

OBrien v. Hnhon, 2 Jo . k Lat. 201. If in a case of this nat\ire, a suit has been revived by a wrong'
party, the proper cour.se to be pursued liy the ri;.rht part i.s to revive rfc nom: ih. ; and see Riflnndt,
V. Latoitche, 2 Bligh, <'i66.

3 Fallou'^g V. iViUiamaoii, 11 Ves. 301); and sue I'annell v. Ilurleii, 2 Ooll. 241.

4 Cave V. Cork, 2 Y. & 0. C. C. 130 : 7 Jur. 461.

1584

REVIVOR AND SUPPLEMENT.

join, obtain an order of revivor alone: serving the other surviving
plaintiffs, as well as the representatives of the; deceased plaintiffs,
with the onler.*

In the case of a bill by a corporation .^ole, the death of the
plaintiff occasions an abatement; but a material distinction arises
with respect to the person entitled to revive or continue the suit.
If the plaintiff was entitled to tlie subject-matter for his own
benefit, the suit may he revived by his personal representatives ;
but if the plaintiff was only entitled in his corporate capacity, for
the benefit of himself and successors, the suit can only be con-
tinued by his successor.

When the abatement is occasioned by the marriage of a female
plaintiff, the suit may be revived by the husband and wife jointly ;
or, if the property in litigation be the wife's separate property, the
order of revivor must be obtained on the part of the wife, by her
next friend.^

Where the abatement has occurred before decree, the suit can
only be revived by the plaintiff, or those claiming under him. In
certain circumstances, however, a defendant, though he cannot
revive the suit, may obtain an order that the plaintiff or his repre-
sentatives may revive within a limited time, or that the bill may
be dismissed.^

Although a defendant cannot revive the suit before decree, he,
or those claiming under him, may do so after decree, if the plain-
tiffs, or those standing in their right, neglect to do it : for then
the rights of the parties are ascertained, and plaintiffs and defend-
ants arc equally entitled to the benefit of the decree, and have
equally a right to prosecute it.*

A defendant who wishes to revive a suit after decree should, it
seems, give notice of his intention to do so to the plaintiff or his
representatives.'' It does not appear, however, that the necessary

1 Finch V. Wince ihea, 1 Eq Ci. Ab. 2, pi. 7.

2 Trezevaiit v. Brovghloti, t, \V. R. 617, M. R. ; Sieton, 1165 ; Powell v. Heather, 1 L. T. N. S. 479.
;{ Ante.

4 Ld. Rd. 79 ; Kent v. Kent, Free, in Ch. 197 ; Anon., 3 Atk. 691 ; Lord Stowell v. Cole, 2 Vern 210
Lad!/ Stowell v. Cole, ib. 296 ; WilUnms v Coolce, 10 Vch. 400 ; hemyneit v. Motrin, 1 M. & C. 213.

■"> Sohle V. Stnw, (No. 2). 30 Beav. fil2 : 8 Jur. N. S. 147 ; see, however, Lyn v. Lee, 4 De O. M. & U.
219 : 17 Jur. 607 : 10 Hare, App. 72 : 17 Jur. 272.

RRVIVOR i.ND SUPPrEMKNT.

1685

effect of a revivor, by a defendant, is to take from tlie plaintiff the
conduct of the cause.

Where, in a creditor's suit, .he plaintiff dies after decree, any
creditor, who has proved his debt, may revive the suit ; but he
should first give notice to the i)laintiff'8 representatives, if any.'
And a. similar order has been nade, where the plaintiff became
bankrupt.^

It may be mentioned hero, tl at a new party, representing the
interest of the former party, who is brought before the Court by
order of revivor, stands exactly in the same plight and condition as
the former party ; is bound by bin acts ; and may be subject to all
the costs of the proceedings, from the boginuiiig of the suit.'

Where the suit abates or becomijs defective, either before or after
the decree, by the birth of a child, who is a necessary party, the
common order to revive and carry on the proceedings may be
obtained.*

The common order to revive and carry on the proceedings may
also be obtained : when the suit abates, or becomes defective, by
the bankruptcy of a plaintiff,*'' or defendant f where a new assignee
had been appointed ;^ where a sole plaintiff has been found luna-

I

■"■■■ O

r

f
■^

|ee, he,

plain-

)r then

lefend-

have

[uld, it

or his

jessary

1 S. 479.

IVern 210
, li C. 213.
1. M. & •^•

1 Dixon V. Wyatt, 4 Madd. 392 ; Cook v. Bolton, 5 Russ. 282 ; Brown v. Lake, 2 Coll. 620 ; William

V. Chard. 5 De G. * S. 9, 14; Johnnton v. Ilawmersley, 24 Beav. 498 ; Lotve» v. Lotoeg, 2 De O. M
& G. 784 ; Inchlcy v. Aluopp, 9 W. R. 649, M. R. ; Bell v. Bell, 12 W. R. 230, V. C. S.

2 English v. Hayman, 9 Hare, App. 88.

:{ L 1. Rd 68; Whitcomb v. Minehin, 5 Madd. 91 ; Anon., I Atk. 89 ; but see Poxwell v. Grc.atorex,
33 Beav. 345, where the assignee of a bankrupt, who improperly continued the defence to a suit,
was held only liable to pay the costs subsequent to the bankruptcy.

4 Fvllerton v. Martin, 1 Drew. 23e ; Phippen v. Brown, 1 Jur. N. S. 698, V C. W. ;./e6b v. Tugwell,

20 Beav. 401 ; Pick/ord v. Brown, 1 K & J. 043. For form of order, see Seton, 1106, No. 9 ; but
see Garrett v. Lance/ield, 11 W. R. 869, V. G. K. ; see also Leyland v. Leyland, 10 W. R. 149, V.
C K. An inquiry, whether the proceedinpt were beneflcia'i to tlie infant, is n t necessary : Notley v.
Palmer, l Jur. N. S. 221 : 3 W. R. 201, V. C. K. ; Barrett v. White, ih. 526, V. C. K. ; though
such an inquiry may be directed : Brookfleld v. Bradley, Seton, 1170 If any step has been taken
after the abatement, the O'lurt, on qeing satisfied that is beneficial for the infant, may, on making
the order for service, direct the infant to be bound : Jebb v. T^igwell, iibi gup. ; see also Freeman v.
Whitbread, 12 W. R 619. V. 0. K.

5 Jackson v. Riga Jiailway Company, 28 Beav. 75 : 6 Jur. N. S. 3.36 ; Maedonald v. Maefarlane, 0

W. R. 245, V. C. W. ; and see Mostyn v. Emmanuel, 5 N. R. 464, V. 0. W. ; but see Maw v.
Pearson, 12 W. R. 701, M.R., where the Court refused to make the order at the instance of a
defendant after decree, though the .assignees declined to proceed.

6 Lash V Miller, 4 De O. M. & G. 841 : 1 Jur. N. S. 457 ; Cochrane v. Phillips, 3 W. R. 461, V.C S. ;

Cross V. Thomas, 16 Beav. 592 : 17 Jur. 836; Kitchen v. Ilimble, 8 Jur. N. S. 588 : 10 W R. 686,
V.C.W.; Jobems v. Couch, Seton, 1166 ; and see ib. 1170. For fonn of order, see Seton, 1165,
No. 5. When the assignees have been brought before the Court, the bankrupt should not be
served with any further proceedings in the cause : Robertson v. Southgate, 5 Hare, 223 ; Stahl-
Schmidt v. Lett, 5 Hare, 595.

7 Oordon v- Jessvn, 16 Beav. 440. For form of order, see Seton, 1105, No. 6.

',.:!§

1586

REVIVOR AND SUPPLEMENT.

Ci.

tic ;' where a defendant has heeome huiatie ;' and where a new
committee of a lunatic defendant lias been appointed.^

A similar order may also be obtained against the trustees of a
settlement of the interest of ii female plaintiff,* or defendant •/'
and, generally, in the case of an assignment pendente lite.^

The common order to revive may also be obtained where the suit
relates to real estate, and the abatement is occasioned by the death
of a sole plaintiff, who has devised his interest 0 though the Court
at first held otherwise -^ and where the abatement or change of
interest requires that the frame of the suit, with respect to parties,
should be altered." The Court, however, refused to make the com-
mon order, against the curator of one of several plaintiffs, who had
been convicted, in a fo.«3ign court, of felony : although the curator,
according to the Law of the foreign country, fully represented
him.i«

Where a sole plaintiff in a foreclosiu'e suit dies after decree, his
devisee is entitled, on prccclpc, to the common order to revive."
Where a defendant becomes insolvent after the service of the bill
upon him, but before tlie time for answering has expired, and the
suit is thereupon revived against the assignee in insolvency, it is
necessary to serve tlie assignee with the bill as well as with the
order to revive or an order pro confesso cannot be obtained. ^^ Per-
sons who acquired an interest in the subject of the suit before the
suit was commenced cannot be made parties by an order of revivor.
Where a suit becomes defective by the insolvency of the plaintiff,
subsequent proceedings are not wholly void ; but, on the fact being
brought before the Court, such orders will be made as may be just.

I Dangar r. Stewart, 9 W. R. 266, V. C. K. The order is made in Chiiiicery : Timpson y. London d-
yorthwestem Railway Company, 11 W. R. 658 M. R., and L.JJ. For fonn of order, see Seton,
1166, No. 7.

J Bryan v. Tmgg, 8 Eq. Rep. 02, V. C. K. 3 Thewlu, v. Earrar, Seton, 1160 No 8.

4 Atkinson t. Parker, 2 De G. M. & C. 2?'. : 16 Jur. 1005. For fonn of order, see Seton, 1167, No. 10.

6 Noble V. Stew, (No. 2), 30 Beav. 512 : Z Jur. N. S. 147.

6 Jant^g V. Hardinif, 3 W, R. 474, v. o. W. ; Wagtail v. Lenlie, Seton, 1170 ; Freeman v. Pennington,

3 De G. F. & J. 295 ; Williameon v, Jeffereys, 12 W. R. 403, V. C. W. ; BraMonv. Krandon, 3 N.
R. 287, V. C. K. ; but see Greenhalgh v. Humney, 5 N. R. 363, V. C. W. It is not, however,
generally necessary to 'oring an assignee pendente lite before the Court.

7 Eyre v. Brett, 18 W. R. 732. M. R. : ib. 763. L. J J. ; and see Jackson v. Ward, 1 Gift. 30 : 6 Jur. N.

S. 732 ; Odhert v, Tomlimon, 6 Jur. N. 8. 532 ; 8 W. R. 467, V. C. S.
U Wattonv. Loveday, 3 W. R. 386, V. C. W.; Dendy v. Dendy, 5 W. R. 221, V. C. W ; Williams v.

Williams, 9 W. R. 296, V. C, K. ; Brooke v. Brooke, ib. 804, V. C. K. ; Laurie v. Crush, 32 Beav.

117 : 9 Jur. N. S. 453, M. R.
9 Jervoise v. Clark, 2 W. R. 337, V.C.K. ; Johnson v. Ilammersley, 24 Beav. 498: see Oreenlialgh v.

llumney, ubi sup. ; see, however. Hall v. Clive, 20 Beav. 575 ; Pedder v. Pedder, 5 Jur. N. S.

1146, M. R.

10 Guilbm v. Botch, 1 Dr. k Sm. 621 ; and see Stahle v. Winter, 3 W. R. 580 M. R.

11 Oeddes v. Allen, 1 Cham. Rep. 336. 12 Smith v. Lines, 1 Cham. Rep. 398.

M

IIEVIVOR AND SUPPLEMENT.

1587

Where a Hint wnfi cominoncod in the namo of a person wlio had
previously aHsif^ned his intoreHt to a croditor by way of security,
and the pUiintiff becanie insolvent before decree, but the cause pro-
ceeded to a hearing without any chan<j;e of parties, and a decree for
the plaintiff was pronounced. tlH! Court made an order, at the
instance of the defendants, staying proceedings until all proper
parties njiould be brought before the Court.^ When a suit becomes
defective, and i;s proceeded with, without an order of revivor being
taken out, a subsequent application, by petition, to supply the
defect by adding parties, is not improper ; but the new parties may
not be bound by the proceedings had in their absence. -

The common order to revive has been made in the following
cases : On the application of the heir at law and administrator of
a sole plaintiff, in a foreclosure suit ;^ on the application of the
personal representative,'* or devisee^ of a sole plaintiff; on the
application of the surviving plaintiffs, where the suit abated by the
death of one of several co-plaintiff's ;" on the application of a plain-
tiff' against a co-plaintiff, on whom a new interest had devolved ; ''
on the application of one of several co-tenants, who had obtained
an order for liberty to attend tlie proceedings, in a suit which had
abated by the death of the sole plaintiff, his co-tenant ;* and on
the application of the plaintiff against the devisee ;® and against
the personal representative of a defendant.^" Where a married
woman, in England, who had obtained a protection order," was made
a defendant, as a feme sole, and the protection order was after-
wards discharged, the usual order to revive and carry on the pro-
ceedings, against her and her husband, was made on motion.^"^

;>3

I

london d;
ee Seton,

7, No. 10.

knnigton,

ion, 3N.

Ihowever,

,Jur. N.

iliamn V.
I 32 Beav.

ihalgh V.

V N, S.

An assignment or alienation, pendente lite, is not permitted to
affect the rights of tlie other parties : unless the alienation dis-

1 McKenzie v. McDonnell. 15 Grant, 442. 2 Peeke v. littcke, 2 Cham. Rep. 294

;{ Ward v. ShakeHhaft, 1 Dr. & Sm. 607 ; Fam v. Richardg, 11 W. R. 524, M. R

4 iloritt V. Waltmi, 2 W. R. 544, V. C. K. ; Flockton v. She, 5 Jur. N. S. 422 • 7 W. R. 393, M. R. ;

Pindar v. Pitular, there cited : Seton, 1169 : Eyn; v. Brett, 13 W. R. 732 M. R : ib. 763 L.JJ.
."i Jaokson v. Word, Oilbort v. Toialitison, and Ei/re v. Brett, ubi nup.
(i Hall V. Clive, 20 Beav. 575 ; Smith v. Uorafall, 24 Beax . 331 ; Ure v. Lord 2 Dr «[ 8m. 203 : 10 Jur.

N. 8. 1042 ; but see Uitide v. Morton, 2 H. & M. 368. For form of order; see Seton, 1105, No. A.
7 Poster V. Bonner, 33 L. J. Ch. 384, V.C.K.

5 Uobson \ Faithwaite, 10 VV. R. 183, L.JJ. ; revershig ib. 30 Beav. 228 : 8 Jur. N. S. 26.
!) Li)we V. Wataon, 1 Sm. & G. 123.

10 Martin v. Uadlow, 16 Jur. 964 ; 9 Hare, App. 52 ; Petre v. Petre, 1 W. R. 362, V. C. K. ; Martin v.

Pumell, 3 W. R. 895, L. JJ.

11 Under 20 & 21 Vic. c. 85.

12 Rudi/e V. Weedon, 4 De G. & J. 216 : 5 Jur. N. «. 723 •. ib. 380, V. C. K.

76

1588

REVIVOR AND SUPPLEMENT.

able 1 the party from performing the decree of the Court : m which
case, the assignee must be brought before the Court by supple-
mental order.^ Where the assignment, p^'ndente lite, is of an
equitable interest, and not, as in the case of bankruptcy, by
operation of law, there is not any absolute necessity for tlio
assignee to be brought before the Court ; nor does it seem to he
material, whether the assignee is a plaintiff or defendant to thf
bill.^ In such a case, however, unless the alienee can be protected
by the ordinary course, of obtaining an order that the alienor shall
not take the fund he is entitled to in the suit, oat of Court, without
notice to him, or by an order giving him liberty to attend the pro-
ceedings under the decree, he must himself institute independent
proceedings.^

When the order of revivor is made against the personal repre-
sentatives of an accounting party, the usual accounts of the estate
of the deceased defendant will, if required, be ordered to be taken,
if they do not admit assets.*

In those cases where the Court will not make the order to revive
and carry on the proceedings on an ex parte application by motion
or petition, a supplemental bill must be filed, by and against the
persons by and against whom the proceedings are sought to be
carried on.^

Ci.

An order of revivor may be made after the lapse of a long
period ; and such an order was made against defendant's repre-
sentatives ten years after a demurrer was allowed with leave to
amend ;* but after a lapse of more than twenty years, and where
all the parties to the original suit were dead, the order was refused ; '
and the right to such an order is not, it seems, barred by lapse of
time, but it is in the discretion of the Court."

1 L(l. Red. 74 ; James v. Harding, 3 W. R. 474, V. C. W ; Williamsm v. Jeffereys, 12 W. R. 403, V.

(J. W. ; and for fonn of order against new trustees appointed pendente lite, see i6.

2 Ea<le8 v. Harris, 1 Y. A; C. C. C. 230, 234 ; see, however, Solomon v. Solonwn, 13 Sim. r>16 ; Johmmi

V. Tkomai, 11 Eeav. 501.

3 Foster V. Deacon, 6 Madd. 50 ; Tooneyw Burchell, Jac. 159,

4 Edioardi v. Batley, 19 Beav. 457; Cartwright v. Shephenrd, 20 Bcav. 122; overrullnif Tata v.

Leithead, 9 Hare, App. 61 ; 8. C. Mom. Yate v. Lighthead, 16 Jur. 9tt4. For I'orm of order, sec
Heton. 1164, No. 2.

5 Dendy v. Bendy, 6 W. R. 221, V. C. W. ; Williaim v. Williamg, 9 W. R. 296, V. C. K. ; Brooke v.

Brooke, ib 804, V. C K. ; Guillon v. Rotch, 1 Dr. ti Sm. 621 ; Orcenhalgh v. Rumnei/, 5 N. R.
463, V. C. W. For forms of decrees on supplemental bill, aeeSeton, 117*. 1175.

6 Deekn v. Stanhope, 1 Jur. N. S. 413, V. C. K.

7 Bland V. Davuion, 21 Bevi. 312. 8 A lnop v. Bell, 2iJiwi\. ^I,i6i. .. *

|i 1*.

KklVlVOU AND UUPPLUMKNT.

1589

long

1 repre-

lave to

I wbere

ised ; '

ipse of

|r. 403, V.

Tatii V.
iirdor, see

\ Brooke v.
L, 6N. R.

Until a defendant has appeared, there is strictly speaking no
caiiK(> in Court against him : and therefore, if his interest shouUi
tletermint) before he has appeared, no order of revivor can he
obtained against the person in whom his interest ha8 become
vested ; hut an original hill must he tiled against him : which hill
may be supplemental as against the other defendants, if any.'

In some cases, where the suit abates by the death of a party who
has no legal pcrscmal representative, the Court will either appoint
some one to represent the estate of such party ;" or will allow the
suit to proceed in the absence of any such representative. In the
latter case, no order of revivor is necessary : in the former, tiie
suit must be revived, in the usual nay, against the person
appointed to represent the estate of tlj« deceasL'd party.'' The
cases in which the Court will dispense with the porsonal repre-
sentative of a deceased party, or a^ i.oint somr one to represent
his estate, are the same as those in which it v\'ould have made a
siiiiiia: order, if the suit had been instituted after the death of the
party, and have been before fully considered.' Where one cf
several plaintiflfs, claiming as next of kin, died l)efoi decree with-
out any legal personal representative, the (Jourt ordered the suit to
be revived, at th(^ instance of the surviving plaintiffs, against the
same defendants ; and did not require any representative of the
deceased plaintiff to l)e appointed •,^ but where one of three plain-
tiffs, suing as residuary Ic^gatees died, before decree, no order to
revive was held to be necessary."

Proceedings by special case,^ and administration order,* may,
in case of abatement, be revived, by an order of course, in the same
manner as an abated suit.

The party obtaining the order to revive may, if resident out of
the jurisdiction, be ordered to give security for costs.*

1 niand V. Davi-KOH 21 Btav. 312 ; WUliamx v. Jackson, S .hir. N. S. 264 : 7 W. R. 104, V. C. ; Hardy r.

RmU, 14 Sim. 21 ; Foxter v. Fonti'r, 1« Sim. 637 ; Amber v. Stiipieil, 6 Madd. 206; Crowfoof v.

Matider, II Sim. :iOrt ; Eddinffton v. Banham, 2 Coll. HIQ.
•1 I'lidcr Order M. 3 Blun v. i'utman, 29 Iteav. 20 ; and .see St'tun. 1178--H81.

4 A nte, and see Uycrntr,- v. SnrriK, 10 .lur. N. S. 1173 : 13 W. R. 201, V. (!. K., where the e.* alo bein(f

insolvent the iwrsoiiul reprexentattves ol a dcceaMcd plaintiff who had b«en iMsneflcially iutereatea
were diN|)ensed witli.

5 Ure V Lo>d. 2 Dr. & 8m. 2(13 : 10 Jur. N. S. 1042 ; and see Stmth v. Uornfall, 24 Beav. 331 ; Ley-

cfHter V. Snrrit, 10 Jur. y. S. 117.'? . 1" \V. i;. em, V.C.K.; but hop Hinde v. Morton, 2 H. & M.
348.
« Ilijidf V. Morton, 2 U. & M. 3«S

7 WUnon V. Whatelcy, 1 J. & H. 331. S Peddtr v. Pi-dder, 6 .lur. N. S. 1146, M. R.

Jaekmnr. Daetnport, 29 Beav. 212: 7 Jnr. N. S. 1224.

'^

1500

RKVIVOR AND SUPPLEMENT.

M

1' >

The Court will not, in general, permit a suit to be revived, for
the purpo'-e of deciding the question of costs only :^ the general
rule being, that if a party dies before taxation of costs, there can
be no revivor, in respect of costs only, against his personal repre-
sentatives.^ This rule does not, o." course, apply where anything
else is directed by the decree, which remains unexecuted. " If, by
the decree," says Lord Chief Baron Gilbert, " the party is to pay a
sum of money, or if a duty is decreed, if he is to deliver over a
bond, or deed, or writings, or if anything is annexed to the decree
besides costs, the suit may be revived."^

The rule applies only to costs which remain untaxed, at the
time when the abatement takes place. Where the costs have been
actually taxed, and the Master's certificate signed, there may be a
revivor for them :* because, when taxed, they become a judgment
debt; and as at Law a judgment may be revived, so it may in
Equity.^ And where the plaintiff's solicitor, at the request of the
defendant's solicitor, had agreed to postpone the taxation of costs,
decreed to be paid to the plaintiff, on an undertaking that the
plaintiff should not be prejudiced thereby, and the plaintiff died
after the costs were taxed, but before the Master's certificate had
been signed, his representatives were allowed to revive the suit :
upon the ground that the undertaking amounted to an agreement
that the suit should be revived.*' But the circumstances of that
case were very special, and cannot be considered as impugning the
general rule.

A distinction has been attempted to be made, between an abate-
ment by the death of the party to pay the costs, and an abatement
by the death of the party to receive them : holding, in the latter
case, that there may be a revivor for costs -J but, in Jupp v.
Geering,^ Sir John Leach, V.C., held, on demurrer, that if the

1 Ld. Red. 202 ; Oilb. For. Rom. 181.

2 Morgan V. Scudamore, 2 Ves. J. 313, 316; Andrews v. Lockwood, 15 Sim. 153, 156: 10 Jiir, '277;

but see S. C 2 Phil. 398 , 11 Jur. 950 ; Bowyerv. BminiKh.i Jo. & Lat. 228 ; Malins v. Greenmii),
7 Hare 391 ; Robertson v. S.t<uthijate, ib. 13 Jur. 533 ; Umpleby v. Waveney Valley Jiaii'irmj
Company, 1 J. & H. 254 ; Beames on Costs, 131, and tlie cases cited, ib. n. (b) ; Morgan d- IMwy,
384, et. seq.

3 Gilb. For. Rom. 181 : Johnson v. Peck, 2 Ves. S. 465.

4 Lowten v. Corporation of Colchester, 2 Mer. 113, 114 ; Beames on Costs, 132, and tlio coses cited, ib.

n. (k)

5 Ibid. : Edgill v Brovoe, 1 Dick. 62 ; Blower v. Morrets, 3 Atli. 772 ; Loader \. Price, 2 Fowler's Ex.

Pr. 309.

6 TvLcker v. WUHns, 7 Sim. 349.

7 Beames on Costs ; and see Morgan v. Scudamore, 2 Yes. J. 813 : 3 Ves. 106.

8 5 Madd. 376.

REVIVOR AND SUPPLEMENT.

1591

t,d, for
ffoiierai
ere can
. repre-
ay thing
'^ If, by
0 pay a
• over a
e decree

, at the
ive been
lay be a
udgment
b may in
ist of the
of costs,
that the
itiff died
Rate had
the suit :

;reement
Is of that

;ning the

m abate-
)atement
latter
Jup2^ V.
it if the

10 Jur. OT ;
Iv. Greenv:a!i<
V/ej/ liaiiivaij
Igariii- J)(wy,

taaes cited, ii».
• Fowler's Ex.

defendant dies before the costs of a bill dismissed are taxed, a
bill of revivor by his representatives for costs cannot be sustained.

The only exceptions to the general rule above laid down, that
there can be no revivor for costs only, which have not been taxed
before the abatement happened, are : where they are directed to
be paid out of a particular estate or fund ;^ or are decreed against
an executor, out of assets :^ in which cases, they are considered as
a charge or lien upon the estate, and not upon the person and,
therefore, do not come within the principle of Courts of Law, (on
analogy to which the rule is founded,) that " actio personalis moritur
cum persona."^ The fact that the bill prays specifically for costs,
does not take the case out of the general rule.*

Where one of several defendants, against whom the bill had
been dismissed with costs, to be taxed and paid by the plaintiff,
died, it was held that the survivors were entitled to proceed with
the taxation, without reviving the suit, where the surviving and
deceased defendants ha,d carried in a joint bill of costs ;^ but where
the deceased defendant appeared separately, the Court refused to
direct the taxation to proceed without a revivor.^

Where the interest of the plaintiff wholly determines on his death,
the suit cannot, on that event happening, be revived ; but a new
bill must be filed -J in which new suit, the benefit of the proceed-
ings in the former suit may, if prayed for, be obtained.

Where a defendant, whose interest ceases on that event, dies,
the suit may, it seems, be revived against the person who there-
upon becomes entitled to his interest. Thus, where a defendant?
a tenant in tail, died, the suit was revived by the common order
of revivor and supplement, against the next tenant in tail.*

Where in a suit .by churchwardens for securing legacies given to
the parish, some of the plaintiffs ceased to fill the office of church-

1 Blower v. Morrefta, 3 Atk. 772 ; Kemp v. Mackrell, ib. 812 : 2 Ves. S. 580; Johnson v. Leake, cited

3 Atk. 773 ; Jenour v. Jenour, 10 Ves. 562, 572

2 Bea es on Costs, 132. 3 Brnom'» Maxims, 869, et seq.

4 Umpleby v. Waveney Valley Railway Company, 1 J. & H. 254.

5 Hunter v. Daniel, 7 Hare 281.

fi Robertson v. Southgate, ib. 109 : 13 Jur, 633 ; Malins v. Oreenway, 7 Hare, 391.
7 WnttH V. Watts, Johns. 631 ; a-, d see Wordmvorth v. Parkins, 12 W. R. 120 V. C. K.
S rrr^si-i'fl V. Bateinan, 6 W. R. 208, 220, V. C. K.. where the abatement occurred thrnutrh the dcatli
of u defendant : see Reg. Lib. 1857, A. 424 ; and sec lAoyd v. Jolmes, 9 Vcs. 58 ; Ld. Rod. 67, 71.

r

^^

4' ( '

1592

REVIVOR AND SUPPLEMENT.

^.

warden, an order was made by the Master of the Rolls, directing
the suit to be carried on, in the names of such of the plaintiffs as
continued in office, and the successors of the others.*

Any person served with an order of revivor, or a supplemental
order, may apply to the Court, to discharge the order, within
foui'teen days after service ; or, if he is under disability, (other
than coverture,) within fourteen days after a guardian ad litem has
been appointed for him.'^

The order may be discharged on any ground which would hav(
been open to the applicant on a bill of revivor or su2)plemental bill,
stating the previous proceedings in the suit, and the alleged change'
or transmission of interst or liability, and praying the usual relief
consequent thereon."' The order will, therefore, be discharged : if
there is no sufficient ground for reviving the suit,* either by or
against the person by or against whom it is sought to be revived,"
or, if the reviver is solely for costs which have not been taxed,
unless the case comes within any of the exceptions to the general
rule above pointed out.^

The defendants, though aware that A, had no interest in the
matters in question made him a party plaintiff by order of revivor
obtained on praecipe. A. was then and for some time afterwards
under the belief that he had been made a party properly ; and even
after he had found out that he had been made a party improperly,
he did not appl}- to have the order of revivor set aside as against
him till he found that he was prejudiced by it. He then petitioned
to have the order set saide as against him ; and the Court granted
the application, on the terms of his paying the costs of the petition,
and any costs that had been incurred by his having been made a
party.^ Where, after a defendant's lands were seized imder a writ
of sequestration, the defendant died intestate, it was held that his
widow was not a proper party to the order to revive. A motion to
discharge an order to revive cannot, without leave of the Court, be
made after foui-teen days from the service of the order ; and mere

1 Smith V Crca«i/, cited Seton, 1167 2 Ord. 380 840. :{ Order 339.

4 Harris v. Pollard, 3 P. Wiiw. 84S ; Itumphretjs v. Incledon, I Dick. 38 ;aiid seef I Eq. Ca. Ab, 2 - 4,

6 Univernity College v. Foxcro/t, 2 Cham. Bep. 5244 ; Ld. Red, 201.

6 Ante, Umplebyy. Waveivey Valley Railway Company, 1 J. Ai H. 254.

7 fimUk V. Ounn, 2 Cham. Rep. 280.

I* '*'

REVIVOR AND SUPPLEMENT.

1593

jcting
liffB as

uental

within

(other

em haB

Id hiivr
tal bill,
chaiigi'
al relief
L'getl : if
)r by or
3vived,"
1 taxed,
I general

i in the
revivor
er wards
i,nd even
roperly,
against
titioned
granted
)etition,
made a
r a writ
that his
Lotion to
lourt, be
id mere

service of notice within the fourteen days is not a sufficient com
jdiance with Order 339. The notice of motion in such a case need
not set forth the previous proceedings.^ A motion before a Judge
to set aside an order to revive was held to be too late after the
lapse of fourteen days.^

The question, whether the Statute of Limitations is a bar to
revivor, has been much discussed. It seems, however, that the
Statute applies to suits before decree f but that, after a decree for
an account, it is in the discretion of the Court ; and the order of
revivor will be discharged, only where there appears to have been
negligence or laches on the part of the applicant.* If the party
entitled to object to the order of revivor proceeds with the suit,
before taking the objection, the objection will be waived.^

Where the abatement is total, that is, where it is caused by the
death, bankruptcy, or insolvency, of the plaintiff, or the marriage
of a female plaintiff, the cause is completely suspended ; and can-
not be proceeded in, until it has been revived, or the defect, caused
l)y the abatement, cured ; and, in general, all orders made pending
such abatement, will be considered nugatory, and may be dis-
charged ; the same rule also applies, where the abatement has
been caused by the death of one or more plaintiffs. Thus, if,
pending a total abatement, process of contempt is issued, it is
irregular, and may be discharged, on motion, with costs.^ So, also,
an order to dismiss a bill for want of prosecution, obtained pending
an abatement, is irregular.^

Although the general rule is as above stated, there are many
cases in which the Court will entertain applications, notwithstand-
ing that the suit is abated. Thus, a motion may be made, to dis-
charge process of contempt issued or executed pending an abate-
ment.

1 Uarrit v. Meyers, 16 Grant, H7.

2 Mcllroy v. Hatcke, 3 Cham. Rep. 66.

3 Ld. Red. 200 : HolUngxhrnd'n caw, 1 P. Wms. 742, 743 : see 2 Sch. ft Lef. 632 ; Earl of Egretnont.

V. Hamilton, 1 B. & B. 516 ; Perry v. Jenking, 1 M. & C. 118, 121 ; Bland v. Davison, 21 Beav. 312.

4 Higgins v. Shaio 2 Dr. & War. 366 ; Altop v. Bell, 24 Beav. 4.51, 464 ; and see Parkinson v. Lucas,

28 Beav. 627, 630.
6 Jones V. Powell, 11 Beav. 398. i "

6 See Gibbs v. Churton, 0 P. Coop. 499

7 St'llem V. Damson, 2 Dick, 73S : S. C. nom. Sellas v. Dawson, 2 Anst. 458, n. ; but see 1 Mer. 365 ;

Bod.ly V. Kent, ib. 301, 365 ; Robi:Mon v. Norton, 10 Reav. 484.

m

k'f

1594

UEVIVUK AND SUPPLEMENT.

^

=^...

The Court will also, where the right to money in Court is. clear
under former orders and reports, make an order, for payment of
the money out of Court, to the person entitled, without regarding
the abatement ;^ for the delivery of deeds and writings, brought
into Court, and will, if necessary, direct an inquiry to whom they
belong.^

An enrolment of a decree may be made, notwithstanding an
abatement.'*

An abatement, although it suspends proceedings in a cauHt;,
does not put an end to them : therefore, where process of contempt
has been executed, and a defendant is in custody upon it, and
afterwards the suit abates, the defendant is not thereby entitled to
his discharge out of custody, but he must move that the plaintiff
may revive within a limited time, or that the bill may be dis-
missed, and he may be discharged. So also, an injunction is not
absolutely dissolved by an abatement, but the defendant must, if
he wishes to get rid of the injunction, move, on notice, that the
j)laintiff may revive within a limited time, or that the injunction
may be dissolved.*

The same observation applies to receivers appointed under an
order of the Court : who will not be discharged on an abatement,
without an order of the like description.

Where an abatement is partial : as, where it is caused by the
death of a defendant : it prevents those proceedings only by which
the interest of the deceased defendant may be affected : for the
death of a defendant makes an abatement quoad himself alone :
and therefore, if there is a decree against trustees and their cestui
que trust to convey, and the cestui que trust dies, the trustees may
be compelled to convey, notwithstanding such death.^ So also,
pending an abatement by the death of a defendant, process of

1 Romidell V. Currer, 6 Ves. 250 ; see also Beard v. Earl of Poioit, 2 Ves. 8. 399 ; and see Joneii v.

WUliauiH, C. P. Coop. 488.

2 Wharam v. Eronnhton, 1 Vos. S. 181, 185 ; and see Andrews v. Lockwood, 2 Phil. 398: 11 Jur. 95(i;

Aldermmi v. Bannister, 9 Beav. 616 ; Houghton v. Oodschall, 2 C. P. Coop. t. Cott. 89.

3 Ante.

■i Jone» V. Afagse;/, 3 Beav. 295, n. ; Turner v. Cole, ih. ; Browne ▼. Wat^ier, ib. 286, n. ; [jcu v. Lee,
1 Haro, 617, 622 ; Fisher v. Fisher, 4 Hare, 196. This will not apply to injunctions made perpetual
by decree : see Askew v. Townsend, 2 Dick. 471 ; Old/ield v. Cobbctt, 20 Beav. 563.

6 Finch \. Lord Wimhiltea, 1 Bq. Ga. Ab. 2, pi. 7.

|by the

which

for the

lalone :

cestui

!S may

also,

tess of

I Jotu;» V.
Jur. 950;

ic V. Lee,
lp«rpetu»l

HEVIVOR AND SUPPLEMENT.

1595

contempt may be issued and executed against the other defendants ;
and, we have before seen, that, during such an abatement, the
Court will, at the instance of a creditor, take the prosecution of a
decree from the plaintiff.

It has also been held, that the death of a defendant, after
hearing but before judgment, does not prevent judgment, nor, in
general, the drawing up of the decree ;^ but where, upon a motion
to dismiss for want of prosecution, the plaintiff appears and
undertakes to set the cause down for hearing within a limited time,
in default of which the bill is to stand dismissed, and afterwards
the defendant dies, and the time for setting the cause down expires
before the suit can be revived, the order dismissing the bill is sus-
pended during the abatement.-

Where the abatement of a suit is total, an order to revive places
the suit, and all the proceedings in it, in precisely the " same plight
and condition as the same were in at the time of the abatement"^
and the new plaintiff may take the same proceedings in the cause
that the original plaintiff might have done. Thus, the plaintiff in
a revived suit may amend the original bill, and issue an attach-
ment against the defendant for not answering the amended bill.*
So also, the new plaintiff may prosecute process of contempt
against the defendant : taking it up where it left off at the abate-
ment ; and if process has been issued before the abatement, it
will be revived by the order to revive.^

The case is different where the abatement is occasioned by the
death of the defendant : in such case, the process, being personal,
cannot be revived. In general, however, where an abatement is
occasioned by the death of a defendant, the order to revive against
the representatives of such defendant will place the suit as fully in
the same position, with regard to such representatives, as can be
done, with reference to the change of the individuals before the
Court.

1 . Vavieg V. Davies, 9 Ves. 461 ; Behsham v. Pcreiml, 2 C. P. Coop. t. Cott. 176 : 8 Hare. 167 : rollit,<imt

V. Litter, 20 Beav. 355 : 1 Jur. N. S. 835.
i Gregson v. Oswald, 1 Cox. 343, 344.

3 See form of order, Seton, 1164, No. 1 ; Grog»on v. Omvald, I Cox. 343.

4 Ld. Red. 78; PhUipi v. Derbie, 1 Dick. 98.
6 Hyde v. Funte,-, 1 Dick. 132.

::•":? -..j W,

«3

;:--

!%.

■TP'

1596

RKVTVOR AND SITPPLEMENT.

^.

In a foreclosure siiit an account of principal and interest had
been directed to l>e taken before the decree was drawn up ; before
this was done the defendant died, and an application was now made
by the plaintiff to be at libei-ty to take the usual account, upon the
facts stated in the affidavit of the plaintiff. The decree, it was
alleged, would bear date prior to the death of the defendant, and
as the bill had been taken pro confesso against the defendant, tin-
account, in the event of his being still alivo, would have been pro-
ceeded with behind his back, the Orders of 1853 providing that all
proceedings after a bill had been taken pro vonfenso may be taken
ex parte. But the Chancellor said " drawing up a decree, which
had been previously pronounced, after the death of one of the
parties, is a proceeding that would be clearly regular ; but so far
as my recollection of the cases goes, I do not think that any
authority will be found warranting us in proceeding to take an
account after the death of the party who is bound to pay. The
point, however, is one of considerable importance to suitors, and
perhaps it would be well to take the opinion of tlu full Court upon
it."^ If a sole defendant dies before the bill is served upon him,
there is no suit in Court : the plaintiff therefore cannot revive ;
and if he take out an order to revive, under such circumstances, it
will be discharged with costs. -

The death of a party to a suit does not always occasion such
an abatement as will suspend the proceedings. If the interest of
the party dying so determines that it can no longer affect the
suit, and no person becomes entitled thereupon to the same interest :
which happens in the case of a tenant for life, or a person having
a temporary or contingent interest, or an interest delfeasible on a
contingency : the suit does not so abate as to require ; ..>.-cceed-
ing to warrant the prosecution of it against the rcma? .Hi _ ViS.rfcies ;
but if the party dying be the only plaintiff, or only dei<' ant, there
may be necessarily an end of the suit : no subject of litigation
remaining.^

If, also, the whole interest of the party dying survives to another
party, so that no claim can be made by or against the representa-

1 (iaXbreaith r. A rmttrong, 1 Cham. Bep. 33.

2 Wattnn v. Ham; 1 Cham. Rep. 295.

8 Ld. Red. 68.

REVIVOR AND SUPPLEMENT.

1597

tives of the party dying : as if a bill be filed by, or against, joint-
tenauts, and one dies : the suit may be continued by or against
the survivor, without revivor ;^ and whore the suit is by or against
trustees or executors, and one dies, not having possessed any of
the property in question, or done any act' relating to it which may
be questioned in the suit, or by or against husband and wife, in
right of the wife, and the Imsband dies under circumstances which
admit of no demand by or against his representatives, the pro-
ceedings do not abate : although, as we have already seen, the
wife is not bound to continue the suit, unless she thinks proper to
do so.'^

it

such
t of

the
est :
ving
3n a

eed-

ies ;

here
Tition

Ither
Inta-

80, if a surviving party can sustain the suit : as in the case of
several creditors, plaintiffs on behalf of themselves and other
creditors : no revivor is necessary, because the representatives of
the deceased plaintiff may come in under the decree.*

Where a creditors' suit had been carried on for twelve years
after it had become abated by the plaintiff 's death, an order was
made, on motion, to confirm all the proceedings ;* and where at
tlie date of the decree the suit had become abated by the death of
a co-plaintift', an order to revive the suit and carry on the pro-
ceedings was made, on his representatives submitting to be bound
by the decree.^

Where, before decree, a defendant dies, and the plaintiff neglects
to revive the suit against his legal representative, the representa-
tive may obtain an order on motion, of which notice must be given
to the plaintiff, that he revive the suit within a limited time, or
that the bill stand dismissed.^

Order 344 i)rovides that "Where a suit is defective by means of
some imperfection in the bill, and not in consequence of an event
arising subsequent to its institution, the Court may at any time

1 Fallowes v. WiUva^nnon, 11 Ves. 306, 309 ; Boddy v. Kent, 1 Mer. 301, 364 ; but the caoe is different

ill the case of tenants in common : ib.

2 I A. Red. 69 ; and see aiUe.

3 Boddy V. Kent, 1 Mer. 361, 364 ; Ilindc v. Morton, 2 H. & M. 368 , see, however, Burney t. Morpan,

1 8. & 8. 358 ; Smith v. Hortfall, 24 Boav. 831.

4 llomton V. Briscoe, 7 W. R. 394, V. C. K. ; and see l^g v. Lee, 4 De O. M. & 0. 219 : 17 Jur. tKt7 :

10 Hare, App. 72 : 17 Jur. 272.
6 Smith V. Horifall, ubi tup. ; see also Jebb v. Tugwell, 20 Bear. 461 ; Freeman v. U'hilbread, 12 W.

R. 619, V. O.K.
6 A'oi^on V. White, 2 De O. M. A O. 678 ; PovxU v. Potoetl, ib. n. (b)

k

i:3

"J

1598

REVIVOR AND SUPPLEMENT.

cx,

permit an amendment of the bill in furtherance of justice, and on
such terms as it thinks proper, for the purpose of altering the
allegations in the bill, or patting new matter in issue, as well as
for the purpose of adding or striking out the names of parties, or
of varying the relief prayed, or praying further relief." ,

And Order 345, that "The order is to be applied for by motion,
the notice of which is to state the required amendment ; and to be
served upon the parties, or their solicitors, unless dispensed with."

Order 346, provides that "Upon the motion the Court raust]|be
satisfied, by affidavit or otherwise, of the truth of the proposed
amendment, and of the propriety of permitting it to be made at the
particular stage of the cause, under all the circumstances."

And Order 347, that " Upon pronouncing such order for amend-
ment, the Court is to give such order as to the future conduct of
the suit, in relation to answering such amendments, as also with
regard to the evidence taken, or to be taken, and in all other
respects, as the circumstances of the case may require."

These orders, it will be observed refer only to cases of defect in
the suit, not occasioned by an event subsequent to its institution.
Provision is, however, made for cases where facts or circumstances
have occurred after the filing of the bill.

The rule which formerly existed, that a plaintiff ought not to
introduce facts,! by amendment, which have occurred since the
filing of the original bill, has been abolished. Our Order 348, taken
from the Imperial Statute 15 & 16 Vic, ch. 86, provides that
"Where, in a case not provided for by Order 344, a plaintiff desires
to state, or put in issue, facts, or circumstances occurring after
the institution of the suit, if the cause is otherwise in such a
state as to allow of an amendment being made in the bill,
such facts or circumstances may be introduced into the original
bill of complaint by way of amendment." And Order 369, that
" If the cause is not in such a state as to allow of the bill being
amended, the plaintiff may state and put in issue such subsequently
occurring facts and circumstances by filing a statement, either

■{>■:

HKVEVOR AND SUPPLEMENT.

1599

written or printed, to be annexed to the bill." Order 360, declares
tlmt "No such statement is to be filed, unless accompanied by an
affidavit that the matter thereof arose within two weeks next before
the filing of such statement, or unless the Court otherwise order.
A copy of the affidavit is to be served with a copy of the statement."
And Order 351, that " Proceedings by way of answer and other-
wise, are to be had and taken on the statement so filed, as if the
same were embodied in a bill ; but the Court mt'v make any order
which it thinks fit for accelerating the proceedings thereunder in
any manner that is just and practicable."

1^

to
the
Iken
that
jires
Ifter
a
)ill,
Inal
that
liiiig
itly
Iher

The plaintiffs had obtained a judgment at law against P., one of
the defendants, upon confession, and as judgment creditors under
that judgment had filed their bill to set aside a prior judgment of
other defendants, and had moved for and obtained an injunction to
restrain a sale of the goods of P. under such prior judgment.
After the injunction had been granted, the plaintiffs obtained
another judgment against P. not upon confession, but by uefault.
Under these circumstances, a motion for leave to amend the bill
by alleging the recovery of the second judgment was granted.^
Apart from any general orders this Court has power to permit an
amendment of its own records ; so that though the Orders of 6th
June, 1862, did not provide, in some exceptional cases, for the
introduction into the suit of matter arising subsequent to its
institution, such matter was ordered to be introduced upon motion
for leave to amend the bill.*

In England the clause of the Statute from which the Orders
348, 349, 350 & 351, have been taken (Imperial Statute 15 & 16
Vic, ch. 86, sec. 53,) have been held not to apply to cases where
an amendment is desired after decree.^ In such a case by the
English practice, a supplemental bill must be filed ; but as ** sup-
plemental bills," and " original bills in the nature of supplemental
bills," are abolished by our Order 6, it is presumed our Court would
hold that ihese orders extend to cases of amendment after, as well
as before decree. • ' , •

1 Montreal Bank v. Aiibuni Exchange Bank, 1 Chant Rep. 28S.

2 Baird v. White, 1 Cham. Rep. 276,

3 Commerell v. Hall, 2 Drew. 194.

I

43 K? &;;

:d

\

3

1600

REVIVOR AND SUPPLEMENT.

i

tint

cx,

If this be a correct view of these orders it will be necessary to
state the English Law as to supplemental bills, for thn principles
of the English cases will apply : — the only difference beinp that in
England n "supplemental bill" is used, while here a "supple-
mental statement " under thest* orders will be resorted to. With
this explanation the following cast's can be read without uiis-
leading.

A .supplemental statement is only available for the purjiose of
stating new facts lietween tlie same parties ; and cannot be used
for tlie purpose of adding parties.'

A defendant, although he have tlie conduct of the suit, cannot
lile a supplemental statement f nor will the Court, on the applica-
tion of the defendant, order the plaintiff to file a supplement state-
ment.

A plaintifi' cannot support a bad title by acquiring another after
the filing of the original bill, and then bringing it forward, by sup-
plemental bill or statement f and the supplemental matter must
not contradict the statements of the original bill.* Where, however,
the plaintiff has stated, in his original bill, a good inchoate title,
which only requires some formal act to make it perfect, such act
may be stated by supplemental bill or statement.^

A supplemental bill, after a decree, must be strictly in aid of
that which the Court has already done f it must not seek to vary
the principle of the decree; but must take the principle of the
decree as a basis, and seek merely to supply any omission which
there may be in the decree or in the proceedings, so as to enable
the Court to give full effect to its decision.^ If it does more than
this : if it makes a new case, or is inconsistent with, or impeaches

1 Commerellv. Hall, 2 Drew. 194 ; Heath v. Chapman, 17 Jiir. 570 : 1 W. R. 344, V C. K. ; Heath v.

Leteii, 18 Beatr. 627 ; Williamif v. Jacknon, 6 Jur. N. S. 204 : 7 W. 11. 104, V. C. W. ; A'icholtion v.
Gihb, 2 W. B. a37, V. C K. ; tt'ebh v. Warill,; 11 Jur. N. S. 278, V. C. K.

2 Lfio V. Lee, 9 Hare, App. »l ; but ho was allowed to file a suppleuicnta; bill : see 10 llai-c, App. V2 ;

17 Jur. 272 ; S. C. nom. Liin v. Lvr, 4 Dc O. M. & G. 219 : 17 .Iiir. «107 : and sec Hfrroir v. Mnrrin,
10 Beav. 437.

;« Tonkin V. Lethhridije, ii. Coop. 43 ; Davidnon v. Foley, 3 Br«>. (' C. 598: Pilnington v. Wi'ffiudl, 2
Madd. 240 244 ; I'ritchard v. Draper, 1 R. & M. 101 ; and see Attr>rncii-G<tu,-ttl v. Portreeve of
A run, 11 W. R. 1050, L. JJ. ; Uoti/rep v. Tucker, 33 Utav. ibo : 9 Jur. \. S. IISS, and ea»es cited
33 Beav. : 8S, ii. ; Beardmure v. Gregorn, 2 H. & M 491 : 11 Jur. N. S. 3«:t.

4 Toiimon v. Judge, 2 Drew. 414 ; l)ut .see Allen v Sprint/, 22 Beav. SVt ; Hnlton v. Itid»dale, 2 W. R.
488, L. JJ. ; ih. 451, V. C. S.

it Muler V. Chauvil, 5 Buss. 42 ; Sadler v. Lurett, 1 Moll. 162.

*i_Wilmn V. Todd, 1 M. & C. 42, 47. 7 Hodgm v. Ball, 1 Phil. 177, 182.

d of

vai\v
the

hicli

ablt'
hail

ches

katli V.
llKon V,

U. V2 ;
l/orriK,

[iMll, -2

Is Clttill

W. K.

UtViVOK AND SUPPLEMENT.

1601

the decree: theu it becomeH a bill of review, or a supplemental
l)ill in the nature of a bill of review, which cannot be filed. One of
the tenin of this is, whether the decree, if not referred to in the bill,
could have been pleaded in bar of the relief prayed.' Thus, where
the plaintiff, who had obtained a decree for an account, in the
common form, sought, upon a suppleraental bill, alleging new facts
wliich had been discovered subsequently to the tiling of the original
bill, to obtain an account of what, but for their wilful neglect and
default, the defendants mif^lit have received, the bill was ordered to
be taken off the tile for irrtjularity ;- but where a defendant, who
had the conduct of the afuse, filed a supplemental bill, for a
similar object, it was not i^oiisidered irregular ; and a decree was
made upon it.^

Many of the causes of demurrer which apply to an original bill,
will apply to a supplemental bill ;■* but there are some grounds of
demurrer which are applicable solely to supplemental bills. Thus,
if a supplemental bill is brought upon matter arising before the
filing of the original liill, where the suit is in that stage of pro-
ceeding that the bill may bo amended, the defendant may demur ;^
although the bill contains an allegation that the facts were not
known to the plaintiff' till the original cause was at issue. But an
objection to the bill on this ground cannot be sustained at the
hearing.' A defendant to a supplemental bill may also demur, if
the same plaintiff* tiles a supplemental bill, claiming the same
matter as in his original bill, but upon a title totally distinct : as,
where a plaintiff who had filed a bill to redeem a mortgage, as heir
at law, was found not to be the heir, and ho afterwards bought in
the claim of a third person to the heirsliip, and filed a supple-
mental bill claiming under that purchase, a demurrer was allowed.^
A defendant may also demur, if a bill is brought against him, as a
supplemental bill, upon matter arising subsequent to the time of

1 Taylor v. Taylor, I McN. & G. 397, 405; Bainbrigijc v. Haddetey, i Phil. 70c, 708 : Toultniii v.
Copland, ib. 711, 715, overruling S. (J. i Haru, 41.

•-» Hodson V. Ball, 11 Sim. 456, 461 : 1 Phil. 177, 182 ; and see observations of L. J. Turner on this
case, 4 De G. JI. & O. 221 ; sei- also Wilson v. Todd, 1 M. & C. 42. 40 ; yieiodigate v. Seiediyate, 8
Bligh. N. S. 734 ; Toulmin v. Copland, 2 Phil 711, 716 ; Tynte v. Hodge, 13 W. R. 172, V. C W.

3 Bvrrow v. MorrU, 10 Beav. 4;',7 ; and see Slii'i,h''ril v. Toivrfood, T. »R. 379, 393

i Ld. lied. 201. .-•> /.(/. He'd. 202.

6 Colclouyh V. Eeans, iiiim. 70, 80; but fee Croniijtoa v. Wombivell, ib. 628, 633; and Attornry-

Oennral v. FLihmnnyi'rit' Company, 4 .M. .t (^.1,9.

7 Hanyer v. Grvnt Wentern Railway Company, 13 Sim. 308, 371.

."I Tonkin v. Lethhridye, (J. (Nuip. 43 ; see ante, and see Pilkinyton v. Wigna/l, 2 Madd. 240, 244.

■-0

11

1602

IlKVIVOR AND sriM'I.KMKNT.

OflAH-:

3c.

filing the original bill, and he claims no intcrost in tli«' uiattcrB in
litigation by the former bill.' *

Where the bill was framed ur an original bill, but prayed that,
" if necessary or proper, tlio suit might betaken as supplemental "
to the former suit, and a demurrer for want of equity was put in
on account of these words, the Court (without deciding wliether
the suit was properly a supplemental suit or not,) overruled the
demurrer, with costs.^

A motion will not lie to take a supplemental bill off the file, for
irregularity on the ground that it does not state supplemental
matter. The proper course, in such case, is to demur.^

Besides those grounds of plea which are common to supple-
mental and original bills, if a supplemental bill is brought on mat-
ter which arose before the original bill was filed, and might have been
introduced into the original bill, and this fact does not appear upon
the supplemental bill, it may be pleaded.^ •

Pleas and demurrers to supplemental bills are subjoct to the
same rules, both with respect to their form and substance, and to
the practice arising upon them, ns pleas and demurrers to original
bills.

If the supplemental bill is filed after replication in the original
suit, a separate replication may be filed in the supplemental suit ; '
but although the original suit is brought to a hearing after replica-
tion filed, the supplemental suit may, if desired, be brought to a
hearing on motion for decree f and where this course is adopted,
the affidavits and other evidence filed in the cause may be set forth
at the foot of the notice of motion for the decree, and thus used in
the supplemental suit.^

1 Ld. Red. 202 ; and see Baldwin v. Muekown, 3 Atk. 817.

a Earlu/Shreiciibury V. Sorth Staffonhltire Raihoay Company, 9 3\xr. N. S. 7«7 : 11 \V. R. 7J2, \,

C. K. ; and see observations of the V. C. on this forni of praver, ib.
3 Bowyer v. Bright, US Pri.WUO.
♦ Or a motion may, It seems, be made to take it off the file: Hanger v. Ureat WeHcni Jiailuan

Company, 13 Sim. 368.
5 Catton v. harl of Carlisle, 5 Madd. 427. As to replication, see ante.
0 Owyon V. Oifiyon, 1 K. & J. 211. As to motions for decree, see ante.
7 tiwyon v. Owyon, ubi nip.

It •'(..

at)AMu.>f

REVIVOR AND SUPPT-FMENT.

leon

rs \\\

that,
ntal "
)ut in
lietliei-
3(1 the

\le, for
mental

supph;-
m mat-
ve heen
ir upon

to the
and to
u-iginal

)riginal

suit ; •'

[eplica-

Iht to a

[tlopted.

it forth

kised hi

It is to be recollected, that a supplemental Huit is merely a con-
tinuation of the original suit : and that, whatever evidence was
properly taken in the original suit, may ho made use of in both
Huits, even though not entitled in the supplemental suit. Thus,
evidence taken in the original suit may be read at the hearing of
both causes ; and this was permitted in a case where the original
bill was tiled by the plaintiff, a married woman, in a wrong name,
(namely, as the widow of the testator, when her husband by a
previous marriage was living,) and the object of the supplemental
bill was to correct this error, and to bring her husband before the
Court.'

Jf there has been no decree in the original suit, before the sup-
plemental bill is filed, the original and supplemental suits may
come on for hearing together, (unless the supplemental bill is
merely for discovery,) and one decree will bo made in both- But
if a decree has been obtained before the event by which the sup-
plemental bill was rendered necessary, though it is only a decree
nisi,'^ there must be a decree on the supj^lemental bill : for which
purpose, the supplemental cause must be set down for hearing
iilone ; or it may be heard with the original cause for further con-
sideration : for which purpose, the Court will, if necessary, order
the supplemental cause to be advanced.''

If the supplemental hill is liled after decree, it must be brought
to a hearing on independent evidence ; but the defendant cannot,
upon such hearing, object that the decree in the original suit was
wrong: he must submit to the usual supplemental decree, and
appeal in both suits.^

1 Oiles V. OUcM, 1 Keen, 685. As to evidence, see ante.
•1 Ld. Red. 04, 76. 3 Ld. li,'d. 04.

i fiot) ante. For forms of decreus on siipplomontal bills, soo,S(•^J;l, 1174, ft wiy.
a Jenkins s . Groan 16 Sim. 70.

77

?^

€

'*m'.

^

!''-■

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i;.:)

:;s)

f

JK. Hi, V.
llailu'on

( 1604 )

CHAPTER XXXVI.

INTERLOCUTORY AND OTHEK APPLICATIONS BY MOTION OR PETITION,

AND ORDERS THEREON.

ex..

Generally.

An interlocutory application is a request made to the Court, or
to a Judp;e in Chambers, for its interference in a matter arising in
the progress of a cause or proceeding ; and it may either relate to
the process of the Court, or to the protection of the property in
litigation pendente lite, or to any matter upon which the inter-
ference of the Court or .Judge is required before, or in consequence
of, a decree or order.

Interlocutory applications are extremely various ; and the
occasions upon which they may be luade are too numerous to be
discussed in a general Treatise of this nature. They may be made,
either to the Judge at Chambers, or to the Court. Applications of
this nature in Chambers have been already considered ;^ and it is
proposed here to describe the mode in which they are made by
motion or petition to the Court.

Interlocutory applications, when made viva voce to the Court,
are called motions : when they are made in writing, they are called
petitions. There does not appear to be any very distinct line of
demarcation between the cases in which they should be made by
motion, and those in which they should be made by petition ; but,
as a general rule, where any long or intricate statement of iacts is
required, the application should be made by petiti(m ; while, in
other cases, a motion will be sufficient.^ Although it is competent
to the Court to order money in Court to be paid out, upon motion,

1 Ante.

2 Jonet V. Roberts, 13 Sim. 180.

GENERALLY.

1605

the

o he

aade,

)n8 of

litis

e by

bourt.

lalle.!

^le of

le by

but,

3ts is

le, in
iteiit
btion,

it is generally done on petition,' where there is no jurisdiction on
flinnmons.^ In like manner, all applicatiouH for orders, which par-
take more of the nature of decrees or of decretal orders than of
interlocutory proceedings : such as applications founded upon a
separate certificate :^ or to wind up or compromise suits,* should
be made by petition ; and so, in general, must all applications to
the Court, upon matters arising out of decrees or decretal orders :^
except those relating to tlie process of the Court, or for enforcing
the performance of them, which are usually made upon motion."
In Lord Shiphrooh; v. Tjord Hincli'inhrook,'' Lord Erskine says " 1
do not find that there are any precise or positive boundaries
between motions and petitions, as they are to be applied to carry
into effect decrees and orders, so as to exclude all discretion in the
Court to grant or refuse them, according to circumstances ; but,
generally speaking, motions, which have for their object the giving
effect to decrees and orders, should be confined to cases where the
order, wliich is to be made upon the motion, arises out of recent
proceedings, upon which there is no doubt : for, as the adverse
party knows nothing but by the notice, containing only the name
of the cause and what is prayed of the Court, the proceedings
ought to be recent and notorious, so as that the adverse party may
be supposed to be perfecily conusant of all the steps and proceed .
ings in the cause, as much as if, at a greater expense, they were
recited in the petition."

A plaintiff having obtained a decree for payment of money,
registered the same pursuant to the Statute 20 Vic, ch. 56, and
iipplied on petition for an order to sell the lands affected by such
registration. By the same petition he impeached a sale of the same
binds riiide by the defendant to his mother, before the registration
of tlie decree, and souglit to have the sale declared fraudulent and

1 Lord Shipbrcohe v. fjord lIinchinbrouk;l3Vo9,39i ; Ileathcote v. Edwardt, J&c. 504 ; Oarrattv.

Mblock, 5 Beav. i43.

2 See ante. 3 Ante.

4 Winthrop v. Wintlirop, I C. P. ("oop i. (UM. 20^,203 ; A-skcv y. MiIlingttm,iHiAre, 65; Richardson

V. Eyton 2 De U. >I. X; U 79, iiO ; IJarrixdit v. Laiie, 2 Sin. & (! 240; Dauwiuv. j.V«Misome, 6 Jur.
N. S". 62f. : 8 W. H. 72r,, V. 0. S.

5 See Winter v. Inncs, 4 M. & C. 101, 106.

6 III Sicholson v. Squire, 1(5 Ves. 2fiO Lord Elilon said : " I cannot liear parties who are under coni-

mitnieiit, except upon iHititio.i." Whore a person, not a party to the cause. Is injuriously affected
bv an injunction, lie may apply by petition to net it ftside : liourba^id v. Bourbaud, 12 W. R.
1024, v. C. W.

7 13 Ves. 303.

y..

4:

jjf.

,

(C

::d

■;.,J

■■3

c:

nf..

1606

INTERLOCUTORY APPLICATIONS AND ORDERS.

CJ :;v,

cc.

void as against him, but the Court, though strongly impressed with
the mala fides oi the tran8action,thought the question raised would be
best decided in e suit to be brought to test the validity of the con-
veyance by the son.^ A. having an interest in improvements, for
which in a suit between B., his vendor, and C, B. obtained a decree
— it was held thttt A. could not by petition make himself a party to
such suit, and that his remedy was by bill.-

Although the Court refuses to entertain an application, on tlfe
ground that it ought to have been made in another branch of the
Court, it may nevertheless ^rder the applicant to pay the costs of
the application.'^ An order made by a branch of the Court which
has not properly jurisdiction over the cause must, till discharged,
be treated as a valid order ; and the party affected by such order is
not at liberty to treat it as a nullity, by obtaining another order
inconsistent with it, from the proper branch of the Court.*

Interlocutory orders are either of course or special. Orders of
course are those to which no opposition can be offered ; and are
drawn up without any direct application to the Judge. Special
orders are those which the Court, in the exercise of its discretion,
may either grant or refuse. ,

No notice need be given of the application for an order of
course, as no opposition can be offered to it."* If there is any
irregularity in the order, or it has been obtained upon any false
suggestion, or by the suppression of any material fact, it will be
discharged on special application by motion : although on the merits
it would have been proper to make the order.*^ ,

If an order has been irregularly obtained, the party who has
obtained it should take the earliost opportunity of discharging it :

1 Pish V. Carmyie, 7 Grant, 479.

2 Slater r. Toung, llGrant, 268.
3

4

Cooper V. Knox, 15 Beav. 102 ; Yeardeii v. Yeardry, 19 Beav. 1

Bcddv V Kent, 1 Mer. 'M\ ; W'dkim v. Stei'ens, 10 Sim. 017 ; Fennitiijn v. Iluinphcri/, 4 Beav. 1, 7 ;
Blake v. Blake, 7 Beav. .'J14; Chuck v. Gremer, 2 Phill. 113 : 1 C. P. Voo\<. t. Cott. 338, 342.

5 Kyles v. Ward, Mos. '2!>5. In .some cases, liowever, where the aviiiliuation would other\<'isc b«
special an order of course can only be obtained on the oppesite i)arty subscribing liis consent
thereto' on the petition. The consent should be written opposite the prayer.

« ffarris v. Start, 4 M. & C. 261; Brooks v. I'urton, 4 Beav. 494 : St. Victor w. Deocreua;, 6 Beav. .')84,
588 • 8 Jur. 26 ; Marquis of Hertford v. Suisxe, 7 Beav. 160 ; llolcomhe v. Antrohus, 8 Beav. 406,
412 • Wilkin v, Namby, ib. 465 ; Ve Feucheres v. Dawes, 11 Beav. 46 ; BrigiMll v. White-
head 30 Bear. 229: 8 Jur. N. 8. 183 ; Wyllie v. Ellice, 12 Jur. 711, M. R. ; Cooper v. Leim, t

PhlH. 178.

GENERALLY.

1007

110

[ing it :

otherwise, any party affected by it may procure ita discharge, at
the costs of the person who obtained it ;^ and, moreover, no sub-
sequent order to the same effect can be obtained until it has been
discharged.''^

After an order of course has been obtained, it ought to be served,
as soon as jiossible, upon the party intended to be affected by it,
or his solicitor : for, although it does not seem that an order of
course is absolutely no order until it is served (as it has been con-
tended), yet, if the other party takes a step before the order is
served, that step being in itself regular, the order which had been
obtained and not served, cannot afterwards be acted upon, if it
will interfere with the step so taken.s

After service, an order of course cannot be amended and subse-
t^uently re -served, so as to make the amended order, served after
the time, regular.*

If it is intended to enforce the performance of the order by pro-
cess of contempt, the order must be personally served upon the
party to be affected by it, in the manner before explained ;^ unless
ii special order has been obtained to authorise substituted service.^
In other cases, the service is made in the same manner as other
service not required to be personal.^ Where an order was made
for the payment of a sum of money by two solicitors, who were in
copartnership, service of the order upon one, and leaving a copycat
the place where the partnership business was carried on, was held
uot to be sufficient to ground a proceeding for a contempt.**

Interlocutory orders are enforced by attachment and other pro-
cess of contempt, in the same manner as other orders.^

1 Tarbuck v. Tarbuck, 4 Beav. 149 ; Lincoln v. Wright, ib. 166 ; and see Davis v. Franklin, 2 Bear

369, 375.
i Pearce v. Graf/, 4 Beav. 127, 129,

3 Clniroh v. Margh, 2 Hare, 652 ; and see Ballard v. Catlin<j, 2 Keen, 606.

4 Wool V. Townde,}/, 9 Beav. 41, 44. ' 5 Ante.
6 Hunter v. , 6 Sim. 429 ; lie Mourilyan, 13 Beav. 84 ; Re Witeioold, 16 Beav. 857. As to

•St,
'•S3

^

substituted service, see ante.
7 Ante. 8 Young v. Goodson, 2 Russ. 256.

0 Ante,

1608

INTERLOCUTORY APPLICATIONS AND ORDERS.

II

Motions.

A motion is an application, either by a party to the proceedings,
or his counsel, not founded upon any written statement addressed
to the Court.

A motion may be made by or on behalf of any party to the
record, provided such party is not in contempt.^ A person who is
quasi a party to the record, such as a claiiuant coming in under a
decree, or a purchaser of an tstate sold l)y order of the Court, may
also apply to the Court in this manner : tliough it was formerly
considered that he could only do ho by petition.^

A motion is either of course, or special.

A motion of course requires no notice, as no opposition will be
allowed to it.^

The times for the sittings of the Court, and for hearing motions
have been fixed by a number of Orders, which are here introduced
in full.

Order 590 provides that " A Judge will sit in Chambers every
Monday, and on such otlicr days us the state of business may
require, to hear and dispose of such Chamber applications as cannot
be*lieard and disposed of by the Eeleree."

Order 591 that "Appeals from the Eeferee in Chambers, or
from local Masters and others when they are acting under Order
36 or under the Act for Quieting Titles, are to be heard in Chambers,
and are to be set down for that purpose on or before the preced-
ing Saturday. Seven clear days' notice is to be given of all appeak
under the Act for Quieting Titles ; and two clear days' notice of
other appeals from the Eeferee in Chambers. All such appeals
are to be argued by counsel."

1 Ab to the effect of contempt, see ante, Chuck v. Cromer, 1 C. 1* Coop. t. Cott. 247. An attach-

ment issued ay^ainst a party, after lie ha.s .served a notice of motion, but before tlie motion made,
will not prevent his making' it : Jeyeis v. Foreman, (5 .Sim. 384. An to applications by a party in
contempt, see anti^.

2 Ante, Joneu v. HoberU,X'l Sim. 189. 3 See EylcK v. Ward, Mos. 265.

-m-

Motions.

1609

Lings,
eased

;o the
vho is
ider a
k, may
rmerly

will be

notions
oduced

every
5fe may
cannot

lei'B, or
Order

imbers,
)reced-
ippeak
)tice of
ippeals

I All attach-

^ion made,

a party i"

Order 592 that " A Judge will sit in Court on Tuesday, Wednes-
day, and Thursday, and on such other days as the state of business
may require, in every week, for the despatch of all business other
than rehearings and Chamber business."

Order 593 that "The business before the Court will be taken as
follows :

Tuesday. — Motions.

Wednesday. — Hearings pro confesso ; and on Bill and
Answer ; Motions for Decree ; Further Directions ;
Petitions ; Demurrers.

Thursday. — Appeals from Masters' Reports.

Order 594 that " No orders of course, or orders made in Cham-
l)ers, are to be entered, except : —

Decrees issued upon Praecipe ;

Decrees against Infants;

Orders declaring persons Lunatics ; •

" for Administration ;

" for the Sale of Infant's Estates ;

" for Payment of Money into or out of Court ;

'* for Foreclosure or Sale;

*' of Revivor ;

'* Vesting Orders ;

and such other orders as may from time to time in any particular
case or otherwise be directed to be entered."

Where an injunction is granted to a particular day which is not
a motion day, and the writ is served, together with a notice of
motion for that day to extend the injunction, the notice is not

1

'If

1610

INTERLOCUTORY APPLICATIONS AND ORDERS.

C3
CI

O

irregular, though it omits to mention that such notice is given by
leave of the Court. ^ A notice of motion given for a day, which is
not a regular Court day, unless leave of the Court be obtained for
that purpose, is a void proceeding, and the party served need not
attend thereon.^

It may be convenient here to mention that in England, many
motions are made by way of Summons : — in this Province
the practice is simplified ; for all proceedings, which in England
would be taken either by Summons, or notice of motion, are here
taken by the latter mode. With this explanation the English cases
will be read without misconception.

Motions of course are granted without the Court being called
upon to investigate the truth of any allegation or suggestion upon
which they are founded, and are not mentioned in Court.

A special motion is one which it is not a matter of course to
grant, but which the Court, in the exercise of its discretion, may,
on the facts established in support of the application, either grant
or refuse. Motions of this description may be made either ea- parte,
or upon notice.

Special ex imrte motions are not limited to the ordinary motion
days, but may be made to the Court at any time during its sittings ;
or, if the Court be not sitting, they may be made to one of the
Judges, at his private house. In such cases, however, care must
be taken to make the motion before the Judge who has properly
the cognisance of the cause, unless it is made during vacation. If
any material fact is suppressed at the hearing of an ex parte
motion, the order may be discharged with costs.^

It is impossible to lay down any clear rule defining such motions
as may be made ex parte, and distinguishing them from such as
require notice. The General Orders usually state whether any
applications to be made under their provisions require notice or
not ; and special applications concerning the proceedings in the

1 Johtuon V. Cass, 11 Grant, 117. 2 Stevenson v. Hoffman, 4 Grant, 318.

.3 Sturgeon v. Honker, 1 De G. & S. 434 ; Dahjlixh v. Jarvie, 2 McN. A G. 231, 243 ; see also Re Rem,
12'Beav. 256.

W:

\

MOTIONS.

1611

notion
ttings;
lof thf
must
[operly
)n. If

cause, not regulated either by the General Orders, or by any
clearly defined rule of practice, must almost always be made upon
notice.^

Where an order was made that a case should" stand over, with
liberty to the plaintiff to amend within a month, and, on his mak-
ing default, that the bill should be dismissed with costs, and the
plaintiff having madts default, the defendant obtained an order to
dismiss without notice, it was held that the order was regularly
obtained; and an application to discharge it was refused.'^

When the application to be made to the Court is not of course,
or does not come within that class of special applications which the
Court permits to be made ex parte, a statement in writing of the
terms of the motion must be served upon the adverse party or his
solicitor, before the day on which the motion is intended to be
made. This statement is termed a notice of motion.

Unopposed motions may be made on any day while the Court is
sitting f but the Court appoints special days for the hearing of
motions ; and whenever a motion of importance is required to be
made on another day than one of the days appropriated to motions,
special leave must be obtained to give notice of the motion for that
day.

A notice of motion must be properly entitled in the cause or
matter in which the application is to be made.* It must be cor-
rectly addressed to the solicitor of the party or parties intended to
be affected by it," or to the party himself where he acts in person,
or personal service is intended ; and be signed by, or in the name
of, the solicitor, or firm of solicitors, of the party moving, or of the
party himself where he acts in person. A notice of motion by a
party suing or defending in forma pmqieris (except for the dis-
charge of his solicitoi), must be signed by the solicitor of such
pauper.*^ A notice of rdotion must state the day on which the
motion is to be made : which must, as we have just seen, be one of

1 Manhall v. Mcllersh, 5 Beav. 496. 2 Dobedc v. Edwards, 11 Sim. 454.

3 Chaffers v. Baier, 5 De G. M. & O. 482 : 1 J»jr. N. S. 32.

4 Rowlatt V. Cattell, 2 Hare, 186 ; Solomon v. Stalman, 4 Beav. 243 ; Davu v. Barrett, 7 Beav. 171 ;

Pollard V. DoyU, 2 W. R. 509, V. C. K.

5 Moody V. Hebberd, 11 Jur. 941, V. C. W. ; and see Hutehimon v. Homer, 9 Jur. 616, V. C. W, ;

Parker v. Francis, ib. 616, V. C. E. , n.

6 Ptrry v Walker, 4 Beav. 462 : 6 Jur. 1081. .

I-

Hii'2

INTERLOCUTOKY APPLICATlOiNS AND ORDERS.

^.

the daya appointed for motions, unless special leave has been
obtained to give the notice of motion for another day. The notice,
however, though it expresses the day when the motion is to be
made, usually adds " or so soon after as counsel can be heard; "^
and whenever a motion is to be made " by leave of the Court,"
the notice ought to mention that it is so made : otherwise, the
party against whom it is to be made may disregard it.^

A notice of motion must state clearly the terms of the order
which will be asked for ; and where the object is to discharge an
order for irregularity, it is usual, but not necessary, to state the
ground of the application.^ It may include several objects : such
as, the appointment of a receiver, an injunction, and the payment
of money into Court. Where separate motions were made for two
objects, which might have been obtained by one motion, the Court
made a special order, directing the party making such motions to
pay the extra costs occasioned by the irregular proceeding.*

Where it is intended to read affidavits or depositions at the hear-
ing of a motion, the intention to do so must be mentioned in the
notice of motion : otherwise they cannot be read.^ But it is not
necessary to state in a notice of motion, that a certificate of an
officer to the Court will be read in support of the application ; such
certificate can be read though no such notice be given.® All era-
snres and interlineations in affidavits must be initialed by the Com-
missioner before whom they are sworn, otherwise they cannot be read ,
The notice of motion in referring to an affidavit should state the
day on which it was filed.'' It is no objection to a motion made by
leave of a Judge that the name of the Judge granting leave is not
given in the notice of motion.^

No person ought to join in a notice of motion who is not inte-
rested in the result of the application ; and so strictly was this
rule adhered to, that where the name of an uninterested party was

1 See Re Electric Telegraph Company ofJrelanif, Ex parte, Budd. 10 W, R. 4, L J.).

2 Hill V. Rimell, 8 Sim. 632 : 'i Jur. 45 : '2 M. h C. 641 ; JncHin v. WilkinH, 6 Beav. 607 ; lHoaijridgc v

Thmnan 2 C. P. Coop. t. Cott. 166 ; Chamhfi:-i v. Tvyiil»-e, 12 W. R. 1100, V. C. K.

3 Brown v Robertson, 2 Phill. 173 ; and see Lamhi'rt v. Hill, 1 Dr. ^ War. 74.

4 Hawke v. Kemp, 3 Beav. 288. S Fnri^h v. Martyn, 1 Grant, 300.

6 Cooper'n Dig. 393. 7 McMartin v. Dartnell, 2 Cham. Reji. 322.

8 Ijindtay Petroleum Co. v. Hurd, 2 Cham. Rep. 387.

m:'::

MOTIONS.

1613

been
lotice,
to be
id ; " 1
lourt,"
,e, the

order
irge an
a,te the

: such
Eiyment
for two
e Court
tions to

le hear-
d in the
t is not
of an
; such
lAll era-
he Com-
be read,
itate the
lade by
\g is not

lot inte-
^as this
jbrty was

\Moyij ridge

inserted in the notice, with the names of others who were entitled
to apply, the Court refused the whole motion.^

As a general rule, no person can be heard in support of a motion,
unless he is one of the parties who gave the notice.'^ If the object
of the application is to discharge or vary a Chief Clerk's certiticate.
it seems that all persons interested in the certificate are entitled to
be heard against the application.^

A motion cannot be made on behalf of the relators in an infor-
mation : it must be made on belialf of the Attorney-General.*
Where the applicant is an infant,'' or a married woman> without
her husband,® or other persons under disability,^ the motion is
made by the infant,, married woman, or other person, by a next
friend, "v.'bere a person, already acting as next friend, refuses to
join in the motion, a next friend must be named for the purpose of
the application ;^ and if no next friend is named in the notice, the
solicitor giving the notice of motion may be ordered personally to
pay the costs.^

A notice of motion for any process of contempt or commitment
must be served personally upon the party to be affected by it
unless an order is obtained for substituted service. In other cases
tlie notice should be served in the manner before explained.*''

The application for substituted service of a notice of motion is
made by ex parte motion, supported by affidavit.**

If any of the persons upon whom the notice of motion is sought
to be served are out of the jurisdiction of the Court, they will, it is
presumed, be Lierved under Kule 6 of Order 7, of the Orders of 10th
January 1863. Order 90 of the Consolidated General Orders of
1868 is copied from this order as far as, and including Rule 5. Rule
6 provides that '* the time within which any party served with any

1 Polland V. Lemotte, 10 Sim. 486.

2 StiU>bs V. Samon, 3 Beav. 408 ; and see Jacquet v. Jacqui't, 7 W. R. 643, M. R.

3 Johnntmt. v. Todd, 5 Beav. 394, 396 ; and .see ante, and Bonser v. Cox, 4 Beav, 379.

4 A ttomey-General v. Wright, 3 Beav. 447

6 Ptdduck V. honltbee, 2 Sim. N. S. 223 ; see ante.

H Peame v. Cole, 16 Jur. 214, V.C.K. ; see ante. As to suits by InisbaJid and wife, or her alone, with

out a next friend, see ib. and see Cooney v. Giroin, 1 Cliani. Rep. 94.
V See ante.

8 Cox V. Wright, 9 Jur. N. S 981 ; 11 VV. R. V.C.K. ; and see Guy v. Gui/, 2 Beav. 460 ; Furtado v

Furtado, 6 Jur. 227, L. C. ; as explained in Cox v. Wright, xibimi>. ; and see ante.

9 Peane v. CoU, 10 Jur. 214, V. C. K. 10 Ante.
11 As to liubstituted service, see ante.

1614

INTERLOCUTORY APPLICATIONS AND ORDERS.

petition, notice, or other proccedinpj other than a bill of complaint,
is to answer or appear to tlie same, is to be the same time as pre-
scribed for answering or demurring to a bill of complaint, accord-
ing to the locality of service." Although this is omitted in the
late Consolidated Orders, it is presumed to be still in force under
Order 2. >

A copy of any order giving leave to serve the notice out of tlie
jurisdiction, or to effect substituted service, n ast be si-rved with the
notice of motion, it is presumed that tlie power to authorise the
service of notices of motion abroad, is co-extensive with that to
authorise the service of the copj' of the bill.^

Where the motion was made against a foreign corporation which
had an office in this country, service of the notice of motion on the
company at that office was held sufficient.'-

Order 262 provides that " a notice of motion by a party to the
suit, may be served with the bill, or at any time after the bill is
served without the leave of the Court " and Order 263 that " there
must be at least two clear days between the service of a notice of
motion, and the day named in the notice for hearing the motion,
unless the Court or a Judge gives special leave to the contrary ;
and in the computation of such two clear days, Sundays, and days
on which the offices are closed, are not to be reckoned."

The practitioner will bear in mind that Order 201 provides that
" all the affidavits upon which a notice of motion, or petition is
founded must be filed before the service of the notice of motion or
petition ; and affidavits in answer must be filed not later than the
day before that appointed for the hearing of the motion or
petition."

There must be two clear days between the service of a notice and
the day for hearing the motion, and in the computation thereof
Sunday is not to be reckoned. The meaning of the order is that

t Ante, Green v. Pledger, 3 Hare, 165 : S Jur. 801 ; Vicvuutesg Hay warden v. Dunlop, 10 W. R. 6S3,
v. C. K.

2 Maelaren v. Stainton, 16 Beav. 279.

3 A"* CrookK, 1 Cham. Rep. 304, overruhnf S2)ra<jnc v. Ilendemon, 1 Cham. Rep 213 : where it wiw

held that, when Sunday is an intermediate day, it i.s reckoned iii the computation of the time fur
service of papers. But see H^Uton v. Gould, 2 Cham. Rep. 236 , and Kelly v. Smith, 1 Cham.
Rep. 364.

aint,
pre-
cord-
i the
mtlor

)f the
ih thf
Be the
lat to

which
on the

to the
; bill is
," there
)tice of
notion,
itrary :
d days

MOTIONS.

J

leiT)

when the service ia made on Saturday, the next day, Sunday,
is not count(Hl -or where it is made on Friday it will not be
reckoned. Sunday must not he computed either where it is the
lirst or the last day of tlie computation — l)ut in all otlierH canes it
is reckoned.

Leave to serve short notice of motion will be given, whenever the
circumstances of the case require it ; but it cannot be implied from
the fact that leave has l)een fj[iven to serve notice of motion for a
particular day.^

Service of a notice of motion is effected by delivering a tr ue copy
of the notice to the p(^rson on whom the service is made.

The person who serves the notice should, after serving it, make
an affidavit of the service : to be used, in case the party served
should not appear when the motion is made.

The affidavit of service ought, in strictness, to be made and filed
l)efore the motion is made. It may, however, be filed afterwards ;
but no order will be drawn up on an affidavit of service of a notice
of motion or petition, unless it is made and filed, at the latest,
before the rising of the Court on the day on which the application
is made.^ If this is not done, or the affidavit is not sufficient, a
new notice of motion must be given f and an order taken upon an
affidavit of service may l)e discharged for any irregularity.'* -

3

^
■^

Ice and
thereof
lis that

W.B. 683,

kerc it wius

te time for

1 Cham.

According to the general rule of the Court, upon motion days,
the Judge calls upon each counsel in Court, in turn, according to
their seniority,'* to move ; each counsel, when called upon, has a
right to make two motions before the next counsel is called upon.
If, upon going through the bar, all the motions are not exhausted,
the same process is gone through, totles quotles, till all the motions
are disposed of. In the Court of Appeal, however, motions are set
down in the paper, and called on in their order.

1 llnrt V. Ihilk, (i Hare, Oil, 612 ; weo Xcit'toii v. Chorltoii, 10 Hare, App. 31, as to motions maile by

special leave of tiie Court

2 Lord Milltown v. Stuart, 8 Sim. .■J4. :? Barton v. C/tniiibers, 4 Beav. .547.

4 Solomon v. Stalman, 4 Bcav. 243.

5 Holtau V. Dc Held, 15 Jur. 1151, V. 0. K.

1616

INTRRT.OCUTORY APPLICATIONS AND ORDERS.

If a counRel is uimbki to make a motion, of which notice is given,
on the day namud, " or ho hoou aftor hh coimscl can ho heard," he
may save his notice of motion till tiio noxt motion day ;^ but if he
omitH either to make the motion or to Have it, tlie opposite party
may, when all the motions are exhauHted, or at the next motion
day, apply for liin contH of the motion.-

A moti(m is made by the counsel to whom it is entrusted f who,
in making it, reads the notice of motion, and the evidence entered
into on Ixihalf of the party for whom the motion is made. He can-
not, iiowever, read any alHdavits iiUnl before the date of liis notice
of motion, unless notice of his intention to read them has been duly
served on the opposite party.'

The solicitor for the party against whom a motion is to be made
should search the liecord and Writ Clerks' Office, up to the morning of
the day on which the motion is to be made, to ascertain whether any
affidavits have been filed ; but this search need not be carried back
beyond the day of the date of the notice.'^ The same thing should
be done by the solicitor for the party making the motion, in order
to ascertain whether affidavits have been tiled on the other side.
If the motion is not made on the day named in the notice, a party
tiling a further affidavit ought to give notice of his having done so
to the opposite party.

In giving notice of motion, and that the party moving will read
certain affidavits, if the same are filed at any time before the date
of the notice of motion, the notice must state the day of the filing
thereof, otherwise the affidavits cannot be used on the motion."
Where a notice of motion to commit for breach of an inj action had
been given for Good Friday, the Court refused to entertain tiie
motion at the next sitting.^ The following order and decisions as
to the entitling of affidavits and other papers may be here intro-

1 lie Banwen Irun Company, 17 Jur. 127, V. C. S. ; see pout.

2 See post. Where, however, a nuition ut' whicli iiotiee wan j^iveii for the '29th June, was onlereJ

on that day to stand over till tlie next motion day, (itli .July, but was not then either broutfht on
or saved, it was held tliat the nioviiij,' party was entitled to make the motion up to the close of tlie
following motion day, bjing Uie 13th July ': WedderburiiP v. LlcwcUiin, V.\ VV. R. 93!), V. ('. W,

3 Counsel's brief will consist of the evidence in support of and in opposition to the motion, and su'jii

obaei'vations as may bo deemed necessary. A copy of the notice of motion must be annexed ; and
in general, jirints of the bills and unswerw should aceompanj'.

4 Clement v. Gtij/ith, C. V. Coop. 470.

.■> Ibid. (I l-'raner v. Frmer, 13 Orant, 183.

7 h'itzjeraldv. J'hill!j)s,^0reint^5Sb.

th

MOTIONS.

1617

iluced : After a bill luiHbcen diHinisHod fiKainst one defendant, the
btyle of tho caiiHe, aH it originally waw, bIiouUI he continued. It is
not necessary to omit tho name of tlu^ defendant against whom the
bill has been disniinHed, and the ictintioii of tho name is not
irregular. Scd (jiurrr, would it b(( urcgular if the name were
omitted?' AtHidii vits, &.G., need not in their entitling distinguish the
parties by original and amended bill — it is suHicient to describe
them as the now parties to the suit." Attidavits styled in short form
" A. V8 B. and other plaintiffs, and C. D. and other dc'fendants "
were held to b(^ sutViciently styled and allowed to l)e read.^ Our
Order 597 provides that " in all proceedings in a cause, except
Bills, Petitions in the nature of Bills, J)ecree8, and Decretal Orders,
the following short style of cause shall be sufficient : " Between
John Smith und nfhers, Phi'nitt/f's, <u\(l RicJiani Hoe and othern,
lh'fen«lant>i." In ease " of proceedings which it has been the
practice to entitle more shortly thus. Smith v. Roe, such practice is
to continue."

'.:>

read
1 date

ming
tion."
u had
the
Ins as

intro-

If an affidavit which luis been tiled upon or in opposition to a
motion, requires an answer, but it has been filed so recently that
an affidavit in answer cannot be procured, the party affected by it
should, if he be the party moving, save his notice of motion till a
future day ; or, if he be the respondent, he should ask that the
motion may stand over, in order that he may file an affidavit in
answer. ,

In a pressing case, the affidavits have been allowed to be swom
in Court ;* but except under very special circumstances, the Court
will not allow affidavits filed since the motion was opened to be
read.^ It seems, however, that the admission of evidence must
depend on the circumstances of each case ; and, that, on a motion
for an Injunction, counsel may make use of any affidavit liled before
he addresses the Court.®

1 (T. C. Minimj Company v. Attorney-Oeneml, 2 Cham. Rep. 186.

2 Somervitle v. Kerr, 2 Cham. Kep. 154.

3 Dickey v. Heron, 2 Clmm. Hci). 400.

4 Mercers' Company v. (xmat Nnrtlfrn Railway Company, 14 Heav. 20.

."> Eaiit Lancanhire Hailiray Company v. IIattersley,S Haro, 80; Electric Tileyrajih Company v.

Nott, 11 -Uir. 273, V. V. K. This rule extciulH to (louuinonts whiuli it Ls iiiteiidciJ to prove viva

voce: Bird v. Lake, 1 H. & M. 111.
li Munro V. li/'ivenhoe and Briyhtiingiiea Railway Company, 13 W. R. 880, L.J J.

1618

INTERLOCUTORY APPLTCATTONS AND ORDERS.

Where one party gives notice of his intention to read an affi-
davit, but subsequently declines to do so, the other side may read
it.^

^,

Formerly, the evidence on a motion could only be given by affi-
davit ; but now, oral evidence may be made use of ; and witnesses
may be cross-examined upon any affidavits they may have made. ~
Unless otherwise directed by the Court, the examination and cross-
examination take place before an examiner, in the manner pre-
viously described.'^ In some cases, the Court has allowed the
motion to stand over, in order that the cross-examination may take
place.*

Order 266 provides that " A party in any cause or matter may,
l)y a writ of subpojna ad testificandum or duces tecum, require the
attendance of a witness before the Court, or before a Master, or an
Examiner, for the purpose of using his evidence upon any motion,
petition, or other proceeding before the Court." Order 267, that
" Forty-eight hours' notice of the examination is to be given to the
opposite party, or parties, and the cross-examination, in such case,
is to follow immediately upon the examination, and is not to be
deferred to any future t^'ne." Order 268 that " Any person having
made an affidavit to be used, or which should be used on any
motion, petition or other proceeding before the Court, shall
be bound to attend for the purpose oi being cross-examined, on
being served with a writ of subpcena ad testlficaitdiim, but the Court
neverthele.ss, may act on the evidence before it at the time, and
may make such interim order, or otherwise, as appears necessary
to meet the justice of the case." And Order 269 that " Forty-eight
hours' notice of the cross-examination is to be given to the party on
whose behalf such affidavit was filed, or to the party intending to
use the same."

1 Cauty V. Ilotdditch, 14 Sim. 75. Theoretically, a motion may stand over from time to time, until
both sideB have exhausted themselves in atHdavits. Pnictically, the delay is lessened by condi-
tions imposed by the Court, when the motion is me.itioned' : as, for mstance, that the party
opposing; the motion shall file his affidavits by a certain day ; and that the party movinjj: shall tile
his affidavits (if any) in reply, by a certain subsequent day : thoujjh, oven where such d'-'ectioiis
are given, it is difficult to shut out material evidence, solely on the j?rouud of its not havinjf boen
adduced in time : 1st Rep. Eng. & Ir. Com., App. (19.

i Order 208 ; Smith v. Swaiitea Dook Company, 9 Hare, App. 20, n.

3 Anle.

4 XorinanvUle v. Sfanninj, 10 Hare, App. 20 ; Besemeres v. Beiiemereii, Kay, App. 17 ; Mayer v.

Spence, IJ. & H. 87.

i:, or an
notion,
7, that
to the
h case,
i, to be
having
n any
shall
ed, on
Court
e, and
essary
eight
rty on
ing to

MOTIONS.

1619

On a motion for an injunction against one defendant, the cross-
examination of another defendant on his answer was held inadmis-
sible in reply to the affidavits filed in answer to the motion, where
the defendant, against whom the plaintiif moved had no notice of
the cross-examination, or of the plaintiff's intention to read the
depositions on the motion. ^ The Examiner is bound to allow a
witress to be cross-examined on the whole case, without regard to
his examination in chief ; but in some cases he may exercise his
discretion as to who should pay the fees of the examination.^
Where a party to a suit having no solicitor is required to attend
before a Master to be examined, it would seem that forty-eight
hours' notice thereof shall be given to liim.^ A defendant may be
examined "nva voce in support of a motion, notice of which has been
given, although the time for answering has not elapsed.* An
application for an order for the defendant to attend at his own
expense, and be examined on his answer, may be made ex parte.^
As a rule, a suitor has not a right to bring his opponent to
Toronto, or elsewhere from his residence, for the purpose of
interlocutory examination except upon special grounds. Where,
therefore, an order had been made by the Secretary, for the plain-
tiff to attend before a special examiner at Toronto, the venue in
the cause being laid in Goderich, and the parties residing there,
and the plaintiff's solicitor residing there also, the solicitor for the
examining defendant residing in Toronto ; such order was rescinded
upon the plaintiff refunding the conduct money paid him without
costs, the defendant being held to have acted in accordance with
what appeared to have been very generally understood in Toronto
as the right of examining parties.^ The Court will take into con-
sideration the fact that parties can be more efficiently examined in
Toronto, than in some outer Counties, and will not consider alone
the balance of convenience of the parties or solicitor attending.^

■a.

c-.

r-
<

Itiine , until

by comli-

I the party

shall till!

I'd'-ectioiw

\vin){ been

3f<iy<Jr V.

Evidence as to belief only is admissible on interlocutory appli-
cations ;^ p^d the Court may also take notice of matters given in

3 Watmn v. ham, \ Cham. Rep. 2»3.

1 C\wii» V. Bales, 12 Grant, 244.

2 Crandell v. Moon, 6 U. C. L. J. 143.

4 McClennaffhan v. Buchanan, 7 Grant, 92.
.") Harrison v. Oreer, 2 Cham. Rep. 438.
(i Oallagher v. Gairdner, 2 Cham. Rep. 480.
7 Kahn v. Redford, 3 Cham. Rep. 55.

5 hird V. Lake, 1 H. A M. 111. The grounds of belief should, however, be stated.

7

1620

INTERLOCUTORY APIMJOATIONS AND ORDKRS.

Ul

3 ■
3:

evidence on previous proceedings in the cause ; and may refer to
notes made by the Court on Rueh occasions.^

When the counsel who sujiport the motion have concluded, the
counsel in opposition to the motion are heard. The senior counsel
for the party moving iias then the right of reply : after which the
Court pronounces its decision.^

The Court will not, upon motion, make an order which will
decide the principal point of the cause, unless upon the consent of
all the parties affected by it : which consent must be expressed by
their counsel in Court, and cannot be inferred from their not
attending in pursuance of the notice of motion.^ Nor will the
Court, except by consent, extend the order upon a motion, bej'^ond
what is expressed in the notice : as, where the notice was, that the
Court would be moved that the plaintiff might be put into posses-
sion, and a receiver appointed, the Court, though the defendant did
not oppose the motion, would not direct that nothing should be
received by the defendant in the meantime.* It is, therefore,
necessary, that everything the party wishes to be obtained upon
his motion, should be expressed in the notice : otherwise, the Court
will not grant it. This rule is strictly followed where the order is
taken upon affidavit of service of the notice of motion ; but an
^rder which is less extensive than that asked by the notice may be
granted if it will not prejudice the person against whom it is made.^

A motion for an injunction is ofteu, by ccmsent, turned into a
motion for decree :^ in which case, leave to set the motion down for
hearing should be obtained, so as to save the month's delay.^

At the hearing of a motion, the Court sometimes orders payment
of the costs, and sometimes reserves them until further order ; ** but

1 Liuter v. Leather, 3 Jur. N. S. 433, V. C. W. : 1 De G. & J. 36i.

2 For form of order on motion, see Seton 36.

3 Like v. Beren/ord, 3 Bro. C. C. 366; Sleiiiners' Company v. Irith Socifty, 1 M. * C. 162,164;

Tullett V. Ariii»trong, 1 Keen, 428. 435 ; but see Bailey v. Ford, 13 Sim. 495. An order to break
up the soil, for the purposes of inspection, caunut l)e made on motion : Ennor v. Barwell, 1 DeO.
F. & J. 629 : 6 Jur. N. S. 1233, 1230.

4 Wyatfs P. R. 287.

5 Httttony. Hepworth, 6 Hare, 316, 317 : 12 Jur. 835: and see Powell v. Cocketell, 4 Hare, 672 ;CT(irJt

V. Jaques. 11 Beav. 623 ; Pratt v. Walker, 19 Beav. 261.

6 See Seton, 871

7 Oreen ». Low, (No. 1), 22 Beav. 395.

8 Leicls V. Smith, 1 McN. & Q. 417, 421 ; Warring v. Mancheitter, Sheffield «£• Lineolnthire Railway

Company, 14 Jur. 613, 616, v. c. W. : Jonen v. Bctten, 10 Hare, App. 11.

MOTIONS.

1021

V to

, the
unsel
li the

ii will
ent of
sed hy
sir not
ill the
beyond
hat the
poflsefi-
iaiit did
ould he
^erefore,
id upon
e Court
order is
hut an
may he
made.^

into a
[own for

)ayinent

•« but

if no order is made, they become .subject to the rules already pointed
out witli reference to " costs in the cause."^

In general, where a motion is unsuccessful it will be refused with
costs ;2 and where the party moving asks for something he is en-
titled to, and also for something he is not entitled to, he may he
ordered to pay the costs of it although he succeeds.^

Where a motion stands over, and afterwards the party moving
gives notice of abandoning the a])plication, the costs which are given
against him are not those of an abandoned motion, but of a motion
refused.* Where a party moving is not in a position to sustain his
motion, the Court will not grant an enlargement so as to enable him
to place himself in a position to sustain it, the motion must la])se.^

No or'^er for payment of costs will be made
motion.*

on an ex 'parte

If the parties appear, the Court may deal with the costs of a
motion, although the notice of motion does not state that they will
be asked for ;" but a party against whom the order is taken upon
affidavit of service, cannot be directed to pay the costs, if the notice
of motion does not ask for them,^

If a party who is not interested in the result of a motion is set ved
with the notice of motion, he will be entitled to the cost of appearing;^
and where a party, who had not been served with the notice, appeared
on the hearing of the motion, at the request of the party who gave
the notice, he was held to be entitled to his costs,^^ Where, no pro-
ceedings having been taken in the cause for more than seven years
a notice of motion was served on the solicitor for a deceased party
it was held that it was proper for him to appear on the motion.^^

:s.

.a

r

5

Ic. 162, 1«4;
ller to break
l«(!H,l UeG.

\,bn; Clark
[re RaiUcay

1 As to costs of ap))lications by motion, see Seton, 91-94 : Morgan ,(■ Davey, 31, et »eq.

2 See Dugdale v. Johnston, 5 Hare, 92.

3 Lancaihire v. Lancathire, 9 Beny. 120, 130 ; Moet v. Couxfon, 33 Beav. 578 ; and see Sturch v. Vovitij,

5 Boav. 557.

4 Denninon v. Devlin, 11 Grant, 84. 5 Ruttan v. Smith, 1 Cham. Rep. 230.

(I A'uken V. Gibbon, 3 .lur. N S. 282 : 5 W. K. 216, V. C. K. ; Cn.<f v. J'oy>ier, 2tt L. J. Ch, 353, L.JJ.

7 Clark v Jacquvx, 11 Beav. 023 ; Butler v. Gardener, 12 Beav. 52.'> ; Powell v. Cockerel] 4Httrt', 572 ;

Dawson v. Jay, 2 W. R. 598, L. 0. ; Tampier v. Ingle, 1 N. R. 159, V. <J. K.

8 Pratt V. Walker, 19 Beav. 261.

!» Ueneage v. Aikin, 1 J. .v W. 377 ; Bam ford v. Watts, 2 Beav. 201 ; Major v. Maior, 13 Jur. 1, 20^

L. C. ; .sec Bruce v. Kinlock 11 Beav 432- Talmteau v. Waburton, 4 Dr. & War. 207.
10 Shaw V. Forrett, 20 Beav. 249. 11 Chalie v. Gwynne, 9 Beav. 319,

1622

INTERLOCUTORY APPLTOATIONS AND ORDERS.

Where a motion is refused with costs, the costs may be taxed
without any special direction for that purpose.^

*

Where the right of a party to an order for which he has given a
notice of motion is intercepted by a step taken by the other side, he
is entitled to his costs ; but he should not bring on the motion, if
the costs then incurred are tendered.^

Tn some cases, a party who succeeds in his motion may be ordered
to pay the costs of it : thus, where he applies for an order by which
he seeks an indulgence, ho will, in general, be ordered to pay all the
other parties their costs occasioned by the application."' Upon this
ground, where a plantiff, in a foreclosure suit, obtained an order for
the cause to be advancerl, he was ordered to pay the costs of the
motion.*

If a party gives a notice of motion, and does not move accordingly
he is to pay to the otlier side costs, to be taxed by tlie Taxing Master,
unless the court itself shall direct, upon production of the notice of
motion, what sum shall be paid for costs.° In order to obtain the
costs of an abandoned motion, the respondent must mention the
motion to the Court not later than the motion day next after the
day for which the notice was given f and tlie notice of motion
must be produced to the Registrar on bespeaking the order.'^ The
order will not be made after the bill has been dismissed for want of
prosecution;^ or at the hearing.^

A motion is considered to be abandoned, if not made or saved be-
fore the Court has disposed of the motions on the day for which the

1 Ord. 316 ; but see, as to this rule Seton, 92. For form of order refusinjj a motion with costs, see

Seton, 87, No. 0.

2 Neirton v. Rickctts, 11 Beav. 164.

3 See Cocks v. Jhirilai), 12 Beav. 451, 4.')3 ; Dartlett v. Ilarton, 17|Beiv. 479, 482 ; Douglas v. A rchbutt,

23 Beav. 293 ; JJakius v. Garratt, 4 Jur. N. S. 579, V. C. K. ; Moss v. Syera, 9 Jur. N. S. 1219 : 11
W. R. 1047, V. C. K.

4 Browne v. Lockhart, 10 Sim 420.

5 Formerly, if a |)Brty fifave notice of a motion which he afterwards abandoned, he was nut liable to pay

to the other party his costs of appeariiivf to oppose the motion, until a notice of the same motion
had been s^iven three times, without its beiny made, and then, upon a fourth notice, the opposite
party miglit object to such motion lieing lieard, until the costs of the three former motions were
paid : Shelly v. Shelly, 8 Ves. 340 ; Andi'rmn V. Palmer, 14 Vcs. 151.

6 Woodcock V. Oxford. Worcester, tO Wolverhampton liailway Company, 10 Hare, App. 54, n. ; 17

Jur. 33, V. C. K. ; Oorely v. Gorely, 25 Beav. 234: Eccles v. Liverpool Borough Bank. Johns. 402 ;
but see Wedderbimie v. LlwtlUjn, 13 W. R 939, V. 0. W., ante.

7 Withey v. Haigh, 3 Madd. 437 ; and see Reg. Regul. 15 March, 1860, r. 31.

8 Farquharson v. Pitcher, 4 Russ. 510.

9 Eecleg v. Liverpool Borough Bank, ubi gup.

MOTIONS.

1623

red be-
lich the

costs, see

, Arehbutt,
1219 : n

kable to p&y
Ine motion
(le opposite
ttlons were

54, n. ; IV
Johns. 402 ;

notice is given ;^ or if, when it is before the Appeal Court, it is not
made when called on.^

Where a motion by the plantiff' stood over, in consequence of the
defendant undertaking to perform a certain act, and the undertak-
ing was subsequently discharged, on his performing the required
act, the motion was not treated as an abandoned motion, but the
costs of it were reserved to the hearing.^

Where the plaintiff gave a notice of motion, but died before it was
lieard, and his executors, who subsequently revived the suit, declined
to proceed with the motion, it was held tliat it could not be treated
as an abandoned motion ;* and that the costs of the motion were
not costs in the cause .^

If the plaintiff a;neutls his bill, after he has given a notice of
motion for an injunction,'* or for a receiver,^ he thereby waives the
notice ; and must pay the defendant's costs of the motion.** Where,
after notice of motion for an injunction had been served, a general
demurrer to the bill was allowed, leave was given to amend, without
prejudice to the notice of motion.''

Where an order has beon made f( >r the payment of the costs of an
abandoned motion, a renewed motion to the same effect cannot be
made, until the costs have been paid ^°

A motion to dismiss for want of prosecution having been refused
with costs, it was held that another motion to dismiss could not be
made till the costs of the prior one were paid, though it appeared
that the plaintiff's solicitor had not taken out his certificate.^^ A
party upon whom notice of movion has been served is not precluded
from appearing on the return day, and claiming his costs of an

1 Re SiiiUh, 23 Heav. 284 ; but .see Wedderbtmu v. Ucwellyn, 13 W. R. 931), V. ('.. W.

•J Turner V. Turner, 15 Jut. 1105, J.JJ.

3 Felkin v. Letcin, 11 W. R. 981, V. C. K. ; and se-j Finden v. SUphem, 12 Jur. 319, L. C.

1 Warner y. Ar,. strong, 4 Sim. 140.

fi Lcwu V. A rimtronij, 3 M. & K. C9.

6 Martin v. Fugt, 8 Sim. 19!) ; Gouthwaite v. RiptibU, 1 Beav. 54; Monypenny v. , 1 W. R.

99, V. C. T. »/' .'

7 Gouthwaite v. Rippon, ubi sup.; 3mi(h v. Dixon, J2 W. R. U34, V. C. S.

8 Monypenny v. , xthi sup.; Loiuion lO Blackuell Railwau Company v. Limehouse Board o/

Works, 3 K. & J. 123 ; Smith v. Dixon, ubi stip.
i) Rawlingsv. Lambert, 1 J. & H. 458; anil see Harding v. Tingey, 10 Jur. N. S.872 ; 12 W. R.
703, V. C. K. .f J .',

10 Bellehamber v. Giant, 3 Madd. 650 ; />ai'«.i/ v. Durrant 2 Ue G. k J. 508 ; 24 Bear. 411 : 4 Jur.

N. S. 398.

11 Harvie v. Ferguson, 1 Cliam. Rep, 218.

T.

d:

'-'■>. f .

::;>

::;il

^ t

Wi

i^pi

j;

■ ^

i

■■ i

X

•c

1G24

INTKilLUCUTOHY APPLICATIONS ANI> oKDhlRS.

Pi-

abandoned motion, notwithstanding notice of countermand served >
unless the party serving notice of countermand offers at the time of
servfce to pay any costs the other may have incurred in preparing
to answer the motion.^ When in a notice of motion an order is
applied for in the alternative in the words " for such other order
as shall seem meet." The Court will not make an order specially
distinct from that asked for.^

An order made on a motion is drawn up, passed, and entered, in
the usual manner.^

An order made upon motion may be discharged or varied upon
motion : which may be made, either in the Court where the order
was laadp .in the Appeal Court,* unless the order was made ex
parte j^ ■. ic pplication is made on the ground of irregularity :^
in both ol which cases it m^st be made in the first instance to the
Court by Tvhich the order was pronounced.

Where it is not intended to adduce new evidence, the application
should be made to the Court of Appeal. The Court of Appeal may
however, if it thinks fit, allow new evidence to be used before it,'^
unless the application is to discharge the order as having been made
on insufficient evidence : in which case the ( ?ourt will only receive
the evidence made use of on the former occasion.** If the appellant
succeeds on the new evidence, he will generally have to pay the
costs of the former application.''

No deposit or certificate of counsel is required, on an appeal from
an interlocutory order made on motion.^" ,

The notice of motion is served in the usual manner.^^

Petitions.

A petition is the request of a person in writing, directed to the
Judges and showing some matter or cause on which the petititioner
prays their direction or order.

1 lintin V. Rodcrtmn, 2 U. C. L. J. N. S. 331.

2 Graham v. Chalmers, 2 U. C. L. .1. N. S. 269.

3 For form of order on motion, see Scton, 36. 4 Ante.

6 Sturgeon v. Honker, 2 Phill. 2«i). 6 West v. Smith, 3 Boav. .306.

7 Const V. Barr, 2 Knss. lo , X>6; Re Joseph A- Webster, 1 R. .V .M. 4!W ; Whitvorth v. Whyddnn. 2

McN. ti G. 56 ; Pole v. Joel, 2 De (;. & .1. 286 ; Re Dixon, 3 Jur. N. S. 20, L.JJ.

8 7Vinu( )• V. Carter, 1 f. P. Too]), t. Oott. 337.

0 Williaiiiuy. Goodchild,'2 Ku«s. Ul. 10 See ante. 11 Ante.

it'

vedi
ne of
aring
^er is
order
cially

•ed, in

I upon
; order
lade ex
irity :^
I to the

lication
al may
ore it,''
n made
receive
)peUant
pay the

lal from

to the
Ititioner

PETITIONS.

1625

306.

Petitions may be presented, either in a cause or in a matter over
which the Court of Chancery, or a Judj?e thereof, has jurisdiction
under some Act of Parliament, or other special authority ; but a
petition cannot be presented in a cause until the bill is filled.^

Petitions are either : for orders of course ; or, for special orders.
Petitions for orders of course are forthwith granted, without any
attendance being ordered. On petitions for special matters, a day
is appointed for hearing them. Most things which may be moved
for of course, may also be obtained, as of course, upon petition.

A petition must be properly entitled in the cause or matter in
which it is presented. A petition under the statutory jurisdiction
must be entitled in the matter of the Act of Parliament under
which the petition is i)resented, and of the particular trust, or pro-
perty, or person to which it relates.

Petitions are under Order 416 to be heard on Wednesdays, Thurs-
days, Fridays, and Saturdays.

A petition must state l)y whom it is presented. If it is presented
in a matter, or by a person who is not a party to the cause, the
residence and description of the petitioner must be stated, as well
as his namc.'^ Where there is a mi.sjoinder of petitioners, the Court
has jurisdiction at the hearing of the petition to allow the same to
be amended, by striking out the namo of one of the petitioners.^

An infant,* a married woman without her husband,^ or p,ny other
person under disability,^ petitions by a next friend ; and a next
friend, may be named for the purposes of the application.'^

A petition presented on behalf of a j>auper (except for the pur-
pose of the discharge of his solicitor), must be signed by his soli-
citor. If the petitioner is resident out of the jurisdiction, he may
be ordered to give security for costs, unless the petition is pre-
sented in a cause to which he is a party."

1 See, however, ante.

2 Olazbrook v. Gillatt, U Ueav. 492.

3 Gilbert v. Jarvis, 16 Grant, 2&i. *.

4 Joneii V. Lewit, 1 De G. & S. 245, 252 ; ante.

5 Hotcard v Pruiee, 14 Bear. 28 ; ante.

6 See ante. 7 Sec ante.

8 R* Pa$mi>te, 1 Rnnv. !)4 : Kx parte Sn'dler,, 12 Sim. 100 ; Anon., ib. 262 ; Ex parte X<a(ta, 3DeQ.
vV S. 180 ; ('«o/j)iui(' \ , /■'(!« »•./>!, \!i .liir. .'.((8, V. C. K. ; Atkim t. Cnoke, 3 Drew. 694 : S Jur. N. S.
2s3 ; Partington y. Heijnolds, 6 W. K. 307, V. C. K. ; and see ante.

ik,

::.t

■ Ci

V

162G

INTERLOCUTORY APJ'LK!ATIOiNS AND ORDERS.

Ui

The petition must state tlie material facts upon which the appli-
cation is founded ; but care must be taken to avoid scandal/ and
impertinence."^ The statements are divided into })aragraph8 : which
usually, though not compulsorily, are numbered, in consecutive order,
as in a bill.^ The petition concludes by praying the Court to make
the order required.

All petitions, except those which are of course, require service
upon all parties interested ; but if there is no other party interested
in the matter, as in the case of petitions for the transfer or sale of
stock, or the payment out of Court of money, standing to the
separate account of the petitioner, no service is necessary.*

It was formerly necessary to obtain a judge's fiat to a petition,
but Order 265 provides that " It shall not be necessary to procure a
a judge's fiat to a petition appointing a time and place for the hear-
ing thereof, but in lieu of such fiat there is to be endorsed in the
}>etition a notice addressed to the parties concerned, stating tlio
time and place at which the petition is to be heard, and informing
them that if they do not appear on the petition at such time and
place, the Court may make such order, on the petitioner's own
showing as shall appear just." And Order 264- that " Except in
cases where it is otherwise provided there must be, at least, two
clear days between the service of a petition, and the day appointed
for hearing the same ; and, in the computation of such two clear
days, Sundays, and days on which offices are closed, are not to be
reckoned."

A petition for any process of contempt or commitment must be
personally sei^ved upon the party to be afl[ected by it : unless an
order has been obtained for substituted service. In other cases, the
petition is served in the manner before explained.

Service is effected by delivering to and leaving with the person
served a true copy of the petition, endorsed as required by Order

1 As to scandal, see ante.

2 As to impertinence, see ante ; and see Ri Bedminster Charities, 12 Jur. 6(55, V. C. E. ; Re Man-

ehenter A Leeds Railway Company, 8 Hare, 31 ; He CourtoialO Hare, App. 64 ; Re LiUey, 17 Sim,
110 ; and Seton, 89, No. 17.

3 Sec ante.

4 Under special circuinstances, this rule u to service may be wholly or partially dispensed with :

Lambert v. Sewark, 3 De O. & S. 405 ; Re Wige, 5 l)e G. * S. 415 ; Ex parte Peart, 17 L. .1
Ch. 168, V.C.K.B ; Re Hodges, 6 W. R. 4S7, V.C.K.

appli-
1,1 and
which
order,
I make

service

erested

sale of

to the

)etition,
'ocure a
ae hear-
d in thu
iing the
forming
ime and
r's own
cept in
ast, two
npointeil
o clear
ot to be

Imust be
iless an
ises, the

person
ly Order

Re Man-
tliey, 17 Sim.

Insed wiH> '■
irt, 17 L. .1

PETITIONS.

1C27

265, and at the same time allowing him tlie original petition An
application for substituted service is made by ex parte motion, suppor-
ted by affidavit.!

Where the persons to be served are resident out of the jurisdic-
tion, service is effected as in the case of a bill.

Where a petition is served upon an infant or a person of unsound
mind, a guardian ad litem must be appointed, by whom he may
appear.^

The petitions are called on in their regular order ; precedence is,
in the first instance, generally given to unopposed petitions ; and
should any petitions remain undisposed of, at the end of the peti-
tion day, they are placed in an adjourned list: preserving their or-
iginal order ; and are taken generally on the next })etition day, in
priority to the opposed petitions in the new list.^

The rules with regard te reading affidavits, and the general prac-
tice as to evidence which may be used upon the hearing of petitions,
are substantially the same as those with regard to motions.* Where,
after the affidavits had been sworn, the petition was amended, by
altering the title, they were allowed to be used, on being made ex-
hibits, and referred to in a short affidavit entituled in the new
matter.^

Where two petitions in the same matter are answered ior the
same day, that which is first presented is entitled to be first heard.''

Where there is a petition and a cross-petition, and several respon-
dents in the one join as co-petitioners in the other, the Court will
not allow such respondents to be heard by separate counsel, except
so far as their cases turn upon questions distinct from each other.^

1 As to substituted service, see ante.

2 lie Barrington, 27 Beav. 272; Re Ward, 2 Oi«f. 122: 6 .lur. N. S. 441 ; Re Duke of Cleveland'i

Harte Estate, 1 Dr. & Sm. 46 ; Re Greaves, 2 W. R. 353, L. C, & L.JJ.

3 ist Re|). Eiig. & Jr. Com., App. 70. As to the allowance of two counsel, on a petition, see Sturge

V. Dimsdale, 9 Beav. 170 : 10 Jur. 277. Counsel's brief will consist of a brief copy of tiie petition
and of the evidence on each side, together with such observations a.s may be deemed necessary.

4 See an,te ; see also Jone* v. Turnbu?^, 17 Jur. 851, V. C. W.; Re Pickance, 10 Hare, App. 35 ; Re

Bendythe, 5 W. R. 816, V. C. K.

5 Re VarUgChapel. 10 Hare, App. 37; and see Re Harrit, 8 Jur. N. S. 166, V. 0. K.

6 Re Broohman, 1 HcM. k 0. 109.

7 Re Stephen, 2 Phill. 662, 668.

;*

$:

ii

,i:»

"1

/''

^

^ sf.

:i.

,)■■'

'!'-

:' ■;: if;

K'

'^

1628

INTEKLOL'UTOKY AFFMCATIONS AND ORDERS.

The Court does not usually make any declaration as to the rights
of the parties on a petition ; but, if necessary, it will preface the
order by a statement of its opinion.^

Where the evidence is complicated, or the persons entitled numer-
ous, so that much time would be occu})ied in investigating the title
in Court, the petition is often adjourned at once into Chambern."'

The practice, where a petition is adjourned to Chambm's, and the
manner in which the petition is brought on for further hearing in
Court, where it is not finally disposed of in (Jhambers, has been
laready explained.

If, upon the petition being called on, any of the respondents do
not appear, the Court, upon ])roduction of an affidavit of service of
the petition upon the absent parties, will make an order according
to the prayer, or such other order as may be ju^t. If the petitioner
does not appear, the ]>etition will, on the application of the respon-
dent, and production of an affidavit of his having been served with
the petition, be dismissed with costs.'^ In either case, the affidavit
must be tiled before the I'ising of the Court on that day.*

An order made upon a special petition is drawn u[), pas.sed, and
entered in the usual manner,^

Where the original petition liad been lost, the Court allowed the
copy left for the use of the Judge to be filed instead of the original
petition f and where a petitioner, whose petition had been dismissed
with costs, refused to deliver up the original petition in order that
it might be filed, leave was given to the respondents to file, in its
stead, the copy of the petition with which they had been served.^
The petitioner must pay the costs of such an application.**

A petition may, by leave of the Court, be amended. The amended
petition does not, iu general, require to be reanswered ;** and the
amendments may state facts which have occurred since the presen-

1 Seton, 38 ; Shartihaui v. Gibbs, Kay, 333, 340 : 18 Jur. 380 ; and see Re Walker, 16 Jur. 1164, V (J.S.

2 fteton, 48.

3 Dunbar V. Boldero, 2i Jan. 1818, V. C. Leach, 2 Madd. Pr. 2nd ed. 581; 3rd ed. 707.

4 LordMilltown r. Stuart, 8 Sim. 34.

n For forms of orders on petition, see Seton, 34, 87.

6 Smith V. Harwood, 1 Sm. & 0. 137 ; Sanderson v. Walker, 1 H. & 0. 35D.

7 Andrews ▼. Walton, 1 M. & C. 360 ; Re Devonshire, 32 Beav. 241.

8 ibid.

» Robinson v. Harrison, 1 Drew. 307 ; Re Cartwright, 8 W. R. 492, V. C. W. ; il« Mtdow, 10 Jur. N.
S. 638 : 12 W. B. 696, V. C. K. ; and see Maude r. Maude, 6 De O. & S. 418.

rights
je the

umer-
e title

rs.-

nd the
ring in
3 been

Bnts do

[•vice of

cording

titioner

respon-

ed with

lifidavit

jed, and

yed the
original
smissed
ier that
e, in its
iervedJ

mended
md the
presen-

1164, VC.S.

PKTITlONS.

IG29

10 Jur. N.

tation of the petition^ (but not since leave to amend it was given,* or
introduce the nainea of new co-petitioners/' Leave to amend will be
given on the expurte ap|)licati()nof counHol. No formal order is usually
drawn up ; but the amendments in the original petition are made,
or authenticated, by the Registrnr,on production to him of counsel's
brief, with his endorsement of the leave to amend, and containing
the draft amendments. If necessary, the Registrar will countersign
the endorsement on the brief* Leave to amend is almost of course ;
it is often given at the hearing f and has even been given after the
order has been maae." The amendments must not, however, state
facts which would make the petition and order inconsistent. If the
statements, })roposed to be introduced by amendment, would have
that effect, a new petition must be presented, stating such facts, and
praying that the order may bo varied/

4

A party to a cause, who is served with a petition, but has no in-
terest in the oi\Ier to be made, will not be allowed his costs of
appearing at the hearing.** The same rule has also been applied to
])etitions presented in matters;" but it would seem that, in such a
case, a respondent ought to ije allowed his costs : as otherwise he
would have no opportunity of obtaining the costs which he must
incur in taking advice whether he ought to appear on the petition.^*^

A person who unsuccessfully o])poses a petition may be allowed
his costs y-^ but a person who appears without having been served,*^
or who is served in consequence of an unfounded claim which he
has made,^' is not entitled to his costs.

1 Robinnon v. Harrinon, ubisiiji. ; but see AV Keen, 7 W. U. 577, V. C. K.

2 Maude v. Maude, aail Re Cartwright, uhi xup.

3 Doubt/ire v. Elworthy, 15 Siin. 77 : 9 Jur. 108:'..

4 Sefon, 36.

h Piatt V. Routh, 3 Bcav. 2.57, 282; Matsnn v. Swift, 8 Beav. 3C8, :i79: tf.Iur. ^"l . Seton 35.

6 Hislop V. Wykeham, 3 \\. U. 286, V. C. K. ; Re Bunnett, 1 Jur. N. S. ^ /:,, '' C. W. ; contra R*

Marrow, C. & P. 142, 146.

7 Re Keen, 7 W. R. 577, V. 0. K. ; but see Re Ilavcloek, 11 Jur. N S. i>06: 14 W. R. 26, V. C. W.,

where a supplemental. order was made on the petition.

8 Garey v. Whittingham, T. & K. 406 ; Templei:\an v. l^'arringtua, 1 J. & W. 377, n. : Barton v.

Latour, 18 Beav. 520 ; Day v. Croft, 19 Beav. 518 ; Herman v. Dunbar, 23 Beav. 312 ; Sidney t.
Wilmer, 31 Beav. 338 ; contra, Bamfurd v. Watts, 2 Beav. 201 ; Crawshay v. Thornton, 2 M. fc
0. 24 ; Bruce v. Kinlock, 11 Beav. 432 ; Rowley v. Adams, 16 Beav. 312 ; Strong v. Strong, 4 Jur.
N. S. 943, V. C. S.; and see Eden v. Thompson, 2 H. ^ .M. 0 ; and Morgan <t- Davey, 43.

9 Re Justisen of Coventry, 19 Beav. 158 ; Re Hertford Charities, 1!) Beav. 518, n. (c) ; Re Birch, 2

K. & J. 309; and see Sidney v. Wibner, ubi sup.

10 Re Third Burnt Tree Building Society 16 Sim. .:9ij : 12 Jur. 595 ; Ex parte Queen's College, 4

Jxir. N. S. 10 : 6 W. R. 9, V. C. S.; Re Burnell, 10 Jur. N. S. 289 : 12 W. K. 568, V. U. K. ; Eden
V. Thompson, ubi sup. As to costs of application, by petition, see Seton, 91, et seq. ; Morgan ik
Davey, 31, et Seq.

11 Ex parte Stevens, 2 Phil. 772, 774.

12 Beniutt V. Biildles, 10 Jur. 534, V. C. E. ; Ex parte Christ Church, 9 W. R. 474, V. C. S.

13 Re Shrewsbury Sahool, 1 AIcX, & G. 85 ; Re Parry, 12 Jur. 615, V. C. E.

•^.

1C30

INTEKLIKUTUKY Al'l'LICATlUNS AND (JUDEKH.

I

^.

When a porf.on in about to p)'o.seiit a petition, Iiu should consider
whether any of the other parties interested can l»e co-petitionern,
instead of respou<lents ; and, if so, he should apply to thetn to join
with him in the [)ctition: otherwise, lie may be ordered to pay the
costs of such persons, it made respondents.*

Whore two petitions arc bona Jxdc presented, for the sam biect
by different parties, the costs of both will be allowed ; but ^ .e it
is known that one petition has been presented, the costs of a second
petition, for the same purpose, will not be allowed.*

Orders made upon petition may bo discharged or varied on motion
where the application is made on the ^^'rouiid of irregularity. Thus,
where the objection to the petition, and the order made thereupon,
was, that they were entitled in a non-existing cause, the Court dis-
charged the order on motion.* If, however, the application is made
on the merits, it must, as we have seen, be the subject of a regular
rehearing ;* but the petition of appeal is considered as an original
petition, and nmst, therefore, contain all the statements which 'vhere
properly inserted in the former petition.'^

The petition is presented and served, in the same maimer as an
original petition ; and will be set <lown on one of the days aj»pointed
for the hearing of appeal petitions.

The rules as to the reception of new evidence, in the case of ap-
peals from orders made on petition, are the same as in the case of
appeals from orders made on motion."

1 Mellingy. Bird, 17 Jur. 155, V. C K. ; and see Haynen v. Barton, 1 Dr. & Sni. 483 : 7 Jur. N. .s.

699 : Be Brayc, 9 .Itir. N. S. 464 : 11 W. R. .S.S3, V. C. K. ; Be Lnng, 10 Jur. N. S. 417, V. C, K.

2 Re Chaplin, 33 L. J. Ch. 183, V. C. W. : and see Be British A Foreign Gan Company, 11 Jur. N .S

5.59 : 13 W. R. 649, V. C. S.

3 West V. Smith, 3 Beav. 306 ; and see Bimted v. Barefoot, 1 Ulck. 112 ; Bishop v. Willis, 2 Ves. K.

113: Clutton v. Pardon,!!. & R. 301, 303 ; Ostle v. Christian, ib. 324 ; Eastwood v. Glenton, 2 M.
A K. 280 ; Lees v. Suttall, ib. 284 ; Barnardiston v. Gibbon, cited ib. 287.

4 Ante.

5 Ante ; Richards r. Platel, 0. k P. 79, 84.
9 Ante.

( t«31 )

nsider
onerH,
o join
ly the

'Hect

.e it

Hccond

motion
Thus,
roupon,
irt dis-
is made
regular
original
li 'vhere

sr aa an
(pointed

of ap-
case of

Jur. N. S.
IV. C. K.
)l Jur. N S

^, 2 Vea. S.
enton, 2 M.

i*

(!HAPTKK XXX VII.

INJUNCTIONS AND lUlSTKAININO ORDKUS.

( re ne rally.

A writ of injunction \h << judicial pioce.s.s, wlieroby a party is
rc(|uirt'd to refrain froni doing a particular thing, a(!Cording to the
exigency of the writ. Tlio process is, thcicfore, rather preventive
than restorative: thougli it is not conlined to the fornier object.^

Injunctions are either jtrovisional or perpetual. Provisional in-
junctions are such as arc to continue until a certain specified period :
such ad, the coming in of the defendant \ answer ; or the hearing' of
the cause.'-^ Perpetual injunctions are such as form part of the de-
cree made at the hearing, upon the merits, whereby the defendant
is ])erpetualy enjoined from the assertion of a right, or perpetually
restrained from the commission ot an act which woidd be contrary
to equity and good conscience.

As a general rule, an injunction or restraining jrder will not be
granted before decree, unless })rayed for by the bill.^ At the hearing
however, the Court will, where it is necessary for the purpose of
complete justice, direct an injunction to issue: although it has not
been prayed by the bill ;* and where the Court, having fully cogniz-
ance of the matter, has, by its decree, taken it into its own hands, it
will, on the application of the iefendant,^ as well as the plaintiff,
interfere, by its injunction or restraining order, to prevent its deci-
sion from being questioned in another Court f or to restrain the
bringing of actions inconsistent with the spirit of the decree: although

1 As to lr\1unctloii'< In Equity see Add. Cont. 1086 ; Drewry on Inj ; Eden on InJ. ; Jeremy on Eq.

•"flOT; 2'L. C. En. 604— .537 ; Seton, Sa7—0(il; Story, Eq. Jur. ss. 861-969.

2 Formerly, provisional iniuiictions were divided into common and special injunctions ; but this dis-

tinction has been abolished.
.3 Ld. Red. 46, n. (z); Savory v. Dyer, Amb. 70; Wright v. Atkyns, 1 V. & B. 313, 314 ; Wood v.
Beadell, 3 Sim. 273.

4 Blmnfteld v. Eyrt, 8 Beav. 250, 259 ; 9 Jur. 717 ; Reynell v. Sprye, 1 De 0. M. k O. 660. 690.

5 Wedderbume v. Wedderbur)ie,2B(MV. 208,213; 4 Jur. 66;4M. &C.686,598,59g;fi<w<A v. Lt^rcftter,

1 Keen, 579.
fl Walker v. Micklethwaif, 1 Dr. k Sm. 49.

:i»

i,

it

16^2

GENERALLY.

^X.

•I' .

no iiijiinptidii lian beon prayed by the l)ill.^ The Oourt will also,
under similar circumstances, interfere, to prevent injury to the pro-
perty, either by the parties litigant or others. Thus, if, after a
decree to account in a foreclosure suit, the mortgagor attempts to
cut timber, the (.\)urt will enjoin him, although there is no injunc-
tion prayed by the l)ill.-

Upon the same principle, if there has been a decree for the admin-
istration of assets, the Court will restrain a creditor, who is not a
party to the suit, from ])roceeding at law against the testator's or
intestate's estate, for his debt.'* This it does, because it considers
that the decree which it has made is in the nature of a judgment
for all the creditors ; and having taken the fund into its own hands
it will administer it etjuitably, and not permit the executor t j be
pursued at Law.'* This practice of restraining a creditor, although
no injunction has been prayed in terras against him, may be fol-
lowed, where the creditor is suing in a foreign Court,* if he has
adopted the proceedings here, or a very strong case can !"• lade out,
showing the inexpediency of permitting him to continue >e pro-
ceedings in the foreign Court.^

Our Order 284 pif)vides that, " No injunction to stay proceedings
at law is to be granted for default of an answer to the bill ; but such
injunction may be granted upon an interlocutory application, in like
manner as other special injunctions are granted."

The action will be restrained on the application of the heir -J of
another creditor ;*^ of a common legatee ; or even, as it seems, of a
residuary legatee,^ as well as the legal personal representative.

1 Grand Junction Canal Coiiipanij \ . Duties, 17 Sim. !W : 13 Jur. 770.

•I Wright V. Atkym, 1 V. *; B. 313, 314 ; Goodman v. Kine, 8 Beav. 379 ; Cammajor v. Strode, 1 S. &
S. 381 ; add see Walton v. Johnston, l'> Sim. 352 ; 12 Jur. 2i)i) ; Kiny v. Smith, 2 Hare, 239, 242 ;

7 Jur. «»4.

3 F'or a collection of cases as to sfayinj,'' pnjceedings at Law by a creditor, after decree, with foniis of

orders, .see Seton, 882-887 ; and as to staying concurrent suits after decree, see ib. 887—890.

4 Martin v. Martin, 1 Ves. S. f.U , 'JU ; Morrice v. nank uf Kwjland, Ca. t. Talb. 217. 226 : 3 P. Wui.s.

401. n. (F); 3 Swanst. !>73 ; S. i:. nom Bank nf t'Jngland v. Moricr, 2 Bro. P. C. od. Toml. ili^f :
I'axton V. JJouglan, 8 Ves. hio ; Perry v. PlieiipK, 10 Ves, 34, 40, 41 ; Clarke v. Harl of Ormonde,
Jac .122 Jacknon v. Leaf. 1 J. \, W. 229, 231, 232, n. (h) ; Drewry v. Thacker, 3 Swanst. .541, 542,
n. ; Lee v. Park, 1 Keen, 714, 71i> ; Macrae v. Smith, 2 K. & J. 411, 412.
6 Graham v. Maxwell, 1 .VIcN. .^ O. 71 : and see Pennell v. linij, 3 Pe G M. & G. 120 : 17 Jur. 247

6 Carron Compiny v. Maclaren, .'> H. L. Ca. 410 reversing- S. C. nom. Maclareny. Staintim, 10 Beav.

279 ; and see S. C. 2 Jur. N. S. 4',t, L C.k L. .TJ. ; and 21 Beav. 162 ; Re Brett, Reynolds v. Lewis,

8 W. R. 272, v. 0. S.

7 Martin v. Martin, ubi sttp. ; Koune v. Jonen, 1 Phil. 462.

8 Dyer v. Kearaley, 2 Mer. 482 ; Karl of PortarHngton v. Darner. 2 Phil. 262, 265.

9 Brooki V. Reynoldii, 1 Bro. C. C. 183 ; and see Clarke v. Earl of Ormonde, Jac. 122.

It:.

I also,
e pro-
ifter a
pts to
nj\mc-

idmin-
1 not a
Lor's or
nsiders
IgiTiont
hands

V tj be
though
be i'ol-
he has
ade out,
I'e pro-

jediiigs
lut Hueh
in like

11- ," of
IS, of a

ode, IS. Si
230, 242 ;

fonns of

-890.

3 P. Wins.

'onil. 4Gr- ;
\Onnonde,
It. 541, 642,

lur. 247

1, 1(5 Beav.

IV, lewii,

INJUNCTIONS AND RESTRAINING ORDERS.

1633

There is no instance, however, in whieli a creditor at Law has ever
been stopped, unless thefe was a decree giving him an absolute
and unconditional right to come in and prove his debt at once : for,
until there is such a decree, the creditor ought not to l>e deprived of
the benefit of a prior judgment.^ But when the decree has been
made, it must be preferred, if it jn-ecedes the judgment in point of
time :^ although a creditor, who has obtained his judgment pre-
viously to the decree, will not be re.strained from issuing execu-
tion f nor from obtaining the benefit of his judgment, by means
of a garnishoe order, under the 17 & 18 Vic. ch. 12o, sec. (II.'*

The action will be restrained, although the executor, or heir, may
have pleaded plene adminifitravif,^ or riens per descent ;'^ hut the
Court only interferes to give effect to its own decree, by restraining
-^.'oceedings against the a,ssets,^ and protecting the persons who have
acted in accordance therewith ; it will not interfere to protect an
executor from any liability to which he may have, personally, sub-
jected himself : therefore, if he has put in such a plea at Law as will
entitle the creditor to a judgment de bonis propriis, or to a judg-
ment de honia festaforis, et, sinon, de bonis propriis, the execution
of it will not be restrained.** What will amount to such a plea is
not easily to be gathered from the cases ; but it appears that all
pleas, except a general issue, or plene administravit, would be con-
sidered to have that effect."

Where an heir pleaded a false plea, execution was restrained
against the assets; but not against him personally.^"

In one case, where the executors had suffered judgment to go by
default, Lord Eldon granted an injunction: considering, that an

1 Rmh V. Uiijil*, 4 Ves. 638, 643 ; and see /V/'c*/ v. Phelipn, 10 Ves. 34; Ra^ikin v. llarwoniX, 2 Phil.

22 ; 8. C. kanken v. Haitoood, 5 Hare, 215 ; 10 Jur. 794.

2 l.argan v. Bowen, \ Sch. & Lef. 296, 299 ; Lee v. Park, 1 Keen, 714, 724 ; and see Green v. Pledger,

3 Hare, 166 ; Whitaker v. Wright, 2 Hare, 310 ; Parker v. Ringham, 33 Beav. .535.

3 Lee V. Park, u'oi gup ; I'^iticent v. Godton, 3 De 0. k S. 717, 7^6 ; Ranken v. Hardwood, ubi nup. ;

Marriage v. Skiggn, Re Skiggn, 4 Do G. & .1. 4 : 5 Jur. N. 8. 326 ; and see Horn v. Kilkenny
Railtcay Company, 1 K. & J. 399.

4 Re Roberts, Fouler v. Roberts, 2 Gitf. 226: 6 Jur. N. S. 1189. As to attachment of debU and

Kariiishee orders, see Chitty's Arch. 099, et seq.
f> y'ernon v. T/ietluaiion, 1 Phill. 460 ; Kirby v. Barton, 8 Beav. 45, 48.
« Rouse T. Jonet, 1 Phil. 462, 464.

7 Kent v. Pickering, 5 Sim. 669 ; Burlet v. Popplewell, 10 Sim. 383.
i^ Terrywest y Fetnerby,2yier. 4S0 ; Clarke v Earl of Ormonde, ubi mp. ; Lard v Wormleighton,

ib. 148 ; Price v. Evans, 4 Sim. 614 ; Kent v. Pickering, ubi lup. ; but see RatcUffe v. Wmch,

16 Beav. 576 : 17 Jur. 586.
9 Lee V. Park, ubi sup.
10 Pricey. Ecam, iSim. 514. As to proceedings at law against executors and administrators, see

Chilty't Arch. 1216, et sfq ; Ttower, 285, et teq.

1634

OENERALLY.

V Ui

!^.

executor's suffering judgment to go by default was no more than
saying that he was ready to do whatever a Court of Law or Equity
might think proper.^ But on another occasion, his Lordship intima-
ted, that it is the duty of executors to apply at once for an injunction :
for he took it to be clear, that if, after a decree to account, the ex-
ecutors should let judgment go by default, or should permit the
creditor to proceed at Law, they would be responsible : they might
indeed be allowed to stand in the place of those creditors against
the estate, but they could not do more.^

The power of restraining a creditor will also be exercised, where
an administration order has been made, in a suit commenced l>y
summons ;^ but not after an order directing preliminary accounts
•end inquiries.*

As the practice of granting restraining orders of this description
might be liable to much abuse, by a friendly creditor filing a bill
and obtaining a decree, it has been laid down as a rule, that an
order to restrain a creditor from proceeding at Law, after a decree
will not be granted without an admission of assets from the ex-
ecutor, or an affidavit from him as to what assets he has in his
hands.^ This rule, however, does not apply, where the balance in
the executor's hands has been stated in his answer f nor where the
suit has been instituted by a legatceJ

The creditor is, unless his claim is unfounded,^ entitled to his
costs in the action, up to the time when he first had notice of the
decree ; but not to his costs subsequently incurred.® The fact, that,
a creditor of an estate has proceeded at Law, after a decree fSc the
administration of the estate of the testator has been obtained, is not
sufficient to deprive him of his costs, either at Law, or of a motion
in this Court to restrain his action.^" He will also be allowed his

Gardner v. Garrett, 20 Beav. 489 ; Be Brooker,
S. 381.

1 Dyer v. Kearsley, 2 Mer. 482.

2 Clarke v Earl of Ormonde, Jac. 108, 122.

3 Ratcliffe v. Wirich.lG Beav. 570: 17 Jur. 586

Brooker v. Brooker, 3 Sm. & O. 475 : 3 Jur. N

4 Teague v. Richoldt, 1 1 Sim 46, ante .
r> Paxton T. Dougla*, 8 Yes. 520 ; Cleverly v. Cleverly, cited \h. 6?1 ; Gilpin v. Lady Southampton,

18 Yes. 469 ; Drewry v. Thacker, 3 Swanst. 546 ; Clarke v. Earl of Ormonde. Jac. 108, 122 , Ver-
non V. Thellmson, 1 Phill. 460 ; Bookless v. Crtimmack, C. P. Coop. 126 ; Ladhrokt v. Sloane, .'i
De G. & S. 291, 292 ; Lawton v. Laxvton, 8 W, R. 468, M. R.; Seton, 887.

6 OUpin V. Lady Southampton, 18 Yes. 469.

7 Ratcliffe v. Winch, 16 Beav 576. .

8 King v. King, 12 W. R. 1095, PI. R.

» Paxton y. Douglas, 8 Yes. 620 ; Jackson v. Leaf, 1 J . & W. 229, 231, 233 ; Curre v. Bowytr, 3 Madd.
466; Jones J, Brain, 2 Y. & C. C. C. 170 ; Sharrod v. Winfield, 1 Jur. N. S. 1164, V.C.M. ; sea
Seton, 884.
10 Re Langtry, 18 Orant, 5.30.

INJUNCTIONS AND RESTRAINING ORDERS.

1635

to his
of the
L that,
tSc the
I is not
lotion
led his

Brooker,

hampton,
1.22, Ver-
ISloane, 'i

ksMadd.
b.M. ; 9e«

costs of the application, unless his conduct has disentitled him
thereto.^ If assets are admitted, the creditor's costs are dii'ected to
be paid to him at once. If assets are not admitted, leave is given
to add his costs to his claim ; and to prove foi* the same in the
suit.^ If assets are admitted, but the debt is disputed, the cre-
ditor's costs will be directed to be paid, immediately on his
establishing his claim.'^

If the application is made after the account of debts has been
taken, an inquiry as to the amount of the creditor's claim will, if
necessary, be directed.*

An application to restrain a creditor from proceeding at Law is
made by motion, of which notice must be given to him. Separate
uotices must be served on each creditor, suing separately'"

Under the present practice, the creditor's further proceedings in
the matter are restrained by the order itself; and it is not usual
to direct an injunction to issue for that purpose/'

An injunction may also bo granted, without a bill being filed for
that express purpose, where a plaintiff is proceeding against the
defendant both in the Court of Chancery and in another Court, at
the same time, and for the same matter. In such cases, as we have
seen"^ the defendant has a right to call upon the plaintiff to elect in
which Court lie will proceed ; and then, if the plaintiff elects to pro-
ceed in Chancery, the Court will interfere, by injunction, to restrain
liim from further proceeding in the other Court. This remedy
applies only where the plaintiff has not proceeded to a decree.
After decree, the benefit of the order to elect is lost : because the
plaintiff has already made his election, and the decree has decided
the question between the parties. Under special circumstances
however, the plaintiff will be permitted to sue the defendant, both
under the decree, and in the other Court ; but the plaintiff ought

1 Re Lmigtri/, 18 Grant. 530; JotwK v. Jnneg, 5 Sim. 678 ; Grahaw v. Maxwell, 1 McN. & G. 71, 78 ;

Cole V. Burge^m, Kav, A]>\>. 1 ; Seton, 883; and see Gardner v. Garrett, 20Beav. 469; Lwwton
V. Laivton, "8 W. R. 458. M. K.

2 iVeU V. Stiimburnr, 14 Jur. 360, V.C.K.B.; Cole v. Burgesn, Kay. App. 1 ; Davey v. Plestow, 14

Jiir. 388, V. C. Wigiain; Canham v. A'ealf, 26 Beav. 2«6. See form of order, In Seton, 882.
,) A'lnflf V King, 10 .lur, N. S. 762 : 12 W. R. 1095, M. R. ; and see Davey v. Plextow, ubi sup.; see

also Mormn d; Davei/, 129, et seq.
4 Sutton V. MaKhitcr, 2 Sim. 513. 5 Moseley v. Mnnfleit, 9 W. R. B31, V.C.S.

6 Setoii, 883 ; and see form of order, Seton, 882 ; Braithwaite'x I'r. 229.

7 ,<?-'^)», !ii7.

79

i

"^

i

c

Q

1 (J V (-)

GENERALLY-.

berorc taking such steps, to apply for leave to the Coiiit; and if he
pi'oceeds without such leave, tlie Court will restrain liim, upon the
{i]»plication of thfe defendant.^ It is not now usual to issue the injunc-
tion : service of tlie order to elect Iteiiig sufficient ;- but, if required,
the injunction will be issued, on pioduetion of an office-copy of the
election.-*

Except in tlie cases abov<! pointed out. an injunction will be
mranted on the application of a defendant, liefore decree, only undei-
sery special circumstances.

Another class of (iases in which an injunction may be obtained
without a bill being filed for that purpose, has been already pointed
out as proceeding from the jealousy entertained by the Court of any
interference with its ]>rocess l>y another tribunal : for which reason
the CJourt will protect persons who have acted under its deci'ee
from actions brought against them for so doing ; and will even issue
its injunction to restrain a person from proceeding in an action at
Law, to recovei' damages for false imprisonment under process of
contempt improperly issued.''

With the exce[)tions above enumerated, the rule is, that, before
the Court will issue an injunctitm, a bill must be tiled: of which
bill a prayer for an injunction must form a part f and the injunc-
tion must be founded on the case alleged by the bill.^

The various cases in which this Court will interfere, by injunc-
tion, are almost as numerous as the matters which fall within its
equitable jurisdiction : for, whenever a plaintiff is entitled to equit-
able relief, if that relief consists in restraining the commission or
continuance of some act of the defendant, the Court will enjoin
him, by means of this prohibitory writ, or by an order in the
nature of it.^

1 Weddehunu' v. Wiiddvlnmw, 2 Reav. 208,213: 4 Jnr. 06 ; l'heli»< v. rinlluii',7 De G. M.k (I

722, 7M : 2 .lur. N. S. 17:i.

2 Rraifluraite'x Pr. 229. ;{ Sec Scton, 950.

■I JiuKxcll V. Litiiion, Chatliaiii,aiid Dover Uniliraii Cnutpanii, 4 (Jiff. 40;{ ; S. (.'. nom. Morman Scott
litisgell V. Ldiidon, Chathain. and Dover Uailimy Coiiipaiiii, 9 .lur. N. S. 1007 ; Hdycuinlie \
Carpenter, 1 Beav. 171.

o FroicU V. Lawrence, 1 J. & W. 65.").

6 Ante.

7 Cresy v. Beavan, 13 Sim. 09 ; Urrtz v. Union Bank of London, 1 Jur. N S. 127. V. C. S. ; Burdett

V. Han, i' Jnr- N. S. 1260: 12 W. R. (il, 1- 0.

8 For a collection of ca.ses in wliiuli injunctions hiivu been firmitoii, and fi.r fnriiiii of orders, aeeStton

S07, ft. xei/.

'I.'. '.

;„■■(■

INJUNCTIONS AND BKSTRAININU ORDERS.

1C37

if he
>ii the
ijunc-
[uiretl,
of th(t

vill be
under

)tained,
pointed
of any
reason
I decree
en issue
action at
•ocess of

t, before
)f which
injunc-

mjunc-
lithin its
Lo equit-
Usion or
\\ enjoin
in the

,Ci. M'f^ <■

lorinan Scott
Kdi/ci*'"'"' ^

Is. ; Burdett

ft, see Stton

lu investigating this Hubjoot, it will be mo.st convenient to con-
sider, in the first place, the cases in which an injunction will not be
ganted.

The Court will not grant an injunction, or order in the nature o
an injunction, to restrain persons from applying to the Legislature
of this or a foreign country •? except were the application is made
in breach of an express or implied agreement entered into by the
parties, and relates to matters which are not (jf public interest. An
injunction may, however, be granted to restrain a person from
opposing such an application ;- or to prevent an improper appropria-
tion of public funds, in promoting or opposing the application.*

The Court will also refuse an injunction to stay proceedings in
any criminal matter.* The Court has no jurisdiction to grant an
injunction to stay proceedings on a majulavms, an indictment, an
information, or a writ of prohibition ;^ but this restriction applies
only to cases where the parties, seeking redress by such proceedings,
are not the plaintiffs in Equity: for, if they are, then they are sub-
ject to control by an order personally affecting them. If. for
instance a suit were to be instituted to establish a right to land,
and to quiet the possession, and after filing the bill the plaintiff
should prefer an indictment for a forcible entry, which is of a
double nature, as it partakes of a breach of the peace and is also a
civil right, " the Court," said Lord Hardwicke, " would certainly
stop the proceedings upon such an indictment."" Upon this principle
his Lordship acted, in Mayor of York v. P'llkington^ where a bill
had been filed to establish a right of fishing, and the plaintiffs i^
the first cause indicted the agents of the defendants for a breach of
the peace in fishing : there, an injunction was granted, with refer-
ence to what w^as civilly in question between the parties, though it
was also the subject of a criminal prosecution : for, while the ques-

1 Rill V. Sierra ycviuin Cinnpatiy, 1 I)e G. F. & .1. 177 : (J Jiir. N. A. 184 ; Ware v. Grawl Junction

Waterworks Cninpanij 2 II. \- M. 470, 48.S ; Stnckton and Hartlepool Jiailway Company v. Leedg
and Tliirtik Railway Comprimi. -l I'liill. (160, 670 : llrathcotd v. Aorf/i Staffordshire. Jiailway Co.;
•2 McN. & (i. 100, 108; Luii'Hister and Carlisli' Itailuay Company v. Xorth Western Railway
Company, 2 K. \- .1. im.

2 Stockton and Hartlepool Railn'uy Company v. Leedt and Thirxk Railway Company, ubi sup.

:{ Attorney-General v. Corporatioit of Norwich, 16 Sim. i2b, 229 ; Attorney General v. Guardians of
Southampton, 17 Sim. (i, 13 ; Attorney-General v. Eastlake, 11 Hare, 205 ; 17 .liir. 801 ; Attorney-
General V Stayor of Wiyan, Kay, 2«8 ; :• De O. M. & O. .')2: Is .lur. 200.

4 Holderstaffe v. Saunders, iS Mod. 17.

') Lord Montayite v. Pudman, 2 Vuk. S. 3il(i. *

« 2 Atk. 30:5.

7 i Atk. 302 ; see Lord Montayue v. Dudman, 2 Ves. S. 306 ; Attorney-General t. Cleaver, 18 Ve».
220.

if
St

I

1638

OENERALLY.

tion of right was depending in Equity, it was but reasonable that
the plaintiff should not proceed by action or indictment until it was
determined there.

A Court of Equity has no jurisdiction to stay the process of a
Court of Law, upon an award which has been made a rule of Court
under the Stat. 9 & 10 Will. III. c. 15 : the Court in which the sub-
misoion is to be made a rule, alone having the power of reviewing
the award.^ i

o
.3:

An injunction will not lie to relieve the plaintiff against a judg-
ment at Law, where the case in Equity proceeds upon a ground
which was equally available at Law, unless the plaintiff can estab-
lish some special equitable ground for the relief which he asks.
Accordingly, it has been held, that a plaintiff in Equity, who had
pleaded a set-off in an action at Law and failed, could not sustain
a bill for an account, relating to the same transaction as to which he
had pleaded the set-off.^ But if a defence could not have been made
available in the Court of Law, at the same time, or under the cir-
cumstances, and there is no laches in the party applying, then
relief will be granted, and the Court of Chancery will interfere by
its injunction.^ So also, if a fact, material to the merits, which would
render the proceedings upon the judgment inequitable, should be
discovered after a trial, which could not, by ordinary diligence, have
been ascertained before, relief will be granted.* These, however, are
mere exceptions to the general rule, that Equity will not relieve
after a verdict where the defendant at Law might properly have
defended himself there f or where there has been a mistake in the
pleadings, or in the conduct of the cause ;® or merely to let in new
corroborative evidence.'

1 Owinett v. BannlMei; 14 Ves. .ISO ; Dawmn v. Sadler, IS.* S. 5^7 ; Xichols v. Roe, 3 M. & K.

4.31, 438; overriiliiiH;, S. C. .5 Sim. 156; see also Heming v. Swin<urton, 2 Phill. 79; Davieg v.
Qetty, 1 S. & S. 411 ; Pope v. Duncannnn, 0 Sim. 177 : 2 Jur. 178.

2 Harrinon v. Nettleiihip, 2 M. & K. 423. 42r> ; and see Siinpnon v. Lord Howden, 3 M. & C. 97 ; Mol-

lett V. Enenuixt, 26 Beav. 466.

3 Farquharson v. Pitcher, 2 Riiss. 81, 89.

4 Jarvis v. Chandler, T & H. 319.

5 Protheroe v. Forinan, 2 Swanst. 227 ; and see CcuntcHH of Gainmborough v. Oifford, 2 P. Wms. 424;

Lord Red. 132 ; Tai/lor v. Sheppard, 1 Y. & C. Ex. 271, 279 ; Hankey v. Verwm., 2 Cox. 12 ; Isaac
V. Humpage. 1 Ves. .1. 427 : 3 Bro. C. 0. 463 ; Dateimn v. Willoe, 1 Sch. & Lef. 205.

6 Siephenmn v. Wilson, 2 Vern. 325 ; Blackhall v. Combs, 2 P. Wms. 70 ; Kfitvp v. Mackrell, 2 Ves.

S. .')79; Halworthy v. MortUich,\ Cox, \A\; Great Western Railway Company v Cripps,^
Hare 91

7 Ware v. Hnnmod, 14 Ves. 31 ; Rvllonk v. Chajrittrnh 2 Do O. .'I R 211 : 12 Jur. 7.38.

INJUNCTIONS AND RESTRAINING ORDERS.

1639

An important distinction has fre(j[uently been attempted to be
drawn, between an error or mistake in tact, and an error or
mistake in Law. With resf)ect to the former, it has been clearly
settled, that where a deed has been executed, or money paid, from
ignorance of a fact, or under an erroneous impression respecting
it, a Court of Equity will relieve ; but there seems to have been
some difference upon the question whether it would do so, when
an act has been done under a mistake of law.^ With regard
to the casts on this head, in which relief has been given, some of
them are attended with circumstances of fraud or circumvention,
and others of them lie so much on the borders of the two kinds
of errors, that they are to be classed amongst instances of errors
of fact, rather than errors of law f but, in Pidlen v. Ready, ^
Lord Hardwicke intimated, that, if parties are entering into an
agreement, and have the facts before them, and their counsel
choose to construe it, taking upon themselves the knowledge of
the law, he would then hold them bound. Lord Eldon has quoted
this passage with evident approbation ; and, whatever may be the
rule generally as .to other parties, yet, in family arrangements, it
seems to be settled that they will not be disturbed, after a long
acquiescence, on the ground that they are founded on a mistake
of the parties, or because, in the result, they may turn out to be
more advantageous to one party than the other.* We may,
therefore, infer, fi'om these cases, that an injunction will not be
granted to stay any legal proceedings on the ground that the
deed or instrument upon which an action was brought was made
under a mistake in point of law f for ignorm<tntia juris nori
excuaat*

f
t

''i

97 ; Mol-

\U, 2 Yes.
1 Crippi, £"

Having now considered the several cases in which the Court
will not interfere by injunction, the principal instances in which
injunctions may be obtained will be mentioned.

1 Piuty V. Desbouvrie, 3 P. Wnis. 316 ; Broderick v. Broderick, 1 P. Wms. 239 ; Cocking v. Pratt, 1

Ves. S. 400 ; Bingham v. Bingham, ib. 126 ; liarnvden v. Hylton, 2 Yes. S. 304.

2 SeeSM. &K. t9.

3 2 Atk. 691 ; cited 1 Y. & B. 30.

4 See Tweddell v. Tweddell, T. ft R. 1, 11 ; Bellamy v. Sabine, 2 Phill. 425 ; Jenner v. Jenner, 2

Gl«f. 232 : 6 Jur. N. S. 668 ; 2 De O. F. & J. 359 : 6 Jur. N. S. 1314 ; Talbot v. ,<?ta7iiforth, IJ. &

H 484 : 7 Jur. N. S. 961.
6 Stockley v. Stockley, 1 V. & B. 23 ; Clifton r. Cockburn, 3 M. & K. 76 ; NeaU v. Nealc, 1 Keen,

672, 682.
6 Broom'$ llazims, 249, tt $e<j.

Hi

9P,

1640

aENERATJ.Y.

o
3:

It is a general rule, that wherever a party, by fraud, accident,
mistake, or otherwise, has obtained an advantage in ])roceeding in
a Court of ordinar}'^ jurisdiction, wliich must necessarily make
that Court an instrument of injustice, a Court of Equity will
interfere to prevent a manifest wrong, by restraining the party
whose conscience is thus bound, from using the advantage he has
there gained.^ Thus, if by fraud, accident, or mistake, a deed
is framed contrary to, or beyond the intention of the parties in
their contract on the subject, and the foi'ms of the*Courts of
Common Law will not admit of such an investigation as will
enable them to do justice, the (v^ourt of Chancery will restrain the
party from asserting his legal rights under the instrument in those
points in which it is so framed, until the question has been inves-
tigated : when, if the complaint be well founded, it will either
rectify the instrument in the points complained of, or permanently
restrict the party from making use of it.- There are also many
other cases in which the legal defence to a claim set up at Law
rests, either exclusively or in a great degree, within the knowledge
of the party advancing the claim ; and as it is against conscience
that the partj'^ should proceed in the assertion of his claim without
communicating the information he possesses, it has become one of
the modes of equitable interposition to afford relief, by injunction,
until the discovery is obtained. Fraud, accident, mistake, and
discovery, are, therefore, four of the principal grounds upon which
injunctions may be applied for, to stay proceedings at Law. And
it is to be observed, that an injunction to restrain proceedings at
Law, when awarded, does not deny, but admit, the jurisdiction of
the C!!ourts of Common Law ; and the ground upon which it issues
is, that they are making use of their jurisdiction, contrary to
equity and good conscience.**

The Court will relieve against an award made between partners in
ignorance, on the ])art of the arbitrators and of the remaining
partners, that important transactions had not been entered by the
other, the managing partner, in the books of the tirm, in consequence
of which omission the award had been, to a corresponding amount too

1 For a collection of easefs as to the staving proceedings in other Court*, with form* of orden, lee

Soton, 874-882.
■2 Lord Red. 127 ; Kdm on Inj. 4 14.
a Hill r, Tuiiter, 1 Atk. ulu ; and vee ;ihffficld v. Duehet* of Buekinghmnihire, ib. OSi.

m.

INJUNCTIONS AND RKSTUAINING ORDERS, j

1641

favorable to such managing partnei'. An injunction to restrain
l)roceeding8 on a judgment recovered at law upon an award alleged
to have been made under these circumstances was continued to the
hearing in a case, in which the ultimate success of the })laintifts at the
hearing, was not considered wholly free from question ; tlie amount of
the judgment being ordered into Oourt.^

A. sale of the equity of redemption of certain mortgaged property
had been effected under a power of sale contained in a second
mortgage deed, and pending a suit in this Court to set aside such sale .
The first mortgagee, wlio was one of the purchasers, was proceeding
at law to recover against the mortgagor, upon the covenant
contained in his mortgage deed, whereupon the mcjrtgagor filed a
supplemental bill to restrain proceedings at law. The first mortgagee,
in his answer to the original bill insisted on the validity of the sale ;
— from what had taken place, it was doubtful whether the mortgage
debt was not extinguished in equity, as between the mortgagor and
the mortgagee, and the original catise being almost ripe for hearing,
an injunction was granted to restrain the action at law until the
jjoaring took place.'

A mortgagor filed his bill alleging that nothing was due on the
uiortgage, and moved for an injunction to restrain execution in eject-
ment. The defendant set up a purchase and release of the equity
of redemption, and alleged that except by means of this purchase t)ie
mortgage was not paid. The Court considered that the evidence
shewed there was a fair case to try, as to the validity of the alleged
purchase ; and granted an injunction on the plaintiff paying into
Court $200, and entering into the usual undertaking."*

lers in
laining
yy the
i[uence
int too

Irden, see

The owner of Iftnd agreed to sell a jtortion thereof, and admitted
the party into possession, who improved the premises and afterwards
offered to sell his improvements back to his vendor, and for the purpose
of ascertaining the amount to be paid, referred it to arbitrators who
made an award, but its terms were never complied with, and the
vendor afterwards brought an action of ejectment against the

I WiUnn V. Richardson, 2 Grant, 443.

:i Rfi'sv. Bec*c«, 2 Grant, 660. ,

;) luating v. McKc, 14 Grant, 60a.

1642

GEN EH ALLY.

par^y in poHsesaion. The Court upon motion gi'anted an interwi
injunction restraining tlie plaintiff' in rjectnient from executing; a
writ of possession.^ Tlie Canada Company through their agent,
resident in Canada, contracted by letter to sell certain lands
of the Company, upon the condition, Amongst others, of the
vendee building a saw mill thereupon, the vendee proceeded with
the knowledge of the agent of the (company, to eiecta saw mill, and
construct a dam across a river, the effect of which was to overflow a
a large tract of land belonging to the Com])an3^ Sul»sequently the
Company conveyed the lands contiacted for, and which were situated
on both sides of the river, across which the dam had been constructed
reserving the bod of the rivei', and about thirty feet on eithei-
bank, the title to the bed of the river being then in the crown.
Afterwards, the comj^any having obtained a grant from the crown
of the bed of the river, instituted proceedings at law against the
persons owing the mill for the <lamage done by the (jverfiowing of
the river, and recovered a verdict for i!.")00, and other actions were
also brought for the same injuiy. Upon a bill filed for that pur-
pose, the Court, at the hearing, decreed a ])erpetual injunction
restraining the company from proceeding with the actions, and a
conveyance of the bed of the river, and the portions on either side
which had been reserved, and ordered the company to pay the
costs.'^

ct.

m.

' The plaintiff and defendant entered into an agreement, under
which the defendant was to procure goods, or guarantee the pay-
ment of goods which were to be obtained, and sold by the plaintiff
for their joint benefit, in certain proportions, and the plaintiff to
secure and indemnify the defendant against all loss in respect
thereof, executed a, confession of judgment to be Acted upon only in
default of the plaintiff meeting the payment of such goods; the
plaintiff made default, and defendant entered up judgment and
sued out execution ; the Court dissolved an injunction which had
been issued, restraining pioceedings upon the execution so issued
although upon the construction of the agreement it was doubtful
whether a partnership had not been created between the

1 Cook V. Smith, 4 Grant, 441.

2 Bttu»t$r T. The Canada Coinpanij, i Uraiit, 443.

si

INJUNCTIONS AND IIKSTUAINING ORDERS.

1043

nterivi
utinji; a
a},'cnt,
lands
of tho
ed with
iiill, and
erflow a
itly the
situated
<ti'ucted
1 either
} crown,
e crown
inst tho
wing of
ns were
,hat pur-
junction
18, and a
,her side
pay the

under
be pay-
plaintiff
intiff to
respect
only in
ds; the
nt and
ich had
issued
oubtful
teen the

parties; but the defendant (the plaintiff in the execution) having
caused cei-tain goods, provided by himself under the agreement to
be levied upon, the Court directed that the amount thereof, at cost
and charges, should be deducted from the amount of the debt and
costs, or that the injunction sliould be continued in respect of that
amount. (The Chancelloi* dissenting, who thought the injunction
should be continued to the hearing.)^ The solicitor of a mortgagee
in a suit of foreclosure, after a decree of absolute foreclosure, pui-
chased the mortgagor's intirest in the premises ; the decree, so pro-
nounced, was subsequently set aside, and a tlecree hIhI directed to be
(Ira;^ n up directing infer alia, a sale of the mortgaged premises, and
that all judgment creditors should bo served with the decree and
made parties to the suit ; notwithstanding this, however, the soli-
citor, who was also a judgment creditor of the mortgagor, proceeded
upon his judgment 'and was about to sell the mortgaged premises
under execution ; the Court, U])on a motion made in the cause,
restrained the solicitor from proceeding with his execution, and
ordered him to pay the costs of tho a])plication.-

The plaintiff had subscri'ue i a sum of money to aid in the erec-
tion of a parish church in the city of Toronto, with a view of
raising such a sum as would enable the churchwardens to erect
the church on the old site, so as to avoid leasing off portions of the
land about the church used as a burying ground. Subsequently, at
a meeting of the vestry, the ])lan of building was changed, by
reason of which in making the excavations for the foundation of
the church the graves of several members of the plaintiff's family
were disturbed ; thereupon, the plaintiff addressed to the vestry-
clerk a letter annulling his subscription and refused to pay it. A
suit having been instituted in the Division Court for the recovery
of this subscription, a motion was made in this Court for an
injunction to stay such action. The Court, under the circumstances,
refused the application, with costs. Quoere, whether this Court
will in any case grant an injunction to restrain an action in the
Division Court.'^

1 tt'ait V. Foster, 4 Grant, 54rt.

2 Goodwin v. Williams, b Grant, 17S.

3 fletoard v. Harris, 6 Grant, 226.

1044

QENKRALLY.

€

The owner of shares in a steamboat, im wliich a |)ortion of the
[)rice was secured by the bond of tlio holder, sohl the same, subject
to tliis bond, and the shares were afterwards transferred in trust for
the beneHt of the original owner of the vessel, who still held the
bond for securing the payment of the stock ; notwithstanding which
proceedings were taken by him to enforce })ayment of the bond.
Upon a bill, filed for that j)urpose, the Court restrained further
proceedings thereon ; and ordered the bond to be delivered up to be
cancelled, with costs.^

Qc.

-sa-

i '^i!.t'

The ))urchaser of saw-logs, to be delivered at certain specified
times, assigned the contract to a third ])arty, to whom the vendor
delivered one year's supply of the logs. Afterwards, the original
purchaser, becoming insolvent, absconded, and the vendor refused to
complete the contract, assorting the right to stop the goods iv
transitu, or to retain them before the transitus commenced, in con-
sequence of the insolvency of the purchaser. The assignee there-
upon'commenced an action at law in the name of the purchase}'
against the vendor, in which he recovered judgment, and the ven-
dor filed a bill to restrain ])roceedings at law. The Court refused
him any relief, and dismissed the lull with costs.'-^ A defendant in
an action at law, filed a bill in this Court to restrain proceedings,
alleging, as grounds for relief, facts, which, if they had been pro-
perly ]ileaded, would have aftbrded a good defence at law. The
Court, without enquiring as to the merits of the case, dismissed the
bill. A party mis-pleading at law, is not thereby entitled to seek
relief in a Court of Equity.'^ Proceedings under &ji. fa. at law hav-
ing been set aside, and an action brought against the Master, in
whose name the /?'. fa. liad been sued out, an injunction was issued
restraining pi-oceedings. Held, the application for an inj' ictii ,
the original cause in this Court was regular, and thq- officer <•!
this Court was the proper person to whom shoul referred V

question as to the amount of damage sustained b} lie prm-eedings
which had been set aside.* A creditor having proved hi.^ claim in
the Master's office, afterwards proceeded to sell under aji.fa. Uj)on

1 ThompKon v. Wilkes, 5 Grant, 594.

2 Wait V. Scott, 6 Grant, 154.

3 Morrison v. McLean, 7 Grant, 16T.

4 Fithrr v. Olani, 9 Grant, 4e

INJUNCTIONS AND RESTRAFNINO ORDKRd.

It>46

the ai)plieati()D of a ct»-<ief*eiulant, the sale was rest rained with

eosts.'

A tlebtor while imlebted to oiu! creditor.aud allepjcd to he insolvent,
assigned a note to another crcilitcjr for a hona fide debt. Sub-
He((uently both creditors 1 nought actions to recover their respective
demands, but in t)rder to enable one of them to obtain a first judg-
ment, no defence was entered to his action, while the other action
was defended. The C-oin't, (following the decision of Yovmj v.
Christie, 7 Grant, IU2), refused an injunction to restrain the first
judgment creditor from enfoicing the execution sued out on hit
judgment.-' Although the nlaintifis had been guilty of great delay
in applying to this (Jcmrt for an injunction to restrain the sale of
lands under an execution at law, yet a sufficient case having been
made out for an encpiiry, the Court granted the writ on an interlocu-
tory motion ; the piaintifi^'s undertaking to proceed to an examination
of witnesses within one month after answer filed, and hearing the
cause forthwith thereafter, paying the costs at law incurred by
reason of postponing the sale, and paying interest from the time
the sale was to have taken place until thi> time of making a decree
in the cause, in the event of the sale failing to n^alize enough to pay
the full amount of the claim under the execution.'* A party to an
action at law in coming into equity to obtain relief against a
judgment therein and a stay of execution issued against him
on such judgment, upon a statement of facts which, had they been
proved, would have constituted a good defence to the action, is
l)ound to establish that there are fact-, which, had they been proved
in the action, would have formed a good defence ; but at the time
of such trial, and at the time he could, upon this disclosure, have
obtained a new trial, he was ignorant of them, and could not with
reasonable tliligence have ascertained them. When a long time has
elapsed since the party so applying did ascertain such facts, he is
i)Ound to make out as clear a case for an injunction as he would to
obtain a decree to unravel the transactions which a Court of com-
pe^^-^-nt jurisdiction has, by its judgment, closed.' This Court has no
iuiisdiction to restrain execution or other proceedings at law on a

1 Cahnac v. Duric^ OOruiit, 486.
- McKenna v. Smith, 10 Grant, tO.

! ("'naila Pcniiaiunt liiiilding Society \. 0a >tV v/ CTpjiier Caiucda, 10 Orant, SOS.
unningham v. Buehanan, 10 Grant, 62S.

J',

'^'

1646

GENERALLY.

legal demand upon a written instrument, on the ground that the
defendant at law has a counter claim for unliquidated damages for
the violation by the plaintitf at law, of covenants contained in the
same instrument.^ Where an agreement not under seal, was entered
into by a mortgagee, who obtained from the mortgagor a deed of
(certain property ; whereby the mortgagor was allowed to retain
possession of a portion of the property, and the mortgagee the other
portion, until he was paid ; and such agreement having been destroyed
by the mortgagee, and an action of ejectment brought on the deed ;
the Court restrained the n.ortgagee from enforcing his legal right.^
An injunction may be granted against a plaintiff, at the instance of
I'l j defendant before decree.^

On an application for an injunction against an execution at law,
the plaintiff in equity has not necessaiily to satisfy the Court by
evidence that the facts, if disputed, are as his bill and affidavits
state ; but only that there to a substantial eqitable case which
ought to be decided before execution goes. Where a party who is
wrongfully sued at law comes into equity promptly, so that, by
means of our system of circuits, his equitable case can be tried with-
in a few weeks of the time when a legal defence would be triable at
law, if he verifies his bill, shewing a good equitable case that is only
triable in this Court, he can seld jm be refused an injunction to re-
strain any execution going until the equitable questions are disposed
of There is no technical rule requiring the plaintiff's affidavit in
support of a motion for an injunction to restrain any execution
going until the equitable qu'^r lions are disposed of There is no
technical rule requiring the plaintiffs affidavit in support of motion
for an injunction to be corroborated by other evidence ; though the
absence of other evidence may sometimes be a circumstance material
to be considered. If a defendant at law is guilty ..f delay in insti-
tuting his suit here this may not be a bar to his application for an
injunction ; but the Court, for the security of the plaintiff at law,
may require the payment of the money into Court to abide the
event ; or may impose other terms which in case of a prompt appli-
cation it might not be just or reasonable for the Court to exact. Or,
the Court may, in the exercise of its discretion refuse the motion

1 Smith V. WootUn, 18 Grant, 200.

2 Harrih v. Mtyen, 7 U. C. L. J. 843.

8 SUteart v. Kiitj/ittnUl, 13 Grant, 347.

INJUNCTIONS AND RESTRAINING ORDERS.

1647

lat the
ges for
in the
Bntered
ieed of

retain
e other
stroyed
e deed ;

right.^
bance of

at law,
curt by
ffidavits
e which
' who IS
:hat, by
}d with-
riable at
is only
m to re-
isposed
Idavit in
lecution
re is no
motion
lUgh the
laterial
n insti-
for an
at law,
lide the
t appli-
,ct. Or,
motion

altogether, notwithstanding the 'prima facie case, which the plain-
tiff's bill and affidavits present in his favor ; and, in view of this dis-
cretion, it may be expedient for the plaintiff in such a case to fortify
his own affidavit with otner evidence, which, in case of an earlier
application might have been unnecessary. A defendant at law un-
necessarily delayed filing his bill for an injunction until it was too
late to have the equitable case it set up heard for six months ; there
were executions to a large amount out against his lands at the suit
of other persons ; and the defendant in equity swore, that, if delayed
by an injunction, he believed he would probably lose his debt. This
statement not being met by any counter affidavit, an injunction was
refused except upon the terms of paying the monev into Court.^ A
rule nisi in a County Court, for staying an executi ou on the ground
that the execution had been satisfied having been discharged was
held to be no bar to an interlocutory injunction in this Court on the
same ground.'

In these cases, the interference of a Court of Equity is founded
upon strict equitable principles. Sometimes, however, the question
between the parties depends partly upon a legal title and partly
on an equity which will arise only in the event of that title being
decided in one way. In such a case, the practice of the Court is,
to require that the party applying to the Court for its interposition
should admit the legal right of the other party ; or, if circumstances
are not such as to enable him to do that, then to allow the action
to go on, but to restrain <?xecution on the judgment, in order that
the legal rights of the parses may be first ascertained, and that the
j)iaintiff may then come to the Court to r-pply those legal rights.^*

In cases resting upon purely equitable grounds, the injunction is
not confined to any one point of the proceedings at Law ; but, upon
a proper case being presented to the Court, it may l>e granted at
any stage of the action. Thus, an injunction is sometimes granted
to stay trial f sometimes, when the parties are in a condition to
enter upjirdgment, to restrain their so doing ;^ and sometimes it is

1 Treadwell v. MorrU, 15 Grant, 165. 2 limh v. Bunh, 15 Grant, 431.

:! Rarnard v. WaUin, 0. & P. 85. 90 ; UmUon v, TvwpU, 9 W. U. 243 ; not reported on this point, L'i)

Beav. 536 ; and see Seton, 875.
4 Ccdd V. Woodtn, 3 Bro. C. C. 73 ; Lady Arundell v. Phippt, 10 Ve.s. 139, 144; Howe v. Wood, li

Swanst. 234, n. {a) ; Holme v. Brown, 9 Hare. App. 29 ; and see Lloiid v. Adami, 4 K. & .1. 467.
."> Twmr V. Wright, 1 .r, A W. 290 ; H'lHtViiii* v. Roberti, 8 Hare. 315.

A

it

i^';

1648

OENE RALLY.

as

Ul
Q

Ul c

issued after a judgment, to stay execution, or proceedings under an
execution.^ The C^ourt is, however, veiy cautious in interfering,
when the application is nmde on the'^evo itf the trial at Law;^ and
it is to be remembered that, after a judgment, an injunction will not
be granted, except in those cases where there has been fi-aud or col-
lusi(m in obtaining a verdict ; or where the party has been unable
to defend himself effectually at iiuw, without'\iny)fault or negligence
of his own; or Mdiere the plaintiff has possessed himself of some-
thing by means of which he has obtained an unconscientious
advantage. In short, the Courts are unwilling t(» interfere,
where it appeals that the ])Jaintiff has lain by until after a trial has
taken place.''

It has been held in our Court that, where a special injunction is
granted staying proceedings at Law, the amount claimed in the
action at Law, must be paid into (^ourt.^

A mortgage had been created by an absolute deed of conveyance
with a bend of defeasance ; a judgment was afterwards obtained
against the mortgagee and an execution sent out against his lands ;
the Sheriff, under tlie wiit so issued, had advertized, and was about
to sell the mortgage property ; upon a bill filed against the judg-
ment creditor and the moi-tgagee, setting forth these facts, which
were admitted by the defendants, the Court granted a special injunc-
tion restraining further proceedings under the writ,'' Where an
action at Law had been brought by a Building Society against
W. as surety for the Secretary of the Building Society ; and W.
filed a bill to restrain the action, founding his Ecpiity on a resolu-
tion or minute alleged to have been p issed or made by the Board
of Directors in the following terms — "That Mr. W. had requested
that his security for the Secretary might be cancelled. * * *
It was suggested also that Mr. R. W's. name should be erased from

1 I'rotld'roi' V. Fiiniian, 2 Swuiist. 227, 2.'14. n. : Ih-imka v. t'nrtnii, 1 Y. it 0. C. C. 271, 274: HJur, 94:

WiUiaiiin V. Ihirl's, 2 Situ. 4(11.

2 Set<-n, b77, eitiuijr Lariiiuth v. SiiiiiDnns, 11 Fob 1854, \ . ('. S. ; auil.sBo Holme v. Brown, !) Hare,

App. 2S) ; IJiijid V. A(lam:<, 4 K. & J. 4ti7.
Formerly a distinction e\istu(l between injunctions to restrain i)rncee(lingn at law, and other in-
junctiiius; but tliis lia.s been abolislieil ;an(l see llolmr v. Jlrnirn, 9 Hare, Ajjp. 25) : Fitzgerald v,
Bult, ib.; App. 65 ; Scrgigon v. Ucttoau, 16 .lur. 1111, V. 0. S. ; i) Hure, .Vpp. 29 n. ; Seninr
f'ritchard, 16 Beav. 173: l^orell v. Oal'.ouuii, 17 Heav. 1 ; Mollrft v. EueimUt, 25 Beav. GO!l : iti
Wens 4(iU; Harrin v. Colleit, 2(5 Beav. 222 ; Mminay v. Minen Jiiii/al, 3 Drew. 130: 1 Jur. N.
163 ; Lloyd v. Adams, 4 K iSc .1. 4t57 ; Fux v. Hill, 2 I)e O. iV J 353 ; Sttton, 877.
4 Hnrriixn v. Hrhii. 1 (innit, ".•?. r, Xfll v. Hnt.h- uf r'/tjvr Vnnnda, 2 Giant, 380.

ider an
rt'eriug,
'f and
tvil) not
I or col-
unable
jlitjenee
)f soine-
ientiouH
nterfere,
trial has

iction is
d in the

nveyance
obtained
is lands ;
ras about
he judg-
ts, which
1 injunc-
here an
against
and W.
a re.solu-
e Board

equested

# * »

ised from

l274:(!.Iur. 94:

Vowii, '.» Hare,

laud other in
[Fitzgerald v.
|n. ; Senior
Jeav. OOit : in
1 Jur. N.

INJUNCTIONS AND FESTRATNINU ORDKR8.

1649

the said bond by wish of the board, and both be relieved, /mm secu-
ritiefi. Mr. T. was requested to submit two '.ther names as secui-itiea
in place of the two gentlemen named. " The ( !ourt held that such
a resolution af'orded nf> oround for interfering; with the action at
Law.^

The Courts of C-onnnon Law have now tlie power of compelling
discovery, and adjudicating upon equitalde defences f but the con-
current jurisdiction of the Court of Chanceiy is not thereby
abrogated."^ A party, however, who raises an ecpiitable defence at
Law, may be held to have elected to abide by the ])roceedings there,
and to hav<^ abandoned his right to proceed in the Court of
( 'hancery.*

An injunction until answer, or further order, may be granted to
I'cstrain proceedings in the Court of Probate, on thii ground that a
complete discovery cannot be obtained there.''

Although the f/ourt of ( -hancery does not. in general, interfere
with proceedings in the Court of Bankru[itcy, which is a ( .ourt of
K(|uity as well as of Law, and therefore ca})abh> .of doing justice
between the parties in matters of equity, yet, it seems, that it will
interfere to restrain ])roceedings, the (.'fieet of w'lich may be to
afford a foundation for an adjudication in bankruptcy, in a case
where such a }>roceeding would be conti'arv to equity.*^

V. and D., traders, made an assignment to the jtlaintiffs on the
nth January, 1805, as in solvents, and in pursuance of the provisions
of the Act of 1804. A judgment at Law having been obtained
aj^ainst V, his interest in the partnership assets was sold for a

1 Whittemora v. Jlidntit, 2 Gnint, ,125:

2 As to compelling disoovery ut liiw, see Coiiimou Law Proeednre Act ; Chitfj/'n Arch. 1411, et neq. ;

and as to equitable defences at law, see same Act, ss. 8.';-8(> ; Chitty'x Arch. 2.52, et xei/. As to
writs of injunction at law, sue jx'xt.

:{ Ma<jnav v. Mines Itoijal, S Drew. 130: I lur. N. S. 1,W ; Farfhrnth-r v. Welch ■ an, 3 Drew, 122;
Ooiiipufz V. I'lmU'ii, 4 Drew 44-( : .'^i Jur. .V. S. 2(!| ; I'heliis \. f'rotlieri), 7 De (i. M. k O. 722: 2
Jur. N. S. 173; Fmnti v. lircmridge, 2 K. & .1. 174 ; 8 De O. .M. & G. 100: 2Jur. N. S. 311 ; Rritixli
Empire Stiijipiiiji Coii'panji v. Sinin's, 3 K. iV .1. 4:!:f : :( .hir. X 8. 8S1 : Cn-s]-' ii v. Kurnpean .1-
American Cituipr.u!; , . J. & H, 108 : « .lur. .\. S lliiO ; liarrii v. r;v;.-,',-.s//, -j .1. \ II. \M ; Walker
V. Mickletliwaite, 1 Dr. & Sni. 41» ; Thirnttin v. McKewan, 1 If. iV M. ;i2."), .'i';!) ; S'luurt v. Oreat
Wenteni Hailwaii Company, 2 Dr. & Sni. 438 ; AlTd. 2 De 0. J. & S. 319 : M Jiu-. N. S. 627.

4 Terrell v. lliggx 1 De O. & J. 338 ; 4 Jur. N. S. 41 ; Walker v. MiekUthiraithe. ubi mip ; and sec
flvans V. lireinridge, and Stewart v. Ureat Wentem liailieati Conipaim, ubi sup.

u Fuller V. Iiu/ram, 6 Jur. N. S. ,-.10 : 7 W. R. 302, V. 0. W.

« Attwood V. bankH.-l Beav. 102, 200 ; I'erry v. Walker, 1 Y. * U. 0. O. H72: « Jur. 846 ; Pirn v.
WilHon, 2 Phil. 653, «.50; wid -ee Thnmitmn \. f>erlin,ii, 1 Hnre, .(.".8. 371, 380; Mather v l.mi, •>
J. it H. 374.

f

'€'

m

1650

(JENERALLY.

^

«4j c;

nominal consideration to C, who had notice of the Insolvency pro-
proceedings, C, then entered into possession of, and otherwise
interfered with the partnership goods, so as to hinder the plaintiffs
from exercising the duties of their ottice ; an injunction was there-
fore granted on application of the assignees to restrain the defend-
ant from further interference.^ By letters patent under the great
seal issued on the ICth October, 1842, certain persons therein
named were created a body corporate by the name of " Queen's
College, at Kingston," with the style and privilege of a University,
with power to appoint professors and other officers, and in case of
complaint made to the trustees to institute enquiry, and in tlie
event of any impropriety of conduct being duly proved, to admonish,
reprove, suspend, or remove the person offending : Held, that the
professorships in the institution wore offices of freehold, and that
the trustees had not the power at their discretion without such
enquiry of removing the ])rofessors, but that they held their appoint-
ments ad ritaw,, aut cvl/Hnii, that this (Jourt would by injunction
prevent the trustees from imjn-operly interfering with the professors
in the discharge of their duties, and where a professor had been im-
properly removed, the ( Vjurt, on decreeing him relief, and in order
to do him complete justice, ordered him to be paid out of the trust
funds of the institution liis arrears of salary; and ordered such of
the trustees as liad acted in such improj)er removal to pay the costs
of the suit.'-

^.

With regard to foreign ( !(jurts. there has been much doubt and
difference of opinion. Soon after the Restoration, when the Court
of Chancery was in its infancy. Lord Clarendon refused an injunc-
tion to restrain proceedings at JiCghorn, after advising with the
other Judges; but the reporter adds, " sed qiiwre, for all the bar
was of another opiTiion."** This case has not been recognized or fol-
lowed in later times ; and several authorities may be found where
decrees and orders have been made to restrain defendants from
carrying on proceedings under such actions, in Ireland,* Scotland,''

1 Wilson V. Corby, 11 Grant, 92. 2 Weir v. Mciihieson, 11 Grant, 383.

3 Love V. Baker, 1 Oh. Ca. C7 ; S. C. /io»i. Lowe v. Baker, Freem. 125.

4 Clarke v. Ormonde, Jac. 546 ; Booth v. Leycenter, 1 Keen, 579 ; Ilarrinon v. Ourney, 2 J. & W. 563.
6 Kennedy v. Cannilliii, 2 Swanst. 313, 323 ; see Wharton v. May, 5 Vea 27, 71 ; Bmhby v. Munday, st

Madd. 297, 3n(i ; Marqvcsg of Breadalhatie v. Manjurnn ofCi'iandog, 2 M. .t C. 711, 728; Jonen v.
Oeddes, 1 Phil. 724 : Venniuy v. Loyd, 1 De G. F. & J. li)3 : 6 Jur. N. S. 81 ; MarquiM of Bute v
smart. « Giff. :,'i1 ; 7 -Tur. N. S. .S55 : S. 0. nni». fffvart v. ^foore. ih. 1129 ; 4 Mac. H L. 1.

INJTJNCmONS AND RESTRAINING ORDERS.

1651

jn un-
order
s trust
iich of

; costs

bt and

Court

Injunc-

(th the

|he bar

or fol-

wher(>

trland,

&W. r.o:i.

Bute V

Deraerera, and other countries.* In granting such an injuncton,
however, the Court does not presume to direct or control the
foreign Courts ; but, without respect to the subject-matter of dis-
pute, it considers the equities between the parties, and decrees in
per807iam, according to those equities. The jurisdiction is not
grounded upon any pretension to the exercise of judicial and ad-
ministrative rights abroad, but on the circumstance of the party,
upon whom the order is made, being within the power of the Court:
for, if the Court can decree the performance of an agreement touch-
ing the boundary of a province in North America,^ or can foreclose
a mortgage in the Channel Islands,^ in like manner it can restrain
the party, being within the limits of its jurisdiction, from doing
anything abroad, whether the thing forbidden be a conveyance or
other act in pais, of the instituting or prosecuting of an action in a
foreign Court.* And if a defendant, who is thus ordered to discon-
tinue a proceeding which he has commenced against the plaintiff
in a foreign Court, should think fit to disobey the order, and con-
tinue the prosecution of such proceedings, the Court of Chancery,
although it does not pretend to control or intermeddle with the in-
dependent jurisdiction which the other Court undoubtedly possesses
will act upon the person of the defendant, by punishing him for his
'jontempt ; and if he should continue contumacious, and ultimately
obtain a judgment in the other Court, it will protect the plaintiff
here against the ccmsequences of thp^t judgment.*^ In this view of
the case, as the doctrine is now established, the only question is,
whether the ends of justice require that the Court of Chancery
should interfere. This must depend upon special circumstances :
Huch as, that the Court of Chancery has better means of determin-
ing both the law and the facts of the case f or that two suits have
been instituted for the same matter in all respects, and there has
been a decree and adjudication in this country ; or that there are
questions in the cause, which must be decided according to the prin-
ciples of equity, before it can appear whether the parties have a

1 Bunfturi/ v. Bunb ry, 1 Beiv. 3\i, 331 : li'Akhni v. Reinble, 1 S. ifi S. 7, 15 ; and see Prier v.

Dewhunt, 4 M. & C. 76. 7!» ; 8 Sim. 279 ; Cood v. Cnod, 33 Beav. 314 : 9 Jur. N. S. 1366.

2 Penn v. Lord Baltimore. 1 Vos. S. 444.

3 Toller V. Carteret, 2 Yen). 494.

4 Ijord Portarlington v. Soulbj/. 3 M. & K. 104, 108.

5 Bushby v. Munday, 6 Madd. 297, 307.
H Ihid.; Jontt v. Goddei, 1 Phill. 784.

8o

I

i

V'.

1652

OENERALLT.

clear equitable, as well as legal title, to the rights which they claim
abroatl.^

O
Ui

>3 "\s;i*

Au injunction will also be granted to prevent waste, or anything
in the nature of wa.>te. The inadequacy of the remedy at Common
Law, for waste, is so unquestionable that a resort to the Courts of
Law, for this purpose has in a great measure fallen into disuse
The remedy by a bill in equity is much more easy, expeditious,
and complete : for lellef will be uiveii in equity where the reme-
dies provided in the Courts of Common Law could not be made to
apply '.^ as where the titles of the parties are of a purely equitable
nature ; or where the parties have both legal titles and legal
remedies, but irreparable mischief would be djne, unless they
were entitled to more complete relief than that which they could
obtain at law ; or where the parties committing the waste, with
nothing but temporary and limited interests in the subject-matter,
are maliciously and wantonly abusing those legal rights to the injury
of r.hose in remainder.^

oc.

The most ordinary instance of the interposition of a Court of
Equity, is by injunction to restrain the commission of waste by a
tenant for life or years, upon the application of the reversioner or
remainder-man : for an estate for life is always impeachable for
waste, unless the contrary is expressly povided.* Injunctions also
will be granted to protect the interests of a child in ventre sa
mere ;^ of a remainder-man, whether vested," or contingent,'^ or of
.an executory devisee,** or of a tenant in common, if the co-tenant in
possession is doing that which is destructive to the property.'** And
not only will the Court of Chancery grant the iniunction upon the

1 Booth V. Leycenter, 1 Keen, 679 ; 3 iM. & C. 459 ; see also LonI I'ortarlivgfon v. Soulby, 3 M. & K.

104; Wediterburn v. Wcdderburn, i M. & C. 685, .'iti4 ; Jvnvs v. Gedden, 1 Pliill. 724 ; Ueiultraun
V. llenderson, 3 Hare, 100, 110 ; I'ennell v. Roy, A De G. M. .V O. 120: 17 .Jur. 247 ; Coud v.
Good, 33 Boav 314 : 9 Jur. N. S. 1335.

2 Astocflictot laches in cas"s of waste, see ^tfocney-Oc/itiroi v. i<lastlake,\\ Hare 206. 17 Jur.

801.

3 As to waste, see Add. Wrongs, 118 ; L. C. Conv. 90-97 ; 1 L. 0. Eq. 559-H24 ; 2 S/teuce Kq. Jur. 570;

Story Kq. Jur. s. 515 ; W'liodfaU, 481 ; and for a collcu''<ioii of cwscs as to waste, with fomia ol
orders for injunctions see Setuii, 890-897.

4 Cole V. Peynun, 1 Chan. Rep. 100. An injunction may be granted, althon;;h the tenant holds un-

der a lease renewable forever : Coppinger v. Hubbitui, :> ^. & Lat. 397.

5 liobiimon v. Litloii 3 Atk. 211 ; LuttereU'n Cage, cited I'rec. in Ch. 60.

6 Ko» well's Cane, \ Kolle Ab. 377 ; Tracy v. Traci/, 1 Vern. i'i ; Abraliaiii v. liubb, Freeni. ;"i;i ;

Oarth V. Cotton, 1 Dick. 103, v03 ; Uayot v. Jiiujut, 32 Ueav. hOQ : 9 Jur. N. S. 102.. •

7 Williamii v. Duke of Bolton, 3 P. Wms. 208, n, (I).

% Haywar-ls. StiUinyJleet, I Atk. 4'i2. 425; Itnbiiunn v. Litton, nbi gup.; Mtd see Stmufifhi \.

Haberyham, 10 Ves. 273.
9 Arthur v. Lawb, 2 Dr. & Sin. 428.

INJUNCTIONS AND RESTRAINING ORDBRH.

1658

laiiQ

thing
omon
rts of
Misuse
itious.
reme-
a<le to
litable

legal
i they

could

i, with

natter,

injury

ourt of
e by a
ner or
\)\e for
ns also
itre sa
J or of
ant in
^ And
on the

I3M.4; K.

\lendtrsiiii
C'Jvd V.

1 . 17 Jur.

k.Jur. 570;
forms "1

[holds un-

treeiu. ;"i;! :

application of the remainder-man in fee, but it will also grant it upon
the application of the mesne remainder-man for life : for though he
has no right to the timber, which belongs to the owner of the in-
heritan'*e,^ yet, if the first tenant for life should die, he would have
an interest in the mast and shade.' Upon the like principle, also an
injunction will be granted at the suit of ground landlord, to stay
waste by an under-lessee :^ and an injunction has also been obtained
against a tenant from year to year, after a notice to quit, to restrain
him from taking away the crops, or sowing the land with a pernic-
ious seed, in a manner which was contrary to the usual course of
husbandry*

A Court of Equity will also restrain waste where the titles of
^he parties are equitable : thus, in the case of mortgages, if the
mortgagor in possession should attempt to cut down timbe
and the land without the timber is an insufficient or scanty
security, a Court of Equity will restrain him : for, as the whole
estate is a security for the money advanced, the mortgagor, under
such circumstances, ought not to be suftered to lessen or diminish
it."' And so it is the duty of trustees to protect the entire
inheritance for the benefit of all the cestivi que trustent in remainder
whether vested or contingent; and as, in many instances, the
value of that inheritance ccmsists as much of the mines and
timber as it does of the land, they may, by force of their trust,
have their remedy by injunction, to prevent the destruction of the
one, or the exhaustion of the other.'' Under this head, we may
also class those cases where pereons are contracting for leases and
other interests in property, which they are only in possession of by^
virtue of the contract : in such cases, if the plaintiff has no legar
title, he has no redi-ess at law ; but if he has such a contract as
will authorize him to call upon the Court to clothe his possession
with the legal title, the injunction will be granted.^

1 Liuhington v. Boldero, 15 Beav. 1 ; ai»d see Bagot v Bagot, ubi mip.

2 Danrell v. Champiiess, 1 E'l. Ca Ab. 400, pi 4 ; Molli'iieaux v. Powell, K P. Wins. 268, n. (V) ;

Pi rrot V, Perrot, 3 Atk. 94 ; Davis v. Leo, 6 V«s. 787.

3 Farrant v. Lovell, 3 Atk 723 ; S. C. noiii. Farrant v. Lee, Ainb. 105.

4 Onslouj V. . ., 16 Ves. 173 ; PraH v. BrHt, 2 Macld. 62 ; and see Duke of St. Alhan* r. Skip-

wUk 8 Beuv. o54.

5 Usborm v (Tshorm; 1 Diok. 75 ; Wright v. Atkxim, 1 V. & B. 313, 314 ; Uippesley v. Speneer, 5

Madil. 422; IIii iinhri:<i< v. ffarrimni, 1 ,1. & W. Ml; Gnodiiuin v. Kiiic, 8 Beav. .179 ; and see
King V. Smith, ;>"Hare. 23J: 7 Jur. 691.

6 Garth V. Cotton, 1 Dick 183; Staniiel'l v. Uahfrgham, 10 Ves. 273.270; Puah v. Vauahan, 12

Beav. 517.

7 Norway v. Roiim, l!) Vo». 154, IS.'S.

r

1654f

QENERALLT.

Q
Q

Uk an.'..

.a:

The mortgagee of a term of years being in possession of the
mortgaged estate, will, at the suit of the mortgagor, be restrained
by injunction from felling timber on the mortgaged premises,
althougli the mortgagee may have obtained the consent of the
reversioner to what he is doing.^ A mortgage having been created
on land on which was erected a steam saw- mill, the mortgagor was
restrained from removing the machinery out of the mill ; although
it was alleged tliat the ])roperty would still remain a sufficient
security, as the effect of such removal would have him to change
tlie nature and character of the mortgaged premises.^ Although
the general principle is that one joint tenant will not be restrained
from committing waste at the instance of his co-tenant, the rule is
different where a bill has been already filed for a partition of the
estate.^ The plaintiff, a mortgagee, filed his bill for foreclosure and
for an injunction to restrain the vendee of the mortgagor from
removing a building erected on the property. The Court thouglit
that the building, having been actually removed, it was a proper
case for a mandatory injunction, but it appearing that the building-
had been removed piece-meal, and that there might be difficulty in
restoring it, an inquiry was directed to ascertain the value thereof,
as sufficient for the justice of the case.*

An injunction will also be granted, in some cases, where the
parties have both legal titles and legal remedies, but irreparable
mischief would be done unless they were entitled to more complete
relief than that which they would obtain at Law. It has accord-
ingly been granted, where the injunction amounted in fact to an
injunction to stop a trespass : for, if the Court would not interfer*'
against a trespasser, he might go on by repeated acts of
damage, which would be absolutely irremediable.'' The original
distinction was, that if a person still living committed a trespass,
by cutting timber, or taking lead ore, or digging for coal, the Court
would not interfere, except so far as to give a discovery, and then
an action might be brought for the value discovered ; but if the

1 Chitholin V. Sheldon, 1 Grant, 318
3 Lcunert v. Salyards, 17 Grant, 109.
5 Deere y.
M. &

2 Gordon v. Johnston, 14 Grant, 402.
4 Meyers v. Smith, 15 Grant, til«.

fHiny V. J,, ,.-,-• F - - -- J , I

272 : 15 .lur. 73. As to trespass upon real |iro;ic?rty, see Add. Wroiips, 220, ft neq.; anrt for a W)l
lection of cases in Equity, see Sfton, 897.

INJUNC'l'IONS AND RESTRAINING ORDERS.

1655

of the
irained
emises,
of the
created
JOT was
[though
ifficient
change
Ithough
strained
e rule is
n of the
Bure and
ror from
thougiit
a proper
building
ficulty in
thereof,

there the
reparable
complete
Is accord -
lact to an
1 interfere
acts of
original
trespass,
[le Court
md then
it if the

J Company, S
latiway Com
1 1 Sim. N «
Lnd foraool

persou died, then, since the trespass died with him, the Court has
said it would decree an account, though the law provided no
remedy. Throughout Lord Hardwicke's time, and down to that
of Lord Thurlow, the distinction between waste and trespass was
thus acknowledged.^ Lord Thurlow himself acted upon the
same principle : saying, that the person to be enjoined was a mere
stranger, and he ought to be turned out of possession imme-
diately.^ In Flamany's case,^ a landlord of two adjoining
closes let one of them to a tenant who took coal out of one close,
and also out of the other which was not demised to him ; and it
was held, at first, that the taking the coal out of the former as
waste, would be restrained, but as to the close which was not
demised to him, it was a mere trespass, and the Court could not
interfere ; but Lord Thurlow afterwards changed his opinion, on
the ground that irreparable mischief would follow his refusal ;
holding, in effect, that if the defendant was taking the substance
of the inheritance, the liberty of bringing an action was not the
only remedy to which in equity he was entitled.

The same prineiple has been acted on, and applied, in various
other cases ;V *'Q'i the grounds on which the Court acts in
cases of this nature, appear to be as follows : — Where the defendant
is in possession, and the plaintiff, claiming possession, seeks to re-
strain him from committing acts of trespass or waste, the Court will
m»t interfere,^ unless the acts are such flagrant acts of spoliation as to
justify it in departing from the general principle f where the plaintift
is in possession, and the person committing the acts complainedof isan
utter stranger, not claiming under the colour of right, then the ten-
dency of the Court is not to grant an injunction, unless there are
special circumstances, but to leave the plaintiff to his remedy at law :
though, where the acts tend to the destruction of the estate, the
Court will grant it.'^ But where the person in possession seeks to re-

1 Thomas t. Oakley, 18 Yes. 186.

2 ^lortiiiier v CoUrell, 2 Cox, 205

3 Cited or referred to in 6 Yes. 147; 7 Yes. 308 ; 16 Yes. 138 ; 18 Yes. 186.

4 See judgment ot Y. 0. Kindersley in Lowndes v. Bcttle, 10 Jut. N. S 220 : 12 W. R. 399. A» to

an inspection in such ca,sea, see Whaley v. BranckeVf 12 W. R. 570, 695, Y. C. K.
.■> Hamilton v. Worse/old, cited 10 Yes. 2U0, n. (c) ; PMsworth v. Uopton, 6 Yes. 51 ; Crock/ord v
Alexander, 15 Yes. 138 ; Jones v. Jonen, 3 Mtr. 161 ; Haigh v. Jaggar, 2 Coll. 231 ; Davenport
V. Davenport, 7 Har«, 217.

6 Earl Talbot v. Hope Scott, i K & J. 96: 4 Jiir. N. S. 1172; Nealev. Crippt, 4 K. & J. 472.

7 Moag v. Mogg, 2 Diclt. 670 ; Mortimer v. Cottrell, 2 Cox, 205 ; Mitchell y. Dore, « Yes. 147 ; Earl

Cowper V. Baker, 17 Yes. 128 ; Courtlutpe v. Mapplesdtn, 10 Y«8. 290 : Beat v. Drake, 11 Hare,
309.

i

1

165C

GENERALLY.

Qc,

strain one who clainiH by adverse title, tlieu the tendency will be to
*(rant tlie injunction : at least where the acts alone either do orniigh
tend to the destruction of the estate.'

The plaintiff contracted with two of the defendants, for the
manufacture by them, of five-thtnisand saw lof^s, to be delivered at
the mouth of the river Trent, for whieii he was to pay partly by in-
stahnents, during the progress of the work, and the residue when the
logs should be (delivered at the place designated; and at the same
time, or immediately afterwards, it was verbally arranged that thi^
logs, as thev were manufactured, should be marked with the
plaintiflTs initials, and should be delivered to him as a security for
his advances, without prejudice to the agreement for their being con-
veyed to the mouth of the river. The stipulated advances were duly
made, and the logs, as manufactured, were marked with the
plaintiff's initials, but not otherwise delivered to him. Held, that
the manufacturers could not afterwards dispose of these logs, to the
prejudice of the plaintiff; and having attempted so to do, by scllini^'
and delivering them to a third person for value, but who had notice
of the plaintiff's claim, an injunction was granted to prevent their re-
moval by such person.- In a suit by the original owner of land and
his vendee, (to whom no conveyance had been made) the Court up-
held an injunction restraining an occupant of the land, and a person
to wi.om such occupant Jiad contracted to sell the timber on tlie lot^
from cutting down the timber, such occupant having gone into
possession vmder the owner ; though it did not appear that sucb
timber was of any peculiar value to the plaintiff, and though tho
aflBdavits were contradictory, as to occupant having had authority
from the owner to sell the timber.^ An ex parte injunction had been
granted to restrain the defendants until further order from interferini;
with certain saw^ logs in the Salmon river, and which the plaintiff
claimed as his, the defendant having notwithstanding ol)tained
possession of the logs; a motion to extend the injunction so that, in
effect the plaintiff might recover possession of the logs from the
defendants was retained until after issues should be tried as to tho

8 Anon.^ cited in Mogg v. Mogg, '2 Dick. «70 ; 7 Robinton v. Lord Byron. 1 Bro. C. C. 6SS ; Greji v
Dxtke of yorthumberland, 13 Ves. 236; Kinder v. Jnneg, 17 Ves. lid; Thoinat v. Oakley, U
Yes. 184 ; Lowndet v. Settle, 10 Jur. N. S. il2fi ; contra, Smith v. Collyer, 8 Ves. 89.

2 Fuller V. Richmond, 2 Grant, 24.

3 Laurencf. v. Judge, 2 Grant, .301.

IN.rn NOTIONS AND RESTRAININO ORDERS.

1657

be to
migh

or the
tYcd at
' by in-
bun the
e sanu»
hat tht^
tb tb(>
rity for
ing eon-
ere duly
ith the
e.ld, that

rs, to tho

»y sellhig
id iiotici'
, their re-
land aiirl
lourt up-
a pt-rson
|n the lot,
me into
lat sucb
•ugh tho
,uthority
jha<l been
Iterfering
plaintiff
|oV)tained
that, in
from tho
IS to tbc

, 688 ; Grea \
[v. Oakley, \»

plaintiti''.s |)ropcrty iu tby logs, this being disputed by the
defendants.''

" Saw logs cannot be intended prima facie, to be of " peculiar
value " without any evidence that they are so. But fchey are more
likely to be <»f peculiar value than most otlier descriptions of chattels,
and specific relief may l)e given with resjtect to them in more
instances than almost any other sort ol chatlel projujrty. The relief
however, must l>e ap])lie(l for j^romptly.'''

A purchaser having entered into possession under his contract, and
failing to perform his agreement, and to meet his payments after the
time appointed for that purpose had arrived, was restrained from
committing waste, or renjoving timber already cut down upon the
premises iu question.^ No injunctions will be granted between
tenants in common, except iiv cases of actual destruction. Samhln,
but where a tenant in common of one moiety was trustee of the other
under a will, and was felling timber for his own benefit, in breach
of his trust, he was enjoined from doing so, it being considered that
his right of ownership in his own moiety were to be exercised in
subordinati(m to his duty as trustee of the other moiety.* Where a
strip of land was vested in the ])laintitf, (according to the report ol
commissioners appointed to run a line between two townships^, but
the defendant claimed the property, and had applied to the Court of
Queen's Bench to quash the report, pursuant to the statute appointing
the commissioners, pending the application the defendant commenced
10 fell timber, alleged to be of a valuable description, growing on the
strip. The Court granted an injunction to restrain such felling,
until a decision of the motion pending before the Court of Queen's
Bench." The Court will restrain the attaching creditors of an
absconding defendant from selling timber improperly cut upon land
mortgaged by the defendant to the plaintitf.*^ The injunction was
granted in this case, on tlu- principle that the timber in question
formed part of the security, antl was specitically liable to the
satisfaction of the plaintiff's claim ; and that the attaching creditoix

1 f-'arewell V. n'allbridtje. 2 Gnnt,3S'2.

2 Flint V. Corby, 4 Grant, 45.

3 Ferrier v. Kerr, 2 Grant, 668.

♦ CkriKtie v. Saunders, 2 Grant, 670 ; h<it ><ee DougaU v Foster, pott,p. 166S.

5 Christie v. Long, 3 Grant, 630.

fl Thnmpion r. Crocker, 3 Qrant, 6&3.

::^

^.

i-t,-.

1698

IIRNIRALLT.

a;

<a

Ui

.3:

Mtood in no better situation than the defendant Crocker himself,
who could not have been permitted by sucli an unautboriHod act to
convert the plaintiff's specific lien into a mere personal remedy.
One tenant in common will be restrained at the suit of a co-tenant
from digging e rth for bricks on the joint property. — Esten, V. (\,
dissenting. '

On the agreement for sale of a steamboat, the vendor delivered
possession to the vendee, and executed a covenant l)inding himself
to transfer the vessel with her machinery and furniture to the
purchaser absolutely, upon payment of the balance of purchase
money by certain instahnents. And if default were made in pay-
ment of any portion thereof, it was provided that the vendor should
be at liberty to resiune possession of tl)e vessel, with her machinery
and furniture. The Court granted g,n injunction, restraining the
purchaser from ^emo^'ing the machinery from the vessel, so long as
any part of the purchase money remained unpaid, "^

Although a mortgagor in possession will not be restrained from
cutting timber for fuel, fencing and repairs upon the mortgaged pre-
mises, he will be restrained from felling trees for other purposes, if
it does not clearly appear that the property, notwithstanding the
removal of the timber, will remain of sufficient cash value to satisfy
the mortgage debt.^

Although the general rule is, that the mere fact of a tenant in
common holding possession of the entire estate, will not render him
liable to a co-tenant, who might himself enter and enjoy the pos-
session with the other, and the Court will not, in such a case, inter-
fere with the dealing of such co-tenant in regard to the prop^rt}' ;
still, where the co-tenant in possession was the mother of the other
co-tenants, all of whom were infants at the time of her second mar-
riage, the Court, at the instance of one of the children who had
attained majority, restrained the husband and wife from selling or
disposing of the crops of the current year, or the proceeds thereof
unless they undertook to bring into Court one-third of such pro-
ceeds ; but refused to interfere with the possession of the mother

1 Dougall v. Foster, 4 Grant, 319.

3 Laughton v. Tfiompson. 7 Grant, 30.

8 Jiuu y Millt, 7 Grant, 146.

f

INJUNOTIOXS AND RESTR/ilNINO ORDERS.

1659

and hoi' liusband in respect of pi*eviouH years ; although as to such
previous years the inotlier might have been accountable to her in-
fant children as trustee for them.* Whcic n fnther in a special con-
tract applies the funds derived from such contract to other contracts
not belonging to such special contract, an injunction will begi'anted
against him until the partnership be wound up, although such
injunction may not have been prayed for in the original bill.'' After
a decree of foreclosure, if the mortgagor commits waste, the Court
will enjoin him, tliough an injunction may not have been prayed for
in the bill.=*

Where a mortgagor in possessi-^tn was felling timber on the mort-
gaged premises, the Court, at the instance of a judgment creditor
of the mortgagor with an execution against lands in the hands of
the sheriff, granted an injunction to restrain future cutting by the
nu)rtgagor, his servants, agents and workmen, it being shown that
the property was a scanty security for the claims of the mortgagees
and the amount due to the execution creditor.*

The Court will likewise interfere by injunction, where the parties
committing the waste, with nothing but temporary and limited
interests in the subject-matter, are maliciously and wantonly
abusing their legal rights to the injury of those in remainder.
This is commonly called equitable waste, which may be defined to
be, the commission of such acts as at Law would not be esteemed,
under the circumstances of the case, to be waste, but which are so
esteemed in the view of a Court of Equity from their manifest
injury to the inheritance, though not inconsistent with the legal
rights of the party committing them.'* Thus, for example, it was
held, in Lewis Bowie's case,* that if there was a tenant for life,
without impeachment of waste, he had as great a power to do
waste, and to convert it at his own pleasure, as a tenant in fee or
a tenant in tail had : so that, if any trees were severed from the
inheritance, either by the act of the party or by the aot of law., and
became chattels, the whole property in them was in the tenant for
life, by force of the clause. The necessary consequence of this

1 Bates V. Martin, 12 Grant, 490.

3 Cawthra v. McQuire, 5 U. C. L. J. 142.

C Ah to equitable wa.sto, see anU.

2 Thibodo v. Seobell, 6 U. C. L. J. H7.
4 Wason V. Carpenter, 13 Onnt, 829.
« 11 Rep. 80:

1660

GENERALLY.

Q

O ..IT-

ct.

cloctri)io was, tJiat a tenant for lift; witliout iniijeachment of waste,
could nut in any case be restrained, in Equity, from cutting timber
upon the estate : for that would have been to detarmine that he
should not enjoy the property vhich the law gave him.^ It was,
however, soon found, that this extensive power might be wantonly
and capriciously abused, to tlie prejudice of tht, inheritance ; and,
accordingly, where a tenant for life, unimpeachable of waste, was
making an unconscientious use oi that power, the Court of Chan-
cery assumed the jurisdiction of restraining and modelling it.
Thus, it has interfered by injunction, where the tenant for life was
pulling down a castle ;- or the family mansion, or farm-houses.^
It will also interfere,, where he is cutting down timber of too young
growth ;^ or where he is cutting down trees which were planted
or growing, or designedly left, for ornament or shelter." This
principle has even been extended to plantations, vistas, avenues,
andjrides;^ and to trees which are either planted to shut out an
object,^ or merely for the benefit of a view.^ In some of these
cases, the kind of waste has been called, by the Judges, extrava-
gant, humoursome waste : in others voluntary, malicious, intended
waste : in others again, wanton and wilful waste. In all of them,
in short, it was the improper and abusive exercise of a legal power,
to the detriment of those in remainder, which the Court interfered
to restrain ; it will not interfere in any case of permissive waste."

Tenants in tail after the possibility of issue extinct, have the
same powers, and are subject to tlie same restrictions, as tenants
for life without impeachment of waste ; and it makes no difference
that they are unimpeachable of waste, not by the provision of tlu'
grantor, but as a legal incident to their estate.'"

1 Aiton T. A stun, I Vcs. S. 204, 20(5.

2 Vane v. Lord liemard, 2 Vern. 7^8 ; S. C. )win. Lord liernard'f Case, I'rcc. in Ch. 464.
.'< Alton y. Aston, ubi sup. ; Smyth v. Carter, 18 Beav. 7S.

4 Obrien v. OLrien, Ainb. 107 ; Chuiiibcriijnc v. Duinmcr, 1 Bro. C. C. 166 ; and see Order in S. (.'.

Stton 890 ; Strath more v. Bowes, 2 Hro, C. C. 81 : Turner v. Wriyht, .Iihns. 740: 6 Jur. N. i*.

647 ; 2 De G. V. & J. 2;U : 6 Jur. N. S 80t».
11 Pnckingf(:n'sCase,'i MM. ilb; Williams v. .MoSamara, s Vcs 70; .'^tanKjkldv. ffaberghaui, 10

Ves. 273 ; Wellesley v. t^'ellfsley, 6 Sim. 497 ; Morris v. Morris, 15 bini. r>05 ; Kehewich v. Mar

ke.r, :5 McN. .V U. 311 .3-..^; Mar<:-'.ry. Marker, !t Ilaru, I ; Campbell v. Allgood, 17 lieav. 623 ;

VineeAit v. Spicer, 22 Huav .380 : 2 N. S. 654 ; Micklethivait v. .Hicklethwait, 1 De G. & J. 50( ;

3 Jur. N. S. 1279 ; lialtiireU v. Phillipps, ! Jur. N. S. 607 : 6 W. R. 408, V. C. W.; Turner v.

Wrifht, ubi sup.; Ford v. Tyntc, 10 Jur. N. S. 429, l,.J.I. For forms of order, »oe Seton, S'.tO-

894.'^

6 fjord Tamworth v Lord Ferrers, 6 Ves. 419.

7 Day v. Merry, 16 Ves. 375.

H Marquis of Downthire v. Lady Sandys, 6 Vuk. KiT.
I) Powys V. niagrave, 4 De G. M. & G 448, 4.08 ; Kay, 495 : 18 Jur. 462.

10 Abraham r. £u6&, FVeem. 6,3; Attorney-General v. Du,k» o/ Marlboroujh, 3 .Marld, 408, oSW ,
Williamk v. Williams, 16 Ves. 410, 423 ; and «ee 2 Hwaust. 146, n.

IIJ

oi

[NJUNCTJONS ANi> KKSTRAINING ORDERS.

1661

It is to be remarked, tliat the object of the Court's interference
ii) granting an injunction to stay this kind of waste is not by way
of satisfying a damage, but in order to prevent a wrong ; and,
therefore, a person cannot come into Equity merely for an account,
unless where the waste is of that uaturt that the plaintiif has no
remedy at law. The account depends entirely upon the injunction :
it is incidental to, and consequential U}Km it ; and, if a person is
entitled to the one, he is entitled to the other also, cm the principle
of preventing a multiplicity of suits : for, otherwise, he would be
obliged to bring his action at Law as well as his bill in Equity :
his action by way of satisfaction : his bill by way of prevention.^
After the determination of the tenant's estate, a bill will lie for an
account of equitable waste, although no injunction is prayed by the
l)ill f and if the person who has committed tlie waste is dead, he
must, through his representatives, refund in respect of the wrong
he has done, and not retain the produce of his injury : which is
recoverable in no other Court. " It would," says Lord Cowper,'
" be a reproach to Equity to say, when a man has taken my ore or
timber, and disposed of it in his lifetime, and dies, that, in this
case, I must be without remedy."

The Court will in -fere, by injunction, to suppress the com-
mission or continuance of a nuisance.^ . Nuisances are of two kinds :
tliose which are injurious to the public at large, and those which
are injurious to the rights and interests of private persons.

With regard to nuisances, the jurisdiction seems to be of very
ancient date, and to he founded on the irreparable damage to
individuals, or the great public injury which is likely to ensue.
The jurisdiction is applicable, not only to nuisances strictly so
called, hut also to piirpresturcn. By purpresture is meant, in its
present acceptation, an encroachment ujion the Crown, either upon
part of the demesne lands, or ui)on the high roads, rivers, forts,
or streets ; and the difference between purprcsfures and nuisances

1 Jp^ns College v. Jilooia, 'J Atk. 263 ; Amb. 54 ; Duhe of LeeiU v. Lord Amherst, 14 Sim. 3.57, 304 :

•iO Ueav. 239 ; 2 Phill. 117, 122 ; Uuihington v. Boldi.ro, 15 Uuav. 1.

2 Garth v. Cotton, 1 Dick. 183 ; Smith v. Coi^ke, 3 Atk. 381 ; f'vlteneij v. Warren, 6 Ves. H\i ; Orier-

Hon V. Eyre, 9 Vcs. 346.

3 PUhop of 'Wind: ■•star y. Kiviiht, 1 V. Wins, 406, 407 ; and sec llumhly v. Trott, Cowp, 371, 376:

Marquis of Lantdownr v. .ilari:hionr>ifi Dowager of Lamdoivne, 1 ^'atld. 116, 136.

4 As to nuisanoRs, see Add. Wrongs, 74, 83S ; Broom Com. Law, 1020 ; Wnodfall, 733, 1088 ; wui fur

» collection of cHsei in Equity, see Scton, dO8-0OO ; and vee tb. 804.

1662

GENERALLY.

Ui
Q

c3

consists in tliis : that where the jm privatum of the Crown is
invaded, it is a purpresture ; but where the jms puhlicum is violated,
it is a nuisance.^

In cases of purpresture, tlie remedy is eitlier by information for
an intrusion at the Common Law, or by information in Equity at
the suit of the Attorney-General : the consequence of a judgment at
Common Law being the abatement of the erection or grievance
complained of, whether it is or is not a nuisance ; whilst, upon an
information in equity, where the trespass does not produce any
public injury, the Court may direct an inquiry whether it is mon*
beneficial to the Crown to abate the purpresture, or to sulT-r lue
erection to remain, and be assessed as a part of the legal revenue.^

There are many cases in which the Court will interfere by
injuction to maintain things i7i statu qtio. pendente lite, not only
where the title of the plaintiff to relief is unquestioned, but even
where that title is doubtuil ; provided the Court sees that there is ;
substantial question to be settled. But the Court does not inter-
fere by special injuction against a party in possession claiming
adversely to the plaintiff: nor, on the other hand, will the Court, as a
general rule, so interfere in favour of a party in possession, to
restrain a casual trespass.^

In cases of public nuisance, properly so called, an indictment
lies to abate them, and to prosecute the offender ; but an informa-
tion will also lie in equity to stop the mischief, ai:d to restrain the
continuance of it/ It is necessary, however, that the nuisance
should be actual and existing, and not merely prospective, how-
ever strongly the apprehension of injury may be supported by
scientific evidence.^

As a general rule, a suit of this kind should be instituted by the
Attorney-General, or, at all events, he should be a party to it, as
representing the public ; but persons who conceive themselves

1 2nd lust. ;!8, !272 ; Hartj. Law Tracts, 84, 87.

2 Attorney-General v. Jiichards, 2 Anst. 603, 610 ; Atfcnieii-Qeneral v. Johnson, 2 J Wil. s; ; Uei

^. Earl Grosvenor, 2 Starkie's N. P. 511.

3 The Attorney General v. McLavyhlin, 1 Grant, 34.

4 Mayor of London v Bolt, ^ Ves. 120; Attorney-General v. Nichol, 16 Ves. 338 ; Attorney-Genera

V. Forbes, 2 M & C. 123, 12!» ; Turner v. Blamire, 1 Drew. 402.
fi Attomey-General v. Mayor, ttc, q/ KingMton-on-Tha7net, 11 Jur. N. S. 696 ; 13 W. R. 888, V.C.W

INJUNCTIONS AND RESTRAINIXO ORDERS.

1663

»7 ; /?«/
■Genera

, v.c.w

aggrieved may also come forward, and ask tho assistance of the
Court to prevent a public nuisance from which they have indi-
vidually sustaineu damage ;^ and in the event of an individual
suffering peculiar and special damage by a public nuisance, a suit
may be sustained by him, without making the Attorney-General a
party.-

Where the Town Council of one of the towns mentioned in the
schedule to the Provincial Statute, 12 Vic, ch. 81, were about pro-
ceeding to open a street without having first obtained the per-
mission required by the statute of certain parties owning houses on
the land over which the intended street would pass, the Court
granted an injunction to restrain the opening of such intended
street, upon a bill filed by a party whose land lay on the line of the
intended street, although no house stood upon the plaintiff's land,
and his premises were not within the exception contained in the
proviso to the GOth clause of the Act.''

With regard to private nuisances, the Court will interfere by way
of injunction w^^ere the mischief is irreparable. The general
ground of its interference is that sort of material injury to property
or health requiring the application to prevent, as well as remedy,
an evil, for which damages more or less would be given in an action
at Law.* It is not every case that would furnish a right of action
against a party which would justify the interposition of the Court
of Equity to redress the mischief or remove the annoyance. But
there must be such an injury, oi the apprehension of it, as from its
nature is not susceptible of being adequately compensated for by
damages ; or such as, from its long continuance, occasions a con-
stantly recurring grievance which cannot be otherwise prevented
but by an injunction." Thus, it has been said, that every common

1 liLiii'isw Ba'riT, Ami). Ijs; Aftorn'H-U.ueral v. Cleaver, 18 Ves. 2U ; Sjjenc.i v. LonUon it'

IJiniiinjImn Hallway Ciinipami, S Sim. VJi ; Sainpson v. Smith, ih. S72 ; Attn r iw tj-Qcneriil v.
h'orbeH, 2 M. Jt V.. ViA; Lee v. Milmr, 2 V. & C. lix. (lU ; Elmhirst •.. iipunoer, J AlcX. .v (i. 45 ;
Mayor, die., »/ LiMrtxiul v. C/iarl'y tt'itti'rwork-.i Company, '2 Ud G. SI. ^^ (i. Sat . Attorney-
General V. Corporation of Birininykain, 4 K. & J. 62i ; Attoniey-dfneral v. I'nited Kmjdoin
KU'ctric Teif graph. Coinpaivi, 30 IJeav. 287 : 8 Jur. N. ,s. 583.

2 Soltau V. Ih'. lleld, 2 ditii. N. S. 133, 142 : l(j Jur. 32(i ; Wood v. SutcUffe, ih. 163 : 1(5 Jur. 75.

3 H'ilnon V. Town Council o/ Port Hope, 2 Grant, 370.

4 .Ittiirnji/Uent-ral v. .Mchol, Hi Vus, 338, 343; H'M.e. v. Cohen, 1 Drew. 312.

;"i Fishinowjerti' Coinpani/ v. East Iniia Company, 1 Dick. 163; Attornny-Gewral v. Sichol, 10 Ves.
338, 342 ; Hainan v. Taylor, 10 Uuav. 7J ; 2 Thill. 20«-, Eltnhirxt v :ipenctr, 2 MoN. * O. 45 ;
Attorney-General V. Shefidd Wa« Conxanierti Company, 'A Do (i. .\l. I'c G. ;i04 : 17 Jiir. 677:
tiultau V. lie Held, 2 Sim. N. S, 143, Ki.lur. 320 ; and Wood v. Sutciiffe, ib. 103, 1(1 Jur. 76; Im-
perial Gas Company v. Hroadbent, 7 II. 1-. Ca. (UW : ■> Jur. N. S. 13U> ; HI. C. nom. BromUmnt v.
Imperial Gat Com;K.»v,|7 Ue 0. M. & G. 43C : 3 Jiir N. S. iWl

r

r^-

1064

GENERA I-T,T.

C2

•Q

trespasr.. or a mere diminution of tlio viiluc of tlio premises, is not
a giound for jin injunction : but, if the trespass continue so long
as to become a nuisance, or if the diminution of the value of tlie
premises amount to irreparable mischief, then the Court will
undoubtedly interfere.^ The most common cases in which the
Court exercises this jurisdiction occur, where it is called upon to
restrain a party from building so near tlie plaintiff's house as to
tlarken his ancient lights.- Injunctions have also been granted to
stop the pollution of streams,-*^ and prevent the pulling down of banks
of rivers, whereby the plaintiff was ixposed to inundations from
which the banks had protected him ;* and to restrain the use of a
ritle range until it had been rendered free from danger to the plain-
tiff, who was the occupier of adjacent lands. ^

In cases of this description, where a party Kues in respect of an
alleged injury to his legal rights, it seems that an interlocutory
injunction is granted solely upon the principle of preserving pro-
perty until a decision on the legal rights can be had. In order to
entitle the plaintiff to such an interference, for the purpose of pro-
tecting hia property, pending the decision of his legal title, he must
show at least a strong prima facie case in support of the title which
he asserts, and also that he has not been guilty of any improper
delay in applying for the interposition of the Court. The Court
has then to C(msider the degree of inconvenience and expense to

:t

1 i'lnUaon r. White, a Atk. 21 : White v. Cohen, 1 Drew 312 ; Johnstone v. Ilnll -1 K. i I 411 : i .Jiir.

N. S. 780 ; Umlunon v. Dxtce, 2 Jur. N. S. 1014, V. C. S. ; Klwill v. Crouther. 10 W. K. tiJfi, M, K. ;
Hepburn v. Ionian, 2 H. vie M .14;') : 11 Jur. N. S. 1.S2, coinpioniised on appeal. 2 II. it M. Sr.S : 11
Jur. N. S. 254 ; anil -sec 11 .Jur. N. S. 636.

2 Under v. Uenthnm. 1 Ves. S. 543 ; Back v. Stacy, 2 K'l^.s. 1 il ; Kast tnilia Compani/ v. ['invent, i

Atk. 83 ; Turner v. Spouner, 1 Dr. & Sm. 467 : 7 Jur. \. S. 1008 : Davies v. Marshall, 1 Dr. & Sm.
.''if)7 ; 7 Jur. N. S. 720 ; Cooper v. Uubbuck, .HO Bcii\ . ItiO : 7 Jur. N S. 4r>7 ; and .see Isenhenj \.
Bant India House Estate Company, 10 Jur. N. S. 221. L. C. ; Jackson v. Duke, nf SewcastU', ib.
(188, 810, L. C. ; Loiv v. Intws, ib ■ 1037, L. C. ; Wcatherly v. lions, 1 H. & M.'349; CotchiiKi v.
Bassett, 32 Beav. 101 ; 9 Jur. N. S. SQO : Badelifv. Duke of Portland. 3 (Jiff. 702 ; 8 Jur. N. h,
1007 : Martin v. Ueadon, 11 Jur. N. S. C, V. C. K. ; CurriJ^rs Comiianii v Corheti, 2 Dr. .t Sm.
355 ; 11 Jur. N. S. 719: 13 W. K. 10o(i, L.J.J. ; Stoken v Citn Ojliees Co jtnni/, 11 Jm-. \. ts. 5tJU:
13 W. K. 537, V. C. W. ; Laurence v. Austin, 11 Jur. N. S. 57« : 13 W. B. 9*1, M. I!. ; Clarke v.
Clark, 11 Jur. N. S. 914 : 14 W. K. 116, L. C.

3 Elmhirst v. Spencer, 1 McN. <St G. 45 ; Oldaker v. Hunt, « Do O. M. & O. 37G ; J Jur. >f. ,S. Kb :

19 Hoav. 485 . Attonwy-Gcneral v. Luton Board uf Health, 2 Jur. N. S. 180, V. (". W. ; Aftorncy-
General v. Corporation of Birniiwihain, 4 K. it J. 528 : Manchester il- Sheflield liailvmi Com
panyv Worksop Board of Health. -a Hcav. 198 : 3 Jur. X. S, .^04; tloUUviid v. Tuabriiiir
Wells Improvement Commissioners, 14 W R. 92, M. U. ; Spokes v. Hnnhviy Board of Health.
ib. 128, V. (,'. W. Fur forms of order.-;, see S^'ton, 8'.)i ; Limpcood v. Stoiemirket l'a)ternMkin<i
Company, 14 W. R. 78, V. C. W.

4 Hobinnon v. Lord Byron, 1 IJro. (;. 0 .'iss ; Lane v. S'-inlijate. 10 Ve^ 192, 194 ; Chalk v. Wiintt.

3 .Mor. f(.HS ; Seton, 991 ; .and .sc", as to snioUo fnmi ttw't^.' llerny v Smith, 1 K. iS: .1. 3S9.
.T Banni,^t>r w Biyift, 11 ,hn-. N. S. •.;7() : 1.'! Jur \V. 11 .379, .M. K. A.^ io ancient lij^hts, water
courses, and oUier easements, see .idd. Wrony.s, (12-110: liroom (j'oni. Law. 753-789; Dixon .Il
75; Qale, passim ; t. C. CoiiT. iai>-lS9: Seton. .sit4 898, 001. 902, 924 . ,s'(t(/(/, Stat. 161-183- Wool
/o//, 676-031.

INJUNCTIONS AND RESTRAININT! ORDERS.

1665

]i)r. &S111.

cantic. ib.
jtchitiii V,
lur. n'. S.
|)r. .>t Sni.

S. 5(iU ;
Cliirke \.

h. S. 785 :

ll 'tiinn'ij-

tmii Com

tuiihriiiiir

lleallli.

\. WlKl't.
Wlltl'l-

luvm, .M
k : D'oii (

wliicli tn-uuting the injunction would subject the defendant, in the
event of hia being in the right ; and, on the other hand, the nature
of the injury which the plaintiff may Kustain, in the event of his
complaint turning out to be well founded, and the Court refusing
to interfere, pending the decision of the legal qncstion : and, thus
balancing the question between the two parties, and the extent of
inconvenience likely to be incurred on the (jne side and on the other,
the Court must exercise its discretion whether the injunction should
be granted or withheld. Should the Court, in the exercise of this
discretion, determine upon grantii^g the injunction, it will, if the
legal title is disputed, put the parties in the position of speedily
obtaining a decision upon such title ;' { nd for that purpose, either
a trial of the legal title will be direct^ d before the Court itself, or
an issue will be directed to a Court of Common Law>' If there is
no danger of irreparable mischief in the meantime, the motion for
an injunction will be directed to stand over, till after the trial of
the legal title.-'

A person seeking an injunction to restrain an injury to his legal
I'ights must apply to the Court without delay : for, if the injury
liaB been completed at the time of tb'. tiling of the bil), the Court
has (except, perhi^js, in the case of fraud.) no jurisdiction; and the
parties will be left to their remedy at law.*

It is a plain couunon law right to have the free use of the air in
its natural uiipolluted state, and an acquiescence in its being pollu-
ted for any period short of twenty years will not bar that right; —
to bar the right within a shorter period, there must be such encour-
a;i,eiuent or other act by the party aftervv£,rds (jomplaining us to

1 Hiltuii V. Ear( nf Granville. ('. & P. 28H, •2!)2 ; 4 Bcav. 130; llarmmi \. Junes-, V. A R299; Saiix-

ter V. Foxter, ih. :i()i ; Iii</hi/ v. Grnit Western Kniheaii Ci))iii>aiiii. 2 Phill. 44; Sjniltiawoodi- v.
Chirke ih. 154: 10. P. Cipi'i'. t. Oott. 254; 10 Jiir. li)«; lUtiu'x v. Tttylue, -J. I'liill. 209: 10
U'.'av. 7r> ; SteiH'ns v. Kedtiitj. ih. X\^ : liiiljinii/ v. A'"^ rt.i, 4 llaru, liKi ; liuxton v. Jamet, It
l>e CJ. X S. 80 : 1(5 .Iiir. 15 ; liUdiiHiin >, Kitd fiiiris, 1 De (5. M. \ (J. <i : 15 Jvir. 102-'; Standi^li
V. Cnrporntiiin 0/ Liverfiuul, 1 Drow. 1 ; Attitnii'ij-Geu'iul v. F.a.-<tlnl\c. 11 flttre,205: 17 Jiir. 801;
liankurt v. Haughlnii, 27 Buav. iib: 5 .Iiir. N. S. 2S2 ; Mai/or nJ'Canlif v. Cardiff Waterworkx
Cdiiiixdiij, i I»o O. iS: .1. 590 : 5 liir. N. S. '.('>;{, !V.i ; H'r/rJ ■;?, .cev, n.l' Oneer llarhitiir v. Limdnn,
Chatham ii- Davrr Railway Comtiniiy, 7 Jur N. ^^. i'i:i : 0 \V. R. 523, 1, .1.1. ; Ead.en v. Firth, 1
H. & M. 5r;j.

2 Kadenv. Firth, ubi sup.; Freeman v Tottenham <f Ham(>.\ti'ad tin i lira u Company, 11 Jur. N.S.

'J54 ; la \V. H. 1004, L.J.I.

H Eadenv. Firth ah! .vrp. . and Freeman v. Tottenham & Hampttead Jlailivay Con.-, tiny, 11 Jur.
,N'. S 254. I'"iir form nf such order, where the nintinn was. h. consent, turned into n. motiuii for
doeree, see Setini, sfiO, No. 7.

4 Laurence v. Auitt.in. 11 Jur. N S. .■)70 : l;! \V. R. <j8l, M.K. ; but sci' llindtey v. Eiif -t/, 11 Jur. N.
S. 878: 14 '/. R. 25, V.(!.W., wlicre the phiintiff, liavin;; eonie in time a.s M) part 01 Ins ciise, an
iiKjuiry w.s directed Jis to the dainatro.'f oi'ojvsioned by so niucli of tlie injury as wa'- .'ompleted
|irfvious!y to tlic filiny; of the hill ; and see Deere v. truj-gt, } M. \ (V 51f).

^^'^T^r

1666

OKNERALLY.

Q
Ui

§21

^.

iiiak(} it a fraud in him to object. A party had carried on the busi-
ness of a soap and candle manufacturer for several years without
any steps being taken to restrain him, after which a bill was filed
for that pui*pose, on the ground of nuisance and inconvenience to
the party complaining, the Court, under the circumstances, refused
a motion for an interlocutory injunction, but reserved the question
of costs to the hearing. Since the General Orders of 1853, it is not
necessary for a party to establish his legal right Vjy an action at law
before coming to this Court. ^ A railway company being about to
construct their line of road long a public street, a bill was filed by
the owner of the propert}^ in front of which the railroad would
pass, to restrain the construction of the road in the manner contem-
plated, on the ground, as alleged, that his property would therehy he
greatly depredated in value from divers causes, some of ivhich
were that the property would he rendered greatly less eligihle from,
the inconvenience and danger occasioned by the rail cars running
Immediately in front thereof, and that the present ti'affic is likely,
through the same cause, to be diverted from that part of the road.
Held, that the injury, as alleged, did not amount to a private nui-
sance, and that, therefore, the party complaining was not entitled to
an injunction ; and, held also, that as the injury complained of was
not irreparable, the Court would not, if otherwise in favor of the
plaintiff, have granted the application.^

The owner <»f two adjoining shops leased one to the plaintiff and
the other to the defendant. The plaintiff's shop window had been
so constructed as to presemt a side view to j)ersons coming down the
street, the object being to attract their attention and to obtain th^ir
custom for the wares displayed in the shop, and the privilege was
sh(3wn to be a very important one. The tenant of the adjoining
.shop having placed a show-case in an open space or doorway of his
shop so as to intercept the view of the ])laintiff's window, was re-
strained by injueietion from continuing the obstruction,-^ Tho
defendant had built a drain from his premises to a lot of which the
plaintiff became le.ssee; being desirous of building on this lot, ho
re(juested the defendant to stt^p up, <>r rt^inow the drain, which the

1 Radi'nliuri't v. Cnnti , i; Giant, VA\).

2 Magee v. London c(- i'm-f Stanley Hailvmy Cimipfinii, •« CJraiit, ITi'.

3 BnitnmeU v. Wharin, 12 Orant, 2S4.

INJUNCTIONS AND RESTRAININ(i ORDERS.

1667

defendant at first refused, and afterwards neglected to do. It
was alleged by the defendant that the cost of diverting the drain
would have been $14 only. Held, that the plaintiff was not obliged
to take the law into his own hands, and divert the drain, and sue
the defendant for the expense. And it appearing that the plain-
tiff's building could not safely be proceeded with until the drain
was stopped up or diverted, an injunction was granted requiring
the same to be done.^ The plaintiff and L. " were tenants in
common of an oil well : they filled an oil tank with oil equal in
quantity to 2,400 barrels, of which 1,600 belonged to the plaintiff,
and 800 to the defendant, and they agreed that the oil w^as not to
be sold under $5 per barrel; they were not partners. L., without
authority, contracted for the sale of all the oil in the tank at
$1.25 per l)arrel. Held, on a bill against the purchaser, that L.
had no right to sell the pli^mtiff's portion of the oil; that the
defendant's removal of it would be wrongful ; but that, as the oil
was a staple commodity which had not anj-^ peculiar value, and as
there was no fiduciary relation between the plaintiff and L., the
plaintiff was not entitled to an injuiiction : and that his only
remedy was an action at law.'

The Court will also interfere, by injunction, to restrain the
infringer I 'lit of a patent, or piracy of a copyright. This inter-*
ference \, originally based upon the principle that the law
did not give a complete remedy to those whose property was
invaded : for, if each infringement of the patent or copyright
were made a distinct cause of action, the remedy would be worse
than the evil. The inventors or authors might be ruined, by the
necessity of perpetual litigation, without ever being able to have
a final establishment of their rights ; and, in addition, the plaintiff
had no means at Law of restraining the future use of his invention,
or the publication of his work, injuriously to his title and
interest.'*

An injunction to restrain the infringement of a jiatent is not
obtainable in Equity as a matter of course. The equitable title

I MucatUay v. lidbcttx, 13 Oraiit, 56&. '2 Maunn v. A'occf.v, IS Grant, .500.

3 Uo(j(j V. Kirhy, 8 Ves. 215, 223; Ilanmr v. flane, 14 Ves. 130; Laxcnmce. v. Smith, Jac. 471;
Universities of Ox/oni anil Camhriddf v. Richardson, 6 Ves. 705, 70C ; Daily v. Taylor, 1 R. &
M. 73 ; Canrpholl v. Sci>tt, 11 Sim. 31 : 4 ,)ur. 479 ; Leivi)! v. I'uUurton, 2 Beav. 6. The Court may
order lui inspection of the alleged infringement, see Singer Manufacturing Company v. WiUitn,
13 W. ;i. bm, V. e. W. ; or an analysis : Patent Type Company v. Waltem, Johns. 727.
Si

MUBI JWJt^

1668

GENERALLY.

~'*ffr:

Hows from the legal title; and it was f( rincrly the practice, on
opening the case, to require the plaintiff to bring an action for the
purpose of establishing his h^gal title ;^ l)ut now, the legal right
must be determined by the Court of Chancery : unless, under the
|>articular circumstances of the case, the Court is satisfied that the
<|uestion can l)e more conveniently tried in a Court of Connnon
Law." It is the duty of the (Jourt to grant an interlocutor}'
injunction, if the validity of the j>ateut, and the fact of the
infringement, are satisfactorily established;' If, however, either
or both of thes« facts are uncertain, it depends on the degree ol
doubt whether the Court will grant the injunction ; and the Court
will, in such case, considei' tlie degree of convenience or inconve-
nience to the parties ; and may either refuse the injunction, refuse
it on the terms of an account being kept,^ or order the motion to
stand over until the plaintiff's legal title is established/'

Similar principles apply to cases of coi>yright.<' At first, the
Court of (yhancery would not give assistance;, unless the com-
plainant had a clear legal right ; but it now lends its aitl when
the legal title is either directly established by decision, or is
apparently established by usage and possession. If, h(jwever, the
legal title is doubtful, the Court may refrain from interfering
before it is ascertained and determined : for the equitable title
flows from the legal title ; and, therefore, where the one is doubt-
ful, the other does not necessarily follow.^ The Court also
frecpiently refuses an injunction, where it acknowledges a right, if

1 Dodxley v. Kinner.ilc.ij, Amb. 403, 400.

2 liayliH v. Watkiim, a Jur. N. S. lloii, L..I.I.; Vouiiif v. Fernu-, 1 De (J. J. A: S. 3.0;{ : 10 Jiir.

N. S. 58.

3 Jiridson v. Mc Alpine, 8 Bcav. 221).

4 For form of undertaking; to keep aectjunts, see Setun, 942.

6 Bridnon v. McAlpinc, 8 Bcav. 2i9 ; Bridson v. lircnecke, 12 Ueav. 1; and see Uoltonv. Bull, 3 Ves.

140 ; llarmer v. I'lanc, 14 Ves. 130 ; Hill v. Thompson, 3 Mer. 622 ; A'«// v. Marshall, 1 M. & C.
373; Bacon V. Jonex, i M. SaC. iS'i ; Collar,' v. Allwon,ib. 487; Sanxtcr v. FoMer, V. ik. V.
302 ; Butlin v. Mnstcrx, 2 Pliill. 200 ; Stevenn v. Keating, ih. 333; liogcru v. Nouill, (J Hare, 326,
339 ; 3 DeG. M. At G. 614 : 17 Jur. 171 ; Caldwell v. Vanvlissemjen. 0 Hare, 415 ; Stuith v. Lon-
don it- South-lVesturn Bailway Company, Kay, 408 ; I'ricc'n Caiulle Company v. Bauwen's Can-
dle Company, 4 K. k .1. 727 ; Tuck v. Hilvcr, Johns. 218 ; Gardner v. Broadbent, 2 Jur. N. !<.
1041, v. C. S.; Clark v. FerguKon, 1 GifF. 184 ; H'hitun v. Jennings, I Dr. & Sm. 110; S. C. nom.
Whittcn V. JenningH, 0 Jur. N. S. 104 ; Baden v. Firth, 1 H. iV M. 573 ; Davenport v Goldljirn,
2 H & M. 28i; Bett« v. ^^cill«ln, 13 \V. 11. 804, V. C. W. ; Affld, ib 1028: 11 Jur. N. S. 67'.), I,.
JJ. For a collection of eases in Equity, an to injunctions relatinj; to patents, with forms nf
orders, see Seton, 009-014.
. ti Low V. Routledge, 10 Jur. N. S 922 : 12 W. K 1069, V. C. K. : 11 Jur. N. S. 939 : 14 W. K. 90, I..
JJ. ; Margetson v. Wright, 2 De G. & S. 420 ; Mac liae v. Holdmvorth, ib. 496 ; Norton v. Nich-
ols, 4 K. & J. 475 ; Boi/ite v. Uouhton, 5 De G. iV: S. 267 : 16 .lur. 372 ; Biixton v. Janicg, ^ De
(J. \, S. 80 : 16 Jur. 15 ; Ollendorff \ Black, 4 De G. & S. 209: 14 Jur. 1080: Cassell v. istiff, 'J
K. & J. 279 ; Jeffreys v. Boosey, 4 H. L. Ca. 815 : 1 Jur. N. S. 615. For a collection of cases ii-
Equity as to injunctions relatiuf,' to cojiyriu'lit, with forms of orders, see Seton, 905-909 ; and set
I'hillips on Copyright in Works of Literature and Art, and in the application of Designs.

7 Ante.

INJUNCTIONS AND RESTRAINING ORDERS.

16C9

s practice, on
action for the
be legal right
s, under the
fied that the
t of Common
interlocutory
fact of the
vvever, either
the degree of
ind the Court
le or inconve-
nction, refuse
the motion to

At first, the
ess the corn-
its aid when
ecision, or is
however, the
n interfering
quitaV)le title
one is doubt-
Court also
gef5 a right, ii

^ S. 3M : 10 Jur.

foUon V. Bidl, 3 Ves.
XMarnhall, 1 M. kV.
]v. Fofxter, O. & 1'.
tA'ouUl, li Hare, :{26,
1415 ; Smith v. Lon-
\y V. Bauim'ii's Can-
\dbent, '2 Jur. N. S.
ISm. 110; S. 0. noni.
\)enport v GoUlbirii,
Jur. X. S. 670, 1..
|:iit.s, with lornis "f

1(30: 14 W. B. 90, I..
le ; Norton v. yich-
Iton V. Jauicg, f l>e
1: Cansell v. Utiff, -
lollection of uauusiii
In, <.)05-909 ; ami stt
Ion of Designs.

the conduct of the party complaining has led to the state of things
which occasions the applications ;^ and an injunction has also
heeu refused, where the matter which was the subject of the
alleged j)iracy formed but a very inconsiderable part of the defen-
dant's work : so that the damage done to the ))Iaintiff might be
calculated in a few hours.'

There must })e separate bills upon each distinct invasion of
a patent or copyright : unless there is a privity between the
parties who have infringed the invention or pirated the
work ^

There must l)e also an affidavit of title, when the injunction is
applied for ea; par/f, or the plaintiff 's legal title is flenied. In the
case of a patent, the party making the application must swear as
to his belief, at the time of making it, that the invention was
newly introduced into the (jountry ;■* for although, when he
obtained his patent, he might, very honestly, have !■. .vorn as to
his belief of such being the fact, yet circumstances may have
siibsecpiently intervened, or information been communicated,
sufficient to convince him that it was not his own invention,
and that he was under a mistake when he made his previous
duclaration to that effect."'

It 'would greatl}' exceed the limits of our present inquiry' to
discuss the general rights of inventors and authors ; or to state the
circumstances under whi(^h an exclusive property, in virtue of these
rights, inay be acipiired or lost; but, in examining those occasions
in which injunctions will be granted, it is to be remembered that
the (Jourt will not interfere when the work is of a clearly irre-
ligious, immoral, libellous, or obscene description. If an action
cannot be maintained, nothing can be clone in a Court of Ecpiity :
which is only ancillary to the law ; and, therefore, it will not give

1 I'Mtfsy. lliittiiii, 19 Vcs. 4(7; S. ('. iioiii. Plattn v. RiUton, (i. Vm)\>. ;io;>; liuiuliU v. Mun-an, Jac.

311 ; Saundcrx v. Stnith, ,3 M. .t 0. 711.
' liaily V. Titifldf, 1 K. ^v Al. 73 ; Whittiiii/lia ,i v. W'onler, 2 Swaiist. 42--^.
■ '• DMii V. />oir/, 2 Vus. J. 430. The plaintiff nnist not, however, act oppressively, and file an uiineoes-

sarv nmuluT nfbills: if he duos. the C'ourt will order them to he consolidated, or make some other

equivalent order : t'nxwcll v. HVh,s«fC, 10 Jnr. .V. S. 1;17 : 12 W. K. 180. I.. «'. ; 2 Dr. i\; Sm. 251) : 9

Jur. N. S. 1189; uiit>\
4 Mayei- v. Spence, 1 J. \. H. S7 : 0 Jur. N. S. t')72 ; Whitton v. ,lennii>gK, 1 Ur. k Sm. 110, 111 : S. 0.

WhitUn V. .h'nniwj<,*\ Jur. N. S. 104.
.' lUllv. Thomp^^nn. 3 .Mer. 622, 024 : Stiirz v. l)e Ui lliu, 5 Kuss. 322, 328.'

i?:

1070

GENERALLY.

^.

reliof, except where the law will give damages.' Not only will the
Court refuse to interfere, when it plainly sees that the work is
obscene or immoral, hut even if there is a doubt as to its evil
tendency, an injunction will l>e refused ;- and it may he laid down.
as an universal rule, that where there is any doubt as to the exclu-
sive legal title of the [tarty claiming an injunction in aid of it, t\w
Court will not exercise the jurisdicticm, without giving an oppor-
tunity of trying such title;*

At times, there is consi<lerable difficulty in determining whether
a work is pirated or not : for instance, it is allowable to make a bona
fide extract, quotation, or abridgment, or a hoaa fide use of coramcn
materials, in the composition of another book :* foi* a man may
fairly adopt part of anotlier's labours in making an (extract or quo-
tati«)n, but he must not do it unfairly, or, as Lord Ellenborough
termed it, animo furandi. So he may abridge, if the invention,
learning, or judgment liestowed in making that abridgment will
really constitute a new work ; but he nnist not do either, in a
colourable manner, to gain an advantage to himself by a fradulent
evasion of the statute.'' So, in the case of a maj) or road-book, the
Court will interfere to ])revent a mere republication of a work
which the labour and skill of another person had supplied to the
world. The pii'acy, on such occasions, is frequently detected by the
identity of the inaccuracies and errors ;" and the question, whether
one author has made a i)iratical use of another's work, does not
necesarily depend upon the quantity of that work which he has
quoted or introduced into his own book."

The Court usually takes u})on itself the task of inspection ; and
compares the work of the original author with the work alleged to
be pirated;^ but an inquiry may be directed whether the books
difter, and in what respect.

1 Lawrence v. Smith, .Jac. 471 ; llime v. Dale 2 Camp. 27, n.

2 Walcol V. Wallfer, 1 Vcs. 1 • SotUliei/ v. Sherwood, 2 Mer. 43r>, 4;JS ; Burnett \. Chetwood, ib. 441, n.

3 nramwell v. llalcomb, ;J M, & 0. 737 ; Spoltisiroode v. Clarke, 2 Phill. 154 ; 1 C. P. Coop. t. Cutt.

2.54: lO.Jur. 104:}.

4 Short ahridtjineiits arc allowed : Rrll v. Walker, 1 Br<i. C. C. 451 ; Qylen v. Wilcox, 2 Atk. 143.

.T llutterworth v. liobimnn, .') Vcs. 70!); I.onqiiianw iruit'7itf.ste/-, lOVe.s. tiii ; Mattheu-xonv. Stoekdalc,
12 Ves. 270 ; Whittinghavi \. Woolir, 2'S\vanst, 428 ; Wilkim v. Aikia, 17 Vcs. 422 ! Sainidem v.
Smith, 3 M, A C. 711 : Lci'i^ v. h'ulla rton, 2 litav. 6 ; Spottimroode v, Clarke, ubi kiip. ; Jarrold
V. llouhton, 3 K. & J. 708: 3 .hir. lor>l ; llottcn v. Arthur, 1 II. & M. 003.

C Cari/ V. Fadden, 5 Ves. 24. and .see Loii(iiiiaii. v. WinclieKter, ubi xup.

7 firatnivell v. llalcomb. ubi nuji. ; Mlirriiy v. I'vinie, 1 Drew. 3.53.

8 See Whittinqhnm v. Wooler, Swaiist. i2H ; Juin'tU v. Iloulnton. 3 K. & .J. 70S: 3 .Tur. X. g. 1051.

INJUNCTIONS AND RKSTRAININC} ORDERS.

1071

The injunction, when issued, restrains the ptihlicatitm of those
parts which are found to liave been pirated.^ Wliere, however, the
( ■curt, availin*,^ itself of the evidence read pending the motion, wtus
led to conchide, that if th(? parts aft'ected with tlie character of
[liracy were taken away, there would be left an imperfect w<jrk
wliicli could not, to any useful extent, serve the purpose intended
hy the publication, the injunction, to restrain the publication of any
parts pirated from the plaintiti"s work, was granted, without wait-
ing till all tlm parts pirated could be distinctly marked.-

And, in general, if the parts pirated aie so mingled with the
original portions of a work that they cannot be separated, the Court
will enjoin the publication of the whole : although a very large pro-
portion of the work may be unquestionably original. Upon this
subject. Lord Eldon oboerved, that " He who has made an improper
use of that which does not belong to him, must suffer the conse(|U-
ences of so doing. If a man mixes what belongs to him with what
belongs to me, and the mixture be forbidden by the law, he must
again separate them, and he must bear all the mischief and loss
which the separation may occasion. If an individual chooses, in
any work, to mix my literary matter with his own, he must be
restrained from publishing the literary matter which belongs to me ;
and if the parts of the work cannot be separated, and if by that
means the injunction which restrained the publication of my liter-
ary matter prevents also the publication of his own literary matter,
he has only himself to blame."^

By analogy to the principle upon which the Court proceeds in
cases of copyright, it will also interfere to restrain the publication
of manuscript treatises, or private letters which bear the character
of literary composition. This was established with regard to manu-
scripts inil/r. Webb's and Mr. Forrester's cases : the former of whom
had his Precedents of Conveyancing stolen out of his chambers ; and
the latter had his notes copied by a clerk to the gentleman to whom
he had lent them :* in both instances, the printing and publishing
them was restrained by injunction. The same p tection

^

^

I

was

1 Carnan v. Bowleg, 2 Bro. C. C. 80 ;

Mawgan v. Tegg, 2 Russ. 385.

2 Lewis V. Fullarton, 2 Beav. 6.

V. Leadbetter, 4 Yes. 681 ; Jeffery x. Howies, 1 Dick 429 :

3 Mawgan v. Tegg, 2' Russ. 386, 391 ; and see JanoU v. UouMon, 3 K. & J. 708 : 3 Jur. N. S. 1061.
~ le, cited 2 Bro. P. C. ed. Toml. 138 ; Forrester v. Waller, cited ib. : Burr. 2331 ; and see

4 Webb V. Rose,

Soiithtp y. Sherwood, 2 Mer. 435.

^

V

IMAGE EVALUATION
TEST TARGET (MT-3)

&^

1.0

I.I

Ui 122 12.2
£f Ufi 12.0

IL25 III 1.4

|l.6

RiolDgraphic

Sdences

Corporation

23 WIST MAIN STRUT

WnSTU.N.Y. MSSO

(71«)t72-4S03

m

v

v

^^ ^\ WrS

'^

4%

1672

GENERALLY.

S •

extended to Lord Clarendon's History, a copy of which had been
given by his son to Mr, Gwyune : for it was not to be presumed,
from such a gift, that he was to have the profits of multiplying it in
print, although he might make every use of it except that.^

Upon the same principle, the publication of works of art, which
the author thinks proper to keep private, or even of a catalogue
describing them, will be restrained.'^

Letters which bear the character of literary compositions must
be treated as within tiie laws protecting the rights of literary pro-
perty ; and a violation of those rights is affected with the same
consequences as the publication of a treatise in manuscript. Upon
this ground Pope'?;, Swift's and Lord Chesterfield's Letters have all
been protected b- r -ea^ns of an injunction f but a question has been
raised, and a doubi l iggested, how far the like protection would bt
given, where the ItJtrfcrs published did not fall, in strictness, within
the terms of literarv liorapositions. It is now, however, settled that
the writer of a letter Ijas a joint property in it, with the person to
whom it is addressed. The receiver has a special property in it ;
but no more : it is a gift to him for the purpose of reading, and in
some cases for the purpose of keeping it ; but ultra the purposes for
which it was f-rnt, the property of the letter remains in the sender:
which being so, it cannot be published without the writer's con-
sent.^ And it is immaterial whether the publication is made with
a view to profit or not : if for profit, the party is then selling ; and
if not for profit, he is then giving that of which a portion belongs
to the writer.'' But, notwithstanding this right of property, the
conduct of tlie plaintifl:' may be such as not to entitled him to the
interference of the Court. Thus, the plaintiff" was left to his legal
remedy, where he had held the defendant out to the public as a
person giving false intelligence upon spurious authority, and the
intelligence had come from the plaintiff" Inmself : as was proved
and confirmed by several letters which formed the subject of
dispute."

1 iJukit ofQvrfn^Ue.rry v. Slwhbcari', 2 Etleii, 329.

2 I'riMc A Ibcit \ . riranfie 1 McN. & O. 25 : 13 Juv. 109 ; 2 Do O. iV S. 052.

3 Pope V. Curl, i .\tk. 342, Thompson v. Stanhope, Ain'o. 737.

4 If the solicitor i)f a company writes a letter apparently on Ijchalf of tlie company, he i« not entitleii

to prevent its publication, although he .swears it was written in Iiis private capacity : IJoward v.
Otinn, 32 iieav. 462.
i Earl o/Gramrd v. Dunkxn, 1 Ball & B. 207; Pope v. Curl, 2 Atk. 342; Gee v. Pritchard,^ Hy/amt
40'i 6 Lord and Lady Perceval v. Phipps, 2 V. 4 B. 19.

id been
esumed,
nir it in

;, which
italogue

18 must
wy pro-
le same
Upon
have all
las been
i^ould bo
, within
tied that
ersoii to
ty in it ;
and in
(OSes for
sender :
con-
with
and
jelongs
ty, the
to the

:-'8
do

i.s legal
ic as a
and the
proved
gect of

ot entitled
Howard V.

', 2 Swanst

INJUNCTIONS AND RESTRAINING ORl»ERS.

1673

Injunctions will also be granted to restrain infri'igoments of the
right to the title of a book or i^eriodical.^

A similar jurisdicition exists in Equity to restrain, by injunction,
the improper use by one man of, the name or trade-mark of
another, and is exercised upon similar principles to those which
are applied in cases of copyrights, patents, and other rights of a
similar description. But it rests upon property, and not upon the
fraud on the public ; and, therefore, will not be exercised, unless it
appears that the plaintiff has sustained, or is likely to sustain,
pecuniary loss from the acts complained of.-

Any article of manufacture, not protected by patent, may be
made and sold by any person ; and that too by the name given to
it by the inventor.-* But a man has no right to sell his own goods
or manufactures, under the pretence that they are the goods ol*
manufactures of another. He cannot, therefore, be allowed to use
names, marks, letters, or other Indicia, by which he may induce
purchasers to believe that the goods which he is selling are the
manufacture of another person. Hence there arises so much of a
property in a name or mark, that the Court will interfere by
injunction against a person using the name or mark of another, even
though there be no intentional deception.*

A party professed to sell the secret of a preparation called
" Jones' Patent Flour " and became bound not to disclose the

1 llocfg V. Kirhi/, S Ves, 215; I'rowftt, v. Murtiinci; -J Jiir. N. S. 414, V. C. S. : Clement v, .Vaiidiel,;
i Gift'. 98; 5 Jur. N. S. fi92 ; fwjram \. Stiff, o Jiir. N. S. 947 ; iiiid see Bradbury v. Dickens, 27
\iea.\'. yi; Correspondent Xe.iviipa2)er Comfani/ V. Saunders, 11 Jnv. S. H. 540: I.S W. K. 804 V.
C. W,

i W'ebxter v. iVch^er, :< Swaiist. 490, n. ; ifarf.in v. Wright, (i Sim. i)7 ; llmith v. Webster. 10 Heuv.
Titil ; Clark v. Freeman, 11 Uoav. 112; h:,h-lsti ii. v. Kiielxtcn, 1 Di-d. ,1. ,V S. 185 ; 9.)iir. N S
47% IMtii V. /Hll, 1 H. A: .M. 204 ; //((// v. Ilarrtnes, (T .Iiir. N. S. 48:i, M. 1{. : 10 Jur. \. S. ,-,5,
L. C. ; heather Clolh Cmirpany v. Ain-riemi I.enihrr Clntii Cninpany, 11 Jur. N. S. 5l;i : l:{ \V
H. 87;i, H. of I,.; 10 Jur. N. S. 81 : 12 W. K. 2S9, I,. C; ami see l-hnpn-nr of Austria v. Ihvi, 3
Do (}. K. i<: J. 217 ; 7 Jur. N. S. <i;«> ; 2 dill. 028 ; 7 Jur. N. h. 48:V

8 Ilia Ill-hard v. Hill, 2 .\tlj. 4.S4 ; Viiaii;! v. Maenie, '.I Jur. X. 8. ;i22, \. ('. W.

♦ Per li'>r(l I,aii','-(l'.ilu, iu J'ernt v. Trin'titt, 0 Bcmv. 7:< ; anil seo Milliiigtoit v. Fox, S M. iV IJ. :t;<8 ;
Motlei/ \. Ihtieihiiaii, '.\ M. .^ ( !. I ; iiimt v. Al-'plmjlu, 0 l!t'a\. (iii, u. '; Fraiil-s v. Weaver, 10 Iteav.
297 ; i^liriiaiitoii v. Laight, 18 lieav. 104 ; limliji r-i v. SoieiH, o Hare. ;125 ; ;^ Do O. M. \ (i. 014 ;
17 Jur. 171 ; Jiiiiyess v. Ilnrgess, 'A l)o(!. M. cc (i. S90 : 17 .)ur. 292 ; (.'nlliiis C<iiiipani/ v. liromn,
■\ K. vSi J. 428 : ;! .')ur. N. S. 929 ; Farina v. Sdveiioci,; 4 Iv. it ,1. (i.'.O ; 0 De G. .M. vt U.'214 : 2 Jur.
N. S. 1008 ; Welch v. Knott, .\ K. .t J. 747 ; Chiirtnn v. Dmnila.-; JdIui.s. 174 ; 5 .lur. N. S 887;
Dent V. Tnipin, 2 J. it H. 1:19 : 7 .lur. N. S. 07a ; Wuollam v. liatrliff, 1 II. >S; M. 2,59 ; liatti/ v.
Hill, ib. 204 ; (Arahnm v. Hasfard, i!>. 447 ; Cartier v. Caiiile, 81 Ueav. 292 : 8 .lur. X. S. is:} ;
Kdehitenv. Edelsfen, ami UaU v. liarrmes, ul'i slip. ; liiiri' v. liei/ord, 9 Jur. N. S. 950, M. U. !
10 Jur. X. S. .508, li.JJ. ; Coloni-al hijc Assurance Companii \. Home <0 Colonial Company, 3;<
Heav. .548 : 10 Jur. N. S. 91)7 ; McA ndrev v. Baxsett, 10 .lur. N. S. 492, V. c;. W. ; ib. 5.50 : 12 W
R. 777, li. C. ; Hanks v. (iibson, 11 Jur. N. S. 180 : 18 W. U. 1012, M. K.; Ponmrdin v. I'eto, 8:!
Heav. G42 ; Olenny v. Smith, 2 Dr. v S. 470 ; lj"athi;r Cloth Company v. American heather Cloth
Comijany, 11 Jur. N. S. .513: 13 W. R. 878, H. of L, For the |irinuifiles im which an account is
directed in such eases, see Moet v. Coaston, 33 Heav. o7H : 10 Jur. N. S. 1012, M. R. ; llarrixon v
Taylor, 11 Jur. N. S. 408, V. ('■. W. ; and for a collection of eaaesusto inJunctionsreHiMietingtrade-
mark.w, with fornw ef onlers, see Seton, 914 017

1074

GENERALLY.

Q

S
5

secret to any other person in Canada, nor make use of it himself,
except at the instance of and for the benefit of his vendees ; not-
withstanding he afterwards commenced selling a similar article
done up in bags bearing a general resemblance to those of his
vendees, although differing in some minute particulars, and led
parties purchasing it to believe that it was the same article. The
Com't granted an injunction to restrain him from selling the same
preparation, or any other preparation done up in such a manner as
to lead the public to suppose that it was the same article, and
from representing it to be such, although it was sworn by the
vendor that the preparations were not the same.^

The plaintiff had dulj'^ registered under the Statute as his trade
mark in the manufacture of Soap, the word " Imperial " with a
star following it : the defendant in his manufacture of Soap put on
his boxes the words " Imperitjl Bibasic Soap." An injunction was
granted restraining him from using the word " Imperial " as being

a portion of the trade mark of the plaintiff.^

«

The plaintiff carried on business in the City of L. having for his sign
a figure of a gilt lion, and designating his place of business " The
Golden Lion " ; the defendant for some years had had the conduct
of this business, and having determined on commencing on his
own accqijunt the same line of business, opened a shop in front of
which he placed a figure somewhat similar to that used by the
plaintiff. The Court on the application of the plaintiff restrained
the defendant from using as a sign, this or any similar figure.^

Plaintiff sold liquid medicine put up in bottles labelled " Perry
Davis's Vegetable Pain Killer " : defendant subsequently sold a
similar, kind of medicine put up in bottles labelled " The Great
Home Kemedy, Kennedy's Pain Killer." Plaintiffs claimed the
word " Pain Killer" alone as heir trade mark. It was proved that
the medicine of plainti ffs was known and sold in the market by the
name of ** Pain Killer " before the defendant's was introduced and
that the trade would not be deceived by the defendant's labels,
although the general public might be deceived. An injunction was

1 Whitney v. Hiekling, 6 Uraiit, 605.

2 Crawford v. Shuttock, 13 Qrant, 149.

3 Walker v. Alley, 13 Grant, 366.

imself,
I ; not-
article
of his
nd led
. The
e same
nner as
le, and
bv the

is trade
with a
) put on
ion was
IS being

his sign

s " The

conduct

on his

ifront of

by the

trained

" Perry

sold a

Great

led the

jed that
by the

jed and
labels,

ion was

INJUNCTIONS AND RESTRAINING ORDERS.

1675

granted, resti Mining the use by the defendant of the word "Pain
Killer " as a trade mark, with an account of profits, and costs.^

The plaintiffs filed a bill to restrain the use of a label which,
they alleged, was an infringement of their trade mark, or of any
other label which resembled the same. The defendant admitted
that the label he had used was an infringement, but he said that
he had discontinued tlie use of it before suit on hearing that the
plaintiffs complained of the label, and that after suit he informed
the Solicitors of the plaintiffs of this discontinuance, disclaimed all
right of using the label, and was ready to account for the profits
he had made, and to pay the costs of the suit. The plaintiff's
Solicitors declined to discontinue the suit ; and, the di^fendant hav-
ing put in his answer, the plaintiff brought the cause on for hear-
ing upon bill and answer. The defendant not disputing that his
label was an imitation of the plaintiff's, or that he was aware of
the plaintiff's property in their label, an injunction was granted
against using the label complained of, or any other label similar
to, or resembling the plaintiff's ; and the defendant was ordered to
pay the costs of the suit.^ Hiram Piper, and Noah Piper carried
on business under the name of " Hiram Piper iC- Brother.'' They
afterwards dissolved part^iership, and each carried on like business
in his own name. Subsequently Hiram assigned his business to
the plaintiff", with authority to carry it on in Hiram's name, and
then two sons of Noah Piper carried on a similar business next
door, under the firm of " H. Piper i(- Co."" An injunction to restrining
the use of that name was refused.-^ A cigar manufacturer, to dis-
tinguish his cigars from others, called them " Cable Cigars," and
afterward adopted a method of stamping on each cigar, in bronze,
an elliptical figure, with the name " S. DAVIS," and the word
"CABLE" withhi the same. A rival firm, two years afterwards,
adopted the same method, using for the purpose a trade mark
identical with this, except that they substituted their initials " C.
P. R. & C." for the other's name, and the word " CIGAR " for the
word " CABLE." It was proved that persons had bought these
cigars supposing them to be the Cable stamped cigars. Held, that

1 Davit V. Kentudy, 13 Grant, 523.

2 Radteay v. Coleman, 15 Orant, 60 ; andNec liroek'mgton v. I'almtr, 18 Grant, 4f8.

3 A ikeiiH v. Piper, 15 Orant, 681.

C-:

IKS'

1676

(GENERALLY.

the manufacturer of the Cable cigars was entitled to an injuncrion
to restrain the other parties from using the trade mark which they
had so adopted^

ac

Q

Q

With respect to these cases, it may be observed, that the remedy
given in Equity will be withheld, if there has been any improper
conduct on the part of the plaintiff. On this principle, the Court
will refuse to grant an injunction, where tlio plaintiff has made
false representations to the public; concerning the article which he
seeks to protect.'^

By the Trade Marks and Designs Act of 1801— (24 Vic, cii. 21.)
Further remedies are given for the infringement of trade-marks ;
but it is j)rovided, that nothing therein contained is to take
away or prejudicially affect any remedy at Law or in Equity.

Injunctions may also be granted to restrain corporations and
other public bodies from committing acts which .e ultra vires, or
from apjiropriating tlieir property for purposes other thaii those
for which they were constituted, or to prevent the excessive or
undue exercise by them of parliamentary powers. Instances of
such interference are of very frequent occurrence ; but are too
numerous to be referred to in detail within the limits of the present
Treatise.-'

1 Davis V. HeUI, 17 tJriiiit, (!!i.

2 Perry v. Trvefitt, (i Boiiv. tiii ; I'iddimj v. Ilnir, S Sim. 477 ; Flniul v. llarriMii, 10 Jlare, 407 : 17

Jiir. am ; Liailii'r Cloth Cnmpami \. America a h'othcr Clotli. Coiiipdin/, 10 .lur. N. S. 81 : 12 W.
K. 1280, L. ('. ; 11 ,)nr. N. S. r.lS : 13 W. R. 87;i, H. <>f I,. ; and sue f-AkMiii v. Vkk; U Hare, 7S.

INJUNCTIONS AND RESTKAININ(} OHDEUS.

1(577

incnoii
)li thev

remedy
iproper
e Court
s made
iiicli lie

Upon grounds of irreparable mischief. Courts of Equity will
restrain a party from making a disclosure of secrets communicated
to him in the course of a confidential employment ; and it matters
not, in such cases, whether the secrets be secrets of trade, or secrets
of title, or other secrets of the party important to his interests. '
The Court, however, refused to grant an injunction to restrain the
defendant from imparting the secret of an invention which had
been the subject of a patent long since expired ;-^ and it will not
interfere to prevent the disclosure of secrets, by means of which
frauds have been committed.''

cii.21.)
-marks ;
to take

by-

ons and
irires, or
Lii those
issive or
ances of
are too
present

laie, 407 : IT
81 : 12 W.
11 Haru, 7S.

0-28, fl.i»'<i.;

8 11. 1-. Oil.

Stockton ii'
V. Ink I'.f
I W. U. VM>,
k M. l;{0 :
nil, n \V. li.

.ii : 11 \V. ;>.
n Hoard of
V.n : 12 \V.
10 .hir. N. S

:{ \V. K. -iV,-.
ti'ii), U .lur
loijd V. /i'l/i-

Galloivan v.

ir. N. S. 474,

;) Ihan Coal

k\r<' Water-
\m ct; South

LUa;/(ir, ctrc,

d

Another purpose for which injunctions may be applied, is to
pre\ent the alienation of property, where it would Avork an irremedi-
able or gross injustice. Under such circumstances, an injunction
will be granted ; and it often has been, when the alienation con-
templated was strictly legal, but other circumstances, which the
Courts of Law could not take notice of, would have rendered it
improper that such an alienation should be made. Thus, in the
case of negotiable instruments, if a bill or note affected with fraud
is transferred to a bona ft le holder, without notice, the latter may
be entitled to recover upon it : for the bill or note would be a good
security in the hands of t^'e persoYi to whom it was so transferred ;
and, therefore, the j)ersoii against whose rights they may be made
available is entitled to protection from that danger, and the mis-
chief attending it.^ In such cases, the injunction vill usually be
granted, on an ex parte application, supported by an affidavit verify-
ing the truth of the fraudulent circumstances, lest the defendant
should, upon intimation of the suit, defeat its object by negotiating
the security." Where a bill of exchange has been negotiated by
means of a forgery of the name of the payee as indorsee, a hoiui
fide holder of it v/ill be restrained from suing the acceptor upim it ;
and the Court will, at the hearing, direct the forged instrument to
be delivered up to be cancelled : for, tliough the holder may have

1 Karl Cholinoiidid,-;/ v. ' t,rd Clinton, 1!) Vos. -ilil ; Ksitt v. Prir.i', 1 Sim. 483 ; Voratt v. IKm-

yard, 1 J. & W. :«t4 ; >am('s v. Clmiqh, 8 Sim. -IWl ; hcwin v. Smith, 1 McN. .t (!. 417 ; JfoUnwai/
V. lluWnimi, 13 Ueav. -iOi) ; Morrison v. Moat, !) Huro, 241 : 1,'. .lur. 787 ; 1(J .lur. :{21, lj,.JJ.

2 Nowbrry v. Janirn, 2 Mer. 440.

liinn Paving
1. 11)15, V. e.

^

918. 919.
i Stnith V. Aykwell, 3 Atk. 5(16 ; Hood v. Atton, 1 llu.ss. 412.

1678

fJENERALLY.

paid a value for it, yet, if the endorsenjent under which he
received it is a forgery, it is the same thing as if ther^ was no
indorsement of it, and then he is not in truth the holder of it : for
he has no title by indorsement, and that was the only way by
which he could obtain a title to it J

a

Ul
Q

O

By an Act of the Provincial Legislature, the town of St. Catha-
rines was authorized to issue debentures to the amount of £45,248,
for the liquidation of which, a special rate was directed to be levied,
the proceeds of which were directed to be invested, and form a
sinking fund for this purpose ; by the same act the town was pro-
hibited from passing any by-law to create any new debt extending
beyond the year in which such by-law was passed, except for the
construction of water works, until the debt was reduced to £25000.
The special rate authorized to be imposed had been duly levied and
collected, but instead of investing the same to form a sinking fund
for the payment of the debentures, it was alleged, it had been
applied to the general purposes of the Town, and the debt had not
been reduced. The defendants denied the misapplication of the
fund, but did not shew how it had been applied ; and with a view
of inducing the County Council to remove the County Town of
Lincoln, from Niagara to St. Catharines, the Town Council of St.
Catharines, without any by-law authorizing the same, contracted
with certain builders to erect a gaol and court house for the use of
the County, at an outlay of £3000, to be completed in two years.
Upon an application made at the instance of certain of the holders
of the debentures under the before mentioned Act the Court
restrained the Town of St. Catharines from suffering or permitting
the buildings to be proceeded with. On an appeal to the full
Court the injunction was dissolved, it appearing that the
contract which had been entered into between the corporation
and the contractor had been cancelled, and that no liability had
been 'incurred by the corporation extending beyond the year ; but
if it had been shown that any Act of the corporation would have had
the effect of incurring a liability payable in a future year, the
injunction would have been retained to the hearing. On pro-
duction of the contract in Court, it appeared that the rescission

1 Btdaile v. ha fiauze, 1 Y. & C Ex. 304 ; and ree Thiedetnann v. Goldtchinidt, I Ue O. F. & J. 4.

INJUNCTIONS AND RESTRAIiriNO (JRDERS.

167&

ich he
leas no
it : for
vay l)y

Oatha-
:45,248,
} levied,
form a
as pro-
Ltending
for the
£25000.
vied and
ing fund
ad been
had not
m of the
1 a view
Town of
oil of St.
intracted
le use of
o years,
holders
e Court
srmitting
the full
Ihat the
poration
ity had
lar; but
lave had
ear, the
|0n pro-
iscission

F. & J. *

referred to had been effected by cancelling the signatures to the docu-
ment, which being objected to as not ie//a?i?/discharging the corpora-
tion from liability the Court, as a condition of dissolving the injunc.
tion, required a formal cancellation of tlie contract to be made.
(Vankoughnet, C, duhitante as to any necessity therefor.* )

Upon a like principle, the Court will interfere to restrain the
transfer of stock, or the payment of di\idend8, or the sale of
specific chattels, where the title to the stock is controverted between
principal and agent ;^ or where it is propos?d to pay the dividends
on erroneous principles :'* or where it is necessary to protect the
enjoyment of specific chattels, which cannol be the subject of com-
pensation in damages.*

The Court, acting upon the principles abo\e pointed out, will also
grant an injunction to restrain a party from making vexatious aliena-
tions of the subject-matter of the suit, pendente lite.^ It will, there-
fore, enjoin a vendor from conveying the legal title to real estate,
pending a suit for the specific performance of a contract for the
sale of that estate f but it will not interfere in this manner, before
the hearing, if there is any serious question whether any contract
exists between the parties."

In like manner, sales may be restrained in all cases where they
are inequitable, or may operate as a fraud upon the rights or inter-
ests of third persons : as in cases of trusts and special authorities,
where the party is abusing his trust or authority ;^ and where sales
have been made to satisfy certain trusts and purposes, and there is
danger of a misapplication of the proceeds, Courts of Equity will
also restrain the purchaser from paying over the purchase-money. ^

1 Edinhwgh lAfc Assurance Company v. St. Catharines, 10 (Jraiit, 370.

2 Lord Chedworth v. Edwards, 8 Yes 46 ; but see Cox v. J'axtons, 1 Madd. Cli. Pr. 2iid ed. 155 ; 3rd

ed. 215.

3 Reeve v. J'arkins, 2 J. vV W. 390 ; Sturge v Eastern I'nion Jiailway Companj/, 7 Do G. M. & G.

158: 1 Jur. N. S. 713; Iletiri/ v. Great yorthera Railway Company, 4 K. & J. 1 ; 3 Jur. N. S. 1117;
1 De G. & J. 606 ; 3 .lur. N. S. 1133.

4 Lady Anindell v. I'hipps, 10 Vos. 139 ; Wood v. Ruwliffe, 2 Pliill. 382.

5 Daly v. Kelly, 4 Dow, 440 ; I'otveli v. Wright, 7 Beav. 444, 452 ; Rhodes v. liucklnnd, 16 Beav. 212,

219 ; and see Turner v. Wight, 4 Beav. 40 ; Great Western Railway Company v. Birmingham «f;
Oxford Railway Company, 2 Phill. 597 ; Shrewsbury <(; Chester Railway Company v. Shrews-
bury <f,- Birmingham, Railway Cotnpany, 1 Sim. N. S. 410 : 15 Jur. .548.

6 Fchlif V. Baldwin, 16 Yes. 267 ; Dalt/ v. Kelly, 4 Di»w, 440.

7 Hadley \. London Bank of Scotland, 11 Jur. N. S. 554. Y. 0. K. : 13 W. K. 978, L. JJ.

8 Anon., 6 Madd. 10.

9 Qreen v. Lowes, 3 Bro. 0. 0. 217 ; Mathews v. ,/onea, 2 Anst. 506 ; Uawkshaw v. Parkins, 2 Swans.

649. .

M

16S()

• JEXERALLY.

Q
a;

Q

Ul
Q

So aho, liusbands may be restrained from transferring property,
in fraud of the eqiiitablt! rights of their wives.'

Acting upon the same principles, the Com-t will, where there is
M dispute respecting tlie right of presentation to an ecclesiastical
benefice, not only restrain the party having the legal right of pre-
sentation from presenting, but it will also enjoin the bishop from
inducting, and from taking advantage of a lapse, pending the liti-
gaiti(m, by (.-ollating to the l)enefice, til) the decree of the Court. -

The (Jourt has also, upon the same ground, restrained the
trustees of a dissenting chapel, from appointing, as a minister of
tliat chapel, a person not duly qualified according to the constitu-
tion of the chapel, to hold the office : although it refused that part
of the motion which asked for an injunction to restrain the trustees
from permitting persons not duly qualified from officiating occasion-
ally, duriu!^' tlie sliort time that might elapse before the hearing,
wlieu tile facts upon both sides must be known.'^

An iujuiiction will also be granted to restrain the employment
of a ship in a manner forbidden by the charter-party;* or the
indorsement of the certificate of a ship's registry :'' or the sailing
of a ship, up(m the application of a part owner, \vhose share is
unascertained, in order to ascertain that share, and to obtain the
usual security given in the Court of Admiralty for the due return
of the ship."

So an injunction will be granted against the removal of timber,
wrongfully cut down.'

Injunctions will also be granted to compel the due observance of
agreements and covemiuts, where there is no effectual remedy at

1 Anon, I) Mod. 43; Uohertu v. Jloherts, _' Cox, 422; FUfi'i. v. CauK; 2 Vos. S. 61i> ; Cado()un\.

Ki-nnett, Cowp, 4;>2, 430.
•1 Micholxon V. Kmtpp, I) Sim. 32(j ; Attorniui-Genvral v. '^uming, 2 Y. & C. C. C. 13!» ; and sec Hdi-n-

burouijh V. A rchOishup of Canterbury, 2 Uuxs. 112 ; and Scton, 904; ib. 94;<, Nn. 1.
;{ Milligan v. Mitclwll 1 M. & K. 44(» ; Attormu-Gemml v Mnnro, 2 Uc G. .v, S. Ii2; Attonuy-

General v. Murdoch, 7 Hare, 443 : 1 |)e <J. M. & (J. SO; Daugars v. Rivaz, 28 Beav 23;i : 0 .Hir.

N. S. 8A4 ; Atturwii-iiencral v. (iuxdd, ib. 485 ; I'lrnt v. Slujuraii, 1 (Jiff. 1 : 5 .Fur. .V. S. M.I ; 4

De (i. & J. 353 : 6 Jur. N. S. 1015.

4 Dc Mottox V. Gibson, 4 De G. & J. 276 : 5 Jur. N. S. 347 ; Sevin v. Dedandeg, 7 Jur. N. S. 837, .M. R, :

Collins V. Lamport, 11 Jur N. S. 1 : 13 W. R. 283, L. C.

5 Thomimn v. Sm>th, 1 .Madd. 395 ; and see t'ollett v. Dclanu, 2 DcG. & S. 235 ; Clarke v. Butt>'rs,

1 K. ii J. 242 : .4 rniHtrong v. A rmnfronj, No. 1, 21 Beav 71 : 1 Jur. N. S. 859, 800 ; De Mattun v.

Gibn(>n,a.nd Secinv. DeMaiide8,tihi Hup.; Orr v. Wfcfa'/iwu, John.s. 1; fl'.>ldi'rne»s v. Lamport,

29 Heav. 129 : 7 Jur. N. S 5U4. For a collection of cases a.s tu injuiiutioiis respectiii); iihipH, with

forms of orders, .see Seton, 932 -930.
»i Jlalji V. GoMhon, 2 Mer. 77 ; Chrintie \. Cruiy, ib. 137.
7 A non, 1 Ve» J. 93. •

INJUNXTIONS AND KESTRAINING ORDERS.

1681

perty,

lere is
iHtical
f pre-
[) from
lie liti-
irt;^

ea the
ister of
mstitu-

at part
rustees
!casion-
learing,

loyiufciit

or the

sailing

;hare is

;ain the

return

I timber,

lance of
liedy at

bidocyu'i V.
ll sec Kden-

A tturiuy-
S. wr. ; -i

S37, M. R. ;

Batt''n,

Matton V.

Lamijort,

Wiips, with

Law.' Thus, in the old case of the parish bell, where certain per-
sons, owning a house in the neighbourhood of a cliurch, entered
into an agreement to erect a cupola and clock, in consideration
that the bell should not be rung at five o'clock in the morning to
their disturbance : the agreement l)eing violated, an injunction was
afterwards granted to prevent the bell being rung at that hour. -
Upon the same ground, a celebrated play-writor, who had covenanted
not to write any dramatic performances for another theatre, was,
by injunction, restrained from violating the covenant." So an
author, who had sold his copyriglit in a work, and covenanted not
to publish any other to its prejudice, was restrained by injunction
from so doing ; ■* and an actor will be restrained from performing
in violation of an agreement.^

Upon tlie same principle, an injunction will be awarded, to
restrain the erection of buildings in breach of ii covenant not to
build in a particular manner, or on a particular site ; *' and it is not
necessary, in order to justify the interference of the Court, that the
covenant should run with the land."

Injunctions have also been granted to restrain a person, who
has covenanted not to exercise a ceitain trade within certain limits,
from exercising such trade within the prescribed limits.** It is,
however, (piite settled that the mere sale of the goodwill of a busi-
ness does not imply a contract on the part of the vendor not to set
up a similar business, nor restrict him as to the place of carrying
(in that business." '

The plaintiff purchased the defendant's l)iisiness as an exchange
i»roker at Kingston, and the latter agreed not to go into the business

1 For cases and foniis of orders, see Seton, 921- 925.
•> Martin v. Srtthin, i P. VVms 2(i0.

3 .Wo/TW V. CV(Jmrtu, 18 Ves. 4:f7 : C/nW.".' V. /Vice, 2 Wils. 167.

4 liurjield v. Xiclmliioii 2 S. & S 1 ; Culhxtni v. Siiimin, 2 Haru, 'AX

5 Lumleij V. Warner, 5 De O. & S. 485 : 1 De U. M. k G. 004 : 10 .)ur. 871 ; Webst r v. IHHuu, ;t .'ur.

N. S. 432, V. C. W. : contra., Kemble v. Kean, (i Sim. 333; see also Fechter v. Montgtiinerv, 33
Beav. 22.
0 Rankin v. Iluskixnon, 4 Sim. 13; Patching v. Duhhins, Kaj-, 1: S. C. nom. I'atehimj v. (ivobitu,
17 Jur. 1113 ; Coles v. Sims, Kay, 5(5 ; 5 De G. M. * G. 1 : 18 Jur. 683 ; Pigott v. Stratton, .Johns.
:U1 ; 1 l)e G. F. & .1. 33 : C Jur. N. S. 129 ; Uo>id v. Loiulon, Chatham ,0 Dover Jhiilway Com-
pany, 11 Jur. N. S. 380 ; 13 W. R. 698, L.JJ.

7 Tulk V. Moxhay, 2 Phill. 774 : 13 Jur. 89 ; 11 Beav. 571 ; Moxhai/ v. Inderwick, 1 De G. Ot S. 708 ;
WUson V. Hart, 11 Jur. N. S. 73.5 : 13 W. K. 988, V. C. W.

8 WiUiam^ v. H'iUianui, 2 Swanst. 2,53 ; Smith v. Mulex, 9 Hare, 556 ; Sim-^sun v. Chapman, 4 De
G. M. & G. 154 ; CItarton v. Douglass, Johns, 174 : 5 Jur. N. S. 887 ; C'arkson v. Hdge, 33 Beav
227 ; Fox V. Scard. ib. 327 ; and see Sainter v. Fcrguxon, 1 McN. & O 28(« : 14 Jur. 256.

9 Churton v. Dnuglai, ubi sup. ; and see cases cited 2 Swanst 254, n. (a )

'>

; J

1G82

OENERATJ.Y.

I

there again. The plaintiff afterwards Hold out to one C. and
entered into a like agreement with him ; lnM, that the plaintiff
after thin saU* had Jiot Riieh an interest in the contract with the
defendant an entitled him to an injunction, and that hin remedy,
if any, wuh at law.' Tlu' defendant sold to the pi.iintiff the good-
will of the business of an innkecspLT, which he had carried on under
the name of " ^lason's Hotel." or -'The Western Hotel,"— he
afterwards n^sunusd the husiness under the same name and in tht-
same premises, and rcpn sented to his old customers and the
public tlmt the business ko resumed was the identical business
sold : lit hi, that though in the absence of any express covenant
the vendor would have been entitled to engage in a husinesH similar
to that he had sold, yet Ik^ was not at liberty to rejiresent the new
business as the same identical husiness asthe old : Hdd, also that
a covenant in the agreement that the vendor should pay $4000 in
the event of his carrying on husinesf'- as ni innkeeper, within ten
years, did not affect the purchasers' right to an injunction ; nor
did the circumstance of their having removed to othei' premises. -
Several incorporated companies and individuals engaged in the
manufacture and sale of salt extered into an agreement w^hereby it
was stipulated that the several parties agreed to combine and
amalgamate under the name of " The Canadian Salt Association "for
the purpose of successfully working the husiness of salt manu-
facturing, and to further develope and extend the same, and which
provided that all parties to it should sell all salt manufactured by
them through the trustees of the association, and should sell none
except through the trustees. HcU, on demurrer that this agreement
was not void as contrary to public policy, or as tending to a
monopoly, or being in undue restraint of trade ; that it was not
ultra vires of such of the contracting parties as were incorporated
companies, but was such in its nature as the Court would
enforce.''

Where bankers had sanctioned an arrangement entered into by
certain persons, copartners, who were indebted to them, whereby
it was agreed that, upon the retirement of one of the copai^tners,

1 Jones V. Wooldj, Hi Grant, 106.

2 JUossop V. Mason, 1(5 Grant, 302.

3 Ontario Salt Cmiipanyw Mcrchant'ti Salt Comjtany, 18 Grant, 540.

INJUNCTIONS AND UESTRAININCS ORDEIIS.

ii;s3

1. and
laiutift"
itli the
jnu'dy.
! good-
i imder
1,"— be
I in tlu'
nd tilt!
)UHiness
ovt'uant
, Hiniiliir
the nt'W
\\bo tluit
J>400() in
thin ten
ion ; nor
ciuiseH. -
d in the
herc^hy it
line and
ition""for
Lt nianu-
id which
tured by
[sell none
rreement
ng to a
was not
prporated
•t would

\\ into by

whereby

IpartnevK,

(tile phiintiff.) the aHsets should ho tranHt'erred to tho coiitinnin«:];
pavtners, who were to take upon thcmHelvc^s tho partnorHliip lia-
hilitioH, and that tho bankerH HJiould release the plaintiff, who was
the retiring partner, from his liability to them, hut they afterwards
attempted, by means of the debt, to make the n'tiring partner a bank-
rupt, they were restrained from so doing by injunction.'

And BO, an injuncticm has been awarded, to restrain the publica-
tion by the defendant (in violation of his agreement,) of the fact
that the plaintiff had consented to a judgment being entered up
against him by the defendant. -

Injunctions have also been frequently granted, to resi; tin lessees,
who had convenanted to keep the banks of rivers or ponds in
repair, from destroying or impairing them ;"^ or an "itgoing tenant
h-om removing dung or crops, contrary to express coveuanis con-
tained in his leaw :'' or to restrain the plougliing up o! meadow
land ;*'' and in one of the earliest cases upon this subject, an injunc-
tion was granted till the hearing, by the House of Lords, upon
appeal, to restrain a lessee from digging sand and gravel, in viola-
tion of a covenant, secured by a penalty."

A lessor demised property for a term of years, with a stipulption
that the lessee would not carry on any business that would affect
the insurance ; the lessee made an under lease, omitting any
such stipulation, and the under lessee commenced the business
of rectifying highwines. Upon a bill filed by the lessor against
the lessees, the Court restrained the parties from continuing to
rectify liighwines, or carry on any other business that would
interfere in any way with the insurance.^

In 1844, a mill site w^as conveyed to the defendant " with the
privilege of keeping the dam thereon at all times hereafter at its
present head or height, but no higher," and in 1849 the defendant

1 Attwood V. Banks, 2 Hua\ . 11)2 ; see Pirn v. Wllxoii, i I'hill 053.

■> Jautienon v. Teaijur, 3 Jiir. N. S. 12(Ki, V. C. \V.

H Karl liatkufst v. li rdeti, 2 Hr<». C C. Hi ; Lord Kilmoren v. Thackeray, rited ib. (i . A^^ ti> in-o-

ceeiliiifjss in K(iuit\-, in ilij^juitcs between landlonl and tenant, see Wimlfall, 804, et sni
4 .hihnmii \. Ouldnwaiiic, .'< Anst. 749 ; Gc(i.'<t v. hnrd Jicl/axt, ib. n. ; I'liltciii'ii \. Slii'ltnii, .j Ves. 147;

lb. 200, n. (a) ; Lord Grey de Wilton v. Saxon, 0 Ves. 100.
.". .1 i/U't V. Dodd, 2 Atk. 23S ; Woodward v, GiiIch, 2 Vern. 110 ; Jiolfe v. I'lfrxon, 2 Hio. I'. C. ed.

Tcinil. 4m.
li Cily of London v. I'uyh, 4 Bro. 1". C. ed. Tmnl. :lSir>.
T Arnold v. White, 5 Oraiit, ;{71.

82

::!*•

1684

GENERALLY.

erected a new dam lower down the stream. This new dam was of
the same height as the old dam ; but the defendant placed on the
dam moveable stoj) log ; to enable him to make use of the surplus
water, which would otherwise flow over the dam. By experiments,
it was shown that if these stop logs were not removed when the
defendant's mill was not wol'lang, but in that case only, the water
would be raised on the lands of the plaintiff, to the extent of about
1^ inches ; the defendant liowever always had removed the logs
when his mill was not working : Held, that the plaintiff was not
entitled to an absolute injunction against the use of the stop logs.^

5t

§2

S

Though a lessee is required, by law, to cultivate the hinds demised
to him in a husbandman-like manner, conformable to the custom
of the countrj',- yet this is usually defined by some express cove-
nant. It has, upon this subject, been determined at Law, that a
covenant to occupy in a good and husbandman-like manner, accord-
ing to the custom of the country, will be broken by contravening
the prevalent course of husbandry in the neighbourhood ; and that,
even if the contract be simply to occupy the estate in a good and
husbandman-like manner, this will throw a liability upon the
tenant to cultivate the land according to the practice of the neigh-
bourhood ; •'* and even, though a farm be held under a written
agreement, the custom of the neighbourhood may well be insisted
upon, provided it be not either expressly or by implication excluded
by the terms of the agreement.* The same principle has been
acted upon in Equity, where an injunction has been granted to
restrain a tenant from year to year, (who, it was said, was equally
bound as a tenant for a longer period, to manage his farm in a
Imsbandman-like manner,) from removing crops, manure, ko,.,
contrar}^ to the custom of the country.^ In a previous case, a
tenant was restrained from ploughing up pasture land : although
the lease did not contain an express covenant not to convert pasture
into arable ; but the landlord was held entitled to the injunction, on
the ground of there being a covenant to manage pasture in a

1 Beaitiixh v. Barrett (in appeal), 16 Grant, 318 ; and see Graham \. Burr, 4 Grant, 1 ; iuul Camp-

bell V. Yovnij, 18 Grant, 97.
5 Powk)/ V. Walker, 5 T. K. 373.

3 Legh v. Ilewett, i East, 15i.

4 W hjglexmorth v. Dallixnn, Douy. 201 : Senior \. Armytage, 1 Holt, X.I'.C. 1!)7 ; Webb v. I'lu miner,

2 B. \ Aid. 74(i.

5 Oiulutc \. , l(t Ves. 173,

INJUNCTIONS AND RESTRAINING ORDERS.

1685

1 was of
I on the

surplus
riments,
hen the
lie water
of about
the logs

was not
op logs.^

s demised
16 custom
L-es8 cove-
iw, that a
n\ accord-
itravenhig
; and that,
L good and
upon the
the neigh -
a written
be insisted
,n excluded
has been
granted to
as equally
farm in a
Inure, *ltc.,
[is case, a
althougb
ii't pastvn-e
[mction, on
sture in a

It, 1 ; Hiul Camp-
L.((!) V. rivmmr.

husbandman-like manner.^ Upon the same principle, the Court
has interfered to restrain a tenant from sowing mustard, saflFron,
woad, and other deleterious crops : as being contrary to the course
of husbandrv.-

I

A distinction has been made, as to enforcing, by injunction, the
specific performance of express covenants, and of implied agree-
ments ; and the Court has refused to interfere to restrain a tenant,
who was holding over, from removing articles contrary to the
custom of the country : as the Court would not imply special
covenants, as to cultivation, from the mere act of holding over."^

A covenant to repair, and, at the end of the term, to surrender
buildings in good condition, does not preclude an injunction against
pulling them down and carrying away the materials, just before
the end of the term.*

Where there is a covenant not to convert premises into a shop,
or to carry on a trade without licence in writing, the permission
of the lessor, without writing, to carry on one trade, will not
amount to a general licence for any trade, so as to preclude the
lessor from his right to an injunction.''

It appears formerly to have been considered, that the Court
should not, in any case, interfere to restrain the breach of an
agreement, if it was of such a character that it could not decree
the specific performance of it." But it seems that now, the Court
will restrain a person from committing acts, in breach of an agree-
ment, although it cannot compel the performance of it;' and that
where an agreement consists of two distinct parts, one of which the
Court can enforce, although it cannot enforce the other, and the
bill is filed simply for an injunction to restrain the violation of the

I T}runi V. Mulins, C Ves. 32S.

•-' rratt V. Brett, 2 Madd. 62.

15 Kimpton v. Eve, 2 V. * U. .".*(».

4 Manor, <l'c., of London v. Uedgcr, 18 Ves. 355.

:> Machfr v. PoundUmi Hospital, 1 V. & B. 188.

ti Konble v. Kean, (i Sim. 333 ; Kimherlcii \. Jenningg, (J Sim. 340 ; Baldwin v. (Tue/ul Knowledge
Societi/, i) Sim. 393 ; 2 Jur. 961 ; ffnopi-r v. Brodriek, 11 Sim. 47 ; Pickering v. Binhcp of Ely, 2
Y. & 0. C. 0. 24it : 7 Jur 479 ; Stockir v. 'rmldrrburn, ■ K. .t J. 393 ; Dietrichgen v. Cabbur'n, 2
Phill. 52 : 1 C. P. Ooop. t. Cott 72 : 10 Jur. 601 ; IJilU v. Croll, 2 Phill. 00 : 9 Jur. 645 : 1 C. P
Coop. t. Cott. 83.

7 Lumleg v. Wagwr, .i Ue (!. & S. 485 ; 1 De O. M. & G. '"04 : 16 Jur. 871; Great Northern RaUwaif
V. Manehfuter, Sheilield .(• Lincolnshire Railrai/, 5 De G. & S. 138 ; Webster v. Dillon, 3 Jur. N.
S. 432. V. (J. W.

$

5

05

ta

Q

3. ^

cic.

1686

GENERALLY.

former part, the Court will grant the injunction, notwithstanding
that it could not enforce the agreement in toto}

An agreement may be enforced by injunction, although the
violation is not shown to be injurious ;2 and the Court will not, it
seems, refuse to interfere, on the ground that a mistake has been
committed by both parties in the form of the covenant ; on the
ground that the plaintiff has permitted other infringements of the
covenant ; or on the ground of inconvenience to the public. "

Injunctions may also be granted, to relieve a party against the
consequences of the non-performance of a covenant or agreement,
where such consequences involve either a forfeiture or the imposi-
tion of a penalty.

The doctrine upon the subject of relief from penalties, has thus
been nkted by Lord Thurlow : — '* Where a penalty has been
inserted, merely to secure the enjoyment of a collateral object, the
enjoyment of the object is considered as the principal intent of
the deed, and the penalty only is accessional, and to secure the
damage really incurred."* But where the parties, instead of
securing the performance of the agreement by a penalty, have fixed
upon a certain sum by way of liquidated damages, to be paid in
the event of the non-performance of the agreement, a Coui't of
Equity (except in certain cases of waste, which will be noticed
hereafter,) refuses to interfere in restraining the recovery of such
damages.''

Upon these principles. Courts of Equity interpose to restrain
proceedings at Law for the recovery of penalties. But where a
forfeiture had happened under a by-law of a corporation, which
provided that members should receive notice of default in paying
a call, and incur the forfeiture by non-payment ten days after the
notice sent, Sir William Grant refused to relieve : althougli the
lapse arose from accidental circumstances, and absence from town
when the notice was sent ; and he mentioned a case, in Ireland, of

1 Rolfe V. Rolfe, 15 Sim. 88. See Oijden v. Fonsick, 11 W. R. 128, L. JJ. ; butHec Brett v. Kant Imlia

it Liyndnn Shipping Company, 2 H. & M. 404.

2 Dickeiuiiin v. Grand Jiinctvm Canal, 15 Beav. 260 ; but see Lhtud v. Lotidon, Chatham .(• Ducei-

Railway Company, 11 Jnr. N. S. :{80: 13 W. R. 698. L J.J.
H Ibid. 4 Slomnn v. Walter, 1 Bro. C. 0. 418.

5 Oh this point see 1 Sicanst, 318, n. ; Siiiaffr v. Fi'rya-son 1 MoN'. & U. -iHti: 14 Jiir. :>,')5 ; Calm v.

Simt, 5 De G. M. & G. 1 : 18 Jur. (iSli, «85.

INJUNCTIONS AND RESTRAINING ORDERS.

1687

iiling

1 the
[lot, it
i been
dXi the
of the

[iBt the
ement,
Linposi-

as thus
ts been
lect, the
atent of
sure the
stead of
tve fixed
paid in
loui't of
noticed
of such

restrain
^here a
which
paying
ifter the
mgli the
mi town
lland, of

tn .{• Dm-f
1)5; Coll'' "•■

a person who, after having paid some instalments on a lease,
neglected to make a further payment, and forfeited the instalments
he had paid.^ And though relief has sometimes been given against
the forfeiture of a covenant for renewal,^ which, in Ireland, formed
a distinct head of local Equity,^ yet the inclination of the Courts is
to the contrary : unless the right has been forfeited, in con-
sequence of fraud, accident, mistake, or any similar Equity.*

A common instance of this species of relief is that which is given
against a clause of re-entry for non-payment of rent. This has
been a ground of equitable interference from the earliest times ;
and there has been a parliamentary recognition of the doctrine by
Statute 4 Geo., II., ch. 28, sections 2 and 3. This relief is granted
upon the principle that compensation is made to the landlord by
the payment of the rent with interest : a doctrine contradicted by
general experience, and often found fault with as imperfect and
unjust.^

Lord Northington appears to have been of opinion, that the
Court might, by analogy, relieve, where a tenant had committed a
forfeiture by cutting down timber." It is, however, scarcely neces-
sary to remark how extremel}'^ inadequate pecuniary compensation
must generally be in such a case ; and it is probable, if the question
is ever maturely considered, that a contrary determination will be
come to.

Where it is clear that the covenant is of such a nature that a
Court of Equity cannot make a compensation for the breach of it,
as in the case of covenants not to assign without licence,' relief
will not be given against the penalty. Considerable discussion has
taken place, how far the Court would relieve against a forfeiture
incurred by the breach of a covenant to repair. In the case of

1 Sparka V. Liverpool. Water Wnrkx Company, 13 Ves. 428.

2 Jhiirntorm v. lioitly, 4 Bro.C. C. 415.

3 O'Xiil V. Joiien, 1 Riilsf. 170; Kniw. v. Hamilton, ib. 180; Batcman v. Murraii, ib. 187 ; Hiii/le v.

IjllMi'lht, ib. ;{84 : Vein. & Scriv. i;i5 ; Mnjrath v. Lord Musleerrii, ib. I6i) : 1 Kidyr. 409 ; Jac.kxon v.

Sanmiem, 1 Sell. & Lof. 443: 2 Dow. 437 ; Lennoii v. Nappi'r, 2 Sell, i'^: Lcf. (>82 ; Magrmie v.

Archbold, 1 Dow. 107; Karl of Mount iwrris v. White, 2 ib. 4.59; Barrett v. Bvrke, 5 ib. ,1;

Keatidtj v. Sparrow, 1 Hull. & H. 3()7 ; Jemip v Ki:i/), 2 ib. 81 ; Barrett v. Pearxon, ib. 189.
I Allen V. )lUtoii, 1 Foiih. Eq. 432 ; Baiilei/ v. Corjmrati'on of Leominster, 3 Bro (J. 0. 52s) ; Bai/nham

V. Gui/'k Hospital, 3 Ves. 295 ; Eaton v. Lyon, ib. 690 ; Citi/ of Loiulon v. MitJ'oril, 14 Ves. 41.
' IIIU V. Ba retail, 10 Ves. 402, 405 : 18 Vea. 56, 61 ; Bracebridge v. Buckley, 2 Pri. 216 ; Ueynoldg v.

J' I ft, 19 Ves. 134, 140.
i. Sorth.-ote v; Dnke, 2 Kdeii, 319, .322: Aiub. 511.
7 ;»■«/'.• V. iVyc'rt(y, 9 Mod. 112; iroy(iA«», 525-5;W.

^,

1688

GENERALLY.

■I

Sanders v. Pope,^ Lord Erskine, upon the authority of a deter-
mination of Lord Macclesfield,^ expressed a strong opinion in
favour of the equitable jurisdiction ; but the doctrine, after full
and elaborate discussion, has been established to the contrary.-^
The same determination would, consequently, be made with
respect to the breach of a covenant to build : though the autho-
rities are conflicting as to the power to decree a specific perform-
ance in such case.*

3

Q
Q

i? "TCP

ql

Where the forfeiture of the lease at Law is admitted, the tenant
must show reasonable ground for belief that he is entitled to
equitable relief, before an interlocutory injunction will be granted
to restrain the landlord from proceeding to enforce the forfeiture.
It seems, also, that where the landlord is aware that the lease is
or must be forfeited, but stands by and allows the tenant to expend
money on the property, he will be restrained from proceeding to
enforce the forfeiture at Law.^

Injunctions or restraining orders may also be issued, for the
protection of a ward of Court from removal, ^ or marriage ; ^ in
cases of interplea'der ; ^ and to restrain a partner from acting in
opposition to the partnership agreement, or from depreciating the
partnership property.®

Courts of Equity will likewise prevent a person from setting up
an unconscientious advantage at Law, so as to interpose impedi-
ments to the just rights of the other party. Thus, if an ejectment

1 12 Yes. 282. 2 Hack v. Leonard, 9 Mod. 91.

3 Hill v. Barclay, 16 Ves. 402 : 18 Ves. 56 ; Braecbrkbje v. Buckley, 2 Pri. 200 ; Sokes v. Gibbon, 3

Drew. 681 : 3 Jur. N. S. 726 ; Sokes v. Fish, 3 Drew. 735 ; Job v. Banister, 2 K. & J. 374 ; 3 Jiir.
X. S. 93, L. C. ; and see Hannan v. South London Watencorks Coinpauy, 2 Mer 65, n.

4 There are two instances of specific performance decreed of covenants to rebuild : City of Loiidon v.

Sash, 3 Atk. 512 : 1 Ves. «. 12 ; Allen v. llanUng, 2 Ec). Ca. Ab. 17, pi. 6 ; and, in Moseley v.
Virgin, 3 Ves. 184, Lord Uosslyn stated that specific perfonnance niijfht be decreed. Lords Tliur-
low and Kenyoii, on the other hand, have pronounced a contrarv opinitin : Krnnijion v. Aynesly,
2 Bro. 0. C. 341 ; Lucas v. Coitimerford, 3 Rro. C. C. 160 : 1 'Ves. J. 2;{5. That a ctnenant to
repair cannot be speciflually jjerfonncd, see Rayner v. Stone, 2 Eden, 128 ; Flint v. Brandon, 8
Ves. 159. And see Brace v. Wehnert, 25 Beav. 348 : 4 .Tur. N. S. 549 ; Sanderson v. Cockernmith
Railway Comj)any, 11 Beav. 497 ; Lytton v. Great Northern Railumy Company, 2 K. iV; J. 394:
2 Jur. N. S. 436 ; Soames v. Edge, Johns. 069 ; S orris v. Jackson, 1 J. Ai H. 319 ; Taylor v. J'or-
tinyton, 7 De G. M. & G. 328 ; Samuda v. Law/ord, 4 GifT. 42 ; Fry, 21 ; Woodfall, 477. asto-^ipe-
cific performanca of covenants of this nature.

5 North Staffordshire Steel Company v. Camoys, 11 Jur. N. S. 556, L.J J.

6 See ante. For cases, and forms of orders, see Setun, 713-721.

7 A nte. For ca-ses nvd forms of order, see Seton, 727-732 ; and see Pea fee v. Crutehjield, 14 A'c.

8 Ante. For cases, and forms of orders, see Seton, 902, fl6.'f.

//«« V. Hall, 12 Beav. 414, 419 ; 20 Beav. 139 ; Marshall v. Watson, 25 Beav. 501, 504 ; Turner v.
Major, 3 Gift. 442 ; Bradbury v. Diekens, 27 Beav. 63 ; and for cases, and for forms of orders, s€«
Setun, 917, 918.

"■!.■
iV-'i,'

INJUNCTIONS AND RESTRAINING ORDERS.

1689

deter-
ion in
er fuU
trary. "^
e with
aiitlio-
3rforin-

\ tenant
itled to
granted
rfeiture.
lease is
3 expend
eding to

for the
age ; ^ in
icting in
bting the

itting up

impedi-

iectment

V. Gibbon, 3

. 374 ; 3 Jur.

n.

Vij Ltiiulon V.

)ii Moseley v.

Lords Tliur-

V. Aiinedy,

covenant to

Bmnilnn, 8

'Jockeriiioutk

Ik. .'*c J.;m:

p)U)r V. I'm--
177, as to sp*^

Ueld, 14 Ve=

Turner v.
|)f orders, se«

is brought to try a right to land, the Court of Chancery will
restrain the party in possession from setting up a term of years,
or other interest, in a trustee, lessee, or mortgagee which may
hinder the fair trial of the right ;^ but this will not be done in
every case : for, as the Court proceeds upon the principle that the
party in possession ought not, in conscience, to use an accidental
advantage, if there is any circumstance which meets this principle,
the Court will not interfere. Therefore, if the possessor is a pur-
chaser for valua))le consideration, without notice of the title of the
claimant, this is a title, in conscience, equal to that of the claim-
ant ; and the Court will not restrain the possessor from using any
advantage he may be able to gain to defend his possession. ^

Where repeated attempts are made to litigate the same question,
which the Courts of ordinary jurisdiction will, in many cases,
admit, the Court of Chancery will put an end to the oppression
which may be occasioned by the abuse of this privilege. Thus, as
a judgment in ejectment is not final or conclusive, but the same
proceedings may be repeated for ever, a perpetual injunction will
be granted, to prevent the repetition of them, when the assertion
of such right becomes oppressive to the opposite party .^ It is on
this ground that Courts of Equity have interfered, by bills of
peace. »,

The object of an interlocutory injunction is to maintain the
matters in question in the suit in statu quo, until tht> hearing of
the cause ;'^ and the Court, will not, therefore, except under very
special circumstances, grant, upon an interlocutory application
before decree, an injunction which virtually directs the defendant
to perform an act.'' There is, indeed, a passage in the MS. report
of the case of Worden v. Ellers,^' from which it may be inferred to
have been Lord Hardwicke's opinion that the Court might, upon

1 Ld. Red. 134 ; Bond v. IJi>2)kim, 1 Sch. & Lef. 412, 430 ; t'ulteneii v. Wairen, 6 Ves. 89 ; Leigh v.

Leigh, 1 Sim. 349.
•2 Jerrard v. Saunders, 2 Ves J. 454, 457, 458 ; Mauiulrell v Mauiidrell, 7 Vcs. 567 : 10 Ves. 240 ;

Laker v. Mellish, ib. 544, 549 : Ili/ltoti v Morgan, (i Ves. 293 ; Byrne v. Byrne, 2 Sell. iSc Let'. 537 ;

Barney v. Luckett, S. it S. 419 ; Xorthey v. J'earce, ih. 420.

3 Lord Bath v. Sherwin, Prec. in Oh. 2«1 ; 4 liro P. C. ed. Tonil. 373; Leightonv. Leiyhtua, 11 P.

Wnis. 071 : 4 Bro. P. C. od. Tonil. 378 ; Devonshire v. Scwenham, 2 Sch. & Lef. 199, 211 ; Hodgson
V. Diice, 2 .Jur. N. S. 1014, V. 0. S.

4 Laartnce v Austin, 11 Jur. N. S. .576, 577: 13 W. R. 981, M. R.

5 Blakemure v. (jllauiorgannhire Canal Company, 1 M. & K. 154; Great tt'cstcrn Railway Company

V. Birmingham .{• Oxford liailtvay Company, 2 Phill. 297: 12 Jur. 100; Shrcicsbury <[• Chester
Railway Company v. Shrewsbury d: Birmingham Railway Company, 1 Sim. N S. 410: 15 Jiir.
648.

6 18 Dec. 1739 ; 6 Seryt. Hill's MSS. 2 ; and 12 ib. 76 ; Eden on Inj. 199.

1690

GENERALLY.

iQ

Ul

motion, order the defendant to pull down a building which was
clearly a nuisance to the plaintiff ; and there is an early case in
Tothill, of an order to show cause why a defendant, who had
ploughed up ancient pasture land, should not lay it down again in
grass.^ The contrary doctrine is, however, now firmly established.
In the case of Ryder v. Bcntham,'^ Lord Hardwicke, upon a motion
for an order to pull down certain scaffolding, observed, that he
never knew an order to pull down anything, made on motion.
Lord Thurlow, in a subsequent case, upon a motion to restrain a
party from digging a ditch, and to compel him to put everything
in the same state in which it was before by filling up so much as
ho had already dug, refused the latter i^art of the motion.'^ So, in
another case, Lord Eldon refused an order, specifically to repair
the banks of a canal, stop gates, and other works.* In the case of
Hooper v. Brodrick,^ an injunction was granted, ex parte, restrain,
ing the defendant from discontinuing to use certain premises as an
inn : but was dissolved, upon the ground that there was no jmis-
diction to restrain a person from not keeping an inn : which i^ the
same in effect as ordering him to keep one. ' ,

But though the Court will not, directly and in terms, compel
the performance of an act upon motion, yet there are many cases
in which the effect may be indirectly obtained by an order merely
restrictive. Thus, in the case of Robinson v. Lord Byron,^ the
effect was obtained by an injunction restraining the defendant from
preventing the water from flowing in such regular quantities as it
had ordinarily done, before the day on which the alleged nuisance
commenced. In Lane v. Neivdif/ate,'' a similar effect was obtained,
by restraining the defendant from impeding the plaintiff from
navigating, using, and enjoying a canal, by continuing to keep mi
canal, banks, or works out of repair, by diverting the water, o.:
preventing it, by the use of locks, from remaining in the canal, oi'
by continuing the removal of a stop-gate.

2 1 Ves. S. 543.

4 Lane v. Seivdigatc, 10 Ves. 192.

1 liolh V. Afiller, Toth. 144.
3 A )ion., 1 Ves. J. 140.
r> 11 Sim. 47.

6 1 P.ro. C. C 588 ; and see Ilervey v. Smith, 1 K. i!fc .1. 380.

7 10 Ves 192 ; and see i<««7a?i V. /Inskigson, i Him 13; lUaclonwe v. Olamitiujanshiir Canal Sai-:-

ijatiun, 1 M. k K. 154 : S/joicvr v. LondunS^ JUnninijIiuiii liailirayCoiiijiniiii sSini.193 ■,Goudah
V. Goodalc, 16 Sim. 31(i: Shewnbun/ A Chester Jiaiimn/ CiDiipnmj v. Shrewntniru i(' liinninijhiim
Jlnilteay Cowpany, 1 Sim. N. S. 4io : 15 Jur. 548 ; Whittnlwr v. lloire, 3 Beav. 383, 389 ; Ranhn
V. Ea>it <0 Went India Docks Railway Company, 12 Beav. 298, 305 ; Greatrexv.Greatrex, 1 DeU.
& S. 092 : 11 Jur. 1052 ; Lumley v. H'aynci; 1 Oe G. M. & O. 604: 10 Jur. 871 : 5 DeG. & S. 486;
Isenbergh v. East India Home Company, 10 Jur. N. S. 221, L. C. ; and Seton, 936, 937.

INTERLOCUTORY INJUNCTIONS AND RESTRAINING ORDERS. 1691

cli was
case in
ho had
igaiii ill
Wished,
motion
that he
motion,
itrain a
erything
much as
' So, ill
0 repair
} case of
restrain -
3es as an
no jiu-ib-
ch if the

, compel
,ny cases
ir merely
ron,^ the
,nt from
lies as it
uisance
(htained,
liff from
[keep UiC
^ater, f.:
3anal, or

J ana I Xari-
|li»3 ; Gooddh
hiriuini)hi(m
BS9 ; Eankin
\trex, 1 De (i.
& S. 485 ;
137.

Interlocutor I) Injunctions and Restraining Orders.

Au injunction may be oblained at any time, in vacation as well
as in term, and whether the Court be sitting or not ; ^ and at
almost every stage of the cause.-' An application for an inter-
locutory injunction^ should, however, be made without delay : as
it may be refused, if there has been any delay or acquiescence on
the part of the plaintiff."*

An interlocutory injunction is merely a mode by which the
Court preserves the property in dispute, with the least injury to
all parties, until it can finally determine their respective rights.''
And it will not be granted, in a doubtful case, to restrain the com-
mission of an act for which, if wrongful, ample compensation can
be obtained in damages" at the hearing of the cause, while, by
granting an injunction, serious injury would be inflicted on the
party sought to be restrained, nor will the Court interfere, by
injunction, between the parties to a contract the specific perform-
ance of which it would refuse to decree." Where the rights of the
parties are doubtful, the Court will, on an application for an inter-
locutory injunction, consider the comparative injury which will
result from granting or Tvithholding the injunction,'^ as well as the
justice of the case as it appears on the evidence.^

On an application on behalf of the Crown for a special injunction,
it appeared that the acts and threats complained of occurred eight

1 TciAi'le V. Bank of EngUind, (5 V'es. 770.

2 Hacov V. Junes, i Al. & C. 4;53, 430 : 3 Jur. !)i)4. 3 A nte.

4 (Jorilin V. Cheltenham liailnay Catnpuny, 5 Heav. 229, 237 \Buxon v. Jamcn, 5 De G. it S. 80, 84:

16 Jur. 1.5 ; A ttornfji-Geiieral v. KaMake, 11 Hare, 205 : 17 .Jur. 801 ; Coles v. .Sii/i.-.-, Kay, 56, 70 ;
5 De G. M. & G. 1 ; IS Jur. 0S3 li«5 ; Great Western Jtailwni/ Coiiipawj Oxford, Wmxenter X-
Wulmrhamptun liailway Coui pa mj , 3 De G. M. cSt G. 341, 350 ; Attorney-General v. Shej/ield Gas
CoiJipani), ib. 304,327 : 17 Jur. 007, OSO ; Attorney-General v. Luton Board of Health, 2 Jur. N.
S. 180. V. C. W. -.Cooper v. Ilubbuek, .W Beav 160: 7 Jur. N. S. 457 ; Wintlc v. Bristol and
South tVaks Bailu-ay Company, 10 W. R. 210, V. C. W. A.s to the pruiciijles ou which interlocu-
tory injuuctioiis are jiranted, see also A Uorney-Oeneral Y. Cvrporation of Liverpool, 1 M. iSc G. 171,
210 ; Greenhahjh v. Manchester ct Birmingham Bailumy Company, 3 M. \- 0. 784, 791 \Bacon\.
.Jones, 4M. k'c. 334, 436: 3 Jur. 1)94; Williams v. Earl of Jersey, G. & P. 91. m\Uilton\. Karl
Granville, ib. 283, 292 : 4 Beav. l.SO ; J'iddiii;/ v. IIow, SSini. 477 ; Spotti-swoode v. Clarke, 2 Phill.
IM : 1 C. 1". Coop. t. Gott. 2.")4 : 10 Jur. 1043 i 1' inch in v. LondonA- Blackvall linilway Company,
5 De G. M. & G. 851 : 1 Jur. N. S. 941 ; Wood v. Sutclife, 2 Sim. N. S. 103 : 16 .lur. 75 ; Johnson v.
Wyatt, 2 De O. J. « S. 18 : 9 Jur. N. S. 1333 ; Lawrence v. A ustiii, 11 Jur. N. S. 576, 577 : 13 W.
R. 931, M. R.

5 Lawrence v. Austin, 11 Jur. N. S. 576, 677 : 13 W. K. 931, M. R.

6 See ante.

7 Garrett v. Bnmteud <(• Epsom Downs Railway Company, 11 Jur. N. S. 591 ;

Manro v. Wirenhoe <f' llrii/htlinifsea Jiailway Company, 11 Jur. N. S. 612 :

8 Iladley v. London Bank ofSeotla'iid. 11 Jur. N. S. o.vt : 13 \V. H 978, L.JJ.

9 Garrett v. Bansfead <f' Epsom Downs Railway Company, 11 Jur. N. S. .591 :

Munroe v. Wioenhoe d: livightlinysea Jiailirai/ Conipani/, 11 Jur. N. S
L.JJ.

13 \V. R. 878, L.JJ. ;
13 W. R. 880, L.JJ.

13 W. R. 878, L.JJ. ;
. 612 ; 13 W. R. 880,

¥

1602

INJUNCTIONS AND RESTRAINING ORDERS.

Q

Ul
Q

i-;'>

and eleven months before the filing of the bill, and the motion for
the injunction was made twelve morihs after the answer came in.
Held, that the application was too late.^

Where a bill was filed to restrain proceedings by a Township
Council on a resolution which named, it was alleged, a higher rate
than was necessary to raise the sum required for county purposes,
and the plaintiff allowed a term of the Common Law Courts to pass
before moving for an injunction, it was held : — following the decision
in Carrol v. Perth, 10 Grant 64 — that he came too late : — the proper
, course in such a case being to move at law to quash the resolution
or by-law.- Where the plaintiff's title was disputed, and the injm-y
of which he complained had been going on for three years, and
was not any greater at the time the plaintiff moved for an inter-
locutory injunction than it had l)een for three years before ; the
Court refused the motion.^

Where to an action on a bond for the rents of certain market
dues and fees, fraud &c., were pleaded, and upon the trial a verdict
passed against the defendants, who, after execution had been issued,
filed a bill in this Court for the purpose of having the bond declared
void on the ground of fraud &c., and for an injunction restraining
proceedings on the execution ; to this bill the defendants in equity
put in an answer denying the allegations of fraud, whereupon the
plaintiffs amended their bill, introducing further charges of fraud,
filed affidavits verifying these further jcharges, and moved for the
injunction prayed by their bill ; the motion was refused with
costs.*

Where the nature of the act to be restrained is such that an
immediate stoppage of it is absolutely necessary, to protect pro-
perty from destruction, or where the mere act of giving notice to
the defendant, of the intention to make the application, might be,
of itself, productive of the mischief apprehended, by inducing him
to accelerate the act, in order that it might be complete before the
time for making the application should have arrived, the Court
will award the injunction without notice, or even before service of

1 Attorney-General V. Mcljauchlin, I Grant 34.

2 Grier v. St. Vincent, 12 Grant, 330.

3 Rich V. Brantford, 14 Grant, 83.

4 Walker v. The City of Toronto, 1 Grant, 502.

tl
ft!

otion for
came in.

'ownship
^hei' rate
(urposes,
s to pass
decision
le proper
esolution
lie injury
jars, an<l
an inter -
fore ; the

Q market

a verdict

en issued,

I declared

strainin}^

in equity

upon 4ilie

fraud,

d for the

3ed with

that an

tect pro-

otice to

ight be,

eing him

fore the

le Court

rvice of

INTERLOCUTORY INJUNCTIONS AND RESTRAINING ORDERS. 1C98

the copy of the bill ; ^ but the Court is more strict, in requiring the
facts to be fully state tl, on an application made ex parte, than on
an application made on notice, and upon which the other side does
not appear.- Where an injunction has been granted on an ex parte
application, it will be dissolved, without regard to the merits, if
any material facts have been suppressed/^

An ex parte injunction will be granted to restrain the negotia-
tion of a bill of exchange, where it has been fraudulently or impro-
perly obtained ; for, as it would be a good bill of exchange, and,
therefore, a negotiable instrument in the hands of a honajitle holder,
the plaintiff has a right to be protected from that danger, and the
mischief attending it.* An injunction will also be granted to pre-
vent the personal representative of a testator from receiving the
assets, when he is either insolvent, or wasting the property in such
a manner that there is a great danger of its being lost : although,
to induce the Court to interfere against an executor, a strong
special ground must be made.^ An ex parte injunction will like-
wise be ordered, in suit for specific performance, to restrain a
vendor, who has contracted to sell his property to another, from
conveying away the legal estate in the premises."

Ex parte injunctions have also been issued, in cases of obstruction
of ancient lights ; ^ and in many other cases, where the danger to
the interest of the party applying was imminent. Thus, where a
foreign vessel was driven into Plymouth by stress of weather,
Lord Eldon, at the instance of tlie supercargo and part owner,
granted an injunction to prevent the master from selling the ship's
cargo, till answer or further order, Ui^)on an affidavit that he had
heard the captain was about to do so, and on certificate of bill
filed.** And an ex parte injunction was granted, in like manner, to
restrain the proprietor of a coach, who had sold the goodwill of his

1 See Setoii, 871. For form of order, see ib. 807.

2 McLaren v. Stainton, 1(5 Beav. 279, 290.

15 Hilton V Earl Granville, 4 Beav. 130 ; C. & P. 283 ; Clifton v. liobinson, 16 Beav. 355 ; Hetnphilt
V. iTKentia, 3 Dr. & War. 183 : Sjmrgemi v. Hooker, 1 De G- & S. 484 ; Castelli v. Cook, 7 Hare,
89, 04;13Jur 675 ; Dalglish \. Jarvie, -i M'N. & G. 231: 14 Our. 945 ; Pinchin v. Lomlon ,V
Blachivall Raihray Company. 5 De G. M. & G 851 : 17 Jur. 241 ; Phillips v. Prichard, 1 Jur.N.
S. 750, V. C. W. ; Fuller v. Taylor, 9 Jur. N. S. 743 : 11 W. R. 632, V. C. W.

i Patrick v. Harrimn, 3 Bro. C. C. 476 ; v. Blackwood, 3 Anst. 851 ; Smith v. Hayttiell, Amb.

66 ; Hood V. Anton, 1 Russ. 412 ; Lloyd v. Gurdon, 2 Swanst. 180 ; ante.

5 Middletnnv Dodiwell, 13 Ves. 266; Manxficld v. Shaw 3 Madd. 100.

0 Echliff v. Baldwin, 16 Vos. 267 ; ante.

7 Attorn^y-Gensral v. Xichot, 16 V&s. 338 ; Back v. Stacy, 2 Russ. 121. For cases on this subject,

see ante.

8 Delafield v. Guaruibeus, MSS. 20 March, 1809.

i

1C94

INJUNCTIONS AND RESTRAINING ORDERS.

.il

business, and undertaken not to set up another coach on the same
road, from running a coach contrary to liis undertaking.* So also.
whore the representatives of a mortgagor had obtained the mort-
gage deeds from the mortgagee, by fraud, Lord Eldon, upon
atH(hivit and certificate of bill filed, granted an injunction to
restrain the defendants from selling or mortgaging the estate ; and
ordered the deeds to be brought into Court immediately.'^

It sometimes happens that, upon an application, ex parte, for an
injunction, the Court will, if it thinks that the case is not so urgent
as to require its immediate interference, or that the affidavits hi
support of it are not positive enough, order nt)tice of the application
to bo given to the dc fendant.-^

It is not usual now to grant an injunction, on an ex parte appli-
cation. The general practice, in such cases, is to grant what is
called an interim order : by which the defendant is restrained,
until after a particular day mentioned : liberty being given to the
plaintiff to serve notice for an injunction for the day before such
day. The plaintiff is also required to give an undertaking to abide
by the order of the Court, as to any damages the defendant may
be put to by reason of the interim order ; and such other terms are
imposed upon him as the nature of the case may require.* The
undertaking is ordinarily given through counsel, and forms part
of the order ; but where the order is granted in vacation, without
the attendance of counsel, the undertaking is inserted in the
Kegistrar's book, and signed by the plaintiff or his solicitor.'
Where a limited company is the plaintiff, the undertaking must be
given by some responsible person." The undertaking is irrespective
of the suit ; and is, therefore, not vacated by the bill being sub-
sequently dismissed.^

1 WiUiam>^ v. M'lllkniin, 2 Swanst. 'I'^Z ; anU'.

2 WiilUx V. U'/«/.sMSS. Nov., 1802.

3 See Lord lUiron v. JolDinti')).. 2 Mer. 2i).

a. .■),};) . ii >v. IV. i>/u, mro, v. <j. i\. , ocuui, oiv. i v^i lui....^.
5 Setoii, K70. For form of order in .such e.-we, .see ih. 807, No. 3.
V, An<it<>-DuiuihlanC(»iipmi!/(Liti)ited) v. liiiiji-rxmi, \OJi\r. 'S. i^i. 87, M.R.
7 Scwbii V. Ihti-Hson, 7 Jur. N. S. 9S1 : 9 W. K. 849, L. J.I. ; overruliiif. S. C. 1 J. & H. 678 ; and .see,

as to the undertaking' and a.sse.ssnient of daniat?e.s De Mattofi v. Gihsnit, 1 J. & H. 79 : 7 Jur. N.

S. 282 ; Simthworth v. Taylui; 28 Beav. Cl(i ; Jiiiigl'.-n v. Marshall, 11 W. U. 1018, V. C. VV. »>»•

form of order for inquiry as to damages, see Setnii, 808, N'o. .1.

INTERLOCUTORY INJUNCTIONS AND RESTRAINING ORDERS. 1695

the same
So also,
the mort-
ion, upon
inction to
jtute ; and

rtc, for an

so urgent

ti<hivits m

pplicatiou

arte appli-

it what is

restrained,

ven to the

lefore such

igto abide

dant may

terms are

ire.* The

brms part

, without

d in the

olicitor.^'

must be

.•espective

leing sub-

947, L..T.I. ;
:ejiel(i v. Duhv
ter, 10 Jur. N.

1 678 ; and see,

|7t) : 7 Jur. N.

C. \V. For

The application for an injunction in made by motion.^ If it is
not made ex parte, a notice of motion must be served in the usual
manner ; ^ and if it is intended to serve the notice of motion before
the expiration of the time limited for the appearance of the defend-
ant, or to make the application on short notice, the special leave
of the Court must be first obtained ; and the fact that it has been
ij[iven must be stated in the notice of motion.^ Leave will be given
to serve the notice of motion with the copy of the bill ; but not to
serve it before the bill is filed.'*

Strictly speaking, after the defendant hr.s appeared, a notice of
motion should always be given ; but in oases of urgency, where the
threatened mischief is imminent, and would be irremediable, this
will be dispensed with.^

An application for an injunction must (except in the case of a
bill of interpleader)," be supported by affidavits, or the admissions
of the defendant in his answer. Formerly, the answer was taken
to be true ; and affidavits, except under special circumstances,
could not be read against it ; ^ but now, in applications for an
injunction, or to dissolve an injunction, the defendant's answer is,
for the purpose of evidence on such application, to be regarded
merely as an affidavit of the defendant ; and affidavits may be
received and read in opposition thereto.^

The affidavits in support of an application for an injunction are
usually made by the plaintiff ; but they may be made by any per-
son acquainted with the facts. Thus, an injunction was granted
to restrain the publication of a work sold as the plaintiff's upon
an affidavit by the plaintiff's agent : the plaintiff himself being
abroad.^

1 It may .also be inadc by petiti(M) ; but thi.s is not done in modern i)ractlce. As to motions, see ante.

It is said that, in vacation, tlie a]iplication should be made by petition : Wijatt'x P. K. 2t>2 ; Suiitli

V. Clarke, 2 Dick. 455 ; yiclioln v. Keai-xley, ib. (J45 ; but this is not the present practice.
•i Ante,
i Jiamnhdttom v. Freeman, 4 Beav. 145 ; Hill v. liiinell, 2 M. & C. (541 ; Jucklin v. tt'llkins, 6 Beav.

607 ; Moggridge v. Thmimis, 2 C. P. Coop. t. Cott. 166; Xeivtonv. Churlton lOHare, App. 31 ; and

see ante.
4 SimmiDig v. HeavinUle, 22 Beav. 412 ; contra, Parker v. Great Xorthern liailwaij Coinpani/, 4 De

G. & S. 138 ; Fonbrodk v. Woodcock, 12 .lur. O.'iO, V. C. E.
■) Maraxeo v. Boiton, 2 Ves. S. 112; Alter v. Joncx, 15 Ves. 605; llarriaoii v. Cockcrvll, 3 Mcr. 1 ;

Collard y. Cooper, <i Mad. li)0 ; Perrg v. Welli;r,'i Uuss. 519; Acrainan v. lirixtol Dock Com-

paiiji, 1 R. & >I. 321 ; Petleg v. Eaxtern Conntien Railway Coinpatiy, 8 Sim. 483 ; Langhain \.

Great Northern Railwag Compami, X I)e 0. ,S: S. 486, 49".
li Hamilton v. Marks, 5 De G. & S. (i38 ; and see ante.

7 Sec Rock V. Mathews, 2 De G. & S. 227, 234 ; distance v. Cunningham, 13 Beav. 363.
^ 15 and 16 Vic. ch. 80, sec. 59 (Imperial) ; but we have no provision similar to this.
'.» Lord Bjinm v. Johnston, 2 Mcr. 29 ; but see Mollctt v. Eneijvi.st, 25 Beaw 609 : 4 Jur. N. S. 1009.

'■^•>

1690

tNJt'NCTIONH AND RKSTHArNlNO ORDKKS.

- The iithdavits must be Hworm jiftur tlio hill is filed : othnrwiHc
they cannot he read, hh they have not heen made in a caUHe.' 'I'lic
office copies of the affidavits ought to he in Court at the time when
the injunction is moved for ; and an injunction has heen dissolvcul
on the ground that the office copies of the afUdavits, upon which
it was granted, were not actually in Court when the order was
pronounced. -

It is, in general, necessary that a pliiintiff should swear posi-
tively to his title. An injunction has heen refused when a plaintitV
merely swore, upon his infornuition and helief, that he was a
remainderman under a settlement.'* A statement that the plaintitY
is entitled in fee simple has also heen considered insufficient, as
bchig too general : he must set out his tith' particularly.^

Upon the name principle, it is requred that, where an application
to restrain the violation of a patent right is made ex parte, or tin
validity of the patent is dtaiied, the plaintiff should swear as to his
belief at the time of making the application, (and not as to his l)elit'f
at the time he obtained the patent,) that he is the original
inventor.'"'

The evidence must also prove some actual violation of the plain-
tiff's rights, or a sufficient ground to apprehend it. Thus, in casts
of waste, an affidavit merely as to belief that the defendant intei)ds
to commit waste, without stating any grounds for it, will not he
sufficient: there must either be some fact, like the sending a sur-
veyor to mark out trees, or some threat ; ^ and where the applica-
tion relates to a matter which is merely pecuniary, the Court must
be satisfied that there is some probability of the bill not being dis-
missed at the hearing.'^

The affidavits on which an ex parte injunction is applied for
must (to guard against abuse of that process) present a candid

1 t'raiic.otiip V. Francnmc, 11 Jur. N. S. 123: 13 W. R. 355, L. C. ; f<n\tya, Fennall v. lifni-n. I^.Iiir.

10.il, V. 0. VV.
•2 Javksmi v. Cansidii, 10 Sim. H2(i ; JilMii v. Adaiiiji, 4 Giff. 308 : 9 Jur. N'. S. 788, ^'. ('. S.

3 Duvii'n V. Leo, (i V'es. 784.

4 Whitelegnw Whiteleiiq, 1 Hro. C. C. .57.

5 Hill V. Tlwuipgitn, 3 Mcr. «22, (i24 ; Sturz v. Z>« ha Rue, 5 Ruhs. 322, 328 ; Whittoii \. Jennimif., 1

Dr. & Sim. 110: S. C. mm. Whittm v. Jenniiigx, 0 Jur. N. S. KM ; Mn>i"f v. Spi-iice. 1 .J. i H.

87 ; ante.
(i Gihunn V. Smith, 2 Atlt. 182 ; Jaclemn v. Cator, 5 Vea. 688 ; Hanson v. Gardiner, 7 Ves. 305. 30!' :

Etchi'x V. Lance, ih. 417 ; Hanna^i v. M' Entire, 11 Ves. 54 ; and see Bird v. Lakf. 1 H & M. 111.
7 Attonmi-General v. Mayor, Ac, oj Wigan, 5 Do G. M. & 0. 52 : 18 ,Jur. 200, :100.

INJUNCTIONS AND RESTUAININU OHDKRS.

1G07

iHe.> Tlic
iiiH' \\\wn
(liHHolvod
)()ii wliicli
)r(U'r W118

ear poHi-
Li phiintiiy
lie was tt
e plaintiff
[icient. as

pplicatioii
'te, or the
I' as to liis
) his holief

L^ onsunii

.he piaiu-
s, in cases
lit iuti'iuls
ill not l)e
inp; a snv-
e appHca-
3iirt must
heing dis-

)plie(l for
a candid

lifiiivn, y-i .Iiir.
'. S.

V. Jenn'iHiix, \
■nee, 1 J. & H.

Ves. aof). aOit :
1 Hit M. 111.

statement of the whole case, and must bct forth not only thtt facts
whicii the plaintiff thinks to be material, bnt such as are in truth
material to the determination of the application : an i junction
ol)taiiied on affidavits in which this rule is not observed, will be
dissolved on that ground alone, independently of the merits.^

In moving' for an injunction vx parte, the affidavits on which the
application is founded must set forth the facts and circumstances
material for the Court to know, or the injunction will be dissolved,
even although the party moving did not consider the circumstances
to be material.- A motion iov an injunction was refused, the
allegation and prayer of the bill having been framed with a view to
relief on other grounds than those on which the application was
founded, although the affidavits in support of it contained sufficient
to warrant the Court in granting the injunction.'' An ex parte
injunction will be dissolved, if material facts be suppressed, or
misrepresented to the Court, on moving it.^

Order 285 provides that, *' On motion to obtain or dissolve a
special injunction, affidavits may be used to support or contradict
the answer."

Although the Court had refused to grant an ex parte injunction
to restrain the removal of certain chattels claimed by the plaintiff,
and directed notice of motion to be given, an interim injunction
was subsequently granted on an affidavit being tiled, shewing that
the defendants were in the act of removing the property, notwith-
standing the notice of motion had been served.^

Where a warehouseman had delivered warehouse or transfer
receipts to a party for one thousand barrels of flour, and afterwards
delivered out a portion thereof, at the instance of the party who
had left it in his custody, on the understanding that the quantity so
delivered out should be made up by other tlour to be brougJit to his
warehouse, and it appeared that such a course of dealing was in
accordance with the usage of the trade ; the Court refused an

1 Li'}i V. M,D(,imU, 2 Uraiit, ;{!»8.

2 iti'Maatfr v. CnUniraii, ({Grant, ")77.
I! AVi/ V. Wilson, 7 Grant, 103.

4 Fisken v. liutheiford, 7 U. C. L. J. 124.
f) Wilnwt V. Maitland, i Grant, f>m.

9
*

:>:•■■,■'

; I-

1698

INJUNCTIONS AND RESTRAINING ORDERS.

injunction to restrain the delivery of flour subsequently brought by
the same party to the warehouse, although such latter flour had
been assigned bona fide to the plaintiff who had made advances
thereon after it was stored, and although such flour had not been
manufactured at the time of giving the warehouse receipts,^ The
Court will restrain a vendor of goods from selling property pre-
viously contracted to be sold, if the vendee has not been negligent
in carrying out his part of the agreement.' The plaintiff filed a
bill for the protection of the timber on certain land which he
clnimed to own ; at the hearing the Court retained the bill, with
liberty to the plaintiff to bring an action ; the plaintiff brought the
action, and recovered a verdict for $20 ; it appearing that the
(question in issue was the plaintiff's title to the land, he was held
entitled to a decree with costs, notwithstanding the small amount
of damage which had been actually done by the defendant/* Where
a plahitiff filed a bill for an injunction and payment of damages ;
and it appeared that the wrongful act complained of had, without
his knowledge, been discontinued before the suit was commenced ;
held, that the Court had not jurisdiction to make a decree for the
damages. The defendant having neglected to inform the plaintift'
of the discontinuance, though applied to respecting it, before suit,
the bill was dismissed without costs.^

If the application for the injunction is ex parte, the party apply-
ing must deliver copies of the affidavits upon which it was granted
immediately upon the receipt of the usual request and undertak-
ing.^

The witnesses may also be examined orally, and be cross-
examined on their affidavits, in the manner before described f l)ut
unless the defendant gives notice that he intends to read his
answer on the application, he cannot be cross-examined upon it.'

] IhUI., 3 Grant, 107.

i! Mchenn v. Conns, 3 Grant, 112.

3 Mc Alpine v. Eckfrid, 1(3 Grant, 595.

•t Ih-ockimjtnn v. PaUncr, 18 Grant, 488, and see Radicay v. Coleman, 15 Grant, 50.

5 On\. 548 ; antf.

(1 Ante; lienenU'ivx v. Uvseuivn-s, Kay, App. 17; MorinanviUe v. Stunning, 10 Hare, App. 20:

yichols V. Jhbftnon, 7 W. K. 430 ; \'. 0. W.
7 Wiyhtnian v. Wheelton, ?3 Heav. ;J97 ; 3 Jur. N. S. 124 ; and sec Wliitton v. JcnniiK/K, 1 Dr. k Sni.

110 : S. C. nom. Whiitcv v. Jenning>,, 0 Jur. N. S. 104.

RS.

3ntly brought l)y
latter flour had
made advances
ur had not been
le receipts.^ The
ng property pre-
>t been negligent
) plaintiff filed a
. land which he
led the bill, with
intiff brought the
pearing that the
land, he was held
he small amount
fendant/* Where
lent of damages ;
d of had, without
was commenced ;
i a decree for the
form the plaintiff
g it, before suit,

I

INTERLOCUTOR V INJUNCTIONS AND RESTRAININ(; ORDERS. 1099

Under special circumstances, aftidavils filed after the motion is
open(^d may be admitted.^

An affidavit, which was properly hitituted in the cause at the
time it was filed, may be used, on a motion for an injunction,
although' the title of the cause has since been changed by amend-
ment.-

An injunction will not be ordered, if the bill contain any scan-
delous matter;'' and if a demurrer,* or plea," has been filed, it
must, except under special circumstances, be disposed of, before
the injunction can be issued ; and. for that purpose, it may. on the
application of the plaintiff', be ordered to be set down and argued
iusfunU'i' •/' but the usual course now, is for it to be brought on
and argued with the motion for the injunction."

If the bil' is amended, in the interval between the service of the
notice ri motion and the day for which it is given, a new notice is
necessary : and the plaintiff will be ordered to pay the costs
occasioned by the former notice,^ Where the plaintiff desires to
amend his bill during such interval, he should apply specially, by
summons, for leave to amend, without prejudice to the notice of
motion for the injunction."

■<,

I the party apply -
;h it was granted
it and undertak-

, and be cross-
described ;** but
ids to read liis
[imined upon it.'

Iraut, 00.
ing, 10 Hare, App- -iO :

rng,
Iv. JeiitiiniiK,

1 Dr. & Sin.

A motion for an injunction is now often converted into a motion
for a decree ; but wherever *^^is is done, the motion should be set
down in the cause book.^* If necessary, the motion will be directed
to stand over to a fixed day ; and terms will be imposed as to the

time for riling aflidavits."

1 Kant Lancnxhu-e Nailivii ^ Oo)npn>i/ V. Hatte.ftU'y, ii Hare, 72, 8(5; Smith v. Swansea Compani/,

9 Have, App. 20 ; Munro v. Wirfnhoe mid Brightlingtea Railwaii Cnmpnnii, 13 W. R. 880, L.JJ.;

ante,
i Hawes v. Bamford, 1) Sim. (JfiS.

% Davenport v. Daeenjiort, (! Madd. 251. As to scandal, SGeantf.
4 .1 nti; ; Cousins v. Smith, V.i Ves. 1H4 ; Jones v. Tai/lor, 2 Madd. 181 ; Coiuit v. Harris, T. & R. 610,

n. It" justice requires it, an injunction may, however, be issued : Wardle v. Claxton, 9 Sim. 412.
.■> Ante. ; Anon., 2 Atk. IVA ; IIvmphreif» v. Huinphrevs, '.i P. Wms. 395, 390; and see Evans v.

Cov,mtrij, .5 Ue (J. M. .V (J 911.
0 Anon. V. Bridgewater Canal Coinpany, 9 Sim. 378 ; and see Jones v. Taylor, 2 Madd. 181.
7 Seton, 872.
b JUartiti v. Fust, 8 Sim. 199 ; Gouthiraite v Rippon, 1 Beav. 54 : 3 Jur. 7 ; JUonypenny v. — ,

1 W. R. 99, V. C. T. ; London <i; Hliokwnll Railway Compami v. fAinehousc Board of Works, 3

K. & J . 12'A ; ante.
9 Martin v. Fust, iibi sup.

10 Oreen v. Low (No. 1), 22 Beav. 395. As to motions for decree, see ante ; and see M icklethwait v.

Mickletkwait, 1 Ue O. & .J. 504, 509 : 3 Jur. N. S. 1279, 12S0.

11 Seton, 871. For form of order, xee ib. 868.

83

1700

INJUNCTIONS AND KESTRAINING OllDERS.

The orders pronounced by the Court, in cases of interlocutory
injunctions, have varied at different periods.^ The form most
frequently adopted enjoined the party "till further order."^ In
some cases, the injunction has been till ** appearance and further
order ;" "^ in others, till "' answer and further order."* The form
now usually adopted is "until the hearing of the cause, or until
further order. "^ In the case of a bill of discovery, however, the
form is " until answer or further order.

"6

Q

Mi

Q

Ui

^

Where the question in the suit is distinctly raised on the motion
for the injunction, and is ripe for decision, the order on the motion
ought to declare the rights of the parties : in order that the
defendant may know what the Court consider.s to be the limit of
his rights.^

If the bill is for discovery in aid of the defence to an action at
Law, the plaintiff is, on making out a. prima facie case, entitled to
a full discovery ; and an injunction to restrain the proceedings at
Law will be granted, although his equity is displaced by the
defendant's evidence;^ but he must, in addition to verifying the
truth of the statements in the bill which are within his own know-
ledge, also swear to his belief in the truth of those which rest on
information derived from other persons.**

The injunction is often ordered, on the terms of the plaintiff
paying into Court the amount in dispute.^** On account, howevt-r,
of the greater rapidity with which a cause can now be brought to
a hearing, this course is not so frequently directed as it formerly
was." Security for payment of any damages which may be

1 It is said to have been usual to{;miit injunctions mi .surnriiscs, with a proviso m' ita xif : Fodriiiyhaiu

V. Chomelex), Carey .37.

2 iMne V. Mevxiiimtf,' 10 Yes. 192.

:» /yfrrd Orey De wUton v. Saxon, 6 Ve.s. 106.

4 Potter V. Chatnuun, 1 Dick. 14(> ; Rohinnon v. Lord Byron. 1 Hro. O. C. ."iSS : 2 Dick. 703 ; Drani
V. Molim, 6 Ves. 328 ; Lord Tainworth v. Lord Ferrem, ib. 41». It is stated in the report nf
Robinxoa V. Lord ftyron, ubi iiup. . in 2 0ox, 4,5, that the nijunction was till "aii.swiT or fur-
ther order ;"l)Ut this is a mistake : sec S. C. Reg. Lib. 1784, H. 148.

r> Seton. 870 ;i6. 867, Ko. 1.

fl Senwr V. Pritchard, V> Beav. 473; Lovell v. Gallovay, 17 Heav. 1 ; Ooddeen v. Oakeley, 2 Ih U. !■'.
& .J. 158; ante.

7 Cothcr V. Midland Railway Company, 2 Phill. i(9, 472.

8 Senior v. J'ritchard, ubi anp. ; and .see Lovell v. Ualloway, ubi xup. ; Fitzyirald v. Bult, 9 lliirc,

Apji. 65 ; Ilarrin v. Collet, 26, Beav. 222 ; ante.

9 JUollett V. KwaxMt, Ati Beav. 609 : 4 Jur. N. S. 1009.

10 Sherwood v. White, 1 Hro. ('. C. 452 ; Acton v. Market, 2 Bro. C. O. 14 : Culteyv. Ilickliny, ib. Wi.

Wenket V. Carnevali, ib.; 182, n. : Coylan v. Requeneaxt, ib. ; 18.'!, n. ; I'ottg v. Butter, ib. 1S4,
n. ; 8. C. novi. Pott« v. Butler, I Cox, .SJtO ; AimilHtead v. Durham, 11 Beav. 6.56, 661 ; A ml(rmi
V. Noble, 1 I>rew. 143 ; Stockport District Watenrorku Company v. Jowett, i;i W. K. 917, I.. (".
For form of order, see Seton, 875 Nt>. 4

11 Mailland v. Havkhovm. 16 Sim. f,V, 09: 12.Tur. 45, I.. C.

INTERLOCUTORY INJUNCTIONS AND RESTRAINING ORDERS. 1701

cutory
most
."2 In
further
e form
r until
er, the

motion
I motion
hat the
limit of

action at
ntitled to
edingB at
i by the
fying the
wn know-
h rest on

plaintiif

however,

rought to

formerly

may be

I ; Fodriiujhaiii

Ik. 708 ; I'riini
, the report of
[answer or fui-

tji. i IK- *;. ^'■

Bh«, 9 Hart.

Miuttei\ «*<■ "'*'
R. fll7, 1- ^'

awarded, in pursuance of the plaintiff 'b undertaking, is BOiuetimeB
required.^

If tlie object of the suit is to restrain proceedings in another
Court, the injunction will be awarded against the defendant, his
attorneys, and agents. If it is to restrain the commission of waste,
or any other inequitable act, it is awarded against the defendant,
his servants, workmen, and agents ; and these words will be
inserted in the order, although the bill and notice of motion only
iisk for an injunction against the defendant.^

Where the plaintiff sues on behalf of himself and others, it
seems that an injunction to stay proceedings against the plaintiff
(mly will be granted ; and not against the other persons on behalf
of whom he sues/^

An order for an injunction having been obtairied, it should be
drawn up, passed, and entered witl^v-ut delay/ It frequently
happens, however, (especially if the order is made in vacation,
when the offices are closed,) that the matter is so urgent that the
oltject of the injunction might be defeated if the party were bound
to wait till the order could be passed, and the writ issued upon it.
In such cases, the practice is to serve the party personally with
notice in writing, tliat the injunction has been ordered, and that it
will be sealed and served as soon as it can be passed through
the offices ; "' or else to procure a transcript of the minutes of the
order signed by the liegistrar, and to serve the same personally,
hy delivering a copy of it : showing, at the same time, the original
transcript so signed ; and either the notice or the copy of the
minutes will be sufficient to render the defendant, or other
person enjoined, guilty of a contempt, if he acts in opposition
to the injunction. In such case, however, there must be no
delay in getting the order drawn up, and the injunction issued ;
;nid serving it when obtained.**

1 Sec Seton, 808, No. 4.

•1 Seton, 869 ; and see Lord WtiUt-nlii/ v. Karl nj Munun^iUtn. 11 Beav. 180 ; 12 .liir. 3il7. For (onn

of order, see Seton, 8(17, No. 1.
:i Annitntcad v. Durham, 11 Bciiv. ;'i.'i<>, (>6\, ii.
4 See Hatemnn v Wiatt, U FJciiv. fi87.
.'> In country oa«e.s, the terin.-i of the injuneti'in, as soon a.sit is granted, iiro fieqiiently uoniniunicated

by ttilet^riipli to an avfent ; anil he i)reiiares therefrom and serves the fomiiil notiee mentioned in

the text
tl Kimptoa V. Knc, 2 V. .V IJ. :{4V) ; \'a}iKtuii(uii v. Uvsf, 2 .1. Ji \V. •i«4 ; M<'^<•il v. Garratt, C. K }'.

i)8 ; ."i Jiir. s;U5 ; and .see poi/t.

#.
t

■^

1702

INJUNCTIONS AND RESTRAINING ORDERS.

Qt.

The writ of injunction is preparad by the solicitor of the party.
It must be signed by the Clerk of Kecdrds and Writs, and sealed
with the seal of that office. The writ must be indorsed with the
name and ])lace of business of the plaintiff's solicitor, and of his
agent if am' ; or with the name and place of residence of the plain-
tiflf, where he acts in person ; and, in eitlier case, with tlie address
for service, if any.^

Unless substituted service has been authorised.' the service of
the injunction or restraining order must be personal ; and is
effected, by leaving with the person served'^ a true copy of the writ
or order ; and. at the same time, showing him the original writ as
duly issued, or the restraining order as duly passed and entered.^

If the person restrained from prosecuting any action or proceed-
ings in any Court of Law or Equity -disobeys the injunction or
restraining order, the remedy is by process of contempt against
him.

An interlocutory injunction may be dissolved at any time before
the hearing of the cause ; and is ijtso facto dissolved by the dis-
missal of the bill ; ^ or the allowance of a demurrer to the whole
bill : although leave to aruend may have been given.^ An injunc-
tion " until answer or further order " is not dissolved by the mere
putting in of a sufficient answer : an order for that purpose must
be obtained. '^

•

An injunction is not in general dissolved by a subsequent amend-
ment of the ))ill ;** but where the record was altered by the additit)n
of a plaintiff, it was held to have this effect.*

1 Onl. 40-41, ante.

2 See ante, Anditmon v. Lewis, i Bro. 0. C. 429 ; Lord Portarlington v. Graham, 5 Sim. 418 ; Kirk-

man v. Hvnnor, 6 B«av 400 ; Ueald t. Uay,9'W. R. 369, V. e. S.

3 As to service, in tlie ca.se of a corporation aggregate, see Carron Cnmjmny t. Maclaren, 5 H. L.

Ca. 4ie.

4 liraithxoaite't Pr. 228, 229 ; Woodward t. King, 9. Dick, 797 ; S. C. nom. Woodwardw EarlLincnln.

3 Swanst. 626 ; EUerton v. Thirsk, IJ. & W. 376 ; Oooch v. Marshall, 8 W. It. 410, \. C. VV.

5 Blisg V. Collins, cited 2 Mer. 62 ; Green v. Pvlsford, 2 Beav. 70, 75.

6 Schneider v. Lizardi, 9 Beav. 468 ; but see A tf.orney-Oenernl v, Marsh 16 Sim. 572 : 13 Jur. 317.

7 Ooddeen v. Oakley, 2 De G. F. & J. 168 ; and see Mollctt v. Enequist (No. 2,) 26 Beav. 466.

8 baviit v Davis, 2 Sim. 515 ; Warburton v. London <t Blacktmlt Uailioay Company, 2 Beav. 253 :

Brooks V. J urton, 1 Y. & C. C. 0. 271 : 6 Jur. 94 ; Kennedy v, Leuris, 14 Jur. 166, V. C. K. B. It
is not necessary, though usual, for the order giving leave to amend to state that the amendment
is made without prejudice to tiie injunction : ante, Seton, 873.
!» AUorney-Ovtkecal v. Marsh, 16 Sim. 572: 13 Jur. 317; and .see i>am' v. Davis, Warburton f.
London <fc Blaektvall Railway Company, and Kennedy v. /jcwis, mM sup-

INTERLOCUTORY INJUNCTIONS AND RESTRAININO ORDERS. 1703

party,
sealed
til tlie
of his
1 plain-
iddress

I'viee of
and is
the writ
. writ as
iitered/

proceed-

ction or

against

Qc before

the dis-

whole

mjunc-

he mere

ose must

he

amend-
additiou

m. 418; Kirk-
ircii, 5 H. li.

Earl Lincoln,
. C. W.

lis Jur. 317.
}. 4«6.

I, 2 Beav. 2y3 ;
T. C. K. B. It
he amendment

An application to dissolve an interlocutory injunction is made by
motion :^ of which notice should be given, in the usual manner.-
The notice should be given for one of the days appropriated to the;
liearing of motions ; but if it be important that the motion should
be made without waiting for such a day, applicttion should be
made to the Court, before the notice of motion is starved, for per-
mission to give the notice of motion for a particular day : and the.
fact of such permission being given should be mentioned in the
notice of motion.'* The plaintiff is sometimes, by the interim order
required to undertake that he will accept short notice to discharge
the order.*

It seeme that where an injunction is granted against several
defendants, one of them may move to dissolve, in the absence of
the rest.''' In an interpleader suit, however, the notice of the
motion to dissolve the injunc^' j. must be served on all the defend-
ants."

If the injunction was obtained on a misstatement of the facts,
the motion should be to discharge the order, and not to dissolve the
injunction.^

The application to dissolve an injunction must be supported by
evidence (which is usually given by affidavit,) on the part of the
defendant, in answer to that upon which the injunction was

obtained ; and the case, thus made by the defendant, may be met
by counter evidence on the part of the plaintiff.* The answer of
the defendant is, for the purpose of evidence on the motion to be
regarded merely as an affidavit, and affidavits may be received and
read in opposition thereto ;^ and at the hearing of the motion, the
defendant may avail lijmself of any technical objection to tlie bill
which would have been held good on demurrer.^"

1 Where a person not a party to the cause is injuriously affected by the injunction, lie inav, it seems,
apply by petition to set it aside : Bourbaud v. Bourbaud, 12 W. R. 1024, V. C. W. " As to peti-
tions, see atite.

•I In pressing cases, the Judge will appoint a special hearinjr at his house for tlie puritose.

3 Antf.

4 See Heton, 867, No. 1.

r> Jomph V. Donbkday, 1 V. & B. 497 ; Lewix v. Smith, 7 Beav. 470 ; Mortti/ v. ,/i»>liiii, V.i Bcav. 229 ;
Maciircgor v. Cunnintjhatii, 1(5 Sim. 305 : 12 Jur. a'Sfi , see, however, Thnmunoit v. (itnru.i
Beav. 1«1. ^ "'

« MaKtermaii \ Lewin, i I'hil. 182, 186; ante.

7 Attgier V. May, 3 W. R. 330 : 3 Kq. Rep. 4H8, V. C. \V.

8 As to evidence on motions, gee ante.
0 Order 285.

10 BarnflfifCa .a Company v. Tmbfll, 7 Beav, 31 ; Hiulxon v. Ma<tiHnon, 12 Sim. 410: 6 Jur. IIM.

1704

INJrN<^TI()Na AND RESTRAINING OUDRR».

Q
CI

^ ft.

.a:

Where an interim order has been made, and simultaneoiiH apph'-
cations are made, both for an injunction and to discharge the
order, the plaintiff is entitled to begin. ^

If, upon hearing the motion, the Court is of opinion that the
injunction was obtained by a suppression of material facts, or that
it was improperly granted, or that the case made by the plaintiff is
contradicted or not supported, it will order tlie injunction to be
dissolved, either with or without costs, as the justice of the case
may require.' If an undertaking as to damages has been given, the
Court may give directions for the ascertainment of the amount,
and order payment thereof to the defendant.^ But if the defend-
dent does not succeed in satisfyingthe Court that the injunction ouglit
to have been refused, or that it ought not to be continued, or tlie
Court considers that the defendant is estopped by his own lachrs
or acquiescence, the application will be refused and the injunction
continued.^

Where, in the case of a bill of discovery, an injunction until
answer or further order has been obtained against several persons,
who have jointlj' commenced an action at Law, it will not be dis-
solved until thej' have all answered.^

When the injunction has been granted until answer or further
order, a motion to dissolve it will not be entertained until the
plaintiff has had reasonable time to consider whether the answer
is sufficient.*'

The Court has refused to entertain a motion to dissolve .'in
injunction, pending' an application for the production of docu-
ments.'

•1 l'raHi:r v Whaleii, 2 H. & M. 10.

•' . ntt:, SpoUinwoode v Clarke, 2 Phill. 154 : I C P. Coop. t. Cott 254 : 10 Jur. 104;J ; Conj v. Yar-

'Mutli d- Snnuich Rnilwmj Coinpatin 3 Hare, 593 : Dalglixh v. Janic, 2 M'N. & tJ. 231 : 14 Jur.

""• . Gifut W'cuteni Railway Company v. Oxford, Wvrcenter A Wulwrhampton Jiailway Cnm-
'■'I, i' I»e (;. .t S. 437 ; liochdalf Canal Co'mjmnii v. King, 2 Sim. N. S. 7e : 15 ,?ur. Wi. For

' iiii of order, sue Setoii, 941, No. 1 ;i)42. No. 3.
■■ «i „:■■•■•, !ieton 868, No. 5 ; iuid ,soo Xfiwhy v. Harrison 7 Jur. N. S. 981 : 9 W. R. 849, L..TJ.
- • jton V. Pankington, 1 Dick. 101 ; AUorni'ii-Ct'uc.ral v. Burrums, ib. 128 ; Anon., 3 Atk. 48:');

^••l V. Ring'n College, CambrUige, 10 Hcav. 491 : 11 .)ur. 500 ; (Jlnmttt v. Lang, 3 M. k C. 4".!;

- .) ur. 909. For form of ordur, see Seton, 941.
5 Whiti' V. Stf-inwackn, 19 Ve.s. 8.3 ; Joneph v. Dtinhl'dag, 1 V. it U. 497 ; Xaylor v. MiUdleton, 2 Miid.

131 ; yannry v. Vaughan, 8 Sim, 439 ; and see Olaiuotl v. Coit])er Miners' Company, 11 Sim.

314 : 5 Jur. 204.
8 Gilmin v. Cliayten, 8 Beav. 1«7 ; but see Stanky v. Kowi, 5 Bea\ . 175 ; Crrxy v. Heavan, ib. 177, ii.
7 Storar v. JackHon, 12 .Sim. 503.

U -^

U8 appli-
arge tbe

that the
3, or that
laintiff is
on to be

the case
given, the

amount.
16 defend-
tion ought
ed, or the
iwn lacli'H
injunction

:tion until
,1 persons,
lot be dis-

or furtlar |
until the
lie answer

[ssolv<^ an
of docii-

, ; coni V. Y(^f-

Ici. -231 : 14 Jur.
Jiailway Cnvi-
.lur. mi. For

Iw, U.TJ.
hii., 3 Atk. 48:'.;
;< M. k C. 4:-l;

[fUlMon, 2 Miul.
liHpany, 11 Smi.

ivan, ib. 177. »■

INTERLOCUTORY INJUNOTIONS AND RESTRAININ() ORDERS. 1705

If the motion to dissolve is useless, the defendant will be
directed to pay the costs of it, whatever may oe the result of the
suit,*

Although the bill seeks merely an injunction, or an injunction
with an account consequent upon the injunction, and the result of
an in<piirv, or the trial of a question of fact, is unfavourable to the
plaintiff's right to the injunction, the defendant cannot on that
ground move to dismiss the bill. Where a lAotion of this nature
was attempted, after a case at Law had been certified against the
plaintiff. Lord Eldon refused it : saying that, upon the certificate
from the Court of Law, the case stood as if he had declared his
own opinion to the effect that the plaintiff' could not succeed in
his motion for an injunction ; and that the cause might still be
brought to a hearing : when the Court might entertain a different .
opinion upon the title.'-^

Although an injunction may be granted ex jjarte, and sustained
upon a motion to dissolve it, yet if, at the hearing of the causes
there be no evidence against tlie defendant, the bill will be dis-
missed."*

An injunction had been obtained against a defendant, and after
the limited time for putting in an answer had expired, an order
pro confesHo was taken out against him — he then gave notice of
motion to dissolve the injunction. Held, that the statements of
the bill having been confessed by his allowing the order pro confesso
to stand, precluded hiin from moving.^

Whore an c.r pai'tc injunction was served 24th December, and the

bill was not served up th 13th May following, the injunction was

dissolved for the neglect to serve. "'''

»

111 general, a party who is entitled to an injunction is also
entitled to the costs of it ; but if he has asked too much by his
notice of motion, he may be deprived of the costs to whieli he
would otherwise have been entitled.**

1 SdHoii v. Aiclwln, 4 K. & J. 475.

.: Uroiilce V. Clarke, 1 Swanst. ."^SO. ;{ liarfivld v. Kellij, 4 Uiiss. :i,j.")-:{.58.

i Manlji V. WUUmtvi, ■'i U. C. li. J., 163. .'> Heron v. Sinxhcr, 13 CJnint, 438.

U iloet V, Couxtun, 33 lluav. ."iTS : 10 .Jur. N. S. 1012.

%

1706

INJUNCTIONS AND RESTRAININ(; ORDERS.

Ui C.'>

Qc.

An interlocutory injunction or restraining order continues in

force, notwithstanditig the suit has abated ; and, in such cane, if

the party enjoined wishes to get rid of the injunction, he must

move upon notice that the plaintiff, or the persons representing his

interest, may revive within a given time, or else that the injunc-
tion may be dissolved.^

Contlnuhni or granting Injunctions at the Hearing.

t .

An injunction, which has been granted upon an interlocutory

application, is superseded by the decree made at the hearing of
the cause. If, therefore, it is intended that it should still remain
in force, it must ^be expressly continued.^ injunctions are con-
tinued at the hearing either provisionally or peraianently. They
may be continued provisionally, pending inquiries or accounts
which are preparatory to a final adjudication upon further consi-
deration. Injunctions may be permanently continued, or made
perpetual, by the decree, where the party enjoined is in possession
of some instrument conferring a legal right, which it is contrary to
Equity that he should be permitted to exercise to the detriment of
the plaintiff. Therefore, where the plaintiff gave to the defendant
three promissory notes for a particular purpose, on his undertaking
to make no improper use of them, but afterwards the defendant,
contrary to his promise, put the notes in suit against the plaintiff,
who thereupon filed a bill praying that the notes might be delivered
up to be cancelled, and that the defendant might be restrained, by
injunction, from proceeding upon them, the Court, at the hearing,
directed that a perpetual injunction should issue, and that it

should extend to restrain the indorsing and further negotiation of
the notes.**

The general course of the Court, where a party is in possession

of a security or other, instrument which it is against conscience

that he should use against the defendant, is, however, to direct it
to be delivered up and cancelled : a course which it will adopt even

1 Randall v. Mumford, 18 Ves. 427 ; Stuart v. AncHl, 1 Cox, 411 ; Hill v. Jloarc, 2 Cox, 60 :

Wheeler v. Malins, A Madd. 171; Adawnon v. IJall, T. & K. 258 ; and see ./one* v. Maniiey,
and Turner v. Cole, cited 3 Keuv. 292. As to the effect of abutcnieiit upon ii perpetual
injunction, see pnyf.

2 Seti /', 944 ; and lor torm of direction, see ib. 041, No. 2 ; 94.S, 944.

3 Ola V. Old, Seton, 105, No. 3.

4 Chenel v. Churchinan, 3 Bro. C. C. 16, n. ; Minsliair Iv. Jordan, ih. 17, u. ; and 'see ib. ed.'BeU, n.

(2) ; Harrington v. l)u Chatel, 1 Bro. C. C. 124: 2 Swanst. 158, n. ; S. C. ;»</»«., Harrington v.
Chattti'l, 2 Dicl4. 158.

CONTINUING OR (JRANTINO INJUNCTIONS AT HEARING. 170";

lUCB 111

jasc. if
' must
ing his
injuiu-

ocutory
iring of
remain
ire con-
. They
ic counts
er consi-
ur made
jssession
atrary to
riment of
ef end ant
ertaking
fendant,
plaintitf,
elivered
ined, by
hearing,
that it
iation of

»SSt;H810U

In science

Idirect it

)pt even

2 Cc>x, 50 -.

[^ V. Maiisey,

u perpetuiil

1. ed/BeU, n
Vr ring ton v.

where the instrument ik void in Law ; although it has been some-
times doubted whether this remedy is appHeable to cases of this
description: as the ciirumstances which render the instrumcint
void at Law might be shown or pleaded there, to any action which
might be brought upon such an instrument.^

The practice of extending injunctions at the hearing, so as to
reader them perpetual, is not confined to cases in which the party
is in a position to annoy the plaintiff by proceedings which he may
iiave a legal right to institute ; l)ut it is applied to prevtiut a con-
tinuation or repetition of acts for which the party has no legal
authority whatever. Thus, injunctions to restrain waste, or the
hifringement of a patent, may be made perpetual at the hearing.
So, also, may injunctions to restrain the piracy of a publication ; -
or to restrain the use by one tradesman of the trade-marks of
another ; •' but to support a decree for a perpetual injunction, the
Court requires that there shall be nothing like a doubt in the case.
Thus, where the defendant had, in two numbers of a periodical
publication of theatrical criticism, inserted detached extracts, to
the amount of six or seven pages, from a farce, the property of the
plaintiff, containing forty pages, which were interspersed with
criticisms, Sir William Grant, M. R., considered the question,
whether the defendant had transgressed the allowed limits of fair
extracts, too doubtful to warrant the Court in making a decree for
a perpetual iiijuncfcioii, and dismissed the bill with costs.*

In order to entitle a plaintiff to uii injunction at the hearing, it
is not absolutely necessary that he should previously have made
an interlocutory application for one ; * and he is at liberty then to
claim an injunction, although lie may have previously failed to
obtain one, or to support it when obtained.*' But where he has not

1 boe 2 Sivatut. 157, n., where the eases on this suhject are collected ; Simpnon v. Lord Uoroden, 3

M. & U. !)7.

2 Macklin v. Richardson, Amb. Bfl4, ti9« ; and for the order in that case, see Seton, 044, No. 2; Mattbif

V. Owen, 4 Burr. 2329, cited 13 Ves. 502 ; see also Cutburn v. Simmii, 2 Hare, 543 ; Kelly v. Hooper,
1 Y. & 0. 0. C. 197 ; Seton, i)08 ; ante.

3 MUUn^ton v. Fox, 3 M. & 0. ;{3S, 351.

4 Whittinghain v. Wooler, 2 Swanst. 428 : see also Baity v. Taylor, 1 R. & M. 73 ; and as to the fomi

of the injunction, whore the defendant sulmiits, see Attorney-General v. iJoi/ic, 10 Jur. N. S.
309, V. 0. W.

5 Baeon v. Spottixwoode, 1 Bcav. 382, 384 : 3 .lur. 47(J ; S. C. on appeal, nom. Bacon v. Jonex, 4 M. &

(!. 433 : 3 Jur. !«)4 ; Kodgerx v. yowill, « Hare, 325, 329 ; Cuddon v. Morley, 7 Hare, 202, 205 :
Dickenson v. Grand Junction Canal Company, 15 Beav. 200 ; Davies v. Marshall, 1 Dr. & Sm.
557, 500: 7 Jur. N. 8. 720, 722. As to the effect of laches or iic<piie8eence, see Attorney-General
V. Luton Board of Health, 2 .lur. N. S. 180,182, V. C. W. ; Patchiny \. Z>i(66mm, Kay, 1, »;
Johnxon v. tVyalt, 2 De G. J. & S. 18 ; 9 .lur. N. S. 1333.
f> Baity v. Taylor, ubi sup.

f

1708

rNJUNCTlONH AND RESTRATNINO ORDERS.

previouHly ol)taiiie(l an injunction, ho lias the obligation of makinf,'
out a clear and unexceptiynable title at the hearing impoBocl upon
him, and. if he fails in that, he will not be allowed to uho the facts
proved in the cause an evidence of a prima facie case, giving him a
right to further time, for the purpose of enabling him to estabHHh
more Hatisfactorily his legal title.

'm

Q
Ui O

|«';.

The principles above laid down do not, of course, ap^-ly to those
injunctions which are only granted at the hearing of the cause :
such as mandatory injunctions ; ^ injunctions to restrain the
setting up of outstanding terms ; and others of that description.

With respect to the cases in which the Court will decree per-
petual injunctions at the hearing of the cause, it may be mentioned,
that if a decree has been made for the performance of trusts, the
defendant will be perpetually enjoined from setting up a legal
estate in order to overturn it.- So, if a will is established against
an heir, who suffers the bill to be taken jivo ronfesso against him :
as that, in effect, is confessing he has no claim, if he permits the
decree or order, by which he is excluded, to be made absolute :
which is, in effect, admitting that if he had any claim he has
abandoned it : the Court will enforce the decree or order, until it
is duly reversed : and it will grant, for that purpose, a perpetual
injunction.'^

Perpetual injunctions will also be decreed, where tlie same
question has been frequently litigated in the same manner ; or
where it is likely to be contested in a multiplicity of suits. This is
the foundation for a bill of j^eace, where it is necessary to quiet
the rights, after repeated ejectments : for such a proceeding, unless
prevented, would become oppressive to the opposite party ; * or,
where there is one general right to be established against a great
number of persons : as, theriglit of a person against his parishion-
ers for tithes ; or the right of parishioners against a parson for a
modus ; <n- the rights of ;i hn-d of the manor against his tenants

1 Gulf V. Ahbot, S .Iiir, N. S. '.(87, V. <,'. K.

2 Anlrew v. I'oxiltercrs' Coinpanij, 2 Vus. H. HO ; RackiiKfhani v. Huekinqhain, 2 Kq. Cii. Ab. i>l. 11, 'dii.

3 Sclbji V. Selln,, 2 Dick. 678-

4 lj>'iglitun '■. Leigkton, 1 P. Wins. 671:1 Str. 404; 4 Hro. R C. ed. Toinl. 37.S ; D.vmi.

nhfr V. S'ew''nh(im, 2 Suh. fc Lef. 199, 211 ; Earl of Bath v. Shcrwiit, 10 Mod. 1 : 4 IJro. V. C ed.
Toinl. 373 : Hndiiaon v. Duce, i .lur. N. S. 1014, V. C. S. ; LowiuUh v. DettU', 10 Jur. N. S. ilA;

CONTINUIN(i OR ORANTINtJ INJUNCTIONS AT HKAKIN(». 17()0

for encroacliments ; or the right of the tenants against the lord for
disturbance : for, as the difficultieH would be iusupenible if each of
the partieH Hhould attempt to determine their particnhir rigiits by
separate and distinct actions, the Court will put tlu.' whole in
peace by a perpetual injunction.' An injunction will also be
granted at the hearing, whenever it iH necessary for the purpose of
complete justice :'- although it is not prayed by the bill,-*

As a general rule, an injunction can only be made perpetual at
tlie hearing of the cause : * and the plaintiff has a right to proceed
with his cause for that purpose, although he has obtained an
interlocutory injunction which has been acquiesced in by the
defendant/' By consent, however, the injunction may l)e made
perpetual, on an interlocutory application."

It is not usual to issue a second writ when the injunction is
made perpetual ; it may, however, be issued and served.'

An injunction which has been made perpetual is so far final as
to remain in force notwithstanding the abatement of the suit ;
for if it was necessary to revive upon every abatement, that would
be in effect f^j perpetual suit."*

Consequences of the Breach of an Injimction or Hestrahi'nKj Order.

The remedy, in the event of the breach of an injunction or
restraining order, is by committal ; and not by attachment."
What will be considered as a breach, depends entirely upon the
form of tlie iuj unction or order, and the nature of the act to bt'
prohibited.'" Any person who acts in contravention of it will bir
held tb have been guilty of a contempt, and may be ordered to be

\ ,Lnrd Tenhniiiy. Ucrbcrt, 2 Mk. iKi; Mniior •!/ Vorli v I'illriiititon, 1 Atk. 'iSL' ; Cuiijierx \. Lurd
Ahetyavfuiii/, il>. 285 ; but see Lord Sejtun v. Lord Sitlixlnay, 7 W. 11.272, V. C W.

2 Dickenson v. (irand •lunvtnm Canal Compaim, l'> Hoav. 2(iO.

3 lUowficld V. Hi/rc, 8 liuav. 250, 25!) : 0 .Iiir. 717 ; licii/icll v. S^ir.i/f, 1 l)e (!. M. & ii (tOO : but seo

Jtv,'<>!cll V. Limdon, Cliuthdin A- Dare r Hailirai/ Conij/nnii, 4 GitT. 40:!: S. ('. mini. i\onii<in
Scott- liuisxt'll y. Lundoii, C/nilliunt if Diinr liailway, 'J >h\r. N. S. 10()7.

4 Dai/ V. Sure, 3 V. & I!. 170 ; Seton, i)44.

5 DiiJcc of limvfort v. Morris, (i Hiire, 350 ; foe S 0. 2 Tliil. (iS3 : 12 .fur. (il4.

6 Seton, 944 ; Mornll v. J'carnon, 12 Heav. 284.

7 BraitlniKiite'gVr. 229.

8 Askew \. Todt'-nve/if/, 2 Dick. 471 ; S. C )ioiH. Agrvugli \. I'oitnjfnd, oited 3 Vcs. 197. As to the

effect of ahatciiieitt upon an interlocutory injunction, see ante.

9 Braithwaite'it Pr. 228 ; Seton, 945, 947 ; Angerstein v. Unnt, <J Ves. 488 ; (hmch v. Marshall, 8 W.

R. 410, v. e. w.

10 See St. Jokn'x College v. Carter, 4 M. & C. 497 ; S. 0. nom. St. John'* CtiH-ge v. Pratt. 3 Jur. 187 ;
Money v. Jordan, 13 Beav. 229,

1710

rONHPXjUENCEH OF A BREACH.

ooinmitted.' An injunction was issned restraining the defendant
from removing logs from a certain specified lot of land ; before-
this, he had removed the logs from the lot to the adjoining road
allowance, and after being served with the injunction he took these
away to his mill. The Court refused to commit him for a breach
of the injunction.''

An injimction operates from the date of the order, and not from
the sealing of the writ ; '' and although it has been irregularly
o[)tamed, it is still an order of the Court, and must be discharged
before it can be disobcvcd.^ Where, however, the defendant
and his solicitors had been guilty of a broac^ of an injunction
which was irregular. Lord Eldon refused to commit them ; but
ordered them to pay the costs occasioned by tlie breach,, and of the
motion to commit.''

Before the Court will punish for a breach of an injunction or
restraining order, it must be clear that the party knew that the
injuncticm had been issued, or that the order had been made.
Strictly speaking, ho ought to be served with the writ or order
itself, in the manner already pointed out ; but circumstances may
justify a committal, without the actual service of the writ or
order : as where the matter is pressing, and there is not time
to procure it : in which case, as we have already seen,** tht
immediate service of the writ will be dispensed with, and service
of a copy of the minutes of the order, or of a notice of its having
been made, will be sutilicient.

A defendant is bound to obey any injuiKition of which he is made
aware, before being served with it ; bi>.t the plaintiff must "hot be
guilty of delay in effecting formal service, as the rule for dispen-
sing with such service applies only until the plaintiff lias time to
make the service.^

1 Harvey v. Hotmtague, 1 Veni. 57, 122 ; Lord WelUdey v. Karl of Mornington, U B«av. 180, 181 •

12Jnr. 3e7.
! Ball V. Shrrlock, 16 Grant, OSS.

:i Oxbornc v. Tennant, 14 Vcs 13B ; Jamen v. Downen, 18 Ves. 522 ; Rattray v. liittkop, 8 MadJ. 220.
4 Rohimon v. Lord Ryron, i Dick. 703 ; Woodward v. King, ib. 797 ; S. C. iiom. Woodward v. Karl

Lincoln, 3 SwaiMt. d'Ztt.
fi /'artington v. /jooth, 3 Mer. 148 ; Drewry v. Thacker, 3 Swanst. 540.

6 ElUrtoH V. Thir>ik, 1 J. & W. 376 ; Goi>ch v. Marithall, 8 W. R 410, V. C. >V.

7 f^ti'wart V. Richardnon, 17 (Jrant, 150.

FN JUNCTIONS AND RKSTUAININO OUDERS.

1711

tlu

made
Inot be
lispen-
lime to

111 some caseH, u committal may bo ordered, where neither tlic
writ nor the minuteB of the order have been served, nor any per-
sonal ni)tico given. Thus, it was hold, by Lord Ilardwieko, that
if the pctrson was in Court at the time the order for an injunction
was j)ronounced, that alone would bo sutliciont notice ; ^ and if
the party remains in Court, until the order is about to bo made,
ho cannot, by leaving at that instant, avoid its consequences. -'
So also, if ho is informed that the injunction has been granted,
and tliei'e will be no delay on the part of the plaintiff in endea-
vouring to get the order drawn up, the defendant will bo com-
mitted for the brciach of it : because it would be a contempt to act
contrary to such an order, wlien he knew the order was made. In
these and the like cases, all the mischief might ho done, and the
('ourt might as well grant no injunction at all, unless this kind
t>f notice was to be held sufficient. In the instance of an injunc-
tion against committing waste, the party in the interval might
lay the axe to the trees ; or, if it was against marrying a ward of
Court, the marriage might be had next morning, by a license
fraudulently obtained."* In short, the Court will not, under
such circumstances, permit a man to elude its justice, by doing
that, before the injunction is sealed, which, if it was actually
sealed, would be a contempt ; but the plaintiff must not be guilty
of any unnecessary delay, either in getting the order drawn up, of
in serving it, or the writ, when obtained.^

The order for committal is obtained upon motion, of which
notice must have been duly served personally upon the person
committing the contempt."' The terms of the notice of moti6n
should be that the party "may stand committed" to prison, for
breach of the injunction.'' If the breach has been committed by a
person who was not named in the writ or order, the notice or
motion must be, that he may be committed for his contempt, in
knowingly assisting in the breacii.^ The plaintiff may also, it

l
%

\^%

%

180, 181 '■

V. BmX

1 Anvm. 3 Atk. 507 ; Skip v. llarwood, ib. 504.

i Othome v. Tennant, 14 Yes. l.SO. '

3 Per Lord Eldoii, in Kimpton v. Eve, 2 V. & B. 351 ; V^ansandau v. Rose, i J. Hi W. .'(H.

4 James v. Dmimes, 18 Vus. 522 ; Bateman v. Wiatt, 11 Beuv. r)S7.
.'■> A ngfrstein v. Hunt, 6 Vos. 488.

fi Where the injunction is that he nmy iId a particular thing, the order is, that he may do it by a pai-
ticular day, or stand uoniniitted : " Durant v. Moore, 2 R. & M. 33. It seenw the motion to coni-
uiit can only be made un a motion day : Saxby v. Saxby, 7 Sim. 140 ; and sue antf.

7 Urd Wellesiey v. Eaii of Mornington, 11 Beav. 180, 181 : 12 Jur. 367.

1712

CONSEQUENCES OF A BRKA(;H.

seems, obtain an order, ex parte, that the party ma^ sta'^d com-
mitted on a certain day, unless he shows cause against it ; which
order must be personally served upon the party to be committed. '
But, whether it be an order nisi, or a notice of motion for an
absolute committal, the service must be personal : unless an order
for substituted service is obtained. Thus, where the defendant has
absconded, an order may be obtained, on ex parte motion, that ser-
ce on his solicitor, or at his last place of abode, shall be deemed
good service ; and, upon that service, under such circumstances'
he n.ay be committed.^

f

Ui
Q

3:

It will \w recollected that Order 6, abolishes Orders nisi ; and
Order 295 provides that " In lien of an Order nisi, notice is to be
given of the motion for an Order absolute."

An affidavit of the personal service of the notice of motion should
of course be prepared and filed ; and on the day named in the
notice, the motion should be made, by counsel for tlie plaintiff, for
the commitment.

V

The motion must be supported by affidavits, proving the due

service of the notice of motion ; that the party had notice of the
injunction or restraining order ; and that he has committed a
l)reach of it.^

Lord Eldon is reported to have said,* that a motion to commit,
for breach of an injunction, could not be made without pro-
d]^cing the writ ; but, in a case before Lord Cottenham, he held,
that if a party, having notice of an injunction, is guilty of u
breach of it, he may be committed, without the production of tlie
writ.'^

If, on the hearing of the motion, the facts are disputed, a trial of
the question of the fact wiU, if necessary, be directed."

1 iMuant V. Moore, 2 K. & M. 33; lilanehard v. CnutAome, « Sim. 156.

i PuUr.ney v. Sheltox, 5 Yes. 147 ; Pearce v. CnUehfitld, 14 Ves. 208 ; and nee Re Roger, 3 .hir. N. S.

!)30, V. C. W.
:< As to the necessary evidence, see St. John's College v. Carter, 4 M. & C. 497 ; S. C. noin. St. J'lhn'x

College v. Pratt, 3 Jur. 187. For fonn of order, see Seton, !»4f>.
4 Kllerton v. Thiralc, 1 J. it W. 37«.
.i MiXeii V. Garratt, C. & P. 98 : 6 Jur. KVi.
i! Ajfttr V. Rejifitt'K Coiml Compann, <J. Coop. 77.

INJUNCTIONS AND RESTRAINING ORDERS.

1713

'd com-
; which
pitted. ^
1 for an
m order
lant has
that ser-
I deemed
iBtances'

lisi ; and
> is to be

m should
ed in the
lintiff, for

y the dut'
ce of the
ainitted a

J commit,
out pro-
he held,
dlty of !i

lion

of til

trial of

3 .hir. N. t^-
nn. St. Johi\'!<

The order for committal' is drawn up, in the usual manner, ^
and delivered by the party who has obtained it to the sheriff : who
will thereupon proceed to execute it.

If the breach of the injunction or order was the result, rather
of an error in judgment than of a wilful contempt, the Court will
not direct a commitment ; but will merely order the party to pay
the costs incurred by the breach of the injunction or order, and of
the application ^

The plaintiff may, also, by his acquiescence in the breach, waive
with the ordinary process : though, strictly speaking, no act
of the parties can amount to a waiver of a contempt of the
Court.*

Peers, and others entitled to privilege of peerage, and Members
of the House of Commons, are not liable to be committed for a
breach of an injunction or order, but the Court will order a
sequestration to issue.^ The same course of proceeding may be
adopted, in the case of a corporation aggregate.^

Although the injunction or order is irregular, a party acting in
contravention of it will be guilty of contempt.^ The proper
course, where there is an irregularity, is to move at once, upon,
notice, that it may be discharged for irregularity.^

An order for committal will be irregular, if it does not state
the affidavit of service of the restraining order, or injunction, and
of the notice of motion to commit, or that the defendant has
appeared by counsel on the hearing of the motion (if that was tha

case.

In 1845 the plaiatift' obtained an injunction restraining the
defendant from suffering to continue any dam, whereby the uatural
riow of the river, on which they both had mills, should be inter-

1 For fomi of oi'dor, see Seta ')45, X<». 1. 2 A ate.

;t Bullenv. Ovey, Hi Ves. I'n-i44 ; Leonard v. Atttvell,n Ves. 385, 38t> ; hreiny v. Thacker,3

SwaiiBt. 540 ; I'artiivjUm v. Booth, 3 Mer. 148 ; Rantzm v. liothHohild, 14 W. R. 9ti, V. C. S.
i MilU V. Cohhy, 1 Mer. 3.
i> See Robinson v. hord Byron, 2 Dick. 703.
« Spo/cen V. Banlniry Board of Ilealth, 14 W. R. 128, V. ('. \V. For form of order, see Seton, 94&,

No. 2. 7 AfUe.

!< Bobinxon v. Lord Byron, uhi nup.
t Steplum V. Workman, 11 \V. R. 503, V. C. K.

f

i:i^

1714

CONSEQirEXCES OF A BREACH.

-3

I

as

<3

Q
Ui ci

k! SS

.3:

fered with to the injury of the plaintiff's right ; to this bill uo
answer was ever filed, but a motion to dissolve the injunction was
made and refused, and in the same year the plaintiff recovered a
verdict against the defendant at law, in respect of the same
matters ; an arrangement was then made between them that the
dam should remain, and that each party should have the exclusive
use of the water for a certain portion of every day, and this agreement
was acted on for nearly seven years : the defendant then began to
make a limited use of the water all day, and contended that from
some improvements he had introduced into the machinery of his
mill, this would not interfere with the plaintiff's rights ; the plain-
tiff denied this, and moved to commit for ccmtempt. Held, that
the delay was no answer to the motion, that the defendant having
abaudond the agreement, the plaintiff had a right to fall back on
his injunction ; that on this ajiplication the propriety of grjintiii.;
the injunction originally was not a proper subject of consideration,
and the Court being of opinion that the continuance of the defen-
dant's dam was a breach of the injunction, ordered the defendant to
stand committed in two weeks, unless in the meantime he obeyed,
tlie injunction.^ A servant after leaving his master's service con-
tinues bound by an injunction issued while he was a servant against
the master and his servants to restrain waste. Where an injinu-
tiou forbids the cutting down of trees, it is no answer to a motion
to commit for breach of the injunction, that the trees cut down in
contravention of the writ were of little value. A servant who has
notice of an injunction may be committed for breach of it, though
he has not been served with the writ.- Where a party commits a
breach of an injunction after service of the order upon his soli-
citor, but before personal service of the injunction upon the party
enjoined, the Court will commit him for contempt.-^ In this case,
Esten, V.C., held that notice to the solicitor that an injunction had
been ordered was sufficient, and that the defendant having violated
the order, was guilty of contempt, and he therefore granted the
order nisi. No cause having been shown on the return of thr
order, an attachment was issued against the defendant for breach
of the injunction. An attachment to commit a party for contempt
will now be granted merely for non-payment of the costs of the con-

1 Gamble v. Howland, .'» (Jrant, 281.
;i Andriuvs v. Muulion, 8 V. C. L. J. 74.

i Brown \. Slage, M Onint, -IX

i:ii-m

STOP ORDERS.

1715

is bill no
ction was
covered a
;bo sanio
I that the
( exclusive
igreemeiit
1 began to
that frouj
ery of his
the plain-
Held, that
lilt having
ill back on
f granting'
sideration.
the defen-
^fendant to
he obeyed,
lervice con-
iint against
an injunt-
a motion
ut down in
it wlio has
it, though
commits a
his soU-
the party
thin case,
Action had
g violated
anted the
urn of tht
for breach
■ cimterapt
)fthe con-

temi)t.' The difficulty in this case arose ou Section 13 of tiio Act
respecting Arrest and Imprisonment for Debt — ch. 24, of Con. Stat,
U. C. An injunction while it stands should be obeyed; and where
after twelve weeks had elapsed from the service of the injunction
without the bill being served, the defendant treated the injunction
as gone, the Court, while refusing a motion to commit for breach
of the injunction, refused the defendant his costs of resisting the
application. Where an ex parte injunction is granted before the
bill is served, an office copy of the bill should be served with the
injunction, or as soon as possible afterwards. Where an ex parte
injunction was served on the 24th December, and the bill was not
served up to the 13th May following, the injunction was dissolved
for the neglect to serve.^ After an injunction restraining the fell-
ing of timber had been issued, and on the same day the writ was
served, the plaintiff entered into a written agreement with the princi-
pal defendant in the cause, by which the latter agreed to give up
possession of the premises in question on a particular day, and to
refrain from cuttinir or removing any timber cut, in the meantime
and the plaintiff thereby agreed " that I, the said T. M. do hereby,
upon the above conditions being complied with, withdraw all suits,
now pending," &c. The defendant having, notwithstanding, con-
tirmed to cut down and remove the timber, a motion was made to
commit him for breach of injunction, when it was held, that the
suit was still pending the acts agreed to be done by the defendant,
being a condition precedent to the withdrawal of the suit.^

Stop Orders.

Where there are funds or securities in Court, it will in its own
jurisdiction, without any statutory authority, exercise the power of
issuing what are called Stop Orders.

Order 286 provides that " Where any stock, debentures, funds,
securities, or moneys, are standing in Court to the credit of any
cause, or to the account of any class of persons, or are invested in
the name of the Registrar, or other officer of the Court, and an
order is made to prevent the transfer or payment of such stock,

1 Dicknon v. Cooke, 1 Cham. Rep. 210.

•2 IJcron V. Swmhfr, 13 Grant, 438.

3 Mulhullaiid V. Doumes, 14 Uraut, 106.

84

I

n

1716 WRITS AND ORDERS IN THE NATURE OF INJUNCTIONS.

debentures, funds, securities, or moneys, or any part thereof, with-
out notice to the assignee of any person entitled in expectancy or
otherwise to any share or portion of such stock, debentures, funds,
securities, or moneys, the person by whom any such order shall
be obtained, or the share of such stock, debentures, funds, secu-
rities or moneys affected by such order, shall be liable, at the dis-
cretion of the Court or a Judge, as the case may be, to pay any
costs, charges and expenses, which by reason of any such order hav-
ing been obtained, shall be occasioned to any party to.the cause or
matter, or any person interested in any such stock, debentures,
funds, securities, or moneys."

Any person, although not a party to the cause or proceeding in
which a fund in Court is standing, who has become entitled to any
such fund, or a share thereof, or to any lien or charge thereon, may
apply to that branch of the Court to which the cause or proceed-
ing is attached, for an order to prevent the fund in question being
paid out, or otherwise dealt with, without notice to the applicant.'

A Stop Order will also be granted in favour of a judgment
creditor, who has obtained a charging order at law, on a fund in
Court ; - and even where such a charging order had not been made,
but the creditor had caused a writ of fieri facias to issue, the Court
has stopped, at the instance of the creditor, payment of funds in
< V)urt to the debtor.^

A Stop Order will not, in general, be made, unless the fund is
actually in Court ; * and, therefore, where a sum of money had been
ordered to be paid by one party to another, the Court refused, at the
instance of a person who had obtained a charging order on it, to
order it to be paid into Court, for the purpose of giving him an

t)
I

1 lluhmn v. Shcarwond, 8 Beav. 486 ; Williamx v. Syinotids; 9 Beav. saS ; FciKtcl w'llihui's Colhrii;

Cainbriilgc, 11 Beav. 264 ; IIodIc. v. liobertu, 12 Jur. 108, V. 0. E. ; liv Miller, (i'W. R. 2;i>,

V. O. K. ; Ue Rlniit, 10 W R. 379, V. C. K. ; llawke»ley v. Gowan, 12 W. K. 1100, V. C. K. ; sir

also Welts v. Qibbs, 22 Beav. 204 ; MiUev v. Pviddea, 3 Jur. N. S. 78, V. C. K. Such an orikr

hits been made, on the application of the a>i.-<i);;nee of tlie interest of tlie sr>le nixt of kin of a

lunatic : lie Moure, 1 M'N. & U. 103 ; Re J'igott, 3 M'N. & G. 208.
i; Milex V. I'realaml, 4 M. & C. 431 ; Ilulkesv. Dat/, 10 Sim. 41 : 4 Jur. 1125 ; Whitfield v. Prii-ketl,

13 Sim. 259; Wattn v. Jefreyen, 3 iil'S. kG. :i72 ; 15 Jur. 783; Wellx v. GMh, 22 Beav. -.'04 ;

Lord Ilagtiiign v. Beavan, 10 W. R. 200, L.JJ. ; Seton, 9,52 G.59 ; and see Warburtun v.

Hill, Kay, 470; Re Xowell, 9 Jur. N. S r>li, 788 : 11 W. R. 058, 790, V. 0. K.
:i liobinnon, v. Woode, 5 Beav. 388 ; Courtoij v. Vincent, 15 Beav. 486 ; and for tlie order in tiie latter

ca«e, jee Seton, 957, No. 8.
4 A Stop Order has, however, bean made to restrain tlie payment of funds to be thereafter p; iJ In,

to u particular account : Re Duke i>/ Cleveland's Uarte JisMeH, cited Morfjan, 489.

eof, with-
ctancy or
es, funds,
L'der shall
ads, secu-
a,t the dis-
) pay any
order hav-
e cause or
ebentures,

)ceeding in
iled to any
jreon, may
r proceed-
stion being
[ipplicant.^

I judgment

a fund in

een made,

, the Court

if funds in

Ithe fund is
?y had been
ised, at the
\i' on it, to
lo- him an

v.'tliinii'n Colli'Hi;
hU;; 0 W. R. 2;!J.
|00, V. C. K. ; si'u

. Such an order
next of kill iif i\

ield V. Prirkett,
22 Beav. -M ;
Warburtdi v.

Irder in liif laMor

kereafter pi-Ji",

Ss9.

&rOP ORDERS.

1717

opportunity of enforcing his right against it by means of a Stop
Order.i

Applications for Stop Orders may be made by motion in Cham-
bers, where the person whose fund or interest is to be affected con-
sents, or joins in the application : in other cases, the application
must be made by petition.

The petition must show the title of the person, the payment of
whose fund is intended to be restrained : although it is not abso-
lutely necessary that it should show the particular share of the
fund to which he is entitled ; and it must also show the title of the
assignee. -

The Court must have proof of these facts, whether the appli-
cation be made by petition or motion. The title of the assignor
will usually appear from the proceedings in the cause : where this
is not the case, the fact must be established by affidavit.-* The title
of the assignee is generally proved by the person whose fund is to
l)e affected either joining in the application, or appearing and
admitting the fact : when this is not the case, it must, in the case
of a petition, be proved in the regular way.* To obviate the expense
of a strict proof, it is now usual, where the applicant claims as
assignee, for the assignment to give him the power to use the name
of the assignor as an applicant.

It was formerly necessary, upon applications for Stop Orders,
that the petitioner should give notice to all the persons interested
in the fund ; but Order 287 now provides that " A person applying
for such order, shall not be required to serve notice thereof upon
the parties to the cause, or upon the persons interested in such
parts of the stock, debentures, funds, securities, or moneys, as are
not sought to be affected by the order : " and the applicant must
pay the costs of such other parties if they are served with the
petition or notice of motion.'^

1 Seu-ton V. Askew, U Beav. 446 : 12 Jar. 531, 766 ; Wellenleij v. Moruingtoa 11 W. 11. 17,

i Womi V. Vlnacnt. 4 Beav. 419.

•! Qnniiiian v. Williamn, 5 Beav. 133.

i Wooii V. Vhicent, u i xvp. ; WiiieheUea v. Garrettij, 1 Beav. 223.

1 Glazhrvok v. Gillatt, 9 Beav. 611.

C

j^.'

V. <.'. K.

5c.

1718 WRITS AND ORDERS IN THE NATURE OF INJUNCTIONS.

It is, however, still necessary to serve the person whose interest
is intended to be affected, with a petition which is presented by
the assignee alone."^

The order, when duly passed and entered, or an office-copy,
must be left at the Registrar's Office ; and until this has been done,
it does not take effect. The Registrar will, however, delay parting
with a fund, if he has received notice of an intended application
for a Stop Order .'-^

A Stop Order does not decide anything as to the rights of the
parties ; it is, therefore, in general, unnecessary to state that it is
made without preindice ;'* but where the fund had been paid in
under the Trust^'o . )t' Act, the order was expressed to be made
without prejudice m t-'ic trustees' lien for the costs.* Where a
husband and wife had, previously t^ the 20 & 21 Vic, ch. 57,
assigned her reversicr. "y e' ' in action, the operation of the order
was limited to the lifetime of fciie husband.^

An incumbrancer, who has obtained a Stop Order, and duly
served it on the Registrar, thereby obtains priority over a previous
incumbr?4,ncer who has not done so ; ® but this priority only extends
to the charge in respect of which the Stoj) Order was obtained.^

A solicitor's lien, on a fund recovered by his exertions, has
priority over a Stop Order obtained by an assignee from his
client.^

This Court has no jurisdiction to grant a " Stop Order," at the
instance of a judgment creditor of a party entitled to funds in
Court.^

1 I'arsons v. Groome, 4 Beav. 521.

2 Setcn 952, 953.

3 Lucas V. Peacock, 9 Beav. 177.

4 Re Blunt, 10 W. R. 379, V. C. K.

5 Mareau v. Polley, 1 Do G. & S. 143.

6 Swayne v. Sioayne, II Beav. 463 and see Greeninn v. Beckford, 6 Sim. 195 ; Ilulkes v. Day, 10

Siin. 41 : 4 Ju'r. 1125 ; Warhurttm v. Hill, Kay, 470 ; Elder v. Maclean, 3 Jur. N S. 283 : 6 W.
R. 447, V. C. K. ; Livesey v. Harding, '23 Beav. 141 ; Bartlctt v. Burtlett, 1 Dp G. & J. 127 ;:<
Jur. N. S. 70.'> ; Day v. Day, 1 F>e G. & J. 144 : 3 Jur. N. S. 782 ; Thmipmn v. Tnmpkim, 2
Dr. & Sin. 8 ; ThomoH v. Cross, 2 Dr. & Sni. 423 : 11 Jur. N. S. 384, 386 ; but sec Grainage »
Warner, 13 W. R. 833, V. C. S.

7 Macleod v. Buchanan, 33 Beav. 234 : 9.Tnr. »\ S. 1266 ; 10 Jur. N. S. 223 : 12 W. R. 514, L.JJ.

8 Haymes v. Ciioper, 33 Beav. 4« : 10 Jur. W. S. 303.

9 Lee'y. Bell, 2 Cham. R. 114 ; Purki»\. Mwrrisnn, 2 Cham. R. 117.

NS.

interest
ented by

fice-copy,
een done,
y parting
)plication

its of the
that it is
a paid in
0 be made
Where a
,, ch. 57,
[ the order

and duly
previous
ly extends
;ained.''

tions, has
from his

er,

at the

funds in

Ukeg V. Day. 10
S. 283 : 5 W.
G. & J. 127 ; »

TompkiM, 2
Isee Grainagf *

. 514, L.JJ.

STOP ORDERS.

1719

The applicant is not, in general, entitled to the costs of the
Stop Order ; but they may be given him, where it has been ren-
dered necessary by the conduct of the parties ; ^ or where his
assignment authorises him to apply to the Court for it ; but they
should be specially mentioned in the direction for taxation.'^

The fund to which the Stop Order applies will not be paid out,
or otherwise dealt with, until it is either directly discharged, or
some order is ma le expressly directing the fund to be dealt with,
notwithstanding the Stop Order. A person who has obtained a
Stop Order must, therefore, be served with notice of any appli-
cation to deal with the fund ; and at the hearing of the application
tlie Court will either discharge the Stop Order,^ or direct payment
to the person who has obtained it, according to what appears to be
the rights of the parties ; or, if the rights of the parties cannot
then be satisfactorily ascertained, it will direct the fund to be
retained in Court, for a limited time, to give the claimant an
opportunity of taking the necessary steps for asserting his claim/

Where the person who has obtained a Stop Order afterwards
iissigns his interest in the fund affected thereby, the assignee may
obtain a Stop Order in his favour on petition, or, by consent, on
motion, supported by production of the former Stop Order, and
an affidavit of his title. The order, in such case, either directs
that the fund be not dealt with without notice to the assignee,
instead of the person named in the former order ;^ or else, that the
assignee be substituted, as the person to whom such notice is to be
^iven."

An order may be obtained to stay the delivery out, without
notice to the applicant, of documents deposited with the Record
and Writ Clerk,'^ or the Registrar,^

A Stop Order will be discharged with costs, if it has been
irregularly obtained."

1 (imnsb)i V. Wehnter, 8 W. R. 725, V. C. K. ; Hoole v. Roberts, 12 Jiir. 103, V. C. K.

2 Waddilove v. Tai/lor, (1 Hare, 307 ; Morgan & Davey, 47.

3 By consent, an order to discharge the Stoi» Order may bo obtained on Hunmions at Chambers ; and

see, in the case of purciuisD orders ante. For form of order, sou Seton, 053, N. (5.

4 Betkune v. Keiini'di/. 3 Beav. 462 ; F'eixtel v. King'n College, Cambridge, 11 Beav. 254 ; and see

Wantcll V. Lculie; 15 Sim. 453, n. ; ThonidHrc v. Hunt, 3"De G. .v J. 5(13 : 5 Jur. N. S. 87i».
.'■ RobeHxon v. \V)/nrh, M. H. in Chambers, 26 Feb. 1861, Reff. Lib. B. 382. The statement of this

order in Setni'i, 967, No. 10, differs from Reg. Lib.
« Tench v. Cheexe, M. R. in Cliambers, 26 Jan. 1865, Rejf. Lib. B. 232.
: Langv Oriffith, citeiX Seton.^HT. 8 Williavw \. Sumotid«,9 Beav.biS.

!• Re Sotcell, » .Inr. N. S. 788 : 11 W. R. 896, V. C. K.

I,

')'

<i \

( 1720 )

CHAPTER XXXVIII.

(JON TK MPT.

^.

I'jjfect of <> Coidcmpt upon the Proccedimis in the Couav.

Besides the personal and pecuniary inconvenience to which n
party subjects himself by a contempt of the ordinary process of
the Court, he places himself in this further predicament : viz., that
of not being in a situation to be heard, in any application which
he may be desirous of making to the Court. Lord Chief Baron
Gilbert la3^s it down, that " upon this head it is to be observed, as
a general rule, that th(* contemnor, who is in contempt, is never to
be heard, by motion or otherwise, till he has cleared his contempt.
and paid the costs : as, for example, if he comes to move for any-
thing, or desires any favour of the Court." ^ Thus, in Lord Wen-
man v. Oshaldiston,^ where a defendant, being in contempt fornot
putting in his examination pursuant to an order, to avoid a seques-
tration moved the Court that, upon his undertaking to pay in a
week's time what should appear to be due to the plaintiff, all
further })rocess of contempt should be stayed, the (Jourt declined
making any order upon the motion, but directed the appellant to
clear his contempt, and then move : and this determination of the
Court was affirmed by the House of Lords, upon appeal.

But where, after a petition had stood over at the request of the
respondent's counsel, for his convenience, the petitioner incurred
a contempt, which had not been cleared when the petition caiin'
on again, it was held, that the petitioner was, nevertheless, entitled
to be heard ; ^ and, it seems, that a party who is in contempt for
non-payment of costs, is not thereby prevented from moving for
leave to defend in forma pauperis.^

1 GM. For. Bom. 1»2 ; Voxoleit v. Young, 9 Vesi. 172 172.

2 2 Bro. P. C. Ed. Toml. 276 : 2 Eq. Ca. Ah. 222, PI. 1.

3 Briatove v. Seedham, 2 Phil. 190 : 1 C. P. Coop. t. Cott. 28«.

4 O/dffld V. Cobbett. 1 Phil. 613, 614.

M

KFFECT OF A CONTEMPT UPON PROCEEDINtJS IN CAUSE. 1721

) which 51
>roces8 of
viz., that
on which
lief Baron
served, as
s never to
contempt,
e for aiiy-
ord Weii-
ipt for not
a sequBH-
pay in a
intiff, all
declined
)ellant to
on of the

JSt of till'

incurred

lion caiin

5, entitled

tempt for

loving for

The rule, that a party in oontempt cannot move till he has
cleared his contempt, is, in practice, confined to cases where such
party comes forward voluntarily, and ask for an indulgence ; and,
therefore, a defendant cannot object to a cause being heard because
the plaintiflf is in contempt.^

In like manner it has been held, that a mortgagee, defendant to
a bill of foreclosure, who is in contempt, could not move, under the
7 Geo. II. ch., 20, for a reference to take an account of the principal
and interest due upon the mortgage.^ And so, where a party in
contempt had applied for and obtained the costs of an abandoned
motion, under Lord Eldon's order,*^ Sir Lancelot Shad well, V. C,
upon motion, discharged the order.*

So also, where a motion had been refused with costs, it was held,
that the motion could not be renewed, though on different grounds,
until the costs had been paid.''

It is to be observed, however, that the rule, that a party cannot
move till he has cleared his contempt, is confined to proceedings in
the same cause ; and that a partj'^ in contempt for non-obedience to
an order in one cause, will not be thereby prevented from making
an application to the Court in another cause relating to a distinct
matter, although the parties to such other cause may be the same ; "
and this privilege has been carried to the extent of allowing a
defendant, in eacli of two creditors' suits to administer the same
estate, to move in one of them, in which he was not in contempt,
to stay proceedings in the other, in which he was.^

Tt would seem that a plaintiff prosecuting his decree is entitled
to do so, notwithstanding he may have been placed in contempt
for disobedience to an order of tht- Court for payment of money.

1 liich-ett:< V. Mnmimitoii, 7 Sim. 200 ; and see the cases on this subject collected in 1 e. P. Coo|>. i.

Cott. 208 ; see also Futmiye v. Kcnnard, 2 Giff. llO ; Fri/ v. Bnu-xt, 9 .Jiir. N. S. 1171 : 12 W. R.
»7, v. C. \V.

2 Hewett v. MCartami, 13 Ves. 560,

3 Gen. Ord. ft Aujj;. 281S : Saad. Ord. 706 : Beav. Ord. 3 : now Ord. XL. 23.

4 Ellis V. WalmKloij, i L. J. Ch. (50 ; S. 0. no)a. Ellice v. Wahndey, 1 C. P. Coop. t. Cott. 207, where

the cases are collected as to the proceedings, for liis own advantage, which a i)arty in contempt
cannot talve.

5 Oldfield V. Cnbbctt, 12 Beav. 91, 95.

6 Clark v. Deiu 1 R. & M. 103, 107 ; Gum-imU v. R'.^t, 1 Y. & C. Ex. «19 ; Tivjhr v. Taylor, 1 M'N.

& G. .S97, 400 ; 12 Beav. 220, 228 ; Fry v. EriiOit. 9 Jur. N. S., 1151 : 12 W. R. 97, V. C. W.

7 Iximer v. Dorgan, 12 Sim. 504: 56 Jur. 356 ; Morrisoti v. Morrison, 4 Hare, 590 : 9 Jur. 103 ; 1 C

P. Coop. t. Cott. 215, 217.

iJ,::

1722

COMPELLING ANSWER — PUOCKEDINGS IN DEFAULT.

Iti Hucli ti case the defendant must obtain an older staying pro-
ceedings until the contempt is purged.^

And althougli it is the general rule of the Court that parties
must clear their contempt before they can be heard, yet the rule
must not be understood as preventing their making application to
the Court to discharge, on the ground of irreguliirity, th(> order, by
their non-obedience to which their contempt has been incurred ;
therefore, where a defendant, in custody for a contempt in not
obeying an order, to pay in money, api)lied to the Court to dis-
charge him out of custody, on the ground of irregularity in the
order (it having been made pending an abatement of the suit), he
was not only heard, but the order for his discharge was made :
though, under the circumstances, without costs.- In such cases,
it is to be observed that, in making his application, the party in
contempt ought to confine his motion to the object of getting rid of
the order of which he complains ; and that if ho embraces other
matters in his notice of motion, he will not be allowed to go into
such other matters, till he has shown that the order upon which
his contempt has been incurred was irregular.-'

A plaintiff is, in England, entitled to sue out an attachment
agaist a defendant for want of answer, although he is himself in
custody for a contemjit in non-payment of costs to him.^

It is also to be observed, that the circumstance of a party being
in contempt, will not prevent his being heard in opposition to any
special application which the other side may make, upcm notice
duly served upon him ; and wliere a plaintiff had obtained, from a
Vice-Chancellor, an order for payment of a sum of money into
Court, against a defendant, who was in contempt, the Lord Chan-
cellor allowed him to move to discharge that order, on the ground
that it was a rehearing of the original application.''' So, also,
where there is any irregularit}^ in the prosecution of the decree or

1 Hnni v. Rok'i-txitn, 1 Cliam. K. 3.

2 Wilmn V. Metcalf, MSH.

3 Ibid : 1 C. P. Coo)., t. Cott. '216 : 4 Hare, 59.5

4 Wilson V. Batet., !) Sim. .54 : 2 Jur. 107 : 3 M. & C. 107, 204 : 2 .Tur. 319 ; ai)(l seo 1 C. P. Coop. t.

Cott. 220, where the ease-s are collected a.s to the iiroceeOinga, for his own advaiitajte, which a
party in coiiti'nipt may take.
J Parker v. Dawmni, .5 L. J. Ch. 108 ; see also Ex parte Chadwick, 15 Jur. 597, V. C. K. B. ; Reeve v.
Hndnon, 10 Hare, App. 41 ; liickjird v. Skewex, 10 Sim. 193, 190 : S. C. ninn. Bickjord v. Sketven,
3 Jur. 818 ; Futvoye v. Kennard, 2 Giff. 110.

P-:

^ pro-

Diirties
It; rule
tion to
ler, by
urreil ;
in not
to clis-
in the
lit), lie
made :
cjiseH,
arty in
ig rid ol
s other
ifo into
1 w

hidi

ichment
Qself in

y being
to any
notice
from a
3y into
Chan-
ground
also,
fecree or

Cttop. t.
le, which a

I; liecve v.
Iv. Skeii'fn,

EFFECT OK A (CONTEMPT UPON PROCEEDINOS IN CAUSE. 17*23

order obtain jd under tho contempt, a party in contempt may b^,
heard to ol)tain redrogs.'

Where an order in 111:1 di' on a receiver for payment of a sum of
money, the Court on d fault, will commit for a contempt of Huch
order without requiriufj; any further order to be issued. -

Although a party cannot move until he has cleared his con-
tempt, yet ho may give notice of his motion before he has done
so ;** and a party to whom co«t.s are awarded, may procceed in the
taxation, notwithstanding he may be in contempt.*

Although a defendant, not appearing or answering within the
regular time, is frequently said to be in contempt, yet it does not
seem that the contempt is actually incurred until the writ enforc-
ing obedience to the ordi^rs of the Court has been sealed, Thus,
after the regular time for answering has expired, provided no
attachment has issued against a defendant, he may file a joint
demurrer and answer : •'' which, had process actually commenced,
miglit have been taken off the tile for irregularity.®

It seems, that a party in contempt can apply for tbe purpose of
removing scandal from the records of the Court.^ Although it was
held by Lord Cottenliam, in Wilson v. Bates,^ that a plaintiff in
contempt is not precluded from availing himself of the ordinary
process to enforce an answer, it appears that the fact of his being
in contempt may be made the ground of special application by
the defendant to stay proceedings in the cause, until such contempt
has been clearcid," And in general, whenever a part}' in contempt
is entitled to be heard, there exists a right of appeal, and appli-
cations may be made with immediate reference to the motion ujioii
which he is so privileged to be heard, or for the purpose of t'l)tiiui-
ing evidence in support of it.^°

1 Kiny V. Bircnt, 3 M. *• C. 101, li).''> : 2 Jur. 100.

2 .W('lnt.o.sh V. Elliott, 2 Grant, Sm

;{ Clinch V. Ci-finei; 1 C. P. Cooj). t. Cott. 247.

4 .Vcirton V. Hif.ketts, II Beav. 67.

h Knst India Company v. llenchuian, :$ Bro. C. C. 372 ; Soiirrhii v. Warder, 2 Vox, 2(i!«.

<i Citrzoii V. De la Zotich, 1 Swaiwt. 185 : 1 Wils. 0. C. 4«9 ; see also Attonunt-Gem-ml v. Shiild, 11
Ueav. 441, where it was held, that taking an otHce copy of the answer was not a waiver of the
ohjection. But if he retain the office coi)y till the time for excepting to the answer for iiiauffi-
oicncy haa elapsed, the contenii)t will be "waived : Ilerrett v. liryiiotdH, 2 Giflf. 409: (J Jur. N. S.
880.

7 Everett V. I'r!ithcr()ch, 12 Sim. StiS ; Cattcll v. Siuunui, 5 Beav. 306.

5 3 M. & C. 197, 204 :' 2 Jur. 319 ; see also Biekford v. Skeiven, 3 Jur. 818.

il llradbur;/ v. Sliatre, 14 Jur. 1042, V. C. K. B". ; Futvoye v. Kmiunrd, 2 GiflT. 110.
10 Cattell V. Siinnns, uhi mip.

..-..l, \

1724

('()Ml>BLLIN<» ANHWKH — PROCKEDJNCIS IN DKFAULT.

'"iJi

In ivhnt inunncv Contemptn in ProvesH maif he cleared, waived,

or discharped.

An ordiiiiiry contempt in process, as it is a matter merely between
the parties, may be cleared by the contemuor doing the act, by the
non-performance of which the contempt was incurred, and payinjj;
to the other party the costs he has occasioned by c(mtumacy.

The Court refused a motion to commit tor broach of injunction,
wlinre the defendant made an affidavit of having complied with tin*
writ, even though the afllidavit was contradictory to a Htat(;ment
personally made by him, but the defendant was ordered to pay the
ct>Hts of the moticm, as his cc nduct had caused the motion to bt
made.'

Where a party is in contempt for not liringing accounts into
the Master's office, it is a sufficient clearing of his contempt to
bring in sucii accounts, and the sufficiency of them will not be
looked into.- And when a party has been connni tted for not bring-
ing in accounts, and it is shown by cerfcihcate that the accounts
have since been brought in, it cannot be urged on a motion for
his discharge that the accounts are insufficient. Nor will the pay-
'Jient of costs be made a condition precedent to his discharge.'' It
is a sufficient clearing of c(mtempt if a party has done the act
ordered to be done, and paid the costs. It is not necessary that an
order of Court clearing his contempt shall be made unless he has
been in custody, when an order is necessary for his discharge. '
Where a defendant who had been in contempt for non-production of
deeds, and afterwards produced, filed his atlddavits and paid costs
of contonpt, moved to dismiss, and it was objected that he had not
cleared his contempt, no order having l)een made to that effect,
the Secretary overruled the objection.''

Where process has been issued against a defendant in contemi>t
for want of aijpearance or answer, but has not been executed, the
defendant should enter his appearance or put in his answer, and
pay or tender to the plaintiff 's solicitor the costs of the contempt,

1 Campbell v. Gotham, 2 Grant, 403.
S Clark v. Clark, 3 Cham. Rep. 67.
4 Dnnean v. Trott, 2 Cham. Rop. 487.

2 Clancii v. Pattermn, 2 Cham. Rep. 217
5 Ihitt.

HOW CON'TEMPTH CLKARKl), WAIVED, OR DIHCHAKOEJ). 1725

aired,

)etweeii

, ))V tlU'.
3.V.

inctiou,
with thf
atonient
pay the
lOU to h«'

lunts into
itempt to
ill not be
not hiinK-
accounts

lotion t'oi'
the pay-
arj^eJ* U
e the act
y that an
ss ho has
ischar^e.'
luction of
iiaid costs
e had not
at effect.

contempt
juted, the
iswer, and
I contempt,

217.

if tlie amount of Huch costH can be liquidated : as in the case of an
attachment ;' but if tlie amount of the coHts cannot be ascertained,
he should tender such a sum as will cover their probable amount. '^
If the plaintiff's aohcitor accept the costs so tendered, it will be at
the plaintiff's own risk if he afterwards puts the process into
execution. If his solicitor refuse to accept the costs when ten-
dered, it is ncicessary, in order that the defendant may, upon pay-
ment or tender of the plaintiff's costs of the contempt, be dis-
charged from his contempt, that he should obtain an order for that
purpose : otherwise, the contempt will continue."' An ordtsr of this
nature is made on motion of course, on petition of course, upon
tlie Kocord and Writ Clerk's certilicate ut the defendant's appear-
ance or answer,'*

The Court will not detain a p«)rson in ^'aol merely for the non-
payment of money, — but in order to punish any one who has been
f^uilty of a contemiit of Court, it may imprison him for a stated
period allowing him to be discharged if he pfiy the costs of bin
contempt before the expiration of such period. The Court will
entertain applications affecting the liberty of the subject during
long vacation. Poverty is no excuse for delay in making an appli-
cation to the Court, as in such case the party can apply in forinn
pawperis.^

Where the process has been carried into effect, and the defen-
dant is in actual custody, he cannot be disciiarged without an
order : which must be obtained in similar maimer,*' and which
will direct the defendant to be discharged, upon payment or tender
of the costs of the contempt. These costs are either fixed or taxed
costs, according to the stage whicli the contempt process has
reached : thus, if the defendant has merely been arrested on the
attachment, the costs, as we have seen, are of a fixed amount ;
but if he has l)een brought up by the messenger, or upon habeas
corpus, or by the Serjeant-at-Arms, he is liable to pay taxed costs. ^

1 Wilkin V. A'ainby, 4 Hare, 473, 475 : 10 Jur. 735. The tiinnuiit payable to ulear a contempt, i«i Enu-

land, on aii uttaehnieut cj.euuted, is I'Ax. 8(/. ; Brown v. Lcc, 11 Beav. 371) ; if not executed, 11*.
'2ti. : Bmithivaitf'n Pr. 154 ; and in. (id. extra for each additional defendant : i.h.

2 Wilkin V. Nainhy, ubi mtp. ; Browjhton v. Martun, 4 Bro. C. C. 29<i. ,

3 Green v. Thompnon, 1 S. & S. 121.

4 Green v. Thmnpxon, and Wilkin v. Nainhii, ubi xiqt.

5 Ilarris v Myer», 1 Chain. Rep. 229.

>i Gruy V Campbell, IK. &U. 'o2A; Edmondaon v. Heifton, 2 Y. & C. Ex. H. But a defendant ui
contempt for want of answer, cannot flle an answer and demurrer : Curzon ,v. De la Zoucli, 1
Swinst. 185, 193 ; Vigera v. Lord Audley, 2 M. & C. 4», 52 : 1 Jur. 51 ; AttorTieii General v.
Shield, 11 Beav. 441, 446.

7 Wilkin V. \ainby, 4 Hare, 473, 475 ; 10 .lur. 736 ; Braithivaite'g Pr. 164.

t

1726

COMPELLING ANSWER — PROCEEDINGS IN DEFAULT.

M

:P"

I

Q
Ui

If the parties can agree upon the amount, the defendant should pay
it ; but if they cannot, he should tender to the plaintiff such a sum
as will cover the amount which will probably be allowed on taxation.

It would appear, moreover, that strictly in all cases of contempt,
(except where, the defendant not being in custody, the plaintiff is
willing to accept the answer and the costs tendered,) the defendant
ought, upon filing an answer, to obtain an order for his discharge,
on payment or tender of costs : as otherwise, the plaintiff may
move to liave the answer taken off the file for irregularity.^

It is to be odserved, that where process of contempt has been
issued against a defendant for want of an answer, he is entitled to
be discharged from his contcnipt immediately upon his putting in
an answer, and paying or tendering the costs of his contempt : and
the Court will not detain hiin in custody till the sufficiency of his
answer has been decided upon ;^ unless he has already put in
three answers, which have been found insufficient.'^ If, however,
the plaintiff takes exceptions to the answer, and the answer is held
insufficient, he will be entitled to resume the process of contempt
where it left off;"^ and so be will, where the defendant submits to
answer the exceptions." Nor will the acceptance of costs be con-
sidered as a waiver of the contempt by tlie plaintiff' : for, where a
defendant, in contempt for want of answer, olitaius, upon filing his
answer, the common order to be discharged as to his contempt, on
payment or tender of the costs thereof, or the plaintiff accepts the
costs without order, the plaintiff' cannot be compelled, in case the
answer is insufficient, to recommence the process of contempt
against the defendant, but is at liberty to take up the process at
the point to wliich he had before proceeded.*'

A party who was in contempt to an attachment for not bringing
accounts into the Master's office for the purpose of a reference,
afterwards file! the same with the Master, but neglected to j)ay the
opposite party the costs of the proceedings to putliim into contempt,

1 HaifiUiK V. Ball, '> Heav. 140; WUk'H v. Xaiiimi, ubi sup. ; Cniih; v. Alleyne, l(i Buav. '(IS.

2 Dupont V. Ward, 1 Dick. 133 ; Chllil v. Uralmui, 2 Ves. S. llo ; Roohin v. /> Tai-tvt, 1 V. Ai B.

324, 327.

3 Bailey X. Bailei/, 11 Vt-s. 151.

4 Atvon, 2 P. Wins. 481 ; Walliip v Brown, i Bro. C. 0. 212, 223 , Broin/ield v. Chicheater. 1 Dick 379 :

Bailey v. Bailei/ and Boi'hrii v. De Tanfet, ubi Ktip. ; Coulmin v. Graha ■. , 1 V. Ai B. 331 ; Taylor t.
Salmon, 3 M. & C. 10».
0 WateiK V. Taylor, 10 Ve.s. 417. • 'I Kiiiflish Onl XU. 7.

A pay
a sum
ation.

tempt,
itiff is
mdant
barge,
¥ may

s been
itled to
fcting in
pt ; and
Y of bis
put in
lowever,
: is beld
ontempt
jmits to
be con-
wbere a
ling his
mpt, on
opts the
lease the
)n tempt
locess at

bringmg

Inference,

pay the

mtempt.

J,J48.

let, 1 V. & B.

Il Dick m:
151; Taylor f.

HOW CONTEMPTS CLEARED, WAIVED, OR DISCHARGED. 1727

and a motion was now made ex jmrte for an order to remove the
accounts so brought in from the files in the Master's office in order
that the party might be proceeded against for the contemj)t. The
order was granted.^

But although a plaintiff does not now, by accepting the costs
from a deff^ndant upon his putting in an answer, forfeit his right to
recommence the process of contempt at the point where it left off,
yet if, after answer put in he accepts the answer, or takes a step
in the cause, he waives the contempt, and cannot renew the process,
or take any other advantage of it. Thus, if a plaintiff reply to the
answer,"^ or move upon an admission contained in it,'* he waives
the contemj)t ; and so, where a messenger had been ordered upon
a return of cepi corpun, and in the meantime the defendant filed his
answer, wi?ieh the plaintiff' accepted, and then applied for his costs
by moti,.i., it was held, that the acceptance of the answer precluded
him from his right to costs.* And where a defendant, who was in
contempt, put in an answer, without paying or tendering the costs,
and the plaintiff replied to the answer, but did not proceed with the
cause for three terms, whereupon the defendant moved to dismiss
the bill for want of prosecution: upon the plaintiff 's objecting that
the defendant could not make the motion, in consequence of his
being still in contempt. Lord Eldon held, that the contempt was
gone, and that the defendant was in a situation to make the
motion.'"' It has been held, however, that the mere fact of the
plaintiff' bespeaking a copy of the answer does not operate as a
waiver of the contempt.*'

Where a plaintiff' accepted the answer, without insisting upon
the costs of the contempt. Lord Eldon held that the plaintiff had
not thereby given up his right to the costs, as costs in the cause,
but had only waived his right to enforce them by means of the
process of contempt.^ And where a defendant, in contempt for want
of an answer, had put in three insufficient answers, and pending a

1 Corbfitt \. Ml/em, 1 Cham. I!ec. 20. 2 Haynen v. Ball, 5 Beav. 140.

3 IIoHkinit V. Lloyd, IS & S. 393 ; Chucif v. Cremer, I C. P. Coop. t. Cott. -247, and see Woodward V.

Twinaine. » Sim. 301 : 14 Jur. 20 ; Uerrett v. Reynolds, 2 Oiff, 409 : « Jur. N. S. 880.
1 Smith V Blofleld, 2 V. & B. 100.
a Anon, 15 Ves. 174 ; and the practice is the same, whether the defendant be actually in custody or

not ; Oldjield v. Cobbett, 1 Phil. .157.
(i Woodward v. Twinaine, and Uerrett v. Reynolds, ubi sup.
. 7 Anon, 15 Vcs. 174 ; see also Smith v. Blojield, ubi sup.

.X

1728

COMPELLING ANSWER — PROCEEDINGS IN DEFAULT.

U( p

reference of the fourth, put in the fifth answer, which was accepted
by the plaintiff, upon which a motion was made that the defendant
might pay the costs of the contempt, and of the four insufficient
answers. Sir Thomas Phiraer, V. C, held, that he could not
accede to the motion.^

In the case of Livingston v. Cooke,^ it appears that Sir Lancelot
Shadwell, V. C, decided, that a mere order to amend the bill did
not operate as a waiver of the contempt : upon the ground that it
creates no obstacle to the defendant putting in his answer ; it was
admitted, however, that an order to amend, and for the defei^dant
to answer the exceptions at the same time, does operate as a
waiver of the contempt, as it prevents the defendant from putting
in his answer.

It is to be observed, that a step taken in the cause must, in order
that it may have the effect of a waiver of contempt, be in the cause
itself in which the contempt has been incurred ; therefore, where a
plaintiff" was in contempt for non-payment of some costs, the filing
of a cross bill by the defendant was held not to l>e a waiver of the
contempt by the defendant, so as to permit the plaintiff' to make a
motion in his own cause. ^

Where any of the processes of contempt before referred to have
l)een irregularly issued, the defendant should apply to the Court on
motion, and notice to the plaintiff, supported by affidavit, to set
them aside or discharge them with costs ; and we have seen, that
the circnmstance of his being in contempt will not preclude liis
making such an application.

Where a sole plaintiff' died, leaving a sole defendant in custody
for contempt, he was ordered to be discharged from jn-ison, on his
own motion, supported by affidavit proving these facts.*

It is to be observed, that the Court will not permit the regularity
of its process to be decided upon by any other tribunal ; and tliere-

1 Const V. Ehern, 1 Miul SSO, 531. It neeiiis, however, that accfirding' to the practice, in taxation us

between party and party, the costs of the contempt, even wliere there is a decree for the plaintiff
with coHts, will not be allowed him as costs in the canse : Atturney-Gnneral v. Lord Carrimjton.

2 9 Sim. 408 ; but see Sytiionds v. Dtichr^tg o/Cumberland, 2 Cox, 411.
:» Gompertz v. Best, 1 Y. & C. Ex. «1!».

4 Terrell v. Soiich, 4 Hare, 535.

jceptecl
iendant
ifficient
lid not

jancelot
bill did
that it
; it was
)fe4daiit
},te as a
L putting

in order
the cause
, where a
the filing
er of the
make a

to have
Court on

[it, to set
[een, tliat
jlude liis

custody
ki, on his

igularity
id there -

li tiixatioii iiJi
the plaintiff
I Carringtoii

HOW CONTEMPTS CLEARED, WAIVED, OR DISCHARGED. 1729

fore, in Frowd v. Lawrence,^ where a defendant, who had been
taken into custody upon an attachment which was irregularly
issued, obtained an order to discharge the attachment with costs,
and afterwards commenced an action against the plaintiff and the
sheriff, for false imprisonment, and another action against the
plaintiff for maliciously suing out the attachment : Lord Eldon,
upon the authority of Bailey v. Dercreux,'^ and Mai/ v. Hook,'^
made an order for an injunction to restrain the defendant from
proceeding with his actions at Law. His Lordship, however, held
that, by such an injunction, the Court does not intend that the
persons concerned in issuing the attachment are not to make the
party satisfaction ; but only that it should not be done by an action
at Law : because "it is impossible, from the nature of the thing,
that they can try the regularity of an attachment in a Court of
Law ; " and he, therefore, ordered, that the injunction should be
without prejudice to any application that the defendant might be
advised to make for compensation, or for the costs at Law. The
name principle was afterwards acted upon by Lord Lyndhurst, in
Ex parte Clarke.'^ It seems, however, that leave will be given to
bring an a^j^ion for the damages suffered by the irregular process,
if the Court considers that the question can be better adjudicated
upon at Law."'

Ii is to be remarked that, in James v. Philips,^ where the irregu-
larity in the process had been occasioned by one of the Registrars
of the Court not entering the attachment, although he or his agent
had received the usual fee for so doing, the Court ordered the
Master to tax the defendant's costs out of pocket, and directed
that they should be paid by the plaintiff, who was reported to have
been guilty of the irregularity, but that they should be paid over to
the plaintiff by the Registrar ; after this the Registrar died, and
the costs having been taxed at 58?., the matter came on again upon
petition, when the Court being of opinion that, as the Registrar
liad received his fee, his omitting to enter the attachment was a
breach of contract, and not a mere personal neglect, made an order

1 IJ. & W. 055. 2 1 N'orn. 20): 1 J. ii W. (JOO, n..

:i Cited 2 Dick, «1V) ; reported 1 J. & W. 66'}, ii.

4 1 R. & M. 503, 570 : and see Moore v. Moon; 25 Beav. 8 : 4 Jur. N. S. 250 ; Walker v Mickletliaait,

I Dr. it S. 40 ; see also Airoicsiiiiili v. Hill, 2 Phill. 009, 012 ; Ex parte Van Saiidau, 1 I'lilll.

445, 448, n. :i).hir. 193.
"' Whitehead v. Lynet, 11 Jur. N. S. 74 : 13 \V. U. 300, M. R.
Ii 2 P. Wins 057. As to the responsibility o( itiiblic officers, xec Tobin \ . The Quern, Ifi C. B. .V. S.

310 ; 10 Jur. N. S. 1029.

if:

t

"^4p

1730

COMPELLING ANSWER — PROCEEDINGS IN DEFAULT.

for payment, by the administratrix, out of the Registrar's assets ;
and there being no one in Court to admit assets for her, it was
ordered that she should be examined as to assets. „

If a party wishes to discharge a process for irregularity, he must
make his application before he complies with it : otherwise, he will
be considered as waiving the irregularity.^ Thus, where a defend-
ant has been taken upon process of contempt for non-appearance,
he must not enter his appearance in the ordinary way : otherwise,
his appearance will cure the defect ; he must, however, submit
himself to the jurisdiction of the Court, in such a manner that, if
his objection is held invalid, the plaintiff shall not be deprived of
the benefit of his process. The Court, therefore, before the Orders
of August, 1841, required the defendant, before moving to dis-
charge the attachment, to enter a conditional appearance with the
Registrar :' the effect of which was, to enable the plaintiff, in case
the Court should decide that the process had been regularly issued,
to send the Serjeant-at-Arms at once, without any intervening pro-
ceeding ; but the 7th of those Orders*^ provided, that no order
should thereafter be made for the Serjeant-at-Arms to take the body
of a defendant, to compel appearance. Accordingly, in the case of
Price v. Webb^ Sir James Wigrani, V. C, directed, that the order
for liberty to enter the conditional appearance should be made,
upon the consent of the defendant to submit to any process which
the Court might direct to be issued against him, for want of
appearance, in case the subpoena should not be set aside for
irregularity.

Query. — Whether a party whose committal has been ordered for
breach of an injunction, and against whom a sequestration has
been granted for the same contempt, can move against the writ
before clearing his contempt f'

It is to be observed, that a subsequent appearance by a party
cannot be construed to have a relation back, so as to bring him
into contempt for disobeying a writ or other process issued bftfore

1 Anwn. 3 Atk. 567 ; Floyd v. Nangle, ih. 569 ; I}ound v. Wells, 3 Mad. 484 : Rohiimon v. yash, 1

AiiHi. 7(i
•2 DavidHoii V. Marchioness of Hastings, 2 Keen, 509.
3 New K irlishOrd. X. 10.
\ 2 Haro, .''•ll : and pee Braithwiit's Pr. 321.
5 Prentiss v. Jirennnu, 1 Grant, 4i)7, and 428.

HOW CONTEMPTS CLEARED, WAIVED, OR DISCHARGED. 1731

issets ;
it was

le must
he will
defend-
jarance,
herwise,
submit
that, if
jrived of
e Orders
T to dis-
with the
f, in case
ly issued,
aing pro-
no order
the body
le case of
the order
made,
iBs which
want of
iside for

his waiver of the informality had made the process valid against
him ; and therefore, where an attachment was issued against a
defendant for non-appearance to a subpoena, which had been issued
against him, and in which he was described by a wrong name, it
was held, by the Court of Exchequer, that his appearance for the
purpose of discharging the attachment would not relate back, so as
to cure the defect in the subpoena, and bring him into contempt for
not appearing in time.^

It should be noticed also, that the principle of waiver applies
only to an irregular, and not to an erroneous order ; and therefore,
where an order had been made that service upon the attorney
should be good service, and service was accordingly effected upon
the attorney, who thereupon entered an appearance, but it was
found, afterwards, that the affidavit upon which the order for sub-
stituted service had been made was insufficient, whereupon the
defendant moved to set aside that order and all the subsequent
proceedings : Sir John Leach, V. C, made the order, on the ground
that the original order was erroneous, and not irregular ; and that,
being erroneous, the defect was not cured by the subsequent
appearance of the party. ^

A party is not in contempt for non-compliance with the order of
Court, until the opposite party by some step brings him into con-
tempt ; if such party omits to do this, he cannot urge the con-
tempt in bar to a proceeding by the party so in default, or urge it
in extenuation of his own laches.^

I

%

%;

l:dered for

ition has

the writ

1 Robinson v. Nash. 1 Anst. 76.

2 Uvi V. Ward, 1 S. & S. 334 ; see Whittington v. Edwards, 3 De O. & J. 243.

3 Gillespie v. Oillespie, 2 Cham. Rep. 267.

a

party

rmg

him

led before

ion V. Xasli, 1

H

( 1732 )

CHAPTER XXXIX.

J THE WRIT OF NE EXEAT PROVINCIA, OR WRIT OF ARREST.

Oc.

When issued.

A Ne exeat provincia is a writ which issnos to restrain a person
from going out of the province without the leave of this Court. It
is a high prerogative writ : which was originally applicable to pur-
poses of State only, but was afterwards extended to private
transactions.^

A ne exeat issues, only, where the claim upon the party
going abroad is equitable ; and it will be refused upon a mere
demand at Law for money : for there, it is said, " the defendant
may Be arrested, and obliged to give bail : who will be liable, unless
they surrender him ; and he may be as easily take^: i.nat pro-
cess as on a ne exeat."^

It is not, however, the mere circumstance, that the defendant
may be arrested and held to bail at Law, which induces the Court
to refuse a ne exeat for a legal demand. It will not even grant
it in cases where the defendant is not liable to arrest.^

The Court will issue the writ wherever one party has a cliiim
against another, which he can only enforce in a Court of Equity.
Therefore, where a man had executed a bond to the trustees of his
marriage settlemcint, a party, beneficially interested in the money
secured by it, was allowed to have a ne exeat against the obligor.^
It is, however, to be observed, that,' in a case where a bill was filed

1 Bx parte Drunker, 3 P. Wms. 313 ; Anon., 1 Atk. 521 ; Jackson v Petrie,^\0 Yes. 164 ; Beanuf ii
ye exeat, 19.

•2 Per Lord Hardwicke, In Pearne v. Pitle, Amb. 76 ; see also Brocker v. Hamilton, 1 Dick. IM ;
Orenmea v. Stritho, 2 Dick. 469 ; Ex parte Buncombe, ib. 503 ; Cronley v. Marriott, ib. 609 ; Bt
parte Brunker, iibi gup. ; Anon., 2 Atk. 210 ; S. C. rutm. King v. Smith, 1 Dick. 82 ; Anon., 1
Bro. C. 0. 376 : Atkinnon v. Leonard, 3 Bro. C. C. 218 ; and see 1 & 2 Vic. c. 110 ; Chitty't Arcb,
750, et »eq., and Absconding Debtors Arrest Act, 1851 (14 & 15 Vic. c. 52): Chitty's Arcij. 880, «(
»«g.

:i Gardner v. , 15 Ves. 444.

4 Leake v. Beake, IJ. & W. 605 ; and see Grant v. Orant, 3 Rush. 598.

WHEN ISSUED.

1733

BT.

a person
Court. It
ale to pur-
to private

the party
)Oii a mere
3 defendant
tble, unlesB
tnat pro-
defendant
Is the Court
even grant

Ihas a claim
|t of Equity,
istees of his ,
the money
[be obligor.*
lill was filei^

Lto«, \wj^9?''ii '

W. 82; ^no?--'
i[lO;C/ii«!/'»ArCi

Ktty'i Arch. w. •'

by a residuary legatee against the executor and a debtor to the
estate, stating that, by collusion between them, the debt was suf-
fered to remain unpaid, and that the debtor was about to leave the
country, Lord Eldon refused the application for a ne exeat, saying,
he did not know any instance where it had been done.' It is to be
recollected, that the foundation of the equity in this case was the
collusion, alleged in the bill, between the executor and the debtor :
his Lordship's decision, therefore, was probably governed by the
principle laid down by him in a case, mentioned by Mr. Beames, ^
in which the .plaintiff filed his bill on the ground of fraud, stating
a large balance to be due to him from the defendant ; and Lord
Kldon refused the writ.

It sti'^ms th.it, where, upon the taxation of a soiiciitor's bill, he
appears to have been over-paid, the Court will grant a ne exeat to
prevent his going abroad without requiring a bill to be previously
tiled.3

The Arrest and Imprisonment for debt Act](Consolidated Statutes
LLC, ch. 24) provides for the issue of writs of ne exeat provincia.
Sections 8, 9, 10 and 11, point out in what causes they are to issue,
the limit of bail in cases of alimony, and the conditions of the bail
bond, to which the reader is referred. The 5th section specifies
the particulars which must be established to the satisfaction of a
•ludge before he will issue an order for a writ of arrest (as writs of
ne exeat are called by the Statute) : and the English cases must be
read in connexion with this Statute, or otherwise the practitioner
may be misled. In framing the affidavit for the order the practice
and decisions in the Common Law Courts under Section 5 will form
a guide, as the rules which govern at law will be followed in this
Court.

M. having by fraud induced H. to advance money on mortgage
upon the assurance that the title was correct, although well aware
that the party executing the mortgage had no title, a writ of ne
I'.teat was issued against him. A motion to discharge the writ on

I Graven v. Griffith, 1 J. & W. C46.

i Beames on Ne exeat, &2. Heealao Jaekton \. Petrie, 10 Vea. 104.

■■\ Uyd V. Cardy, Prec. in Ch. 171 ; but see Ex parte Brunker, S P. Wms, 312.

'k

/I

1734

THE WRIT OP ARREST.

■M

Qc,

the ground that the bill alleged that the debt arose out of the
fraudulent conduct of the defendant, was refused ^ith costs.^

Although the Court will not grant a ne exeat where the
demand is at Law, it will not refuse it merely because the plaintiff
might have relief at Law, if the case be one in which the Court of
Chancery has a concurrent jurisdiction : as in the case of a suit
for an account.^ So, also, the Court will grant the writ upon a bill
to recover the amount due upon a bond which has been lost ;
although, by the present practice of the Courts of Law, a plaintiff
may now declare upon a lost bond, which lie could not do formerly :
for the Court of Chancery does not consider that the circumstance
of a Court of Common Law having, by an extension of its rules,
acquired a concurrent jurisdiction, is sufficient to defeat the juris-
diction in Equity.'*

The same principle will also extend to cases of specific perform-
ance : for although, in such cases, the vendor may have a right to
proceed at Law for the recovery of his purchase-money, yet, as
Equity has a concurrent jurisdiction in such matters, a ne exeat
will be issued to restrain the purchaser from going abroad till he
has given security for the amount of his purchase-money.^ There
appears to have been some doubt whether, in cases of this des-
cription, the Court will grant the writ before there has been some
decree establishing the plaintiff 's right to specific performance;
and it seems that the writ should not be granted, unless the Court
can make it out to be quite clear that there must be specific per-
formance.^

The writ will be granted, although the defendant has other pro-
perty than that which is the subject of the suit ; and it does not
make any difference that, in such a case, the vendor has in Equity
a lien upon the property sold for the amount of his purchase
money, which he may enforce by selling the property ; and it
seems that, even where the defendant has a claim for an abatement

1 Hunter v. Moiintjoy, (i Grant, 433.

2 Jovea V. Alephxin, 16 Ves. 470 and see Jones v. Sampaon, 8 Ves. 693 ; Rusiell v. Aiiby, 6 Ve«. 96 ;

Ammnck v. Barklay, 8 Ves. 697 ; Uannay v. McEntire, 11 Ves. 55 , Howden v. Jiogers, 1 V. & B.
\29;Dick v. Swiiiton, ib. 371.

3 Atkinxun v. Leonard, 3 Bro. C. C. 218, 224.

4 liO'hin V. Wood, T. & R. 332, 336, 346; see also Raynen v. Wyte, 2 Mer. 472 ; and Goodwin v. Clarke,

3 Dick. 497 : which, however, appears not to have be.n rightly decided : see T. & R. 346.

5 Morris v. McA'eil, 2 Russ. 604 ; and see Ooodwin v. Clarke; Raynes v. Hyoe, and Boehin v. Wood,

ubi sup.

WHEN ISSUED.

1735

)f the

ire the
laintiff
ourt of
a suit
a a bill
a lost;
)laintifE
rmerly :
Qstance
;s rules,
le juris-

perform-
right to
, yet, as
ne exeat
till he
There
lis des-
en some
mance ;
Court
ific per-

le

her pro-
oes not
Equity
urchase
and it
tement

L 5 Ve«. fi6 ;
U, 1 V. & B.

kn V. Clarke,
Ytn V. Wood,

out of the purchase-money, which however has not been ascer-
tained, the writ will be granted for the whole.*

An attempt has been made to extend the principle, that, in the
case of a suit for the specific performance^)f an agreement, the Court
will grant the writ, to a suit for the specific performance of a cove-
nant to indemnify ; but the Court was of opinion that the right of
a party, entitled, by agreement, to satisfaction by way of damages
for the non-performance of the agreement, to come into Equity to
enforce that satisfaction, was extremely doubtful ; and held that,
although, where the equity is clear, but the facts are in dispute, the
writ may be sustained, yet, that where the equity is matter of grave
doubt, the plaintiff, however specific his allegation may be, cannot,
c^enerally speaking, have the writ.^

But, although the Court of Chancery will grant this writ in cases
where the Court has concurrent jurisdiction with the Courts of Law,
it will not permit the defendant to be harassed by a ne exeat, where
he has already been held to bail in a Court of Law for the same
demand ; and if, under such circumstances, the writ has been
issued, it will be discharged. Therefore, where the defendant had
entered into a contract with the plaintiff for the purchase of an
estate, and the plaintiff had arrested him at Law and held him
to bail for the amount of the purchase-money, which bail was
afterwards disch?.rged in consequence of the plaintiff having dis-
continued the suit, a writ of ne exeat, subsequently obtained by
the same plaintiff upon a bill to enforce the same contract
was discharged.-^ So, also, where a defendant had been held to
bail at Law, in an action commenced against him by the plaintiff,
for the balance of an account, and it was afterwards found more
convenient to proceed in Equity, whereupon the defend-
nant was discharged from his arrest at Law, and a ne exeat was
issued against him by the Court of Chancery, Lord Eldon dis-
charged the writ.*

A writ of ne exeat may, however, be granted against a defendant
who has been arrested at Law, if his arrest has taken place in
respect of another demand.^

» ' ' '

1 Boehm v. Wood, T. & R. 338 : and see Goodwin v. Clarke, i Dick. 497.

•2 Jenkim v. Parkinson, 2 M. & K. 6. 3 Rayties v. Wyme, 2 Mer. 472.

4 Aintinck v. Barklay, 8 Ves. 594. 5 Uouikim v. Howkim, 1 Dr. & Sm. 75 : 6 Jur. N. K 490.

^

173(i

THE WRIT OF ARREST.

'1 •

•'si ^

It''

In order to authorize tlio Ihhul of a ne exeat, the demand must
not only hv equitable, but it must be a pecuniary demand ; there-
fore, the Court has refused to j^rant the writ, upon a bill to enforce
an agreement by which the defendant had undertaken to give the
plaintiff a bill of exchange^ as a security for a demand.'

And* the demand must not only be pecuniary, but it must be
actually due.^ The writ will not be issued in respect of a claim
which is merely contingent : therefore, where it was nothing more
than the demand of a wife against her husband, by virtue of a
marriage agreement, in case she survived him. Lord Hardwictii
refused tlie application : as the contingency was one which miglit
never liappen.'' The writ may, however, be issued in respect of an
interest whicli is vested, although subject to be divested/ Where
the debt's becoming due does not depend upon a contingency, but
is certain, yet, if it is payable infuturo, the writ cannot be granted ;
and, therefore, a ric exeat to restrain the defendant from going
abroad, for the purpose of evading the payment of a sura of money
which he had been ordered to pay into a banking house, as the
condition of the Court's granting an injunction, was refused :
because the time when the party was bound by the order to pay the
money, namely, a month from the date of the order, had not
arrived."' It would seem, however, that if, between the date of an
order for an injunction and the payment of the money into Court
at a future time, there is a substantial threat that the party, who
ouglit to pay, will go abroad, the practice of the Court is to order
him to pay the money instanter, or to dissolve the injunction.**

To entitle the plaintiff to the writ, he must be in a situation
either to swear positively that so much is actually due,''' or in some
other manner to point out to the Court the sum to be marked on
the writ.** The only excepoion to the rule, which requires that the
plaintiff' should be in a situation to swear positively that a certain
sum of money is due, is in the case of a suit for an account : in

1 niaydes v. Calvert, 2 J. & W. 211 2 Wkitehouae v. Partridge, 3 Swanst. 265, 377.

3 Anon., 1 Atk. 521. i Hawkins v. Houikins, 1 Dr. & Sni. 75.

5 Whitehouse v. Partridge, ribi tup. ; and see Cock v. Ravie, 0 Ves. 283 ; Dawnon ▼. Dawton, V

Ves. 173 ; Haffey v. Haffey, 14 Ves. 261.

6 Whitehoute v. Partridge, ubisup.

T Rico V. Oualtier, 3 Atk. 601 : Arum., IBro. C. C. 376 ; Shertnam v. Shermam, 3 Bro. C. C. S70;«M

also Butler v. Butler, cited in Beamet on Ne exeat, 52.
8 Boehm V Wood, T. & R. 332.

1(1 must
; there-
enforce
^\\e the

miiRt be
' a chiim
ins more
I'tue of fi
urdwiclii^
ch miglit
lect of an
.•* Where
;eney, but
1 granted ;
om }?oing
of money
Be, as thr

refused :
,0 pay tb«

had not
ilate of an
[nto Court

larty, who
,8 to order
ftion.*

situation
)r in some
larked on
38 that the

a certain
pcount : in

266, 377.
T, Damon,'i

lo. C. 0. S70;»e«

WHEN 1S8UEI).

1737

which it will be sufficient, if the plaintiff can swear that, accord-
ing to the best of his belief, any particular sum, at the least, would
be found justly due to him upon a balance, if the account was
taken ;^ but the writ will not be issued if the account is contested;
nor unless it appears, on the defendant's own showing, that some-
thing is due from him.^

This writ was originally applied only to persons domiciled in this
country ; but for a long course of years it has been settled, that,
if a man living in Scotland,^ or Ireland/ or in our colonies, or in
other parts of our dominions,'' or abroad," comes here, the writ of
tie exeat may issue against him : although he comes here for a
particular purpose only, and intends to return immediately.

Upon this principle, the writ has been issued at the instance of
an inhal)itant of one West India colony against an inhabitant of
another, who was only here for a casual purpose.' It was formerly
thought, that, where the debt was contracted abroad, and might
have been recovered in tlu! Courts there, the writ should not be
issued.** It is, however, now settled, that a writ of ue exeat may
issue against any defendant whos^ residence is out of England, in
respect of a debt contracted abroad and recoverable there.^

It seems also, that the writ will be granted where the plaintiff is
an Englishman, and the defendant a foreigner ;^° but whether it
can be granted, where the phiiutiff and defendant are both foreign-
ers, and the debt was contracted in their own country, appears to
be doubtful :" although, if the question is between two foreigners,
but the subject matter has risen in this country, the writ will be
granted.^"'

1 Rico V. GuttUifr, ;{ Atk. 501, and Butler \. Uutler, cited in Bvame» on AV Kxi'at, 62 ; Jaekmm v.

Petrie, 10 Ves. 164 ; but see Whitehead v. Bermett, 10 Jur. 3, V. C. E.
•i Thompson v. Smith. 11 Jiir. N. S. 270 : 13 W. K. 422, M. U.

3 Mackintoith v. Ogilvie 1 Dicli. 119 ; Dove's case, 1 P. Wnis. 263.

4 Howden v. Rogers, 1 V. k B. 129 ; but see Bemal v. The Marquin vf Donegal, 11 Vcs. 43, where it

was refused ou the tpxiund of parliamentary privilege : the defendant being a representative in
Parliament of an Irish borough.
6 Per Lord Eldon, in Flack v. Holm, 1 J. & W. 405, 416.

6 Howkim v. Howkim, 1 Dr. & Sm. 78 : 0 Jur. N. t. 490 : Anon., 4 De G. & S. 547.

7 j1 tAiiwonv. Leonard, 3 Bro.C. C. 218. . . <
a Bo'>ertson v. Wilkie, Amb. 177 : 2 Dick. 786. See also Pearne v. Lisle, Amb. 76. .

9 Howden v. Bayers, xtbi gup. ; but see Vanzeller v. Vanzeller, 15 Jur. 115, V. C. K. B. • ' '

10 Flack v. Holm, ubi sup.

11 Flack V. Holm, 1 J. & W. 405, 417 ; and see TalUyrand v. Boulanger, 3 Ves. 447 : 4 Ves. 686 : 1 J.

& W. 417 ; Vanzeller v. \anzelUr, 16 Jur. 115, V. C. K. B.

12 Dt Carriere v. De Calonne, 4 Ves. 677, 591.

c .

1788

THE WRIT OF ARREST.

Semhle, that the bail of a defendant who has been arrested on a
writ of ne exeat cannot be discharged from tlieir bondH upon the
defendant rendorinp; hiniHelf to the custody of the Sheriff.^ The
writ of ne exeat granted after lihng a bill in an alimony Huit remains
in force after decree ; but it is no objection that the wife renides
out of the juriwdicticm, as during coverture, the domicile of the
huHband is the domicile of the wife.-

2c.

The writ will not be isHued where the plaintiff is resident
abroad f and wliere the writ had been issued ut the instance of a
plaintiff who was resident in Jamaica, against a defendant who
was resident in tlie same colony, it was discharged, on the ground
that the plaintiff resided abroad, and that his visit to this country
was colorable and temporary only.^ The same rule has been acted
upon in subsequent cases.**

The writ may be issued against a party who is going abroad in
the course of his ordinary business."

A writ of ne exeat will not be granted against a feme covert
administratrix.^ The question whether it will be granted, at the
suit ol a feme covert, against b^^r husband, has been much dis-
cussed ; and in a case before Lord Thurlow, he refused to grant the
writ at the instance of a feme covert administratrix against her
husband, on her affidavit that he had possessed the assets and was
going abroad.** The decision proceeded upon the ground that the
evidence of the wife could not be received against the husband.
There seems, however, no reason why, in the cases in which the
Court of Chancery recognises the right of a wife to maintain a
suit against her husband : as when she has property settled to her
separate use : the Court should not allow the wife to make an
affidavit in support of an application to restrain the husband h m

1 McDonald v. McDonald, 1 Cham. Rep. 22.

2 ifttrf, 5, U. C. L. J.,«6.

3 Hyde v. Whitfield, 19 Yes. 342.

4 Smith V. Nethemole, 2 R. & M. 450

6 Walker v. Christian, and Douglan v. Terry, 2 R. & M. 45i), n. ; Walker, v. Christian, 7 Sim. 367.

6 Stewart v. Oraham, 19 Yes. 313 : Dick v. Swinton, 1 Y. & B. 371 ; see also Tomlinson v. Harriion,

8 Yes 32 ; Etches v. Lance, 7 Ves, 417 ; Loyd v. Cardy, Prec in Ch. 171 ; Baker v. Dumaretqiu,
2 Atk 66

7 Panneil v. 'Xayler, T. & R. 96.

5 Sedffuriokv. Watkin»,3BT0. CCU: iye». J. 49. „

3d on a

pon the
f.i The
remains
reHidcH
9 of the

resident
nee of a
lut who
; ground
country
sn acted

broad in

le covert
i, at the
uch dis-
;rant the
inst her
and was
Ithat the

usband.
Ihich the
intain a

d to her
ake an

,nd fi m

WHEN ISSUED.

1739

I7 Sim. 867.
' V. Harriion,

defeating his wife's right, by removing out of the jurisdiotion of
the Court.*

Tlie writ will be gruutid on the application of a lunatic by bin
committee : the affidavit l)eing made by the committee ; '^ and the
Court may direct the sM'it to issue, wherever a party has made
himself liable to the debt of another : even though he has not been
called upon to i)ay the demand.^

In order to entitle a plaintiff to a writ of ne exeat he must, by
his bill, give the defendant all the information in his power : so
that he may have a reasonable opportunity of meeting it, as dis-
tinctly and rapidly as possible.*

It is not necessary that the writ should be prayed by the bill :
although, where the application is intended to be made immediately
on the filing of the bill, it is usual to do so, if, at the time of filing
the bill, the plaintiff is aware of the defendant's intention to go
abroad.^ it frequently happens, however, that the defendant's
intention to go abroad arises, or is first discovered, in the course
of the suit, and then there is no doubt that the writ would be issued,
tliough not asked for by the bill.® , . ■

In general, the writ will only bt; issued at the instance of the
plaintiff, and upon a bill filed -J but it has been stated, and not
denied, that it can be obtained by a defendant against the plain-
tiff f and it seems that, in matters of account, it may be obtained
by a defendant against a co-defendant.'-^ It has also been granted
in a suit commenced by an administration summons i^^ and against
a contributory, under the Winding-up Vet." Where, also, upon the
taxation of a solicitor's bill, he was reportcid to have been ovtirpaid,

1 In Bagot v. Hagot, where real eutate was bettled t<> the separate use of a married woman, Sir

Lancelot Shad well, v. 0., granted a receiver aii^ainst tlic husband, before answer, upon notice:
the facts of the case bein;; verified by the affidavit of the wife alone : MS. December, 1838 ; and
nee StMftoi' V. Sha/toe, 7 Ves. 171 ; De Afann-eviUe v. Dc ManncmUe, 10 Yes. f>6 ; and Mr. Belt's
note to Sedgwick v. iVatkinti, 3 Bro. 0. C. 11.

2 Stewart V. Graham, 19 Ves. 313.

3 Sealy v. Laird, 3 Swanst. 368, n. 4 AndfiTHon v. Stamp, 11 .lur. N. S. 169, V. C. W.

.5 Moore v. Hudson, ii Mad. 218 ; Bamed v. Laing, 13 Sim. 2.5.'> ; 7 Jur. 383 ; Whitehead v. Bennett,
10 Jur. 3, V C. E. ; Howkin* v. Howkim, 8 W. R. 408, V. 0. K ; but see Sharp v. Taylor, 11
Sim. 50, an plained in 13 Sim, 257.

6 ColUnnon y. , 18 Ves. 3.53. 7 Ex parte Br anker, 8 P. Wms, 312 ; Aima., « Mad. 278.

8 WhUi'.hoxae v. Partridge, 3 Swanst. 365, 374.

« 2 Eq. Ca. Ab. 5, pi. 3, Di»ie'$ eate. 1 P. Wms. 263.

10 Re OreUKhy, Cleaver v. Vounger, 27 Dec. 1852, V. C. K. ; Seton, 0«1 ; Braithwaiie'ii Pr. 232.

11 Mauser' K ca»e, 4 De G. k H. 349 ; and see " The CompanieH Act, 1862," (26 & 26 Vic. e, 89) 8S. 118, 119.

1740

THE WRIT OF ARREST.

Q
Ui

§

the client obtained a ne exeat, to prevent his going abroad, though
there \YaB no bill in Court whereon to groand the writ.^ In this
last case, however, the demand was capable of being enforced by
means of the authority exercised over solicitors as officers of the
Court.

^ Hou' (f ranted.

The application for a writ of ne exeat is made by an ex parte
motion, and may be made before service of the copy of the bill ; dlie
reason of which is, that the giving notice might operate to occasion
the mischief which the writ is intended to prevent, by giving the
party an opportunity of removing from the jurisdiction.'-^ For the
same reason, notice of the motion is not required, even alter the
defendant hab appeared ; •' but the application should be made as
promptly as possible,'* and must be supported by evidence (which
is usually given by attidavit). of the existence of the debt, and of
the intention of tiie pariy to go abroad.'' It does not appear to be
necessary that an affidavit in support should be made by the plain-
tiff himself: although it is usually made by him. unless he is
under some legal disability : as in the case of lunacy, when, as
has been already stated, it may be made by his committee.** A
feme covert may also, as we have seen, in certain cases, make an
affidavit in support of a motion for a ne exeat, to restrain her hus-
band from going abroad.'' The writ has bee)£ issued on the affidavit
of an infant of the age of eighteen years.**

No rule is more strong than that the writ shall not issue without
a positive affidavit ; and that an affidav'^ as to information and
belief only will not be sufficient." The aiLdavit must be as positive
as to the equitable debt, as an affidavit of a legal debt to hold to
bail -^^ and even where the affidavit is positive, yet, if it appears
that, under the circumstances, the '^ >ponent could only ha\''

1 /yof/d V. Cardy, Prec. in Ch. 171.

2 Ellwt '■ . Sinclair, Jac. 545 ; and sco CoUinson v. , 18 Ve«. 353. The app!ication nia.v be

luadii oy jietiMon : though in practice this is very rarely done. Where the suit is vommenced by
administration order the application may be made by motion.
S Elliot V. Sinclair, ubi sup.

4 Jackson V. I'etrie, 10 Ves. 164 ; Dick v. Stvinton. 1 V. & B. 371.

5 In Roddam r. Ifetherington, 5 Ves. 91, 95, Lord Bosslyn said, ho did not recollect any instance where

a nf exeat had been applied for upon admissions in the answer ; but that the af'.mission would
certainly do as well as an affidavit.
9 Ante. 7 Ihid.

■ 8 Roddam v. Hetherington, ubi sup. ■ . <

9 Ihid.; Darlep y. Nicholson,! Dr. it yfw. 66. ■ /,

to Jackson t. Petrie, ubi sup. ; and see at Law, Chitty's Arch. 740.

though
In this
)rced hy

8 of the

ix parte
bill; the
occasion
iving the
For the
after the
made as
;e (which
t, and of
lear to be
the plain-
ess he is
when, as
ittee.** A
make an
her hus-
affidavit

|r3 without

iion and

[s positive

hold to

appears

ily hav'^

ication may be
Commenced by

Instance where
Imission would

HOW GBANT£D.

1741

acquired his knowledge from the information of others, it will be '
insufficient. Thus, where a iie exeat had been obtained on the
affidavit of the plaintiff, who was an infant, it was discharged,
although the affidavit was positive : because it appeared, from the
statement in the bill, that the plaintiff', who was eighteen years of
age, could only have known some of the facts deposed to from the
information of others.^

The only exception to the rule, that the affidavit must be posi-
tive, is, "as we have seen, in the case of jin account : in which the
plaintiff may swear, that, to the best of his belief, such a sum will
be due to him on the balance. "

It is also necessary that the evidence, on which the auplicati(m
for this writ is founded, should show that the defendam intends
going abroad. It seems, formerly, to have been thought, that an
affidavit was, in this respect, sufficient, if it merely stated a belief
of the defendant's intention to quit the kingdom, without going into
the circumste.nces upon which that belief was founded.* But it is
now held, that an affidavit, to obtain this writ, must be positive as
to the defendant's intention to go abroad, or to his threats or
declarations to that effect, or to facts evincing it ;* and must show
the means of knowledge of the deponent. In Oldham v. Oldham,^
the Court observed : " it is not sufficient to swear that another
person said so ; " but this must be understood with some qualifi-
cation : for, in a subsequent case, where the affidavit was made,
"not by the plaintiff, but auotLer, to his belief of the defendant's
intention to quit the kingdom, uyon information received from two
persons of his family that they were about to go to the Isle of
Man," the writ was granted by Lord Eldou : who, after stating
that the point had frequently embarrassed him, expressed himself
thus : " But there are cases in which the Court appears to have
regarded, and acted upon, the nature of the information and belief.

I Roddam v. Uetherington, 5 Veu. 91.

S Ante. ^ ,r

» Beameg on A'e exeat, :J3 ; Rttstell v. Atby, 5 Ves. »6: see also ChajHsauronge v. Carti-aux, 8 Yea

4 Beame$ on Ne fxeat, 33 ; Anon., 2 Ves. S. 439 ; Oldham v. Oldham, 7 Ves. 410 ; EtchfH v. Lanee, ib.

in-.Amsinckv. Barklay, 8 Yea. 597 ; Wajwioy v. McEntire.W Ves. 54; JoneH v. Alephgtn, 16
es. 470 ; .see also Taylor v. Leitch, 1 Dick. 380 ; Shermam v. Shermam, 3 Bro. 0. C. 370 ; Hyde r.

WhUjield. 19 Ves. 342 ; Siehell v. Raphael, 4 1,. T. N. S. 114, V. C. W. A»tothe evidence required

at Law, see Chitty't Arcb. 738.
i T Ves. 410. . .

4

■"■ I

a.:

1742

THE WKIT OP ARREST.

The information is, in this instance, given by persons of the
defendant's family : who, therefore, could not be brought forward
to make an affidavit ; and the circumstance, that the party has not
made the affidavit, has not been considered an objection." In
Knight v. WattH,^ Lord Hardwicke granted the writ upon an
affidavit which, after stating the defendant had denied himself, and
kept out of the way, and had sold off his goods, and left his house
uninhabited, proceeded thus: ''that the plaintiff, upon inquiry
after the defendant, was informed, that one Mr. Bulcock acted as
an agent for liim ; and that, thereupon, the plaintiff and his
solicitor applied to the said Mr. Bulcock : who informed the plain-
tiff, that, unless he would take an assignment of two houses, (to
which the defendant pretended he was entitled, if he arrived at the
age of thirty,) and give the defendant a discharge for all the monies
he had received, the defendant would immediately go abroad, and
would either take with him the deeds, or would burn, or destroy
the same."

The affidavit will be sufficient, if it states, that the debt will be
endangered by the defendant's quitting the kingdom : without
stating that the object is to .ivoid the jurisdiction."

iic.

The order for the writ states the amount for which security is
to be given, and before it will be Aade, the applicant is almost
invariably required to give his undertaking to abide by any order
the Court may make as to damages.* Where the application is
made on behalf of infants, the undertaking is given, by their next
friend signing the Registrar's book.^

The affidavits in support of the application must not be sworn
until the bill is filed f or before a commissioner who is a solicitor
in the cause.'

1 Colliruion v. , 18 Ves. 363 ; Beames on ^e exeat, 34.

2 2 C. P. Coup. t. Cott. 257. The <iefeiidant had been appointed by the plaintiff to eoUeet as

intestate's e tate, and had the deeds in his poweHsion for that purpose : ifi. ; Beainet 3(i.

3 Baker v. Uaily, 2 Dick, 632; Etchen v. Lance, 7 Ves. 417 ; Tainliruion v. Harrison, 8 Ves. 81;

Stewart v. Graham, 19 Ves. 313; Bofhm v. Wwid, T. & R. HZ'i ; and see Vaiuellur v. Vanuller,
15 Jur. 115, V. C. K. B

4 For form of order, see Seton, 969.

6 Jone» V. Sorth, cited Seton, 360.

« Annn.,Q Madd. 276; and see Franeome v. FranemM, 11 Jur. N. S. 123 ; 13 W. R 366, L. C.

7 Ilopkin V. Hopkin, 10 Hare, App. 27 : 17 Jur. 343.

of the
forward
has not
11." In
tpon an
?elf, and
IB house

inquiry
acttd as
and his
le plain-
uses, (to
3d at the
e monies
oad, and
• destroy

)t will be
I without

curity is
almost
ny order
ation is
leir next

10 sworn
solicitor

to collect an
16.

. 8 Ves. 8S ;
Vamelim,

HOW GRANTED.

1743

The writ of ne exeat is directed to the sheriflf, or other officer of
the county or jurisdiction in which the party against whom it is
issued is likely to be found.^ It is prepared by the solicitor of the
party ; and is sealed with the seal of the Record and Writ Clerks'
office. The order for thr writ must be produced, and a pracipc left,
at the time the writ is presented for sealing.

The writ must be indorsed with the name and place of business
of the solicitor for the party issuing it, and of his agent, if any ; or
with the name and place of residence of such partj"-, where he acts
in person, and, in either case, with the address for service, if any ;
and must be marked on the back, in Avords at length, with the
amount of the sum for which the defendant is to give security.
This is done as a guide to the Sheriff, to take sufficient security,
hy bail bond, for the defendant's yielding obedience thereto.-'

Where tlie writ is issued against a personal representative, at
the instance of a legatee, or person claiming a share of the residue,
it must be marked for the whole amount due from the defendant :
not to the plaintiff only, but to all the other persons interested in
the estate ;* and it seems that the Court will sometimes extend the
amount of the securit}' required, beyond that of the debt sworn to,
for the purpose of covering the costs of proceedings at Law.^ In
Bfu'hm V. Wood^ also, the writ was marked for th e full amo- nt of
the purchase-money, though the defendant was entitled to an
abatement : the amount of which, however, had not been ascer-
tained.

Where the writ has been indor od for a larger sum than is really
due, there is no doubt that the Court will make an order that the
security shall be given for so much only as is really due, without
quashing the writ ; and that, too, upon the hearing of a motion to
quash it.'

1 On tluM Hubject, see ante.

2 Boamen on Ne exeat, 93 ; and see form of order, Seton, 069, No. 1.

•i Hindi; Gil. '

i Panncl v. Tayier; T. & R. 100. See Boovey y. Suteliffe, 2 Eq. Rop. 700, V. C. W.
» Bonner v. Worthingtm, Keg. Lib. U19, .* \3, cited Biame* ou Ne exeat, 94. ; •'

6 T. & R. 332. 7 Pamiell v. Tayier, vbi tup.

«-tv-

L. C.

1744

THE WRIT OF ARREST.

Q

Ui p
g

s

9

t • . -'. • ^ How executed.

.1

To carry this process into effect, the writ must be delivered to
the proper Sheriff, or other officer, with instructions for executing
it. By the terms of the writ, the Sheriff is to cause the party per-
sonally, to come before him, and give sufficient bail or security in
the sum indorsed on the writ, that he will not go, or attempt to go,
into parts beyond the seas, without leave of the Court ; and, on
his refusal, he is to commit him to prison. It is said, that it is an
abuse of this process to break open doors, and take the party in
bed ; however, where this had been done, the Court refused to set
him at liberty.^

When a caption is made, the defendant, to obtain his discharge
out of custody, must execute a bond, conditioned as pointed out by
Sec. 11 of the Arrest and Imprisonment for Debt Act.

As the Sheriff is directed by the writ, to cause the defendant to
give sufficient bail or security, he is not bound to take any security
but what he may be satisfied is likely to prove effective. Thus,
where the writ was marked in the sum of 36,000Z., and the defend-
ant, after he was tpken into custody, tendered to the Sheriff, as a
security, the bt' \ of himself and two sureties, in the sum of
36,000^., and a deposit of tliat sum in the Bank of England, in the
joint names of the Sheriff and sureties, which the Sheriff refused
to accept, and, although he afterwards proposed to release the
defendant out of custody, upon his finding four sureties, in 36,000^
each, yet he ultimately insisted that the 36,000Z. should be paid
into his hands before the defendant was discharged. Lord Eldon
lield, that the Sheriff was right in the course he had pursued : for
whatever the Sheriff does, under a writ of nc exeat, is upon his own
responsibility ; and what he liad done, was merely to require a
sufficient security for his having the defendant to produce.'^

From this it appears that, instead of bail, the Sheriff may take
a deposit of the amount indorsed upon the writ.^

1 iVyatt't Pr. R. 200 ; Ciirs. (.*aiic. 466. As to the mode of executing writs, mm aitte.

•2 Boehm v. Wood, T. & R. 332, 340.

3 Hoe Bonitar v. Worthington, Reg. Lib. 1819, A. 28.3.

m ^ '

livered to
executing
party per-
Bcurity in
npt to go,
; and, on
at it is an
3 party in
iBed to set

discharge
ted out by

fendant to

ly security

re. Thus,

he defend -

eriflf, as a

le sum of

^nd, in tlie

refused

ease tlie

n 36,000/.

d be paid

ord Eldon

sued : for

n his own

require u

2

HOW DISCHARGED.

1745

The Sheriff, after he has executed the writ, ought to return it :
indorsing upon it a proper return of what he has done. If he has
taken bail, it may be in the following form : " I have caused the
within named A. B. personally to come before me, and he found

bail in the penalty of M , according to the command of this

writ."* Tf, instead of taking security according to the direction of
the wr't, the Sheriff takes a deposit of the amount indorsed on the
writ, he should make a return to that effect ; and where the Sheriff
omitted to do so, the Lord Chancellor ordered him to make his
return witliin a given time.^

How discharged.

The party may apply by motion, with notice, to discharge the
writ, on the ground of irregularity, or upon the merits, supported,
if necessary, by evidence : which is usually given on affidavit. "^
The defendant may also, by analogy, if he has not been interro-
gated, put in a voluntary answer : which he will be entitled to read
in opposition to the plaintiff's affidavits.* If security has been
jfiven, the notice of motion should state that application will be
made, as well for the discharge of the writ, as that the bond may be
given up to be cancelled.

If, upon an application to discharge or quash the writ on the
ground of irregularity, the Court thinks that it has been improperly
issued, it will at once order it to be discharged. It will not, hoAv-
ever, discharge the writ, merely because it appears to have issued
for a sum exceeding that for which it can be sustained ; but, in
such cases, the amount for which it has been marked will be
reduced.'^ Nor will the Court discharge a writ of this nature,
obtained upon affidavits substantiating declarations and acts of
the defendant as evidence of his intention to go abroad, upon a
counter-affidavit by the defendant denying the intention.* The
Court has also refused to quash the writ, upon the defendant's

may take

I Impey, Off. Slieriff, p. 411.

■i Bonner v. Worthington, Rep. Lib. 1819, A. 233. Ah to compelling the Sheriff to return a writ,

8C6 (I7tt€

;{ Orant v. Grant, 3 Russ. 698, 602 ; and sec Hyd^ v. WhitfieU^, 19 Ves 842 ; Flaek v. Ilohn, 1 J. Jc

W. 405, 418 ; Sxchell v. Raphael, 4 L. T. N. S. 114, V. C. W. ; Seton, 960.
t Anderson v. Stamp, 11 Jur. N. S. 169, V. C. W.
5 Grant v. Grant, 3 Russ. 598, 611.
(i Whitehoxtse v. Partridge, 3 Swanst. 365, 375 ; Am»inck v. Barklay, 8 Vcb. 594, 607.

1746

THE WRIT OF ARREST.

en
Q

tM p

affidavit that no debt was due, and that the plaintiff had made
admission to that effect : the plaintiff having, by his affidavit,
sworn positively to there being a debt.^

The Court will discharge the writ upon the merits, whenever it
appears either that the plaintiff has no case, or tliat the defendant
is not going out of the jurisdiction r and this it will do either
absolutely, or conditionally : that is, upon the defendant's giving
security witli two sureties to answer such sum as may he found
due from him in the cause.*'

The Court, in an alimony suit, on a motion to discharge the
defendant from arrest under a writ of arrest, will look into the
merits of the case so far as to enable it to judge whether tho plain-
tiff' has reasonable grounds to expect to succeed in her case ; and
in the absence of her showing such fair and reasonable grounds,
or in the ?vent of the defendant displacing the prima facie case
made by her on obtaining the writ, he will be discharged. A writ
of arrest had been granted on the affidavit of the plaintiff alleging
violence and ;ill-treatment on the part of the defendant, and show-
ing that the defendant had advertised his stock and farming imple-
ments for sale. A motion was made to set aside this writ, and the
violence and ill-treatment were denied. The plaintiff was shown
to be a young robust woman, — the defendant lin old man of 68
years, and the conduct of the plaintiff to have been violent and very
immoral and unchaste. On the denial of the defendant of any
intention to leave the province, and under the circumstances above
stated, the writ was ordered to be set aside.*

The Court will also discharge the writ, upon the defendant's pay-
ing into Court the sum for which the writ is marked.^

Where the writ is directed to issue, until answer and further
order, the Court will not discharge the writ merely upon the com-
ing in of the answer, if it appears, upon the merits of the case*

1 Jm%es V. A lephsin, 16 Ves. 470.

2 Leo V. Lambert, 3 Russ. 417 ; Sichell v. Raphael, 4 L. T. N. S. 114, V. C. W. For the order in

the latter case, Hee Seton, 960.

3 Roddam v. Uetherington, 6 Ves. 91, 95 ; Bomi v. Collingwood, 1 Dick 116; Atkinton v. Leonard,

3 Bro. C. C. 218, 223. For form of such an order, see Seton, 969, No. 2.

4 Macphemon v. Macpherson, 2 Cham. Rep. 222.

;"» Evans y. Evan», 1 Ves. J. ^M-Stetvart v. Graham, 19 Ves. 313, 314; Dick v. Staiivlon,
1 V. & B. 373.

HOW DISCHAIUIED.

1747

I made
[fidavit,

aever it
fendant
D either
} giving
e found

irge the
into the
io plain-
Lse; and
grounds,
icie case
A writ
alleging
id show-
g imple-
and the
,8 shown
,n of 68
,nd very
of any
s above

^t's pay-

further
le com-
le casej

we order in
L Leonard,

that there will be necessarily decreed things for the defendant to
do at the hearing.'

It has also been decided, that a surety on a writ of ne exeat will
not be discharged upon the principal being, by a subsequent pro-
cess of the Court, committed to prison : as the surety is then in no
danger.'-' Where the sureties applied to be discharged, on the
ground that the defendant was in custody for want of an answer,
Lord Eldon refused to discharge them : observing, that there was
no instance of it ; and that, on the contrarj% there was a case in
which the Court had refused to discharge them.^ These last-
mentioned applications were previous to the decree ; but where,
after a decree against the defendant for the same matter as that
fgr which the writ of ne exeat issued, the defendant, was in con-
tempt, and in custody for not performing the decree, an order was
made, on the application of the sureties, that they should be dis-
charged, and the bond as to them cancelled.*

If the defendant pays to the plaintiff the sum for which the
defendant, has given security on a writ of nc exeat, the writ and
secm'ity will be discharged, as to the principal as well as sureties,
notwithstanding that it may appear from the proceedings in the
cause that a much larger sum is due from the defendant to the
plaintiff.^ Where, subsequently to the issue of the writ against a
defendant, he took the benefit of the Insolvent Debtor's Acts, the
Avrit was discharged upon liis paying the costs of the application
to discharge the writ, and relieving the plaintiff from all liability
on his undertaking as to damages, and from any action or other
proceeding with respect to the writ.^

When an application to discharge the writ is granted, the dis-
charging order ought also to restrain the person against whom the
Mrit has issued from bringing an action for false imprisonment :

1 Atkinnon v. Dcdfl, 1 Dick. OS.

i Le Clea v. Trot, Prec. in Cli. 'J.'W. " A bail in this Court, or in tlie Civil Law, is not discliarged
upon brintjinfr in the ))rincipal, as he'is at Common Law : Archepoole contra Burrell, Michas. 23
& 24 Elix." : MS. of Sir Geo. Carey, cited Bmins on Nc. exeat, 84, n. (14^. Tothill's note ot
Archboll v. liarrell, whicli seems to Ije the same ciuse, is, however, Him|>Iy in these words: "A
bail in tliis Court, or in the Civil Law, i» discharged upon bringing in the principal, as he may at
the Common Law" : Ti>thill, 17 ; and see Griffith v. Griffith. 2 Ves. S. 400.

I> Stapylton v. Peill, 10 Ves. 615 ; cited JJenines on A'e exeat, 84,

4 Dcbazin v. Dchazin, 1 Dick. !>.'> : lUg. Lib. 1743, A. 64.

5 Baker v. JejTerien, 2 Oo.'c. 22(i ; Benines on Ne exeat, 8G. <
(i .laiiu'it V. North, :, Jur. N. S. S4 : 7 W. \\. 150, V. C. K.

86

5^:

i "S

m

i^

1748

THK WRIT OF ARREST.

otherwise, in the event of such an action being brought, although
probably in all cases the Court would stop the action, yet the costs
of the application for that purpose would be at the expense of th(^
person by whom the writ had been obtained.^

Where the usual undertaking as to damages has been given, the
Court will, if it considers that the writ has been improperly obtained,
direct an inquiry as to the damages sustained by the defendant,
and order payment of the amount cei*tified in respect thereof.^

The Court will not, after the writ has been discharged in Equity,
interfere to direct the party to be discharged from a subsequent
arrest at Law for the same demand ; but will leave it to the Court
of Law to determine whether, under the circumstances, the Com-
mon Law process ought to be made available.^

A ^^rit of ne exeat will not be discharged on the mere ground
that, since it was ordered, the plaintiff has amended his bill : unless
it can be shown that the amendments have varied the case, as
originally stated. The Court, therefore, will not make a special
order, giving the plaintiff liberty to amend, " without prejudice to
the ne exeat ; " but will leave it to him to obtain the common order,
if he thinks he can do so with safety.*

1 Darley v. S'ichvluMi, 2 Dr. & War SB.

2 Sichcll V. Jlaphtiel, 4 L. T. N. S. 114, V. C. W. For tlie order in that case, see Seton, 960, No. S.

As to the prosecution of the inquiry at Chambers, oee ante,
'•i WrtM-t-r V. Chrintiini, 7 Sim. 807.
4 Uiant V. Giant, 5 Huss. 18S).

(' 17 HI )

althougli
the cobIh
ise of th(^

given, the
ohtained,
iefendant,
ireof.^

in Equity,
iubsequent
> the Court
. the Com-

ere ground
bill : unless
the case, as
ie a special
iprejudice to
iimon order,

Seton,

CHAPTER XL.

IIKCEIVERS.

In what CdSfis appointed.

A Receiver is an indifferent person, between the parties appointed
by the Court to receive the rents and profits of real estate, or to get
in and collect pei'sonal estate, or otlier things in question, pending
the suit, where it does not seem reasonable to the Court that either
party should do it ; or where a jmrty is incompetent to do so : as in
the case of an infant. A Receiver is bound to account for and pay
what he receives or gets in, as the Court shall direct ; and, to secure
his doing so, he is commonly ordered to enter into a recognisance,
with sureties.^

The appointment of a receiver is a matter resting in the discre-
tion of the Court f and the receiver, when appointed, is treated
as virtually an officer and representative of the Court, and subject
to its orders.^ Lord Hardwicke considered this power of appoint-
ment to be of great importance, and of most beneficial tendency :
saying, " It is a discretionary power exercised by this Court, with as
gieat utility to the subject, as any sort of authority that belongs to
it; and is provisional only, for the more speedy getting in of a
party's estate, and securing it for the benefit of such perscjn who
shall appear to be entitled ; and does not at all aftect the right.*

The defendant cannot defeat a motion for a receiver by a general
affidavit that he has a good defence to the suit ; he must specify the
defence distinctly to enable the pUiintift' to meet it, and the Court
to judge of it.^

1 Ord. 278 to 28.; ; H'liatt'H Pr. R. 355, 356 : Harr. by N'ewl. 409. As to Receivoi-s, see .1 dahis on Eq.

447 ; Chaiiibi'fn on Infants, 547 -504; Fi.ilier, 227 -2!XI ; Jeremy on Kq. 248—253; Lewiii- on Trnsts;
im-m2, MaeiJherson on Infants, 200-208; Sctuu, 1002-1639; Story Eq. Jur. ss. 827 838;
Woodfall, 51.

2 Skip V. Harwnod, 3 Atk. 564 ; and see Oiren v. IJoman, 3 M'N. vt G. 378, 412 : 15 Jur. 339 ; 4 H. L.
Ca. 997 : 17 Jur. 801.

'A A rujel v. Smith, 9 Ves. 335 ; Hatehinmti v. Manmreixe, 2 Hall & B. 55 ; Jeremy on Eq . 248, 249.

4 Skip V. Haniioud, ubi xup. ; and see Storif Eq. Jur. .s. 831.

5 Atkinn V. BUtin, 13 Grant 04«.

r.

1750

IN WHAT CASES APPOINTKD.

5c.

The most ordinary caseH in whicli receivei*s are granted by tho
(Jourt, are those in which the suit arises out of claims by parties
having equitable interests in the property, tho subject of litigation.
In such cases, the Court will appoint a receiver, for the purpose of
ju'otecting the ])roperty, till the question between the parties shall
have been determined. And, in general, it may be taken as a rule,
that where tho legal estate is vested in a person claiming an inter-
est paramount to that of the litigant parties, so that the litio-ant
parties can only have equitable interests, the Court will grant a
receiver : although, in doing so, it will always take care not to
interfere with the rights of the parly having the prior estate.
Therefore, where a man lias an equital^le mortgage, " that is, if there
is a prior mortgagee : then, if the prior mortgagee is not in possos-
sion, the other may have a receiver, without ])rejudice to his takin<'
possession."^ In Bcrney v. Savell^^ Lord Eldon said ; " 1 remv-mbcr
Ji case, where it was much discussed whether the Court would aj)-
point a receiver, when it appeared by the bill that thei'e was a prior
mortgagee who was not in possession. I have a note of tliat case .
there. Lord Thurlow made the appointment, without prejudice to
the first mortgagee's taking possession, and that was afterwards fol-
lowed by Lord Kenyon.''

•

An agent claimed to retain possession of property for his indem-
nification in respect of certain accommodation notes given to his prin-
cipal before the bankruptcy of the latter, on which, however, he had
paid nothing, and he disputed any liability to holders in respect
thereof: Held, that the assignee in bankruptcy was entitled to a
receiver.

In such a case the defendant set up a defence founded upon a
verbal agreement proved by his own affidavit only, and inconsistent
with a written instrument which pui'ported to contain the agr(.o-
ment entered into between the parties: such agreement having
been drawn by the defendant himself, a practicing attoi'ncy and

1 Per Lord Eldon, 1 J. & W. 648.

a 1 ,1. & W. C47.

o Ibid. 6i9. In Phippsy. BUhop oj Rath and Welh, a.s reported in 2 Dick 608, Lord Tlnnlow re
fused the appointment of a Receiver at the instance of a second mortgagee : the first not bciiis
in possession ; but in Bryan v. Cormick, 1 Cox, 422, he came to the determination mentioned in
tlie text. A similar order was also made in Dalmer v. Dathioood, 2 Cox, 378. In yanniii \.
linwe, 19 Ves. 144, 153, Lord Eldon states it to be the practice, on motions for Recoiver.s, not tu
look at mortgagees further than to take care that tliey are not prejudiued: see Price v. WHUtiuif.
O. Cooi>. 31 : Brookii v. Greathed, IJ. & W. 170.

Ifo:

\ by the
y parties
litigation,
mrpose of
rties shall
. as a rule,
r an inter-
le litigant
II grant a
ire not to
ior estate.
in, if there
in posses-
his taking
. rem.'mbcr
woiild ajt-
was a prior
that case :
irejudice to
srwards fol-

his indeni-
to his prin-
iver, he had
in respect
ititled to a

:led upon a

Inconsistent

the agri;c-

)nt having

Itorncy and

jjdvd ThurlowR-
Eie first not beiiv:
Ion meutioneil w
I In A»/'i'«<.'' *■
lReccivei-8, nut ti>
trice V. WUliiii'"'

llKi'KIVKRS.

1 7")!

solicitor, and executed by all parties ; JIel<f, that the defence ought
not to prevail on a motion for a receiver. In this case a receiver
was granted with liberty to the defendaiit to propose himself as such
without salary.^ This Court has jurisdiction, and will exercise it to
prevent a creditor of one partner obtaining an un(Uie preference
over the creditors of a firm by means of proceedings in this Couit.
Where, therefore, a ])urchasor at slieritf s sale of the interest of one
partner filed his bill for an account and a receiver, and the receiver
obtained possession of the stock in trade : leave was granted to a
creditor of the firm to take proceedings in insolvency, and the
receiver was directed to hand over the assets to the assign«ie in
insolvency, when he should be appointed.'-^

The same principle is applied to other equitable creditors ;^ and,
indeed, to all other persons having mere equitable estates. Th«^
rule, with respect to equitable creditors, is thus laid down by Lord
Eldon, inDam v. The Duke of Marlhorovgh:* " The rule I take to be
that the Court will, on motion, appoint a receiver for an e(|uitable
creditor, or a person having an equitable estate, without prejudice to
persons who have prior estates : in this sense, without prejudice to
persons having prior legal estates, that it will not prevent their pro-
ceeding to obtain possession, if they think proper f and with regard
to persons having prior equitable estates, the Co\irt takes care, in
appointing a receiver, not to disturb equities ; and, for that purpose,
directs inquiries, to determine priorities among ecpiitable incum-
brancers : permitting legal creditors to act against the estates at
Law, and settling the priorities of equitable creditors. Provided it
is satisfied, in that stage of the cause, that the relief prayed bj" the
bill will be given when a decree is pronounced, the Court will not
expose parties claiming that relief to the danger of losing the rents,
by not appointing a receiver of an estate on which it is admitted
that they cannot enter."*^ And here it may be remarked, that
although, where there is a prior mortgagee in existence having the

1 Ki'iiip V. Joiu-s, 12 Orant, 200. 2 Fflan v. Mcdill, :^ (^niani. Rep. 08.

3 See Cudlmj v. Marqii.U TowiiMtul, 19 Ves. ^28. 4 2 Swan.st. 1.^7.

,1 See Dalmer v. Dash wood, 2 Cox, 378 382 ; l)ut th ■>• niutit first obtain Iciive <>f tlie tlourt : Brmiii
V. Cormic.k, ubixup. ; Anon. 0 Ves. 287 ; Anyfl v. Smith, 9 Ves. aUn : lirookg v. Givathcd, 1 T. »t
\V. 176; Gresley v. .Idd/'dcy, 1 Swanst, o79 ; lihodcs v. Lord Monti/ii, 17.Tur. 1007, V. C. W.; and
see pout.

6 'file fjrantinij:, liowever, of a Keoeiver is a matter of (iiscretion, to lie pfoverned in- the whole cirenui-
stances of the case : one most material of siieh irircimistances beiri<f, the prohabiiity of the plnin-
tiff beinjf ultimatclv entitled to a decree : Oivcn v. Hoiikiii, 3 M'N. \' 0. 37.S, 412 : l.'> .lur. 339,
3K) ; Aftti. 4 H. L. Ca. !)97 : 10 Jar. «(;i ; and see Coonr v. Cr.'sxm'll, 1 2 \V. H. , !»!), \'. ( '. K.

k

X

1752

IN WHAT CASKS AI'POINTKI*.

lojijal cstat*', tlu> Court will not, l>y thcappoiiitim'iit of a receiver, do-
privo liiin of liis riyht to poMHe.sHion, it will not pennit him toolyect
to the appointment of a receiver by any act sliort of a personal as-
sertion of liis lejijal riij^lit, and taking possession himself ' And if
aftei a receiver has been ap[)ointed, he does n<»t think proper to avail
Inniself of his le^al right (w 'lich he may <h) by a[>plying to be exaniin-
j^n'o 'oiferrssr suo), lie will not be ])ermittt'd to have the benefit of
the receiver :^ the appointment of a receiver being for the bencttt of
incund>rancers, so far, only, as expressed to be for their benefit, and
as they choose it) avail themselves of it.'

The(/ourt will grant a receiver at the instance of a second incum-
brancer, in all cases in which the first incumbrancer is not in })o,s--
session of the j)roi)erty ; and the circumstance of the party creating
the incumbrance being abroad, and refusing to appear to the suit,
will not deprive the second incundM ancer of his right to a receiver.
In JfohiH'S V. Jie/f/' liowever, Lord Langdale, M.R., appears to have
entertained some doubt as to his jtower to ajjpoint a receiver, where
one of two mortgagois, who were tenants in common, was abroad :
at least so far as regarded the moiety of tlie absent party : althougli
he thought the objection removed, by the circumstance of the morf-
gagor, who was in England, being in the possession of the whole
rents. His Lordship's difficulty apj^ears to have arisen from Browne
V. Blowaf,^' in which Sir John Leach, M.R., refused to appoint a re-
ceiver, in the absence of the owner of the estate. The decision in
that case, however, was not come to upon an interlocutory applica-
tion, but upon the hearing of the cause : on wliich occasion, it hav-
ing been held that the Court could not ])rocceed to make a decree in
the absence of the party beneficially interested, it was urged that,
althougli it could not grant the relief prayed, it would go tli^
length of appointing a receiver. It a}»pears now to be settled that a
receiver may be granted against a defendant who is out of the juris-
diction of the Court ;' and where the <lefendent has absconded to
avt)id service."*

1 Silvi'ry. Hisliiijt of Siini'Ich, :\ Swaii.st. 112, n. (h) : Rhodes v. Lard Mnnti/ii, 17 Jur. 1007, V. (!. W.

2 See Auov « Ves. 287 ; Anud \. Smith, !t Vu^. -.VM), :«8 ; finiolci' v. Girathed, 1 J, & W. 178; llvnt

V. /•/■«('««, 2 Dick. aw.
S Grt'di-ii V. Addrilcii, 1 Swaiist ■')7!).

4 Tanjiild v. I nuw, 2 Hiiss. 140 : l>ut soe Ciivnid v. Chndti'ick, ih. l.')0, ii.
r> 2 lieav 208. (i 2 R. AM. US.

7 Gibbiiix y. Maiiiirariti!j,\) ii\m.77 ; Swifh v. S.iiith 10 Hare, App. 71; and .see Strntton v. Dariil-

noil, 1 H. \ M. 4^4.

8 I'ritchci V. Il'-lliar, 2 Dick. ;180 ; Mti;iviir v. Alli-ii, 1 ii. k B. 7.'i ; Dou'liiiff v. Hudson, 14 Beav. Ml

ccivor, do-
n to object
Tsonal as-
'} And it;
)er to avail
)C exaiiiin-
benefit of
i benefit of
)euefit, and

3nd inenin-
not in ])ns-
ty creating
to the suit,
Fi leceivei'.
(avs to liave
nver, wliere
vas abroad :
althougli
f tlie niort-
,\ui wholo
)ni Bvovnic
iwint a IV-
ecision in
applica-
ion, it hav-
a decree in
urged tliat,
lid go the
ttled that a
f the juris-
)SConded to

r. 1007, V. (!. W.
& W. 178; //""'

xjji , 14 Beav. 4'J3.

KKCEIVKRS.

17:):j

The Court will not, unlcsM under very particuhir eircuni.stances,
appoint a receiver, where the party having tluj legal estate is in
actual possession of the property.^ Thus, although a second mort-
gagee may have a receiver, where the first is not in possession, yet,
if the first mortgagee is in actual possession of the estate, a receiver
will not be appointed : unless it is shown that the first iiu)rtgag«'e
has been paid oft": in which case, a receiver may be* appointed, on
the application of a subsetjuent incumbrancer.-'

In order to defeat an ecjuitable mortgagee of his right to a receiv-
er, the j)08session of the party must be such a possession as invests
him with a title to receive the rents and profits : a mere possession
as tenant will not be sufficient ; and where one of the defendants
was in the occupation of part of the estate as tenant, and had pvn-
chased of the plaintiff a part of his mortgage, the interest of which
was about e(pial to the rent of his occupation, the ( *ourt of Exche-
(|uer held, that he could not unite his two characters of mortgagee
and tenant; and that his possession, being as tenant, could not be
set u}) against the other mortgagee."'

And here it may be remarked, that as between mortgagees in pos-
session and p(!rsons having subsetpient interests, the Court will not
appoint a receiver against a mortgagee's own oath that something is
duo to him,* unless the party making the application will offer to
pay him off, according to his demand, as he states it himself: in
which case, if the party will bring the mortgagee's own confession
that he has been paid off, or that he has refused to accept what is
due to him, the receiver will be appointed ;'' but, for this pui'pose
the Court will rerjuire the mortgagee to state upon his oath what
he believes to be due ; and, in taking the possession from hin> upon
payment of what he swears to be due, it will make him give secu-

1 It seems that this rulo will not ajiiily, where the i)!»rty in ixisse^sicm is niTcly so iipdn ovecuti'Hi,
under a judirniont ; and that, ill sueii ciises, a creditor haviiii;- takon ont exei-utioii, cannot I id
property ai,tiin.st an estate created prior to his debt. Upon this principle, Lord K.ldon made an
order for the api)ointmcntof a Receiver of the rents and profits of a rectory, at the instance of fa
second incumhrancer : althoutfh a third incunihranccr was in jiosscssion, under a sequestration
from the Bishop, which his Ijordship considered, in contemplation of this eonrt, as equal to a
judirmont : Whitf \. Hinho)) of Pet'vhoi-dUiih, llSwanst 10!), llii. 117; h\it ses Ilit'-s y. /Irnthcru,
2 Sni. ft 0. .'lOi). As between equitable ere li tors and .pi lyfmcnt creditors, haviu',' possession
under writs of ''Iciiit, it is compotunt to the Court to appoint a Receiver in favour of the equitable
creditors, not disturbiti!'' the rii-'hts of any jud'^iiiunt creditors in p >ssession : Dxrla v. Diikf of
Marlborough , 1 Swanst. 74, 84.

Cmirhviton y. I'arkri-, h; Ves. 4(')i) ; licnii-ji v. S<>ii'fll,\ J.

2 See Qimrrell v. lifckford, VA Ves. :V

& W. 647.
.". Archdfacoii v. lioircx, ;< Anst ''I'l.
!". Berncp v. S'^wcll, 1 .1. .V W. 047.

4 Iti:wi- v. «'(/(»/ -2 ,T iV W.

i^

3

C
Q

C4 o

^.

1754

IN WHAT (;asks a Pointed.

rity to refund, if it shall appear, upon the account, that so much is
not is not due ; and where he will not swear Uiat anything is due
the Court will appoint a receiver.^

The disinclination of the Court to appoint a receiver. wl;ere
the property is in possession of a party having the legal estate, is
felt in those cases only in which the estate of the party i.i posses-
sion is prior to that of the parties to the litigation. Where the
right to the possession is the subject of diapute, and the plaintiff
having an equitable interest claims the legal estate from the
defendant in possession, the Court will, if i^ sees clearly that the
plaintiff has the right, and that the ultimate decree will be in his
favour, appoint a Receiver p niding the suit.^ Thus, a Receiver
may be appointed at the instance of a purchaser pendeiite lite, if
the Court is satisfied that the contract is one which it can
enforce.^ So, also, where the defendant, on an advance of
money by the plaintiff, agreed to execute a mortgage of certain
lands, but did not perform the agreement, and there was an arrear
of interest due on the money advanced, upon which the plaintiff
filed a bill for specific performance, a Receiver was appointed.*
In like manner, where a tenant in tail in remainder, upon an
advance of money to him by the plaintiff", had agreed to pay it
after the death and failure of issue of his brother, the tenant
in tail in possession, and had secured the money by a mortgage
of the estate, and a covenant to levy a fine and suffer a recovery
to give effect to the mortgage, but, on coming into possession of
the estate, refused to perform his covenant, the Court appointed a
receiver of the rents.''

Upon the same principle, where a bill was filed by creditors,
claiming satisfaction out of real and personal ap^ets, and it
appeared, by the answer of the person in possession of the real
estate, tliat the real estate must eventually be responsible, as there
was no personal estate to be applied to discharj^e debts, the (^ourt
appointed a receiver in the first instance.''

1 Chaiiihern \. \joldwin, cited 13 Yes. :i77 ; Quarrcll v. Beck/uru, ib.

2 See Whitwnrth v. Gaugmn, 1 Phil. 728 ; :{ Hare, 410.

3 Metcal/e v. Pidvertoft 1 V. & B. IhO ; iinil see Dawxon v. Viitt.-.\ 1 Beav. 301 : -> Jur. 000

4 SluiM V. I)iik-e of Marlborough, 4 Madd. 4«;J.
6 Freey. Hinde, " Sim, 7.

6 .hinuf V. Piiijh, 8 Ves. 71 ; Earlof Fhigal v. Rlake, 2 Moll. 50 ; Clmlk v. liaiiw, 7 Hare, 3a'} • l.'i
Jur. 081 ; and see Coopc \ . Crenxwdl, 12 W. K. 2!)9, V. C. K.

RECEIVERS.

1755

nuch is
r is due

wl.ere
!stat'>3, is
L posses-
lere the
plaintiff
'om the
that the
36 in his
Receiver
te lite, if
I it can
ance of
certain
in arrear
plaintiff
pointed. *
upon an
pay it
tenant
mortgage
ecovery
ission of
ointed a

Ireditors,

and it

Ithe real

las there

k (^ourt

are, 393 ; U

The Court, sometimes, will appoint a receiver against a party
having possession under a legal title. Thus, where fraud can be
clearly proved, and immediate danger is likely to result if tlie
intermediate possession should not be taken under the care of the
Court, a receiver will be appointed.^ This rule was recognised
by Lord Eldon in Lloyd v. Passinglmm ■? where his Lordship
observed : " The Court interposes, by appointing a receiver,
against the legal title, with reluctance : compelled by judicial
necessity, the effect of fraud clearly proved, and the imminent danger
if the intermediate possession should not be taken under the care
of the Court." In order, however, to induce the Court thus to
interfere, it is, according to his Lordship's subsequent remarks,
not only necessary that the Court should be satisfied of the exist-
ence of fraud, but it must be morally sure that, upon the hearing
of the cause, the party would, upon the circumstances, be turned
out of possession ; and not only that, but it must see some danger
to the intermediate rents and profits.-* His Lordship, in that
case, did not conceive that the circumstances disclosed formed
that extreme case in which the possession was to be taken from
those who had the legal right ; but, in a later case of Stihuell v
Wilkins* where a bill was filed for the purpose of setting aside
a purchase, and the answer of tb'^ defendants, who were the devi-
sees of the purchaser, admitted .o great inadequacy of the price
but stated their ignorance of the other circumstances of fraud
alleged, his Lordship granted the receivei-; because, if the case
stated was true, the inadequacy was so moustr -.'s, and the situa-
tion of the young man and the state of his i .tellect wore such
that it was hardly possible to suppose that the transaction could
stand. He thought, therefore, that it was a case in which such
an order might be made : though it was not the general habit of
the Court.

Upon the same priuci|)lc, the Court interfered in Pi>dmove v.
Gunning.^ In that case, a testator, by his will, beiiueatlicd
the residue of his real and personal estate to his wife, " having

1 Llu>id V. ranKiiujliam, 10 Ves. 50; Ilwjonin v. Bar-eleii, Vi Vcs. 10.1.

2 10 Ves. 70.

S Lloiid V. Pamngham, 16 Ves. ("ill, 70 , aiul see Ilui/onin r. nutu'lc'i, iibi m(/).
i .Ine. 280, 383; S. C. iioin. SfifircH v. n'iUlaws, 0 MikKI. 4i).
f« r> Sim. 485 ; see also Laiuion v. Morrix, 5 Sim. 24".

^*ame»

1756

IN WHAT CASES APPOINTED.

perfect confidence that she will act up to those views which I have
communicated to her, in the ultimate disposal of my property
after her decease ;" and, upon the wife's dying without a will, the
Court appointed a receiver, upon an allegation in the bill (sup-
ported by aflidavit), of a promise by the wife to her husband, on
the faith of which lie had made his will, that she would bequeatli
the residue of his property, after her decease, to the plaintiffs, who
were his natural children.

Q

Ui
Q

I

I

In the above cases, there were circumstances of either actual or
constructive fraud, as well as of actual title, to induce the Court
to interfere. Where these circumstances are absent, and there is
no case of spoliation, the Court will not appoint a receiver upon
mere ground of title in the plaintiff.^

Although the Court will not interfere upon the mere ground of
title, it will appoint a receiver at the instance of parties bene-
ficially interested, even where there is no fraud or spoliation, pro-
vided it can be satisfactorily established that there is danger to
the estate or fund, unless such a step is taken.^ Thus, in tlu^
case of executors, if the executor has wasted the effects, or in
other respects misconducted himself, the Court will interfere, b}'' the
appc-ntment of a receiver.'' Upon this ground, also, where
an executor has not done what he can to get in the personal
estate,* or is out of the jurisdiction,'' the Court will order a
receiver to be ap[)ointed.

Although a receiver will be appointed as against an executor,
where it is shown that there is a probability of danger to the pro-
perty, it must be such danger as arises from the misconduct or
neglect of the pai-ty : mere poverty will not, of itself, constitute a
sufficient ground for such an ajipointment." Where, however
an executrix, who had been ajij.ointed guardian, by her husband

1 Clarh- V. JJi'ir, 1 n. ifi M 103; Tolih'rr,, v. Colt, 1 Y. k V. Kx fi21 ; Mlibllrton v. Shrrhnrin; 4 ik

•Ar>S ; l.'dicaxhife v. Lancaxhiir, !t I'.oav. 120 : i) .Jiir. \)M ; Karl Talhot v. Hope Scott (No. 1), 4 K.

& .). »(;: 4.lnr. N. S. 1172.
iliarhlfiiw LonI ltr(i!i.'i\la.ve,-Am; liaiiibrigiji- v, lUulddeii, V.i Jiouv. .-i"!.-. ; HM'N. & 0. 41::. .A

Kccoiver iiiav bt' app(iinte<l, in sucli a case, althouifh thori' is no iiersoiial rc'|in!seiitative ; Sti; r \

Stn;; V.i W.' H. 225, V. ('. K. ; OrrriiKjton v. WartI, M liuav. l"-..
:', Aii'in. 12 \'e-^. 4; MMilh'ton v. Dodsirrli, ID Vos. 2()ii ; //acc/'A v. Ifiif'i:-', Uarnard 22; Lord y

I'lirchdx, IT Boav. 171, 173: llcrrvi) v. FifZjxitn'ck, Knv, 421.
4 liirhnnlx V. I', rlliiit, .S Y. Ai (,'. Kx. -JDit, 307 : 3 .liir. lilg.
6 Siiiilli V. Siiii'li, 10 Hnvo, Ap)i. 71-
li Hatliunifhirtiitr' y HiixsrlJ. 2 Atk. I2(); Anon, 12 V ■-. 4 ; Jloo;,,;l V. I'ltitrrn, 1 Maiid. A'l

M(tnn'rs\. /■'urn-, II lii'av. ;;o, al.

RECEIVERS.

1757

of her three chiklreu, married a second husband in necessitous
circumstances, the House of Lord? directed a receiver to ])o
appointed to get in tlio outstanding personal estate.^ And
where the husband of an executrix, was in the West Indies, and
was sworn to be in indifferent circumstances, a receiver was
appointed.- It appears, however, from the report of tlmt case,
as if a principal ground for granting the receiver Jiad been th;;
fact of the husband being in the West Indies, and not amenable
to the process of the Court ; but, in another case of a similar
nature, the order was made upon the proof of the husband's insol-
vency : though the affidavit positively denied the fact of his being
abroad.^ It seems, also, tliat a receiver will be appointed if
the husband of the executrix is of unsound mind.^ And, in
genera), where a personal representative is insolvent, a receiver
will be appointed; and if it should be necessary to bring actions
at law to recover part of the effects, since that must be in the
name of the executor, the Court will compel him to allow his
pome to ^e used.'' It seems, however, that if a person, known
• >y i't, testator to be a bankrupt or to be insolvent, is appointed an
executor by his will, siwh person will not, in general, be con-
trolled by the appointment of a receiver f but it is not to be
inferred from the circumstances of the will having been made
some time before the bankruptcy, and not altered afterwards, that
the testator had a deliberate intention to intrust the management
of his estate to an insolvent executor." The circumstance, that
the party who had the administration of tlie testator's effects was
an uncertificated bankruj)t, and was not a[)pointed to the office by
the testator, has been held not to be a sufficient ground for the
appointment of a receiver, where several of the parties interested
had refused to join in the ap])lication.'*

The same grounds which will induce the Court to take away
from an executor the possession, or the right to the jiossession, of
the testator's property, by the appointment of a recei/er, in case

1 DUlna V. hatUi Mount Canhcli, 4 Bro. V. C. ed. Toiiil. ;iO(i, 312.

'J Tiii/l<ir V All. ,1. -1 AtK. •2V.\. :t .'icott v Bt'cln'r, 4 I'ri ;U(i.

4 Yettx V I'al ... r, it Jiir. N. S. 054, M. H.

f) Utterson v. Hair, -1 \es. J. It.'), !)S : 4 Hro. ('. C. '2(i!t, 277 ; Sratt \. lii'i-hr,; iih! sup.

<i Slumtiiii V. Can-on Cuinpaiiii, 18 licav. 140, Kil : 18 Jur. 1M7.

7 Gladiioii V. Stonrinan, 1 Madd. 14;i, ii. ; Lnnnletl v. Ilnifk, ft .Madd. 4<'> ; WiUirtms on K\i)r.s. iOH.

a Siiiitli V. Smith, 2 Y. iV V. Kx. ;«<.

1758

IN WHAT CASES APPOINTED.

I

Q

of his misconduct or of his bankruptcy or insolvency, will induce
the Court to interfere, in the case of any party clothed with the
character of a vrustee : whether he is a mere trustee, or a trustee
having an interest in the estate or fund. Thus, where a trustee
refuses to act, the Court will, on the application of the person
beneficially interested, appoint a receiver ;^ and where several
trustees under a settlement in consequence of disputes amongst
themselves, pennitted the rents of the trust estate to fall in
arrear, the Court not only appointed a receiver to collect the
rents, but ordered the costs of the suit to be paid by the trus-
tees.2 So, also, a receiver was appointed, where, in conse-
quence of disagreement among the trustees, tw^o out of three trus-
tees acted without the third, and took the trust property in their
names only f where the trustees accepted new trusts, which
conflicted with the former trusts on which they held the pro-
perty ;^ and where, by the laches of the trustee, infant cestuis
que trust were deprived of maintenance.^

Under very special circumstances, the appointment of a receiver
has been ordered, in the absence of the trustee.^ Where, also,
the trust property has been applied, without complaint, for a
series of years, according to an uniform couise of management,
which has been sanctioned by the parties beneficially interested
the Court will not appoint a receiver, by interlocutory order, on
the ground that such application of property is a bi'each of trust :
unless it is perfectly clear that the party in Avhom the property is
vested is a mere naked trustee, and has not, even to a limited
extent, any of the rights and interests of an owner. Upon this
gi'ound, a motion for the appointment of a receiver of the estates
vested in the Irish Society, at the instance of one of the London
Companies, who claimed a beneficial interest in the income of the
estates, was refused.^

In eases of misconduct by trustees, the (Vjurt will a])poiut a,
receiver : as well where the trust arises 1)y implication, as wliere

1 Palmer \. Wi-iijht, 10 Beav. 2H4 ; and see Brndie v. liarrij, :{,Mor. 095.

•2 minon V. Wils'vn, 2 Keen, 249.

;i Swali'v. Simle, 22 Beav. .^84; see also Tait v Jeakinn, 1 Y. iV C. C. C. Wl : Di-maUw Reul, 1

Hare 4.S4 : (IJur. 630.
4 Jiarl Talbot v. Hope Scnft. (No. 2), 4 K. & J. 130 : 4 Jur. N. S. 1172, 1180.
:> RichardH v. Perkiim, 3 Y. dit C. Ex. 2i)9, 307 : 3 Jur. 168.
li Uiighcx V, Wheeki\ 11 Beav. 178, 170.
7 Skiiitiett,' Company v. Jriufi Society, 1 -M. & C. 102; and see Gi'ay v. Chuplin, 2 liuss. 120.

RECEIVERS.

1759

it is expressed. Upon this principle, tlie Court has held, that
where a man ta^^es a conveyance of a legal estate subject to equit-
able interests, he must satisfy those interests or submit to a
receiver : therefore, where a man purchased lands subject to two
equitable annuities, which he refused to pay, Lord Eldou
expressed his determination to appoint a receiver, unless the
defendant would enter into an undertaking to pay the annuities.^

Upon the same principle, if a tenant for life of leaseholds is
bound to renew, he is, in such cases, clotLed with the character of
trustee : and if, by his threats or acts, he manifests an intention
to suffer the lease to expire, the Court wi?l appoint a receiver, in
order to provide a fund for renewal.- A .umilar order for the
appointment of a receiver of the rents and profits of an estate,
for the purpose of accumulating a fund, was made where the
tenant for life had fradulently obtained a sum of stock, to which
the trustees of her settlement were entitled.*'*

As the object of appointing a receiver is, usually, the preserva-
tion and protection of the property in dispvite pending litigation,
the Court will not appoint a receiver on the application of a
party who possesses the power of protecting the property without
it : consequeiitly, a receiver will not be appointed on behalf of a
mortgagee who has the legal estate, as he has nothing to do but
to take possession.'* So, also, where one of the plaintiffs was a
trustee of the estate, with a power of entry and distress, Lord
Eldon discharged an order appointing a receiver.''

Wherever there is a dispute respecting an estate, which depends
upon a mere legal title, tlie Court will not, in general, grant a
receiver : liecauso the plaintiff has his remedy by asserting his
title in a Court of Law.*' Thus, where an heir at law disputes
a will against tlie devisees in possession, the Court will refuse a
receiver: because he may, if he is entitled as heir, bring his
ejectment against the devisees.' This rule, liowever, is departed

1 Pritchanl x. Fleetwood, 1 Mer, .''.4. 2 S'.u liinnett v. Colley, 2M. & K. 22,'), 23:!.

3 WiHtdyatt v. Gvede\i, 8 Sim. 180.

4 Bcmey v. ^exvell, 1 J. & W. 047 ; Sfuvch v. Young, .'i Beav. &'u.

^ Buxton V. Mnnkhouse, (5. diop. 41. (> See Mordaunt v. Hooper, Amb. :U1

7 Knight \. Duploinin, 1 Ves. S. 32.'j ; Earl oj' Finijal y, Blake, 1 Moll. 1.58; 2 MdII. .'.O ; see ;.i-ii

Lloyd V Triiiilenfon, I'h. 81 ; Bonner v. Brc.dxhaw, 4 Jur. N. S. 1011 : .'> .hir. N. S. ^{i, V. ('. S. ;

.see also H'rig/il v . Wil.in, 7 VV. U. 337, V. C. K. ; Vetts v. Palmer, i) Jur. N. S. i).">4, M. It.

1760

IN WHAT CASES APPOINTED.

Ut p

3 "o

I

Oc.

from wliere there are peculiar circumstances in tlie case : as where
the Court sees that it is clear, from the evidence produced, that
it is important that the Court should interfere, for the protection
of the estate or of the rents and ])roiits. But a strong case of
danger to the property, and a strong ground of title in the plaintiff,
must be made out.^

A receiver will also be appointed, at the instance of a pei-son
who has the legal estate, where the property is in the nature of a
trade f or where, from conflicting legal rights, it is impossible to
obtain tenants for the property.^

The Court will likewise extend the application of the principle,
of providing for the safety of property pending litigation, to
cases where the litigation is in another Court. Thus, during
litigation in the Court of Probate, a Court of Equity will enter-
tain a bill for the mere preservation of the property of the
deceased ; and, if necessary, to take it out of the possession of the
person claiming to be the executor, till the litigation is deter-
mined, and appoint a receiver ; although the Court of Probate
by granting an administration poulente lite, might provide for the
collection of the effects ;"* and a leceiver may be appointed, as
well where the litigation in the Court of Probate is to recall admi-
nistration of probate already granted, as in a case where no
administration has been granted before the application to the
( *ourt of Chancery;'' but the mere circumstance that there has
been a suit instituted in the Court of Probate to recall a pi'obate
already granted, does not give the Court of Chancery jurisdiction
to interfere : for if that were so, it is evident that, in order to
obtain a receiver, it woidd be only necessary to institute a suit in
the Court of Probate.*^ The Court of Chancery, therefore, will

1 J/o/-, /(((/..,' V. Huopci; Anil). :U1 ; Clark v Ih'ti; 1 R. & M. lOS, 100 ; Toldereij v. CUt, 1 Y. & C. Kx.

(i21 ; Hiililleton v. Slurbiiriii', 4 (b. 35»- ; lAincuithin' v. Lam-aiilnre, 9 Hea\ 120: 9 Jur. K.'iO ;
H((iiiiiil<i(/c\. JJaddrlci/, liiKi^nv. -.irr): M'N. .v C. 41:'. ; Earl Talbnf v. Hhjh^ Seott (So. -J,), i
K. (S: J. V(i : 4 .Jur. N. S. 1172 ; »'ri(jl)t n'ilkin, 7 W. R. :i:J7, V. C. K. ; see also l'c«» v. J'aliiwt;
it .)ur. N. S. !)r)4, M. R. ; and Aclaiid \ (rrarpim\ 1 N. R. 119, M. R.

2 Fripp V. Chuid Jtoilieai/ Coinpany, 11 lliire, 'J.^! : 17 .liii. 887; iuul see Sturii \ Lanl Windsor, 2

\lk. (i;iO.
;< m,ltr \. Shtiilc, 22 Reav. 72.
4 Ld. li'd. VK,, ];«! : Kiwjw Kin;/, C Yes. 172; Rlchuidn v. Chavf, 12 Yes. 4(12; Edminidn v. Bird, ;

RECEIVERS.

1761

N.

1 where
!(1, that
)tection
case of
laintift",

, pei-son
ire of a
ssible to

rinciple,
iion, to
during
11 enter-
of the
n of the
is deter-
Piobate
e for the
oted, as
dl admi-
here no
to the
lere has
probate
sdiction
rder to
suit in
ire, will

Iy. &C" Kx
|<) Jur. ;>5tj :
t (No. -J), \
V. I'aliiit'r,

|ir//M/.s'(ir, •!

. /3in/,
{lli-i'ni, \ M.
Sim.
Whyddmi

1

Tc, 1 S. & S.
IllJur.Oei.

look into the case, to see whether, on the whole, such a case is
made as justifies its interference ; and it seems, that if it appears,
from all the circumstances, that therd is substantially a lis pendens
in the Court of Probate, a receiver may be appointed : notwith-
standing there is no ground laid for the interference of the Court
in respect of any improper conduct of the parties.^ The Coui-t
may also grant a receiver, pending an appeal from a decision of
the Court of Probate.^

A Receiver may also bo granted, pending litigation in a foreign
Court.^

The Court will refuse to interfere against a joint-tenant or ten-
ant in common in possession, at the suit of another joint-tenant or
tenant in common : unless the defer iaiit, being in possession
niceives the whole rent, and excludes his companion from the share
due to him."* It seems, however, that, in the absence of exclusion, a
receiver of the applicant's share of the rents and profits may be ap-
pointed.'' A similar rule is acted voon where the applicant is an
equitable joint-tenant or tenant in common ; and in that case, in
the absence of exclusion, a receiver of only the applicant's share will
be granted.^

Where the proper s in the nature of a trade, a receiver of the
whole may be order«:;vl : although the person applying has a legal
interest in it. Thus, a receiver will be appointed of the tolls of a
canal company, at the instance of a mortgagee;^ and of a mine, at
the instance of one of several persons who are working it together.**

In case of partnership, the Court frequently aj)points a receiver of
the partnership estate ; but it seems that the Court will not, in
general, appoint a receiver of partnership effects, unless the plaintiff'

1 Willinim on Exors. 436 ; Watkinn v. Brent, 1 M. «Sc C. 97, 102 ; and see Jonen v. Brent 3 Mml. 1 :

Affd. on ajipeal, Jac. 4C6.
'2 hidden V. Liddell, cited Vi Ves. t<i4 ; Blake v. Blake, 2 Beav. •2i)3, n. (e) ; Dai/ v. Croft, -1 Beav.

i6. n. (d) ; Wood v nUchlngs, ib. 280 ; Affd. ('6. 298, n. (a).
.'! Tianmtlantle Comjiany v. I'irtroni, .^^\\n^s. (i04.
4 Street v. v' lulertoa, 4 Bro. C. (J. 313 ; seo Milbank v. Revctt, 2 Mer. 406 ; Holmes v. Bell, 2 Beav.

2iW ; //a) vave v/llnmrfive, i) Beav. ri49 ; Scnrrah v. Scurrah, 14 Jur. 874 M. R. ; Sand ford v.

Ilailard, 33 Beav. 401 : 10 .liir. N. S. 2;')!, M. R. ; see S. 0. 30 Beav. 109 : 7 .lur. N. S. im : Scton.

1003 ; and see (:o(i<;-(T, WiUmnjhbu v. tt'tUniKilibii, died '1 DicVc. 478 ; Tynonw Faird(ni<ili,-lii. ik

S. 142, 144.
:< Culvert V. Adaiiix, 2 Dick. 478 ; l-'nll v. Hlkinn, 9 W". R. 8C1, M. R.
1) Sandjiird \. Ballard, iibi >:nj). .and .si'O Street v. Aiuhrtou, ubi nup.

7 Friiiji V. Chard Rallwtui Cninpaai/, U Hare, 241 ; 17 Jur. 887 ; and for the order, see Seton, 10.".i.
.> .I.'rr.'ri'ij^ V SinltU, 1 J. 1': W. 298 \ Stonj v Ijord Windsor, 2 Atk. 030 ; Leex v. .Ao/kw, 3 Jur. .\. .S.

9.'«4,"V. v. \V. ; and see Nnrtntu v. Howe, 19 Vcs. 144 : Jioberta v. Eberltardt, Kay, 148, l.">(i, l.''i>,
!) For forms of orders, see Selon, 1030, el s-etj.

■;m

17C2

IN WHAT WAY APPOINTED.

appeai-s to be entitled to a dissolution.^ If the Court can see that
a dissolution must take place, it follows very much of course that a
receiver will be appointed"^ Upon these principles, a receiver will
not be ordered, whore the fact of the dissolution of the partnership is
disputed.'**

Where the object of the suit is to continue, and not to dissolve,
the partnership, the general is not to appoint a receiver ;* but w^here
a suit has been instituted to compel partners to act according to
the provisions of instruments into which they have entered, the
Court will take care that the decree shall not be defeated by any-
thing to be done in the meantime ; and will appoint a receiver to
pi-otect the property ;'' and receivers have been appointed at the
suit of a shareholder of a company, where, through the conduct of
its officers, the property of the company is in danger of being lost.''

^.

The rules with regard to the appointment of a receiver, in the case
of partnerships, have been thus stated.^ " If any one of the part-
ners seeks to exclude another from taking that part in the concern
which he is entitled to take, the Court will grant a receiver f
generally, in thus interposing between the parties, the Court lookn
to a dissolution and general winding-up of the affairs.'' Where a
dissolution is intended, or has already taken place, a Court of Equity
will appoint a receiver, provided there has been some breach of the
duty of a partner, or of the contract of partnership.^^ Thus if, in
breach of moral obligation, one partifer, unjustly takes possession,
and refuses to give security to his co-partner for his share of tlic

1 Coniit V. Ilarrix, T. ii K. .IIT ; Snnth v. i/ci/fv, 4 B(.'uv. 508 ; I'.axter v. Went, 2f. L. J. Ch. l(il»,

v. C. K. ; J{obertn v. Ebrrhardt, Kiiy, 14S ; and see Wilson v. Greemvnod, 1 Swaiist. 4tfl ;

Chapman v. Ik^ch, 1 .1. it W. H'M ; 'fibbits v. J'liillipK, 10 Hare, 355.
■2 GoodtrMit V. tt'liitciimb, 1 .1 &.W. 580 ; see alwo Oliver v. flamilton, 2 Aiist. 45S. As to tlie ques-
tion whether bills can be sustained for piirtuership accon'-.t,s, witliout seeking- a dissolution of

panner.sliii), see ante
;i Fairburn v. J'earso)!, 2 M'N. i G. 144 ; and soc I'cacock v. I'eacock, l(i \'es. 40.
4 llall V. Hall, ;{ M'N. i!i G. 70, S8 : 12 Boav. 410 u. ; and eases cited ib. ; Hobcrtx v. Eberhanlt,

Kay, 148.
.'. Cumt V. IlarriD, T. & R. 4'Mi ; Marris v. Colniaa, 18 Yes. 437 ; and sec Waters v. Tn./lor, lo \ us.

10 ; Hall V. Hall, 3 M'N. & G. 70, 91 ; 12 Beav. 414, 410, n.
(j She2>pard v. Oxenford, 1 K. it J. 491 ; Jivav-n v. Coventry, 5 De G M. & G. 911, overruling S V

3 D.ew. 7.5.
7 Collyer on I'artnersliip, 240-342 ; and see Lindley on Partnership, 849, et scq.
B Wilno-n V. Grfcitwuud, 1 Swanst. 481 ; I'eacock v. Peacock, 16 Vcs. 49 ; Milbank v. licntt, 2 .Mli-.

iQo;Goodii)aa\. Whitcoiiib, 1 J & \V. .530 ; fiJnfrenei/ v, Diifaur, 15 Beav. 40; Clegy v. l-'is/i-

ivick. 1 M'N. & G. 294, 298.
0 Waters v. Taylor, ubi svp. ; xeo Harri>ion v. Annitaye, 4 Madd. 143; Oliver v. Uawilt'in ,-

2 Anst. 4.53.
10 Hardivy v. (jrloner, 18 Ves. 281 ; KiiUvick v, Coii.ni.uysby,! Vern. 118; Smith v. Jeyes, 4 Boav. .'i');;.

In Skipv. Hanrijud, Hoy. Lib. 1748, B. 517, a Receiver was appointed of a brewery.

RECEIVERS.

1763

stock, moneys, and securities ;^ or if he, in any respect, behaves
unrighteously against the interest of the other partner, a receiver
will be appointed.'^ So, also, if in lutsaeh of the contract of partner-
ship, he carries on the trade with the partnership) effects on his sepa-
rate account, after the dissolution,^ and thus, or in any other man-
ner, excludes his co-partner from that share to which he is entitled
in winding up the concern, a receiver will be appointed."*

The same rules which })revail respecting the appointment of a
receiver in a suit between partners, are applicable in a suit between
the representative of a deceased partner and the surviving
partner."^

Where all the partners are dead, and a suit is instituted between
their representatives, a receiver will be appointed as a matter of
course ;" and so, where one of the partners became bankrupt, a
receiver was a[)pointed, at the suit of the solvent partner, against the
assignees."

The Court will also appoint a receiver, pending an investigation
into the title to an estate, in a suit for the specific performance of an
agreement. The consideration of the question at whose expense the
appointment should be made will be reserved.®

A receiver of the rents and profits of an infant's estate may, also,
as we have seen, be appointed ; and where no suit is pending, this
may be done upon summons at Chambers : though the more usual
course, in the latter case, is to appoint a guardian of the person and
estate, without a receiver.^

1 Peacock v. Peacock, 10 Vea. 49 ; and Milhank v. Ilevett, 2 Mer. 405.

2 If partners quarrel, and one of them behaves unrighteously against the i'.ittrest of the other, a

Receiver will be appointed ; but if i)artners quarrel, a Receiver will not morelj' on that account be
appointed." Per Lord Eldon, in Texeire v. I)a Costa, in Chancen', Nov. 1815, Cook'.s MSS. ; see
Hale V. Hale, 4 lieav. 360.

3 Harding v. Glover, 18 Ves. 281.

4 Blakaney v. Dufaur, 15 Beav. 40 ; and see Wilson v. Greenwood, 1 Swanst. 481. The dissolution

which takes place on the refusal of an appointee viniler a will to become a partner, is clearly not a
dissolution arismg from the exclusion of the appointee by the survivinfr partners, and will there-
fore be no foundation for a Keceiver : Kershaw v. Matthews, 2 Russ. 62.

5 De Tastet v. Bordieu, 2 Bro. C. C. ed. Belt. 272, n. ; and see Madgwick v. Wimble, 6 Beav. 495 ;

Clegg v. Figkwick, 1 McN. & G. 294, 298 ; Davis v. Amer, 3 Drew. 64 ; but see Hartz v. Schrader,
8 Ves. 317 : 2 Hov. Sup 106.

6 Phillips v. Atkinson, 2 Bro. C. C. 272.

7 Frceland v. Stansfield, 2 Sm. & G. 479: 1 Jur. N. S. 8 ; and see Wilson v. Greenwood, 1 Swanst.

471, 4S2 ; Fraser v. Kershaw. 2 K. & J 490.

8 Boehm v Wood. 2 .1. & W. 2.ii) ; and see Hall v.. Jenkinson, 2 V & B. 125 ; Strattnn v. Davidson,

1 R. & M. 484 ; Osborne v. Harvey, 1 Y. & C. C. C. 110 ; Daxeson v. Yates, 1 Beav. 301 : 2 Jur. 960.

9 ArUe. As to lunatictt, see ante.

$7

:jfe

1764.

OP WHAT APPOINTED.

Ui

i

Of ivhat appointed, t ■. . .

A receiver may be appointed of the rents and profits of real estate
and also of all personal estate which is capable of being reduced into
possession. In Davis v. The Duke of Marlboroiujh} it was hold
that, in favor of equitable creditors, the Court will appoint a
receiver of all property against which a legal creditor might obtain
execution. Upon this ground, a receiver has been appointed of the
profits of a rectory,*^ under an elegit. The appointment is not, how-
ever, confined to such property as is liable to be taken under an
execution at law, but has been extended to whatever is considered
in Equity as assets ; and, therefore, in Blanche )•</ v. Caivthorne,^ a
receiver was appointed, at the instance of a judgment creditor, of
the office of master forester of a royal forest. So, also, in Palmer v
VaugluiK,,^ the profits of the office of Clerk of the Peace for a county
having been assigned for the payment of creditors, a receiver was
appointed, pending the discussion of a question as to the validity of
the assignment ; but in Cooper v. Meilly,^ a receiver was refused,
pending such a discussion, of the salary of Assistant Parliamentary
Counsel to the Treasury; the Court being of opinion that, upon
grounds of public policy, the salary of such an office was not assign-
able. A receiver has been appointed of a canonry ;^ and may, it
seems, be appointed of a college fellowship.''

A pension granted by the Crown is capable of being taken under
a sequestration for want of an answer ;^ and such a pension may, it
seems, be the subject of a receiver.* The rule, however, will not
extend to the pension for past services,^® or to the half-pay ^^ of an
officer in the Army or Navy ; which is, upon grounds of public

1 2 Swanst. 132.

•2 Silvery. Bishop of Norwich, 3 Swanst. 112, n. (b); White v. Bishop of Peterborough, ib. 109. A

registered judgment against a clerg}'man does nut create a charge upon his benefice entitling the

judgment creditor to the appointment of a Receiver, under 1 & 2 Vic. c. 110: Hawkins v.

(inmercole, 6 De G. M. & G. 1 : 1 Jur. N. S. 481 ; reversing S. C. 1 Sim. N. S. 63 ; and see Bates y,

Bothers, 2 Sm. & G. 509.
3 Sim . 506. 4 3 Swanst. 173. .1 2 Sim. 590 ; Affd. 1 R. & M. 560.

(.> Orenfell v. Dean of Wimlsur, 2 Beav. 544.

7 Feistel v. King's College, Canibridye, 10 Beav. 491, 509; but see Berkeley v. King's College Cam

byiqe, ib. 602.

8 Ante!

9 yondv. Bac'-house, 2 Y. iiic C. 0. (J. '129 : and see Turmtall v. Boothby, 10 Sim. 542.

10 JAoyd V. Choethain, 3 Giflf. 171 : 7 Jur. N. S. 1272 ; but see Carew >. Cooper, 4 Giff. 619 : 10 Jur. N.

S. 11 ; ib. 429 : 12 VV. R. 580, 767, L. 0.
U M'Carthy v. GooCd, 1 Ball i\o B. 3S7 ; Stone v. Lidderdale, 2 Anst. 533, 539 ; Collyor v Fallon, T.

& R. 469, 467.

RECEIVERS.

1765

tl estate
ced into
'^as held
point a
t obtain
d of the
ot, how-
inder an
nsidered
honie,^ a
iditor, of
\ilmer v
a county
dver was
alidity of
3 refused,
amentaiy
lat, upon
ot assign-
1 may, it

ten under
In may, it
Iwill not
11 of an
bf public

|a, ib. 109. A

1 entitling tlic

Hawkins v.

, see Bati'.i v,

College Cam

) : 10 Jur. N.
Fallon, T.

policy, also exempt from the operation of a sequestration.* So, also,
it has been held, that a pension granted by the 5 Anne, ch. 4, for the
moie honorable support of the dignities of the Duke of Marlborough
to the persons, severally and successively, to whom the same should
come by virtue of that Act, with a proviso that the acquittance of
every such person should be a sufficient discharge, was u})on grounds
of public policy, inalienable, and therefore not the subject of a
receiver ; although the estates which, by the ;' Anne, ch. 3, were
limited to the then Duke for life, with a remainder in tail, in such
manner that they might always go along aud bo enjoyed with the
titles and dignities, with a proviso, that they should not be aliened
to the injury of the persons in remainder, were held to be alienable
(luring the life of the person in possession, and to be, therefore, the
subject of a receiver during his life.'^ A receiver will also be
appointed of heirlooms,'* or of the tolls of a turnpike,'* canal,. "^
railway,^ market,'' or d(jck ;** but the Court will not appoint a
receiver of parochial rates which are to be assessed and collected at
a future period."

It is not necessary, in order to authorise the Court to appoint a
Receiver, that the property in respect of which he is to be appointed
should be in England,**^ or, indeed, in any of Her Majesty's dominions.
Thus, in England, persons have been appointed to manage landed
property, receive the rents and profits, and convert, get in, and re-
mit the proceeds of property and assets, where such property has
been situated in British India,** Canada,*' China,*'* Ireland,** Italj,*^
New South Wales,*^the West Indies,*^ Demerara,*^ and other places.

1 Ante.

2 Davis V. Duke oj Marlborough, 1 Swaiist. 74, 84 ; and see S. C. 2 Swanst. 108, 120.

3 Earl Shaftesbury v. Duke of Marlboro\tgh, Seton, 1025.

4 Knappv. Williamii. 4 Yes. 430, n. (a); Dumville v. Axhbrooke, 3 Russ. 98, n. ; Lord Creirr v.

miextoa. 1 De G. & J. 93 : 3 Jur. N. S. 1061 : Seton, 1034.
.") Fripp V. Chard Railway Company, 11 Hare, 241 : 17 Jur. 887 : .Si<?(o?», 1034 ; Pottuv. Warwick, d-c,

CaiMl Company, Kay, 142, 143 : Seton, 1034.
il Runsell V. Faxt Anglian Railway Company, 3 McN. & U. 104, 105; Furnean v. Caterham Railway

Company, 2.'i Beav. 014, 619: 4 Jur. N. S. 1213.

7 Dc Winton v. Mayor of lireeim, 2(i Beav. 5,S3 : 5 Jur. N. S. 832.

8 Amex v. Trustees of liii-keuhead Dockn, 20 Beav. ;W2 : 1 Jur. N. S. ■'J29. As to Receivers of the

property of eonii)aiiic.s, see Seton, 1034.

9 Drcwry v. liarnex, 3 Uuss. ii4.

ID Ilouhiitch V. Marquix of Donegal, 8 Bl N. S. 301, .S43 ; liarkley v. Ijord Reai/, 2 Hare, 308;
Faulkner v. Daniel, 3 Hare, 204, ii. : Seton, 1038.

11 Logan v. Prineesn ofCoorg. Seton, lO.'iS, No. 1 ; Kens v. Kens, ib. : 1 Poav. 425.

12 Tiilecy. Tylee, Seton, mw.

13 llodnon v. Watson, Seton, 103S.

U Wmlditch v. Marquis of Don-'gal, 8 Bl. N. S. 301, 343; Seton, 1007; but see Re Trant, and Re

Warner, cited i7>. 1008.
15 ITinton V. Galtl, 24 L. J. 121 : 2 Eq. 479, M. R. ; Seton, 1039, No. 3.
Ifi Underwood v. Frost, Seton, 1038, No. 2. 17 Seton, 1036, 1037.

')« Piirtery. Porter, .'^eton, 1036, No. 2 ; Biinbiiry v. Bunbury, 1 Beav. 318 ; Seton, 877, 1030.

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1766

WHO MAY BE APPOINTED.

In these eases, a person resident in England is sometimes appointed
Receiver or manager, with authority to appoint an agent abroad ; ^
and sometimes a person abroad is appointed Receiver or manager,
with directions to consign or remit to some person resident in Eng-
land.^ Ordinarily, the person appointed to act abroad as Receiver
or manager must give the like security of persons resident in this
country.'

Who may be appointed.

Generally speaking, a Receiver should be a person wholly dis-
interested in the subject-matter of the suit ; but, in some cases, a
person mixed up with the suit may be appointed.* In a suit to
dissolve a partnership, one of the partners, who was willing to act
at salary, has been appointed Receiver;^ and a retired part-
•vho had advanced all the capital, and was liable to the
paiirurship debts, has been appointed Receiver : he being willing
to -i^r^ -without salary.** But in no case will a party to the cause be
appv.*mt«;d : unless he is appointed by the Couit at the hearing ; or
a direction, giving him leave to propose himself, has been given by
the Courti This leave, if granted, is usually embodied in the
order '^ directing the appointment of a Receiver; but if it has not
been refused, a subsequent order to that effect can be obtained, on
summons at Chambers.^

W til"

m

A trustee, who is a party to the cause, will not, however, be ap-
pointed a Receiver with emolument, if anyone else can be procured
who will act with the same benefit to the estate ;® and even where
he is disposed to act without emolument, the Court will not appoint
a trustee to be a Receiver, if he is the person who ought to watch
and check the Receiver, for the benefit of the parties interested i^**
but where a testator appointed as trustee a person who for many
years had been the paid Receiver and manager of his estate, the

1 See

V. Lindsey, 15 Yes. 91 : Cockhurn v. Raphael, 2 S. & S. 453 ; Setoii, 1036, 103.

2 See Setnn, 1036-1030.

3 Ibid.; Cockhurn v. Raphael, 2 S. & 8. 453 ; Seton, 1038. As to the security of Receivers, seepoxt.

4 Fingal v. Blake, 2 Moll. 50.

5 WUmn v. Greenuioitd, 1 Swanst. 471, 483 ; Blakeney v. Dttfaur, 15 Beav. 40, 44.

6 Hoffman v. Duncan, 18 Jur. 69, V. C. W.

7 See forms, Seton, 1003, Nog. 4, 59.

8 Seton, 1006 ; and see Banks v. Banks, 14 Jur. 650, M. K.

9 Fingal v. Blake, 2 Moll. 50 ; Sykes v. Hastings, 11 Ve?. 363, 364 ; but see v. Jolland, 8 Ves.

72 ; see also Powys v. Blagrave, 18 Jur. 462, V. C. W., where a tenant for life wa« appointed
receiver on his undertaking to act without salary.
10 Anon., 3 Ves. 616; Sykes v. Hastings, 11 Ves. 363,364; Stitton v. Jones, 15 Ves. 684.

R^^CEIVERS.

1767

ointed
road;^
mager,
I Eng-
eceiver
in this

Uy dis-
eases, a
i suit to
r to act
ed part-
to the
willing
:>ause be
ring; or
iven by
1 in the
, has not
ined, on

c, be ap-
procured
in where
appoint
o watch
rested f
br many
bate, the

tenant for life being an infant, *b . Court continued the trustee as
Receiver at a salary.^ The rule, tiiat the Court will not sanction
the appointment, as Receiver, of a person whose duty it is to check
and control the individual appointed, is extended to other persona
besides trustees. Thus, it has been held, that, as it is the duty of
the next friend of an infant to watch the accounts and conduct of a
Receiver of the infant's estate, the two characters are incompatible
with each other -^ and, in Taylor v. Oldham,^ Lgrd Eldon held

that the son of a next friend ought not to be the Receiver.

® ■ ,''

Upon similar grounds it has been held, that a solicitor in the
cause cannot be appointed receiver : because it is his duty to
control the receiver's accounts.* It is no objection, however, to
a person proposed, that he is a practising barrister ; ^ and
although, in Wynne v. Lord Kewborough,^ Lord Eldon appears
to have considered that the circumstances of the gentleman who
was appointed being a barrister, practising at a distance from the
estate, was one which deserved consideration, yet many instances
have since occurred in which barristers practising in Loudon have
been appointed receivers of estates at a distance.

The appointment of a Member of Parliament,^ or a Peer,^ as
receiver, is, it seems, objectionable, if any person possessed of equal
fortune can be found who is willing to act.

It has also been held, that the Receiver-General for a county
should not be appointed a receiver : for, having given security to
the Crown, if he were to become indebted to the Crown and
to the estate, the Crown might, by its prerogative process, sweep
away all his property.®

In Kemp v. Jones ^^ a receiver was granted with liberty to
the defendant to propose himself as such, without salary.

35>

103.
rers, see pout.

Hand, 8 Ves.
ras appointed

1 Bury V. Setovurt, 23 Bea\ . 30.

2 Stone v. Wufiart, 2 Madd. 04. 3 Jac. 527, 52U.

4 Garlaivd v. Garland, 2 Ves. J. 137. In Bar/ot v. Barjot, 2 Jur. 1063, Sir Lancelot Shadwell, V.C.,on
the application of a married woman for a receiver of lier separate estate, appointed tier solicitor
to that office, on her nomination in Court : althou^rh a strong} affidavit was made by the husband
showing the unfitness of the solicitor for the ottice. The party appointed undert<Jok to act as
receiver without salary.

bGarlatulv. Garland, 2 Ves. J. U7. ■ « 15 Ves. 283.

7 Wynne v. Lord yewhomv^h, 15 Ves. 283.

8 Attorney-General v. Gee, 2 V. * K. 203.

0 Attorney-General v. Dai/, 2 Miuld. 240, 253." See now, however, as to Crown debts, Prov. Stat. 29 fc
30 Vic. ch. 43. 10 12 Grant, 205.

1768

MODE AND EFFECT OF APPOINTMENT.

iHforfe am? Effect of Appointment. , j, ,, , ; ■

Except in the case« of infants,^ the Court has no jurisdiction to
appoint a receiver, unless a suit is pending ; and if the application
for the receiver is made before decree, it will not be granted unless
a bill has been filed containing a specific prayer that a receiver
may bo appointed. ^

At the hearing,^ however, or after the decree,* a receiver may
be appointed, although not prayed by the bill, if the circumstances
of the case require it : and the application may be granted after
decree, although it has been previously refused, if a state of facts
entitling the party to a receiver appears upon the proceedings in
the cause.'' : . '

A receiver may be appointed after an administration decree, in a
suit commenced by summons.*

Wliere the original bill had been answered, it was held that the
pendency of a plea to the amended bill did not prevent a motion
for a receiver.^

After decree, the application for a receiver may be made by one
defendant against a co-defendant ^ but before decree, the applica-
tion must, except under very special circumstances, be made by the
plaintiff:* and where made at the hearing of a redemption suit,
the application was refused.io

Originally, a receiver could only be appointed after answer but
this rule was broken through by Lord Bathurst, in the case of
Crortipton v. Bearcroff, ;" and since that case, the appointment

1 Ante; and see as to lunatics, anttr. „ „ „ „ ,.,

2 Pare v. Clegg, 7 J«r. N. S. 1136 : 9 W. R. 216, M. R. ; but see Malcolm v. Montgomery, 2 Moll 500.

8 Oihome v. Harvey, 1 Y. i C. O. C. 116. „. „ . „ „ ««
4 Bow an r. Bell, 14 Sim. .392 ; Wright v. Vernon, 3 Drew. 112 ; Thomas v. Davwx, 11 Beav. 29.

6 Attorney-General V. Maijor of Oalteay, 1 UoW. 9S-10*. „ , ^, . „ ...

6 Re Byteaterg, Sargent v. Johnton, 1 Jur. N. S. 227, V. C. W. ; Brooker v. Smoker, 3 Sm. & O. 475;

3 Jur. N. S. 381 ; and see ante.

7 Thompson v. Selhy, 12 Sim. 100. 8 UiUx v. Moore, 16 Beav. 176.

9 R»A>iniKm v. Iladlei^, 11 Beav. 614. 10 Barlmo v. Oamn, 8 Beav. 329.
11 2 Bro. C. C. 168, n.

RECEIVEBS.

1769

[■'■'■inHr-

ction to
tlicatiou
d unless
receiver

i^er may
nstanceM
,ed after
of fact^
)dings in

cree, in a

that the
a motion

e by one

applica-

le by the

tion suit,

swer but
le case of
(ointment

•y, 2 MoU 600.
1 Be»v. 29.
Sm. Si 0. 475;

has been made known before answer, whenever the justice of the case
required it ;^ and, in a case of urgency, even before appearance.^

The application for a receiver is usually made by motion;^ and
except in a suit commenced by notice of motion, or by consent, it
cannot be made at Chambers in the first instance : although any
vacancy which may occur in the office, by death, or otherwise, may
be filed up by an order made there.* ' '

Notice of the motion must be served on the opposite party :
the general rule of the Court being, that an application for
a Receiver cannot, like a motion for an injunction, be made
without notice.^ If, therefore, a receiver is to be applied for
before the expiration of the time for answering, notice of the motion
must be served upon the defendant personally : to authorize which,
there must be a previous application to the Court for leave to make
such service;^ and the fact of such leave having been obtained
must be mentioned in the notice of motion.^ The rule, however,
which requires previous notice to be served upon a defendant who
has not answered is subject to exception where the defendant has
absconded to avoid service, and, therefore, cannot be served.^

The application must be supported by evidence of the facts relied
upon, as r*^ adering the appointment proper ; and must, if the appli-
cation is made before decree, be founded on the allegations of the
bill.» ■ .

Formerly, if the application was made after answer, the plaintiff
could only rely on the admissions contained therein ; and could not
enter into evidence in opposition thereto ;^" but now, upon any ap-
plication for a receiver, or to discharge an order appointing a

I

1 Pitcher V. Uelliar, 2 Dick. 580 ; Vann v. Bamett, 2 Bro. C. C. 158 ; Middleton v. Dodtwell, 13

Yes. 26« ; DurkiDorth v. Trafford, 18 Vea. 283 ; Metcalfe v. Pulverto/t, 1 V. & B. 180, 183 ; Dams
V. Duke of Marlborough, 1 Swanst. 74: 2i6. 115 ; Taiifieldy. Irvine, 2 Rus-s. 149; Aberdeen v.
Chitty, 3 Y. & C. Ex. 379 ; Woodyatt v. Oresley, 8 Sim. 180, 183, 189 ; and see Middleton v. Sher-
bttrne, 4 Y. & C. Ex. 358.

2 Tanfteld v. Irvine, 2 Russ. 149 ; Hart v. ri/i*,6 Hare, 611 ; Meaden v. Sealey, ib. 620: 13 Jur. 2ft'.

3 A petition ha.s been made use of, wliore the application was by the defendant ; Hiles v. Moore

Beav. 175 ; and see Earlow v. Oains, 8 Beav. 329, 331.

4 Blaekborough v. RavenhiU, 16 Jur. 1085, V. C. S. ; Grote v. Bu\g, 9 Hare, App. 50.
6 Per [icach, Arsf. 1 V. k, B. 183 ; CaUlnrd v. Caillard, 25 Beav. 512.

6 UUl V. Rbnell, 2 M. & C. 641 ; liatngbottmn v. Freeman, 4 Beav. 145 ; Meaden v. Sealey, 6 Hare,
620. 7 See ante.

8 Dbwliiuj V. IIud»on, 14 Beav. 423, 424, n. ; and see Pitcher v. Helliar, 2 Dick. 580 ; Gibbins v

Mainwaring, 9 Sim. 77 ; ante.

9 DatVHon v. Yate», 1 Beav. 301, 306: 2 Jur. 960.

10 See Goodman v. Whitcmnh. 1 J. & W. 589; Glassingtnn v. Thimttes, IS. «* S. 134 ; Kerihnu) v.
Mathewg, 1 Russ. 361.

»5

1770

MODE AND EFFECT OF APPOINTMENT.

i

r ■*.

receiver, the answer of the defendant is, for the purpose of evidence
on such application, to be regarded merely as an affidavit of the defen-
dant ; and affidavits may be received and read in opposition thereto.^

. When there is a reference to the Master to enquire what lands are
partnership property, a motion to appoint a receiver is informal.'^

The order referring it to tlie Master to appoint a Receiver is
brought into his office in the usual way by filing a copy with him-
Our order 278 provides that " The party prosecuting the order for
a Receiver is to obtain an appointment or a warrant from the
Judge or Master, and to serve the same on all the necessary parties,
naming in the copy thereof served, the proposed Receiver, and Ms
sureties."

The warrant is underwritten, " To appoint A. B., of the city of

H., esquire, Receiver under the order in t/ie cause dated

and C. D., of the same place, merchant, and E. F. of the same place,
gentlemen, are proposed as his f: .•eties." The warrant is served
on all the parties to the suit whether parties by bill or by order of
Court, or parties added in the Master's office, having an interest in
the property of which it is proposed to appoint a receiver.

Order 279 provides that " At the time appointed, the party pro-
secuting the order is to bring into the Judge's chambers, or the
Master's office, the recognizance or bond proposed as security; the
bdnd or recognizance is to be to the Master." This means the
Master, to whom the lefeience is made. It not unfrequently
happens that the appointment of another person is desired by some
of the parties interested. The mode of proceeding in such a case is
pointed out by another order which provides that "Any other
party desirous of proposing another person as receiver, is to serve
notice of his intention so to do upon the other parties namiug in such
notice the person proposed by him as receiver, and his sureties, and
is then in like manner to bring into the Judge's chambers or
Master's office the recognizance or bond proposed by him as
security." The next order provides that " At the time named in

1 15 & 10 ^'ic. fh. 86, sec. 59 ; but we have no provision siinilur to tliis, either by Statute or by our

Orders.

2 Baten V. Tatham, 5 U. C. L. J. 4a

RECJJIVERS.

1771

the appointment or wairant the Judge or Master is, in the pre-
sence of the parties, or th«^^^o who attend, to consider of the appoint-
ment of the receiver, and to determine respecting the same ; and to
settle and approve of the proposed security."

ute or by our

In order to make an appointment the Master requires evidence
(usually given vive voce) on the return of the warrant, of the fit-
ness of the proposed receiver ; and where there is a counter pro-
posal, he takes the evidence as to both of the persons proposed, and
decides according to it. Having made his decision, he then settles
the draft recognizance or bond, marking on the margin " settled.

A. B., Master, this day of " The Master

enters in his book that he has api)()inted A. B., Receiver, but he
does not sign the appointment until the recognizance is executed
and filed ; and this entry does not amount to a complete appoint-
ment— it is merely an indication that on the security being perfected
he will sign the ofticial appointment presently to be mentioned.
Having done this, and settled the form of recognizance, it will be
necessary for hhn to fix the amount in which the receiver and his
sureties ai 3 to be bound. This is ascertained by an afiidavit stating
the yearly or other value of the i)ro])erty. If the parties are pre-
pared with this affidavit, or if they desire to give vive voce evidence
on the point (for the Master may ado[)t either course in his discre-
tion) he liiiiy at once settle the amounts to be inserted in the recog-
nizance. If, however, they are not prepared, the Master appoints
a day to receive the evidence. Having ascertained the value <>f the
property or the yearly value, as tlie case may be, the Master fixes
the amount of the recognizance. It is to be understood tliat if the
property he personal, such as the receiver might dispose of, its n alue
is the amount to be secured ; but if the property be real estate, of
which lie could make no disposition, its yearly value, will be the
amount to be secured. In order to make clear the practice in pre-
paring the recognizance and affidavit of justification required
fr >m the sureties, it is supposed that the value of the property is
^1,000. The recognizance in such a case will bind the receiver in
$2,000 (being double the value of the property), and each surety (sup-
posing there are two) in $1,000 (being the value). And each
surety will justify to the extent of $2,000 (being double the value).

J-

**0

1772

MODE AND EFFECT OF APPOINTMENT.

(>

It sometimes occurs that the vahie is ho great that it becomes un-
reasonable to expect a Receiver to find two sureties able to justity to
the extent required ; in such a case the 'laster will permit him t
propose as many sureties as he may find necessary. It may here
be noticed that where a surety of a Receiver dies pending the suit,
the receivei' may obtain ex parte an order referring it to the Mastei-
to approve of a new one.^

It may here be mentioned that by the English practice the Re-
cognizance was entered into before the Master ; or where the parties
resided out of London before a Master extraordinary — but here, it
may be entered into before any commissioner appointed to take
affidavits.

If any party desires to bring the propriety of the Master's ap-
pointment of a Receiver before the Court, it is done by appealing
from his decision, in the ordinary way.

It may here be noticed, that order 537 provides that " Commit-
tees of the persons and estates of lunatics, idiots and persons of
unsound mind, and guardians, excepting guardians ad litem, are to
be appointed in the same manner as Receivers, as nearly as circum-
stances will permit." And order 588, provides that " Where an
order, directs the appointment of a Receiver, Committee of the per-
son and estate of a lunatic, idiot, or person of unsound mind, or a
Guardian, other than a Guardian ad litem, and does not regulate
the inatter herein provided for, the Master is to fix the time or
times in each year when the person appointed is to pass his ac-
counts and pay his balances into Court, and in default of compliance
with such direction, the person appointed may, on the passing of his
accou^its, be disallowed any salary or compensation for his services
and may be charged with interest upon his balances."

The security Usually required is the recognisance of the receiver,-
with two sureties.^ It is generally required to be for double the annual
rental,* or value of the property likely to be got in by the receiver
during the currency of his periodical account. The sureties may be

1 Brown v. Perm, 1 Cham. Kep. 204 ; and see Order 283.

2 Where the receiver had been improperly omitted to be joined with hi.s sureties in the recr.gniMance,

the solicitor was made j)ersoually liable for a loss occasioned thereby : Re Ward, Simmnnn v.
Rose, 31 Beav. 1.

3 Mead v. Lord Orrern, 3 Atk. 237 ; Hetoii, 1007. 4 Seton, 1007.

RECEIVERS.

1773

omes un-

bound in unequal sums ; and the number of sureties may be
increased, so as to diminish the amount for which each is to be
liable ;^ but it is not regulai to take, as security for a receiver, an
assignment of a mortgage bt longing to him,^ or (even by consent,)
the bond of an incorporated guarantee association :^ instead of the
usual recognisance. A recognisance of the receiver only, has, how-
ever, under special circumstances, been considered sufficient. Thus,
where the parties in the cause name the receiver, the Court will, by
consent, a])point him upon hi.s own recognisance only ;* and where
the appointment of a person to be receiver was made by the testator
and confirmed by the Court, the personal recognisance of such
receiver was held sufficient •,^ but it seems that the Court will not
dispense with the usual securi by, unless all the parties ai-e sui jwrw
and consent." • .; 'i

The sureties must be residen i within the jurisdiction ;'* and upiMi
any event, such as death or bnnkruptcy, happening, which would
prevent the recognisance being effectually put in force against them,
an order will be made at Chambers, on motion, directing the receiver
to give a new security.® Where, also, the property of which a
receiver has been appointed has increased in value during the
receivership, additional security has been required to be given by
him.»

t

The order appointing the receiver ought to state distinctly, on the
face of it, over what property the receiver isappointed;i2or else refer to
the pleadings, or some document in the cause, which describes the pro-
perty.^^ It usually directs the receiver to pass his accounts from
time to time, and to pay the balances found due from him into
Court, to the credit of the cause : to be there invested and accumu-
lated, or otherwise, as may be directed.^^

1 Seton, 1007.

2 Mead v. LordOrren/, 3 Atk. 237.

3 Matiners v. Furze, li Beav. 30 : 12 Jur. 120. Such a bond has been held sufficient as security for

costs : Plestoic v. Johiuton, 1 Sm. & G. App. 20 : 2 W. R. 3 ; an i cee a.s to ufflcialliquidators, Ord.
11 Nov. 1862, r. 10 : 8 Jur. N. S Pt. II., 515.

4 Counteag of Carlitile v. Lord Berkley, Arab. 599 ; Hid^ut v. Earl of Plymouth, 1 Dick. 68 ;

Countess Carlisle v. Earl Carlisle, cited t6. ; Wilson v. Wilson, 11 Jur. 793, V. C. K. B.

5 Hibbert v. Hibbert 3 Mer. 681, 683.

6 Tylee v. Tylee, 17 Beav. 583 ; and see Bainbrigge, v. Blair, 3 Beiiv. 421, 424 ; Manner* v. Furze, 11

Beav. 30 : 12 Jur. 129.

7 See Cockbum v. Raphael, 2 S. & 8. 453.

8 Seton, 1019.

9 Spenee v. Handford, M. R. in Chambers, 17 Feb. 1865.

10 Crow V Wood, 13 Beav. 271. 11 Seton, 1005.

12 t'oT fomis of orders directinfi^ receivers to be appointed, see Seton, 1002,

I

1774

MODE AND EFFECT OF APPOINTMENT.

If the appointment is of rents and profits of real or leasehold
estates, the order directs the tenants of such estates to attorn
and pay their rents in arrear and growing rents to the receiver ; but
this direction should be omitted where the estates are out of the
Province.^

If the appointment is of outstanding personal estate, or of part-
nership property, the order generally directs the executors, or other
parties, to deliver over to the receiver all securities in their hands
for such estate or property, and also the stock-in-trade and effects of
the partnership, together with all the books and papers relating
thereto.^

If the receiver j° appointed on behalf of one of several incumbran-
cers, the order generally contains a declaration that the ap})oint-
ment of the receiver is to be without prejudice to the rights of, or is
not to affect, the prior incumbrancers upon the estate who may
think proper to take possession of the estates and premises, by
virtue of their respective securities ; and usually directs an inquiry
what incumbrances there are affecting the estate and the priorities
thereof respectively ; and orders that the receiver do, out of the
rents and profits to be received by him, keep down the interest and
payments in respect of such incumbrances, according to their prior-
ities ; and be allowed the same in passing his accounts.^

Unless the person to be appointed receiver is named in the order,
the appointment is made in a Master's office or in Chambers. Any
party to the proceedings may propose a person to be appointed
receiver : although a stranger cannot do so.* The most fit person
should be appointed, without regard to the party by whom he has
been proposed ;^ and, other things being equal, the person proposed
by the party having the conduct of the proceedings is usually pre-
fen'ed.

1 Seton, 1007, 1039.

2 For fomis of orders, see Seton, 1002, 1030. ' '

3 Ibid 1025, 1027. See Lewis v. Lord Zmiche , 2 Sim. 388, 393 : and Smith v. Effingham, 2 Beav. 232

as to the remedies of inciniibrancera ; seealso ante.

4 A ttorneij-General v. Day, 2 Madd. 240.

5 Lespinassev. Bell,'iJ. tiW. 4-ia. > , . .\ . W

leasehold
to attorn
iver; but
ut of the

r of pait-
I, or other
eir hands
I effects of
8 relating

icuml)ran-
} appoint-
its of, or is
who may
emises, by
m inquiry
priorities
fut of the
terest and
leir prior-

;he order,
ers. Any
appointed
fit person
ui he has

proposed
ually pre-

m, 2 Beav. 232

RKCEIVERS.

1775

Whore the Master or a Judge has exercised his discretion in the
selection of the person appointed, it will not be interfei-od with on
appeal.* . ^

The costs incurred with reference to the comjdetion of the receiv-
er's security, and subse«|ucnt thereto are, in the first instance, paid
by the receiver, and will be allowed him in passing his tirst ac-
count.

A receivei appointed by the Court is appointed on behalf of all
parties ; and not of the plaintiff", or of one defendant only ;- there-
fore, if any loss arises from deficiency in his accounts, the estate
must bear it, as between the parties to the suit.-' The effect of the
appointment however, is not to oust any party of his right to the
possession of the property, but merely to retain it for the benefit
of the l^arty who may^ ultimately appear to be entitled to it ; and
when the party entitled to the estate has been ascertained, the re-
ceiver will be considered as his receiver.* Where, however, a
receiver had been appointed in consequence of the inability of the
vendor of an estate sold under a decree to make out his title, the
Court thought that the expenses of the receiver ought not to be
borne by the purchaser, and directed that they should be repaid to
him out of the fund in Court, together with the costs of the appli-
cation.^

A Receiver although an officer of the Court, stands in the'position
of trustee for all interested in the estate or fund, — therefore in mak-
ing the appointment, the Court will endeavor to select a person
unexceptionable to all parties, not only on the score of fitness and
competency, but also as regards the feeling of friendship or dislike
between the person proposed and those with whom he, in the dis-
charge of his duties, will be likely to be brought into frequent
communication.^

1 Le.jiv. Ley, 27 L. T. 207, L.JJ. ; and see Re Agriculturist Cattle Company, 7 Jur. N. S. 690: 9 W. R,

682, L.JJ. ; see also Creuze v. Bixhop of London, 2 Bro. C. C. 253; Thr.nag v. Dawkin, 3 Bro. C.
C. 508: 1 Ves. J. 452; Oarlnnd v. Garland, 2 *. 137; Boiversbaik v. Collaggeau, 3 i6. 164 ;
Wilkim V. Williams, ih. 588 ; Tharpe v. Tharpe, 12 Ves. 317, 320 ; Wynne v. Lord Newborough,
15 Yea. 284 ; A ttonwy-General v. Day, 2 Madd. 246, 253, and the cases cited ib. 252, 253, as to the
extent of the control exercised by the Court over the appointinrnt of receivers by the Masters
under the former practice.

2 Davis V. Duke of Marlborough, 2 Swanst. 118 ; Bainbrigge v. BUir, 3 Beav. 421, 424 ; and see tleale

V. Pink, 3 McN. & G. 476.

3 Lord Hutchinson v. Lord Massarcene, 2 Ball. & B. 55.

4 fiharp v. CaHer, 3 P. Wms. 379 ; Boehm v. Wood, T. & R, 345.

5 McLeod v. Phelm,'i Jur. 962, V. C. E.

6 Simpson v. 0. (6%. R. Co. 1 Cham. Rep. 99.

'1

'k.

,:^

1776

MODE AND KFFECT OF APPOINTMENT.

It has beoii alroacly statod, that where sequestrators, upofn itieane
pnxjess, are in ])().sse.s.sioii of th(* lands and tenements in question in
the cau.se, the af)poiiitin(;nt of a receiver of the rents and profits
will have the effect of discliarging the sequestration.^

Where a receiver has heeu appouited of real or leasehold estates
the [)arties to the record are usually directed by the order to deliver
up to him the possessiou of such parts of the property as are in
their holding ;- and the tenants of such other parts as arc le* are
ordere<l to attorn to the receiver, and to pay to liini their rents
in arrear, as well as the growing rents.'^ The receiver, therefore,
as soon as his appointment is complete, should apply to the parties,
and tenants to deliver possession and attorn accordingly ; and if
they refuse, he should report their refusal to the solicitor of the
party on whose application the order was made ; to the intent
that he may take the necessary steps to enforce the order of the
.Court.*

Any party to the proceedings who is in possession of property
ordered to be delivered to the receiver, and who neglects to deliver
accordingly, should be served personally with the order directing
such possession to be delivered ; and if possession is still withheld
from the receiver, an application should l)e made by motion, cji'
parte, for a writ of assistance, directed to the Sheriff of the county
wherein the property is situate, to put the receiver into possession,
pursuant to the order. ^' The application should be supported by
an affidavit of service of the order, and of non-compliance. The
writ is pre[)ared, issued and executed in the manner before ex-
plained.*^

If a party t(j the proceedings is not directed to deliver up posses-
sion to the receiver, he is not bound to do so ; but he will be
charged with an occupation rent, for the premises in his possession.'

1 Ante; Shniv v. Wright, .'5 Ves. 22, 24.

2 See Seton, 1015 ; and see form of order, ib. 1023. In Davis v. Duke of Marlborough, 2 Swanst. 108,

116, the order appoiiiting the receiver directed the Dulve to deliver up possession to him.

.! See form of order, Seton, 1002, No. 1.

4 See Onfith v. Griffith, 2 Yes. S. 401 ; Irelaiul v. Bade, 7Beav. 55 ; Parker v. Dunn, 8 Beav. 4!(7 ;
Herman v. Dunbar, 23 Beav. 312. As to the course to be adopted, where tlie receiver finds
another receiver in possession of tlie property, see Ward v. Swift, (i Hare, 312 : 12 Jur. 173 ; and
a.s to obtaininj^ the previous leave of the Court, where tb>^ receiver is appointed under a decree y>/'"
confesso, see ante.

.') See form of order in Setnn, 1228. 6 Ante.

Haudfield v. Bandjield, 7 W. R. 651, V. C. K. Tlie jiarty will not be ordered, befoiethehcariii},', to
pay an occupation rent from a date previous to the order fixinjf the rent^nd appointill.^ the
rccei\'er: Lloyd v. Manoit, 2 M. & C. 487. ^

RKCKIVERS.

1777

n tiiesne
jstiou in
1 profits

il estates
0 deli vol-
IS are in
1' le* are
K'ir rents
therefore,
e parties,
; and it'
)r of the
he intent
er of the

' property
bo deliver
directing
withheld
notion, ex
:ie county
ossession,
)orted by
luce. The
efore ex-

ip posses-
lie will be
Issession."

1 2 Swanst. 108,
I him.

8 Beav. 4!)7 ;
J receiver fimls
I Jur. 17a ; ami
ler a decree /'(•')

lthelu'arin!,',to
Itppolntiiiy the

Where any tenant of the property refuses to attorn to the recei-
ver, or to pay him any arrears of rent,* he should be served with a
copy of the order directing the appointment of a receiver, and of
the order or certiticate completing the ap])(>intment,^ and with a
notice in writing, signed by the receiver, i»,'quiring him to attorn
and pay; and on refusal, the tenant should be served with a notice
of motion to attorn and pay within a limited time after the service
of the order to be made on the motion.

The person served may appear on the moticm, ami inform the
Court whether he is in po.ssession as tenant or not.^ If he does
not appear, the order will be made upon an artidavit of service of
the notice of motion, orders certiticate, and notice to attorn, and on
jiroof by affidavit of the refusal to attum "* The orckr will be made
without costs.^ A copy of the order in(lorse<l in the usual manner,
must then be served personally upon tlu^ person thereby directed
to attorn ; and upon production to Hie Record and Writ Clerk of an
affidavit of such service, and of an affida\ ij by the receiver of non-
compliance, he will seal an attachment against the disobedient
party. The attachment is prepared, issued and executed in the
manner before explained.*

In Reid v. Middletou,'^ it appeared that the tenant in possession
had not agreed to pay any specific rent ; and, in consequence, an
order was made, that an occupation-rent should be settled by the
Master, and that the tenant should pay the arrears and future pay-
ments of such occupation-rent ; and where the tenant had not
attorned, he was, nevertheless, ordered to pay his arrears of rent
within fourteen days.^

It may be mentioned here, that the attornment to the Receiver
will not enure for the benefit of the person who may ultimately be
found to have in him the legal estate.^

The possession of a Receiver is deemed to be that of the Court ;
and any attempt to disturb it, without the leave of the Court first

1 See Codrinjton v. Johnntonc, 1 Beav. ■'>24 ; Dujfield v. Elwoi, 11 Beav. 690.
i See ante.

3 Reid v. MiildleUm, T. k R. 455 ; Ilohhinuc v. Ifolleombe, 2 Do G. & S. 208 '

4 For forms of orders, see Seton.'lOVi, No. 1 ; 1013, No. 2.
:> Hvbhovue V. Ilollcombe, 2 De G. & S. 208.

6 Ante ; DraithimUe's Pr. J72, 173. 7 T. & R. 455.

8 Hiihton V. Sherivuod, 19 Beav. 575 ; and see Mitchel v. Duke of Manchester, 2 Dick. 787.

'.» fc'i'aiw V. Mathias, 7 El. & Bl. 590 : 3 Jur. N. S. 793, Q. B. ; and see Hughes v. Iluj/hes, 3 Bro. C.C.

87 : 1 Vea. J. 161. As to attornment in general, see WoodfaU, 20fi, 208; and' to a receiver in

OhuDcery, ib. 61.

I

1778

MODE AND EfF^QT Of APPOINTMENT.

obtained, will be a contempt on the part of the person making it ;
and will be restrained by injunction ; ^ or the person making it
will be committed for his contempt.^ i „•,... . ' '

ffOii^K

A; I

'■ 'T

This was settled in Aiif/el v. Smith, ^ where the rule was laid
down, both with respect to Keceivers and sequestrators, that their
possession is not to be disturbea without leave ; and the same rule
will be acted on, in cases where the Eeceiver has been appointed
erroneously.^ or without prejudice to the rights of persons having
prior charges.'"' The rule does not, however, apply until a Eeceiver
has actually been appointed ; and a direction to appoint a Eeceiver
is not, in this respect, equivalent to the order appointing him.^
The Court will not protect a Sheriff executing process, after he has
notice from a Eeceiver ; " but will order him to withdraw from the
possession, and restrain proceedings against him by the execution
creditor ; ^ and where the Sheriff has tak'^n property, part of which
is claimed by a Eeceiver, the latter will be directed to give a list
of the property claimed by him to the Sheriff ; who will be ordered
to withdraw from the possession of the specified property.® It has
recently been held, in Ireland, that where a Eeceiver has been
appointed over the estate of a tenant for life, the remainderman
has a right, immediately on the decease of the tenant for life, to
go into possession, without making any application to the Court.^"

Any person who considers himself prejudiced by having a
Eeceiver put in his way, must apply by motion, on notice, for an
inquiry as to hi? interest, or for leave to commence proceedings
against the Eeceiver ;^^ and he must do this, although his right to

1 Angel v. Smith, 9 Ves. 335 ; Tink v. Bundle, 10 Beav. 318 ; Evelyn v. Lewis, 3 Hare^472 ; Rwsel

V. Kant Anglian Railway Company, 3 M'N. & G. 104, 117 ; Turner v. Turner, 15 Jur. 218, V. C.
Ld. C. ; Jlawkinn v. Gathercole, 1 Drew. 12 ; liamifield v. liandjield, 1 Dr. & Sm. 310 ; Lane \.
Sterne, 3 Giff. 6 9:9 Jur. N. S. 320.

2 Broad v. tt'ickham, 4 Sim. 511 ; Margh v. Goodall, Seton, 1013 ; and seo Ward v. Sm/t, 6 Hare.

312 : 12 Jur. 173.

3 9 Ves. 33 j.

4 Aines v. Trustee* of the Birkenhead Docks, 20 Beav. 332 : 1 Jur. N. S. 529 ; Handheld v. RandfieM,

ubi sup.

5 See Anon., 6 Ves. 287 ; Bryan v. Cormick, 1 Cox, 422.

6 Dofriea v. Creed, 11 Jur. N. S. 300 ; 13 VV. R. 6:52, V. C. K.

7 Try v. Try, 13 Buav. 422 ; Rock. v. Cook, 2 Phil. 091 : 2 De O. & S. 493 ; Onyon v. IVashboamt, 14

.lur. 497, v. C. E.

8 Russell v.East Anglian Railway Company, 3 M'N. i G. 104

9 See W'ilmer v. Kidd, Seton, 1002, No. 2, where the order is given.

10 Re Stack, 13 Ir. Chan. Rep. 213.

11 Goiiime •'. West, 2 Dick. 472 ; Anon., 6 Ves. 287 ; Bryan v. Curtnick, 1 (ox, 422 ; Angel r. Smith,

9 Ves. 335, 330 ; Brooks v. Greathed, 1 J. & W. 170, 178 ; SmUh v. Earl of Ejingham, 2 Beav.
232; Gooch v. Hateorth, 3 Beav. 428; Russell v. East Anglican Railway Company, ubi sup. ;
Potts V. Warinck, <(*c., Canal Company, Kay, 142.

RECEIVERS.

1770

kking it ;
laking it

was laid
hat their
lame rule
tppointed
IS having
b Receiver
L Receiver
ng him.^
ter he has
r from the

execution
rt of which

give a list
be ordered
y.9 It has
r has been

ainderman
; for life, to
.he Coui-t.^''

having a

)tice, for an

(i-oceedings

[his right to

riare^472; itu»sei
|15 Jur. 218, V. C
^m. 310 ; Lane v

V. Sioift, 6 Hare.
field V. RandfieM,

jfasfcbounw,

14

take possession is clear. ^ The inquiry as to interest is con-
ducted in the same manner as it would be if the property were
in the possession of sequestrators under a commission of seques-
tration.-

It may be mentioned here, that where an ejectment was actually
brought against a Receiver, although it was without the previous
leave of tlie Court, the Court directed an inquiry whether it would
be for the benefit of the parties interested, who were adults, that
the Receiver should defend the ejectment, and charge the exi^ense
in his accounts.^

Where a Receiver paid a judgment creditor of the defendants',
an amount demanded by him under a garnishee order obtained on
a consent improperly given by the Receiver, the judgment creditor
was, on motion, ordered to refund the amount to the defendants ;
and he and the Receiver were directed to pay the costs of the
motion.* .....

The appointment of a Receiver does not affect the rights of the
landlord of the premises ; but he will not be permitted to exercise
those rights without first obtaining the leave of the Court ; and
where he has not distrained, and the fui'niture in the house of a
tenant has been sold under the direction of a Receiver, the land-
lord has no priority over the Other creditors in the proceeds of the
sale.'^

Salary and Allowances. '

Unless it is otherwise ordered, (as where he consents to act with-
out salary,^ a Receiver will be allowed a salary, or have some other
allowance made to him, for his care and pains in the execution of
his duties. The amount of the salary or allowance is not, in
general, fixed till the passing of the first account: when the
Receiver will be allowed either a per centage upon his receipts, or
a gross sum, by w^ay of salary.

1 Amn., (J Veo. 28/.
B Ik ■ ;> ..4 Hon., 6 Ves. 287.

; ; Angela- S»i'"». ■ 4 De Wiiiton v. J/rti/or .)/ Brecon 28 Beav.

Aiiigham, 2 Beav. h r, Hiitton v. Reeit, ft'jur. N. S. 456 V. C. K.

apart]/, «&»««?■ • ■ <i Ante.

88

2 Ante
200: «.Iiir. N. S. 104(5.

1780

SALARY AND ALLOWANCES.

■o

The allowance to a Receiver of the rents and profits of a landed
estate is generally 51. per cent, on the j[^oss amount received.
This allowance ma.y, however, be increased, if there is any special
difficulty in the collection ; or diminished, or a stated salary
allowed, where the rental is very considerable.^ Under very
special circumstances, an order lias been made that the Receiver
should be allowed such salary as the Judge might, on the passing
of each account, think reas(mable.^

The subject of the amount proper to be allowed to a Receiver,
by way of salary, underwent investigation in /><?// v. Croft ; ^ and,
^ in the Judgment in that case, Lord Langdale, M. R., who had
inquired of the Masters what were the principles upon which they
acted, and the practice adopted on this point in their several offices,
thus states the result of his incpiiries : " The Masters have each of
them been good enough to furnish me with a certificate ; and I find
that there is no general rule which universally prevails as to the
allowance to a receiver. Where the receipts consist of rents of
freehold and leasehold estates, 5/. per cent, upon the amount
received is most frequently allowed. If there be any special
difficulty in collecting the rents, on account of the sums being
extremely small or of the payments being very frequent, as weekly
payments, then the allowance is increased. On the other hand, if
there should be very great facility in receiving the rents, then less
than 51. per cent, is allow'ed. One of the Masters has certitied to
mc a case where, after consideration, he allowed only 4^ per cent.
for the receipts of rents and profits of freehold and leasehold estates
Another Master has certified to me a case in which the sura paid
to the receiver amounted to SOOl. a-year for the first year ; the
Receiver was afterwards allowed 150^. only for a succession of years ;
which was afterwards reduced to 501. a-year, for th(! receijjt of the
same rents. It caimot, therefore, he considered as an universal or
general rule that 51. per cent, should be allowed, even upon the
receipts of rents and profits. It may be increased if there be any
extraordinary difficulty; or diminished if there be any extraordinary
facility in the collection. With respect to other receipts, each

1 Setnn, 1006 ; see Dny v. Cro/t, 2 Beav. 488 : 4 Jur. 429 ; Malmlm v. OCallaghan, 3 M. & C. r>i

I Jur. ass ; see also Shore v. Shore, 4 Drew. 501, 510, as to the jiarty to bear the allowance.

2 yeave v. Douglas, 26 L. .1. Oh. 756, M. R.

3 2 Beav. 488, 491, ubi lup.

a landed
received.
\f special
d salary
ier very
Receiver
3 passing

Receiver,
ft ; ^ and,
who had
hich they
•al offices,
JO) each of
md I find
as to the
>f rents of
B amount
ly special
ims being
as weekly
hand, if
then less
iertitied to
per cent.
Id estate 8
sura paid
year ; the
1 of years ;
lipt of the
liver sal or
upon the
3re be any
aordinary
pts, each

, 3 M. & C. 52
I allowance.

BECEIVEHS.

1781

Master considers himself bound to have regard to the degree of
facility or^ difficulty there may be in receiving them. They have
sometimes allowed 2^/. per cent ; but, for gross sums of money,
this has l)een very much reduced, and l\l. per cent, has been
allowed upon vdMxy occasions. It appears, therefore, that the
Masters, as they ought, consider upon each occasion what is fit or
proper to be allowed, having regard to the degree of difficulty or
facility experienced by the receiver." In the case above cited, an
objection was taken to an allowance which had bean made to the
Receiver, of 5/. per cent, on certain gross sums, which had been
paid to him for the redemption of mortgages and annuities, and
for annuities and interest upon mortgages ; and Lord Langdale
thought that there was sufficient in the case to warrant an order
to review the report.^

The practice of the Masters' offices, as above stated, is generally
followed in the Chambers of the Judges, in fixing the salary, or
making an allowance, to a Receiver. . ,,

In connection with this subject it may be mentioned, that where
a Receiver had been appointed to get hi the outstanding estate of
a testator, Lord Langdale held that the Receiver had not such a
vested right to collect the whole estate as entitled him to prevent
the money being paid into Court, without passing thvough his
hands, in order that he might obtain his poundage ; and made an
order, on the petition of some of the parties interested, that a
debtor to the estate, who was willing to pay the amount of his debt
to the Accountant-General at once, might be at liberty to do so.^

A Receiver may be entitled to allowances beyond his salary, for
any extraordinary trouble or expenses he may have been put to in
the performance of his duties ; or in prosecuting or defending any
legal proceedings brought by or against him.'' If, however, such
allowances are objected to, they will not, in general, be sanctioned,
unless they have been incurred with the approbation of the Court
or Judge.*

*

1 Day V. Croft, 2 Beav. 488 : 4 Jur. 429.

2 llaigh v. Grattan, 1 Beav. 201/ . . , .

3 Potts V. Leighton, 15 Ver. 276 ; Courand v. Hannwr, 9 Beav. 3.

4 lie Orimby, 1 B. & B. 189 ; Sivahy v. Dickon, 5 Sim. 029 ; Bristowe v. Needham, 2 Phil. 190. ,

1^

1782

SALARY AND ALLOWANCES.

M

Upon this ground, Lord Cottenham discharged an order of Sir
Lancelot Shadwell, V.C., directing the Master to review his report
upon a Keceiver's account, with reference to certain sums which
the Receiver had claimed on account of journeys taken by him to
France, for the recovery of property belonging to the estate before
the tribunals there, but which the Master had disallowed. It is to
be observed, however, that the result of the journeys had been
unfavoural)le, and that no benefit had accrued to the estate from
the proceedings instituted ; but it may be inferred, from his Lord-
ship's judgment, that if success had attended tlie exertions of the
Receiver, and he could have shown that siich success had arisen
from his presence in Paris, he would have considered it " inequit-
able for the parties to take the benefit of such exertions, without
defraying the expenses which had attended them, although no
previous authority for incurring them had been given."*

In a case before Sir Anthony Hart, in Ireland, where the
Receiver of a lunatic's estate had instituted proceedings, which,
being wrong in form, he abandoned, and afterwards took other
proper proceedings, which were succes ifal for the estate, the Court
refused to allow him the costs of the abandoned proceedings :
although the Master reported that the Receiver had acted bona fide,
and oifght to be allowed the costs.^

Where an application by a defendant against a Receiver was
refused with costs, and the defendant was unable to pay the costs,
the Receiver was held to be entitled to deduct his costs, as between
solicitor and client, from the balance in his hands.* ,, .

Powers, Duties, and Liabilities of Receivers. ' '

The course to be pursued, to obtain possession or attornment of
estates comprised in a receivership, has been discussed in a former

page. . ,, . .

If a solicitor in the cause has received rents, he must pay them
over to the Receiver appointed therein ; and he will not be per-
mitted to set up a lien on them for his costs.* ;;.;" ' "

1 Malcolm v. O'Callagkan, 3 M. & C. 52, 58, 03 ; 1 Jiir. 838 ; t6. ; Bristowe v. Need,ham, 2 Phil. VM).
i ReMorUgvmeryXM.oW.AX'A. •<••,,,)

3 Cowrand v. Hantner, 9 Boav. 3.

4 Wiekent v. Totnwhend, 1 R. & M. 361.

^•W

I Ajh.-V .Vji-.^A

RECEIVERS.

1783

The Receiver is entitled to all the rents in arrear at the time of
his appointment,^ and to the rents which subsequently accrue
during the continuance of the receivership ; and an order may be
obtained on motion or summons, with notice to the tenant, for
payment thereof by him to the Receiver, notwithstanding he has
not attorned.2

After the tenants have attorned to the Receiver, and so created
a tenancy as between them,'' the Receiver may also distrain, in
his own name, for rent accrued during such tenancy,* without
first obtaining an order so to do f but a distress for rent accrued
before that time must be made in the name of the person who has
the legal right to the rent ; ® and if he is a party to the suit, or
otherwise bound by the proceedings therein, or if there is any
doubt who has the legal right to the rent, an application should be
made to the Judge at Chambers for his directions thereon.'^ It
appears also, from Brandon v, Brandon,^ that the practice is for
the Receiver to distrain upon his own discretion for rent in arrea^
within the year ; but if in arrear for more than a year, then au
order is necessary. - .'.(.,

It would seem that a first mortgagee has not, as such, a right to the
rents and profits of the mortgaged premises. Where, therefore,
a puisne incumbrancer filed a bill, and obtained the appointment of
a Receiver, who had since his appointment collected the rents and
profits of the property, and paid the same into Court, and a prior
incumbrancer, who was not a party to the first suit, filed a bill
upon his mortgage and moved in that cause for an order to apply
the rents so paid in by the Receiver to the payment of his claim
the Court, under the circumstances, refused the application with
costs, but gave the plaintiff liberty to renew the same in such
manner, and in such suit as he should be advised.* ;..,,■ : '.-^u \-

1 Codringtonw. Johimtone, 1 Beav. 524. ' ' "

2 Hobson v. Shencood, 19 Beav. 575.

3 Wood/all, 376 ; Kvanii v. Matkiat, 7 £1. & Bl. 590, 601 : 3 Jur. N. H. 793, 795 ; ami see WhiU v.

Smale, 22 Beav. 72 ; S. C. itom. White v. James, 20 Beav. 191 : 4 Jur. N. S. 1214.

4 Wood/all, 376 ; Mitehrl v Duke of Manchester, 2 Dick, 787.

5 Wood/all, 376 ; Pitt v. Snowden, 3 Atk. 750 ; Dancer v. Hasting*, 4 Bing. 2 ; 12 Moore, 34 ;

Bennett v. Rubim, 5 Car. & P. 379.
9 Wood/all, 376 ; Pitt v. Snowden, ubi itup.; and 8ee Shelly v Pelham, 1 Dick. 120 ; Rcineoek v,

Simpson, ib. 120, n. ; Hughe* v. Hughes, 3 Bro. C. C. 87 ; 1 Ves. J. 161.
7 Ibid. As to diatresses for rent, see Add. Cunt. 333 : Dixon. 194—230 ; L. C. Conv. 260—266;

Woodfall, 357—429. 8 6 Madd. 473.

9 Bank of British North America r Heaton, 1 Cliam. R. 175.

•if-

I

i

1

1784

POWERS, DUTIES, AND LIABILITIES OF RECEIVERS

' An application for leave to distrain is made at Chambers, and or-
dinarily by notice of motion ; but it is not usual to draw up a
formal order in such cases : the minute made by the Registrar of
the directions given been deemed sufficient.^ ' v

In an ordinaiy case, a Receiver may, in his discretion, let for a
year certain or less, or for any term not exceeding three years,
without applying for the sanction of the Judge.^ He has also an
implied authority to determine such tenancies by a regular notice
to quit f but he ought not to raise their rents, on slight grounds
without leave of the Court ;* and he cannot bring an ejectment, or
take any other step to evict a tenant, without the sanction of the
Judge.^ , i

Where the Receiver of a Railway Company was appointed to re-
ceive " the rents, issues and profits of the Railway " Held, that it
was his duty to receive the gross receipts of the Company for the
carriage of passengers, freights, mails, &;c., and to pay the bills for
running expenses thereout, and not to recei e only the surplus
after payini; expenses. The order for the receivers appointment
should direct the payment to him, of the tolls and profits arising
from the Railway."

Where in consequence of the misconduct of a managing partner,
a Receiver had been appointed, a motion calling on a person in pos-
session of property of the partnership (the legal estate in which was
in such partner to deliver up possession or attorn to the Receiver
was granted, though the person in possession swore that the con-
veyance by which such legal estate became vested, though absolute
in form was executed by the deponent as a securi c y <T,ly.^ In a suit
in w^hich a Receiver of partnership effects had bv ;,; pointed and
a sequestration issued against the defendant fb' contempt, the
Court retained a motion against third persons foi .eiivery or pay-
ment to the Receiver or sequestrators of a promissory note, the

1 For form of order to distrain in the name of a defendant, see Setoii, 1013, Xo. 3. - '

'2 Shuff V. Hnldamty, M. R. in Chambers, '27 May, 1803.

3 Wood/all, .52, and cases there cited. As to notices to quit, see ib. 28U-308, 098.

4 Wood/all, 52. 5 Wynne v. Lord Xewbf/rutigh, 1 Yes. J. 1C4 : 3 Bro. C. C.88.
«5 Simpgon V. 0. .0 P. JR. Ji. Co., 1 Cham. Kep. 126.

7 I'rentimi v. Brennan, 2 Grant, 18.

RECEIVERS.

1786

propei*ty of the partnership ; trausfeired subsequently to the issuing
of the injunction and sequestration, but before the note became due
by the defendant in a foreign country, the affidavits as to the boTia
Jidea of such transfer being contradictory : the Court giving leave
to file a bill against such third persons.^

A Receiver may, with the sanction of the Judge, demise for terms
of years ; ^ but, under the present practice, leases of property in the
hands of a Receiver are usually directed to be made by the person
having the legal estate or power of leasing ; and, if necessary, re-
course is had to the provisions of the various statutes conferring
jurisdiction on the Court to sanction leases. The sanction of the
Judge to a lease, or agreement for a lease, of property comprised in
a receivership is obtained in the manner before explained in treat-
ing of the management of property.^

The Court will not permit a Receiver to lay out more than a
small sum at his own discretion. It is improper, therefore, for a
Receiver, or a guardian, to do, without the sanction of the Judge,
any act which may involve the estate in expense.* Upon this
ground, if an ejectment is brought against a Receiver, or an action
for anything done by him in the performance of his duty, he should
not defend the action without the sanction of the Judge previously
obtained; and where the Receiver, without the authority of the
Court, defended actions arising out of a distress made by him upon
a tenant of the estate, for rent, the Court refused to allow him his
costs of the action/' ,, . ,

So likewise, although a Receiver may lay out small sums of
money in customary repairs, or may allow the same to the tenant,
the Court is not in the habit of |jermitting Receivers to apply the
trust funds in repairs, to any considerable extent, without a pre-
vious application to the Judge." Formerly the Court acted strictly
upon this rule, and never permitted a Receiver to lay out money on

1 PrentinH v. Brennati; Re Bunker, 2 Grant, 322.

2 1 Ptatt on Leasee, 8(i9 ; W^oo^^faU, 51 ; see also Dancer v. UoHtiggn, 4 Biiig. 2 ; ifeale v. Bealiiig, 3

Swanst. 304, n.; Wpnne v. Lord Newborough, 1 Ves. J. 104 : 3 Bro. C. C. 88 ; Gibbinx v. Howell,
3 Madd. 499 ; BaulieH v. Baylies, 1 Col. 537.

3 Ante; and see Whitehead v. Bennett, 5 W. R. 419, V. C. K.

4 What is said, ante, as to inanageiuent of property by trustees will apply, in general, a» to receivers.

5 Swaby v. Dickon, 5 Siin. «29.

6 Attomfy-General v. Vi^jor, 11 Ves. 503 ; and see Blunt v. ClUherow, 6 Ves. 799 ; ThornhUl v.

Thornhill, 14 Sim. COU. As a ,q:enenil rule, the amount should not exceed 301. a year. Where the
amount proiwsed to be ex]iended by the receiver is small, the sanction of the Judge will bo given
on production of a letter from the receiver, stating the propriety of the intended exiienditure,
and the maximum amount to be laid out.

f-

1786

POWERS, DUTIES, AND LIABILITIES OF RECKIVEKS.

3c.

the estate without a previous order ; but now, where the Receiver
has laid out monej^, in repairs or otherwise, without such previous
order, he may be alio ./ed the money so laid out, if it is found to
have been beneficial to the estate ; ^ and where he has defended an
action successfully, he may be allowed his costs, although he had
not obtained the previous sanction of the Court.^

Where a Receiver had made an investment unauthorized by the
Court, by which a profit had been made, the amount realized was
directed to be added to the principal.^ Mowat, V.C, said that tho
investment was not one which strictly a Receiver should have made,
that the principal was risked, and any profit so made should be added
to tlie principal and treated as such.

When a Receiver is appointed to get in outstanding personal
property, it is his duty to collect all that he can get at : to enable
him to do which, the order, under which his appointment is made,
usually directs the parties to deliver up to him all securities in
their possession for such property, together with all books and
papers relating thereto.* If the parties in whose hands such
securities or papers are refused to deliver them up, the Receiver
should give notice of such refusal to the party conducting the
proceedings : to the intent that he may take the necessary steps for
enforcing the order. If the persons indebted to the estate refuse
to pay the amounts due from them, the sanction of the Judge
must be obtained to the Receiver putting the same in suit,** <'■ •

The power to bring suits on the permission of the Master being
obtained is sometimes omitted in the order under which a Receiver is
appointed. In such a case the. Master has no authority to grant
this leave, and the proper course is to apply in Chambers. Where
a Receiver appointed to manage an estate finds it necessary to sue
for debts due to it, an application for permission to do so must be
made, supported by affidavits showing the expediency of institut-

1 Tetnpent v. Ord, 2 Mer. 55 ; and see Morrin v. £lme, 1 Ves. J. 139 ; Blunt v. Clitherow, 6 Ves 719,

and Att(/meyGeneral V. Ffyor, 11 Ves. 583. _ , ,,, ,, .4 . .

2 Brutowe v. Meedham, 2 Phil. 190. ' ...i ..,; ,;; ., ■)■., ■.! ^ ' . *• >\, -'i, •■j.\ .«.i . >■

3 Baldwin v. Crawford, 2 Cham. Rep. 9. ....-•. : 1 ..\ " 3.iv • ■

4 See form of order, SHon, 1002, No. 1, ante. .1. ... ;'

6 See Seton, 1013, 1031 ; and Wood v. UUching$, 2 Beav. 289, 294 : 4 Jur. 858. , . .1 -, » •. . i.

»♦

RECEIVERS.

1787

ceiver
Bvions
nd to
led an
\e had

by the
)d was
lat the
3 madei
} added

personal
enable
3 made,
ities in
)ks and
is such
Leceiver
ug the
teps for
refuse
Judge

r being
jeiver is
grant
Where
to sue
bust be
istitut-

|6Ve« 7W,

,.i i '■

ing such proceeding.^ It is a rule of the Coui't, well established,
and one which is essential for the due protection of its officers, that
no action shall be allowed to be prosecuted against a Receiver, or
those in possession under him, without the leave of the Court.-

Where the order directs that the Receiver shall keep down the
interest of incumbrances, or make any other payments, he must,
of course, comply with that order; and the suns so paid by him
will be allowed him in his account. He must, however, take pro-
per receipts from the persons to whom he makes such payments ; '^
and it must be remembered that, in passing his accounts, the
Receiver will be subject to the rules to which all other accounting
parties are subject ;* and he will only be allowed to discharge
himself by affidavit as to those payments which are under forty
shillings : for all other payments, he must produce proper vouchers.

A Receiver will be responsible foi* any loss which may be occa-
sioned to the estate from his wilful default : therefore, if he places
money received by him in what he knew to be improper hands, the
Court will oblige him to pay it out of his own pocket.^ But if he
deposits the moneys with a banker for safe custody, he will not be
answerable for the failure of the banker if the moneys are not mixed
with his own moneys, and they were bona Jide deposited for safe
custody, under circumstances in which they could not properly have
been paid into Court^

A receiver, however, will be held answerable for the loss occa-
sioned by the failure of a banker with whom he deposited moneys
for security, if the deposits are made in such a way that he parts
with the absolute control over the fund. Therefore, in the case last
cited, where a Receiver paid the sums which he had received into
a banking-house to the joint-account of his sureties, under an
aiTangement with them that all drafts for the sum so paid in should
be written by one of the sureties and signed by himself, it was held
by Lord Brougham, and afterwards by the House of Lords upon

1 Thoinag v. Torrance, 1 Cham. Rep. 9.

2 Per Strong, V.O., in Coleman v. Olanville, 18 Grant, 43.

3 As to the receiver's liability to an incumbrancer, in casse he allows an improper party to receive

rents, see Gurden v. Badcock, 0 Beav. 157. 4 Ante.

5 Knight v Lord Plimouth, 3 Atk. 4»0 : 1 Dick. 120 ; but see 2 R. & M. 219 ; see also Bowth v. Uow-

ell, 3 Ves. 50b.

6 Saltcajf v. Salway, 4 Buss. 60 ; 8 R. & M. 216 ; S. C. nom. White t. Baugh, 9 Bit. N. S. 181 : 3 CI.

& F. 44.

1788

RECEIVERS' ACCOUNTS.

appeal, that the Receiver was liable to the loss occasioned by the
failure of the banking-house.^

I Ml

I <t I Ml •>•

:(

'i,i

Till

The case will be the same, if the Receiver deposits the money
with, or remits it to, a banker for his own credit and use, and not to
a separate account for the trust, and the banker afterwards fails ;''^ or
where, although he has deposited the amount to a separate account ,
he has been in default in passing his accounts.'*

A Receiver is not, in general, justified in making any application
himself to the Court. If, in the course of the proceedings, it should
become necessary to take the directions of the Judge, the Receiver
should apply to the party conducting the proceedings to make the
necessary application ; and in the event of his refusal, the Receiver
may himself apply.*

Applications, with reference to the property under the manage-
ment of a Receiver, are usually made by motion at Chambers ;^ but
where the application is made by a person not a party to the suit,
with reference to landed property, it has been made by petition.*

Receivers' Accounts. ■ . ,

A Receiver must leave his accounts at the Master's office, on the
days appointed for that purpose by the Master's warrant.

In the firet account the Receiver passes he should state, in the
colunm for obervations, how each tenant holds ; and eveiy alteration
should be noticed in the subsequent accounts : in this column should
also be entered any remarks the Receiver may think proper to make
as to the arrears of rent, the state of repaire, or otherwise.^ If the
account is drawn in an irregular manner, the Receiver may be
ordered to draw it up in proper form, and to pay the costs occa-
sioned by his irregularity.** ' ■ '

'.!• '■

1 Salway v. Salxexy, 2 R. & M. .'15 ; Affd. num. White \. Baugh, 9 BH. N. S. 18i : 3 D. & F. 44.

2 Wren V. Kirton, 11 Ves. 377.

3 Dreoer v. Maude»ley, 8 Jur. ri47, L. C. ; 7 Jur. 8, V. C. E. ; and see WUkhwon v. Bewiok, 4 Jur, N.

S. 1010, M. R.

4 Ireland v. Eade, 7 Beav. 65; I'arker v. Dunn, 8 Beav. 497.

5 See Seton, 1017. 6 Richards v. Richards, J«hi)8. 256. " j
7 Bloxam, 51.

^ See Bertie V. Lord Abitufton, S BeA\. .53,60. . •• ; ♦

i by the

le money
md not to
1 fails;''' or
e account ,

pplication
I, it should
) Receiver
make the
i Receiver

le manage-
ibers ;^ but
to the suit,
letition.*

Hee, on the

^ate, in the
alteration
imn should
ler to make
L; If the
^r may be
Icosts occa-

U. & F. 44.
^eioiek, 4 Jur. N.

RECEIVERS.

1789

Upon leaving the ace > iiib, a warrant to proceed thereon is taken
out by the Receiver's solicitor, and served upon such parties as are
entitled to attend the passing of the accounts. If the Receiver
neglects to take out this Nvarrant, any of the parties may do so.

Upon the return of the warrant, the parties attend at the
Master's office and the account is substantiated in the manner before
described.^

The Receiver also bri^^gs in his bill of costs upon passing the
account : which is then taxed, and the amount included in his
disbursements. Parties at ,;ending the passing of a Receiver's account
only have costs from the Receiver after a decree disposing of the
costs of the suit, and showing who is entitled to costs out of the
rents : in other cases, the costs of the parties are costs in the cause.
Where the parties are entitled to have their costs paid by the
Receiver, such costs are taxed by the Master, and paid by the

Receiver and included in his account.^ i •

It :..,■

If the Receiver does not attended and substantiate his account, he
may be charged with the amount of his receipts, but may be dis-
allowed such of his payment as he has failed to vouch.

When the accounts are passed and the costs revised, the Master
prepares his report, which is settled, signed, filed, and confirmed
as other re|)orts are.

Although a Receiver is only bound by his recognizance to i>aHs his
accounts at the periods appointed by the order, he may, at any time,
apply to the Court to pay in monies in his hands ; and if, i n the
interval between passing his accounts, he receives sums of such an
amount as to make it worth while to lay them out, hn ought to pay
them into Court : in order that they may be made productive for
the benefit of the estate.* Where the order for appointing a
Receiver does not provide for the payment of his balances into the
bank, the Receiver will not be allowed to avail himself of the
omission, and to keep a balance in his hands without interest, under

I Ante. 2 Bloxam, 52. i^: , , ' ,

3 For a scale of such costs, see Regul. 8 Ang. 1857, Sched. No. 15. • .'

i Shaw. Hhudei, 2 Rxiss. 539. . , '

2.

rtC,-,

1700

llECKIVKRH AOCOUNTS.

a pretence uf waiting for some party in tlie oauHc to ohtain an
order upon him for payment. He ought to pay it into Court ; and.
unlesH he does so, the C.'ourt will charge him with interest.* rfi ^-i-

'«it lilt I

A Receiver may be directed to pass his accounts an<1 pay over
the halance, although the bill has been dismissed,'' or the proceed-
ings ordered to be stayed.''

^. ,

If the Receiver does not leave his account, or pay in the balance
found due from him, at the appointed times, any party intt.'rested
in the account may apply that he may leave his account or pay in
the balance, within a limited time (usually four days), after service
upon him of the order to be made, and pay the costs of the appli-
cation.* The notiet* of motion must be served on the Receiver ; and
if he does not apixsar, the order will be made, on production of an
affidavit of service of the notice, or, where the default consists in
not making a i)ayment into Court, of the order and certificate under
which such payment is to be made ; and the Registrar's certificate
of such default must be produced in support of the application.
The order is drawn up by the Registrar j"^ and a coi)y of the order
must be served personally upon the Receiver ;" or if personal ser-
vice of the order cannot be etfected, an order giving leave to sub-
stitute service should be obtained at Chambers, or an ex jmrte
application by motion supported by affidavit;' and the order must
be served in conformity with the directions thereby given. If, after
such original or substituted service, the Receiver neglects to obey
the order, it may be enforced against him by attachment and other
process of contempt.'* A similar course should be pursued against
a Receiver who isjdirected to pay his balance to the parties, instead
of into Court, and neglects to do so ; but it is irregular to issue a
writ of fieri facias against him for such balance.^

1 See Po«» V. Z,«t<7A«on, 16 Yes. 273, 274. ' '«rJ.<J ■;..!

2 Pitt V. Bonmr, 5 Sim. 577 ; and see Hutton -. lieHon, 9 Jur. N. S. 1339, V. C S.

3 Paynter v. Carew, Kay, App. 86, 44. ; i t ■ > i ij ' •

4 For form of order, see Seton, 1018, No. 1. 5 Ante. 6 Ante.

7 As to substituted service, see ante.

8 See ante, Seton, 1020.

0 Whitehead r. Lyne», 34 Beav. 161 : 11 Jur. N. S. 74 ; Affd. on this point, 12 L. T. N. S. 332, L C.
Westbury. Since this case it lias been doubted, at the Record and Writ Clerks Office, whether
an attachment can be isMued against a receiver ; and whether the proper remedy against his person
is not by an order for his commitment, on notice, under the former practice : as to which, see 1
Turn. A Ven. 470 : and see Xaearty r. Oibion, Mos. 40 ; Daviesy. Cratra/t, 14 Vett. 143 ; Seott r.
Plattl, 2 Phill. 229.

KEi'EIVKRS,

1791

htain an
art; ami.

pay over
proceed-

e balance
intt-'vested
or pay in
er service
the appli-
iver ; and
bion of an
lonsists in
ate under
certificate
pplication.
the order
rsonal ser-
ve to sub-
go; jx^'^^^
der must
If, after
ts to obey
and other
d affainst
s, instead
to issue a

■I.; .■;..!

Wiiero a Receiver negloctH to leave or pass his account, and pay the
Vialanccs thereof at the times fixed by the order, or by the Master for
the purpose, the Master before whom such Receiver has to account will
from time to time, when his subsecjuent .*ecounts are ])roduced to
bo examined and passed, not only disallow the salary therein claimed
by such Receiver, but also charj^e him with interest, after the rate
(if ol. per cent. i)er annum, upon the balances so nej^lected to bo
paid by him, during the time ihv same shall api)ear to have
iemaine<l in his hands.^ , i i i ,, i|

The Receiver is charged with int'srost : not ujton (jach sum from
the amount at which it came into his hands, but in the same
manner that an executor is charged with interest; that is, by-
making yearly or half-yearly rests in the account.'- And it appears
that this rule will be api)lied, as well as in cases where the Receiver
has been dischai'ged, as where he is still in othce. Therefore, where
a Receiver, who had been discharged, liad not paid in his balance,
lie was ordered to i)a3' in the same, and also the amount allowed for
his salary, together with interest on both sums, at 5 per cent., from
the day appointed, and to pay the costs of the application ;^ but
where the default was made by the executors of a deceased
Receiver, the sureties were oidy ordered to pay interest at the rate
of U. percent.'* . , ,

A Receiver may be charged with interest on money improperly
kept in his hands, although he has passed LIj account, and all parties
have expressed themselves satisfied ; and for this purpose, an inquiry
what money he has received from time to time, and how long he

has kept it in his hands, may be directed ;'' and in v. Jolland,^

Lord Eldon appeared to think, that if such a case should be brought
before him, he should direct a Receiver to make good any loss
which might be occasioned from a difference in the price of the
funds, between the time when the Receiver's balances were paid in,
and the time when they ought to have been paid in. -- ; • - • \ •

S. 332, L c.

)fflce, whether

Inrt his person

which, see 1
I. 143 ; SeoH r.

1 Orel, of 1792, r. 16 ; Brutowe v. Xeedham, 9 Jur. N. 8. 1168 : 11 W. R. 920, V. C. K. ; aiul see

Fletcher v. Dodd, 1 Ves. J. 85 ; »'«rrf v. Swi/t, 8 Hare, 139

2 Potts V. Leightmi, \!i Ves. 273; see also Fletcher v. Dodd, 1 Ves. J. 86; ——' v. JoUaitd, 8 Ves. 72.
'A Uarrimon v. Boydell, 0 Sim. 211.

4 Clemently. Beres/ord, 10 Jur. 771, V. C. K. B. ; and 8ee Dawnon v. hajfnefi, 2 Russ. 406.

.") Fletcher v. Dodd, 1 Ves. J. 85. j...

a 8 Ves. 72, 73. The name of this ca.se is Frotherttoiie v. Jutland.

1792

RECEIVERS ACCOUNTS.

In Hicks V. Hicks} where a Receiver had been a})pointed during
the minority of an infant who had no guardian, and was directed to
place out the surplus of the rents and profits, when they should
amount to a competent sum, with the approbation of the Master, on
governmont or other secureties, but admitted so to do, Lord Hard-
wicke directed that he should pa}'^ interest at the rate of four per
cent, on the surplus rents and profits, from the date of the decree
till the infant came of age : although tiie infant, two days after he
came of age, settled accounts with the Receiver, who delivered up
his vouchers, and gave him copies of all the accounts j)assed by the
Master.

In case of <lefault by any Receiver in leaving or passing any
account, or in making any payment, he may be required to attend
at Chambers, at a time to be ap})ointed for that purpose, to show
cause why such account has not been left or passed, or payment
made ; and thereupon such directions may be given at Chambers,
or by adjournment in open Court, as shall be proper to ensure the
prosecution thereOi." by some person interested therein, and for the
discharge of the Receiver and appointment of another, and for
payment of the costs incurred by any neglect or default ; or a
certificate by the Registrar of such neglect or default, or of any
abandonment or abatement of the proceedings or otherwise, accord-
ing to the facts, may be made and filed, without any fee being
payable thereon ; and after such certificate has been so made,
unless the same is discharged, none of the parties are to be at
liberty to further prosecute the proceeding at Chambers, unless and
until the Court or Judge shall, upon ap] dication, make an order
directing the same to be prosecuted ; and upon such certificate be-
coming binding, any party may apply to the Court, and the Court
may make such order relative to costs, and to relieve any party
from the effect of any decree or order before made, or proceeding
taken, vhich shall not have been duly prosecuted, or otherwise, as
may be thought proper.-

The Court has no jmisdiction, on the death of a Receiver, to
order, in a summary way, that his executors shall bring in and
pass his accounts, and pay the balance found due from him out of

1 3 Atk. 274.

2 Ord. of 182S ; see also anW.

}d during
irected to
By should
daster, on
)rd Havd-
f four per
the decree
rs after he
livered up
4ed by the

issing any
to attend
e, to show
r payment
ChamberH,
ensure the
md for the
er, and for
[fault; or a
or of any
rise, accord-
fee being
so made,
e to be at
unless and
e an order
•titicate be-
the Court
any party
proceeding
;herwise, as

leceiver, to

ling in and

him out of

RECEIVERS.

1793

his assets.^ The proper course, in such a case, if the recognizance
cannot be put in suit, is to file a bill against his personal represen-
tatives for an account. This course may, however, be avoided, if
the representatives will obtain or consent to an order to pass hia
accounts, and to pay the balance. Such order may be obtained at
Chambers, on motion : 2 and where, on the executors' ai)plication,
liberty had been given them to pass the accounts, and pay in the
balance, they were not allowed, after the lapse of many years, to
object to the order on the ground of want of assets.^

Where the Receiver's recognizance is to be put in suit, an order
must first be obtained to authorize the proceeding. This order is
usually obtained on motion : which must be served on the Receiver,
and on the sureties also if they are to be proceeded against.* The
amount due from the Receiver must also have been ascertained,
unless the application is for leave to put the recognizance in suit
against the Receiver's representatives, or his sureties, or, as it seems
the Receiver has absconded.'^

m

An order for leave to |»ut the recognizance in suit having been
obtained, the next step is to proceed by scire facias in the names
of the Master, oi" other cognisee named in the recognizance, or the
survivor of them, or his executors or administrators,** against the
cognisors therein named, or any of them, or their respective heiis
executors, or administrators."

A scire facias is a judicial writ, founded upon some record, and
requiring the ^^erson against whom it is brought to show cause why
the party bringing it should not have advantage of such record : it
is considered in law as an action ; and should be used out of the
Court in which the record is supposed to remain.^

In WalJcer v. Wild,^ where a Receiver absconded, and his recog-
nizance had been estreated, and an action brought against the

1 Jenkinx v. Briant, 7 Sim. 171 ; Ludgater v. Channell, In Sim. 479 : 11 .Jur. 273 ; 3 McN. & 0. 17r>.
•i For form of order, see Seton, 1022. 3 Guniim v. Badcock, 6 Beav. 167, 159.

4 For form of order, see Sefnn, 1018, No. 3.

5 Ludgater \. Channell, 15 Sim. 479, 483 : 11 Jur. 273: 3 McN. * G. 175, 180.

6 As to the course where the coguisees are dead, see ,'^etoii, 1019. For form of order to put recogni-

zance in suit, in the names of tlie executors of a deceased >Iaster of the Rolls, upon the petition-
er's recognizance to indemnify his estate, see Blair v. Toppitt, cited Seton, 1010.

7 At t'onnnon Law, though a recognizance is against two, a writ if xcire /acia»ma,y be issued against

one, because the recogrizance is joint and several : Chitti/'s Arch. 1132.

8 Ibid. 1130. 1131. 9 1 Madd. 528

¥:

1794

RECEIVERS ACCOUNTS.

sureties, one of them obtained an order for a reference to see what
was due from the Receiver, and for payment by the applicant of the
amount (not exceeding the penalty,) by instalments into Court, and
for a stay of proceedings in the mean time : the applicant paying
the cost of t/ic motion, and of tlie subsequent proceedings in conse-
quence of it.

In any proceeding at Law upon the recognizance, the penalty of
the recognizance is the debt for which execution will bo issued. ^
The Receiver, therefore, or his sureties, if the}^ wish to avoid the
consequences of the forfeiture of the recognizance, must apply to the
Court to stay the proceedings ujjon payment of the amount actually
due.'"^ It seems, from the judgment of Lord Eldon, in D<(tvson v.
Raynes,^ that the sureties will not be relieved from the effect of the
recognizance, unless they pay in all that the Receiver himself could
have been recjuired to pay. In that case, the Vice-Chancellor was of
opinion that the sureties were not liable to pay the interest on the
Receiver's balance : which the Receiver had been ordered to pay ;
but Loud Eldon, upon appeal, held the'general rule to be that, where
the ]n*incipal debtor is obliged to pay interest, there can be no
equity that the surety should not pay the interest, in default of the
principal. Under the peculiar circumstances of the case, however :
the Receiver having been bankrupt, with the knowledge of all
parties, for a considerable length of time, during which no 8tei)s
were taken to compel the passing of his accounts : his Lordship
affirmed the Vice-Chancellor's order.

Where a bill of exchange given by a Receiver to a creditor, v/ho
had supplied goods for the estate, was dishonoured, the creditor was
ordered to be paid out of a fund ai)plicable to pay the balance due
to the Receiver.*

i-;. • v^ Discharge of (I Receiver.

When a Receiver has been appointed, and has given security, he
cannot be discharged upon his own application, without showing
some reasonable cause why he should put the parties to the expense
of a change. Where a Receiver applied to be discharged on the

1 See tlie certificate of the Court of K. B., in Dawnuii v. Rai/net), 2 R'i8s. 408. ■' • " ' " '
■> See Walker v. Wild, 1 Madd. 528. ' :

:i 2 limn. 466, 471. 4 Tempent v. Ord, 1 Madd. 89. •

RECEIVERS.

1795

ee what
,nt of the
ourt, and
t paying
in conse-

»enalty of
> issued.^
avoid the
ply to the
it actually
Oicivson V.
feet of the
aself could
dlor was of
est on the
ed to pay ;
bhat, where
can be no
fault of the

however :
edge of all

-I no steps
Lordship

jditor, v,ho
L-editor was
lalance due

ecurity, he
it showing-
he expense
ed on the

ground of ill-health, he was not only ordered to be discharged and
his recognizance vacated, on passing his accounts, but he was
allowed, although this part of the application was opposed, to retain
his costs " of the application, and incidental thereto," out of the
balance in his hands.^

A Receiver is generally continued till the decree ; but if the right
of the })laintifl' ceases before that time, the Receiver may be dis-
charged, and cannot be contiimed at the instance of a defendant.
Upon this ground, Lord Eldon determined, in DavU v. Duhe of
Marlborough, that where the plaintiff had been satisfied by the
payment of his demand, the order for the Receiver must be dis-
charged : although the discharge was opposed by two creditors
having prior annuities to the plaintiff's. Hi^ Lordship observed ;
" I apprehend that with the right of the plaintiff to have the
Receive!-, must fall the rights of other parties. It would be most
extraordinary, if, because a Receiver has been appointed on behalf
of the plaintiff, any defendant is entitled to have a Receiver
appointed on his behalf." -

A Receiver, being a]>pointed for the benefit of all parties, will
not be discharged on the ex parte application of the party at whose
instance he was appointed f nor, where appointed on behalf of
infant tenants in common, will he be discharged as to the share of
one of them who has attained twenty-one.*

If, during the course of the proceedings, the continuance of a
Receiver becomes unnecessary, he will be discharged. Thus, upon
new tnistees being appointed in a suit, a Receiver was, on the
appUcation of the plaintiff, which was opposed by some of the
defendants, who were beneficially interested in the property as
legatees, ordered to be discharged, upon the new trustees under-
taking, without entering into recognizances to account half-yearly,
in the same way as the Receiver.''

Where the Receiver becomes bankrupt, he will be discharged, and
a new Receiver appointed. '

1 Rkhardmn v. Ward, «! Madd. 26«.

2 Swan-t. 107, 168 ; but see ib. 118 ; Lanjan v. Bowen, 1 Sell. & Lef. 296.

3 Ibid. ; Davis v. Duke of Marlboroitgh, 1 Swanst 108, 118 ; Baiiibrigge v. Blair, a Beav. 421, 428.

4 Smith V. Liittter, 4 Beav. 227, 2i». "i Bainbrigqe v Blair, 3 Bear. 421, 42J5.

89

%.

1796

RECEIVERS ACCOUNTS.

The appointment of a Receiver, made previous to a decree,
will be .superseded by it, unless the Receiver is expressly con-

tinued.^

i ;!,(■.'.'( 't!

■ Ml.

Q

1=

■o

I

The application to discharge a Receiver may be made by petition,
or motion.^ .

The petition, or notice of the motion, should be served on all
the parties; but the Receiver, thouorh served, is not entitled to
appear at the hearing of the application. •* The direction for the
discharge of the Receiver may also be given in the decree at the
hearing, or upon further consideration.^ '

If the Receiver has not passed his linal account, and paid over
the balance found due from him, the order directs him so to do ;
and if he has given a recognisance, it directs the recognisance
to be vacated on his passing his final account, and paying the
balance found due from him, if that has not already been done.''

Where a recognisance is directed to be vacated, the order must
be taken, together with an office copy of the Master's report, and
the Registrar's certificate of payment of the balance into Court, or
an office copy of an affidavit of payment of the balance of the per-
son entitled to it, where the order directs such payment,^ to a
Judge, who, if the evidence of payment is satisfactory, makes a
note of it, and marks the order with his initials. The order nmst
then be taken to the Office where the recognisance is filed ; and
the recognisance will be marked as vacated. If the recognisance is
not duly vacated, and a material error is afterwards discovered in
the Receiver's account, the money may be recovered.^

Where a Receiver is entitled to his discharge, he is also entitled
to the costs of it.**

A Receiver had been appointed to collect tlie gross amount of the
tolls, rents, issues, and profits of the O. & P. R. Co. After-

i - ! ■ . ! . 1 , : 1 , I ■

1 See form of order, Setun, 1W3, No. 6.

2 By consent of all parties, an application to vacate a Receiver's recotniinance may be made by petition

of course.

3 Herman v. J>iinbai\ 2;i Beav. 212. 4 Seton, 1023. ,j , , , , r .,- , v ■ .■
.5 For form of order, wee Seti.ii, 1021.

e Seton, 1023.

S Rfchardgun v. Ward, 6 Madd. 2(16.

7 1 Turn. .V Yen. 471.

RECEIVERS.

1797

, decree,
aly oon-

• Ml.

petition,

ed on all
ititled to
n for the
•ee at the

"I

paid o^er
so to do ;
cognisance
paying the
en done."^

order must
report, and
to Court, or
of the per-
lent,® to a
, makes a
rder must
filed; and
Wnisance is
Iscovered in

ilso entitled

iount of the
)o. After-

i it'

I made by petition

wards the rolling stock of the company had been seized by a sheriff
xmderfi. fa. at the suit of another company not a party to the suit,
the sheriff declined to sell the same unless authorized by the
Receiver, who believing under the advice of counsel, that he liad
no control over the stock assented to the sale by the sheiiff, and
the same was accordingly sold. Held, on motion to remove the
Receiver for misconduct that he had committed a breach of duty
in not informing the Court of the seizure and thi-eatenend sale, and
in assenting tc» the sale witliout its sanction, but as it appeared that
the Receiver liad acted bona fide, and to the best of his judgment
tor the benefit of all parties, the Coui-t declined to remove him from
his office, but ordered him to pay the costs of the application.^

A Receiver, being appointed f(3r the benefit of all parties to a
cause, he should, on moving to vacate his recognizance give notice
to all parties."

\.ab'dUies and Riyhts of Sivrefieii. :•

The sureties of a Receiver cannot be discharged at their own re-
(|uest. Where, therefore, an application was made to discharge a
Receiver on the ground of misconduct, and the sureties joined in
the application, Lord Hardwicke held, that no regard was to be
paid to their application, unless it was for the benefit of the parties
ill the cause, or something of that kind : " for, if people voluntarily
make themselves bail or sureties for another, they know the terms,
and will be held verj'^ hard to their recognisance, and not discharged
at their request to have new sureties appointed : for then there
would be no end of it.'^

But although the general rule is not to discharge the surety of a Re-
ceiver on his own application, during the continuance of the receiver-
ship, such rule will yield to circumstances : " as where underhand
practice is proved, an<l the person secured shown to be connected
with such practice " ;* and where a surety does procure his dis-
charge, during the continuance of the receivership, the Receivei-
must enter into a fresh recognisance, with new sui'eties.'' . ,,„ ,,.

1 SiinpHon V. 0. «l- /'. R. Co., I Cham. R. 337. '' ' ' .

i Broim v. I'frry, 1 Cham. R. 253. . .

:i (iriffith V. OriMth, 'i. Ves. S. 400. j' > ■ .

4 Hamilton v. Brewnter, 2 Moll. 407 ; GililUh v. Grifith, 2 Ves. S. 400. . '. ,,

,1 See Vaurjhan v. Vaughait, 1 Dick. !)J ; ninis v. Hi'ttn, ib. 'VM.

$.

*'

1798

LIAHTLITIKS AND RIGHTS OF SURETIES.

Where a surety becomes "bankrupt, tlio Receiver is usually re-
quired to enter into a new recognisance, with two or more solvent
sureties : the order is made on motion.

In Shuff V. Holdaway} an order was made, on the application
of tlie surety, directing tlie Receiver's accounts to that time to be
passed, and that on payment by the Receiver, or by the applicant,
of the certified balance (not exceeding the penalty,) into Court, the
applicant should be discharged as surety, and be at libeity to apply
to have the recognisance vacated as to him ; and that the applicant
should be at liberty to attend the taking of the account ; but he
was ordered to pay the costs of the application.

The surety's liability extends to all that the Receiver would have
been required to pay, including the costs of appointing a new Re-
ceiver.- This point came before Lord Eldon, upon the question
whether the sureties of a Receiver were liable to pay interest upon
the balance in a Receiver's hand, when he became bankrupt, and
his Lordship said : " It seems to me that it wouhl be difficult to say
that, where the pjincipal debtor would be obliged to pay interest,
there would not be an equity that the surety should pa}'^ the interest
in default of the principal. The penalty is forfeited by the breach
of the condition ; the amount of the penalty is the debt due from
the sureties at Law. How can they have a right to be discharged,
in this Court, from their legal liability till they have paid all that
the principal could have been required to pay ? "•*

This rule, however, is capable of relaxation where the circum-
stances of the case will warrant it : accordingly, as the Receiver, in
the case referred to, had been bankrupt with the knowledge of all
parties for a considerable time, and no steps had been taken to compel
the passing his accounts. Lord Eldon refused to make the sureties
pay interest.*

It seems that, where a Receiver has become bankrupt, and the
sureties are likely to be called upon to pay the balance due from
him, liberty will be given to them to attend the passing of the Re-
ceiver's account ;" and so, where the Receiver had died in insolvent

1 V. C. W., in Chaui))ei!t, for M. R.. 3 Sept., IS.";;, Reg. Lib. B. 1747.

2 Maunsell v. Egan, 3 J. & Lat. 2.51. 3 Dawson v. liaynet, 2 Russ. MO, 471.
4^Jbi(f. 5 Ibid. 467.

ill.;.',

RECEIVERS.

1799

sually re-
-e solvent

ipplication
ime to Ije
applicant,
Court, the
jy to apply
3 applicant
it; but ht-

vould have
a new Re-
le question
terest upon
ikiupt, and
icult to say
ay interest,
the interest

the breach
at due from

discharged,
laid all that

the circum-
Leceiver, in
Ige of all
m to compel

Ithe sureties

Ipt, and the
\e due from
of the Ri-
(in insolvent

circumstances, and his personal representative had conseiited to his
final account being taken in the suit in which he was appointed,
lihertv was given him to attend,'

Where an action is brought against a Receiver's surety upon the
recognisance, the proper course for him to pursue appears to be, to
apply to the Court, by motion, with notice to the parties interested
in the suit, to stay the proceedings on the recognisance : otFcring, at
the same time, to pay the amount due from the Receiver, but not
exceeding the penalty of the recognisance, into Court. The surety
must, in addition, pay the costs of the application, and of the pro-
ceedings consetpient upon it.^ If the Receiver's account has not
been taken, the application should also pray an inquiry what is due
from the Receiver. It seems that, upon an application of this kind,
the Court may indulge the surety by allowing him to pay the
balance in by instalments.-'

When a surety is called upon to pay anything on account of the
Receiver, he will be entitled to stand in the place of the Receiver for
anything which may be coming to him in the suit. Thei'efore,
wliere the Receiver had borrowed money from his surety, to enable
liiui to make necessary payments, Lord Eldon decided that the surety
was entitled to be repaid the amount lent, out of the balance in Court
reported due to the Receiver.* Upon the same principle, the share
of the Receiver in property which was being administered by the
Court, was held liable to make good to the surety the amount paid
by him for the Receiver : although it was excepted from a mortgage
wliich tlie Receiver had given the sui'ety as an indemnity.'''

Mnm<(gers and Consignees. '• ' ' '■

Where a Receiver is required for the purpose, not only of receiving
rents and profits, or of getting in outstanding ])ropei'ty, but of carry-
ing on or superintending a trade or business, he is usually denomi-
nated " Manager," or " a Receiver and Manager."

1 Shiinmn^ v. Hour, M. U. in Chaniboi-s, 20 Nov. ISGO.

i Walker v. Wild, 1 Madd. 528 ; and sue Maun v. Stcimrtt, 8 Beav. 18!). where it was Iii'M, that iiay-

ineiit by tlie surety to tlie .solicitor coiHliiotin<;- the |)roceedini'..s w;ui iiisutticieiit
^ Walker \. WiM, 1 Matld. r.'iS.
4 (rUi-vuvp V. IlariitiOH, H V. & H. VAU : G. Coop. 01.
:< hiovdon V. limmhiv, W De O. ,t J. .i'24 : 5 Jur. N. S. 'JtC - •' ■

1800

MANAOERS AND CONSKJXKES.

p- . Qc.

Iff ■■

The most usual cases in which managers are appointed are those
in which partnership trades are to be carried on, or which relate to
mines or collieries. The ground upon which the Court usually acts
in making appointments in such cases, liave been already pointed
out.»

A Manager will not be appointed in mining concerns at the in-
stance of a plaintiff" not having the legal interest, who, after stand inn-
by and suffering the defendant to incur great expense and risk,conios
forward, upcm the concern turning out profitable, and claims an
interest,'-^

Where the suit relates to property abroad, which partakes of the
nature of a trade, it is also usual to appoint managers ; and if the
manager nmst necessarily be resident there, it is usual to add to the
order, directing the appointment of a manager, an order for tlu;
appointment of one or more consignee or consignees resident in this
country, to whom the produce of the property in question may he
remitted, and by whcnn it may be disposed of^

The course of proceeding, under an order for the appointment of a
manager and consignee, is the same as that under an order for tlie
appointment of a Receiver ;^ and the General Orders of the Court
which apply to receivers, apply to managers and consignees also.

In some cases, a manager has been appointed of a West India
estate, without giving any security whatever; ^ but in Rutherford v,
Wilkinson,^ Lord Gifford, M. li., stated that it had only been done
under special circumstances ; and that in general, to warrant such
a course, it should appear, by the rej)ort, that no manager could
be found who would give security, or that the proposed person was
fit to be appointed without security. Under the circumstances of
that case, however, his Lordship made the order for the appoint-
ment to be without security, with the consent of such of the parties
as were capable of consenting; but on a subsequent application in
the same cause, security was required^

1 Ante, and see'JefferyH v. Smith, 1 .1. & W. 298, 302.

2 Norway v. Rowe, 19 Ves. 144, 159 ; and see Rowe v. Wood, ii. k. W. 66a.

3 See Seioii, 1035, et seq. Ah to the appointment of receivers and nianaKers of property abroad, «•

ante ; see alNO Morrig v. Elme, 1 Vcs. J. 139 ; Morison v. 3i"r%*on, 7 De O. M. k O. 214 ;
I Jur. X. S. 1100 ; 2 Sm. & G. 564 : 1 Jur. N. 8. 339 ; Re Tharp, 2 Km. A O. 67«, n.

4 Ante. 5 Seton, 1038. 6 Sefon, 1036, 1038. 7 Jbid.

RECEIVERS.

1801

aro those
1 relate to
Lially actH
y pointed

it the in-
r standiii;;'
•isk,conios
claims an

kes of the
and if the
add to the
er for the
ent in this
)n may he

ii" ■■.-''J
itment of a
ler for the
the Court
iffnees also.

'est Indiii
iherford v,
been done
Irrant such
[ager could
)er8on was
istances of
[e appoint-
tlie parties
)lication in

The Court, in dealing with property in a colony, has provided
against the inconvenience likely to arise from the death, absence,
or incapacity of the manager in existence, or appointed by the
Court, by appointing another manager to act in such event.'

Consignees appointed by the Court, in an administration suit,
have a charge on the property, for payments sanctioned by the
Court, in priority to incumbrances created before the suit; and
will be allowed interest on the balance due to tliem.-

A receiver and manager of a West India estate, who has been
appointed at the instance of a mortgagee, is not entitled to the
produce of the estate which has been shipped to the mortgagor's
consignees prior to his appointment : although there had been no
conversion prior to that time.-*

A manager of a West India estate is entitled to a commission
on the produce sold or remitted, so long as he is resident in the
island and personally acting; if he is absent, he is not entitled to
the commission himself, but he may be allowed such sums as he
has paid to others for the management of the estate during his
absence, provided the payments are reasonable.*

1 Rutherford v. yyUkinmm, Set<jii, 1036.

2 Morri»im v. Morrison, 7 De G. M. & O. 214 ; 1 Jur. N. S. UOO ; •> Urn. & O. .'k(4 ; 1 Jur. N. S. 3:<9.

3 Codrington v. Johnxtone, 1 Beav. 520, 524.

4 Fmrrett v. Klineg 2 Mer. 63 ; Seton, 1037 : ami we Chamheri v. Uoldwin, citetl 2 Mer. till.

.' f I > >

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pert}- abroad, «;•
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II.
1 7 IbH.

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( 1802

•I J I.

•• ■' '.I..' .'

(IHAPTEU XL J.

MAI.K OK infant's KSTATKH, UNDER 1*2 VirfOlUA, CHATTER 72.

This statute, with 18 find 14 Vic, ch. 50, sec. S, gave to the
Court a power by which it is enabled to administer the estates of
infants with si)eed and economy. The Act is embodied in the (Jon.
Statutes of U. C, ch. 12, sections 50 to 57 inchisive, and in the
proceedings it was necessary, under Order 37 of the Orders of June,
1853, to entitle the petition, both in the matter of the Infant '' and
in the matter of the 12 Y'lctoria, chapter 1'2."' Order 527 directs that
"A petition for the sale or other disposition of the real' estate of an
infant is to be entitled in the matter of the infant."

Order 528 provides that ''The petition is to be presented in the
name of the infant, by his guardian, or by a person applying hy
the same petition to l)e appointed guardian as hereinafter pro-
vided;" and Order 529, that "Tlie petition is to state the nature
and amount of the personal property to which the infant is entitled
—the necessity of resorting to the real estate — its nature, value and
the annual profits thereof. It must also state circumstances suliH-
cient to justify the sale or other disposition of the estate, and the
application of the proceeds in the manner proposed. The prayer
must state specitically the relief that is desired ; it must designate
the lands to be disposed of, and must propose a scheme for that
purpose, and for the appropriation of the proceeds. If an allow-
ance for the maintenance is desired, it must be so prayed, and a
case must bo stated to justify such an order, and to regulate the
amount." The Court will not direct a sale of the real estate of an
infant merely because the ancestor was indebted; it must be shewn
that the estate will sustain loss, or that the creditors are about to
enforce payment of their demands by suit.^

1 Re Boddy, 4 Grant, 144.

SALE OK INFANTS ESTATKS.

1803

: 1 "ij

X. tv,.i,

72.

3 to the
states of
the Con.
id in the
of June,
nt ' ' and
octs that
iitu of an

?d in the
lying b)-
'ter pro-
le nature

entitled
alue and
ces Hulli-

and the
le prayer
Icsignate

for that
m allow-

d, and a

late the
ate of an

e shewn

about to

[u applying for the sale of real entate settled upon infants, the
mother, by whom the application was made, was required to join
in the conveyance for tlie purpose of surrendering the life interest
vested in her under the stittlement.^

In directing the sale of infants' real estate, the (Jourt is not
governed by the consideration of what is most for their present
comfort, but what is for their ultimate benefit. The Court will
order a sale of a portion of an infant's estate to save the rest when
it is made to appear for the benefit of the infant.-

When^ prt)perty was devised by a testator to his widow for the
maintenance and raising of his family, until the coming of age of
the youngest child, and then to i\. one of his sons, charged with
certain payments, at intervals, to the v*idow and other children,
with a provision for tlie substitution of another son in the event of
R. dying under age or without issue : Held, Ist. That the Court
had no jurisdiction to order a sale or mortgage of such property ;
tlie Court having no power under 12 Vic, ch. 72, to dispose of the
veal estate of infants against the provisions of any last will, by
which such estate was devised to such infants. 2nd. That such
property was not the real estate of '';ho infants within the meaning
of the Act.-'

All applications under 12 Vic, ch. 72, for the sale of infants'
estate must come on before the same judge.'* This Court will not
allow to a relative of an infant, money expendtnl l)y such relative
ill past maintenance of the infant, out of tlie proceeds of land of the
infant sold in lieu of a partiticm under (on. Stat. II. C, ch. 8<>.''

Order 530 provides that •"The petition may pray for the ap[» )uit-
'iieiit of a guardian, as well as for the disposal of the infant's
estate. In that case, a proper case must lie made by the petition,
and established by the evidence for the appointment of the p(;rson
proposed;" and Order .531, that, "Upon all petitions for the sale
of an infant's estati;, the infant is to be produced before a Judge in
Chambers, or before a Master." Order 582 provides that. *' Where

1 III' K'-uitnli/, 1 (Jhiiiii. Hep. !)".
••i lie CuUicott, 1 (;haiii. Uiip. 1S2.
i") Kellar v. 7'«c7«', 1 Chain. Rep. 388.

2 «(■ McDoanld, 1 Cham. Rep. 07.
4 Hf Jlanscll, 1 ebain. Rep. 388.

1804

SALK OF INFANTS ESTATES.

the infant \h above the age of fleven years he in to be examined,
apart, by the Judge or Master, upon the matter of the petition, and
aH to liiH eonBent thereto, as re([uired by the Statute ; and his
examination \h to be ntated to iiave boon taiven under this order,
and is to be annexed to and filed with the petition. Wliere tli •
infant is under the aj^e of seven years, tlie fact is to be certified l»y
the Judj^e or Master before wliom he is produced;" and Order 55iJ3.
tluit ** The witnesses to verify tlie petition are also to be produced
before the Judge or Master, and are to ])e examined riva voce to
the matter of the petition, and the depositions so taken are to Ix'
stated to iuive bc^en taken under this order." Order 534, that.
■' The Masters of tiie Court are authorized to examine infants and
witnesses under the preceding order, without special order or
reference." Order 535, that, '" Upon a petition so veriiied, the
Court may either grant the relief prayed at once, or make such
order as to further evidence, or otherwise, as tlie circumstances of
the case require."

The practice under the Statute is rendered very simple by these
orders. The petition being i)repared in accordance with the order,
an appointment is obtained from the Master verbally (for there is
no one to be served), for the examination of the infants and wit-
nesses. At the time appointed, the Master proceeds to take the
evidence of the witnesses produced to verify the statements made in
the petition. In the case of witnesses, the Master states in a brief
certificate in the depositions inserted immediately after the style
of the petition, that they are taken under Order 533 of the Consoli-
dated General Orders of June 1868. The practitioner should by
these witnesses verify every statement of the petition. The Master
also examines the infant, and. this must be done apart from other
persons. The object of this provision is to free the infant from all
influence — the presence even, of a parent, guardian, or other per-
son who might sway his statement, and the Master should explain to
him fully the object of the proceeding, and its probable effect on
his interests. He should also ascertain that he gives his consent
freely to the proposed sale, and that he has not been tutored into
a consent. Where, however, the infant is under seven years of
age, it is presumed that it is useless to examine one of such tender
years, and the Master merely certifies to the fact of the age, and

HALE OP INFANTS EHTATKS.

180.-,

does not txamino him. The examination of the infant is not taktii
under oath, but the Master certities that it is taken under Order
582 of tlie Con. Gen. Orders. The examination and dopowitions
are then annexed to tlie petition, and given to tlie soHcitor, who
moves on them in Chambers ex parte. If an order is obtaint^d it
is sometimes referred to a Master to conduct tlie sale, and if there
be any special enquiries, tlie order is worked in his office in the
usual way. Whether or not the report requires confirmation, will
depend on the nature of the enquiries.* It is, however, the practice
now, where the estate of infants is of small value, in order to save
the expenses of a sale by auction, to direct an advertisement to he
inserted in a newspaper, asking tenders addressed to the Kej^istrar
to be made for the property.'*

1 See ante, aiut lie Yaggie, 1 Cham. Rep. 1H8.

2 Re /lamell, 1 Chani. Kup. 18tf.

I ' -■

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CHAPTER XLII.

■«'-.»• ■ .' : , . ) i 1
1 '. ■..,

) .

APPOINTMENT OF NEW TRUSTEES.

/

I 'M't

When it is referred to the Master to appoint a new trustee in
the room of a trustee who is dead, or dechning to act, the course to
be pursued is for the party obtaining the reference to leave in the
Master's office a fop}^ of the order on which a warrant is issued,

underwritten, " To appoint A. B., of , yeoman, trustee mider

the order made in this cause, dated " This is served on all

the parties interested, and on its return, vivd voce evidence is given
of the nature of the property to be entrusted to the j^roposed trustee,
and of his fitness for the office. Any party interested may oppose
the appointment, and show, of course by proper evidence before the
Master, that the person nominated is not such a person as should
receive the ajipointment, or counter proposals may be made, as in
the case of a receiver.

If a counter proposal be made, tlie practice will be precisely the
same as has been described when a receiver is to be appointed —
with this difference, that, unless specially ordered by the decree,
no sureties for a trustee are required.

At the time the warrant is taken out, the party prosecuting the
reference should lile an agreement by the proposed trustee to accept
the appointment in case he be approved of by tlie Master. It is im-
portant that this be done, as it has sometimes happened that after
thu expense of a reference had been incurred, the person proposed
declined to act. After hearing the evidence, the Master decides as
to the propriety of the appointment, and if he thinks it i)roper, he
certifies to that effect. It usually happens that the directions for
tlie appointment of a new trustee is part of a decree containing
other directions or enquiries ; the Master may, in such a case, crv-

'-:> ../i 1
1 '' ,' t,.
,■ ', / ■•■ "

«

rustee in
course to
,ve in the
is issued,
itec under
ved on all
e is given
jd trustee,
ly oppose
before the
as should
tide, as in

cisely the
:)ointed —
le decree,

uting the
to accept
It is im-
that after
proposed
ecides as
n-oper, he
ctions for
ontaining
case, crv-

APPOINTMENT OF NEW TRUSTEES.

1807

tify the appointment in the general report — but he may, if it be
desired, certify seperately, and this certificate is considered as a
report.

This report is filed, and may be appealed from in the same man-
ner as other reports of a similar nature, but, upon the appeal, the
Coujft will not enter into the comparative merits of the several per-
sons who have been proposed by the different parties.^ It frequently
happens that the order dii'ecting the appointment of new trustees,
directs a conveyance of the trust estates to such new trustees, to be"
executed, and orders the Master to settle such conveyance. When
this is the case, after the Master has made his report of the appoint-
ment of the new trustees, the proper conveyances for vesting the
estate in such new trustees are prepared, and brought into the
Masf'^r's Office, and proceeded upon, in the same manner as other
deeds.

It may be mentioned, with reference to this subject, that in
the conveyance to new trustees, the Com't will not insert a clause
to enable the new trustees to appoint others in their stead, unless
there is a provision to that effect in the original instrument by
which the trust is created,^ and that when the original deed does
contain such a clause, the Court will not, on the application of the
trustees themselves, appoint new trustees, without a reference to
the Master -^ the rule of the Court being, that when persons are
authorized to choose, if they will not exercise the power without
coming to the Court, there must be a reference.* ^

\ Attorney-General \. DijK'm, 'la. k a. '^-la.

t Baviey v. Mannell, 4 Macld. 226.

3 — '■ — V. RobartH, 1 .J. & W. 261. 4 Ih.; ciiU- Wehb v. Lord Sha/texbuij/, 7 Ves. 4tt)/

■)'; •■

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( 1808 ) .>!•'

! -V ;■ 1 - f ? ■ ^ • . .

(, - ■ < V I ^; : til I'M « ■ ''(Hi-, '..•'•/MiJ.

CHAPTER XLIII.

PAYMENT OF MONEY, AND TRANSFER OF STOCK INTO COURT.

..,.

Mfw ' (,'jii ;

When directed.

■I

. fie
Q

(*j d

I

i

¥ : , *.

One of tlie most ordinary methods by which the Court enforces
its jurisdiction of preserving property in dispute pending litigation,
is, by ordering it to be brought in and deposited in Court.

Order 352 provides that " Money ordered to be paid into Court
l)y any person, is to be paid into the Canadian Bank of Commerce,
ftt Toronto, witli the privity of the Registrar, and in no other
manner." . ,,. ,

In England, the officer in whose name money is deposited, is
termed the "Accountant General," and his duties are, in this Pro-
vince, performed chiefly by an officer here called the Accountant,
under Orders 352 et seq, and 568 et seq. With this explanation the
English cases can be read without misleading.

The payment of money or the transfer of stock into Court is
most usually ordered, on interlocutory application, in the case of
personal representatives, or other persons filling the character of
trustees, having money in their hands, or stock under their control,
to which the plaintiff can make out a prima facie title.^ It is also
frequently one of the terms upon which the Court grants an inter-
locutory injunction.-

It aj)pears formerly to have been thought necessary for the
plaintiff to show, in support of an application of this nature

1 Daithii V. Danbi/, 5 Jur. N. S. 54, M. R.; Whitmore v. Turqvanii, 1 .1. S H. 20«.
•i Ante.

■■i

WHEN DIRECTED.

1809

.I'll i..(!ii
.•••/<;»u!.

T. '

( 1 ' ,i 1 i I '

b enforces
litigation,

nto Court

ommerce,

no other

losited, is
this Pro-

jcountant,
ation the

Court is
ie case of
iracter of
[r control,
1 It is also

an inter-

for the
Is nature

against an executor or trustee, that the executor or trustee had
ahused his trust, or that the fund was in danger from his insolvent
circumstances ; hut now, except in the case of a creditor suing for
his own debt only,^ the Court will order so much of the trust estate
as the executor or trustee admits to be in his hands, to be paid into
Court, whether he has abused his trust or not, and without requiring
proof of any danger to the property pending the litigation.-

The existence of a discretionary power in the trustees over the
fund affords no reason why the fund should not be ordered to be
paid into Court : unless the exercise of the power would be thereby
prevented. If, however, the trustees are about to exercise their
discretion in a proper manner, the Court will, in order to avoid
useless expense, decline to order the fund to be paid into Court.^

[n Blake v. Blake,* Lord Redesdale appears to limit the rule, as
regards personal representatives, to cases in which there are no
debts, or the debts are all paid and there is no purpose for which
the money is to be left outstanding ; but the rule appears to be
much more extensive : and any balance which may be in the execu-
tor's hands will be ordered into Court, notwithstanding there are
demands upon it to which the executor is liable. Thus, in Yare v.
Harrison,^ an executor, having admitted a large balance of the
personal estate to be in his hands, was ordered to pay the whole
into Court : although he stated that an action at Law was depend-
ing against him for a debt to a considerable amount, due from the
testator. Liberty was, however, given to the executor to apply, in
case the plaintiff in the action should recover against him. If the
conduct of the trustees has been proper, and all the cent ids que trust
are not before the Court, the trustees will only be required to pay
in the shares of those before the Court ; ^ and where the trustees
of a creditors' deed, who had duly invested the funds, claimed a
lien on it for their unsatisfied costs, an application by a single
creditor, suing on behalf of himself and all other creditors, for an
order for payment of it into Court, was refused."

1 Reeve v, Goodioin, 10 .lur. 1050, V. t!. K. B.

2 Strange v. Harru, 3 Bro. C. C. 365; and see lilake v. Blake, 2 Sch. &, Lef. 26 ; RutherfoM v.

Dawson, 2 Ball & B. 17 ; Efftcardit v. Kdwardii, 10 Hare, App. Ct).
;{ Talbot V. Mamhfield, 2 Dr. & Sin. 285. 4 UM >iu}>.

5 2 Cox, 377 ; but see lletagh v. Concannon, 2 Moll. 659.
« Hamoiid v. Walker, 3 Jur. N. S. 68«, V. C W.
7 Chaffers v. lleaillam, 17 Jur. 754, V. C. W.

;,«-

c:''

ff

1810

PAYMENT OF MONKY.

The same principle will apply to all persons who till the charac-
ter of trustees : whether they are such by virtue of an actual
appointment, or by implication. Thus, the Coart has ordered an
auctioneer to pay into Court the balance of the deposit upon a sale,
admitted by him to be in his hands, after deducting his claims as
auctioneer.^ Upon the same principle, where a testator, having a
debt secured on lands, bequeathed the debt to the mortgagor, with
a desire that he would give a reversionary interest therein to a third
person, and the mortgagor sold the estate, he was ordered to bring
the mortgage money into Court, for the benefit of the devisee, sub-
ject to his own life-estate ; - and so, where the defendant had cove-
nanted to pay a sum of money to the trustees of his marriage set-
tlement, but had omitted to do so, he was ordered to pay it into
Court.^ Where, also, the plaintiff, a shareholder in a company
which had transferred its business, alleged that the directors of the
company had, unknown to him and the other shareholders, received
sums of money for making the transfer, they were ordered to pay
such sums into Com-t.*

Where an executor admits a sum of money to be due from him,
in his individual character, to his testator, the amount will be
ordered to be paid into Court."^ This was done, notwithstanding
a statement in the answer that the debts of the testator were not
all paid, and that there were several outstanding for which the
executor was liable.** In such cases, the Court assumes that, as the
persons to \jSij and the persons to receive are the same, what ought
to have been done has been done, and orders the payment, not as a
debt by a debtor, but as of monies realized, and in the hands of
the executor or trustee.

Upon the same principle, money admitted by an executor to be in
the hands of his partner, will be considered as in his own hands
for the purpose of being called into Court ; ^ but in Freeman v.
Fahiie,^ it was held, that an admission by an executor that the
whole amount of the property was invested in India, on public
securities, either in his own name or in the name of a house in

1 Yates \. Farebrothei; 4 Madd. 230; and nee Boutm \. Mule, 8 Hcav. 17T ; Soken v. Sepping*,!.
Phil. 19. 2 Uioui V. Kuig, 2 Bro. C. O. 600.

3 Rothwell V. Rothwell. 2 S. A S. 218.

4 Oafkell V. ChamhcM (No: 3). 26 Beav. 3(50 : .'> Jur. N. 8. 52.

fi JiothweU V. liothmll, 2 S. & S. 218. 6 Mortloek v. Leatlifs, i Mer. 491.

7 Johimon V. Anton, 1 S. * S. 73; White v. Barton, 18 Beav. 192; and s'^^.< Hoii v. (fibbon, 4 ilare,
«6, W. S 3 Mer. 39.

WHEN DIRECTED.

1811

D charac-
n actual
dered an
on a sale,
jlaims as
having a
Igor, with
to a third
\ to bring
isee, sub-
had cove-
riage set-
ay it into
compa ny
tors of the
B, received
•ed to pay

from him,
mt will be
ihstanding
»r were not
which the
hat, as the
hat ought
t, not as a
hands of

lor to be in

|wn hands

freeman v.

|r that the

on public

house in

L V. Seppingn, :'■

It. 401.

iihhnn, 4 Han'.

which he was a partner, but subject to his disposal, unle.ss some
part was in the hands of the house at interest, which he believed,
might be the case, was not a sufficient admission of money in
his hands to order the payment into Court of any part of it: for
although an executor, dealing with money in his hands, is bound to
ear-mark it, yet, if he does not do so, and cannot answer as to the
state of it, the Court has no power to act as upon an admission.'

It is only upon the admission of tlu executor, or other trustee,

tliat the trust money is actually in his hands that the Court will

order it to be paid in. If, therefore, a defendant admits a sum of

money to have come to his hands pToperly belonging to the trust,

l)Ut adds that he has made, or will have to make, payments on ac-

euunt of the estate, he will be allowed to deduct the amount of the

j)ayments, and to pay in the balance only.'-

> ■

This, however, will be the case only where the payments ha V(>
l)een [)ro})erly made. Where the payments have been improperly
made : as where they involve a breach of trust : the trustee will n6t
lie permitted to avail himself of such payments for the purpose of
resisting the payment into Court. Therefore, where executors had
by their answer admitted the receipt of the testator's pioperty, but
stated that they had lent it on a promissory n(jte : upon an applica-
tion that they might pay the money thus lent into Court, it was
held that, having admitted the receipt of the money, the executors
could not, by alleging an improper application of it, protect them-
selves from payment into Court."' So also, where mrinies, directed
hy a settlement to be laid out in government or real securities, were
lent by the trustees to the husband on bond, the trustees were or-
dered,'on motion, to pay the money into Court.^ This principle
was likewise acted upon in Boflnvelf v. Roilnvell;' before referred
to, in which the Court oi'dered the defendant to pay in a sum of
money which he had contracted to pay to the trustees of his mar-
riage settlement but had omitted to pay. And it is not onl}' in
cases where trust money has been improperly lent that it will be
ordered into Court : it will l)e ordeied in, even where the lending

\ See linii y. Gibbon, 4" Hare 05. »„ „ v ,, i ..,,-,.

2 Anon. 4 Sim. 3.59 ; Aoi/ v. Gibbon, 4 Hure, t.').

V'grasH v. Binfipld, ;t Madd. i\i ; see also Heauoiont v. }feimiitli, » \. & B. 180 ; Xokex \. Seppimix,
2 Phil. 10. 4 Co//m v. Collis, 2 Sim. 365, 308. 5 2 S. & S. 217.

9© ♦

If.

^

1812

PAYMENTS AND TRANSFERS INTO COURT

c.:3S'

may have been warranted by the trust deed, upon the allegation
that the fund is in danger.^ . >

In order to induce the Court to direct Jhe immediate bringing in
of a sum of money upon an interlocutory application, the money
must be clearly trust money. Where it is not impressed with a
trust, but is in the nature of a mere debt, the Court will not makf
an order for the payment of it into Court till the hearing of the
cause. Thus, in Pecvchmn v. Dow^ where a bill was tiled against
a defendant, insisting that a certain sum of money claimed oy her
as a gift from the testator, shortly before his death-, continued to be
part of his assets, and upon the coming in of the answer the plain-
tiff moved that the defendant might pay the money into Court,
on the ground that she had admitted circumstances in her answer
■^hW 'iHde it clear that it was part of the testator's assets, the ap-
pjk r. as refused. »

Where a (.'ourt of L«.^dity traces out trust money in the hands of
a persj', wh< s not, prima facie, a right to hold it, that mone}
must be brought into Court.^ ' ^

It is not necessary, to induce the Court to order trust money to
be paid in, that the trust should be one absolutely declared. It
will, in many cases, do the same where the trust is only implied :
as in the case of vendors and purchasers, where, as the Court con-
siders what is agreed to be done as done, it will treat the vendoi'
as a trustee for the purchaser of the estate contracted for, and
the purchaser as a tiustee for the vendor of the purchase money.^

Lord St. Leonards, in his learned Treatise upon the Law of Ven-
dors and Purchasers of Estates,^ thus states the rule in practice of
calling uj)on a purchasers of estates to pay their purchase money
into Court, in a suit for specific performance : "A purchaser in pos-
session of the estate, may, upon motion, be oi'dered to pay the
purchase money into Court. This has been done before answer ''
but the purchaser has, in some cases, had the option to pay the

1 Papte V. Collier, 1 Vfs. .1. 170. ' 2 (i Madd. <J8.

3 Leiijh V. Macau la ji, I Y. it 0. Ex. 200, 267 ; J'ai/iie v. Collier, 1 Ves. J. 170 ; see jHixt.

4 London <(: Xort/i-Wentern liailiray v. Corporation of Lancaster, 1.5 Reav. 22.
6 Pp, 22i)-231.

(5 bixon V. AMei), 1 Men 133. 378, ii. (h); Burromjhx v. Oakleij, ih. 52 .376, n. ; Blackbtim v, State,
(j Madd. 69 ; t'lilce v NorthwoiAt, 1 Beav. 162, where tenant claimed option to purchase.

WHEX DIRECTED.

1813

legation

llgillg HI

c money
[ witli a
Lot make
,2 of the
against
;d oy her
ued to be
bhe plaiii-
to Court,
er answer
bs, the ap-

e hands of
tiat monej

money to

•clared. It

implied :

[Court con-

;he vendor

[d tor, ami

ie money.*

iw of Ven-
l practice of
lase money
Uer in po^-
jo pay tilt'
answer^ ''
bo pay thf

Ickbuin V I'taee,
Irchase.

money, or give up possession;^ in others, occupation rent has been-
set, deducting interest upon the deposit;^ and in others, a receiver
lias been appointed ;'' and payment of the money will be ordered,
although by the agreement it is payable l»y instalments, and a por •
tion of it ifi to remain secured upon the estate."* This rule has been
adopted: where the possession has been given under a mutual
;»|)prehension tliat the title could be immediately" made good ;'' where
the purchaser had a sort of mixed possession with the vendor, and
liad paid part of the purchase money, was insolvent, and had at-
t(.'ni})ted, without eifect, to sell the estate ;" where the purchaser
approved of the title, and prepared a conveyance, and then raised
objections ;^ where the purchaser had been guilty of laches and cut
underwood f and even in a case where it appeared, on the face of
tlu abstract, that the title was bad, but the purchaser had sold and
conveyed the estate to another purchaser.*' So where an acceptance
of the title was inferred.^'' Agaiii, where a time was fixed for the
payment of the i)urchase money by instalments, and the pi-operty

was a coal mine.^^

*

" If the estate be sold under a decree, and the purchaser enter
into possession, he will be compelled to pay his purchase money
into Court, unless he entered with the express consent of the
Court."^^ •

But where the sale is not by the Court, and, upon a parol con-
tract at so much per acre, there is a dis(>ute as to the number, and
possession was given without any understanding when the purchase
money was to l)e paid, and the bill only seeks a performance as to
the larger quantity :^-^ or the seller has thought proper to \)ut the
purchaser into possession, with an understanding between them that

1 Clarke v. Wllxoii, ir> Ves. 317 ; f^itiith v. Llvpd, 1 Modd. 83 ; Morgan v. Skate, 2Mer. 138 ; iVickhain

V. Everfil, i Madil. ra
i Smithy Jnckmn, 1 Viidd. C18 ; Smith v. Loiid,! Madd. 83.
:'. Uall V. Jcnlfiiixon, 2 \. & B. 125 ; Clarke v. Elliott, 1 Madd. 600.
i Ynuiigcw Diineoiiibe, Younge, 2"r>.

'< Gilmin V. Clarke, 1 V. i'^ B. r)00 ; and .seo S. C, cited 1 Madd. «07.
(! Hall V. Jfiikinson, 2 V. \ B. 125.
7 Walterx v. ITpton, O. Coop. i)2, n. ; but see Bnnwr v. .lohnstnn, 1 Mer. 360 ; Crutchleti v. Jern-

rngliam, 2 Mer 50.'.
S nnrriHighK v. Oaklet), 1 Mer. 52, 3Vt(, n.; Dixon, v. AKtletj, Ih. 133, 378, n. (b) ; liradxhaw v. lirnd-

xhaiv, 2 Mer. 402.'
0 lirown V. Kellii, h. I. Hall, July 1810, MS.

10 liimthhy V. Walker, 1 Madd. 107 ; Smith v. Ijloyd, 1 Madd. 83.
U Ihick V. l.odge, 18 Ves. 460.

12 Amn., L. I. Hall, l(i .Julv, l8l(!, .M.S ; Wildinij v. Andreii's, 1 C. P. Coop. t. Cott. 380.
l:i «(yi.v„„ y. Glaxtonbtirii C'aiial Coinpaim, C. P. Coop 42 : 1 C. !'. Coop, t, Cott. .S.'iO.

■5' I-

1814

PAYMENTS AND TKANSFEIlS INTO COURT.

he sluill not \Miy liis luoiicy until lie has a titlo : tlie purchaser
cannot be called upon to pay tlie money into Oourt in this surnniar}-
way;^ iioi' can the payment be compelled wliere the vendor gives
possession without stipulaticm ;^ or the purchaser was in possession
under another title before the contract ;'* or the possession was
given inde])endent1y of the contract, and the seller has been guilty of
lavh<'K\* although, in such cases, the purchaser, may make himself
liable to tlie demand, by dealing im])roperly with the «.'state, cij.,
cutting trees, or selling it to another ))erson :'' or even ameliorating
it, but changing the teiuuits.*' But the ])urchaser, after a long[)uriod,
will not be permitted to kee]) possession oi the estate and also
withhold the jiurchase money : if a title has not been made, ho will
be put to his election within a reasonable time, <\^.»two months, to
give up the possession or pay the purchase money."'^

The same learned author then i)roceeds to deduce two simple rules
from the cases : " 1st. Where the possession is taken under the con-
tract, or is consistent with it, and the purchasei has not dealt iui-
proj)erl)^ with the estate, the cause must take its regular course.
But, 2ndly, If the possession by the purchaser, without payment of
the money, is contrary to the intention of the i)arties, or is held ac-
cording to it, but the purchase)' has exercise<l improper acts of own-
ership : for example cutting timber by which the property is less-
ened in value ; or selling the estate, by which the first seller's remedy
is complicated without his assent : in such cases, the (!ourt will
and compel the purchaser to pay the i)urchase

interpc
Court.'

oney

Where the plaintift having the conduct of a sale, neglects to pay
into Court, the deposit paid him by the purchaser at the time of
sale, the Court will, on the application of the purchaser, order him
to do so. It appears that a purchaser at a sale under a decree has a
right to take out the report on sale and get it conliiined, so as to

1 Gihsuii V. Clnrke, 1 \'. & B. 500.

2 Clarke v. Elliott, 1 .Madd. COC ; and see Northern Counticx Union Railway v. Surth Kiistern

Railway, 0 \V. R. 122, V. C. K., where |)os,ses8ion was taken by the defendants, inider a power
given tliein by the leglslatnre.

3 Freebody v. Perry, O. Coop. SH ; Ronner v. Johnston, 1 -Mer. M>i.

4 Fox V. Birch, 1 Mer. 105.

5 Cutler v. Siiiimtn, i Mer. 103 ; Bramley v. Teal, 3 Madd. 219 ; Gell v. Watnon, ih. 225.

6 Bramley v. Teal, 3 Madd. 21!t.

7 Tivdnl v. Cohham, 2 M. & K. 385 ; Fowler v. Ward. G Jur. 547, M. K.; Adams v. HeatlivvU: 1»

.Jur. ;<iil, V. ('. K.
S .■^u'/d. \. &. V. 2S1.

.hi

WHKN DIRKCTEIX

«

1815

purchaser
1 s\iiuinary
idor gives
possession

ission ^^^
■n }j;nilty of
ko liimsell"
.•state, ('.</.,
nelioratin*;
ongl»eriod,
e and also
ade.howill
montlis, to

simple rules
der the cou-
)t dealt im-
;ular course,
payment of
r is held ae-
acts of owii-
)erty is less-
or's remedy
(Jourt will
money into

[•lects to pay

the time of

r, order hiiu

■decree has a

lued, so as to

■v, .\orth AVis/cni
Its, under a jiower

•22:'!.

V. lleathcvU: 1»

obtain a certificate of the i)urcha8e to himselt — at least where he is
the sole purchaser.^ And where a sale has taken place voider a
decree of the Court and has been confirmed, an order will be made
for the purchaser to pay the balance of his purchase money into
Court, though no en<iuiry lias l)een made as to title.-^

The ]>rinci]>le of ordering numey into Court upon a trust by im-
plication, has been acted upon in seveial cases. Thus, the proceeds
of a fire policy, u])on a freehold house, whicli had been renewed by
an executrix after the death of a testator, were directed to be
brought into Court, on the application of the widow, in a suit
instituted by her for the administration of the testator's estates: not
on the ground that the proceeds of the jwlicy formed j)art of the
personal estate, but because they were affected with a trust for the
benefit of the persons interested in the real estate;* And whero
good had been specifically, and not generally, consigned by a trader
abroad to merchants in this country, the ]jroceeds of the consign-
ment, were held to be trust money in the hands of the consignees,
and, upon a bill filed against them by the representative of the
trader for an account, were ordered to be brought into Court.*

The practice of the Court with regard to compelling the payment
into Court of money constituting partnership property, has been
stated'' in the following manner : — " As the rule is that he who seeks
equity must do equity, it seems clear that, where the ])]aintifF is a pri-
vate debtor to the partnership, he cannot insist upon an account, with-
out paying the amount of his debt into Court. Thus, in an eai-ly case,
it is laid down, that if one partner boriows any money out of the
partnership trade, his own share shall be answerable for it ; and he
shall not be permitted to come into Equity, and pray an account
without making satisfaction for the debt.*^ So, in a case before Lord
Nottingham, one partner having suetl the other for money had and
received, and the latter having filed his l»ill for an injunction to stay

1 Cronkn v Glen, 1 Cham. Rep. 354.

•J Stewart v. Stewart, 1 Chnin. Rep. 243 ; but see Cnmlcs v. Street, 1 eiiain. Rep. i)i"), and ea.ses

collected, ante.
.i Parry v. A shlei/, 3 Sim. 97.
4 Leigh v. Macaulay, 1 V. & C. Ex. 260, ao" ; and see Venning \. hoyd, 1 De G. F. & J. 193 : (J Jur.

N. S. 81, where the proceeds of a policy of insurance had been as.sijjiiied, and there was a conflict

of jurisdiction.
;") Colljier on Partnership, 200 ; and see Limllejj, 817.
«) Hi Vin. Abr. Partners (E), 5 ; ifelwnicchi v. Itoyal Exchange AKnuranee Company, 1 K(i. Ca. Abv.

8, pi. 8.

1810

I'AVMKNTS AND TllANSKEHS [NTO ('OTUT.

j>roc('»HHiinrs at Law Hiul for an account, tlic (*(>urfc rnteitaiiuMl t)ii'
.suit, and (locrood an account: tlu; plaintiH' having first |)ai(l into
Court tlu^ nioiK'Y in ([uostion.' Upon similar prinoiphis it sIkiuIiI
setMn, that if tlu' deftMulant couhl by any means sliow that ji specific
sum is duo from tlio ))hiintitf to tho partnership as a private delit.
that sum must he paid into (*(>urt by the plaintiff before an aecount
will be decreed. But (me ])artner whether plaintiff or defendaiu,
may receive partnership money and effects, and insist on not pav-
ing- in the amount, uidess all tho other partneivs will pay in what
they have in their hands f and it has been lai<l down by bord
Eldon, that if a partner, as partner, receives money belonging- to the
firm, and admitting that he has received it, insists that there is ;i
balance in his favour, there is no j)rotence for making him pay it
in."'* If, however, a partner has received partnership money, undn
circumstances, from which it can be inferred that he had agreed not
to receive it, and that his receiving it was contrary to good faith, lie
may be ordered to pay it into (^ourt.^

The general rule is, that a partner will not be ordered to pay
|)artnershi]^ money into (^ourt, uidess there is a clear admission, not
only that he has the money, but that he is liable to pay it.'"'

Upon the principal of pi'eserving property pending litigation, a
party to an administration suit, who has been found to be a debtor
to the estate, and is in insolvent circumstances, will bo ordered to
pay the amount of the debt innnediately, into Court : if the debt<n'
is a stranger to the suit, the usual course Is to direct an inquiry as
to what should be done."

The rule is that money belonging to infants is not ordered in
equity to be paid to their guardian whether appointed by the Surm-
gate Court or otherwise, but is secured for the benefit of the infants
under the authority of this C>ourt ; but the lule may not apply
when the amount is small and is recjuired for the maintenance, ediicii-

1 Gold V. Caiiliani, 2 Swanst. 'MH, ii. : 1 CIi. Ca ;U1.

2 FoKter v. Donnld, 1 .F. & W. 2ii2.

3 Ibid. 2.52; but see Toiilmin v. Copland, 3 Y. >t C Kx. ()43, where, allluiuuh pajiueut in wa.-

directed, leave wiis a■i^■en the defcii<hiiit to ai)i)l.v for repayment, out of a fund previously |iiii(lii',.
of aiiv sums which he mi^'ht pay in discharfre of the pa rtnershij) debts.

4 Per Lord Kldon, in Foster v. Donald, 1 .1. & VV. 2.')2.

5 Collyrron l'artnei"ship. 202 ; and sec lAndlfii, 817 ; Ridiardxnn, v. Hank of EnijlamI, i .M. it C. W\

in ; 2 Jur. itll ; but see DnmviUe v. Sidli), 2 Russ. 372.

6 Wnlkff V. SlmiiKon, 1 Jur. N. S. 67-> ; not reportc;! on this jMiint, 1 K. & .1. 71.^?.

WHKN I)[RE(TKr).

1817

■ood faith, lio

tioii or othei iiniiuMliato uso of t-hc infants, or wIum'c^ sonic othor
Hpocial (iiiduinstanccs exist, justifying an exception to the general
lulo. When one of the trustees was dead, and another was removed
for niiscon(hict, the nnnaininj^ tr»iste(! was held to be I'ntithsd to he
discharged from the trust.^ Where tlie trustee for infants i-esided
out of tlie jurisdiction, and a person resident within the jurisdiction
had a contingent interest in th«! trust fund, thi; fund was orden^l to
he secured in Cvourt, instead of being paid over to the trustiie.- In
con.se(iiience of the danger to wliich tlie fortunoH of infants are
often exposed ^n private liands, the (Jourt, on tlie administra-
tion of an estate, takes'cliarge of tlu; sliare going to infants, and
invests the same for bheir benetit, instead of the amount being left
in the hands of a trustee. Since the establishment of a Govern-
ment ])ominion Stock the investment of infant's money by the
Court should, as a general rule, be in such stock, rathei* than as
formerly, in mortgagee. When' new trustees are to be appointed, it
is contrary to the course of the ( -onrt, without some very special
reason to sanction the appointment of one trnstee in j)lace of three.'*

Although the (-ourt will order trust money, admitted t(^ be in
the hands of a ]>arty, to be paid in, on interlocutory application, it
will not onler interest upon such money to be so paid.* The only
case in which the (V)uit appears to liav(^ acted in opposition to this
rule is that of Freertmn \. Faniief but that was under peculiai*
circumstances : the defendant having, by his answer, admitted that
he had made interest to a larger amount than the sum he was
ordered to pay in ; and Lord Eldon said, ho was very unwilling to
carry the practice further than it had been carried.

The same principles which apply to tnist monies, and will induce
the Court to order them to be paid into the IBfi, ik to the credit of
the cause, will be acted upon in the case of trust stock, or trust
money invested in exchequer bills : which the Court will order the
[)arty holding to transfer into the name of the Accountant-General,
in trust in the cause, or deposit in the Bank to the credit of the
caus(i. The Court will also^ wherever it may be necessary for their

yami, 4 M. & C. W'.

1 MiMidl V. Rieht'ii, 13 Oriiiit, 445.

2 Stileiiian v. Cawphell, V.i Grant, 4.'j4.
4 Wood V. Downfi,, 1 V. & B. 50.

3 Kiiignmill v. Millei; 15 Ortutt, 171.
6 3 Mer. 29, 44

181S

PAYMENTS AND TUANSFKRS [NTO COURT.

I

j)i()tef;ti()n, order spociHc chattels to be deitoHited in the Bank with
the privity of the Aceountant-Oenoral,

A trustee or executcn* does not, by i)aynient of tlie trust fund into
Court, dischai'^e hiniseH' of his offi(ie ;^ nor does a payment of niontiy
into C'ourt, upon an interlocutory application, alter the rights of tlw
parties interested in the fund.'-^ Therefore, if an (^\ecut( • 'M* admin-
istrator pays into (^)urt money wliich he has receiv om the
estate of the deceased, his rij^ht to retain a debt due to him from
the deceased is not prejudiced ;•' and where the fund in (Jourt is
insufticient to discharges the administrator's debt, Ids right of re-
tainer will p)'evail against the plaintitt's right to have the costs of

*

the suit satisfitj<l/

It has been said, that funds belonging to wards of Court cannot
be transferred into the name of the Accountant-Cieneral to the
credit of the cause, until the accounts have been taken, and tlie cer-
tificate made ; this, however, nnist be understood as meaning merel}'
not that such a transfer cannot be mad«', but that > will not
<»perate as a discharge to the trustees until they have ^d tlieir

accounts.''

Hinf niiiAhd fin'. '

When it is said, that where a (!(nut of E(]uity traces out trust
money in the hands of a person who 1ms not [trinuL facie a right
to hold it; that money mu.st be brought into Court,*' the dictum
must be understood as implying that the person applying to have
it brought in nmst have an interest in its prote(;tion. The general
rule may be stated thus : that tht^ ])laintiffs must be solely entitled
to the fund, or have ace^uired in tlie whole fun«l such an interest,
together with othersf as entitles tJiem, on their own behalf and the
behalf of those others, to have the funds secured in (Jonrt.'

1 Tho ))xiin V. Tiniikiim, •> Dr. I't Sin. 8.

2 Xohlc V. Stow, "if) Heav. 40!). The only iiiMtancu in which tlie i>a.vMient into Court will affoet the

rijj'ht of the particK is, where money due to a wife is (liiid into Court, in ii suit to which the hus-
Ijand and wife are jiarties : which will have the effect of ik'i)rivinjf the wife of her right hy survi-
varship, unless the payment be into the joint nanje- of the husband and wife : see IjaprhnamUujc
V. Teixnier, 12 Beav. -ioo ; and ant)'.

3 Lniiqtun v. Ilit/gs, .I Sim. 228 ; and see Ilall v. MticilciiattI, 14 Sim. 1 ; Tipping v. I'owei; 1 Hnre,

405. 411 ; Mi'ddleton v. I'oule, 2 Coll. 24((.

4 ChiMKUm V. Dewcx, .') Russ. 29; ante. ,
.5 Beneraft v. Rich 1 Bro. O. C m ; see ih. Ed. Belt. n. (1).

« Ante.

7 Freeman v. Fairlle, 3 Mer. 29 ; Wilton v. Ilill 2 Ue (i. M. Jt G. 807, 80!).

5ank with

b fund into
i of moiKiy

nfhtsof tilt'

'M' {uliniii-
.om tli<'

liiin from
n Court is
L'ht of ri'-
le costs of

lurt cannot
ii'al to tlui
ind tlie cei-
ling nuuely
will not
■>,d their

out trust

w a light

le dictum

\(t to have

le general

ly entitled

an interest,

f and the

■t will affect the
which the hus-

!!• rijfhl by survi-
IjhprimamUiije

Potrer, 1 Hare,

HOW AI'PLIEJ) Foil

l.^ll)

Although tlie Rule of Ktiuity is that money in tlie hands of a stako
lioUler hekl for the l»enctit of others whose rights are to hedis|)t)sed
of by the Court, will usually ho ordere<l into Court, still
in such a case it must be itlear that some of the j)arties litigant lu-e
entitled to the fund ov a portion of it. Where, therefore, certain
moneys, the proceeds of a [)olicy of insurance Avhich had b(>en de-
})osited v\Mth the attorney of a bank for the purpose of being held in
trust for such bank, and with the proceeds to pay (tff tlie liabilities
of the party making such deposits to the bank, ha.l been paid to,
and were still in tin; hands of the attorney, and the depositor,
without showing what ninount was due to the bank applied to h.ave
the money paid into Court by the Attorney : the (^)urt under the
circumstances refused the application.'

It seems, however, that where the plaiutitF is merely entitled to
a portion of a fund, which portion is clear, he will only be permitted
to have the portion, to which he is entitled, secured : therefore,
where a widow, as administratrix of her husband, was called upon
to transfer into Court a sum of Bank Annuities which formed part
of the personal estate of her husband, whose debts had all been
paid, the Court of Exchequer thought that, as she was clearly
entitled to a third of the personalty, they could not keep her out
of the possession of that part ; and accordingly granted the appli-
cati<m only as to two-thirds of the ]3ank Annuities." If the applicant
has a clear interest in one part, and a contingent interest in the
remainder of the fund, the whole will b(' ordered to be paid into
Court.'* If the interest is not clear, the' f uid will not in geiieril hj
ordered to be paid in.^ If the interci.st is •jiitin^jiit, th - fuml in ly
be ordered to be paid in; l)ut then, th. -re must be some reason
shown for the interference of the Court.''

Applications for payment of money or transfer of stock into
Court l)efore decree are usually made by motion : which must be
served on the party required to make the payment or transfer. If
opjiosed, the motion is frequently adjourned for hearing in Court."

1 Ciirhrtt V. MeyefK, 10 (irant, 36 ; and ,suo Leonard v. lUuck, '> V. C. K. J. 2t)0. ^ ,

2 Jio(ifr,s V. Itogem, 1 Aiist. 174.

3 nartlftt V. Bartlett, 4 Hare, OHl.

4 St. Victor V. Dcreirax, l.S Sim. (i41 ; Score v. Fnrd, 7 Hoav Xi'A, HSO.

5 Rom V. flow, 12 Heav. 8i» ; and .see BartMt v. /lartHt, 4 Hare, (Wl ; Mani'itt \. Man/att, 2 W. R.

570, v. e. K.

6 See Seton, 47.

1820

PAYMEXTS AND TRAXSFKKS INTO COUBT.

Applications of this nature are most commonly made upon admis-
sions contained in the answer ; but they may be made upon an
admission contained in an affidavit, or in any other proceeding in
the suit.^ At the hearing of a cause, an application may be made
for the payment of a fund into Court without previously giving
notice.-

^.

To support an application for the payment of money into Court
upon the answer, there must be an admission in the answer of the
plaintiff's title as stated in the bill ; and not merely an admission
with reference to the case made by the answer.-' An absolute
admission of title is not required ; merely such a probability of
title ah the Court can safely act on:* but if the defendant by his
answer merely says he does not know and cannot set forth, as to
his belief or otherwise, whether the plaintiff sustains the character
he assumes, an order will not be made.'"'

The plaintiff" will not be allowed to make use of affidavits to sup-
ply any defect in the answer : the rule of the Court ' oing, that tliG
order shall be made upon the defendant's admission one.^ This
rule, however, must be understood as api)lying to proof of the
plaintiff's title : for it has frequently been decided that though the
Court will not, upon an application of this sort, allow affidavits to
be read in support of the plaintiff's title, it will receive affidavits
to verify collateral facts. Thus, upon a motion that a purchaser
may pay his purchase-money into Court, it will allow affidavits to
be read to prove that he has exercised acts of ownership.'^

As the Court will not order money into Court where there is no
admission of the plaintiff's right, still less will it do so where it is
denied by the answer : therefore, if a bill is filed, stating a settled
account, and l)y the answer it is denied that the ac^count is just, the
plaintiff' cannot move that the defendant hiay pay into Court tlu'

1 Set'in, (i'Z. '-' Ixaacti v. Wi'dthcrxtonf, 10 Hure, App. ;{0.

3 I'nnulfiiiit V. Iliiiui', 4 liea*' 47(> ; see also Jionehctti \. I'owvr, 8 Beav. 08 ; 8 Jur. 108."> ; RothifHi

V. iMlui'cll, -2 8. i't S 217.

4 Mrllarihi v. Ilitchciick, 11 Beav. 7:), 77 : Whitiiinrc v. THrqnand, 1 J. & H. 29<i.

5 D blenn V. Flint, i AI. & C 50 : and see Farter v. llutr.liimi,i>, 3 V. & 0. Ex. 70« ; Edwards v.

EdwardH, 10 Haro, Ap)!. 03.

6 Black V. Creiijhton, 2 Moll. 554 ; l^t. Victor v. Ih-irrcaiix 13 Sim. Oil ; Jtosclictti v. I'awer, 8 Hear

98.
Bradahau- v. Bradnhav, 2 Mer, 4H2 ; Crutrhlei/ v. .ffriiinijhaiii, ih. [t02 ; nuo ante.

'^B

HOW APPLIED FOR.

1821

money on the account so admitted : as he might, if the accomit were
admitted to l)e correct.^

It must also be admitted, that there is a haUince actually in the
hands of the defendant.^ It is not, however, necessary, that the
actual amount of the balance should be stated. If tlie admission is
contained in a schedule not cast up, the sums may be cast up ; and,
on affidavit of the amount of what appears to be due, the order will b,^
made;^ but as, in such cases, the admission only is relied upon,
no affidavit can be used in support of the application, except that of
a calculator or accountant who examines the schedule, and swears
to the amount in the hands of the executor appearing therefrom.*

As the application must be founded on an admission, it is neces-
sary, where the application is founded upon an account appearing
in a book, that the book must have been referred to in such a Avay
as to make it part of the admission ; and where the defendant has
referred to several books, it will not be suffi.cient to make the appli-
cation upon the casting up of some of the books ; it must be the
result of all the books. ^

The indulgence which is allowed to a plaintiff of verifying the
amount of the balance admitted will, in certain cases, be extended
to the defendant. Thus, where an executor admits, in his answer,
that he has received a specific sum belonging to the testator's
estate, but adds that he has made payments on account of the
estate, the amount of which he does not specify, the Court will
allow him to verify the amount of his payments by affidavit, and
then will order him to pay the balance into Court.*'

It may be noticed in this place, that in a case before Sir A. Hart,
L.C., in Ireland, the question arose whether the executor was
entitled to retain enough to answer the probable accruing expenses

:^e

108.'i ; RofliiivU

1

V. Jiaileji, 30 .July, 180.5, '2 Macld. (Jli. Pr. ]>. 400, 2iul eil. ; p. ,523,3(1. etl. ; see al
liaiikiif KngUind, 4 M. & 0. 1(55, 177 ; hut see Dmn villi v. Solly, 2 Russ,

*on V

although the ijlaintlff's title was denied, he wa.s able t<) show from ihe cose stated in

that he had an interest.

2 In respeet to what will be considered as money in the hands of a defendant, see ante.

3 Mills V. llunmn, 8 V'es. 08 ; Qitarn.'ll v. BeekJ'ord, 14 Ves. 177.

4 Black V. §i-eiijhUm, 2 Moll. .554 ; Buxchctti v. Poiiwr, 8 Beav. 98 : 8 .lur. 1055; see also

V. Bank <\f Knglaml, 4 M. & C. 165, 177 ; in which the ])rinoi|>les upon which money
into (>)iiit 111)01) a defendant's admission are verj full3' reviewed.

5 Mills V. llanKiin, 8 Ves. 08 ; Rw v. Gudgeon, G. Coop. 804.
»i Anon. 4 Sin). 350.

) Richard-
372, where,
the answer

Riehanixnn
is ordered

1822

PAYMENTS AND TRANSFERS INTO COURT.

of suits ; and his Lordship upon that occasion observed, that Sir
John Leach had always held the opmion that the executor should
brinjj; in all ; but that when he (Sir A. Hart) was Vice-Chancellor
he had acted on a different principle ; and that he thought the
Court had no right to cramp any executor who was engaged in
suits, by leaving him to carry on those suits with his own funds,
and that Lord Eldon had sustained his views in that respect. " I
do not mean," his Lordship continues, *' merely costs already '
incurred : there never could be any doubt about them ; but pro-
bable growing costs. I know it is said, the executor can come to
the Court for money to be advanced to him as he wants it ;* but I
do not think he is to be compelled to do that."^ The opinion of Sir
Antlumy Hart, however, in the case referred to, appears to be at
variance with tliat of Lord Thurlow in Vare v. Harrison.^

Money or stock may be ordered to be paid or transferred into
Court, after decree, on an application by motion : to be served on
the party to make the payment or transfer. The application can-
not then, however, be made upon admissions* contained in the
answer f but must be founded upon admissions contained in the
accounts brought into Chambers,^ or upon the Chief Clerk's certifi-
cate.-''

The rules which govern applications of this nature, at this stage
of the cause, are the same as those which govern applications upon
admissions in the answer : with the exception however, that the
party applying need not be the plainti^ in the cause. Indeed, if
the plaintiff be the accounting party, the application may be made
against him. It is also unnecessary to show the title of the party
to make tlie application, if such title appear from the decree or
other proceedings in the cause.

Where the application is made upon the Master's report, the
accounting party will not be ordered to pay the fund into Court
until the expiration of the period within which an applieition t)
discliarge or vary the certificate may be made." Upon tiie hearing

1 lii'.taifh V. Cniiciiiiii'in, 2 Moll. 559. 2 2 Cox, H77 ; niiti:.

3 WrU'iht V. Ijukfx. 13 Beav. 107 : liinm^ v. Pan; 7 Hare, 28S ; lUirn v. fiiuf.-x, (! L. J. V\\. 275, M. K.

4 Hatch V, ■, 10 Yes. 11(1 ; mid see Wood v. Dti'rifx, 1 V. & B. 4(t ; Fnx v. Mackrcth, 1 Ve«.

,1. m. 5 (iurdoii V. linthli'ji, ■'( Ves, 572 ; Creak- v. Capcll, (i Miuld. 114.

(\ DnHthwailc v, Sp'nili'ii. 18 Bcav. 74 ; see (rordon v. linthlfji, '.\ Ves. 572, .ind Creak v. Capell, ti
Madd. 114, fur the former pnictlct'. As to lijiplii'ittioiiM to disc1iiirv:e oriary the certiftcate, see
ante.

as;

that Sir
r should
lancellor
light the
;aged in
1 funds,
^ct. '' I
ah'eady '
but pro-
come to
it ;* but I
on of Sir
to be at

red into
3rved on
tion can-
i in the
id in the
's eertifi-

tiis stage

ns upon

Ithat the

deed, if

le made

le party

icree or

lort, the

lo ( yourt

ition t)

Ihearing

■^m

HOW APPLIED FOR.

1823

of an application to var}' the Master's report, it is competent for
the Court, although it acceeds to the application, and directs the
report to be reviewed, to order the accounting party to pay a sum
of money into Court, without a special application for that purpose.
The Court will not do so, however, unless it is satisfied that th i
probable result of the direction to review the report will be the
finding such a sum due from the party. ^

The cases in which the Court would, under the former practice,
order money into Court before answer were very rare. In Jervis
V. Wliite,^ Lord Eldon made such an order upon the ground of
fraud ; and in doing so stated, that he fastened upon the afHdavit
of the defendant in answer to that filled by the plaintiff, as Lord
Kenyon had done in ^^<mn v. Barnett :•* where, though it was held
that in general, in such cases, the Court would not act effectively
between the parties till the answer comes in, yet, if the defendant
answers the affidavit, the Court would look at the affidavit as if it
were the answer.

The Court has also, as has been already stated, ordered the pur-
chaser of- an estate to pay his purchase-money into Court, before
the answer has been put in.

Our Order 353 prorides that " A person desiring to pay money
into Court is to produce to the Ledger Clerk the order, if any, under
v.liich the same is payable, and is to file a pneclpe in the form
set out in Schedule 0." Order 354 that " That the bank on receiv-
ing money to the credit of an}'^ cause or matter, is to prepai'e a
receipt therefor in duplicate : and one copy is to be delivered t' -> he
party making the deposit, and the other is to be posted <n" delivered
the same day to the Ledger Clerk."

1 lii-uu'ii V. he Tiistrt, 4 Kuss. 12(i.

2 a Ves. 7;W ; liiehnnlsfin v. lianli m' Hn inul, 4 M. \- (.'. IC.'i ; Dnhltsx v Flint , ih. .'lOi.
» 2 Hro. C. C. 15S.

ilH

3^"'

m

•l~r>, M. H.

h-cth, 1 Ves.

lid. 114.
f. Capfill, (i
Liflcate, sei-

( 1824 )

CHAPTER XLIV.

PAYMENT OF MONEY AND TRANSFER OF STOCK OUT OF COURT.

i

I

I

i

When money has heen jjaid, stock transferred, or specific articles
deposited in Court, the decree or order at the original hearing, or
upon the further consideration of the cause or matter, frequently
provides for the payment, transfer, or delivery of the same to the
parties then entitled thereto. It, however, often happens that the
rights of the parties to the effects in Court, at the time when the
decree or order is made, are not such as to enable the (Jourt then
to make an order for absolute payment, transfer, or delivery to
them. Under such circumstances, where it appears that a certain
proportion of the fund in Court, or a precise sum, belongs to any
particular party or set of parties, and there is any incumbrance
affecting such share, or the interest in it is delayed until the hap-
pening of some event : as, for instance, till the party attains the
age of twenty-one, or till the death of a previous tenant for life :
the Court will, on the hearing, order the share to be carried over
in trust in the cause or matter, to a separate account : liberty to
apply being, at the same time, given to the parties.^ The effect of
carrying over a fund to a separate account is to release it from the
general questions in the cause ; and to mark it as being subject
only to the questions arising upon the particular matter referred to
in the heading of the separate account, so that, in all subsequent
dealings with the fund, those parties only need be served who arc
interested in it. Care nuist, therefore, be taken in tlie heading of
the account : as from it the Court sees to wdiat extent the fund has
been severed from the questions in the cause. -^ Tlie mere carrying
over of a fund to the separate account of any person is not, how-

1 Ante.

•I Re Jcrvoise, 12 Beav. •201>; and see Salmon v. ,1 iniovMu, 9 Beiiv. 44.1 ; llandtey v. Mefcalfr, Ih. ii)r> ;

l.aprhiiandaur w Trinsii'r, 12 Heav. 20l! ; AV TilMnm; il Hare, Apj). i')(l ; y'ohli' v. Stoic, 2i> Ben*.

40i» ; Setoi), m. For ii CDllection (it forms of lieadiiigs, sie 12 lU'uv. 210, ii.

ft'

RT.

J articles
aring, or
•equently
le to the
. that the
«rhen the
ourt then
ilivery to
a certain
gs to any
imbrance
the hap-
ains the
for life :
Iried over
[liberty to
effect oi'
from the
Hubject
ferretl to
bsequent
who arc
acling of
Ifuncl has
[carrying
liot, how-

\calfr, III. 4i)r. ;
ftoif, '2i» Bfu>.

PAYMENTS AND TRANSB^ERS OUT OF COURT.

1825

ever, equivalent to a decree declaring such party to be absolutely
entitled. Any error may, therefore, be corrected by an original
bill; and it is not necessary to tile a bill of review, nor to have the
decree or order directing the carrying over reheard.^ if the fund
has not been dealt with for many years, the Court will not order it
to be paid out to the personal representative of the person in whose
name it is standing, in the absence of the persons beneficially inter-
ested ; ^ and where the fund has passed by the will of the person
entitled to it, it will not be paid to the legatee, in the absence of
the personal representative of the testator.-^

There are some cases in which, although the interest of a party
in the fund is not absolute but subject to a contingency, the Court
has not directed the fund to be carried to a separate account, but
has ordered it to be paid out at once : the contingency being
remote, and the parties receiving the money entering into a
recognisance to refund it, in the event of the happening of
the contingency. This was done in the case of Leng v.
Hodges* where the right of the parties was subject to the
contingency of a female who was then of the age of sixty-nine
years having children ; and in the case of Brown v. Prinjle,^ a
legacy to a woman for life, with remainder to her children, paid
out of Court on the petition of the mother and children, the child-
ren having attained twenty-one, and the mother being sixty-six
years of age. In this case, the fund being small, and the contin-
gencies remote. Sir James Wigi'am, V.C., only ordered the parties
to undertake to account for it as the Court should direct, in case of
other children being born ; and no recognizances were entered into ;
and where the contingency was very remote, the fund has been
l)aid out, without even an undertaking to account for it.*^

1 Sitble V. atoir, -2!) Beav. 40!) ; (ii)tc, ami see Kx pnrlc- Bn-ach, 10 .Tiir. X. ,S. 9^2: 12 W. R.

709, M. R. ; and Sliniypard v. Slicphard, 33 Beav. 129.

2 Eihriirds v. Harvci/, 9 .Fur. N. S 45.S : 11 VV. R. :«0, M. R. ; ami .see Lmt v. Duakett, C. & P. 30r..
.< lU- Aclcvr, 11 W. K. 1»2, V. 0. S.

4 .lae. 585 ; see also yntser v. FniKci-, ih. r>8(i, ii., where the lady was fifty-five, and luiniarried ; DeiJiti
V. Oohischiiiidt, 19 Ves. 000; Paijtte v. Long, cited ih. 571; Wcblifr v. Webht-r, IS. & S. ;UI ;
Lyddon v. Jillixoii, 19 Beav. r)(i5 ; AV/ico /•(/.< v. Tuck, 23 Beav, 208 ; Kenne.dii v. Scd'iivick, 3 K. &
J. 540 ; Vidler v. Parrott, 12 W. R. 970, V C. K. But it .-eenis that the Court will not tieat a
woman a.s past the a^e of cliildbearing until she is fifty ; althouffh iwsitive niedieal evidence thrt
she is j)a,st childl)eariny; is adduced : (Jrovex v. Gnnvi^, 12 W. R. 45, V. (.'. W.

j 4//fjrp, 124. As to payment out, on presumption of death, see I><iii'h'ii v. Wlniidd, 14 Hhn, 277;
Ciithbert v. furrier, 2 Phill. 199 ; Lamb v. Ortou, 0 Jur. N. S. 01 : s'W. R. Ill, V. C. K. ; Diniii
V. Snmrdeti, 2 Dr. & Sni. 201 ; Thoinan v. Tliowan, 2 Dr. & Sni. 298.

0 Milct. v. Kniijht. 12 .Jur. 660, V. C. E.

■m

■ :l i

"*ii

«

182G

PAVMKXTS AN[) TRANSFERS OUT OF COURT.

Another instance in which the Court used to order money to be
carried over to a separate account, occurred when the party entitled
to it was a married woman. In such a ease, the practice was, not-
withstanding her interest in the fund was immediate, for the Court
on decree, not to order payment at once, but to direct that the fund
be carried to the account of her and her husband.^ After the fund
had been thus transferred, a petition was presented by the husband
and wife, or such a petition was brought on together with the
cause on further directions. The present practice, however, is
different, and has been stated 4n a former part of this work.

Formerly, whenever a fund liad been carried to a separate account,
and the title to it was clear, an order for payment might have
been obtained by motion;- but now, the application should be
made by petition y^ unless the fund is small,^ or the application is
for payment of the dividends or interest of any stocks, funds, or
securities standing to the credit of any cause or matter depending
to the separate account of the applicant ; in which cases, it may be
made by motion.'' '

An order for the payment of money out of Court will not be made
eu- parte ; the party who has paid it in muc served with notice. ^
And where the purchase- money for lands sold under a mortgagee
was paid into Court, it was held that the mortgagor must have
notice of anj' application to pay to the plaintiff amounts found due
to him by the Master's report." Where a certain sum of money
ordered to be paid to the plaintiff under a decree had, pending a
rehearing and appeal, been paid into Court by arrangement between
the parties, to obtain a stay of proceedings, in lien of the security
required by sub. -sec. 4 of sec. 16 of the Act relating to appeals ; and
on the appeal the decree was affirmed only in part, that part
directi'ig the payment of the money, being in part reversed by the
amount being reduced to a comparatively small sum ; a motion to

1 Camphi'll V. Hariliiiij, (> Siiii. 28:5.

2 Ui'iithcoti' V. Kdimriis, .lac. r)04.

li Gaiiatt V. Mhlnclc, ."> Beiiv. 143 ; Hliiid Suliool v. Goven. 21 L. J. eh. 144, V. C. Ltl. C. : Joad v.

liiplvtl, A Jur. N. S. 432, \'. C. S. ; but see OUvei v. Ihirt, 1 Beav. r)83 ; Linford v. Cooke, HW. R.

5, V. ('. K.
4 fieton, 1.57 : I'cttn \ . I'etty, 12 Beav. 170 ami see Wiidtmirth v. Winkirorth, 32 Beav. 233 : 9 Jur

N. S. (il, where leave was g'iveii tu make future appliuatiuim at Chambers,
.'i Ord. Ilt7. If the ai)pIication is for the i)aymeiit of arrears of ilivideiiils e\uee<Ji)i)r i;30Qk it must be

by petition : Joad v. Ripley, 3 Jur. N. S. 432, V. (.'. S. Tliis rule, howe\er, is not adliered to.
« Ihillen V. lleiieviek, 1 Cham. Rep. 213. 7 Smith v. Kerr, 3 Grant, «0i».

m-\.

%
%

PAYMENTS AND TRANSB^ERS OUT OF COURT.

1827

By to be
' entitled
5^as,not-
he Court
the fund
the fund
husband
with the
)wever, is

3 account,
ight have
ihould be
licatiou is
funds, or
depending
t, it may be

oi be made
notice.®
mortgagee
nust have
found due
of money
pending a
lit between
e security
)eals; and
that part
ed by the
motion to

Ltl. C. ; -food V.
Coo*-*', OW. R.

iiav. 233 : 9 Jur.

HO(k it must t"

iiiniered to.

pay out the money to the party who had paid it in was granted by
the secretary, though strenuously opposed, and his order was con-
firmed on appeal to the full Court. ^

The petition or notice of motion must be served on all the per- '
sons appearing to be interested therein.- In the case, however, of
applications where the persons interested were numerous, and,
under the circumstances, it must be supposed that they would be
informed of what had been done, service upon all has been dis-
pensed with.^ Where a fund becpieathed to one for life, with
remainder to a class, the members of which, as well as their shares,
had been ascertained by the Master, had been carried to a
separate account, the Court on petition presented after the death
of the tenant for life, directed the transfer of one-ninth of the fund
to the person who appeared by the Master's report to be entitled to
it, without service of the petition on the persons entitled to the
otlier eight-ninths.* If, in consequence of the heading of an
account, n person is properly served with notice of the applica-
tion, but the Court considers his appearance unnecessary, he may
be disallowed his costs."' Where the person to whose account the
fund has been carried has assigned his interest, he must, generally,
be served with notice of any application by the assignee f and if
the assignment is disputed, the Court will refuse to order the fund
to be paid without a suit to determine the rights of the parties
bi'ing instituted."

Unless, upon the hearing of the application, the title of the
applicant to the immediate payment of the fund is made clear by
the Master's report, or by the previous orders of the Court, it must
be supported by evidence of all the facts necessary to establish the
title. The same mode of proof is necessary as that required to
prove similar facts upon other occasions. Application should also
be made to the Registrar for a certificate of the amount of the
fund sought to be affected, as well for the purpose of stating cor-
rectly the description of the fund, as also for the sake of ascer-

1 Lhnhai' Petroleum Cmapami v. Ilitril, 3 Cham. Kep. 10.

2 Scion, (is ; Dallimore v Oijilby, l(t Jur. 443, V. C. K.

:i lie Hodges, (3 VV. R. 487, V. C. K. ; see also lie Midland Railway Company, 11 Jur. 1095, M. H.
4 Lambert v. Xewark, 3 I)e O. k S. 40.5.
;"> lie JuKticcx»of Corentnj, lit Beav, Xhi.
« liriant v. Deun-tt, 4 Drew. .'i.'iO : ,''> .Uir N. S. ."SOS.
T WasteU v. Ledi ■, l.'i Sim. 4.'')!, ii. ; Tlioriidike v. /Iiint, 3 l)e G. & J. 563 : 5 Jur. N. S. 870.

91

5'

II

;>v

1828

PAYMENTS AND TRANSFERS OUT OF COURT.

1

taining whether the fund is affected by any stop order ; and this
certificate must he left witli the Registrar when the order is be-
spoken.

' If the applicant is one of a class among which the fund is
divisible, he should also ask that the shares of the others may be
carried to their separate accounts, in order to save expense on the
occasion of future applications.^

A prospective order for the payment of interest on funds to be
subsequently paid into Court may be made ;^ but the Court has
refused to make any order dealing prospectively with the purchase
money of an estate contracted to be sold, but not paid for.^

The Court will not, in general, order payment out of the prin-
cipal or interest of a fund except on the responsibility of the
executors, until it has ascertained, by taking the accounts, that the
fund is clear."*

Where any person is absolutely entitled to the fund, the Court
will not, as a general rule, permit the fund to remain in Court, and
make an order directing payment of the interest only f but the
Court will not direct a trust fund, to be paid out to a sole trustee^
except on the consent of parties beneficially interested f and where
the person entitled was deaf, dumb, and blind, the Court declined
to order a transfer of stock into such person's name, but directed
the interest to be paid to two persons for the benefit of such per-
son : they undertaking so to apply it, and to account as the Court
should direct.^ Where an infant domiciled in Prussia was, under
the limitations of her motiier's marriage settlement, entitled to a
sum of 2000L, the Court ordered it to be paid to her father : there
being no trustees of the settlement, and it being proved that,
according to Prussian Law, he was entitled, in the capacity of her
guardian, to receive and administer, dui'ing her minority, the pro-
perty coming to her under the settlement.**

1 J{c Ilaivke, 18 Jur. 33, V. 0 K. ; see also Re TiUitone, 9 Hare, Aj)]). 59.
•2 lie Chaviherlain, 22 Beav. 28ti.

3 lie liourx, 12 W. R. 50!), V. C. K.

4 Abby v. Gilford, 11 Beav. 23; see also Diyby v. Boycati, 4 Hare, 444 ; Knight v. Knight, 16 Beiiv

358 ; lie Wright, 1.5 Beav. 307

5 Imac V. GMiiyertz, 1 Ves. J. 44.

e Re Roberts, 7 Jur. N. S. 818 : 9 W. K. 768, V. C. K. ; Grant v. Grant, 6 N. R. 347, M. K.

7 Re Biddulph, o Ue G. & S. 469.

8 Re Broivn, 13 W. R. 677, V, C. W.

PAYMENTS AND TRANSFERS OUT OF COURT.

1829

and this
er is be-

! fund is
i may be

36 on the

nds to hv

3ourt has

purchase

the prin-

.ty of the
B, that the

the Court
Court, and
f but the
ale trustee*
and where
rt dechned
ut directed
such per-
the Court
|\vas, under
ititled to a
,her: there
[oved that,
city of her
ly, the pro-

fnii)ht, 16 Beiiv
M. K.

A report had been made in a suit for the sale of mortgaged pro-
perty finding that the plaintiff (the mortgagee) was the only
incumbrancer on the property, and that the annual amount due to
him was £235 128. lOd. The property was sold for 4*261, and the
purchase money had been paid into Court. Two years after the
date of the report a motion for payment of the whole purchase
money out of Court to the plaintiff way granted without a reference
to the Master to take a subsequent account, it being clear that the
interest and the costs of the sale would make the plaintiff 's claim
larger than the amount of the purchase money paid in.^ Where a
defendant refused to consent to the payment out of Court of
mortgage money paid in by him, the plaintiff obtained an order for
payment out, but at his own costs. ^

Where an order is made, on an application in an administration
suit, for the payment of income to a tenant for life, the costs of all
parties must he paid out of the income.^ The sum of 101. (with-
out taxation,) is usually allowed by the Master of the Eolls for the
costs of a petition for the payment out of Court of a fund standing
to a separate account, and in which no one but the petitioner is
interested.*

A considerable interval of time frequently occurs, after the hear-
irg of a cause, before any person acquires such an interest in the
fund in Court as to be entitled to obtain an order for payment. In
many cases, therefore, when the period arrives, the cause will have
become abated. It seems clear, however, that the mere abatement
of the suit will not be considered a reason for refusing to pay
money out of Court to persons whose rights to the money arise out
of the decree.^ Thus, in Roundell v. Ciirrcr,^ where the fund had
been carried to the separate account of the plaintiff, and after his
death a petition was presented by his personal representative for
payment of the fund, his right to which was clear, but there was a
doubt whether an order could be made in a cause after an entire
abatement by the death of the plaintiff, Lord Eldon, after con-

1 Gllmour v. O'Brien, 1 Cham. Rep. 244. 2 Bernard v. Alley, 2 Cham. Rep. 91.

•A Eady v. Watson, 33 Beav. 481 : 10 Jur. N. S. 982.

4 Qomr v. Stilhoell, 21 Beav. 182 : Seton, 94 ; Morgan A Davey, 46. Btit our Court has no such

practice.

5 Finch v: Lord Winehilseaj, 1 Eq. Ca. Ab. 2, pi. 7 ; and see ante,

(') 6 Vcs. 250 ; see also Lord Shipbrooke v. Lord IIinchingbrook,Vi Ves.387 ; Beard v. Earl o/Powit, 2-
Ves.S. 399.

1830

PAYMENTS AND TIIANSFERS (JUT OF C'OUHT.

f

Ui 6

o .

■; J

sideration, made the order. In Lcgard v. Hoihica,^ a petition was
presented in a very old cause, '^ and from the title of the petition it
appeared that all the plaintiffn and defendants were tlien dead.
By the decree, liberty to apply had been reserved upon the death
of a certain tenant for life : whose death gave the petitioner a right
to the fund. Notwithstanding the complete abatement of the
cause, Sir Lancelot Shadwell, V. C, in the first instance, directed
an inquiry, and afterwards made an order for the paj'ment of the
fund out of Court.

The mere dismissal of the bill also is not a reason for refusing
to pay the fund out of Court to the persons entitled f and where a
sum has l)een paid into Court by the plaintiff, to abide the result
of certain proceedings at law sought to be restrained by the suit,
it will not be kept in Court, after the dismissal of the bill with
costs, for the purpose of answering the defendant's costs.*

*

Where there are several persons entitled for life in succession to
a fund in Court, the Court usually directs the interest to be paid to
the first tenant during his life, and a further order must be
obtained on his death f but where a husband and his wife are so
entitled, payment will be directed to them in succession, and the
payment will be continued to the survivor, on proof by affidavit to the
Accountant-General of the death of the other.*^

In the case, also, of a corporation sale, the interest will be
ordered to be paid to the holder of the office for the time being.^

Payment of interest will also be directed to the trustees of
charities and their successors ; and if trustees are more than two
in number, it will be directed to be paid to them, or any two of
them f and 'A there are two only, it will be ordered to be paid
to them, or either of them ;'* and this is a convenient form of

1 v. C. of Kiiglaiid, 20 July, Is44, cz i-eUitiune Mr. Tripp.
•2 Reported mi tlio beariiiif, 4 Uro. C. 0. 421.

3 Wright V. MllclicU, 16 Yes. 2W\ ; Taylor v. Waters, 1 M. & C 2(50, 271.

4 Floclctoii V. r<:(tkc, 12 VV. R. TSi), Y. C. VV.

i> Si'ton, 70; but xeo Jic Brent, 8 W. R. 270, iM. R. , wliere the order was extended to a .successive

tenant for life,
(i lie How, 15 Jur. 2Ufi, V. C. K. H.

7 Seton, 70. For form of order, see lb. 08, No. 3 ; see also Atturney-General v. lirandreth, 1 Y. & C.

C. C. 200, 203; Ex parte Arehbinhnp of Canterbury, 2 Do C>. k S. 365; Attorney-General v.
Vint, 3 De li. a: S. 704 ; lie Pearce, 24 Heav, 491.

8 Attorney-Genrral v. JJrickdale, 8 Ma&Y. 223.

0 He Clinton, 6 Jur. N S. 601 : 8 W. R. 492, V. C. W.

PAYMENTS AND TRANSFKUS OUT OF COUKT.

1831

on WRH
ition it

dead.
B death
a rifilit

of the
iirected
fc of the

refiiBinf;
where a
le result
the suit,
bill with

jcssion to
)e paid to
must be
ife are so
and the
ivit to the

will be
)eing.''

lustees of
than two
Iny two of
Ito be paid
It form of

to a successivf

ireth, 1 V. & C.
lify-General v.

Older : for, if the whole number of trustees join in a power of
attorney, the Accountant-General will pay, upon proof tliat any
two are living : whereas, if the order directs the payment to be
made to the trustees and the survivors or survivor of them, the
death of any who may have died sin(!e the last payment, and the
survivorship of the rest, must l)e proved, before payment will be
made.^

A fund payal)le to the Crown will be ordered to be paid to such
persons as the sovereij^n may, by sign-manual, appoint.-

A fund payable to a married woman, as the personal represen-
tative of a deceased person, will be directed to be paid to her as
sucli personal representative ; but her husband will be required
also to sign the Accountant-General's book."

I

A fund belonging to u corporation aggregate will be ordered to

be paid to any person named in the petition, if the petition is
sealed with the common seal ; and no power of attorney or verifi-
cation of the seal is necessary.* Tf there is any officer of the
corporation to whon: ^he fund is properly payable, it will be ordered
to be paid to such officer for the time being, on proof b}' affidavit
that he sustains that character.-''

As a general rule, the Court will not make an order for the pay-
ment out of a fund to any other person than the person or persons
entitled thereto. Where, however, the fund is small in amount, or
has to be divided amongst so many that the share of each would
be small, and consequently the expense attendant upon each sepa-
rate receipt would be important, the Court will order payment to
the solicitor having the conduct of the proceedings, or to one of
the parties, upon his undertaking to distribute the fund among the
persons entitled ; " but a written authority, signed by the persons
interested, must be produced stating that they consent to the fund

1 Seton, m ; uiid sue J/'frri/x v. Smith, 11 W. R 479, V. C. K. : U<: Cliiitnii, li Jur. N.S. 601. 8 W. R.

492, V. C. W. ; Jlraii/nrtI v. XcttU'ship, 10 W. K. 204, V. C. S. , where mort^aj^e money wiw, on their
l>etituin, directfil to he paid out of Court to the inortgaKecs, or one of them, thouyph trustees only of
the fund. For form of order,seu Seton, G7,No. 2 ;and see Jilxpartc SltntHxhin}/ Huttpit(it,dllare,
App. 45.

2 Tinnkiiis v. Lane, 2 W. 11. 340, V. C. S. :{ Sctott, 602 ; see pout.

4 Ex parte Lotulon .t- Chatham litiilwaii Compaiiif, 8 W. U. 03(j, V. C. W. ; He Dartmouth <!• Torhay

Hailiiay Company, 0 W. R. 601), V. c;. K. ; Se'ton, 1074.

5 iSie<o?», 7(>. For form of order, see i6. 68, No. 5.

6 For form of order, see Seton, 142, No, 4.

^':

IIH'M

PAYMENTS ANP TRANSFERS OUT OF (JOURT.

Leinj^' ho paid ; ' and the signatureH to the authority should bo
voriHfd by atfidavit.' In the case of persons out of the jurisdiction,
this hist requirement has however been dispensed with.-'' If the
amount payabk^ to eacli person exceeds 10/., such an order will be
refiiHed, except under very special circumstances."'

Where a rep;ular power of attorney, authorising a particular per-
son specifically to receive the fund in question, has been duly
executed, the Court will, however large the amount, upon proof of
the due execution of the power, and that the same is still in force,
order payment to the person so authorised.^ In such a case, per-
haps, strictly, the application ought to be by the attorney, as well
as by the party."

A general written authority by a party out of the jurisdiction -
*to a solicitor in England, to take any proceedings in a suit in
Chancery that might become necessary for obtaining, out of Court,
his share of the fund in the suit, was held not to entitle the;
solicitor to apply by petition for payment of the share to him ; '
but a general written authority, by a foreigner and his wife resi
dent abroad, to a solicitor in this country, to take all necessary
measures for obtaining payment to the wife of a legacy, which had
"been paid into Court under the Legacy Duty Act, was held, upon
the petition of the husband and wife, to authorise payment to the
solicitor.*^

A power of attorney, or other written authority is necessary
to authorize the payment of money out of Court to the solicitor,
even though the parties to whom it is coming are numerous
und not resident in America. The additional circumstance of

1 liramlUag v. Ilutnhlc, .lac. 48 ; Kelxnll v. Mlntun, 2 Heav. 361 ; Arin-imnn Utock/nuii 11 Jur
97, V. C. K. B. ; Hear v. Smith, r> De U. & S. 92 ; A nun. . f> Jur. N. .s. :a5.' . C. W. ; Thomat v
Joncx. 1 Dr. & Siu. 134.

■> Doiriiing v. Picken, Kiiy, Ai)p. 1,

S StaincKV. OiJTard, 20 Beuw iS4. Wliere a fund only amounted fn , lie Court, on thi icitor

personally undertaking duly to apply it, dis))ensed with the vt, -ation of the isitfnaliuo of a
foreijfii notary, before whom an affidavit had been sworn abroad ; Ma 'ine v. B<. :ter, 13 W. R. 128,
V. C. K.; and see ante.

4 Brandlinqv- Humble, Jae. 48 : Hawkins v. Dud, 1 Hare, 146; lie MorrUon, '■ Sim. 42 ; Middle-

tun V. Ydimqer, 17 Jur. 664, V. 0. W.

f) Hill V, Chapmnn, 11 Ves. 239 ; Bailey v. CoUett, 18 Bea\. 179 ; 7?;r parti' De nranmont, 13 Jur.
354, V. (' K. ; see also Kiddill v. Farnell, 3 Sni. & G. 428 : 3 Jur. N. iS. 7t<() : and 22 & 23 Vic. cli.
Wh, sec. 2(1. For a case where payment was ordered to a per.son holding a j^eneral power of attor-
ney, see Cai r v. Kantabrook, 2 Cox. 390.

« Fell V. JoiifK, 17 Beav. 521.

7 Waddilnvr v. Taylor, 13 Jur. 1023, V. C. Wij.'rani. '

5 Ex parte De lleaumont, ib. 354, V. C. E.

I'AYMKXTS AND TRANSFKHS OUT OF (.'oifRT.

1833

:>uld bo

idictioii.

If thf

: will bt!

liar per-
en duly
proof of
in force,
ase, per-
, as well

isdiction -
L suit in
of Court,
ititle tho
0 him ; '
vife resi
[lecessary

licli liad
d, upon

nt to the

lecessary
solicitor,
lumerous
tance of

, .... 11 Ji'i-

ThoiiMti V

_ tin iL-itcir
Bii;iii>Uiiu of ;>
, 13 W. R. 12»,

42 ; Middh-

mont, 13 Juv.
2 & 23 Vic. cli.
)<)wer of attoi-

the money having been realized from the sale of property niortfija^ed
to secure negotiable debentures, which were in the i)()KHeHHion of
the solicitor since the institution of tlie suit, was held not to dis-
pense with the necessity of a power of attorney.^

A fund in Court which has been produced by the sale of a
settled estate may l)u ordered to be paid out to a tenant in tail,
without his beinu; required to execute a dis(aitailinjj; deed pre-
viously :^ he must, however, make an affidavit that there are no
incumbrances.-* In like manner, a fund in Court representing the
real estate of a married woman may be paid out, without her
executing an acknowledged deed."*

A fund will not be ordered to be paid out to iiii adniii»istrator
nd litcm.^

Where a person entitled to a sum not exceyding '101. had died
intestate, it was ordered to be paid out to the person who would
have been entitled to take out letters of administration, without
requiring them to have been actually granted."

Under special circumstances, an infant's legacy of small amount
has been ordered to be paid to its father.''

An order for the payment or transfer of a fund out of Court
should always be entitled in the cause or matter to the credit of
which the fund stands ; and the title of the cause or matter, and
the account, as stated or referred to in the order, must agree with
the Registrar's certificate.**

A fund may be ordered to be transferred from one cause to
another, upon a petition or motion entitled only in the former

1 Hwan V. Marmora Iron ll'orfrx, 2 Cham. Rep. 155.

S Re. Stewart, 1 Sni. & G. 32.; Hoivrxi v. Sowry, 0 .lur. N. S. 337 : 8 VV. R. 33!), V. C. S. : Ite South
Eastern liailwaii Compaim, 30 Beav. 215 ; Re Holden, 1 H. & M. 44.1 ; 11" Jloldeu, 10 .lur. N. S.
308, v. C. S. ; Xottleu v. Palmer, 11 .Fur. N. S. !)68 : 14 \V. R. 170, V. C. K. In Re WatMii, 10
Jur. N. S. 1011, althnuifh the Lords .Ttistiees made the order, they expressed some doubts whether
the i)ractioe wius consistent with the I'Mnes and Rec(»erles AboHtion Act (3 vV 4 Will. IV. ch. 74) ;
see also Re Ttildeu, i) Jur. N. S. 942 : 11 W. R. 869, V. C. K. ; and ante.

3 Thornhill v. Milbank, 12 W. K. 523, V. 0. K. ; and see Ord. XXXIV. 3 ; and form of order, Setn,,,

.124. No. 0.

4 Re ElUnon, 2 Y. Jc C. Ex. 528 ; Re Wnrthington, Seton, 1079 ; Re Haijen, 9 W. R. 769, V. f. K. ;

Pdllaclc V. Jiirminghain, Wolverhampton A- Storir Valley Railwai/ Company, Re Clarke, li ,Tur.

K. S. 7 : 13 W. R. 401, V. 0. S.; and ante.
r> Williainiiv. Allen, S2Tiiea,v. 650; ante.
ti Collendarv. Teasdale. 3 W. R. 2s9, V. C. K. ; King v. Ixaacxun, 9 VV. U. 369, V. C. S. ; Re Cabil,

3 W. R. 280, L.JJ.: Hiahigx v. Iliaings, 2 H. & M. 32.
7 WaUh V. iVahh, 1 Drew. 64.' 8 Seton, 73 ; and see ante.

i'fc'

1834

PAYMENTS AND TRANSFERS OUT OF COURT.

cause. 1 An order to pay over a fund to cortain persons who are
named therein, is incidentally a determination that other person h
who are not named are not entitled.-

»

It will he f^onvenient here to introduce the orders relating to tlio
payment of moneys out of Court, as well as those regulating the prac-
tice in th'e" office of the Eegistrar. It is substantially the same as
the English practice. Order 355 provides that " Money is to he
paid out of Court upon the joint cheque of the Ev^gistrar and Ledger
Clerk, countersigned by one of the Judges, and not otherwise."

Order 356, that " The person entitled to a cheque is to produce
and leave with the Ljdger Clerk, the orders and reports entitling
such persons to the money, and is to file a pnecipe in the form
set out 'in Schedule 0." Order 357 that "If the Ledger Clerk
finds the party entitled as mentioned in the pnecipe, he is to pre-
pare and sign the ^eque ; and he is then to attend the Eegistrar
with the cheque and the necessary papers ; and the Eegistrar, after
examining the papers, and verifying the party's right to the cheque
is to add his signature, after which the same is to be counters igned
by a Judge." Order 358 that " The orders and reports, produced
as aforesaid, are to be re-delivered to the party entitled thereto,
with the cheque."

Order 359 points out the various books to be kept. It provides
that " The following Account Books are to be kept, relating to
money in Court, or invested under the authority of the Court :

" I. A Book of Directions to the Bank to receive money.
"II. ABookof Ohecp.ri.
** III. A money Journal.
"IV. A money Ledger.

"V. A Stock Journ"^

"VI. A Stock Ledger.

"VII. A Balance Book.

" VIII. A Book as to the Mortgages and Investments, other than
Dominion Stock, made under the authority of the
Court."

1 Weeding v. Wading, IJ. & H. 424.

2 Sheppani v. Sheppard, 33 Beav. 129.

I .

PAYMENTS AND TRANSFERS OUT OF COURT.

183o

wlio are
person H

ng to tlio
theprac-
! same as
' is to be
id Ledger
.vise."

) produce
J entitling;
the form
ger Clerk
is to pre-
Registrar
itrar, eiter
the cheque
nterfigned
, produced
id thereto,

Order 360 provides that " The Book of Directions, and the Book
of Clieques are respectively to be in the same form as hitherto, or
in such form as the Judges from time to time direct or approvo.
The Cheques are to specify in the body thereof the amount of inter-
est, if any, payable therewith ; and the directions and cheques
are respectively to be numbered consecutively." Order 361, that
" The Money Journal is to show the sums paid into and out of
Court from day to day ; and is to be so arranged and kept that at
the foot of each page will appear the total amount in the Bank
assuming all cheques to have been presented."

Where money has been paid into Court, as and for the price or
value of land required by a Railway Company, the Court will not
ujDon ex parte motion, order it to be returned to the company.^

1 lie 0. S. <t //. R. W. Co., .(• Cnttnn, 4 Cirant, 101.

A %. Iff

'ii^^j^i- '

:^fe:

t provides
•elating to
)ourt :

[.:-i

mey.

other than
ity of the

ieav. 129.

1836

CHAPTEE XLV.

PRODUCTION OF DOCUMENTS.

f

Q

It is the practice of the Court of Chancery to allow a party to
apply before the hearing of a suit, for the production of documents,
relevant to the matters in question, which are in the possession or
power of the opposite party. This power to order the production
of documents arises out of that general jurisdiction for the purpose
of discovery which, in all proceedings in Equity, constitutes an
important feature : and, in some instances, forms, as it were, the
very foundation for the interference of the Court. So far as this
jurisdiction relates to what is required to be stated fully upon an
answer, and to the disclosure of facts within the defendant's know-
ledge, the subject has been already discussed ; ^ but it still remains
to inquire, briefly, into such principles relative to discovery as
may serve to explain the right to inspect deeds and writings, and
the rules of practice regulating applications for their production.

As the plaintiff's privilege to apply for the production of docu-
ments is a part of his general right to discovery, it may be con-
venient to state the proposition in which this right is accurately
expressed. According to Sir James Wigram, in his Treatise upon
the subject : " It is the right, as a general rule, of a plaintiff in
Equity to exact from the defendant a discovery, upon oath, as to
all matters of fact which, being well pleaded in the bill, are material
to the plaintiff's case about to come on for trial, and Avhich the
defendant does not by his forrp of pleading admit. "^ It is obvious,
from the terms in which this proposition is worded, that the right
to discovery is not unlimited. In order to explain fully the extent
to which it applies, it is necessary to investigate, what, upon any

1 Ante.

J Wigram on Disc, p. 40, et seq. ; see also AttorneyGeiK ral v. Thompfim 8 Hare, 106.

PRODUCTION OF E,CUMENTS.

1837

given state of the pleadings, are material facts to the plaintiff's
case about to come on for trial ; when a fact may be said to be
well pleaded; and what the defendant, in every case, admits by
his form of pleading? Many of these p^ibjects have been discussed
in former parts of this Treatise;^ and will be found fully explained
in Sir Juries Wigrniu's work upon the subject. It is sufficient
here to state, that tliL' general principles relative to discovery
apply, as well to applications for the production of documents, as
to the direct disclosuiv' of facts by an answer.

The right of the plaintiff to obtain a knowledge of the contents
of documents in the defendant's possessi(m was formerly exercised
by the bill being so framed as to call upon the defendant to set
forth the short contents of the deeds in question, or to produce them.
If, then, upon the coming in of the answer, the defendant admitted
the possession of certain deeds, and described them so that they
could be identified, the Court, unless sufficient disclosure had been
made of their contents by the answer, would have ordered them to
be produced.- The expense of setting out the contents of a deed
in the answer in some respects modified this practice ; and it
became the custom for the plaintiff' to charge generally in his bill,
that the defendant had deeds and documents relating to the
matters in question in his possession. Upon this charge, inter-
rogatories more or less searching, according to the nature of the
case, were usually founded : so as to extort irom the defendant a
clear admission of the possession of the required documents ; and
if such an admission were obtained, it became comj)etent for the
plaintiff to apply for an order that the defendant might produce
the required documonts.^

The present practice, however, is different. Order 134 provides
that " The plaintiff or defendant may at any time after answer, or
when the application is on behalf of t lie plaintiff, after the time for
answering has expired, obtained an order of course upon pnecipe
requiring the adverse party to produce, within ten days after the

1 See ante.

■1 Atbjiin V. W'-ig>: 14 Vt's. 211, 2i;i ; Lnrd Rldoii, in PrIncHsx of Wales v. Kiirl of Liverpool, 1

Swanst. 123 ; iiiij see Sdincivillc v. Marlcai/, 10 Yes. 382, 3S7 ; Unsworth v. tt'oodcock, 3 Madd.

432.
:< Bettisnn v. Farringdon, 3 1'. Wins. 363 ; Tyler v. Dmi/ton, 2 S. iS: S. 309 ; Kvans v. lUchard, 1

Swanst. 7.

■■ '; I ! ■ '

4*-. ■

m^

, '1

IH.SS

PRODUCTION OF DOCUMENTS.

service thereof, all deeds, papers, writings and documents in his
custody or power, relating to the matters in question in the cause
under oath, and to deposit the same with the clerk of Records and
Writs, or a Deputy Registrar of the Court, for the usual purposes."
Order 136, that " The order shall not require i)ersonal service. If
the party required to ohey the same has a solicitor, it is to be
sufiticiont to serve the same upon the solicitor." And Order 135
til at '• Neither plaintiff nor defendant is to be hound to produce, in
pursuance of such order, any deed, paper, writing, or document
which a defendant, admitting the same ])y his answer to be in lii.s
custody or power, would not be bound to produce."

s^dii

• ■••■ ki o

An order obtained by a defendant before he has filed his ansAViT.
unless by special leave of the Court, is irregular and will be dis-
charged. When a demurrer has been tiled, the plaintifi" is not
entitled to an order to produce, pending the argument of the
demurrer.^ A note disputing the amount claimed as due, filed in ;i
mortgage suit, is not an answer and does not entitle the defendant
to an (U-der of course for production by the plaintiff.- The orders
just referred to are in substance similar to the Order of 31st May,
1850, referred to in Nichol v. Elliott, where it was held that what-
ever discovery a defendant would have been bound to give hy answer
with respect to documents in his possession, must now (1852) be
furnished by the affidavit, in answer to a motion, to compel pro-
dv 'ion under the 31st Order of May, 1850 : and the ground upon
which he relies to excuse non-production must be stated with the
same particularity. When, therefore, a party filed a bill claiming
title as heir-at-law of an intestate, and called upon the defendant
to produce deeds, &c., and in answer to a motion to compel produc-
tion the defendant put in an affidav it stating that the deeds in liis
possession did not prove the plaintiff's title, without furnishing any
description so as to enable the Court to judge of the effect proper to
be given to this general allegation, such affidavit was held not to
be sufficient, and the production of the documents was ordered.-' As
a general rule, a plaintiff in Equity, is entitled to a discovery not
only of that which constitutes his own title, but also of whatever is

1 Jieidv. Fialdirin, V. C. Esteii, 22 Auffust, ISOl.

2 RichardKan v. Ueaitprf, 2 (Ihaiii. He\\ 54.

3 Nichol V. Elliot, a Grant, 53H.

PRODUCTION OF D(JOUMENTS.

1839

lilts ill his
i the cause
ecords and
purposes."
lervice. if
it is to be
Order 135
produce, in
• document
to be ill his

his answer,
will be dis-
iiitiff is not
lent of tile
le, filed in a
le defendant
The orders
)f 31st May,
I that "what-
le by alls^^■el•
)W (1852) ])e
compel pro-
Trouiid upon
ed with tile
)ill claiming
le defendant
Qpel prodiic-
deeds in hip
rnishing any
ect proper to
held not to
rderedJ' As
iscovery not
whatever is

material to repel the case set up by the defendant ; and as a part
of that discovery, to the production of such documents as are
material for the same purpose. Where, therefore, a bill wjis filed
by a person claiminf? under a devisee, and in opposition to a motion
to compel the production of deeds the defendant swore that the
alleged testator had not made any valid will, it being sworn that he
was not of sound mind when the supposed will was executed, the
Court ordered the deeds to l)e produced.'

A plaintiff filed a bill against his assignee's representative for an
account charging that certain mortgages then in his possession,
and apparently belonging to the assignee's estate, in reality were
part of his estate. On being served with the usual order for pro-
duction of documents, the plaintiff' filed an affidavit objecting to
produce the mortgages, on the ground that they were held by the
assignee, the plaintift"'s trustee, and that he had a lien on them for
moneys expended by him on account of the properties covered by
them. The affidavit also described certain other documents in the
nlaintiff's possession generally. The answer denied, on informa-
tion and belief, that the mortgages had ever been the property of
the plaintiff. Upon the jipplication of the defendant an order was
L'ranted requiring production of the mortgages, and for a more par-
ticular affidavit.^

Three members of a vestry being appointed a buil(iing commit-
tee, and by it, one of the three, treasurer thereof: the treasurer
'oeing a sub-agent cannotbe comiielkd, in a suit by a member of the
vestry, on behalf of himself and all other members except such
treasurer, who was the defendant, to produce papers in his hands
as treasurer, the other members of the committee being necessary
parties — ♦S'cwWc, where a defendant admits in his answer, the posses •
^ioll of documents, and in answer to an order to produce files an
affidavit excusing production, the answer and affidavit must be
I'ead together.^

It is, therefore, no longer necessary that the defendant should
admit the possession of documents in his answer, before pro-
duction can be obtained : and, although production can still be

c:.x;-

m

1 Laidor v. Murdimm, 3 Oraiit, 553.
- lUiudes V. SieUi, I Chain. Itcp. 131.

3 Manning v, Ctibitt, 1 Cham. Rep. 177

1840

PRODUCTION OF DOCUMENTS.

f

Q

ki 6

obtained on an admission in the answer, exceptions thereto, on the
ground that the defendant has not fully answered the interrogatory
as to documents, will be discouraged.^

Where discovery from the plaintiff, either concerning matters of
fact, or the contents of documents, was necessary to a defendant
for the purpose of enabling him to comjilete his defence to tlio
case sought to be established against him, he could, in general,
only obtain such discovery by means of a cross bill."- Upon such
a bill being filed, the plaintiff in the original suit, in his character
of defendant to the cross bill, became liable to the application of
the same rules, concerning the production of documents, as a
defendant in any other case. An answer to a cross bill camiur.
however, in general be obtained until the original bill has been
fully answered ; and, not only must a ful] answer in the ordinary
sense of the term be placed upon the record, before an answer to
the cross bill can be enforced, but the plaintiff in the original suit
will be allowed time to answer the cross bill until after the defen.
dant has complied with an order for production of deeds made in
the original suit.^

It will be borne in mine that this practice is altered ; for Order 126
provides that a defendant may claim by answer any relief against
the plaintiff, which such defendant might claim? by a cross bill.

The affidavit, on production, is a substitute for discovery on
interrogatories ; and a party is entitled to such discovery up to the
latest possible date. Where an affidavit has been sworn, before the
service of an order to produce, it w^as held to be irregular and
insufficient, and a new and better affidavit ordered to be filed.*
Under an order to produce, taken out by one defendant, other
defendants have no right to compel production or inspection. A
motion for a further affidavit by a defendant, under such circum-
stances, was dismissed with costs.^

1 Rochdale Canal Company v. Kinr/, 15 Beav. 11 : 9 Hare, App. 49, n. ; Law v. London Indisputable

Company, 10 Hare, App. 10; Barnard v. Hunter, 1 Jur. N. S.1065, V. C. S. ■,Kidgery. Worswick,
6 Jur. N. S. 37, V. C. W. ; Piffard v. Beeby, 1 W. N. 18 : 14 W. R. 303, V.C. K. ihut see Hudson y.
Grenfell, 3 Giff. 388 : 8 Jur. N. S. 878.

2 See Potter v. Potter, 3 Atk. 710 ; Pickering v iiigby, 18 Ve.s. 484 ; Princess of Wales v. Loni,

Liverpool, \ Swanst. 114, 123 ; City o J' London v. Tom son, 3 Swanst. 265, n. (b) ; Mieklethwait v.
Moore, 3 Mer. 292, 296 ; Shepherd v. Morris, 1 Beav. 175 : 3 Jur. 104; Taylor v. Heming, 4 Beav.
235 : 6 Jur. 766 ; Bate v. Bate, 7 Beav. 628, 537 : 8 Jur. 232 ; ante.

3 Holnus V. Baddeley, 7 Beav. 69 ; and see Taylor v. Heming, 4 Beav. 235 : 5 Jur. 766.

4 Kennedy v. Royal Insurance Company, 3 Cham. Rep. 489.
B Seymour v. Longworth, 3 Cham. Rep. 112.

PRODUCTION OF DOCUMENTS.

1841

to, on the
Brrogatorj

matters of
defenclaiit
jnce to the
n general,
Upon suoli
3 cliaractir
plication <il'
lents, as II
)ill cannot.
has been
tie ordinary
1 answer to
•riginal suit
r the defeii.
ads made in

.r Order 126
flief against
■OSS bill.

iscovery on
l^y up to the
L, before the
Regular and
be filed.*
Idant, other
Ipection. A
ich circum-

Mon Indisputable
tidgcr V. Worstokk,
1 hut see Hudson ^

lo/ Wales V. Luni
1 ; Mieklethwait v.
iHeming, 4 Beav.

1 766.

Where production is sought from a corporation aggregate, the
affidavit is to be made by their clerk or secretary, or some other
officer acquainted with their documents.^ Where the clerk of a
company, who was made a defendant, as such, for purposes of
discovery, swore that the documents were in the custody of the
governing body of the corporation, and were not accessible without
their leave, but did not state that leave had been refused him, the
affidavit was held to be insufficient.

A defendant may, if the Court thinks fit, be required to make
an affidavit as to documents, although he has already set them out
in his answer.^ An order to produce cannot regularly be taken
out after decree. An order so taken out on prcecipa, was, on motion,
set aside with costs.^

The applicant will not be prejudiced by delay in making the
application ;* and his own statement of his case will be assumed to
be true for the purposes of it.''

Order 137 provides that " The affidavit to be made by the party
who has been served w^ith the order may be in the form or to the
effect set forth in schedule G., hereunder written,"

This form should be adhered to, and only varied in so far as may
be necessary to meet the circumstances of the case.* All the
plaintifts required by the order to make the affidavit must, as a
general rule, join in it.^

Any objections or reasons against the production should be clearly
and distinctly stated in the answer or affidavit;^ which must also
describe the documents with sufficient distinctness to enable the
Court to order production, if the objections should be overruled ; '*

1 Stfod, 1043 ; and see /yrtif V, Londini IndinpiitahleCompninj, 10 Hiire, App. 20; Ranger v. Great

Western Railway Compan^i, 4 De U. & J. 74 : 5 Jur N. S. 1191.
•' Ilanslip V. Kitten, 1 De G. .1. & S. 440 : » Jur. N. S. 432.
i Cottle V. Vansittart, A Cham. Rep. 390.

4 Rochdale Caiuxl Company v. King, l.") Beav. 11 : 9 Hare, App. 49, n. ; Parkinson v. Chambers, 1

K. & J. 72 ; but see Duke of Beaufort v. Taylor, 2 Hare, 245.

5 Gresley v. ifousley, 2 K. & .f. 288 : 2 Jur. N. S. 156.

6 Rochdale Canal Company v. King, U> Beav. 11 ; Mansell v. Feeney (No. 2), 2 J. <& H. 320, 323 ;

Woodhatch v. Freeland, li W. U. 398, ^^ C. K. ; Bloxam, 46.

7 Walker v. Kennedy, 5 W. R. 390, V. C. K.

8 Rochdale Canal Company v. King, ubisup. ; and see Uardman v. Ellames, 2 M. & K. 732, 745 ;

Bloxam, 46.

9 Lazarus v. Mozley, 5 Jur. N, S. 1119, V, C. S. ; and see Atkym v. Wright, 14 Yes. 213,

,^:

1842

PRODUCTION OF DOCUMENTS.

and tlie affidavit must be made, although the defendant has good
rea.s<uis against tlie production.^

A notice of motion for an order absohite for non-j)roduction in
the Registrar's office, under Order 31, of 6th February, 18G5, requires
personal service by analog}' to the former practice by order nUi."
Where a party admits documents to be in his possession he is prima
facie bound to produce them, or assign a sufficient I'eason whj' he
should not. But where a party refers in his bill to documents
which otherwise he would not be liable to ])roduce, he does not by
so doing create a liability to produce them.^

Where books were in actual use by defendant, the court refused
to order him to make verified coj)ies of entries relative to matters
in question for use of plaintiff, but where it was sworn on the part
of the plaintiff, and not denied by the defendant, that the latter
had documents so relating, which were not mentioned in his
affidavit, he was ordered to produce them.

Where a bank agent refused to ])roduce on the ground that he
had no documents in his possession but as such bank agent it was
held, that he ought to set out in his affidavit what documents were
s(3 in his possession. And it appearing from his answer that he had
taken a conveyance to himself as trustee for the bank, and that he
liad certain documents not mentioned in his affidavit, he was
ordered to produce them, although the bank was not a party to the
cause.^

Where the plaintiff had given a mortgage on a steamboat, and
the mortgagee afterwards sold the vessel, and the question was
whether he was to be charged with the amount of the purchase
money, or merely with certain securities received on the sale in
lieu of such amount, the defendant, (the mortgagee's executor),
admitted the possession of a copy of a letter from the mortgagee,
refusing to join in a sale, and of an opinion of counsel relating to the
same matter, but alleged that these documents did " not relate to
the plaintiff's title, or the case made by the bill. Held, that the

1 Ruuibvldv. Forteath, 3 K. k J. 44 ; Lazarus v. Mazley, 5 Jur. N. S. 1119, V. C. S. : Quin v. Rat-

cliff, 6 Jur. N. S. 1327 : 0 W. R. «5 V. C. 8. ; Setoii, 1047.

2 Dickson v. iJicknon, 1 Cham. Hep. SCC. But by Order 296, of the Con. O. O., service of tlie notice

4 Macdoiiell v. McKay, Ibid. 141.

of motion on the solicitor i.s sufficient
3 Green v. Ameij, 2 Cham. Rep 188.

PRODUCTION OF DOCUMENTS.

1843

as good

ction ill
i-equires
[' nld.-
s prlmo
why lie
cuineuts
s not by

b ix'fused
) matters
L the part
,he latter
d in liis

cl that he
snt it was
ents were
lat he had
id that he
he was
,rty to the

iboat, and
stion was
purchase
jhe sale in

executor),
Inortgagee,
ting to the
relate to
that the

Quin V. Unt-
ie i)f tlie notite
Ul.

plaintiff was entitled to production, as the plaintiff's case and that
of the defendant were so interwoven and inseparably connected,
that nothing could relate to one without also relating to the other.^

Where a conveyance is produced upon notice, by an adverse
party, who claims an interest in the cause under the deed so
produced, the party calling for its production is not bound to prove
its execution.^

In a case between vendor and purchaser, where a defendant who
was called on to produce a certain letter, whirh he refused to
produce on the grounds " that the same is and contains an opinion
from the said Magrath, who was then acting as my counsel and
solicitor in the matter of the purchase of the lands and premises,
upon my title to the said lands and premises, and because the
same is a communication between myself and my solicitor, relative
to the said title." Held, a privileged communication, and a motion
to commit for non-compliance with a notice to produce was refused
with costs.^

Letters passing between agents of a party to the cause, although
wiitten as between themselves in confidence, are not privileged
communications, or protected from discovery. Such lettei-s are
considered in the custody or power of the party in whose interest
tliey are written and must be produced. Such party cannot with-
liold part of their contents by cutting out portions of the letter.*

A party called on to produce documents must state distinctly in
his affidavit on production, what are the documents he seeks to
protect, and the grounds on which he claims them to be privileged.''

If required, an extension of the time for making the affidavit may
be obtained upon motion at Chambers : which must be served on
the party seeking production.

The party ordered to make the affidavit must seek the necessary
infjrmation from his present or former agents.* A statement as

1 Haitiilton v. Street, 1 Grant, 327. 2 Chisholm v. Sheldon, 2 Grant, 178.

3 Wilson V. Brun*lcill, 2 Cham. Rep. 147. 4 Wiman v. Bradntreet, ibid. 77.

5 Wright v. Western Inmranee Company, 2 Cham. Rep. 403.

6 Earl o/ Olengall v. Frazer, 2 Hare, 99 ; Mcintosh v. Great Western Railway, 4 D« G. k S. 044 ;
and Bee Oabbett v. Cavendish, 3 Swanst. 207, n.

92 V

1844

PRoDUf'TFON OF DOOUMKNTS.

Qc.

to thu purport and effect of" the documents, made on the faith of
information received from other persons, will not protect tliom from
production.'

Where tlic party filin<jf the answer or affidavit claims tliereby to
protect doeuments from ]»r()duction, and the opposite party con-
siders he is entitled to have them produc(>d, th(! proper mode (^f
raising the question is hy notice of motion for their production, and
not, in the case of an affidavit, by a motion to consider the sufficiency
of the affidavit.^ On hearing of the application, the Judge will, if
necessary, inspect the documents liimself, and determine whether
any of them should be produced.^

If the affidavit is considered to be informal, or insufficient, from
any cause : such as, not containing a clear admission or denial of
the possession of documents; or such a dencription of them that
the Court can enforce its order : a further motion to consider
the sufficiency of the affidavit should be madd ; and if ifie affidavit
is held to be informal or insufficient, the party seeking production
may obtain at Chambers an order, expressing that the Judge is of
opinion that the affidavit is insufficient ;* and upon production of
such order to the Record and Writ Clerk, together with the order
directing the affidavit to be made, and an affidavit of due service
thereof, before the affidavit as to documents was filed, he will seal
an attachment or other process for disobedience to the order, as if no
affidavit had been filed.'"' It is usual, however, for the Judge, on
holding an affidavit to be insufficient, to give the deponent a few
days* further time to file a full and sufficient affidavit : in which
case, a clause to that effect is inserted in the order;" and such time
may be further extended, on his special application by motion.
Where time is thus given, process of contempt cannot be issued till
such time has expired ; nor, if the deponent files a further affidavit

1 Manby v. Bcwieke (No. 3), 8 De G. M. & G. 476 : 2 Jur. N. S. 071.
•2 Mcholl V Jones, 13 W. R. 451, V. C. W.

3 For fonn of order in such case, see Seton, 1042, No. 8.

4 The order need not be served. For form of order, see Seton, 1043, No. 10.

(> Where the order directing the aifidavit to be made has not been duly .served, the further order
holding the affidavit to be insufficient should also repeat the directions of the former order as to
fllinji^ a full and sutticient affidavit, and depositing- the documents in Court, within a limitc I time,
or directing their production out of Court ;and mnst, in such case, be indorsed, served, and dis-
obeyed, and an aifidavit of such service and disobedience be produced to the Record and Writ
Clerk, before process of contempt can be issued.

« See Seton, 1043, No. 10.

PRODUCTION OF DOCUMENTS.

1845

faith of
jftin from

/hereby to
»arty con-
• moflo of
iction, and
sufficiency
Igre will, if
le whether

eient, from
• denial of
them that
to consider
ifie affidavit
production
Judge is of
oduction of
h the order
due service
he will seal
der, as if no
Judge, on
bnent a few
in whicli
such time
by motion,
■e issued till
ler affidavit

Ithe further order
Irmcr order as t(i
liii a limltc 1 time,
T uervejl, and dis-
I Record and Writ

till the insufficiency thereof has been determined by the Judge.
Where a further affidavit is filed, the same course may be i'e|)eate<l
till a sufficient affidavit is made ; but whore the Judge is of opinion
that the deponent is willfully evading the order, he may refuse him
further time, and thereby leave him in peril of process of contempt
for his disobedience.

The party from whom production is sought cannot be cross-ex-
amined on his affidavit or answer;^ and no other evidence as to his
possession of tlie documents can be receive<l:- altiiough it is sug-
gested that a document has been fraudulently omitted from tlie
schedule ;"' but he may be required to make a further affidavit,
stating speeitically whether he has or has had a particular document
in liis possession, and what he has done with it.*

Our practice is different. Order 140 provides for the examina-
tion of a party, either plaintiff or defendant, at any time after
answer, and before and at the hearing. And Order 208 provides for
the cross-examination of any jjorson who has made an affidavit in
the cause. These orders are fully set out in tlie chapter on motions
and petitions, ante.

Where the api)lication is founded on an answer, which, taken l)y
itself, would have shown a sufficient admission of possession, the
party has been permitted to show by affidavit that the documents
in question are so circumstanced as not to be in his possession,
custody, or power,"' or that the required documents come within
some of the special grounds of exemption.**

The party ordered to produce the documents may conceal, by
sealing up, such portions of the documents as he may by his affidavit

V

! Manby v. Dewieke, (No. 2), 8 De G. M. & G. 470 : 2 Jur. N. S. 072 : overruling Kay v. f!mith, 3 W-

R. 022, Ii.JJ. ; 20 Beav. 567.
i AddiK V. Campbell, 1 Bcav. 2r>8, 2(il ; Edwards v. Jone^l Phil. 501 ; Lamb v. Orton, 1 Drew. 414 ;

Richards v. Watklm^, C Jur. N. S. 168, V. C. W. ; and see Maiisell v. Feeney, (No. 2), 2 .1. & h'

320.
:i Reynell v. Sprye, 1 De 0. M. .'s: (J. 050 : 15 Jur. 1046.
4 Richards v. W^'atkins, 0 Jur. N. S. H'S, V. C. W. ; WUlett v. Thistelton, 1 N. R. 52, M. U. ; ^i)el v.

Soel, 1 De G. J. & 8. 468 : 9 Jur. N. S. 589 ; Westminster <Se Brymbo Colliery Companu v. Claiiton

12 W. R. 123, v. C. W. ^ ■ J ,

> ilorrice v. Sioaby, 2 Beav. 500; Smith v. Massie, 4 Beav. 417; Gardner v. Danqerfield, 5 Beav 389 •

Burbidge v. Robinsun, 2 MoN. & G. 244.
1) Tyler v. Drayton, 2 S. & S. 309, 311 ; Uughes v. Biddulph, 4 Russ. 190 ; Parsons v. Robertson 2

Ktcii, C05 ; Llewellyn v. Badeley, 1 Hare, 527, 530: 6 Jur. 705; Cwrtf v. Ctird, 1 Hare, 274' 6

•lur. 307, L.C. ; BUnkinsop v. Blenkinsop, 10 Beav. 143.

i. ■>'■'[

■*■■■■,

184G

PR()D1JCTI0N OK norUMENTS.

swear to be privile;j;od from production ;^ and tlie order for produc-
tion will, on his application, bo qualified in this manner, oh well
where it is founded on an auswcir," as where it is not. Where th«'
right to seal up is admitted to be claimed in this manner, a special
application for leave to seal up may be made by motion.^ In a case
of this kind, even thougli there are strong grounds for suspecting
that the party has sealed up matter that ought to have been dis-
closed, the Court is concluded by the oath of the party from giving
further discovery.* If, however, his affidavit contains statements at
variance with each other, or if the document itself shows a discre-
pancy in his statements, it seems that it would be quite cimsistent
with the rules of the Court to get at the truth, by compelling him
to give iliscovory ;^ and in such a case, the Court will, if necessary
unseal the documents and examine them, in order to see whether
the applicant is entitled to inspect the portions sealed up."

A defendant cannot compel the production of documents by the
next friend of the plaintiff f nf»r can he, before decree, obtain the
production of documents in the possession of a co-defendant;**
although, after decree, he may do so.^

Where the defendant to an information requires the production
of documents in the possession of the relators, he must apply to the
Attorney-General."*

The course of procedure for obtaining the production of docu-
ments after the hearing, is the same as that already described fot-
obtaining their production before the hearing ; and a party who has
made a full discovery of documents before the hearing, may "be or-
dered to make a further discovery after the hearing.^^

1 Gerard v. Pennwick, 1 Swanst. 633 ; Curd v. Curd, 1 Hare, 274 : 6 Jur. 307, L. C. ; Maiuell \

Feeney, (No. 2) 2 J. & H. 320 ; Talbot v. Marshfield, 1 Law. Rep. Eq. 6 : U Jur. N. S. 901. V. C. K.

2 Ihid. For fomi of order, see Seton, 1040, No. 2.

•.\ Talbot V. Marnhflcld, 1 Law En. 6. For form of order, see Seton, 1043, No. 9.

4 Sheffield Canal Company v. Sheffield and liotherham Railway Company, 1 Phlll. 484.

'. Botcet V. Femie, 3 M. & C. 632 ; Greet^toood v. Greenwood, 6 W. R, 119, V. C. K. ; and see Weiit-

Viininter <b Brainbo Colliery Company v. Clanton, 12 W. R. 123, V. C. W.
ti Caton V. Leiou, 22 L. J. Ch. 946, M. R. ; La/one v. Falkland Inlands Company, 27 L. J. Ch. 26, V

C. W.

7 Ilardwick v. Wriaht, 11 Jur. N. S. 297 : 13 W. R. 560, V. C. S.

8 Attorney-General y. Clapham, 10 Hare, App. 68 ; Uardieiek t. Wright, 11 Jur. N. S. 297 ; and see

Wynne v. Hwnberston, 27 Beav. 421 : 6 Jur. N. S. 5.

9 Hart v. Montefiore, 30 Beav. 280 : 8 Jur. N. S. 350 ; Botcen v. Pearson, 9 Jur. N. S. 789 : 11 W

R. 819, v. C. S.

10 Attorney-General t. Clapham, 10 Hare, App. 68, 70 ; and see Attorney-General v. Payne, M. R. in

Chambers, 25 March, 1869, Reg. Lib. 1858, A. 1256, where the affidavit was directed to be made by
the relators, or one of them, or the informant's solicitor : he consenting;.

11 Hamlip v. Kitton, 1 De O. J. & 8. 440 : 9 Jur. M. S. 482.

)roduc-
18 well
ere thf
special
I a case
ipccting
;on dis-
i givinj?
leiits at
, discre-
msistent
ing him
ecessary
whether

ts by the
)tain the
udant ; **

•oduction
>ly to the

of docu-

M'ibed for

who has

lylae or-

; Mannell \
8. 901,V.C.K.

[and 8^ Went-
L J. Ch. 25, V

1 297 ; and nee

Is. 789 : 11 W

lyne, M. R. ii>
I be made by

PRODUrriON OF U0CUMKNT8.

1847

A claimant coming in under a decree can, in the same manner,
obtain production trom the parties to the cause of the documeutn
material to his case; which are in their possession ;^ and may, con-
versely, be ordered to produce all the documents in his custody,
possession, or power relating to his claim.^

It is not necessary that the documents should be in the actual
corporeal possession of the party ordered to produce them : it is suf-
ticitint if he has the right to deal with them ;•* and, therefore,
where they are in the possesson of his agent, production will be or-
dered : the principle of the Court being, that the possessiijn of the '
agent is the possession of the party himself* It soems, however,
necessary, that the person in whose custody th(; documcntfi are
should hold them exclusi" e\y for the party against whom tho appli-
cation is made : for, according to Lord Cottenham, when documents
are in the possession of A., B. and C, you cannot order that A. shall
produce them ; and that for the best possible reason, namely, that
he could not produce them f and, upon the same principle, where
the pei*son who holds them is the agent of other persons as woll as
the party against whom the motion is made, it seems that no order
can be maile for the production of such documents." This principle,
however, does not extend, so as to exonerate a party from making a
discovery, hy answer, of any knowledge he may be able to obtain
by inspecting documents in the joint jiossession of himself and
others ; for a party is bound to inspect, and answer as to the con-
tents of, all documents that are in his possession or power ; and all
which he has a riglit to inspect, provided he can enforce that right,
are in liis power.^

The ditlereuce between ^ordering a party to produce a ilocument
in which he has only a joint possession with otliors, and (ordering

1 Ante; lie McVengh, McVeayh v. Croall, 1 De G. J & S. 30!) : 9 Jur. N. S. 240 ; and sue Siwland

V. Steer, U Jur. N. S. 69« ; 13 W. R. 1014, V. 0. K. ; Dent v. Dent, 1 Law Hup Kq. im, M. R.
•i Ante ; lie Pine, Pine v. Jillit., M. K. in Chambers, 18 Nov. 18ti3, Rc|,'. Lib. B. 2207.

3 lieUl V. Lannlois, 1 McN. &l G. 027, 036: 14 Jur. 407, 409.

4 Murray v. Walter, C. & P. 114, 125 : 3 Jur. 719 ; Murrice v. Sivaby, i Heav. 500 ; Wriijht v. Mmjer,

0 Ve.s. 280, 281 ; Fenwiek v. Reed, 1 Mer. 114, 123 ; MfCann v. Ilccrc, 1 Hotjan, 129 ; anil see
Palmer v. Wriijht, 10 Heav. 234 ; Cnlyer v. Cvlyer, 9 W. K. 452, V. 0. K. ; Uixhiii) of Winchester
V. Bowker, 29 Bear. 479 ; h'arl of Eylintvu v. Lamb, 12 Jur. N. S. 45 : 14 VV. R. 170, V. 0. K.

5 Murray v. Walter, C. & 1'. 114, 124 : 3 Jur. 719 ; see Cridland v. tAird de Mauley, 13 Jur. 442, V.

C. K. B. ; Reid v. Lawjlois, 1 McN. .v O. (127 : 14 Jur. 407 ; Mi.rrcU v. Woollen, 13 Huivv. 100 : If-,
Jur. 319 ; Richardx v. Watkins, 0 Jur. N. S. 108, V. 0. \V.

6 l-'tpez V. Dvacim, 0 Beav. 254, 25s; Airey v. Hall, 2 Deti. & S. 4»9 : 12 Jur. 1043 \Kdnwndsv. Lord

f'o/ej/, 30 Beuv. 282 : 8 Jur. N. S. 552 ; see, however, Walhurn\. Inyilby, 1 M. k K. 01, To, TL"" :
;ind the ob.servatious of Lord Cottenhaiu thereon, in Murray v. Walter, C. & P. 125.

7 Td'ilor V. Ruiulell, 1 Phill. 222, 220 ; and see S. C. 11 Sim. 3!)1 ; 1 Y. & 0. C. C. 128 ; C. & P. 104 ;

Glyn V. Caul/cila, 3 Me.M. & C. 403: 15 Jur. 807 ; Penny v. Goode, 1 Drew. 474.

■ ■/■•".• 1

-^ib

184cS

PRODUCT [ON OF DOCUMENTS.

I

I

liiiii to disclose the result of his inspection of documents, which,
though not in his exclusive possession, he is still entitled to peruse,
has heen very clearly pointed out by Lord Cottenham, in the case
of Taylor v. Rundell} In that case he says : " It is true that tho
rule of the Court, adopted from necessity, with references to the
production of documents, is, uiat if a defendant has a joint posses-
sion of a document with somebody else who is not before the Court,
the Court will not order him to produce it ; and that for two rea-
sons : one is, that a party will not be ord'-red to do that which
he cannot or n>ay not be able to ;'- the other is, that another party,
not present has an interest ^n the document wJiich the Court oannot
deal with. But that rule does not apply to discovery : in which
the only question is, whether, as between the plaintiff and the de-
fendant, the plaintiff is entitled to an answer to the question, he
asks : for, if he is, the defendant is bound to answer it satisfactorih
or, at least, show the Court that he has done so as far as his means
of infoi-mation will permit." •' Where, however, the party has the
beuetit of a covenant for the production of documents, for the pur-
pose of manifesting has cnvn title, he cannot be compelled to obtain
an inspection, and disclose their contents, or obtain their produc-
tion, in order to establish a claim set uj) against himself, in a suit to
which the covenantoi' is not a party.'*

If the exclusive right to the possession is only prevented by the
document being retained by any agent or solicitor, the Court will
order production by the party: taking care to give him sutiicient time
to compel the delivery from the person wrongfully retaining it.'* The
consequeii'^e of this rule is, that it is not usually necessary to make
a solicitor a party to a suit because he has the title deeds of the party
in his possession : although cases may arise to render such a proceed-
ing advisable ; as if the solicitor withholds the deeds in his possession,
and will not deliver them to iiis client on his applying for them. ^'
''^'.^!iere the solicitor merely claims the ordinary lien on the documents
they must be produced •; and the Co^irt will not, in order to faci-

10 it p. 104 ; but se > W album v. Ingilhji, 1 M. & K. (31, 7i».
2 rrinccxK •/ Waleg v Earl - f Liverpuol, 1 Swniist. 12;{ : 1 Wils. 113.
:< (;. *C. 111.

4 nethell V. CatKon, 12 W. H. 200, V. C W.
.-. Taylor v. RvmMl, V. k V. 104, 113: 1 i'liil. 2/2,22.5.
(; Fenwick v. Heed, 1 Mcr. 114, 12:!; .>ii;i' (tnte.

1 Kx parte Shftir, .Inc. 272 : Hope v. Liddel, 20 Rcav. 4:!.';; 7 Dc 0. M. ct O. 331 : 1 .hir. N. S. «flu;
Lockrtt y Ciini, 10 ,lur. N. S. 144, M. 1!.; and sue /■'encnU v. Clarke, « Sitn. .S.

PIIODUCTION Ob' DOCUMENTS.

1849

which,
peruse-
iB case
lat the
to the
posses-
Court,
wo rea-
which
r party,
; os-nnot
1 which,
the de-
itioii, he
actorily
LS means
has thp
the pur-
;o obtain
• produe-
a suit to

by the
)urt will
ent time
it.-' The
■:0 makf
he party
proceed-
)Ssession,
them. ^''
)cuments
to faci-

lir. N. S. «6i;

litate their production, direct the party to pay the costs of the
solicitor claiming the lien.^

Documents not behmging to the party, but alleged to have been
lent to him by a })erson not a party to the suit, have been ordered
to be ])roduced. Thus, in a suit for tithes in the Exchequer, llie
plaintiff was ordered to produce documents in his possession, the
property of the vicar, though he was not a party : they beiug
required for the purposes of the examination of the vicar, from
whom the plaintiff had obtained them f and a party has been
ordered to produce documents which he has obtained from a third
])arty, and holds subject to an undertaking not to part with their
possession f but a defendant cannot require the plaintiff to produce
a document which has been furnished to him by another defendant,
\n the absence of the latter defendant : although it seems that,
where a covenant has been obtained for a specific limited purpose,
production cannot be withheld on the ground of an ini{)lied confi-
dence that it will not be used for any other purpose.^

In a .suit for an account oi" a partnership between two solicitors,
it was held to be no objection to an application for the production
of documents that the clients of the fir^n had an int(a-est in them ;"'
but when the documents were in possession of trustees, production
of them was refusoil in the absence of the ccMids (/ue truM.^

A party will not be ordered to produce documents, with the
})Ossession of which he has parted since the filing of the bill, but
before the time of making the application."

The mere circumstance of tlu? documeu's being abroad, is no
answer to an application for their production ; but, in such a case,
reasonable time will be given the party to bring them to this
country ; and if he does not comply with the order, the Court will
consider it the same as if he had had them here in the fir.st instance
and had refused to produce them.'*

1 WnnutUtifii v. Bardaii, U .Jur. 274, \'. C. K. li, ; sec also liintick v. GaiidAl, 10 Uciiv. 270 ; llin-

hUhji' V. Huhiimon, 2 AIuN. !cG. 244.

2 FnrriiKUix. Conpt'i; 11 I'rl. ."iln

■■'> I'enlccfhman v. Whitr, 2 \V, H. 380, M. H.

4 licjtnnMn \: Uodlce, 4 K. vt J. SS.

5 Unti'ii V. I'erkinn, 2 Hiiro, ,".40 : S .hir. 180 : see also liichardsun v, llaxtiniix, " Beav. :i.'>4.
•> Povfl V. I)iil])liin, 1 Drew. 222.

7 IhuhiiLjc V. Unbiimm, 2 MoN. iV (J. 244 ; ami >.ee Pfiineyv. Goodf, I Drew. 474 : 17 .Iiii-. 32.
•S Fartiuharmin v. lialfour T. \ R. 100 ; Frecmnii v. Fairlie, 3 Mer. 44; aiul see aiiti-.

r

1850

PRODUCTION OF DOCUMENTS.

Where the possession of the documents is admitted, but the
party claims to be exempted from producing them on the ground
tliat, under the particular circumstances of the case, he is unable
to do so, he must satisfy the Court, by evidence, that he cannot
obtain access to them ; and a mere statement to that etiect in his
answer or affidavit is insufficient.^

I

at

Q
Q

i

^t.

Where the application is founded on an answer, the plainti+f
must, as a general rule, be able to read from the answer an
admission that the documents are in the defendant's possession,^ at
the time the application is made f and that they relate to the
contents of the bill as it then stands.* Although the admission
must be contained in the answer, a plaintiff has been allon-ed to
verify by affidavit documents, neither admitted nor dcniet. by the
answer, which tended to establish the plaintitf s right to production.''

The applicant, having shown that the answer contains a suffici '
admission of the possession of documents, must also' show that they
are sufficiently described to enable the Court to specify which are
to be produced.^

Besides the reasons against the production of documents which
have been considered, there are also objections to their production,
arising out of the general principles which regulate the right to
discovery in Equity."

The general rule is, that when once it is admitted that the
documents relate to the matters in question in the suit, they must
be produced : unless they manifestl}' can have no bearing upon the
issue. Upon the question of relevancy, the Court accepts the state-
ment on oath of the party against whom production is sought;
but it does not accept his assertion upon the point whether they
will or will not estal)lish the a])piicant's case : that question being
one upon which the applicant has a light to the opportunity of

1 MerU-ni. v. Ila!,jl,, U \V. K. 7!»:;, I. ..I.I.

i Darwin v. Clani', S \cs. l.'JH ; l-:rskiitr v. Uur, •> t'cix, •lin.

:i Hconnn v. Midtaiul, 4 Miulil. .■1111. WhtTu tlio dutuiiiUiiit liail iliud siiicu filiin; his ;m^«yr, it «;is
held that a iicvv adiiiissidii imist ho procured tnnii his rcpruseiitiUivus, hi'fnro iinMiiictiun cuuld bo
ohtaincd !ij,^ainst thuiii ; ScuU v. W'luchr, 12 licav. .iWi; and sco lliibcrt.iim \. ,S/4firi'U, 1.. Ui'av. 277.

4 Uavcrrielii v. I'ijiikiii, 2 Phil. 202; and sue .{tUiriKydiiiei-dl \. ThoiiipKoii, S Hiuv. IIS: li'iiiii'U
V. Spn/f, 11 lieav. tU8.

t> Addin \\ Campbell, 1 liuav, 2.'>8, 2()1. ti Sci' Alkt/nx \. Wiiiiht, 14 \os. 21;!.

7 See ante.

PRODUCTION OF DOCUMENTS.

1851

'^^|

but the

e ground

is unable

he cannot

id in his

3 plaintiff
nswer an
3ssion,^ at
ate to the
admission
allo'v'ed to
ip( . L)y the
roduction;^

a suffici**nt

V that they

which are

lents winch
)roduction,
he right to

!d that the
, they must
jig upon the
;s the state-
is sought;
liether they
istion being
lortunity of

Lis iiiiswer, it \v;vs
liiiiictiini L'oulil bo
\rM. 1.. lii'iiv. -1".
livf, US: /i'".'/'""

lis. 21;{.

judging for himself.^ The party admitting the relevancy is, there-
fore, bound to produce the documents, although he denies that they
tend to prove the applicant's title,^ or he sets up a defence which
denies the applicant's whole title.^ This rule has been considered
to be impugned, by the decision of Lord Cottenham in Adams v.
Fisher ;* but that case seems to have been decided on the ground
that the documents did not appear to be material for the purpose
of the decree.^

If it clearly appears that the documents, although relevant, are
not material to the applicant's case,*' or that they are not neces-
sary or material to the question to be decided at ^he hearing,
production will not be ordered ; and it may be mentioned here,
that if the plaintiff amends his bill, and thereby alters the
issue, production will not be ordered upon an admission of relevancy
made previously to the amendment.^

Orders for production are only made upon two principles t secu-
rity pending litigation ; and discovery for the purposes of the suit ;
and will, therefore, he refused, where the order would be equivalent
to a decree in favour of the plaintiff. Thus, where the whole
object of t^^e suit was, that the plaintiff might be declared entitled
to a copy of a certain book for the purposes of his trade, a motion
for the production of the book was refused, on the ground that the
application sought an anticipated decree.*^ Where, however, the
suit was instituted for the delivery up of certain documents, it was
held that it was necessary that thev should be produced, for the
purpose of ascertaining whether thev were of such a character that

1 Mamcll V. Fceiwy (No. 2), 2 J. \- H. 320; ami see Tiiter v. Drat'/'on, 2 S. & S. 309, ;!10 ; S),\ith v.

Duke of lienufurt, 1 Hare, 507 ; Afld. 1 I'liill. 200: 7 Jiir. 1095 Attormni-Gcncrai v. Thoinpsmi,
8 Hare,' 106.

2 MaiMll V. Fremni (No. 2), 2 .1. ^vcll. a20.

:< Wiyram uu Uisc. 89, et Kf(j ; Shaiv v. Chimj, 11 Vos. 30;{ ; Sonicrfil!" v. Machai/, Hi Vis. U82 ; (fns-
wortli V. Wonrfcoch, 3 M.idii. 4:{2 ; live v. Hiehariiii 2 Heav. 30ri, .107 ; Ktltcftnis v. Jonfn, 1 Pliil.
501,500 : Marijiiix o/ livtc v. Glaiiwrijiinxlnrc Canal Ciniqutny ili. CSl, O.'-S : 9 ur. 1003 ; Ord
V. FaiiTi'tt, 14 Jiir. 4.'>() V. C. Wif,Tiim ; Aitornrii-Gencral v. Cuipui-atvin of /.oiulcn, 2 Mc:N. &
(!. 247, 25(i : U.Itir. 205 ; Ooodall v. JJItlc, I Sim. X S. 155, 101 : 15 .lur. .'iOO; Uvgden v. South,
3 .Jur. N. S. 7.S3, M. R. ; iiiitl see liirihn v. liigbii, 15 Sim. 90: 10 Jur. 120.

4 3 M. iS: e. 520, 540 : ami sue Turncy \. liayliy, 12 \\ . R. 033, L..M.

5 Sio observations nt Lunl L.viulluirst, in MaiipiiK of livtc v 'iliiiiioniiin.tliin' Vaaal Company, 1

I'liill. 0»1 ; ami in lAtncanter v. Uvoiri, ih. 352; and of Nir John Komilly, M. R., in BUhop of

Wii\ctuKler V. lloirkii; 29 Jiuav. 479.
(i Smith V. h'lwUnij, 10 .hir. 03, V. ('. {L ; Mcllarily \. llitchcoi;'.-, 11 Keav. 73. 77; Harford \. Heex,

16 Jur. OO;!, \ ! ('. Ia\. »'. ; Munxcll v. Feiut'i/ (Sn. 2), 2 .1. & H. 320; Furbex v. Taniirr, 9 Jur. N.

S. 455: a \V R 414, V, C. K.
7 Turiuy v finyli-ji. 12 W. R. 0:1:1, L.J J.
!> Uurcr'tickl \. I'liinon, 2 Pliill. 202 : .\tt<,,iii !i-<i< m-ral y. Thuiiijiaoti, 8 Hnre, 118 ; lleiniell v Spr)i>-,

11 Bcav, M».
'.* Liiitjen v. Sinijtuoii, 0 Matld. 29ti.

I

•f?

*•

1852

PRODUCTION OF DOCUMENTS.

the plaintiff was entitled to have them delivered up at the hearing
of the cause. ^

In suits to set aside deeds or legal instruments, upon the ground
of fraud or other equitahle circumstances, the plaintiff is not, from
reasons founded on the object of the suit alone, entitled to the pro-
duction of the instrument impeached by the bill :- for if he was, a
plaintiff, by merely filing a bill purporting to impeach a deed,
might, without more, exact production of it.-' Oases of this class
must, it is conceived, be governed by the general rules of the
Court, and not by any rules peculiar to the cases themselves.
Where the deed sought to be set aside is alleged by the plaintifi" t(
contain on the face of it, evidence of the fraud or other fact
upon which it is sought to be set aside, then, unless the defen lant,
by his answer or affidavit, expressly denies that the deed does
exhibit such evidence, it seems that an order will be made for it«
production/

Another case, in which the plaintift" is not entitled to production
of the documents, exists when the required documents are not
wanted for the purpose of proving the plaintiff's right to a decree,
but for the purpose of carrying into effect the decree sought to be
obtained. Cases of this kind must be distinguished from those
where the documents are required for a subordi-nate point in tli"
decree, but still for a point in the decree. In the cases now con-
sidered, the discovery is supposed to be, not for the purpose of
determining in any respect what the decree is to be, but for the
purpose of enabling the plaintiff to carry it into execution. Under
these circumstances, there is clearly no reason why the plaintiff
should inspect the documents before the hearing of the cause."
The case of The Attorney-Gcnevdl v. EUisonS' seems to be some-
what at variance with the foregoing principles. There, the general
object of the suit was to set aside two leases ; and a motion was
made for the production of four deeds, relating to the leases, admit-

1 Ij,iiIii /{I'l-i'kfnrd V. Di-ii'd-, 14 Beav. 387; luiil Kee liinhop of WinclieMer v. llowher, 'ZU Boav. 47!t
'2 lieA/nrd v." Wihhiiaii, Ki Ves. 4:i8 : nalcl, v. Si/min, T. A: U. 87 ; ri//<T v. Drayton, 2 S. k S. ;!0!t ;

liusDftmi V. lUalti'slci/, 0 Beav. i:Jl ; Dcmhi v. Crnnn, 11 Beav. 01.
■A See Crisi) v. Plftti'L 8 Beav 6'2.
4 Kenni'dji v. (iri'e)i, <S Sim. 6 ; and sei' Smti' v. LaHiner, 2 Y. & ('. K\. 257 ; S. ". }ioin. Lntiw r v

Xeate, 11 Bli;<li, N. S. 112 : 4 CI. & K. r>70 ; ami see ob.servatiims of Lord Cotteiilmin thoreoii

<-;hv<'i- V. Hall, 2 I'hill. 484, 490.
i") Winiain on Disc. 211 ; and see Timii'i/ v. Kaiihil, 12 VV. B. 033, I...JJ.
tl 4 Sin>. 2:W.

3 hearin;^

,e ground
not, from
) the pro-
lie was, a
:i a deed,
this class
3H of the
emselves.
)laiutiff t(
other it.iti
iefenl.int.
deed does
tide for its

production
;s are not
0 a decree,
kight to be
Tom those
loint in th"
now coii-
purpose of
ut for the
in. Under
|ie plaintiff
le cause.'
be some-
;he general
Inotion was
ses, admit-

liO Bcivv. 471t
li, '2S. & S. :i('i>;

iioin. Lntiii' f v
Iteiilmm thfrcoti

1

PRODUCTION OF DOCUMENTS.

1853-

ted to be in the possession of the defendants, and by the description
of them appearing to be assignments of the leases sought to be set
fVH^^le. Sir Lancelot Shadwell, V. C, ordered production : saying,
" If the Attorney-General succeeds, every portion of the legal estate
in the terms for 999 years must be assigned or surrendered, so that
the leases may be no longer set up : he, therefore, has a direct
interest in the deeds in the defendant's possession. They do not
relate solely to any separate and independent title of the defendant,
and therefore they must be pri)duced."'^ This case is criticised by
Sir James Wigram, upon the ground that the plaintift' could not be
entitled to know the contents of the derivative leases, until, by
proving his right to rescind the original leases (a purpose for which
it was not suggested that the der'vative leases could assist him),
he had established an interest in t'i(^ leases also.- ,

111 hiiany cases, the extent of discovery to which a plaintiff, at
tiiiy particular period of the cause, is entitled, depends upon tlie
state of the pleadings.'* Thu.., if a demurer to the whole bill is put
ill : as such a state of the record in itself is an admission of every
fact pro])erly pleaded in the bill : tlie plaintiff' has no right to any
discovery ; consequentl}'', no application for the production of docu-
ments can be obtained.^ So, also, if tlie defendant pleads a pure
affirmative plea — that is, if the defendant admit the whole case
made by the bill, but states some fact, not in any manner denied
by the bill, as a defence to the whole case — then the plaintiff has no
right to discovery.'' The effect of the state of the pleadings upon
the right to discovery has already been discussed ; ** and it need
now only be stated that, when discovery as to documents c\i\\ be
compelled, an order for their production can be made." Where the
defendant pleads to part of the bill and answers the remainder, tlie
application for production is often ordered to stand over until the
plea is argued.^

Another objection to the production of documents is, tliat they
relate exclusively to the case of the party objecting to the ]n-oduc-

1 4 Sim -lil.

;i As to the effect of amendment, see ante.

4 See ante, ami t'ases collected, Sctun, \Obi.
•") See ante, iuid wises collcutod, .SVfou, 10r>*.
T I'arkinnun v. Chainhi'rx, 1 K. A: .1. 7"i.

5 Bnclianan y Hodii^mii, 11 Huhv. ;i(ifS.

'2 Wigi-am, on Oisc. :il4.

'^g

H See Oiifr.

_£r^.

1854

PRODUCTION OF DOCUMENTS.

o

tion : if they relate to the case of both parties, they must be pro-
<luced ; ^ but liberty will be given to seal up those parts which do
not relate to the common ground.^

If the party against whom production is sought makes no case of
his own, but simply denies the applicant's title, he cannot escape
production on the ground that the documents only evidence his own
ease ; ^ and the mere use of the word title — the mere allegation that
the documents relate exclusively to the title of the party resisting
production — is of no avail, if that conclusion is opposed by the
character of the documents, or if it is not supported by specific
averments excluding 11 probability that the documents would
furnish evidence in support of the applicant's case : in such a case
the Court exercises its own judgment as to the effect which the
evidence may have.^ In order to resist the production of docu-
ments which have been obtained for the purposes of the defence to
the suit, it must be stated, and must appear, looking at the schedule
and the nature of the documents, that they do not relate to or tend
to show, not only the title of the plaintiff to the property to be
recovered, but the title to the relief prayed by the bill.^

The result of the cases on this subject has l^eeu thus stated : "If
it be, with distinctness and positiveness, stated in an answer that
a document fbrms or supports the defendant's title, and is intended
to be, or may l)e, used by him in evidence accordingly, and does not
contain anything impeaching his defence, or forming or supporting
the plaintiff's title, or the [)laintift''s case, that document is, I conceive,
jjrotected from production, unless the Court sees, upon the answer
itself, that the defemce erroneously represents or misconceives its
nature. But where it is consistent with the answerthat tlie document
may form tiie plaintiff's title or part of it. may contain matter sup-

1 Ante ; Siiiith v. DiUr uf ll-im/nrt, 1 Hare, :)0;, .".l'O ; Atfd. 1 I'liill. iOi* : TJur. lOHo ; uiul acv lloltoa

V. Corpiiratiiin <)/ Lioe/'imul, I .\l. <v: K. 88, 111 ; HuiTvU v. Sifhulxan, ib. (i80 ; Wrii/lit v. yenwii,
1 Drew. H44 ulii/d v. I'lifV't, 0 W. U. 421, V. <'. W. ; Hunt v. Elinvx, 27 Heav. 02: u Jur. N. S.
045. As t(i Mu f'jnii of iiHiiliivit, sou Manbii v, lU'wuice, (No ."i), S ]>e (i. .M. .Si »i. 470: 2 .)ur. N. S.
671. As ti> IMC ri!,'lit of ;i disliihcritod heir at law to imiductinii, see iMtlji Sli(iJ'/i'.sliurii v. Arrow.
mnith, 4 \'e^. 60; Jit'ini'lt v <Tlu/<>"tf), ;i Hare, iui', Wright \. ViriiDn, 1 iMvw. :i<-l ; lUinihuhl v
i'orteith, 'A 1\. ,S; .1. 44, 74s : :'..hir. N. 8. 057 ; Qiiin v. liatclif, 0 .liir. N. S. ]:j27 ; ;• W U. 05, V
C. S.

2 Eai-jy v. lAoifl, 'i k. .'.: .). .">4'.) ; hind v. Karl of Wight Ferri/ Cotnpaiii/, 8 W. K. .'■4U, \ . C. \V.
:i AUorncg-ixCiicral - Oar/toratititi o/ Londuii, 2 .MeN \ (i, 247, 2;ii» : 14 .lur. 20.').

4 llarri-x v, Harris, 4 Hare, IT'.t, IM : !) Jur. 80; ami s^t- itaniuis nf liiitr v. (iUuin rijnnislnr< Camd
Company, 1 I'hill. 081 : WJur. loo:^; f'rinw nj l4V«<»a v. LainOr, 11 Heav. •IVi-.Greenwoodv.drien-
f/ii..>/y f\ W" w I Kk v I* M.

unyang
wood, 0 W. K. no, V. c;. Ik
5 t'elkin v. Lord Herbert, It W. K. ~tM, V.l. K. : utki see Uandcf v. StaMfield, i |)e<J. iV J. 1

N. S, 778.

5 .Illi

t be pro-
which do

no case of
Lot escape
ce his own
;ation that
y resisting
Bd by the
oy specific
mts would
luch a case
which the
11 of docu-
i defence to
lie schedule
e to or tend
iperty to be

tated: ''If
iiswer that
is intended

Lid does not
supporting
, I conceive,
the answer
mceives its
e document
atter sup-

I5 ; ;uul SOI- liolton
'ri'jitt V. yi'i-non,
(;•>: u Juf. N. S.
470; -i.lur. N.S.
|,',v7rt/c,i/ V. Amw.
y.u-i ; lOiiiihohl V
: ;i W 11. 00, V

l-entvood V. Unen-
(i. \ J. 1: :'> •>"'

PRODUCTION OF DOCUMRNTS

1855

porting the plaintiff's title or the plaintiff's case, or may contain mat-
ter impeaching the defence, then, I apprehend, the document is
not protected; nor, I apprehend, is it protected if the
character ascribed to it by the defendant is not averred by him
with a reasonable and sufficient degree of positiveness and distinct-

ness.

" 1

A mere statement in the answer of a document which the party
is not bound to produce, '^ or a me^e reference to a document relat-
ing exclusively to the defendant's title J^ will not entitle the appli-
cant to its proti action ; but where a party states the effect of a
document relating to his own title, which he has in
his possession, and craves leave to refer to it for greater
certainty, it has been held that he is bound to produce it.* This
decision is criticised by Si)' James Wigram, on the ground of the
conclusive effect given to the reference in the answer : to the exclu-
sion of those considerations which, in other cases, are of the essence
of the question between the parties : namely, the nature
of the document, and the case appearing upon the whole
record f and, with reference to it. Lord Cottenham has remarked :
" It was certainly no new decision, and I was very much surprised
to hear any one treat it as such ; and when I came to look into the
doctrines laid down in the books, I felt no doubt upon the subject.
Where a party has thought proper to put his defence upon a par-
ticular document, he himself having introduced it and put it forward,
he cannot be permitted to make any representation of it, however
unfounded, which he pleases; but the plaintiff is entitled to see
whether the defendant has rightly stated it. It is because the
defendant chooses to make it part of his answer tliLt the plaintiff

1 Per Sir J. L. Kniji^ht Bruce, V. i'., in Cmnbe v. Corpuration nj London, 1 Y. & C. C. C. 031, Biil : 6

Jur. 571 ; see also S. C, before h. t'. , 10 Jur. 57 ; u.id 4 V. & C. Ex. 139 ; Bannatync v. Leader, 10
Sim. "230, 2^5; Prince nj Walcx v. Lambe, 11 Beav. '213; Attorney-Oeneral v. Corporation of
Lomlon, 2 McN. & (J, 247 : 14 Jur. 205 ; Stainton v. Chadwwk, 3 McN. & G. 5V5 584 : 15 Jur. 1130 ;
Cannock v. Jaunccy, 1 Drew. 497 ; Smith v. Barnex, 1 Law Rep. Eq. 65 : 11 Jur. N. S. 924, V. C.
\\ ; I'alch V. Ward 14 W. U. 166, V. C. S. As to tlie necessity of d'stinctncss, see Wa^ney v.
T,-iiipcst, 9 Beav. 407 ; J'eile v. Stoddart, I McN. & (;. 192, 19.'"): 13 Jvir. 373 ; Hunt v. Elmeit, 27
Beav. 62, 64: 5 Jur. N. S. 045.

2 Irlovi'r V. Hall, 2 Phill. 484.

:) Atkynn v. Wr^ht, 14 Vbh. 211.

4 llardinan v. KllamcK, 2 M. & K. 745; see also Bettison v. Farrinydon, 3 P. Wins. 304; Atkyim v.

Wriijht, 14 Ves. 211, 214; Evan» v. Richard, 1 Swaiist. 7, 8; Ix)ril Eldon in The Princess of WaUi

V. flu Karl of Liverpool, 1 Swanst. 114, 121; Welford v. Stainthotpe, 2 Beav. .587 ; Bel«h*m r.

f'enrral, 10 Jur 772, V. 0. W. ; Mcintosh v. Great Western Jiailinai/, 1 McN. & G. 73: 13 Jur.

ITit; <;i(iver v. Ifall. 2 Phill. 484; Latimer v. Neate, 11 Bliarh, N. S. 112: 4 CI. & F. 570, and

olwLTvations of Lord Cuttenhaiu thereon, 2 Phill. 490.
.1 Wiaram on Disc 3 J2 ; and see Howard v. Hohinton, 4 Drew. 522 : 5 .lur. N. S. 136.

T'St'

ii

ia66

PRODUCTION OF DOCUMENTS,

is entitled to see it : not becaune the plaintiff has an interest in it.
The principle is, that a defenJant shall not avail himself of that
mode of concealing his defence."^

A further objection to the production of documents arises out of
the privilege extended to professional communications. This
subject 1ms been already considered with reference to the riglit of a
defendant to demur to discovery sought from him/ or to decline
giving it by answer.^ There does not seem to be any differenc*^
whether the question arises upon applications for the production of
documents, or upon exceptions to an answer, or a demurrer to dis-
covery; audit appears that all letters written, and cases stated for
the opinion of counsel, by a party or his solicitor, are privileged
from production in any suit respecting the same subject-matter,
and involving the question to which such letters and cases relate :
although, at the time they were sent or stated, no litigation had
arisen, or they were sent or stated with reference to a previous
litigation between other persons relating to the same subject-
matter.'* Where the client and solicitor were both defendants, and
the solicitor claimed the privilege but the client did not object to
the production, the documents were ordered to be produced.''

Cases and letters in whicli the plaiutifi' and defendant are jointly
interested must be produced ;" and so, in a suit by a cestitl r/ue trust
must cases and opinions taken by the trustee for his guidance in
the administration of the trust, and not for tlu^ piu'pose of his own

1 Adamn V Fifher, ^ M. iV C. ;i'\o, MS-.i^vcixUuMcInloiih v. Great Wcstt'in liailwaij, 1 McN. \ (i.

73 : 13 Jur. 179.

2 Avte. •■'. A lite.

4 Boltou V. Corporation of Lirerpnol, 1 M. *; Iv. 8><, 01 ; Grccnmigh v. Gaakell, ib. 9S, 101 ; FUnht v.

liohiiixon, 8 Beav. 22, 33 : S Jur. SS« ; Jiorce v. Trye, !) Beav. 31 ; Cnlli'y v. liichnrds, IO'Huhv.
401 ; Combe v. Coriwration of London., I Y. .t 0. 0. 0. 031 : (i lur. 571 ; Clagett v. I'hillips, i Y,
& 0. C. C. 82 : 7 Jur. 31 ; Lord Wn'-iintiham v. Goodrickc, 3 Hare, 122, 124 ; Jl .«.';i v. Jacknon,
9 Hare, 387; Herring v. Clohenj, 1 Phil. 91 ; Ilohiifii v. Baddrtey, ib. 470, 480: 9 Jur. iSii ;
Pearxey. Pfarse, 1 De O. & S. 12, is ; Glya v. Cnulfteld, 3 McN. & G. 4(i3, 471 : 15 Jur. «07 ;
Hawkins v. Gathercole, 1 Sim. N. S. 1.50 : l.'» .lur. ISO'; Eiithoveii v. Cobb, 2 De (1. M. i% li. «:i2 ;
17 Jur. 81 ; Thompmn \. Fnlk, 1 Drew. 21 ; ifnnxer v. Dix, 1 K. i^- .1. 451 : 1 Jiu-. N. S. 4(i« ;
Lafonf V. Falkland Julandu Compuny (No. 1), 4 K. ti J. 34 ; liluck v. Gahwurthi/, 2 Giff. 4.'>:i,
15fi: 7Jur. N. S. 01; Ford v. />f Pontex, 5 Jur. N. S. 993: 7 VV. R. 299, M. U.'; Charlton v.
Coniiiben, 4 Giff. 372: 9 Jur *T. S. TilU ; Morningtoa v. Mormmiton, 2 J. & H 097; Frarrr v.
Williams, 11 Jur. N. S. 902, V. ('. S. : and oases collected, .SV^o/t,' 1059 ; but see Goodall v. Little,

I Sim. N. S. \h'i: 15 Jur. ;<09. Tlie |>ri-. ilei,'o exists in the ease of a foreij,'!! legal adviser : Ijim-
bury V. linnbury, 2 Beav. 173; Lnirmice v. Campbell, 4 Drew. 485: 5 Jur. N. S. 1071;
and also where the jirofes.sinnal adviser had, at the time of the communication, without tlie
client'.s knowlcdj,'e cea.sed to practice : Galley v. llichardis, 19 Beav 401

5 Gaskell v Chambers (No. 2), 20 Beav. 303 : and see lilenkinnop v. Bleak insop, 2 Phil. 607 ; Kfvi:.

II Beav. 134 : 11 Jur. 721.

,« Attorney-General v. Berkehii, 2 J. & W. 291, 294; P.eimell v. Spri/e, 10 Beav. 51, 55 ; Wardi v.
n'arde, 3 McN. & O. 365 : IG Jur. 759.

PRODUCTION OF DOCUMENTS.

1857

an interest in it.
himself of that

3nts arises out of
nications. This
B to the right of a
in,'or to decline
be any differenci"
the production of
^ demurrer to dis-
d cases stated for
or, are privileged
le suhject-matter,
and cases relate :
no litigation had
■nee to a previous
the same subject-
bh defendants, and
i did not object to
le produced.''

"endant arc jointly
>y a cedid qua f^'ust
\r his guidance in
lurpose of his own

\tfni Railway, 1 McN. \ <-■

Klh'y V. Richard sip BtM\.

I ib. 470, 480 : 0 Jur. -M* .
I: G. 4<i;5. 171 : 15 .Kir. f> ,
ICohh -I De <l. M- "''^ ^'^ *'!•: '
I .1 4M : 1 -Inv. N. S. KiO ;
I V. Onlswnrtliii, 2 Giff. 4.^,
Ir -'OS) M H. ; CharWiii v.
I 'aj'^ H cm ; fVaivc V.

lorei!,'ti legul a.lviser : A."»-

l 485 : 6 -'ur- ^- ^' ^'^l, '
lommunication, wiUv.ul tin

\i!^inmp, -2 Phil. 607 ; Rev.'.
llO Beav. r,l. 5.^ ; ^'ard,' v.

defence ;^ but a mere claimant is not entitled to the production of
cases or opinions taken by the trustee for the purpose of enabling
h:m to choose between different classes of claimants, under the trust
instrument.- The privilege also extends to communications between
the solicitor of the party and a third person, which refer to the
Bubject-matter in dispute, and are written in anticipation of or
pending the suit ;•* and also to connminications between the party %
or his solicitor and an unprofessional agent, if the circumstances of
the case have rendered the ('m|)loyment of the agent necessary,'*
and to all notes and observations of counsel on their briefs ; but the
briefs themselves, so far as they consist of matter which is publici
jiii'is, and counsel's endorsement or note of any order made by the
Court, are not privileged.''

In order to avail himself of this objection, the party objecting
must distinctly swear that he belieres the communications to be
privileged ; and it is not sufhcieiiu for him to say that he is advised,
and insists that they are so.*'

Where a solicitor is chai'ged with fraud, the ]n-ivilege does not
attach to documents in his posses.sion relating to the subject-matter
of the suit ;^ and where a solicitor was cliarged with having been
a party to a fraud committed by a deceased client, of whom there
was no personal representative, he was ordered to produce all docu-
ments relating to the transaction, whether liis own or those of his
deceased client.*^

A party may also object to the production of documents on the
ground tliat their production would tend to involve him in a crimi-
nal charge f or to subject him to a penalty or forfeiture.^'' Objections

1 Wynnii v. IliDriberUoji, 27 Beav. 421 : 5 Jur. N. S. 5 ; ami wee H'^oods v. Woods, 4 Hare, 83, 8(i ; !)

Jur. 015; Brown v. Oakshotf, 12 Beav. •2r>2; [U'vaynen v. Robvnmn, 20 Beav. 42; Talbot v.
Marshjield, 13 W. R. 885, V. C. K. ; and also TwjwM v. Hooper, 10 Bea\ . 348.

2 Wynne v. Jluinberston, 27 Beav. 421.

3 Simpson v. Brown, 33 Beav. 482.

4 Reid \. Lnnglois, 1 McN. & (i. 627, 638 : 14 .lur. 407 : Steele v. Stewart, 1 Phil. 471 ; Carimael v

Powix, ib. 087 ; LaJ'one v. Falkland l.<lands Company (No. 1), 4 K. & J. 34 ; Hooper v. Gumvi

2 .1. & H. 002 : Walxham v. Stainlon, i H. & M. 1 ; aiul see Ctiurton v. Frewcn, 2 Or. & Sin. 3i)0
f) Walsham v. Stainton, 2 H. & M. 1 ; M<-h,>U v. ./ones, 13 W. U. 451, V. C. W.
tj Balijuy v. Broiidliurst, 1 Sim. N. S. Ill ; ami sec ante.

7 See ante. 8 Fenver v. Williauis, 11 Jur. N. S. 902, V. C. S.

0 Rico V. Gordon, 13 Sim. .")80 : 7 Jur. 1070 ; Waters v. Karl of Sha/tcaburu, 12 Jur. N. S. 3 ; 14 W

R. 2r.St, V. C. S.
10 A partj camiut decline to make the usual affidavit as to iloouinoiits on the ground that lie is lialile

to penalties uiidor the 13 Eiiz. eh. 5 (Act a.s to fraudulent convevance.s) : Ruiin v. Bunn, 12 \V. K.

."iei L.JJ.

J

1858

PRODUCTION OF DOCUMENTS.

of this kind are governed by the same rules, wiiether made to the
production of documents upon a demurrer to discovery, or upon
exceptions to an answer, and have ah-eady been considered.^

In an ordinary suit for redemption, wliere there is no dispute
concerning the fact of the mortgage, the Court will not, before
decree, allow the plaintiff to inspect the mortgage deed. Where,
however, the defendant does not submit to be redeemed, but denies
that he is a mortgagee, he cannot assert the riglits of a mortgagee,
and claim, upon that ground, to withhold production of the deeds
until payment has been made.'^ Where the only question in dispute
was the amount the plaintiff had to pay, production of the (indorse-
ment upon the, mortgage deed, which was stated to afford evidence
on that point, was directed.^ A mortgagee is not bound to |)roduee
his mortgage deed for the inspection of the mortgagor, when there* is
no question of tith^ in dispute."*

A mortgagee cannot refuse production of the mortgage deeds of
the persons interested in the mortgage money on the ground that
the mortgagor may possibly be injured by the production.'* • Wheie
a person was mortgagee and also executor and trustee of the testa-
tor in the cause : although he was allowed to withhold ])roductiou
of liis mortgage deed, and otherjdeeds relating to the mortgaged estate
he was compelled to })roduce certain accounts and writings relating
thereto, which it was stated might affect the testator's general
estate.^

Where any documents are ordered to be left or deposited,
whether for safe custody, or for the purpose of an in(j[uiry in
Chambers, the same are to be left or deposited in the Record and
Writ Clerks' Office or with a Deputy Registrar ; and it would
appear that it is not the course of the Court to order production at

1 AiUfi.

2 See n'igtam on Disc. 287 ; and uee Seate v. Latimer, 2 Y. & C. Ex. 257 ; S. ('. Latimer v. State,

11 Blijrh, N. S. 149 : 4 01. & F. 570 ; and see 2 Phil. 490 ; QUI v. Eytnn, 7 Be*v. 155 ; (freentcood
V. Hothwell, ib. 291 ; Critp v. I'latel, 8 Beav. 62 ; Browne v. Loekhart, 10 Sim. 421 : 4 Jur. 167 :
JohnHtun V. Tucker, 11 Jur. 382, V. C. E. ; Cannock v. Jauncey, 1 Drew. 497; Jones v. Jone-^,
Kay, App. (i ; Lewis v. Davies, 17 Jur. 253, V. C. S. ; Howard v. Robinson, 4 Drew. .522 : 5 Jur.
N. S. 13e ; Dridgewater v. D^ Winton, 9 Jur. N. S. 1270 ; 12 W. R. 40, \'. C. K. ; Freeman \
Butler, 33 Heav. 289 ; Smith v. Barnes, 1 Law Kep. Eq. 65 : 11 Jur. N. S 1)24, M. R. ; Patch v
Ward, 12 Jur. N. S. 2 : 14 W. R. 166, V. 0. S. For casus of impeached d;>':iinionts, see ante.

3 Phillips V. Jioans, 2 Y. & 0. 0. C. 647. 4 Bell v. Chamberlin, 3 Cham. Rep. 429.
u Gowjh V. Ojfley, 5 De O. & S. 653.

6 Freeman v. Butler, 33 Beav. 289 ; and see Gibson v. Hetottt, 9 Beav. 293.

PRODUCTION OF IXXUTMENTS.

1859

,() the
upon

lispMte
before
W^here,
denies
tgagoe,
i deeds
dispute
mdorse-
vidence
produee
there is

deeds of
iiid that

. Where
lie testa-
oductiou
ed estate

relating
geni>ral

eposited,
[uiry in
;ord and
t would
ction at

«r V. Statt,
r (iree.nvooA
I 4 Jur. 167 ;
\ies V. Jcfne-^,
522 : 5 Jur
[FruettMn v
Y ; Patch V
I see ante-
lep. 429.

any other place, except upon the consent of the party in whose
possession they are.^ Upon the application, liowever, of such j)arty,
the Court will frequently order production at some other place, for
the sake of convenience.^ And whei-e the i)arty states that the
books and papers ari' in constant usu in his business, and neces-
sary for that purpose, and that the deposit of them in (Vmrt
will be productive of injury to him, tlie Court will, in the first
instance, give credit to that statement, and ojder that they be
produced at the place of business at which they are in use ; and
if the applicant does not obtain a satisfactory inspection of them
there, it is open to him to apply for a further ordei-.'' Acting upon
this principle, the Court will order the production at«the place o\
business of the party's solicitor ;■* V)ut as such an order is inade for
the. party's convenience, the Coujt will not allow his solicitors to
make any chai'ge against the a[)plicaut for the inspection;'* and
where, at the request of the applicant, they make any copies he
may require and is entitled to take, they are only entitled to the
usual law stationer's charges."

Where an order for production at a solicitor's office has once
been made, production at the same place will, in the absence of
special circumstances, be directed by all subsequent orders.*

The order directs production to the party, his solicitor, and
agents ;*^ ^but it seems that these words mean, his solicitors in
the cause, and some person professionally connected with them, or
his general agents ; and, accordingly, do not authorize production
to an accountant or agent specially employed for the particular
purpose of inspecting the documents f but if required by the circum-
stances of the case, an order directing the ])roduction to such a special
agent will be made.^"

1 Maund v. Allies, 4 M. & C. 603, 507 : 3 Jur. 309.

2 The rule adopted by the Ma-ster of the Rolls is always to order production outoi' Court, unless fiome

8])eoisl grounds are shown by the party seekin;,'' production for ordering the documents to he
deposited in Court.

3 Oraiie v. Cooper, 4 M. & C 263 ; Gardner v. Dangerjield, 5 Beav. 389 ; Prentice v. Phillipt, ->

Hare, 152 ; Mayor of Berwick v. Murray, 1 McN. & G. 530 : 13 Jur. 1003 ; Care.w v. Davis, 21
Beav, 213 ; Talbot v." Marshfield, 1 Law Rop. Kq. 6 : 11 Jur. N. S. wn, V. 0 '' ; Mertem v. flaii//,,
Johns. 786 ; Hooper v. Quinm, 2 J. fi U. 002. .,

4 For forms of orders, see Seton, 1040-1042. , •

h Woodroffc V. Daniel, 10 Sim. 126 ; Flnckton v. I'eake, 12 W. II. 1023, V. O. W. ; „ ,

B Kennedy y. Geort/e, 6 W. R. 218, V. 0 S. ; and see Prentice v. Phillips, 2 Hare, l.">2.
7 Groves v. G^nrces, 2 W. R. 86, V. C. W. ; and see Mfrtctw v. Hnigh, .fohns. 735.

5 See forms of orders, Seton, 1040, et wq.

9 Hartley v. Hartley, 1 Drew. 233 : 16 Jur. 1062; .'^xmimerji<'til v. Prichard, 17 Beav. 9 : 10 Hare,
App. 68 : 17 Jur. 361 ; Coleman v. West Hartlepool RaiUmy Company, 5 I^. T. N. S. 266, V. V.
W.; Draper v. Manchester (t Sheffield Hailwai/ Cutnpany, 3 r>e G. F. * J. 23 : 7 Jur N. S. ao.

10 BoniMtlet \. Taylor, 1 J. & H. 383 : 7 Jur. N. S. 328.

93

w^ \^ ^

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

I.I

12.8

m^

lis

'- 5«k< M2.2

i^ 144 ""
lit

lU

LS 12.0

11.25 i 1.4

i:

ik

11^

HiotDgraphic

Sciences

Corporation

23 WEST MAIN STREET

WEBSTER, N.Y. M5S0

(716) 872-4503

7i

\

o

y

1860

PRODUCTION OF DOCUMENTS.

m

Where an undertakii'^ to produce the documents to a party has
been given, the production must bo made to his solicitors and agents*
unless that is guarded against, and so expressed.^

The documents are usually dirccte<l by the order to be produced
at any examination of witnesses, and at the hearing of the cause.^

The effect of the order for the production of documents is only to
give the applicant the ])ower of itispectingand taking copies of them.
It does not make the documents evidence in the cause, unless the
mere circumstance of their connng out of the custody of the party
world, in itsflf, render them admissible evidence. Where the
documents ha\'e been deposited with the Record and Writ Clerk,
the orde: f>r production, in itself, estal)lishes that the documents
came out ft ;l<e party's custody : so tliat it is not necessary to enter
into any e\idcace for the pui'pose of proving that fact.-'

A party, who has obtaine<l inspection and production of docu-
ments, under an order of tlie Court, has no right to make public
the information so obtained ; and will, if necessary, be restrained
by injunction from so doing ;^ nor will he be permitted to make
use of the infoimation for purposes collateral to the suit.'^

If the documents are ordered to be deposited at the Record and
Writ Clerk's Office, the original order should, if possible, be pro-
duced ; and, in every case, an affidavit and a schedule of th('
documents must be left at the time the deposit is made.^

Inspection of documents so deposited will be refused, as well to
the party depositing them, as to a plaintiff or defendant, unless he
is either suing or defending in person, or is introduced by his

.a:.!-

1 Williamg v. Prince of Wales Life Company, 23 Beav. 338 : 3 Jur. N S. 65.

2 See Wheat v. Gmham, 7 Sim. 61 ; and forms of orders, Setim, 1040, et aeq. , '

3 Taylor v. Salmon, 3 M. & C. 422.

4 Williamt v. Prince of Wales life Cnmpunn, vhi sup.

5 Richardson v. Hastimjs, 7 Beav. 354 ; and sue Vagi/ v. South Devon Hailivay Company, 12 Beav.

151 ; Reynolds v. GiMee, 4 K. & J. 88. " ' P-:»-f'}

ft Bfaithicaite't Pr 506. The ducunientH must be made up in a parcel, ur enclosed in a wooden or tin
box ; und the Hhort title of the cause, and the name and addres.:! of the solicitor or ])arty niakin;;
the de|>osit, niUMt be written on the parcel or b' .x. Stronj; bmwn or cartridg-e paper should lie
used for the parcel. Where the parcel would. exceed about twelve inches in length and width,
and ten in depth, or fifteen in lenifth, twelve in width, and six in depth, a box will in tfenoral bt^
required. The box nuist have a lock and key ; aiul the key should have a parchment label, with
the .short title of the cause, und the name I'f tlit^ .■'xlicitor or party written thereon : ib.

)arty has
id agents*

pro

luced

le cause/

is only to
s of them,
unless the
the party
Vhere the
^rit Clerk,
documents
vy to enter

n of docu-
lake public
3 restrained
ad to make

Record and
le, be pro-
lule of th»^

PRODUCTION OF DOCUMENTS.

1861

solicitor.* Where liberty to inspect is gi l m the ordinary form,
the party entitled to inspect may do so in the absence of the party
depositing the documents : where, therefore, it is desired that this
practice nhould be modified, the order should be qualified accord-
ingly." A defendant is not allowed to inspect documents deposited
by a co-defendant, unless expressly authoris(!d so to do by order,
or the inspection is sanctioned by such co-defendant, or by the
plaintiff.'

Copies of, or extracts, from, documents inspected may be taken
by the person making the inspection, without payment of any fee ;
and any such copies or extracts may be obtained by him from the
Record and Writ Clerk's Office.

If documents deposited in Court are afterwards required to be
produced at any examination of witnesses in the cause, or in Court,
or at any of the offices of the Court, the Record and Writ Clerk
will attend with them on request, on a memorandum bespeaking
the attendance being left svith him, and on payment of the proper
fee;* but if the production is required at any place out of the
Court of Chancery, or its offices, an order must be procured for the
Record and Writ Clerk to attend with tluj loquired documents : as
the usual order only authorises the production at any examination
of witnesses in the cause or at the Jiearing.-' This order ma\' be
obtained on motion of course, supported by an affidavit that the
production of the documents is necessary for the purposes of evi-
dence.® •

'■' ia

:^5

as well to
t, unless he
iced by his

mpany, 12 Beav

in a wooden or tin
\ or party niakiti«
I paver shouUi w
length and widtli,
■will in general be
liment label, witU
Ion: ib.

Order 542 provides that "Wliere on a proceeding before an officer
of the Court, pleadings or other documents, filed with another
officer of the Court, are required, the officer witli whom the plead-
ings or otlier documents are filed is, upon production of a certificate
signed by the officer requiring the pleadings or other documents,
that the same are required for some proce<^ding before him, to

1 liraithteaite'H Pr. .ioo. No (ce in piiyahlo by a j>arty inspectiiiir his OM-n documents ; but the foUow-
in(j fees are payalile in KiiKlaiul on inspection liy other pr.rties :— If occupied not more than one
hour, tin. ; and if more than one h<iur, /jcr Uieui, lo». ; Reiful. to Ord. Sched. 4 ; liraithicaite't
Pr. 60S. Thofe; is not char;;ed, where the inspection is merely made to select a <ioci!inent on
bespeaking' a ci.py of it: see I'ft.

•2 Bniithwaite'x I'r. 509. 3 See ibid.

4 Braithwnite's Pr. 506, 512. For the fee payable, see ante.

5 See forms of orders, Seton, 1040, Nos. 1, 3 ; 1041, No. 5,
« BraiVneaiU-'x Pr. 606, 614 ; and ante.

■lM

1862

PRODUCTION OF DOCUMENTS.

transmit the pleadings or other documents mentioned in the certifi-
cate." Order 543 that " Where such documents are to he trans-
mitted from one officer of the Court in Toronto to another, they are
to be transmitted by delivering the same to the officer requiring
the same, or his clerk." Order 544 that " Where such documents
are to be transmitted by an officer of the Court in Toronto to one
in an outer county, or from an office in an outer county to one
in Toronto, they are to ba sent by parcel post, or by express, and
before they are sent, the party requiring their transmission is to
deposit a sufficient sum to cover the expense of transmission, and
of re-transmission to the office from which they are sent." And
Order 545 that " As soon as the purpose for which any such docu-
ments are required is completed, the officer to whom they have
been sent is to re-transmit them to the office from which they
were sent."

When it is required to produce any of the original pleadings filed
in this Court before any other CoUrt, the person desiring their
production must obtain an order of this Court for that purpose.^

In the absence of any special case being made, documents
deposited in Court will not be ordered to be taken out of the juris-
diction, for the purpose of being produced at an examination of
witnesses.^

When the purpose for which the documents have been deposited
in Court is satisfied, the person who has produced them is entitled
to have them delivered out to him .^ An order is, however, necessary :
which may be obtained on motion with notice ; or, by consent.* A
copy of the order, or of so much thereof -as directs the delivery out,
with a receipt signed by the person to whom the delivery out is
directed to be made, and witnessed, must be left, and the original
order must be produced, at the Record and Writ Clerk's Office, at
the time the application for the delivery out is made.*

1 Cottle V. Cummingt, 2 Grant, 580.
» 2 La/on ' v. Falkland Idaiids Company (No. 2>, 4 K. & J. 39.

3 Dunn V. Dunn, 3 Drew. 17 : 18 Jur. 1068 ; 7 De G. M. & G. 25 : 1 Jur. N. S. 122.

4 Braithuaite's Pr. 507. For form of order, see Seton, 1062.

5 BraithioaiWs Pr. 507. Where the person entitled attends In person, he Hiiuns a receipt prepared i

the office, on the documents bein^ delivered to him.

PRODUCTION OF DOCUMENTS.

1863

le certifi-
le tranB-
they are
requiring
)cument8
o to one
,y to one
resB, and
jion is to
iBion, and
it." And
uch docu-
they have
fhich they

kdings filed
iring their
)urpoBe.^

An order for the production of documents is enforced by attach-
ment, or other process of contempt, in the usual manner.^ Where
the plaintiff was shown a document, inspection of which was refused
until counsel's opinion had been taken whether it was privileged,
and subsequently the defendant declared that he had lost it, an
attachment was ordered to issue. '^

On a motion to commit for non-production of certain documents
after an insufficient affida\it on production has been filed, it is not
absolutely necessary that the notice of motion shall specify what
is demanded in addition to what is produced, though the Court
considered such the better course.* The practice as to committal
for non-production has been considered in a former part of this
work in the chapter on " Decrees and Orders."

1 A »Ue. As to the jwwer of sequestrators to seize docurnonts ordered to tie deposited, see ante ; and

au to enforcing an atfidavit as to dociimpiits, sec ante.

2 Lord Momington v. Keane, 4 W. U. 793, V. 0. W.

3 PiHkon V. Smith, 2 Ctiani. Kep. 401.

documents
the juris-
ination of

[n deposited
is entitled
necessary :

lonsent.* A

[elivery out,

rery out is

;he original

8 Office, at

v.-

ecelpt prepared i

ni

% t

( 1864 )

CHAPTEE XLVI.

i:^

SPECIAL CASE.

1

Q

Ui
Q

^ 6 ^

ga o
ft

f ■ n

!;■■

I

Qc.

n
»

A special case is a mode of proceeding by means of which per-
sons interested in questions cognisable in the Court of Chancery
may, upon a statement of facts, obtain the opinion and direction
of thj Court, without any consequential relief. This form of pro-
cedure is entirely of statutory origin ; ^ £;,nd was at first of great
utility ; but, in consequence of the changes which have been sub-
sequently introduced into the general p^ ctice of the Court, its
utility has been much diminished.

Our Statute, 28 Vic, ch. 17, sec. 1, passed in 1865, declares that
" The Court of Chancery in Upper Canada shall have the same
jurisdiction as the Court of Chancery in England has, in regard to
leases and sales of settled estates, and in regard to enabling
minors, with the approbation of the Court, to make binding settle-
ments of their real and personal estate on marriage, and in
regard to questions submitted for the opinion of the Court in the
form of special cases on the part of such persons, as may by them-
selves, their committees or guardians, or otherwise concur therein."
The Englisli statute, therefore, just referred to, 13 and 14, Vic.
ch. 35, so far as it relates to the jurisdiction and powers of the
Court as to the subjects mentioned in our statute, is virtually in
force here ; and the EngUsh c;iso3 decided on it will be applicable
here.

111

The Act provides, that persons interested, or claiming to be
interested, in any question cognisable in the Court, as to the con-
struction of any Act of Parliament, will, deed, or other instrument
in writing, or any article, clause, matter or thing therein tontained,

S lUJcU Viu. uh. 35,

Sl'EClAL CASE.

1865

;

irhich per-
Chancery
[ direction
m of pro-
ii of great
been sub-
Court, itB

(dares that
the same
in regard to
;o enabhng
ding settle-
,ge, and in
!ourt in the
|ay by them-
sur therein."
md 14, Vic.^
Iwers of the
virtually in
e applicable

Iniing

to be
to the con-
instrument
n tontained,

or as to the title or evidence of title to any real or personal estate
contracted to be sold or otherwise dealt with, or as to the parties
to or the form of any deed or instrument for carrying any such
contract into effect, or as to any other matter falling within the
original jurisdiction of the Court as a Court of Equity, or made
subject to the jurisdiction or auihority of the Court by any statute :
not being one of the statutes relating to bankrupts : and including
among such persons all lunatics,^ married women, and infants, in
the manner and under the restrictions in the Act contained : may
concur in stating such question in the form of a special case for
the opinion of the Court ; and that all executors, administrators
and trustees may concur in such case.^

The committee of the estate of a lunatic may, with the autho-
rity of the Lord Cliancellor,^ concur in his own name, and in the
name and on behalf of tlie liuiatii-.^ A husband may concur in big
own and his wife's name, where she has no interest distinct from
him ; and where she has a distinct interest, she may concur in her
own right, if her husband also concurs :^ but then it must be
stated, in the special case, that she concurs in her own right : ^
and if she is a pla.iutiff and her husband is a defendant, a next
friend must be naraed.^ The guardian** of an infant may, unless
he has an interest adverse to the infant, concur in the name and
on behalf of the infant.^ *

The Court may, by order to be made in tiie matter of any lunatic
not found sucli by inquisition, or in the matter of any infant, upon
the application of any person on the behalf of such lunatic, or
upon the application of such infant, by motion or petition, appoint
any person shown by affidavit to bo a fit person, and to have no
interest adverse to the interest of the lunatic or infant, to be the
special guardian of such lunatic or infant, for the pm'pose of con-
curring in such case in the name and on behalf of the lunatic or
infant, am^ the person so appointed may lawfully so concur : the

1 This term, as used in the Act, inehiden idiots, and persons of nnstmnd mind, and wiiether fomid
such by hiquisitiou or not : 1!! i^ 14 Vic, sec. 34. 2 Ibid., sec. 1.

3 Or Lords Justices : see 14 & 15 Vic. ch. 83 : 15 & 1(5 Vic. ch. 87, sec. 15.

4 13 & 14 Vic. ch. 35, sec. 2. . ,
6 Ibid., sec. 3. 6 Ibid., sec. 9. 7 Ibid., sec. 7.

8 This tenn, as used in the Act, includes the father or testamentary guardian, or guardian appointed
by the Court of Chancery (not beiii!? a special guardian appointed under the Act) : Ibid., sec. 34;
Ellia V. Gtiitton, 18 L. T. 269, V. C. P. .

0 13 & 14 Vic. ch. 35, sec. 4. .

1866

SPECIAL CASK

Court may, however, require notice of such application to be given
to such person, if any, as tlie Court shall think iit ;^ and in the
case of infants, unless notice is given of snch application to the
infant's {guardian, the urder may be discharged on motion or peti-
tion, and a new order made.'-^ It must also be stated in the special
case how the guardian, or special guardian, of an infant or lunatic
was constituted.'* ♦

m

I

The application for the appointment of a special guardian must
be made on motion in Court : and not by petition ;* nor in cham-
bers f and must be supported by an affidavit, entitled in the
matter of the infant or lunatic and of the Act,® showing the fitness
of the proposed guardian, and that he has no interest adverse to
the infant or lunatic.^ A next friend is not required for an infant.^

As a general rule, all parties interested in the questions submitted
to the Court must be parties to the special case : the practice in
this respect being the same as in the case of suits ; * and it seems
that the exceptions to, or modifications of, this general rule, intro-
duced by the Chancery Amendment Act,^** 8,pply to special cases."
Thus, where a class was sufficiently represented, a special case was
entertained^^ in the absence of a member of it who was out of the
jurisdiction ; ^^ and under similar circumstances, where some of the
members of the class had died intestate, the executors of their
father were appointed ^* to represent their estates for the purposes
of the proceedings.^^ It has been held that trustees should be parties
to the case.^"

R'^i

It seems that the form of suit whicu, as we have seen, is commonly
adopted where the plaintiff is one of a large class in the same inter-

•2 Ibid., sec. 0.

3 Ibid,, sec. U.

1 13 & 14 Vic. ch. 36, sec. 5.

4 lie Guod/ellow, 1 Eq. Rep. 191, V. 0. W.

5 Thornhill v. Copletton, 10 Hare, App. 07. For forni of order on motion, see Seton, 33.

« Star V. Sewbery, 20 Beav. 14 ; but not in the special case : it bein^ not yet filed, ib.; and see ..Wad-
disoH V. Skein, 6 L. T. N. S. 20, V. 0. W., where the title was allowed to be amended.

7 Exparte Craig, 15Jur. 702, V. C. K. B. ; Ellis y. GuiWm, 18 L. T. 209, V. C. P.

8 Exparte Craig, ubi suj).

0 See 13 ii 14 Vic. ch. 35, sec. 32.

10 16 & 16 Vic. ch. 86, sec. 42 ; sec. 51; and sec. 52.

11 Swallow V. Binns, tf Hare, App. 47 : 17 Jur. 295 ; WiUoa v. Whateley, 1 J. & H. 331 : 7 Jur. N. S.

908 ; Re Brown, 29 Beav. 401 : 7 Jur. N. S. 060 ; see, however, Enticistle v. Cannon, 4 W. B. 450,
V C K

12 Under 15 & 10 Vie. ch. 86, sec. 61.

13 He Brown, ubi sup. ; but sec Entwistle v. Cannon, ubi sup.

14 Under 15 & 16 Vic. ch. 86, sec. 41.
16 Suiallow V. Binns, ubi sup.

16 Vorleif v. HirlMrdson, 8 De G. M. & G. 120 : 2 .J\ir. N. S. :i02, overrulintf harby v. Darby, 18 Beav.
412.'

be given
(1 in the
1 to the
or peti-
le special
T lunatic

ian must
in chani-
d in the
;he fitness
dverse to
in infant.^

submitted
►ractice in
d it seems
rule, intro-
iial cases."
i\ case was
out of the
ome of the
Is of their
purposes
be parties

[commonly
Ume inter-

Uc. a.

_, 33.

I ■ and Hec Mad-
Vied.

jjl : 7 Jur. N. S.
[o»,4W. R.450,

')arby, 18 Beav.

Sl'KCIAL CASE.

1867

est as himself, namely, suing on behalf of himself and the others
of the class,^ cannot be adopted in special eases : such others not
being before the Court, and, therefore, not bound by the proceed-
ings.^

A special case must be entitled as i cause between some or one of
the parties interested, or claiming to be interested, as plaintiffs or
plaintiif, and the others or other of them as defendants or defen-
dant ; and in the title to such case, lunatics and infants must be
described as such, and their committees, guardians, or special
guardians named; and where a married woman is named as a
plaintiff and her husband as a defendant, a next friend of such
married woman must be named in the title.^ The case should state
concisely such facts and documents as are necessary to enable the
Court to decide the question raised thereby.*

The draft case is usually prepared by the counsel for the plain-
tiff, and is submitted to the solicitor of the defendants for the
approval of their counsel. When finally approved, the draft must
be signed by counsel for all parties.^ A copy of the case (including
counsel's signature) must then be made on paper of the same des-
cription and size as that on which bills are printed :^ and under-
written with the name and place of businessof the plaintiff's solicitor,
and of his agent, if any, or with the name and place of residence
of the plaintiff where he acts in person, and, in either case, with
the address for service, if anyJ The engrossment is filed at the
Kecord and Writ Clerk's Office, in the same manner as a bill is
filed ; ^ and notice of filing should be given, on the same day, to
the solicitors of the defendants. The plaintiff must take an office-
copy of the special case ; but the defendants need not do so.*

The defendants must enter their appearances to the special case,
in the same manner as defendants appear to bills ;^®but no pro-
ceeding can be taken to enforce such appearance ; nor can an

1 Ante.

2 Lee v. Head, 1 K. & J. 620 : 1 Jur. N. S. 722.

3 13 & 14 Vic ch. 35, sec. 7.

4 Ibid., sec. 8 ; see Bulkeley t. Hope, S Ue O. M. & G. 86.

5 13 & 14 Vic. ch. 36, sec. 10. One counsel may, it seems, sigfn (ur all parties : Ex pmrte Craig, 16

Jur. 762, V. C. K. B. ; Stapleton v. Stapleton, 17 L. T. 16. V. 0. Ld. C.
0 Ord. 16 March, i860, r. 16. 7 13 & 14 Vic. ch. 35, sec. 32.

8 13 & 14 Vic. ch. 36, see. 10. 0 Ibid. 10 IbH.

1868

SPECIAL «;ase.

« *

appearance be isntert'd for a dofi'udant at the instance of the plain-
tifif.»

The filing of a special case, and the entering of appearances
thereto by the persons named as defendants is to be taken to be a
lis pendi'HH, and may be registered, in like manner us any other
lis pendens in a Court of Equity may be registered : but, uutil no
registered, is not to bind a j)uruliaser or mortgagee without express
notice.^

Before the special case is set down for hearing, it may be amended
at any time, under an order to amend : wiiich must be obtained on
motion of course by consent of all parties ; '■^ but after it is set
'down, special leave of the ('ourt is necessary.* Under an order of
course the case may be amended in any respect, as the parties
may be advised : as all parties, by their counsel, must approve the
amendments. The rules of practice, however will not allow the
name of the plaintiifs solicitor to be altered under a common order
to amend ; nor, it seems, the name of a defendant to be struck out,
unless the order expressly so directs, and provision is made for his
costs .^ '

The draft of the case as amended must l)e signed by counsel for
all parties : " and if the amendments do not • extend in any one
place to 180 words, the Record and Writ Clerk will insert the
amendments in the record, on the draft amended case being left
with him, together with a pnecipc for the amendment ; ^ but if the
amendments exceed this limit, a new engrossment must be filed. ^
The order to amend must be produced at the time the draft is left
for amendment, or the new engrossment tiled ; if the record is
merely altered, the plaintitT's office-copy will be amended, without
charge, on being left at the liecord and Writ Clej-k's Office ; but
where a new engrossment is fiU:d, he must take an oflice-copy there-
of.*

"Where a special case is amended after the appearance of a defen-
dant, it seems an appearance to the amended case must be entered
by him." ^

1 Brnithwaitf'* Pr. 330. 2 13 & 14 Vic. uh. 35, sec. 17.

3 J)raithwaUe'H Pr. 316. 4 Braithwaite'g Pr. 315 : and see poH.

b Ibid 315 '> •''"(• 7 Draithwaite'sPr. 'il6. S Ibid.

9 Ibid. 316. 1 0 ThisUthwaite v. Gamier, 5 De G. & S. 73 : 16 Jur. 57 ; Braithicaite't Pr. 330

lie plain-

)oarauce8
'11 to 1)0 a
my other
;, uutil bo
ut expresb

e amended
btained on
r it is Bet
11 order of
lie parties
pprove tlui
t allow the
Liraoii order
struck out,
lade for his

counsel for
m any one
insert the
heing left
])ut if the
be tiled.**
draft is left
e record is
ed, without
OfHce ; but
•copy there-

e of a defen-
t be entered

lee pott.
1 8 Ibid.
Lifftioai(e'«Pr.330^

SPECIAL CASE.

1869

Where a special case has abated, it may be revived in the eame
manner as a suit commenced by bill.*

After a special case is filed, and the defendants have uppi-arod,
all the parties are subject to the jurisdiction of the Court in the
same manner as if the plaintiff had tiled a bill against the parties
named as defendants, and the defendants luid appeared to such
bill ; and upon the special case being tiled and api)earance
entered, all parties thereto, other thanmarried women, infants and
lunatics, are, for the purposes of the special case, bound by the
statements therein : and married women, infants and lunatics,
parties thereto, are, for the purposes of the special case, bound by
the statements therein, when, and not before, leave has been given
by the Court to set it down for hearing.'^

When all the defendants have appeared, the special case may
be sot down for hearing:^ unless there is a married woman, infant
or lunatic, a party : for then application must be made to the
Court, by motion, for leave to set the casi- down ; and of which
motion, notice nuist be given to every party to the case in whom,
as executor, administrator or trustee, any property in question
therein is or is alleged to be vested in trust for the married woman,
infant or lunatic ; and also if the application is not made by or on
behalf of the married woman, infant or lunatic, to the married
woman and her husband, or to the infant, or the lunatic and his
committee, if any, as the case may be; and upon the hearing of the
motion the Court may give leave to set down the case, if it is of
opinion that it is proper tliat the question raised should be deter- '
mined upon a special case, and is satisfied by affidavit or other
sufficient evidence that the statements contained therein, so far as
the same affect the interest of the married woman, infant or luna-
tic, are true,* but otherwise may refuse such application; but if
the Court, upon hearing the application, is of opinion that it is
proper that the question raised should be determined upon the
special case, but is not satisfied that the statements contained
therein, so far as they affect the interest of the married woman,

1 WUgon V. Whateley, IJ. & H. 331 : 7 Jur. N. 8. 908 ; and cee ante.

2 13 & 14 Vic. ch. 35, sec. 11. 3 Ihid., sec. 12.

4 The Record and Writ Clerk's certificate tliat the .s|iecial case hiia l)een duly flled, and that appear-
ances have been entered for all the defendants, is als.t required : liraithtoaite'i Pr. 436, 437.

• ;k : i

1870

SPECIAJ- CASK.

infant ur lunatic, aw tiuc, it may direct inquiries in chambers, and
upon further apphctitiun bting made, by motion, upon tlie inquirieu
being answered, the Court may give or refuse ieave to set down
the special case.^ The application for leave to set down a special
case cannot, it seems, be made in Chambers.^

The special case is set down by the Registrar. If all parties are
not 8ul juris^ he will require for this purpose the order giving leave
to set the case down ; but if all parties are sui jurin, lie will set
the case down, upon production of the Record and Writ Clerk's
certificate that the case is fit to be set down for hearing, and upon
such certificate being endorsed by the solicitor with a memorandum
that all parties are sui juris.^

The special case is set down to be heard before the Court in the
usual way ;* but it may, by consent of all parties, be afterwards
set down to be heard before the Court of Appeal in the first instance
by permission of that Court.''

A copy of the special case, and of any material documents not
sufficiently set out therein, should be left, before the hearing, with
the Judges by whom the case is to be heard.*^

Where, after a special case had been set down, an infant tenant
in tail was born, the Court, on ex parte motion, discharged the
order which had been made for setting it down, and gave leave to
amend by making the infant a party ; and expressed an opinion
that fresh appearances must be entered for all the defendants, and
a new order made for setting it down : when the amended case
might be ordered to take the place of the original case in the
paper.^ Where also one of the parties to the special case died after
it had been set down, leave was given to amend the case, by mak-
ing his representatives parties.^

1 13 & 14 Vic. ch. 36, sec. 13. For form of order to set clown the case, see Seton, 33. The motion

must be mentioned to the Court : Sidebotham v. Watson, 1 W. R. 229, V. 0. W.

2 Stdebotham v. Watton, ubi gup.

3 Reg. Regul. 16 March, 1860, r. 8; Braithivaite's Pr. 436, 437. 4 Ante.

5 PeUmer v. Simmonds, 1 W. R. 122, V. C. K. ; Tatnell v. Smith, 2 De G. & J. 713 ; 4 Jur. N. S. 1090;

Mortimore v. Mortimore, 4 De O. & J. 472 ; Hume v. Richarchon, 8 Jur. N. S. 086 : 10 W. R.

628, L.J J.
0 Counsel'B brief will ordinarily consist of the like papers, accompanied by such observations as muy

be deemed necessary. An'infant should appear by separate counsel, notwithstandinir the same

solicitor is acting for all parties : Seton, 33, citing Wright v. Woodham, 17 L. T. 293, V. C. T.
7 TMHlethtcaite v. Oamier, 5 De G. & 8. 73 : 16 Jur. 67.
9 A ntumrth v. Alman, 14 Bmv. 597.

■If

Sl'KCIAL CASE.

1871

srs, and

iquirieB

it down

special

rties are
iig leave
will Bet
Clerk's
lid upon
)randum

ii't in the

'terwards

instance

aents not
ing, with

it tenant
irged the
leave to
opinion
tnts, and
Ided case
|e in the
lied after
by mak-

The motion

kir. N. S. 1090;
86 : 10 W. R.

latious tvs muy
liii^ the same
I, V. C. T.

It seems, liowiviT, that the correct practice in such a case, is to
revive the case.^

Leave lias hren givon, at the hearing, to amend the special case,
by altering tlio form of tho question, and tlie opinion of the Court
given as on the amiaidcd case, witliout postponement."

Upon the hearing of the special case, tho Ccmrt may refer to the
whole contents of the docunionts therein stated ; and may draw,
from the facts and documents stated, any inference which the Court
might have drawn from them if proved in a cause;'' and it may
determine the questions raised or any of them, and by decree
declare its opinion thereon, and, so far as the case admits, upon
the rights involved, without proceeding to jnhninister any relief
consequent upon such declaration : and every such declaration has
tlie same force and effect as such declare um would Lave had, and
is binding to the same extent as sucli dechirati )' would have been,
if conttiuh'd in a decree mado in a suit betwetu the same parties
instituted by bill ; but, if, upon the hearing of the special case, the
Court is of opinion that the questions raised or any of thorn cannot
properly be decided upon the special case, the Court m ly refuse to
decide the same.*

Where the facts and questions stated on tlie special case did not
enable the Court to determine the rights of the parties, it refused
to make any order ;^ and it has been observed by Lord St. Leonards,
L. C, that, the Court is not bound to answer every question the
parties may think fit to put." WJiero, however, a material fact was
accidently omitted in the statements of the case, but it appeared
to have been recognised by all parties, the circumstances, showing
that it had been so recognised, were recited in the order.^ Where,
in the case, a fact was stated '* to be believed," the Court directed
the case to stand over to be amended by stating the facts upon

1 Under 16 & 16 Vic. ch. 86, sec K ; WiUon v. Whateky, IJ. & H. 331 : 7 Jur. N. 8. 908.

2 Bell V. Cade, 2 J. & H. 122. 3 13 & 14 Vic. ch. 3.5, sec. 8.

4 13 & 14 Vic. ch. 35, sec. 14. This Hection contuins a provi.so, enabling the Court to send a case for

the opinion of a Court of Law ; but it is presumed that this |x)wer is aboliahoil by the 16 tt 16
Vic. ch. 86, sec. 61 . For forms of decrcci, see Seton, 30, 34.

5 Bulkeley v. Uime, 8 De O. M. & O. 3().

fl Viscount Bamngton v. Liddcll,2De (i. M. * O. 480, 606; and see Bailey v. Collett, 28 L. J. Ch.

230, M. R. For form of decree, where the Court declines 'to answer one of the uuestions, lee

Set07t, 34.
7 Lane v. Debenham, 17 Jur. 1006, V. 0. W. ; whore all parties to the ciuse ap|n'iir, however, to have

been sui juris, and consented.

1872

SPECIAL CASE.

2i'<

which the belief was founded : Sir G. J. Turnor, V. C, observing,
that the Court could not act on inferences drawn by the parties :
nor could it direct an inquiry on a special case ; but that, when the
evidence was doubtful, the special case must state all the facts
upon the subject which could be ascertained, and state, and verify
(if necessary) by affidavit, that no further evidence could be given ;
and upon that allegation and proof, it must be left to tlie Court to
judge of the result of the statement.^

The Court has no jurisdiction to declare future rights, on special
cases ; ^ and it has accordingly repeatedly refused to do so.^

The decree or order on a special case is drawn up and passed by
the Eegistrar, in the usual way ; * and may be enrolled in like
manner as decrees in suits by bill.^

All decrees and orders under the Act are subject to rehearing,
appeal, and review, and may be discharged and varied, in like
manner as decrees and orders of the Court made in suits instituted
by bill ; ° and where any of the parties are desirous to have a
special case reheard, or to appeal from the decision thereon, the
Court may, upon application for that purpose, either at the time of
the decree being made or at any time afterwards, and upon such
conditions, if any, as the Court shall think fit, order that the
declaration contained in such decree shall not be acted upon for
such time as the Court shall think just.*"

The Act provides, that every executor, administrator, trustee or
other person making any payment, or doing any act, in conformity
with the declaration contained in any decree made upon a special
case, shall in all respects be as fully and effectually protected and
indemnified by such declaration, as if such payment had been
made or act done under or in pursuance of the express order of
the Court made in a suit between the same parties instituted by

I Domvilte v. Lamb, 0 Hare, App. 55.

9 See observations of L. .1. Turner, In Lady Lnngdale v. Hrigr/s, 8 Do O. M. & Q. 426, 427, 428 : 2Jur.
N. S. 982, !)!».S ; iind sec Enrl of Tyrone v. Marquis of Waterford, 6 Jur. X. S. 507, L. C. & L.JJ.

3 Greenwood V. Sutlu^rlaml 10 Hare, \])Tp. 12: Garlick v. Laicson, ih. 14; Burt v. Sturt, 1 AV. K.

145, V. C. W. ; GoxUiu) v. Goslini), Julius. 265 : 5 lur. N. S. 910 ; DM v. Cade, 2. J. k H. 122. In
the last case, liowever, tlie Jifflciilty was prot over by declaring' that " the plaintiff was entitled to
file a bill to secure the fund."

4 Ante. For forms of decrees, see Seton, 30, 34.

5 Braithwaite's Pr. 106, 4ti2. 6 13 & 14 Vic. ch. 35, sec. 33 : ante.
7 13 4 14 Vic. ch. 35, sec. l(i.

SPECIAL CASE.

1873

>servmg,
parties :
vhen the
he facts
id verify
e given ;
Court to

n special

3

'•

passed 1)y
d in like

rehearing,
i, in like
instituted
bo have a
n-eon, the
he time of
lipon such
that the
upon for

trustee or

[onformity

a special

lected and

I had been

order of

lituted by

127,428 : 2Jur.
F, L. C. & L.JJ-
ISturt, 1 W. R.
1. & H. 122. In
Twos entitled to

bill : save only iiH to any rights or claims of any person in respect
of matters not determined by such declaration.^

Any documents referred to in a special case, and any copies
thereof or extracts therefrom, identified by the signature of the
solicitors for all parties, or of the London agents of such solicitors,
may be produced and read at the hearing of such case, without
further proof ; and the Court may, at any time after the filing of
the special case, and the entering of appearances thereto by the
persons named as defendants, order any document, which may be
admitted thereby to be in tho possession of any party to such case,
to be deposited and produced in sucih manner, and for such pur-
poses, as the Court sliall think fit. "^ The application for this purpose
may be made by motion.^

With regard to the costs of a special case, there' appears to have
been some difference of opinion among the Judges of the Court as
to the jurisdiction. The Act provides that they shall be in the
discretion of the Coui't ; * and it was held by Sir J. L. Knight
Bruce, V. C, that the Court has power to direct payment of the
costs of a special case ; '^ but it has been held by Sir W. P. Wood,
V.C., that the Court has no jurisdiction to order payment, unless
there is a fund in Court;" and that, therefore, unless the parties
have agreed how they shall be paid, tliere should be a question in
the case out of what fund they ought to come." Since this decision,
it is usual to insert such a question, when the opinion of the Court
on the point is desired ; ^ but it would seem that the Court has, in
several subsequent cases, when tliere is no fund in Court, and nt) ques-
tion asked, decided how the costs shall be paid . ' It will be seen, also,
by reference to the cases cited, that, in determining the question
by whom or out of what fund the nosts shall be paid, the Court is
guided by the same rules as in ordinary suits. ^*'

1 13 & 14 Vic. ch. 35, sec. 15. 2 Ibid., sec. 18.

;{ As to tlie deposit and i)roduction of documents, see ante.

4 13 & 14 Vic. cli. 35, see. 32.

6 Jiickuvn V. Craii. 15 .Tiir. 811, V. 0 l\. B. ; and see Smith v. Stewart, 20 L. .1. Oh. 205 V. C. K. B.;

Hurt V. Stnrt, I W U. 14.->, V. €. W. ; Evam v. Kvnnn, 17 Jur. .'W9, 342, V C. K.
(1 Illinstitii V \\'(trhiirtvn, 2 K. .V .T. 400: 2 J.ir. N. S. fe58. 7 Ibiri.

8 i'rtftm ". Ileapf, 27 lietiv. 5.53, 55« ; Llmiil v. Vwker, ih. t^45, <I47 ; Mari^hnfl v. (iriiii)'.,28 Beav. 376,

37(5; Hitiiif V. liichard.vnu S .lur. N. S. 86: 10 VV. R .Viy, L.J.I. ; (lilhertxiin v. Gilbtrtiion,l^yi.

R. 765, .M. It. ; Blnckmnri' v. Smx, 1 Dc G. "• .1. 455, 458 ; Cuoner v. Coupe; i> W. R. 354, M. R.
!) Uittickr V. I'pterK, 4 :;. Ot .1. 437 : 4 Jnr. N. S. ..^71 : llindlr. v. Taylor. 5 l)e C. M & G. 577, 694 : 1

Jur. N. S. I02l>, 1032 ; Mortiniorc v. Morlhtion', 4 De G. ,^ J. 472, 476 ; Cookson v. Bingham, 17

Beav. 262 ; Gibbn v. Laurence, 7 Jur. N. S 137 : 9 W. K. 93, V. C. VV. ; ( unniiuikamv.Butler 3

Giff. 37, 42: 7 Jnr. N. S. 461.
10 See, ffenerall.v. hh t'> t'lp costs of a spouial case, Morgan A* Darcji, 222, 224 ; iiiid for precedents o(

plaintitfs' and dciciidanis costs, on a special case, see ib. 480-484.

1874

SPECIAL CASE.

-t

The Act empowers the Lord Chancellor, with the advice and
consent of the Master of the Rolls, and one or more of the Vice-
Chancellors, to make general rules and orders for better enabling
the opinion of the Court to be obtained on special cases, and gene-
rally for regulating the procedure relating thereto ; ^ and provides
that, in the meantime, and in so far as such rules and orders may
not be applicable, the proceedings under the Act are to be governed
and regulated by the provisions of the Act, so far as the same
extend ; and are, in so far as the same do not extend as well with
respect to the persons who ought to be made parties to special
cases as in every other respect, to be governed and regulated by
the rul?8, orders, and practice of the Court in suits instituted by
bill, so far as the same can be applied thereto ; and that, subject
to such general rules and orders, the costs of all proceedings under
the Act are to be in the discretion of the Court.^

No general rules and orders as to special cases under the Act
have been made.

1 IS dc 14 Vic. ch. 85, sec. 30. Section 31 provides for the rules antl orders being; laid before Parlia-
ment. 2 i:« X' 14 Vic. cli. 35, sec. 32,

( 1875 )

vice and
the Vice-
enabling
md gene-
provides
Jers may
governed
the same
well with
to special
dated by
bituted by
kt, subject
ngs under

r the Act

d before Parlla-

CHAPTER XLVII.

INFANT CUSTODY ACT.

Section 8 of the Consolidated Statutes of Upper Canada, ch. 74,
is taken from the Imperial Statute, 2 & 3 Vic, ch. 54, which, with
the English decisions upon it, are here reproduced. The cases
under our Statute are added.

By the 2 & 3 Vic. ch. 64, the Court is enabled, upon the peti-
tion of the mother of any infant which is in the sole custody or
control of the father thereof, or of any person by his authority, or
of any guardian after his death, to make such order for the access
of the petitioner to such infant, at such times and subject to such
regulations as the Court shall deem convenient and just ; and if
such infant shall be within the age of seven years, the Court may
order such infant to be delivered into the hands of the petitioner
until such age, subject to such regulations as the Court shall dee"*
convenient and just.^ Applications under this Act may be made
either to the Master of the Bolls, or to any of the Vice-Chan-
cellors,'^

Upon the hearing of the petition, affidavits on either side are
admissible ; ^ and orders made under the Act may be enforced by
the usual process of contempt. No mother against whom adultery
has been established by the sentence of the Divorce Court is entitled
to the beneldt of the Act.

The petition may be presented without a next friend ; * and, by
leave of the Court, in forma pauperis.^ If rendered necessary by

1 2 & 3 Vic. ch. 54, aeu. 1. As to this act, see Chaiiibert on Infant8, 93, 100 ; Mamherton on Infanta,
164 ; Seton, 713 ; and see Strift v. Swift, 11 Jur. N. S. 148 : 13 W. R. 878, M. R. : 11 Jur. N. a
458: 13 W. R. 731, L.JJ. ; Arutin v. Amtin. 11 Jur. N. S. 101 : 13 W. li. 332, M R. : 11 Jur. N.
S. 636 : 13 W R. 761, L. C. ; Re Neuhery, 1 Law Rep. 431 : 12 Jur. N. 8. 20, V. C. 8. : 1 Law
Rep Ch. App. 263 : 12 Jur. N. S. 154, L.JJ. For forms of orders, see Seton. 713, 711

a Re Taylor, 10 Sim. 291. 3 2 & 3 Vic. ch. 54, sec. 2.

4 Re Oroom/i Hare, 38.

6 Ex partt Hakttrill, 8 De O. M. & Q. 110 : 17 Jur. 334.

94

i

1876

INFANT CUSTODY ACTS,

f

the circumstances of the case, it seems that an order under the
Act may he made ex parted The mother is not entitled to an order
as a matter of course, hut the Couii; will exercise its discretion
upon all the circumstances of the case.^

The ohject of the Act is to protect raothovs from the tyranny of
hushands who ill use them ; and it gives the Court the power of
interfering, when the Court sees that the maternal feelings are
tortured for the purpose of obtaining an3rthing like an unjust ad-
vantage over the mother.^ The Act does not, as a condition for
the interference of the Court, require that the wife should have
obtained or be entitled to obtain a decree for a judicial separa-
tion ;* and it gives the Court an absolute discretion as against the
father or testamentary guardian ; ^ but the Court will not interfere
where the mother has deserted her husband without reasonable
cause ;* or where her conduct, although she has not been guilty of
any moral delinquency, has not been such as to entitle her to its
favourable consideration.^ And if the conduct of the father has
been free from impropriety or bad motive, the Coui-t has no right
to have any opinion as to whether the father is judicious or not in
the particular training he may direct the child to undergo.*

It has been held, that the Act does not enable the mother to
resist an application of her husband for the custody of his children,
to which, by law, he is entitled : even though upon her application
the Court may be bound to order them to be delivered back to her ;"
or to apply where the children are not in the custody of the father.^"
Where, however, the children were living with the mother, the
Court, on a petition intituled in the Act, made an order continuing
the custpdy of them to her ; but it would seem that the order was
made under the general jurisdiction of the Court."

By the 3 & 4 Vic. ch. 90, the Court is empowered, upon the
application, of any person willing to take charge of any infant who

1 Re Taylor, 11 Sim. 178, 180.

2 Re Taylor, 11 Sim 178, 200 ; Re Halliday, 17 Jur. 56, V. C T. ; Re Winteom, 11 Jur. N. S. 207 : 13

W. R 452, V. C. W.
8 Per Lord Cott«nhani, in Warde v. Warde, 2 Phil. 787, 788 ; and see Re Winicom, vhi tup.

4 Ex parte Bartlett, 2 Coll. 661, 664.

5 ShUlito V. Collett, 8 W. R. 683, V. C. K. ; affirmed, t5. 696, L.JJ.

6 Re Taylor, ubi t,up. 7 ShiUito v Collett, ubi tup.
8 Re Winteom, ubi sup,

» Coriellis v. Corsellit, 1 Dr. tt War. 236.
10 Re Fynn, 2 De O. & S. 457, 475 : 12 Jur 713. 11 Re Tomlimm, 3 De O. & S. 871-

INFANT CUSTODY ACTS.

1877

has been convicted of felony, and to provide for his maintenance
and education, to assign the custody of such infant to such person,
and to rescind or vary the terms of any such assignment ; and, iif
it shall think lit, to award costs against any applicant : such costs
to be payable to any parent or other natural or testamentary
guardian who shall oppose such application.^ The infant is not
to be sent out of the jurisdiction of the Court ;'* and the execution
of the sentence passed upon the infant is not to be interfered
with.'

This Court will upon the petition of the guardian duly appointed
by the Court of Probate or Surrogate, interfere summarily and
order the person of the infant to be delivered into the custody of
such guardian, when there is danger of the infant being removed
out of the jurisdiction — although no suit is pending in Court
respecting the infants' estate.* Although the Court is in the habit
of paying respect to the wishes and directions of a testator in
reference to the guardianship and care of his children, it will not
do so where it is clearly shown that a compliance therewith would
be prejudicial to the happiness and moral training of the infants. ^
On a bill for alimony and the custody of children who are under
twelve years of age, the Court has jurisdiction to grant the latter
relief without a petition.^ Maintenance under our Statute can
only be ordered where the infant is under twelve years of age, and
is transferred by the Court to the mother's custody.^ There was a
contest in a Surrogate Court between the stepfather and uncle for
the guardianship of a child of ten or eleven years old : the child
preferred her stepfather, and the Surrogate Court appointed him
guardian : but this Court, on appeal, being satisfied from the evi-
dence that it was for the real interest of the child that the uncle
should be guardian, reversed the order below.* The Court has an
absolute right in its discretion to give the custody of a child under
twelve years of age to the mother. The Court exercised this right
where the only evidence that the parents were living apart through
the fault of the husband was the evidence of the wife ; holding,

1 3 & 4 Vic. ch. 90, sec. 1. No fee 1b to be taken by any officer of the Court, and counsel and solloitor

may be assiifned : ib. sec. 3. As to this Act, see Chanibers, 178, 199 ; Macphenon, 133.

2 3 & 4 Vic. ch. 90, sec. 2. 3 Ibid., sec. 4.

4 Re OUrie, 3 Grant, 279. 6 Anonymoxu, 6 Grant, 032.

6 Munro v. Munro, 15 Grant, 431. 7 JU Eve», 16 Grant, 580

8 Ri Irwin, 16 Grant, 401.

t*„. ■

1878

SOLICITOBS.

::.j

that the Court might, in its discretion, in the interest of the child,
direct the custody to be given to the mother in cases where the
cause of her living apart is, on her own statement, justifiable ; and
the Judge is not prepared to say that he disbelieves such state-
ment.^

Change of i^oliGitor.

Order 49 provides that "A party suing or defending by a
solicitor shall not be at liberty to change his solicitor in any cause
or matter without an order of, the Court for that purpose, which
may be obtained on prcecipe ; and until such orderjis obtained and
served, and notice thereof given to the Clerk of Records and Writs,
or Deputy-Registrar with whom the pleadings are filed, the former
Solicitor shall be considei'ed the Solicitor of the party."

Where the plaintift*'s Solicitor had been changed, and an order
for such change served upon the defendant's Solicitor, who had
acted under such change by serving the new solicitor vith notice
of filing bond for security for costs of appeals ; an obje otion that a
proceeding subsequently taken was not endorsed with the name
and place of business of the new solicitor was overruled.*

Therefore, where a defendant had left his home, and had not been
heard of, and the solicitor on the record had ceased to act for him ,
but no order for changing the solicitor had been obtained, it was
held, that notices served on the former solicitor were duly served.'

The order of course to change a solicitor or agent [is, like any
other order of course,* irregular, and will be discharged, if any
material facts are suppressed : thus, where a country solicitor had
agreed to employ a town agent for fifteen years, and ^'O^-^f-- ■-' *bo
expiration of the term obtained an order of course in. .. • t:>
change the agent, suppressing the existence of the speo' con-
tract,^ and where the fact that the solicitor had been appointed by
a deed was suppressed,* the order was discharged. And where the
plaintiff in a creditor's suit sold his debt after decree, and the

1 Re DavU, 3 Cham. Rep. 277. •

2 McDonndt v. U, C. Mining Company, 2 Cham. Ren. 400. '
8 Wright V. King, 9 Beav. 161 ; and see Newton v. Thornton, 16 Jur. 1008, V. 0. T.

4 See ante.

6 Riehardt v. Searborotuih Market Company, 17 Beav. 83 : 17 Jur. 294.

« JenJkvn* V. Bryant, 8 Drew. 70 : 18 Jur. 992. v

CHANGE OF SOLICITOR.

1879

le child,
lere the
)le ; and
h state-

ig by a
ny cause
je, which
ined and
id Writs,
le former

an order
who had
ith notice
Lon that a
the name

not been

for him,

id, it was

served.'

like any
I, if any
icitor had

purchaser, in his name, and with his sanction, obtained an order of
course to change solicitors, without disclosing these circumstances,
the Court was of opinion that it was irregular, and that the proper
course would have been for the purchaser of the plaintiffs debt to
bring all the facts before the Court, on a motion to obtain the con-
duct of the cause.^

Where, under an order of the Court, the costs of all parties had
been paid, and the fund carried over to the separate account of a
party, it was held that that party might present a petition for pay-
ment out, by a solicitor who had not been his solicitor in the cause,
without having obtained an order to change.^ ^ .' ., ;. -v , , r

Where a person has employed a solicitor, and afterwards desires
to prosecute the suit in person, an order must be obtained.' Thus,
where the plaintiff was a married woman, suing by her next friend,
an order of course was obtained, upon the petition of the plaintiff
and her next friend, giving the plaintiff and her next friend liberty
to prosecute the suit in person, instead of prosecuting the same by
her solicitor.*

If the solicitor of a party, or his London agent, dies, an order
to appoint another solicitor need not be obtained ; but a notice
should be given to the Clerk of Records and Writs in whose
division the cause is, and a similar notice served upon the solicitors
of all the other parties to the cause.^

A solicitor, entering into partnership subsequently to his original
appointment as solicitor of a party, does not render any order
necessary ; but the dissolution of partnership of a firm of solicitors
operates as a discharge of the client:* who is not obliged to employ
any one of the late firm to continue his suit or defence ; and if he
does so, it seems that the usual course is to obtain an order on
proecipe, appointing such member to be the solicitor in the place of
the firm.'

1 Topping v. Searion, 2 U. ft M. 205.

2 WaddUove v. Taylor, 12 Jur. 598, V. C. Wigram. 3 Braithwaite't Pr. 8«4.

i Moye V. Bateman, 17 Juno, 1867, Rolls Lib. 1089. An address for service was set out in the order,
and tlie names o{ the parties, and tlie address for service, were indorsed u<>on or subscribed to all
subsequent proceedint;^ : Braithwaite's Pr. 564.

5 Braithwaite'aPT. 564, 565 ; Whalley v. Whalley, 17 Jur. 254, V. C. W.

8 OriMtht V. Griffiths, 2 Hare, 587, 594 : 7 Jur. 573; Raiolinton v. Mou, 7 Jur. N. 8. 1061: 0 W. R
733, V. C. W; ; Ptdling'8 Law of Attorneys, 112 ; and see ante.

7 See Braithwaite'* Pr. 565 ; MtUtUbvry v. Uayvood, 8 Jur. 1085, M. R. ; Pvtting, 118.

i:it

1880

soLicrroBs.

f

Q

s ^ ,-■

4 3 «--

The executor or administrator of a deceased plaintiff, or any new
plaintiff, need not employ the former solicitor in the cause ; and a
bill of revivor or supplemental bill, or order to revive, at the
instance of a new party, will be received by the Record and Writ
Clerks, and entered, without any order as to the solicitor; but
where new parties thus come into the cause, pursuant to an order
to revive, notice of the name and address of the solicitor acting for
such new parties should be given to the Clerks of Records and
Writs, and to the solicitors of all the other parties to the cause. ^
Where a party sues or defends in person and afterwards appoints
a solicitor, an order is not necessary ; but notice should be given to
the Record and Writ Clerks.^

The effect of a change of solicitors on the lien upon a fund for
costs, has already been considered. ^

1 BraitkvaiWM Pr. 666.

2 Ibid.

8 AnU.

*3

'if'

'.''^t

It'-

1

•■».»> ••/

1, . '. 1^

■I , • •*■" '

( 1881 )

vAT

c4i

any new

ie ; and a
e, at the
ind Writ
Ltor ; but
an order
icting for
jords and
le cause. ^
; appoints
e given to

a fund for

f-~'i.vr> •' * ' '

." t ••»'

■I ■ ■' 7

CHAPTER XLVIII. ;:iMi.

Introduction. ' ' ■■ -..w.-.r/rf/

THE STATUTORY JURISDICTION OF THE COURT.

This treatise has been hitherto devoted to the investigation of
that part of the practice which relates to the original jurisdiction of
the Court of Chancer3\ This practice is founded partly upon imme-
morial customs in the offices connected with the Court, partly upon
the decisions of the Judges, the General Orders of the Court, and
the Regulations of the Judges and Registrars, and partly upon di-
rect provisions made by Acts of Parliament.^ In many instances,
where the legislature has thus conferred upon the Court additional
means of enforcing its decrees and orders, the powera given for
this object have been interwoven with the original practice : such
statutes have, consequently, ^been already stated.* There are also
other Acts of Parliament atfecting, in various ways, the rights of
property, and, therefore, incidentally, controlling and modifying the
jurisdiction in Chancery ; but, although the construction of thesa
Acts has frequently to be determined in Equity, they relate rather
to the law than the practice of the Court, and do not therefor©
come within the object of this work.

Subject to these exceptions, it is intended, in this chapter, to re-
view the Acts conferring additional powers upon the Court ; and to
state whatever peculiarities there may be in the manner in which
this statutory jurisdiction is carried into effect. In the first place,
there is this material distinction between the manner in which the

1 See'ante.

2 See onto, as to the following^ Imperial Acts :— Aliens (7 &8 Vic. ch. 66), pp. 47, 48 ; Debts andLiabUiUos

(13 & 14 Vic. ch. 35), p. 1095, et sea.; English and Irish Decrees Enforcement (41 Geo. III. ch. 90), p.
962, tt stq.; Exchequer in Equity Transfer of Jurisdiction (."i Vic. ch. 5), p. 5 ; Foreign Process (2
& 3 Will. IV. oh. 33 ; 4 & 6 Will. IV. ch. 82), p. 407 ; Infants' Marriage Settlements (18 & 19 Vic.
ch. 43), p. 1234 ; Judgments (1 & 2 Vic. ch. 110 ; 2 ft 3 Vic. ch. 11 ; 3 & 4 Vic. ch. 82 ; 18 & 19 Vic.

\ it

tl f

tt «eq.; Stainiaries Decrees EH/orcenient (18 & 19 Vic. cfi. 32), p. 964!

1882

THB STATUTORY JURISDICTION OP THE COURT.

i'

powers and remedies incident to tho original jurisdiction are called
into operation, and the means by which orders under statutes are
made : namely, that, in the former case, it is necessary, in almost
all oases, that a bill should be filed, or a suit otherwise regularly in-
stituted, before any relief can be obtained : whereas, in the latter
case, :t is usual for the Act of Parliament providing the additional
remedy also to enact, that it may be obtained in a summary man-
ner upon petition, motion, or summons.^ In all such cases, the
application should be entitled in the matter of the Act under which
it is made ; ' and also in the matter of the particular trust or other
subject to which it has reference.'

Where the application is directed by the act to be made to the
Lord Chancellor, it may be, and usually is in the first place heard
by one of the Vice-Chancellors ; * but it seems i--. cannot be made to
the Master of the Rolls, unless he is named in the act.^

The Act itself frequently points out the precise relief which the
applicant is ultimately entitled to receive. It was formerly usual
for the statute to direct that the matter might be heard upon affi-
davit ; ® but, owing to the changes in the system of taking evidence,
this is no longer necessary ; and the evidence in support of the ap-
plication is adduced in the usual manner.

Orders made under the statutory jurisdiction are enforced in the
same manner as orders made in a suit which has been regularly in-
stituted.'

Statutes relating to Charities.

Generally. — In England before any suit, petition, or other proceed-
ing (not being an application in which any person claims any property
or seeks any relief adversely to any charity, and not being an applica-
tion, in any suit or matter actually pending at the time the applica-
tion is made), for obtaining any relief, order, or direction concerning

1 See ante. 2 Re Laio, 4 Beav 500, 510.

S 1st Rep. Engr. Si Ir. Com., App. 7S. Whore the Jurisdiction is conferred by the statute, and the
property sought to be affected forms the subject-matter of a suit or other proceedings, the appli-
cation should be entitled both under the Act, and in such suit or proceeding^.

4 Re Careu, 8 Beav. 123 ; Re Howard, ib. 424, 426 ; Re Taylor 10 Sim. 201.

5 Re Seott, 12 Beav. 861, 363 ; Meyrick v. Lam, 23 Bear. 449.
0 See Ez parte Oreenhmue, 1 Swanst. 60.

7 See ante, and Ord. XXIX.

8TATUTE8 RELATING TO CHARITIES.

1888

re called
tutes are
n alinoBt
ilarly in-
ihe latter
dditional
ftry man-
lases, the
ler which
b or other

de to the
ace heard
3 made to

which the
erly usual
upon affi-
r evidence,
of the ap-

\ced in the
[ularly in-

Ir proceed-
property
Ln applica-
ie applica-
[oncerning

jitute, and the
llngr, the appU-

or relating to any charity, or the estate, funds, property or income
thereof, shall be commenced, presented or taken by any person
whomsoever (other than the Attorney-General,) he must obtain
from the Board of Charity Commissionei's an order or certificate,
signed by their secretary, authorising or directing such proceeding
to be taken : and no proceeding for obtaining any such relief, order, .
or direction as aforesaid will be entertained or proceeded with by
the Court of Chancery, or by any Court or Judge, except upon and
in conformity with an order or certificate of the said Board.^ This
provision applies to applications made to the Court, although such
applications are made under the authority of a special Act of Par-
liament.' It is not necessary to show that the Commissioners ap-
prove of the particular application ; but only that it is made with
their sanction.'

The sanction of the Commissioners is not, it seems, required,
where a fund belonging to a charity has been paid into Court under .
the Trustee Relief Act ; ^ or the Lauds Clauses Consolidation Act ; ''
nor was it required where an application was made to deal, foi the
purposes of a college, with an estate, of which part belonged to a
school and the residue to the college.^ Where a final order has
been made, and a scheme settled, the matter is no longer pending
within the meaning of the provision above stated ; and the sanction
of the Commissioners must be obtained.^

The Statute 43 Eliz. ch. 4, commonly called the Statute of Chari-
table Uses, recites that " lands, tenements, rents, annuities, profits
hereditaments, goods, chattels, money, and stocks of money, have
been heretofore given, limited, appointed and assigned, as well by
the Queen's most excellent Majesty and her most noble progenitoi-s,

1 Charitable Trusts Act, 1853 (16 & 17 Vic. ch. 137), bs. 17, 18 ; He LuUr't Hoipilal, 6 De G. M. & U.

184 ; Re Markwcll, 17 Boav. 618 ; Re London, Brighton <fc South Coatt Railway Company, 18
Beav. 608 ; and see He Cheshunt College, 1 Jur. N. S. 095, V. C. W. ; Re Skeeteg, tb. 1037, V. C. K.;
Re St. Gilet and St. George,, Bloomsbury, 25 Beav. 313 : 4 Jur. N. S. 297 ; Re Willenhall Chapel
2 Dr. & Sm. 467. 468.

2 Re Bingley School, 2 Drew. 283 : 18 Jur. 668 : and see Re Wat/ord Burial Board, 2 Jur. N. S. 1045,

v. C. W. 3 Re Wat/ord Burial Board, ubi nup.

4 Re St. OUet and St. George, Bloomsbury. ubi sup.; but see Re Markwell, ubi tup.

5 Re Listers Hospital, uhi sup.; but see A'c Cheshunt College, Re London, Brighton <k South Coa^

Railway Cmnpany, and Re Skeetes, ubi sup.; Re Fcversham Charities, 10 W. K. 291, V. C. W

6 Re Meyriek, 1 Jur. N. S. 438, V. C. K.

7 Re Ford's Charity, 3 Drew. 324 ; Re Jarvis' Charity, 1 Dr. b Sm. 97 : 5 Jur. N. S. 724,

I!

1884

THE STATUTORY JURI8DI<3TION OP THE COURT.

f

Q

I?

r

'^sBHI

ac.

as well by sundry other well-disposed persons : some for the relief
of aged, impotent, and poor people; Home for maintenance of
sick and maimed soldiers and mariners, schools of learning, free
schools, and scholars in universities ; some for the repair of bridges,
ports, havens, causeways, churches, sea-banks, and highways ; some
for education and preferment of orphans ; bonie for or towards relief,
stock, or maintenance for houses of correction ; some for marriages
of poor maids ; some for supportation, aid, and help of young trades-
men, handicraftsmen, and persons decayed ; and others for relief or
redemption of prisoners or captives, and for aid or ease of any poor
inhabitants, concerning payments of fifteens, setting out of soldiers
and other taxes : which lands, tenements, rents, annuities, profits,
hereditaments, goods, chattels, money, and stocks of money, never-
theless have not been employed according to the charitable intent
of the givers and founders thereof by reason of frauds, breaches of
trust, and negligence in those that should pay, deliver, and employ
the same."

This statute has become obsolete ; ^ but the recital above set out
is still important, inasmuch as the Court has refeieuce to it, in de-
ciding what is to be deemed a charitable purpose ; for such purpose
must be either one of those purposes denominated charitable in the
above statute ; or one which the Court construes to be charitable,
by analogy, to those mentioned in that statute.^

Sir Samuel Romilly's Act. — When the statute of Elizabeth fell
into disuse, the only mode by which any remedy could be obtained
in Chancery for the abuse of a charity was by way of informa-
tion.^ Under these circumstances, the statute usually called Sir
Samuel Romilly's Act was passed. By that Act it is provided, that
in every case of a breach of any trust or supposed breach of any trust
created for charitable purposes, or whenever the direction or order
of a Court of Equity shall be deemed necessary for the administra-
tion of any trust for charitable purposes, it shall be lawful for the
Lord Chancellor, Lord Keeper, or Lords Commissioners for the

1 Ex parte Rirkby RawntwortK Hoapital, 15 Vos. 305; Corporation of Ludlow v. Oreenhouie, I

BUgh, N. S. 17, 68 ; and for a detailed account of the effect oi the statute and the decisions under
it, see Duke'g Law of Charitable Uses ; fihelford on Mortmain, p. 276, et scq. ; and see Tudor'i
Charitahlo Trusts, and Finlngim'n Charitable Trusts Acts.

2 Kendall v. Granger, 5 Beav. 300,302; 6 Jur. 919 ; Attorney-General v. Corporation of Shrewtbury,

6 Beav. 220, 220 : 7 Jur. 757.
S AnU.

STATUTES RELATING TO CHARITIES.

1885

the relief
inance of
aing, free
if bridges,
lys ; some
irds relief,
marriages
ing trades-
)r relief or
[ any poor
af soldiers
es, profits,
ley, never-
able intent
breaches of
md employ

>ove set out

^o it, in de-

ich purpose

able in the

charitable,

Vzabeth fell
)e obtained
)f informa-
called Sir
>vided, that
)f any trust
Ion or order
bdministra-
rful for the
jrs for the

I. Oreenhouit, I
le decisions under
land see Tudofi

0/ ShrtwibKry,

custody of the Great Seal, or Master of the Rolls for the time being,
upon the petition of any two or more persons stating such com-
plaint, and praying such relief as the nature of the cane may require,
to make such order therein, and with respect to the costs of such
applications, as to him or them shall seem just ; and that such order
shall be final and conckisive, unless the party or parties who shall
think himself or themselves aggrieved thereby, shall, within two
years from the time when such order shall have been passed and
entered, appeal from such decision to the House of Lords.* By a
subsequent Act, the Attorney-General, acting CiroJ^cio, in empowered
to make application, by petition, to the Court of Chancery, with
respect to any charity, under the provisions of Sir Samuel Rorailly's
Act, or under the provisions of any Act or Acts passed, or to be
passed, authorising the application to the Court by petition, accord-
ing to the provisions of that Act.^

It has been held that the Court though it has jurisdiction, ought
to consider, in all cases, whether it is fit to exercise that jurisdic-
tion, or to put the part}*^ to file an information ;^ and that, in cases
of breach of trust, the jurisdiction ought to be confined to the
simple case of abuse of a clear trust, not involving any question
beyond the question of such abuse, and particularly not involving
the interest of persons to whom abuse of trust could not be im-
puted.* The Court has no power, under the Act, to repair a
previous misapplication of trust funds.^

The Act has been held not to apply to cases of constructive
trusts;' or where different persons claim the trust property
adversely to each other,'^ and it is sought to obtain the decision ol
the Court as to which of them is entitled to the benefit of the
charity ;8 or where, although the object of the petition was a scheme
for the management of the property, it appeared that there was a

1 62 Geo. ni. ch. 101, sec. 1.

2 Charitable Trusts Act, 1853 (16 & 17 Vic. ch. 137), sec. 43.

8 Ex parte Been, 3 V. & B. 10 ; and see Re Dean Clarke's Charity, 8 Sim. 84, 42.

4 Corporation of Ludlow v. Greenhouse, 1 Bligh, N. S. 17 : Ld. Red. 19 ; Ex parte Skinner 2 Her

463 ; utd see cases collected, 14 Beav. 120, n. ; Re Manchester New College, 16 Beav. 610 j 17 Jur,

640.
B Re Hall's Charity, 14 Beav. 115 ; and see cases collected, ib. 120, 11.
« Ex parte Brown, O. Coop. 295.

7 Ex parte Rees ; and Re Dean Clarke's Charity, ubi sup. ; Re West Retford Church Lands 10 Sim

101, 109 : 8 Jur. 501. '

8 Re Dean Clarke's Charity, u6» sup.; and see Attome.p-Oeneral v. Bishop of Worcester 9 Hare

328 ; 16 Jur. 3, ' '

I

1

1886

tHE STATUTORY JURISDICTION OP THE COURT.

dispute as to the '^eirons in whom the legal estate was vested.* It
has also been decided, that the Court had no jurisdiction to make
an order upon petition, transferring the funds of a dispensary to a
hospital, and amalgamating the two institutions.^

Where the object of the petition is the interpal regulation of a
charity, an application may be made under the statute;^ but if
there is a visitor, and the matter concerning which the interference
of the Court is sought belongs exclusively to his cognizance, then
the complaint must be addressed to him, and no remedy can be
obtained in the Court of Chancery.*

It has been held that the Court has jurisdiction under the Act :
where the point to be decided is simply a question of law, depend-
ing on the construction of a particular instrument f where the
objects of the charity have no distinct interests, and the Attorney-
General, therefore, properly represents them all, and where,
although there may be distinct interests, no substantial question
of title can arise between the several objects of the charities f wh'^re
there are no specific directions as to the application of the trust
propei-ty, or it can not be advantageously applied in the execution
of existing trusts f where it is sought to alter a scheme, which has
been settled by a decree, and which might have been altered on an
information ;' and where the question is as to the site of the
charity,*

The Court may also, under the Act, declare the proportions in
which different charitable objects are entitled to the funds ;*° and
may, where it appears that it will be for the benefit of the charity,
direct a sale of part of the estates belonging to it."

1 Re Phillipnttt CTar'.;/, 8 Sim. 381,389; see also iJo Wett Retford Church Landt,10 8im.lOl,l09:

3 Jur. 501.

2 Re Reading Dispensarp, 10 Sim. 118, 121 : 3 Jur. 697.

3 Re Shrewsbury School, 1 McN. & G. 324, 331 : 14 Jur. 259 ; Re Mancheder Hew College 16 Heav.

610 : 17 Jur. 540.

4 Attomey-Geiieral v. Clare Ball, 3 Atk. 674 ; Ex parte Berkhainpstead Free School, 2 V. & B. 134,

144 ; Thomson v. Univertity of London, 10 Jur. N. S. 069 : 12 W. R. 783, V. 0. K.

5 Re Upton Warren, 1 M. A K. 410, 416.

fl Attorney-General v. Bishop of Worcetter, 9 Hare, 328 : 16 Jur. 3 ; Re Manehetter ColUge,tm nip.

7 Re Shrewgbury School, ubi sup.

8 Attorney-General v. Bishop of Worcester, ubi tup.

9 Re Manchester Sew College, vhi sup.

10 Re Hall's Charity, 14 Beav. 115 : 16 Jur. 940 ; and see cases collected, 14 Beav. 120, n.

11 Re Parkes' Charity, 12 Sun. 32t>, 332 ; Re Overseers of EecUsall, 16 Beav. 297 ; Re AthtonCharity,

8t Bmv. 888.

STATUTES RELATING TO CHARITIES.

1887

|rcM.an<i»,10Sim.l01.109:
[der ^tu' College 16 Heav.

lanehetter College,^tf>i ««?•

Unless the application is made by the Attorney-General acting
ex officio} the petition must be presented by two or more persons : *
who should have a direct interest in the charity f and of whom
two, at least, must be individuals : a corporation not being within
the meaning of the Act ; * and the Attorney or Solicitor-General
must also signify his allowance or approbation of the petition, by
affixing his signature to it.^ The Solicitor-General, however, can
only act during the vacancy of the office of Attorney-General.*

Before such allowance can be obtained, the petition must be
signed by the petitioners in the presence of their solicitor, and
their signatures be attested by him ;^ and a certificate must also be
obtaiued on the petition, and signed by the counsel who prepared
the petition, to the effect that, in his opinion, the petition is one
proper to be presented under the act. The solicitor for the peti-
tioners' must likewise certify on the petition that the petitioners
are able to ar.awer the costs of the application.^ Upon the petition,
so signed and certified, being left with the Attorney-General's
clerk, he will obtain the Attorney-General's signature thereto, in
testimony of his approbation.

The petition may be addres'^ed either to the Lord Chancellor or
the Master of the Rolls f and it is presented, and a copy left for
the Judge, in the usual way ;^° but unless the petition is presented
by the Attorney-General acting ex officio, or in a matter which is
pending at the time of the application, the order or certificate of
the Charity Commissioners authorising the application must also be
previously obtained,^^ and produced, before the petition will be
answered.

As a general rule, the petition ought to be served upon all persona
whose interests will in any manner be affected by the order sought
to be obtained.^'

1 AnU. 2 52 Geo. 111. oh. 101, sec. 1. '

3 Re Bedford Charitiet, 2 Swanst. 518.

4 Re London, Brighton A South Coast Raiitvau Company, 18 Beav. 608. »
6 52 Geo. III. ch. 101, sec, 2. .

t Ex parte Skinner. 2 tier. 453. 7 52 Geo. HI. ch. 101, sec. 2. ■ : ■<■ <

8 Re Warwick Charitiet, 1 Phil. 56». ■^' v. . * i

9 Ante. 10 AtUe.

11 Ante. Re London, Brighton <b South Coast Railway Company, 18 Beav. 608 ; Re Ford't Charity,

8 Drew. 824 ; Re Jarvis' Charity, 1 Dr. & Sm. 97 ; 6 Jur. N; S. 724.

12 Ex parte Reet, 3 V. & B. 10 ; Ex parte Seagears, 1 V. & B. 496 ; see, however, Re Warwiek Ohari-

(Ml, 1 FhU. 669. Aa to service ol petitions, see ante.

1888

THE STATUTOKY JURISDICTION OF THE COURT.

The petition, if addresfsed to the Lord Chancellor, is usually
heard by one of the Vice-Chancellors, from whose decision an
appeal^ lies to the Court of Appeal in Chancery :2 if the order is
made in the first instance by the Master of the Rolls, no appeal
lies to that Court f and whether the order is made by that Court
or the Master of the Rolls, an appeal may be presented to the
House of Lords within two years from the time when the order has
been passed and entered.^

The proceedings under this Act have the same effect, as if they
were taken under an information.^ If a scheme is directed to be
settled, or any other proceedings to be taken in the Judge's
Chambers, the petitioners and respondents have a right to attend
there ; and it seems, that it is not only the right, but also the duty,
of the Attorney-General to interfere in the subsequent proceedings
upon the petition, in any manner he may think for the public
benefit.* Under the present practice, the Attorney-General is
always directed to be served with the summons to proceed on the
order.^

Upon the return of the summons to proceed,^ directions will be
given as to the manner in which the inquiries directed by the order
are to be prosecuted, and the parties to attend thereon.^ A concise
statement showing the object and property of the charity, is some-
times directed to be brought in and substantiated by affidavit or
other evidence.

If trustees are directed to be appointed, evidence of the fitness
of such of them as are not appointed ex ojfficio is required ; and their
written consent to act, verified by affidavit, must be produced, as in
other cases.^*'

1 See Re Upton Warren, 1 M. & K. 410, 416 ; as to appeals from orders on petition, see antt.

2 As to appeals to this Court, see ante.

3 Re Manchester New College, 16 Beav. 610 : 17 Jur. 540.

4 62 Geo. III. ch. 101, sec. 1.

6 Attomey-Oeneral v. Bishop of Worcetter, 9 Hare, 328 : 16 Jur. 3.

6 Corporation of Ludlow v. Gt'eenhoute, 1 Bligt),N. 8. 1765 ; Attorney-General v. Earl of Siam/ord,

1 Phil. 737, 749 : 7 Jur. 369.

7 Re Hatuon, 9 Hare, App. 64.

8 For the practice as to carrying in the order, and issuing a summons to proceed, see Ord. XXXV. 1(,

16 ante ; and as to adjournments of petitions to Uhambers, without auy order being drawn up,
see ante. For forms of orders, directmg accounts and inquiries us to charities, see Seton, 842,
et tea.
8 Ord. XXXV. 16 ; ante.
10 Ante. A« to appointing and removing trastees of charities, see Seton, 361, et iiq.

STATUTES RELATING TO CHARITIES.

1889

is usually
Bcision an
he order is
no appeal
bhat Court
ited to the
e order has

, BB if they
ected to be
he Judge's
t to attend
so the duty,
proceedings
: the public
^-General is
iceed on the

iious will be
I by the order
* A concise
[ity, is some-
affidavit or

M the fitness
;d ; and their
loduced, as in

ktion, see antt.

Earl of Siamfori,

Lee Ord. XXXV. 16,

der being drawn up,
(ies, see Seton, S42,

Where a scheme is directed, it is usually prepared by the
petitioners, and submitted by them to the Attorney-General: who
makes such suggestions or alterations as he thinks lit.^ A fair copy
of the scheme, showing any alterations which may not have been
agreed upon between the parties, is then left at the Chambers of
the Judge; and the scheme is then settled by him, either in
Chambers, or on an adjournment into Court.^ When finally settled,
a fair copy is signed by the Judge, and filed in the Report Office :
whence office copies may be obtained. The final order usually
refers to the scheme as filed ; and, in this manner, the expense of
setting out the whole scheme in the order is avoided.^

When the inquiries are answered, if the further consideration of
the petition has not been adjourned, an order will be made in
Chambers, appointing the trustees and approving the scheme,
or as may be required by the circumstances of the case ; and giv-
ing such consequential directiouo, as to costs or otherwise, as may
be necessary.*' If, however, the further consideration is adjourned,
the Chief Clerk makes his certificate of the result of the proceeding :
which is completed, and may be discharged or varied, as in other
cases ; ^ and the petition may then be brought on again in Court for
consequential directions, in the manner before explained.®

Charitable Trusts Acts. — The summary jurisdiction of the Court
over charities baa been greatly enlarged by the Charitable Trusts
Acts, 1853, 1855, and 1860;^ but the power of the Attorney-
General to proceed ex officio is preserved ; and his fiat or allowance
is still required, with respect to any proceeding not being an appli-
cation under the jurisdiction thereby created : where such fiat or
allowance was previously necessary.*

By " The Charitable Trusts Act, 1863," where the appointment
or removal of any trustee, or any other relief, order, or direction
relating to any charity, of which the gross annual income for the

1 Re Hatwm, 9 Hare, App. 64 ; Re Wytrndale School, 10 Hare, App. 74 ; Seton, 360. Aa to schemes,

see ib. 360-»62.

2 Ah to adjournment into Court, see ante.

3 Re Cunyers School, 10 Hare, App. 5 ; Seton, 347 ; and for form of order, see ib. Nos. 1, 2.

4 For forma of orders, see Seton, 347 et xeq, ; and as to costs in charity cases, see ib. 360, 361, 363

Morgan <b Davey, 138, et teq.
6 See ante.

6 Ante. For forms of orders, see Seton, 347, et teq.

7 16 & 17 Vic. ch. 137 ; 18 & 10 Vic. ch. 124 ; 23 & 24 Vic. ch. 136.

8 18 4 17 Vic. ch. 187, sec. 18.

I^ ii

1890

THE STATUTORY JURISDICTION OF THE COURT.

I

ui 6
5

time being exceeds thirty pounds, is considered desirable, and such
appointment, removal, or other relief, order or direction might,
before the Act, 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 and commitment
of the custody of lunatics, any person authorised in that behalf by
the order or certificate of the Charity Commissioners,^ or the
Attorney-General, may ijaake application (without any information,
bill or petition) to the Master of the Eolls or one of the Viee-Chan-
cellors sitting at Chambers, for such order, direction, or relief as
the nature of the case may require ; and the Judge to whom any
such application shall be made may proceed upon and dispose of
such application in Chambers, save where he may think fit other-
wise to direct, and may exercise thereupon all such jurisdiction,
power and authority, and make such orders and give such direc-
tions in relation to the matter of such application, as might, at the
passing of the Act, 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 Judges respectively have, in relation to such applications,
and the proceedings thereon (subject to any rules which may be
made by the Lord Chancellor, with the advice and consent of them
or any two of them,- ) all such powers of directing matters to be
heard in open Court, and of ordering what matters shall be heard
and investigated by themselves and their Chief Clerks respectively,
and such other powers and authorities, as by the Stat. 15 and 16
Vic. ch. 80 are vested in or authorised to be exercised by them at
Chambers ; ^ and the provisions of the last-mentioned Act appli-
cable to orders made by the Judges at Chambers extend to all orders
made under this Act.* It is, however, provided that the Judge
may, if he thinks fit, direct that the proceedings shall be taken by
information, bill, or petition, according to the then existing practice;

1 Ante. 2 See 16 &, 17 Vic. ch, 137, sec. 31 ; and see Ord. XLI. 10-13.

3 As to the jurisdiction and practice at Chambers, see ante.

i 10 & 17 Vic. ch. 137, sec. 28 ; and see Me Davenport's Charity, 4 Ue O. M. & G. 839. By the 23 4
24 Vic. ch 130, sec. 2, the Charity Commissioners may, upon the application o( any person autho-
rised under 10 & 17 Vic ch. 137, sec. 43, to apply for a like purjwse (see post), make such
orders as may be made by the Jud^e at Chambers for the appointment or removal of trustees of
any charity, or for the removal of any schoolmaster, mistress, or other officer thereof, or relating
to the assurance, transfer, paj-ment, or vesting of Miy real or personal estate belonifinif thereto,
or entitling the official trustees of charitable fund-", or any other trustees, to call for a transfer of,
and to transfer, any stock belonging to such estate, or for the establishment of any scheme for
the adminiatratioD of any such charity. As to appeals from such orders, see pat

STATUTES RELATINiJ TO CHARITIES,

1891

and Buoh
a might,
acery, in
risdiction
imitment
behalf by
1,1 or the
ormation,
ice-Chan-
' relief as
fhoin any
dispose of
: fit other-
irisdiction,
luch direc-
ght, at the
) Court of
esaid, in a
ly require :
(plications,
sh may be
nt of them
iters to be
|l be heard
spectively,
15 and 16
ly them at
Act appH-
all orders
the Judge
taken by
practice;

I XLl. 10-13.

_,. By the 23 &
fy person autho-
l«f), make such
Ll of trustees of
Ireof, or relating
longing thereto,
■or a transfer of,
lany aoheme for

and may abstain from further proceeding on the application ; * and
that no Judge of the Court of Chancery shall, upon any proceedings
under the Act, have jurisdiction to try or determine the title at
Law or in Equity to any real or personal property, or any term, or
interest therein, as between any charity, or ihe trustee thereof*
and any person holding or claiming such real o- personal property,
term, or interest adversely to such charity, or to try or determine
any question as to the existence or extent of any charge or trust.*

f

If the charity is within the jurisdiction of the Court of Chancery

of the county palatine of Lancaster, and the gross annual income
exceeds £30, the Chancellor of the duchy and county palatine, and
the Vice-Chaucellor of the county palatine, have concurrent juris-
diction with the Judges of the Court of Chancery.^

If the charity is estao-idhed, or administered, or applicable to or
for objects or purposes within the city of London, the before-men-
tioned provisions apply, although the gross annual income thereof
does not exceed £30^

Where the gross annual income docs not exceed £50., the jmus-
diction is exercised by the District Court of Bankruptcy or County
Court of the district of the charity ; ^ but the Charity Commis-
sioners may direct that the application shall be made before a
Judge of the Court of Chancery, or the Chancellor or Vice-Chan-
cellor of the county palatine of Lancaster, according to the pro-
visions applicable to a charity the gross annual income whereof
exceeds £30.^

Wherever it appears to the Charity Commissioners requisite or
desirable that legal proceedings should be instituted by the Attorney-
General with respect to any charity, or the estates, funds, property,
or affairs thereof, they may certify such case to him, together with
such statements and particulars as in their opinion may be
requisite or proper for the explanation of the case ; and thereupon
the Attorney-General is (if he thinks fit,) to institute and prosecute
such legal proceedings as he may consider requisite or proper, by

(!'"

rM

1 10 & 17 Vic. cli. 137, sec. 28.
4 16&^~Vic. ch, 137, sec. 30.
8 16 *i Vic. ch. 137, sec. 36.

95

•2 Ibid. Bee. 41. 3 Ibid, sec 29.

5 Ibid, sec. 32, as amended by 23 & 24 Vic. ch. 136, sec. 11.

1892

THE STATUTORY JURISDICTION OF THE COURT.

information or petition, or by application to the Judge at Chambers,
or other Court having jurisdiction under the Act.^

The apphcation to the Judge at Chambers may be made by the
Attorney-General, or by all or any one or more of the trustees or
l)er80UB administering or claiming to administer, or interested in
the charity, or any two or more inhabitants of any parish or place
within which the charity is administered or applicable.'^

The application is made by summons, in the form used for origi-
nating proceedings.^ The summons should be intituled in the matter
of the charity, as described in the certificate authorising the appli-
cation, and also in the matter of the Charitable Trusts Acts, and of
any other special Acts, such as the Trustee Acts, conferring juris-
diction in the particular case ; and should state the precise object
of the application. At the time tlie summons and duplicate are
issued at Chambers,* a copy certified by the solicitor of the appli-
cant, of the order or certificate of the Charity Commissioners
authorizing the application,'' must (unless the application is made by
the Attorney- General acting ex ojjicio,) be left at the Judge's Cham-
bers ; and at the time of sealing the summons and filing the
duplicate at the Kecord and Writ Clerks' Office, ° the applicant's
solicitor should file a written authority from the applicant to make
the application, and a certificate by himself that the applicant is able
to pay costs.^

Unless the application is confined to the appointment of trustees
and any vesting order, or order for the transfer of stock, consequent
thereon, a copy, sealed for service, of the summons must be served
on the Attorney-General, where he is not the appHcant ; and, as
a general rule, similar copies must, in every case, be served on per-
sons whose interests will be affected by the order sought to be
obtained. The Commissioners by their certificate sometimes direct

1 16 & 17 Vic. ch. 13/, sec. 20. The Commissioners may also order the bill of costs of any solicitor

for business clone on behalf of a charity or the trustees thereof to be taxed by the Taxing Mas-
ters of the Court, 18 & 19 Vic. ch. 124, sec. 40 ; ante.

2 16 & 17 Vic ch. 137, sec. 43.

3 Ord. XL. 10. For form of summons, see ib. Sched. K. N<>. 1.

4 For the practice as to preparing, issuing, and serving a sumnionB originating proceetlings, see ante.

6 Ante. U ^nte.

7 This practice is not, however, now adhered to.

STATUTES RELATINCJ TO CHARITIES.

1893

liamberB,

de by the
rustecB or
jrested iu
1 or place

L for origi-
the mattei"
tlie appli-
.cts, and of
ring juris-
ecise object
Lplicate are

[ the appli-
amissioners

1 is made by

Ige'sCham-

i tiling the

applicant's

^nt to make

icant is able

„ of trustees
consequent
[st be served
Lt ; and, as
tved on per-
Lugbt to be
[times direct

, of any solicitor
the Taxing Mas-

Leeclings, see on««.

to whom notice of the application is to bo given ; and if the appli-
cation is for the establishment or alteration of a scheme, or the
appointment or removal of any trustees or trustee, notice in writing
of such intended application must be given, in such form and
manner as the Charity Commissioners may direct ; and where the
notice is directed to be affixed to or near the door of any parish or
district church, the incumbent and churchwardens are to allow such
notice to be affixed and remain so affixed during such period, not
less than fifteen days, as the Commissioners may have ordered;
and whenever it has been ordered that such notice shall be affixed
to any place, evidence that the same has been so affixed is to be
deemed prima facie evidence that it has remained so during the
prescribed time.^

On the return of the summons, or at an adjournment thereof, the
object of the application, and the evidence adduced in support of
or in opposition to it, will be considered ; and where the application
seeks the appointment of trustees, or the settlement of a scheme,
the course of proceedure is the same as that before described.^ On
the proceeding being brought to a conclusion, the Chief Clerk sends
to the Kegistrar a minute of the order made : and the order is
di'awn up and completed by him in the usual way.^

Where any land, or any term or estate therein, holden upon
trust for any charity, is vested in any persons other than the per-
sons acting in the administration and application of the rents —
or where there are no trustees thereof, or the trustees, or any of
them, are unwilling to act, or it is uncertain in whom such land,
term, or estate is vested, or all or any of the persons in whom
such land, term, or estate is vested cannot be found, or are under
age, lunatic, or of unsound mind, (whether found such by inquisi-
tion or not,) or otherwise incapable of acting, or are out of the
jurisdiction, or not amenable to the process of the Court of Chan-
cery— or where, by reason of the reduced number of trustees or
other causes, a valid appointment of new trustees cannot be made
— or where, by reason of the expenses incident to the appointment
of new trustees, and the conveyance or assignment of such land,

I 16 & 17 Vic. ch. 137, sec. 42. 2 Ante.

3 Ante For a collection of orders under the Charitable Trusts Acts, with notes, gee Seton, 783, et
uq. ; and see ib. 347, et teq.

!:!■'

1894

THE STATUTORY JURISDICTION OF THE COURT.

f

Q

ex '

term, or estate, to such new trustees, it shall appear to the Court of
Chancery, or to any Judge thereof, desirable so to do — such Court
or Judge may order that such land, term, or estate, be vested in
the Official Trustee of Charity Lands ; and thereupon the same is
to vest in such official trustee and his successors, for all the estate
and interest holden in trust for the charity, without any convey-
ance or assurance thereof; but no such vesting order is to be
made in respect of any land, or term, or estate, as aforesaid,
holden in trust as aforesaid, vested in a corporation, without the
consent of the corporation ; and no such vesting order is to take
effect in respect of any copyhold land, without the consent of the
lord of the manor, and the Court or Judge may direct such peri-
odical or other payment, as the Court or Judge may think fit,- to be
made to the lord of the manor, in compensation for fines or other
profits which would have become due upon death or admittance of
tenants.^

Any Court or Judge by whom any such vesting order may have
been made, or any other Court or Judge having jurisdiction in the
matter, may, if it shall so seem fit to such Court or Judge, from
time to time order that all or any part of the land, term, or estate,
which shall for the time being be vested in the Official Trustee, by
virtue of any such vesting order, shall be devested, and vested in
the acting trustees or trustee for the time being of the charity ;
and such last-mentioned order is to operate to vest such land, term,
and estate, in the trustees or trustee therein named, without any
conveyance or assurance.'^

The Official Trustee of Charity Lands is to be deemed a bare
trustee ; and is to permit the persons acting in the administration
of the charity to have the possession, management, and control of
the trust estates, and the application of the income thereof, as it
the same had been vested in them, unless the Court or Judge
otiierwise directs.^

The Court or Judge may, whenever it shall appear that, for the
purpose of security or the convenient administration of the charity,

1 16 & 17 Vic. ch. 137, sec. 48, as amended by 18 & 19 Vie cli. 124, sec. 15. For forms of orders, see

Seton, 349, No. 8 ; 783, No. 3. „ „ , ^^ .^

2 16 & 17 Vic. ch. 137, sec. 49, an amended by 18 & 19 Vic. ch. 124, sec. 15 ; Re DavenpoH't Chanty

4 De O. M. & O. 839.

3 16 & 17 Vic. ch. 137, sec. 60, as amended by 18 is. 19 Vic. ch. 184, sec. 16.

STATUras RELATING TO CHARITIES.

1895

Court of
jh Court
rested in
) same is
he estate

convey-

is to be
aforesaid,
bhout the
8 to take
3nt of the
3ucb peri-
ik fit,- to be
B or other
aittance of

f may bave
tion in the
udge, from
1, or estate,

'rustee, by
vested in

le charity;

land, term,

ithout any

led a bare

linistration

control of

Breof, as it

or Judge

liat, for the
Ihe charity,

Ims of orders, see
InpoH's Charity

any annuities, stocks, shares, or securities held in trust for the
charity, or for the purpose of discharging any legacy or charge
given or made to or for the benefit of the charity, ought to be
transferred or deposited to or with the Official Trustees of Chari-
table Funds, order such transfer or deposit to be made ; and may
authorise such trustees to call for a transfer of and to transfer
such stock or shares ; and may order the payment to such trus-
tees of any principal monies of any charity, under the same cir-
cumstances in which the transfer of stock to them may be ordered ;
and may empower them also to receive and recover, in trust for
the charity to which the same shall belong, all dividends, interest,
and income accrued from any such annuities, stock, or securities,
respectively, and which shall for the time being be in arrear.^

Copies of all orders made by any Coui-t or Judge for any trans-
fer, deposit, or payment of stock, shares, securities, or monies to
or by the Official Trustees, are to be forthwith transmitted to the
Commissioners, by the parties obtaining such orders.^

No order made under the Act by the Judge at Chambers is sub-
ject to appeal where the gross annual income of the charity does
not exceed i^lOO : unless the Judge by whom such order is made
certifies that such appeal ought to be permitted, either absolutely
or on such terms as he may think fit to impose.^

The fees payable on proceedings before a Judge in Chambers
under the Act are the same as the fees payable according to the
general orders of the Court * in respect of other proceedings com-
mencing by summons ; and are, in all other respects, regulated by
the same orders ; and where the Judge directs that any matter
commenced by summons under the Act shall be heard in open
Court, the same fees are payable, and the same costs allowed, as
would have been payable in respect of any other matter so heard.^

1 16 & 17 Vic. ch. 137, sec. 51 ; 18 & 19 Vic. ch. 124, ss. 12, 18 ; 23 & 24 Vic. ch. 136, sec. 12. By 16 &

17 Vic ch. 137, sec. 51, trustees were empowered, on obtaining an order of the Court, to transfer
or pay any charity funds to the ottlcial trustees. This may now be done under an order obtained
from the Charity Commissioners : 18 & 19 Vic. ch. 124, sec. 22. For forms of orders^ see S^on,
784, et »eq.

2 18 & 19 Vic. ch. 134, sec. 20.

3 16 & 17 Vic. ch. 137, sec. ".'8 ; Ord. XLI. 13.

4 That is to say, Ord. XXXVUI. and XXXIX.
f> On). XU. rr. 11, 12. t

hi

lil: -^\

1896

THE STATUTORY JURISDICTION OF THE COURT.

The Court of Chancery has an appellate jurisdiction, in the case
of orders made under the Act hy a District Court of Bankruptcy
or a County Court. The appeal may he brought hy any person
authorised to make any application under the Act, or any other
person who may have been made a party to any proceeding upon
any application thereunder.

Every appellant, other than the Attorney-General acting ex
officio, must, however, within one calendar month after the making
of the order complained of give notice in writing to the Court
below and to the Commissioners of his desire to appeal ; and if
the Commissioners think it proper that such appeal should be
entertained, and give a certificate to that effect, the Court below
is to suspend any proceedings upon the order appealed against ;
and the Commissioners may require the person giving such notice
to become bound, by a bond (which is exempt from stamp duty,)
with two sufficient sureties, in such sum as the Commissioners
may think reasonable, to pay such costs of the proceedings on tlio
appeal as may be ordered to be paid by the appellant ; and also
(if the Commissioners so think fit,) to indemnify the charity against
the costs and expenses of or attending the appeal. An appeal by
the Attorney-General must be lodged within three calendar months
after the mjaking of the order complained of.^ In other cases, the
petition of appeal must be presented within three calendar months
from the date of the order allowing the appeal.^

The petition must set forth the order appealed against, and the
order allowing the appeal ; and pray such relief as the case may
require ; and upon the hearing of such petition, the Court may
confirm, vary, or reverse the order appealed against, or may remit
such order to the District Court of Bankruptcy or County Court
by which the same was made, with or without any declaration or
directions in relation thereto ; or may proceed, in relation to the
charity to which such order relates, as in the case of an a^jplica-
tion under the Act to a Judge of the Court at Chambers ; and any
Judge sitting at Chambers or in open Court may make or give any
such orders or directions, in relation to the matter of such order,

1 16 * 17 vie. ch. 137, pec. 39.

t Ibid, bs :{9, 40. 15> the expression " onler allowlngr the appeal," it \a concehred that the certificate
mentioned in s. 39 is intended;

STATUTES RELATING TO CHARITIES.

1897

lefl that the certificate

an he may see fit : or tho Court may make such othor order, in
relation to tho matter of any Huch appeal, as to the Court may
B(H'm just, and as mif:;lit ho made in the case of a suit regularly
instituted, or a petition, as the case may require; and in case tho
party allowed to appeal does not within such three calendar months
present such petition of appeal, the order against which such
appeal was allowed is to ho final ; and in case any costs, adjudged
on any sucli appeal to he paid hy the party allowed to appeal, are
not paid, the hond may he put in suit ; and the money to be re-
covered thereon is to he applied to indemnify tho charity estate, or
the person damnified, or otherwise in such manner as the justice
of the case may require, and the Court or Judge hy whom such
appeal may have been hoard shall think fit.*

The Charity Commissioners may, in ease they disapprove of any
order or decision of Jiny J)i8trict Court of Bankruptcy or County
Court for the appointment or removal of any trustee of any charity,
or approving of any scheme for regulating or directing the admin-
istration of any charity, or the estate, funds, property, or income
thereof, submit the sam« to the consideration and decision of a
Judge of tho Court of Chancery ; or they may remit the same for
reconsideration by the District or County Court ; and in case the
Commissioners are dissatisfied with tho order of the District or
County Court on the reconsideration of the matter, they may refer
such orders and the subject-matter thereof to a Judge of the Court
of Chancery ; or, as to any charity within the jurisdiction of the
Court of Cliancery of tlie county palatine of Lancaster, either to
the Chancellor or the Vice-Chancellor thereof, or to a Judge of the
High Court of (.Chancery ; and where any order or decision is so
referred, the Judge has and may exercise all such jurisdiction,
power, and authority in relation thereto, as in the case of a charity
the gross annual income whereof exceeds 4^30; and may make
such order in relation to the matter of such order or decision as to
him may seem proper.'-

For the purposes of determining the jurisdiction under the Act,
with respect to any ciiarity, or the right to appeal from the deter-

1 Ui 4 17 \'k. eh. 137, hoc. 40 ; .■viid see, fi>r an a|)poal under this scution, Rt Donington Church Eitate,

«Jur. N. S. 29(>: 8 W. K. 301, V. 0. S.

2 16 & 17 Vic. oh. 137, bee. 37. '

1

ii-'i

I il

1898

THK HTATUTORY .fUniSDKTfON VV THK COl'llT.

minatioij of a Judgo of tlio Court of ('luiiicory, a Htiitcmciit in any
cortifieato or order of tho ConuiiiwHionorH tluit, accorditig to tlioir
judgment, tho groHH yoarly iiu'onic of any charity dooa or dooH not
exceed .1*80 or t'lOO, an tlie cant* may he, \h HulUcient evid«'nco of
the amount of Hiich income.'

I

c

<a

I

Tho Attorney-General, or any person authorised hy liini or by
the Connnissioners, in tlie case of any charity, whatever may he the
yoarly income of its endowments. an<l any trustee or person actiii},^
in the administration of or interestetl in any charity of which the
jifross animal inconie (exclusively of the early vahu; of any build-
ings or land used wholly for the purposes thereof, and not yielding
any pecuniary income,'^ shall oxcet'd .50/., or any two inhabitants of
any parish or district i>\ which the same shall be specially applica-
ble, may, within three calendar months next after the <lefinitive pub-
lication ^ of any order of the ( -onnnissioners appointing or removing
a trustee or trustees, or for or relating to the assuraiice, transfer,
payment, or vesting of any real or personal estate, or establishing
a scheme for tho administration of the charity, present a petition
to the High Court of Chancery, in a summary, way, a]>]»ealing
against such order and ])raying such relief as tlui case may require; ;
and any schoolmaster or schoolmistress, or other officer removed by
the order of the Board, without the concurrence of the trustees or
governors acting in tlie administrati(m of the charity, or a majority
of them, and without the approval of a special visitor, if any, of tho
charity, may within two calendar months (next after his or her re-
moval,) appeal in like maimer agaiivsr the order of removal ; and tho
Court, upon or before the hearing of any such petition of appeal, or
at any stage of the proceedings, may require, if it shall think lit,
from the Commissioners, their reasons for making the order appealed
against, or for any part of such order, and may remit the same to
them for reconsideration, with or without any declaration in rela-
tion thereto ; or may make any substitutive or other order, in rela-
tion to the matter of the appeal, as it shall think just ; and the
Court may make any order respecting the costs, charges, or expen-
ses incident to the appeal, and may also, before hearing or proceed-

1 10 & 17 Vic. ch. 137, sec. 44. 2 23 & 24 Vic. ch. 136, bcc. 4.

3 See Kf Hackney Charities, 10 Jur. N. S. 941 : 12 W. U. 112S», M. H. ; ami see S. 0. on appeal, 11
Jur. N.S. 12(i: la W. R. 8i>8.

STATUTES UKLATINU TO CIIAIUTII-W.

1890

in^ with tl»o Hnnio, roeiuiro from any appellant, other than the
Attonu^y-dtiiuM'al, proper Heciirity for such conts, cluirj^cH, and ox-
ponses aH may be eventually payaMt; l>y him ; but no such petition
of appeal is to \)o preHiinted by any person, other than the Attornoy-
(Jlcneral, before the expiration of twenty-oiu^ days after written
notice, under the hand of such appellant, of his or her intention to
present such petition, shall have been delivered to tiio Conunitision-
eru at their otliee.^

The Attorney-neneral, or any person authorised by him or by the
(^onuiiissioners, may appear as the respondent upon any such aj)-
peal ; and the (.^)urt may nuike any order res|U!cting the costs
charges, and expenses of tlie Attorney-Cjieneral or other respondent.'-^

There is no appeal, under these provisions, at the instance of two
of the inhabitants of a parish, in tlu( case of a charity the annual in-
come of which is under 50/., without the sanction of the Attorney-
General or the Charity (commissioners.''

If any person n^fuses or wilfully n(\glccts to comply with any law-
fid requisition or order of the (^onnnissioners, or destroys or with-
holds any document ro(piired to bo produced or transmitted by liim,
or to answer any lawful (^rnvstions or inrpiirics, or to attend in obe-
dience to any lawful precept of, or give evidence before any inspec-
tor, or if any ptu'son wilfully alters, destroys, withholds, or refuses
to ])rodiice any document which may be lawfully I'oquircd to l)c ))ro-
(luccd before any inspector, every person so offending is to bo
deemed and taken to be guilty of a contempt of the Court of Chan-
cery, and is liable to bo attaclied and committed on summary appli-
cation by the Commissioners to the Court, or any Judge thereof;
and may be ordereil to pay the costs of and attending such con-
tom])t ; and the Court may, at any time, discharge such person,
upon such terms as it may deem just."*

Any question or dispute among the members ot any charity,
wheth or within or exempted from the operation of the Act, in rela-

1 2.3 & 24 Vic. c)i. ino, sec. 8. 2 23 & 24 Vie. cli. l.^d, soc. 9.

H Re Uackni-ii Cliaritiis, 11 Jtir. N. S. 126: 13 W. K. 31)8, L.JJ. ; ovemiliiiff S. C. 10 Jur. N. S. 941 :

12 W. H. 1129, M. H.
■» Wfi 17 Vie. eh. 137, sou. 14 ; 18 * 19 Vic. ch. 124, soc. 9 ; 23 & 24 Vic. ch. 130, sec. 20. A to con-

tuinpts tiiul onforuiii^ ordoro, hoc ante.

''''N4

'iii:

1900

THE STATUTORY JURISDICTION OF THE OOURT.

1

5

tion to any office, or the fitness or disqualification of any trustee or
officer, or his election for removal, or generally in relation to the
management of tlie charity, may be referred to the Commissioners
by two-thirds of the members present at a special meeting, duly
convened by notice for the purpose, in the same manner in whicli
meetings of such charity are by the rules thereof appointed to be
held and convened ; and thoir award is final, and may be made a
rule of the Court of Chancery,^

For the purposes of the Acts the word " charity " is defined to
mean : every endowed foundation and institution taking or to take
effect in England or Wales, and coming within the meaning, pur-
view, or interpretation of the Stat. -tS Eliz. ch. 4,^ or as to which,
or the administration of the revenues or property whereof, the
Court of Chancery has or may exercise jurisdiction ; ^ but the Acts
do not extend to the Universities of Oxford, Cambridge, London, or
Durham, or any college or hall in the said universities of Oxford,
Caml)ridge and Durham, or the Colleges of Eton and Winchester,
or any cathedral, or collegiate church ; nor to any building regis-
tered as a place of meeting for religious worship, and bona fide used
for that purpose ; nor to the Commissioners of Queen Anne's
Bounty ; nor to the British Museum ; nor to any friendly or benefit
society, or savings bank, or any institution, establishment, or society
for religious or other charitable purposes, or the auxiliary or branch
associations connected therewith, wholly maintained by voluntary
contributions ; nor to any bookselling or publishing business car-
ried on by or under the direction of any aociety wholly or partially
ixempted from this Act, so far as such business is or shall be car-
ried on by moans of voluntary contributions only, or the capital
or stock of such business ; an<i where any charity is maintained
partly by voluntary subscriptions, and partly by income arising
from any endowment, the provisions of the iVcts, with respect to
such charity, extend and ajjply to the income from endowment
only, to the exclusion of voluntary subscriptions, and the apj:!ica-
tion thereof; and no donation or bequest unto or in trust for any
such charity as last aforesaid, of which no special application or

1 16 & 17 Vic. ch. 187, sec. (14 ; 18 & 19 Vlc. ch. 124, sec. 46. A§ to makiiigf awards rules of Court,
see poH. 2 See ante.

3 16 & 17 Vic ch. 137, sec. «6.

m^-'

r trustee or
ition to the
unissioners
5ting, duly
r in which
inted to be
be made a

1 defined to
T or to take
waning, pur-
Ls to which,
/•hereof, the
mi the Acts
, London, or
of Oxford,
Winchester,
lilding regis-
ma iide used
leen Anne's
ly or benefit
at, or society
ry or branch
)y voluntary
jusiness car-
or partially
shall be car-
the capital
maintained
;ome arising
I respect to
endowment
the api-'ica-
,rust for any
pplication or

STATUTES RELATING TO CHARITIES.

1901

•ds rules of Court,

appropriation h«,8 been directed or declared by the donor or testa-
tor, and which may legally be applied by the governing or manag-
ing body of such charity as income in aid of the voluntary subscrip-
tion, is subject to the provisions of the Acts ; and no portion of any
such donation or bequest as last aforesaid, or of any voluntary sub-
scription which is or may be from time to time set ajiart or appro-
priated and invested by the governing or managing body of the
charity, for the pui*pose of being held and applied or expended for
or to some definite and specific object or purpose connected with
such charity, in pursuance of any rule or regulation made or adop-
ted by the governing or managing body of such charity, or of any
donation or bequest in aid of any fund so set apart or appropriated
for any such object or purpose as aforesaid, is subject to the pro-
visions of the Acts ; and the Acts do not apply to the funds orproperty
of any missionary or other similar society, or the missionaries,
teacliers or otficers of such society, or of any branch thereof, which
funds or property shall not be within the limits of England
or Wales ; but the exemption does not extend to any cathedral, col-
legiate, chapter or other schools.^ The Commissioners may,
however, on the petition of any exempted charity, make an order
that it be bound by the provisions of the Act.-

Where any real or personal estate is given, partly upon lawful
and partly upon unlawful charitable trusts, for the exclusive benefit
of Roman Catholics, the Court or Judge at Chambers may, in exer-
cise of the jurisdiction created by the Charitable Trusts Act, 1853,
on the application of the Attorney-General or of any person author-
ized by a certificate of the Charity Commissioners,-* apportion the
property or income so that a proportion thereof, to be fixed by the
Court or Judge, may be exclusively subject to the lawful trusts, de-
clared by the donor or settlor, and the residue thereof may become
subject to such lawful charitable trusts for the benefit of Roman
Catholics as the Court or Judge may consider, under the circum-
stances, to be most just ; and may, by the same or any other order
or orders, establish a scheme for giving efiect thereto ; and may ap-

1 16 & 17 Vic. oh. 137, sec. 62 ; 18 & 1!) Vic. ch. 124, seu. 49 ; Oovernorn of the Charity for Widows

and Children of Cletyyineii v. Sutton, 27 Beav. 651 ; S. C. ni)in. Corporation of the Soim of the
Clergu v. Tfu»tef» of the Stork Sxehamje, (i Jur. i\. S. S4.

2 16 & IT Vic. ch. 137, nee, 63. :< See ante.

m

1902

THE STATUTORY JURISDICTION OF THE COURT.

ui d

■0-

point trustees for the administration of the several portions of the
property ; and may vest the estate in the trustees.^

No provision contained in any Act of Parliament, or decree or
order, for the appointment or removal of trustees of any charity,
or for or relating to the sale, exchange, leasing, disposal, or improve-
ment of any property, by or under the order, or with the approval
of the Court of Chancery, is (in the absence of any express direction
to the contrary contained in any Act of Parliament, order, or de-
cree subsequent to the 7th August, 1862,) to exclude or impair any
jurisdiction or authority which might otherwise be properly exer-
cised for the like purposes by the Charity Commissioners.^

Orammar School Act — By the Grammar School Act,^ the Court
is empowered to extend th^ system of education, and to regulate
the right of admission into any grammar School, and to establish
schemes for the application of its revenues ;* but regard is to be had
to the intentions of the founder, and the manner in which the
school has been conducted ;^ and unless the revenues are insufficient,
the teaching of Greek or Latin is not to be dispensed with, or to be
treated otherwise than the principal object of the foundation ; nor
is any provision relating to the qualification of any schoolmaster to
be dispensed with.® Any extension of the right of admission is to
be qualified, so as not to prejudice existing rights.'^ The standard of
admission is not to be lowered ;^ and as far as possible the character
of the school, and the qualifications of the masters, are to be main-
tained.*' In the appointment of additional masters, the original
qualifications are to be maintained as far as possible ; and any
existing rights of patronage are preserved.^** The appointment of
any master made after 7th August, 1840,^^ is to be subject to the
Act ;^^ and the period on which the right of nomination of a master
would lapse is, on the first avoidance of the oftice which may take
place after the 7th August, 1840, to be computed from the time oi

1*23 & 24 Vic. ch. 134, sec. 1 ; mid sec 16 & 17 Vic. ch. 137, sec. 62 ; 18 & 19 Vic ch. 124, sec. 47; Be
Blundcll, 8 Jur. N. S. 6 : 10 W. R. 34, M. tt.

2 25 & 26 Vic. ch. 112.

3 3 it 4 Vic. ch. 77, sec. 1. For cases under the Act, see lie Marlboro yh Schoo/, 7 Jur. 1047 L. C. ;

Re Chelms/ord School, 1 K. & J. 643 : 3 Eq. Rep. 517 ; see also Attorney-Genera/ v. Bhhop o/
WoreeBter, 9 Hare, 328.

4 3 & 4 Viii ch. 77, sec 1. 5 Ihw , sec. 2-

6 3 & 4 Vic. ch. 77, sec. 3. 7 Ibid. sec. 8. 8 Ih'd. sec. 4. 9 Ibid. sec. 5,

10 Ibid. sec. 6. 11 "The date of the passing of the Act.

12 3 & 4 Vic. ch. 77, sec. 11

)ns of the

decree or
y charity,
: improve-
3 approval
s direction
ler, or de-
mpair any
)erly exer-

2

' the Court

to regulate

o establish

J to be had

which the

nsufficient,

h, or to be

ation; nor

)lmaster to

ission is to

tandard of

character

be main-

e original

and any

ntment of

ect to the

' a master

may take

le time oi

124, seu. 47 ; Be

ur. 1047 L. C. ;
al V. Bishop of

bid. sec. 5,

STATUTES RELATING TO CHARITIES.

1903

settling the new statutes, or, if no proceedings are then pending to
establish new statutes, from the time within which proceedings
might be commenced.^

Where the several schools are in one place, and the revenues of
any are insufficient ; they may, with the consent of the visitor,
patron, and governors, be ordered to be united.^

The Court may enlarge the powers of the visitor where they
are insufficient ;^ and, if there is no visitor, may authorize the
Bishop of the Diocese to visit the school* In case the visitor
refuses or neglects to act, the Court may substitute a person to act
as visitor pro hac vice,^ and may empower the visitor or Governors
to remove any master,* If the Crown is the patron, the Lord
Chaacellor, or the Chancellor of the Duchy of Lancaster, are to be
the patrons of the school for the purposes of the Act/

Applications to the Court under the Act are only made by peti-
tion under the 52 Geo. III. c. 101 ;^ but wherever there is any
special visitor appointed by the founder, or other competent
authority, opportunity must be given him to be heard previously
to any decree or order being made.® The petition ought to be served
on the patron and the master of the school.^®

The Act preserves the jurisdiction of the Ordinary ; and does not
extend to the Universities of Oxford or Cambridge, or to any
college or hall within the same, or to the University of London, or
any college connected therewith, or to the Univei-sity of Durham,
or to the Colleges of St. David's or St. Bees, or the Grammar Schools
of Westminster, Eton, Winchester, Harrow, Charter House, Rugby,
Merchant Tailors, St. Paul's, Christ's Hospital, Birmingham,
Manchester, or Macclesfield, or Louth, or such schools as form part
of any cathedral or collegiate church.^^

In the construction of the Act, the words " Grammar School "
are to mean and include all endowed schools, whether of royal or
other foundation, founded, endowed, or maintained for the purpose

1 3 & 4 Vic ch. 77, sec. 12. 2 Ibid. sec. 9.

r> Ibid, uec 10. U Ibid. sec. 17.

8 IbUi. sec. 21 ; see ante.
10 Be Marlborough School, 7 Jur. 1047, L. C.

3 Ibid, sec 14.
7 Ibid. sec. ?2.
9 3 & 4 Vic. ch. 77, sec. 1.
11 3 & 4 Vic. Oh. 77, sec. 24.

4 Ibid. sec. 16.

!'■. I

•III

IS:'

V "1

4 -

.11

■ if

iri

I'lh

i

1904

THE STATUTORY JURISDICTION OF THE COURT.

if

of teaching Latin and Greek, or either of such languages, whether
in the instrument of foundation or endowment, or in the statutes
or decree of any Court of Record, or in any Act of Parliament
establishing such school, or in any other evidences or documents,
such instruction is expressly described, or is described by the word
•' grammar," or any other form of expression which may be
construed as intending Greek or Latin, and whether >>y such
evidences or documents, or in practice, such instruction is limited
exclusively to Greek or Latin, or extended to both such languages,
or to any other branch or branches of literature or science in
addition to them or either of them ; and the words " Grammar
School " are not to include schools not endowed, but include all
endowed schools which may be Grammar Schools by reputation,
and all other charitable institutions and trusts, so far as the same
may be for the purpose of providing such instruction as aforesaid.^

Under the present pi-actice, the jurisdiction conferred by the last-
mentioned Act may be exercised under the Charitable Trusts Acts ;
and, accordingly, the Act is seldom resorted to.-^

Church Building Amendment Act. — By the Church Building
Acts Amendment Act, power is given to the Court of Chancery to
apportion, between the new parishes or districts to be created under
those Acts and the lemaining part of the parish or place out of
which they are created, any charitable devises, bequests, or gifts
which may have been made to or given for the use of such parish
or jjlace, or the produce thereof ; and to direct that the apportioned
part shall be distributed by the incumbent or spiritual person
serving the church, or by the churchwardens of the separate parish
or district, either jointly or severally ; and the Court is also em-
powered to apportion any debts or charges which may have been,
before the period of the apportionment, charged upon the credit of
any cliurch rates in such parish or place ; and all such apportion-
ments are to be registered in the Registry of the Diocese in which
such parish or place is situate, and duplicates are to be deposited
with the churchwardens of such parish or place ; but in all such
cases, the costs are to be in the discretion of the Court ; and such

1 3 & 4 Vic. ch. 77, sec. 25 ; and see ih. for the cunstructton of the words : visitor, governors, tnis
tees, statutes, schoolmaster, master, under-master, discipline, and managen>out, as used in the
Act. 2 See ante.

, Vrhether
3 statutes
arliament
ocuments,

the word

may be
r >»y such

is limited
languages,
science in

Grammar
nclude all
•eputation,
3 the same
iforesaid.^

»y the last-
•usts Acts ;

Building
hancery to
;ed under
ace out of
,s, or gifts
ach parish
pportioned
lal person
ate parish
also em-
lave been,
credit of
apportion-
in which
deposited
all such
; and such

governors, triis
as used in the

STATUTES RELATING TO CHARITIES.

1905

apportioned debts or charges are to be raised and paid by the
parish or place in which they may be apportioned, in such manner
as the entirety was to be raised and paid, or as the Court may
direct ; and when any securities have been given for the same, the
Court may order new securities to be given for the apportioned
debts by such persons and bodies as the Court may direct ; and all
securities are to be valid and binding.^

This power is exercised on petition, according to the 52 Geo. III.
c. 101,^ of any two persons resident in such parish or place;* and
the petition should be entitled in the matter of botli Acts.^

The Court has a discretion under the Act ; and in exercising that
discretion, it should be guided by the consideration whether the
administration of the charity is or is not affected by the division of
the parish into districts, to the prejudice of the inhabitants of the
new district.^ Where a ward of a parish has been divided into
districts, gifts made to it may be apportioned under the Act.^

By the Charital)le Trusts Amendment Act, 1855, a similar power
of apportioning parochial charities has been conferred on the
Charity Commissioners, in all cases where the gross annual income
of the charity does not for the time being exceed SOU

Burial Acts. — By the Burial Acts, the burial boards thereby con-
stituted, with the approval of the vestry, and of the guardians of
the poor (if any,) and of the Poor Law Board, may appropriate, for
the purposes of a burial ground, any lands vested in any persons
as trustees for the general benefit of the parish, or for any specific
charity ; but when such lands are subject to any charitable use,
they are to be taken on such conditions only as the Court of
Chancery, in the exercise of its jurisdiction over charitable trusts,
shall appoint and direct.*

The sanction of -the Charity Commissioners must be obtained to
the application.'* The application is made by the petition or sum-

1 8 & 9 Vie. ch. 70, sec. 22. 2 Ante. 3 8 «.t 9 Vic. ch. 70, sec. 22.

■4 Re Weitt Ham Chanties, 2 Oe U. & S. 218, 222 : 12 Jur. 783.

r> Ex partf Tncumhent of Brompon, 5 De O. ^ 8. 626, 635 ; see form of order, Seton, 346.

6 Re\. est Ham Charities, uhimp. ; and as to the application of the Act, see Attomey-Oeneral v.

Love, 23 Beav. 499 : 3 Jur. N. S. 948.

7 18 * 19 Vic. ch. 124, ss. 10, 11.

8 15 & 10 Vic. ch. 85, sec. 20 ; extended to parishes not in the nietropolis by 16 & 17 Vic. ch. 134.

9 AnU. Re Watford Burial Board, 2 Jur. N. 8. 1046, V. C. W.

1906

THE STATUTORY JURISDICTION OF THE ( OURT.

I

«

Q

■/

Ui

u>

Q

&

i4j d

£3^

^2

d

?

^

k,

.<"

ct.

mons, in the manner before explained ;^ and be supported by evi-
dence of the propriety of the application. The question of price is
one circumstance which the Court will consider, in deciding on the
application.''

Municipal Corporations Act. — By the Municipal Corporations
Act, it is provided that, where municipal corporations, or any of
the individual corporators, were, before the Act, trustees of pro-
perty for charitable purposes, the persons who at the time of
the passing of the Act were such trustees, should notwithstand-
ing they ceased to hold office, continue to be such trustees
until the first of August, 1836, or until Parliament should other-
wise order, and should immediately thereupon cease so to be. It
is, however, ;^vided that if any vacancy should be occasioned
among tLo i* ""jle trustees for any borough before the said 1st
of August, loe Lord Chancellor* upon petition, in a summary way,
should ha^o power to appoint another trustee to supply such
vacancy; and csury ^.i^rsor so appointed a trustee should be a
trustee until the time at which the person in the room of whom he
was chosen would regularly have ceased to be a trustee, and should
then cease to be a trustee ; and that, if Parliament should not
otherwise direct, on or before the said 1st of August, 1836, the
Lord Chancellor should make such orders as he should see fit for
the administration, subject to such charitable uses or trusts as
aforesaid, of such trust estates.^ As Parliament has not otherwise
directed, the' powers conferred by the last provision upon the Lord
Chancellor still continue.

The Act only applies to charitable trusts for purposes dehors
the corporation.* The right of nominating to a spiritual benefice, ^
or to the mastership of a hospital, is. within the Act.®

The jurisdiction under the Act is exercised upon petition. The
petition ought to be presented under Sir Samuel Komilly's Act,^

' 1 As to petitions otid sumiuoiiBes, sec ante.
2 Re Etjham Buria.' Board, 3 Jur. N. S. 956, V. C. \V.
8 5 & « Will. IV. ch. 70, sec. 71.
4 Re Oxford CharifieH, 3 M. & O. 239, 244 ; and see Re Ludlow Charities, ib. 202, 203 ; Chri>it'» Urn-

pitalv. Oranger.ia Sim. ii3, 102; Attorney-Oeiieral v. Sewbury Corporatiun, C. P Coop. 72 ;

Attorney-Oentral v. Corporatimi of Ludlow, 2 Phil. 686 ; Attorney-General v. Corporation of

Exeter, 2 De G. M. & G. 507 : 17 Jur. 266.

6 Re Shrewsbury School, 1 M. & O rt'^'^ ; Re St. John's Hospital, 3 McN. & G. 235. , .
a Ibid., Re Huntington Charitica, 'ii Bo&r. 2U. '

7 62 Geo. HI. c. 101, ante.

STATUTES RELATING TO CHARITIES.

1907

I by evi-
f price is
ig on the

■' «- ' , ' '

porations
or any of
)S of pro-
time of
ithstand-
trustees
aid other-
to be. It
ccasioned
e said Ist
aary way,
3ply such
ould be a
; whom he
.nd should
lould not
1836, the
see fit for
trusts as
otherwise
the Lord

jes dehors
enefice,^

ion. The
fly's Act, ^

as well as the Municipal Corporation Act,* and the Attorney-
General's fiat should be obtained to it.^ The petition may be heard
by a Vice- Chancellor ;' and no order for filling up vacancies in the
number of trustees, will be made, unless the Court is satisfied that
the existing number of trustees is practically insufficient, and
occasions inconvenience.'*

By " The Charitable Trusts Act, 1853," wherever the legal estate
in any lands of which a body corporate, subject to the provisions
of the 5 & 6 Will. IV. ch. 76, was a trustee for charitable purposes,
has not, since that Act, been duly vested in the trustees appointed
under its provisions, or their survivors, or otherwise lawfully dis-
posed of by the body corporate, such legal estate shall, imme-
diately after the 20th August, 1853,'' and without any conveyance
thereof, vest in the trustees so appointed, or their survivors,
according to the respective estates and interests therein, and sub-
ject to the charges, and upon the trusts then affecting the same ;
and upon the death, resignation, or removal of any of the trustees,
and upon any appointment of new trustees, the legal estate in the
same is to vest in the persons who, after such death, resignation,
or removal, and appointment of new trustees, shall be the trustees
for the time being, without any conveyance or assurance what-
ever.**

Charitable Uses Acts. — In connection with the subject of chari-
ties it may be mentioned, that whenever the Court is satisfied
by affidavit or otherwise, that the original deed creating a chari-
table trust has been lost or destroyed by time or accident, but that
the trusts thereof sufficiently appear by so ^e subsequent deed ap-
pointing new trustees, or otherwise reciting the trusts created by
the original deed, it may, on the application by summons, in a
summary way, of any trustee or other person interested in such
charitable trust, make an order, authorising the enrolment of such
subsequent deed ; and the enrolment thereof will have the same

ChrUVi Uiin-

P Coop. 72 ;

Jwrporatwii oj'

1 5 & 6 Will, IV. eh. 76.

•> Ante; Ite Wanviek Chai-Uitg, 1 Hhil. r.atf.

;< Re A'urthamptun Charitun, 3 De G. M. & Ci. 179 ; Itf Gluucestet ChutitifH, 10 Hare, Api*. 3.

4 Re Worcester Charities, 2 Phil. 'W ; and see Re Gluvcftter Chariti.n, ubiauii.

') Date of paHsintf " The Charitable Trusts .\ut," ISM. "

U 1(! A 17 Vic. ch. Vil, sec. «.=>.

<;6

1908

THE STATUTORY JURISDICTION OF THE COURT.

force and effect as the enrolment of the original deed would have
had if the same had not been lost or destroyed.^

An application under this Act is made by a summons, in the
form used for originating proceedings, and intituled in the matter
of the particular trust, and of the Act ; and a duplicate must be
filed at the Record and Writ Clerks' Office, in the usual way.^ The
application must be supported by affidavit or other evidence to
satisfy the Judge that the authority to enrol the deed ought to be
given.

1 27 & 28 Vic. ch. 13, nee. 3. As to the enrolment of such deeds, see ft Geo. II. ch. 30 ; 0 Oeo. IV. ch.

85 ; 24 ft 25 Vic. ch. 9 ; 25 & 20 Vic. ch. 17 ; 28 & 27 Vic. ch. 100 ; L. C. Con v., 481, et neq. ;

Smith, Comp, 282, «t Htq. , ,

i Ante. *

(t .

THE END.

-^>»- t

, -( v;

Id bave

... ».,. .

, in the
5 matter
muBt be
iy.2 Tbe
lence to
ht to be

9 Qe<>. IV. ch.
, 481, et *eq. ;

I ■ ••'•

INDEX.

V;' • '■ •' ■ ' -
ABATEMENT, 1580, 1603.

bankruptcy of defendant, not an, 123.
bankruptcy of plaintiff, an, 51.

motion for revivor or di.smissal of bill on, 5i„ 511.

or after decree, for prosecution of suit orstay of proceeding.s, 512. ,

causes of, 15 18, .

change of assignee in bankruptcy, an, if defendant, 124.
change of interest or liability, on, 1580.
confirmation of proceedings taken by mistake, after, 1597.
contempt, process of, regular, pending partial abatement, 1594.

secus, pending total, 1581.
corporations, in suits by, 17.

death of assignee in bankruptcy, an, if defendant, 124.
death of lefendant, motion for revivor or dismissal of bill on, 511, 1597.
death of husband defendant, not an, 150. .. ,

death of married woman defendant, an, 151.
death of party, when not a cause of, 1595.
death of sole or co-plaintiff, motion for revivor or dismissal of bill on, 510, 50,

1581, 1597.
death of relator, not an, in information, 9.

seais, in information and bill, 9.
di.smissal of bill, incase of, 510, 511, 512.
dismissal of bill for non-prosecuti(m irregular after, 510, 511, 1581.

secus, if caused by death of co-defendant, 507.
effect of, 1580.

entry of decree or order notwithstanding, 633.
hearing and judgment, between, decree or order drawn up notwithstanding,

633-
infant plaintiff attaining twenty-one, not an, 62.
information, of, what will cause, 9, 10.
injunction, effect of, on interlocutory, 51, 1594.

motion for revivor or dissolution of injunction, 51, 1704.

perpetual, not affected by, 1709.
marriage of female defendant not an, 150. • , . .

marriage of female plaintiff, an, 91.

motion for revivor or dismissal of bill on, 511.

revivor unnecessary, if husband dies before order obtained, 91.
matter in, not ground for bill of review, 91.
partial effect of, 1 594.
payment out of Court pending, 1594, 1606.
prisoner for contempt not dischargrd by, 1594.

proceedings to be taken by him, 1694. , '

receiver, affect of, upon, 1594.
revivor on, how obtained, 1580 ; and .ftr Kkvivok.
sequestration, efHect on, 662.

motion for revivor or removal of sequestration, 663.
special case, of, 1S6S, 1869, 1867.

97

l:^.::

Ill

1910

INDEX.

AhATEMK^T—eoMtifiufJ.
total, effect of, 1593.

revivor after, effect of, 1595.

AHODE (PLACE OF). See Address.

ABROAD. .S>^ Jurisdiction. . ,

AIJSCONDING DEFENDANT,

firo confesso, taking bill against, under general orders, 370, et teq.

receiver against, when granted, 1752.

service out of the jurisdiction of bill upon, under original jurisdiction, 358.

ABSENCE,

attorney, or counsel, of, new trial at law on ground of, 688.
witness, of, new trial on ground of, in Chancery 680.
at law, 688. , .

AB.SENCE OF PARTIES,

objection on ground of, 240, 246 ; and set Objections for Want of
Parties.

ABSOLUTE,

decree, against infant, how made, 134.

ABSTRACT OF TITLE,

delivery of, how compelled, 1165. '. ' '

objections to be served, I165.

order 390, as to, 1165.

definition of "abstract," 1165.

purchaser may now call for an abstract at vendor's expense, 1 166.

what should be abstracted, 1166.

proper form of, 1 166, 1 1 69. »

FREEHOLD PROPERTY, 1169, 1 187. •

Deeds, 1 169. ■ . I '

date and parties, 1169. ' 1

recitals, 1160. ' '

testatum, 11 70. ' '

consideration, 1170.

granting part, 1172. : •

parcels, 1173. * ' •

exceptions, 1174. » '

habendum, 1174. '

. reddendum, 1174.

declaration of uses, and the person in whose favor it is made, II75-

declaration of trusts, 11 76.

conditions and provisoes, 1 177*
\ powers, 1177. " - ' '"

covenants, 1178. .1 . •

execution, 1179. ' .

receipt, 1182. ' '' '

WUls, I183, I184, 1185. ^ ■■■..■ '

miscellaneous documenti, 1185.

letters of administration, 1185. •

private acts of parliament, 1183.

judgments, 1186. "

decrees, 1186. '•

contracts for sale, 1 187. .; i.- • .,■•■•'' 1

PROPERTY, NOT FREEHOLD, II87.

leaseholds, 1 187. . ' 1 ; '.

personalty, 1 1 87.
PROFESSIONAL DUTIES CONNECTED WITH ABSTRACTS OF TITLE,

duty of vendor's solicitor, 1187, 1191.

purchaser's solicitor, 1191, I192.

INDEX.

1911

>n, 358-

Want ok

"75-

fi.E,

ABSTRACT OF TIT l.E—continucd.

MORTC.ACKS, VKNDOR's LIENS, INCUMBRANCES, II93— II94.

crown debts, 1 195. '

executions, 1197. , • 1 : . , '

taxes, 1198.

special improvements, 1 199, 1202.

mutual insurance companies, 1202, 1203.

dower, 1204, 1206.

curtesy, 1206.

legacies, 1206, I2IO. ., ,v<

duly of counsel, 1210, 1218.
GENERAL NATURK OK TIIK TITLE WHICH MUST BK PRODUCED, iai8 — 1324.
COMMENCEMENT OK ABSTRACTS OK TITLE, I224--I%29.
PARTICULAR RULES "ELATING TO ABSTRACTS OK TITLE OF FREEHOLDS,.

1229—1239.

titles under tenants in fee, 1229. ■ ■

of tenants in tail, 1230.
under tenants for life, 1233. ,

tenants /Mr rt7</r^ 7'i>, 1235.

remainder men, and revisioners, 1238.

tenants of Cross Remainders, 1239.

LEASEHOLDS AND CHATTELS REAL, I24O.

leaseholds, 1240, 1246.

terms for years in gross, 1246, 1248. *

attendant terms, 1248, 1250. ' ' > ■'

tenants from yeai to year, 1250, 125 1.

EVIDENCE BY WHICH ABSTRACTS SHOULD BE SUPPORTED, I25I— I252.

deeds, 1253, 1255.

wills and letters of administration, 1255, 1279.
acts of Parliament, 1279.
records and proceedings in Chancery, 1280.
decrees, 1281.
vesting orders, 1285.

by-laws, 1289. '

powers of sale, 1 29 1. '

tax- titles, 1293, 1298.
assessment, 1298, 1 301

treasurer's return of lands in arrear, 1301, 1303. \ ■

writ to sell, 1303.
distress, 1305.

advertisement, 1307, 1309. i '

sale, 1309, 1313.
payments, 131 3, 13 14.

description of lands, 1314. ., ■: w .•

the deed, 1315.

sheriff's deeds, 1316, 1318. ' ■■

insolvency, 1318, 1319. '

EVIDENCE OK THE KACTS REKERRED TO IN ABSTRACT, I319 — IJj2.
births, marriages, and deaths, 1319, 1321.
intestacy, 1321.

legitimacy, 1321. ' "''

death without issue, 1322.
' executorship, and administratorship, 1323. ' ' '

title, 1322. : ''

possession, 1323, 1331. ' ' "'

heirship, 1331. -:'.!,

bachelorhood, 1331. .*. • ^ ■^ " ' ' • ■"' '

identity, 1331, .1 .,, , ■ ) ' • '='

{)ayment of money into Court, 1331. '■" • • '• "' ■'> = .

egacies, 1331.

i', 13

1912

INDEX.

I

I

^

ABSTRACT OF TlTl. V.-con/inuft/,

MISCKI.LANKnirs KVIDKNCK OK AllSTRAtTS OK IITLK, 1332 — 1334.
puhlic books, 1392.
parliamentary surveys, 1332.
' pcdiRrees, 1332, 1333.

family ilocuments, 1333.
bishop's registers, 1333.
entries, 1333.
maps, 1334,
awards, 1334.
certificatt-s, 1334.
SECONDARY KVIDKNCK IN SIM'TORT OK AIiyTRACTS ol TITLi:, I334--I
voluntary affidavits, 1338, 1339. ,

recitals, I339-»I342.
presumptions, 1342 1344.
copies, drafts, and abstracts, 1344— 1346.
extracts, 1346.
recitals, 1346, 1347.

MASTliR's OKI'inc, PROClCEniNOS IN, ON AUSTRACT, I347--I360.

order 391, 13415.

" 390, 39'. 392, 393- » 349-
" 394. 395. 396 -135 1 •

l'ROCKKl)IN<;S ON OBTAINING TllK CONVKVANCK, I361 — 1375.

ABUSIVE LANGUAGE,

server of (irocess or order, to, punishment for, 667.

ACCESS,

noil, proof of, 399, n. (i).

ACCESSION (gUEEN'S),
judicially noticed, 386.

ACCIDENT,

action, when restrained on ground of, 1640. ' "

ACCOUNT, and scv xMASTER'S OFFICE.

alteration in, authentication of, 574. 1

answer, how set out in, 451, 454.

reference to in, whcii sufficient, 451.
appeal, taking of, not stayed pending, 1564, 1565.

interest on, how coni])uted, with rests, 829.

payment, or transfer into Court of, application for, 1822.
certainty, required in bills for, 303.

concurrent jurisdiction of Equity, in cases of, 390. . ■ • ' »

costs of suit for, 1487, 1488 ; and sec Costs. ' ' ' • ■ . <■

disclaimer of interest in, insufficient to protect defendant from setting out,

435. 436.
evidence, what sufficient, in suit for, 541, 542. 1

general, fraudulent release ordered to be delivered up, under prayer for, 306.
mixed improperly, discovery of, 415.

mutual liability to, persons under, should not be co-plaintiffs, 192, 193.
ne exeat, when issued in cases of, 1733.

not issued where defendant held to bail for the same amount, 1 735.

affidavit on which issued, 1736, 1 741.

co-defendant, against, 1739. '

numbering of, in decree or order, 627. ,, '

offer to pay balance of, not necessary in suit for, 310. J

parties to suits for ; all accounting persons should be, 174. ') ,

sectts, if liability several, 227.

persons accounted with, not necessary parties, 178.

personal representatives, in suit against administrator de son tort, 207, 208.

personal representative, English, in suit against foreign representative,
207.

INDEX.

1913

A-

54-

o.

375-

111 setting out,

rayer for, 306.
92. '93-
L >735-

\tort, 207, 208.
Irepresentalive,

ACCOUNT- r (.«/.«««/.

trustees, all should be, 224, 225.
strus, if liability several, 227.
partnership, bill to take, must pray tlissolution, 274, 276.
patent cases, when directed in, 1667,

obtainable now at common law, 1667.
personal estate of, not enforced, if assets admitted, 447, 448.
personal representative, against, cannot be waived in creditors' suit, 193,
receiver's, 1778, 1794, i6oo ; and j.v Rkckivkr.
rents and profits of, not ordered under prayer for specific performance, 304,

305.
trade mark, when directed, in cases of, 1673, n. (4.)
waste, account in cases of, incidental to injunction, 1660.

ACCOUNT (IN ACCOUNTANT'S HOOKS),

to joint, of husband and wife, ' ot of, on her right by survivorship, 93.

ACCOUNTANT,

assistance of, how and when obtained, 613 ; and ser lixPERT.

ACCOUNTANT OF THE COURT,
appointment and duties of, 1808, 1823.

ACCOUNTANT'S OFFICE,

business and general course of practice in, 1824, 1835.
stop order, lodging at, 1718.
vacations in, 327.

ACCOUNTANT TO THE CROWN,
receiver, objectionable as, 1767.

ACCOUNTING PERSON,

husband of, generally necessary party, 209.

necessary party to suit for account, 204, 205. i.

secus, where liability several, 226, 227.

ACKNOWLEDGED DEED,

payment out of fund representing real estate of married woman, without, 1833.

ACQUIESCENCE,

breach of injunction or restraining order, effect of acquiescence in, 1703.
interlocutory injunction, effect of, on application for, 1691.

on application to dissolve, 1 704.
receiver, by, effect of, on right oi cestui (jue trusts, 1758.

ACT OF PARLIAMENT,

affidavit of title, on application for payment out of deposit under, 1833.
dismissal of bill on plaintiff's application, when rendered nugatory by sub*

sequent, 484, 485.
proof of, when printed by Queen's printer, 548.

when not printed, 548.

ACTION AT LAW,

costs of successful, when allowed, though not sanctioned by Court, 1786.
creditor by, restrained after administration decree, 1632, 1635.
defence of, by receiver, leave necessary for, 1 785.
election between suit and, compelled, when, 513.
injunction, where granted to restrain, 1640, 1641.

course, where question both legal and equitable, 1640.

stage of action, at which granted, 1641.

substituted service of bill, when allowed, 256 ; and sec Injunction and
Restraining Order.
legal title, when formerly directed to establish, 669.
survivorship, effect of, on wife's right by, 71, 92, 93.

■.K'l

1914

INDEX.

i N

s

S

g ■

.!<

M

. 1(

ACTOR,

breach of agreement by, when restrained, 1682. '" ■ % _.

ACTS,

all preliminary, necessary to complete plaintiffs title, must be averred, 264^

ACTUARY, , . '

assistance of, how obtained, 613; and j« Expert. '

ADDING TO THE DECREE, ;

accounts and inquiries, when further may be added, 734.
notice of decree, on application of person served with, 348.

ADDRESS, '

bill of, 292. , in

when Great Seal in Sovereign's own hands, 292.

when holder of Gieat Seal a party, 292,
amended bill, of, 318, 319.

corporation, of, statement of,, not necessary in bill by, 293. , , ,
demurrer, for non-statement of plaintiff's, 292, 396. ^ , ''

marri.d woman, of, statement of, in bill by, 293.
misdescription or omission of plaintiff, how taken advantage of, 293 ; and see

Costs (Security Ft)R)
next friend's, statement of, in bill, 293. , . . ',,.

emission of, how taken advantage of, 293, n. (7.)
peer, of, statement of, not necessary in bill by, 293. ' ^" ' ' .
petitioii, of, 1525. ^

petitioner's, statement of, in petition, 1625.
plaintiff's statement of, in bill, 292, 293. - '

cross-bill, in case of, 1412, 293. - ■

next friend, not required in suits by, 293,
plea for misdescription of plaintiff's, 293. '^

ADDRESS (FOR SERVICE),

solicitor's, or parly's (if acting in person), to be written or printed on writs

and summons, and, on proceedings, left at Record and Writ Clerks' office,

361, 362.
service al, of proceedings not requiring personal service, 362.

ADEMPTION, ■ ,

parties in cases of, 211, n. (i.)

ADKQLf ATE VALUE,

bill must be for, and what is, 271.

objection for want of, how taken, 272. ' ^ , ' ■

ADJOURNMENT (OF CAUSES), 609, 610.

consent by, 61 1. , . 1 .- • ,

costs of the day, on payment of, 610. c ;,

cross, or supplement, causes, in case of, 609. ■■■- • '

reasons for, 609. . , ■ ,

ADMINISTRATION (LETTERS OF), - ,s .

allegation of grant of, obviates demurrer but not plea, 263. c. . vi>,

discovery of proceedings on grant of, not required in suit for realty, 404, 405.

ADMINISTRATION (LIMITED LTITTERS OF),

proceedings in case of, binding on general personal representative, 161, 162.
sufficient for purposes of suit, when, 159, 160.

ADMINISTRATION SUIT, and see MASTER'S OFFICE,
concurrent staying, 491 ; and see Concurrent Suit.

concurrent suits, in case of, 493.

order suits, in, 734 ; and see CONDUCT OF Causk.
costs of, 1510, 1526, 1527, 1533, 1539, 1317; and ,f^^ Costs.
decree in, action by creditor res:.rained after, 1463 — 1466, 1632, 1635 ; and

see Creeitor.

.■■% '

INDEX.

)

1915

ADMINISTRATION SUIT-^^«//M«^rf.

decree in, on application of residuary legatee, next of kin, legatee interested

in legacy charged on realty, person interested in proceeds of realty directed

to be sold, residuary devisee, or heir, executor, or adiniaistrator, others

not being parties, 342.

but they must be served with notice of it, 174, 175, 176, 195. . •. :
general personal representative, necessary party to, i6i, 162. ;. 1
payment into Court ia, by party found a debtor, 1816.
proof of debt in, no election not to sue at law, 515, n. (8.)
statutory provisions as to parties to, 342.
trustees, all necessary parties to suit for general administration, 224, 225.

represent cestui que trusts in, 182.

ADMINISTRATION (OF ESTATES ON MOTION), 729, 736.

adding to order in, 734.

admission of assets, defendant not chargeable with, in, 735.

bill not filed after order refused on merits, 734.

cases to which applicable, 729, 730.

concurrent suit, staying, 735. , , .

creditors' action restrained after, order in, 1095, 1634. *» •

evidence, in support of motion for Order, 733.

further consideration, how heard on, 736 ; and see Furthkr Con-
sideration.

hearing of application, 733.

injunction, granted after order, 735, 1634.

ne exeat, granted in, 1739. -jt

order, conduct of, 734.
effect of, 733.
form of, 734.
prosecution of, 736.
service of notice of, 734. " '

parties, who are necessary, 732.

real estate, when applicable in case of, 731, 732. 1'

wilful default, defendant not chargeable with, in, 734.

ADMINISTRATOR,

administration decree, on application of, against a legatee or next of kin,
184, 341. . . ^

de son tort. legal personal representative party to suit as^'amst, 263.

defaulting, costs of assignees in bankruptcy of, 1528.

evidence in suit against, 542.

plaintiff, description of, as such, in bill, 294. .

plaintiff suing before grant must obtain it before hearing, 263.
such a bill not demurrable if grant alleged, 263.
but fact may be pleaded, 263.

ADMINISTRATOR (AD LITEM),
authority of, 161, 162.

costs, when allowed, though no personal estate, 1526.
estate sufficiently represented by, when and when not, 161, 162.
payment out to, not ordered, 1642, 163, 164.

ADMINISTRATOR ( DE SON TORT), ; '

personal representative necessary party to suit against, for account, 207, 263,
264.

kmMm'=,'YYL^'YOVi( DURANTE ABSENTIA), '■'"■ ^ ' ''
apix)intment of, when necessary, 208, n. { I.) . ' •

ADMINISTRATOR (PENDENTE LITE), .' ' "^ "• '

appointment and authority of, 207.

ADMINISTRATRIX, - .. ^ ,, .

married woman, ne exeat not granted against, 1 541, 141.

1916

INDEX.

c ^ P

.,: P ^ /■-. •*•■

i «

■■•i^ IK::

■«*•:;

ADMIRALTY (COURT OF),

demurrer that it is proper tribunal, 391.

ADMISSION OF ASSETS. See AsskTS.

ADMISSIONS,

actual, what are, 784, 528, 535.
agreement, by, 534

clear and distinct, must be, 534.
documents, of, 534.

policy of law, must not be contrary to, 534.
writing, should be in, 534.
answer, by, 529.

infant's, cannot be read as against him, 132, 530.

unless adopted on attaining twenty-one, 531.
guardian's, read against him, 530.

insufficient, when permitted to be completed by evidence, 542, 543.
lunatic's by his committee, read against him, 531.
' married woman, in separate answer of, 147,
her inheritance not bound by, 148.
mistaken, controverted only by correction, not by cross bill, 477.
supplemental answer, when permitted in order to correct, 477.
payment into Court, on, 1820, 1822 ; and set Payment and Transfe*

INTO Court.
qualifying passages must be read, 529.
sufficient, what are, 529.

imsound mind, of person of, whether it can be read as, 139, 531.
defendant, when read by, as, 530.
amendment, effect of, 530, 531.
another suit, when read as although in, 529.
law, when read as at, 529.
heir, of, will established upon, 556.

secus, where heiress a married woman, 147, 556.
infant, cannot be made on behalf of, 133. ,

ancestor's, binding on infant, 133.
insertion of, in decree or order, 628.
pleadings, must be noticed in, 541.
record, on the, 528, 533.

ADOPTION (OF SUIT),
by infant, effect of, 62, 63.

ADULTERY (OF WIFE), and se<! "Alimony."
equity to a settlement, effect of, on, 83, 84.
evidence of, only admitted under express charge of, 538.

ADVANCE (OF CAUSE),

directed, when, 607, 608. ^

pro forma, 608.
cross cause, of, 609.

ADVANCE OF DEMURRER,

injunction bill, where direi.ted in case of, 428, 1699.

ADVANCE OUT OF FUND IN COURT,
issue, when made for trial of, 677.

ADVANCEMENT OF INFANT,

application for, how made, 1400. >

power for, usually contained in settlement, 1399. '■' '

ADVERTISEMENT, see Master's Office and Service.

ADVOWSON,

partition of, how effected, 706. ' 1 . '• / - s'

seisin of, how alleged, 295. t;. ^ vl',. -.^ ^ , ,-i-i

INDEX.

1917

, 543-

77-

77-

) Transfer

31-

AFFIDVIT, 568—577.

accompanying bill, when necessary, 313, 315. '

omission of, how taken advantage of, 315. 1 ,

service of copy of, 316, 352.

sworn, when and by whom, 315, 316.
affirmation, when taken instead of, 576 ; and see Affirmation.
alteration in, how authenticated, 573.

consent to file, though not authenticated, 573.
answer, may be treated as, on application for or to dissolve injunction, 1695,
1704.

on motion for decree, 517 ; or for receiver, 1769.

verifying, 531, n. (7.)
assets, of, on application to restrain creditor's action after administration

decree, 1634.
attestation of officer by whom taken, 575.
blind man, of, how taken, 575.
cause or matter, must be made in, 571.
Chambers, evidence in, adduced by, 726.
office copy of, by whom taken, 613.
collusion, of no, in interpleader suit, 315.
copies of, by whom furnished, 577.

pauper, when furnished to or by, 39.

time for furnishing, 577.
cross-examination, on, 568.
dates in, how expressed, 573.
deaf and dumb persons, of, how taken, 576.
death of deponent, effect of, 569.

demurrer for want of, 315, 397 ; included in general demurrer, 421.
description of deponent in, 571.
discovery, bill of, when annexed to, 313.
documents, as to, 1841, 1843.

answer setting out documents when ordered after, 1841.

claimant under decree, in case of, 1847.

corporation aggregate, by whom made in case of, 184 1.

cross-examination on, not allowed, 568, 1845.

description of documents in, 1841.

form of, 1 84 1.

informality or insufficiency, proceedings in case of, 1844.

objections to production, how raised by, 1841.

omission in, further affidavit may be required in case of, 1845.

parties, who must join in, 1843.

time to make, extension of, how obtained, 1844.
exhibit to, 574, 575 ; when not to be annexed, 574.

identification of, 574.
filing, 577 ; in pressing matter in, 577.

notice of, 577.
first person, must be expressed in, 572.
foreigner, of, how taken, 576.
form of, 571.
impertinence in, costs occasioned by, 573.

application for, when to be made, 573.
interlineation in, how authenticated, 573.

consent to file, though not authenticated, 573.
irrelevance in, remedy for, 572. '' ' ' ''

jurat to, 575 ; and Jtv Jurat. '■ '

knowledge, means of, must be shown, 571, 572. ■

marksman, of, how taken, 575.

merits, not now required in case of substituted service, 356, n. (3.)
motion, on, i6i6 ; and see Motion. ' ■

motion for decree, on, 517, 518 ; and see Motion for Decrek. ; i

name of deponent, must be inserted in, 571.

1918

INDEX.

€i' h'

A.VYl'DANli:— continued. ,

no settlement, of, when required, and form of, 76.
oath, administration of, 576.

oath, statement that deponent makes, necessary in, 572.
office copy of, 577.

injunction dissolved, because not in Court, 1695; and j^d* Office Copy.
pending suit or matter, must be made in, 568.
perpetuate testimony, must be filed with bill to, 315.

time for, in case of motion for decree, 520.
quotations in, how indicated, 573.
scandal in, remedy for, 572.
schedules to, how referred to, 574-

alterations in, how authenticated, 574.
search for, where necessary, I447i 577-
signature of deponent to, 575.

official, of, before whom sworn, 5751 '

sums, how expressed in, 573.
sworn, before whom, 569.

solicitor in a cause, irregular if before, 569.
title of, 571.

amendment of bill, effect of on, 571, 1628.

error in, how rectified, 571. •

written, how to be, 573.

AFFIRMATION,

affidavit, when taken instead of, 576. .

affirmat to, form of, 576.

answer, when taken on, 467.

form of, 572, n. (3.)

Moravian, Quaker, or Separatist, how taken, 576.

AFTER-ACQUIRED PROPERTY,

condition as to, may be annexed to bankrupt's discharge, 50, n. (2.)
former difference as to, between bankrupt and insolvent debtor, 50.

AGENCY, see Master's Offick,

AGENT,

communication with, when privileged, 410, 411 ; and see Privileged Com-
munications, Professional Confidence.

costs of, 1511.

fraud or collusion, charged with, when made a party, 248.

party, usually not a necessary, 156, 157, 204, 246, 249.
but agency must be proved, or appear, 156.

jjrincipal may sue without agent, when, 156, 157.

privity, not destroyed by employment of, 268.

specific performance, not necessary party to suit for, 246.
may be joined when he has received the deposit, 247.

substituted service of bill on, when allowed, 356.

title deeds, holding, not a necessary party, 249.

town, of solicitor, name and address to be indorsed on pleadings, summons,
writs, and other proceedings, 361, 262.

trustee, of, not a necessary party, 204.

AGREEMENT,

antenuptial, suit to establish; discovery in, 404, 405,

assignment of wife's chattels real, for, effect of, 102.

breach of, when restrained, 1680, 1684.

land, relating to, how alleged, 297. ,

letters, contained in, how alleged, 297.

statement of, in bill, altered to accord with that in answer, 323.

ALIEN,

birthplace of, discovery as to, must be given, when, 3, 399.

INDEX.

1919

Office Copy.

n. (2.)
or, 50.

iviLEOED Com-

lings, summons,

,23.

ALIEN — continued. • '>

copyright of, when protected, 41. .1

descendant of British subject settled abroad, when an, 42.
discovery whether devisee is, must be given, 403.
enemy, how constituted, 43.

discovery, cannot file bill of, 44,

effect of person so being, 45.

objection that plaintiff is, how taken, 45 ; not encouraged, 44. /

proof of debt due to, admitted, but dividend postponed, 45.

property of, where others may sue for, 44.

resident in England, suit by, when permitted, 42.

wife of, sued without him, 140.
foreign contracts, suits by, on, are goveened by foreign laws, 42.
ne exeat regno, when issued against, 1 540, 42.
objection that plaintiff is, 45, 46.
plea that plaintiff is, 49. >

prisoner of war, suit by, when permitted, 43, 44.

security for costs, when required from, 46 ; and see COSTS (Security foiI).
suits by, when permitted, 441, 47.

war, effect of, on pending suit, 42, 45.
wife of, may be sued without him, when, 70.

ALIENATION,

proj.' ty, of, when restrained, 1677, 1678.

inj miction usually granted ^ar/rtr/^, 1679, 1693.

ALIMONY, 1411— 1463.

jurisdiction of the Court as to, 141 1.

our Courts have no power to decree either divorce or restitution of conjugal

rights, 1412.
cases in which the Court of Chancery has power to decree alimony, 141 2.
Divorce, according to the law of England, sentence of divorce, what it is,

1413-
necessary to prove a valid marriage, 1414.

grounds upon which a divorce can, by the law of England, be granted, 1414'
Adultery, definition of, 1414.
evidence necessary to establish adultery, 1414, 1422.
three general grounds usually pleaded in ans.ver to a charge of adultery,

1422.
1st. compensatio criminis, a set-off of equal guilt, or recrimination, 1422.
2nd. condonation, 1423.
3rd. connivance, 1423.
Recrimination, rules as to, 1423 — 1427.
Condonation, rules as to, 1427 — 1431.
Connivance, rules as to, 1431 — 1434.
malicious desertion, effect of, 1433.
cruelty, 1434, 1440.
unnatural practices, 1439.
deed of separation, effect of, 1440.
mere separation, not ground of a divorce, 1440.
parent or guardian of a minor may institute a suit for divorce, 1441.
and so may the committee of a lunatic, 1441.
no limitation of time for bringing a suit for divorce, 1442.
marriage cannot be dissolved by Courts of another country, 1443, 1446-
this point doubtful, 1444.
Restitution OF Conjugal rights, 1446, 1449. - ,

what is, 1446.
rules as to, 1446, 1449. , -

Amount OF Alimony, 1450, 1462. . ■ ^ ^

Interim Alimony, 1450, 145 1.

what it is, 1450

how obtained, 145 1.

1920

INDEX.

*
^

X. .

ALIMONY— cott/itiuec/.

what proof required, 1451.

maintenance, pmdente lite, when husband liable for, 1451, 1452. '

** allegation of faculties," meaning of, 1452.

when husband will be relieved from the decree for alimony, 1457.

from what time alimony is due, 1457, 1458.
Costs when wife entitled to, 1458.
Arrest of husband, 1459.

proceedings by ;/^ ^-jrm/, 1459, 1560, 1461.
Arrears of alimony at death of wife, may be collected by her personal

representatives, 1461.
Lands of husband, how bound, 1461, 1462.
Writ ok Arrest, setting aside, 1462.

order 488, as to notice to he endorsed on the office copy of the bill, 1463.
orders 490, 491, as to submission by defendant, and as to costs, 1463.

ALLEGATION,

general, when sufficient to let in proof of specific facts, 538, 540.

where character, behaviour, or quality of mind, is in question, 538.

where notice is charged, 539.
positiveness required in, 294, 295 ; demurrer, for want of, 396.
responsive, in Civil and Ecclesiastical Courts, different from answer, 440.
sufficient to found decree upon, must be, 295.

ALLOTMENT,

partition suit, of shares in, 706.

ALLOWANCE (JUST). A-c Just Allowances, and Master's Office.

ALMANACK,

course of, judicially noticed, 386.

ALTERNATIVE DEFENCES,
permitted, when, 441.

ALTERNATIVE PRAYER (OF BILL),
permitted, when, 309.

AMENDED BILL,
address of, 319.

amended and original bill one record, 318, 319.
answer to, 456, 472 ; and see Answer.
demurrer to, 417, 418 ; and see Demurrer.
fee on filing, when reprint necessary, 336, 337.
indorsement on copy for service of, when necessary, 353.
irregularity, when taken off file for, 339, 341.
printed, when necessary to be, 336.
pro confesso, proceeding:> to take, 375, 376.

original and amended taken together, 319.
service of, 325, n. (2.), 353, n. (5.) j and see Service.

AMENDED INFORMATION,

pr'ited, when necessary to be, 336.

signature of Attorney- General and counsel to, 336.

AMENDMENT OF ANSWER,

form, when permitted as to matters of, 478, 479.
made, how, 479.
order for, how obtained, 479.
permitted, instances when, 472, 473.
re-swearing, generally necessary after, 479.

supplemental answer now usually filed instead of, 474 ; and see Supplemen>
tai. Answer. ; ,

AMENDMENT OF BILL, 388, 318, 341. ' ' .

abatement not remediable by, 1580, n. (8.) ^

INDEX.

1921

her personal

iiswer, 440.

SUPPLBMEM'

AMENDMENT OF mLL—confhiiM^.
alteration of parties by, 320, 322.
defendants, aiidition of, permitted at any time l)efore decree, 245, 246,
323. 325 » after, 322.
evidence against added defendants, 245, 246, 322, 325.
hearing, when leave given for, at, 202, 244, 245, 308, 321.

order for, when of course, and form, 245 '

defendants, by striking out unnecessary, 250. ' ;.».

plaintiffs, by addition of, after answer, 321.
answer, before, 325 ; after, but before replication, 325, 329,
appeal, leave to amend, when given at hearing of, 331.
case, entirely new, connot be made by, 339, 340.
class suit, leave when given for conversion of ordinary suit, 202.
clerical error, for rectification of, allowed at any time, 325.

order for, how obtained, and form, 325.
closing of evidence after, irregular, except to add parties, 330, 331.
costs of, under order of course, 325.

defendant's, of parts of bill struck out by amendment, 339.
irregular amendment occasioned by, 329.
new case, where made by, 339,

payment of, 337, 337, n. (3.) , .

course, order for, when made as of, 325, 332, 431.
application for, how made, 329.

irregular, after demurrer overruled, and jiending appeal, 325, 434.
after notice of motion to dismiss for non-prosecution, 497. .
])ending inquiry in infants' suits, 56, 325.
not irregular before motion for decree set down, 329, 517.
secoi#l, after answer, when irregular, 376, 328, 329.
cross bill by infants not permitted after dismissal of, 136.
demurrer, after, 427 ; costs on, 427.

lime for obtaining order for, 325, 427, 428.
demuner, after allowance of, when permitted, 427, 428.

where demurrer was partial, 430, 482.
demurrer, argument of; leave to ameml, when given on, 242, 332, 430.
ilemurrer, after overruling of, 434.

answer, not a waiver of the right to, 434.

appeal by defendant from overruling of, not barred by amendment, 433.
disclaimer, after, 436.
discovery (bill of) not convertible into bill for relief, by, 324.

plaintiff" cannot be added to, by, 321.
dismissal for non-prosecution, prevented by, 497, 498. /

exceptions, after submission to, 329.
facts staled in answer, introduced by, when, 330.
facts occurring since filing of bill, when introduced by, 322.
hearing, leave given at, when, 330, 332. '

addition of parties, 243, 244, 331. ' *

alteration of prayer, 308, 331.
alteration of statements of bill, 331.
infants' suits, in, 58, 332.
injunction not dissolved by, unless record altered, 337, 1703.
notice of motion for, waived by, when, 338, 1623, 1699.
inquiry which of two suits most beneficial for infant, not stayed by, 56.
insufficiency of answer waived by, 328.

or after exceptions allowed or submitted to, 328.
irregular, proceedings in case of, 339.
irregular order for, valid until discharged, 336, 500.
irregulai ily in order for, how waived, 336. ' .

latitude allowed in, 323.
lis pt-Hihtrs created by, from what date, 319.
made, how , where no reprint, 336. ,

misjoinder, in c.ises of, 192, 251, 331.

i:

1922

INDEX.

r-

AMENDMENT OF niLL-tw//m«rt/.

motion for decree, after unsuccessful, 520.

ne exfat, not dissolved by, 338, 1748. ,

new defence may be made after, 32 ^..

next friend of infant, by insertion of, 54. ..

order for, always necessary, 325. ■• .

when made as of course, 325-329, 431. ,

when on special application, 329-331.

form of, for, if no further answer required, 325.

effect of, on right to move to dismiss, if not acted on, 491, 496.
original bill, when permitted to be read by defendant after, 529.

argument of, leave to amend, when given on, 243, 332,

pending judgment on, order for, irregular, 333.

replication to, after order for is special, 333.
priority of original bill over cross bill, lost by, 318.
pro con/iaso, order to take bill, vitiated by, unless plaintiff's rights specially

reserved, 325, n. (2), 338, 375, 376.

effect of amendment, on the right to, 1 851.
re-amendment, practice on, 337.
receiver, notice of motion for, waived by, 145 1, 338.
replication after, 330 ; withdrawal of replication, when necessary, 330.
reprint of bill, when necessary in consequence of, 336.
relief (bill for), not convertible into bill of discovery, by, 324.
revivor, after, 1595.

second amendment, where first made on argument of demurrer, 431,
service of bill after, 325, n. (2).

service of order for, 336. ^ ■ •

signature of counsel to, 336.
single creditor's bill, where permitted, 194, n. (4).
special application for, costs of, 329.
special order, when necessary, 329 — 332.

application for, made by motion, 329.
time for obtaining order for, where of course, 325 — 327.

where special, 328 — 331.

enlargement of, how procured, 334 — 335.

vacations not computed in, 328.
time for, not increased by adding parties, 330.

or because defendant out of the jurisdiction, 119,
time for making amendment after order obtained, 334. "

enlargement of, how obtained, 334 — 335.

vacations not computed in, 336.
undertaking of defendant when a discharge of, 338.

AMENDMENTS AND EXCEPTIONS,

order to answer both together, 329 ; and see Answer.

AMENDMENT OF DEMURRER,
when permitted, 418.

at the argument of the demurrer, 429.

clerical error, in case of, 425.

less extensive, in order to make demurrer, 418, 432.

AMENDMENT OF INFORMATION,
reprint, when required on, 336.

AMENDMENT OF INFORMATION AND BILL,
Where plaintiffs have no individual interest, 7.

AMENDMENT OF PETITION,

allowed when, and how effected, 1629, 1630. •'

AMENDMENT OF REPLICATION, 525. , ,

order for, how obtained, 525.

INDEX.

1923

6.

hts specially
y, 330-

. 43«-

AMENDMENT OF SPECIAL CASE, )

permitted, when, 1868; at hearing, 1871.
order for, how obtained, 1868 ; amendment, how made, 1868.

ANALYSIS,

directed in patent cases, 1667, n. (3).

ANCESTOR,

admission of, binds infant heir, 133, 134.

ANCIENT LIGHTS,

obstruction of, when restrained, 1664. '*

ANNUITANTS,

when necessary parties, 186.
when not necessary parties, 173.

ANNUITIES,

arrears of, parties to suit for, 217,

land, not decreed on bill for, 304.

purchaser of, when liable to pay interest, 1355.

release of wife's by husband, effect of, 98. !

suit for, advance of, when directed, 608. ■

ANSWER, 440—481.

accounts, how set out out in, 451, 454.

reference to, in answer, when sufficient, 451.
admissions in, 529 — 535 ; and see Admissions.
affidavit, when answer may be treated as an, 1696 — 1704 — 1769.
affirmation, when taken on, 467.
alteration in, how authenticated, 466.
amended bill, to, 456, 472, 473.

amendments, should be confined to, 718, 456, 472.

unless new case made, 472.
costs of, where vexatiously required, 472.
heading of, 458.

one record with answer to amended bill, 456.
extension of time, how procured, 464.
amendment of, 472, 473, 478, 479 ; and see Amendment of Answer,
amendments and exceptions together, order for answer to, how and where

obtained, or defeated, 329.
Attorney General, of, 109, no, 460.

benefit, insisting on the same, by answer, as by plea or demurrer, 443.
bill, statements in, which must and may be answered, 445.
blind person, of, how taken, 467.
certainty required in statements of, 443.
committee, of, on behalf of lunatic, 138, 469.
conclusions of law need not be stated in, 441, 449.

but if stated, facts cannot be used to establish different defence, 441 .
corporation, of, aggregate, 460.
must be full, 114.
put in under common seal, 115, 460, 467.

proceedings where custodian of seal refuses to affix it, 115.
costs, answer read by defendant on question of, 531, 1470.
of separate answers of persons appearing by same solicitor, 456.
improper answer put in by guardian ad litem, of, 128.
craving leave to refer to document, effect of, in answer, 1673, 453, 528.
credit given to, where contradicted by only one witness, 532, 533.
cross-examination on, as to documents, not allowed, 1845.
injunction, when permitted, on motion for, 1698.
motion for decree, on, 519.
dates, how expressed in, 466.

deaf, or deaf and dumb person, of, how taken, 468.
demurrer, not ordered to stand for answer, 432.

I'....

1924

INDEX.

\M

c

,1

n.

3

■^

"t..

ANSWER— f<'«//««rt/. , . .

partial, when accompanied by answer, 416, 418, 424,
denial, general, in answer, when it nnist he accompanied by reference to

particular circumstances, 453.
diligence must be used to acquire information, in order to put in, 451.
direct, must be, 452.
disclaimer, answer accompanying, 434. ^

inconsistency between answer anil disclaimer, effect of, 438.
discovery, objections to, by answer, 416,444-449. '

beliiif in validity of, must be sworn to, 404, 444.

defence, which might have l)een pleaded, cannot be thus taken, 450.

dilTerence between objecting by answer and by plea or demurrer, 440.
documents, reference to, in answer, unnecessary, if defendant has lost his

interest, 452.
documents, how set out in, 452, 454.
documents, answer as to jxjssession of, when abroad, 452, 1658 ; and srr

I'RDDIMIUIN OF Docr.Mr.NTS.

evasive, costs of, 480 ; taking off the file, 480, 481.

evidence, usually made, 530, 531, n. (7.)

facts to be jiroved, statement t)f, in, 440, 537.

facts stateil in, when introduced into bill by amendment, 323.

file, taking answer off, 459, 469, 480, 481 ; and w Fji.K (Taking oki ).

fding, 459, 460, 470, 471, 698 ; and see Fll.i.NC.

foreign government or stale, when required from, 15, no, in.

foreigner, of, how taken, 467.

forfeiture, objection by answer that discovery \\ould expose defendant to,

445, 446.
form of, 45O, 46.2. ,

demurrer and answer of, 424.
fraud, denial of, by answer, not a bar to discovery ns to ficls allege<l as

evidence, 449, 450.
further answer, 472, 475 ; and si-e Furtiikk Axswi.k.
general nature of, 440, 456.

twofold character of, 440.

guardian ad litcvi, of, on behalf of infant, 125, 12S, 469.

of lunatic, where committee has an adverse interest, 138, 461, 469.

of person of unsound mind, 13S, 461, 469.
//.<■(■ r',vA(j, statement of documents in, 453, 460.
heading of, 458, 459.

amended bill, to, 458. 459. '

amendment of, when j)ermitted, 479.

conunittee, of, 459.

defect in, remedy for, 456.

female defendant married since bill fded, of, 459.

guardian, where put in by, 459.

husband and wife, of, 459.

impertinence and scandal in, 450, n. (4).

infant of, 459.

lunatic, of. 459-

several defendants, of, 458.

unsound mind, of person of, 459.

pro coiijhso, bill taken ui)on, 375. . ., , . -

wife's iidieritance, not i)oun(l by, 147, 375.
husband, separate answer of, when necessary, 141. '

order for, how obtained, 142.

her personal or separate estate bound by, 147. ' '

hut not her inheritance, 147,

or any new interest she may take on husband's death, 150.
idiot, of, by committee, read against him, I39. 531-
ignorance, statement of, in answer, when impertinent. 445.
imbecile person, without oath or signature, not receivc<l, 46;.

\ .

INDEX.

1925

J

reference lo
45 >•

1, 45"-
(••r, 44<'-
has lt)st Ins

558 ; and src

INO OKI).

dcfcnclanl lo,

cls alletreil as

. 4<^9'

ASSVJEK—eontinueJ.

immateriality, objection by answer, on the ground of, 445 —447.

account, in cases of, where assets admitted, 447.

private affairs, where questions relate to defendants, 447.
impertinence in, 459, n. (4.) ; and see Impbrtinenck.
inconsistent defences by, not allowed, 442.

effect of setting up, 442.

remedied, when occasioned by verbal inaccuracy, 442.
indorsement on, 470.
infant, of, 132, 469 ; should not be required now, 1x2.

admission, not read against him as, during majority, 133, 530.
but may be against guardian ad litem, 530.
and against infant, on attaining twenty-one, 531.

exceptions for insufficiency do not lie to, 132.

form of, 132.

guardian rt</ //V^w, put in by, 132, 469.

although infant a married woman, 147, 469.

taken, how, 469.

new answer may be filed on his attaining twenty-one, 133.
consequence of, 137.
sufficient cause against decree, 137.

voluntary answer, should be put in for, when, 133.
insufficient answer, amendment of bill after, 329.

not an answer for purpose of taking bill, pro cotifesso, 375.
interest, objection that defendant has none, not be taken by answer, 249.
interlineat'ons in, how authenticated, 466.
irregular, taken ofT the file, 480.

acceptance of, a waiver of the irregularity, 480.
irregularity in bill, objection for, by, 417. »

joint answer, when it should be put in, 456.
jurat to, 466, 468 ; and «^ Jurat.
liabilities for not duly putting in answer, 375.
limitations, statute of, insisting o.. lenefitof, by, 443.
lunatic, of, put in by committee or guardian ad litem, 139, 460.

how taken, 469.

may be read against him, quiere, 781, 139.
marksman, of, how taken, 531.
married woman, separate answer of, 140 — 151, 469.

infant, guardian ad litem requisite, if she is, 146, 469.

inheritance of, not bound by, 148.

order for, necessary, 145.
unless to husband's bill, 145 ; or accepted by plaintiff, 145.
plaintiff, when it may be obtained by, 142.

read against her or her husband, when, 147.

separate estate bound by, 148.
matters affecting defendant individually only need be answered, 449.

unless plaintiff involved in whole case, 448.
mistake as to facts in, which corrected by supplemental answer, 474.
mode of answering, 450.

facts not within defendant's own knowledge, as to, 450.

remembrance, as to, 450.

words " belief or otherwise," effect of, 450.
Moravian, or ex-Moravian, of, how taken, 467.
multifariousness, objected to by, 285.
oath, answer must in general be upon, 460.
oath or signature, answer without, 461, 461.

how regarded, 462.

order for, how obtained, 461.

committee, of, 138, 469.

guardian ad litem of infant, of, 469.

guardian rt<//»V«a of lunatic or person of unsound mind, 138, 461 — 469.
98

H

^:

1926

INDEX,

I

ft"" ■■ :^

t

r

n

ANSWER— <v«rf«wf</. ;, , , .,

official printed copy, how taken and made, 47c — 471.
pagan, of, how taken, 461.
panis and penalties, objection by answer that discovery would expose

(icfendant to, 445,
paper on which written or printed, 465.
parties, objections for want of, taken by, 243.
payment into Court, when directed on, 1820— 1822 ; and see PAYMENT A.Nl>

TransI'1;r into Court.
principle that defendant answering must answer fully, 449. ,^

exception, where discovery not wanted for the decree, 450.
production of documents in admission in, 1837, 1838, 1850 ; and J« Produc-
tion oi Documknts.
professional confidence, objection by answer on the ground of, 445.
Quaker, or ex-Quaker, of, how taken, 467.
read by Court, when and for what purpose, 531.

by co-defendant on motion for decree, 533.

by defendant as evidence, only allowed by consent, if issue joined, 531

except on question of costs, 532, 1469, 1470, i486.

by defendant on motion for decree, where notice given, 518.

by plaintiff on motion for decree, 517.
receiver appointed before, when, 1 768.

record, not of, till '^led, 470. v

re-swearing of, 466.

amendment of, generally necessary after, 479.

cancellation of jurat, on account of, 469, /

scandal in, 459, n. (4).

schedules to, when used for the answers to the interrogatories, 454.
when in aid of defendant's own case, 454.

alteration in, how authenticated, 466.

impertinent, when, 455.

addition of, by amendment, when permitted, 479.

paper on which written, 465.

signature of defendant to, 467.

of official before whom answer sworn, 467.
several defences may be set up by, 442 ; if inconsistent, 442.

addition of defendant's signature, if accidentally omitted, 479.

attestation of, when put in without oath, 462.

committee, of, 460.

dispensed with, when, under special circumstances, 460,

guardian aU litem, of, 460.

place of, 467 ; in case of schedules, 467.
statement of defendant's case in, 440 — 441.
sufficiency of, admitted by amendment of bill, 328.

or service of notice of motion for decree, 517.
sufficient, when answer deemed, 328; and sec Sufficient.

475—477.
sums, how expressed in, 466.

supplemental answer, 475, 477 ; and see Supplemental An-
supplemental bill to, 1602.
supplemental statement, to, 1600.

out of England and Wales, but within Queen's dominion

out of Queen's dominions, 466.
time for putting in, 462, 463, 465.
demurrer and answer, for 426.

demurrer overruled, after, 433 ; extension of, how procured, 433.
enlargement of, 464.

application for, how made, 464, 465. .^

costs of application, 465.

counsel's certificate, when granted on, 465. '

married woman, for separate answer of, 461, 469.

F.R

it).

INDEX.

1927

d expose
lENT A.Ni>
fPROUUC-

14-

ANSWER— «•<»////«««/. • *

security for costs, pending giving of, 30, 463.
title of, 458, ■' '

amendment of, when permitted, 478.

misnomer, correction of, in, 458.
title, objection by answer that (liscovery only relates to defendant's own, 446.
unsouml mind, of person of, 138, 139, 531.

guardian, put in by, 138, 469.

read against him, whether it can be, 139, 517, 531.
voluntary, what is, 440.

put in, where, 381 ; in case of infant, 132.

sufficient, when, 327.

APPKALS AND KEHKARINGS, 1555—1579.

acting on order, not a waiver of right to appeal, 1562.
agreement not to appeal, effect of, on right to appeal, 1556.
amend bill, leave to, wliere given at hearing of appeal, 246.
Appeal Court in Chancery, constitution of, 1566.

decisions of majority of Court binding, 1 566.

rehearing before Court of Appeal, when allowed, 1566.
claimant under decree, by, 1557.

consent, from decree or order made by, not permitted 608, 1555.
consent to consequential order, not a bar to appeal from original order, 1556.
contemner may, 1 723.

costs, no appeal for, 1558 — 1561 ; and see Costs,
costs on appeals, 1577 — 1578 ; and see Costs,
costs, proceedings to recover not stayed by appeal, 1562,
- creditors under decree, by, 1557.
cross appeal, when necessary, 1577.
damatjes, from order directing assessment of, 677,
decree or decretal order, only discharged by order made on 1566 — 1567.
demurrer, from allowance of, with leave to amend, by plaintiff, 430 — 1555,

by defendant, 431.
demurrer, from order overruling, amendment vjf bill not a bar to, 434,
discretion, no appeal in matters of. 1558.

distribution of fund, when stayed pending appeal, 1564 — 1565,
enrolment, permitted in Chancery, after, 1568,
evidence on, 1573 — 1575 ;and slv Evidknck,
execution of decree or order, not stayed by, 1562,
execution, appeal after decree carried into, 1570,
hearing of, 1573; and JtV Hearing,
issue, appeals from orders granting or refusing. 67^.

appeal after trial of the issue, 697, 1570.
married woman appeals by next friend, 1 50.
motion, from orders made on, 1566, 1567, 1575, 1624.

abandoned motion, appeal treated as, on non-appearance of appellant,
145 1 — 1560, 1623,

evidence on, 1575, 1624 ; and se<r EviDKNCK,

notice of, how served and set down, 1624.
motion for decree, from order on, 520 ; right to Ijegin on, 520.
new trial, from order on application for, 697.
notice of decree, by person served by, 348 — 1556, 1557,
number of rehearings, no positive restriction of, 1 568,

but special leave required after first, 1569,
pauper, by, 35, 1558, 1573.

infant, if an, 34, 59, 1573.

married woman, if a, 34, 35, 89, 1573,
payment, or transfer out, when delayed in case of,
persons not parties to record, by, 1556, 1557.

review, bill in nature of bill of, when accompanied by, 1567, 156S.
pro iron/aso, on what terms granted where cause heard, 379.

1928

INDEX.

A"
it

AVPEAhS AND REHEARlNGS—coHtinuet/. o

purchaser unde decree, by, 1557. .!,..■

rehearing, not allowed where defect otherwise remediable, 1567.
only allowed on points existing in the decree, 1567.
subsequent inconvenience, not allowed in order to correct, 1567.

remainderman, after estate tail, b)', 1557.

respondent, the whole case open to, as against appellant, 1575, 1576.
seats, as to co-respondents, 1576.

security for return of distributed fund when required, on, 1$^!$.

special case, from orders made on, 1567, 1872.
staying proceedings in case of, 1872.

stand over indefinitely, not allowed to, 1578.

staying proceedings, pending, 494, 1562 — 1565 ; and see Staying Pro-
ceedings.

subsequent proceedings, taken before what Judge, 1578.

supplemental bill, when appeal heard on, as well as on petition, 1567, 1568.

supplemental bill, to carry decree into execution, where filed pending, 1562.

trial of question of fact, appeal from order directing, 677.
further hearing not stayed on account of pendency of, 697.

APPOINTEES,

testamentary, of married woman, class suit on behalf of, 184, 195.
necessary parties, when, 184.

APPOINTMENT OF GUARDIAN, 1384— 1393 ; ami see Guardian, and
Master's Office.

APPOINTMENT OF NEW TRUSTEES ; see Trustkks, and Master's
Okkice.

APPORTIONMENT,

costs of, between different funds, 1537, 1538.
between different parties, 1502, 1503 ; and see Costs.

APPROPRIATION,

effect of, on wife's right by survivorship, 93.

fund, of, personal representative no', necessary party after, 206.

ARBITRATOR,

answer of, extent of, 247.

costs, when ordered to pay, 247, 248.

party to suit to impeach award, when, 248, 266.

ARGUMENTS,

should not be pleaded, 385.

ARREARS.

annuity, of, interest on, at whj.i rate alloweci.

dower, of, account of, directed, 7'? > interest not allowed on, 717.

ARREST,

ne exeat, not issued against peison not liable to, 1732.

nor after arrest at law 1538 ; unless for another demand, 1735.
protection from, of officers, suitors, and witnesses, 667.

ART,

meaning of word, and terms of, judicially noticed, 386.
publication of works of, when restrained, 1672.

ASCERTAINED SUM,

parties to suit for aliquot port ion 'i of, 178. '

ASSENT, ' , .,, .

personal representative, where not necessary party after, 206.

ASSESSMENT OF DAMAGES. .Sc- Damages.

9

INDEX.

1929

)

ASSETS,

admission of, effect of, 193. . ■ /:..,.

discovery barred by, 447. <

immediate decree made for payment in case of, 193.
admission of, what is not, 194.
marshalling, parties to suits for, 195. '
receipt, by personal representative restrained, when, 1693.
specific, person possessing, when proper parties, 268.

ASSIGNEE,

husband, of, wife's equity to a settlement against, 82.

lease, of; where lessee necessary party to suit by lessor against, 165.

mortgage, of, last only necessary party, 155.

pendente lite, usually not a necessary party, 236, 1588.

made party by supplemental proceedings, 236, 1587.
trustee, of, necessary party, 204.

ASSIGNEES IN BANKRUPTCY,

bankrupt not a necessary party to suit by or against, 121, 183, 246.
costs of, 124, 440, 1470, 1471, 1525, 1526, 1537 ; and see Costs.
co-plaintiffs, need not all be, 185.
defendants, death orfchange of, an abatement, 124; proceedings thereon, 124,

1585.
estate of bankrupt represented by, 211.
evidence taken before bankruptcy, used against, when, 124.
parties, when necessary, 205.

how made parties, when hankrw^icy pendente lite, 124, 1585.
property of bankrupt vested in, 48 ; although abroad, 49.
revivor of suit by, 51, 1391 ; compelling, 51, 503, 512, 513.
surplus, cannot be sued by bankrupt for, 49.

ASSIGNMENT,

covenant against, forfeiture on breach of, not relieved against, 1688.
husband's of wife's property, effect of, 96, 98, 99, 103 ; and see Married

Woman.
statute of limitations, effect of, on.

ASSIGNOR,

chose in action, of, or his representatives, when necessary parties, 158,
usually made co-plaintiffs, 158.

equitable interest, of, generally not a necessary party, 165.

judgment, of, when necessary party, 158.

shares in unincorporated j'lint-stock company, of, when necessary party, 158.
ASSIGNOR AND ASSIGNl K,

costs, when allowed only orj set in administration suit, 457, 1537.
ASSISTANCE (WRIT OF),

applicable, when, 664.

delivery of possession to purchaser, issued to enforce, 1356.

execution of, 664.

order for, how obtained, and evidence, 664.

preparation and issue of, 664.

receiver, to enforce delivery of possession by party to, 1776.

ASSIZES (TRIAL OF QUESTIONS OF FACT AT). See Issuk.

ATTACHED and IMPRISONED.

decree, or order, for non-obedience to, 648.
subsequent proceedings, 649, 650.

ATTACHMENT (WRIT OF),
when not bailable, 648.
attornment to receiver, to enforce, 1769.
decree or order, for non-obedience to, 648.

bailable, not, 648 ; proceedings when bail improperly taken, 648.

1930

INDEX.

ihr-^-

ATTACHMENT {\WRn 0¥)— continued.

execution of, 648. , . . ■.'

form of, indorsement on ; and issue of, 648. » ,

irregularity, when set aside for, 649. . ,

return to, 649, 650.
documents, for not making sufficient affidavit as to, 1844. .
purchase-money, for non-obedience to order for payment of, 1371, 1372.
production of documents, for non-obedience to order for, 1863.
witness, in case of default or contempt by, 582.

ATTAINDER,

civil death, when, 70.

commission of, Attorney-General not necessaiy party, after issue of, 107.

disability arising from, in case of plaintiff, 40, 46 ; of defendant, 105.

ATTESTATION OF HONOUR ; see Honour (Attestation or Protes-

TION OK).

ATTESTATION OF WILL,
need not be alleged, 296.

ATTESTING WITNESS,

execution, proof of, by, when unnecessary, 559.

ATTORNEY,

absence of, new trial at law on ground of, 688.

party, when made, 248, 1268 ; allegations of bill against, 248.

not a necessary party because he has client's deeds in his possession, 249.
substituted service on, of bill to restrain action, when allowed, 355.

ATTORNEY-GENERAL,

answer of, form of, 109, 1 10. , .

oath put in without, 1 10, 460.
costs of, 7 — no, 1833; and j^^ Costs.
Crown, sues by, 4 — 6 ; although Crown not immediately interested, 4.

on behalf of Crown's grantee of chose in action, 4.

parens patria, on behalf of Crown as, 4, 5.
illegitimate person, does not represent estate of, 162,
indorsement not necessary on copy of bill served on, 350.
nuisance, information, when filed by in case of, 1662.
party to suit, when made, 4, 5, 105, 105 — 110.

attainted or convicted person, to suit affecting property of, 107,

boundaries of colonies, suits relating to, 106.

charities, to suits relating to, 107 — 109.

Crown incidentally interested to suit, when, 105 — no.

distinct Crown grants, to suits by parties claiming under, 106.

grantee Crown's, of chose in action, to suit by, 4 — 107.

outlaw, to suit respecting property of, 4.

parens paUi(£, to suit in which Crown interested as, 107.

where title in Crown appears on the record, though no claim made, 105,
106.

will, to suit to establish, where heir cannot be found, 191.
signature of, required to information, 317 ; how obtained, 317.
suits by, 3 — 12 ; and see Information, Information and B11.1-.
suits against, 105 — 1 10.

Solicitor-General, when party to information by, no.
vacancy of, during, Solicitor-General sues on behalf of Crown, no.

ATTORNMENT,

receiver to, 1776, 1778.
direction for, when inserted in order, 1773.
enforced, how, 1777, 1778.
legal estate, effect on, 656. •

sequestrators to, l^^^ \ how compelled, 656.

INDEX.

1931

J

AUCTION (SALE BY),

purchasers of difTerent lots should not join in same biUi 284.

AUCTIONEER, and see Master's Office. " '' '

party, when made, 156, 247.

payment by, into Court of balance of deposit, when ordered, 1809.
specific performance, not a necessary party to suit for, 247.
trustee, acting r^, costs of, 15 17.

AUTHOR,

breach of contract by, when restrained, 1681.

AUTHORITY,

bill, to fib, must be special, 254 ; and from all the plaintiffs, 255,

written, not usually necessary, 254.
bill filed without, proceedings in case of, 255.

delay, application should bp made without, 256.

evidence in support, and notice of application, 256.

proceedings where fact discovered after decision, 257.
defend suit, what sufficient to solicitor, 381.
relator, to use name of, must be filed with information, 9.

AUTRE DROIT,

persons suing or defending in, not admitted in forma pauperis, 33, 1 20.

AVERMENT,

contrary to fact, of which Court has judicial knowledge, not noticed, 14.

AWARD,

arbitration Acts, under, proceedings on, not restrained, 1638.
arbitrator, when party to bill *o impeach, 247.
certainty required in allegations of bills to set aside, 303.
plea of, in suit to impeach, for fraud, 247.
answer in support of averments in, 247.
wife's right by survivorship, effect of, on, 94.

BAD HEALTH,

defendant unable to answer in consequence of, allowed more time, 139.

BAIL,

attachment, when bail may be put in to ; when not, 649.

BALANCE,

account, of, offer to pay not necessary, 310.
interest on, when decreed, though not prayed, 307.

BANISHMENT,

civil death, when, 70.

BANKER,

failure of, receiver when charged with loss occasioned by, 1787.

BANKRUPT,

abroad, bankrupt cannot sue for property abroad, 49.
account, bankrupt cannot sue assignees for an, 49.
agreement not make a man, breach of, when restrained, 1682.
assignees, banknipt cannot sue for property vested in, 48.
demurrer that plaintiff is, 50, 122.
discharged, may sue for after-acquired property, 50.
discovery, when he may file bill of, 47.

dismissal of bill for no'i -prosecution, on motion gf, 123, 505, 513.
equity, when he mj ■ -ue in, 47.
estate of, represented by assignees, 211.
law, when he may sue at, 47, 48.
mortgagor, not necessary party to foreclosure suit, 173.
party, not made a to bill for relief, unless fraud or collusion charged, 121,
122, 211, 246.

1932

INDEX.

I

Q

Q

ki 6

—i

3:

BAN KR U PT— r<»«//>i//«/.

pauper, when allowed to sue as, 34. ^ .

personal disability, under no, 47. -. .' :. .' . ■> r. • ' »

answer that defendant is, 121, 122; that co-defendant is, 121.

that plaintiff is, 50. , ,

redemption of mortgage by, when allowed, 49. . ; ,1 ..

surplus, cannot sue assignee for, 49. 1 1 . ;

BANKRUPT AND ASSIGNEES,

one set of costs, when alloweil between, 457, 1537.

BANKRUPTCY,

defendant, of, pendente lite, not an abatement, 123.

assignees, how brought Ijefore the Court, 124, 1585.

dismissal of bill for non-prosecution in case of, 122, 505, 513.

service of proceedings on after, not necessary, 124, n. (2.) — 1585, n. (6.)
husband, of, effect of, on wife's right by survivorship, 100.
limitations, statutes of, effect of, in case of,
next friend of married woman, of, proceedings upon, 91.
plaintiff, pending suit, an abatement, 51.

motion for revivor or dismissal of bill on, 51, 511.

or after decree for prosecution of suit or stay of proceedings, 512.

supplemental order on, 51, 1585.
plea of co-defendant's, 122; of defendant's, 155.

of plaintifTs, 50.
proof in, by husband, of debt due to wife, effect of, 95.
receiver, of, discharge of, on, 1795.
surety fo;- receiver, of, proceedings on, 1798.

BANKRUPTCY (COURT OF),

injunction against proceedings in, when granted, 1649.
jurisdiction of, 48.

BAR,

disclaimer at, by counsel, in suit, 434, n. (5.) ; on petition, 434, n. (5.)

BARE TRUSTEE,

in general, not a necessary party, 203.

BARGAIN AND SALE,

enrolment of, averment of, not necessary, 297.

BARRISTER,

receiver, may be, 1767.

BASTARD.— ^.v Ii.lec.itimacy— Illegitimate Person.

BEI.IKF,

in answer, equivalent to admission from, 530.
evidence as to, when admitted on motions, 1618, 1619.

BELIEF OR OTHERWISE,

suflkienl answer as to facts not within defendant's own knowledge, 450.

BELL,

breach of covenant not to ring, when restrained, 1681.

BIDDING PAPER, See Master's Okfice.

DINGS (OPENING), 1151—1162; and j<v Master's Okkick.
advance of price, what necessary, 11 53 — il.i;5.

application for, how made, 1158; by whom, 1151, 1152; and when, 1157.
collieries, in case of, 1 156.

costs on, 1159, 1160, ii6r. ,,,

default of applicant, proceedings on, 1 160. .

deposit, amount of, on, 1159.
repayment to former purchaser of his, 1 1 59. '

INDEX.

193$

BIDDING VAFER—cotitinuei/. \ ^

return of, 1161. ' i . ■

discharge of first purchaser on, 1 155. . • .■

effect of, 1155. '

fraud, in case of, 1 1 59.

lives, in case of property held on, 1157. '

lots, in case of sale in, 1 1 56.

number of times it may be ordered, 1 153.

order for, form of, 1 1 59.

private contract, sale by, 1153.

pui'chaser, intending, not opened for mere benefit of, 115$.

resale on, how conducted, and subsequent proceedings, 1 160.

sealed tender, on sale by, 1 1 53.

second time when directed at instance of same party, 1153.
proceedings in case of, 11 60.

separate applications for, as to separate purchases, 1155.

sham purchaser, solicitor of, ordered to stand as purchaser, 1 161.

BILL, I, 253—341.

accompanied by afiidavit, when, 313 — 316.

omission of, how taken advantage of, 315.
address of, i, 2, 292, 293 ; and see Address.
adequate value, must be for, 271, 272.
admissions by, $28, 529 ; and see Admissions.
agreement contained in letters, statement of, in, 297.
agreement relating to land, statement of, in, 297.
allegations in, must be sufficient to found decree, 295 ; and positive, 294.

except as to facts concerning which discovery is sought, 295.
amendment of, 318 — 341 ; and siv Amended Bill — Amendment ok Bii i..
authority to file, 254 — 259 ; and set' Aitthoritv.
bargain and sale, statement of, in, 297.
certainty required in, 299 — 303 : and see Certainty.
chattel real, possession of, how alleged in, 295.
claims, must not be for one of two, on same defendant, 272.
conclusions of law should not usually be averred in, 303.
contents of, 259.

copy, authenticated, to be used at hearing /w confesso, 378.
copy for service, 349 ; and see Service.
deeds, statement of, in, 295 — 303.
defendant, statement of case against, 265.
different kinds of, 253, 254.
documents, when stated in, 296.

facts, how alleged in, 295 ; statement of those to be proved, 270, 537.
filing of, 317.

form of, under former practice, 289 ; and under present, 290.
general nature of, 259.

grant, deed must be alleged of matter lying in, 298.
heading of, 313.

impertinence in, 285 ; and sec Impertinence.

indorsement on copy for service, 349, 350 — 353, 360 ; 7\XM\see Indorse.meni .
instruments, how referred to in, 298.

statutory, allegation of, 298.

written, need not be so stated, unless required at law, 297, 299.
interest of defendants must be shown, 266.
latitude in cases of charities and infants, 9, 58, 309.
liability of defendant must be shown, 266.
matter of, 259 — 289.

mortgage and bond by same defendant, must not be for one only, 272.
mortgages, must not be for one of two, by same defendant, 272.
multifariousness in, 275—285 ; and see Multifariousness.
offer to do equity in, 310 — 312 ; and see Op'FER.

Vl.

1934

INDEX.

BILL — continutd. lit

partnership accounts, for, must pray dissolution, 274 — 276.
parts of, under former practice, 289, 290 ; under present, 290. , ' ,

plaintiff's name and address, statement of, when necessary, 292.

omiflsion of, how taken advantage of, 292 ; and see Addrkss.
plaintiff's right must be shown by, 259, 260.
plaintiff's title, averment of all acts necessary to complete it, 264.
plaintiff's title, statement of, 264, 265.
prayer of, 269, 270, 290, 303 — 313 ; and see Prayer.
preparation of, 258.

printed, must be, 316, 317 ; mode in which, and paper required, 316.
privity between plaintiff and defendant must be shown by, 269.
record, not of, until filed, 317.
relief, proper, must be specifically prayed, 269.
sanction of Court, when necessary to, 257 — 259 ; and see Sanction ok tiik

Court.
Bcandal in, 285 — 289 ; and see Exceptions — Scandal.
seisin in fee, how alleged, 296.
service of, 350 — 365 ; and see Service.
stamps, averment of, unnecessary, 298.
stating part of, 294 — 303.

technical expressions, how far to be use<l in, 295.
time, certainty required in allegations of, 300.
title, proper, must be shown by, 262.
^ trust, allegation of, in, 297, n. (3.)

whole matter, must be for, if capable of immediate decision, 272, 273.
will, allegation of, in, 298.
written, filed, when, 316.

BILL (AMENDED). 6'tr Amended Bill.

BILL (CROSS). See Cross Bill.

BILL OF DISCOVERY. Set Discovery (Bill of). \

BILL OF INTERPLEADER. See Interpleader.

BILL (ORIGINAL),

consent decree obtained by fraud, impeached by, 608. .

decree obtained by fraud, collusion c: error, when impeached on, 129, 136,

n. (I.); 417, 608.
definition of, 253, 254.
separate account, error in carriage to, corrected by, 1825.

BILL (IN THE NATURE OF AN ORIGINAL BILL),
de^nition of, 253.

BILL (NOT ORIGINAL),
definition of, 253.

BILL OF PEACE. Sec Peace (Bill of).

BILL TO PERPETUATE TESTIMONY. See Perpetuate Testimony
(Suit to).

BILL OF REVIEW. .9<r Review (Bill of).

BILL (SUPPLEMENTAL). See Supplemental Bill.

BILL AND ANSWER, .

cause heard on, when, 521, 522.
costs on dismissal at hearing, 613.
evidence in such case, 521, 561.
exhibits may be proved at hearing on, 521, 561.
hearing on, proceedings at, 613

replication, permitted after hearing on, when, 613. .. .

withdrawal of replication to set down cause, on, 526.

INDEX.

1935

, 3«6.

riON OK TIIK

72, 273.

on, 129, 136,

'K Testimony

BILL OF EXCHANGE. See Exchange (Bill ok).

BIRTH,

child of, supplemental order on, 1585, n. (4).

place of, when discovery as to, must be given, 3, 399.

BISHOP,

lunatic incumbent, when bishop necessary party to suits by, 166 — 167.
sequestrator, when bishop necessary party in suit against, 1 66.
tithes, bishop not necessary party to suit by incumbent for, 167.

BLIND PERSON,

aftidavit of, how taken, 575.
answer of, how taken, 467.

I'.i)ND, and see Master's Office.
exhibit, provable at hearing, 561.
interest, what allowed on ; if security for annuity,
obligee of, or his representative, when necessary party, 158.
proves itself if thirty years old, 554.
security for costs given by, 27 — 32 ; and see Costs (Security for).

BOOK (TITLE OF),

infringement of right to, restrained, 1673.

BOUNDARIES,

colonial, bill to settle, 15 ; Attorney-General necessary party to, 105.

commission to settle, 714 — 715.

conveyances, mutual, not directed by decree in suit to settle, 715.

costs of suit to settle, 715.

decree for commission to settle, not a final decree, 616.

proceedings under, 714 — 715.
further consideration, reservation of in suit to settle, 715.
parties to suits to settle, 167, 219.
setting out, where lands cannot be separated, 714, 715.

BRIEFS,

contents of, and counsel's notes in, how far privileged, 406, 1857.

motions, on hearing of, 1616, n. (3).

petition, on hearing of, 1457, a. (jr).

special case, on hearing of.
costs of, 1627, n. (3) ; where prematurely prepared, 1627, n. (3).
minutes, to be left on bespeaking, 630.

BRITISH SUBJECTS,

resident abroad, rights of their descendants, 42.
resident in enemy's country, and trading within license, may sue, 44.
secus, if trading without license, 44.

BROKER,

privity not destroyed by employment of, 298, 269.

unlicensed person acting as, in London, must give discovery, 400.

BUILD,

breach of covenant not to, when restrained, 1681.

BUSINESS (PLACE OF),

of solicitor, to be written or printed on writs, summonses, and other pro-
ceedings, 361 — 262.
in agency cases, that of principal solicitor also, 362.
change of, notice to be given at Record and Writ Clerks' Office, 365, n.

(4) ; and sse order 49.
service at, of proceetlings not requiring personal service, 363.

CANADA,

receiver of property in, when appointed, 1765.

193C

INDEX.

C-t.

a.-

c

%:

CANAL,

tolls, receiver of, when appointed, 1761, 1765.

CANONRY, ■ • .

receiver of, when appointed, 1 764. " •

CASES (FOR OPINION OF COUNSEL),

production, when privileged from, 405 — 407, 1856,
exceptions, where plaintiff and defendant jointly interested, 1856.
or in suits between rtstui que trust, 1856.

CAUSE,

showing, against decree by infant, 58, 129 — 132 ; and see Day To Show
Cause— Decree.

CAUSE BOOK,

costs, when cause struck out of, 614. • •

Registrar, kept by, 607.
setting down cause in, 607.

CAUSE PAPER,

Registrar, made out by, 607.

CERTAINTY,

answer, in statement of defendant's case in, 443.

bill, in statements of, 299. "^

objection for want of, how taken, 300, 303, 396.

CERTIFICATE,

examination of married woman, of, 75. • ■.

examiner's, of default or misconduct of witness, 580.
expert, of, called to assist Court, how regarded, 613, 614.
partition, of, 708.
solicitor, of, on information, 317.

CERTIFICATE (OF COUNSEL). ^"^^ Counsel.

CERTIFICATE (RECORD AI^D WRIT CLERKS'),

answer, of filing of, conclusive as to time of, 470. ^

bill filed, of, on application for injunction, 1509 ; for ne exeat, I545'
proceedings in cause, of, on motion to dismiss for want of prosecution, 503.

CE.STUI QUE TRUST,

aliquot portion of ascertained sum, one may sue for, 1 78.

all accounting persons necessary parties to suit, by, for account, 204.

breach of trust, may proceed against one tnistee for, when, 224.

concurring in, necessary party to suit to repair, 182, 184, 225.
decree for execution of trusts may be obtained by one, but others must

be served with notice of it, 184, 342.
foreclosure suits, when represented by trustees, in, 1 73.
life-tenant, entitled to sale to raise costs, I3I7>
ne exeat issued at instance of, 1 734.
party to suit by trustee against co-trustee, not a necessary, 182.

or to recover fund improperly lent, 182.

unless he concurred in breach, 182, 184.
party to suit by trustee, when a necessary, 179, 181 — 183.
party to suit against trustee, when a necessary, under former practice, 212;
under present, 214.

dispensed with formerly, because numerous, when, 212.
production of documents by trustee, not ordered in absence of, 1849.
redemption suit, how far represented by trustee in, 215.
trustees represent, when, 170, 171, 181, 185, 212, 213, 324, n. (6).

not if trustees' interest, conflicting, 182 ; or in contests inter se, 182.
waste by, when restrained, 1653.

CESTUI QUE TRUST AND TRUSTEE,

only one set of, costs, allowed between, when, 1537'

INDEX.

1937

856.

AY TO Show

rosecution, 503.

|nt, 204.

!4.

125.

Ihers must

(2-

practice, 212

\f, 1849-

In. (6).
se, 182.

CHAMBERS, PROCEEDINGS IN THE JUDGE'S, 719—736.
general course of proceedings at Chambers, 719. .

referee in Chambers, 820.
order 210, as to, 720.
duties and powers of, 720.
orders 560 to 567, as to, 720, 721, 722, 723.
order, 198, as to the course of proceeding, 723.
" 200, as to, 724.
" 201, as to, 724.

" 540, 724-
■ orders relating to the sittings of the Court, 725, 726.
what evidence may be used at, 727.
attendance of parties or witnesses, how procured, 727.
production of documents, m^-y be ordered, 727.
orders 210, 208, and 205, as to, 728.

CHAMPERTY,

demurrer, because discovery will subject defendant to penalties of 398.

CHANCELLOR,

protector of settlement, when, 1857, 1858.

CHANCERY (COURT OF),

infants, jurisdiction of, over ; see Infant.

information, when filed in, 3 — 12, 1663 ; and see Information.

proceedings in, when admissible as evidence, 548,

CHANCERY (OFFICER OF THE COURT). See Officer of thk Court of
Chancery.

CHAPEL (DISSENTING),

appointment of minister of, when restrained, 1680.

CHARGE,

general, evidence of particular facts when admissible under, 538.
parties to suits to establish, 232, 234, 235.

CHARGE AND DISCHARGE. See Master's Office.

CHARGES AND EXPENSES. See Costs, Charges, and Expensks.

tHARGING PART,

of bill, 290 ; now usually included in stating^part, 290.

CHARITIES,

Attorney-General, when necessary party to suit relating to, 107 — 109.

costs of suitsrelating to, 320. 10 — 12, 1538.

definition of, 1883.

heir of grantor, when necessary party to information for, 217,

heir, costs of, in suit relating to, 1472, 1542.

information for distinct, when multifarious, 282, 283.

latitude allowed, rectification of mistakes in cases of, 8, 9, 309, 310.
vesting of legal estate in the lands, 1907.

payment out of fund belonging to, consent of Commissioners to, when neces-
sary, 1827.

relators in information, relating to, 6, 11, 12 ; and see Relator.

Solicitor-General, when defendant to information, relating to, 1 10.

suit on behalf of, when commenced by information, 2, 3, 4.

/iTri'-tenants, all, not necessary parties to suits on behalf of, 231.

trustees, form of order for payment of interest to, 1830.

visitor of, power of, 1886.

CHARITIES (SIR SAMUEL ROMILLY'S ACT), 1730, 1735.

CHARTER,

corporations estalilished by, how they sue, 16.

1938

INDEX.

(it 6 ^'.

CHATTEL,

deposit of specific, in Court, when directed, i8l8.
parties to suits by pawnee or depositee of, 182.
sale of specific, when restrained, 1494.

CHATTEL REAL,

married woman, of, assignment of, 99 — 102 ; and see Married Woman.
possession of, how alleged, 295.

CHILD,

illigitimacy of, parent when not bound to give discovery as to, 399.

CHILDBEARING,

age of, woman, when considered past, 1825, n. (4).

CHINA,

receiver of property in, where appointed,

CHOSE IN ACTION,

assignor of, when a necessary party, 158 ; when not 165. • '

usually made co-plaintiff, 159.
married woman, of, assignment of, 88, 94, 96 — 98, 103, 1717 ; and see

Marrikd Woman.
sequestration, effect of, upon, 652.
suit for, by Crown's grantee, 4.

CHRISTMAS VACATION,

commencement and termination of, 327.

CHURCHWARDENS,

revivor on change of, 1592.

CIVIL DEATH,

what is,

CIVIL LA'V,

judicially noticed, 386. *

CLAIMANTS (UNDER DECREE), and see Master's Officr.

appeals by, 1558. . •. '

costs of, 348, 1553.

mortgagee, under, costs of in redemption suit, 215. •

motion by, 1608.

CLAIMS (UNDER DECREE), and see Master's Offick.

CLASS.

inquiry as to, where directed, 619. ,

liability of acting members of, 228.

principle of allowing one of a class to sue on behalf of himself and the others,

151- , .

members having opposing interests must be made defendants, 200 ; or if
several classes, some of each class added to represent the others, 200.
special case, principle not applicable to proceedings by, 1866.
instances in which principle acted on, 193, 195, 196, 197, 198.

common benefit, where suit for, though disapproved by majority, 342.

company, by one memV)er of incorporated, 201.

creditor, by one, on behalf of others, 201.

creditor, by separate, on behalf of joint and separate creditors, 194, 195.

creditors under, rust deed, by one of several.

crew, by one of ship's, for prize money, 196.

institution, by one of several subscribers or proprietors of an, 196.

landowner, by one of several, in suit for modus, 195.

legatees, by one of several, 195, 342.

next of kin, by one of several, 195, 342.

parish, by one of the inhabitants of a, 195.

partnership, in cases of, 199.

INDEX.

i9d»

I) Woman.
399-

1717 ; and see

R.

If and the others,

lants, 200 ; or if
others, 200.

Ijority, 342.

litors, 194. '95>

in, 196.

CL A S S — continueii.

trading concern, hy one of several joint proprietors of a, 195, 196.

testamentary appointees of married women, by one of several, 184, 195,
residuary legatees, by one of several, 183, 342.
waste, in case of, 341.

instances in which principle not acted on, 196, 197, 2CX>.
advantageous to all, where suit not necessarily, 197.
claim not necessarily reasonable with regard to all, 197.
partnership, where dissolution sought, 196, 199.
relief prayed is not beneficial for all, 197.
suits against, when all members need not be made parties, to, 228 — 230.
ccstuis (lite trusts, suits against, 212.

charity, to suit by, against /rrn'-teiiants, 230. _,

joint-stock companies, to suits against, 228 — 230.
lords of manors, to suit as to rights of common by, 229.
parishioners, to suit to enforce contract on behalf of, 228.
parsons, to suit by, for tithes, 229.

peace, to bill of, by city of London, to establish right to duties, 229.
tradesman, to suit by, against club committee, 228.
suits against, where all the class held necessary parties, 231.
/■^-rr^^- tenants in suit to establish rent-charge, 231.
where claims of absentees not homogeneous with those present, 231.

CLASS (SUIT),

amendment, leave for, when given at hearing of, 202, 330,
dismissal of Vjill, effect of, 197.

dismissal of, on satisfaction of plaintiff' 's demands and costs, 193.
dismissal of bill on plaintiff" 's application, 197, 484, n. (i)

after decree, not ordered even by consent, 197, 487, 488.
injunction in, form of, 1701.

inquiry as to, when directed in suit by one of a, 176.
misjoinder, suit not dismissible for, 25 1,
plaintiff", description of, in 202, 294, 330, 331.
plaintiff" must personally have good cause of suit, 201.

and sue bona fide for the benefit of the class, 202, n. {3)
plaintiff" has dominion over suit until decree, but not after, 196 — 197, 487.
staying proceedings in, after decree, 488.

CLERGYMEN,

communications to, not privileged 410.

CLERICAL ERROR,

correction of, in answer by amendment, 472, 478.

bill, in, by amendment, 325.

decree or order, in 640.

bill of review not necessary for, 1427, 636, 937.
demurrer in, 425.

CLOSE DAYS,

not reckoned in computation of time, when, 288, 1615, 1616, 1626.

CLU15,

members, when necessary parties, 228.

CO-DEFENDANT, •

answer, when read against co-defendant, 530 — 531 ; in interpleader suits,

531-
bankruptcy of, plea of, 122.

evidence taken in another cause, when admissible against 551.
injunction, when granted against, 1636.
ne exeat, when granted against 1 740.
production by, not ordered before decree, 1846.
receiver, when granted against, 1768.

1940

INDEX.

I

I

^

COHABITATION,

unmarried woman not bound to cive discovery as to, 399.
wife declining, when not entitled to a settlement, 82.

COHEIR,

administration decree, at instance of, without serving others, 177, 178 — 342.

COI.LIERIKS AND MINKS,

manager, when appointed of, 1761 — 1763, 1800,
opening buildings \n sales of, 1156,

COLLUSION,

affidavit of ni), in interpleader suits, 315.

agents, arbitrators, or attornies, cliarged with, when made defendants,

147—249.
allegation of. general, insufficient, 268 — 269.

hill dismissed on account of, with costs, charges, and expenses, 1545.
cause against decree, how shown as, by infant, 136.
( reditor or legatee may sue debtor to estate, in case of, 268.

l)ut. personal representatives a necessary party, 158, 205.
debtor to estate, suable on the ground nf, 158.
decree obtained by gross, impeachable by original bill, 136, n. (i).

COLONIAL GOVERNMENT,

may sue in this country, 15. 1

COLONIES,

boundaries of, Attorney-General a party to suit relating to, 106.
«<• exeat against person domiciled in, 1737.
will prove<i in, establishment of, 556.

COMBINATION AND CONFEDERACY,

charge of, now omitted, 291.

COMMITTAL,

injunction or restraining order, remedy for breach of, 1710.
receiver, for disturbance of possession of, 1777.
witness, of, for contempt, 581.

COMMITTEE (OF IDIOT OR LUNATIC),
answer of idiot or lunatic put in by, 138, 140.

heading of ; and jurat to, 469.
oath or signature, how put in without, 462.
tie exeat, granted on affidavit of, on behalf of lunatic, 1738, 1 744.
new, appointment of, supplemental order on, when a defendant, 139, 1585 ;

where plaintiff, 68.
party to suit on behalf of idiot or lunatic, 67 ; usually co-plaintiff, 68.
party to suit against lunatic, 138, 205 ; usually co-defendant, 138.

unless a plaintiff, or having adverse interest, 138.
sanction of Court, to suit by, 68, 258.

or defence, 138 ; or deviation from ordinary course of practice, 139.
special case, concurrence in bo, 1681.

COMMON (RIGHT TO),

parties to bill relating to, 229.

COMMON LAW, j

tliscovery at, 1 649.
equitable defences at, 1649.
extension of jurisdiction of, jurisdiction in ' -hancery not abrogated by, 390,

1649.
injunction, when issued at, 1665, 1666.
patent cases, account, injunction, and inspection obtainable at, in, 1669.

COMMON LAW SIDE OF THE COURT OF CHANCERY,
proceedings in, formerly entered in F>ench or Latin, i .

INDEX.

194(1

COMMON SEAL,

answer of corporation aggregate put in under, 114, 460, 467.
proceedings where custodian of seal refuses to affix it, 1 14.

logaled by, 39°.

COMMONS (MEMBER OF THE HOUSE OF). See Paruamknt (Mkm-

BER OF).

COMPANY (PUBLIC),

directors of, when they may be sued by public officer, 19, 20.

individual member of, when he may sue on behalf of himself and the others,

201 ; when he may sue directors or company, 19, ao.
public officer, when it sues by, 19 ; is sued by, 20.
registered, how it sues and is sued, 20.
service of the bill upon, how effiscted, 352.

COMPETENCY (MENTAL),
inquiry as to defendant's, 139.

COMPROMISE,

application for compromise of suit, how • mA\ 1605.

costs, cause not heard on question of, after compromise, 489, 1468.

issue, effect of compromise of, 699.

setting aside, on application of one plaintiff, effect of, 494.

CONCURRENT INTERESTS WITH PLAINTIFF,
persons having, when necessary parties, 151 — 202.

CONCURRENT SUIT (STAYING PROCEEDINCiS IN), 491, 494.
administration suits, after decree in one, 491, 495.

creditor's suit, when not stayed till executors have answered, 493.

identical, terms, when suits not identical. 491, 492.

residuary legatee's suit preferred to executor's, 492.

snatching decree in case of, 493, 494.
application, how and by whom made, 492.
conduct of suits, to whom given, 493.
costs, in cases of, 492.
infants' suits, in cases of, 55, 490.

CONDITIONAL ORDER,

consequence of non-performance of the condition, 465.

CONDITIONS OF SALE. See Master's Office..

■ CONDUCT OF CAUSE,

administration suit commenced in Chambers, of, 734,
concurrent suits, in case of, 493, 494.
revivor, effect of, on 1584.

CONFEDERACY,

charge of, 290 ; now omitted from bill, 291.

CONFESSIONS,

pleadings, must be noticed in, 540 — 541.

CONFIDENCE (PROFESSIONAL). J^^ Prokessionai. Confiuenck.

CONSENT,

authority of counsel to give, 608.
decree by, appeal from, not allowed, 608, 1555.
impeached by original bill, 608.
not by bill of review, or bill in nature of bill of review, 608.
married woman, of, to payment of her fund to her husband, 72 — 82.
new next friend, of, to act, how proved in case of infant, 61. ,
of married woman, 90.

CONSENT CAUSE, 608. ....... •„ .• . ; !

m42

INDEX.

.;ltl

t ■ ill

■J # f :^'

?

«■

.;.4

Jfiv

Jiii

CONSIGNEE,

appointed, when, and Wow, lj66, 1800.

interest on balance, when allowed, 1801.

priority of, for payments sanctioned by the Court, l8bl. . .

CONSOLIDATION OF SUIIZ,

concurrent administration suits, in case of, 491, 492.
infringement of patent, of suits to restrain, 280, n (2), 494.

CONSPIRACY,

discovery of facts amounting to, must be given, v/hen, 399, 400.

CONSUL,

resident abroad on service, not required to give security for costs. 22.
trading, resident in enemy's country, cannot sue, 43.

CONTEMPT,

abatement, effect of, on process of contempt, 1593.

partial, process of contempt, when issuable pending, 1594.

total, prc/cess of contempt pending, irregular, 1595.
clearing, 664, 1724, 1725.

accounts, when for not bringing in. See Master's Office.

decree or order, when for disobedience to, 648, 649, 664.

staying proceedings, until contempt cleared, 1723.
costs of, 468 ; and see Costs, 1725— 1727.

staying proceedings, when plaintiff in contempt for non-payment of, 490.
de dene esse, examination when defendant in, 589 ; order for, 590.
decree or order, process of contempt for disobedience to, 642 — 664.
discharge of process of, for irregularity, 664, 1778.

application for, how made, 1778 ; when made, 1730.
effect of issue of process of, on proceedings in cause, 664, 1720 — 1723.

application by contemnor, usually a bar to, 1607, 1720, 1721.
rule only applies to voluntary applications, 1721.

exceptions to the rule, appeals, 1723.
another suit, applications in, 1721.
att:achment for want of answer, issue of, 1 722.
discharge for irregularity of contempt process, application for, 1722,

1723-

notice of motion may be given, though motion cannot be heard, 1 723.

opposition to special application against contemnor, 1722.

pauper, application lor leave to defend as, 172 1.

renewal of previous application, 1721.

scandal, for removal of, 1723.

taxation of costs, 1 723.
hearing of cause, contempt of plaintiff not an objection to, 611.
i-regular, action against person acting under, restrained, 313, 1636, 1729.

costs occasioned by, payment of, 1729.
pauper, process of contempt at instance of, must be signeci by his solicitor,

37-
discharge of, on death of sole plaintiff, 1 728.

motion by, for discharge, on revivor of the suit, 1594, 1595.
revivor, issue and resumption of process of contempt after, 1 595.
service, in matters of, must be per^ nal, 361.

affidavit of service, effect of iiTCgularity in, 577.
special, pu. ishment for, 667.
waiver of, w hat u, 664, 1 727- 1 729 ; and see Waiver.

CONTEMPTUOUS WORDS,

against Court, or process thereof, punishment for, 667, 1721, n. (7).
CONTINGENCIES,

payment out of fund subject to, on what terms directed, 1825.

CONTINGENT INTEREST,

persons having, when necessary parties, 176, 177.
suit to secure, costs of, 1530.

INDEX.

i»4a

X).

)StS. 22.

E.

)ayment of, 490.

590.
2—664.

rzo— 1723.
721.

ation for. 1722,

|e heard, 1723.

12.

I, 1636, 1729-
by his solicitor,

in. (7).

CONTINGENT REMAINDERMEN,

intermediate, when necessary parties, 222.
title-deeds, inspection of, cannot sue for, 261.
trust property, may sue to secure, 261.

CONTRACT,

lunatic, by, when set aside, 69.
married woman's separate estate, bound by her, 149.
plaintiff claiming by, need not state title fully, 264.
sub, person entitled under, when necessary party, 157.

CONTRIBUTION,

parties to suits for, 226, 227.

CONVERSATIONS,

admissions, used as, when they must be pleaded, 541.

CONVEYANCE, and see Master's Office.
mutual, on partition, 710.
purchase under decree, on, 1355 — 1357.

certificate of approval of, 1 363.

delay in preparation, or settlement, remedy for, 1363.

execution of, how enforced, 1365.

parties to, 1361.

preparation of, 1 36 1.

settled by Master, when, 1361 ; purchaser's costs, where, 1361.
statement of, in bill, 296, 298.

CONVEYANCER,

communication to, not privileged, 410.

CONVEYANCING COUNSEL. See Master's Office.

CONVICTION,

disability arising from, in ca;

CO-OBLIGORS,

parties to suit for contribution, when necessary, 226, 227.
if numerous, some may represent others, 2i27, 228.

CO PLAINTIFFS,

accountable to each other, persons who are, should ?xX be, 192.

nor devisee and heir-at-law, 191.

nor settlor and purchaser, in suit to avoid settlement, 191.
assignees of bankrupt need not all be, 185.
assignor of chose in action usually joinetl as, 1 59.
bankruptcy of, motion for revivor and dismissal of bill on, 52.
co-executors need not all be, 185.
creditors of same debtor may be, 192.
death of, before decree, who entitled to revive on, 1 583.

motion for revivor or dismissal of bill on, 511.
devisee and heir-at-law should not be, 191.
disavowal of suit by, proceedings upon, 257, 485.

infant, when leave given at hearing to amend, by making defendant, 332,
interests of, need not all be equal, 284.

marshal assets, simple contract and speciality creditor should be, 195.
persons not interested, or having separate and distinct interests, should not

be, 251.
repudiation of suit by infant co-plaintiff, 63.
settlor and purchaser should not be, in suit to set aside settlement, 19*.

COPY OF THE BILL (Process by service ok, on Formal Defendants),

349—365- .,

prayer of bill, 290, 291, 312.

of plaintiff, 46; of defendant, 105.

fr^'

1944

INDEX.

I

k
Q

I

a^

COPYRIGHT,

abridgment, when not an infringement of, 1670.

alien, of, when protected, 41.

blasphemous, immoral, or irreligious publications, in, not protected, 1669.

extracts, when not a piracy of, 1670.

injunction, in cases of, principles on which granted, 1667, 1668.

issued, without ascertaining the amount of the piracy, when, 1671.

whole work, extended to, when, 1671.

perpetual, when made at hearing, 1707.
international, 41.

piracy of, how ascertained and detected, 1670.
quotations, when not a piracy, 1670.
road-book, piracy of, restrained, 1670.
separate bills necessary for each piracy, 280.
title, affidavit of, contents of, 1669.

CORPORATIOM,

address of, statement of, not required in bill, 293.
affidavit accompanying bill of, by whom sworn, 316.
aggregate, answer of, 1 1 5.

books and manuscripts must be searched for information, 115.

common seal, put in under, 115, 460, 467. ,

proceedings when custodian refuses to affix it, 1 1 5.

proceedings in default of answer, 374.

bill, service of, on, how effected, 352.

injunction o restraining order, remedy for breach of, by, 17 13.
service of writ of, on 1702, n. (3).

payment out of fund belonging to, form of order for, 1831.

jbro confesso, bill, when taken against, 374.

production of documents by, affidavit on, by whom made, 1841.
corporate name, sue and is sued by, i6, 112.

foreign, suits by, 19 ; service of notice of motion on, how efTected, 1614.
foundation, sue and sued by name of, 19, 112.
grant to, by statute, valid, though true name not used, 16, 17.
head of, a necessary party to suit by or against, i6, 112, 142.

but need not be called by his name, 1 7.

death of, not an abatement, 1 7.

suit in name of head not permitted, unless specially authorized, 16.
impeachment of transactions effected in its own name by, 17.
individual members not necessary parties, and need not be named, 17, in,
member or officer of, may be made defendant for purpose of discovery, 112,

113,246, 247, 304 ; secus, if a mere witness, 1 14.
prescriptive name, when it sues and is sued by, i6, 112.
seal of, thirty years old does not prove itself, semble, 555.
sole, must show in what right he sues, 17 — 18.

death of, an abatement, 18 ; who entitled to revive, on, 18, 1389.

defends suit like private individual, 115.

payment of income to, form of order for, 1584.

CORRUPT MOTIVES,

imputation of, when not scandalous, 286.

CORRUPTION,

award, setting aside, for, 247.
plea of arbitrators to bill to set aside, form of, 247.

COSTS, 1464-1545.

abandoned proceedings, stay of subsequent proceedings for s{ime object.

until p.-xyment of, 489, 490, 1468.
account, in cases of, 1487, 1488. ■ '

apportionment of costs in suit for, 1502.
administration, of suit for, 1510, 1511, 1526 — 1539.

INDEX.

194S

rotected, 1669.

br same object,

QO^TS— continued.

administration, costs of, first charge on fund, 1510.

general estate, paid oMt of, 1530, 1535.

lapsed or revoked legacy, not thrown on, 1534.

mortgagee, where suit instituted by, 1478.

order of payment of, when estate insufficient, 1527, 1528.

retainer of personsl representative has priority over, 1529, 1818.
secus, retainer of devisee subject to charge of debts, unless plainli if
proceeds after notice of claim, 1529.

specific legacies not liable to, 1533, 1534.

undisposed of property, not thrown upon, 1533, 1534.
affidavits of, not allowed, unless expressed in first person, 572.
agents, of, when allowed, 151 1.
amendment of bill, of, 325, 326.

course, under order of, 325.

defendant's occasioned by striking out part of bill, 340.

demurrer, where amendment after, 427.

irregular amendment, occasioned by, 338.

payment of, 337, 337, n. (3).

special, application for costs of, 329. "
ans ver, costs occasioned by evasive, 480.

improper, by guardian ftrf //V^w, 128, 129.

separate, costs of, where filed by same solicitor, 456

where defendants' interest joint, 456.

time for, costs of application for enlargement of, 465.
answer, reading, by defendant on question of, 531, 1470, 1471, 14S7.
rL;;.peal for, not permitted, 1558, 1561.

exceptions, when given by Act of Parliament, 1561.

estate or fund, where costs chargeable on, 1559, 1560.

principle, in matter;- of, 1558.

relief, when paymen,. of costs part of, 1559.

rule not evaded by coupling an unfounded ground of appeal, 156K
appeal motions, or petitions, of, 1575, 1624, 1630.

when new evidence adduced, 1575, 1624. 1630.
appeals and rehearings in Chancery, costs of, 1578^ 1579.

costs in the cause, when made, 1578.

not included in, unless specially mentioned, 1578.
dismissal of appeal, in case of, 1578 ; where recommended below, 1579.
new evidence, how affected by, 1578,

omission, to provide for rectification of, 1578.

respondent, when ordered to pay, 1578
application for, should be made at hearing, 1 509.
apportionment of, between parties, 1507 — 1509.

account, in matters of, 1501.

dismissal of bill, in case of, 1503 ; when dismissal partial, 1503.

issues found different ways, in case of, 1502.

specific performance suits, in, 1503, 1504.
apportionment of costs between different funds, 1537, 1538.

charities, where one scheme settled for several, 1538.
arbitrators, when ordered to pay, 248, 249.
assignees in bankruptcy, of; of defaulting administrator, 1527.

personal liability to, 1525.

strangers, in suits with, 1470, 1471.
assignor and assignees, one set of, when allowed between, 457, 1537.
Attorney-General, of, 7, 110, 1542.

charity cases, in, 1541.
auctioneer, of, where a trustee, 1517.

Bank of England, costs of, when thrown on particular legacy, 1536.
bankrupt and assignees, one set of, when allowed between, 457, 1537.
bill and answer, costs on dismissal at hearing on, 613.
bill, original, when read after amendment on question of, 529.

i»4a

INDEX.

I

Ui 6

J' ■

CO ^TV,— continued.

boundaries, costs of suits to settle, 715.
cause, what are costs in the, 1466, 1467.

costs of motion, when, 1466, 1621, 1623.
cause paper, costs of cause struck out of, 614.
cestui qiM trust and trxtstees, one set of, where allowed between, 456,

1537-
charity suit, costs, upon what principle taxed in, 10, II, 1538, 1542.
claimants, under decree, 348, 1532.

under mortgagee in redemption suit, 215.
class, costs of members of, coming in under decree, 348, 1532.
compromise, cause not heard on question of costs after, 489, 1469.
concurrent jurisdiction, costs in cases of, 1500.
concurrent suits, costs of. where stayed, 492.

petition of, settlement, by, 1626.

separate, of, when allowed, 457.
creditor restrained from prosecuting action, of, 1634.
creditor, of suit by, 1526, 1528, 1543.

creditor's suit, plaintiff's costs taxed as between solicitor and client, when,
1542 ; where no available assets, 1528.

contribution to, by satisfied creditors, 1528.

extra costs, when allowed in, 1 543.

single creditor, of suit by, 1526.
Crown, costs of suits by or against, 8.
de bene esBe, costs of examination, 595.
debts, costs of proof of ; see Master's Office.
delivery up of securities, of suits for, 1475.
demurrer, on allowance of, 431 ; if partial, 432.
with leave to amend, 430.

reversed, where allowance of, 432.
demurrer, on overruling, 434 ; on reversal of overruling, 432.
demurrer ore tenus, on allowance of, 431 ; with leave to amend, 431.
demurrer of, when not set down, 428.
demurrer by witness, of, 597 — 598.

disclaimer, of defendant not putting in, in a proper case, 434.
disclaiming defendant, when allowed, 438—439 ; when not, 438 — 439.

when ordered to pay, 437.
discovery, bill of, order for payment of costs of, 507, 508.
discretionary with Court, 1465.
dismissal of bill, on, in case of abatement, 510 — 513,

bankruptcy, by, of plaintiff, 51, 512 ; of co-defendant, 512.

death, by, of defendant, 511 ; of plaintiff, 510 ; of a co-plaintiff, 511.

marriage of female sole plaintiff, on, 511.
dismissal, defendant when ordered to pay costs on 1500.
dismissal of bill on plaintiff's own application, on, 483 — 487.

co-plaintiff, by, 485. , *

dismissal with costs for non-prosecution against some defendants, after,

485-
pauper plamtiff, by, 37, 505.
pauper defendant, against, 37, 121.
repudiation of suit by plaintiff, in case of, 255.
unnecessary defendants, against, 250 ; without prejudice as to ultimate

burden, 485.
dismissal of bill for want of prosecution, on, in discretion of Court, 504.

merits of case not considered in deciding upon, 505.
bankruptcy of defendant, on, 123, 124, 505, 513.
company being wound up, when, 509.
costs which are included in order, 509.
when defendant knows due diligence has been used, 505.

een, 456,
5, 1542.

2.
1469.

INDEX.

IW

nd client, when,

32.

lend, 431.

, 438—439-

laintiff, 511.

^ndants, after,

U to ultimate
Court, 504.

COHTS—con/wMd.

irregi'Iar notice of motion for, of, 501.

-ollce of motion intercepted by step takon by plainti^, ofi 497, 498.

pauper, where plaintiff a, 37, 505.
dismissal of bill on payment of costs, and submission to plainti9"'s dopands,
487, 1468.

creditor's suit, in, 194.

where several defendant's, 488.

where discovery sought, 488.
dismissal of bill, without costs, because defendant might have demurred,

260, n. (4), 382, 1484.
dismissal of bill, without, on waiver of trial of question at law, 1509.
dismissal of bill, taxation and recovery of, on, where no reference, 509.
dower, of suit to assign, 717.
election, in cases of, 514, 515, 516.
enrolment of decree or order, 636 ; of application for, 635.

improper or unnecessary, where, 527, i<^*'4.

not proving will, 1526 ; and j^^ personal re^'f'ientatives, itt/ra.
foreclosure, of suit of, 1476 ; of motion to advance, 1622.
former suit for same matter, staying proceedings )n non-payment of, 35,
489, 490.

amount of costs must be first ascertained, 490.

dismissal of bill on final default, 490.
fraud, bill claiming on ground of, dismissed with costs, 1476, 1492, 1493.

groundless allegation of, party introducing, must pay costs of, 1492, 1493.
fund, payment of, out of, when ordered, 1339, 1465, 15 10.
gross sum, when directed to be paid for, 1468.
guardian, of, on application for maintenance, 1399, 1537.
hearing of cause, costs of the suit only disposed of at, 484, 1468.
hearing, original costs usually not given at, 1464.

when given, include subsequent costs, unless excepted, 1464.
heir, of, allowed usually, 698, 699, 1471.
heir, when not allowed, 699, 1472.

cross bil' unnecessarily filed by, in case of, 1473.

insanity, where case of, unsuccessfully set up by, 699, 1472, 1473.

perpetuate testimony in suit, to, 1472.
heir, when given against, 699, 1473.

refusal to convey under ancestor's contract, on, 1474.

spoliation, secreting, or vexatious contest of will, in case of, 147 +.

unsuccessfully impeaching will as plaintiff, 699, 1473.
secus, when he could not proceed at law, 1474,
heir, of, taxed, on what principle, in administration suit, 1543.

in charity suits, 1472, 1541.
hnsbandand wife, of suits between, 1499.

one set of, allowed between, when, 457, 1499, 1537-
impertinent matter, occasioned by, 287, 288.

affidavits, in, 573.

application for, when to be made, 287.

incumbrancers, of, 1475 — 1484 ; one set of, when allowed between, 1537 ;
and see infra, mortgagees,
infant, of suits on behalf of, 63 — 67.

next friend, when bill filed without, 54.

repudiation of suit by infant, in case of, 62, 63.
infants' legacy, of suit for, 65, 1533.
infant, of, in partition suit, 711 ; how raised, 711, n. (3).
informations, of, 7, 8, 10.
injunction of motion for, 1705.

intercepted by amendment, 338, 1623, 1699.

dissolution of, useless application for, 1705.
interlocutory proceedings, of, when costs in cause, 1466, \\<i^.

reservatirn of costs of, form of, 1467, 1468.

1948

INDEX.

f

V Q ,

3

S'

COSTS -cmh'nued.

defendant may be ordered to pr.y diieetly to co-defendant, I503'
order for payment of, form of, 1 503.
legacies charged on real estate, costs of suit to raise, when estate insuffi-
cient, 1529.
legatee and incumbrancers, only allowed one set, when, 1537.
legatees, suits by, 1 531, 1532.

plaintiff's costs, when taxed as between solicitor and client in, 1543.
life, of tenant for, how raised. 1538.

of application for payment of income to, 1829.
lunatic, costs of, in partition suit, how raised. 711. «>

married women, of suits on behalf of, 91.
partition suit, costs of, how raised, 711.
mortgagee, costs of, 1475 — 1484.

administration suit, adopting, 1480, 1528.

possession, remaining ' , after payment of principle and interest, 1483,

1484.
priorities of suit to ascertain, 1479, 1480, 1528.

sale, in cicses of, 1479 ; where suit for administration also, 1479 ; in case
of equitable mortgage, 1479.
mortgagee, costs of, allowed usually, 1475 ; and of all persons claiming
under him, 1476.

rule extends to both foreclosure and redemption suits, 1476.
extra, should be mentioned in decree, 271, 1477, 1478.
instances where allowed, defending title, incurred in, 1476, 1477.
dismissal of bill in case of, except where great hardship, 1477.
lunatic mortgagee, when, 1478, 1479.
recovering mortgage property, incurred in, 1477.
, mortgagee, costs of, when not allowed against estate, 1478 — 1479-
adverse claims to mortgage, in case of, 1478.
assignment by mortgagee after decree, in case of, 1478.
insolvency of mortgagee after bill filed, in case of, 1478.
lunatic mortgagee, when 1478.
mortgagee, cost? of, when disallowed, in case of misconduct, 1480, 1483.
but it must be positive, 1482, 1483.
mere claim of too much, or snggestion of doubt, not sufficient, 1480.
mortgagee, costs, when given against, I481, 1482.
fraudulent foreclosure, insisting on, 1482.

loss of deeds, occasioning suit by, 1482, 1483.
tack, attempting to, 1482.
tender of principal and interest, refusing 148 1.
motions, of, 1621 — 1624.

abandoned, 1468, F016, 1622.

application for, when made, 1622.
dismissal for non-prosecution, not obtainable after. 509.
payment of, necessary, before renewal of motion, 1468, 1623.
advance of foreclosure suit, for, 1622.
appearance of party served, but not interestetl. of 1621.

of party not served, at request of applicant, 1621.
appearance by solicitor of deceased party, of, 1621.
costs in cause, when, 1466, 1467, 1620, 1621. 1623.
disability, on behalf of person under, where no next friend named, 1613.
ex parte, of, 1 62 1.

imtercepted, by step taken by other side, 1622.
reservation of, 1620.

separate mot'ons which might have been joined, 1612.
succesirful, where motion partly, 1621.
successful party, when ordered to pay :622.
taxation of; without reference, when nmsed with costs, 1622.
unsuccessful, 1622.
next friend, costs of, in suits on behalf of infants, 62 — 66.

INDEX.

1949

iterest, 1483,

COS TS — continued.

allowed, if he has acted bona fide, 64.

due diligence, not allowed costs of suit instituted without using, 65.

extra costs, when allowed, 66.

improper suit of, not allowed, 65.

liability of, to pay costs, 62, 63.

mistake, not deprived of costs in consequence of, 64, 65.
next of kin, in charity cases, 1542.

coming in under decree, 348, 1532.

suit by, of, when residue exhausted, 1 528.

unsuccessl.l, when not ordered to pay costs, 1 531.
notice of the decree, of persons served with, 342, n. (7), 348.
one set of, when allowed, 456, 457, 1499, 1515, 1537 ; form of order for,

457, 1536.
opening biddings, of applicant, when outbid, 1 161.

purchaser, former, 1 1 58 ; special, costs incurred by him, 1 1 59.
order for payment of, form of, 1 509 ; when payable by one defendant to
another, 1502.

persons not parties should be specifically mentioned in, 1 509.

without prejudice to ultimate liability, when expressed to be, 1509,

I sag-
parties, costs where objections take's for want of, 243, 614.
partition, of suit for, 711.

disability, how raised, when parties under, 711.

lessee of share, of, 711.
party and party, taxation of, .is between, 1539, 1540.

costs taxed as, unless otherwise directed, 1509 ; and see Taxation.
pauper, right of, to receive, 37, 121.
payment of, by one party to another, 1470 — 1509.

security for costs, m cases of, 30, 31.

taxation, where no formal direction for, 509, 1622.
perpetuate testimony, of suit to, 595.
personal representatives in administration suits, of, 151 1, 1525, 1526.

creditor's suit, in single, 1526.

real estate, not allowed costs out of, though no personal estate, 1526.
seats, administrator ad litem, 1526.

reviving suit, costs of, 1525 ; and see infra trustees,
petitions, of, 1629, 1630.

appearance of person uninterested, but served, of, 1629.

appearance without service, of, 1629.

two petitions for same object, of, 1630.

unsuccessful opposition, of, 1529.
prayer for, when plaintiff entitled to no other relief, 304.

effect of, on right to discovery, 435.
priorities, of suit, to ascertain, 1479, 1480, 1528.
Probate, in Court of, postponed to costs in Chancery, 1511.

appearance oa application for payment out of purchase money, of, 1370.
receiver, of, 1510.

abandoned proceedings, not allowed costs of, 1782.

discharge of, costs of, 1 796.

joumies, when allowed, 1 782.

motion for waived by amendment, of, 339,

passing account of, 1 788.
rectification of settlement, of suit for, 1538.
redemption suit, of, 1476.
relator, of, 10, 12; .allowed, when, II.

as between solicitor and client, II.

extra costs, when allowed, 9.

liability of, to p.iy, 11.
replication to disclaimer, costs occasioned by, 437, 438.
re-sale, on default of purchaser, 1373.

1950

INDEX.

•w!

COSTS — continued.

restoration of bill, not directed for purpose of raising question of, 506.

result, costs generally follow, 1470.

reversionary interest, of suit to set aside sale of, 1475.

revivor, costs not usually allowed for, 1590, 159 1.

exceptions to rule, 1590, 1591 ; and see Revivor.
scandal, of, 289.

second suit, of needless, 1485, i486,
second time, when cause set down, 614.
separate account, when fund paid to, or severed, 1535, 1829.
sequestration, of, 663.
set-off, of, 1507.

debtor of, against his debt, 1 507.

married woman, of, against amount due from husband, 1507.

in one suit not set off against costs in another suit, 1507.
solicitor, when made payable to, 1 509.

solicitor and client, when taxed as between, 1541 — 1543 ; zxsAscc Taxation.
special case, of proceedings by, 1873, 1874.
specific perfoimance, of suit for, 618, 1488, 1489, 1496, 1497, 1503, 1504.

apportionment of costs in, 1503, 1504.

devise or settlement of vendor, of suit occasioned by, 1499.

God, act of, of suit occasioned by, 1499.

inadequacy of price, of suit occasioned by, 1488.

misunderstanding, in case of, 1490.
result, generally follow, 1497, 1498.

although party acted under opinion of counsel, 1498.

successful party, when not allowed, 1488, 1499.
stop order, of, applicant's right to, 17 19.
substitution of purchaser, on, 1373.
successful party, when not allowed, 1488 — 1496.

contrary decision in case of, 1495, 1496.

dishonourable or improper conduct, on account of, 1488, 1489.

doubtful point of law, when in case of, 1492.

doubtful title, in case of, 1495 ; unless occasioned by party himself, 1496.

foolish conduct of both parties, in case of, 1496.

hardship, cases of, 1499.

laches, where guilty of, 1490.

misunderstanding, in cases of 1490.

particeps criminis, when, 1483.

reprehensible conduct of both, 1494,

representation of party, where suit occasioned by, 149Q.

unconscionable advantage, in case of, 1489.
successful party, when ordered to pay, 1501.
taxation of, 1539 — 1545 ; and see Taxation.
tender, where defendant has made sufficient, 1484 — 1486.

conditions, must be without improper, i486.

costs, actually incurred, must include, i486.

demand, whole of plaintiff's, ;iust include, i486. •

proved, mi st be, statement of in answer not sufficient, 1487.

refusal of, effect of, i486.

specific, must be, i486.

tithe suits of, 189, 1503.
title of, inquiry into, purchaser, when entitled to, or liable for costs of, 1352,

paid out of what fund, 1352, 1353.
trial of question of fact, of, 1472.

different ways, where questions found, 1503.

heir, of, on, 1473.
trustees and personal representatives, of, 151 1 — 1527.

auctioneer, of, 151 7.

cestui que trust, when made defendants, by, 1501.

defaulting, of executors of, 151 1, n. (5)

INIXEX,.

1961

COS'i'S — continued.

fund, right to, out of, confined to suit with ceshti que trust, 1525.
one set of costs, when allowed, and form of order, 457, 458, 15 15.
severance of, in defence, when allowed, 457, 458, 151 5.
solicitor acting for other parties, 1516.
solicitor trustee not allowed profit costs, 1 5 16.

seeus, if specially authorised, 1516.
stop order, when made subject to, 1718.
stranger, liability to costs in suits with, 1471, 1472, 1525.
unnecessary, must not burden fund with, 1515.
trustees, and personal representatives, when allowed costs, administration

suits in 151 1 ; direction of Court, of suit instituted for, 15 13.
unsuccessful claim of, if made by way of submission, 151 7.
trustees and personal representatives, when not allowed costs, 1518, 1523.
claiming too much, 1518 ; sccus, when claim honestly made, 1518.
delays and difficulties, where they have created, 1823.
misconduct or neglect, in cases of, 1518, 1523, 1524.
mistake, when suit occasioned by, 1524.
severance, in defence, occasioned by improper, 457, 1515.
vexatious conduct, in case of, 1514-
trustees and personal representatives, when ordered to pay costs, 1510-1523,

form of order, 1525.
account, in case of neglect or refusal to, 1520
balances keeping unnecessarily large, 1520.
breach of trust, in case of, 1520, 1521.

secus, when amount small and promptly restored, 1520, 1524.
counsel, though acting under opinion of, 152 1.
denial of assets, in case of, 1 522.

dereliction of duty or misconduct, where suit occasioned by, l£Oi, 1520.
gross negligence, though no misfeasance, in case of, 1522.
improper defence, setting up, 1517,
misconduct in course of suit, where guilty of, 1522.

as denial of assets, 1 522.

concealment of evidence, 1523.

falsification of answer with fraudulent motive, 1522. ^

setting up, unsubstantial objection, 1523.
misstating trust, 1 5 18.
possession of estate, keeping, 1 52 1,
selling stock without authority, 1521.
separate estate, paying wife's to husband. 1 52 1.
unfair appraisement, making, 1521.
wrong person, paying fund to, 1521.
trustees and personal representatives where ordered to pay part of costs, 1 523
trustees ox cestuis que trusts, one set, when allowed between, 457, 1537.
witness, costs of demurrer or objection by, 598, 599. -,

COSTS, SECURITY FOR,

action at law, not required in case of bill to restrain, 22, 23.
amount of security, when given by bond, 27.

when by payment into Court, 27, 28.
application for, must be made without delay, 24, 293, 294.
bond, form and preparation of, 27, 28.

costs of all defendant's should extend to, 27, 28.
bond, how sued upon, 30.
costs, how recovered, when found paid in, 31.
cross bill, cannot be required by original plaintiff, 22, 293.
dismissal of bill on neglect to give, 30, 490, 502.
interpleader i^uit, in, 22, 23.
jurisdiction, required from plaintiff or applicant out of, 20-23.

secus, if military or naval officer abroad on public service, 22.
or co-plaintiff within jurisdiction, 22.

evidence on application, 23—26.

1952

INDEX.

COSTS, SECURITY VOR—conttMued.

revivor by, on, 23.
jurisdiction, required from plaintiff going out of, pending the suit, 25.
misdescription of plaintiff, when required on account of, 292, 293,
next friend of married woman, when required from, 88 — 90.

on his retirement, 89.
next friend of infant, required from retiring, 61.
order for, how obtainetl, 27 ; form and service of, 27.

discharge of, 32.
pauper, not required from, 32.
peer, resident abroad, security must be given by, 22.
permanent residence, required from plaintiff or applicant without a, 22.
plaintiff, on striking out name of, 320.
security, how given, 27, 28.
stay of proceedings till security given, 20, 21.
sureties, who may be, 29.

costs of inquiry, as to, 28.

number of, 28.

objected to, how, 30.
time for giving, not reckoned in time for answer or defence, 30.

COSTS, CHARGES, AND EXPENSES,
collusive bill dismissed with, 1545.
evasive answer, taken off file with, 480, IS4S'

four insufficient answers, after, discharge ordered on payment of, 1544-
trustees, when allowed, 1544.

COUNSEL,

absence of, new trial at law on ground of, 1025.

authority of, to consent, 608.

briefs of; see Brikks.

cases for opinion of, how far privileged, 405, 406, 407, 1857.

pauper, on application to be admitted to sue as. 36.

settlement on marriage does not affect fund, that, 76.
communications to, privileged, 410.

separate, for parties jointly interested, 457.
disclaimer by, at bar, in suit, 434, n. {5) ; on petition, 434 n. (5).
indorsement on brief, of order of Court not privileged, 40_.
opinion of, how far privileged, 405, 406, 1856, 1857.
person ordered to pay costs though acting under, 1498, 151 1, n. (7),

1521.
pauper, may not refuse to act if assigned to, 37.

special case, to, 1683.

COURSE (ORDER OF). Sec Order vv Course.

COURT,

demurrer, at hearing of, 428.
further hearing after trial, at, 697.
motion for decree, at hearing on, 520.
special case, at hearing of, 1870.

COURT OF CHANCERY (OFFICER OF).
OF Chancery).

See Ori'icER (ok the Court

COVENANT,

breach of, when restrained, 1681 — 1686.
denriur, not to, discovery must be given, in cases of, 400.
forfeiture on breach of, when relieved by injunction, 1686 — 1688.
protluction for, discovery when not compelled, in case of, 1848.

INDEX.

1953

COVENANTEE,

when necessary party, 155.

COVERTURE,

disability arising from, in case of plaintiff, 52, 70 ; of defendant, 104,

140.
effect of, at law and in Equity, 71, 72.
woman denying, allowed to defend separately, 145.

" CRAVE LEAVE TO REFKR,"

effect of expression in pleadings, 453, 528 j on right to production, 1855.

CREDITORS ; and scv Master's Office.

abatement of suit by, proceedings in case of, 1584.

action by, when restrained after administration decree, 1632 — 1634.

application, on whose, 1632 — 1634.

assets (state of), must be shown, unless suit by legatee, 1634.

costs of restrained creditor, 1634.

creditor's debt must be provable at once under, 1633.

default, effect of allowing judgment to go by, 1634.

execution, not restrained, if judgment prior to decree, 1633.

false plea, effect oi, 1633.

foreign court, in, 1 632.

garnishee ordei, creditor not restrained from obtaining, 1633.

injunction, writ of, usually not issued, 1635.

inquiry as to creditor's claim, when directed, 1635.

plene adminislravit, after ])lea of, 1633.

riens per descent, after plea of, 1633.

motion, after order on, 735, 1634.
appeal by, 1557.

bankrupt, of, cannot sue for property vested in his assignees, 48.
consent of, to assignees' suit no longer required, 52.
bankrupt testator, of, cannot sue assignees together with executors, 269.
claims, proof of by, under decree, sec Master's Office.
co-plaintiff's, where they may be, 192.
costs of suit by, 1528, 1529, 1542, 1543 ; and j(?^ Costs.
deceased person, of, when they may sue debtor to estate, 159, 160, 205, 269,

270, 1597.
inheritance, owner of, necessary party to administration suit by, 219.
insolvent, of, may sue executor of assignee, when, 124.
marshal assets, parties to suit to, by, 195.
parties, when necessary, to suits for execution of trusts for benefit of, 183, 184,

214, 232 ; not necessary, if for execution of trusts of surplus, 214.
parlies to suit by, where deceased debtor in partnership, 268.
real estate, must sue on behalf of others in suit for administration of, 194,
294.

amendment of single creditor's bill, when allowed, 294, n. (4), 194,

n. (4).
receiver, when appointed, in suits by, 1574, IS7S.
refunding by, where assets insufficient for payment of costs, 1528.
residuary legatee, of, cannot sue executor of testator, 269.
revivor of suit of, ordered, at whose instance, 1584, 1585.

when not necessary, 1597.
separate, may sue on behalf of selves and joint creditors, 194, 195.
costs of, 1526, 1527 ; form of decree in, 193, n. (3)
specific assets of testator, person possessing, when party to bill 268.

suit on behalf of selves and of several others, when permitted, i ;4.

^description of plaintiffs in, 294.

dismissal of, before decree, on payment of debt and costs, 193, 196.

CREW,

when one of ship's, may sue on behalf of himself and others, 196.

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INDEX.

i V

I?:

CRIMINAL CHARGE, : ;

objection on ground that production would expose party to, 1857.

CRIMINAL MATTERS,

proceedings in, not restrained, 1637 ; unless plaintiffs are thereby seeking
redress, 1637. , , .

CROSS BILL,

admission in answer not controverted by, 477. , . . ,

advance of, 609.

evidence in, 549, 550, 609.

order to read, in each cause, evidence taken in the other, 550, 609.
foreign sovereign or government, may be filed against, 14, m.
infant's, amendment of, not allowed after dismissal, 136.
lost, by amendment of original bill, 319.
security for costs, when required in, 22, 293. ' '
setting down, 609, 1840.

specific performance, where decreed at instance of defendant, without, 305,
n. (2), 310.

CROSS-EXAMINATION, . ". .

affidavits on, 568.

documents of, none on, 568, 1845. • ' ,

injunction, on application for, 1697, 1698.
motion, used on, 1618 ; how taken, 1618.
answer, on, when permitted, on motion, for decree, 519 ; for injunction,

1698.
answer as to documents, no cross-examination on, 1845.
examiner, before, how conducted, 568.
hearing of cause, at, 577, 578, 582.
issue joined, after, taken before Court at hearing, 577.

unless before examiner by consent, or by dirtvtion of Court, 578.
jurisdiction, of witness out of, how taken, 582, 583.
motion for decree, on, 519.
notice to produce witness for, 568.

CROWN,

costs in suits by and against, 8.
payment to, form of order for, 1831.

And see Attorney-General — Information — Queen.

CUSTOM,

evidence of, 545.

inheritance, owner of, a necessary party to suit to establish, 545.

CUSTOM OF THE COUNTRY,

cultivation by tenant contrary to, restrained, 1684.

DAMAGES,

appeal from order directing assessment of, 677.
assessment of, in Court of Chancery, 675.

before Court itself, 677 ; and see Fact (Question of).

by inquiry, at Chambers, 677.
assessment of, on discharge of ne exeat, 1 748. •

excessive, new trial at law on ground of, 686. ' <

security for payment of, when required on motion for injunction, 1 700,
smallness of, new trial at law on ground of, 687.
undertaking as to, 1694, 1695, 1742 ; assessment of damages on, 1694. n. (7)

and see Undertaking as to Damages.

DATES, ; '

affidavits, in, how expressed, 573. •'

in answers, 466; in bills, 316. * • ,"

iNOEX.

lUc

•eektng

509.

hout, 305,

unction,

78.

1700.
I1694. n. (7)

DAY TO SHOW CAUSL,
effect of giving infant, 13^

infa.it defendant, now given, in case of legal foreclosure, 130.
must be in final order, as well as original decree, 130.

where sale directed instead of foreclosure, 130. •

where absolute foreclosure decree made at the hearing, 131.
infant plaintiff, when giveit, 58 ; how cause shown by him, 58.

DE BENE ESSE (EXAMINATION), 584—595.
allowed, when, 585.

whenever required by justice of case, 587.

not allowed, where more than one witness to same fact, 588.
when witness might be detained, 5S8.
wh<'n commission for examination abroad prayed, 308,
benefit of, lost, unless diligence used to examine in chief, 592,
closing evidence, not allowed after, 586 ; except after trial of issue, 587.
contempt, when defendant in, 589 ; order made without notice, 590.
costs of, 595.

depositions taken, only used to supply place of examination in chief, 593.
depositions, order to use, necessary, 592.

application for, how and when made, 594.
filing of depositions, 591.
incidental to every suit, 586.

irregularity in depositions or order, how taken advantage of, 594.
Law, order for production of depositions on trial at, when made, 593.

when evidence of witness required at, 587.
manner of taking, 591.

notice of examination, 590 ; contents of, and time for giving, 591.
office copy of depositions, when made, 591, n. {5).
order for, 588—591.

affidavit in support of application, 590.

course, of, when made as of, 589.

defendant's special application before answer, granted on, 589.

filing of bill, may be obtained 0.1, 589.

form of, 591.

irregular order of course, discharge of, 589.

notice, when made on motion with, 589.

service of, 590.
origin of practice, 584.
perpetuate testimony, in suit to, 586.
DEAF, DUMB, AND BLIND PERSON,

payment out, form of order for, in case of, 1828,
DEAF, OR DEAF AND DUMB PERSON,

affidavit of, how taken, 576 ; answer of, how taken, 468.
DEAN,

when suit by, should be revived by his successor, 18.
DEATH, .

deponent, of, effect of, on his affidavit, 569. ' '

examiner, of, effect of, 582.

party, of, abatement of suit on, 1580 ; when no abatement, 1596.

a total determination of the suit, when, 1595.
receiver, of, passing account after, i793»
DEBTOR,

suit against, by person interested, when permitted, i6c, 205, 267, 26S, 279,

270.
DEBTS ; and see Master's Office.

deed for payment of, one creditor may sue for self and others, 194.

heir, when necessary party to suit to execute trusts of, 190.
proof of, in administration suit, not an election not to sue at law, 515.
separate estate of married woman, when charged with, 148.

•

1956

IND^X.

I

X
Kf.

"■IT

• Jk'

DEBTS— contitttteti.

trastees for payment of, may sue without creditors, 184.

DECLARATION OF RIGHTS,
petition, not made on 1627.

DECREES AND ORDERS, and sec Master's Okkick, 615—667.
abatement between hearing and judgment, drawn up during, 633.
absent party, without prejudice to, or saving right of, 116, 243, 244.
accounts, numbering of, in, 627.
adding to, 348 ; and j« Adding to the Decree.
admissions, oral, insertion of, in, 628.
alteration of, 136, n. (l), 635—641, 1555.
alterations in, Registrar's power to make, 631.
appearance, entry of, after, 119. ■

bespeaking, time for, 628.
binding, from what period, 612, n. (i).
clerical error in, correction of, 636, 1555.

conditional, consequence of non-performance of the condition, 465.
consent, by, how impeached, 608, 1555 ; and see Conskn r.
consents, insertion of, in, 628.
date of, 612, n. (i), 626.
declaratory, when made, 625.

declaratory part of, 627. . .

definition of decree, 615.
dismissal of bill after, only by consent, 486 ; unless decree only for accounts

and inquiries, 487, 508, 509.

class suit, not ordered in, even by consent, 196, 197, 488.
■ drawing up, 628 — 634.
election, order for, not made after decree, 515.
enforcing, 641 — 667, ^

assistance, by writ of, 664; and wtf Assistance (Writ ok).

attachment by, 644 — 646 ; and see ATTACHMENT (Writ ok).
Jicri facias, by writ of, 665 ; and see Fieri Facias (Writ ok).
persons not parties, against, 663, 664.
sequestration by, 650 — 658 ; and see Sequestratkjn.
enrolment of, 634 — 636 ; and see Enrolment.
entry of, 633, 634 ; and see Entry.
erroneous, good till discharged, 641.

evidence in another suit, when available as, 130, 134, 303, 549, 550.
final, when, 620.
final order, when required to complete decree, 624, 625.

foreclosure or redemption suit in, 623.

infant suits, in, 622.

pro coufesso, decree, when required after, 379.
form of, 626 — 628.

fraud, obtained by, how impeached, 416, 417,
further consideration, adjournment of, by, 616.
impeached, how, 135, 136, 1555.

indorsement on copy for service of, 642, 643 ; and see Indorsement.
infant, against, how impeached by him, 129.
infant bound by, although no inquiry whether it is for his benefit, 129.

except in cases of fraud, collusion, or error, 129, 130.
infant plaintiff, when bound by, 58.
infant, what cause may be shown by, against, 134 — 136.

how shown for fraud, collusion, or error, 135 — 136.

time for, enlargement of, 137.
inquiries, numbering of, in 627. « <, .v. .•

interlocutory, when, 615, 620, 634.

interlocutory injunction superseded by decree, unless continued, 1706.
irregularity, discharge for, 625.
jurisdiction, defendant out of, allowed to come in under, when, 1 18.

INDEX.

1967

)■

DECREES AND ORDERS— continued.

leave for, how obtained, 119.
liberty to apply, reservation of, by, 621.
mandatory part of, 627 — 630.

married woman, personal decree order made against a, 148.
one witness, decree not made on evidence of, unless corroborated, 532.
papers left on bespeaking, 628 — 629.
partial, when made because evidence defective, 546.
passing. 630, 631.

appointment for, 630 ; adjournment of, 630.
attendance at, and consequence of default, 630 ; filling of, 631.
dispensed with, when, 631.
service of, how effected and proved, 631.

delivery of decree or order out, for examination previous to, 631.

ho IV effected, 631.

/r<? con/esso, where decree taken, 377.
periodical payments, time for, to be expressed in, 1622.
pro con/esso, taken, 377 — 379 ; and see Pro Confi sso.
prosecution of, before service of notice of, how far permitted, 347.
recitals in, 626.

record not a, until signed and enrolled, 634.
rectification of, 636—641.

clerical error, application for, how made, 636.
rectification, now effected, 637.

enrolment after, when permitted, 640, 641.

rehearing necessary, except for clerical error, or matter of form, 639.
sale under, not invalidated by error or irregularity, unless of substance, 131.
securities, description of, in 1 62 1. . 1

service of, 378, 642 — 644 ; and see Service.
signed and enrolled, how altered, 136, n. (i), 640.
statutory jurisdiction under, how enforced, 1882.
staying proceedings after, 486, 487.
submissions, insertions of, in, 628.
survivorship, effect of, on yfik's right by, 94, 95, 100.
time, fordoing act, statement of, in, 628, 641, 642 ; form of, 642, n. (l).

enlargement of, how obtained, 642.

omission of, how remedied, 642.
title of, 630 ; amendment of, when permitted, 640.
undertakings, insertion of, in, 628.
waivers, insertion of, in, 628.

DECREE (MOTION FOR). .S^^ Motion for Decree.

DEED ; and see Master's Office.
allegation of, when necessary, 299.
delivery up of, how enforced, 644, 652 — 654.

depositee of, when necessary party, 165. *

execution of, defective proof of, when remedied, 543.
exhibit, provable as, at hearing, 561 ; when not so provable, 561, 562.
loss of, defective proof of, when remedied, 543.
onus probandi, lies on party disputing, 535.
proof of, 559 ; proves itself, if thirty years old, 554.
statement of, in answer, 453 ; in bill, 296 — 298.
inaccurate, in bill, effect of, on demurrer, 385. '

DEFAULT AT HEARING, '•'•''"■' . '

decree made on, 609, 610. . . «

restoration of cause after, when allowed, 610. , .: .

DEFAULT (WILFUL). .S-^^- Wilful Default. ■

DEFECT, ^ . . ',■

in prayer, when supplied under prayer for general relief, 304. . .

100

1988

INDEX.

I

.8

*'|S

.1

r ^ a

c *■

»^

r

c

«:

S

*^

q

>.i.

s

*

^

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""iT

DEFENCE TO SUIT,

alternative, when permitted, 442.

benefit of, insisting on, by answer, as if pleaded or raised by demurrer, 443 ;

can only be had at hearing, 444.
corporation, by, 114.
defendant's proceedings for, 380—382.
demurrer, when proper, 259, 260, 382.
disclaimer, by, proper, when, 250, 381, 434.

costs, where defence not so raised, 434.
forms of, 380, 381, 382.

inconsistent, by answer, not allowed, 442, 443.
new, after amendment, 324,

not by demurrer ore tenus, 442, 423,
nev. by infant, may be made on attaining twenty-one, 133.
pleadings, not distinctly raised, when allowed, 441.
separate, by married woman, when she may obtain order for, 142, 143.

not to whole bill, 482.

costs of, when defendants jointly interested, 457, 1320, 1498, 1514, 1542,
when parties appear by same sol«''»tcr, 456.
several defences may be set up by answer, 441 ; if consisten,, 441.
several defences, jomder of, how far permitted, 481, 482.

amendment of bill after, 482.

exceptions for insufficiency after, 482.

extent of each, 481, 482.

form and title of defence in such case, 482.
time for, where plaintiff ordered to give security for costs, 30, 31.

DEFENDANT,

who may be, 104, ' ..

absconding, service on, out of the jurisdiction, 358.

absconding, proceedings to take bill pro confesso against, under statutes,

365, 366 ; application, how made, and necessary evidence, 366.

under general order, 366 ; application, how made, and necessary evidence,

366, 367 ; and see Pro Confesso,

addition of, before decree, 246, 322, 324 ; after 322.

evidence against added defendants, 246, 322.
adult, if described in bill as infant, not bound, 125, n. (4).
answer, may read his own, on question of costs, 531, 1470.

but not to show tender, 1487.
bankruptcy of, plea of, 122.
bankruptcy /m^Wt/^/tV^, not an abatement, 123.

dismissal of billfor want of prosecution, after, 123, 124, 505, 513.

supplemental order on, 124, 1585.
case of, plaintiff not entitled to discovery of, unless common to both, 415.
death of, abatement on, 1580 ; when no abatement, 1595.

determination of the suit, when a, 1596.

contempt, process of, issuable pending partial abatement by, 1594*

dismissal for non-prosecution, effect of, on conditional order for, 1594-

effect of revivor after, 1595.

hearing and judgment, between, effect of, 1594.

motion for revivor or dismissal of bill, on 511, 1 597.

revivor against successor, on total determination of interest, 1591, 1592.
demurrer may be good as to one and bad as to another, 419.
evidence of, plaintiff not entitled to discovery of, unless common to both 415-
injunction, at instance of, 1636.
interest of, must be shown by bill, 266.

demurrer for want of, 266, 392.
liability of, must be shown by bill, 266.
lunacy of, supplemental order on, 1586.
marriage of female, not an abatement, 1 50.
married woman, death of, an abatement, 151.

INDEX.

1»50

■murrer, 443 ;

142. »43-
j8, 1 514. »542.
441.

•.So-

under statutes,
!, 366.
essary evidence,

05, 513-
to both, 415-

\y, 1594.

V for, 1594-

h i59». »592-
ion to both 415-

DEFENDANT- continued.

«<f ^jTiTrt/ at instance of, against plaintiff, 1739, 1740 ; against co-defendant,

1739, 1740.
privity, between plaintiff and defendant, demurrer for want of, 269, 392.
receiver, at instance of, 1768. ,

revivor by, after decree, 510.
security for costs, when required from, 22, 23.
specific performance, when decreed at instance of, 305, n. (2), 310.
statement of case against, in bill, 265.
unnecessary, how got rid of, 250, 251, 318.

DEFENDANT (FORMAL),

process by service on, under general order, 152, 341 — 348.
and see Copy of th^ Bilj..

DEFICIENT FUND,

apportionment of, 1382, 1383.

DELAY,

interlocutory injunction, effect of, on, application for, 1691.
on application to dissolve, 1704.

DELIVERY (OUT ^F COURT),

documents dep ^^ited in Court, of, 1862, 1863.

DELIVERY UP,

instrument, of, directed when use would be unconscionable, 1706.

DEMAND,

unnecessary, on service of decree or order, 643.

DEMANDS (JOINT AND SEPARATE),
cannot be united in one bili, 280.

DEMURRER, 382—434.

address of plaintiff, for non-statement of, 292, 396.

adequate value, for want of, 272, 393.

admission by, extent of, 384^ — 386. 1

advance of, 428.

affidavit, because bill not accompanied by, 3 1 5, 397.

included in demurrer for w^ant of equity, 420, 421.
allowance of, effect of, 410 — ^432,

ambiguous statements in bill, construed adversely to pleader on, 385.
amended bill, to, when irregular af:er answer to original bill, 324, 325, 417.
amendment of, 418, 425, 429, 383 ; and see Amendment of Demurrer.
amendment of bill, after, 325, 427, 428.

allowance of, on, 242, 332, 429, 430 ; of partial, 430, 482.

overruling of, after, 434 ; and see Amendment of Bill.
answer, accompanying, extent and nature of, 416, 424.

exceptions to, 425, 433 ; and see Exceptions (for Insufficiency).
appeal from order made on, 431, 1555.
appeal from allowance of, with leave to amend, by plaintiff, 431 .

by defendant, 431.
appeal from order overruling, not barred by amendment of bill, 433.

amendment of bill under order of course irregular, pendii^, 325, 433.

dismissal of bill under of course irregular pending, 433, 483.
appropriate defence, when, 260, 382.
bankruptcy of plaintiff, on ground of, 50, 51.
bar to new suit, when, 431

inapplicable where plaintiff's case disproves defendant's, 415.

or discovery common to both, 415.
cause of, must be expressed, 420, 421.
causes of, several may be shown, 422.
certainty in statements of bill, for want of, 299, 300, 302, 396.

1960

INDEX.

a

y «» o *"

DEMURRER— foMtinued.
commencement of, 419.
costs on, 430, 431, 432, 433 • and see Costs.
costs, on liismissal of bill liable to, 382, 1276. '

(lefeiice by, nature of, 383, less frequent than formerly, 382.
discovery, to, grounds of, 387, 397—419.

answer to relief, when it may be accompanied by, 387.

rare occurrence of, under present practice, 397.

special, must be, 421, 422.
discovery, bill of, to person of plaintiff in, 391.
documents, statement of, in bill, admitted by, though erroneous, 384.

effect of, where professedly inaccurate, 384.
equal right with plaintiff, to discovery, on ground that defendant has, 404.
equity, for want of, 260, 388, 389.

where defect arises from omission of necessary circumstance, 388,

where defendant resident abroad, 389.

form, demurrer for deficiency in, when included in, 421, 422,

leave of the Court, demurrer for want of, not included in, 422.
facts, statement of, in bill, admitted by, 384, 385.

secus, if untru6 of facts judicially noticed, 385.
file, when and how taken off, 426.

difference between taking off ffle and overruling, 426.
filing of, 425—429.

notice of, 427 ; neglect to give, effect of, 427.
forfeiture, because discovery would expose defendant to, 397 — 404.

obviated by waiver of forfeiture, 311 ; and see Forfeiture.
form of, 419 — 425 ; of demurrer and answer, 424.
form, fcr deficiency in matter of, 396.

when included in demurrer for want of equity, 420, 421.
frattd, demurrer should be filed, though bill charges, 382.
frauds, on the ground of the statute of, 396.
general nature of, 382 — 386.

good, as to one defendant and bad as to another, may be, 418.
grounds, different of, 386, 418.
hearing of, 428, 429 ; and see Hearing.
immateriality, to discovery on the ground of, 404.
impertinence not taken advantage of by, 287.
infant, of, filing of, 425.
inferences, legal, not admitted by, 385.
injunction, not granted pending, 428, n. (5), 1699.

advance of demurrer in such case, 1699,
injunction, dissolution of interlocutory, on allowance of, 1792.
interest In the defendant, for want of, 249, 266, 392, 393.
interest in the plaintiff, for want of, 260, 392.
irregularity in frame of bill, for, 417.
judgment, demand of, in, 424.
jurisdiction, to, grounds of, 388 — 392.

Law, Court of, on ground that subject is within jurisdiction of, 388—390.
jurisdiction, concurrent, does not lie if, 390.
as in case of fraud, 390.
length of time, on the ground of, 395.
Limitations, Statute of, on the ground of, 395. . »

lunacy or idiocy of plaintiff, on the ground of, 67.
lunatic, filing of, where committee, adversely interested, 425.
married woman, separate, of, 425 ; order for, necessary, when, 425.
multifariousness, for, 285, 394.

name of defendant, striking out of, after allowance of, 432.
oath, put in without, 425.
offer to do equity or waive penalty or forfeiture, for want of, 310, 312, 395,

396 ; included in demurrer for want of equity, 421, 422.
ere fenus, definition of, 423 ; confined to case where demurrer already on

INDEX.

1961

DEMURRER— ro«///, ««/.

record, 423 ; bi t cannot be on same ground, 423. i

coextensive with demurrer tiled, must be, 423.

costs of 430.
origin of term, 383,
overruling, effect ol, 382, 432 — 434.
^ answer, when without prejudice to defence, by, 435, 436.

answer, after, 43] .

dismissal of bill after, not of course, 483.

reservation to hearing of question raised by, 434.
part of bill demurrel to must be specified, 419.
partial, where put ii,, 418 : allowance of, effect of, 430.

answer, accompanying, 416, 417, 418, 424 ; when not necessary, 41S.

commencement of 419.

overruling, effect cf, 433.
because answer 00 extensive, 418, 424.
because demurrer not extensive enough, 420.
parties, for want of, 241, 394 ; how obviated, 241, 242.

amendment of bill ifter, 242 ; form of, 241.
partly good and partly bad, cannot be, 418.
penalty, because disccvery would expose defendant to, 397 — 403.

obviated by waiver of penalty, 311, 397, 398 ; and see Penalty.
pendency of another suit for the same matter, on the ground of, 396.
perpetuate testimony, to bill to, grounds of, 259, 262.
person 0/ plaintiff, to t'le 391 ; where plaintiff cannot sue alone, 391.

discovery, in case of bill of, 391.

extends to whole bill, 68, 391.
positiveness, for want of, 294, 396 ; included in demurrer for want of equity,

421.
privity between plaintiff and defendant, for not showing, 269, 392, 393.
professional confidence, to discovery on ground of, 405 — 413 ; and see Pro-
fessional Confidence.
proper relief, on the ground that bill does not pray, 2C9, 393.
public interest, on the ground that discovery would be against, 415, 416.
record, matters repugnant to, not admitted by, 385.
relief to, grounds of, 386 — 397.
scandal not taken advantage of by, 287.
second, when permitted after first, to whole bill, overruled, 432.

leave of the Court necessary for filing, 418, 433.
separate, allowed to distinct parts of the bill, 419 ; form of, 419,
setting down, 427 ; and see Setting Down.
speaking, definition of, 422.
stand for answer, not ordered to, 432.
statutory jurisdiction, that matter is within, 429.
substance of the bill, to the, 392 — 396.
sufficient, when held to be, 427.
supplemental bill, to, grounds of, 1601.
thira person, interested in discovery, on ground that, 415.
time for, 425 ; accompanied by answer, when, 426.

extension of time, 426.

vacation, nins in, 428.
title, doubtful questions not decided on, 383.
title of, 419.

unsound mind, person of, filing of, by, 425 .
whole bill, to, except specified part, good, 419.

whole matter included in bill, on ground that it is not, 272, 394. ^

writhdrawal of, 428.

DEMURRER AND ANSWER,
defence by, 481.
setting down, 482.

w

1962

INDEX.

I

t .

DEMURRER BY WITNESS, 595—599.

costs of, 598.

filing of, 597.

forfeiture or penalty, because evidence would expose to, 596 ; and see For-
feiture— Penalty.

form of, 597.

grounds of, 596.

copy of, by whom taken, 598.

overruling, order made on, 598 : where partial, 598.
prejudice, without, 598.

professional confidence, on the ground of, 596 ; and see PROFESSIONAL Con-
fidence,

refusal to produce under subpoena duces tecum, not necessary in case of, 596.

setting down, 598 ; service of order for, 598.

DENIAL,

answer by, must be direct, and extend to particular circumstances, 453.

DEPOSIT (IN COURT),

not required on, petitions, 1573.

cause of husband and wife, to, effect of on wife's right by survivorship, 92, 93.

documents, of, in Record and Writ Clerks' office, 1858 ; how effected, i860.

copies or extracts from, how made, 1861.

delivery back, how obtained, 1862.

inspection of, practice as to, i860, 1861.

jurisdiction, not ordered to be taken out of the, 1862.

production of, how obtained in Court, 553, 1861.
out of Court, 553, 1861 ; fees on, 808, n. {e).
Exchequer Bills, and specific chattels, of, when ordered, 181 7.
opening biddings, amount of, on, 1 159, 1 160.

repayment of former purchaser's, 1159.

return of, 1161.

return of, on discharge of purchaser, 1354.
security for costs, as, 27, 28 ; and see Costs (Security for).

DEPOSITEE,

chattel, of, when depositor not necessary party to suit by, l8z
deeds, of, when necessary party, 165 ; and see Depositor.

DEPOSITIONS,

Chambers, when read in, though taken in another cause, 727.
Courts, taken in other, how introduced. 548.

order to read necessary, 549.
documentary evidence, depositions are not, 547.
filing of, 582.
office copy of, 582.

partition, taken under writ of, how written and returned, 703, 708.
suit, in another, when admissible, 502 — 549.

co-defendants, as between, 550. ' •

death of witnesses not necessary, 552.

dismissal of bill, after, 552.

motion for decree, where cause heard on, 552.

office ropy, duly signed, read from, 553.

order, to read, necessary, 549.

DEPOSITOR,

of chattel, where not necessary party to suit by depositee, 182.

DESCRIPTION,

omission, of, how taken, advantage of, 293, n. (7).
petitioner, statement of, 1625.
plaintiff's, statement of, in bill, 292 : amended bill, in, 319, n. (4).

omission of, how taken advantage of, 292.

m

^^.

INDEX.

1908;

I

l<(

DESERTED WIFE,

advances made by stranger for maintenance of, repaid him, 82.
amount of settlement on, 83.

DEVISAV/T VEL NON (\?>?>\5'E. 0¥),

costs of, 698, 699 ; anH see Costs. • .

examination of witnesses to will at trial of, 556.

heir, right of, to, 557, 670, 671 ; how forfeited, 670, 671.

not lost by being party to suit to establish will as to personality, 67 1.
refusal of, by heir, effect of, 671.
stage of cause at which directed, 675.
waiver of, 671 ; by infant, 671.

DEVISEE,

administration decree on application of residuary, others not being parties,

342 ; but they must be served with notice of it, 177, 178, 342.
alien, discovery whether he is, must be given, 404.
co-plaintiiT with heir, should not be, 191.
executors, when necessary jiarties, 192.
presumptive, cannot sue, 261.

purchaser, of, when necessary party to suit for specific performance, 241.
remainder, in, when necessary parties, 185, 186.

DIRECTORS OF PUBLIC COMPANY,
individual members may sue, when, 19, 20.
payment into Court by, when directed, 181 1.

DISABILITY,

absolute, or qualified, 40, 104.
excommunication, no longer a, 40.
motion on behalf of person under, 1613.
petition on behalf of person under, 1625.
popish recusancy, no longer a, 40.
suits against persons under, 104, 121 — 151.
by persons under, 40 — 103.

DISAVOWAL OF SUIT BY PLAINTIFF, "i

proceedings upon, 255, 257.

DISCLAIMER, 434—440.

account, pf interest in, not a protection against setting it out, 435.
amendment of bill, after, 437.
answer, generally accompanied by, 434.

inconsistency brtween answer and disclaimer, effect of, 438.
bar, disclaimer at, by counsel, in suit, effect of, 434, n. (5).

at hearing of petition, 434, n. (5).
bill, not showing existing right in, plaintiff not sustained by, 261, 262.
co-defendants, rights claimed against, should be reserved by, 435, 436.
costs of defendant after, when allowed, 438 ; when not allowed, 438.
costs of suit, defendant when ordered to pay after, 437.
costs of defendant not putting in, in proper case, 434, 435.
defence by, when appropriate, 250, 382, 434.
definition of, 434.

discovery, disclaimer not a protection ag!ainst, when costs prayed, 436.
dismissal of bill, after, 438.
effect of, 438.

exceptions for insufficiency to, 436.
filing of, 436.
form of, 436.
fraud, disclaimer not a protection, where discovery as to, is sought, 436.

although defendant married woman> 147, 148, 435, 436.
irregularity in, waived by exceptions, 436, 437. ... .; .

liability cannot be disclaimed^ 435. " ' ■>-

oath, must be upon, 436 ; unless dispensed with by order, 436, ■;■..•';

1964

INDEX.

;■' f

DISCLAIMER— <-<»«/i««rt/. ^ "

order, how obtained, 436.

office copy of, 436.

plaintiff's rights against other defendants not prejudiced by, 435.

replication not filed to, 437, 522 ; unless coupled with plea or answer. 437.
' costs of, 437.

setting down cause for hearing upon, 437.

signature of defenda-'t to, 436. .
attestation of, when put in without oath, 436.

sworn, how, 436.

withdrawal of, when permitted, 438.

DISCOVERY,

action, when restrained, till given, 1 140.

alien, when recjuired from, at suit of the Crown, 3.

whether devisee is, must be given, 404.
answer, objections to, when raised by, 416, 445 — 450 ; and see

Answer.
case and evidence of defendant, plaintiff not entitled to, 414, 415.

unless common to both, 414, 415.
Common Law Courts, in, !i349.

concurrent jurisdiction of Court of Chancery, as to, not abrogated, 1649.
corporation, member or officer of, made defendant for purpose of, 112, 113,

246, 247, 304.
demurrer to, 386, 397 — 415 ; and see Demurrer.

disclaimer, defendant not protected from, by, where costs prayed, 435, 436.
dismissal of bill on submission to plaintiff's demand not ordered where

discovery sought, 488.
documents, when ordered, though production cannot be compelled, 1847.
extent to which it may be required, 414, 415.
facts, concerning which it is to be sought, how to be alleged, 295.
fiaud, extent of, in cases of, 415.

married woman not made a defendant to obtain, against her husband, 146.
material, in any way for suit, must be given, 404.
witness, objection to discovery, on the ground that defendant is, cannot be

raised by answer, 249, 250.

DISCOVERY (BILL OF),

injunction to restrain, when granted in, 1700.
af^davit, when annexed to, 314.

alien enemy, cannot be filed by, 45. ,

amendment of, by adding plaintiff, or prayer for relief, irregular, 324
bankrupt, when it may be filed by, 47 ; when against, 122.
costs of, 508 ; and see Costs.

Crown by, to discover birth-place of alleged alien, 3.
demurrer, to person of plaintiff, in, 391, 392.
hearing, not brought to, 508.
infant, in aid of new defence by, 136.

injunction to restrain proceedings in another Court, in, 1640, 1692, 1700 ;
form of order for, 1 700.

dissolution of, when ordered, 1704.

evidence on application for, 1 700.
lunacy or idiocy of plaintiff, objection may be taken on ground of, 68.
parties, want of, not an objection to, 243.
personal representative, when not necessary party to bill for discovery of real

assets, 237.
prayer of, 387.
prosecution, not disipissible for want of, 508.

DISMISSAL OF BILL, 483—494.

accoimts and inquiries, after decree for, 486, 487, 507, 508.
adequate value, for want of, 272.

I

INDEX.

19G5

answer, 437-

DISMISSAL OF mLL—contfnufd.

amendment of bill after, service of notice of motion for, not of course, 335,

«6, 329, 330, 497, 498.
hill and answer, on neglect to reply, after hearing on, 614.
class suit, effect of, on, 197.

conditional order for, made absolute on, ex />arte motion, 161 1,
consent, by, application for, how made, 489.
costs of former suit for same matter, on neglect to pay, 490.
costs on, defendant when ordered to pay, 1287.
costs, without, because defendant might have demurred, 26c n. (4). 382,

1276.
decree, after, only by consent, 486, 487 ; not in class suit, even then, 196,

197, 487, 488, 735.
disavowal of suit, upon, by co-plaintiff', 257, 485.
disclaimer, after, 438.

election, in cases of, 513—516 ; and see Election.
evidence in suit, when admitted in another suit after, $$2.
Anal order for, when necessary, 621.
foreclosure suit in, on payment of debt and costs, 488.
hearing at, effect of, 620.
interlocutory injunction, dissui cd by, 1702.
next friend of married woman, <>n death of, and non-appointment of new

one, 91.
parties, on neglect to add. order for is final- 621.
payment out, ordered a^" , 1830.
plaintiff's application, on, 483 — 4 38.

appeal from order overruling ' imurrer, irregular after notice of, if by
order of course, 434, 483.

bankruptcy of defendant, on, 123.

class suit, in, 196, 197, 484 n. (i).

costs payable on, and See Costs. 483, 485.

decree, before, with costs is, of course, 48^, 485.

issue, after order for, but before trial of, 486.

order for, when of course, 483, 484, 485 ; when special, 483, 484.

pauper plaintiff, by, 37, 485.

prejudice, when expressed to be without, 620.

receiver's accounts, passed after, 1789.

redemption suit, in, on payment of debt and costs, 488.

security for costs, on omission to give, 30.

submission to satisfy plaintiff^'s demand, and pay costs, on, 193, 194, 488^
1468, 1469.

undertaking as to damages, not vacated by, 1694.

DISMISSAL OF BILL (ON ABATEMENT), 510—513.

bankruptcy of sole plaintiff, on, 51, 505, 512 ; of co-plaintiff, 513.

costs on, 51, 52, 510 — 513.

death of defendant, on, 511, 1401.

death of sole plaintiff, before decree, on, 510, 1593, 159/; of co-plaintift',

5". 1597.

marriage of female sole plaintiff, on, 511.

revive suit, on neglect to, 510, 1594, 1597.
DISMISSAL OF BILL (FOR WANT OF PROSECUTION), 495-510.

abandoned motion, costs of, not obtainable after, 509.

abatement, irregular, pendinjp;, 512, 1593.

abatement by death of co-defendant, in case of, 507.

adjournment, with liberty to amend, motion for dismissal, after 500 — 501.
without any subsequent application, when, 501.
- t form of notice of motion, when subsequent application required, 501.

amend bill, order of course for, irregular after service of notice of motion for,

325. 329. 500-
amend bill, effect of order for not acted on, on defendant's right to, 495, 496.

1966

INDEX.

:'. •?,

tad
,§5

DISMISSAL OF BILL (FOR WANT OF PROSECUTION)-^fl«rf«««/.
bankruptcy of defendant, ifter, on his motion, 123, 124, 505, 513.
bankruptcy of sole plaintiff, not ordered on, 512 ; of no-plaintiff, 52, 513.
conditional order for, death of defendant, effect of, on^ 1595.
costs, of motion for, 486, 497, 498 499, 504, 505, 509, 510.
of irregular motion for, 501 ; of motion intercepted by step taken by
plaintiff, 497, 498 ; and see Costs.

death of plaintiff, public officer, 511.

2, 508-

•■•I.

decretal order, a b?'- to, 502,

discovery, of bill of, none in case, 508.

effect of, 509.

enrolment of order for, 510.

hearing of motion, 503.

motion for, how prevented, 507.

motion for, not prevented by interlocutory order or injunction, 501.

or neglect to give notice of filing answer, 471,
notice of motion for, for too early a day, not cured by postponment, 502.
order, jasual, made on motion, 503.

drawn up, how, 503.

form of, dismissal only against defendant moving, 503.

when defendant undertakes to speed cause, 505.
perpetua*^e testimony, not ordered in suit to, 507, 508, 1425.
receiver pendente lite, not ordered in suit for, 508.
replication filed same day, order for dismissal overrides, 501.
restoration of bill, after, 506 ; not directed to raise question of costs, 506.
right to, depends on state of proceedings as to defendant moving, 497.
time for motion for, 495 — 497.

amendment and no further answer required, in case of, 495, 496.

answer, sufficient after, 495.

evidence, after closing of, 495, 496.
title, order for reference as to, a bar to, 502.

DISMISSAL OF INFORMATION,

prosecution, for want of, only ordered when there is a relator, 12.

DISQUALIFICATION. See Disability.

DISTRESS,

receiver, by, in whose name put in, 1783.

leave to make neccssaiy, and how obtained, 1 783.

DIVIDENDS,

payment of, when restrained, 1679.

DIVORCE. &^ Alimony,

DIVORCE A MENS A ET THORO,

effect of, on husband's interest in wife's term, loi.

DOCK,

tolls, receiver of, appointed, 1 764,
DOCUMENTS,

admission of, supplemental answer not permitted for purpose of qualifying,

475. 476.
admissions, used as, must be pleaded, 540.
affidavit as to, 1841— 1843 ; and see Affidavit.
answer, description of, in, 452 ; schedule used for, 454.

reference to, in, unnecessary, where defendant has lost his interest, 452.
deposit of, in Court, how effected, i860,
discovery of, affidavit when annexed to bill praying, 313.
discovery of, not required in administration suit when assets admitted, 447.
discovery of, when not required from person having benefit of covenant for

production of,* 1849.
discovery of, when ordered, though production cannot be compelled, 1847.

INDEX,

i96r

I

DOCUMENTS— continued.

evidence, admitted as, though not pleaded, 540.

execution, proof of, by attesting witness, when not necessary, 559.

exhibits, what may be proved as, at hearing, 561.

Atsc verba, when set out in answer in, 453 ; when in bill, 296.

misstated, admitted by demurrer, 384. ,

notice to admit, 535, 561.

possession of, when considered to be in party's own, 452, 1848.

possession of, answer as to, when abroad, 452, 1849.

private, thirty years old, prove themselves, 554.

production of, 1836 — 1863 ; and see Production of Documents.

prove themselves, those which, 547 — 555.

prove themselves, which do not, how proved, 555 — 560.

reference to, in answer, effect of, 453, 528 ; on right to production, 1855.

schedule of, bill of discovery may pray, 387.

secondary evidence of, when admitted, 558.

when it might convict party of crime, 559.
statement of, professedly inaccurate, when not binding on plaintiff, on

demurrer, 384.
stop order on, after deposit in Court, 1719.

DOUBLE ASPECT (BILLS WITH),

what are, 309. 1

DOWER,

arrears of, account of, in suit for, 716.

interest on, not allowed, 717.
assignment of, how effected, 716.
costs of suit for, 717,

decree to assign proceedings under, 716, 717.
disputed right to, proceedings in case of, 716.
inquiry as to husband's lands, in suit for, 716.
rents, account of, in suit for, 716.

DRAMATIC AUTHOR, '

breach of covenant by, injunction to restrain, 1681.

DRAWER,

a bill of exchange, when not necessary party, i66.

DRUNKENNESS,

charge of habitual, particular acts of drinking provable under, 538.

DUMB PERSON,

affidavit of, how taken, 576.
answer of, how taken, 468.

DURANTE MINORE yETA TE (ADMINISTRATOR),
a necessary party, unless he has fully accounted, 206.

DUTIES,

bill to establish general right to, against several defendants, when not

multifarious, 281.
suit to establish right to, may be brought against some member of the class

liable, 228, 229.

ECCLESIASTICAL LAW,

judicially noticed, 386. '

EJECTMENT,

lessee, party to bill to restrain, when, 168.

EJECTMENT lilLL, *

does not lie, although defendant alleged to have possession of title deeds, 39a

1968

INDEX.

ELECTION, 513— Si6. .. 1

action and suit, between, when compelled, 513, 1635.
application for, how made, 514.
costs on, 514, 515, 516.
Crown may elect to sue in any Court, 3, 4.
declaration that defendant has made, not granted under prayer that he should

make it, 304.
decree, order for, not made after, 515.
dismissal, after, cannot be pleaded to new suit, 515.
foreign court, where plaintiff also suing in, 513.
inquiry whether suit and action for same matter, 515,
mode of making, 515.
mortgagee, not put to, 513.
order for, effect of, 514.

benefit of, lost after decree, but special order may be made, 513, 1635.

discharge of, application for, 514.

injunction, writ of usually not issued, 514, 1467.

special, when, 515.
proof of debt in administration suit, no election not to proceed at law, 515,

n. (8).
special, 514.

specific performance, in case of, 513.
stay of proceedings, pending inquiry, in case of, ^l^.
time for application, 514, 515.

extension of, how procured, 5 1 5.
vendor, in cases of proceedings by, for unpaid purchase money, 513-
widow, parties to suits to put her to, 238.

ENGINEER,

assistance of, how obtained, 613 ; and see Expert.

ENROLMENT, 634—636.

bargain and sale, of, need not be alleged in bill, 297.
decrees and orders, of, 634 — 636.

abatement, pending, 1593.
completed, when, 6.^5.
costs of, 636.
effect of 634.

foreclosure, enlargement of time for, after enrolment, 620, 636.
orders which may be enrolled, 634. 1

prosecution, of order of dismissal for want of, 5 10.
rectification of order when permitted after, 640, 641.
rehearing of decree or order not allowed aJftf r enrolment, 634, 1569.
special case, of order on, 1872.
time for, 634, 635.
vacated, when, 635, 636,

irregularity, for, 635.
pro confesso, when bill taken, 380, 636.

ENTRY,

breach of condition, for, in husband's assignment of wife's term, effect of, 102.
decrees and orders, of, 632, 633.

nunc pro tunc, order for, how obtained, 633 ; when made, 633,

omission of, effect of, 633.

pro confesso, made on bill taken, 377.

EQUERRY,

salary of, not taken under sequestration, 653.

EQUITABLE ESTATE,

trustees having, when necessary parties, 164,
EQUITABLE INTEREST,

assignor of, when not a necessary party, 165.

INDEX.

1969

hat he should

effect of, 102.

EQUITABLE WASTE. .S"^^ Wastj-:, ^

EQUITY,

demutrer for want of, 385 ; and see Demurrer.

offer to do, demurrer for want of, 310, 396, 421 ; and see Demurrer.

EQUITY TO A SETTLEMENT. See Married Woman— Settlement
(Equity to).

ERROR,

certainty, required in bills for relief, on the ground of, 303.
correction of decree, where clerical, 636 — 641.
infant, what shown as cause, by, 129, 130 ; how shown, 136.
foreclosure suit, in, 131, 134, 135; ^
sale under decree not invalidated by, unless in substance, 131, 132.

ESCHEAT,

person claiming by, necessary party to suit to establish will, 191.

ESTATE (PERSON TO REPRESENT). See Representative of the
Estate. ,,

ESTATES,

of different persons, administered in same suit, when, 277.

EVICTION,

receiver, by, leave to take proceedings for, necessary, 1784.

EVIDENCE, 527—599.

account, in suit for, 541, 542.
administration summons, in support of, 733.
administrator, in suit against, 541, 542.
admissions, by, 527 — 535 ; and see Admissions.
affidavit, by, 568—577. See Affidavit.
agent to collect, communication to, privileged, 411.
answer, not read as, by defendant, where issue joined, except by consent,
/ 531 ; or on question of costs, 531.

how made evidence, 530, 531, n. (7).
answer of co-defendant, read as, when, 518, 531, 533.

in interpleader suit, 531.
appeal motions, 1575, 1624; new evi4ence on, when allowed, 1575, 1624.

costs, where successful on new evidence, 1575, 1624.
appeal petitions, 1575, 1630 ; new evidence, when admissible in, 1675, 1630.
appeals and rehearings in Chancery, on, 1574, 1576.

answer not made, by reading as admission below, 1574.

decree, new evidence not usually admissible on appeal from, 1573.
exceptions, 1574, 1575 ; credit of witness, to impeach, 1574, 1575.
de beiu esse, where admitted to be read, 1575.
exhibits, to prove, 1574.

omission by inadvertence, in hearing below, in case of, 1574. '
bankruptcy, taken before, read against assignees, 123.
best, must be given, 546.
bill and answer, at hearing on 521, 561.
bill read by plaintiff as, when, 528.
Chambers, how adduced at, 726 — 732.
■ general rules of, applicable to proceedings in, 726, 727.
contradictory, issue when directed in consequence of, 669. •
costs of, 527, 588, 1484.

cross causes, order to use in one, evidence taken in the other, 550, 609.
custom, of, 545.

de bene esse, when taken, 584 — 595 ; and see De Bene Esse (Examination).
decree, sufficient must be proved to entitle plaintiff to, 541, 542.
decree or order in another suit, when admissible as, 548, 549.
defect, in, how remedied, 542, 543.

application for leave to supply, how made, 543.

11 '■'

1970

INDEX.

I

8

: til 6

.3! f

.-'1
itf.

OP

EVIDENCE— continued. i, . . /

inquiry, when directed, 543.

J}artial decree, when made, 544.
iendant's, plaintiflfnot entitled to discovery of, unless common to' both, 415.
depositions in another suit, when admissible, 549 — 553.
co-defendants, when between, 550.
dismissal of bill, after, 552.
motion for decree, when cause heard on, 552.
copy, duly signed, read from, 553. ' '

order to read not necessary, 549 ; how obtained, 803.
witnesses need not be dead, 552.
depositions of witnesses, in other Courts, introduced, how, 548.

order to read not necessar}^ 549.
documentary, what is, 547.
documentary, which proves itself, 547 — 555.
documentary, which does not prove itself, 555 — 560.
documents admitted as evidence, .though not pleaded, 540.
documents, secondary evidence of, when admitted, 558.
drunkenness, evidence admitted under general charge of, 538.
no entry of, in decree or order, 615, 626 ; and see Entry.
executor, in suit against, 541, 542.

exhibits, proving, at hearing, 561—564 ; and see Exhibits.
facts, not noticed, in the pleadings, evidence of, not admitted, 270, 537.
general charge, evidence of what facts admitted under a, 538, 539.
guardian, in support of application to appoint, 1390, 1 39 1,
guardian ad litem, on application by plaintiff for, of infant, 125.
on behalf of infant, 125.
for person of unsound mind, by plaintiff, 139.
on behalf of person of unsound mind, 139.
hearsay not admissible, 546.
improper, new trial at law on ground of admission of, 682.

objection must be taken at trial, 684.
improper length pf, costs occasioned by, 527, 1484.
infant, necessary evidence against, 133.

taken before he was made a party, not read against him, 133, n. (7).
injunctions, on applications for, 1695, 1696.
breach of, on application to co^imit for, 171 1.
discovery, in suit for, 1700.
insanity, evidence where general charge of, 538.
instrument not made evidence by mere reference thereto, 299.
insufficient issue, when granted in case of, 674, 675.
interlocutory application, upon, 568.
issue, should be confined to matters in, 537 — 545.

letters, statement of, as evidence of agreement contained therein, 297, 298.
lewdness, evidence where general charge of, 538.
marriage settlement, in support of application to approve, 1408.
marriage of ward of Court, in support of application for, 1406.
modus, of, 546.

motion for decree on, 516 — 521.

motions, on, 1616 — 1618, 1618, n. (i) ; oral, how taken on, 1618.
ne exeat provincia, on application for, 1740, 1741.
new evidence, new trial at law on ground of, 691.
new trial, on motion for, 694.
notice, evidence where general charge of, 539, 540.
onus probandi, 535, 537 ; and see Onus Probandi.
parties added, aftei time for notice of cross-examination, evidence not read

against, 245, 246, 322, 325.
payment into Court, on application for, 181 8, 18 19.
payment out of Court on application for, 1827.
petitions, on, 1627.
ro confesso, on application for order to take bill, 365, 366.

nontoboth, 415.

INDEX.

1971

i

;48.

i, 270. 537-
8, 539.

125.

133. n- (7)-

jrein, 297, 298.
)8.

1618.

kdence not read

EVWEiiCE— continued.

against absconding defendant under statute, 366.

under general order, 366, 367.
receiver, on application for, 1 769.
rejection of, new trial on ground of improper, 681.

at law, 682 ; objection must be taken at trial, 684.
sale by private contract, in support of application to confirm, 1161.
secondary, when permitted, 557 — 559 ; and see Secondary Evidence.
service' of bill out of jurisdiction, on application for leave for, 360.
service of notice of the decree on infant, or person of unsound mind, on

application for, 343.
statutory jurisdiction, on applications wider, 1882.
stop order, on application for, 17 16, 171 7.
substance of case only need be proved, 541, 542.
substitution of purchaser, in support of application for, 1374.
supplemental answer, on application for leave to file, 477.
supplemental suit, in, 1602, 1603. •

taken, how, 577 — 584.
time for taking, 580.

enlargement of, 581.

application for, how made, 581.
unnecessary, costs of, disallowed, 527, 1484.
variance, effect of, 545, 546 ; and see VARIANCE,
verdict against evidence, new trial of question of fact, on ground of| 677, 678 ;

at law, 686.
viva voce evidence, how and when taken, 577, 584.

EX PARTE EXAMINATION. See Examination (of Witnesses Ex

PARTE.

EXAMINATION (OF DEFENDANT),
how taken, 580.

EXAMINATION (OF MARRIED WOMAN), 73—81.
abroad, how taken when resident, 75.
affidavit of no settlement, or that it does not affect fund, 76.
certificate of counsel that settlement does not affect fund, 76.
Chambers, how taken at, 75.

affidavit by solicitor that settlement does not affect fund, 76.
Court, how taken by, 73, 74.

fund under ;^200. , or jif 10 per annum, not required if, 78.
infant, not taken if she is, 76, 77.

remainder or reversion, not taken where property is in, 79.
second, when dispensed with, 77.

separate estate, not required if fund is, 79 ; unless husband recipient, 79.
separate receipt, required, though fund paid to, 78.
stage of proceedings at which taken, 76.

EXAMINATION (OF WITNESSES), 577—584.
appeal, by Court on, 1575.
Chambers at, 727. *

attendance of witness, how obtained, 727.
examiner, before, how conducted, 578 ; Chambers, for use in, 727, 729.
issue joined, how taken after, 577, 578.

jurisdiction, of witness out of, how taken, 582, 583. '

partition, under commission of, 702, 703.
service of notice of appointment for, on witness, 579.

EXAMINATION (OF WITNESSES, COMMISSION FOR), 582-583.
examination de bene esse not permitted under prayer for, 308.
jurisdiction, to take evidence out of, 582 ; practice on, 583.

EXAMINATION (OF WITNESSES DE BENE ESSE). See De Bene
Esse (Examination).

t'

1972

INDEX.

3!

???!

EXAMINATION OF WITNESSES, EX PARTE, ;

cross examination on, 5^^*

EXAMINERS, . /

Court of the 577.
death of, effect of, 582.

depositions, how taken down by, 580—583 ; and see Depositions,
signature of, to depositions, 582.

refusal of witness, on, 581.

jurisdiction, examination of witness out of, taken by, 582, 583*.

EXCEPTIONS (FOR IMPERTINENCE),
abolished, 287.

EXCHANGE (BILL OF),

drawer or indorsee of, when not necessary party, 1 66.
exhibit, provable as, at hearing, 561.
negotiation of, when restrained, 1677.

application usually made ex P(irte, 1677, 1692.

forged endorsement, in case of, 1677.

EXCOMMUNICATION,
no longer a disability, 40.

EXECUTION,

injunction to restrain, 1 647, 1648.

issue of, by creditor, when not restrained, after decree, 1633.
for non-obedience to decree or order, 652 — 658.

EXECUTORS,

acting, necessary parties, though they have released and disclaimed, 208.
administration decree, on application of, against one legatee or next of kin,

342 ; but others must be servec with notice of it, 183, 184, 342.
co-plaintiffs, need not all be, 185.

de son tort, personal representative necessary party to suit against, 263, 264.
durante niinore estate, necessary party, unless he has fully accounted, 206.
evidence in suit against, 541, 542.
grant of probate need not be alleged in bill against, 263.
jurisdiction, out of, not necessary party to suit against co-executor, 115, 227.
parties, all necessary, 207, 208.

except those abroad in contempt, 208, n. (i) ; or not proving, 208.
payment into Court by, when ordered, 1808 — 1811.
plaintiff, description of, as such, unnecessary in first part of bill, 294.
plaintiff, must state he has proved will, 262, 263.

unless bill filed to protect property pending grant, 263.
probate, suing before, must prove before hearing, 263, 264.
such a bill not demurrable, if proof alleged, 263, 264.

but fact may be pleaded, 263, 264.
receiver, when appointed against, 1746 — 1759 ; and j« Receiver.
sale, with power of renouncing, effect of, 209.

and see Personal REPRESENTATivsii.

EXECUTORY DEVISEES,

intermediate, necessary parties, 222
necessary parties, when 187.
not in esse, bound by decree against fi::.s*-
waste, when restrained, on applitatiou ^

EXECUTRIX,

ne exeat, not granted against, if a married woman, 141, 1 541

receiver, when appointed against, 1652, 1653.
EXEMPLIFICATION,

record of Superior Court, of, admitted without proof, 54^.

EXHIBITS,

alterations in accounts made, how authenticated, 574.

aie of inheritance, 188.
i'47'o-

IKDEX.

i^n

NS.

i-

aimed, 208.
or next of km,

\, 342-

linst, 263, 264.
mnted, 206.

jutor, 115. 227.
g, 208.
ill, 294-

IVER.

188.

EXHIBITS— continuai. I

annexation to affidavit, when improper, 574, 1143; '

bill and answer, may be proved at hearing on, 521, 561J 562.
identification of, when to be used at Chambers, 574.
hearing, proving at, under order, 561— 564.

what may be so proved, 561 ; what may not, 562.
appeal, at hearing of, 1574, 1575.
attendance of witness to prove, how enforced, 564.
impeached documents not provable as, at, 562, 563.

unless validity only disputed, 562, 563.
mode of proof, 563.

objection may be made to admissibility of, 564.
order to prove necessary, 563 ; omission of, how remedied, 563.
form of, 563.
how obtained, 563.
will not proveable, as, 562.
production to deponent, of, 574.
production of, before hearing, not usually compellable, 564, 575.

EXILE,

wife of, sued Without him, 140.

EXPENSES,

witness, of, tender of, 579 ; examination in Chambers, on, 727.
married woman, in case of, 579.

EXPERT,

assistance of, may be obtained, 613, 614.
stage of the cause, at what, 613, 614.
report of, how regarded, 613, 614.

FACT (QUESTION OF),

advance out of fund in Court, when made for trial of, 677.

appeal from order directing trial of, 677.

assizes or JVisi Prius, trial of, at, when directed, 668.

Chancery, determined by Court of, when, 668 ; when not, 668, 669.

compromise at trial, effect of, 698.

de bene esse, examination, when allowed after trial of, 587.

decree for trial of, not a final decree, 615, 616.

discovery, bill of, does not lie without leave of the Court, after order for,

discretionary, except m case of heir, rector, or vicar, 672.

but decision may be appealed, 673. .

not granted where, though fact found to be true, law would be adverse,
673 ; or only one verdict could be found, 673.
dismissal, on plaintifl's application, permitted, after order for trial of, 486, 487;

seats, after the trial of, 486, 487.
form of, not changed on motion for new trial, 696, 697.
further hearing after trial of, 697, 700 ; and see FURTHER HEARING,
new trials of, 677 — 697 ; and see New Trial.
trial of, when directed, 668—677.

evidence, contradictory, directed, where, 669.
insufHcient, granted in case of, when, 674.

forgery, granted in case of, if evidence conflicting, 673.

heir at law, right of, to, 556, 557, 670, 671.
injunction, on application for committal for breach of, 675, 1 712.
material point, not in issue, when directed to try, 674.

one witness only supporting plaintiff's case, 533.
if asked for by defendant, 533.
question in suit, may be directed as to any, 673.
rector, right of, to, 670. *

lOI

1974

INDEX.

$4
4T

FACT (QUESTION OF)— continued. /^

stage of cause, at what, directed, 675, 676.
suggestion, not granted on mere, 673, 674.
vicir, right of, to, 67a

costs of, 694, 69s, 699, 1472, 1503 ; and see Costs.
jury, when directed before, 675,

FACTOR,

jurisdiction, out of, not a necessary party to suit against co-factor 115, 116

227.
privity, not destroyed by employment of, 268, 269.

FACTS,

admission of, by demurrer, 383 — 386.

alleged in bill, how, 295.

answer, stated in, when introduced in bill by amendment, 322.

evidence of, not admitted, if not noticed in pleadings, 537.

exceptions, where pointed to general charge, 538.
filing of bill, occurring since, how introduced, 322.

FAILURE,

banker, of, receiver when charged with loss occasioned by, 1787

FALSE AVERMENT, , ^

of fact judicially noticed, not attended to, 14, 386.

FEE,

seisin in, how alleged in bill, 295, 296,

FELLOWSHIP,

college, receiver appointed of, 1764.

FELON,

costs, security for, when required from, 25.

infant, assignment of custody of, 1877.

wife not bound by answer to expose husband to charge as, 146, 398.

FEME COVERT, i^^ Married Woman.

FEME SOLE,

marriage of, no abatement, m case of defendant, 150.
marriage of, an abatement, in case of plaintiff, 91, 1584.
motion for revivor or dismissal of suit on, 511.
want of order of revivor not a ground for reversing decree on bill of

review, 91.
order unnecessary, if husband dies before it is obtained, 91.
• married woman may act as, when necessity requires, 71.

married woman, instituting suit, becomes subject to liabilities of, 91.
married woman, instituting suit as, proceedings stayed, 91, n. (5),
married woman, suing as, statement of fact o^ 293,

FIERI FACIAS (WRIT OF),

decree or order, when issued to enforce, 665.

preparation and issue of, 665.

receiver, against, for non-payment to party, irregular, 1790, 1791.

FILE (TAKING OFF THE),

affidavit, for scandal and irrelevance, 480, 481, 572.
answer, 459, 469, 480, 481.

application for, how and by whom made, 480.

evasive, because, 480.

heading, for defect in, 459.

irregularity, for, 480 ; in juiat, 469.
bUI, 69, 70, 255, 256, 339, 341-

amended, for irregularity, 339 ; not ordered if record can be restored to
its original state, 340.

INDEX.

1975

'M

tor US. "^

87

^6, 398.

on

bill of

Is of, 91-

(5).

FILE (TAKING OFF THE)— oontitiued. j

authority, because filed without, 255, 256.

application for, how made, when, and evidence in su? ^ort, 256.
disability, because filed by person under, without next iriend, 69,
consent, of pleadings and documents by, 480, 481.
demurrer, when and how taken off, 426.

difference between taking off file and overruling, 426.
pleadings and documents, because scandalous, 481.

FILING,

affidavit, 577.

pressing matter, in case of, 577.

time for, of service of notice of motion or p.'titioi, 1615.
answer, 459, 460, 470, 471.

infant, of, 132.

married woman, separate, of, 145, 146, 469, 470.

notice of, 471 ; effect of neglect to give, 471.
on right to move to dismiss for want of prosecution, 506, 507.

Record and Writ Clerk's certificate, conclusive as to time of, 470.

sworn by all defendants for whom prepared, when not, 459, 460.

time, when permitted without order, after expiration of, 470.
bill, 317.

amended bill, when, reprint necessary, 336, 337.

record, not considered as of, until, 317.
certificate of examination of married woman, 75.
certificate. Examiner's, of default or misconduct of witness, 580.
certificate of partition, 708.

demurrer, 425 ; notice of, 427 ; effect of neglect to give, 427.

of lunatic, when committed adversely interested, 425.
demurrer, by witness, 596, 597.
depositions, 582, 591.
disclaimer, 436.

examination of married woman, 75.
information, 317; amended, when, reprint required, 336.
partition, commission and certificate of, when returned, 708.
petition, 1628 ; copy of, when allowed to be filed, 1628.
replication, 524.

notice of, 525 ; form of, 525 ; effect of neglect to give, $25.

service of, 525 ; and see Service.
nunc pro tunc, 526, 614.
special case, 1867 ; notice of, 1867.

FISHERY,

bill claiming general right of, when not multifarious, 281.

FORECLOSURE SUIT, and see Master's Office.
costs of motion for, 1622.

cestui que trusts, represented by trustees in, when, 173, 214.
costs of, 1476 , of disclaiming defendants in, 124, 438, 439.

mortgagee of, 1476. -

decree, form of, 622.

final order on, required, and how obtained, 623.
decree for, intermediate incumbrancer not bound by, 232.
decree, proceedings under, 622.
decree, prayer for sale, not made under, 304, 305.
dismissal of, on payment of debt and costs, 488.
infant, against, day to show cause, when given, 130 ; when not, 131.

error, only cause infant can show against decree of, 130, 134.

unless he claims by title paramount, 135.
injunction issued after decree in, though not prayed, 1632.
married woman, decree binding on, 150.
parties to, 171, 173, 174, 175, 214, 216, 220, 232, 234, 235, 237.

w

1976

INDEX.

I

a S :j * ■' ' ■

/■■I,

FORECLOSURE SUIT— ftjw/im*/*^.

assignment of mortgage, in case of, 174.

bankrupt, mortgagor not, 174.

cestuis ^ue trust, when, 214.

derivative mortgagees, 174, 216. ^

devise of mortgage, in case of, 174.

heir of mortgagee, in suit by, 179, i8a

heir of mortgagor, when, 237.

incumbrancers, prior, not necessary parties, 173, 235.

incumbrancers, subsequent, 232.

whether incumbrance legal or equitable, 23/1 ; if specific, 234.

inheritance, owners of first estate of, and oi' intermediate estates, 220.

mortgage money, all persons interested in the, 170.

unless their interests sufliciently represented, 1 70.

original mortgagee in derivative mortgagee's suit, 174.

personal representative of mortgagee, in suit by, 179, 180.

trustees, when mortgaged estate vested in, 173.
sale, when directed instead of, 238.
time for payment, enlargement of, in, 624 ; on what terms, 624.

appeal from decree, in cases of, 624, 1565.

certificate, application to vary, where, 624.

rents received before day of foreclosure, where, 624.

FOREIGN CORPORATIOrfS,
how they sue in this country, 19.
service of notice of motion on, 1614.

FOREIGN COUNTRY,

answer, how taken in, 466.
ne exeat, against person domiciled in, 1737.

penalty in, discovery must be given, though it would expose defendant to,
401.

FOREIGN COURT,

creditor's suit in, restrained after administration decree, when, 1632.
election, when plaintiff suing in, as well as in Chancery, 513.
^ litigation in, appointment of receiver pending, 1761.

proceedings in, injunction against, 1650, 1651 ; after decree in Chancery,

494- , , ,

proceedings, judicial or legal, of, how proved, 494.
staying proceedings after, decree in, 494.

FOREIGN DOMINIONS OF THE QUEEN,
answer, how taken in, 466.

FOREIGN GOVERNMENT,"

cross bill, may be defendant to, 15, 1 11, 112 ; and must answer, 112.
fund about to be distributed, may be defendant if interested in, iii, 112.
non-recognition of, judicially noticed, although recognition averred, 14.
recognition of, judicially noticed, 14, 386 ; and condusive, 14.
suit by, 13 — 16.

permitted, if recognized, 13 ; sa:uSf if not recognized, 14, 15.

private rights of^ only lies to enforce, 14,
suits against, ill, 112.

FOREIGN LAW,

governs decision, on fore!^ contracts in suits between aliens, 42.
question of, a matter of fact, 548, ii. n. (3).

FOREIGNER,

affidavit of, how taken, 576.

answer of, how taken in his own language, 467, 468 .; in English, 467, 468.

jurat, to, 468.
«/ oroo/. when granted against, in suit by foreigner, 42, 1737.

INDEX.

1«77

5*- ^
ates, 220.

ise defendant to,

a, 1632.
ee in Chancery,

irer, 112.

1, III, II2.

Lverred, 14.
[4-

42.

alish, 467. 468.

FORFEITURE, j

answer, objection by, to discovery on ground of, 444, 44S>
assignment, on breach of covenant against, not relieved against, 1687, 1688.
call, on non-payment of, not relieved against, 1686.
demurrer, objection by, to discovery on the ground of, 387, 397 — 404.
demurrer by witness on the ground of, 595, 596,
discovery, objection to, because it would expose defendant to, 311, 312, 40a.

limitation over, does not lie in case of, 403.

unless disqualification is in nature of forfeiture, 403.
expiration of time for suit, discovery must begiven after, 402.
lease, of, landlord when restrained from enforcing, 1688.
marriage without consent, on, discovery, need not be given, 146, 402.
married woman not bound to an3wer so as to expose herself to, 146.
production, objection to, because it would expose party to, 1857.
renewal, of covenant for, when relieved against, 1687.
rent, for non-p^, --ment of, when relieved against, 1687.
repair, on brearfi of covenant to, not relieved against, 1687, 1688.
timber, forfdl<.tg, whether relieved against, 1687.
waiver of, vlien necessary, 310, 311 ; effect of, 311, 397, 398.

demurrer for want of, 311, 312, 387, 388.

FORGERY,

issue granted in case of, where evidence conflicting, 673.
new trial of issue on ground of, 677, 678.

FORMA PAUPERIS,

suing and defending in, 32 — 40, 120, 121 ; and set Pauper.

FORMAL DEFENDANT. See Defendant (Formal)— Copy of the'Bill.

FORMER SUIT (FOR SAME MATTER),

costs of, staying proceedings in second suit imtil pasrment of, 35, '469, 490.

FRAUD,

.action, when restrained on ground of, 1471.

agents, arbitrators, or attornies, charged with, when made defendiuats,

247, 248 ; allegations and prayer of bill, 248.
bankrupt cannot demur to bill of relief, charging, 123.
charges of, answer as to, in pleas, 24C.

concurrent jurisdiction, to relieve against, in Courts of Law, 390,
consent decree obtained by, impeached by original bill,
creditor or legatee may sue debtor to estate in case of, 268.
decree, how impeached for, 136, n. (i), 417.
demurrer should be filed, though bill charges, 382.
disclaimer, insuflicient when discovery as to, sought, 435.

although defendant a married woman, 147, 148, 435.
general allegation of insufficient, 268.
infant, how shown by, as cause against decree, 135, 136.
legatee may sue debtor to estate in case of, 160, 205, 267.
married woman's separate estate bound by her, 149, 150.
new trial of issue on ground of, 679.

professional confidence, no exemption from discovery in cases of, '4r2, 413.
relief only granted on case made by bill in cases of, 271, 307.

practice, when other matters alleged in bill, 307.

FRAUDS (STATUTE OF),

cannot be pleaded to enable party to commit a fraud, 389, 390.
demurrer on the ground of, 396.

FREEHOLD ESTATE,

effect of sequestration on. 658.

1978

INDEX.

FUND IN COURT,

advance out of, when ordered to defray costb of issue, 677.
transfer from one account to another, how effected, 1826,

FURTHER DIRECTIONS, 872—882.

when cause to be set down to be heard on, 872.

Master's report must first be made, 872.

Court will not interfere in a summary way, where further directions rcse. ved,

872.
unless liberty has been reserved, 872.
but it will entertain matters of a collateral nature, 872, 873.
it will also permit a bill to be dismissed, without requiring the cause to be

set down on further directions, 873.
only when further directions have been reserved that it is required to set the

cause down on, 873.
given after confirmation of report, 873.
what the Court will do at the hearing on, 873, 874.
what the Court will not take into consideration at the hearing on, 874.
when a re-hearing must be had, 875.
rules as to consideration of the questbn of interest at the hearing oDi 875,

876, 877.
when the Court will entertain a renewed application for a receiver at the

hearing on, 878.
Court will not vary or impugn the original decree at the hearing on, 878.
nor will it entertain any objection to the original decree, on a ground which

might have been made at the original hearing, 879.
Court will supply defects in original decree as far as possible, 879.

Setting Down on Further Directions, 88c— 882.
Mode of, 880.

Orders 418 and 419, as to, 880.
creditor, whose claims has been admitted by Master, has a right to appear at

the hearing on further directions, 881.
evidence taken in Master's Office, not looked at on further directions, 881.
the order made on further directions is, in fact, a decree of the Court, 882.

FURTHER HEARING,
petition, of, 1627, 1628.
trial of question of fac*' or issue, after, 697 — 699.

appeal, not stayed on account of pendency of, 697.

cost of issue disposed of at, 698.

interlocutory application, when trial was directed on, 697.

new trial, when directed at, 697.

order made at 697 ; where trial has not taken place, 698.

setting down cause for, where trial was directed by decree, 697,

verdict, decree at, when made contrary to, 698.

FUTURE RIGHTS,

declaration of, not usually made, 621, 622.
special case, not made on, 1872.

GARNISHEE ORDER,

creditor not restrained from obtaining, after administration decree, 1633.

GENERAL RIGHT,

owner of inheritance, necessary party to lessee's bill to establish, 168.

GOODWILL,

sale of, does not imply covenant not to trade, 1681.

GOVERNMENT OF FOREIGN STATE. See Foreign Government.

GRANT,

deed must be alleged of things lying in, 298.

ion» rese< ved,

e cause to be
red to set the

n, 874.

iring on, 875,

receiver at the

g on, 878.
ground which

79.

It to appear at

ctions, 881.
Court, 882.

97.

ee, 1633.
1, 168.

ERNMENT.

INDEX. 1979

GRANTEE OF CROWN, . !

of chose in action, form of suit by, 4, 106.

GREATER CERTAINTY.

reference to document for, effect of, 45j, 528 ; on right to production, 133,

GUARDIAN (OF INFANT), 1384—1394.

appointment of, application for, how made in suit, 1388.

Chambers, made at, where no suit, 1388, 1391.

evidence iif'support, 1390, 1391.

father alive, when, 1388.

infant, after appointment by, 1388.

jurisdiction, when infant out of the, 1388.

liberty to apply for, when jjiven, 1387.

security to account, how given by, 1392.
control of Court over, 1400.
costs of, 1399.

death, effect of, where appointed by Court, 1391.
determination of office, what occasions, 1391.
leases, power of, tu grant, 1402.

maintenance, not bound to account for expenditure in, 1400.
marriage of female, determination of office by, 139 1,
next friend, may sue as, 54, 55.
property of infant, power of, over, 1402.
removal of, application for, how made, '392.
special case, concurrence in, for infant, 1866.
testamentary, how appointed, 1389; extent of power to appoint, 1390, 1391.

control of Court over, 1390, 1402.

death of, effect of, 139 1.

declining to act, proceedings in case of, 1 390.

power over infant's property, r402.
vacancy in office of, how supplied, 1392.

GUARDIAN (OF PERSON OF UNSOUND MIND NOT SO FOUND)*
appointment of, 1399.

GUARDIAN AD LITEM (OF INFANT),

acts of, how far binding on infant, 128, 129. - «

answer of, on behalf of infant, 132, 461, 469.

heading of, 459.

improper, costs of, ia8.

married woman, where a, 145, 146, 470.

oath or signature, where put in without, 461, 462.

read, may be, against guardian, but not infant, 469, 530, 531.
appointment of, at instance of infant, 125, 145.
appointment of, on application of plaintiff, 125.

application, how made, and evidence, 125.
service of notice, 126.

who appointed, 127, 128.
consent of, to deviation from ordinary procedure, sanction of Court to, 128.
death of, proceedings on, 128, 1391.
defence conducted by, 125.
duty of, 128.

ineligible, who, 125, 126.
jurisdiction, for infant out of, appointment of, at instance of infant, 127, 360.

of plaintiff, 127, 360.
married woman, required for, if an infant, 126, 127, 145, 146.
notice of the decree, appointment of, for infant served with, 348.
petition, when infant respondent to, 125, 1627.

application, how made, and evidence in support, 125.
proceedings in cause cannot be taken until appointment of, 125, 126.
removal of, 128, 129.

1$80

INDEX.

I

S

I? J

ij a '"' ■.■:

■

M

J:

3

*;

GUARDIAN AD LITEM (OF PERSON OF UNSOUNP OR WBAI^

MIND),
answer of, 138, 139.

how sworn, and jurat to, 459. '

oath or signature, when put in without, 462.

read against defendant, whether it may be, 139, 531.
appointment of, at instance of defendant, 139; evidence in support of, 139.
appointment of, on application of the plaintiff, 139.

application, how made, and evidence, 139.
service of notice of, 139.

order for appointment made in Chancery, 139.

who appointed, 138.
consent of, to deviation from ordinary procedure, sanction of Court to, 1 39.
death of, proceedings on, 138, 139.

defence conducted by, 138; when committee adversely interested, 138.
discharge of order appointing, at defendant's instance, 139 ; at plaintiff's,

inquiry as to competency, when directed, on applicatior. for, 139.
entry of order appointing, at Record and Writ Clerks' office, 141, 142.
ineligible, who, 139.

jurisdiction, appointment of, where person out of, 360.
notice of the decree, appointment of, for person served with, 348.
proceedings in cause, cannot be taken until appointment of, 1 39 .

HJEC VERBA,

documents, when set out, in bill, 296.

HALF-PAY,

receiver of, not appointed, 1764.
sequestration, not taken under, 653.

HEAD OF CORPORATION,

corporations cannot be sued without their head, 17, 112.
* corporations aggregate cannot sue in name or head alone, 17.

death of, not an abatement, 18 ; unless of corporation sole, 18, I5&4.
revivor in such case, 18, 19.

HEARING,

generally, 607, 615.
adjournment of, 608, 609 ; and see Adjournment (of Causbs).
advance of, 607, 608, 609 ; and see Advanc^(of Cause).
amendment bill, leave for, when given at, 321, 322, 330 — 383 ; and set

Amendment of Bill.
appearance of party not duly served at, 611, 612.
appearance of person not a party at, 611, 612.
attendance of solicitor at, 609 ; penalty for neglect, 609.
benefit of defence raised by answer can only be had at, 443.
bill and answer, proceedings at, 612, 613; dismissal on, costs of, 612, 613.
certainty in bill, objection for want of, cannot be raised at, 303.
contempt of pjaintiflf, no objection to, 611.
costs of cause, only dealt with at, 487, 488, 1468, 1469, 1509.
usually not given at original, 1464.

given at, include subsequent, unless expressly excepted, 1464.
death of defendant, after, but before judgment, effect of, 1595.
dismissal of bill at, for inadequacy of VAlue, 27', 272.
exhibits, proving at, under order, 561 — 564 -, and see Exhibits.
injunction, when granted *t, or after, though no prayer, 163 1. ,
jurisdiction, objection for want of, may be taken at, when, 391, 392.
multifariousness, objections for, can only be taken by Court at, 285, 444.
parties, objections for want of, may be taken at, 2,^1.
petition, how effected at, 700.
plaintiff cannot be heard by counsel and in person, 612.

INDEX.

1981

D OR WEAK

upport of, 139.

Court to, 139.

HEARING— ro«/t««^</.

privat*, when directed, 615.

pro confesso, \\ hen bill ordered to be taken, 377.

proceedings, where all parties appear, 612.

defendant, non-appearance of, in cases of, 609.
plaintiff, non-appearance of, in case of, 610.
receiver granted at or after, though not prayed, 1768.
relator not heard in person, at, 612.

replication allowed to be filed num pro tunc at, when, 614.
appeal or rehearing, of, 1573, 1574.
affidavit of service of order to set down, course where informal, 1573.
amendment of bill at, 331, 1577.
begin, who entitled to, 1573.

further consideration, on appeal from order on, 1573, n. (8).

motion for decree or appeal from order on, 1573, n. (8).
heard, who entitled to be, on, 1573.
demurrer, of, where both parties appear, 429.

where defendant does not appear, 428 ; where plaintiff does not, 428.
further consideration of cause, see FuaTHER Directions.
further hearing after trial, of, 697, 698.
motions, of, 1615, 1617.

to dismiss, for want of prosecution, 503, 504.
where neither party appears, 503.
motion for decree, of, 520.

where either or both parties neglect to appear, 520.
petitions, of, 1 627.

cross petitions, 1627.

priority, of, when answered for the same day, 1627.
special case, of, powers of Court at, 1870,

HEARSAY,

evidence, not admissible, 546.

HEATHEN,

answer of, how taken, 461.

HEIR,

absence of, not affected by decree made in, 190, 191.
administration decree, at instance of, on serving co-heir, 177, 342.
jadmission of, will established on, 555.

co-plaintiff, amendment at hearing, by making a defendant, 331, 332,
co-plaintiff, should not be with devisee, 191.

3ts of, 698, 699, 147 1 — 1474 ; and see Costs.
creditor's action restrained after decree, on application of, 1632.
devisavit vel nan, right of to issue of, 557, 671.

debts, when party to suit to execute trusts of deed for payment of, 190.
grantor's, necessary party to information for charity, 216, 217.
injunction against, made perpetual, after establishment of will, 1708.
materna, ex parte, not entitled to discovery of title of claimant ex parte

paterna, 414.
mortgagee, of, when necessary party, 154 ; when not, 155, 174.
mortgagee, of, parties to foreclosure suit by, 179, 180.
pedigree of, need not be set out in bill by, 264.

personal representative necessary party to suit by, for widow to elect, 236.
purchaser, of, when necessary party to suit for specific performance, 240.
receiver, when not granted on application of, against devisees, 1759.
sequestration, revivor of, against, 662, 663.
will, not necessary party to suit to execute trusts of, 190, 191.

HEIRESS,

married woman, will not established on admission in sepaVate answer, of,
147. 556. «

1982

INDEX.

HEIRLOOMS,

receiver, when appointed of, 1764.

HOLIDAYS,

not reckoned in computation of time, when, 288, 289.

HONOUR (ATTESTATION OR PROTESTATION OF),
answer, when put in upon, 467.

costs, reading of, on question of, 531.

HOSPITAL (MASTER OF),
revivor of suit by, 18.

HOSTILITY,

personal, allegation of, when scandalous, 286.

HOUSE,

partition of, how effected, 705, 706.

HUSBAND,

accov iting party, of, generally necessary party, 209, n. (5).
answer, joint, of husband and wife, effect of, 147.

heading of, 458, 459.
answer, separate, of, when necessary, 141, 142 ; effect of, 148.

order for, how obtained, 141.

should be obtained before his answer filed, 141.
answer of wife, need not join in, 141.
assignment by, of wife's chattel real, effect of, 99, 100, 103.

when not capable of vesting during coverture, 103.
assignment of, of wife's cAose in action, effect of, 95, 97, 98.
' on her equity to a settlement, 98.

wife's concurrence in, unless under statute, immaterial, 98.
assignment by, of land in possession of wife, under judgment, lOO.

or under decree for payment of money, 100.
assignment of wife's mortgage for years, 100.

of her mortgage in fee, 100.

of term, assigned with his consent, in trust for her, lOl.

of her term, upon condition, 102.
attainder of, effect of, 70.

bankruptcy of, settlement by Court in case of, 81.
chattels real, of wife, his interest in, 90—103.
chose in action of wife, what a sufficient reduction into possession of, 92 — 98 ;

and »fe Reduction into Possession.
civil death of, effect of, 70.

co-defendant with wife, 88, 140 ; when not, 140, 141.
consent, wife's, to payment to him of her fund, when required, 77, 172 ; and

see Married Woman.
co-plaintiff with wife, when, 88 ; effect of joinder as, 87, 418.
death of, effect of, when defendant, no abatement, 150, 1597.

widow, taking new interest, not bound by former answer, 150.
death of, effect of, on joint suit, 92 ; revivor on, 92, 1597.

before execution of settlement, effect of, on survivorship, 85.
discovery against, wife not made defendant to obtain, 146, 147.
felony, charge of, wife not bound to answer so as to expose him to, 146.
guardian ad litem of wife, infant defendant, when appointed, 145, 146.
ill-treatment by, discovery of subsequent, not required in suit to establish

ante-nuptial agreement, 404, 405.
joint suit, when he may continue without adminibtering to wife, 92.
jurisdiction, out of the, when suit prosecuted against wife alone, 140.

service of the bill upon, 360.
misconduct of, effect of, on settlement, 81, 82.
jnortgage by husband and wife, resulting trust in, 100.
, ne exeat, granted against, at instance of wife, 1739, n. (l).
notice of decree, service upon, of, 342.

INDEX.

1983

ion of, 92—98 ;

I, 77, 172 ; ^nd

HUSBAiJD— continued.

personal representative of, generally necessary party, 209, 210.

pro confesso, proceedings to take bill, against, 375, 376.

rents reserved on under-lease of wife's term, when entitled to, 103.

satisfied term, attending wife's inheritance, does not go to him, loi .

separate estate, may sue wife for, 88.

service of the bill upon, when he and wife defendants, 352.

affidavit of service in such case, 352, n. (5).
settlement of wife's property against, 81 — 86.
special case, concurrence of, in, 1865.
suit by, against wife, when permitted, 140 ; when not, 140.

effect of, 140, n. (6).
transfer of wife's property by, when restrained, 1679, 1680.
wife's answer read against, when, 147.
wife, necessary party to a suit for her property, 71.
wife's suit, a necessary party to, 70 ; when not, 70.

HUSBAND AND WIFE,

answer of, effect of, heading of, 148, 458, 459.

pro confesso, bill taken, for want of, 375, 376.
costs of suits between, 1499.

one set allowed between, when, 456, 457, 1499, 1537.
death of, effect of, on joint suit, 92.
one person at law, 70.
paupers, may sue as, 34.
suit by, plea of, when bad to subsequent suit by her, 86.

IDIOT AND IDTOTCY. See Lunacy— Lunatic— Unsound or Weak
Mind (Person of).

IGNORANCE,

supplemental answer permitted in cases of, when, 474.

ILLEGAL, PURPOSE,

communications made with view of effecting, not privileged, 413.
allegations of the bill in such case, 413.

ILLEGITIMACY,

child, of, parent, when bound to give discovery as to, 399.
not presumed, when access possible, 536.
proof of, 536.

ILLEGITIMATE PERSON,

conspiracy to set up, discovery must be given as to, when,f399,
estate of, not represented by Attorney-General, 162.

IMBECILE PERSON,

answer of, without oath or signature, not received, 461 ; and see UNSOUND
OR Weak Mind (Person of).

IMMANURABLE,

seisin of things, how alleged, 295.

IMMATERIALITY,

objection on the ground of, to administration suit, by creditor, when assets
, admitted, 447.

when questions relate to defendant's private affairs, 447.
objection on account of, raised by answer, 445, 447 ; by demurrer, 404, 405.

IMMORALITY,

particular acts of, allegation of, when scandalous, 286.
when provable under general charge, 286.

IMPERTINENCE,

affidavit, in, 573.

answer, in heading of 459, n. (4),

1984

INDEX.

m
^

IMPERTINENCE— condnuet/.
bill, in, 285, 288.
in proceedings, remedy for, 288.
costs occasioned by, 287, 288, 573.

application for, when to be made, 287, 288, 573.
not a ground for demurrer, 287.

how taken advantage of, former practice, 287 ; present practice, 288, 289.
exceptions for, abolished, 288.

INCIDENTS,

certainty required in alleging, 301.

INCONSISTENT DEFENCES,

by answer, not allowed, 442 ; effect of setting up, 442.

INCONSISTENT TITLE,

discovery as to title of person claiming under not required, 413

persons claiming under titles inconsistent with plaintiff's should not be made

parties, 188.
effect of joinder of, as co-plaintiffs, 191.

devisee and hjir at law, 191, 192.

settlor and purchaser in suit to avoid settlement, 191, 192.
united in one plaintiff, may be, 192, n. (3).

INCONTINENCE,

acts of, provable under charge of lewdness, 538,

INCUMBERED ESTATE,

parties to suit for sale of, and execution of trusts of surplus, 173.

INCUMBRANCERS, and see Master's Office.

costs of, 1475 — 1486 ; and see Costs.

intermediate, not bound by foreclosure against mortgagor for, 232.

pendente lite, not necessary parties, unless for conveyance, 235.
made parties by supplemental proceedings, 235.

prior, not necessary parties to bill for foreclosure or sale of estate, 173, 234.

subsequent to plaintiff necessary parties to suit to establish charge or fore-
closure, 231, 232 ; whether legal or equitable, 234 ; if specific, 234.

surplus, not necessary party to suit for execution of trusts of, 173, 214, 215.
INCUMBRANCES, and see Master's Office.

interest on, how kept down, by receiver, 1787.

payment off, of, out of purchase-money under sale by Court, 1370.

INDICTMENT,

proceedings on, not restrained unless applicants plaintiffs in equity, 1 637.

INDORSEE,

of bill of exchange, when not necessary party, 166.

INDORSEMENT,

decree or order, for non-obedience to, 648.

bill, on copy for service of, 349.

Attorney-General, not necessary in case of, 350.
counsel's, of order of Court, not privileged, 406, 1857.

assistance, writ of, not necessary, where enforced by, 642, n. (2), 664.

corporation aggregate, in case of, 642.

mistake in, effect of, 642, n. (2).
firri facias, on writ of, 665,
ne exeat regno, on writ of, 1 743.
notice of the decree, on, 347.

pleadings and proceedings, on, general rule as to, 361, 362.
writs on, general rule as to, 361, 362.

INFANCY,

disability arising from, in case of plaintiff, 52 ; when it terminates, 53.
disability arising from, in case of defendant, 104, 125 ; and see Infant.

ctice, 288, 289.

13

Id not be made

INDEX.

1985

)

73.

, 232.

state, 173, 234.
charge or fore-
ific, 234.
173, 214, 215.

370-
[uity, 1637.

(2), 664.

^tes, S3-
Infant.

INFANT,

admissions cannot be made on behalf of, 133, 134.

admission of ancestor, binding on, 133, 134, 530.

adoption of suit by, effect of, 62, 63.

advancement of, proceedings for, 1400, 1401.

amendment of bill, leave for, when given at hearing, 58, 59, 331.

answer of, 132.

admission, cannot be read against infant as, 133, 529.
unless adopted on attaining t'venty-one, 531.

form of, 132 ; heading of, 459.

guardian, put in by, 132, 469 ; read, against whom, 531.

insufficiency, connot be except id to for, 132.

new, on attaining twenty-one, 132.

application for leave to put in, should be made without delay, 132.

consequences of putting in, 138.

oath or signature, how put in without, 469.

required should not be, 132.

sworn, how, 469.

voluntary, when to be put in, 132.
attainment of twenty-one, not an abatement, 62.
bill, service of copy on, how effected, 352.
birth of, supplemental order on, 1585, n. (4).
cause, showing, against decree, by infant, 135 — 137 ; and see Day to Show

Cause — Decrees and Orders.
Chambers, proceedings in, with respect to, 1384 — 1409.
r^^-ncery, jurisdiction of Court of, over, 1384.

whether infant must have property, 1386.
cross bill of, effect of dismissal of, 136.

day to show cause, when given, 58, 134 ; and see Day to Show Cause-
Decrees and Orders.
decree in his own suit binding on, 57, 58.
decree against, bound by, 129.

although no inquiry whether for his benefit, 129, 13a.

except in case of fraud, collusion, or error, 129, 130.
how decree impeached in such case, 129, 130, 136.

final order, when required in case of, 622.
defence of, conducted by guardian ad litem, 125, 348; although a married

woman, 145, 146 ; and see Guardian ad Litem (of Infant).
defendant, usually not described as infant, in bill| 125.
demurrer of, filing of, 425.

domiciled abroad, form of order for payment out, in case of, 1828.
tn ventresa mere, waste may be restrained at suit of, 53, 1652.
estate of, conversion of, from personal to real, when permitted, 1403.

how effected, 1404.
evidence against, defect in, supplied by inquiry, 543, 544.

party to suit, against co-executors, when, 206.
facts, all necessary, must be proved against, 133.
guardian, appointment and removal of, 1384 — 1394; and see Guardian of

Infant.
heir, waiver of issue devisavit vel non by, 671.
inheritance of, Court will not bind by discretionary act, 58.
inquiry whether suit is for his benefit, 56, 64.

dismissal of bill without, if suit clearly non-beneficial, $6.

next friend, not granted on application of, 57, 66, 257, 258.
except in another suit, 57.
inquiry which of several suits is most beneficial for infant, 55.

amendment under order of course, pending, irregular, 325.

least beneficial suit stayed, 55 ; but if merits equal, priority prevails, 55.

order for, how obtained, 56 ; made in all the suits, 56.
stay of proceedings, not of itself a, 56.
intruder on estate of, jurisdiction of Court over, 1401.

1986

INDEX.

St "
Sac

t-

jfei"

^M

. j'*je^

B: ^

j^'i

INFANT— con/tuueJ.

jurisdiction, out of, allowed to come in under decree, when, 119.

service of bill upon, 360.
latitude allowed in cases of, 59, 309.
legacy of, costs of suit for, 66, 1534.
lien of solicitor, in suit on behalf of, 65.

maintenance of, proceedings for, 1394 — 1400 ; and see MAINTENANCE,
management of property of, 1401 — 1403.
mairied woman, examination of, not taken, 76, 77.
mistake in form or conduct of suit, not bound by, 58.
motion on behalf of, how made, 63, 1613.
ne exeat, granted on affidavit of, 1 740.
new defence of, application for leave for infant to make, how made, 136.

consequence of making, 137.

discovery, bill of, may file, in aid of, 136.

majority, cannot be made until attainment of, 137.
next friend, required in suit of, 54.

and all applicatiors on behalf of, 54, n. (3),

bill without, dismissed with costs, to be paid by solicitor, 54.
leave to amend, when given, 54 ; and see Next Friend (of In fant),
notice of the decree, service of, upon, order necessary for, 342,

application, for directions as to, how made, and evidence, 343.

appointment of guardian ael litem, after, 348.

service, how effected, 346.
pauper, appeal, at instance of, suit on behalf of, 34, 59.
payment of fund of, to father, when directed, 1833.
petition on behalf of, 1625, 1626.
plaintiff, name of, when struck out as, and inserted as defendant, 57, 340,

341.
pro interesse suo, examination granted at instance of, 661.
proceedings on behalf of, may be instituted by anybody, 1386.
receiver appointed without suit on behalf of, 1392, 1763, 1768.
repudiation of suit, effect of, 62, 63 ; where a co-plaintiff, 62, 63.
respondent to petition, appointment of guardian ad litem for, 125, 1627 ; and

see Guardian ad Litem (of Infant).
sale of estate of, when not directed under ordinary jurisdiction, 131.

foreclosure, when directed instead, 131.

partition suits, in, 711, n. (3).
sanction of Court when required to institution of suit on behalf of, 257.
specific performance, cannot sue for, 54, 189.
submissions, improper, not bound by, 59.
suits against, 125 — 137; on behalf of, 52, 70.
ward of Court, how constituted, and jurisdiction over, 1385 — 1388, 1406 —

1408 ; and see Ward of Court.
will, execution of, when it must be proved against infant heir, 133.

INFANT CUSTODY ACTS, 1875— 1877. ^

application, how made under, 1875, 1876.

custody of mother. Act not applicable where children in, 1876, 1877.

next friend, not necessary on mother's application, 1875.

object of Act, 1876.

order, when and when not made, 1876,

pauper may apply under, 1876.

INFERENCES (LEGAL),

answer, after statement of, in, facts cannot be used to establish a different

defence, 441.
answered, need not be, 441, 448.
demurrer does not admit, 385.
pleaded, should not be, 303, 385.

len, 119.

Iaintenance.

how made, 136.

or, 54.

lEND (OF Infant).

". 342.
ice, 343.

defendant, 57, 340,

1386.

1768.
; 62, 63.
lor, 125, 1627 ; and

ction, 131.

>ehalf of, 257.

385—1388, 1406—
leir, 133.

1876, 1877.

itablish a different

INDEX. 1987

INFERIOR COUI^T, 1

office copy of record in, provable as exhibit at hearing, 561.

INi-ORMAL INSTRUMENT,

hcec verba, should generally be set out in, 296, 297.

INFORMATION,

abatement of, none on death of relator, 9,

amendment of, 336, 337 ; and see Amendment of Information.

charities, on behalf of, 4.

distinct charities, for, when multifarious, 282, 283.

heir of grantor, when necessary party to, 216, 217.
Crown, suit on behalf of, or of those vinder its protection, commenced by,

». 4. 253.

where rights of, not immediately concerned, 4.
filing of, 317,
general nature of, i, 2.

grantee from Crown of chose in action, on behalf of, 4.
idiots and lunatics, on behalf of, 5, 67.
motion in, on behalf of whom made, 1613.
nuisance, public, when filed in case of, 1693.
parens patrice, on behalf of Crown as, 4.
prosecution, not dismissible for want of, if no relator, 12.
relators in, 11 — 12 ; and see Relator.
signature of Attorney-General and counsel to, 317.

to amended, 336.
Solicitor-General, when defendant to, no.

INFORMATION (AT LAW),

proceedings on, not restrained, unless applicants plaintiffs in Equity, 1637.

INFORMATION AND BELIEF,

in answer, equivalent to admission, 530 ; secus, information only, 530.

INFORMATION AND BILL. ^

abatement of, 9, 10. , «

appropriate, when, 6, 7.

bill may be dismissed, and information retained, 7.
converted into information only, when, 6, 7.

INHABITANTS OF A PARISH.

one may sue on behalf of himself and others, when, 195, 196.

INHERITANCE,

infant's, Court will not bind, by a discretionary act, 58.

married woman's, not bound by joint answer of h^r and her husband, 147,

148.

or her or his separate answer, 148.

bill relating to, not taken pro confesso against her, 148.

resulting trust of satisfied term in, loi.
new trials of issue affecting, 681.
owner of, necessary party, if it is to be bound, 217.

jurisdiction drawn from law, when, 218.

suit to establish custom or modus, in case of, 218.
owfier of, when necessary party to lessee's suit, 168.

to establish modus, 168 ; or right of way, 169.
owner not necessary party when it is not to be bound, 218.
persons entitled in remainder or reversion up to first estate of, necessary

parties, 186, 220 ; unless question only between vendor and purchaser,

221.
subsequent remaindermen not necessary parties, 221.

unless nature of estate doubtful, or first tenant in tail lunatic, 221.

^

C: J

1988

INDEX.

INJUNCTION AND RESTRAINING ORDER, 1462— 1502, 1631— 16S9.
abatement of suit, effect of, on interlocutory injunction, 51, 1594, 1705. .

proceedings in case of, $1, 1594, l7^S
on perpetual injunction, 1709,

account of debts and liabilities, after certificate of, after order for, 1634.
accounts and inquiries, preliminary, not issued after order for, 1 634.
action at law, when granted to restrain, 1632 — 1648.
administration decree, to restrain creditor's action after, 1632 — 1635 > ^"^

see Creditors.
administration, order in summons suit, after, 735, 736, 1634.
agreements, against breach of, 1680 — 1686.
alienation of property, to restrain, 1677 ; pendente lite, 1679.

ex parte, usually granted, 1677.
amendment of bill, not a dissolution of, unless record altered, 337, 1623,
1702.

notice of motion for, waived by, 338, 1623, 1703.
ancient lights, obstruction of, when restrained by, 1664.
appeal from dismissal of bill for, staying proceedings pending, 1564.
application for, how made, 1695 > delay, should be made without, 1691.
ex parte, when made, 1693, l694'
facts must be fully stated on application, 1692, 1693,
motion for decree turned into, 151 1, 1620, 1699.
stage of cause at which made, 1691.
art, works of, against publication of, 1672.
author, breach of covenant by, when restrained, 1681,
award under Arbitration Acts, proceedings not restrained by, 1638.
Bankruptcy, Court of, against proceedings in, 1649.
banks of rivers, injury to, when restrained by, 1664.

breach of covenant to keep in repair, when restrained by, 1683,
bell, breach of covenant not to ring, when restrained, 1681.
bill making case for, and prayer for, usually necessary, 312, 1636.
breach of, 1709 — 1713 ; what amounts to, 1709.
acquiescence in, eflfect of, 1 7 10.
application for committal, how made, 171 1.
evidence in support, 1712.

notice of motion, form of, 1712 ; service of, 1712.
production of writ not necessary, 1712.

trial of question of fact, or issue, when directed on, 674, 1712.
committal, order for, how drawn up and enforced, 1 713.
when not ordered, 171 3.
irregular, when, 1 71 3.
« /ar/^ order for committal, 1711, 1712 ; service thereof, 1711.
none until notice of writ or order, 1711.
sufficient notice, what is, 1710, 1711.
actual service not necessary, 1701, 1710. ,
remedy for, 1 709.

against privileged persons, and corporations aggregate, 1713.
build, breach of covenant not to, when restrained, i68l.
commission or continuance of wrongful acts, to restrain, 1 636.
common, abolished, 1631, n. (2), 1648, n. (2).
Common Law Courts, against proceedings in, 1640, 1641.
contempt, to restrain action on irregular process of, 1636, 1728.
copyright, when granted in cases of, 1491, 1519 ; and 1668 — 1673.
covenant, when granted to restrain breach of, 1680 — 1684. '

criminal matters, not granted to restrain proceedings in, 1637.

unless plaintiff thereby seeking redress, 1637.
damages in addition or substitution for, 675.
assessment of, in cases of, 674.

undertaking, as to, when required on application for, 1694, 1 695 ; and
' see Undertaking as to Damages,
dateofoperationof, 1710.

r«

INDEX.

1989

631— 16S9.
94, 1705.

for, 1634.
1634.

2—1635 ; and

ed, 337. »623,

1564.
3ut, 1691.

1638.

[683.
536.

'12.

573-

\4, 1695 J and

INJUNCTION AND RESTRAINING OKDER—continueJ. '
decree, when granted after, 312, 313, 1632.

not granted before decree unless prayed for, 312, 1635.
decree, to restrain action against person acting under, 1636.
definition of, 1631 ; different sorts of, 1631.
demurrer, injunction not usually granted pending, 428, n. (5), 1699.

advance of demurrer, 428, n. (5), 1699.
discharge of, for irregularity, 1 71 3.

misstatement, when obtained on a, 1703.
discovery, when granted in cases of, 1640,
discovery, bill of, may pray injunction, 386, 387.

dismissal of bill for non-prosecution, not prevented by injunction, 501, 502.
dissolution of, 1702 — 1705.

abatement, motion for dissolution or revivor on, 51, 1594, 1704.
answer or further order, when granted till, 1702, 1704.
application for, how, when, and by whonl made, 1703.
answer treated as affidavit on, and may be contradicted, 1703.
costs of, if useless, 1705.
evidence on, 1 703.
hearing of, right to begin on, 1 704.
production of documents, pending, 1705.
demurrer, on allowance of, 1702.
discovery suit, when ordered in, 1704.
dismissal of bill on, 1702.

ex parte injunction, of, because facts not fully stated, 1692.
grounds for, 1704.

interpleader suits, service of notice in, 1703.
office copies of affidavits, because not in Court when moved, 1696.
order, on application for, 1 704.
election in cases of, 513, 1635.
evidence, on applications for, 1695, 1696.
affidavits, by whom made, 1696.

copies of, when to be furnished, 1698. ;

cross-examination on, how taken, 568, 1698.
form of, as to title, 1696.

opening of motion filed after, when admissible, 1617, 1698.
office copies must be in Court, 1696.
sworn after bill filed, must be, 271, 272, 569, 1696.
title of, 1699.
answer, treated as affidavit, and may be contradicted, 1695.

cross-examination on, when permitted, 1698.
discovery, in suits for, 1700.
injury, must prove facts of, 1696, 1697.
interpleader suits, in, 1695. ..
oral, how taken, 1698.

patent cases, on t-j; /ar/i? application in, 1669, 1696.
title, to be shown hy, 1696.
dramatic author, breach of covenant by, to restrain, 1681.
^;c /«r/'t?, when granted, 1692, 1693.

renewal of application, on notice, when directed, 1694.

form of notice, 1694.
undertaking as to damages, on, 1694, 1695 ; and ste Undertaking (as
TO Damages).
foreclosure decree, when issued after, though not prayed, 1632.
foreign Courts, against proceedings in, 1650; after decree in Chancery, 494.
forfeiture, to relieve against, 1686 — 1689; and J^^ Forfeiture.
hearing, continuing or granting at the, 1706 — 1709.
previous injunction, when granted at, without, 1707.

not on a mere prima facii case, 1708.
perpetual, when granted, though not prayed, 1708.

102

1990

INDEX.

INJUNCTION AND RESTRAINING ORDER— <ontwued.

indictment, or information at law, not issued against proceedings on, .unless

applicant plaintiff in equity, 1637.
interim order, now usually granted instead of 0x /or/^ injunction, 1694.

and see Interim Order.
interlocutory, 1691 — 1706.
awarded, against whom, 1701 ; in class suits, 1701.
costs of application for, 1705.
damages, security for, when, required on, 1700.
damages^ sufficient relief, not granted in doubtful case, where 1691.
decree, superseded by, unless expressly continued, 1706.
dismissed at hearing, bill may be, after interlocutory granted, 1 705.
effect and object of; i 89, 1691.
order for, form of, 1 700 ; declaration of rights in, 1 700.

discovery, in suit for, 1 700.
principles on which granted, 1689.

specific performance, not granted when Court would not decree, 1691.
interpleader, in cases of, 1688, 1695.
irregular, must be obeyed until discharged, 1 7 10, 171 3,
issue, when directed at hearing of application for, 674, 675, 1665.
judgment, when granted after, 1647.

not issued to relieve against, on grounds available at law, 1638.
lapse; against bishop taking advantage of, 1680.
legal rights, when granted for protection of, 1664.
legal title, to restrain setting up of, 1688, 1699.
not granted against purchaser for value without notice, 1 689.
perpetual at hearing niade, 1706.
legislature, not granted to restrain application to, 1 637.
letters, against publication of, 1671, 1672.
litigation, for protection of property pending, 253.
repeated, of the same matter, to restrain, 1689.
mandamus, not issued against proceedings by, unless applicant plaintif) in

equity, 1637.
mandatory, only granted at hearing, 1689, 1708.
object often effected by restrictive order, 1690,
manuscript treatises, against publication of, 1 67 1,
map, piracy of, to restrain, 1670.
marriage of ward of Court, to restrain, 1404, 1688.
minister of dissenting chapel, against appointment of, 1680.
mistake in law, not issued to relieve against, 1639.
motion, application for, made by, 1695.

motion for decree, when turned into, 1620, 1699.
notice of motion for, 1612, 1694, '^95-
amendment of bill, a waiver of, 338, 1623, 1699.
appearance, usually necessary after, 1695.
form of, 1612, 1694, 1695.
service of, 1613, 1695.

special leave, when required for, 1614, 1695.
not granted till bill filed, 1695.
nuisances against, 1661 — 1664; and j« Nuisance.
outstanding terms, to restrain setting up of, 1708.
parliamentary powers, to restrain excessive exercise of, 1676.
partnership, in cases of, 1688.

patents, in cases of, 1667^; perpetual, made, at hearing, 1707.
payment of dividends, against, 1679.

payment into Court, when granted on, terms of, 1700, 1808.
peace, bills of, perpetual, granted on, 1708.
penalty, to relieve against, 1686 — 1689, and see PENALTY,
perpetual, when granted, 1706, 1707.
abatement, not affected by, 1709.
case must not be doubtful, 1708.

;edings on, unless
ction, 1694.

here 1 691.
ited, 1705.

decree, 1691.

1665.
, 1638.

589.

INDEX.

1991

iplicant plaintifl in

INJUNCTION AND RESTRAINING ORDER— eoHitfiueJ.

definition of, 1631.

hearing, only made at, except by consent, 1709.

prayer for, 313. ^

personal ropresentative, against receipt of assets by, 1693.

ex parte, granted, 1693.
plea, not usually granted pending, 1699.

advance of plea, 1699.
prayer for, usually necessary, 290, 312, 313, 1631, 1636.

relief, now part of, 313.
presentation to a benefice, to restrain, 1680.
rrobate, to restrain proceedings in Court of, 1 649.
proceedings for same matter, to restrain, after decree, 515, 1636.
prohibition, not issued against proceedings by, unless applicant plaintiff.

in equity, 1637.
provisional definition of, 1631 ; continued, when, 1706.
production of documents, to restrain publication or improper use of infor-
mation obtained by, i860,
publication of judgment in breach of agreement, to restrain, 1683.
perprestures, to restrain, 1661, 1662.
receiver, to restrain proceedings against, 659, 660.

lo restrain disturbance of possession of, 1777, 1778.
repair, injunction not precluded by covenant to leave premises in, 1685.
rifle range, to restrain injurious use of, 1664.
scandal in bill, not granted in case of, 1699.
secrets, against disclosure of, 1677.
service of, how effected, 1702, .

corporation aggregate, on, 1702, n. (3).

minutes of order for, of, when sufficient, 1701.
sei^uestrators, to restrain proceedings against, 660, 661 .
ships, in cases of, 1680.

to restrain unauthorized employment of, 1680.
to restrain sailing of, 1680.

to restrain transfer of interest in, 1680. '

specific chattels, to restrain sale of, 1679.
streams, pollution of, when restrained by, 1664.
tenants of land, to restrain, breach of covenants by, 1683,1684.
timber, to restrain removal of felled, 1680.
title of book or periodical, to restrain piracy of, 1672.
trade, to restrain breach of covenant not to, 1682.
trade marks, in cases of, 1672, 1673.

made perpetual at hearing, 1707, 1708 ; and see Trade MARKS,
transfer of negotiable security, to restrain, 1677, 1693.

ex parte, usually granted, 1677, 1692.

forged endorsement, in case of, 1677.
transfer of stock, to restrain, 1678.
transfer of wife's property by husband, to restrain, 1 680.
trespass, in cases of, 1654,
trust property, to restrain sale of, 1679.

trusts, decree for performance of, perpetual injunction after, 1 709.
ultra vires, to restrain acts of corporation, which are, 1676.
wards of Court, to restrain marriage or removal of, 1393, 1404 ; and see

Ward of Court.
waste, against, 1652 — 1654 ; where equitable, 1659 — 1661.

perpetual, made, at hearing, 1707 ; and *« Waste.
will, after absolute decree to establish, perpetual injunction granted against

heir, 1708, 1709.
writ of, preparation and issue of, 1 702.

second not usually issued on making perpetual, 1709.
written bill, in cases of, 316, 350.

1992

INDEX.

I

INQUIRY,

appeal from order directing, after it has been made, 1 573.
class, as to, when directed, 177, 619 ; practice thereon, 177.
defective evidence, when directed, in case of, 543.
ground must be laid for, in pleadings, 270, 271.
heir, for, when directed in charity suits, 217.
next of kin, as to, when directed, 619.

need not be preliminary to taking accounts, 619.
numbering of, in decree or order, 1 627.
prima facte title made by plaintiff, when directed, in case of, 619.

INROLMENT. See Enrolment.

INSANITY

charge of, particular acts of madness may be proved under, 538.
husband of executrix, of, receiver, appointed, in case of, 1757.
presumption, in cases of, 536 ; lucid mterval, where allegation of, 537.

INSOLVENT,

executor, of, receiver appointed in case of, 1757, 1758.
situation of, ^s to after-acquired property, 50, 51.
principal or surety, not necessary party to suit for contribution, 226.
but plaintiff may elect to make him a party, 226, 227. •

And j« Assignees in Bankruptcy— Bankrupt — BANKRuncv.
INSPECTION.

documents, of, 1836 — 1863 ; and j« Production of Documeni .
patent cases, in, 1667, n. (3),

INSTITUTION, '

one of several proprietors or subscribers to, may sue on behalf of himself and
others, when, 196; not if dissolution sought, 196.

INSTRUMENT,

cancelled, bill for re-execution of, need be accompanied by affidavit, 314.
execution of, proof of, by attesting witness, when not necessary, 559.
informal, should generally be set out in /lac verba, 296,
lost bill, to obtain benefit of, must be accompanied by afifidavit, 313, 314.
secus, if suit merely for discovcy or delivery, 313, 314.
tie exeat, in cases of, 1733.
onus probaitdi, lies on party disputing, 535.
reference to, how made in bill, 298 ; effect of, 298, 299.
statement of, in bill, 297.
statutory, how stated, 298.
written, need not be stated to be, if not required at law, 297, 298;

INTERESSE SUO (EXAMINATION PRO),
sequestration, when granted in case of, 658 — 661.
dispeh'-2d with, when, 661.
infant, i^ranted at instance of, 661.
o'ltaiied, how and by whom, t^^o, 661.
pauper, granted at instance of, 34, 661.

INTEREST,

co-plaintiffs', of, need not all be equal, 284.
defendant's, bill must show, 266.

exception, if member or ofificer of corporation, 113, 246, 266, 304.
demurrer for want of, in defendant, 266, 392 ; in plaintilif, 260, 392.
disclaimer, for want of, 434.

distinct, bill against several persons having, when not multifarious, 278, 281.
persons having none, or several and distinct, should not be co-plaintiffs, 251 ;

objection, how taken formerly, 251, 252.
plaintiff's must be shown, 259 — 261 ; must be subsisting, 261,

minuteness or remoteness of, immaterial, if indefeasible, 262.
production of documents, what sufficient to entitle party to, 1850, 1853.
want of, in defendant, how taken advantage of by him, 249.

INDEX.

1993

lalf of himself and

lavit, 313. 3I4-

INTEREST (OF MONEY), and tee Mastkr's Office.

balance, on, not decreed under prayer for general relief, 307.
dower, not allowed on arrears of, 717.
incumbrances, on, how kept down by receiver, 1787.
receiver, when charged with, 1791.

INTERIM ORDER,

^jr/afir injunction, issued instead of, 1694 ; form of, 1694.
service of, how effected, 1 702.

undertaking as to damages, on, 1694, 1695 ; and see Undertaking (as tu
Damaobs).

INTERLOCUTORY APPLICATIONS, 1604— 1607.
affidavits on, search for, 577 ; time for filing, 577.

costs in the cause, when, 1466.

reservation of, form of, 1467.
definition of, 1604.
evidence upon, mode of taking, 568.
motion, by, 1604, 1608 — 1624 ; and see Motions.
order on, 1606.

different sorts of, 1606.

enforced, how, 1607

motion to dismiss bill for non-prosecution, not prevented by, 501, 502.

special, definition of, 1606.
perpetual injunction, not granted on, 1709.
petition by, 1605, 1624 — 1630 ; and see Petitions.

INTERMEDIATE ESTATES,

contingent, and taker unascertained, necessary parties in case of, 187.

when taker comes into esse pending suit, 188.
persons entitled to, prior to first vested estate of inheritance, necessary

parties, 186, 220, 222.
persons entitled to, when necessary parties to redemption suit, 215.

INTERPLEADER,

plaintiff's solicitor, by, when accepted, 315, n. (3).
answer read against co-defendant in suit for, 531, 532.
pro confesso, may be taken, 116.
costs, in cases of, 1503 ; and see CocTS.
injunction, in cases of, 1688, 1695.

notice to dissolve, service of, 1 703.
jurisdiction, defendants out of, against, 1 16.
security for costs, from defendant out of the jurisdiction, 22, 23.

INTERPRETERS,

professional confidence, rule as to, extends to, 41 1.

INTERROGATING PART,

of bill, 290 ; now abolished, 291.

INTERROGATORIES (FOR EXAMINATION OF WITNESSES), 582,

583- ^

INTRUDER,

estate of infant, on, jurisdiction of Court over, 1401.

INTRUSION,

information of, may be filed in Chancery, 4.
INVESTMENT IN PURCHASE OR ON MORTGAGE OF LAND,

1376-1379.
approval of proposed, how obtained, 1377.
conditional contract for, 1377.
payment of purchase or mortgage money, 1379.
title, holding, when sanctioned, 1378.
title, int^uiry into, on, 1377.
prosecution of, 1378.
preparation and approval of conveyance or mortgage deer^, 1379.

1994

INDEX.

IRREGULARITY,

affidavit of service, in., r^-d^r taken on, discharged for, 1615.

process grounded on, vitia.ed by, 576. ' • -

amendment of bill, in order for, 336. '

amendments and exceptions together, order to answer, when dischat^ed for,

329-
answer, taken off file for, 480.

attachment for non-obedience to decree, when set aside for, 649.
bill, in frame of, demurrer for, 41 7.
course, order of, discharge of, for, 1606.

application for, how, when, and to whom to be made, 1607.
de bene esse in depositions taken, or order to take, when taken advantage of,

594-
demurrer taken off the file for, 426.
disclaimer, in, 434, 435.

enrolment of decree or order, vacated for, when, 635.
injunction or restraining order, discharge of, for, 1713.
jurat, in, effect of, 469, 576.
ne exeat, discharge of, for, 1745.
new trial of issue on ground of, 680.

order, discharge of, for, should be obtained iX once, 626, 1686.
sale not invalidated by, unless in substance, 132.
stop order, discharge of, for, 1719.
sequestration, in, 650, 651.

ISSUE,

assizes or Nisi Prius, trial of, at, when directed, 668.

directed, when, 668 ; and see Fact (Question op).

further hearing after trial of, 697—699 ; and see Further Hearing.

trial of costs of, 694, 695, 699, 1472, 1503 ; and see Costs.

de bene esse, taken admission of, 584.

ISSUE (MATTERS IN),

amendment, not necessary to put in issue facts stated in answer, 323.

evidence, confined to matters in, 537.

general charge, effect of, in putting matters in issue, 538.

joinder in, filing replication, 522.

putting matter in, when leave to amond given at hearing, for purpose of, 331 ;
in infant's suit, 332.
JEW,

answer of, how taken, 461.

JOINDER OF SEVERAL DEFENCES,

how far permitted, 531, 532 ; and see Defence to Suit.

JOINT ACCOUNT,

husband and wife, of, payment to, no bar to survivorship, 93.

decree made against, although co-debtor out of the jurisdiction, 1 1 5.

JOINT DEMAND,

contribution, parties to suifS for, 226.

principal and surety must be, unless proved to be insolvent, 226.
one of several joint debtors, when suit for, nay be against, 226, 227.

co-executors, in case of, 227.

co-obligors, in case of numerous, 227.

joint breach of trust, in case of, 227.

joint factors, in case of, 227.

persons liable, numerous, where they are, 227.

JOINT INTERESTS,

with plaintiff, persons having, necessary parties 152, 153.

JOINT PROPRIETORS,

may sue on behalf of themselves and others, when, 195, 196.

n discharged for,

649.

1607.

in advantage of,

)86.

Hearing.

wer, 323.

r purpose of, 331 ;

iction, 115.

It, 226.
226, 227.

INDEX.

1995

JOINT-STOCK COMPANY, "

all members of, not necessary parties to suit against, 228.

principles on which Court Acts in such cases, 229. '
individual members may sue directors, 19, 20 ; as may public officer, 19, 20.
suit against, by, 19, 20.
unincorporated, assignor of shares in, when necessary party, 159.

JOINT-TENANTS,

death of, revivor, when not necessary on, 1597.
legacy, of, when necessary parties, 170.
mortgage, of, when necessary parties, 170.
parties, when necessary, 167.
receiver, when appointed between, 1761.

JOINTRESS,

demuner by, to bill for discovery of jointure deed, 404, n. (4)

JOURNIES,

receiver, when allowed costs of, 1782.

JUDGE,

meaning of word in decree or order, 628.

Superior Court, of, stature of, judicially noticed, 548.

JUDGE'S NOTES,

evidence, of what was proved at trial of question of fact, 693, 694.
new trial, application for, on motion for, 693, at law, 694.

JUDGMENT,

assignor of, when necessary party, 15S.

injunction, when granted after, 1647, 1648.

publication of, in breach of agreement, when restrained, 117.

relief against, not granted on grounds available at law, when, 1638.

stop order, in aid of, 17 16.

wife's, land held imder, assignable by husband, 99.

wife's, effect of, right by survivorship, on, 71, 94.

JUDGMENT CREDITORS. See Mortgage, Master's Office.

JUDICIAL NOTICE,

facts' of which it is taken, 386, 548.
averment of facts contrary to, not attended to, 14, IS» 386.

JUDICIAL SEPARATION,

wife who has obtained, sues and is sued without husband, 70, 140.

JURAT,

affidavit, to, 575, 576.

expression of time and place, in, 575.

place of, 575.

special, 575 ; where oath not administered in usual manner, 576
answer, to, 466, 468, 469.

cancellation of, effect of, 469.

expression of time and place in, 466.

foreigner, of, 468.

infant, of, 469.

lunatic or person'of unsound mind, of, 469.

marksman, of, 467.

married woman, of, 145, 146, 469, 470.

place of, 467.

several defendants, where, 467.

signature of official, to, 467.

special, when oath not administered in common form, 467, 468.
waiver of irregularity in, 469, 576,

1996

INDEX.

8 i

3

s.

1

JURISDICTION,

affidavit, before whom swom, out of the, 569.

answer, how taken out of the, 466.

averment of, in bill, 290 ; now part of stating part, 291.

bankrupt cannot sue for property out of the, 49.

demurrer to, grounds of, 388 — 403 ; and see Demurrer.

documents out of, production of, ordered notwithstanding, 452, 1849.

evidence, how taken out of the. See Examination (of Witnesses

Commission for).
objection to, how taken, 391.

stage of cause at which it should be taken, 391.
service out of ; see Service.

JURISDICTION (PERSON OUT OF),

absence of, must be proved at hearing, Il8.

course, where proof defective, 118, 542, 543.
decree, when allowed to come in after, 1 18.

order for leave to come in, how obtained, 119 ; in case of infants, 119.
decree, coming within jurisdiction, after, when leave to serve bill on, 118.
defendant, named as, and fact stated, 118.
demurrer, for want of equity, by, 388.

husband out of, suit prosecuted against wife alone when, 141.
incidentally interested, not necessary party, 115.
infant, defendant, appointment of guardian for, 128.
interpleader, against, 116.
joint debtor, when not necessary party, 115.
jointly interested with plaintiff, when cause proceeded with in absence

of, 178, 179.
married woman, examination of, how taken, 75.
ne exeat, not granted at instance of, 1 738.
party, not considered a, till served, 119.
party, necessary, if interest principally affected, 117.

defect arising from absence of, cured by appearance at hearing, 118.
receiver, when granted against, 1752; executor, in case of, 1756.
security for costs, when required from, 20, 90, gi.

conduct of cause, when he has obtained, 22, 23.

cross bill, in case of, 22, 23.

interpleader suit in, 23.
^ petitions, in case of, 1625.

revivor by, 22, 23, 1590 ; and see Costs (Security for).
suits against, 115 — 120 ; by, 20 — 32.

JURY,

default of, new trial at law on ground of, 68$.
discharge of, improper, new trial on ground of, at law, 685.
influencing, improperly, new trial at law on ground of, 689.
interested, new trial at law on ground of, 685.
misconduct of, new trial at law on ground of, 685, 688.

JUST ALLOWANCES. See Master's office.

JUST EXCEPTIONS,

exhibits, order for proof of, at hearing, made, saving, 563. ^

KIN (NEXT OF). See Next of Kin.

LACHES,

interlocutory injunction, effect of, on application for, 1691.
on motion to dissolve, 1 764.

LAND,

agreement relating to, must be alleged to be written, 297.

but allegation of signature not necessary, 297.
decree for, not made under prayer for annuity, 304.
new trial of issue, when matter relates to, 681 .

INDEX.

1997

1, 1849.

"NESSKS

nrants, 119.
bill on, 118.

absence

ing, 118.
756-

LA ND — eontinueii.

one of several owners of, nuy sue for self and others for modus, when,

«95. 196-
parties to suits for, 219.
sequestration, from what time land liable under, 658.

LANDLORD,

forfeiture of lease, when restrained from enforcing, 1688.
rights of, how affected by appointment of receiver, 1779.

LAPSE,

bishop, when restrained from taking advantage of, 1680.

LAW,

bill, reading of, at, by defendant, 529.

demurrer that Court of, is proper tribunal, 389 : and see Demurrer.
depositions in Chancery not admitted at, unless witness dead, 552.
in/erences of, not to be pleaded, 303, 385 ; and see Inferences (Legal).
married woman, rules of, as to suits by, 70,

followed in Courts of Equity, 71 ; but no distinction made between
personal property accrued before and after marriage, ^l.
parties to suits, where jurisdiction withdrawn from, 169.
policy of, admissions contrary to, not permitted, 534.
proceedings in Chancery, proof of at, in civil and criminal cases, 553.
questions of, how decided by Court of Chancery, 612, 613, 668.

with assistance of Common Law Judge, if necessary, 613. ,
secondary evidence of documents, when admitted at, 558.
will of real estate, how proved at, 555.

LEASES,

assignment of, without licence, waiver of forfeiture necessary in suit for

discovery of, 311, 312.
bill to rescind several by same lessors, multifarious, 276,
receiver, sanction of Court required to, 1785 ; how obtained, 1785.
sanction of Court to proposed, how obtained, 1381, 1382.

conditional contract, 138 1.

evidence in support of application, 1381.

settlement of, 1381.

LEASEHOLDS.

sequestration, not sold under, 655.

LEAVE TO ATTEND PROCEEDINGS. See Proceedings.

LEGACIES,

double, onus probandi, in cases of, 536, n. (3).

forfeiture of, on marriage without consent, discovery as to, need not be given,

402.
lapsed, costs of administration suit, not thrown upon, 1534-
real estate, charged on, legatees necessary parties to suit to raise, X83, 184.

cost of suit to raise, when estate insufficient, 1529, ISSO-
revoked, costs of administration suit not thrown on, 1534.
specific, personal representative not necessary party to suit for, after assent,

ib5 ; not liable to costs of administration suit, 1533.

LEGACIES AND ANNUITIES. See Master's Office.

LEGAL ESTATE.

attornment to receiver, effect of on, 1777.

persons having, necessary parties, 153 ; as trustees, 164.

redemption suit, in, where mortgage assigned by mortgagee, 215.
receiver, when appointed against, 1754 — 1759 ; and see Receiver.

1998

INDEX.

LEGAL TITLE,

action formerly directed to establish, when, 669.

Chancery, Court of, determined by, 668, 1668,

dispute relating to, receiver not appointed in case of, 1759.

unless under special circumstances, 1 759.
as when property cannot be let, 1 760.
injunction to protect, principle on which granted, 1664, 1666.

application must be made without delay, 1665
injunction to restrain, setting up of, when granted, 1688, 1689.

not against purchaser for value without notice, 1689.

perpetual, made at hearing, 1706.
receiver not appointed on application of person having, 1 759.

LEGATEE' See Master's Office.

conduct of decree given to, before creditor, in concurrent suits, 493*
creditors action restrained after administration decree, on application of

1633.
costs of, 1531, 1532, 1537 ; and tee Costs.

evidence in former suit against executor may be read in suit of, 550.
executor who has assented not necessary party to suit for legacy by, 160, 16 1
party, not necessary to suit against trustee for payment of legacies, 2)4.

or for execution of trusts of surplus, 214.
payment out to legatee of person to whose account fund stands, not ordered

in absence of personal representative, 1825.
pecuniary or residuary, unnecessary party to suit to charge or recover

personal estate, 210 ; except in cases of ademption, 223, n (4)
real estate, if legacies charged on, when necessary party, 183, 184.

administration decree, at instance of, without others, 178, 183, 342.
residuary administration decree at instance of, without serving others,

176, 183, 195, 342.
specific, of wife's paraphernalia, when necessary party to bill relating to,

211.
suit on behalf of himself and others, when permitted, 194, 195.
suit by, against debtor to estate, when permitted, 160, 205, 268, 269.

LEGISLATURE,

application to, not restrained, 1637 ; exceptions, 1637.

LEGITIMACY,

presumption of law in cases of, 536.

LENGTH OF TIME,
demurrer for, 395.

LESSEE,

inheritance, owner of, when necessary party to suit by, 168.

to establish modus, 168 ; right of way, 169.
lease made without prejudice to right of, 219.
lessor not necessary party to suit by lessee for tithes, when, 169.
original, necessary party to suit by lessor against assignee of lease, 1 63.
partition, when necessary party to suit for, 219.
party, generally not necessary party, 168, 219,

but may be to bill to restrain ejectment brought against him, 168.
tenant in common of, necessary party to partition suit, when, 167.

necessary parties to suit for partition by, 168.
title of, statement of, in bill for tithes, 265.
undivided share, of, costs of, in partition suit, 711, 712.

LESSOR,

general right, necessary party in suit to establish, by lessee, 168.
lessee, when necessary party to suit against assignee by lessor, 165.
party, when not a necessary, to lessee's suit for tithes, 1 69.
parol, of tithes, when necessary party, 159.

INDEX.

W99-

bill relating to,

'.ESSOR AND LESSEE, '

plaintiffs title, in suits between, how stated, 265, 266. • •

LETTERS,

agreement contained in statement of, 297.

discovery or production, exemption from, 404 — 415, 1851—1858.

evidence, when admissible as, although not pleaded, 540.

exhibits, provable as, at hearing, 561.

publication of, restrained, when, 1671, 1672.

thirty years old, prove themselves, 554.

LEWDNESS,

charge of, particular acts of incontinence provable under, 538.

LIABILITIES,

distinct, bill against persons under, when not multifarious, 278.

LIABILITY,

disclaimer, improper when defendant is under, 434, 435.
defendant's, to plaintiff, must be shown, 266.
joint persons, under, to plaintiff, when necessary parties, 225.
joint and several, persons under, to plaintiff, when necessary parties,
222, 225. .

LIBEL,

discovery of facts tending to establish, to be given, when, 401.

LIBERTY TO APPLY,

reservation of, 621 ; effect of, 621.
application, how made under, 621, 622.

LICENSE,

to carry on one trade, extent of, 1685.

LIEN,

commissioners of partition have none on commission, 712.

dismissed defendants, have none on plaintiff's fund, 1 507.
purchaser's, on purchase-money, in case of sale by Court, 1370. ■
specific, person having, when party to bill relating to personal estate, 211.

LIFE INTEREST,

purchaser of, when liable to pay interest, 1355.
wife's right to a settlement attaches to, 72, 83.

except against husband's particular assignee for value, 83.
wife entitled to arrears of, not received by husband, 83.

LIFE (TENANT FOR),
costs of, how raised', 1538.

leaseholds, of, bound to renew, receiver, when appointed against, i759«
partition, when remainderman not necessary party to suit for, by, 168.
successive, form of order for payment of interest to, 1830.
waste by, restrained, when, 1652. ,

LIGHTS (ANCIENT),

obstruction of, when restrained, 1664. ^

LIMITATIONS, ;

executory, persons claiming under, when necessary parties, 187.

over, discovery must be given where forfeiture has the effect of, 403, 404..

unless the disqualification statutory, 403.
persons claiming under, when necessary parties, 184, 220.

LIMITATIONS (STATUTES OF),
dower, in suit for arrears of, 717.
mortgages, in case of. See Mortgage.
answer, insisting on benefit of, by, 443, 444.
demurrer, on the ground of, 395.
dower, when, to suit to recover arrears of, 717.

'I

2000

INDEX.

£.
^

X .

LIQUIDATED DAMAGES,

equitable relief, when refused in case of, 1686.

LIS PENDENS,

amended bill, when it operates as, 319.

registry of, statutory provisions as to, and how effected, 318. ,, ^

satisfaction of, how enterevl, 318.

special case, registry of, as, 1868. , .,

LITIGATION,

costs of, a just allowance, when, 1544.
foreign Court, in, appointment of receiver pending, 1 761.
injunction and receiver granted, pending, although misjoinder, 253.
Probate (Court of), in, appointment of receiver pending, 1761.
repeated, of the same pomt restrained, 1689.

LIVKS,

opening biddings in sales of property held on, 1156.

LONG VACATION,

commencement and termination of, 327.

LOSS OF INSTRUMENT,

equitable relief in case of, 313, 314 ; and su Instrument.

LOT,

shares, when drawn by, in case of partition, 706. .

LUCID INTERVAL,

onus probandi, rests on party alleging, 537.

LUNACV,

defendant, oi, pendente lite, supplemental order on, 1585, 1586.
demurrer, on the ground of plaintiff's, 67.

disability arising in case of plaintiff 's, 53, 67; of defendant's, 104, 138.
plaintiff, oi, pendente lite, supplemental order on, 1586.
plea of plaintiffs, 67.

transfer of wife's fund to credit of husband's, a bar to her right by survivor-
ship, 93.

LUNATIC,

answer of, put in by committee or guardian, 138, 469.

heading, of, 459 ; jurat to, 459.

read against him, whether it can be, 139, 531.
Attorney-General, information by, on behalf of, 5, 67.
committee, sues by, 5, 67.

necessary party to suit against, 138, 204.
or on behalf of, 68 ; and see Committee (of Idiot or Lunatic).
co-plaintiff with Attorney-General or committee, named as, 5, 67, 167.

unless an idiot, 67. .

defence conducted by committee, 138.

unless committee is plaintiff, petitioner, or adversely interested, 138 ; and
see Guardian ad Litem (of Person of Unsound or Weak Mind).
demurrer on the ground that plaintiff is, 67.
demurrer of, filing of, when committee adversely interested, 425.
mortgagee, costs of, 1478, 1479.

ne exeat, issued at instance of, on affidavit of committee, 1739, I74i.
plea on the ground that plaintiff is, 67.
purchaser, undtr sale by Court, discharge of, 1373.
relator, cannot be a, 9.
setting aside contracts by, 68.
special case, concurrence of, in, 1865.
suit by, to avoid his own act, when permitted, 5, 67.
suits on behalf of, 67-70.

LUNATIC (NOT SO FOUND BY INQUISITION). See Unsound or
Weak Mind (Person of).

p

253-

04, 138.
by survivor-

JNATIC).

57, 167.

ed, 138 ; and
^EAK Mind).

[741.

INDEX.

2001

Jnsound or

MADNESS,

particular acts of, provable under charge of insanity, 538.

MAINTENANCE,

demurrer because discovery will subject defendant to penalties of, 398.
infant, of, proceedings for, 1394 — 1400.

application for, how made, 1398 ; when necessary, 1394, 1395.

capital not usually allowed out of, 1396.

expenditure of, guardian not bound to account for, 1400.

father's lifetime, not usually ordered in, 1395 ; exceptions, 1 395.

fund in Court, out of, application for, how made, 1394.

increase of, application for, how made, 1398.

inquiry as to, when directed, 1399.

mother's ability, allowed without reference to, 1398.

payment of, where infant and guardian abroad, 1399.

power for, usually inserted in settlements, 1394.

suit, ordered without, when, 1394.
married woman, her right to, out of her own property, 81 — 87.

advances for, by stranger, repaid, 82 ; and see Settlement (Equity to).
unsound mind, of person of, allowance for, when and how ordered, 1399.

MALA FIDES,

enrolment of decree or order vacated for, when, 635.

MALICE,

general, allegation of, when scandalous, 286. ' ' .

MANAGEMENT (OF PROPERTY),

Chambers, proceedings at, for, 1380 — 1381.
infant, of proceedings for, 1401 — 1403.

MANAGER,

appointed, when and how, 1766, n. (o), 1799.

collieries and mines, in case of, 1 761 — 1763, 1780, 1800.

partnership, in cases of, 1800.
commission, when entitled to, 1801.
death of, provision for, 1801.
priority, has none over mortgagee, when, 1801.
security, when dispensed with, 1800.

MANDAMUS,

proceedings on, not restrained unless applicants plaintiffs in Equity, 1637.

MANURABLE, ...

seisin of things, how alleged, 295.

MANUSCRIPT,

treatises, publication of, restrained, when, 1671.

MAP, .. ^ • ,;, ■

piracy of, restrained, 1670.

MARITIME LAW,

judicially noticed, 386. ' /

MARKET, ' ,;,

tolls, receiver of, appointed, 1 764. ' , ' , .

MARKSMAN, >• . • . '

affidavit of, how taken, 575 ; jurat to, 575.
answer of, how taken, 466 ; jurat to, 466—467, '•

MARRIAGE,

concealed with husband's consent, wife's answer read against him, 147,

defendant, y^wtf j<7/(f, of, no abatement, 150.

disputed, service of bill, in case of, 352, n. (5), 360.

forfeiture on, without consent, discovery not compelled, 145, 146, 402-

1*^1.

2002

INDEX.

■ 5 " :„ y

r

MARRIAGE— contintuJ.

euardian,/w^j<>i^, of, determination of office, 1391. ^

law, effect of, on neglect to sue at, 70.

order for payment, after, effect of, 78:

perpetuation of testimony of, bill for, does not lie at instance of tenant in

tail and his children, 261 ; or of eldest son of heir in tail of a dignity 261.
plaintiff, feme sole, of, an abatement, 91, 1580, 1581.
revivor on, who entitled to obtain, 1585.
motion for, or dismissal of bill, on, 511.
order of revivor, when not necessary, 91, 92.
want of, effect of, 90, 91.
second, discovery as to, where it has effect of limitation over, 402.
ward of Court, of, proceedings on, 1404 — 1409.
consent of Court necessary to, 1404.
application for consent, how made, 1406 ; evidence in support, 1406.
adjournment to Chambers, of, 1406 ; proceedings thereon, 1406,
1407.
payment or transfer of fund to trustees, 1407.
consent of Court, without, a contempt, 1405 ; proceedings thereon, 1405.

discharge of husband, 1406.
injunction to restrain, when and how granted, 1404, 1688.
evidence on application, 1404.

MARRIED WOMAN,

acknowledged deed, payment out of Court to, without, 79, 1832.

address of, if plaintiff, usually stated in bill, 293.

advances by stranger for maintenance to, when repaid, 82.

annuity of, not bound by husband's assignment or release, 99.

answer, admissions in how far binding, 147.
infant, put in by guardian where she is, 147, 469, 470.
not binding, when she takes a new interest, 150.
proceedings in default of, 141, 142, 143.
read against husband, when, 147.
title of, when marriage after bill filed, 458.

answer, separate, of, 140, 141, 145, 146, 147, 469, 470.
admissions in, how far binding, 147.
jurat to, 145,

order necessary for, unless to husband's bill, 145.
or accepted by plaintiff, 145.
when plaintiff may obtain order for, 142, 143.
sworn and filed, how, 145, 146, 469, 470.
time for, 145, 146, 469, 470.

appeal of, is by next friend, 150.

appointees under will of, when necessary parties, 184.
when some allowed to sue for all, 184, 195, 196.

award giving her fund to husband, effect of, 94.

bill, service of, when authorised, 352.

chattels real of, her right by survivorship to, and effect of husband's assign-
ment on, 103 — 199 ; and see Survivorship {Right by).

cAose in action of, right by survivorship to, and effect of husband's assign-
ment on, 92, 98 ; and see REDUCTION into Possession— Survivor-
ship (Right by).

consent of, to payment to husband required, 72, 73, 77 ; effect of giving, 76 — 77.
foreign domicile, when consent not taken in case of, 77.
refusal, effect of, 80.
settlement, nature of, in case of, 81, 86.
order, when made by, 80.
revocation of, 77.
separate estate, not required in case of, 79.

unless payable to husband, 79.
separate receipt, required where fund to be paid to her, 78. ,

taken, how, 73 — 75 ; and see Examination (of Married Woman).

death of, in joint suit, effect of, 91.

f tenant in
a dignity 26 1.

402.

ipport, 14x36.
eon, 1406,

thereon, 1405.

J32.

INDEX.

2003

md's assign-

jnd's assign-
iURVIVOR-

yriag, 76—77-

^OMAN).

MARRIED VfOMAN— continued.

death of, abatement on, where defendant, 151.

death of, before settlement executed, effect upon survivorship, 8$.

debt due to, effect of proof in bankruptcy by husband for, 94.

decree, no personal, made against, 148.

decree or order for payment to husband in her right, effec of, 92, 94.

defence, when and how she may obtain order for separate, 142, 143.

defendant, not made a, for purpose of discovery only, 249.

or for discovery against her husband, 146.
demurrer, separate, of, 425 ; order for, necessary, when, 425.
deposit of her property in Court by husband, effect of, 93.
equity to settlement of, 72 — 86 ; and see Settlement (Equity to).
felony, need not answer so as to expose a husband to charge of, 146, 398.
/erne sole, when permitted to sue as, 71.

statement of fact in bill necessary, 293.
/erne sole, suit instituted by, as, stayed, 91, n. (5).
foreclosure decree binding on, 149.

forfeiture, need not answer so as to expose herself to, 146.
fund of, formerly carried to separate account.

present practice, 733

Ufustee may pay to husband before suit, 81 ; secus, after suit, 81.
heiress, will not established on admission of, 148, 556.
husband, defendant to suit against her, 88, 140; exceptions, 140, 141.
husband, joinder of, as co-plaintiff, 88 ; effect of joinder, 89,
husband, when she may sue at law without, 70.
hufsband, when she may be sued by, 140.
in ant, defends by guardian, 128, 14S, 146 ; and see GUARDIAN AD Litem

(of Infant).
inheritance of, not bound by admissions in her separate answer, 147.
or in her joint answer with her husband, 147.
or in husband's separate answer, 147.

bill relating to, not taken pro confesso against her, 148.

resulting trust of satisfied term created out of, loi.
interest of, in chattel real, incapable of vesting during coverture, not

assignable by husband, 103.
judgment of, effect of husband's assignment of, loo.
judgment in action fey: her property, effect of, 95.
land held by, under decree, until payment, effect of husband's assignment of

100.
legacy of, effect of appropriation of fund to meet, 93.
life interest, entitled to arrears, if not received by husband, 84.
mortgage in fee, effect of husband's assignment or bankruptcy, 190.
mortgage for years, effect of husband's assignment of, 100.
mortgage by her and husband, resulting tmst in, too.
motions on behalf of, how made, 86, 87, 1613.
«^ Ar^a^ granted at instance of, against husband, 1739, n. (i).
M^ <x£a/ not granted against, if executrix or administratrix, 141, 1738.
new defence, when entitled to make, 150.

next friend, sues by, 86 — 91 ; and see Next Friend of Married Woman.
notice of decree, service upon, of, 342.
partition suit, costs of, 711, n. (4).
party to suit for her own property, must be, 71, 72.
pauper, appeal by, 34, 35, 89, 1573.

suit by, without next friend, 34, 35, 89.
payment into Court of her fund to credit of joint cause, eiTect of, 93 ; of joint

account, 93, 18 18, n. (2).
payment to her and husband, effect of decree or order for, 95.
payment to trustees for her, of her fund, effect of, 93, 94.
payment out to, as personal representative, form of order for, 1831. ■
personal estate of, bound by admissions in her joint or separate answer, 147,
petition on behalf of, 1625.

2004

INDEX.

Pwc

r;

;•',
*

MARRIED VfOlJlAH— continued.

pro eon/esso, when hill may be taken against, 375.
process against, not issued without leave of Court, 155, 353.
promissory note of, effect of part payment to husband, 94.
release by husband of her those in action, effect of, 98.
reversion of, assignment of under statute, 96, 99.

husband's assignment, not bound by, 96.
though prior estate previously assigned to her, 96,
reversionary chose in action, form of stop order on, 1 718.
reversionary fund in Court not paid out to, on obtaining assignments of pre-
vious interests, 79.
sale under decree, bound by, 1 50.

satisfied attendant term of, not bound by husband's assignment, loi.
Scotch law as to her chose in action, 103.
separate estate of, bound by joint or separate answer, 147.
separate estate of, how charged, 148, I49.

discovery, as to, when bound to give, 146.

leave given to apply for payment of costs out of, when, 149.

plea of previous suit by husband and wife bad to suit by her alone, 86, 87.

suit against husband in respect of, 88.
special case, concurrence of, \n, 1865. ^^ .

suits against, 140 — 151; by, 70 — 103.

suit by next friend on her behalf, without her consent, dismissal of, 88.
suit, institution of, by, subjects her to liabilities oi feme sole, 91.
suit, when prosecuted against, alone, though husband co-defendant, when,

140.
survivorship, right by, 92 — 103. See Survivorship (Right by).
term of, effect of husband's assignment upon condition, of, 102.
transfer of her fund to credit of husband's lunacy, effect of, 93.
transfer of property of, by husband, restrained, when, 1680.
trust term of, created with consent of husband, not assignable by him, 101.
under lease by husband of her term, effect of, 102.

when entitled to rent reserved by, 102.
witness, tender of expenses to, 579. ' '

MARSHALLING OF ASSETS,
parties to suits for, 195.

MASTERS OFFICE,

ABSTRACTS OF TITLE, PROCEEDINGS ON, 1165.
order 390, as to abstract of title, 1165. .
Master may now enquire into title' under this order without any order of

of court, 1x65. ' - I

what is an '■ abstract " of title.

purchaser has a right to call for an abstract at vendor's expense, 1 166.
form of an abstract, 11 66, 1167.
when abstract should commence, 1168.
vendor may be compelled to bring into Master's office all documents in

his possession, 1 168.
marriage of vendor to be stated, 11 68, •■ •

legal and equitable title should be deduced, 1168. , '

title deeds, possession of should be shewn, 1168.

FREEHOLD PROPERTY, ABSTRACTS OF TITLE TO, II69.

deeds, as to abstracting, 1 169 — 1183. '

date and parties, 1169. ' ' : ■ ■ 'r

recitals, 1169. '. ,• . , " ' •

testatum, 1 170. . • ' ., •' , ■ .,

consideration, I170, Ii7*» ." . ' *

granting part, 1172, 1173. "' v..v,, •_'•'- -. • • • ■

parcels, 1173. ,..— .^;- "^ -"''•' ^ - .

habendum, I174. ' ' '•' ', ■■■ ••■

reddendum, 1174. •• • •. • " ' •

1^3 .

gnments of pre-
nt, loi.

49.

er alone, 86, 87.

ssal of, 88.
etidant, wbeii,

T BY).

[02.
93.

le by him, lOi.

INDEX.

200.S

jut any order of
snse, 1 166.
documents in

MASTER'S OFFICE -continurt/.

ABSTRACTS OF TITLE TO FREEHOLD PROPERTY— ««A«Mrt/.

declaration of uses, and the person in whose favor it is made, 11 75.

declaration of trusts, 1176.

conditions and provisoes, 1 177.

powers, II77-

covenants, 11 78.

execution, 1179, 1180, 1181, 1182.

receipt, 1182.

tenants in fee, titles under, 1229, 1230.

tenants in tail, 1230, 1231, 1232, 1233.

tenants for life, 1233, 1235.

tenants pur autre vie, 1235 — 1237.

remaindermen and reversioners, 1238, 1239.

cross remainders, 1239.
ABSTRACTING WILLS, AS TO, II83 — II85.

revocation, II 84.

attestation, 11 84.

codicils, 1 1 84.

probat >, If 85.
ABSTRACTING, AS TO MISCELLANEOUS DOCUMENTS, 1185 — II87.

letters of administration, I185,

Acts of Parliament, private, 1 185.

judgments, 11 86.

decrees, II 86.

contracts for sale, 1187.

ABSTRACTS OF TITLE TO PROPERTY, NOT FREEHOLD, 1187.

leaseholds, 1187.

personalty, 1187.

professional duties connected witA abstracts of title, 1 187 — 1 192.

vendor's solicitor, duty of, 1 187, 1 188, I189, I190.

purchaser's solicitor, duty of, 1 191, I192.

mortgages, vendor's liens, 1 193— II 94.

crown debts, 1 195, I196.

executions, 1197. >

taxes, H98.

special improvements^. 1199 — 1202.

mutual insurance companies, 1202 — 1 203.

dorver, 1204 — 1206.

curtesy, tenancy by the, l2o6.

legacies, 1206 — 12 10.

counsel, duty of, 1210— 1218.

title, general nature of, which must be produced, 1218 — T224.

commencement of abstract, 1224 — 1229,
LBASEHOLDS AND CHATTELS REAL, I24O — 1253.

terms for years in gross, 1 246.

attendant terms, 1248.

tenants from year to year, 1250, 125 1.

ABSTRACTS, EVIDENCE BY WHICH, SHOULD BK SUPPORTED, 1251.

ordinary contents of an abstract, the evidence of, 1253.
deeds, 1253, 1254,
wills, 1255.

letters of administration, 1255 — 1265.
registration, 1265 — 1279.
acts of Parliament, 1279.
records and proceedings in Chancery, 1 280.
decrees, 1281.

duty of purchaser's solicitor as to, 1281.

how far a purchaser will be protected by a decree obtained in an imper-
fect suit, 1 28 1.
103

2006

INDEX.

ipportioninent, or convey-
. or lunatic, 1284.

MASTER'S OFFI CV.—conlinued.

ABSTRACTS, EVIIiKNCK BY WHICH SHOULD BK SUPI'ORTKD— fO«/lWtt«(/.
mere irregularities in decree, not sufficient grounds for impeaching a

sale, 1 281.
a stranger purchasing not affected by proceedings in suit, how far, 1282.
in case of fraud, 1282.

same rule applies, when title derived under decree, and final order of fore-
closure, 1282, 1283.
decree of foreclosure against an infant, should give him a day to shew

cause after attaining twenty-one, 1284.
decree not absolute until notice of it is served upon infant, after twenty-one,

1284.
in suits, for partition, or sale, decree effecti

ing of the interest of a married woman, .
vesting orders, 1285— 1289.
authority of Court, to make, 1285.
effect ol, 1285.
doubtful, if Court, can make a valid vesting order transferring estate tjl a

married woman, 1285.
as to lunatics, and infants, 1285, 1286.
joint owners upon trust, 1285, 1286.
where owners arc uncertain, 1286.
trustee dead, 1286.

lands subject to contingent right, 1286.
where mortgagee has died out of possession, 1286.
heir or devisee of such mortgagee, 1287.

where uncertain which of several devisees was the survivor, 1287.
where mortgagee has died intestate, 1287.
in these cases, instead of a vesting order, the Court may appoint a person

to convey, 1287.
exemplification, next in authenticity to thos( 'nder the great seal, 1287.
judgments and sentences, conclusive evider 288.
sentence of foreign Court, conclusive evidt 288.

book of the Court of Chancery, sufficie... aence of decree, without

decree being drawn up in form, 1288.
how far bill in Chancery evidence, 1288.
answers, 1288.

office copies, bill, 1288, 1289.
depositions, 1289.

when decree may be given in evidence, 1289.
hye-laws, 1289 — 1291.

wiiat bye-laws may be passed under Municipal acts, 1289, 1290.
how, notice of, to be given, 1289, 1290.
what, county council, may pass, 1290.
township councils, may pass, 1290.
trustees of police village, may pass, 1290,
as to concession roads, and side lines, 1290, 1291.
township councils may purchase lands, 1 291.
pcxvers of sale, 1 291 — 1293.

important to observe under what terms a power or trust is to arise, 1291.
a power in a mortgage, to sel', is in the nature of a trust, 12592.
when mortgagee may accept fair offer of purchase by private contract, 1292.
when mortgagor may not purchase, 1292.
when notice is required to be given, 1292.
ABSTRACTS AS TO TAX TITLES, I293 — 1296.
close scrutiny required, in investigating, 1293.
legislative interference, as to, 1293 — 1296.
surveyor generaV s return, 1296 — 1298.
provincial acts, as to 1296 — 1298.
assessment, 1298 — 1301.
treasurer's return of lands in arrear, 1301 — 1303,

riNDKX.

2007

ecree, without

MASTER'S OFFICE— coHiinHeJ. ,

ABSTRACTS AS TO TAX THI.IS— cVM/l««/</.
writ to sellt 1303—1,^5.
distress, 1 305 — 1 307,
advertisement, 1307 — 1309.
sale, 1309— 1 313.
payments, 1313- 1314.
description 0/ lands, 1 3 14 — 131 5.
the deed, 1315— 13 16,
sheriff's deeds, 1316 — 1318.
insolvency, 1 318 — 1 3 19.
ABSTRACTS, EVIDENCK OF THK FACTS REFERRED TO IN, I319— 1334-
births, marriages and deaths, 1319 — 1321.
intestacy, 1 32 1.
legitimacy, 1321.
death without issue, 1322.
executorship, and administratorship, 1322.
title, 132 .323.
possess!'>n, IJ23 — 1331.
heirship, 1331."
bachelorhood, 1 33 1.
identity, 133 1.

payment of money into Court, 1 33 1.
payment of legacies, 1 33 1, 1332.
ABSTRACTS, THE MISCllIXANEOUS EVIDENCES OF, 1332— 1334.
public books, 1332.
parliamentary surveys, 1332.
pedigrees, 1332. .

family documents, 1333.
bishop's registers, 1333.
entfics, 1333.
wa/j, 1334.
' awards, 1334.

certificates, 1 334.
ABSTRACTS, SECONDARY EVIDENCE IN SUPPORT OF, 1334— 1360.
voluntary affidavits, 1338, 1339.
nr/to/j, 1339— 1342.
presumptions, 1 342 — 1 344.
i(;/jVj, 1344— 1346.
f/ra/A, 1344— 1346.
abstracts, 1 344 — 1346.
extracts, 1346.
recitals, 1346, 1347.
ABSTRACTS, MASTER'S PROCEEDINGS ON, 1347— 1352.
Order, 391, as to, 1348.
M 392, .1 1348.

" 393. " 1349-

.. 390, „ 1349.

M 394, ,t 1350.

" 395. " 1350-

" 396, - 1350. I3SI-

" 397. I- 1351-
costs of purchaser, 1352.
when purchaser discharged from his purchase, 1352 — 1360.

PROCEEDINGS ON OBTAINING THE CONVEYANCE, I361 — 1375.
order, 379, as to, 1 361.
draft conveyance, by whom prepared, 1 361.
and at whose expense, 136 1.

deeds executed in England, need not be stamped, 1362.
wife of mortgagor need/^not join, 1363. *

proceedings where purchaser delays in preparing the conveyance, 1363.

2008

INDEX.

S r - »

MASTER'S OYFICE— continued. , ^

PROCEEDINGS ON OBTAINING THE CONVEYANCE — continued.

and where, vendor delays, 1363.

objections to be made within eight days, 1 364.

rule as to settling conveyances, under the decree of the Court, 1365.

mode by which Master signifies his allowance of the draft deed, 1365.

exceptions to Master's certificate, 1365.

proceedings, where party refuses to execute, 1365.

attachment obtained on motion, 1366.

but the usual course in such a case is to proceed under the Chancery act,
s. 63, of ch. 12, Con. vStat. U. C, 1366.

proceedings, under this act, 1366, 1367.

query ? whether, under any circumstances, the Court will compel a pur-
chaser to accept a title, by vesting order, instead of a conveyance, 1367.
I purchaser, entitled to title deeds, 1369.

Order 388 as to payment of purchase money, 1369.

how purchaser compelled to complete his purchase, 1371 — 1375.

proceedings where purchase money is inadequate to pay off plaintiff, 1375.

Orders 454, 455, as to, 1375.

ACCOUNTS, MODE OF TAKING IN MaSTER's OPFIfE, 782—785.

Order 227 requires accounting party to bring in his account in the form of

a debtor and creditor account, 782.
in partnership cases, usual for Master to proceed under order, 228, 782.
when account filed. Master may appoint a time for opposite party to object

to its form, 783.
this practice better than appointing a time " to proceed," 783.
proceedings, if account improperly framed* 783.
when surcharge to be filed, 783.
appointment to "query items," object of, 784.
provisions of order 232 on this point, 78/
underwriting of warrant under order 233, ; ?
penalty of improperly refusing to admit, unu,.. order 234, 784.
costs payable under order 235, 784.
costs may be set off, under order 236, 784.
party conducting an account, not limited to one charge, 785.
he may amend as often as the justice of the case requires, 785.

ADMINISTRATION DECREE, OR ORDER, PROCEEDINGS UNDER, IN MaSTER's
OFFICE, 882 — 984.

administration order, now used, instead of a bill, 882.
what this order usually directs, 882.
mentioned in order 187, 883.
copy to be filed in Master's office, 883.
Master's first duty, to ascertain whether there are any persons interested

in the estate, not already before the Court, 883.
will, or probate to be produced before him, 883.
where no will, evidence is to be adduced, showing who are interested either

as heirs or next of kin, 883.
these to be served with office copy decree under order 60, 883.
warrant to consider served with it, 883.
order 60, 883.

order 587, extends power of Master, 884.
upon whom this wanant to be served, 884.
where there are infants, 884.

rule to be observed in making parties in the Master's office, 884.
distinction between making them parties, and serving them with notice of

the proceedings, 884.
duty of Master on return of warrant to consider, 885.
publication of advertisement under order 475, 885.
form of directions to be entered in Master's Book, 885.
order 475, as to advertisement for creditors, 886.
order 476, as to creditor making an affidavit of his claim, 886.

INDEX.

2009

e Chancery act.

;rsons interested

MASTER'S OFFICE— continued.

ADMINISTRATION DECREE, OR ORDER, PROCEEDINGS VUDEVL—continueJ.

order 482, as to notice, 886.

order 477, as to producing security, 886.

order 478, as to costs, 880.

order 479, as to examination of claims by executor, or administrator, 886.

order 480, as to affidavit of claims, 886.

order 481, as to adjourning the making of this affidavit, 887.

order 482, as to allowing of claims by Master, 887.

order 483, as to notice to be given by executor or administrator, 887.

order 484, as to sending in particulars of claim, 887.

order 485, as to time when claim may be received, 887.

order 486, as to payment of money to creditors out of Court, 887, 888.

order 487, as to service of notices, 888.

order 474, duty of Master under proceedings on the claims, 888.

bias of the Court in favor of letting in creditors, 889.

Court will not generally set apart fund for creditors who do not choose to

prove their claims, 889.
if after a decree for administration, a creditor files his bill, or brings an

action for the payment of his debt, he will be restrained by injunction,

890.
proof of mortgage debt, 891.
right of executor or administrator, to retain his own debt, and how this is

done, 891.
executor permitted to advance moneys for the costs of the suit, 892.

ADVERTISEMENT, PROCEEDINGS AFTER, 779— 781.

' mode of proceeding before Master under order 224, 779.

claim as creditor must be verified by affidavit, 779.

but must be established by viva voce evidence, uiUess, by consent, affida-
vits are used, 779.

plaintiff in a creditor's suit must prove his debt, 779.

witnesses may be examined for, or against a claim, 780.

it is usual to dispense with strict proof in proving bonds, deeds, notes, and
other securities, 780.

person representing estate may set up any defence available at law, or in
equity, 780.

executor may set up statute of limitations, 780.

defence of no consideration may be set up in Master's office, 780.

effect of statute of limitations, 780.

effect of 3 & 4 Wm., 4, c. 27, s. 40, 781.

when claim properly made out, Master marks it in his book " a//<nftf^,"
781.

effect of this, 781.

when enquiry as to next of kin, directed, 781.
APPORTIONMENT OF DEFICIENT FUND, 1382, I383.

fund, if small, to be verified by affidavit, 1383.
in other cases apportioned by Master, 1383.
practice as to, 1383.

ASSIGNEES Oi'" BANKRUPT, OR INSOLVENT MORTGAGOR, IO56, IO57.

the official, or provisional, and creditor's assignees, under the bankruptcy
or insolvency of the mortgagor, are the proper parties to suits in respect
of his interest, 1056.

on death of a provisional assignee, his successor may be joined by revivor,

1057.

if the equity of redemption become vested in the Crown by forfeiture, the
Attorney General shall be joined, 1057.

a mortgagor who has mortgaged lands in this Province, and who after-
wards becomes bankrupt in England, is not a necessary party, 1057.
ASSIGNEES OF MORTGAGOR, IO58 — IO61.

where theie is an express life estate, the remainderman must be joined,
1058.

m

2010

INDEX.

S'

MASTER'S OFFICE—continucJ.

ASSIGNEES OF MORTGAGOR — continued.
and so must the tenant for life, 1058.
case of trustees to preserve contingent remainders, 1059.
case of a mortgage for a term, with a trust for sale of the fee, 1059.

of trustees entitled beneficially under a settlement, 1060.
creditors not necessary parties to a bill for foreclosure filed by trustees to-

whom the mortgage had been executed for the benefit of creditors, »o6o.
y infants sometimes made parties in Master's office, where they would have

been proper parties by bill, 1060.
case of mesne incumbrancers, 1060.

of assignee of lease, 1060.

of subsequent incumbrancers, 1061.
-of mortgage of tolls, 1061.
ass"gnees, "pendente lite," of mortgagor, and mortgagee, ok

logo— 1084.
rule, that he who purchases an interest in litigated property, pending the

suit, acquires for the purposes of the suit no right distinct from that of

his assignor, 1080.
pendency of suit, sufficient notice, 1080.
if therefore, pending a suit for redemption, the equity of redemption be

assigned by the mortgagor, the assignee will be bound, 1080.
and a fortiori, in a foreclosure suit, 1^0.

rule applies equally to assignments by the plaintiff and the defendant, ic8i.
nor is it material, if there be an abatement by the death of the assignor,

1081.
rule stated, with a reservation, by Lord Redesdale, 1081, 1082.
but where a legal interest passes by the assignment, the assignee's pre-
sence becomes necessary, 1082.
nor does the rule apply to a person, who, like the assignee in insolvency,

is not bound by a decree in a suit carried on in his absence 1083.
effect of registration of lis pendens, 1083.
if the assignee desire to bring himself forward he should file a supplemental

bill, 1083.

BANKER, CLAIM BY, 904.

how this claim proved, 904.

form of affidavit, 904.

how interest allowed on such a claim, 905.

BILL of exchange, CLAIM ON, 904.

how this claim supported, 904.

form of affidavit, 904.

if insisted on, testator's signature must be proved, 904.

BOND DEBT, CLAIM ON, 903.

how this claim supported, 903.
form of affidavit, 903.

consideration not to be proved, unless a case of suspicion is raised, 903.
if strict proof required, execution of bond is proved, 903.
executor may, in the Master's office, impeach the validity of the bond
grounds not in issue at the hearing, 903.
upon interest, how computed, 903, 904.

interest, generally, not to be computed beyond the amount of the penalty,
904.

CLAIMS AND ACCOUNTS BEFORE THE MASTER, 768— 770.

" state of facts " formerly required, 768.

by present practice a " claim or •' account " is filed, 768.

Master may now, under ordei's 219 and 220, take many accounts, and

make many enquiries not mentioned in the pleadings, 768.
he may enquire into " wilful neglect and default " without a special direc

tion in the decree, 769.
accounts to be brought in, in the form of a debtor and creditor account,

by order 227, 769.

INDEX.

2011

MORTGAGEE, OK

le a supplemental

)f the penalty.

-editor account,

MASTER'S OFFlCK—conitHued. ,

CLAIMS AND ACCOUNTS BEFORE THE MASTER— <:tf»A'«//«/. "
items of account to be numbered, 770.
importance of this *' /iccorcl," Tjo.
penalty of incorrectness, 770.

'* accounts," full meaning of this word in order 220, 770.
how contempt in not bringing in accounts, to be cleared, 770.
COMMISSION, OR COMPENSATION, ALLOWED TO TRUSTEES, EXECUTORS,
AND ADMINISTRATORS, 931 — 984.

English rule as to compensation, 931.

22 Vic. ch. 16. sec. i6 ; revised stat. of U. C, pages 109, 931.

Court of Chancery has concurrent jurisdiction with Surrogate Court, under

this statute, 931, 932.
leading case of Robinson v. Pett, 932.
notes on this case from " White and Tudor," 932 — 982.
these notes form an exhaustive treatise on the subject, and are tlierefore

reproduced in full, 932.
in our Court, the first discussion on our statute arose in McLennan v.

Heward, 982.
cases in our Court, 982, 983, 984.
Order 589,as to form of report in administration suits, 984.

DECREES AI»U ORDERS, VROCEEDINGS UNDER, 736.

cause referred to a Master cannot be withdrawn without order of Court,

740.
in what cases such an order will be made, 740.
prosecution of decree in, devolves usually on plaintiff, 741.

of interlocutory order, on party obtaining it, 741.

order 211, for prevention of delay in taking out decree, or order, 741.

order 212, for prevention of delay in prosecuting decree, or order, 741.

order 584, allowing Master to issue warrant to shew cause why refer-
ence should not be proceeded with, 741.

order 588, allows Master to fix the costs under these orders, 741.

order 586, allows Master to fix costs against absent party, 742.
in administration suits, reference to be conducted by those having greatest

interest, 742.
in what cases, carriage of decree will be changed, 742.
application to compel party to proceed with reference to be made to

Master to whom cause referred, 742.
under order 211, no order necessary to authorize defendant to take carriage

of decree out of plaintiff's hands, 742.

DEVISEE AND HEIR OF MORTGAGOR, OF THE, IO61 — IO63.

devisee of mortgagor, a necessary party in respect of so much of the equity
of redemption as has been devised to him, lo6l, 1062.

and the heir, in respect of what he takes by descent, 1061, 106; .

if the heir and devisee both claim, the devisee alone should ^f plaintiff",
1062.

in a suit to redeem by persons entitled imder a will to a charge upon
the equity of redemption, the trustees of the will are proper parties, 1062.

and so are legatees, 1063.

EQUITABLE SECURITIES, 999 — IOO8,

what are, 999.

equitable mortgage, how created, 1000.

parol evidence, may be established by, 1000.

or by the mere inference of an agreement, drawn from the fact of a deposit

of deeds, looo.
inference must not contradict the terms of a written instniment, lOOi.
where registration not necessary, looi.
equitable lien may also be established by parol evidence of arrangements,

looi, 1002.
and even upon documents which remain in the keeping of the debtor,

though in the legal custody of the creditor, 1002.

40

%on

INDJSX.

ir^ •l

sp.,
l2o

MASTER'S OFFICE— €ontin$4ed.

EQUITABLE StCVVilTlES— COnitttU^.

it may also be established against property of which the title deeds have

not been actually deposited, where a written undertaking, or expression

of intention to deposit them can be proved, 1002.
but a parol agreement to deposit a deed will not be sufficient to create a

security, 1003.
a deposit of a material part only of the deeds will eiTect a good equitable

mortgage, there being no fraud, and good reason for not depositing the

remainder, l(X>3.
what sum the deposit will cover, 1003.

future advances may be covered by equitable mortgage, icx}4.
case, where original deposit invalid on account of usury, 1004.
case of voluntary settlor, 1004.
a legal security cannot be extended to subsequent advances made on a

parol agreement for a further mortgage, 1004.
a simple covenant or agreement to charge land will not create a charge on

the debtor's real estate, where no particular estate is mentioned, or the

agreement is only for a personal, with power to call for real, secuiity,

1005.
a promise to pay a debt out of the estate of a deceased person, if the

personalty be exhausted, will change the realty, icx)6.
agreement cannot be set up as an equitable mortgage, if it has been laid

aside unacted upon, 1006.
a delivery of title deeds for the purpose of preparing a legal mortgage,

will operate as an equitable security, 1006.
cases on this point, 1007, 1008.

K<>UITY OF REDEMPTION, OR SECURITY AND DEBT, OF THE PERSONS

BENEFICIALLY INTERESTED IN, IO73 — lC)So.
trustees represent the persons beneficially interested under the trust, and

in such cases it is not necessary to make such persons parties, 1074.
distinction between cases arising under wills, and those under settlements,

1075.
cases under the general rule, 1075, 1076, 1077,

case where some of the cesttn que trustent should be made parties, 1078.
case of creditors, under a deed of assignment for the benefit of creditors,

1078, 1079.
a small number of creditors may represent the rest, 1079.
scheduled creditors, not parties to the deed of trust, need not be parties,

1079.
persons beneficially interested under a will not necessary parties to a suit

by an executor against his co-executor to realize a mortgage debt due

from the latter to his testator, 1073.
a trustee, being a solicitor, not bound to discover the names of his cestui

que trustent, 1080.

EVIDENCE IN MASTER'S OFFICE, 762 — 767.

an enquiry directed by the Court, is in the nature of a new issue, and what

would be evidence in any other case, will be evidence before the Master,

762.
what proceedings, may be used before him, 762, 763.
Master should make a minute of admissions to be subscribed by the party

admitting, 763.
by order 175, a party may, in certain cases, use depositions taken in an

other suit, 763.
strictly, no evidence can be taken except viva voce, 763, 764, 844.
in what cases, affidavits may be used, 764,
to what extent a witness may be examined before the Master, upon matters

as to which he has been examin^ in the cause, 765.
cases to which the rule does not apply, 766.
one party may examine his opponent as a witness, 766.
how depositions to be taken, 766.

iv

-\b'ii

•>,'■

^t^

F'".

m

■---ft

: title deeds have
ng, or expression

licient to create a

a good equitable
ot depositing the

004.
[004.

ces made on a

reate a charge on
iientioned, or the
for real, secuiity,

ed person, if the

: has been laid

I legal mortj,age,

W THE PERSONS

der the trust, and
parties, 1074.
mder settlements,

parties, 1078.
lefit of creditors.

!d not be parties,

parties to a suit
ortgage debt due

ames of his ct\<!tui

issue, and what
;fore the Master,

)ed by the party
ons taken in an
>4. 844.
r, upon matters

INDEX.

MASTER'S OFFICE— continued.

EVIDENCE IN MASTER'S OFViCK— continued.

2018

how Master to deal with alterations desired to be made by witness, 7^.

each Master, may direct evidence to be taken before any other Masterr767.

witnesses to be served with subpoena, 767.

or with subpcena duces tecum, 767.

rules governing Master in taking evidence same as those which govern the

court at Examination Term, 767.
Master's judgment on conflicting evidence will not be reversed on appeal,

767.

EXECUTOR OR ADMINISTRATOR, RIGHT OF, TO RETAIN HIS DEBT, 892—
902.
executor or administrator has a right to retain for his own debt, in prefer-
ence to all other creditors of equal degree, 892.
reason for this rule, 892.

but he cannot retain as against a debt of a higher degree, 892.
this privilege exists, notwithstanding a decree for an account has been

made in a suit by the other creditors, 893.
when right not lost, 893.

no right to retain where the a^ets are merely equitable, 893.
he may retain not only for debts which he claims beneficially, but also for

those to which he is entitled as trustee, 893.
conversely, he may retain for debts due to another in trust for himself, 894.
this right, under an obligation made to his tinistee, recognized by courts of

common law, 894.
distinction to be observed, 895.
where corpus of trust fund, is in trust, to pay only the interest, there is no

right to retain the principal at law, 895.
at law, cannot retain for a demand, of which no account can be taken by

a jury, 896.
where administration dwinte minoritato. is granted, the administrator may

retain as well for his own debt, as for one due to the infant, 897.
case of lunatic creditor, 897.
if administration granted to creditor, as such, and be afterwards repealed

at the suit of next of kin, such creditor may retain as against rightful

administrator, 897.
if right waived by arrangement with other creditors. Master cannot

disallow the claim without a special direction, 897.
executor of executor entitled to retain debts due either to himself, or to the

deceased executor, 898.
case of administrator cum testamento anncxo, 898.
case of partners, 898.

case of married woman, executrix, and her husband, 898.
if husband be executor, he may retain for a debt due the wife dum sola, 898
executor de son tort, cannot retain, 898.
one exception to this rule, 898.
case where the same person is the personal representative of both debtor

and creditor, 899.
case of joint and several obligors, 899.

case where two are jointly bound, one as principal, tlie other as surety, 899.
damages, cannot be retained.

co-executors, one cannot retain to prejudice of the other, 900.
case of two executors, balance found to be due by them to estate, one, a

creditor, may retain out of this balance, 900.
executor may retain, though his debt be more than six years old, 900.
has executor a right to retain out of proceeds of real estate ? 900.
case where executor of creditor is also administrator of such creditor's

debtor, 901.
case of partnership, 901.
case, when executors pay off debts due by testator, 902.

2014

INDEX.

^6

* r

«:

■■j -i

MASTER'S OFFICE— confinued.

EXECUTORS DISCHARGE, — PROCEEDINO ON, 925— 931.

|j meaning of the term "discharge," 925.
mode of proceeding on, 925.

liability of executor for '* wilful neglect, or deliault." Master may take an

account of " wilful neglect or default " without any special direction in

the decree, 925, 926.

sec. 2, of order 220, not confined to cases of mortgagor and mortgagee, 926.

case where administrator held liable for allowing simple contract creditor

to be paid before a creditor by speciality, 926.
case where executors held liable for using estate in maintenance and edu-
cation of children to detriment of creditors, 926.
executor not justified in keeping estate open and unadministered in order

tr> obtain interest on a claim he has against the estate, 927.
executor will be charged with rents and profits where he delayr, selling

lands, which by the will are saleable for payment of debts, 927.
case where executor not charged with interest on balances in his hands,

and was also allowed his costs, 927.
duty of administrator where he has moneys without knowing to whom to

pay them over, 928.
rests, when executor charged with, 928.
executor allowed interest on moneys advanced by him for benefit of

estate, 928.
when executor charged with eight per cent, interest, 928.
executor allowed to pay retaining fee to counsel, 928, 929.
executor not charged with interest on sums lost through wilful neglect or

default, 920.
executors not permitted to embark any new capital in business of testator,

929.
case of one of two executors discharging a mortgage, given by himself to

his testator, 929.
case where executor suffered lands of testator to be sold for debt though

one of them was indebted to the estate in a larger amount, 929.
duty of Master, after havi ^-ived all the evidence on the discharge, and

surcharge, 929.
how to ascertain state 01 account, where Master has determined to charge
interest, or take it with rests, 929, 930.
FORECLOSURE UNDER MORTGAGE DECREE, IO28 — IO35.
^ when a bill for foreclosure may be filed, 1028.

' upon default in payment by a mortgagor, of any instalment of interest, the
mortgagee has a right to call in the whole amount secured by the mortgage,
1028.
Orders 461, 462 and 463 r^ulate the practice on this point, 1029.
interest in such cases to be computed up to the day named in the mortgage,

and not to the time of making the application, 1029.
mortgagee not bound to accept payment of the whole principal and interest,
where only certain interest is due, and a bill to foreclose which has been
filed, 1029.
a tender by a mortgagor stops interest, 1029.

proper order to make where a decree of foreclosure obtained on a mortgage
payable by instalments has been stayed upon payment of the amount
actually due, and a subsequent default occurs, 1029.
when three months further time to redeem, granted to subsequent incum

brancer, 1030.
where there are several judgment creditors, the decree should give them suc-
cessive rights of redemption, though very short periods must be fixed tor
the purpose, 1030.
sfmbli, that after payment of what is payable upon a mortgage payable by
instalments, it is irregular to take any further proceedings until another
instalment falls due, 1030.
mortgagee not bound to give notice under the mortgage of his intention to
file a bill, 1030.

ter may take an
cial direction in

nortgagee, 926.
jntract creditor

nance and edu-

istered in order

7.

elayr, selling

ts, 927.

n his hands,

ing to whom to

)enefit of

irilful neglect or

ness of testator,

;n by himself to

for debt though
t, 929.
discharge, and

nined to charge

of interest, the
the mortgage,

029.
the mortgage,

al and interest,
which has been

on a mortgage
jf the amount

equent mcum

give them suc-
ist be fixed tor

ge payable by
until another

is intention to

INDEX.

2016

MASTER'S OFFICE— rontinueJ.

FORECLOSURE UNIJER MORTGAGE DECREE — continued. *■

when taking notes, will suspend the remedy on the mortgage, 1030.
the bill should be expressly framed for the relief sought at the hearing,

1030, 1031.
a person interested in part only of a sum due on a mortgage, cannot sue for

foreclosure of a corresponding part of the estate, 1031.
when widow let into her dower, 103 1.
a mortgagor who holds several mortgages on the same land, one of which is

not due, cannot file a bill to foreclose that mortgage with the others, 1031.
case where mortgagee takes bills in discharge of the mortgage debt, which

bills are dishonored, 1031.
case where tmstees mortgage, 1032.
as a general rule, mortgagee has the right of pursuing at the same time all

his legal and equitable remedies, 1032.
derivative mortgagee may even bring at the same time two different suits for

redemption or foreclosure, but he will be made to pay costs for the

vexation, 1032.
in cases of fraud, or special contract, or other particular circumstances, the

Court will restrain the exercise of this unlimited right, 1032, 1033.
mortgagee may lose his remedy by laches, 1033.
mortgagor has a right to be protected against a double account of the amount

due on the same mortgages, 1033.
when mortgagee will be restrained from proceeding at law on his collateral

security, 1033.
when he will not be restrained from selling, 1034.
when the Court will not interfere with the mortgagee's action on his covenant,

1034.
when trustee will not be restrained, 1034.

what remedies a mortgagee has, who makes advances to trustees, 1034.
mortgagee's right to enforce his securities not confinetl to the institution of

a suit which shall put an end to the mortgage, 1034.
mortgagee may also proceed generally against the assets of the deceased

mortgagor, 1035.
how to sue in such a case, 1035.
mortgagee may foreclose without taking possession, 1035.

FORECLOSURES OR SALES, PROCEEDINGS TO OBTAIN A DECREE IN CASES

OF, 1084 — 1091.
four different modes of obtaining a decree in these cases, 1084. »*

order 38, as to praecipe decrees by Deputy Registrar, 1084.
practice under this order, 1085.
practice on obtaining decrees in Registrar's office, Toronto, where no answer

filed, but where there are incumbrancers, 1085.
orders 436 and 437 on this subject, 1085.
practice where no answer has been filed, and there are no incumbrancers,

1086.
orders 432 and 433 as to this practice, io86, 1087.
case where the bill contains matter beyond the usual statements necessary to

obtain a common decree, 1087.
case where an intentn injunction had been granted, 1087.
order 435 on this practice, 1087, 1088.
where disputing note filed, 1088.
result of these orders, 1088.
when plaintiff requires a special enquiry, the case will be taken out of these

orders, 1088, 1089.
penalty for taking out decree, improperly referring the case to a Master,

1089.
practice in obtaining a decree under order 38, 1089.
practice in obtaining a decree against an infant heir, or infant devisee of the

mortgagor, 1089, 1090,
ordei 434 on this point, 1089, 1090.

2016

INDEX.

St 1

MASTER'S OYFICE—conitMUfd.

KORECLOSUHES OR SALES, PROCEEDINGS TO OBTAIN A DECREE— f«>«/»«/W.

regard must be had to order, 438 before taking out the decree, 1090.

order to make persons interested in the equity of redemption will not be

granted <?;if /ar/^, 1091.
though the practice seems unsettled, 1091.

FORECLOSURE, SALE, OR REDEMPTION, PROCEEDINGS ON A UICKI.E KoK,
IO9I— 1094.

(irst step on decree is to bring it into Master's office, 1091.

order 441, on this point, 1091, 1092.

the first inquiry is as to incumbrancers, 1092.

order 442, on this point, 1092.

certificates of Registrar and SheriflFto be brought in, 1092.

order 443 as to this, 1092.

these certificates need not come further than the date of filing the bill, 10 92.

Master notices those incumbrancers only, prior to the filing of the bill,

1092.
what are incumbrances under these orders, 1093.
next step is to bring the certificates into the Master's office, 1093.
order 444, points out duty of Master on these certificates, 1093.
cases, assisting the Master in determining upon the description of creditors to

be made parties, 1093, 1094.
duty of Master where there is a dispute as to the ownership of an incumbrance

1094.

FURTHER DIRECTIONS, 872—882.

meaning of the teim, 872.

cases where Court will not permit a setting down on further directions, 872.

it is only where further directions have been reserved, that it is required to
set down on further directions, 873.

further directions are given after confirmation of the report, 873,

at the hearing on further directions, the Court will make such further order
as appears to be consistent with the justice of the case, 873.

unless, being dissatisfied with the manner in which the Master has discharged
his duties, it orders a review, 873.

what the Court will do at the hearing on further directions, 874.

will not re-hear on this motion, 875.

Court will direct the computation of interest, on further directions, and will
even charge an accounting party with interest, though there was no reser-
vation of the question of interest by the original decree, 876.

instances of this practice, 876, 877, 878.

Court will not, however, make any order on further directions, varying or
impugning the original decree, 878.

and it will refuse to entertain an objection to the original decree, which
might have been made at the original hearing, 879.

some of these propositions qualified by decisions in our own Court, 879.

FURTHER DIRECTIONS, SETTING DOWN ON, 880 — 882.

cause may be set down to be heai"d on appeal from Master's report, and on

further directions at same time, 880.
but the appeal must first be disposed of, 880.
notice of hearing to be served, and cause set down for one of the days

mentioned in order 416.
this is a seven days notice, and the cause must be entered seven days Ijefore

the hearing, 880.
practice regulated by orders 418, 419, and 420, 880.
course of proceeding at hearing on further directions, 881.
a creditor, whose claim has been allowed by the Master, has a right to appear

on this hearing, 881.
plaintiff will not be permitted to set down a cause for hearing on further

directions at a distant day, to the delay of the defendants, 881.
as a general rule, the evidence in the Master's office is not looked at on

further directions, 881.
order made on further directions, how worked, 882.

INDEX.

201T

iE — continued.

DECKKE KUK,

an incumbrance

light to appear

MASTER'S OYYlC^—conHnued.

HEIRS AT LAW, NEXT OK KIN, CRKDITORS, ETC., ENQUIRIES AS TO,
771, 772.

Master bound, in some cases, to give his opinion as well upon the law as

the facts of a case, 772.
Master to advertise for creditors, heirs, next of kin, or other unascer-
tained persons, and to appoint a time within which they are to come in

and prove their claims, under Order 223, 772.
HEIRS, NEXT OF KIN, OR CREDITORS, PROCEEDINGS TO . DVERTISE FOR,

772-779.
Master to direct advertisement to be published in some newspaper,

published near the place where the parties are supposed to l)e, or

where the ancestor lived, 773.
a claim may be put in after the time limited, if before report signed, 773.
Court will let in creditors, or next of kin, at any time before fund

distributed, 773.
Master notices no creditors in report, but those who prove, 774.
the rule of the Court as to creditors who do not prove, but who have an

equal, or paramount title to those amongst whom the distribution has

taken place, 775.
but the Court will not assist such persons, if they had notice of the

proceedings, 777.
a party seeking to compel those who had benefitted by the distribution

to refund, must proceed against all, 777.
a creditor, or other claimant desirous of coming in to prove his debt, or

claim after report, must apply to the Court, 778.
and if residing out of jurisdiction, must give security for costs, 778.
creditor may be cross-examined on his affidavit, 778.
Master is to jillow to creditor the costs of proving and attending on his

own claim only, 778.
Order 225, permits Master to allow these costs in gross, 778.
person claiming as heir, or next of kin, files his claim and affidavit

supporting it, 778.
but he must, besides, establish his claim by viva voce evidence, unless, by

consent, affidavits are used instead, 778.
mode of proving pedigree, 778.
succession to real property is regulated by the laws of the country where

the land lies, 778.
mode of proving claim as one of next of kin, 779.
INFANTS, 1384—1409.
Appointment and removal of Guardians, 1385 — 1393.
jurisdiction of Court as to, 1384.
Order, 197 ; as to, 1384,
not necessary to file a bill for, 1384.

proceeding is by petition, 1384. *

Court will not refer it to a Master to appoint a guardian, 1385.

but only to approve of one, to be afterwards appointed by the Court,

1385-
infant becomes a ward of Court, the instant the suit is commenced, 1385*

Court will sometimes interfere summarily, 1385.

right of Court to give custody of child, 1386.

any person may commence proceedings on behalf of an infant, 1386.

to give jurisdiction to Court, infant need not be possessed of property,

1386.
when application may be made, 1387.
what usually directed, in a suit for maintenance, 1387, 1388.
where no suit pending, application should be by petition, how petition

intituled, 1388.
appointment of guardian of the person only, 1388.
Court has jurisdiction over children of British subjects, though bom and

domiciled out of England, 1388.

2018

INDEX. ^

<

' liiCi *

!

I

MASTER'S OFFICE— cofiiiMueii.

INFANTS — continued. . , .

Stat. 12, Car. II., Ch. 24, as to, 1389.
testamentary guardian subject to control of the Court, 1390.
how far Court will pay respect to the wishes and directions of testator,

with regard to his children, 1390.
evidence required on an application for the appointment of a guardian,

1390. «39i.
where mother, or other female is appointed guardian, and marries, a new

appointment is necessary, 1391.
and so, if one of several guardians dies, 1391.

guardian of estate and person will be appointed on petition, 1391, 1392.
evidence required in support of, 1392.
guardian of estate must, ordinarily, give security, 1392.
application to remove guardian, made by motion, 1392.
Court will not, as a general rule, allow wards to go beyond its jurisdiction,

1393- ,
but it will do so under special circvmistances, 1393.
Maintenance and advancement, 1393 — 1400.
when application may be made for maintenance out of fund in Court,

'393-
rule as to allowing this. 1394.
practice as to, 1394.
as a general rule, maintenance will not be oixieretl during lifetime of

father, 1394.
but where father is not able to support his children, an allowance will

be made, 1394.
case, where father has contracted that certain property should be apjilied

for maintenance of his children, 1395.
in general. Court will not disturb the capital, 1395.
but it will do so, when absolutely necessary, 1395, 1396, 1397.
no rule requiring mother to support her children, 1398.
practice on a petition for maintenance, 1398.
allowance may be increased on subsequent motion, 1398.
guardian allowed costs as between solicitor and client, 1398.
practice where infant and father reside abroad, 1399.
Court may appoint guardian to infant of weak or unsound mind, 1399.
application to be by petition, 1399.
guardians, not accountable for expenditure, if they duly maintain tlie

person entrusted to their care, 1399.
Court will buy a commission in the army, or bind infant as an apprentice,

or otherwise apply fund in Court, for his advancement, 1400.
practice where infant is articled as an apprentice, 1400.
infants' kstatks, sale of, under 12 Vic. c. 72, 1802
' petition, to be by, 1802.
how intituled, 1802.
by whom presented, 1802.
what it should state, 1802.
Court looks at ultimate benefit only, 1803.

all applications in the matter must come on before the same judge, i^'os.
Orders 528, 530, 531, 532 as to, 1803.
Orders 533, 534, 535 as to, 1804.
practice under these Orders, 1804, 1805.
INTEREST, COMPUTATION OF, 796.
how interest calculated on a bond, 796, 797.
interest on judgment, 798.
interest on arrears of annuity, 798, 799.
interest on simple contract debts, 799.
interest on account stated, 800.
•charge of debts on real estate, does not entitle simple contract creditors

to interest 800.

)f testator,
guardian,
:irries, a new

1 391. i39a-

ts jurisdiction,

in Court,

fetiine uf
vance will
lid be applied

97-

unci, 1399.

itaiii llie

in apprentice,
loo.

I judge, 180.^.

creditors

INDEX. 2019

MASTER'S 0¥V ICE— continued.

INTEREST, COMPUTATION oY— continued. )

interest to he computed at six per cent., 801.
up to what time Master should compute interest, 801.
interest not to be computed on interest reported to be due, 801.
rests, computing interest with, object of, and mode of computation, 801.
proper male of computing interest, 802, 803.

form of account, shewing the correct rule in the computation of interest,
804.

INTEREST, WHO ARE BOUND TO PAY, AND ENTITLED TO RECKIVE,
804—813.

must be an agreement to pay interest, express, or implied, where the

contract is one merely for lending money, 804.
rule different, as to bonds, and mortgage debts, 805.
instances where interest payable, 805, 806.
when mortgagee allowed interest on moneys expended for the benefit of

the estate, 807.
mortgagee not entitled to interest beyond the day fixed for payment, if

he omit to attend at the time and place fixed by the Court for pay-
ment, 8c8.
executors not entitled to interest after tender, though made before

probate, 808.
mortgagee not allowed interest, upon a debt, which, but for his wrongful

act, would have been satisfied, 808.
prior incumbrancer entitled to interest as against puisne incumbrances,

though guilty of laches, 808.
, tenant in tail not obliged to keep down the interest on the charge, 809.
tenant for life is bound, 810.

reversioner bound to see that tenant for life keeps down the interest, 810.
duties of tenant for life, and mortgagee, 811, 812.
when representatives of wife not entitled to interest on sums which

husband's estate had become liable to recoup to them, 812, 813.
dut/ of receiver as to keeping down interest, 813.

INTERl),:" RREARS OK, ON ANNUITIES, BOND, AND JUDGMENT DEBTS,
PAYMENT OK, 813— 821.

as a general rule, interest not allowed upon arrears of an annuity, 813.

cases in which interest will be allowed, 814, 815.

discretion of Court in this matter not affected by Con. Stat. U.C, 22 \ ic.

c. 43, s. 3, 816.
bond debts generally carry no interest beyond the penalty, 816.
exceptions to this rule, 816.

case where a mortgage accompanies the bond, 816.
case, where bond tacked to another security, 817.

INTKREST IN ARREAR, — CONVERSION OF, INTO PRINCIPAL, 817—821.

right of assignee of mortgage to charge interest on the arrears of interest
paid by him to the mortgagee on taking the assignment, 817, 818.

rule different when assignment taken without concurrence of mortgagor,
818.

how far acquiescence of mortgagor will bind him, 818.

case oi puisne incumbrancer, 818.

enquiry will be directed as to what is due on the mortgage, and what has
been paid by the assignee, 818.

conversion of interest into principal by original stipulation in the mort-
gage now permitted, though formerly not allowed, 819. 820.

rule as to mercantile transactions, and dealings between bankers and their
customers, 820.

quarterly rests permitted, 820.

INTERKST, SUBSE(^UENT, COMPUTATION OF, 82I — 823.

when subsequent interest computed on the aggregate amount v)!' princip'n',

interest and costs found due by former report, 821.
present practice in suits for administration where the mortgaged estate has

been sold, 822.

*:<■'. :

2020

INDEX.

8 J

lie-

!

f

MASTER'S OFFICE-couihtue,/.

INTEREST, SUnSEQUKNT, COMPUTATION OK — COntittUCti.

where the Court enlarges the time for payment, subsequent interest is to be

computed on the aggregate of the principal, interest and costs, 8a2.
where interest runs on the whole sum found due by the report, it runs only

from the confirmation of the report, and up to that time on the principal

only, 823.
where the guestion of interest is not reserved by the decree, it is properly a

matter ot re-hearing, 823.
INTEREST, ARREARS OF, RIGHT TO SET OFF, 823—824.
where amount due a mortgagor at his death for arrears of interest on a legacy

left him by the mortgagee, may be set off, against the amount due from

him on account of the mortgage, 823.
set off, in case of incumbrancers, against assignees of bankrupt, 824.

INTEREST, RIGHT TO, UNDER STATUTE OF LIMITATIONS, 824—828.

provisions of Imp. Stat. 3 and 4, Wm. 4, C. 27, 824.

this Act similar to ours, 824.

six years arrears of interest only can be recovered on a mortgage annuity

or charge, without any covenant for payment, but twenty years arrearages

may be recovered under a covenant for payment of interest, 825, 826.
in a redemption suit, more than six years interest can be recovered — the

the mortgagor is bound to pay up all interest, 826, 827.
the Court wilt not, to avoid circuity of action, enforce an obligation indirectly

where the consequence would be an evasion of the Statute of Limitations,

827.
foreclosure suit is in substance a suit for the recovery of the mortgage money,

827.
cases in which the operation of the statute will be hindered by the Master's

report, 828.
effect of stipulation in mortgage that interest should be increased from 8 to 12

per cent, if principal were not paid on a certain day, 828.

such a stipulation, not a penalty, 828.

interest at two per cent, per month allowed after expiration of time fixed for
payment of principal, 828.

INVESTMENTS IN THE PURCHASE, OR ON MORTGAGE OF AN ESTATE,
1376—1379-

what the Court requires in such cases, 1376, 1377.

what order will be made, 1377.

order usually made on petition, 1377.

but sometimes made on motion, 1377. ,

proceedings after approval of investment, 1377.

JUDGMENT CREDITOR, CLAIM OF, 902.

hew this claim supported, 902.
form of affidavit, 902.

judgment need not be revived for the purpose of the debt being proved,
902.

LEGACIES AND ANNUITIES, ENQUIRIES AS TO, 782.

when Master need not advertise, 782.

legatees, not necessary parties defendant in ai inistration suit, 782.

MANAGEMENT OF PROPERTY, I380 f^F 140O — 1403.

proceedings under decree for.

i, 1380.
under the sanctioi. of Court, or Master,

sanction of Court obtained on
practice, where property is lea

1381-
order, how obtained, 1381.
settling draft lease, 1381.

the Court exercises a vigilant care over guardians of the estate, i
difficulty in determining with precision the extent of the autho;

is possessed by a guardian appointed by the Court, 1401.
power of testamentary guardian, more clearly defined, 1401, 1402.
guardians not, ordinarily, permitted to convert personal into real estate.

1402, 1403.

•oa

ly which

INDEX.

2021

MASTER'S OFFICE— ronthiHfd.

MANAOKMKNT OK rKOVZRTV—COHflHUfJ. A '

where infant resides in a foreign country, the Court will invest his money in

the securities of that country, 1403.
rule is that moneys belonging to infants are not ordered to be paid to their

guardian, but are secured for their benefit, under the authority of the

Court, 1403.
but the rule may not apply when the amount is small, and is required for

maintenance or education, 1403.
Court now invests in Dominion stock, and not in mortgages, 1403.
MARRIAGE AND MARRIAGE SKTTLKMENTS, I404— 1409.

where a ward is desirous of marrying, application for leave, must be made

to the Court, 1404.
marriage must be shewn to be suitable, 1404.
and the settlement proposed proper, 1404.
when Court will interfere l)y mjunction, 1404.
application is by petition, 1404.
evidence required, 1404.

a person marrying a ward will be guilty of contempt, 1404.
and, with all others aiding, may be committed to prison, 1404.
even though ignorant of the infant being a ward, 1404.
in such cases application may be made, by petition, for an enquiry as to

the validity of the marriage, and the approval of a proper settlement;

1404, 1405.
evidence required, 1405.

if marriage found to be invalid, a valid one may be ordered, 1405.
proceedings in such cases. 1405.
on what terms husband will be discharged from prison, for his contempt,

1405.
who should apply, and how, 1405.
what petition should state, 1405, 1406.
allegations must be supported by affidavit, 1406.
proceedings upon the petition, 1406.
fund in Court, when transferred, 1406.
power of infants marrying with consent of Court, to convey real estate,

1406, 1407.
how sanction of Court obtained, 1407.
how petition entituled, 1408.
its prayer, 1408.
evidence required, 1408.

when infant is not ward of Court, practice, 1408.
how proposals for settlement, settled, 1408, 1409.

MORTGAGK SUITS, PROCEEDINGS IN, 98$ — 999.

redemption, what it !«, 585.

foreclosure, what it is, 985.

when a sale will be decreed, 9S5.

equity of redemption, how described, and its characteristics, 986.

right of redemption may be inferred, 986.

when it arises, 986.

statutory ri^ht to order a sale, conferred on our Court 23 Vic. ch. 12, sec.

lo, 986.
simplest form of redeemable contract, 986.
Welsh mortgage, 987.
Bristol bargain, 987.
absence of covenant for payment of debt, does not affect the mortgage'

character of the transaction, 988.
but it may be explanatory of the intention of the parties, 988.
an instrument purporting to be an absolute conveyance, may be controlled

in its eifect by another, containing an express stipulation for redemption,

989.

•^ 104

2022

INDEX.

8 i
s If

f

3

MASTER'S OFFlCE-conftnuea'.

MORTGAGE SUITS, PROCEEDINC IN — continued.

disproportion of value, not of itself a reason for construing an instrument

as a mortgage, 989.
mistake in drawing instruments may be shewn, 989, 990.
but the Court will not lightly infer an intention to make a mortgage, where

none is expressed, 990.
mortgage, or no mortgage, cases of, 990, 991, 992, 993, 994, 995, 996.
when parol evidence allowed to shew the intention of the parties, 991.
Court will not disturb the iiiles of evidence by varying a deed only on

parol proof that the intention' was different from that which appears by

the deed, 991.
there must he mi; take, or fraud, cr some like equity dehors i\A deed, 992.
cases of conditional sale, 994, 995, 996, 997.
another kind of redeemable interest, where a person grants an annuity, or

rent charge, with a clause of repurchase, 997.
the effect, somewhat of the nature of a Welsh mortgage, 998.
these are treated by the Court, as redeemable annuities, 998.
circumstances indicating that a loan was intended, 998.
in determining whether an instrument is intended to operate as a mortgage,

or as an absolute or conditional sale, the circumstances attending the

transaction will be looked at, 998.
parol evidence, what may be shewn by, 999.

MORTGAGE DEBT — RIGHT TO, IO36 — IO37.

in ail mortgages the money must go to the executor, or administrator, and

not to the heir of the mortgagee, 1036.
though the rule w.is formerly different, 1036.
the executor of a mortgage has not, under Con. S.at. U. C. ch, 87, s. 5,

any power to sell and convey the legal estate he!d by his testator to a

person purchasing the mortgage, 1037.
to remedy the inconveniences of this rule, the Stat, of Ontario, 32 Vic. ch.

10, was passed, enabling executors or administrators of mortgagees to

release the land, to assign the security, and to convey the legal estate in

the mortgaged premises, 1037.

MORTGAGOR, OK THK, 1052— IO56.

he must be a party to every suit, in which the question of redemption

arises between mortgagees, 1052.
where t le presence of the owner of the equity of redemption is necessary,

1052.
prior mortgagee must be redeemed entirely, or not at all, 1052.
rule the same, where the mortgagee nolds securities upon distinct estates,

1052.
Order 427, as to surety for the payment of a mortgage debt, 1053.
cas:? t 1 mortgagee and mortgager selling part of the property without the

^o.icurrence of a person to whom the mortgagor had sold the remainder,

'053.

Oruer 4'}') as to bill filed by subsequent incumbrancer against prior mort-
gagee, 1054.

Older 440, as to prayer by plaintiff for a sale, or foreclosure, subject to a
prior mortgage, 1054.

n:ortg.igor must be a party to the suit, in which the validity of the mon
gage is contested, 1054.

where married woman must be a party, 1054.

wife, not a proper party, where she has joined in the mortgage to bar
dower only, 1054. «

case of tenant for life, 1054.

case where mortgagor, or owner of equity of redemption becomes bank
rupt or insolvent, 1055.

in sui-i. :i case, the bankrupt is not a necessary party, 1055.

tvstuis que trust, not necessary parties, IO55.

case where objection of want of parties not taken by tlie answer, 1056.

in instrument

•rtgage, where

995, 996.
rties, 991.
deed only on
:h appears by

tiie deed, 992.

an annuity, or

J.

as a mortgage,
J attending the

ainistrator, and

C. ch, 87, s. 5,
lis testator to a

irio, 32 Vic. ch.
mortgagees to
legal estate in

of redemption
on is necessary.

52-
<listinct estates?,

rty without tlie
the remainder,

nst prior mort-

e, b.xbject to a

y of the mort

jrtgage to bar

Dccomes banl

[wer, 1056,

INDEX.

2023

i

MASTER'S O¥¥lCE~-£0K/iHue(f.
MORTGAGOR, OF THE — continued.

an insolvent mortgagor may be a co-plaintiff, 1056.
bankrupt or insolvent may be properly joinwl, in some cases, 1056.
MORTGAGEK, PERSONS CLAIMING INTEREST IN THE SECURITY AND DEBT
OF THE, 1066— 1069.

no bill can be filed against a mortgagee, unless there be an offer to re-
deem him, 1066.

if the mortgagor's title be Impeached by the bill, the mortgagee ought to
be joined, 1067.

if mortijagee admits his interest, he may, in same cases be joined, without
an offer to redeem, 1067.

where he must be joined with the assignee of the mortgage, 1067.

case of derivative mortgage, 1068.

where there are several owners of the mortgage money, all ihust be joined,
1068.

the second, or other /«ij«<? incumbrancers may foreclose those subsequent,
without joining those prior to themselves, 1068.

case of prior incumbrancers, 1068.

exception, 1068, 1069.

case, where receiver prayed for, 10' "

MORTGAGEF,, ASSIGNEES AND IJEVISEKS OF THE SECURITY, AND DEBT, OF,
1069, 1070.

assignee or devisee of the legal estate in the security, a necessary party,

1069.
case of purchaser under a power of s.ale, 1070.
case of trustees, 1070.

trustee of legal estate, ought to be a plaintiff, 1070.

persons with whom the mortgagee has dealt wrongfully, proper parties,
1070.
MORTGAGEE, HEIR OF, OF THE, IO70 — IO72.

if the legal interest should descend, the heir of the mortgagee must be a

party, 1070.
but the rule does not apply to an heir, who has not the legal estate, 1070,

107 1,
case of a mesne incumbrancer, 1071.
case of a deceased partn(,r, 1071.
case of executors of mortgagee filing a bill against the heirs of deceased

mortgagor, 1071.
case of tenants in common, 107 1.
if the legal interest have been devised by the mortgagee, the heir is not a

necessary paity, 1072.

MOB "GAGEE, PERSONAL REPRESENTATIVE OF THE, IO72, IO73.

mo tgage debt, being personalty, the security belongs, in equity, to his
jersonal representatives, 1072.

they are therefore necrssary parties both in a suit for redemption and for
foreclosure, 1072.

exception in case of Welsh mo; tgage, 1072.

if tenants in common be entitled to the mortgage money, the personal
representatives of those who die must be joined, 1072.

and this, even if they are trustees, 1072, 1073.

case of personal representatives of original mortgagee \r a suit by sub-
mortgagee, 1073.

case of personal representative of unpaid vendor of real estate, 1073.

in the absence of the mortgagee's personal representative, the suit will not
be permitted to proceed, 1073.
PARTIES, WHAT, ENTITLED TO ATTEND IN MASTER's OFFICE, 751—756.

general rule on this point, 752.

when legatees entitled to attend, 752.

right of executors and trustees tn attend, 752.

when parties having charges on hn estate or fund entitled to attend, 753.
right of creditors to attend, 753.

2024

INDEX.

%

m

MASTER'S OYYICE— continued.

PARTIES, WHAT, ENTITLED TO ATTEND IN MASTER'S OTVlCZ—ConthtUtd.
application of Order 217, 753.
proper course of Master in such cases, 753.
parties may appeal from his decision, 753.
Master may, under Order 218, control parties in their employment of

solicitors, 755.
rule as to parties against whom bill has been taken /w confesso. 755.
parties entitled to attend before Master may take copies of proceedings,

755-

PARTIES, MAKING OR ADDING, IN MASTER's OFFICE, 756—758.

provisions of Order 244 as to, 756.

endorsement on office copy decree, to be served under Order 245, 756.

party served may. under Order 246, apply to Court to discharge Order, or

vary, or set aside decree, 756.
practice of adding parties in Master's office, 756.
vi'hen next of kin, not to be made parties, 757.
when heirs, not to made parties, 757.
Orders 60 and 587 on this point, 757.
though bill has been taken pro confesso, defendant may appear, and cause

parties to be added in Master's office, 757.

parties — PERSONS INTERESTED IN THE EQUITY OF REDEMPTION, I05I.

the rule (subject to certain exceptions created by statute, and the Orders of
Court) is, that all persons who have an interest apparent on the record
in the object of the suit, are necessary parties ; and no person ought to
be made a party who has not such an apparent interest, 105 1.

instances of this rule, 105 1.

fi. fa. creditors are necessary parties, but they are added in the Master's
office, 1051, n. (3).

where there is one principal, and one surety, both mnst be made parties to
a bill for foreclosure or sale, 10? i.

Order 62, similar to Order 6 of Orders of June, 1853, s. 8, 1051,

PARTIES, ADDING, IN THE MASTER's OFFICE, PROCEEDINGS ON, IC95 — 1 128.

decree brought into Master's office with the abstract aiid certificates, 1095.

this proceeding is ex parte 1095.

entries of Master in his book, under order 238, 1095.

the same, under order 446, 1095.

order 446, provisions of, 1095.

three different appointments to be served, 1096.

practice where infants are m.-'de parties, 1096.

wan ant should be so underwritten as to make all its different branches

attendable at the same hour, 1096, 1097.
Master signs notice under order 444, or the appointment under order 446,

or the warrant, 1097.
time within which these are made attendable, 1097.
usual to allow fourteen clear days to elapse, 1097.
order 445, on this point, 1097.
party appearing and disclaiming before Master, will not be allowed costs,

1097.
practice where party to be served resides out of the jurisdiction, 1097,

1098.
order 90, on this point, 1098.
practice where the solicitor has not been able to effect service on all the

parties, 1098.
order 448, provi.'ions of, 1098.
where portions of an estate are conveyed away by the mortgagor, one day

for payment is given to all the persons interested in the equity of re-
demption, 1098.
entries of Master where all the services have been made, 1098.
affidavit of claim, by whom made, 1099.
mode of entering plaintiff's claim in Master's book, 1099.

m
.^.'*'-

E — continued.

mployment of

■so. 755- .
proceedings,

758.

245, 756-
arge Order, or

lear, and cause

iiPTiON, 105 1.
1 the Orders of
on the record
)erson ought to
351.

in the Master's

tiade parties to

1051.

N, IC9S— 1128.
tificales, 1095.

it branches
^der order 446,

allowed costs,
[on, 1097,

irice on all the

[[agor, one day
equity of re-

^8.

INDEX.

2025

MASTER'S OYY\CTS.~continued.

PARTIES, ADDING, IN THE MASTER'S OFFICE PROCEEDINGS ON -fOW/tWM^*/.

claim for insurance, when allowed, 1 100.

and for taxes, I too.

where plaintiff is assignee of the mortgagee the effect of his affidavit is de-
clared by Con. Stat. U. C. ch. 87, sec. 4, lioo.

entry of claim of incumbrancer by mortgage in Master's book, lioi.

mode of computing interest, where decree is for sale, iioi.

and where it is for foreclosure, i loi.

costs of proving claim of incumbrancer, what usually allowed, without
l)in. or revision, iioi, n. (i).

entry of claim by /f.yft., 1102.

accounts having been taken, Master taxes costs, and sends them for revi-
sion, 1 102.

order 311 on this point, 1102.

money, where made payable, 1 102.

where some of the parties do not attend, duty of Master, 1 102.

order 447 on this point, 1 102.

incumbrancer neglecting to prove his claim can do so after report signed
and given out only on leave of court, obtained on motion, 1 103.

an incumbrancer has no right in the Master's o'fice to impugn a prior
judgment 011 the ground that it was irregularly obtained at law, 1103.

decisions of our own court on mortgage dealings, H03.

mortgagor may shew in the Master's office the >rue amount advanced on
the mortgage, though he has not filed any answer, but he cannot set up
usury ill such a case, 1 103.

from what time mortgagee will be charged with rents, 1 103.

mortgagee charged with interest and rests, in certain cases, 1 103, 1 104.

what transactions will operate as a discharge of a mortgage, 1104.

how payments appropriated, 1 104.

effect of parol evidence, in controlling a deed, 1 104.

how credits are applicable, 1 105.

what improvements allowed to a mortgagee in possession, 1 105.

floating balance, security intended to cover, 1 105.

mo .ey voluntarily paid on account of usurious interest cannot be re-
covered back, 1 106.

parol agreement to add two per cent to the rate of interest reserved by the
mortgage insufficient to charge the " ctra interest on the land, 1107.

wlien interest recoverable under the covenant in a mortgage may be tacked
to the debt, 1 107.

bargain for extra interest, made between derivative mortgagee and mortga-
gor inures to benefit of original mortgagee, 1 107.

when the onus of proof of the amount due on the mortgage, rests upon the
holder ol the mortgage, 1 107.

vhen improper to charge mortgagee in possession with re-its, 1107.

i^^signee of mortgage takes it subject to such equities as affect it in the
hands of the mortgagee, 1107

equitable estoppel, case of, i io8.

application of insurance money come to the hands of the mortgagee, 1108.

mortgagee in*!uring out of his own funds, entitled to the amount of the
policy, witliput giving credit th'^refor upon the mortgage, 1 108.

when Master should act on the affidavit of claim, though unsupported,
1 108, 1 109.

how payments applied where one partner secures a partnership debt on
his separate estate, 1 109.

how far first mortgagee bound to account for timber, H09.

mortgagee charged with the amount received from a railway company,
instead of the amount offered, 1109.

trustee of mortgagee having paid to the Government a balance due on
unpatented lands, was declared to have priority over judgment
creditors, 1109.

2026

INDEX.

i

I

5

MASTER'S OVFJCE—ecn/inued.

PARTIKS, ADDING, iN THE MASTER'S OEFICE, PROCEEDINGS OH—COtltitlued,

competent to show in the Master's office the real object for which a

mort{rage was made, 1 1 lo.
incumbent on the Master, where the bill is/w confesso, to require the

mortgagee to shew how the money was advanced, and, setnble, that

such a course is desirable in all cases, 1 1 lo.
what will not form a set off to the amount secured by a mortgage, 1 1 lo.
parol evidence may be given to show the true nature of a mortgage

transaction, llio.
how far assignee bound by goods delivered by the mortgagor before notice

of the assignment, 1 1 lO.
where Master may increase the rate of interest, upon an agre" iient subse-

qtient to the mortgage, but not under seal, I no, nil.
rule is, that an instrument under seal may be varied in equity by an agree-
ment for valuable consideration, not under seal, nil.
Court disinclined to countenance agreements for high rates of interest, nil.
doubted in one case whether 24 per cent, was not evidence of oppression,

against which the Court would relieve, nil.
but in another case 30 per cent, allowed, nil.
mortgagee in possession should be charged with occupation rent up to the

day appointed for payment, nil.
Sunday, Master should be careful not to appoint for payment, 1 1 12.
case where report was not dated, 1112.

case of a decree for sale at the suit of a surety of the mortgagor, 1112.
Master should take the statements in the mortgage as to the amount of

debt, as, prima facie coTxtcX, 1112.
order 465, as to costs, where mortgagee proceeds both at law and in

equity, 1113.
cases decided under this order, 1113.
duty of Master after having taken the accounts, settled priorities, and

taxed costs, 1113.
order 449, as to what the report should contain, 1113.
proceedings on the report being filed, I113.
orders 255, 256, 257, as to tiiese, 1113.
rules to be observed, where in cases, other than mortgage suits, money is

made payable at a particular place, 11 14.
cases under these rules, 1 1 14.

cases of irregularity, where a new day for payment ordered, 1115.
certificate of bank officer to be obtained, 1 1 1 5.
steps to be taken before order for foreclosure moved for, ni6.
PARTNERSHIP SUITS, I379- -I380.
how accounts taken, 1379.
Order 541, as to, 1379.
accountant may be employed, but only by the Court, 1379.

unless by consent, 1380.
proceedings where a sale is directed, or a receiver appointed, 1380.
PERSONAL REPRESENTATIVE OF MORTGAGOR, I063 — IO66.
not generally a necessary party in a suit for foreclosure or redemption,

1063.
executor of mortgagor not a necessary party in the Master's office, in case

of infants, 1063.
case of a suit to enforce an equitable mortgage, 1063.
personal representative a proper party in respect of a mortgage of a sub-
sisting term, or other chattel interest, 1064.
and also, where a sale is sought under a mortgage by way of trust for sale,

or on the bill of an unpaid vendor of real estate, or if the mortgagee

pray for payment of any deficiency out of the personal estate of the

mortgagor, 1064.
case of a tenant for life, 1064.

of a deceased subsequent incuitibrancer, 1064.

INDEX.

2027

: suits, money is

tgage of a sub-

MASTER'S OFFICE— confittueJ.

PERSONAL REPRESENTATIVE OF MORTGAGOR— r0/r//»WA/.

persons who claim under the will of the mortgagor, charges on the equity
of redemption, 1064.

of deceased partner, 1065.

if the equity of redemption have been dealt with, by the mortgagor, so as
to be converted into personalty, his personal and not his real represen-
tative will be the proper plaintiff* in a redemption suit, 1065.

case of administratrix of equitable mortgagor, 1065.

heir or claimant of equity of redemption being out of jurisdiction, 1065,
1066.

if no heir can be found the Attorney-General should be made a party, 1066.

PRODUCTION OF DOCUMKNTS IN MaSTER's OFFICE, 758, 759.

Order 222, as to this, 758.

Master may direct production at any stage of the reference, 758.

Order 226, as to the delivery of deeds, or execution of conveyances, 758.

Order 230, as to supplying copies of accounts, deeds, pedigrees, or other

documents under Master's directions, 758.
u iderwriting of warrant for production, 759.
PRODUCTION MODE OF PROCEEDING TO OBTAIN, 759 — 762.
date of Master's certificate, 759.
how party failing to produce, may be attached, 759.
Master will not be interfered with by motion in Chambers, 760.
Master may extend time for production, on proper application, 760.
Master's certificate as to non-production, cannot be contradicted, 760.
Master to decide on sufficiency of excuse for non-production, 760, 761.
how contempt incurred by disobedience of Master's warrant or direction to

produce to be cleared, 761.
contemnor may be exposed to sequestration, 761.
papers produced, may be inspected, on taking out proper warrant, 761.
* underwriting of this warrant, 761.

when papers produced to be re-delivered to producing party, 761.
QUERYING ITEMS— PROCEEDINGS ON, 786—796.
entries to be made in Master's book, form of, 786.
how items marked, where admitted by opposite party, 786.
where not admitted, 786.

four marks, convenient for Master to adopt, 786.
after account queried. Master appoints a time " to proceed," 787.
meaning of this, 787,

how acomnt vouch«:d, 787. '

when ifem under forty shillings sterling, 787.
effect of answer o.i items of account, 787, 788. "^

how account vouched as against infants, 788.
rule as to sums under forty shillings, 788.
how far party may discharge himself, by entries in a book kept by

himself, 789.
answer may be read in support of tlischarge, 789 ; to what extern, 789.
present rule as to charge and discharge by entries in accounts or books,

as laid down by Lord Kindersley, in 1865, 790.
rule in partnership accounts, 790, 791.
partners not charged with wilful default, 791.
"just allowances," meaning of, 791, 792.
where account of long standing, accounting party permitted sometimes

to discharge himself on his own oath, 792.
executors and tmstees sometimes allowed this indulgence, 793.
but Master must have authority of the Court to make these departures

from the general rule, 793.
Court will, sometimes, give particular directions in decree as to the mode

of taking accounts, 793.
"general expenses," not allowed — particulars mtist be given, 794.
Order 220 permits Master to make " all just allowances," 794.

e

f

2028

INDEX.

'h 1

s > - «

MASTER'S OFFICE— f<?«A«««/.

QUERYING ITEMS, PROCEEDINGS ON— f<>«rt«««</. ,„,

what may be allowed under this term, 794, 795.
Master bound to allow cross-examination of a witness, 795.
but, in some cases, he may exercise a discretion as to who shall pay the

fees of the examination, 795.
one defendant examining a co-defendant, makes him a good witness in

the cause, 795.
Master may make "rests," 796.

RAISING lONEY BY SALE OR MORTGAGE, I381, I382.

proceedings under decree, 1381, 1382.

RECEIVERS, 1770— 1775.

proceedings in Master's office, on an order for the appointment of a

receiver, 1770.
Order 278 as to, 1770.
how warrant underwritten, 1770.
Orders 279, 280, 281 as to, 1770, 1771.
what evidence required, 1 77 1,
where there is a counter proposal, 1771.
recognizance, anioupt. 01, 1771, 1772, 1773.
a number of sureties may be taken, 1772.
before whom the recognizi nee is to be taken, 1772-
appointment may be appea.ed from, 1772.
Orders 537 and 588 as to, 1772.
sureties must be resident within the jurisdiction, I773.
in case of death of one, new one must be given, 1773.
order for, what it contains, 1773, 1774.
other things being equal, the person proposed by the party having the

conduct of the proceedings, is usually preferred, 1774.
discretion of Master, or Judge, will not be interfered with, on appeal,*

I775.
costs of appointment to be allowed in passing accouiiit, 1775.
salary atid aflowances, 1779, 1780.
settled by Master, 1780, 1781, 1782.
Master cannot give permission to receiver to bring actions, unless the

power be given by Order of Court, 1786.
receiver's accounts, 1788 — 1794.

receiver mu.l pass his accounts on the warrant of the Master, 1788.
what the accounts should shew, 1788.
practice on, 1 789.

when charged with interest, 1789, 1791.
party may apply for order on receiver to pay in balances, 1790.
order thereon, 1790.

Master may disallow salary, when, 1791.
may be required to attend at Chambers, 1792.

JREDEMPTION, 1019 — 1028.

what a person seeking redemption must shew, 1019.

cases where Court refused to allow redemption, 1020.

where a trial at law may be had to settle the right, 1021.

the Court will act on a. prima facie title shewn by plaintiff, 1021.

where the right to the equity of redemption is in dispute, the mortgagee

may file a bill, in the nature of a bill of interpleader, praying that the

defendants may settle the right between themselves, so that the plaindff

may not put his money to a wrong hand, 1022.
how account to he taken where an assignment of a mortgage has been taken

without communication with the mortgagor, 1022.
direction of Court, where a mortgagee had filed a bill to foreclose against

two rival claimants of the equity of redemption, 1022.
adverse claimants of the equity of redemption cannot generally sue as

co-plaintiffs, 1023.
where they may so sue, 1023.

INDEX.

2029

MASTER'S OY-PIC-E— continued. ')

KV.vvMVTXO's—coniiuued.

prior mortgagee can only be brought before the Court for the purpose of

rec1t:mption, 1024.
the jFule is that a bill can be filed against a mortgagee only for the purpose

of redeeming his mortgage, 1024.
but this rule does not exclufle the right of obtaining, in the same suit,

a2;ainst other parties, relief consequent on such redemption, 1024.
the hill trust, however, relate to the very es'ate which is comprised in the

security, 1025.
the rule that a mortgagee of several estates may refuse to be redeemed in

respect of one unless redeemed in both, does not apply where a sale is

asked by a prior incumbr.mcer, 1026.
if the bill be against the grantee of an annuity in possession of the estate,

for an account of rents and profits, the plaintiff must offer to redeem on

the terms of the annuity deed, 1027.
the offer to redeem should correspond with the decree to which the party

is entitled, 1027.
as a general rule, an offer gratuitously made by the bill, or answer, cannot

be recalled, 1027.
where a mortgagee is made party to a bill, the prayer for relief amounts to

a prayer for redemption, 1028.
REDEMPTION, PROCEKl)lNG< IN CASE OF, I375.

Order.-, 466, as to, 1375, 1376.

directions of Master in proceeding upon a decree for redemption, 1376.

how the accounts are taken, 1376.

REPORT, MASTKK'S, 847—855.

what ii; a report, 847.

no distinction in terms between a " report " and a " certificate," 847.
i though there is a practical distinction, 847.

what this difference is, 847, 848.

Master's reports are either i^cneral or separate, 848.

in what cases these are made, 848, 849.

rule to be observed in preparing, 849.

great care necessary, to disjjose of all the matters referre(', 849.

but Master must not go beyond the reference, 850.

generally speaking, it is the duty of the Master to meet all the difficulties
that may atise in the discharge of his office, 850.

cases where the rule is applied, 850, 851.

" special circumstances ' when Master shall report, 851.

not to set forth the evidence with his opinion on it, 852.

accounts, how referred to in report, 852.

effect of Order 249 on frame of report, 852.

report, prima facie evidence of what it contains, unless appealed from, 852,

when Court will refuse to carry out Master's finding, 853.

order 254, allows any party affected hy report, to file report, 853.

order 251, allows Master to give report to any party, in case party prose-
cuting the reference declines to take it, 853.

Master may appoint any time to sign report, 853.

special rules to be oliserved by Master in framing report, under Orders
250, 255, 256, and 257, as to making money payable at a particular
time and place, 853, 854.

and under Orders 310, 311, and 312, as to insertion of costs in report, 854

and under Order 317, as to administration suits where the costs amount to
25 per cent, of the value of the property involved, 854.

Master to certify proceedings in his office, under Order 239, 855.

parties to raise before Mister, all points, which may afterwards be raised
upon appeal under Order 24S, 855.

REPORTS, SEPARATE.

Master may make, without special direction, 855.

REPORT, CORRECTING ERRORS IN, 85S — 860.

2030

INDEX.

>
t
i

tilt l

MASTER'S OVFlCE—cantinued.

RKroRTS, CORRECTING ERRORS IN — continued.
Master not at liberty in subsequent report, to correct an error in a previous

one, 855.
when clerical error in report, may be corrected on an ex parte application,

855, 856. I

caoes where the Court will correct a report without referring it back to the

Master, 856, 857.
report not to be dated until the costs have been revised and returned to

Master, 857.
no costs allowed for attending the Master to settle or sign report after the

bill has been revised, 857.
revision of costs, practice as to, under Orders 311, 312, 313, 857.
REPORT, FILING THE, 858 — 860.

report must be filed in Toronto — not in an outer county, 858.

becomes absolute fourteen days after filing under Order 252, unless
appealed from, 858.
in mortgage cases must be filed before the day appointed for payment, 858.
vacation, not reckoned in computation of time appointed for report becom-
ing absolute, 858.
vacation in Order 408, it is presumed, includes lK)th the " Ix)ng " and

•• Christmas " vacation, 858.
cases where report does not require confirmation, 859.
rule, defining what class of reports, does not require to be confirmed, 859,
certificates of Master do not, 859, 860.
REI'ORT, APPEAL FROM, 860— 868.

English practice of filing exceptions to report, 860.

Order 253 establishes the practice of appealing instead, 861.

appeal lies at any time within the fourteen days allowed for confirmation,

861.
the expressions "except to report," and "exceptions," mean "appealing

from the report," and " objections by appeal, 861.

all parties to the record, who are interested may appeal, 861.
creditors who have established their claims are permitted to appeal, though

not parties to the suit, 861.
and so also may persons, claiming as next of kin, whose claims have been

disallowed by the Master, 861.
and so may a purchaser under a decree for sale in the Master's office, 861.
when appeal set down, it is argued before the Court, 862.
no argument permitted on evidence not before the Master, 862.
defendant's answer cannot be read on the appeal, if it were not read before

the Master, 862.
if Master improperly rejects evidence tendered to him, it should form a

specific subject of appeal, 862.
not competent to the Court, upon appeal, to make an order not consistent

with the original decree, 863.
if, upon argument, the appeal is overruled, the overruling has the effect of

confirming the report absolutely ; and if cause has been set down to be

heard on further directions, the Court will at once hear it on further

directions, 863.
if any ground of appeal upheld, cause will be sent back to Master, 863.
rule as to costs, where there are different solicitors, 863.
report may be sent back to Master, before Court decides on the appeal,

863.
practice as to this, 864.

appeal is to the Court, — not to Chambers, 864, 865.
appeal not allowed after confirmation of report, without leave first obtained

on special application, 864.
parties who have no further interest in report, cannot appeal, 864.
motion for leave to appeal must be on notice, 865 .
this motion may be mede before the Referee, 865.

■^m

INDEX.

2031

tier 252, unless

e "Long" and

confirmed, 859.

MASTER'S OVVlCE—€ontinue,i. ;

RlCl'ORT, APPEAL FtiOtA—rOMtintUi/.

appeal from Master's certificate as to costs should be to the Court, not to a
Judge in Chambers, 865.

appeal will not be entertained where the amount involved is very trifling,
and no principle involved, 865.

party applying for leave to appeal, besides accounting for the delay, must
make out z. prima fade case for appeal, 866.

cases where leave to appeal, given and refused, 866.

Master in this Province has been given a greater discretion as to the con-
duct of references, than he possessed in England, 867.

Older 320, provides for the costs of appeal, 867.

cases as to the costs of appeal, 867.

appeal from Master's certificate of taxation should be by motion,— not by
petition, 867.

appeal from Master's decision as to the admissibility of evidence may be
made before he makes his report, 867.

appeals from Master's rulings, as well as from his reports, should be to the
Court, 868.

cases, where report sent back to Moster for irregularity in his proceed-
ings, 868.

REPORT, APPEAL FROM, PROCEEDINGS TO HE TAKEN ON, 869.

notice of appeal, stating the objections to the report, to be served, 869.
not to be served upon parties who have merely been served with oflfice

copy decree, and have not been made parlies, 869.
motion set down for argument under Order 416, S69.
this is a seven days' not'ce under Order 418, 869.
adjourned appeal cannot be heard in June, under Order 420, 869.

RE''ORT, REVIEW OK, 869 — 87I.

Court will, in many cases, direct the Master to review his report, without

appeal. 869.
or, if appealed, will direct it to be reviewed upon grounds independent

of those taken on the appeal, 869.
this may be done upon the hearing on further directions, 869.
instances, 869, 870.

a petition to review will sometimes be entertained, 870.
but the Court is very cautious in ordering a review, 870.
will do so, only in cases of fraud, surprise, or mistake, and then only on

a strong case being made, 870.
when a review ordered, the Master may take further evidence, 870, 871.
Court will, at almost any stage, make a special order for correction of

slips in a report, 871.
motion to correct a clerical error in report, should be on notice, though

it was formerly hekl that it might be done on an ex parte application,

871.

REPORT, SETTING ASIDE, 871.*

cases where the Court will set a Master's report aside, 871.
RESTS, TAKING ACCOUNT WITH, 829 — 839.
meaning of the expression, 829.
form of account, taken with rests, 829.
Master may take account with, without any special direction, under

Order 220, 829.
cases where Court has charged executors or trustees with compound

interest, by ordering it to be taken " with rests," 829, et seq.
grounds on which executor or administrator may be charged with simple

interest, 830.
he must not keep money dead in his hands without good reason, 830.
rate of interest charged against executor, English rule, 830, 831.
our rule, 836.

where breach of trust, higher rate charged, 831.
if executor uses trust money, he must pay the interest he has made, 831.

2032

INDEX.

<« W Ml

5* -2

1

MASTER'S OFFICE— continuetf.

RESTS, TAKING ACCOUNT WITH — continued.
if the fund employed in trade, the cestui que trust has the option to take

either the interest, or the profits, 831.
instances of executors having been charged with the highest rate of

interest, 832—834.
cases where he will be charged with compound interest, 834.
the principle on which they are thus charged explained, 835.
in this Province six per cent, charged, 836.
no separate rates of interest applicable to different cases in this country,

836.
" with rests," means compounding every year, 837.
executor not bound to call in money invested by testator at six per cent.,

in order to invest at higher rate, 837.
executor, guilty of negligence merely in omitting to invest moneys, will

be charged with interest at six per cent., 83^.
general rule is, that the Court contents itself with charging trustees with

the principal only of what they might have received, but have not

received ; and does not, in addition, charge them with interest, 839.
executor may be allowed his commission, though charged with interest

and rests, 839.
improper to charge a mortgagee in possession with annual rests on rents

received by him, until he is paid oflF in full, 839,
agent chargeable with annual rests, 839.

RESTS, MORTGAOKE IN POSSKSSION, CHARGED WITH, 84O — 844.

usual mode of taking account against mortgagee in possession, 840.

it is not, of course, to direct rests against the mortgagee in possession.
840.

rule, where interest in arrear at the time of taking possession, 840.

mortgagee has the right not to be paid piece-meal, 840, 841.

instances of his being charj^ed with rests, 841.

where he has taken bills for arrears of interest, which have been
dishonored, 841.

rests sometimes luade in taking accounts of occupation rents, 841.

rests against an incumbrancer, 841, 842.

by English practice, rests must be ordered by the decree, 842.

but in Ontario the practice is different, under Order 220, 842, n. (2).

mode of calculating interest, where the direction is to ascertain the
balances in the hands of an accounting party at the end of each
year, and to compute interest thereon at the end of each year, 843.

mode, where in such a case rests are ordered, 843.

estate of bankrupt executor charged with the amount of rests, notwith-
standing the bankruptcy, >43.

half-yearly rests, not generally allowed, 844.

SALE UNDEK MORTGAGE DECREE, IO37 — IO5O.

in England this power is given to thi Court of Chancery by 15 & 16 Vic

c. 86, s. 48, 1037.
it gives no absolute right to the parties to require a sale, but a power to

the Court to decree it, 1037.
object of the act, 1037.
when sale refused, 1037, 1038.

orders, 426, 428, and 429 have been framed from this statute, 1038.
orders 430, and 431 on the sam^ subject, 1038, 1039.
order of 29 June, 1861, piesumed to be still in force, on the same subject,

1039.
when subsequent incumbrancer entitled to a sale, 1039.
where decree is for sale, the Court will not, on default, grant an order of

foreclosure fjr/<zr/^, 1039.
infant defendants, not entitled, as a matter of course, to an enquiry as to

whether a sale or foreclosure is most to their benefit, 1039.
but there appears to be a difference of opinion on this point, 1039, 104a

option to take
est rate o(

834.
835-

n this country,

at six per cent.,

it moneys, will

ng trustees with
1, but have not
: interest, 839.
J with interest

a.1 rests on rents

-844.
ession, 840.
in possession.

ssion, 840.
841.

Lve been

ents, 841.

, 842.
842, n. (2).
:ertain the
id of each
:h year, 843.

rests, notwith-

y by 15 & 16 Vic
c, but a power to

|itute, 1038.
the same subject,

grant an order of

an enquiry as to

|039-

tnt, 1039, 1040.

INDEX.

2033

J

MASTER'S OFF\CE~con/int4fJ.

SALE DNUKR MOR'IGAC.E DECREE— f <?«//«««/.

a judgment creditor is entitled, at his option, to a decree either for sale
or foreclosure, 1040.
1> in a later case it was held that the nde is to grant a reference, as of
course, to enquire whether a foreclosure or sale is more fur the benefit

of the infant, 1040.
if affidavits are filed satisfactory to the Court, or if the guardian consents,

the reference may be dispensed with, 1040.
provisions of the Stat. 4 and 5 William and Mary, c. 16, s. 3, 1040, 1041.
prima /arte, a mortgagor is entitled to six months to pay amount of mort-
gage money, 104 1,
to obtain a sale at an earlier day, some special ground must be shown,

IC41.
an order for payment of deficiency, after sale, will not be made against an

assignee, 1041, 1042.
but against the mortgngor only, 1042.
case of an ngreement to release part of mortgaged premises, on payment of

part of mortgage money, 1042.
mortgagee not compelled to prove his cl.aim in insolvency, 1042.
chartered banks of the F^rovince have a right to a decree of foreclosure,

upon a mortj^age held by them as security, 1042.
the Court will, where it is considered beneficial to an infant defendant,

direct a sale, instead of a foreclosure, w iihout requiring any deposit to

cover the expense of the sale, 1042.
cases where a sale ordered, 1043.

the strict right of the mortgagee is foreclosure, not sale, 1043.
rights of e'quitabie moitgagee less clear, 1043.
the principle now estal)ii^hed, 1043, 1044.
right of foreclosure clearly belongs to the mortgagee of the equity of

redemption, 1044,
depositee of title deeds also entitled to foreclosure, 1044.
doutits exprds^e.l as to this rule, 1044, 1045.
it seems that the lethal or equitable mortgagee has a general right to a sale,

where the security is, or is thought to be, scanty, 1046.
it is a settled rule in equity that a mortgagee in exercising a power of sale,

must take reasonable means of preventing a sacrifice of the property,

1047.
where the prayer of the bill is in the alternative for either a sale or fore-
closure, the Court will at the instance of the plaintiff, make a decree for

sale, and in the event of the sale failing to produce sufficient to cover

the claim of the plaintiff, order foreclosure, 1048.
moitgagee of a reversion entitled to a sale, 1048.
assignee under the insolvency of the mortgagor has no right to pray for a

sale of the mortgaged estates in a suit for redemption of the several

incumbrancers, 1049.
a power of sale in the mortgage does not affect the right of foreclosure,

1049.
rule different where there are trusts, 1049.
mortgagee of stock, and personal chattels entitled to sell, upon notice —

but he is also entitled to foreclosure, 1049.
and this al>o in the case of a reversionaiy interest in stock, 1049, 1050.
mortgagee of a policy of insurance entitled to a sale, 1050.
sale may be ordered, though foreclosure only prayed, 1050.
no sale can be made as against a moitgagee with a paramount title without

his express consent, unless it be made subject to the mortgage, 1050.
SALE, PROCiiEUlNGS UNDER AN ORDER FOR, U39 — 1163.

orders 453, 454, 374, and 375, provisions of as to sales, 1 139.

who are the parties to be served under these orders, II40.

how warrant underwritten, 1 140.

orders 376, aud 377, as to the proceedings in the Master's ofiice, 1 140.

2034

INDEX.

5

"5-

MASTER'S OVFlCE-fott/inue,/. '

SALE, PROrEKDINOS UNDKR AN ORDER TOVi— continued .

order 597, as to style of suit, 1 140. '

what the advertisement should contain, 1 140.

what condition of sale is objectionable, 1141.

duty of Master well pointed out in McDonald v. Gordon, 2 Cham. R.

order 378, provisions of as to the duties of the Master, 1141.

duties of mortgagor in settling the advertisement in Master's ofRce, 1 141.

when confirmation of sale mav be opposed before Master, 1 141.

particulars of advertisement should be verified by affidavit, 1 142.

auctioneer's fitness usually verified, 1142.

order 379, as to the conditions of sale, 1 142.

order 380, as to upset price, and reserved bidding, 1 142.

from what time the purclmser will be held liable for interest, 1 142.

usual for Master to fix either an upset price, or a reserved bid, II43.

reserved bid, practice as to, 1 143.

reserved bid, an unsatisfactory procee<1ing, 1 143.

entry of Master on settling the advertisement, 1144.

auctioneer's fees, what shouM be allowed, 1 145.

auctioneer not entitled to a pefcentage, 1 145.

he can recover no more than the sum named by the Master ; and it he re-
fuses to make the necessary affidavit of sale, he will be attached, 1 145,

duplicate advertisement should be filed, 1 145.

conditions of sale not settled by Master, 1 145.

orders 378, and 382 as to, 1 145.

sti ictly, the sale is a cash one, 1 145.

but this right is frequently waived, 1 145.

sale, how and by whom conducted, 1 145.

order 383, as to this, 1 145.

neither Master nor his clerk should act as auctioneer, 1 145.

order 384, as to biddings, 1145.

solicitor conducting the sale, allowed a fee, 1 146.

adjournment of sale, how made, 1 146.

order 381, as to parties entitled to bid, 1146.

cases under this order, 1 146, 1147.

party to the suit, desirous of purchasing should obtain an order giving him
leave to bid, 1147.

to whom leave will be given, 1 147.

order 385, as to »he deposit, 1 147.

order 386, as to the affidavit of sale, 1 147.

newspapers containmg advertisement need not be filed, 1 148.

warrant " to settle report on sale," to be served, 1148.

on whom to be served, 1148.

order 387, as to the form of the report on sale, 1 148.

report to be filed in Toronto, 1 148.

becomes absolute after fourteen days, unless appealed from, 1 148.

practice where sale abortive, 1148, 1 149.

duty of Master where it is offered to shew that improprieties have been
committed at the sales, 1 149.

when a I e-salc directed, 1149.

purchaser, setnble, has a right to take out the report on sale, 1 149.

besides the remedy before the Master, a party injured by an improper sale
may move the Court to set the sale aside, 1 149,

order 388 regulates this practice, 1 149.

meaning of the term "highest bidder" ; omission in advertisement, what
is the effect of, 1150.

nature of the contract entered into by a person becoming a purchaser at a
sale under a decree, 1 150.

"opening the biddings," meaning of, 1 150.

when this will be done, 1150, 1151.

who may open the biddings, 1151.

INDEX.

2036

order giving him

MASTER'S OFFICE— owdnuftf.

SALE, PROCEKUINGS UNDKR AN ORDER ¥OVk—eontinued.

rule is, that a purchaser is not bound by any irregularity in the proceed-
ings, so as to cause him to lose the benefit of his purchase, 1151, 1152.

solicitor having the conduct of a sale cannot withdraw the property after n
bid has been made, 1153.

the biddings will not be opene<l, after great delay, against an innocrni
purchaser, unless misconduct is shewn on the part of the purchaser, 1 153.

mere advance of price is sufficient to open the biddings, 1153, 1 154.

what advance will induce the Court to open biddings, 1 154, II55.

where biddings opened, purchaser entirely discharged from his purchase.

>«55-
the rules which regulate the practice of opening biddings, do not apply

when a colliery is the subject of sale, 1 1 56.
when the application to open the biddings should be made, 1 157.
none but very particular circumstances will induce the Court to open the

biddings, after the report on sale has been confirmed, 1 157.
fraud will, however, be a sufficient ground, 1158.
application to be mi.de by motion, 1 1 58.
notice of motion .nu£. be served on the purcha.scr, and on the parties to the

cause, 1 1 58.
what the order usually directs, 1 1 59.

consequences of default in complying with the terms of the order, 1160.
proceedings upon the resale, 1160.
deposit paid on opening biddings, considered as part of the purchase

money paid, 1161.
Court will, where it is for the interest of the parties, allow a sale to be

made by private contract, 1 161, I162.
practice in such a case, 1 162, 1 163.

Procecdingi after the confirmation of the report on sale, 1 163, 1 164.
order 389, as to these, 1163.
how possession obtained by purchaser, 1 163, 1 164.
when the purchase money will be ordered into Court, 1 164.
SIMPLE CONTRACT, CLAIM ON, 904.
particulars shewn by affidavit, 904.
if creditor dead, how claim brought in and proved, 905.
case of claim brought in by assignee of bankrupt or insolvent, 906.
case of claim brought in by assignee of debt, 906.
case of debt due by testator to his surviving partners in his separate

account, 906.
rules of priority in which the various claims should he fixed by the report,

and paid by the Court out of the assets of the e.state, 906.
present rule settleii by 29 Vic. c, 28, s. 28, 907.
rule as to estate of person dying before 18th September, 1865, 907.
distinction between legal and equitable assets, 907.
legal assets, what are, 907.

true test, as to whether assets are legal or equitable, 908.
equity of redemption may be sold under 12 Vic. c. 73, 908.
and is, therefore, usually a legal asset, 908.
exceptions to this rule, 911.

proceeds of sale of real estate, equitable and not legal assets, 909.
case where assets are partly legal, and partly equitable, 910, 911.
case of mortgagee, and mesne incumbrancers, 912.
if an asset be equitable, all claims as to it are paid pari passu, but ii legal,

in a certain order of preference (excepting in the case of a person dying

after i8ih September, 1865), 912.
funeral expenses allowed before any debt, even before a debt due to the

Crown, 912.
proving the will, or taking out administration, 913.
costs of a suit in equity considered as expenses in administering the estate,

and are a first charge, 913

2036 >

INDEX.

W-i-i

MASTER'S OFVlCE—con/wufd.

SIMPLE CONTRACT, CLAIM OH —COfttwued.

meaning of the expression "testamentary expeuses,^^ 913.

the third occasion of disbursemei.t is the payment of debts, 913.

penahy if executor_;pay these ovit of the due order of priority, 913.

testator cannot alter the rules of precedence, 913.

case ^f debtor dying domiciltd in England, leaving assets in a foreign

country, what rule governs ir the administration of the assets, 914.
solicitor has a prior right to his costs, even as against specialty creditors,

Crown debts by record or specialty preferred to all other debts, 915, 916.

rule as to Crown debts in Ontario altered by 29 Vic. c. 28, s. 28, and
Con. Stat. Tj. C, c. 5, 916, 917.

duty of Mpster after having received proof of claims, 917.

practice as to reporting on the usual enquirits f^i»-cted by an administra-
tion order, 917.

first enquiry, account of personal estate not specifically bequeathed, 917.

Master should take care that the account is framed in accordance with his
directions, 917.

executor of deceased partner, bound to prepare account from the partner-
ship books, 918.

second direction, to take an account of testator's or intestate's debts, 918.

meaning of this enquiry, 918.

how account made up in answer to this enquiry, 918.

/^'rrf enquiry,-:— account of funeral expenses, 918.

object of this enquiry, 918.

what are pioper allowances under this enquiry, 9; 8.

first duty of executor to bury testator, 91S.

funeral expenses are allowed before any d^^bt or duty whatsoever, 919.

but no extravagance is peimiited, 919.

what allowed as against crediiors. 919, 030.

cost of tombstone allowed, 919, n. (i).

picture of deceased not, 919, n. (i).

funeral expenses sliould l)e in pi(.>portion to the estate, 919, n. (r).

cases of amounts aljon'ed, 918, 919, 920, 921, 922.

mourning for widow and family, not a funeral expense, 921, n. (4).

case of a marbl.' statue, 922.

vestamentary expensiis are included in the inquiry as to funeral expenses,
922, 923.

fou7-ih enquiry, legacies left by testator, 923.

what is a " legacy," 923.

this term, in jjractice, used in its widest sense, 923,

fifth enquiry, what part, if any, of the personal estate are outstanding,
or undis|)osed of, 923.

how this should be sl;ewn by the accounts fi'ed, 923.

direction of decree that the testator's personal estate, not specifically be-
queathed, be applied in payment of <lei>ts and funeral expenses, in a due
course oradmiiiisiraiion, and then in payment of legacies, 923.

sixth enquiry, wlu real estate the testator died seized of, or entitled to, at
the time of his death, 924.

how this enquiry is answered, 924.

object of the enquiry, 924.

seventh en. uiry, what incumbrances affect testator's real estate, 924.

how this encpiny is answered, 924.

when widow entitled to dower secured out of surplus, after claim under
mortgage satisfied, 924.

eighth enquiry, what rents end profits of testator's real estate have been
received by executor, 925.

how this enquiry is answered, 925.

administrator dealing with real estate, is treated by ihe Court as an
executor, 925.

913-
, 9'3-

its in a foreign
sets, 914.
iaUy creditors,

ehts, 915, 916.
28, s. 28, and

an odministra-

.lealhed, 917.
rtlance with his

am the partner-

te's debts, 918.

INDEX.

2037

soever, 919.

n. (T).
n. (4).
Lineral expenses,

outstanding,

s|)ecifically be-
penses, in a due

923-
;;r enlitled to, at

state, 924.

ter claim under

itate have been

lurt as an

MASTER'S OFFICE— co»imued. I

SIMPLE CONTRACT, CLAIM ON — continued,
executors dealing with real estate without authority under the will, treated

as trustees, 925,
their duty in such a case, 925.
suusEQUENT PROCEEi>iNGS IN MORTGAGE SUITS, iH slx different cases and

their subd ivisions, 1 1 1 6 — 1 1 39 .
First, where the cas: is foreclosure between mortgagee and mortgagor, or

their assigns simply, and the mortgagor or his assignee pays, 1 116.

order 450, as to this, 11 16.

practice where the mortgagor applies to the Court for further time to
pay, 1 1 17.

cases on this point, 1117, 1118, 1119.
Secondly, where in a foreclosure suit between mortgagee and mortgagor, or

their assignees simply, default is made in payment, 1 1 19.
order 451, as to this, 11 19.

final order of foreclosure, practice in obtaining, 1 1 19.
what bank officer shall certify, 11 20.
cases on the application for this order, 1120, Ii2i, 1122.
case, where a final order for sale is moved for, 1121.
order issued by Registrar, 1122.
how order of foreclosure registered, 1122.
practice where, after taking the account in the Master's office, and before

final order, the mortgagee receives moneys on account, or goes into

possession, or collects rents, 1122.
orders 457, 458, 459, 460 .-n this point, 1 123.
Thirdly, where there is a subsequent incumbrancer in a foreclosure case, and

he j/takes default, 1 1 24.
practice in such a case, 1124.
orders 441 to 554 inclusive, referred to, 1124.
Master to give incumbrancer six months to redeem, and the mortgagor

three, 11 24.
Fourthly, where there are several subsequent incumbrancers, in a case for

foreclosure, and they all make default, 1125.
what the report will state in such a ca^e, I125.
f ictice in such a case, 1125.
] session, how obtained, 1125.
order 464 on this point, 1125, 1x26.

application under this order cannot be made ex parte, 1126.
order applies to mortgage cases only, 11 26.

tenants of mortgagor cannot ut dispossessed under this order, 1126.
cases decided under th's order, 1126, 1127.
W(? decrees, practice, v/-ere an incvmbrancer redeems the plaintitt', and

where a subsequent ..icumbrancei redeems a prior one, 11 27.
order 452 points out mode of pronoeding, I127.
order 450, eff'ect of, 11 28.
' details of proceedings under these orders, I128.
setting aside orders for foreclosure, and enlarging the time to redeem, 11 29.
when defendant not allowed to move to set aside final order for foreclosure,

1 1 29.
when mortgagors cannot move for this purpose, I129.
final order set aside by purchaser of equity of redemption, 11 29.
when a foreclosure decree cannot be opened, 1129.
will be opened in case of fraud or collusion, I129.
enlarging the time to redeem, and opening the forecloiure, 1 179.
mortgagor may be relieved in certain cases, 1 129.
application to be made, by whom, 1129.

as a general rule, this indulgence is granted in a foreclosure suit only, 1 1 29.
relief may be granted under special circumstances, I130.
Court will give more than one extension of time, on good cause shewn, II30.
but the time is not enlarged, as of course, 1130.

?08$

INDKX.

%

^1

MASTER'S OFFlCE—conftnuid.

SIMPLE CONTRACT, CLAIM Qi^ — continued.
a strong case must be made to support a third or fourth application, 1 130.
what must be shewn on the application, II 30.
what period will be granted as an enlargement, 1131.
order for enlai^eiient, what it commonfy directs, 1131, 11 32.
consequences of the conditions imposed by the order, not being complied

with, 1132.
Court will order a new day for payment, 1 132, 1 133. *
applicant, what he must shew, 11 33.

enlargement may be made after enrolment of the order absolute, 1 133.
enlargement will also be made by reason of some act done by mortgagee,

"33-

not the practice to put the person redeeming upon terms of immediate

payment of interest and costs, when time enlarged by reason of the

act of the mortgagee, 1 134.
foreclosure may be opened, if the mortgagee sue upon his covenant or

bond, 1134, 1135.
it will also be ppened, if the decree have been o1>' lined by ialse evidence,

or other fraudulent or collusive practices, ii3f'
when foreclosure will not be opened, 1131 1137.
when an incumbrancer seeking to open the foreclosure will be required

to give security for costs, 1157.
laches. Court will not assist a party guilty of, II 38.
Fifthly, where, in case of a decree for sale, there are no in^-mbrancers,

1 138.
in such a case a sale takes place after the expiration of the six months

given by the report, 11 38.
and the proceedings to obtain an order for sale are the same as those for

obtaining an order for foreclosure, 1 138.
what is to be shewn on moving for an order absolute fo- jale, 1 138.
Sixthly, in a similar case, where there are incu:.>:r<.!uers, and they all

make default, or where one redeems, 1 138.
difference between sale and foreclosure decrees, 1138.
order 456, as to incumbrancer desiring a sale, 1 139.
a sale will not be ordered at the instance of a subsequent incumbrancer

until after the mortgagor has had the usual time to redeem, 1 139.

SURCHARGE, PROCEEDINGS ON, 844—847.

practice under Order 237, 844.

duty of Master after accounting party has given all his evidence, 844.

" hear and determine," and " settle report," synonymous terms, 845.

mode of proceeding to, 845, 846.

Order 247, on this practice, 845.

power of Master to open case for reception of new evidence, 845.

draft report, preparation of, 846.

appointment to sign engrossment, 846.

report shall bear the dale of its actually being signed, 846.

proceedings on the appointment "to sign," 846.

no evidence can be received after report actually signed, 846.

Court gives credit to what the Master reports as occurring in his

presence, 846.
pending an enquiry, the Court will not interfere with Master, 847.
Master's report speaks from its date, 847.
not to be dated until the costs have been revised, 847.

TRUSTEES, APPOINTMENT OF NEW, I383, I384.
what evidence required, 1383.
order to be made thereon, 1383.

proceedings where decree orders conveyance of trust estate, 138,;.
trustees appointed by Court, not authorized to appoint successor , except
in the case of a charity, 1384.

INDEX.

P?^

lication, ii30*

)eing complied

>lute, II33-
I by mortgagee,

IS of immediate
)y reason of the

lis covenant or

' ialse eyidence,

ill be required

mbrancers,
■ the six months
ame as those for

lie, 1 1 38.

trs, and they all

it incumbrancer
;m, 1 139.

lence, 844.
terms, 845.

e, 845.

16.
In hit

er, 847-

lessor , except

MASTER'S 0Y¥IC1^— continued.

TRUSTEES, APPOINTMENT OF NEW, 1806, I807.

practice in Master's office, on, 1806.
where counter proposal made, 1806.
agreement to act should be filed, 1806.
evidence required, 1806.

report to be filed, and may be appealed from, 1807.
vendor's lien, 1008— 1019.
what it is, 1008.
when it exists, 1009.
how affected by vendor taking a draft, note, or bill of exchange for the

unpaid money, 1009.
or by taking security by mortgage, bond, or covenant, 1009.
this lien has priority over a registered judgment, loio.
lien retained where land conveyed in consideration of vendee providing

vendor with maintenance, washing, Ac, loio.
cases where lien held to exist, or to have been lost, toio, loii, 1012, 1014.
the question sometimes becomes, in a great measure, one of intention, loi i.
when lien not named, 1012, 1013.
the principle that a vendor, by taking an endorsed note as security for

unpaid purchase monev, does not lose his lien, is equally applicable where

the security given is a bond, in which a third person joins as security,

1014.
rights and franchises of a railway company do not prevail over a vendor's

lien, 1014.
the taking a distinct security is always prima facie evidence that the lien

has been abandoned, 1014, 1015, 1016.
other cases in which Courts of Equity have raised a lien upon property for

money expended, or debts remaining unpaid, loio.
case where money advanced without notice thai the property is trust pro-
perty, 1017.
case of assignment by debtors, 1018.
solicitor entitled to a lien upon fund in Court, recovered by his exertions,

1018.
cases where he has no lien, 1018.
cases where he has a lien upon documents, 1018.

WARRANT TO CONSIDER, 742 — 746.

order 216, provides for this warrant, 742, 743.

Master, to keep " Master's Book," under order 218, 743.

what to .)e entered in Master's Book, 743.

irregular to proceed in Master's ofiice during the two vacations, 743.

no grace allowed on appointments, or warrants, before the Master, an

Examiner, or Deputy Registrar, 743.
how costs may 'oe recovered against delinquent party, 743.
proceedings under warrant to consider directed by Order 217, 744, 745.
the issue of this warrant discretionary vith Master, 744.
WARRANT TO CONSIDKR, HOW TAKEN OUT, AND UNDERWRITTEN, 746 —

751-

service of, 746.

must be one clea'- day between service, and attendance upon, 747.

two clear days on all other warrants, 747.

Sunday, and other legal holidays not counted, ''47.

service on a person who has appeared in person, under Orders 44 and 45,

747-
when service of warrant dispensed \vith, 747.
warrant " on leaving," — object and service of, 747.
proceedings on return of warrant to consider, 748.
proceedings prescrilied by Order 240, 748.
marking of warrant by Master, importance of, 748.
no state of facts, charges, or disbursements, to be brought into Master's

office, by Order 229, 748.

2040

INDEX.

I

MASTER'S OFFICE— continued.

WARRANT TO CONSIDER, HOW TAKEN OUT, AND UNDERWRITTEN — (Onttnued.

separate warrants not to be issued, by Order 241, 749.
consequence of defective underwriting of warrant, 749.
reference to be called on and proceeded with at the day and time fixed,

unless Master sees fit to postpone, 749.
Master may postpone on terms, 749.
how far he may go, 749, 750.
Master to proceed de die in diem, 750,
but may adjourn, under Orders 214 and 215, 750.
proceedings of Master, when he adjourns, 750,
parties bound by his direction as to adjournment without service of

another warrant, 750.
Orders 242 and 243 as to adjournments, 750.
Master's directions as binding as a warrant vrndci Order 231, 751.
lapse of warrant, to be avoided, 751.
attendance on warrant peremptory, 75 1.
in case of non-attendance of a party duly served, Master may proceed

ex parte, 751.
in case of non-attendance of party by whom warrant taken out, it must

lapse, 751.
costs given to opposite party attending in such a case, 751.

MASTER (TAXING). See Taxing MastexI.

MEASURES,

legal, judicially noticed, 386.

MEDICAL MAN,

communication to, not privileged,. 410.

MEMBER OF PARLIAMENT. See Parliament (Member of), and
Privileged Person.

MEMORANDUM,

notice of the decree, indorsement of, 347.

service of notice of the decree, entry of, 347.

direction for, how obtained, where service irregular, 347.

MERCHANT,

assistance of, how and when obtained, 613 ; and see Expert.

MILL,

partition of, how effected, 706.

MINES,

manager of, when appointed, 1761 — 1763, 1800.
purchaser of, when entitled to possession, 1355.
receiver, when appointed of, 1761.

MINUTENESS,

of plaintiff's interest, immaterial, if existing and indefeasible, 262.

MINUTES (OF DECREE OR ORDER), 628—629.
alterations in. Registrar's power to make, 630.
counsel's signature to, when required, 630.
injunction, service of, when sufficient, in cases of, 1701, 1 7 10.
preparation and issue of, 628.
settlement of, 629, 630.
appointment to settle, when given out, 629 ; adjournment of, 629.
attendance at, and consecfuences of default, 629.
service of, time for, how effected and proved, 629.
without appointment or notice, 629.
variation of, how effected, 630.
motion for, when made, 630.
time for, 630.

INDEX.

2041

629.

MISBEHAVIOUR,

general charge of, acts of misconduct, how far provable under, 538.

MISCASTING,

decree or order in, rectification of, after enrolment, when permitted, 640,
schedules, in, 641.

MISCONDUCT,

acts of, how far provable under general charge of misbehaviour, 538.

executor, of, receiver when appointed, in consequence of, 1 756.

husband deprived of income of wife's property for, 8l.

jury, of, new trial on account of, at law, 687,

next friend removed for, 59.

wife deprived of equity to a settlement for, 83.

witness, of, new trial on ground of, at law, 689.

MISDEMEANOUR,

plaintiff under sentence of, not required to give security for costs, 25, 26.

MISDESCRIPT[ON,

next friend, o", securu;' *"or costs required in case of, 293, n. (7).
plaintiff, of, sei urity for ». osts required in consequence of, 292.

seats, in cress bill, 203. '

MISDIRECTION,

Judge, of, new trial of issue on ground of, 680 ; at law, 683.
costs of first trial, 699.

MISJOINDER,

amendment, leave for, when given at hearing, in cuses of, 245, 252.
former practice in case of, 190, 191, 251 ; present practice, 193.
injunction, or receiver to protect property pending litigation, notwitli-
standing, 253.

MISNOMER,

correction of, in title of cause, by answer, 458.

MISTAKE,

action restrained on ground of, 1640.

answer, in correction of, by supplemental answer, when permitted, 475,

Court, of, dismissal of bill without costs, in case of, 484.

Judge, of, new trial at law on ground of, 680.

mutual, bill filed under, dismissal of, without costs, 484.

next friend of infant not deprived of costs out of the estate, for, 65.

rectification of, in proceedings on behalf of charities, 9, 309.

of infants, 58, 308, 309.
witness of, new trial at law on ground of, 690.

MODUS,

certainty required in allegations of bills to establish, 302.

class suit, when permitted in cases of, 195, 196.

decreed on defendant's admission under general relief in tithe suit, 304.

evi<lence in case of, 545.

issue, right to, in cases of, 670.

owner of inheritance necessary party to suit to establish, 168, 218.

proved by defendant, plaintiff may have decree for, 305.

MONEY,

payment into Court, 1808—1823 ; see Payment into Court.
payment out of Court, 1824 — 1833 ; see Payment out of Court.

MONTH,

how computed, 289.

MORAL CHARACTER,

discovery must be given as to facts reflecting on, 399.

unless they render defendant liable to spiritual censuve, 399.

^64'^

INDEX.

k
Q

1

MORAVIAN,

affirmation of, how taken, 576.
answer of, how taken, 467.

MORtGAGE, and see Master's Office.

accompanied by bond, one not redeemable without the other, 273.

assignee of, last, only necessary party, 155.

deed, when provable as exhibit at hearing, 562.

husband and wife, by, resulting trust in^ i(X>.

investment in, 1376—1379 ; and see InvestmSnt in Purchase or! on

Mortgage of Land.
notice of, proved by one witness and combinative circumstances, though

denied by answer, 532.
persons interested in money, necessary parties to foreclosure or redemption
suit, 170, 174, 213.

urless interests sufficiently represented, 170, 215.
rai J money by, 1382 ; and see Raising Money (by Sale or Mortgage).
sevv^^, to same mortgagee, are not redeemable withoift others, 272.
wife's, assignable by ntisband, if for years, ido ; secus, if in fee, 100.
wife's, in fee, not affected by his bankruptcy, lOO.

MORTGAGEE, and see Master's Office.

account directed at instance of, against purchaser from mortgagor, though

not prayed, 306.
assignment of mortgage, not necessary party after, 174, 215.

but may be, to account for rents received, 216.
claimants under, in redemption suits, costs of, 215.
costs of, 1474 — 1485 J aind see Costs.
costs of, at law, accovtnt c^, not directed on motion under 7 Geo. II. c. 20,

unless alluded to in bill, 271.
creditors of, sufficiently represented by trustees, where assignment for

their benefit, 171.
derivative, when necessary parties, 155, 216.

original mortgagee necessary party to foreclosure suit by, 1 74.
different estates for one sum, of, can require their simultaneous redemption,

171-

different estates moiftgaged by one mortgagor, of, can require their simul-
taneous redemption, 171.

although one, a mortgage of personalty and the other of realty, 171.
discovery whether a trustee, not required in redemption suit, 4O4.
election between suit and action, not put to, 513.
heir of, when necessary party, 154 ; when not, 154, 174, 175.

foreclosure suit by, parties to, 1 79, l8a
lamd, necessary party to suit for, 219.

mortgagor necessary party to suit by second to redeem first, 172.
original, necessary party to suit by derivative to foreclose, 174.
personal representative of, foreclosure suit by, parties to, 180.
personal representative of nicrtgagor necessary party to suit by, as general

creditor, 238.
possession, in, receiver not appointed against, 1 75 1 , 1 752.

unless paid off, 1755.

security to refund, -.vhen taken on payment off of, 1753.
prior, not necessary party to foreclosure suit by subsequent, 173 ; but is

to redemption suit, 234.
prove against personalty frr whole debt, and realise his security, permitted

to, 238.
purchaser of, necessary party to suit to set purchase aside, 234.
second may redeem first without subsequent incumbrancer, 234.
second, receiver, whs. appointed at instance of, 1858.
titl« of mortgagor, vixn not required to discover, 415.

MC

INDEX.

204$

MORTGAGOR ; and see Master's office.

account directed against purchaser from, at instance of mortgagee, thbugh

not prayed, 305, 306.
bankrupt, not necessary party to foreclosure suit, 1 74.
offer by, to redeem mortgagee necessary, when, 310.
party to suit by, second mortgagee to redeem first, 1 72.
receiver, when appointed against, jurisdiction, when out of the, 117.
redemption of one of several estates, mortgaged for one surt, w Ithout the

others, not permitted, 171.

or one of several estates mortgaged by him to one mortgagee, 172.
although one mortgage of personalty and the other of realty, 172.
title of, mortgagee not bound to discover, when, 415.
waste by, when restrained, 1653.

MORTGAGOR AND MORTGAGEE,

plaintiff's title in suits between, how stated, 265.

MORTMAIN ACT,

costs, when devise declared void under, 1533.

MOTION FOR DECREE, 516—521.

affidavits, plaintiffs in chief, time for filing, 518.

in reply, time for filing, and list of, 519.
enlargemen'. of, how obtained, 519.

defendants, time for filing, and list of, 518.
enlargement of, how obtained, 519.
amendment of bill, after service of notice of, 329, 517.

after unsuccessful, 520.
answer, may be treated as affidavit on, 517.
answer, reading of, on, by plaintiff, 517.

by defendant or co-defendant, 5 1 8.

sufficiency of, admitted by service of notice of, 5 1 7.
appeal from order on, 520.

cause heard on, as to defendants added after replication, 517.
comparative advantage of, 521.

cross-examination of defendant on his answer, in cases of, 519.
cross-examination of witnesses on, 519.

how taken, 519.

time for, 519.

time for giving notice to produce witness for, 519.
evidence on, manner of taking, 517.
evidence taken in another suit, used on, when, 552.
hearing of, 520 ; and see HearingC

injunction, motion for, turned into motion for decree, 1620. 1699.
notice of, 517 ; form of, 517.
order made on, 520.

right to, suspended, pending time to answer, 465.
service of notice of, 516, 517 ; and see Service.
setting down, 518.

supplemental bill, hearing on, 1602 ; evidence in such case, 1 602.
time for giving notice of, 516 ; extension of, 516.

when time to ansiver enlarged, 518.

MOTIONS, 1608— i6i4.

abandoned, what are, 1622, 1623.

costs of, 509, 1468, 1616, 1622.

payment of, necessaiy before renewal of motion, 1469 ; and see Costs.
affidavits on, 161 6, 161 7.

cross-examination on, 1618 ; how taken, 1618.

notice of reading, when necessary, 1616.

search for, 1616.

time for filing, 1617 ; injunction in cases of, 1617.

withdrawn, cannot be, 1618.

2044

INDEX.

I

t i

5?-

MOTIONS— coniinuea.

appeal from order made on, 1567, 1574, 1575, 1624 ; and see Apveai^

AND REHEARINGS.

applications made by, 1604.

claimant under decree, by, 1608.

contempt cannot be made by person in, when, 1608.

costs of, 1621 — 1623 ; see Costs.

course, of, 1608, 1609 ; how made, 1610.

orders on, 1606, i6b8 ; and see Orders ok Course.
days appointed by Court for, 161 1.
definition of, l6o8.
different sorts of, 1608.
disability, by person under, 1613.
discharge or variation of order on, 1567, 1569, 1624.
dismissal of bill, for, on plaintiffs application, 484 — 486.

because filed without authority, 254, 255.

on defendant's application, on satisfaction of plaintiffs demand, and
payment of costs, 487, 488.
non-prosecution for, 495 — 513.
ex parte, when and how made, 1610, l6li.
evidence on, 1616— 1618, 1618, n. (i).

belief as to, when admitted on, 1619.

oral, on, 1618 ; how taken, 1618.
infant, how made, on behalf of, 62, 1613.
information suit, in, on behalf of whom made, 1613.
injunction, for, 1691, 1694, 1695.
married woman, how made on behalf of, 87, 1613.
matters which may be decided on, 1620.
minutes, to vary, 630, 631.

mode of making, and course of proceeding on, 1615, 1 61 7.
ne exeat, for, 1740.
next friend, when made by, 1613.

next friend for purposes of application, necessary when, 62, 161 3.
notice, when made on, 1608, 1609.
notice of, 161 1 — 1614,

amendment of bill after service of, effect of, 338, 1623, 1699.

form of, l6u ; special leave, when made by, 16 1 2, 1615, 1695.

join in, who may, 161 2.

pauper, by, 37, 161 1.

several objects may be included in, l6ii.

terms of order sought, statement of, 1611, 161 2.
oruer on, must not, except by consent^ exceed notice, 1620.

afifidavit of service, when taken on, 1620.

discharge or variation of, 1624.

drawn up, how, 1624.
previous proceedings, matters proved on, may be noticed on, 1619. 1620.
process of the Court, application relating to, usually made by, 1005.
purchaser under decree, by, 1608.
receiver, for, 1769, 1770.

refusal of, taxation of costs on, without formal reference, 1622.
saving, 161 6.
security for costs, on ground of mis- or non-description of plaintifiT, 292.

jurisdiction, because plaintiff out of, 26.
sei-vice of notice of, 1613, 1614; and see Service.
special, 1608 — 1610 ; either ex parte or on notice, l6lo.

days for making, 161 1.
special leave for, when necessary, 1611, 161 2.
support of, who may be heard in, 161 3.
MULTIFARIOUSNESS, 275—285.
definition of, 275.
demurrer for, 394.
objection for, cannot be raised at hearing, except by Court, 285, 443.

INDEX.

204i>

MUTUAL CONVEYANCES,

partition suit, in, 710. ^

NAME,

defendant's, statement of at end of bill, 313.
subpcena ad testificandum, in, 578.

petitioners, statement of, 1625.

plaintiffs, statement of, in bill, 292 ; omission, how taken advantage of, 292.

plaintiff's solicitor and agent, and of plaintiff if acting in person, to be in-
serted at end of bill, 313.

solicitor, of, or of party (if acting in person)', to be written or printed on
writs or summons, and on all proceedings left at Record and Writ Clerks'
Office, 361, 362 ; and in agency cases, principal solicitors also, 361.

NE EXEAT REGNO (WRIT OF), 1732— 1748.
account, issued in cases of, 1 734.
affidavits, on application for, 1627 — 1629.

account, in cases of, 1737, 1741.

committee of lunatic, when sworn by, 1 739, r 740.

debt, positiveness required as to, 1736, 1737, 1740.

facts to be shown by, 1741, 1743.

infant, may be made by, 1 740.

married woman, may be made by, 1739, n. (i), 1740.

sworn before whom, and when, 1 74:2.
amendment of bill, not dissolved by, 338, 1 748.
amount to be marked on the writ must be shown, 1736, 1743.
application for, how made, 1740.
arrest for another demand, granted after, 1735, 1736.

not issued, when person not liable to, 1732.
bill, statements of, in cases of, 1739.
cases in which issued, 1732 — 1740.
cestui que tmst, issued at instance of, 1733.
colonies, when issued against person domiciled in, 1737.
concurrent jurisdiction, issued in cases of, 1734.

not if defendant previously held to bail for same demand, 1735.
course of business, not gianted against person going abroad in, 1738.
defendant, at instance of, against plaintiff, 1739 ; against co-defendant, 1739.
definition of, 1732.
discharge of, 1745 — 1748.

answer and further order, when granted till, 1 746.

application for, hew made, 1745.

damages, inquiry as to, on, 1 748.

Insolvent Debtors Act, on defendant taking benefit of, 1747.

irregularity, for, 1745.

merits, upon, 1746.

payment into Court of the amount, on, 1 746.

subsequent arrest, at law for same demand, no ground for interference of
the Court, 1748.

terms of no action being brought, on, 17471 1748-
evidence on application for, 7410— 1742.
ex parte, application for, made, 1 740.
execution of writ, 1744, 1745.

deposit of amount marked may be taken, 1 744.

discharge of defendant when arrested under, how obtained, 1744.

doors not to be broken open, on, 1744.

security must be salisfactoiy to sheriff, 1 744.

sheriff, duty of, on, 1 745, 1 746.
foreign state, when granted against persons domiciled in, 1737-
foreigners, when granted between, 1737.

not granted against, on foreign contract, unless plaintiff IJritish subject. 42,,

1737-
indorsement on writ of amount for which security to be given, 1743.

!. '

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2046

INDEX.

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Nh EXEA T REGNO (WRIT OY)~<ontinutd.

personal representative, when issued against, 1743.

specific performance, when issued in cases of, 1743.
Ireland, against person domiciled in, 1737,
jurisdiction, going out of, previously to discharge of, effect of, 1 745.

f'urisdiction, not granted at instance of person resident out of the, 1738.
ost instrument, issued in case of, 1734.

lunatic, granted at instance of, on affidavit of committee, 1739, 1740.
married woman, personal representative, not granted against, 141, 1738.
married woman, granted at mstance of, against husband, 1739, n. (i).
pecuniary demands, on which issued, 1736.
prayer for, 290, 313, 1739; part of relief, 290,
return of writ, 1745, ^74^ > forms of, 1745.
Scotland, against person domiciled in, 1737.
specific performance, when granted in suit for, I734i 1735-

not if applicant's equity doubtful, 1735.
summons suit, in, 1739.

summons, application for, when made by, 1740, n. (2).
surety, granted whenever applicant liable as, 1739.
surety, discharge of, 1747 ; not ordered before decree, 1747, 1748.

on payment of marked amount, although larger sum due, 1 747.
undertaking as to damages, on application for, 1742.

next friend of infants, how given by, 174 1,
writ of, preparation and issue of 1743.

NEGATIVE PREGNANT,

traverse of interrogatories, must not be by, 452, 453.

NEGOTIABLE INSTRUMENT,
transfer of, restrained, when, 1677.
application usually made fx /ar/^, 1677, 1792.
forged indorsement, in case of, 1677.

NEUTRAL,

resident in foreign country, cannot sue, 43.
although a consul, if he trade, 43.

NEW DEFENCE,

infant, when entitled to make, 136 — 138 ; and see Infant.
married woman, when entitled to make, 1 50.

NEW TRIAL OF ISSUE OR QUESTION OF FACT, 677—697.
appeal from order on application for, 697.
application for, made in Chancery, 693,

costs of, 696.

time for, and how made, 693.
Chancery, grounds for directing in, 677 — 682.

absence of material witness, 680.

evidence, on ground of improper rejection of, 681.
new, on ground of, 678, 679.

forgery, 678, 680.

fraud, 679.

irregularity in trial, 680.

land, when matter relates to, 68 1.

misconduct of jury, 680.

misdirection of Judge, 680 ; costs of first trial, 699.

perjury, conviction of witness for, 678.

surprise, 678 ; case to be made on application, 678.

three trials, after, 682.
Common Law, grounds for at, 682 — 693.

absence of counsel or attorney, 688.

begin, allowing wrong party to, 685.

damages, excessive, 686 ; too small, 687.

iNDi:!.

2647

NEW TRIAL OF ISSUE OR QUESTION OF YKC't-coulittued.
evidence, improper admission or rejection of, 682.
objection must be taken at trial, 684.
new, 691.
jury, default or misconduct of, 685, 688.
improper discharge of, 687.

interest of, 685. **

improper influence of, 689. .
misconduct of opposite party, 689.
misdirection of Judge, 683.
mistake of Judge, 682.
postpone trial, on refusal to, 684.
second or third, when granted, 692.
several issues, when granted as to one of, 692.
surprise, 690.

verdict, perverse or against evidence, 689.
witness, non-attendance or misconduct of, 689.
mistake or perjury of, 690.
evidence upou application for, 694 ; affidavits, when receivable, 694.
further hearing, when directed at, 697.

issue or question, form of, not changed on application for, 697.
terms on which granted in Chancery, 695 ; at law, 695—697.
verdict, previous, need not be set aside, 696.

NEXT FRIEND (OF INFANT),

amendment by adding, when permitted, 54.
any person may be, 55.

application or bill on behalf of infant must be by, 54, 55, 62.
attainment of majority by infant, should not prosecute suit after, 63.
consent to act, on appointment of new, 62.
consequence of not naming, 54.
costs of, 62 — 66 ; and see Costs.

costs, liability for, 62. ',

death of, proceedings on, 61.
defendant cannot be, 55, n. (i).

description and address of, statement of, in bill, 293 ; in amended bill,
3>9. n. (4).

omission of, how taken advantage of, 293, n. (7).
inquiry whether suit of, beneficial for infant, 56, 64.

or as to fitness of next friend, 56.

not granted on application of next friend in his own suit, 57, 64.
lien of solicitor of, 65.
motion on behalf of infant, made by, 63,
new, appointment of, 61, 62.

consent to act and fitness must be shown, 61, 62.

entry and service of order, 62.
outlaw in civil action, may be, 59.
pauper may be, 32, 33, 59.
receiver in cause cannot be, 60,

removal of, for misconduct, 59, 60 ; or because adversely interested, 59.
retirement of, must give security for costs on, 60.
substance, need not be a person of, 59.
witness in the suit, may be a, 61.
NKXT FRIEND (OF MARRIED WOMAN),

application or bill on behalf of married woman mu: ^ by, 87.

unless a pauper, 34, 89.
bankruptcy of, proceedinss on, 90.
change of, proceedings on, 90.
consent to act of new next friend, 90.

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NEXT FRIEND (OF MARRIED yfOMAN)-cotUinueJ.
death of, proceedings on, 90.

when plaintiff neglects to apply for appointment of new, 90.
description and address of statement of, in bill, 293; amended bill, 319,
n. (4).

omission of, how taken advantage of, 293, n. (7).
husban^ must not be, in suit for wife's separate estate, 87.
motion on behalf of married woman, 87.
new, appointment of, 89, 90 ; consent to act of, 90.
relation, need not be a, 88, 89.
retirement of, proceedings on, 90.

sanction of Court to consent by, to deviation from course of procedure, 70.
security for costs, when required from, 89, 90.

on retirement, 90 ; on residence out of the jurisdiction, 91.
substance, person of, must be, 32, 88, 89,

NEXT FRIEND (OF PERSON OF UNSOUND MIND),
application or bill on behalf of, must be by, 5, 67, 68.
description and address of statement of, in bill, 293 ; amended bill, 319
n. (4).
omission of, how taken advantage of, 293, n. (7).
new, appointment of, 68.
omission to name, effect of, 69.
position of, 68.
sanction of Court to consent to deviation from course of procedure, 70.

NEXT FRIEND (FOR PURPOSES OF THE APPLICATION),
necessary when, 62.

NEXT OF KIN ; and see Master's office, under head of " Heirs at Law,

Enquiries as to "
administration decree on application of, others not being parties, 342.

but they must be served with notice of it, 176, 183, 195, 342.
claims by, see Claims (under Decree).
costs of, 1528, 1531 ; coming in under decree, 348.
inquiry as to, when directed, 619.

need not be preliminary to taking accounts, 620.
one may sue on behalf of himself and others, when, 195.
parties in suits by, 1 76.
presumptive, cannot sue, 261.

NISI PRIUS (TRIAL OF QUESTION OF FACT AT). See Issue.

NON-ACCESS, ;

proof of, 399, n. (i).

NOTARY PUBLIC,

affidavit sworn before, out of the jurisdiction, when received, 569.
official character, of, how proved, 570.

NOTES,

Judge's, of evidence, 694, 695.

NOTICE,

admit documents, to, 535, 559.

affidavit, of filing, 577 ; when in support of claim, 577.
reading of, when to be used in Chambers, 727.
motions on, 577, 1615.

INDEX.

2049

' Heirs at Law,

aOTICE— continued. I .

motion for decree, on, 517.
petitions, on, 577, 1627, 1628.
answer, of filing, 471 ; omission of, consequence of, 471.
charge of, what facts provable under general, 539.

fact only put in issue, not materials of proof, 540.
cross-examination, to produce witness for, 568, 569.
demurrer, of filing of, 426 ; effect of neglect to give, 427.
examination de bene esse, 590 ; contents of, and time for giving, 590.
injunction, of, 1701, 1711.
motion, of, 1610 — 1613 ; and see Motions.
pauper, on behalf of, must be signed by his solicitor, 37.
replication, filing of, 525 ; form of, 525.
special case, of application to set down, where party under disability, 1 869.

of filing, 1867.

NOTICE TO PRODUCE,

Chambers, documents at, 729.

NOTICE OF THE DECREE (PROCEEDINGS BY SERVICE OF),
adding to decree, on application of persons served with, 348.
time for application, 348.

administration suit, commenced by summons, in, 734, 735.
appeal by person served with, 348, 1556.

applicable, when, 341, 342 ; improper in other cases, 342, n. (8).
copy of decree, duly endorsed, served instead of notice, 348.
costs of persons served, 342, n. (7), 348.

decree, how far it may be prosecuted before service of the notice, 347.
evidence of service, order for leave to attend when sufficient, 348.

stage of proceeedings at which required, 347.
guardian ad litem for infant or person of unsound mind served with, how ap-
pointed, 348.
infant, order for service necessary, 343.

application for order, how made and evidence, 343.

service, how effected, 346, 347.
jurisdiction, person out of, order for service on, necessary, 344, 345.

application for it, how made, and necessary evidence, 346.
leave to attend proceedings, order for ser\'ice of, 348.
persons made parties by, 151, 152, 341, 342.
review, bill in the nature of, filed, by whom, 348.
service, how effected, 342, 343 ; and see Service.
unsound mind, person of, order ff r service necessary, 343.

application for order, how made and evidence, 343.

service, how effected, 346, 347.

NUISANCE,

private, injunction when granted|in case of, 1663. 1

public, injunction against, at suit of Attorney-General, 1662.
of private person, 1663.

NUNC FRO TUNC,

decree or order, entry of, order for, how obtained, 633 ; when made, 633.
enrolment of decree or order, 634.
replication, filing, 526 ; at hearing, 614.

OATH,

answer put in on, unless dispensed with by order, 460.
answer of Attorney- General put in without, 1 10, 460.
demurrer, put in without, 425.
disclaimer, put in upon, unless dispensed with by order, 435.

OATH OR SIGNATURE,

answer, put in without, by order, 461, 462, 470.
order, how obtaiaed, 461.

2060

INP^X.

I

i

i

OBJECTIONS,

discovery, to, which may be taken by answer, 445.

OBJECTIONS FOR WANT OF PARTIES, 240—246.
answer by, 243.
demurrer by, 241, 242, 394.
discovery, do not lie to bill of, 242.
hearing at, 243, 244 ; costs in such case, 243, 614.
taken, compatatively rarely now, 243.

OBLIGEE,

when necessary party, 158.

OBLIGORS,

necessary parties, 226, 227 ; unless insolvent, 226 ; or very numerous, 227.

OCCUPATION RENT,

receivership, incase of, party when charged with, 1777, 1778,
tenant, when charged with, 1777.

OFFER,

balance of account, to pay, not necessary now, 310. '
equity, to do, when required, 310, 311.

demurrer, for want of, 310, 396, 421.

when it entitles defendant to decree without cross bill, 310.

withdrawn, cannot be, 312.
forfeiture or penalty, to waive 311, 397, 398.
redeem by mortgagor, to, when necessary, 310.
set aside securities, in bills to, 310, 311.
specific performance, in bill for, 309, 310.

OFFICE,

fees of, necessary parties to suit to establish right to, i68.

profits of, receiver appointed of, 1764.
OFFICE COPY, AND COPIES.

affidavits of, 577.

injunction, must be in Court, on application for, 1696.

production of, by party taking, 577.
answer, official printed copy of, 471, 472.

acceptance of answer, taking when not an, 480, n. (2).

amendment of, 479.

authenticated, how, 471.

obtained, how, 471. ^

demurrer of, 427. t

disclaimer, of, 436.

partition, of commission and certificate of, 708.
proceedings in the Court, read from, 553.

OFFICER,

corporation, of, made defendant for purpose of discovery, 112, ii",. 246,

269, 304.
military or naval, not required to give security for costs, 21.

OFFICER (OF THE COURT OF CHANCERY),
arrest p-otected from, when, 667.
privilegea of, judicially noticed, 386.

ONUS PROBANDI, 535—537.

affirmative, rests on party asserting, 535.
presumption of law, rests on party impugning, 536.
prima facie, case being made, lies on opposite party, 536.
voluntary donation, in case of impeached, 537.

OPENING BIDDINGS. See Biddings (Opening), ami Master's Office.

^mf^.

ORDER,

2051

aster's Office.

'^'SS?^^^rS'^^L':'''-P^'^'"^^^ ^' '"^^ -^tion. 465, and
ORDERS OF COURSE. 1606. 1607.

S^'lS onlaS: P^™'""' *''" «"^-' '^7.

discharge of, for irregularity, i6o6, 1607.

ex parte, made, 1606.

service of, effected, how, 1607.

ORE TENUS,

demurrer, definition of, 423.
confined to case where demurrer already on record a^i
cannot be on same ground, 423 ^ ' ^^'

must be co-extensive with it, 423
costs of, when leave to amend given, 431.

ORIGINAL BILL. See Bill (Original).
ORNAMENTAL TIMBER,

cutting down, by tenant for life, restrained, 1659.
OUTLAW,

OUTSTANDING ESTATE,

getting in application for leave to proceed in, how made i ^Sr
receiver, how got in by, 1786. ' *3^^-

OUTSTANDING TERMS,

certamty necessary in statement of bills to prevent the setting up of, 302.

OWELTY "^ °^' '"^""'''°" '° '''''^ °"^^ ^"^"'"^ "■' '''^'"^' ' ' "^ •
partition, when awarded under commission of. 706

OWNERS,

class suit by one of several, for modus, when allowed iq6
inheritance, of, when necessary parties, 218 ^^' '^O.

PAGAN,
^ answer of, how taken, 461.

PAINS AND PENALTIES. 6>. Penalty
PAPER,

"l&itfs^f ">" °*" P™=«"-*. 3.6.

PARAPHERNALIA,

PAp'Tlxe' r"'^' ^'^''''' °^' ^^'" ""'^"^^"'^ P^"'«^ ^° bill relating to. 21,.
PARENS PATRIyE,

informations on behalf of Sovereign as, 4.
PARISH,

class suit by one of the inhabitants of, when permitted, 195, ,06
PARISHIONERS, ^

need not all be parties to suit by parson for tithes 220 210
parties to suit to enforce contract on behalf of, 227, 228. ^

2062

INDEX.

3

8 ■

PARLIAMENT,

journals of, printed copies of, by authority, admitted without proof, 548.
judicial notice taken of place of holding, 386.
proceedings of, usual course of, 386.
prorogation of, time of, 386.
sessions of, time of, and time of holding, 386.

PARLIAMENT (MEMBER OF),

dwelling-house of, what is, for purpose of service of the bill, 351, 352.
injunction, or restraining order, for breach of, 1713 ; and see Privileged
Person.
receiver, objectionable as, 1767.

PARLIAMENTARY POWERS,

excessive exercise of, restrained, 1676.

PAROL AGREEMENT,

specific performance of, on jjround of part performance, 533.

PAROL VARIATION,

specific performance not decreed where proved, 304.

PARSON,

parties to suit for tithes by, 229.
revivor of suit by, 18.

PART PAYMENT,

specific performance of parol agreement on the ground of, 533.

PARTIALITY,

plea of award by arbitrators charge ivith, 247.

PARTICULARS OF SALE. .SVf Master's Office.

PARTIES (TO CONVEYANCE). ^^^ Master's Office.

PARTIES (TO SUITS), 151—253.

absence of, decree, when made in case of, 151.

absent, decree, when made without prejudice to rights of, 1 16, 119.

when made saving rights of, 243, 244.

on undertaking to give effect to rights of, 245.

waiver of relief against, 245.
account, in suits for, 174 — 178, 226.

accounting persons necessary, 174, 175 ; unless liability several, 226.
addition or alteration of, by amendment, 245, 246, 252, 319 — 323, 324,
330 ; and see Amendment of Bill.

by supplemental statement, 1600, 1601.
administration suits, to, 160 — 164, 193, 194, 205^211.
agents, when made, 156, 248, 268 ; when not, 156, 157, 246.
annuitants, when necessary, 187.
appointees under will of married woman, 184.

where one may sue for self and others, 195, 196.
arbitrators, when made, 247, 269.
ascertained sums, to suits for, 1 78.
assignees of bankrupt, 183 — 211.
assignee of mortgage, last only necessary party, 155.
assignor of cAose in action, or his representative, 158.
assignor of equitable interest, 165.

assignor of shares in unincorporated joint-stock company, 159.
assignor of judgment, 159.

when Crown interested us parens patria, 107.

when rights of Crown incidentally interested, 105, 106.

will, in suit, to establish, 191. .

attorneys, when made, 248, 249, 266.
auctioneers, 156.
bankrupt not made, 174, 211, 246 ; unless fraud or collusion charged, 211.

INDEX.

2033

PARTIES (TO iiVlTS)—con/mui'<f.

mortgajjor not a necessary p irty to suit to foreclose, 1 73. 1
bisliop, ill suit agiinst sequestrator, 166.
in suit by iiicuinbent for tithes, 166.
boundaries, to ^uits to ascertain or settle, 167,219.
cestuis que trust, 179—183, l84, 214, 303.

in foreclosure suits, 214.

in redemption suits, 215.

in suits by trustees, 179, 181 — 183.
charges, to suits to establish, or foreclose, 173, 220, 232—235.
class, to suit by or against one of a, 151, 195, 19J, 227, I2S ; and see CLASS.
co-executor, when ni)t a necessary party, 226.
committees of lunatics, 205.

concunent interests with plaintiflT, persons having, 151 — 202.
contribution, to suits for, 226—228.
co-obligois or co-surety in suits for contribution, 226 ; where numerous,

227.
copy of the bill, persons, when bound by service of, 151, 152, 341 ; and

J<?«'CoPY OF THE BlI-L. ^

corporations, members or officers of, when made. III, 112, 246, 268, 304.
co-trustee, when not a necessary party, 227.
covenantee, in specitic performance suit, 155.

creditor, when one may sue on behalf of hun^elfani others, 192, 195.
derivative mortgagees in foreclosure suits, 155, 216.
devisee of mortgagee in foreclosure suit by personal representative, 1 54, 174*

179, 180.
drawer or prior indorsee of bill of exchanT;e, l65.
duties, to suit to establish ri^ht to, 229.
equity, persons having right to sue in, 166.
escheat, persons claiming by, in suit to establish will, 190, 191.
executors, all who have proved, 185, 207, 208.

acting, neces .ary parties after release and disclaimer, 2o3.

durante minorilate, necessary party unless he has fully accounted, 206.

renouncing, not necessary parties, though holding power of sale, 209.
executory devisees, 187, 222.
fees of office, tu suit for, 168.

foreclosure suit, to, 171, 173, l74,'l8o, 214, 2l6, 220, 232, 233, 234, 237.
general rule as to, 151, 152.

heir, in suit to execute trusts of daei for'paymint of debts, 193.
heir, in suit to establish will, 190.

nut where only to execJte trusts, 190, 191.
heir of grantor, in charity informations, 215, 216.
heir of mortgagee, in foreclosure suit by his personal representative, 154, 179,

180.
impropriator of tithes, 189.
inconsistent titles, persons claiming under, 188.

effect of joinder of, 191.
incumbrancers, prior, in redemption suit, 235.

not in foreclosure suit, 173, 235.
incumbrancers, subsequent, in suits to foreclose or establish charges, 232.

whether legal or equitable, 234 ; if specific 235.

not n'^cessary in redemption suits, 235.
incumb' ancers, upon estate tail, 187.
inheritance, owner of, in suit to bind land, 217.

Ou^toni or mid us, in suit to establish, z68, 196, 218.

specialty creditor, insait by, 218.
secus, where land not to be bound, 218.
inheritance, owners of first estate of, and of ri^tcrmediate estates, 186, 217,
222 ; but not subsequent remaindermen, 221.
unless first tenant in tail lunatic, 221.

106

2054

INDEX.

S^ol

PARTIES (TO SUITS)— cofth'nued.

or nature ot estate doubtful, 221.
intermediate estates, persons entitled to, 186, 220.

when contingent and unascertained, 187.

esse, coming into, pen</gnfe iite, 188.
joint factor, when not necessary party, 227.
joint-stock companies, to suits against, 228, 229.
joint tenants, 167 ; of a legacy or mortgage money, 170.
jointly liable to plaintiff, persons, 225.
jointly and severally liable to plaintiff, persons, 222 — 225.
land, to suits for, 219.
law, person having right to sue at, 153.

law, to suit where jurisdiction withdrawn from Court of, 169, 2l8.
legal estate, persons having, 153 — 155.
legatees, when legacies are charged on real estate, 183.
legatees, where one may sue on behalf of others, igS-
legatees, specific, not necessary parties in suits to charge or recover personal

estate, 210; except in cases of ademption, 211, n. (l).
legatees, specific, of wife's paraphernalia, when made parties, 211.
lessees, 168, 219.

lessor against assignee, in suit by, 165.

partition suit, in, 219,

tenant in common, of, 167.
lessor of tithes not necessary party to bill by lessee under deed, 169.

j«-«j, if by parol, 159, 169.
lord of manor, 219, 220.

lords of manors, to suits by, as to rights of common, 229.
lunatic, in suit on behalf of, 67, 138, 167.
marshal assets, to suits to, 195.
modus, to suit to establish, 168, 196, 218.
mortgage-money, all persons interested in, to foreclosure or redemption suit,

170, 174, 214 ; unless interests sufficiently represented, 170, 215.
mortgagee, parties to suits by, seeking relief as general creditor, 238.
mortgagee not a necessary party to bill by assignee, 174, 215.

unless to account for rents, 216.

original, in foreclosure suit by derivative mortgagees, 174.
mortgagee, claimants under, in redemption suit, 215.
next of kin, 176.

next of kin, when one may sue on behalf of others, 195.
notice of the decree, persons when made parties by service of, Ifl, 152, 342.
obligee in a bond or his representative, 158.
parishioners, to suits on behalf of, 227, 228. , , :

parsons, to suits for tithes by, 229. "

partition suits, to, 167, 168,219.

partner, surviving, to credit^or's suit against estate of deceased partner, 268.
partnership suits, to, 174, 175.
partnership, to suits against, 225.
pawnee or depositee of chattel, to suits by, 182.
peace, bills of, to establish right to duties, in case of, 229.
pendente lite, incumbrancer or purchaser generally not, 236.

unless conveyance of legal estate required, 236, 1588.
made parties by supplemental proceedings, 236, 1588.
personal representatives, when necessary parties, 160 — 164, 205 — 211, 226,

236, 238, 239, 263.

all usually necessary, 207, 208.

zAxa\\\\%\.xiXQX durante absentia, 208, n. (i.)

de son tort, in suit, against administrator, or executor, 207, 263.

deceased, personal representative of, 208.

England, must be constituted in, 160, 206.
in suit against foreign representative, 206.

husband, of, 209.

IN LEX,

2055

151, 152, 342.

PARTIES (TO SUITS)— confinueti.

mortgagee, of, in foreclosure suit bj' heir, 179, 180; in redemption suit, 238.

njoitgagor, of, to suit by nM>rtgai;ee, as general creditor, 238.

personalty, to suits relating to, nk) — 164, 205 — 211.

principal or surety, of, to suit for contribution, 226.

purchaser, of, in suit for specific performance, 239.

specialty creditor, to suit by, for payment of his debt, 236.

widow, to suit by heir to compel election by, 236.
when not necessary parties, 205, 20J, 237.

appropriation of fund, after, 205.

contempt, if in, 208, n. (i).

heir, to suit against, 237.

jurisdiction, if out of, 20S, n. (i).

mortgagor's, in foreclosure suit against heir, 237.

outlawed, when, 205,

real assets, to bill for discovery of, if representation contested, 237.

receiver, pending litigation in Probate Court, to suit for, 207, 208.

specific legacy, to suit for, after assirnt, 206.
personal representative, general, when necessary party, 161.
administration <7(/ ///^/;<, when sufficient, 161.
limited administration, when sufficient, 160.
personal representatives, to suits by, 183
portionist of tithes, 189.
principal, in suits for contribution, 226.
purchasers of different portions of estate f:"om beneficiaries, where legal

estate being outstanding, 178.
redemption suits, in, 171— 174, 235, 238 ; and see Redemption (Suit).
remainder or reversion, persons entitled iii, 186, 22c.
remedy over, persons against whom defendant has, 236 — 239.

as, person bound to reimburse principal defendant, 236.
representation contested in Court of Probate, parties in case of, 237.
representatives of parties, how far bound hy pro confesso decree, 380.
residuary legatees, 174, 175, 183.

not necessary parties in suits to charge or recover personal estate, 210.
except in cases of ademption, 211, n. (i).
resisting plaintiff's demands, persons interested in, immediately, 202 — 236 ;

consequentially, 236 — 240.
resulting trusts, persons entitled to, 217.
right of way, to suit for establishment of, 168, 169.
settled estates, in suits relating to, 220.
Solicitor-General, when made, iio.
special case, to, 1866.
specialty creditors, to suits by, 236.
specific assets of testator, persons possessing, when parties to creditor's suit,

268.
specific performance to suits for, 155, 157, 158, 179, 189, 190, 233, 238, 240

245, 246, 247, 254 ; and see Specific Performanck.
sub-contract, persons claiming under, 157, 234.
sue, persons having right to, 152, 1 53.
sureties, in suits for contribution, 226.

surplus after payment of prior charges, in suits for, 173, 214.
tenants in common, 167.

tenant in tail, first, in suits concerning land, 185, 186, 220, 222.
terre-tenants, when necessary parties, 231, 232.
tithe suits, to, 158, 166, 168, 189, 229, 230.
trust, to suit for breach, of, 182, 184, 203, 224, 225, 227.

execution of, for, 184, 213, 214, 227, 342.
trustee, when one may be sued without the others, 203.
trustee to suit by, against co-trustee, 182, 183.

to recover fund improperly lent, 182.
trustees, 153, 154, 164 ; whether trust expressed or implied, 154.

$656

INDEX.

■ ^

PARTIES (TO SUITS)— ir<»«//«//«/.

when dispensed with, 164.
trustees having estates, or liable to unsuccessful defendant, 203.

assitjnee of trustee, 203 ; but not bare trustee, 202.

trustee under will, who has never acted, 203.

agent of trustee. 203.
trustees, in foreclosure suits, 173, 214.
trustees, for payment of debts, to suits by, 183, 184.
uninterested persons, joinder of, effect of, as defendants, 246 — 251.

as plaiiUifTs, 251, 253.
unnecessary, how got lid of, 251.
vicar, in tithe suits, 189.
want of, objections for, 240—246 ; and see Objections for Want of

Parties.
witnesses, mere, should not be made parties, 246.

PARTITION,

advowson, of, how effected, 706.
bath, of, how effected, 706.
certificate of, 707 — 709.

commission, annexed with documents to, 708.

confirmation of, nisi, 708 ; absolute, 709.

filing of, 708.

form of, 707.

quashing, 708. 709 ; where double return, 708.

separate, when made, 707.
chambers, how effected in, 700, 709.
commission of, 701, 706.

allotment of shares, 706.

commissioners, how chosen, and number, 701.

division of estates, how made, 705, 706.

execution of, 704 — 707.

inspection of estate, 704.

preparation and is..ue of, 701.

proceedings under, must l»e open, 704.

production of documents, how enforced under, 703.

return of, form of, 704.

several issued, when, 701.

stage of cause at which directed, 701.

witnesses, attendance of, how enforced, 702.

depositions of, how written and relumed, 703, 708.
examination of, how taken, 702, 703.
conveyances, mutual, execution of, 710.

settled by Judge, when, 710.

refusal to execute, 710.
costs of, 71 1 ; of lessee of share, 712 ; and see Costs.
hearing, how effected at, 700.
house, of, how effected, 706.
infant, form of decree for, in case of, 58.
inquiry, when directed before issue of commission, 701.
lien, commissioners have none on commission for their charges, 712.
manor, uf, how effected, 706.
mill, of, how effected, 706.
owelty, when awa' Jed, 706.
parties to suit for, 167, 168, 219.

joint-tenants, or tenants in common, 167, 168.

lessees, 167, 219.

i.-'. suit by lessee of tenant in common, 168.
proceetiings under decree for, 700 — 714.
renf payable for water-pipes, of, 706.
title deeds, custody of, 710.

INDEX.

2057

-251.

FOR Want of

jes, 712.

PARTNERS,

all, and representatives or deceased, necessary parties to suit to establish

demand against firm, 225.
corporate character, must not be assumed without authority, 18.

one, when permitted, may sue on behalf of self and others, 195 — 2oa.
personal representative of, creditor may sue, when, 268.
surviving, when parties to suit by creditors or legatee, 268.
surviving, necessary party to suit for partnership debt against executors c f

deceased partner, 225.

PARTNERSHIP,

accounts of, bill to take, must pray dissolution of, 274 — 276.
dissolution of, form of decree for, 1379.

proceedings under decree for, 1379; certificate of result, 1380.
injunction, when granted in cases of, 168S.
manager of, when appointed, 1800.
parties to suits relating to, 174, 176, 196, 19S.
payment into Court, when directed in cases of, 1815, 1816.
receiver, when granted in cases of, 1761 — 1763.

partner, or retired, or solvent, when appointed, 1765.
solicitors, between, production of documents in case of, 1849.

PARTY AND PARTY,

taxation of costs as between, 1539, 1545 ; and j^^ Taxation.

PATENT,

consolidation, and stay of proceedings of bills to restrain' infringement of,

when directed, 280, n. (2), 494, 1669, n. {3).
separate bills necessary against separate infringers, 280.
PAUPER,

suit against, b)', 32 — 40, 120 —121.

admission to sue, how obtained, 36 ; to defend, 121.

analogy of practice at law followed, 33.

consequences of, 37.

not a release from cos'.s already ordered to be paid, 34, 121.

order for, 37 ; made at any timo» 34.

must be made in Court where issue is to be tried, 38.

service thereof, 37.
appeal by, in Chancery, 35, 1558, 1573.
bankrupt, admitted to sue as, 34.
claimant under decree, admissiun of, as, 34.
copies delivered to or by, charges for, 39, 40.
costs on dismissal of bill against, 121.

on dismissal of bill by, 38, 505.

scandal introduced by, of, 38.
counsel or solicitor assigned to must not refuse to act, 37.
court fees payable by, 38, 39.
dismissal of bill of, not ordered ex parte, 37.
dispaupering, on the ground of property, 38.

because in possession of property in dispute, 38, 1 21, 122.

for vexatious conduct, 36, 38.

not ordered, where supplied with funds by subscription, 35.

or misconduct was in former suit for same matter, 35.
husband and wife, admission of, as, 34.
married woman, admission of as, without next friend, 34/ 89.
next friend of infant, may be, 32, 34, 59.

secus oifeme covert, 32.
notices on behalf of, must be signed by his solicitor, J7, 161 1.
person, cannot be heard in, 37.
petition on behalf of, must be signed by his sol'citor, 38, 1625.

pro interesse suo, examination granted at instance of, 34, 661.

2068

INDEX.

i

5

^&

PAU PKU.-'t PM/itiucJ.

representative character, cannot defend in, I20 ; or sue in, 33.
second suit by, for same matter, M-hen s'ayed till costs of Hrst paid, 35-
security for costs, when required from, 32, n. (5).

PAWNEE AND PAWNER,

of chattel, when necessary parties, 182.

PAYMENT AND TRANSFER INTO COURT, 1808— 1823.
administration suit, in, by party found a del)tor, 1S17.
answer, when directed before, 1813, 1814, 1823.
application for, 1819—1823.
answer on, 1820, 182 1,
account in book referred to by, when founJed on, 1821.
actual amount m.-iy be shown by affidavit, 1821.
admission, must be on, 1820; nature of, 1820.

costs, whether executor allowed to retain money to answer, 1821, 1823.
denial of title, not ordered, in case of, 1820.
discharge himself l)y affidavit, defendant allowed to, 182I.
decree after, how made, 1822 ; evidenc*: in support, 1822.

before, how made, 1819 ; evidence in support, 1S20.
interest to be shown on, nature of applicant's, l8l8.
auctioneer, by, of balance of deposit, 1809.
directed, when, l8o8 — 181 7.
directors of company, by, when ordered, 1810.
effect of, 1818.

injunction, on application for, 1700, 1808.
married woman s right by survivorship, effect of, on, 93, 94.
ne exmt, discharge of, on, 1746.
partnership, in cases of, 1815, 1816.

admission, clear, generally required, 1816.
balanc; due to him, not when partner insists on, l8l6.
unless there has been mah fida, i8i6.
personal representatives and trustees, by, when directed, 1808 — 181 1.
balance, extends to any, although claims against it, 1809.
balance of, only, ordered in, l8n.

unless money improperly lent, or payments improperly made, i8ia
danger to estate, need not be shown, 1809.
debt, money must not be a mere, 181 2.
debtors to estate, when they are, 1810.
discharge of the office, not a, 1818.
discretionary powers, in case of, 1809.
implied trusts, extends to cases of, 1810.
interest, of, not usually ordered, 181 7.
partner, although fund in hands of, 1810.
/r/»;ayan^ title only necessary, 1808, 1818.
shares only of parties to proceedings need be paid in, 1809.
purchase-money, of, on sales by Court, 1354, 1355, *8l6.
default of purchaser on, 1371, 1372.
private contract, where sale by, 1162.
purchaser, by, when ordered, 1812, 1813, 1823.
receiver, by, of his balance, 1789 — 1790.
retainer of, personal representative not affected by, 1529, 1818.
security for costs, when directed in lieu of bond, in cases of, 27, 28.
trust fund in hands of third party, of, 181 2.
trusts, in cases of implied, 1810, 1812, 181 3.
ward of Court, of fund belonging to, 1818.

PAYMENT AND TRANSFER OUT OF COURT, 1824— 1834.
abatement, pending, 1594, 1829.

absolutely entitled, order not made for payment of interest only to persons,
1828.

INDEX.

2059

PAYMENT AND TRANSFER OUT OF COURT-r,»«^i««rt/.
administrator a</ Z//^;;/, not ordered to, 164, 1833,
asHignor, service of application of, on, 1827.
attorney, power of, when ordered to holder of, 1832.
charity trustees, form of order for payment of interest to, 1830, 1831.
class, form of order where applicant one of a, 1828.
contingency, of fund subject to, on what terms dircctc<l, 1825.
corporation aggregate, of fund belonging to, form of order for, 1831.
corporation sole, of interest to, form of order for, 1830.
costs of application for, by tenant for life, 1829.

separate account, when standing to, 1829.
Crown, to, form of order for, 1831. •

deaf, dumb, and blind person, order in case of, 1828.
dismissal of bill, ordered after, 1830.
evidence in support of application for, 1827.
general authority, where ordered to person actinij under, 1832.
infant domiciled abroad, form of order in case of, 1828.
infant's legacy to father, when directed, 1833.
legatee, payment not ordered to, in absence of pei. 'inl representative of

person in whose name fund sunds, 1825.
married woman, to, without acknowledged deed, 70, 1833.
married woman, fund belonging to, not paid to husband without l.cr cou-

sent, 72 ; and see Makrikd Woman,
married woman, to, as personal representative, form of order for, 1831.
order for, how drawn up, and title of, 1833.

•^cr I nal representative o) person entitled, when not m.ivie to, 1825.
petition, application for. when made by, 1604.
prospective order for, when made, 1828.
purchase- money, notice to purchaser of application for, 1370.

purchaser, when allowed costs of appearance on application for, 1370.

where given instead of bond as security for costs, 31,
separate account, of fimd standing to, 1826- 1828.
small sum ordered to be paid without letters of administration, 1833.
sole trustee, to, only ordered by consent, 1828.
successive tenants for life, order for, of interest to, 1830.
tail, to tenant in, without disentailing deed, 1833.
undertaking to apply, when ordered, on, 1 831, 1832.

PEACE (BILL OF),

class, when fded against some members of, 229.
grounds for interference by, 1689.
multifarious, when not, 285.
perpetual injunction, granted on, 1709.

PEDIGREE,

plaintilT claiming as heir need not state, 264.

PENALTY,

answer, objection by, to discovery on the ground of exposure to, 445.
demurrer to discovery, on the ground of exposure to, 397 — 404.
demurrer by witness, on the ground of exposure to, 595.
discovery, objection to, on ground of exposure to, 311, 312, 397 — 404.
exceptions, broker, acting as, without license, 400.

conspiracy, cases of, 400.

covenant not to demur, 400.

foreign country, defendant liable to penalties in, 402.

fraud, cases of, 400, 401.

libel, cases of, 401.

payment in nature of penalty, 401.

personal penalty, when, 401 ; no longer recoverable, 401.

statutory provisions, 401 ; fraudulent trustee, 401 ; infringer of trade
marks, 401.

•'1

2060

INDEX.

$

J

TENALTY—eontittued.

expiration of time for suit, discovery must be given after, 401.

'breign country, in, discovery that would expose defendant to, must be

given, 402.
injunction to relieve against, when granted, 1686.

production, objection to, on ground that it would expose party to, 1857.
waiver of, when necessary, and effect of, 311, 312, 397, 398.

PENDENCY OF ANOTHER SUIT (FOR THE SAME MATTER),
demurrer, on the ground of, 396.
motion, objection not taken by, except in infant suits, 55.

PENDENTE LITE,

alienation, when restrained, 1679; injunction granted «f /ar/t", 1693.
assignees, generally not necessary parties, 236, 1588.

unless conveyance of legal estate required, 236, 1588.

made parties by supplemental proceedings, 236, 1586, n. (6), 1588.
receiver, when appointed at instance of purchaser, 1754.
sequestration, how affected by assignment pendente lite, 658, 659.

PENSION,

receiver, when granted, of, 1764, 1765.
sequestration, may be taken under, when, 65".

PERIODICAL (TITLE OF),

infringement of right to, restrained, 1673.

PERJURY,

subornation of, demurrer that discovery would expose defendant to penalty

of, 398.
witness, new trial, on ground of, 678 ; at law, 690.

PERMANENT RESIDENCE (PERSON WITHOUT),

must give security for costs, 21 ; and see Costs (Security for).

PERPETUATE TESTIMONY (SUIT TO), 273.
affidavit of facts must be filed with bill, 315.
costs of, order for, 595.
de bene esse, examination of witnesses in, 585.
demurrer to, on grounds of, 260, 262, 263.
discovery, bill of, may pray, 387, 388.
heir, when nof allowed costs of, 1472.
marriage, of, does not lie at instance of tenant in tail and his children, 261.

or of eldest son of heir in tail of a dignity, 261.
prosecution, cannot be dismissed for want of, 507, 508.

PERSON,

demurrer to the, 391 ; and see Demurrer.

PERSON (PARTY ACTING IN),

name and place of residence of, and address for service (if any) to be written
or printed on writs sued out by, and on proceedings left at Record and
Writ Clerks' Office, 364, 365.
service of proceedings upon, how effected, 364, 365.

PERSON NOT A PARTY TO RECORD,
appeal by, 1556. 1557.
process against, 663.

PERSON OF UNSOUND OR WEAK MIND. See Unsound or Weak
Mind (Person of).

PERSON TO REPRESENT THE ESTATE. See Representative of
THE Estate.

INDEX.

2061

fendant to penalty

s children, 261.

ouND OR Weak

SENTATIVE OF

PERSONAL ESTATE,

parties to suits relating to, 205, 211.

legatees, residuary or pecuniary, not necessary parties to suits to charge

or recover, 211 ; except in cases of ademption, 211, n. (i).
persons having specific lie..s or specific legatees of wife's paraphernalia,
may he, 211.
personal representatives, necessary parties to suits, to charge, 205, 206.
sequestration, effect of, upon, 652.
wile's, bound by admission in joint answer of her and her husband, 147.

PERSONAL REPRESENTATIVKS,

costs of, 1511, 1517 ; personal liability to, 1525,

strangers, in suits with, 1470, 1471 , and see COSTS,
costs, charges, and expenses, when allowed, 1544.
creditor's action restrained after decree, on application of, 1633.
death of, form of order for revivor on, 1588.

revivor, when not necessary on, 1595. ^

when cause allowed to proceed without, 1588, 1589.
deceased, personal representative of, when necessary party, 208.
English, constitution of, when necessary, 160, 206, 207, 208, n. (l).
husband of, generally a necessary party, 209.
infant's legacy, not allowed costs of hill to secure, 66, 1533.
jurisdiction, out of, limited administration granted, in case of, 208, n. (l).

iust allowances, what are, in case of; j^^ Just Allowances.
imited administrator, when l)ound by proceedings of, 162.
married woman «? (foc^fl/ not granted against, 141, 1738,
mortgagee, of, parties to suit to foreclose by, 179, 180.
w^ fOTtw/ against, amount for which marked, 1743.
new, whether appointment of, necessary on death of proving executor,

208, n. (4).
parties, when necessary ; see Parties.

party, decree against only made by consent, when not a party, 209.
payment into Court by, when directed, 1808 — 181 1.

considerable lapse of time, not ordered to, after, 183, 1825.
paupers, cannot sue as, 33, 34 ; unless also beneficially interested, 120.
persons beneficially interested, not necessary parties to suit by, 171.
receipt of assets by, when restrained, 1693.

ex parte '\\yyyac\\QX\, when granted, 1693.
retainer of, not affected by plaintiff's right to costs, or payment into Court,

1529, 1818.
And see Administrator — Executors.

PETITIONS, 1624— 1630,

amendment of, when allowed, and how effected, 1628, 1629.
appeal from order made on, 1566, 1630 ; and see Appeals and Re-
hearings.
appeal, of, in case of appeal in Court of Chancery, 1571 — 1573 ; and see

Appeals and Rehearings.
applications made by, 1605, 1606, 1624, 1625.
compromise suit, application for, made by, 1605.
costs on, 1625, 1626; and j« Costs.
course of, 1625.

declaration of rights, not made on, 1627.
def nition of, 1604, 1624.
different sorts of, 1625.
disability, on bthalf of persons under, 1625.
evidence on, 1627.

guardian rtf///V^;« appointed if respondent under disab'lity, 125, 139, 1627..
hearing of. 1627, 1628 ; an. :ee Hearing.
infant, on behalf of, by whom presented, 1625.
infant respondent, appointMent of guardian acilitem^ for, 125, 1627.
lunatic, against, when defended by his committee, 138.

2062

INDEX.

PETITIONS— <:tf«/i>»«A/.

when by guardian ad Uttm, 138.
marriage of ward, for consent to, 1406, 1407.
married woman, on behalf of, by whom presented, 1625.
name and description of petitioner, statement of, 1625.
next friend, when presented by, 1625.

next friend for the purposes of the application, when presented by, 1625.
order on, drawn up, how, 1628 ; discharge or variation of, 1630.
payment out of court, application for, when made by, 1604, 1826.
prayer of, 1626. . ^

representative of the estate appointed on, 164.
service of, 1627, 1628 ; and see Service.
setting down, 1627.
special, 1625.
stating part of, 1626.
stop order, for, 1716.
time for service of, 1626, 1627.
title of, 1625.

amendment of, effect on affidavits sworn before alteration, 571, 572, 1627.

statutory jurisdiction, under, 1625.
unsound mind, person of, respondent to, appointment of guardian ad litem,

for, 139, 1627.
application for, how made, and evidence in support, 139, 1627.

PFTITIONER,

jurisiiiction, resident out of the, security for costs, by, 2i.

PHYSICIAN,

communication to, not privileged, 410.

PLAINTIFF,

abode of, demurrer for non-statement of, 292, 396.
addition of, by amendment, 319, 321.

answer, not of course, after, 321.

discovery, bill of, not allowed in crse of, 321.

hearing, not included, under order at, for addition of parties at, 321.
alien, 41 — 46.
alienage of, plea of, 46.

Attorney General, on behalf of Crown, 3 — 12.
birth-place of, when discovery as to, must be given, 3, 399.
bankrupt, 47 — 52.
bankruptcy of, motion for revivor or dismissal of bill, on, 51, 52, 512.

after decree, for prosecution of suit or stay of proceedings, 513.

order to carry on proceedings, in case of, 51, 52.

plea of, 51.
class suit, description of, in, 202, 294 ; necessary qualifications of, 202, n. (3)
conflicting interests may be united in sole, 192, n. (3).
corporations and joint-stock companies, 16—20.

cross bill, in security for costs not required, for misdescription of, 293.
death of, abatement on, 1580.

when not an abatement, 1595, 1596.
death before decree, motion for revivor or dismissal of bill on, 510, 1593,

1597-
death of, no revivor where determination of interest total, 1591, 1592.

who entitled to revive, on, 1583 ; effect of revivor, 1595.
description of, statement of, 292 ; when not required, 293.

in amended bill, 319, n. (4).

omission of, how Mken advantage of, 292.
dominion of, over suit, until decree, 483, 485 ; in class suits, 196, 488.
foreign state, government of, 13—15 ; and see Foreign Government.
idiot, 67 — 70.
idiocy of, plea of, 68, 596.

INDEX.

2063

2, 512.

3-

of, 202, n.

(3)

.f, 293,

510. 1593.

1592.

PLAINTIFF— fa«/»««(rrf',
infant, 52—67.

interest, demurrer for want of, in, 269, 392.
jurisdiction, person out of the, 20 — 32.
lunatic, idiot, or of unsound mind, 67—70.
lunacy of, pentiente iife, supplemental order on, 1535, 1586.
marriage of female, abatement on, 91.

motion for revivor or dismissal of bill, on, 487, 488.

revivor on, and who entitled to order, 1584, 1585.
married woman, 70—103.
name, plea of misdescription of, 292.
name ar.d address of, statement of, in bill, 292 ; when not required, 293.

omission of, how taken advantage of, 292.
name and address of his solicitor, or agent, or of his own if acting in person,

to be inserted at end of bill, 313, 314.

indorsement of on proceedings and documents, 361, 362.
ne exeai asainsl, 1740.

pauper, 32—40. ,

person of, demurrer to, 391 ; and see Demurrer.
residence, without permanent, ordered to give security for costs, 20, 21.
striking out name of, 57, 319—321 ; and see Striking out name.

PLEADINGS,

admissions and confessions must he noticed in, 540, 541.
decree and orders no longer recited in, 626.
evidence not admitted of facts not noticed in, 537.
exceptions, when pointed to general charge, 538.
file, taking off, because scandalous, 481.

POLICY OF THK LAW,

admissions contrary to, not permitted, 534.

POPISH RECUSANCE,
no longer a disability, 40.

POSITIVENESS,

demurrer for want of, 294, 396; included in general demurrer, 421.

POSSESSION,

certainty required in bills for, and discovery of title deeds, 301, 302.
chattel real, of, how alleged, 295, 296.

POST,

service of notice of the decree by, how authenticated, 347.

POVERTY,

executor, of, receiver not appointed in consequence of, 1756.
except in case of husband of executrix, 1 756.

•PRACTICE OF THE COURT,
how regulated, I.

deviations from, consents to, should be sanctioned by the Court, when
given on behalf of infants, 59, 129.
lunatics or persons of unsound mind, on behalf of, 69, 139.
married women, on behalf of, 90.

PRAYER OF BILL, 269, 270, 290, 303—313.
alternative, when permitted, 309.

amendment of, when leave given at hearing for, 30S, 309, 331.
demurrer for want of proper, 269, 393.
form of, 269, 270.
formal parties, in case of, 311, 312.
general relief, for, effect of, 304, 307. 308, 393.

defects in specific prayer, when supplied under, 303 — 307.
injunction, for, 311, 312.

2064

INDEX.

It ^

bid *

5

PRAYER OF BTLI continued.

mistaken, redress given under, in case of charities, 8, 309.

of infants, 58, 59, 309.
ne exeat re;j;no, for, not necessary, usually, 290, 313.
process for, abolished, 290.
provisional order, for, 312.

receiver, for. necessary when appointment desired before decree, 1768.
relief, for, addition of, to bill for discovery, not allowed, 324.
specific relief, for, 269. 270.

defect in, when supplied under prayer for general relief, 303, 313.
waiver of penalty or forfeiture inserted in, 312.

PRELIMINARY ACCOUNTS AND INQUIRIES,
directed, when, 616.

PRESCRIPTION,

variance, effect of, in suit for right founded on, 545.

PRESUMPTION OF LAW,

dotible legacies, in cases of, 536, n. (3).

insanity, in cases of, 536 ; lucid interval, when allegation of, 537.
legitimacy, in cases of, 536.
onus probandi rests on party impugning, 536,

PREVIOUS SETTLEMENT,

effect on wife's equity to a settlement, 84.

PRINCIPAL,

agent, when not necessary party to principal suit, 157, 158.

necessary party, when not, to bill by agent, 157.

necessary party to suit for contribution, unless insolvent, 226.

but plaintiff may elect then to make him a party, 226.
surety, not necessary party to suit against, 223, 225.

unless he has paid part of debt, 225.

but owner of estate charged as collateral security is, 225.

PRINCIPAL AND AGENT,

plaintiff's title in suits between, how stated, 265.

PRIOR INCUMBRANCERS, i^ee Incumbrances— Parties (to Suit).

PRIORITIES,

costs of suit to ascertain, 1479, 1480, 1528.

PRIORITY,

original suit over cross suit, of, how lost, 319.

PRISONER,

bill, service of, upon, 351, n, (6).

PRISONER OF WAR,

when he may sue, 43.

PRIVATE AFFAIFS,

discovery as to defendant's, need not be given, 448.

PRIVILEGED COMMUNICATION,

case, on the ground that communication relates exclusively to the party's

own, 413, 414
answer, objection by, on the ground of, 446.
demurrer to discovery, on the ground of, 404-414.
production, exemption from, on the ground of professional confidence, 1856,

1857.

that documents relate exclusively to defendant's own case, 1853.
professional confidence, on the ground of, 404 — 413 ; and see Professional

Confidence.

INDEX.

2065

1768.

3>3-

537-

ro Suit).

the party's

lence, 1856,
loFESSIONAL

PRIVILEGED PERSON,

discovery, bill of, proceedings to take pyo confesso, against, 642.
injunction or restraining order, proceedings against, for breach of, I7I3.
injunction or restraining or Jer for breach of, 1713 ; and see Sequestra-
tion.

PRIVILEGES OF THE CROWN,
judically noticed, 386.

PRIVITY,

between plaintiff and defen'lant must be shown, 269.

demurrer, for want of, 269, 392.
not destroyed by employment of agents or brokers, 268, 265.
plaintiff claiming by, need not state title fully, 264.

PRIZE-MONEY.

one of the ship's crew may sue fdJ-, on behalf of self and others, when, 195,
196.

PRO CONFESSOy 370—380

absconding defendatit, taking bill against, under statute, 365, 366.

a<lvertisement of notice, 366,

amended and original bill taken together, 318, 319.

amended bill, proceedings to lake, 375, 37b.

amendment of bill, proceedings, when vitiated by, 325, n. (2) ; 338, 339,

375.

when not, 325. 339, 375.

answer, mere tiling of, order not discharged upon, 375.
decree, nature of, 378, 380.

absolute, when, 378.

not absolute, no proceeding to be taken under without leave, 378.

time for making decree absolute, 380 ; motion to make, 380.
enrolment of decree taken, when vacated, 3S0, 636.
hearing cause, 377.

appearance of defendant at hearing, on what terms permitted, 377.

bill read from authenticated copy, 378.
insufficient answer, no answer for purpose of taking bill, 375.
interpleader, bill of, may be taken, 116.

married woman's inheritance, bill relating to, not taken against her, 148.
paymen* order for when made, 378.
preliminary order, 370 — 376.

how obtained, 371 — 376; discharge of, on what terms granted, 376.
receiver, appointment rf, when bill taken 378.
representatives of parties, how far bound by decree, 380.
restitution, security for, when required, 378.
restoration of cause set down to be heard, when permitted, 375.
sequestration, issue of, when bill taken, 378.
service of decree, 379 ; and notice, where not absolute, 378.

application to dispense with, when to be made, 379.
setting down cause, 37 [, 372.
strictness required in proceedings, 375,
wife, when bill may be taken against, 148.

PROBATE,

allegation of grant of, obviates demurrer, but not plea, 263.
grant of, need not be alleged in bill against executor, 263.

PROBATE (COURT OF),

appeal from, receiver, when appointed, pending, 1761.

costs in, postponed to costs in Court of Chancery, 1 5 10.

injunction to restrain proceedings in, when granted, 1649.

litigation in, receiver, when appointed, pending, 1761.

receiver, appointment of, by, 1760, n. (4) ; pending appeal, 1 761, n. (2).

2066

INDEX.

., .

or . '

I

s

i

3

PROCEEDINGS,

abandoned, costs of, 487, 488.

stay of subsequent proceedings for same object until payment of, 489,
490. . ^ ^

Chancery, in, how proved, 549.

evidence, when admissible in, 553. ^

office copies, read from, 553.
indorsement on, of name, residence, and place for service, 361, 362.
judicial or legal, how proved, 548.
leave to attend, party served with notice of the decree may obtain, 348.

order for, how obtained, 348.

service of, 348, 349 ; evidence of, 348.
proof of, at law, different in civil and criminal cases, 553, 554.
service of, in matters of contempt, must be personal, 361, 362.

in other cases, how efiiected, 361 — 363.

PROCESS,

application relating to, usually made by motion, 1605.

vitiated by irregularity in affidavit of service, 576.
prayer for, 290 ; now omitted from bill, 290,

PROCHEIN AMY. &^ Next Friend,

PROCLAMATION,

judicially noticed, 386.

PRODUCTION OF DOCUMENTS, 1836— 1863.
abroad, practice when documents are, 1849.
accountant, not made to, without special order, 1859.
admission in answer, affidavit when allowed to explain, 1845.
affidavit, as to form of, 1841 — 1843 ; and see Affid/ /it.
agent, when in possession of, 1847 ; when wrongful!/ withheld by, 1848.
amendment of bill, eff"ect of, on the right to production, 1851.
answer, practice where application made on admission in, 1850.
application for, how made, 1841.
attachment for non-production, issue of, 1863.
claimant under decree, how obtained by and from, 1847.
co-defendant, cannot be required from, before decree, 1846.
corporation aggregate, by, affidavit of, by whom made, in case of, 1841.
criminal charge, objection because it would expose party to, 1857.
cross bill, obtainable from plaintiflT without, 1837.
cross-examination on affidavit as to, not allowed, 568, 1845.
decree, not ordered, when it would be equivalent to, 1851.

or where documents not wanted for purposes of, 1852.
delay in making application, effect of, 1841.
description of documents, what is sufficient, 1841, 1842, 1850.
evidence in support of application, 1841, 1842.
evidence, documents not made, by order for, i860,
extent of right to, 1836.

filing of bill, not ordered of documents parted with sini.e, 7! •;<
foifelture, objection to, because it would expose party fo, . -. , U' jS.
greater certainty, effect of reference to, for, on right '.o. c-s
hearing, how obtained after, 1846.

informality or insufficiency of affidavit, practice in case o, ..ij.j.
information, party to produce, must seek for, 1843, 1844.
information obtained by, publication of, or use for collateral purposes,

restrained, i860,
injunction, refused pending application for dissolution of, 1704.
joint possession, not ordered of documents in, 1847.
mortgagee, by, when directed, 1758.
next friend, cannot be required from, 1845, 1846.
objection to, how made, 1846 ; proceedings where invalid, 1846.

INDEX.

2067

of, 489.

362.

Id by, 1848.

1.
SO-

Ise of, 1 841.
1857-

M,4.

puiposes,

j)4.
846.

PRODUCTION OF DOCUMENTS-«-w//««^</.
omission from affidavit, practice in case of, 1846.
order, effect of, i860.

how enforced, 1863.

examination of witnesses and hearing, extends to, i860,
penalty, objection to, because it would expose party to, 1857.
place at whicli ordered, 1859.
plaintiff, by, defendant entitled to, when, 1840.

obtained, how, under former practice, 1840 ; under present practice, 184a

time for application, 1840, 1841.
answer, practice when application made after, 1853.
pleadings, how affected by state of, 1853.
possession, answer or affidavit only received as evidence of, 1845, 1850.

admission of, after, special grounds must be shown for non-production,
1850.

sufficient, what is, 1847,
possession of stranger, in, when production ordered, 1849.
professional privilege, exemption on account of, 1856, 1857 ; and see Pro-
fessional Confidence.
Record and Writ Clerks' Office, where deposited in, how obtained in the
Court or its offices, 553.

elsewhere, 553, 1861.

order not made if certified or examined copy sufficient, 553.
redemption suit, in, not ordered before decree, 1858.
reference by answer to document, effect of, 1855.
relators, how obtained from, 1846.
relevancy, admission of, sufficient to give right to production, 1850, 1851.

unless documents not material, 1851.
sealing up, when permitted, 1845, 1846.

portions relating exclusively to respondent's title, 1853.

proceedings, where suspected to extend to relevant matter, 1846.
set aside deed, in suit to, 1852.

when deed itself alleged to contain evidence, 1852.
solicitor, when in possession of party's, 1849. !

solicitor, lien of, ordered notwithstanding, 1849.
solicitors in partnership, in suit between, 1849,
solicitors and agents, who entitled to inspect as, 1 859.
special agent, not made to, without special order, 1859.
title, relaMng exclusively to respondent's, not ordered, 1853, 1854.

mode in which objection must be raised, 1854.
trustee, by, not ordered in absence q\ cestui que trust, 1849.
undertaking to make, extends to solicitors and agents, i860.

PROFESSIONAL CONFIDENCE,

demurrer to discovery on the ground of, 405 — 413.

allowed, though no demurrer to relief, 387.
demurrer l)y witness on the ground of, 595.
qualified in the cast- of client, 406, 411, 412.
secus, in the case of legal adviser, 408.

does not cease on solicitor becoming interested, or his being struck
off the rolls, 411.
extends to counsels' briefs, how far, 406. . , ,

case for counsel's opinion, when, 405, 406.
communication with solicitor before dispute, when, 406, 407.
agents between solicitor and client, 411.
foreign legal agent, 411. -., ; .

representative of client, 411.
solicitor subsequently becoming interested, 411.
.:: professional communications of any kind with legal adviser, 413.
what it does not extend to, 409, 410, 411, 412.
communications, by third parties to solicitor, 409.

2068

INDEX.

PROFESSIONAL CO^FIDE^CE— continued. ■ . "

not strictly professional, 409.
cominunicatioi'"', to members of other professions than the law, 410.
to agents or stewards, 410.
to conveyancers, 410.
by other parties to the suit, 412
legal adviser a party to the transaction, where 413.

illegal purpose, communication made in order to effect, 413.
knowledge of, not gained professionally, 410.
party to a fraud, 413.
foreign legal adviser, extends to case of, 411.
fraud, exception where solicitor party t'>, 1857.
letters between client and his solicitor, 1857.

client or solicitor and unprofe>sional agent, 1857.
exception, plaintiff and defendant jointly interested, 1856.
party must swear to his belief in valiility of oi>jection, 1857.
production, exemption from, on the ground of, 1856, 1857.
briefs, and notes thereon, of, 1857.
except indorsement of order or matter, puMici juris, 1857.
cases and opinions of counsel, of, 1857.

exception where plamtiff and defendant jointly interested, 1856.
or in suits between trustee and Cistui que trust, 1857.

PROHIBITION,

proceedings on, not restrained, unless applicants plaintifTs in equity, 1636,
1637.

PRO INTERESSE SUO. ^« Interesse Suo (Examination Pro.)
PROMISSORY NOl'E,

exhibit, provable as. at hearing, 561.
married woman, given to, effect of, 94.

payment of part to her husl>and, effect of, 94.
negotiation of, when restrained, 1677..

application usually made ex parte, 1677.

forged indorsement, in the case of, H)77.

perpetual, made at hearing, 1706.
one maker of joint and several sued without the others, 223, n. (4).

PROOF

in bankruptcy, by husband of debt due to wife, not a reduction into posses-
sion, 95.
will, of, must be stated by execittor plaintiff. 262 ; how alleged, 262.
unless bill tiled to protect property pending grant, 262.
PROPER rv (MANAGEMEN r OF). S^^ Manauement (of Property).

PROPRIETORS,

institution, of an, one may sue on behalf of self and others, when, 196.

not if dissolution sought, 196.
trading concern, of a, when one allowed to sue for self and others, 195.

PROROGATION OF PARLIAMENT,

judicially noticed, 386.
PROSECUTION,

dismissal of bill for want of, 495 — 510. See Dismissal of Bill (for
Want of Prosecution).

PROSECUTION (CRIMINAL),

demurrer to discovery that would expose defendant to, 398, 399.
exceptions, 401, 402.
conspiracy, cases of, 401.
fraud, cases of, 401.

statutoiy, 402 ; fiaudulent trustee, 402 ; infringer of trale mark, 403.
protection against discovery tending to establish, cannot be waived, 403.
wife not bound to discover what would expose husband to, 146, 147, 3^8.

law, 4W-

413-

557.

led, 1856.

equity, 1636,
ON Tro.)

n. (4)-

tion into posses-
red, 262.
F Property).

vhen, 196.
thers, I9S-

Jill (for
I399.

He mark, 4°*
Iraived, 402.
I46, 147. 3;^

INDEX. 2069

PROTECTION ORDER,

discharge of, supplemental order on, 1588.
effect of, on right to sue at law, 70 ; on wife's reversion, 98.
A' wife who has obtained, sued without husband, 140,

PROTESTATION,
demurrer in, 419.

PROVINCES,

boundaries of colonial, Attorney-General necessary party to suit as to, 106.
division of England into, judicially noticed, 386.

PROVISIONAL ORDER,
prayer for, 312.

PUBLIC COMPANY. See Company (Public).

PUBLIC INTEREST,

demurrer that discovery would be against, 415, 416.

PUBLIC OFFICER (OF JOINT-STOCK COMPANY),
change of, new name, how subKtituted, 19, 20.
death of plaintiff, no abatement, 511.
dismissal of bill ^pon, 511.

PUBLIC RECO^.D OFFICE,

o^ce copy of record in, provable as exhibit at hearing, 561.

PUNISHMENT,

demurrer to discovery that would expose defendant to, 387.

discovery that would subject defendant to, not required, 398.

married woman need not give discovery that would subject husband to, 398.

production, objection to, on ground that it would expose party to, 1857.

PURCHASE FOR VALUABLE CONSIDERATION, WITHOUT
NOTICE,
demurrer on the ground of, 403.
onus probamii in cases of, 535. *

PURCHASE MONEY, and j« Master's office.
incumbrances, payment off of, out of, 1370.
investment of, 1354.

lien of purchaser on, till conveyance, 1370.
payment into Court, order for, how obtained, 1353.

who may appear on application, 1354.
several purchasers may join in one application, 1354.
but joint purchasers cannot sever, 1354.

private contract, where sale by, 1163.
payment in, order for, on default of purchaser, 1372.
payment in, without prejudice, 1354; application for, how made, 1354.
payment out of, notice to purchaser of application for, 1370, 1 371.

appaaraiice of purchaser on, costs of, when allowed, 1371.
restraint on, in favor of purchaser, 1370.

effect given to, how, 1370 ; discharged, how, 1371.
return of, nn discharge of purchaser, 1354.

PURCHASER,

co-plaintiff with settlor, should not be, in suit to avoid settlement, 192.

death of, parties to suit fjr specific performance, in case of, 238.

different parts uf estate from beneticiaries, of, legal estate being outstand-
ing, whether necessary parties, 178, 179.

judgment-creditors of, not necessary parties to bill against, for specific per-
formance, 234.

mortgagee, from, necessary party to suit to set purchase aside, 234.

mortgagor, from, account directed against, at instance of mortgagee, though
not prayed, 305, 306.
107

2070

INDEX.

■I,:. 1

PU KCHASER— <•<»«//■«««/.

payment into Court by, when directed, 1812 — 1814, 1823 ; and wf PuR.

CHASE- Money.
pendente Hie, not necessary party, unless conveyance required, 236, 1857,

1858.

made party by Eupplemental proceedings, 236, 1857.
receiver at instance of, 1754.

several, of distinct lots, bill for specific performance against multifarious,
276.

bill l-y multifarious, 284, 285.
subject to charges, receiver, when appointed against, 1759.

PURCHASER (UNDER DECREE),
appeal by, 1557, 1558.
costs, of inquiry into title, when entitled to or liable for, 135 2, 1353.

paid out of what fund, 1353.
costs of on opening biddings, 1159 ; special costs, 1159.
default of, remedy for, 1372.

order for payment of purchase-money, 1372.

resale, 1371, 1372. otv Resale. ^

delivery of abstract to, how compelled See Master's Ofkice.
discharge of, when directed, 1353, 1372.

application for, how made, 1354 ; rev i, must be before, 1354.

error, where material in the proceedings, 132.

opening biddings, on, 1 155.

purchase inequitable, where, 1353.

return of purchase-money or deposit upon, 1354.

title, bad or doubtful, in case of, 1353.
heir of, allowed benefit of contract, 1372.
lien, of, on purchase-money until conveyance, 1369, 1370,
motion by, 1608.

representatives of, sale not enforced against, without suit, 1372.
resale by, before certificate absolute, payment of profit made on, 1373, 1374,
substitution o(, 1373, 1374.

application for, how made, evidence, and costs, 1374.
not necessary after certificate has become absolute, 1374.

death of purchaser before payment, in case of, 1374.
title deeds, delivery of, to, 1369.

lots when sale in, 1369.

purpresture,

definition of, 1661.

injunction against, 1661, 1662. /

QUAKER,

answer of, how taken, 467.

queen,

Attorney-General, sues by, 4 ; is sued by, 105, 106, 107.
bill, when addressed to, 292.
costs, entitled to, when, 7, 8,

not liable for, 7, 8.

exceptions, revenue cases, 8.
petition of right, 13, n. (4).
Court, may sue in any, 3.

law or equity, may sue at, 3. ,

Solicitor-General, when represented by, no. ,
suits against, 105 — 110; on behalf of, 3 — 12.
waste, when restrained at suit of, 3.

And see Attorney-General— Crown — Information.

question of fact. See Fact (Question of),

QUO WARRANTO,

demurrer to discovery which would expose defendant to, 402.

INDEX.

2071

; and see POR.
ed, 236, 1857,

1st multifarious,

2, 1353-

ICE.
1354.

372-

le on, 1373. 1 374-

RAILWAY TOLLS,

receiver of, appointed, 1764.

RKAL ESTATli,

iulmiiiistrntion of, not ordered in single creditor'b suit for his own debt, 194.

accounts of, form of. See Master's Okfick.

lejj.xcies charged on, le.j.itees necessary parties, 183, 184.

Icijacy char^'ed on, administration decree on application of one legatft.

177, 183, 184, 342.
revivor by common order, of suit relating to, 1586.
sale of, proceeds of, administration decree on application of one person

interested in, 177, 183, 184, 342.
sequestration, effect of, on, 658.

RE AMENDMENT OF BILL. 5ftf AMENDMENT OF Bill.

RE BUILD,

forfeiture on breach of covenant not to, relieved against, 1688.

RECKIIT,

exhibit, provable as, at hearinT:, 516. '

secHs, if cross-examination upon admissible, 516.
husband or his agent, by, a reduction into possession, 94.

RECEIVER, 1749-1801.

abatement, effect of, on, 1594,
accounts of, 178S — 1794.

allowance, of report on, 1789.

form of, 1788.

leaving, 1788; how compelled, 1790.

neglect in leaving, or atlenling to pass, penalty for, 1789, 1790. 179a.

warrant to proceed on, 1789.

vouched, how, 1789; un vouched payments disallowed, 1789.
accumulating fund, appointment for purpose of, 1759.
action, defence of, by, leave necessary for, 1785.

costs of unsuccessful, allowed though not sanctioned, 1786.
answer, when appointed before, 1768.
answer, treated .is aflidavit, on application for, 1769.
application for, 1769, 1770 : by whom made, '768; how made, 1769.
application rel.iting to, by whom to be made, 1788 ; how made, 1788.
appointment, mode and effect of, 1768 — 1779.

discretionary in Court, 1749; when ordered, 1749 — 1763.

who appointed, 1766 — 1768.

person who should check receiver, not appointed, 1766.

proceedings by person prejudiced, by, 1778.
attornment, direction for in order appointing, 1774.

how enforced, 1775—1778 ; and see Attoknment.
balance of, payment into Court of, 1790 ; how enforced, 1790.

must be made, though no order for payment, 1789.

neglect in making, penalty for, 1791.
barrister may be, 1 767.
benefit of, who entitled to, 1752.
Canada, when appointed of property in, 1765.
canal tolls, when appointed of, 1761, 1765.
canonry, when appointed of, 1764.
China, when appointed of property in, I76S'
consequences of appointment of, 1776.
costs of, 1511, 1775, 1782, 1789, 1796; and j£'^ Costs.
creditor of, for goods supplied for the estate, payment of, 1794.
creditor's suit, appointed in, where sale clearly necessary, 1754.
Crown accountcint objectionable as receiver, 1767.
danger to the estate, when appointed on ground of, 1756 — 1758.
death of, passing account after, 1 792.

2072

INDEX.

!

t

RECEIVER— #•«!/»»««/.

debt, Kaiiction ofJuclRe necessary, putting in suit by, 1786.

decree, sujiersedfd by, unless expressly continued, 1796.

deduction of costs of unsuccessful application against, from balance of,

when permitted, 1782.
definition of, 1 749.

delivery of securities for personal property, direction for in order, 1774.
delivery of i)Ossession by party to, how enforced, 1776.
hcmerara, when appointed, of pioperty in, 1765.
discharge of, 1794— 1796.

application for, how nnade, and service of notice thereof, 1796.

application, on his own, grounds for, 1794.

bankruptcy, on, 1795.

cea er of plaintiff's right on, 1801.

ex /arte application of party at whose instance appointed, not ordered
on, 1795.

order, form of, 1796.

new trustees, on appointment of, 1795.

unnecessary, when, 1795.
dismissal of bill, account must be passed, notwithstanding, 179a
distress by, in whose name made, 1783.

leave to make necessary, and how obtained, 1783.
disturbance of possession of, a contempt, 1777, 1778.

sheriff, proceedings, when property taken by, 1778.
dock tolls, when appointed of, 1765.
duties of, 1785, 1786.
eflTect of appointment of, 1776.

ejectment against, inquiry whether it should be defended, 1779.
eifgif, when appointed against ci editor in possession under, 1753, n. (1),
England, when appointwl of property out of, 1765.
equitable claims, usually appointed on behalf of person having, 1 750 ;

without prejudice to prior legal estates, 1751.
eviction of tenants by, leave necessary for, 1783.
evidence in support of application for, 1769.
ex parte, not appointed, unless party has absconded, 1769.
executors, when appointed against, 1756.

insanity of husband of executrix, on, 1 756.

insolvency of, 1 756.

jurisdiction, out of the, 1756.

misconduct or neglect of, 1 756.

poverty, not appointed on mere ground of, 1756.
except in case of husband of executrix, 1757.
expenditure by, sanction of Judge necessary to, when, 17S3.
failure of banker, when charged with loss occasioned by, 1787,
fellowship, when appointed of, 1764.
fieri facias, writ of, not issued against, for balance, 1790.
foreign Court, appointment of, pending litigation in, 1761.
fraud, when appointed in cases of, 1756.
half-pay, not appointed of, 1764.

he.iring, appointment of. at or after, without prayer, 1768.
heirlooms, may be appointed of, 1765.
implied trusts, appointment in the case of, 1755, *7S6, i7S8.
inadequacy of price, when appointed in case of, 1755.
India, when appointed of property in, 1765.
infant, appointment in case of, 1391, 1763.
injunction to restrain proceedings against, 660.
interest on incumbrances, how kept down by, 1 787.
interest on balance, how and when charged with, 1790, I79''
Ireland, when appointed of property in, 1765.
issue, when directed, on application for, 675.
Italy, when appointed of property in, 1765.

lyuEX.

2073

RECEIVER— <-tf«//«M«/.

i'ointtennnts, when appointed in case of, 1761.
uili^ment cre'litor, wn«;n or'iert'd to rerund payment mnle Uy, 1779.
andlord, rights of, how effected by appointment of, ITJ').
leases by, sanction ofCouil required to, 1784, 17S5 ; how c)l)tained, i784,

>7 5-

legal estate, when grantwl against, 1754, 1786, 1787.

legal right, not appointed on application of person Imving, 1759.

legil title, not appointed where, in dispute, 1759.

except under special circumstances, 1759, 1760.
liabilities of, 1787, 1788.
losses, when charged with, 1787, 1788.
market tolls, when appointed of, 1764.
mine, when appointed in case of, 1 761.
misjoinder, granted pending litiijation, notwithstrnding, 253.
miKle of appointment, 1774—1776.

when order directs a proper person to be appointed, 1774 '77''

evidence, 1774.
mortgagee in possession, not usually appointed against, 1751 -I75.<'
mortgagee, when appointed at instance of second, 1750.

absconding mortjjagor, against, 1752.
mortgagor out of the jurisdiction, when appointed against, 117, 1752.
motion, application for, usually made by, 1769.
New South Wales, whei. appointed of property in, 1 765.
notice of motion for, 176) ; amendment of bill, a waiver of, 338, 1623,
occupation rent, party when charged with, 1776, n. (5).

tenant, when charged with, 1777.
office, of profits of, 1764.
order for, form of, 1773.
outstanding estate, how got in by, 1786.
Parliament, member of, objectionable as, 1776.
parochial rates /// ftituro, not appointed of, 176';.
partner, retired or solvent, when appointed, 1765.
partnership, when appointed, in cases of, 1761 — 1763.

continuance of sought not granted, if, 1762.

death of co-partner, in case of, 1763 ; of all partners, \^'i^S•

disputed not granted where, 1762.
party to suit, when appointed, 1766.

special leave necessary, and how obtained, 1 766.
payment into Court by, may be made at any time, 1789.
peer, objectionable as, 1 767. ^

pendente lite, bill for, not dismissed for want of prosecution, 508.

costs of, 508.
pension, when appointed of, 1764.

not appointed, if granted to support the dignity of a peer, 1755.
or for past services, 1704.
possession of person having prior legal estate, not {usually granted against

I7S3-
powers of 1782 — 1784.

prayer necessary when appointment before decree, 176S.
pro confesso, appointment of, when bill taken, 378.

no proceedings to be taken by, without leave, 378.
property over which appointed, 1764 — 1766.
/«/>««.• incumbrancer, when appointed on behalf of, 1774.
purchase subject to charges, when appointed in case of, 1759.
pinchascT pendente iite, when appointed at instance of 1754.
railway tolls, when appointed of, 1765.
recognisance of, how given, 1772, 1773.

put in suit, how, 1793 — 1797.
stay of proceedings, on payment into Court of amount due, 1795.

vacation of 1796 ; and See Recognisance.

S074

INDEX.

4::'v:?

RECEIVER— ^(;«//«w^//.

rectory, when appointed of profits of, 17^4.

second incumbrancer, at instance of, 1753, "• (')•
rents, payment of, to, how enforced, 1783 ; after receipt by solicitor, 1782.

roising by, leave necessary for, 1784.
.epairs, what may be made by, without leave, 1785.
salary or allowance of, 1779 — 1781.

abandoned proceedings, costs of, when allowed, 1782.

amount of, 1779, 1780.

extraordinary allowances, when sanctioned, 1781.

journies, when allowed costs of, 1782.

right of receiver to, 1781.

stage of cause, at which fixed, 1779.
sequestration, effect of appointment of, on, 660, 1776.
service of notice of motion for, 17(^9.

special leave for, when necessary, 1769; form of notice, 1769.
solicitor in cause not appointed, 1767.
specific performance, in suit for, 1754.
spoliation, when appointed in cases of, 1756.
stay of proceedings, account must be passed after, 1789, 1790.
suit, only appointed in, 1768; except in case of infants, 1391, 1768.
suit by, sanction of Court necessary to institution of, 257, 258.
application for, when made, 1769.
summons suit, appointment of, after order in, 735, 1768.
security to account, from, 1772, 1773.

additional, when required, 1773.

dispensed with, when, 1773.

Ireland, when person resident in, appointed,'! 772 n, (3).

new, required, when, 1773.

recognisance given by, 1772 ; and see Recogni?ance.
surety, liabilities and rights of, 1797 — 1799.

action against, stayed on terms, 1793, 1794, 1799.

discharge of, 1796, 1797 ; own request, not allowed on, I797-
bankruptcy, on his, 1798.
new recognisance must be given on, 1797.

liability of, extent of, 1798 ; relaxed, wiien, 1798.

passing of account, allowed to attend, when, 1798, 1799.
tenancies, creation or determination of, by, 1784.

tenants in common, in case of, 1761.
tenant for life, bound to renew, when appointed against, 1 759.
trade, of a, when appointed, 1760, 1761.
** trustees, when appointed against, 1757, 1758.

absence of, when made in, 1758.

acceptance of new and conflicting trusts, 1758.

acquiescence of fw/w/ j7</f /;-«j/', effect of, 1758.

disagreement of, in case of, 1758.

refusal to act, in consequence of, 1 758.
turnpike tolls, when appointed of, 1765.
West Indies, when appointed of property in, 1765.
vrongful possession, when appointed in cases of, 1755.

RECOGNISANCE,

receiver's, sie Receiver.
amount of, 1772.
form of, 1772.

penalty, execution issued for, 1 794.
suit, how put in, 1793, 1799.
stay of proceedings on, on payment into Court of amount due, 1794, I798>

dispensed with, when, 1773.

unequal sums, may be bound in, 1772, 1 773.
vacated, how, 1796.

INDEX.

2075

f solicitor, 1782.

Int due, I794i '798'

RECOGNITION,

necessary, before foreign state can sue, 14.
judicially noticed, 14, 386.

RECORD,

^ admissions on the, 527—535. See Admissions.
answers to original and amended bills, form only one, 455.
bill, not of, till filed, 317.

Chancery, of Court of, production of, how obtained, 553, 554, 1861.
Courts, of, how proved, 548.

decree or order, not of, until signed and enrolled, 634.
instrument made part of, by reference thereto, 299.
matters repugnant to the, not admitted by demurrer, 385.
reference to, on answer, 470.

decree or order, on, 628.
Superior Courts, exemplifications of, admitted without proof, 548.

RECORD AND WRIT CLERK,

with records, at offices of the Court, l86l.

out of the Court, 553, 1861.
injunction to writ of, 1702.

RECORD AND WRIT CLERKS' OFFICE,
affidavit filed in, 577,
answer filed at, 470.

amendment of bill, how recorded at, 337.
attachment, issue of, from, 648.

bill filed in, 317 ; amended, when reprint necessary, 337.
change of place of business, residence, or address, for service of solicitor or

pa ty acting in person, notice of, to be given at, 365, n. (4). ,
change of solicitor, entry of order for, at, 1879.

notice of, when given at, 1879.
demurrer, filed in, 425.
demurrer by witness filed in, 597,

deposit of documents at, 1858, i860 ; and see Deposit (in Court).
depositions filed in, 582, 591 ; and see Depositions.
examination of married won.an filefl in, 75.

examiner's certificate of default or misconduct of witness filed in, 580.
guardian ad litem, entry of order appointing, at, 139.
information, filed in. 317; amended, when reprint required, 336.
injunction, writ of, issue of, from 1701.
name, place of br"' less, and address, for service of solicitor, and principal

solicitor (if any), or of party (if acting in person) to be written or printed

on all proceedings left at, 361, 362.
ne exeat repto, writ of, issue of, jfrom, 1743.
next friend, entry of order appointing new, in, 63, 90.
paitition, commission of, hied in, when returned, 708.
production of documents filed or deposited in, how obtained in Court ot

Chancery, 553, 1861.

01 1 of the Court of Chancery, 553, 1861.

not ordered if certified or examined copy will answer the purpose, 553.
replication filed in, 524.
special case, filing of, in, 1867.

sequestration, issue of, from ; and see Sequestration.
subpoena issued from, 579 ; see Subpoena (Writ of),

REDEMPTION (SUIT), and see Master's Office.

costs of suit for, 1475 ; of claimants under mortgagee, 215.

decree for, form of, 623 ; final order in, required, and how obtained, 623.

different estates mortgaged for one sum must be redeemed together, 171.

so when mortgaged for different sums, 172.
discovery whether mortgagee a trustee not required in, 404, 405.
dismissal of bill for, on payment of debt and costs, 487, 488.

.•a

8 i

It 6 *

ST! -•

n

I

St

3

2076

INDEX.

REDEMPTION {SV IT)— con/inued.

parties to suit for, 170—173, 215, 216, 234, 238.

assignment of mortgage, in case of, 215, 216.

derivative mortgagee, in suit by, 173.

mortgage money, all persons interested in, 170, 214.

unle's sufficiently represented, 170,215. •

mortgagor, in suit by second mortgagee, 171.

partial interest in equity of redemption, in suit by person having, 234.

personal representative of mortgagee, necessary party as well as heir, 238.

prior mortgagee necessary party to, 234.

redeem, all persons entitled to, 171.

several estates mortgaged to one mortgagee, where, 171, 172.

subsequent incumbrancer not a necessary party, 235.

trustees, where mortgaged estates vested in, 173.
production not ordered before decree, in suit for, 1858.
successive redemptions, course when directed ; siv Master's Office,
time of payment not enlarged in suit for, 625.

REDUCTION INTO PO.5SESSION,

c^ose in action, of wife's, by husband, what is, 92 — 98.
award in husband's favour, 94.

decree or order for payment to him in her right, 93, 95.
deposit by husband in Court, 93.
judgment in husband's action for her property, 95.
payment to credit of cause to which husband and wife are parties, 95,

1818, n. (2).
receipt by husband or his agent, 94.
release by husband, 98.
transfer of, to credit of husband's lunacy, 93.
what is not, 93 — 99.

annuity, assignment or release by husband of her, 98.
appropriation of fund to meet her legacy, 93.
assignment by husband of her reversion, 95, 98.

although prior estate previously assigned to her, 95.

or she concurs therein (except under statute), 98, 99.
carriage to joint account of wife and husl)and, 93.
decree or order for payment to both, 95 ; not declaring rights, 94, 95.
institution of action or suit, 92, 93.
intention to change character of the property, 92, 93.
judgment in action, to which both are parties, 95.
payment to credit of joint account, 93, 1818, n. (2).

to husband, of part of sum due on her promissory note, 94,

to trustees for wife, 94.
prool in bankruptcy for debt of wife, 94, 95.

REGISTRAR (CHANCERY),

alterations in decree or order, power to make, 631.

REGISTRARS' BOOKS,

decrees and orders entered in, 632.

REHEARINGS AND APPEALS. See Appeals and Rehfarings.

RELATOR,

answerable for the propriety of the proceedings, 10, il.
charity cases, not absolutely necessary, in, 8.
costs of, 10 — 12 ; and see Costs.
** death of, not an abatement, except in information and bill, 9.
idiots or lunatics, necessary in informations on behalf of, 10.
lunatiCf cannot be, 10.
named, when, 6, 7, 8.
own name, cannot proceed in, 6, 7.
person, not heard in, 612.

INDEX,

2077

re parties, 95,

R E L ATO R — continued.

who may he, 9.

And ... Attorney-General-Information.
RELEASE,

al'sent parties, waiver of, against, 24c.
l>ill of, what constitutes, 254, 386.

not convertible I)y amendment infr. K;n ^t ^•

^S.;^r — :;:• --£-.-:'/r5,. 308.

prayer for, 3^3-313 ; ami see FrIyer of Bin
proper, must l,e sp,citicaliy prayel 26c,
spectre, prayer of bill for. ^o. Jo tr, 309.
REMAINDERMEN, -^ /' ^ ^

appe.ds by, 1555.

2^2; ad<ie^ b;'uppij;,^3o;;s°r 222^' ^''"'"'' ^^' "^-^-'■y P-''-^

185, 186, 221. "^ '' ''"''"^ ^■'^'^'^ °f inheritance, necessary parties..

w-,ste, when restrained on application of, 16^2
REMEMBRANCE,

answer as to, when sufficient. 450.
REMOTENESS,

ur^l^T'^ '"'"■'''' '■"'''''''■'"' if existing and indefeasible, 262.
Kt-lMLW AL,

covenant for. forfeiture of. ^yh,n relieved agiinst, 16S7
RENT CHARGE, ''

/^/-r^-tenants, necessary parties to suit affectin-r 2^1
except in cases of chanties, 231. ^""""^"^S, 231.

RENTS,

account of, in suit to assign dower, 717

forfeiture for non-payment of, where relieved against .fiS^

payment of, to receiver, how enforced, 7S2 ^ ' '^^^•

raiMng by receiver, leave necessary for, 178;'

underlease of wife's term, who entitled to. 103

RENTS AND PROFITS

REPAIR. ■'^"

covenanl to, does not preclude injunction, i68q.
furfeuure, on breach of covenant to. not relieved against. 1687, ,688.

2078

INDEX.

I

I

REPAIRS,

receiver, by, previous leave of the Jiudge, when not necessary, 1785.

REPLICATION, 521—527.
amendment of, 525, 526.

amendment of bill, after, 329—331; and jt"^ Amendment of l?n.L.
answer, when filed to, 521.
bill and answer, permitted after hearing on, when, 613.

omission of, effect of, 614.
defendants added after, hearing motion for decree as to, 516.
disclaimer, not filed to, 437, 522 ; unless coupled with plea or answer, 437,

costs of, 437.
dismissal for non-prosecution, notice of motion for, intercepted by filing, 497,

498 ; costs in such case, 497, 498.

motion should not be brought on, if sufficient tender made, 501, 502.

order for, overrides replication, filed same day, 501.
filing of, 524—526; and jtv Filing.
form of, 523.

issue joined by filing, 523.
name, address, and place, for service (if any), of solicitor or plaintiff (acting

in person), to be placed on, 524.
nature of, 522.

neglect to file in proper time, consequences of, 526.
notice of filing, 525 ; and see Njricii.
one only filed, generally, 522.
preparation of, 524.

service of notice of filing, 525 ; and sec Notice — Service,
time for filing, 526.
enlargement of, 526.
supplemental bill, to, 1602.
supplemental statement, to, 527.

withdrawal of, when necessary for amendment of bill, 330 ; not when
amendment is only to add parties, 329, 330.

bill and answer, to set down cause on, 526.

evidence entered into, after, 526.

REPRESENTATIVE OF THE ESTATE,

appointment of, under statute, 160, 161 ; whep not appointed, 161, 163.

how made, and who appointed, 163.
class, appointment of, when some of present, 162.
petition, when appointed in proceedings on, 163.
revivor against, when necessary, 1589.
special case, appointment in proceedings by, 163.

REPRESENTATIVE (PERSONAL). .Sf^ Personal Representatives.

REPUDIATION (OF SUIT),

by infant, effect of, 62, 63 ; when co-plaintiff, 63.

REPUGNANCY,

demurrer, repugnant matters not admitted by, 385.
in pleading, what is, 385.

REQUISITIONS, j^<r Master's Office.

RE- SALE,

default of purchaser, on, 1371.

application for, how made, and evidence, 1372.

costs on, 1373.

proceedings under order for, 1374.
opening biddings, on, how conducted, and subsequent proceedings, n6o.

RESIDENCE,

abroad, meaning, on application for security for costs, 23 ; and see Costs
(Security for).

INDEX.

2079

plaintiff (acting

ESENTATIVES,

service of pioceedings, not requiring personal service at, 365

RESIDUARY LEGATEE, v

admjnistrnlion decree at 'instance of, without serviig others 177 ,^2
adm.mstralionsu.t by. preferred to executor's, 492 ^ ' ^^' ^*^-

Zi "' ''*''''''•'''> •^"'■'' "«' necessary party to, 246.
necessary party when, ,83 ; where class la^e, 183.
pai ties HI suits by, 174, 175, fa « j-

when interests contingent, 174, 175.
when testator in partnership, 268.
RESIDUE,

co.ts of administration suit paid out of, 1533—1537
RESTITUTION,

security for, when required on bill taken /;-<, cort/l-sso, 37S. ^70
RESTORATION. ^^^' .

"""disini^: iTT^ '" '"'''""'" of defendant, when permitted, 610.
dismissal, for non-prosecution, after, 507

dismissal for non appearance of plaii.tiff at hearin-, after, 611
pracm/jsso, wnen to be heard, 375. " '

. RESTS. See Master's Office.
RESULTING TRUSTS,

persons entitled to, necessary parties, when, 216, 217
RETAINER,

•"Tslfors^r wil?n7ev^^• "°^ P-^'J""'^^'' ^>' I^">"^^"' '"^° t:o«rt, I8r8.
' c,.i; •. ■^"", w"l Fevad against, 1529, 1817, 1818.

REVEiSKn,' "' •''"'^"'"'' "54. 2J5. 380, 381.
married woman, assignment of, under statute, q6

married woman of. in chattel real, not bound l.y'husband's assignment loi

in cAase m aCon, not bound by husband's assignment q6-qo ^*

per^oiis .n.tled m. up to first vested estate of inhedtTnce? necSsary parties,

purchaser of, from what time liable to pay interest i^c
sale of, costs of suit to set a.ide. 1475. ^^ ' ^55-

REVERSIONER.

waste, when restrained on application of. 1652.
REVIEW (BILLS OF, AND IN THE NATURE OF)

abatement, matter in, not a ground for, or ''

administration order^. of proceedings by. icSo
amendment of bill after, 1595. ^ ^'

■ answer after, 1581.
bankruptcy of plaintiff, on. 51, 1585.

motion for revivor or dismissal of bill, 51, ci,. qia
churchwardens, on change of, 1591 irgz ^ ^
conduct of cause, effect of revivor oil, 1 584, i ^8?
contempt, process of, issue and resumption of, af[er, icoc
costs, for, not usually allowed, 1590 ^^^'

whether abatement on death of party to pay, or to receive costs icoo
exceptions to rule, 1591. ^ receive costs, 1590.

2080

INDEX.

'RVNIV OK— continued.

anything remaining to be pprformed, 1591.
death of one of several defendanis to whom costs payable, 1591.
estate or fund, when costs payable out of, 1591.
taxation completed or postponed by arrangement, 1590.
creditor's suit, of; when not necessary, 1597.
cust<xly, motion for rev'vor or dischar-^e by person in, 1594.
death of corporation sole, on. 17, 18, 1584.
death of defendant, efifect ol revivor after, 1595.

against successor on deleiniination of interest, 1591, 1592.

motion for revivor or dismissal on. 51 1, 1597,

several defendants, in case of, 1591.
death of husband, when not necessary on, 91, 1597.
death of joint tenant, not necessary on, 1596, 1597.
death of paity, when not necessary on, 1596, 1597.
death of personal representative, when not necessary on, 1596.
death of plaintiff, none when determination of interest total, 159I, 1595.

effect of revivor after, 1596, 1597.
death of vole ur co-plaintiff, motion for revivor or dismissal of bill on,

510, 511, 1583, 1597.
death of tru-tee, when not necessary on, 1595, 1597.
decree, after, who entitled to, 1584.

creditor's suit, in, on death of plaintiff, 1585.
decree, before, who entitled to. 1583, 1584.
defendant entitled to revive jpfer decree, 510. 511, 1584.

but should give notice, 1584.
defendant not entitled to revive before decree, 1 584.
discharge of order for, grounds for, isSf, 1592.

application for, by whom and how made, 1580, 1592.

time for making, 1592.
injunction, motion for revivor or dissolution of, incases of, 1594, 1705, 1709.
jurisdiction, by person out of, security for costs, on, 22, 23, 1589.
liability of party added by, 1585.
Limitations, Statute of, how far a bar to, 1593.

waiver of objection on account of, 1593.
lunacy of plaintiff on, 67.
marriage of female plaintiff on, 90, 1584.

marriage of female sole plaintiff, motion for revivor or dismissal on, 511.
motion for, or dismissal of bill, before decree, 510, n. (3).
necessary, when, 1580.
order for, 1585—1587.

application for, how made, 1581 ; evidence not required on, 1581.

form of, against personal representatives of accounting party, 1588.

time, right to, not barred by mere lapse of, 1588.
personal representative, when there is no, 1589.
receiver, motion for revivor, or discharge of, 1594.
representative of the estate, against, when necessary, 1589.
sequestration, motion for revivor or removal of sequestration, 661, 662.
service of order for, 1581, 1582 ; and see Servick.
special case, of proceedings by, 1589, 1869, 1870.
title of cause, alteration of, upon, 1583.'

RIENS PER DESCENT,

creditor's action restrained after administration decree, though plea of, 1633.

RIFLE RANGE,

use of, when restrained, 1664.

RIGHT.S,

bill claiming same by different titles, not multifarious, 283.
distinct, bill by several plaintiffs claiming, multilarious, 283.
general, bill by several plaintiffs, claiming, when not multifarious, 284.
bill to establish, against defendants distinctly interested, when not
multifarious, 281.

2081

h plea of, 1633.

INDEX.

RIVER,

inTu?v'*i^h?nYT' ''»,'^««P^"L''^' '" '■«1«''-' «-»^«« restrained, ,683.
injury 01 bank of, restrained, 1664. ■^

ROAD BOOK,

piracy of, restrained, 1670.

ROMAN CATHOLIC CHARITIES,
provision as to, 1901.

SALE, and see Master's office.

'"LSt^S'^:^f^^^ "'" '^ ^'^'"^ ^^"'^-^ '° d'«^-"' P-c^--rs.
foreclosure, when directed instead of, 238.
foreclosure, not ordered under prayer for sale, 104

'" su'Ss '^i 7^ ' *"'"■'''' '° '"'' ^'" ^'^'^ "'■' ^"^ ^^«'="''«" of "-"sts of

'"'^'^ineCldat °.3rS32^^^^^ ""'*"" "'"'""'''^ Jurisdiction because

foreclosure, when directed, instead of, 130 131

partition suit, to raise costs of, 711, n (3)
married woman, of land of, to raise costs of partition, 711 n (1)

partition suit, to raise costs of, 711, n (3) ' ' ^^''

power of, renouncin^r executors who have, not necessary parties, 209.

SALE (UNDER DECREE OR ORDE=l), and ... Master's office.
cesfiti que trust, not represented by trustees on, 181 iXa
conveyance, settlement and execmion of, n<;6— 1166 *
default by purchaser, remedy for, 137 1 1372 '

return of deposit on discharge of purchaser, nu
discharge of purchaser, when permitted, 13?^. 13C4 1-172
error, not invalidated by, 131, 132. ^^ •*^*' ^'

Frauds, Statute of, not within, 1372
irregularity, not invalidated by, 131, '132,
married woman, binding on, 149, 150,
opening biddings, on, 1 150— 1102.
after sale by private contract, 1153, "63

by seale(l tender, 1 153 ; and see Hiduings (Opening)

^'Snev'" •'"'"''"''"""''^y ""• '-^54. 1163, 1813; and';.. Purchase
possession, when purchaser entitled to, 1355
private contract, proceedings on, 1161, ii6i

conditional contract. 1 162 ; confirmation of, how obtained 1162
""' AfrSa '^'"-'^'^ ' "^' "' '''^'^"*° Monev"(bv Sale or
sequ^sirati^cM,. when ordered under. 655. 656 ; application for. how made.

substitution of another purchaser, when allowed, \xn\

title deeds, delivery of, to purchaser. 1369; lots, when sale in. 1369, 1370.
SANCTION OF THE COURT,

institution of suit, when necessary for, 257 258

^'^58. "'"'"^ »°' aground of objection by defendant to suit proceed-

application for, and necessary evidence. 257 258

required, to consent to deviation from ordinary procedure, given by next

frieiKl of infant, 59; of person of unsound mind, 68, 697of marrfed

woman, 90. "» "y > "• marnea

by committee of lunatic, 68,69, 140

irn^Lf f '"''" "'^A-"" '/ *"^T'*' '-^9 ; or of person of unsound mind, 140
trustees to proceedings by, when necessary, ,380 ; how obtained, 1380

2082

INDEX.

SCANDAL, 285—287.

allegatif)!! of general malice or personal hostility unconnected with acts

complained of, scandalous, 286.
affidavit to be used in Chambers, in, remedy for 573 ; to be used in Court,

572.
answer in, 459, n. (4).

Chambers, in proceedings at, remedy for, 572.
cohtemnor may apply for removal of, 1723.
costs occasioned by, 289.
definition of, 285.
demurrer, not a ground for, 287.
file, taking pleadings and documents off, for, 480, 481.
imputation of corrupt or vindictive motives in suit to remove trustee, not,

286.
injunction not granted, if any in bill, 1699.
material, anything which is, not scandalous, 285.
objection for, may be taken by the Court, 288.

how taken, 288.
pauper, costs of, when introduced by, 38.
statement of particular immoral acts provable under general charge

scandalous, 286.
SCANDALOUS WORDS,

against Court or its process, punishment for 667.
SCHEDULE,

affidavit to, reference to, 574.

alterations in, how authenticated, 574.
answer, to, when used, in aid of defendant's own case, 454.

addition of, by amendment, when permitted, 479.

impertinent, when, 454.

paper on which written, 465.

signature of defendant to, 460, 467 ; of official to, 467.

SCHEME,

Chambers, settlement of, at, 1S89.

SCIENTIFIC PERSON,

assistance of, how obtained, 614 ; and see Expert.

SCIRE FACIAS,

nature of, and proceedings by, 1793.

SCOTCH LA'V AGENT,

communication with, privileged, 411.

SCRIVENER,

communication to, privileged, 410.

SEAL (COMMON, OF CORPORATION AGGREGATE),
answer put in under, 114, 460, 461, 466.

proceedings where custodian refuses to affix it, 114.
thirty years old, does not prove itself, semble, 554.

SECOND SUIT (FOR SAME MATTER),

dismissal of, on continued neglect to pay costs of former suit, 4S9, 490,
stay of, till payment cf costs of former suit, 489, 490, 509.
pauper, when suit by, 35.

SECONDARY EVIDENCE,

documents, of, when admitted in Equity, 558, 559 ; at law, 558.
* will, of contents of, when admitted, 557.

SECRETS, <.

disclosure of, when restrained, 1677. ■■ -^ ' .:■■..

SECURITIES, '

collateral, surety, when- liot necessary party to suit as to, 225.

INDEX.

208a

SECURITIES-f^«//««<v/.

delivery up of costs of suit for, 1476; 1488, 1480

receivers and managers, how taken from, 1772

SECURITY FOR COSTS. ^.. Costs (Security kok).
SEISIN, '

" bill, how alleged in, 295, 296.

of Ihmgs manurahle or immaniirable, 296.
SEPARATE ACCOUNT,

application for payment out\hen only applicant interested nf ',8,«
evKlence on, application to deal with fuL,T827 828 ' ' ^^

fund, when paid to, 1535, 1824. '

married woman, carrying over to, when directed in case of 71 iS.fi
mistake m carnage t.,. bill of review does not lie fo. 182c ^'
service of application to deal with fund standing to! ',626,^; 627 ,827
SEPARATE ESTATE, ^' ''

ansvs'er, boun.l by joint, of wife and her husband, 147.
or her separate answer, 147. ' ^'

charge I, how, 148, 149, '

cjitiMct, fraul, or breich of trust, by, 149

testamentary charge of debts, by, US
costs of, wife's suit lialile to, 90 *

leave to apply for payment of costs out of, 149

discovery as t.,, when marrie.l woman bound to give ia6

^^:r;t'rhXn5f ;r - --^ ^'^^- °^' -'--.79:

MSSiiS^Z^^^^ 87. 38.

^"dSa:^;^r=SjS;^St^''"

SEPARATIST,

affirmation of, how taken, 576.
answer of, how taken, 463,

SEQUESTRATION,

abatement, effect of, on, 661.

motion for revivor or renewal of sequestration, 662.
beneficec' clerk, against, 632. ,'

c/tjsds m action, effect of, upon, 652 ' '

injunction or restraining order, for breach of, 1 7n.
costs of, 663. .' /*J' .

death of coiitemnor, effect of, on, 661. '

decree or order, fornon-obedience to,' 649— eG'?

irregularity in attachment, not issued if any, 649, 6?o
discharge of, 661. ^j"-

execuli m of, 652. ,'

form of, 652.

fraudulent alienation, effect of sequestration, not prevented bv 6<:6 "
half-pay, not taken under, 653. p'cvcntea ny, 050.

2084

INDEX.

1 1

3

3

S KQU ESTR ATION— fow/iwKA/.
indoiaetnent, on, 652.
irregularity in, waiver of, 650, 65 1.
issue of, 652.

jointure of contemnor's widow, not prejudiced by issue of, 661, 662.
lands, eftect of, on, 655, 658.
leaseholds, not sold under, 655.
discharge of, 661.
nature of, 650.
origin of, 650.

pension, what nnay be taken under, 653.
personal estate, effect of, upon, 652.
preparation of, 652.

injunction or restraining order, for breach of, 1713.
receiver, effect of appointment of, on, 661, 1776.
return to, 652 ; not filed, 652.
revivor of, 661, 662.

sale under, when ordered, 654 ; application for, how made, 655.
second, hoA^ obtained, 652.

iiEQUESTRATOKS,

abuse of power by, remedy for, 663.

accountable for receipts, 656.

accountable persons, should be, 652.

articles in possession of contemnor, power of, to seize, 653—657.

assistance, writ of, when issued to be put in possession, 657.

attornment by tenants to, 656, 657 ; how compelled, 656.

disturbance of possession of, a contempt of Court, 657.

injunction to restrain proceedings against, 660.

let lands, power to, when given, 656.

number of commissioners, 651.

powers of, over personal estate, 654 ; over real estate, 655, 656.

professsional persons, commissioners need not be, 651, n. (12).

SKKVICE,

absconding defendant out of the jurisdiction, on, 358.

affidavit of, 577.

decree or order, of copy of, 648.

demurrer, of order to set down, 428.

irregularity in, effect of, 576, 161 5.

notice of nr.otion, of, 1615.

appeal motions of, 1575.

decree, for, of, 520.

dismissal of bill for want of prosecution, of, 503.

time for filing, 1615.

order nisi, of, 1611.

petition, of, 1628 ; time for filing, 1616.

amended bill, of, 353, n. (5) ; clerical error, after rectification of,

325, n. (2).
amendment of bill, of order for, 334.
bill, of copy of the, how effected, 350, 351.

affidavit, when accompanied by, 316, 351.

dwdling-house, what is, for purposes of, 351.

subpoena, has the same effect as service of, 351.

Sunday, irregular if on, 351.
company, public, on, how effected, 352, 353.
corporation aggregate, of bill upon, how effected, 352, 353.

decree or order, of, on, 642.

foreign corporation, having office within the jurisdiction, on, 1614.
course, of order of, 1607.
decree or order, of, 378, 379, 641 — 642.

INDEX.

2085

of,

1, I6I4.

SERWICE— continued.

indorsement on, copy for, 642 ; and see InoorsemknV.
decn i or order, of appointment to pass, 631.
witness of, of order to set ilown, 597, 598.
examination t/c (lenc esse, of order to take, 590, 59 1 •
exhil)its, of order to prove, at the hearing, 563.
further hearing after trial, of order to set down cause after, 697.
^uaniian aii litem, of notice of motion by plaintiff to appoint, 125, 139.
hours for, when personiil service not required, 364, 365.
husband and wife, of bill on, 352.
husband out of the jurisdiction, of bill on, 360.
Imsband, of notice of decree on, 342.

infant, of copy of the bill on, 352 ; out of the jurisdiction, 360.
of notice of the decree on, application for directions as to, and evidence,
342 ; how effected, 346.
injunction, of notice of motion for, 1613, 1695.
minutes of order for, of, 1701.

notice of motion to dissolve, of, 1703 ; in interpleader suits, 1703.
writ of, of, 1702.
interim order, of, 1702.
jurisdiction, out of the, 358 — 361.

bill, of, when allowed, 118, 120, 358, 359.
application for order, how made, 360.

evidence, prima facie, only, necessary on, 360.
discretionary with Court, 360.
indorsement, in case of, 349, 361,
irregularity, how set aside for, 361.
leave for, when refused after decree, 1 18.
order for, fixes times for answer, 361.

served with bill, must be, 360.
service, how effected, 360.
notice of the decree, of, 342 ; order for, how obtained , and evidence, 346.
notice of motion, of, 1614 ; application for leave for, how made, 1613,
1614.
how service effected, 1614.
notice of motion for decree, of, 517 ; leave for, how obtained, 517, 518.

time for filing defendant's affidavits, when leave given, 517, 518.
petition, of, 1626 ; application for leave for, how made, 1626, 1627.

service, how effected, 1627.
replication, of notice of filing, 525.
married woman, of copy of the bill on, 352 ; where formal defendant, of

notice of the decree on, 342.
minutes, of, appointment to settle, 629.

next friend, of order appointing new, of infant, 63 ; of married woman, 90.
notice, of, when personal service not required, 365, 366,
notice of the decree, personal, necessary, unless dispensed with, 342.
post, service of, by, how authenticated, 346.
special service, when directed, 346,

application for order for, how made, 346.
notice of motion, of, 1613, 1614.

special leave for, when necessary, 161 1, 1695.
notice of motion for decree, of, 516, 517 ; extension of time for, 516,

517, S18.
Parliament, on Member of, 351, 352.

dwelling-house, what is, for purposes of, 351.
party acting in person, on, how effected, 365.
personal, of proceedings, when necessary, 361.
petition, of, 1626.
'■ personal, when necessary, 1626.

prisoner, of copy of the bill upon, 351, n. (6).

108

2086

INDEX.

5 {

.^

J

t

5

HKKVlCE—ron/iHueJ.

pro con^'esso decree, of, 378, 379.

application to dispense with, when made, 379.
proceedings, not rcfjuirinfj personal service, of, 361.
replication, of notice of filing, 525 , and siv Notice.
restraining order, of, 1702.

revivor, of order of, on whom necessary, 1581 ; how cfl'ected, 1581.
separate account, of application to deal with fund standing to, 1626, 1S27,

1828.
solicitor, on, how effected, 362, 363 ; hours for, 364, 365.
stop order, of petition for, 1718 ; of notice to deal with fund after, 1 719.
subpana ad tislijicandtim, of, 564, 579.
snhpivna duces tecum, of, 564, 579.

sul>stitutcd, principles on which directed, 365, 356 ; instances of, 356, 357
bill, of, 355—357.

action, to restrain, 388, 389.
agent on, 356.

api)lication for leave for, how made, and evidence, 358.
cross bill, of, not allowed, 357.
order for, form of, and se ice of, 358.
decree or order, of, when permitted, 643.

effected, how, 643 ; order for, liow obtained, 643.
notice of the decree, of, 346 ; application for order for, how made, 346.
notice of motion, of, 1613 ; api)lication for order for, how made, 1613.
petition, of, 1626 ; application for leave for, how made, 1626.
replication, of notice of fding, 525,
revivor, of order for, 1581.
amend bill, for leave to, 329.

to enlarge time for amending, or for obtaining order to amend, 334.
answer, to enlarge time for, 464.
hours for effecting, 364, 365.
luisound mind, of bill on person of, 352.

notice of the decree, of, 342 ; effected how, 346.

application for direction as to, how made, and evidence, 342.
SETTING IJOWN,

cause for hearing, 599 — 602.
disclaimer, upon, 437.
effected, how, 600, 601.
time for, 599 — 601.
cross causes, in case of, 609.
demurrer, 428.

neglect, consequences of, 427 ; relief against, 428.
vacations, not reckoned in, 428.
demurrer by witness, "597, 598.
demurrer, 481, 482.

further hearing, oftei uiul Tissue or question of fact, 697, 69S.
injunction, motion for, turned into motion for decree, 1620, 1699.
petitions, 1627.
special case, 1870.

Court, before what, 1356.
effected, how, 1870.
leave for, when required, 1870.
application for, how made, 1870 ; evidence in sujiport, and notice of.
1870.
what parties bound, on leave being given to, 1869.

SB:TTLED account, ^-^v stated Account.
SETTLEMENT,

affidavit of none, form of, and when required, 76.

rectification of, costs of suits for, 1538.

suit to avoid, parties to, 192.

INDEX.

2087

ii, 1581.

, to, 1626, 1S27,

9 '

1 after, I7>9.
:es of, 356, 357

8.

how made, 346.
)w mack*, 161 3.
1626.

to amend, 334.

lice, 342.

698.
:o, 1 egg-

It, and notice of.

SKTTLKMENT (KQUITY TO), 72-87.
adultery of wife, effect of, on, 86.

wiird of Court, married clandestinely, in case of, 86.
amount settled, 80, 81.

assignee of hushand, attaches aj^ainsi, 83 ; except in case of life estate, 83.
assifjnnient by husband of wife's equitable chose in action, not lost by, 97, 98.
attaches, when, 72 ; when not, 73.
children, is for benefit of, 84 ; does not survive to them, 85.

unless contract or order for settlement in her lifetime, S5,
co-plaintiff, not Ic i l)y joinder of husband as, 88.
death of husband 1 ^vife before settlement ajiproved, efllect of, 86.
desertion of husi)an(l, forfeited by croundless, 82.

(oreifjn domicile, when it attaches m case of married woman having, 76.
forfeited, how, 82, 83,

husband oidy having right to sue, does not attach in case of, 73.
husband maintp.ining wife and children usually allowed whole income, 80, 81.

if he does not do so, whole or portion settled, 80, 81.
husband's trick, not defeated by, 80, 81.
misconduct of wife, when forfeited by, 83, 86.
modern adoption, not of, 73.
raised, how, 54.
settlement (lirected on refusal of consent to payment to husband, 79.

form of, 87 ; nature of, 81.

order itself, when made by, 81.
settlement, previous, effect of, on, 84.
.survivorship, distinct from right by, 73.
waived, how and when, 72 — 81, 85.

may be at any time before settlement finally ordered, 85 ; and s<v Ivxa.mi«

NATION (ok M.AKRIKI) WoMAN).

SETTLOR,

should not be co-plaintiff with purchaser i.i suit to avoid settlement, 192.

SHAREHOLDER,

joint-stock company, in, when one may sue on behalf of himself and the
others, 18—19, 196—202.

when one may be sued on behalf of others, 228—731.
And sec Class— Joint-Stock Company.

SHARES,

in unincorporated joint-stock company, assignor of shares in, when a neces-
sary party, 159.

SHERH'E,

disturbance of possession of receiver by, proceedings in case of, 1778.
ne exeat, execution of writ of, by, 1 744.

SHIP,

crew, one of, may sue for self and others for prize-money, when, 196.
improper employment of, restrained, 1680.
indorsement of certificate of registry restrained, when, 1680.
transfer of share in, injunction against, l68o.

SHIP-OWNER,

affidavit accompanying bill not necessary, 314.

SIGNATURE,

agreement relating to land, to allegation of, not necessary, 297,

Attorney-General, of, to answer, no, 461.

Attorney-General, of, to information, and amended information, 317.

how obtained, 317.

addition of, by amendment, when permitted, 479.

attestation of, when answer put in without oath, 462.

place of, 466.

2088

INDEX.

BIG'S ATU RE— couiinued.

defendant, of, to disclaimer, 435, 436 ; attesi'cion of, when put in without

oath, 435, 436.
defendant, of, to schedule, to answer, 466, 467,
deponent, of, to affidavit, 575.
examiner, of, to depositions, 582.
Judge of Superior Court, of, judicially noticed, 548.
official, of, to affidavit, 575.

to answer, 466, 467 ; to schedule to answer, 466, 467.
solicitor, of, to notices of motion, 161 1.

pauper, to proceedings on behalf of, 37, 161 1, 1625.

SIMONY,

demurrer, because discovery would expose defendant to penalty of, 397, 398.

SOLICITOR,

agent, when acting as, to write or print principal's name and place of

business on writs and proceedings left at Record and Writ Clerks'

office, 361, 362.
amended bill, service upon, of, 353.
arrest, privileged from, when, 667.
authority of, what sufficient to defend, 380 ; to sue, 254.
certificate of, to information, 317.
costs when made payable to, 1509.

documents in possession of, considered to be in party's own, 452, 1848.
guardian ad litem, appointment of, as, on application of plaintiff, 125,

139, 140.
hearing, penalty for non attendance at, 520, 609.
infant, of, tiling bill on behalf of, without next friend, liability for costs, 54.

when he may act for next friend and defendants, 59.
name, place of business, and address for service of, to be placed on writs

and other proceedings left at Record and Writ Clerks' Office, 361, 362.
ne i'xmt, when granted against, 1733, 1739, 1740.
payment ou* of Court of small sum, to, on undertaking to apply, 1831.
pauper, assignment of, to, 36 ; may not refuse to act, 37.
person not u p^i-ty, of, service of proceedings upon, 1614, 1615.
professional confidence, application of the rule as to, to, 408 — 413 ; and

see Professional Confidence.
receiver, solicitor in cause not appointed, 1766.
retainer of, what is sufficient, 254, 380.
revivor, service of order for, on, 1581.

service of proceedings on, how efifected, 365 ; hours for service, 364, 365.
signature of, to notices of motion, 161 1.

pi^ceedings on behalf of pauper, to, 37, 161 1, 1625.

other parties, when he acts for, 15 16,

partner, of, right of, to costs, 1516.

profit costs not allowed, 15 16; secus, where special authority, 1 5 16.

SOLICITOR AND CLIENT,

communications between, how far privileged, 406, 407, 408 ; and see Pro-
fessional Confidence.
taxation of costs as between, 1538, 1541 — 1543.

SOLICITOR-GENERAL,

Crown sues on behalf of, when, 4,
defendant, when made, no.

SOVEREIGN (FOREIGN). See Foreign Government.

SPEAKING DEMURRER,

definition of, 422 ; and .f^^^DEMURRER

hen put in without

INDEX.

2089

enalty of, 397, 398.

and place of
iVrit Clerks'

n, 452, 1848.
laintiff, 125,

)ility for costs, 54.

placed on writs
Office, 361, 362.

apply, 1 83 1.

1615.

|.o8 — 413 ; and

jrvice, 364, 365.

lority, 1 5 16.

408 ; and see Pko-

fT i)F Speciat. Case.

SPECIAL CASE, 1864 -,874

appearance x,, entry of, 1867, 1868

entry of, after amendment, 1868.
parties bound by, 1869.

plaintiff cannot enter 'for defendant 1868
appropriate, when, 2, 1864.

class ',S"^' ^^^ ''^.'"'"^"' ^^^ t°' "^»«t be shown 1871
costs m proceedings by, 187^ ' ^"

enrolment of order on, 1872
filing and notice of, 1867
form of, 1867,

statement of, m case, 1866 '

heanng of, powers of Court at, 1871
husband, concurrence of, in, i86<; '
Idiot, concurrence of, in, 186?

next friend of marrieTvvZan when?; "°"'=»':'-e"'^e "f- i", 1865.

office-copy of, by ^vSom tTken ''^^.'''''''^'y •" proceedings by, 1866,

omitted, material facts, recital'of, in order 1871

order on, how drawn up, 1872 ' '

papers for use of Court at hearing, 1870

parties to, 1866. ^' ' *

preparation and settlement of, 1867

procedure on, general, 1874.

protection affiMded trustees by order on 1872

statements of, 1867

title of, 1867, ■

specialty"'"''' """" °'' ™"™""" "'• '"' "''• ■'«*• '

cross L "hen (lecreeil ivithout, 30s, n (21 5,o
damage special must be shown, 677 '' ^

eleclion between suie and action, in cases of tu
infant not decreed at instance ot, 189 ' ' ■''

TlLVrstSorf 3? "'■'"''"'''• """'"■"«=" ""-■■ P^yer for genera.

{' '. '^

2090

INDEX.

SPECIFIC PERFORMANCE— f(7«/j««<rrf.

ne exeat, when granted in, 1733. *

not if applicant's equity doubtful, 1735.
or defendant has been held to bail for the same demand, 1 735.

amount for which writ marked, 1743.
one witness, decree for, when made on evidence of, 532, 533.
parol agreement, of, when decreed, 533.
parol variation, not decreed, where proved, 305.
parties to suits to, 154, 156, 157, 180, 189, 190, 234, 238, 239, 246, 247.

agent or auctioneer not necessary, 157, 246, 247.

ccsttti que trusts, when necessaiy to suit by trustee, 180.
practice where they are numerous, 1 80.

concurrence, persons whose is required 189, 190.

contract, parties to, usually only necessary parties to suit, 189.

covenants, in suit for the performance of, 154.

death of purchaser, in case of, 238, 239.

judgment creditors of purchaser not necessary *o bill against him, 234.

remaindennen not necessary, 220.

sub-contract, in cases of 1 56, 234.
property of purchaser, discovery as to, when compellable in suit for, 448.
^ receiver when appointed in suit for, 1754, 1763.

rents and profits, account of, not directed under prayer for, 305,
staying proceedings pending appeal in suit for, 1563, 1564.
title, inquiry as to, in suit for, 616 — 618; and ja? Title
variance, effect of, in suit for, 545, 546.
waiver of title^ how stated in bill for, 265, 303.

SPEED CAUSE,

undertaking to, 503.

SPOLIATION.

receiver, when appointed, in cases of, 1755, 1756.

STAMP,

agreement to waive, objection for want of, not given effect to, 534.
averment of, not necessary, 298.

insufficient on probate or administration, no decree till remedied, 263.
objection for want of, taken by Court, 611.
cause allowed to stand over to remedy defect, 612.

STATED ACCOUNT,

bill to open, certainty required in statements of, 303.
errors must be specified in, 303.

STATUTE. i>ee Act of Partiament.

STATUTORY JURISDICTION,

application under, how made, 3, 1882.
orders under, enforced as in suits, 1882.
petitions under, title of, 1625.

STAYING PROCEEDINGS,

appeals, pending, 494, 1562 — 1565,

account, taking of, not stayed, 1564.
costs not taxed, where, 1563,

decision of question, not ordered when it would be, 1564.
discretionary with Court, 1564.
distribution of fund, in cases of, 1564.
expense, not directed on ground of, 1565.
foreclosure, in cases of, 1565.

injunction, in cases of, 1564; after dismissal of bill, 1563, 1564.
irreparable mischief, danger of, 1 563.
loss of object of appeal, danger of, 1563.
special case, in case of orders on, 1872.

239, 246, 247.

INDEX.

2091

Suits {Staving

STAYING PROCEEDimS-condnufa.

consent, by application for, how made, 486, 487.

contempt, till clearance of, 1721 ^ '

cross suits, in, 356.

decree, after, 486 ; in class suit, 487.

election, pending inquiry, in cases of, zii.

foreign Court, after decree in, 493

infant's suits, in cases of, 55.

mfrmgement of patent, where oppressive number of bills filed, 280, n. (2), 494,

mL^ri^ P^""^'"^ '"'^""■^'. ^' ^°' '" <=^«« of plaintiff, 68.

pT/meltTf^s SSsKlTe m£: turX ^^' ''' ^ ^'^■
amount of costs must be first aSSnS' "^ "49 ' *^^' ^^' ^09, IS34.
pauper, when plaintiff, a, 35. ^ ^'^

'^'',':S!l'^%t.:''"^"'"'^ proceedings for .an,e„bjec,,„„,i,, 489, 490,

rXrii'^SSS^: :,7 J=f -'^ ..o.wi.hsu„di„g, ,„o.

"?r„'i?'/o:ir3o;'3r'"^ "'■ "^ ""''"" ^ w«« »« of .he junsdic.

misdescription of plaintiff, in case of, 292

next friend of married woman, by, 89.

specific performance, in cases of, 156^, ic6d

submission to plaintiff's demand, and to pay costs, on 488 480
only by consent, if application by plaintiff. 488. 489 ^ ' ^^'
STEWARD, -» "f y-

communication to, not privileged, 410.
STOCK,

transfer of, when restrained, 1679.
STOP ORDER, 1 715—, 719.

applicable to what fundsj i7i5_i7i6

SSof°-\ri^^°'f granted, 1716 ; how made. 1717.
costs of, right of applicant to, 1719 ' ' '

documents deposited in Court, on 1719
evidence in support of application for, i'7l7.
M^/acms granted in favor of creditor, under writ of 1716
fund must be actually in Court, 1716 '

irregularity, discharge of, for, 1719
judgment creditor, when granted in favor of, 1716

petition, title to be shown by, 1 71 7 ' ^'

priority, acquired by, 1 718.
registrar, lodging order with, 1718
restraint effected by, 1 719.

rights of parties not decided by, 1718
service of, petition for, 1 71 7, 1718.
solicitor's lien, not effected by, 1718

subsequent assignment of interest affected by, proceedinrrs in case of ,^,n
trustees' costs, when made subject to, 1718 ^''"''''^"'"S'' '" case of, 1719.

STRANGER,

advances made by, to wife entitled to maintenance, repaid him 82
STREAMS, ' ■

pollution of, when restrained, 1664.

2092

INDEX.

I

Si

int

K.. t.

STRIKING OUT NAME, .,...•,

defendant, of, by amendment, before answer, 251, 319.
after answer, 251, 319 ; and see Amendment oi' BiM..
demurrer, after allowance of, 432.

plaintiff, of, by amendment of bill, before appearance, 319.
after answer, 320, 321 ; and see Amendment of Bill.
in case of infants, 57, 331.

SUB-CONTRACTS,

bill against several persons claiming under, not multifarious, 277.
person entitled under, when necessary party, 156, 157, 234.

SUBMISSIONS,

improper, infant not bound by, 59.

striking out 6f bill, 331.
insertion of, in decree or order, 628.

SUBORNATION OF PERJURY,

demurrer, because discovery would subject defendant to charge of, 397, 398.

SUBPCENA (WRIT OF),
generally, 579.

indorsement on, 579.

issue of, 579.
praecipe for, 597.
time for service of, 579.
ad testificandum, 578, 579.

examiner, to compel attendance before, 578.

exhibits, to prove, at hearing, 564.

husband and wife counted as distinct persons in, 579.

service of, 564, 579 ; and see Service.

c&use against decree, to show, 134.
duces tecum, 578 ; demurrer not necessary on refusal to produce under. 597.

documents, description of, in, 578, n. (3).

examiner, to compel attendance before, 578.

exhibits, to produce, at hearing, 564.

service of, 564, 579 ; and see Service.

SUBSCRIBERS,

one of many, to an institution, may sue on behalf of himself and others,
when, 196, 197 ; not if -dissolution sought, 196, 197.
SUBiTANCE OF BILL,

demurrer to, 392 — 396.
SUBSTITUTED SERVICE. See Service.

SUE (RIGHT TO),

persons having co-existent with plaintiff, necessary parties, whether right
at law, ii;2 ; or in Equity, 166.
or for the whole or part of the subject-matter, 167.
SUITOR,

arrest, when protected from, 667.

SUMS,

expression of, in affidavits, 574.
in answers, 465, 466.
in bills, 316.

SUNDAY,

bill, service of copy of, on, invalid, 351. i

time, when not reckoned in computation of, 289.

SUPERIOR COURTS,

office copy of record in, provable as exhibit at hearing, 561.
proceedings in, course of, judicially noticed, 386.
signature of Judge of, judicially noticed, 548.

SUPPLEMENT. JV^ Revivor.

INDEX.

2093

277.

ge of, 397. 398.

duce under, 597.

and others,

whether right

SUPPLEMENTAL ANSWER, 474—480.

admission of documents not permitted in order to qualify, 476.

amendment of answer, supplemental answer filed instead of, 474.

application for leave to file, how made, 476.

case for, must be shown, 476.

confined to object intended, must be, 476.

evidence in support of application, 476.

ignorance, when permitted in cases of, 474.

Limitations (Statute of) not permitted in order to raise, 475.

mistake as to facts, when permitted in case of, 474, 476. N

permission for, granted cautiously, 474 ; when granted and refused, 474, 475.

position, not permitted where plaintiff cannot be replaced in his original, 478.

subsequent facts, when permitted in order to put in issue, 474, 475,

time for making application for leave to file, 478.

SUPPLEMENTAL BILL, OR STATEMENT,
answer to, 1602 ; form of, 1602.
bad title, cannot be supported by, 1600.
contradictory to original bill, must not be, 1600.

decree after, must not introduce new case or vary principle of decree, i6oo»
demurrer to, grounds of, 1 601.
determination of interest of defendant before appearance, necessary in the

case of, 1588.
evidence, taken in original suit, read in, 1602.

where decree in original suit has been made, 1 602.
execution, to carry decree into, may be filed pending appeal, 1 562.
hearing, when no decree in oripinal suit, 1602.

after decree in original suit, 1602.
motion for decree, hearing of, on, 1602 ; evidence in such case, 1602.
necessary, when, 1588.
parties added by, 245.
answer to, grounds of, 1602.
prayer that bill may be taken as a, 1602.
replication to, 1602.

SUPPLEMENTAL CAUSE,

advance of, 609, 1602.
SUPPLEMENTAL ORDER,

abatement, or defect in suit, instances in which made on, 1585, 1586.

application, made on whose, 1587, 1588.

assignee pendente liic hrought before the Court by, 236, n. (i), 1587, 1588.

intermediate remaindermen coming into being pendente lite, added by, 222.

parties added by, 245.

personal representatives of accounting party, form of, against, 1 588.
SUPPLEMENTAL STATEMENT,

abatement, not remediable by, 1580.

applicable, when, 1580.

defendant, cannot be filed by, 1600.

facts occurring since filing of bill, when introduced by, 322.

parties not added by, 1600.

plaintiff not ordered to file, 1600.

preparation, filing, and procedure on, 1600.

replication to, 527, 1600.

SURCHARGING AND FALSIFYING. .S^«? Master's Offick.
SURETY,

necessary party to suit for contribution, unless insolvent, 226.
but plaintiff may then elect to make him a party, 227.
' not necessary party to suit against principal, 225.

imless he has paid part of the debt, 226.
or he has charged his estate as a collateral security, 225.
ne exeat, in cases of, 1 739.
receiver, of, liabilities and rights of, 1797 — 1799 ; and see Receivf.r.

5094

INDEX.

SURPLUS,

bankrupt cannot sue assignees for, 49, 50.

incumbrancers not necessary parties to suit for execution of trusts of, 213,
214.

SURPRISE,

new trial at law on ground of, 690.

when caused by fraud of opposite party, 691.
new trial of issue on ground of, 679.

case to be made on application, 679.

SURVIVORSHIP (MARRIED WOMAN'S RIGHT BY),

bar of, after, husband may continue joint suit without administering to

wife, 91.
chattels, real, in, 99, 103.
how barred, 99, 100, 102.

agreement to assign, by, 100. \

assignment by husband, by, 99, ico.
of wife's judgment, 100.

of land held by wife under decree until payment, 100.
of wife's mortgage for years, 100.

of wife's term upon condition and entry for breach which cannot
take place in his life, 102.
:• der-lease by husband of wife's term />ro tanto, by, 102,
-i . barred, 100 — 103.
assignment by husbf \ by, lOO — 103.
interest of wife incapable of vesting during coverture, of, 103.
mc '• ^e in fee of wife, of, imless debt reduced into possession, 100.
satisiuid terr'> created in trust for wife out of her inheritance, of, loi.
term of wife upon condition and entry for breach which can take

place in his life, of, 102.
trust term of wife created with his consent, of, loi.
bankruptcy of husband, in case of wife's moitgage in fee, unless debt
reduced into possession, loo.
rules as to, the same whether chattel legal or equitable, 99.
assignment for or without value, whether, 102.
term in trust for wife, and term in trust to raise money for her, in

case of, 100.
trust of wife's term, and term itself, in case of, 99.
(hoses in action, in, 91 — 97.
how barred, 91 — 97 ; and see Reduction into Possession.
rules the same whether chose in action legal or equitable, 96, 97.
assigned for or without value, or by act of law, whether, 96, 97.
reducible into possession or not, whether, 96, 97.
death of either party before approval of settlement and without children,

unaffected by, 86.
equity to settlement, distinct from, 73.

TACKING,

principles with respect to, 172, 272, 273.

TAIL (TENANT IN),

bill by, and his children, to perpetuate testimony to his marriage, does
not lie, 262.
~ death of plaintiff without issue, effect of, 222.

first, necessary party to redemption suit, where property settled by mort--

gagee, 215.
incumlirancers upon estate of, when necessary parties, 187.
persons entitled after first, not necessary parties, 221.

unless nature of estate doubtful, 221 ; or tenant a lunatic, 221.

sts of, 213,

ering to

h cannot

, 103.

ssession, 100.
ance, of, loi.
can take

unless debt

her, in

97-
)6, 97-

: children,

ge, does
:1 b^■ niort-

21.

INDEX.

2095

TAXATION, 1539-1545. '

contemnor may proceed with, 1723.
party and party, as between, what included in, 1539, liAC

costs taxed as, unless otherwise directed, 1509, 1540

trustees costs, when taxed as between, 1541.
principles of, 1539—1545.

once adopted, followed on subsequent taxations, i^o.
reference, without formal, 509, 1622,
solicitor and client, as between, 1539, 1541—1544

administration suit by heir, of heir's costs in, 1543

Attorney-General, of costs of, in charity cases, 1542.

charity cases, in, 1542.

creditor's suit, of plaintiff in, 1542, 1543.

general fund, when costs paid out of, or fund of party, 15^9. 11:44.

heir, of costs of, in charity cases, 1542.

legatee's suit, in, 1543.

next of kin, of costs of, in charity cases, 1542,

personal representatives and trustees, costs of, when taxed as between,

IS4I-
residuary legatee's suit, in, 1543.
subsequent costs, of, included under direction for, unless specially excluded.
1404*

TECHNICAL EXPRESSIONS,

how far to be used in bill, 295, 296.

TENANCIES,

creation or determination of, by receiver, when permitted, 1785.

TENANTS,

cultivation by, in breach of covenant, restrained, 1684; distinction between

express and implied covenants, 1685.
custom of the country, contrary to, restrained, 1684.
manor, of, some only need be parties to suit, as to right of common, 228.

229. " ' '

parties, not necessary to suits to settle boundaries, 217, 218.

or generally for land, 219.
tcrtv, all, necessary parties to suit affecting rent-charge, 231,

except in case of charities, 231.
waste by, restrained, when, 1652, 1653.

TENANTS IN COMMON,

lessees of, when necessary parties, 167.
mortgage, of, when necessary ijaities, 170, 171.
parties, when necessary, 167, 168.
receiver, when appointed between, 1 761.
waste by, restrained, when, 1652, 1653.

TENDER,

amount due, and costs, of, effect of, 1484— 1486,
costs of contempt, of, 1725, 1726.

TERM OF YEARS,

husband's interest in wife's, 99, 100 ; in her trust of a term, 99, 100.
sequestrators cannot sell, 654, 655.

THELLUSSON ACT,

costs where bequest declared void under, 1535.
TIMBER,

felled, removal of, when restrained, 1680.

forfeiture for felling, whether relieved against, 1687.

ornamental, cutting down by tenant for life, restrained, 1659, i56o.

2096

INDEX.

u

ii

K:;;, t.

TIME,

adding to decree, for, 348,
affidavit, for furnishing copy of, 577.

ex parte, on, application for injunction, or ne exeat, 1697.
amendment of bill, for, by order of course, after answer, 327.

addition of parties, not increased by, 329.

demurrer, after, 325.

enlargement of, how obtained, 334.
amendment of bill, for making, after order obtained, 333.

enlargement of, now obtained, vacations not computeil in, 334.

enlargement of, 464.

jurisdiction, when bill served out of, 349, 350.

married woman, for separate answer of, 146, 469.

notice of filing, for giving, 471.

security for costs pending order for, 30, 31, 463.

sufficient, when to be deemed, 480, 481.

supplemental answer, for, application for leave to file, 478.
certuinty required in allegations of, 301.
copies made by solicitors, for delivery of, 577.
cross-examination, for notice to produce witness for, 519.
decree or order, for bespeaking, 628.

for service of appointment to pass, 630, 631
demurrer for setting down, 427.

vacations, time of, not reckoned in, 428.
election, for obtaining order for, 513, 514.

extension of time to make, how procured, 515.
enrolment of decree or order, for, 634,
entry of decree or order, for, 633.

examination de bene esse, 588 ; for giving notice of, 591, 592.
guardian ad litem, for service of application to appoint, 125.
measurement of, judicially noticed, 386.
minutes, for service of appointment to settle, 629.

for motion to vary, 630, 631.
motion for decree, for giving notice of, 516.

extension of, 516 ; when time to answer enlarged, 516.
motion for decree for filing affidavits on, plaintiff's in chief, 517, 518.

defendant's, 517, 518.

enlargement of, how procured, 518, 519.
notice of motion, for service of, 1615.
petition, for service of, 1626.
pro confesso, for motion to take bill, 371.

absolute, where decree not, 379.
pro confesso, for application for leave to answer, when decree taken, 37S,
prosecution, for motion to dismiss for want of, 494 — 496.

amendment of bill and further answer not required, after, 495.

answer, after sufficient, 494, 495.
enlargement of, 526.
notice of filing, for giving, 525.
setting down cause, for, 599.

TI'i'LE, AND S'.€ Master's Office.

denial of plaintiff, by answer, not a ground for refusing discovery of accounts,

449-
different, bill claiming same right by, not multifarious, 283.
doubtful questions of, not decided on demurrer, 382, 434.
inquiry into, on proposed purchase or mortgage, 1376, 1377 ; prosecution of,

1377-
inquiry into, in specific performance suit, dl6 — 6l8.

application for, how made, 619.
form and terms of, 617, 618.
prosecution, bill not dismissible for want of, after order for, 501, 502, 507.

508.

INDEX.

2097

TITLE — continued.

right of, how lost, 617, 6i8. ;,

time of showing, 618, 619.

preliminary acts necessary to complete plaintiff's, must be averred 26^
' 26^303 ^ ' '"''" '' """'^ "°' ""' ^""' ^^4 ; when U should be.

waiver of, how stated in bill for specific performance, 265.
TITLE DEEDS,

agent or attorney having, not a necessary lurty. 248 2dQ 1848 iS^o

certamty required in bills for discovery of,' and poSsS ,02 ^^'

contmgent remainderman cannot sue for inspection 0^26; ^

pScTio^^'oV! ^S^Z ?m;ethr^,8^r • '''' ' ^''^ ^'^ ^ '-' '369-
TITLE OF BOOK OR PERIODICAL

mfnngement of right to, when restrained, 1673.
TOLLS,

receiver of, appointment of, 1 761, 1764.
TRADE,

breach of covenant not to, when restrained, 1681

covenant not to, not implied in sale of goodwill. 1681

license to carry on, extent of, 1685.

receiver of, appointed when property is in nature of, 1760, 1761
TRADE MARKS,

infringement of, discovery of, must be given, 401

mjunction against piracy of, when made perpetual. 1707

TRADING,

defective proof of, how remedied, 1541, C42
notice to dispute, must be given, 527.

TRADING CONCERN,

one^of several proprietors of, may .ue on behalf of himself and others, when,

TRANSLATION,

answer in foreign language, of, how obtained, 467, 468

TRANSPORTATION,
civil death, when a, 70.

''''"cu/fJv'^KOR^ P'"'"^'ff ""'J^'- «^"te"<=e of, 25 ; and ... Costs (Se-
TREASON,

attainder for, effect of, 70 ; and see Attainder-Conviction
TRESPASS,

injunction, when granted, in cases of, 1654, 1655,
TRIAL OF ISSUE. &. Issue.

TRIAL OF QUESTION OF FACT. See Fact (Question of)
TRIAL (NEW). See New Trial ok Issue or Question of Fact
TRUST,

allegation of, in bill, 297, n. (3)

^''''f82\8f'lr^'''f''''"'"''"'3Sin. "ecessary parties to suit to repair
l«2, 184, 225 ; not represented by trustees, 181 ^ '

married woman s separate estate bound by her, 149
persons joining in, when not all necessary parties to suit to rem.V ,,, ,,s
trustees m.plicated in, when necessary pjriles to suit to rep^fr? 224'^' "'^'

.;]

2098

INDEX.

'^i

!

i I

.1^

J8 ^ '■

TRUST— <•<»«//«««/. *.

jointly chcrged with, though relief only prayed against one, when, 306.
dee<l, crecfitors under, nil necessary parties, when, 232.
execution of, decree for, on application of one cestui que trust, others not being

parties, 202, 341 ; of trustee against one tw//// y«f /;-/«/, 184, 341.

perpetual injunction, when granted after, 1708.
implied, receiver, when appointed, in case of, 1755, 1756.
property, sale of, when restrained, 1679.
resulting, where husband and wife join in mortgage, 100.

in satisfied trust term created out of wife's inheritance, roi.
term, of, husband's interest in wife's, 99, 100.
will, of, heir of devisor not necessary party to suit to execute, 190.

TRUSTEE,

agent of, not a necessary party, 203,
assignee of, when a necessary party, 203.
bare trustee, not a necessary party, 202.

cestui que trust not a necessary party to trustee's suit against co-trustee, 182 ;
or to recover trust fund improperly lent, 182.
unless he concurred in breach of trust, 182.
cestui que trusts, represented by, when, 171, 173, 180, 181, 186, 2I2, 213,
214.
foreclosure suits, in, 171, 173.

redemption suits, in, 215. *,/

cestui que trusts, not represented by, if interests conflicting, 181.

or in contests inter se, 181.
costs of, 1 5 10 — 1525 ; and see Costs.
costs, charges, and expenses, when allowed, 1544.
creditors, when represented by, 171, 182, 183, 213, 214.
death of, revivor when not necessary, on, 1595.
execution of trusts, decree for, on application of, against one cestui que

trust, 184, 341.
fraudulent, discovery must be given by, 401.
joint liability for breach of trust, when charged with, though relief only

prayed against, 306.
just allowances, what are, in case of ; see Master's Office.
legatees, when represented by, 213, 214
loss of time, not entitled to compensation for, 1517.
conveyance of trust property, settlement of, 1383, 1384.
receiver, when discharged upon, 1796.
statutory power for, 1384.
one may be sued without the other, when, 203.
party, when necessary, 153, 164, 203, 224, 225.
account, to suit for, 225.
accountable to unsuccessful defendant, if, 203.
administration, to suit for, 225.
breach of trust, to suit for, 224.
estates, having, 203.

legal estate, having, 153, 164 ; whether trust expressed or implied, 153.
when not necessary, 164, 188, 203, 227, 228.
account, to suit for, 227, 228.
bare trustee, 202.
equitable estate, having, 164.
will, now acting trustee under, 203.
payment into Court by, when directed. See Payment and Transfer

INTO Court.
payment of interest to, form of order for, 1830.
payment of, wife's right by survivorship, not bound by, 93.
production, not ordered by, in absence of, cestui que trust, 1849.
receiver, appointment of, against, 1757, 1758 ; and see Reciivj r.
removal of, imputation of corrupt or vindictive motives, not scandalous
in suit for, 286 ; secus, of general malice or personal hostility, 286.

le, when, 306.

)thers not being
U 34'-

INDEX.

209»

190.

o-trustee, 182 ;
36, 212, 213,

Ci's(t4i que
relief only

mplied, 153.

RANSFER

VI R.

iiuialous
k 286.

IKV^TE^— continued.

sanction of Court to proceedings by, application for, how made by, 1380.
sole, payment out to, only ordered by consent, 1828.
solicitor, not allowed professional charges, 1516.
suit, effect of institution of, on powers of, 1380.

TRUSTEE AND CESTUI QUE TRUST,
costs, one set of, when allowed between, 456.

TURNPIKE TOLLS,

receiver of, appointed, 1 764.

ULTRA VIRES,

acts of corporations, when restrained as being, 1676.

UNDER-LESSEE,

waste by, when restrained, 1652, 1653.

UNDERTAKING,

absent parties, iy. give effect to rights of, by plaintiff', 245.
apply, to, payment out of, when ordered on, 1831.
defendant, amendment cf bill, when a discharge of, 337.
speed cause, to, 503, 504.

UNDERTAKING AS TO DAMAGES,
interim order, when required on, 1694.

dismissal of, bill not vacated by, 1694.

given, how, 1688 ; by limited company, 1694.
netxcat, on application for, 1742.

assessment of damages under, on discharge of writ, 1747, 1 748.
next friend of infant, how given by, 1742.

UXDUE INFLUENCE,

party asserting, must prove, 535.

unless impeaching voluntary instrument, on the ground of, 537.

UNSOUND OR WEAK MIND (PERsbN OF),
answer of, put in by guardian ad litem, \ 39, 469.

heading of, 459.

jurat to, 469. ' '

read against him, whether it may be, 139, 531. -'

Attorney-General may sue on behalf of, 5, 67.
Chancery, jurisdiction of Court of, over property of, 1399.
competency, inquiry as to, when directed, 139.
defence of, conducted by .i.'Y^rtn/'/VjM rt^/ //V^/«, 138.
guardian of, appointment of, 1399 , to concur in special case, 1866.
guardian ad litem, of, how and when appointed, 138, 139, 348, 1627.

and see Guardian ad Litem (of Person of Unsound or Weak
Mind).
maintenance, allowance for, when and how ordered, 1399.
motion on behalf of, 1613.
next friend, usually sues by, 5, 67, 69.

bill filed on behalf of, without, taken off" the file, 6S, 69 ; and see Next
Friend (of Person of Unsound Mind.)
respondent, appointment of, ^«rtn//<m rtfl? /?/■(!•/« for, 139, 16.27. .
service of the bill on, 352.

jurisdiction, out of the, 360.
service of notice of the decree on, 342.

application for, direction as to, how made, and evidence, 342.

service, how effected, 346.
special case, concurrence in, 1865.
suits against, 104, 138 — 140 ; by, 52, 67 — 69.

And see Lunacy — Lunatic.
VACATIONS,

amendment of bill, not computed in time for, 327.

days of commencement and termination included in, 327, 328.

times of, 327, 328.

2100

INDEX.

I

i i

ft

?: = •

VALUE,

inadequacy of demurrer, on the ground of, 272, 393,
niotum to dismiss, on tlic ground of, 272.

VARIANCK,
effect of, 545.

prescription, when rights founded on, 545.
specific performance, in cases t)f, 546.

VARIATION (PAROL),

specific performance not decreed, where proved, 305.

VENDOR,

election between suit and action, when put to, 513.

VERDICT,

new trial, at law, on account of, 686.
perverse, new trial at law on ground of, 686. ,>

VESTING ORDER. .SVf Mastkr's OFFicii. /^/y /^if f^

VINDICTIVE MOTIVES,

imputation of, when not scandalous, 286.

VIOLENCE,

server of process or order, to, punishment for, 667.

VISITOR,

charity, of, powers of, 1886.

VOLUNTARY DONATION,

onus probatiiii on party setting up, 537.

VOUCHERS, ^tr Master's office.

WAIVER,

allegation of, where relied on, 303.
contempt, of, 1727 — 1729. •

amendment of bill, when a, 338, 1728.

answer, acceptance of, is, 1727.

acceptance of, costs of, not a waiver, 1726.

taking official copy of, when a waiver, 1723, n. ; when not, 1723, n.
1727.

cross bill, filing, not a waiver of plaintiff's in original suit, 1728.
defendant, Ijy one, in favor of plaintiff, insufficient to sustain bill, if right

not shown, 262.
discovery, of right to protection against, none in criminal cases, 400, 401.
irregularity, of, principle of, 1730, 1731 ; not applicable to erroneous
order, 1 731.

acceptance of answer, by, 480.

amendment of bill in, 334 ; allowance of demurrer, after, 430.

bill, in frame of, what is, 417.

jurat in, 468, 576 ; must be express, 468.

sequestration, in, 650, 651.
notice of motion, of, by subsequent amendment of bill, 338, 1623, 1699.
penalty or forfeituie ot, 311, 312; effect of, 311, 312, 397.

demurrer, for want of, 312, 397.
relief against absent parties, of, 245.
title, o^ how stated in bill for specific performance, 265, 303.

WAR,

breaking out of, effect of, on suit by alien, 46.

prisoner of, may sue, when, 44.

state of, judicially noticed, 46, 386 ; secus, between foreign states, 46, 386.

WARD (OF COURT),

constituted, how, 54, 1384.
jurisdiction, must be kept within, 1393.

leave to go without, when and how given, 1393, 1394.

INDEX.

21U1

^7-

)t, 1723, n.

728.

ul), if right

i, 400, 401.

Ironeous

Ms. 1699.

kes, 46, 386.

WARD (OF COURT)-f<i;///;//W. ,,

niaiiiiiyc of, proceeilinys on, 1404 — 1407.

witliout consent, injunction to restrain, 1404, 1688 j and M' MarriaCiK,
payment into Court of fund belonging to, 1S18.
removal of, injunction to restrain, 1393, 1688.
settlement on, enforced in cases of clandestine marriage of, though an

adultress, 86.

WARRANT, Mastkrs, .SV.- Mastkr's Okkick.

WASTE.

account of, incidental to injunction, i66i.

class, one of a, may sue on behalf of self and others to restrain, 341.
equitable, definition of, 1659 ; restrained, when, 1659, 1660.
injunction to restrain, 3, 53, 1652, 1653.

application, on whose, tjranted, 1773 ; against whom, 1773.

(Jrown, at the suit of the, 3.

equitable titles, in case of, i"''3.

infant en ventre sa mere, 0. !',« suit of, 53, 1653.

perpetual at hearing, niade, 1 707.

WAY (RIGHT or).

certainty requisite in allegations of bill to establish, 300, 301.
parties to bill to establish, 169.

WEAK MIND (PERSON OF). Set Unsound or Weak Mind (Person

of).
WEIGHTS,

legal, judicially noticed, 388, 389^

WEST INDIES,

receiver of property in, when appointed, 1 765.

WHOLE MATTER,

bill must be for, 272 ; if capalile of immediate decision, 273.

WIFE. .S"f^ Marrikd Woman.

WILFUL DEFAULT. .SV^ Master's Okkick.

WILL,

admission of, by heir, 556 ; insufficient, how remedied by evidence, 541, 542

alleged in bill, how, 298.

construction of, costs of suit for, 1530.

establishment of, how proved in suit for, when original cannot be obtained,

557.

heir necessary party to suit for, 191.

perpetual injunction granted against heir, after decree for, 1708

in suit against infant heir, 133.

inquiry not directed to remedy defect in proof of, 543.
exhibit, not provable as, at hearing, 562.

fraud used in obtaining, not cognisable, in Court of Chancery, 390.
hicc verba, when set out in, 296, 297.

married woman, appointees under, when necessary parties, 184.
when some allowed to sue for all, 184, 196.
probate, or stamped copy, when admitted as evidence of, 557.
production of, how obtained, 557.
proof of, must be stated by executor plaintiflf, 262, 263; unless bill filed to

protect property pending application for probate, 262, 263.

how alleged, 262, 263,
proof of, in evidence in suit to establish it, 555 — 558, 557.

colonies, after proof in, 556.

defective how remedied, 541, $42, 556.

sanity of testator must be shown in suit to establish, 556.

witnesses, all, must be examined); exceptions, 555.
109

2102

INDEX.

Vilhh— continued.

proof of, in evidence where suit not to establish it, 556, 557.

secondary evidence of contents of, wKen admitted, 558.

thirty years old, proves itself, 554.

trusts of, heir of devisor not a necessary party to suit to execute, 190,

WITNESS,

who may be, 564. -

abroad, about to go, examination of, de bene esse, 585, 586.

order for, is of course, 589.
absence of material, new trial of issue on ground of, 680.

at law, on ground of, 689.
affirmation of, how taken, 565.

aged, examination of, de bene esse, 585, 586 ; order for, is of course, 589.
arrest, protected from, when, 667.
attack on, in newspapers, a contempt of Court, 565.

examiner, before, 578.

exhibits, with, at the hearing, 564.

partition, before commissioners of, 702.
. de bene esse examination, 584, 595 ; and see De Bene Esse (Examination).
default in attendance, proceedings in case of, 580.
defendant, who is, cannot protect himself from discovery by answer, but

must demur, 250.
demurrer by, 595 — 599 ; and see Demurrer (by Witness).
examination of, 577 — 584 ; and see Examination (of Witnesses).
expenses of, tender of, 580 ; on examination in Chambers, 727.

if a married woman, 580.
ill, dangerously, examination of, de bene esse, 585 ; order for. is of course,

. 589.

illness, dangerous, liable to, examination de bene esse, 588.

misconduct of, new trial at law on ground of, 689.

mistake of, new trial at law on ground of, 690.

next friend may be, 61.

objecting to answer, motion that he may attend at his own expense, 599 ;
costs of, 599.

one, decree not made on uncorroborated evidence of, against defendant's
answer, 532.

party, should not be joined as, 246 ; unless member or officer of cor-
poration, 113, 247, 266, 303, 304.

peer, when a, must be sworn, 565.

perjury of, new trial at law on ground of, 690.

prisoner, a, proceedings in case of, 581.

attendance of, in Chambers, how obtained, 727.

production of documents, how obtained from, 57!^ ; in Cliambers, 727.
refusal to produce, proceedings on, 581 ; and see SuBFcENA (Writ ok).

sole, to important fact, examination de bene esse, 585, 587.
order for, not of course, 589 ; affidavit in support of application, 590.

sworn, how, 565.

sworn, refusing to be, proceedings against, 581.

WORKS OF ART,

publication of, when restrained, 1672.
WRIT,

name, place of business, and address, for service (if any) of solicitor or party
(if acting in person) suing out, to be placed on, 361, 362.
and in agency case, principal solicitors also, 361,
And see the particular writs.

the end.

Ik

;57-

;xecute, 190,

of course, 589.

K (Examination),
by answer, but

lSS).

'iTNKSfiES).
>. 727-

for. is of course,

a expense, 599 ;
nst defendant's
Rcer of cor-

i '

ambers, 727.
ENA (Writ ok).

)plication, 590.

of solicitor or party
362.